(A
"PROPOSAL").
WITHIN SIXTY (60) CALENDAR DAYS AFTER SUCH MATTER WAS FIRST
REFERRED TO THE NEUTRAL, EACH PARTY SHALL HAVE THE RIGHT TO RESPOND TO THE OTHER
PARTY'S PROPOSAL, INCLUDING ITS MEMORANDUM AND SUPPORTING DATA AND ANALYSIS (BUT
NEITHER PARTY MAY CHANGE ITS OWN PROPOSAL), WHICH RESPONSE AND ANY DATA AND
ANALYSIS IN SUPPORT THEREOF SHALL BE PROVIDED TO THE NEUTRAL AND THE OTHER PARTY
(A "RESPONSE").
(III)
WITHIN FIFTEEN (15) CALENDAR DAYS AFTER THE EARLIER OF (A) EACH
PARTY'S RECEIPT OF THE OTHER PARTY'S RESPONSE AND (B) THE SEVENTY-FIFTH (75TH)
CALENDAR DAY AFTER SUCH MATTER WAS FIRST SUBMITTED TO ARBITRATION, THE NEUTRAL
MUST SELECT ONE OR THE OTHER OF THE PARTIES' PROPOSALS TO RESOLVE THE BASELINE
SALES DISPUTE AND MAY NOT COMBINE, SUPPLEMENT OR OTHERWISE MODIFY THE PARTIES'
PROPOSALS IN ANY MANNER.
IF A PARTY FAILS TO SUBMIT A PROPOSAL TO THE NEUTRAL
AS PROVIDED HEREUNDER, THE PROPOSAL SUBMITTED BY THE OTHER PARTY TO THE NEUTRAL
SHALL BE DEEMED TO BE THE SELECTED PROPOSAL.
THE AUTHORITY OF THE NEUTRAL SHALL
BE EXPRESSLY AND SOLELY LIMITED TO CONSIDERING THE TWO PROPOSALS (AND ANY
RESPONSES) SUBMITTED TO THE NEUTRAL BY THE PARTIES AND TO CHOOSING BETWEEN THE
TWO PROPOSALS, AND, WITHIN THE SCOPE OF THE NEUTRAL'S LIMITED AUTHORITY, THE
DECISION OF THE NEUTRAL MADE IN ACCORDANCE WITH THE TERMS OF THIS SECTION 16.1
SHALL BE A FINAL, LEGAL, VALID AND BINDING AND ENFORCEABLE AGAINST THE PARTIES.
WITH RESPECT TO A []*, THE NEUTRAL SHALL ESTABLISH THE []*, AS APPLICABLE, THAT
WERE THE SUBJECT OF THE []* BY SELECTING THE AMOUNT(S) PROPOSED BY ONE OF THE
PARTIES AS SET OUT IN ITS PROPOSAL THAT IS THE MOST FAIR AND REASONABLE TO THE
PARTIES IN LIGHT OF THE TOTALITY OF THE CIRCUMSTANCES.
THE AMOUNT(S) SET OUT IN
THE PARTY'S PROPOSAL SELECTED BY THE NEUTRAL SHALL BE DEEMED, UPON A DECISION BY
THE NEUTRAL IN ACCORDANCE WITH THE TERMS OF THIS SECTION 16.1, TO BE THE []* FOR
THE APPLICABLE CALENDAR YEAR(S) AND CALENDAR QUARTER(S) THAT WERE THE SUBJECT OF
SUCH []* FOR ALL PURPOSES UNDER THIS AGREEMENT.
THE PARTIES HEREBY WAIVE ANY
RIGHT TO INSTITUTE A COURT OR OTHER DISPUTE RESOLUTION PROCEEDING WITH RESPECT
TO, AND ACKNOWLEDGE THAT ARBITRATION IN ACCORDANCE WITH THIS SECTION 16.1(C) IS
THE SOLE AND EXCLUSIVE MEANS OF RESOLVING, A []*.
FOR THE AVOIDANCE OF DOUBT,
THE NEUTRAL SHALL NOT HAVE ANY AUTHORITY (A) TO AWARD ANY DAMAGES OR TO ACT
CONTRARY TO, OR TO MODIFY OR OTHERWISE AMEND, ANY OF THE TERMS OR CONDITIONS OF
THIS AGREEMENT OR (B) DETERMINE WHETHER OR NOT AN EVENT CONSTITUTES A []*.
(D)
NEITHER PARTY SHALL INITIATE LITIGATION OR OTHER LEGAL ACTION WITH
RESPECT TO ANY DISPUTE UNTIL AFTER THE CONCLUSION OF THE ESCALATION PERIOD;
PROVIDED THAT NOTHING IN THIS
*Confidential Treatment Requested.
Omitted portions filed separately with the
Commission.
69
SECTION 16.1 SHALL PRECLUDE EITHER PARTY FROM SEEKING INTERIM OR PROVISIONAL
RELIEF, INCLUDING A TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION OR OTHER
INTERIM EQUITABLE RELIEF WITH RESPECT TO A DISPUTE