TEN (10) BUSINESS DAYS AFTER THE END OF EACH CALENDAR QUARTER, WITH A REPORT
SHOWING MITSUBISHI'S BEST ESTIMATE OF TOTAL NET SALES FOR THAT CALENDAR QUARTER
BASED ON INFORMATION AVAILABLE TO MITSUBISHI AT THE TIME OF THE REPORT.
6.5.5
AUDIT.
MITSUBISHI SHALL KEEP AND SHALL CAUSE TO BE KEPT ACCURATE
RECORDS IN SUFFICIENT DETAIL TO ENABLE THE AMOUNTS DUE HEREUNDER TO BE
DETERMINED AND TO BE VERIFIED BY VERTEX.
UPON THE WRITTEN REQUEST OF VERTEX, AT
VERTEX'S EXPENSE AND NOT MORE THAN ONCE IN ANY CALENDAR YEAR, MITSUBISHI SHALL
PERMIT AN INDEPENDENT ACCOUNTANT OF NATIONAL PROMINENCE SELECTED BY VERTEX, AND
APPROVED BY MITSUBISHI, TO HAVE ACCESS DURING NORMAL BUSINESS HOURS TO THOSE
RECORDS OF MITSUBISHI AS MAY BE REASONABLY NECESSARY TO VERIFY THE ACCURACY OF
THE SALES REPORTS FURNISHED BY MITSUBISHI PURSUANT TO THIS SECTION 6.5, IN
RESPECT OF ANY CALENDAR YEAR ENDING NOT MORE [***] PRIOR TO THE DATE OF SUCH
NOTICE.
SUCH ACCOUNTANT SHALL NOT DISCLOSE ANY INFORMATION EXCEPT THAT WHICH
SHOULD PROPERLY BE CONTAINED IN A SALES REPORT REQUIRED UNDER THIS AGREEMENT.
MITSUBISHI SHALL INCLUDE IN EACH SUBLICENSE ENTERED INTO BY IT PURSUANT TO THIS
AGREEMENT A PROVISION REQUIRING THE SUBLICENSEE TO KEEP AND MAINTAIN ADEQUATE
RECORDS OF SALES MADE PURSUANT TO SUCH SUBLICENSE AND TO GRANT ACCESS TO SUCH
RECORDS BY THE AFOREMENTIONED INDEPENDENT ACCOUNTANT FOR THE REASONS SPECIFIED
IN THIS SECTION 6.5.
UPON THE EXPIRATION OF THREE (3) YEARS FOLLOWING THE END
OF ANY CALENDAR YEAR, THE CALCULATION OF AMOUNTS PAYABLE WITH RESPECT TO SUCH
CALENDAR YEAR,
[***]
Information redacted pursuant to a confidential
treatment request.
An unredacted version of this exhibit has been filed
separately with the Commission.
28
UNLESS THEN IN DISPUTE, SHALL BE BINDING AND CONCLUSIVE UPON VERTEX, AND
MITSUBISHI AND ITS AFFILIATES AND SUBLICENSEES SHALL BE RELEASED FROM ANY
LIABILITY OR ACCOUNTABILITY WITH RESPECT TO PAYMENTS FOR SUCH YEAR.
THE REPORT
PREPARED BY SUCH INDEPENDENT ACCOUNTANT, A COPY OF WHICH SHALL BE SENT OR
OTHERWISE PROVIDED TO MITSUBISHI BY SUCH INDEPENDENT ACCOUNTANT AT THE SAME TIME
IT IS SENT OR OTHERWISE PROVIDED TO VERTEX, SHALL CONTAIN THE CONCLUSIONS OF
SUCH INDEPENDENT ACCOUNTANT REGARDING THE AUDIT AND WILL SPECIFY THAT THE
AMOUNTS PAID TO VERTEX PURSUANT THERETO WERE CORRECT OR, IF INCORRECT, THE
AMOUNT OF ANY UNDERPAYMENT OR OVERPAYMENT.
IF SUCH INDEPENDENT ACCOUNTANT'S
REPORT SHOWS ANY UNDERPAYMENT, MITSUBISHI SHALL REMIT OR SHALL CAUSE ITS
AFFILIATES OR SUBLICENSEES TO REMIT TO VERTEX WITHIN THIRTY (30) DAYS AFTER
MITSUBISHI' RECEIPT OF SUCH REPORT, (I) THE AMOUNT OF SUCH UNDERPAYMENT AND (II)
IF SUCH UNDERPAYMENT EXCEEDS FIVE PERCENT (5%) OF THE TOTAL AMOUNT OWED FOR THE
CALENDAR YEAR THEN BEING AUDITED, THE REASONABLE AND NECESSARY FEES AND EXPENSES
OF SUCH INDEPENDENT ACCOUNTANT PERFORMING THE AUDIT, SUBJECT TO REASONABLE
SUBSTANTIATION THEREOF.
ANY OVERPAYMENTS SHALL BE FULLY CREDITABLE AGAINST
AMOUNTS PAYABLE IN SUBSEQUENT PAYMENT PERIODS.
VERTEX AGREES THAT ALL
INFORMATION SUBJECT TO REVIEW UNDER THIS SECTION 6.5 OR UNDER ANY SUBLICENSE
AGREEMENT IS CONFIDENTIAL AND THAT VERTEX SHALL RETAIN AND CAUSE ITS ACCOUNTANT
TO RETAIN