RESOLVED BY THE EXECUTIVE OFFICERS,
SPECIFYING THE NATURE OF THE DISPUTE WITH SUFFICIENT DETAIL TO PERMIT ADEQUATE
CONSIDERATION BY THE EXECUTIVE OFFICERS.
THE EXECUTIVE OFFICERS SHALL
DILIGENTLY AND IN GOOD FAITH ATTEMPT TO RESOLVE THE REFERRED DISPUTE
EXPEDITIOUSLY AND, IN ANY EVENT, WITHIN FIFTEEN DAYS OF RECEIVING SUCH WRITTEN
NOTIFICATION.
(B)
IN THE EVENT THAT THE EXECUTIVE OFFICERS ARE UNABLE TO REACH A
RESOLUTION OF ANY REFERRED DISPUTE AFTER GOOD FAITH NEGOTIATIONS DURING THE
FIFTEEN-DAY PERIOD REFERRED TO IN SECTION 3.5(A) ABOVE AND IN THE EVENT SUCH
DISPUTE IS NOT RELATED TO COMPLIANCE WITH THIS AGREEMENT, REGULATORY MATTERS, OR
THE VALIDITY, BREACH OR INTERPRETATION OF THIS AGREEMENT, EITHER PARTY MAY
COMMENCE MEDIATION WITHIN FIFTEEN DAYS AFTER THE CONCLUSION OF SUCH FIFTEEN-DAY
PERIOD BY PROVIDING TO THE OTHER PARTY A WRITTEN REQUEST FOR NON-BINDING
MEDIATION, SETTING FORTH THE SUBJECT OF THE DISPUTE AND THE RELIEF REQUESTED (A
"MEDIATION NOTICE").
THE PARTIES WILL COOPERATE WITH JUDICIAL ARBITRATION AND
MEDIATION SERVICES ("JAMS") AND WITH ONE ANOTHER IN SELECTING A MEDIATOR FROM
JAMS' PANEL OF NEUTRALS, AND IN SCHEDULING THE MEDIATION PROCEEDINGS.
THE
PARTIES SHALL ENDEAVOR TO CONCLUDE ANY MEDIATION UNDER THIS SECTION 3.5 WITHIN
THIRTY DAYS AFTER DELIVERY BY EITHER PARTY OF MEDIATION NOTICE.
THE PARTIES
COVENANT THAT THEY WILL PARTICIPATE IN THE MEDIATION IN GOOD FAITH AND THAT THEY
WILL SHARE EQUALLY IN ITS COSTS; PROVIDED THAT EACH PARTY WILL BE RESPONSIBLE
FOR ITS OWN ATTORNEY'S FEES.
EITHER PARTY MAY SEEK EQUITABLE RELIEF PRIOR TO
THE MEDIATION TO PRESERVE THE STATUS QUO PENDING THE COMPLETION OF THAT
PROCESS.
EXCEPT FOR SUCH AN ACTION TO OBTAIN EQUITABLE RELIEF, NEITHER PARTY
MAY COMMENCE A CIVIL ACTION WITH RESPECT TO THE MATTERS SUBMITTED TO MEDIATION
UNTIL AFTER THE COMPLETION OF THE INITIAL MEDIATION SESSION, OR THIRTY DAYS
AFTER DELIVERY OF THE MEDIATION NOTICE, WHICHEVER OCCURS FIRST.
(C)
ANY DISPUTES REFERRED TO THE EXECUTIVE OFFICERS FOR RESOLUTION
PURSUANT TO THIS SECTION 3.5 SHALL NOT BE SUBJECT TO ANY DISPUTE RESOLUTION
MECHANISM OR PROCEDURE OTHER THAN PURSUANT TO THIS SECTION 3.5.
13
ARTICLE IV
PRODUCT PROMOTION
SECTION 4.1
PRODUCT PROMOTION.
(A)
SUBJECT TO APPLICABLE LEGAL REQUIREMENTS, AS WELL AS THE
PROVISIONS OF THIS AGREEMENT, KING SHALL, FROM AND AFTER THE PROMOTION
COMMENCEMENT DATE, AT ITS SOLE EXPENSE, USE COMMERCIALLY REASONABLE EFFORTS TO
PROMOTE THE PRODUCT WITHIN THE TERRITORY IN ACCORDANCE WITH THE LAUNCH PLAN OR
ANNUAL PLAN (THE "PROMOTIONAL EFFORT").
FOR PURPOSES OF THE PRECEDING SENTENCE,
KING'S COMMERCIALLY REASONABLE EFFORTS SHALL MEAN, UNTIL ***, AT LEAST THE SAME
DEGREE OF EFFORT (INCLUDING WITH RESPECT TO THE REACH AND FREQUENCY OF DETAILS)
THAT KING WOULD USE FOR THE PROMOTION OF ANY OF KING'S PRODUCTS THAT ARE
PROMOTED IN THE ***, ARE OF A SIMILAR MARKET SIZE AND PATENT LIFE, AND REPRESENT
A SIMILAR COMMERCIAL OPPORTUNITY; THEREAFTER, KING WILL APPLY THE SAME STANDARD,
EXCEPT THAT IT MAY FULFILL ITS OBLIGATIONS BY PROMOTING THE PRODUCT IN THE ***.
ALL STATEMENTS, CORE SELLING MESSAGES AND MATERIALS TO BE UTILIZED BY KING TO
PROMOTE THE PRODUCT SHALL BE CONSISTENT IN ALL