ALSO PROVIDE VERTEX, WITHIN 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
28
Information redacted pursuant to a confidential treatment request.
An
unredacted version of this
exhibit has been filed separately with the Commission.
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, 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