Hearings The Hearing Officer shall hold hearings on a quarterly basis unless there are no appeals to hear or the parties agree to pend any open appeals. All materials considered in the position review shall be submitted to the Hearing Officer prior to the hearing and neither party will submit evidence at the hearing that was not submitted during the position review. The Hearing Officer shall endeavor to hold multiple hearings each day, and shall issue a concise decision which shall be final and binding. The Hearing Officer shall have no authority to alter the terms and conditions of this contract. Employees may be represented at the hearing and will be released from work with no loss of pay to attend the hearing. The Hearing Officer's fees and expenses shall be shared equally by the parties.
Proceedings; Orders (a) There is no pending Proceeding and, to the Company’s Knowledge, no Person has threatened to commence any Proceeding:
(i) to which Company is a party or which directly relates to any of the assets owned or used by the Company (whether or not the Company is named as a party thereto) and, to the Company’s Knowledge, no event has occurred, and no claim, dispute or other condition or circumstance exists, that would be reasonably expected to give rise to, or serve as a reasonable basis for, the commencement of any such Proceeding; or
(ii) that challenges, or that may have the effect of preventing, delaying, making illegal or otherwise interfering with, the Acquisition or the Company’s ability to comply with or perform its obligations and covenants under this Agreement or any of the other Transaction Agreements and, to the Company’s Knowledge, no event has occurred, and no claim, dispute or other condition or circumstance exists, that would be reasonably expected to give rise to, or serve as a reasonable basis for, the commencement of any such Proceeding.
(b) Within the last five years, no material Proceeding has been commenced by or against the Company and, to the Company’s Knowledge, no such Proceeding has been threatened.
(c) There is no Order to which the Company, or any of the assets owned by the Company, is subject.
(d) To the Company’s Knowledge, neither the General Partner nor any officer, employee, or contractor of the Company or of the General Partner, is subject to any Order that prohibits the General Partner, officer, employee or contractor of the Company or the General Partner from engaging in or continuing any conduct, activity or practice relating to the Company’s business.
(e) There is no proposed Order that, if issued or otherwise put into effect (i) would or could reasonably be expected to have a Material Adverse Effect or (ii) would otherwise have the effect of preventing, delaying, making illegal or otherwise interfering with the Acquisition.
Legal Proceedings; Orders (a) There is no pending Proceeding:
(i) that has been commenced by or against the Acquired Company or that otherwise relates to or may affect the business of, or any of the assets owned or used by, the Acquired Company; or
(ii) that challenges, or that may have the effect of preventing, delaying, making illegal, or otherwise interfering with, any of the Contemplated Transactions. To Sellers’ Knowledge, (1) no such Proceeding has been Threatened, and (2) no event has occurred or circumstance exists that may give rise to or serve as a basis for the commencement of any such Proceeding. Seller Parties have made available to Purchaser in the Data Room copies of all pleadings, correspondence, and other documents relating to each Proceeding listed in Part 3.14(a) of the Seller Parties Disclosure Schedule. The Proceedings listed in Part 3.14(a) of the Seller Parties Disclosure Schedule could not reasonably be expected to have a Material Adverse Effect.
(b) There is no Order to which the Acquired Company, or any of the assets owned or used by the Acquired Company, is subject.
(c) No officer, director, agent, or employee of the Acquired Company is subject to any Order that prohibits such officer, director, agent, or employee from engaging in or continuing any conduct, activity, or practice relating to the business of the Acquired Company.
(d) The Acquired Company is, and at all times has been, in full compliance with all of the terms and requirements of each Order to which it, or any of the assets owned or used by it, is or has been subject.
(e) No event has occurred or circumstance exists that may constitute or result in (with or without notice or lapse of time) a violation of or failure to comply with any term or requirement of any Order to which the Acquired Company, or any of the assets owned or used by the Acquired Company, is subject.
(f) The Acquired Company has not received, at any time, any notice or other communication (whether oral or written) from any Governmental Body or any other Person regarding any actual, alleged, possible, or potential violation of, or failure to comply with, any term or requirement of any Order to which the Acquired Company, or any of the assets owned or used by the Acquired Company, is or has been subject.
Hearing The grievance shall be heard by a single arbitrator and both parties may be represented by such person or persons as they may choose and designate, and the parties shall have the right to a hearing at which time both parties will have the opportunity to submit evidence, offer testimony, and make oral or written arguments relating to the issues before the arbitrator. The proceeding before the arbitrator shall be a hearing denovo.
Step Five – Arbitration 1. In the event the grievance is not referred to arbitration within the time limits prescribed, the grievance shall be considered resolved based upon the Step Four reply.
2. Upon receipt of a request for arbitration, the Township and the Lodge shall, jointly agree to an Arbitrator or request a list of seven (7) impartial labor Arbitrators from the Federal Mediation and Conciliation Service (FMCS) who have a business or residential address in Ohio and who are members of the National Academy of Arbitrators. Upon receipt of the list of seven (7) arbitrators, the parties shall select an arbitrator. The parties shall use the alternate strike method from the list of seven (7) arbitrators submitted to the parties by the FMCS. The first strike shall be by coin-toss and the parties shall then alternate in this manner until one (1) name remains on the list. The remaining name shall be designated as the Arbitrator to hear the dispute in question. Either party shall have the right to elect to reject the list in its entirety and to request the submission of a new seven (7) member panel, which election may only be exercised once. If the Lodge and Township have not jointly agreed to an arbitrator or neither party has made a request to the FMCS for a list of seven (7) arbitrators within 60 days of the Lodge’s written notice to arbitrate the grievance, the grievance shall be considered resolved and the issue will no longer be subject to the arbitration process. All procedures relative to the hearing shall be in accordance with the rules and regulations of the FMCS. The Arbitrator shall hold the arbitration promptly and issue a decision within a reasonable time thereafter.
3. The Arbitrator shall determine the grievance in accordance with the terms of the Agreement in effect on the date of the incident giving rise to the grievance.
4. The Arbitrator shall not have the authority to add to, subtract from, modify, change or alter any provision of this Agreement. The Arbitrator shall be confined solely to the issues submitted for arbitration. The Arbitrator shall not establish any new or different wage rates not negotiated as part of this Agreement. In cases of discharge or of suspension the Arbitrator shall have the authority to order modification of said discipline for the offense charged. In the event of a monetary award, the Arbitrator shall limit any retroactive settlement to no earlier time than forty-five (45) calendar days prior to the date the grievance was first presented.
5. The question of arbitrability of a grievance may be raised by either party before the arbitration hearing of the grievance, on the grounds that the matter is non-arbitrable or beyond the arbitrator's jurisdiction. The first question to be placed before the Arbitrator will be whether or not alleged grievance is arbitrable. If the Arbitrator determines the grievance is not arbitrable, the Arbitrator shall render no decision on the merits.
6. The decision of the Arbitrator shall be final and binding upon the Lodge, the member and the Township. Any cost involved in obtaining the list of arbitrators shall be equally divided between the Township and the Lodge. All costs directly related to the service of the Arbitrator shall be divided equally between the Township and the Lodge. Expenses, if any, of the witnesses shall be borne by the party calling the witness, except that member witnesses on duty time shall not lose any wages due from the Township. The fees of the court reporter shall be paid by the party asking for one. The fees of the court reporter shall be split equally if both parties desire a court reporter's recording, or request a copy of any transcript. The Township shall not incur any overtime expense as a result of this provision.
Step Four - Arbitration 1. With respect to all non-disciplinary grievances and disciplinary cases involving the discharge, suspension of three (3) days or more, or the reduction in rank, the OPBA may make a written request that the decision of the underlying grievance be submitted to binding arbitration pursuant to Step Four, hereunder. A written request for appellate arbitration must be submitted to the other party within fourteen (14) calendar days following such party’s receipt of the written decision at Step 3. In the event the decision at Step 3 is not referred to arbitration within the time limits prescribed, the decision of the Trustees or Designee shall be final and binding upon the OPBA, the member and the Township.
2. Upon receipt of a request for appellate arbitration, the Township and the OPBA shall, within fourteen (14) calendar days following the request for arbitration, jointly agree to an arbitrator or request a list of seven (7) impartial arbitrators from the Federal Mediation and Conciliation Service (FMCS). Upon receipt of the list of seven (7) arbitrators, the parties shall meet to select an arbitrator within fourteen (14) calendar days from the date the list is received. The parties shall use the alternate strike method from the list of seven (7) arbitrators submitted to the parties by the FMCS. The party requesting the arbitration shall be the first (1st) to strike a name and alternate in this manner until one (1) name remains on the list. The remaining name shall be designated as the arbitrator to hear the dispute in question. Either party shall have the right to elect to reject the list in its entirety and to request the submission of a new seven (7) member panel, which election may only be exercised once. All procedures relative to the hearing shall be in accordance with the rules and regulations of the FMCS. The arbitrator shall hold the appellate arbitration promptly and issue a decision within a reasonable time thereafter.
3. The arbitrator shall determine the grievance in accordance with the terms of the Agreement in effect on the date of the incident giving rise to the grievance.
4. The arbitrator shall not have the authority to add to, subtract from, modify, change or alter any provision of this Agreement. The arbitrator shall be confined solely to the issues submitted for arbitration. The arbitrator shall not establish any new or different wage rates not negotiated as part of this Agreement. In cases of discharge, suspension or reduction in rank, the arbitrator shall have the authority to order modification of said discipline for the offense charged. In the event of a monetary award, the arbitrator shall limit any retroactive settlement to no earlier time than forty-five (45) calendar days prior to the date the grievance was presented to the Township in Step One of the Grievance Procedure.
5. The question of arbitrability of a grievance may be raised by either party before the arbitration hearing of the grievance, on the grounds that the matter is non- arbitrable or beyond the arbitrator’s jurisdiction. The first question to be placed before the arbitrator will be whether or not the alleged grievance is arbitrable. If the arbitrator determines the grievance is not arbitrable, the arbitrator shall render no decision on the merits.
6. The decision of the arbitrator shall be final and binding upon the OPBA, the member and the Township. Any cost involved in obtaining the list of arbitrators shall be equally divided between the Township and the OPBA. All costs directly related to the services of the arbitrator shall be paid by the losing party. Expenses, if any, of the witnesses shall be borne by the party calling the witness except that member witnesses on duty time shall not lose any wages due from the Township. The fees of the court reporter shall be paid by the party asking for one. The fees of the court reporter shall be split equally if both parties desire a court reporter’s recording, or request a copy of any transcript. The Township shall not incur any overtime expense as a result of this Step.
Alternative Arbitration Proceedings Alternatively, the Parties may refer the matter to the Nairobi Centre for International Arbitration (NCIA) which offers a neutral venue for the conduct of national and international arbitration with commitment to providing institutional support to the arbitral process.
Mediation In the event of any dispute arising under or in connection with this Agreement, before either party may initiate arbitration pursuant to Section 5.2 below, ICANN and Registry Operator must attempt to resolve the dispute through mediation in accordance with the following terms and conditions:
(a) A party shall submit a dispute to mediation by written notice to the other party. The mediation shall be conducted by a single mediator selected by the parties. If the parties cannot agree on a mediator within fifteen (15) calendar days of delivery of written notice pursuant to this Section 5.1, the parties will promptly select a mutually acceptable mediation provider entity, which entity shall, as soon as practicable following such entity’s selection, designate a mediator, who is a licensed attorney with general knowledge of contract law, has no ongoing business relationship with either party and, to the extent necessary to mediate the particular dispute, general knowledge of the domain name system. Any mediator must confirm in writing that he or she is not, and will not become during the term of the mediation, an employee, partner, executive officer, director, or security holder of ICANN or Registry Operator. If such confirmation is not provided by the appointed mediator, then a replacement mediator shall be appointed pursuant to this Section 5.1(a).
(b) The mediator shall conduct the mediation in accordance with the rules and procedures that he or she determines following consultation with the parties. The parties shall discuss the dispute in good faith and attempt, with the mediator’s assistance, to reach an amicable resolution of the dispute. The mediation shall be treated as a settlement discussion and shall therefore be confidential and may not be used against either party in any later proceeding relating to the dispute, including any arbitration pursuant to Section 5.2. The mediator may not testify for either party in any later proceeding relating to the dispute.
(c) Each party shall bear its own costs in the mediation. The parties shall share equally the fees and expenses of the mediator. Each party shall treat information received from the other party pursuant to the mediation that is appropriately marked as confidential (as required by Section 7.15) as Confidential Information of such other party in accordance with Section 7.15.
(d) If the parties have engaged in good faith participation in the mediation but have not resolved the dispute for any reason, either party or the mediator may terminate the mediation at any time and the dispute can then proceed to arbitration pursuant to Section 5.2 below. If the parties have not resolved the dispute for any reason by the date that is ninety (90) calendar days following the date of the notice delivered pursuant to Section 5.1(a), the mediation shall automatically terminate (unless extended by agreement of the parties) and the dispute can then proceed to arbitration pursuant to Section 5.2 below.
Location of the Arbitration Hearing Unless applicable law provides otherwise, the arbitration hearing for United States residents will be conducted in the federal judicial district in which you reside (in your hometown area) or, for Canadian residents, in the province in which you reside, and, if you choose, will be in-person.
Mandatory Mediation Prior to and as a condition of either Party’s filing suit in state or federal court, the Parties shall engage in a mediated settlement conference in accordance with the North Carolina Superior Court Rules Implementing Statewide Mediation. The Parties shall mediate in good faith until settlement is reached or an impasse is declared by the mediator.
