Audit Dispute Resolution. Until the applicable Audit Period Termination Date, OSI shall, upon request, make available during normal business hours all books and records related to the respective Contingent Payments pursuant to this Section 4 for review by the Stockholder Representative. The applicable Audit Period Termination Date shall mean, for the review of books and records related to the First Contingent Payment and the Second Contingent Payment, 60 days after OSI makes available to the Stockholder Representative audited financial statements covering the period between the date of this Agreement and June 30, 2003; for the review of books and records related to the PFNA Amounts, 60 days after OSI makes available to the Stockholder Representative audited financial statements covering each fiscal period between the date of this Agreement and the fifth anniversary of this Agreement; provided, however, that the Stockholder Representative shall not undertake such review more than once per any 90 day period. In the event that the Stockholder Representative disputes OSI’s determination of the amount of the Contingent Payment or whether a payment pursuant to Section 4 should be, or should have been, made, the Stockholder Representative shall notify OSI in writing (a “Contingent Payment Dispute Notice”) of the amount, nature and basis of such dispute. The Stockholder Representative and OSI shall first endeavor to resolve such dispute among themselves. If the Stockholder Representative and OSI are unable to resolve the dispute within forty-five (45) calendar days, the dispute shall be submitted to arbitration. Such arbitration shall be held in Los Angeles, California and shall be conducted before a single arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The decision of the arbitrator regarding any issue raised in the Contingent Payment Dispute Notice shall be binding and conclusive. The parties agree to complete such arbitration as expeditiously as reasonably possible.
Appears in 1 contract
Sources: Merger Agreement (Osi Systems Inc)
Audit Dispute Resolution. Until the applicable Audit Period Termination Date, OSI shall, upon request, make available during normal business hours all books and records related to the respective Contingent Payments pursuant to this Section 4 for review by the Stockholder Shareholder Representative. Shareholder Representative may request copies of such books and records, which request shall not be unreasonably denied by OSI. The applicable “Audit Period Termination Date Date” shall mean, for the review of books and records related to the First Contingent Payment and the Second Contingent Payment, mean 60 days after OSI makes available to the Stockholder Shareholder Representative audited financial statements covering the period between the date of this Agreement and June 30, 2003; for the review of books and records related to the PFNA Amounts, 60 days after OSI makes available to the Stockholder Representative audited financial statements covering each fiscal period between the date of this Agreement and the fifth anniversary of this Agreement; provided, however, that the Stockholder Representative shall not undertake such review more than once per any 90 day periodapplicable Earn Out Period. In the event that the Stockholder Shareholder Representative disputes OSI’s determination of the amount of the Contingent Payment or whether a payment pursuant to Section 4 should be, or should have been, made, the Stockholder Representative shall notify OSI in writing (a “Contingent Payment Dispute Notice”) of the amount, nature and basis of such dispute. The Stockholder Representative and OSI shall first endeavor to resolve such dispute among themselves. If the Stockholder Representative and OSI are unable to resolve the dispute within forty-five (45) calendar daysdays following OSI’s receipt of a Contingent Payment Dispute Notice, the dispute shall be submitted to binding arbitration. Such arbitration shall be held in Los Angeles, California and shall be conducted before a single arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association. OSI and the Shareholder Representative shall agree on the arbitrator, provided that if OSI and the Shareholder Representative cannot agree on such arbitrator, either OSI or Shareholder Representative can request that the American Arbitration Association (Los Angeles) select the arbitrator. The arbitrator shall set a limited time period and establish procedures designed to reduce the cost and time for discovery while allowing the parties an opportunity, adequate in the sole judgment of the arbitrator, to discover relevant information from the opposing parties about the subject matter of the dispute. The arbitrator shall rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including attorneys’ fees and costs, to the same extent as a court of competent law or equity, should the arbitrator determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the arbitrator shall be written, shall be in accordance with applicable law and with this Agreement, and shall be supported by written findings of fact and conclusion of law which shall set forth the basis for the decision of the arbitrator. The decision of the arbitrator regarding any issue raised in the Contingent Payment Dispute Notice shall be binding and conclusive. The parties agree to complete such arbitration as expeditiously as reasonably possible.
Appears in 1 contract
Sources: Merger Agreement (Osi Systems Inc)