Common use of Post-Closing Purchase Price Adjustments Clause in Contracts

Post-Closing Purchase Price Adjustments. The Purchase Price shall be adjusted as provided herein based on the actual amount of the Stockholders' Equity of the Company, as determined in accordance with GAAP (but without giving effect to any adjustment that is required by GAAP solely in respect of the Liberate Licenses), as of December 31, 2001 (the CLOSING STOCKHOLDERS' EQUITY"). Within 30 days after the Closing Date (the "REVIEW PERIOD"), the Determination Committee (as defined below) shall cause to be prepared and delivered to the Buyer a determination (the "Determination") of the Closing Stockholders' Equity (which amount is referred to herein as the "PRELIMINARY ACTUAL AMOUNT"), including the basis for such Determination set forth in reasonable detail, prepared in accordance with GAAP. If, within 30 days after the date on which the Determination is delivered to the Buyer, the Buyer shall not have given written notice to the Determination Committee setting forth in reasonable detail any objection of the Buyer to such Determination, then such Determination shall be final and binding upon the parties and the Preliminary Actual Amount shall be deemed the final actual amount of the Closing Stockholders' Equity (including, as may be determined mutually by the parties or by the Settlement Accountant, as described below, the "FINAL ACTUAL AMOUNT"). In the event that the Buyer gives written notice of any objection to such Determination within such 30-day period, the Determination Committee and the Buyer shall use all reasonable efforts to resolve the dispute within fifteen (15) days following the receipt by the Determination Committee of such written notice from the Buyer. If the Determination Committee and the Buyer are able to reach an agreement during such 15-day period, the Closing Stockholders' Equity they agree upon shall be the Final Actual Amount. If the parties are unable to reach an agreement as to the Final Actual Amount within such 15-day period, the matter shall be submitted to a mutually agreed upon "big five" certified public accounting firm (the "SETTLEMENT ACCOUNTANT") for determination of the Final Actual Amount to be made within 20 days after submission, and the determination of the Settlement Accountant of the Final Actual Amount shall be final and binding upon the Buyer and the Company. The Buyer and the Company shall contribute equally to all costs (including fees and expenses charged by the Settlement Accountant) in connection with the resolution of any such dispute. The Buyer and the Company agree that the Buyer shall be entitled to receive from the Stockholders' Equity Adjustment Escrow Funds (as defined in the Escrow Agreement), and the Purchase Price shall be adjusted downward by, the positive amount, if any, equal to (i) $700,000, less (ii) the Final Actual Amount, (the "STOCKHOLDERS' EQUITY ADJUSTMENT AMOUNT"); provided, however, that the Stockholders' Equity Adjustment Amount to be received by the Buyer pursuant to this Section 1.3 shall not exceed $200,000. The sole source of funds for recovery of any Stockholders' Equity Adjustment Amount shall be the Stockholders' Equity Adjustment Escrow Funds. As used herein, the term "DETERMINATION COMMITTEE" means a committee consisting of the members of the Board of Directors of the Company (the "BOARD") in office immediately prior to the Closing; provided that, in the event any member of the Determination Committee as of the Closing of the Securities Purchase Agreement is removed or resigns or fails to be re-elected as a director of the Company, then the Determination Committee shall consist of such Persons that were members of the Determination Committee as of the Closing of the Securities Purchase Agreement and are, as of the relevant time, directors of the Company; further provided that, in the event no such persons remain as directors of the Company, the Company shall appoint an independent trustee to serve on the Determination Committee.

Post-Closing Purchase Price Adjustments. The Purchase Price shall be adjusted (1) Within 120 days following the Closing Date (or such other date as provided herein based on is mutually agreed to by the actual amount Vendors’ Representative and Stericycle in writing), Stericycle will prepare and deliver to the Vendors’ Representative a draft unaudited statement of Working Capital (Shred-it), Net Indebtedness (Shred-it), Working Capital (Shred-it International) and Net Indebtedness (Shred-it International) prepared as of the Stockholders' Equity close of the Company, as determined in accordance with GAAP (but without giving effect to any adjustment that is required by GAAP solely in respect of the Liberate Licenses), as of December 31, 2001 (the CLOSING STOCKHOLDERS' EQUITY"). Within 30 days after business on the Closing Date (the "REVIEW PERIOD"“Draft Working Capital / Indebtedness Statement”). The Draft Working Capital / Indebtedness Statement will be prepared in good faith in accordance with the Balance Sheet Principles. (2) The Vendors shall reasonably cooperate with Stericycle and its Representatives in connection with the preparation of the Draft Working Capital / Indebtedness Statement and the items included therein, including providing on a timely basis all other information necessary or useful in connection with such preparation as is reasonably requested by Stericycle and its Representatives. (3) After receipt of the Draft Working Capital / Indebtedness Statement from Stericycle, the Vendors shall have 60 days to review the Draft Working Capital / Indebtedness Statement (the “Review Period”). Stericycle shall (a) assist the Vendors and their Representatives in their review of, and provide the Vendors and their Representatives with reasonable access upon reasonable notice during normal business hours to, the books, records (including work papers, schedules, memoranda and other documents), supporting data, employees and auditors of the Determination Committee Business for purposes of reviewing the Draft Working Capital / Indebtedness Statement and the items included therein, and (b) reasonably cooperate with the Vendors and their Representatives in connection therewith, including providing on a timely basis all other information necessary or useful in connection with such review as defined below) is reasonably requested by the Vendors and their Representatives. The Draft Working Capital / Indebtedness Statement shall cause to be prepared binding and delivered conclusive upon, and deemed accepted by, the Vendors unless the Vendors’ Representative shall have notified Stericycle in writing prior to the Buyer a determination expiration of the Review Period of any dispute or objection thereto (any such written dispute or objection, the “Objection”), setting forth in reasonable detail the basis for its dispute or objection(s) and the specific adjustments (including dollar amounts) to the applicable item(s) set forth on the Draft Working Capital / Indebtedness Statement which the Vendors believe in good faith should be made. Any item not disputed or objected to in an Objection shall be deemed to have been accepted by the Vendors. If no Objection is delivered by the Vendors’ Representative to Stericycle prior to the expiration of the Review Period, then the Draft Working Capital / Indebtedness Statement shall be deemed to have been accepted by the Parties, and shall become final and binding upon the Parties, and the Draft Working Capital / Indebtedness Statement will become the “Closing Working Capital / Indebtedness Statement” on the next Business Day following the expiration of the Review Period. The date on which the Draft Working Capital / Indebtedness Statement becomes the Closing Working Capital / Indebtedness Statement in accordance with this Section 2.4(3) is hereinafter referred to as the “Determination Date”. The Vendors’ Representative and Stericycle shall, within 30 days (or such longer period as the Vendors’ Representative and Stericycle may agree in writing) following delivery of an Objection by the Vendors’ Representative to Stericycle (the "Determination") of “Resolution Period”), attempt in good faith to resolve their differences, and any resolution by them agreed to in writing as to any disputed amounts shall be final, binding and conclusive. Any items agreed to by the Closing Stockholders' Equity (which amount is Vendors’ Representative and Stericycle in writing, together with any items not disputed or objected to by the Vendors in the Objection, are collectively referred to herein as the "PRELIMINARY ACTUAL AMOUNT")“Resolved Matters”. During the Resolution Period, including Stericycle and its accountants shall have access to the basis for such Determination set forth in reasonable detail, working papers of Vendors’ Representative and its accountants prepared in accordance connection with GAAPthe Objection. (4) If at the end of the Resolution Period the Vendors’ Representative and Stericycle have been unable to resolve any differences that they may have with respect to the matters specified in the Objection, the Vendors’ Representative and Stericycle shall refer all matters that remain in dispute with respect to the Objection (the “Unresolved Matters”) to an internationally recognized independent public accounting firm jointly selected by the Vendors’ Representative and Stericycle, acting reasonably, or, if the Vendors’ Representative and Stericycle are unable to agree within five Business Days from the end of the Resolution Period, then such internationally recognized independent public accounting firm shall be KPMG LLP (“KPMG”) or, if such firm is unable to act, PricewaterhouseCoopers LLP (any such firm, the “CPA Firm”). IfThe Vendors’ Representative, on behalf of the Vendors, and Stericycle each agree to promptly sign an engagement letter, in commercially reasonable form, as may reasonably be required by the CPA Firm. The CPA Firm shall, acting as experts in accounting and not as arbitrators, determine on a basis consistent with the requirements of this Agreement, and only with respect to the Unresolved Matters so submitted, whether and to what extent the applicable items in the Draft Working Capital / Indebtedness Statement require adjustment. The Vendors’ Representative and Stericycle shall request the CPA Firm to use its commercially reasonable efforts to (a) render its final written determination within 30 days after the date on which the Determination is delivered to the Buyer, the Buyer shall not have given written notice to the Determination Committee setting forth in reasonable detail any objection CPA Firm’s engagement and (b) prepare a revised draft of the Buyer to such DeterminationDraft Working Capital / Indebtedness Statement (the “Revised Working Capital / Indebtedness Statement”), then such Determination which Revised Working Capital / Indebtedness Statement shall be consistent with the Resolved Matters and the final determination of the CPA Firm of the Unresolved Matters, and calculate the applicable Adjustment Amount based on such Revised Working Capital / Indebtedness Statement. Such Revised Working Capital / Indebtedness Statement shall become final and binding upon the parties Parties, and will become the “Closing Working Capital / Indebtedness Statement” on the date it is submitted by the CPA Firm to the Vendors’ Representative and Stericycle. The final written determination of the CPA Firm shall be based only on the written submissions of the Vendors’ Representative and Stericycle; provided, that the Vendors and Stericycle shall make reasonably available to the CPA Firm, upon the CPA Firm’s request, all relevant books and records, any workpapers (including those of the Vendors’ and Stericycle’s respective accountants) and supporting documentation relating to the Draft Working Capital / Indebtedness Statement and all other items reasonably requested by the CPA Firm (provided, that the Vendors, on the one hand, and Stericycle, on the other hand, shall contemporaneously provide a copy to the other Party or Parties, as the case may be, of any materials requested by, and provided to, the CPA Firm). None of the Vendors, or any of their Affiliates or Representatives, on the one hand, Stericycle, or any of its Affiliates or Representatives, on the other hand, shall have any ex parte communications or meetings with the CPA Firm regarding the subject matter hereof without the other prior written consent of the other Party or Parties, as the case may be. The final written determination of the CPA Firm shall be made in strict accordance with the terms of this Agreement without regard to principles of equity. With respect to each Unresolved Matter, the CPA Firm’s determination, if not in accordance with the position of either the Vendors or Stericycle, shall, to the extent necessary, be deemed to be not in excess of the higher, nor less than the lower, of the amounts advocated by the Vendors or Stericycle with respect thereto. The date on which the Revised Working Capital / Indebtedness Statement becomes the Closing Working Capital / Indebtedness Statement in accordance with this Section 2.4(4) is hereinafter referred to as the “Determination Date”. (5) Stericycle and the Preliminary Actual Amount Vendors will bear their own fees and expenses, including the fees and expenses of their respective advisors, in preparing or reviewing, as the case may be, the Draft Working Capital / Indebtedness Statement. In the case of an Objection and the retention of the CPA Firm with respect to any Unresolved Matters, all fees and disbursements of the CPA Firm shall be deemed borne 50% by the final actual Vendors and 50% by Stericycle; provided, that the Vendors and Stericycle will bear their own respective costs in presenting their respective positions to the CPA Firm. (6) The Vendors agree that the Purchase Price will be decreased by the amount of any Vendor Transaction Expenses not paid before the close of business on the Closing Date. In addition, the Parties agree to the following adjustments to the Purchase Price which may be offset against each other for purposes of determining a single payment amount (the “Adjustment Amount”) to be made by the Vendors or Stericycle (on behalf of itself and Purchaser Sub 2), as the case may be: (a) if Actual Closing Indebtedness is greater than Estimated Closing Indebtedness, the Vendors shall pay to Stericycle (on behalf of itself and Purchaser Sub 2) the difference between Actual Closing Indebtedness and Estimated Closing Indebtedness; (b) if Actual Closing Indebtedness is less than Estimated Closing Indebtedness, Stericycle (on behalf of itself and Purchaser Sub 2) shall pay to the Vendors the difference between Actual Closing Indebtedness and Estimated Closing Indebtedness; (c) if Actual Closing Working Capital is greater than $50,000,000, then the result (which may be positive or negative) of (i) Actual Closing Working Capital minus (ii) $50,000,000 minus (iii) any adjustment pursuant to Section 2.3(1)(a)(D) and Section 2.3(1)(b)(F) plus (iv) any adjustment made pursuant to Section 2.3(1)(a)(E) and Section 2.3(1)(b)(G) shall be determined, and if such result is positive, Stericycle (on behalf of itself and Purchaser Sub 2) shall pay such result to the Vendors, and if such result is negative, the Vendors shall pay such result to Stericycle (on behalf of itself and Purchaser Sub 2); (d) if Actual Closing Working Capital is less than $40,000,000, then the result (which may be positive or negative) of (i) $40,000,000 minus (ii) Actual Closing Working Capital plus (iii) any adjustment made pursuant to Section 2.3(1)(a)(D) and Section 2.3(1)(b)(F) minus (iv) any adjustment made pursuant to Section 2.3(1)(a)(E) or Section 2.3(1)(b)(G) shall be determined, and if such result is positive, the Vendors shall pay such result to Stericycle (on behalf of itself and Purchaser Sub 2), and if such result is negative, Stericycle (on behalf of itself and Purchaser Sub 2) shall pay such result to the Vendors; and (e) If (i) Actual Closing Working Capital is between $40,000,000 and $50,000,000 and (ii) any adjustment was made pursuant to Section 2.3(1)(a)(D), Section 2.3(1)(b)(F), Section 2.3(1)(a)(E) or Section 2.3(1)(b)(G), then the amount of such adjustment shall be repaid by the receiving Party or Parties, as applicable, to the Party or Parties that paid such adjustment, as applicable. (7) The Person(s) required to make a payment pursuant to Section 2.4(6) shall pay, within two Business Days of the Determination Date, by wire transfer of immediately available funds, to one or more accounts held by the Person(s) to whom payment is required pursuant to Section 2.4(6), as designated by such Person(s) within one Business Day of the Determination Date, an amount equal to the sum of (a) the Adjustment Amount plus (b) interest computed thereon at the Prime Rate on the Closing Date calculated based on the number of days elapsed from the Closing Date to the date of such payment and a 360-day year. (8) If the Vendors are required to make a payment pursuant to Section 2.4(7), then: (a) if the amount of the Closing Stockholders' Equity payment contemplated by Section 2.4(7) is less than or equal to the Holdback Amount, Stericycle (including, as may be determined mutually by the parties or by the Settlement Accountant, as described below, the "FINAL ACTUAL AMOUNT"). In the event that the Buyer gives written notice on behalf of any objection to itself and Purchaser Sub 2) shall retain such Determination within such 30-day period, the Determination Committee and the Buyer shall use all reasonable efforts to resolve the dispute within fifteen (15) days following the receipt by the Determination Committee of such written notice amount from the Buyer. If the Determination Committee and the Buyer are able to reach an agreement during such 15-day period, the Closing Stockholders' Equity they agree upon shall be the Final Actual Holdback Amount. If the parties are unable to reach an agreement as to the Final Actual Amount within such 15-day period, the matter shall be submitted to a mutually agreed upon "big five" certified public accounting firm (the "SETTLEMENT ACCOUNTANT") for determination of the Final Actual Amount to be made within 20 days after submission, and the determination of the Settlement Accountant of the Final Actual Amount shall be final and binding upon the Buyer and the Company. The Buyer and the Company shall contribute equally to all costs (including fees and expenses charged by the Settlement Accountant) in connection with the resolution of any such dispute. The Buyer and the Company agree that the Buyer shall be entitled to receive from the Stockholders' Equity Adjustment Escrow Funds (as defined in the Escrow Agreement), and the Purchase Price shall be adjusted downward by, the positive amount, if any, equal and pay the balance of the Holdback Amount, if any, to the Vendors in accordance with Section 2.4(7), as applicable; or (b) if the amount of the payment contemplated by Section 2.4(7)is greater than the Holdback Amount, Stericycle (on behalf of itself and Purchaser Sub 2) shall retain the Holdback Amount and the Vendors shall pay the balance of the amount contemplated by Section 2.4(7) to Stericycle (on behalf of itself and Purchaser Sub 2) in accordance with Section 2.4(7). (9) If Stericycle (on behalf of itself and Purchaser Sub 2) is required to make a payment pursuant to Section 2.4(6), then Stericycle (on behalf of itself and Purchaser Sub 2) shall pay such amount and the Holdback Amount to the Vendors in accordance with Section 2.4(7). (10) The Parties agree that the procedure set forth in this Section 2.4 for resolving disputes with respect to the Draft Working Capital / Indebtedness Statement is the sole and exclusive method of resolving such disputes, absent manifest error. (11) Shred-it and Purchaser Sub 1 agree to the following adjustments to the Shred-it International Purchase Price which may be offset against each other for purposes of determining a single payment amount to be made by Shred-it or Purchaser Sub 1, as the case may be: (a) if the Actual Closing Indebtedness (Shred-it International) is greater than the Estimated Closing Indebtedness (Shred-it International), Shred-it shall pay to Purchaser Sub 1 the difference between the Actual Closing Indebtedness (Shred-it International) and the Estimated Closing Indebtedness (Shred-it International); (b) if the Actual Closing Indebtedness (Shred-it International) is less than the Estimated Closing Indebtedness (Shred-it International), Purchaser Sub 1 shall pay to Shred-it the difference between the Actual Closing Indebtedness (Shred-it International) and the Estimated Closing Indebtedness (Shred-it International); (c) if Actual Closing Working Capital (Shred-it International) is greater than $15,000,000, then the result (which may be positive or negative) of (i) Actual Closing Working Capital (Shred-it International) minus (ii) $15,000,000 minus (iii) any adjustment pursuant to Section 2.3(1)(a)(D) plus (iv) any adjustment made pursuant to Section 2.3(1)(a)(E) shall be determined, and if such result is positive, Purchaser Sub 1 shall pay such result to Shred-it, and if such result is negative, Shred-it shall pay such result to Purchaser Sub 1; (d) if Actual Closing Working Capital (Shred-it International) is less than $12,000,000, then the result (which may be positive or negative) of (i) $700,000, less 12,000,000 minus (ii) Actual Closing Working Capital (Shred-it International) plus (iii) any adjustment made pursuant to Section 2.3(1)(a)(D) minus (iv) any adjustment made pursuant to Section 2.3(1)(a)(E) shall be determined, and if such result is positive, Shred-it shall pay such result to Purchaser Sub 1, and if such result is negative, Purchaser Sub 1 shall pay such result to Shred-it; and (e) if (i) Actual Closing Working Capital (Shred-it International) is between $12,000,000 and $15,000,000 and (ii) any adjustment was made pursuant to Section 2.3(1)(a)(D) or Section 2.3(1)(a)(E), then the Final Actual Amountamount of such adjustment shall be repaid by the receiving Party or Parties, (as applicable, to the "STOCKHOLDERS' EQUITY ADJUSTMENT AMOUNT")Party or Parties that paid such adjustment, as applicable; provided, howeverthat, that for the Stockholders' Equity Adjustment Amount to be received by avoidance of doubt, the Buyer Vendors shall have no liability whatsoever in respect of any adjustments pursuant to this Section 1.3 shall not exceed $200,000. The sole source of funds for recovery of any Stockholders' Equity Adjustment Amount shall be the Stockholders' Equity Adjustment Escrow Funds. As used herein, the term "DETERMINATION COMMITTEE" means a committee consisting of the members of the Board of Directors of the Company (the "BOARD") in office immediately prior to the Closing; provided that, in the event any member of the Determination Committee as of the Closing of the Securities Purchase Agreement is removed or resigns or fails to be re-elected as a director of the Company, then the Determination Committee shall consist of such Persons that were members of the Determination Committee as of the Closing of the Securities Purchase Agreement and are, as of the relevant time, directors of the Company; further provided that, in the event no such persons remain as directors of the Company, the Company shall appoint an independent trustee to serve on the Determination Committee2.4(11).

Post-Closing Purchase Price Adjustments. The Purchase Price (a) As promptly as practicable following the Closing Date but in no event later than ninety (90) days thereafter, Buyer shall be adjusted as provided herein based on the actual amount deliver to DuPont an unaudited combined balance sheet of the Stockholders' Equity of the CompanyDTI Business, as determined prepared by Buyer in accordance with GAAP (but without giving effect to any adjustment that is required by GAAP solely in respect of the Liberate Licenses)Closing Balance Sheet Principles, as of December 31, 2001 the close of business (the CLOSING STOCKHOLDERS' EQUITY"). Within 30 days after New York time) on the Closing Date (the "REVIEW PERIODPRELIMINARY CLOSING BALANCE SHEET"), which shall be accompanied by (i) a report stating that, in the opinion of Ernst & Young LLP ("BUYER'S INDEPENDENT ACCOUNTANT"), the Determination Committee (as defined below) shall cause to be prepared and delivered to the Buyer a determination (the "Determination") of the Preliminary Closing Stockholders' Equity (which amount is referred to herein as the "PRELIMINARY ACTUAL AMOUNT"), including the basis for such Determination set forth in reasonable detail, Balance Sheet has been prepared in accordance with GAAPthe Closing Balance Sheet Principles and (ii) a calculation by Buyer of Adjusted Net Assets based on the Preliminary Closing Balance Sheet (the "PRELIMINARY ADJUSTED NET ASSETS"). IfIn connection with the preparation and review of the Preliminary Closing Balance Sheet, within 30 days after DuPont (i) shall provide (or in the date on which case of access to PricewaterhouseCoopers LLP ("PWC") and its work papers, schedules, memoranda and other documents, DuPont shall request that PWC provide) reasonable access, during normal business hours and upon reasonable notice, to all work papers, schedules, memoranda and other documents prepared or reviewed by DuPont or by any of its Representatives (and, in the Determination is delivered case of PWC, during the course of PWC's engagement with respect to the DTI Business) which are relevant to the Preliminary Closing Balance Sheet, and that such access be provided promptly after request by Buyer and/or its Representatives and (ii) shall request that PWC communicate with Buyer and its Representatives with respect to the DTI Business; PROVIDED, that the foregoing clauses (i) and (ii) shall be subject to professional standards and PWC's firm policy, which may include the requirement that Buyer and its Representatives sign an "indemnification letter" in the form generally used by PWC prior to receiving access to any materials prepared by PWC. (b) DuPont shall have ninety (90) days following delivery to DuPont of the Preliminary Closing Balance Sheet and the calculation of Preliminary Adjusted Net Assets during which to review the Preliminary Closing Balance Sheet and such calculations, and to notify Buyer if it believes that (i) the Preliminary Closing Balance Sheet was not prepared in accordance with the Closing Balance Sheet Principles (in which case such notification shall be accompanied by a report of PWC, DuPont's independent accountants, stating that it concurs with DuPont's position that the Preliminary Closing Balance Sheet was not prepared in accordance with the Closing Balance Sheet Principles), (ii) the Preliminary Closing Balance Sheet contains mathematical error or (iii) the calculation of Preliminary Adjusted Net Assets was not in accordance with the definition of Adjusted Net Assets contained herein, and, in any case, DuPont's notice shall specify the reasons therefor in reasonable detail. In connection with such review, Buyer (i) shall provide (or in the case of access to Buyer's Independent Accountant and its work papers, schedules, memoranda and other documents, Buyer shall request that Buyer's Independent Accountant provide) reasonable access, during normal business hours and upon reasonable notice, to all work papers, schedules, memoranda and other documents prepared or reviewed by Buyer or any of its Representatives during the course of its review which are relevant to the Preliminary Closing Balance Sheet, and that such access be provided promptly after request by DuPont and/or its Representatives and (ii) request that Buyer's Independent Accountant communicate with DuPont and its Representatives with respect to such review; PROVIDED, that the foregoing clauses (i) and (ii) shall be subject to professional standards and Buyer's Independent Accountant's firm policy, which may include the requirement that DuPont and its Representatives sign an "indemnification letter" in the form generally used by Buyer's Independent Accountant prior to receiving access to any materials prepared by Buyer's Independent Accountant. If DuPont fails to properly notify Buyer of any such dispute within such ninety (90) day period, the Buyer shall not have given written notice to the Determination Committee setting forth in reasonable detail any objection of the Buyer to such Determination, then such Determination shall be final and binding upon the parties Preliminary Closing Balance Sheet and the calculation of Preliminary Actual Amount Adjusted Net Assets shall be deemed the final actual amount of the Closing Stockholders' Equity (including, as may be determined mutually by the parties or by the Settlement Accountant, as described below, the "FINAL ACTUAL AMOUNT")final. In the event that the DuPont shall so notify Buyer gives written notice of any objection to such Determination within such 30-day perioddispute, the Determination Committee Buyer and the Buyer DuPont shall use all reasonable efforts cooperate in good faith to resolve such dispute as promptly as possible, and upon such resolution, if any, any adjustments to the Preliminary Closing Balance Sheet and Preliminary Adjusted Net Assets shall be made in accordance with the agreement of Buyer and DuPont. (c) If Buyer and DuPont are unable to resolve any such dispute within fifteen (15) days following the receipt (or such longer period as Buyer and DuPont shall mutually agree in writing) of DuPont's delivery of such notice, such dispute shall be resolved by the Determination Committee of such written notice from the Buyer. If the Determination Committee and the Buyer are able to reach an agreement during such 15-day period, the Closing Stockholders' Equity they agree upon shall be the Final Actual Amount. If the parties are unable to reach an agreement as to the Final Actual Amount within such 15-day period, the matter shall be submitted to a mutually agreed upon "big five" certified public accounting firm (the "SETTLEMENT ACCOUNTANT") for determination of the Final Actual Amount to be made within 20 days after submissionIndependent Accounting Firm, and the such determination of the Settlement Accountant of the Final Actual Amount shall be final and binding upon on the Buyer parties; PROVIDED, HOWEVER, that (i) the calculation of Adjusted Net Assets shall be based on the Final Closing Balance Sheet and the Company. The Buyer definitions contained herein and (ii) unless the Company shall contribute equally to all costs (including fees and expenses charged by Independent Accounting Firm determines that the Settlement Accountant) Preliminary Closing Balance Sheet was not prepared in connection accordance with the resolution of any such disputeClosing Balance Sheet Principles or contains mathematical errors, the Preliminary Closing Balance Sheet shall be the Final Closing Balance Sheet. The Buyer DuPont and the Company agree that the Buyer shall be entitled mutually select the Independent Accounting Firm, but if DuPont and Buyer cannot mutually agree on the identity of the Independent Accounting Firm, then DuPont and Buyer shall each submit to receive from the Stockholders' Equity Adjustment Escrow Funds other party's independent auditor the name of a national accounting firm other than PWC and Buyer's Independent Accountant, which firm shall have previously accepted the engagement as the Independent Accounting Firm (as defined in the Escrow Agreementsubject to being selected pursuant to this Section 2.5(c) and acceptance of such firm's definitive letter of engagement), and the Independent Accounting Firm shall be selected by lot from these two firms by the independent auditors of the two parties. If either party has not submitted the name of such a national accounting firm within 20 days of the other party submitting such a name in accordance with this Section 2.5(c), the accounting firm so submitted by such other party shall be the Independent Accounting Firm. If no national accounting firm shall be willing to serve as the Independent Accounting Firm, then a nationally recognized (in the United States) expert in public accounting shall be selected to serve as such, such selection to be according to the above procedures. Any expenses relating to the engagement of the Independent Accounting Firm in respect of its services pursuant to this Section 2.5(c) shall be shared equally by DuPont and Buyer. The Independent Accounting Firm shall be instructed to use every reasonable commercial effort to perform its services within thirty (30) days of submission of the Preliminary Closing Balance Sheet to it and, in any case, as promptly as practicable after such submission. The Final Closing Balance Sheet and the calculation of Final Adjusted Net Assets shall then be prepared by Buyer based on the determination of the Independent Accounting Firm. (d) The Global Purchase Price shall be adjusted downward byequal to the Aggregate Global Closing Purchase Price, (i)(A) plus, if the Final Adjusted Net Assets exceeds the Estimated Adjusted Net Assets, the positive amountamount of such excess, (B) MINUS, if any, equal to (i) $700,000, less (ii) the Estimated Adjusted Net Assets exceeds the Final Actual Adjusted Net Assets, the amount of such excess, (ii)(A) PLUS, if the Final Pension Funding Amount exceeds the Estimated Pension Funding Amount, the amount of such excess and (B) MINUS, if the "STOCKHOLDERS' EQUITY ADJUSTMENT AMOUNT"); provided, however, that Estimated Pension Funding Amount exceeds the Stockholders' Equity Adjustment Amount to be received by the Buyer pursuant to this Section 1.3 shall not exceed $200,000. The sole source of funds for recovery of any Stockholders' Equity Adjustment Amount shall be the Stockholders' Equity Adjustment Escrow Funds. As used hereinFinal Pension Funding Amount, the term "DETERMINATION COMMITTEE" means a committee consisting of the members of the Board of Directors of the Company (the "BOARD") in office immediately prior to the Closing; provided that, in the event any member of the Determination Committee as of the Closing of the Securities Purchase Agreement is removed or resigns or fails to be re-elected as a director of the Company, then the Determination Committee shall consist amount of such Persons that were members of the Determination Committee as of the Closing of the Securities Purchase Agreement and are, as of the relevant time, directors of the Company; further provided that, in the event no such persons remain as directors of the Company, the Company shall appoint an independent trustee to serve on the Determination Committee.excess,

Post-Closing Purchase Price Adjustments. The Purchase Price shall be adjusted (i) As soon as provided herein based on the actual amount of the Stockholders' Equity of the Companyreasonably practicable, as determined but in accordance with GAAP any event not more than sixty (but without giving effect to any adjustment that is required by GAAP solely in respect of the Liberate Licenses), as of December 31, 2001 (the CLOSING STOCKHOLDERS' EQUITY"). Within 30 60) days after the Closing Date Date, Buyer shall cause the Company to prepare a statement (the "REVIEW PERIOD"), the Determination Committee (as defined below“Closing Statement”) shall cause to be prepared and delivered to the Buyer a determination (the "Determination") of the Closing Stockholders' Equity (which amount is referred to herein as the "PRELIMINARY ACTUAL AMOUNT"), including the basis for such Determination set setting forth in reasonable detaildetail its calculations of the Company’s Cash at Closing (the “Closing Cash Balance”) and the Company’s Net Working Capital at Closing (the “Closing Net Working Capital”), prepared in accordance with GAAP. Ifthe methodology set forth in Schedule 2.3(a), within 30 days after and shall deliver the date on which the Determination is delivered Closing Statement to the BuyerSellers. Following such delivery, the Buyer Sellers shall not have given written notice be entitled to review the Closing Statement and be provided reasonable information relating to the Determination Committee setting forth in reasonable detail any objection of the Buyer to such Determination, then such Determination shall be final and binding upon the parties and the Preliminary Actual Amount shall be deemed the final actual amount preparation of the Closing Stockholders' Equity Statement, and Buyer shall cause the Company to make its internal accounting and financial personnel (including personnel who are knowledgeable with respect to the matters to be set forth in the Closing Statement), reasonably available for inquiries from and discussions with representatives of the Sellers relating to the amounts set forth on the Closing Statement. The Sellers may make inquiry of the Company, who shall reasonably cooperate with the Sellers (including, as may be determined mutually without limitation, by providing the parties or by Sellers and/or their agents reasonable access to Company’s books and records, financial accounts and other underlying source documents reasonably related to the Settlement Accountant, as described belowCompany’s calculation of the amounts set forth on the Closing Statement). If within thirty (30) days following delivery of the Closing Statement, the "FINAL ACTUAL AMOUNT"). In the event that the Sellers have not given Buyer gives a written notice of any objection with respect to the Closing Statement (which notice shall state the basis of the objection in detail), then the Closing Statement shall be binding and conclusive on the parties. If the Sellers give Buyer a written notice of objection to such Determination within such 30-day periodthe Closing Statement, the Determination Committee Buyer and the Buyer Sellers shall use all commercially reasonable efforts to resolve any disagreements set forth in the dispute within fifteen notice of objection for a period of thirty (1530) days following after delivery of the receipt by the Determination Committee notice of such written notice from the Buyerobjection. If the Determination Committee Buyer and the Buyer are able Sellers fail to reach an agreement during resolve the objections within such 15-thirty (30) day period, Buyer and the Sellers shall submit the issues remaining in dispute with respect to such Closing Stockholders' Equity they agree upon shall be the Final Actual Amount. If the parties are unable to reach an agreement as to the Final Actual Amount within such 15-day period, the matter shall be submitted Statement to a mutually mutually-agreed upon "big five" certified public independent accounting firm (the "SETTLEMENT ACCOUNTANT"“Independent Accountants”) for determination of resolution. If issues are submitted to the Final Actual Amount Independent Accountants for resolution, (i) Buyer and the Sellers shall furnish or cause to be made within 20 days after submission, furnished to the Independent Accountants all work papers and other documents and information relating to the disputed issues; (ii) the determination of the Settlement Accountant of the Final Actual Amount shall Independent Accountants, as set forth in a notice to be final and binding upon the delivered to both Buyer and the Company. The Sellers within 45 days of the submission to the Independent Accountants of the issues remaining in dispute, shall be final, binding and conclusive on the parties; and (iii) the fees and expenses of the Independent Accountants shall be shared equally by Buyer and the Company Sellers. (ii) Promptly, but in no event later than five (5) Business Days after the final determination of the Closing Cash Balance and the Closing Net Working Capital pursuant to Section 2.3(b)(i) above: (A) If the sum of the Closing Cash Balance and the Closing Net Working Capital is greater than the sum of the Estimated Cash Balance and the Estimated Net Working Capital, then the surplus shall contribute equally be added to all costs the aggregate principal amount of the Promissory Notes. If the sum of the Closing Cash Balance and the Closing Net Working Capital is less than the sum of the Estimated Cash Balance and the Estimated Closing Net Working Capital, then the shortfall shall be subtracted from the aggregate principal amount of the Promissory Notes. (including fees and expenses charged by the Settlement AccountantB) in In connection with the resolution of any such dispute. The adjustment pursuant to clause (A) above, Buyer and the Company agree that Sellers will cancel the outstanding Promissory Notes and immediately enter into new promissory notes (the “New Notes”) to reflect the revised aggregate amount added to or subtracted from the principal amount of the Promissory Notes pursuant to Sections 2.3(b)(ii)(A) above (the “Adjustment Amount”). Other than the change in principal amount to reflect the Adjustment Amount, the New Notes shall have terms identical to the terms of the cancelled Promissory Notes. Notwithstanding the foregoing, if the absolute value (either positive or negative) of the Adjustment Amount is equal to or less than $25,000, then no adjustment shall be made to the Promissory Notes under this Section 2.3(b), the Promissory Notes will remain in effect, and no New Notes will be issued. (C) Notwithstanding the foregoing, Buyer shall be entitled to receive from satisfy any Adjustment Amount owed to Sellers by a cash payment to Sellers in accordance with the Stockholders' Equity Adjustment Escrow Funds (as defined in the Escrow Agreement), Seller Percentages and the Purchase Price Sellers shall be adjusted downward by, the positive amount, if any, equal entitled to (i) $700,000, less (ii) the Final Actual Amount, (the "STOCKHOLDERS' EQUITY ADJUSTMENT AMOUNT"); provided, however, that the Stockholders' Equity satisfy any Adjustment Amount owed to be received Buyer by cash payments to Buyer in accordance with the Buyer pursuant to this Section 1.3 shall not exceed $200,000. The sole source of funds for recovery of any Stockholders' Equity Adjustment Amount shall be the Stockholders' Equity Adjustment Escrow Funds. As used herein, the term "DETERMINATION COMMITTEE" means a committee consisting of the members of the Board of Directors of the Company (the "BOARD") in office immediately prior to the Closing; provided that, in the event any member of the Determination Committee as of the Closing of the Securities Purchase Agreement is removed or resigns or fails to be re-elected as a director of the Company, then the Determination Committee shall consist of such Persons that were members of the Determination Committee as of the Closing of the Securities Purchase Agreement and are, as of the relevant time, directors of the Company; further provided that, in the event no such persons remain as directors of the Company, the Company shall appoint an independent trustee to serve on the Determination CommitteeSeller Percentages.

Post-Closing Purchase Price Adjustments. The Purchase Price (a) At or prior to Closing, the Shareholders shall be adjusted as provided herein based on provide to the actual Purchaser a written statement (the "Working Capital Statement"), in form and substance satisfactory to the Purchaser, setting forth the amount of the Stockholders' Equity Company's Working Capital as of the CompanyClosing Date by category (including cash, accounts receivable ("Closing Date Receivables"), accounts payable and accrued liabilities (such accounts payable and accrued liabilities referred to collectively as determined the Closing Date Payables") in accordance reasonable detail, together with GAAP (but without giving effect to any adjustment that is required by GAAP solely in respect the projected cash requirements of the Liberate Licenses)Company for the 60-day period following the Closing, as which the Shareholders shall represent is sufficient to enable the Company to carry on business operations independently and pay all overhead costs in the ordinary course and in a manner consistent with past practice for a period of December 31, 2001 sixty (60) days from the Closing Date (the CLOSING STOCKHOLDERS' EQUITY"Cash Requirement"). (b) Immediately prior to the Closing, the Shareholders shall cause the Company to pay all outstanding accounts payable included within the Closing Date Payables, and shall deliver to the Purchaser an amount equal to the accrued liabilities included within the Closing Date Payables. (c) At Closing, the Shareholders shall cause the Company to retain cash in an amount equal to the Cash Requirement (the "Cash Advance"). Within 30 The Cash Advance shall be returned by the Company to the Shareholders no later than one hundred twenty (120) days after the Closing Date (the "REVIEW PERIODCash Advance Repayment Date"), the Determination Committee (subject to adjustment for undisclosed or outstanding Closing Date Payables as defined below) shall cause to be prepared and delivered to the Buyer a determination (the "Determination") of the Closing Stockholders' Equity (which amount is referred to herein as the "PRELIMINARY ACTUAL AMOUNT"), including the basis for such Determination set forth in reasonable detailthis Section 2.5 below. (d) At the Closing, prepared in accordance with GAAPthe Company shall assign to the Shareholders the Closing Date Receivables set forth on the Working Capital Statement. If, within 30 During the period from the Closing Date through the date that is one hundred twenty (120) days after the date on which the Determination is delivered to the BuyerClosing Date, the Buyer shall not have given written notice to the Determination Committee setting forth in reasonable detail any objection of the Buyer to such Determination, then such Determination shall be final and binding upon the parties and the Preliminary Actual Amount shall be deemed the final actual amount of the Closing Stockholders' Equity (including, as may be determined mutually by the parties or by the Settlement Accountant, as described below, the "FINAL ACTUAL AMOUNT"). In the event that the Buyer gives written notice of any objection to such Determination within such 30-day period, the Determination Committee and the Buyer Company shall use all commercially reasonable efforts to resolve the dispute within fifteen (15) days following the receipt by the Determination Committee of such written notice from the Buyer. If the Determination Committee and the Buyer are able to reach an agreement during such 15-day period, collect the Closing Stockholders' Equity they agree upon shall be Date Receivables for the Final Actual Amount. If the parties are unable to reach an agreement as to the Final Actual Amount within such 15-day period, the matter shall be submitted to a mutually agreed upon "big five" certified public accounting firm (the "SETTLEMENT ACCOUNTANT") for determination benefit of the Final Actual Amount to be made within 20 days after submissionShareholders, and the determination of the Settlement Accountant of the Final Actual Amount shall be final and binding upon the Buyer and the Company. The Buyer and provided that the Company shall contribute equally to all costs (including fees and expenses charged by the Settlement Accountant) not be required in connection with any such collection efforts to institute any action, suit or proceeding, or incur any cost or expense, or to take any action other than normal and customary collection procedures. The Company shall not be liable to the resolution Shareholders for any uncollected Closing Date Receivables as to which it undertakes commercially reasonable collection efforts, as set forth above. (e) An amount equal to the sum of any such dispute. The Buyer and Closing Date Payables that are either unpaid as of the Company agree that Cash Advance Repayment Date or not disclosed on the Buyer Working Capital Statement shall be entitled to receive from the Stockholders' Equity Adjustment Escrow Funds (as defined in the Escrow Agreement), and the Purchase Price shall be adjusted downward by, the positive amount, if any, equal to either (i) $700,000, less deducted from the Cash Advance to be repaid on the Cash Advance Repayment Date or (ii) the Final Actual Amount, (the "STOCKHOLDERS' EQUITY ADJUSTMENT AMOUNT"); provided, however, that the Stockholders' Equity Adjustment Amount to be received offset against Closing Date Receivables collected by the Buyer pursuant to this Section 1.3 shall not exceed $200,000. The sole source of funds Company, with the Shareholders liable for recovery of any Stockholders' Equity Adjustment Amount shall be the Stockholders' Equity Adjustment Escrow Funds. As used hereinremaining unpaid Closing Date Payables on a pro rata basis, the term "DETERMINATION COMMITTEE" means a committee consisting of the members of the Board of Directors of based on their respective stock ownership in the Company (the "BOARD") in office immediately prior to the Closing; provided that, in . Any such unpaid shortfall may be offset by the event any member of Purchaser against the Determination Committee as of first payments due under the Closing of the Securities Purchase Agreement is removed or resigns or fails to be re-elected as a director of the Company, then the Determination Committee shall consist of such Persons that were members of the Determination Committee as of the Closing of the Securities Purchase Agreement and are, as of the relevant time, directors of the Company; further provided that, in the event no such persons remain as directors of the Company, the Company shall appoint an independent trustee to serve on the Determination CommitteeSeller Notes.

Post-Closing Purchase Price Adjustments. The Purchase Price shall be adjusted as provided herein based on the actual amount of the Stockholders' Equity of the Company, as determined in accordance with GAAP (but without giving effect to any adjustment that is required by GAAP solely in respect of the Liberate Licenses), as of December 31, 2001 (the CLOSING STOCKHOLDERS' EQUITY"). Within 30 days after a) Promptly following the Closing Date Date, but in no event later than ninety (90) days following the "REVIEW PERIOD")Closing Date, the Determination Committee (as defined below) shall Buyer shall, at its expense, prepare and deliver, or cause to be prepared and delivered, to Parent, an unaudited statement (the “Proposed Closing Statement”) setting forth, in reasonable detail, Buyer’s calculation of the Net Working Capital of the Business as of the Calculation Time (the “Proposed Closing Net Working Capital”) and its estimate of the resulting Purchase Price. The Proposed Closing Statement shall be prepared, and the Proposed Closing Net Working Capital shall be calculated, in accordance the sample calculation of Net Working Capital set forth on Schedule 1.01(a)(NWC) and with the Accounting Principles, subject to any exceptions stated in Schedule 1.01(a)(NWC), without giving effect to the consummation of the Contemplated Transactions, any financing transactions in connection therewith, or any event or action which occurs at or after the Closing, and subject to any adjustments contemplated therein and shall be accompanied by reasonably detailed supporting documents for Buyer’s calculation of Proposed Closing Net Working Capital. To the extent that any Purchased Assets or Assumed Liabilities remain with any Seller following the Closing in accordance with the terms of Section 2.05(g)(i), such Purchased Assets or Assumed Liabilities shall be treated as having transferred to Buyer at Closing for purposes of this Section 2.05 and shall be accordingly reflected in the Proposed Closing Statement delivered by Buyer hereunder. (b) Buyer shall provide Parent and its Representatives and, if applicable, the Independent Firm, access to personnel and accountants and any books, records, documents and work papers reasonably requested, during normal business hours and upon reasonable notice, by Parent and its Representatives to the extent reasonably necessary in connection with Parent’s review of the Proposed Closing Statement, the Proposed Closing Net Working Capital or any resolution of any dispute with respect thereto; provided, however, that Buyer shall not be required to provide any such access or materials that would be reasonably expected to be subject to the attorney-client privilege and/or the attorney-work-product doctrine. (c) The Proposed Closing Statement and calculation of the Proposed Closing Net Working Capital and Buyer’s estimate of the Purchase Price (as set forth in the Proposed Closing Statement), shall be deemed final, conclusive and binding on the Parties in all respects on the earlier of (i) the date Parent notifies Buyer in writing of its acceptance of the Proposed Closing Statement and calculation of the Proposed Closing Net Working Capital and the Purchase Price (as set forth in the Proposed Closing Statement); or (ii) the 60th day following Parent’s receipt of the Proposed Closing Statement, unless Parent provides a Notice of Disagreement prior to such date in accordance with this Section 2.05(c). If Parent disputes the accuracy of the Proposed Closing Statement, setting forth the calculations of the Proposed Closing Net Working Capital and Buyer’s estimate of the Purchase Price, then Parent shall, within sixty (60) days of its receipt of the Proposed Closing Statement, provide written notice to Buyer of its disagreement (such notice, a “Notice of Disagreement”), specifying in reasonable detail the nature of any such disagreement, the line items and amounts of the Proposed Closing Net Working Capital that Parent disputes (the “Disputed Items”) and Parent’s own determination of the Proposed Closing Net Working Capital and estimated Purchase Price; provided, however, that if Parent reasonably and in good faith requests in writing additional materials or documents from Buyer within such sixty (60) day period that Parent describes as reasonably necessary to specify the detail required in a Notice of Disagreement, then Buyer shall promptly provide to Parent any such materials or documents and such sixty (60) day period shall be tolled until Parent receives responsive materials or documents. If a Notice of Disagreement is received by Buyer within sixty (60) days after Parent’s receipt of the Proposed Closing Statement, then (A) the Proposed Closing Net Working Capital amount and the Purchase Price (as described in clause (B) below) shall become final, conclusive and binding only upon the earlier of (1) the date that Parent and Buyer resolve in writing any differences that they have with respect to the matters specified in the Notice of Disagreement; or (2) the date on which any disputed matters specified in the Notice of Disagreement (to the extent not previously resolved by Parent and Buyer in writing) are finally resolved through accounting arbitration in accordance with Section 2.05(d); and (B) the Final Closing Net Working Capital and the Purchase Price shall be deemed to be the amounts agreed to by Parent and Buyer in writing, or as resolved through accounting arbitration in accordance with Section 2.05(d), as the case may be. (d) If a Notice of Disagreement shall be duly and timely delivered pursuant to Section 2.05(c), Parent and Buyer shall, during the thirty (30)-day period following such delivery, negotiate in good faith to resolve the Disputed Items. If, at the conclusion of such thirty (30)-day period, Parent and Buyer have not resolved all Disputed Items, then all Disputed Items remaining in dispute shall be submitted by Parent and Buyer for definitive resolution to BDO USA, LLP (the “Independent Firm”). The Independent Firm shall be engaged by Parent and Buyer no later than ten (10) Business Days following the conclusion of such thirty (30)-day period. Each of Parent and Buyer agrees to promptly execute, if requested by the Independent Firm, a reasonable engagement letter for the services to be provided by the Independent Firm and with respect to the determination to be made by the Independent Firm regarding such dispute in accordance with this Section 2.05(d). Promptly after joint engagement of the Independent Firm, the Parties shall provide the Independent Firm with a copy of this Agreement (including all Schedules hereto), the Accounting Principles, Buyer’s Proposed Closing Statement, and Parent’s Notice of Disagreement. Within fifteen (15) days of the engagement of such Independent Firm, each of Parent and Buyer shall deliver to the Independent Firm and to the other Party simultaneously a written submission of its final position with respect to each of the Disputed Items (which position may be different than the position set forth in the Proposed Closing Statement and the Notice of Disagreement, as the case may be, but may not be outside of the range of the positions set forth in Buyer’s Proposed Closing Statement and Seller’s Notice of Disagreement). Each Party shall thereafter be entitled to submit a written rebuttal to the other’s submission, which rebuttal shall be delivered to the Independent Firm and to the other Party simultaneously within thirty (30) days of the delivering Party’s initial submissions to the Independent Firm and to the other Party. The Independent Firm may request additional information solely to the extent necessary to resolve the matter in dispute from either Party, but absent such a request neither Party may make (nor permit any of its Affiliates or Representatives to make) any additional submission to the Independent Firm or otherwise communicate with the Independent Firm. Without limiting the foregoing, in no event shall either Party (i) communicate (or permit any of its Affiliates or Representatives to communicate) with the Independent Firm without providing the other Party advance written notice and a reasonable opportunity to participate in such communication or (ii) make (or permit any of its Affiliates or Representatives to make) a written submission to the Independent Firm unless a copy of such submission is simultaneously provided to the other Party. The Independent Firm’s determination shall be limited to only those issues specified in the Notice of Disagreement duly and timely delivered pursuant to Section 2.05(c) and still in dispute at the end of the 30-day period following the delivery thereof and shall be based upon and consistent with the terms and conditions of this Agreement and with the undisputed portions of the Proposed Closing Statement. The determination by the Independent Firm shall be based on the written submissions (and any subsequent oral presentations) by Parent and Buyer with respect to the Disputed Items (to the extent consistent with the terms and conditions of this Agreement and the undisputed portions of the Proposed Closing Statement) and not on the Independent Firm’s independent review. In deciding any matter, the Independent Firm (i) shall make a determination consistent with the terms and conditions of this Agreement, including the definition of Net Working Capital and the Accounting Principles, subject to any exceptions stated in Schedule 1.01(a)(NWC), and (ii) shall choose a value with respect to each such Disputed Item that is no less than the "Determination") lesser of the values proposed for such Disputed Item by Parent and Buyer in their respective submissions to the Independent Firm, and no greater than the greater of the values proposed for such Disputed Item by Parent and Buyer in their respective submissions to the Independent Firm. All negotiations pursuant to this Section 2.05 shall be treated as compromise and settlement negotiations for purposes of Rule 408 of the Federal Rules of Evidence and comparable state rules of evidence. The Parties acknowledge and agree that the Independent Firm shall be functioning solely as an expert and not as an arbitrator. Parent and Buyer shall use commercially reasonable efforts to cause the Independent Firm to render its determination within thirty (30) days after submission of the Parties’ rebuttals, or as soon thereafter as possible, which determination shall be set forth in a written statement accompanied by reasonable supporting documentation delivered to Parent and Buyer and shall be final, conclusive, non-appealable and binding for all purposes hereunder, absent manifest error by the Independent Firm. The determination of the Independent Firm shall not be deemed an award subject to review under the Federal Arbitration Act or any other similar statute. The fees and expenses of the Independent Firm shall be paid one-half by Seller and one-half by Buyer. (e) Until the Net Working Capital amount becomes final, conclusive and binding, each Party shall make available to the Independent Firm and the other Party its (and shall use reasonable best efforts to cause to be made available to the other Party its Representatives’) work papers, schedules and other supporting data (to the extent within the possession or control of such Party or its Representatives) as may reasonably be requested by the Independent Firm or such Party to enable such Person to verify the calculations set forth in the Proposed Closing Stockholders' Equity Statement or the Notice of Disagreement, as the case may be, subject, to the extent any work papers, schedules or other supporting data of any independent accountants are so requested, to the execution by the requesting Person of any customary confidentiality or other agreements in favor of such accountants as may be required by such accountants; provided, however, that no Party shall be required to provide any materials pursuant to this Section 2.05(e) that would be reasonably expected to be subject to the attorney-client privilege or the attorney-work-product doctrine. (which amount f) The final Net Working Capital of the Business as of the Calculation Time, as finally determined pursuant to this Section 2.05 (whether by agreement of Buyer and Parent or determination by the Independent Firm), is referred to herein as the "PRELIMINARY ACTUAL AMOUNT"), including “Final Closing Net Working Capital.” (g) Following the basis for such Determination procedures set forth in reasonable detailthis Section 2.05: (i) if the Final Closing Net Working Capital exceeds the Estimated Net Working Capital (the amount of such excess, prepared in accordance with GAAP. Ifthe “Excess Amount”), then within 30 days ten (10) Business Days after the date on which the Determination is delivered to the Buyer, the Buyer shall not have given written notice to the Determination Committee setting forth in reasonable detail any objection of the Buyer to such Determination, then such Determination shall be final and binding upon the parties and the Preliminary Actual Amount shall be deemed the final actual amount of the Closing Stockholders' Equity (including, as may be determined mutually by the parties or by the Settlement Accountant, as described below, the "FINAL ACTUAL AMOUNT"). In the event that the Buyer gives written notice of any objection to such Determination within such 30-day period, the Determination Committee and the Buyer shall use all reasonable efforts to resolve the dispute within fifteen (15) days following the receipt by the Determination Committee of such written notice from the Buyer. If the Determination Committee and the Buyer are able to reach an agreement during such 15-day period, the Closing Stockholders' Equity they agree upon shall be the Final Actual Amount. If the parties are unable to reach an agreement as to the Final Actual Amount within such 15-day period, the matter shall be submitted to a mutually agreed upon "big five" certified public accounting firm (the "SETTLEMENT ACCOUNTANT") for determination of the Final Actual Amount Closing Net Working Capital and designation in writing by Parent to Buyer of its account or accounts for payment, Buyer shall pay or cause to be made paid to Parent an amount in Dollars equal to the Excess Amount; and (ii) if the Final Closing Net Working Capital is less than the Estimated Net Working Capital (the amount of such shortfall, the “Shortfall Amount”), then within 20 days ten (10) Business Days after submission, and the determination of the Settlement Accountant Final Closing Net Working Capital and designation in writing by Buyer to Parent of the Final Actual Amount its account or accounts for payment, Parent shall be final and binding upon the pay to Buyer and the Company. The Buyer and the Company shall contribute equally to all costs (including fees and expenses charged by the Settlement Accountant) an amount in connection with the resolution of any such dispute. The Buyer and the Company agree that the Buyer shall be entitled to receive from the Stockholders' Equity Adjustment Escrow Funds (as defined in the Escrow Agreement), and the Purchase Price shall be adjusted downward by, the positive amount, if any, Dollars equal to (i) $700,000, less (ii) the Final Actual Shortfall Amount, (the "STOCKHOLDERS' EQUITY ADJUSTMENT AMOUNT"); provided, however, that the Stockholders' Equity Adjustment Amount to be received by the Buyer pursuant to this Section 1.3 shall not exceed $200,000. The sole source of funds for recovery of any Stockholders' Equity Adjustment Amount shall be the Stockholders' Equity Adjustment Escrow Funds. As used herein, the term "DETERMINATION COMMITTEE" means a committee consisting of the members of the Board of Directors of the Company (the "BOARD") in office immediately prior to the Closing; provided that, in the event any member of the Determination Committee as of the Closing of the Securities Purchase Agreement is removed or resigns or fails to be re-elected as a director of the Company, then the Determination Committee shall consist of such Persons that were members of the Determination Committee as of the Closing of the Securities Purchase Agreement and are, as of the relevant time, directors of the Company; further provided that, in the event no such persons remain as directors of the Company, the Company shall appoint an independent trustee to serve on the Determination Committee.

Post-Closing Purchase Price Adjustments. (i) Within thirty (30) calendar days following the delivery to the Purchaser of the Closing Balance Sheet (as defined below), the Purchaser shall deliver to the Shareholder Representative (as defined below) a copy of the Closing Balance Sheet and a calculation of the Company's shareholders equity as of Closing, excluding the effects of capitalized software development costs and related amortization, prepared in accordance with U.S. GAAP (the "Closing Shareholders Equity"), certified by the Purchaser's Chief Financial Officer (the "Post- Closing Financial Certificate"), which shall form the basis of an adjustment of the Purchase Price in accordance with this Section 1.3. (ii) Following delivery by Purchaser to the Shareholder Representative of the Post-Closing Financial Certificate, the Shareholder Representative shall have ten (10) calendar days during which to notify Purchaser in writing (in this Section 1.3, the "DISPUTE NOTICE") of any good faith reasonable objections to the calculation of the Closing Shareholders Equity or the Post-Closing Financial Certificate as it affects such calculation, setting forth a reasonably specific and detailed description of such objections. If the Shareholder Representative shall not have delivered a Dispute Notice within such ten (10) calendar day period, the Selling Shareholders shall be deemed to have agreed with the calculations of the Closing Shareholders Equity set forth in the Post-Closing Financial Certificate. If the Shareholder Representative delivers a Dispute Notice, Purchaser and the Shareholder Representative shall attempt to resolve any such objections within ten (10) calendar days of the receipt by Purchaser of the Dispute Notice. If a final resolution of such dispute is reached, the agreed upon amount of the Closing Shareholders Equity shall be deemed final and binding on Purchaser and the Selling Shareholders. (iii) If, after such ten (10) day period, the Shareholder Representative and Purchaser cannot resolve such dispute, then Purchaser and the Shareholder Representative shall mutually agree upon a Swiss recognized accounting firm affiliated with the "Big Four" international accounting firms to resolve such dispute, or if they cannot agree on such a firm within five (5) calendar days, they shall each designate a nationally recognized accounting firm, and the two firms shall agree upon a Swiss recognized accounting firm affiliated with the "Big Four" international accounting firms, which does not represent either party, which firm shall have the sole authority to resolve such dispute. The firm so agreed upon (the "FIRM") shall as promptly as practicable (and in any event within thirty (30) calendar days) make a final determination of the Closing Shareholders Equity based upon the Closing Balance Sheet, which shall be binding on the parties. Each of Purchaser and the Shareholder Representative shall provide the Firm with all information and documentation that the Firm requests. The Purchaser on the one part and the Shareholder Representative on the other part shall each pay half of the total fees and expenses of the Firm. (iv) The Purchase Price shall be adjusted as provided herein based on the actual amount of the Stockholders' Equity of the Company, as determined in accordance with GAAP (but without giving effect to any adjustment that is required by GAAP solely in respect of the Liberate Licenses), as of December 31, 2001 (the CLOSING STOCKHOLDERS' EQUITY"). Within 30 days after following the Closing Date (the "REVIEW PERIODPOST-CLOSING ADJUSTMENT")) as follows: (a) In the event that the Closing Shareholders Equity (as such Closing Shareholders Equity shall be finally determined pursuant to the procedures set forth in this Section 1.3) is a deficit, the Determination Committee amount of such deficit in Closing Shareholders Equity shall be deducted from the Purchase Price. Any net subtraction from the Purchase Price pursuant to this clause (as defined belowiv) shall cause to be prepared and delivered to the Buyer a determination (the "Determination") of the Closing Stockholders' Equity (which amount is referred to herein as the "PRELIMINARY ACTUAL AMOUNTPOST-CLOSING ADJUSTMENT"). For the avoidance of doubt, including it is explicitly stated that in the basis for such Determination event that the Closing Shareholders Equity is positive or is zero, the Selling Shareholders are not entitled to any positive adjustment of the Purchase Price. (v) In the event that the Purchase Price is to be reduced by the Post-Closing Adjustment in accordance with Section 1.3(iv) above, the Selling Shareholders shall pay to the Purchaser, within ten (10) calendar days from the date of final determination of the Post-Closing Adjustment pursuant to the procedures set forth in reasonable detailthis Section 1.3, prepared the Post-Closing Adjustment by wire transfer in accordance with GAAP. Ifwritten instructions provided by the Purchaser, within 30 days after PROVIDED HOWEVER that such payment shall first be made from the date on which Purchase Reserve, and PROVIDED FURTHER that if the Determination is delivered Post-Closing Adjustment exceeds the Purchase Reserve, the Selling Shareholders, jointly and severally, shall pay the Purchaser such amount in excess, in addition to the Buyertransfer of the Purchase Reserve to the Purchaser. If the Post-Closing Adjustment is lower than the Purchase Reserve, then, upon payment of the Post-Closing Adjustment to the Purchaser from the funds of the Purchase Reserve, the Buyer remainder of the Purchase Reserve shall not have given written notice be paid by the Escrow Agent by wire transfer to the Determination Committee setting forth Selling Shareholders Bank Account. Such payment shall be in reasonable detail any objection of full settlement of, and fully release the Buyer Purchaser and the Escrow Agent from, the Purchaser's and/or the Escrow Agent's respective payment obligation with respect to such Determination, then such Determination the Purchase Reserve. (vi) Any order to the Escrow Agent with respect to the Purchase Reserve in accordance with this Section 1.3 shall be signed either by the Purchaser and the Shareholders Representative or by the Firm and shall be final and binding upon the parties and the Preliminary Actual Amount shall be deemed the final actual amount of the Closing Stockholders' Equity (including, as may be determined mutually by the parties or by the Settlement Accountant, as described below, the "FINAL ACTUAL AMOUNT"). In the event that the Buyer gives written notice of any objection to such Determination within such 30-day period, the Determination Committee and the Buyer shall use all reasonable efforts to resolve the dispute within fifteen (15) days following the receipt by the Determination Committee of such written notice from the Buyer. If the Determination Committee and the Buyer are able to reach an agreement during such 15-day period, the Closing Stockholders' Equity they agree upon shall be the Final Actual Amount. If the parties are unable to reach an agreement as to the Final Actual Amount within such 15-day period, the matter shall be submitted to a mutually agreed upon "big five" certified public accounting firm (the "SETTLEMENT ACCOUNTANT") for determination of the Final Actual Amount to be made within 20 days after submissionparties, and the determination of the Settlement Accountant of the Final Actual Amount Escrow Agent shall be final and binding upon the Buyer and the Company. The Buyer and the Company shall contribute equally instructed to all costs (including fees and expenses charged by the Settlement Accountant) in connection comply with the resolution of any such dispute. The Buyer and the Company agree that the Buyer shall be entitled to receive from the Stockholders' Equity Adjustment Escrow Funds (as defined in the Escrow Agreement), and the Purchase Price shall be adjusted downward by, the positive amount, if any, equal to (i) $700,000, less (ii) the Final Actual Amount, (the "STOCKHOLDERS' EQUITY ADJUSTMENT AMOUNT"); provided, however, that the Stockholders' Equity Adjustment Amount to be received by the Buyer pursuant to this Section 1.3 shall not exceed $200,000. The sole source of funds for recovery of any Stockholders' Equity Adjustment Amount shall be the Stockholders' Equity Adjustment Escrow Funds. As used herein, the term "DETERMINATION COMMITTEE" means a committee consisting of the members of the Board of Directors of the Company (the "BOARD") in office immediately prior to the Closing; provided that, in the event any member of the Determination Committee as of the Closing of the Securities Purchase Agreement is removed or resigns or fails to be re-elected as a director of the Company, then the Determination Committee shall consist of such Persons that were members of the Determination Committee as of the Closing of the Securities Purchase Agreement and are, as of the relevant time, directors of the Company; further provided that, in the event no such persons remain as directors of the Company, the Company shall appoint an independent trustee to serve on the Determination Committeeorder.

Post-Closing Purchase Price Adjustments. The Seller and the Buyer agree that the Estimated Closing Date Basic Purchase Price shall be adjusted following the Closing as provided herein based on follows: (a) Within 60 days after the actual Closing Date, the Buyer shall prepare and deliver to the Seller (i) a statement (the “Closing Statement”) setting forth the Adjusted Inventory Amount, the amount of Prepaid Assets, the amount of the Stockholders' Equity Assumed Accounts Payable, the Accrued Vacation Liability Amount, the Additional Royalty Payment Amount and the Accrued Expenses amount, in each case as of the CompanyClosing Date and (ii) the Buyer’s calculation of (a) the Asset-Liability Ratio Amount, as (b) the Markdown Pool Amount and (c) the Final Basic Purchase Price. The Prepaid Asset Amount, the amount of Assumed Accounts Payable shall be determined in accordance with GAAP (but without giving effect to any adjustment that is required by GAAP solely applied on a consistent basis with the accounting principles used in respect the preparation of the Liberate Licenses), Balance Sheet. The Accrued Expenses amount shall be determined in accordance with GAAP and reflect the amounts due and outstanding as of December 31the Closing Date for the respective categories included in Schedule 1.1 notwithstanding the Seller’s historical accounting practices therefor. The Adjusted Inventory Amount shall be determined using the agreed-upon valuation assumptions set forth in Schedule 3.4(a) applied to the FIFO (meaning “first-in-first-out”) cost of the Conveyed Inventory, 2001 determined in accordance with GAAP. The delivery of the Closing Statement shall be accompanied by all information reasonably necessary to determine the Asset-Liability Ratio, the Asset-Liability Ratio Amount, the Adjusted Inventory Amount, the Prepaid Asset amount, the Accrued Vacation Liability amount, the Accrued Expenses amount and the amount of Assumed Accounts Payable, the Additional Royalty Payment Amount and the Markdown Pool Amount (including detailed schedules of Current Inventory, Medium Term Inventory, BSRs, Transition Inventory, Scheduled 4/25 Inventory, Scheduled 5/25 Inventory, Purchase Order Scheduled 5/25 Inventory, Purchase Order Scheduled 4/25 Inventory, Prepaid Assets, Accrued Vacation Liability, Accrued Expenses and lists of Assumed Accounts Payable in each case at the CLOSING STOCKHOLDERS' EQUITY"Closing Date). The Seller shall cooperate with the Buyer in the preparation of the Closing Statement. Simultaneously with the delivery of the Closing Statement, the Buyer shall notify the Seller in writing of the amount, if any, that the Buyer believes is payable pursuant to Section 3.4(d) below. (b) The Buyer, upon prior notice by the Seller, shall allow the Seller and its agents access at all reasonable times after the Closing Date to the applicable books, records and accounts of the Business reasonably related to the preparation of the Closing Statement to allow the Seller to examine the accuracy of the Closing Statement. Within 30 days after the date that the Closing Date (Statement is delivered by the "REVIEW PERIOD")Buyer to the Seller, the Determination Committee (as defined below) Seller shall cause to be prepared complete its examination thereof and delivered may deliver to the Buyer a determination written report setting forth in reasonable detail any proposed adjustments to the Closing Statement, which may include claims that items included in the Current Inventory, Medium Term Inventory, BSRs, Transition Inventory, Scheduled 4/25 Inventory, Scheduled 5/25 Inventory, Purchase Order Scheduled 5/25 Inventory, Purchase Order Scheduled 4/25 Inventory, Prepaid Assets, Accrued Vacation Liability, Accrued Expenses or Assumed Accounts Payable are not properly included (the "Determination") “Dispute Report”). If the Seller notifies the Buyer of its acceptance of the Adjusted Inventory Amount, Prepaid Asset amount, Accrued Vacation Liability amount, the amount of Accrued Expenses and the amount of Assumed Accounts Payable amount, the Markdown Pool Amount, the Additional Royalty Payment Amount or the Final Basic Purchase Price set forth on the Closing Stockholders' Equity (which amount is referred Statement, or if the Seller fails to herein as deliver the "PRELIMINARY ACTUAL AMOUNT")Dispute Report within the 30-day period specified in the preceding sentence, including the basis for such Determination amounts set forth in the Closing Statement shall be final, conclusive and binding on the parties as of the last day of such 30-day period. (c) If the Seller timely delivers the Dispute Report, the Buyer and the Seller shall use good faith efforts to resolve any dispute involving the Adjusted Inventory Amount, the Prepaid Asset Amount, Accrued Vacation Liability, Assumed Accounts Payable Amount, the Additional Royalty Payment Amount, the Markdown Pool Amount and/or the Final Basic Purchase Price (each, a “Disputed Matter”), and any resolution between them as to a Disputed Matter shall be final, binding and conclusive on the parties hereto and shall be evidenced by a written agreement to that effect. However, if, after 30 days following the receipt by the Buyer of the Dispute Report, the Seller and the Buyer are unable to resolve any Disputed Matter, such Disputed Matter shall be referred to PricewaterhouseCoopers, LLP (“PWC”), or if PWC is unable or unwilling to serve in such capacity, an independent nationally recognized accounting firm mutually selected by Buyer and Seller (the “Arbitrator”). Each of the Seller and the Buyer may submit such written evidence and supporting documentation as they deem appropriate to the Arbitrator. The Arbitrator shall not hold any hearings or accept oral testimony. The scope of the disputes to be resolved by the Arbitrator shall be limited to the items in dispute that were timely and properly included in Dispute Report and the Arbitrator is not to make any other determination. The Arbitrator in making its determination shall not assign a value greater than the greatest value for such item claim by either party or a smaller than the smallest value for such item claimed by either party. The Arbitrator shall be instructed to use every reasonable detail, prepared in accordance effort to make its determination with GAAP. If, respect to such Disputed Matter (the “Determination”) within 30 days of the submission to it of such Disputed Matter. The Buyer and the Seller shall give the Arbitrator access at all reasonable times to the books, records and accounts of the Business used to prepare the Closing Date Balance Sheet. After completing the Determination, the Arbitrator shall deliver notice of the Determination to the Buyer and the Seller and upon receipt thereof, the Determination shall be final, binding and conclusive on the parties hereto with respect to such Disputed Matter. Judgment may be entered upon the determination of the Arbitrator in any court having jurisdiction over the party against which such determination is to be enforced. (d) An adjustment to the Estimated Closing Date Basic Purchase Price shall be calculated as follows: (i) If the Estimated Closing Date Basic Purchase Price exceeds the Final Basic Purchase Price as determined pursuant to Section 3.4, then the Seller shall pay over to the Buyer in cash the amount of such excess. (ii) If the Final Basic Purchase Price as determined pursuant to Section 3.4 exceeds the Estimated Closing Date Basic Purchase Price then the Buyer shall pay over to the Seller in cash the amount of such excess. (iii) The payment due to Buyer or Seller, as the case may be, under clauses (i) or (ii) of this Section 3.4(d) shall be paid, together with interest thereon, at the rate of 8% per annum from, and including, the Closing Date to, but excluding, the date of payment, shall be made by wire transfer of immediately available funds within five (5) business days after the date on which the Determination is delivered to the BuyerClosing Statement, the Buyer shall not have given written notice to Asset-Liability Ratio, the Determination Committee setting forth in reasonable detail any objection of the Buyer to such Determination, then such Determination shall be final and binding upon the parties Markdown Pool Amount and the Preliminary Actual Amount shall be deemed the final actual amount of the Closing Stockholders' Equity (including, as may be Additional Royalty Payment are finally determined mutually by the parties or by the Settlement Accountant, as described below, the "FINAL ACTUAL AMOUNT"). In the event that the Buyer gives written notice of any objection to such Determination within such 30-day period, the Determination Committee and the Buyer shall use all reasonable efforts to resolve the dispute within fifteen (15) days following the receipt by the Determination Committee of such written notice from the Buyer. If the Determination Committee and the Buyer are able to reach an agreement during such 15-day period, the Closing Stockholders' Equity they agree upon shall be the Final Actual Amount. If the parties are unable to reach an agreement as to the Final Actual Amount within such 15-day period, the matter shall be submitted to a mutually agreed upon "big five" certified public accounting firm (the "SETTLEMENT ACCOUNTANT") for determination of the Final Actual Amount to be made within 20 days after submission, and the determination of the Settlement Accountant of the Final Actual Amount shall be final and binding upon the Buyer and the Company. The Buyer and the Company shall contribute equally to all costs (including fees and expenses charged by the Settlement Accountant) in connection accordance with the resolution of any such dispute. The Buyer and the Company agree that the Buyer shall be entitled to receive from the Stockholders' Equity Adjustment Escrow Funds (as defined in the Escrow Agreement), and the Purchase Price shall be adjusted downward by, the positive amount, if any, equal to (i) $700,000, less (ii) the Final Actual Amount, (the "STOCKHOLDERS' EQUITY ADJUSTMENT AMOUNT"); provided, however, that the Stockholders' Equity Adjustment Amount to be received by the Buyer pursuant to this Section 1.3 shall not exceed $200,000. The sole source of funds for recovery of any Stockholders' Equity Adjustment Amount shall be the Stockholders' Equity Adjustment Escrow Funds. As used herein, the term "DETERMINATION COMMITTEE" means a committee consisting of the members of the Board of Directors of the Company (the "BOARD") in office immediately prior to the Closing; provided that, in the event any member of the Determination Committee as of the Closing of the Securities Purchase Agreement is removed or resigns or fails to be re-elected as a director of the Company, then the Determination Committee shall consist of such Persons that were members of the Determination Committee as of the Closing of the Securities Purchase Agreement and are, as of the relevant time, directors of the Company; further provided that, in the event no such persons remain as directors of the Company, the Company shall appoint an independent trustee to serve on the Determination Committee3.4.

Post-Closing Purchase Price Adjustments. The Following the Closing, the Closing Purchase Price shall be adjusted subject to adjustment as provided herein based on to reflect the actual amount of difference between (i) the Stockholders' Equity of Final Adjusted Closing Net Working Capital and Estimated Adjusted Closing Net Working Capital, (ii) the CompanyFinal Closing Net Debt and Estimated Closing Net Debt, as determined in accordance with GAAP (but without giving effect to any adjustment that is required by GAAP solely in respect of iii) the Liberate Licenses), as of December 31, 2001 Final Project Capital Expenditure Amount and Estimated Project Capital Expenditure Amount and (iv) the CLOSING STOCKHOLDERS' EQUITY"). Final Ferrybridge Capital Expenditure Amount and Estimated Ferrybridge Capital Expenditure Amount. (a) Within 30 ninety (90) days after the Closing Date Date, the Purchaser shall prepare and deliver to the Sellers a statement setting forth (i) the Adjusted Closing Net Working Capital in accordance with Section 1.2(c) and Schedule 1.2(c) (the "REVIEW PERIOD"“Adjusted Closing Net Working Capital Statement”), (ii) the Determination Committee (as defined belowClosing Net Debt of the Transferred Companies in accordance with Section 1.2(e) shall cause to be prepared and delivered to the Buyer a determination Schedule 1.2(e) (the "Determination"“Closing Net Debt Statement”), (iii) the Project Capital Expenditure Amount as of the effective time of the Closing Stockholders' Equity (which amount is referred to herein as the "PRELIMINARY ACTUAL AMOUNT"), including the basis for such Determination set forth in reasonable detail, prepared in accordance with GAAPSection 1.2(f) (the “Project Capital Expenditure Statement”), and (iv) the Ferrybridge Capital Expenditure Amount as of the effective time of the Closing in accordance with Section 1.2(g) (the “Ferrybridge Capital Expenditure Statement”), each of which shall be accompanied by reasonable detail and related backup information. If, within 30 The Purchaser and the Sellers shall cooperate and provide each other access to their respective books and records (and those of the Transferred Companies) as are reasonably requested in connection with the matters addressed in this Section 1.3. (b) The Sellers shall have sixty (60) days after from the date on which the Determination is Adjusted Closing Net Working Capital Statement, the Closing Net Debt Statement, the Project Capital Expenditure Statement and the Ferrybridge Capital Expenditure Statement have been delivered to the BuyerSellers to raise any objection(s) to (i) the Adjusted Closing Net Working Capital Statement, (ii) the Buyer shall not have given Closing Net Debt Statement, (iii) the Project Capital Expenditure Statement or (iv) the Ferrybridge Capital Expenditure Statement, in each case by delivery of written notice to the Determination Committee Purchaser setting forth such objection(s) in reasonable detail (the “Disputed Items”). In the event that the Sellers shall not deliver any objection such objection(s) with respect to the Adjusted Closing Net Working Capital Statement, the Closing Net Debt Statement, the Project Capital Expenditure Statement or the Ferrybridge Capital Expenditure Statement within such sixty-day period, then the Adjusted Closing Net Working Capital Statement, the Closing Net Debt Statement, the Project Capital Expenditure Statement and the Ferrybridge Capital Expenditure Statement shall be deemed final for purposes of this Section 1.3. In the event that any such objection(s) are so delivered, the Adjusted Closing Net Working Capital Statement, the Closing Net Debt Statement, the Project Capital Expenditure Statement and/or the Ferrybridge Capital Expenditure Statement, as applicable, shall each be deemed not final and the Purchaser and the Sellers shall attempt, in good faith, to resolve the Disputed Items and, if they are unable to resolve all of the Buyer Disputed Items within thirty (30) Business Days of delivery of such notice, they shall, within five (5) Business Days thereafter (or such earlier date as mutually agreed), designate PricewaterhouseCoopers LLP, or if PricewaterhouseCoopers LLP is unwilling or unable to such Determinationso serve, then another internationally recognized firm of independent public accountants, mutually agreeable to the Purchaser and the Sellers (the “Accounting Arbitrator”), to finally determine such Determination Disputed Items. In the event that the Purchaser and the Sellers are unable to agree on the Accounting Arbitrator within such five-Business Day period, then the Accounting Arbitrator shall be an accounting firm of national standing designated by the American Arbitration Association; provided that such firm shall not currently be the independent auditor of (or otherwise serve as a consultant to) the Sellers, the Company, the Purchaser or their respective Affiliates. The Accounting Arbitrator shall resolve all remaining Disputed Items in accordance herewith within twenty (20) Business Days following the date of its designation. In connection with the foregoing, the Accounting Arbitrator shall be instructed to and must (i) limit its determination(s) only to the remaining Disputed Items, (ii) make its determination(s) as to each remaining Disputed Item in accordance with Section 1.2(c), Section 1.2(e), Section 1.2(f) and Section 1.2(g) and (iii) not assign a value to any remaining Disputed Item greater than the highest value for such Disputed Item claimed by either the Purchaser or the Sellers or less than the lowest value for such Disputed Item claimed by either the Purchaser or the Sellers. All determinations by the Accounting Arbitrator shall be final and binding upon the parties for purposes of this Section 1.3, absent fraud or manifest error. The fees and expenses of the Accounting Arbitrator shall be borne by the party(ies) based on the degree (as determined by the Accounting Arbitrator) to which the Accounting Arbitrator has accepted the positions of the Purchaser and the Preliminary Actual Sellers. (c) At such time as the Adjusted Closing Net Working Capital shall become final in accordance with Section 1.3(b) (the “Final Adjusted Closing Net Working Capital”), the Final Adjusted Closing Net Working Capital shall be compared to the Estimated Adjusted Closing Net Working Capital. At such time as the Closing Net Debt shall become final in accordance with Section 1.3(b) (the “Final Closing Net Debt”), the Final Closing Net Debt shall be compared to the Estimated Closing Net Debt. At such time as the Project Capital Expenditure Amount shall become final in accordance with Section 1.3(b) (the “Final Project Capital Expenditure Amount”), the Final Project Capital Expenditure Amount shall be deemed compared to the Estimated Project Capital Expenditure Amount. At such time as the Ferrybridge Capital Expenditure Amount shall become final actual amount of in accordance with Section 1.3(b) (the Closing Stockholders' Equity (including, as may be determined mutually by the parties or by the Settlement Accountant, as described below“Final Ferrybridge Capital Expenditure Amount”), the "FINAL ACTUAL AMOUNT")Final Ferrybridge Capital Expenditure Amount shall be compared to the Estimated Ferrybridge Capital Expenditure Amount. (d) In the event that the Final Adjusted Closing Net Working Capital exceeds the Estimated Adjusted Closing Net Working Capital, the Purchaser shall be obligated to pay to the Sellers an amount equal to such excess, in cash in immediately available funds. In the event that the Buyer gives written notice of any objection Estimated Closing Net Debt exceeds the Final Closing Net Debt, the Purchaser shall be obligated to pay to the Sellers an amount equal to such Determination within such 30-day periodexcess, in cash in immediately available funds. In the event that the Final Project Capital Expenditure Amount exceeds the Estimated Project Capital Expenditure Amount, the Determination Committee and Purchaser shall be obligated to pay to the Buyer shall use all reasonable efforts Sellers an amount equal to resolve such excess, in cash in immediately available funds. (e) In the dispute within fifteen (15) days following event that the receipt by Estimated Adjusted Closing Net Working Capital exceeds the Determination Committee of such written notice from the Buyer. If the Determination Committee and the Buyer are able to reach an agreement during such 15-day periodFinal Adjusted Closing Net Working Capital, the Closing Stockholders' Equity they agree upon Sellers shall be obligated to pay to the Purchaser an amount equal to such excess, in cash in immediately available funds. In the event that the Final Actual Amount. If Closing Net Debt exceeds the parties are unable Estimated Closing Net Debt, the Sellers shall be obligated to reach an agreement as pay to the Purchaser an amount equal to such excess, in cash in immediately available funds. In the event that the Estimated Project Capital Expenditure Amount exceeds the Final Actual Amount within such 15-day periodProject Capital Expenditure Amount, the matter Sellers shall be submitted obligated to a mutually agreed upon "big five" certified public accounting firm pay to the Purchaser an amount equal to such excess, in case in immediately available funds. (f) In the "SETTLEMENT ACCOUNTANT") for determination of the Final Actual Amount to be made within 20 days after submission, and the determination of the Settlement Accountant of the Final Actual Amount shall be final and binding upon the Buyer and the Company. The Buyer and the Company shall contribute equally to all costs (including fees and expenses charged by the Settlement Accountant) in connection with the resolution of any such dispute. The Buyer and the Company agree event that the Buyer shall be entitled to receive from Estimated Ferrybridge Capital Expenditure Amount exceeded the Stockholders' Equity Adjustment Escrow Funds (as defined in the Escrow Agreement)Target Ferrybridge Capital Expenditure Amount, and the Purchase Price shall be adjusted downward by, the positive amount, if any, equal to then: (i) $700,000in the event the Target Ferrybridge Capital Expenditure Amount exceeds the Final Ferrybridge Capital Expenditure Amount, less the Purchaser shall (x) be obligated to pay the Sellers pursuant to Section 1.3(h) an amount equal to the Ferrybridge Closing Decrease and (y) be obligated to pay the amount by which the Target Ferrybridge Capital Expenditure Amount exceeds the Final Ferrybridge Capital Expenditure Amount in equal monthly installments beginning on the fifth (5th) day after final determination and ending with the monthly installment payment in June 2015; or (ii) the Final Actual Amount, (the "STOCKHOLDERS' EQUITY ADJUSTMENT AMOUNT"); provided, however, that the Stockholders' Equity Adjustment Amount to be received by the Buyer pursuant to this Section 1.3 shall not exceed $200,000. The sole source of funds for recovery of any Stockholders' Equity Adjustment Amount shall be the Stockholders' Equity Adjustment Escrow Funds. As used herein, the term "DETERMINATION COMMITTEE" means a committee consisting of the members of the Board of Directors of the Company (the "BOARD") in office immediately prior to the Closing; provided that, in the event any member of the Determination Committee as of Final Ferrybridge Capital Expenditure Amount exceeds the Closing of the Securities Purchase Agreement is removed or resigns or fails to be re-elected as a director of the Company, then the Determination Committee shall consist of such Persons that were members of the Determination Committee as of the Closing of the Securities Purchase Agreement and are, as of the relevant time, directors of the Company; further provided that, in the event no such persons remain as directors of the Company, the Company shall appoint an independent trustee to serve on the Determination Committee.Target Ferrybridge Capital Expenditure Amount and:

Post-Closing Purchase Price Adjustments. The Preliminary Base Purchase Price shall be adjusted subject to adjustment after the Closing Date as provided herein based on follows: (a) Within ninety (90) days after the actual amount of Closing Date, the Stockholders' Equity of Sellers’ Representative shall deliver to FTI and the Company, as determined Buyer: (i) combined financial statements prepared in accordance with GAAP (but without giving effect to any adjustment that is required by GAAP solely consistently applied and consisting of a balance sheet and statements of income, changes in respect stockholders’ equity and cash flows of the Liberate Licenses), Business as of the end of the year ended December 31, 2001 2005, which shall have been reviewed by the Company’s independent accountants (the CLOSING STOCKHOLDERS' EQUITY"“Final Financial Statements”). Within 30 days after ; and (ii) a statement (the “Closing Sellers’ Statement”) setting forth the Sellers’ calculation, based on the Final Financial Statements, of (A) Closing Base EBIT (“Sellers’ Base EBIT”), (B) the Sellers’ Base Purchase Price, (C) the Working Capital of the Company as of the Closing Date (the "REVIEW PERIOD"“Sellers’ Working Capital”), and (D) schedules that explain by line item in reasonable detail any material variations between the Determination Committee Final Financial Statements and the calculations in clauses (as defined belowA), (B), and (C). “Sellers’ Base Purchase Price” shall be an amount equal to 6.25 times Sellers’ Base EBIT. (b) If the Preliminary Base Purchase Price exceeds the Sellers’ Base Purchase Price, the amount of the excess (the “Negative Closing Adjustment Amount”) shall cause be paid by the Sellers to the Buyer, (i) in cash by each Seller in an amount equal to such Seller’s Blended Percentage multiplied by the product of (A) 0.64 and (B) the Negative Closing Adjustment Amount, such payment to be prepared made by wire transfer of immediately available funds within five (5) Business Days of the delivery of the Closing Sellers’ Statement to an account designated by the Buyer; and delivered (ii) in accordance with the Restricted Stock Agreements, by delivery by the Escrow Agent to the Buyer of certificates representing a determination number of FTI Shares (rounded to the nearest whole share) equal to such Seller’s Blended Percentage multiplied by a fraction, the numerator of which is the product of (A) 0.36 and (B) the Negative Closing Adjustment Amount, and the denominator of which is the Closing Market Value. (c) If the Preliminary Base Purchase Price is less than the Sellers’ Base Purchase Price, the difference (the "Determination"“Positive Closing Adjustment Amount”) shall be paid by the Buyer to the Sellers (i) in cash to each Seller in an amount equal to such Seller’s Blended Percentage multiplied by the product of (A) 0.64 and (B) the Positive Closing Adjustment Amount, such payment to be made by wire transfer of immediately available funds within five (5) Business Days of delivery of the Closing Stockholders' Equity Sellers’ Statement to an account designated by the Sellers; and (ii) by delivery to the Escrow Agent in accordance with the Restricted Stock Agreements by FTI of certificates representing a number of FTI Shares (rounded to the nearest whole share) equal to such Seller’s Blended Percentage multiplied by a fraction, the numerator of which is the product of (A) 0.36 and (B) the Positive Closing Adjustment Amount, and the denominator of which is the Closing Market Value. (d) In addition to any payments made by the Parties under subsections (b) or (c) of this Section 1.7: (i) in the event that the Estimated Closing Date Working Capital exceeds the Sellers’ Working Capital, then each of the Sellers shall pay to the Buyer, within five (5) Business Days of the delivery of the Closing Sellers’ Statement, an amount equal to such Seller’s respective Share Percentage of the excess, such payment to be made by wire transfer of immediately available funds to an account designated by the Buyer; or (ii) in the event that the Sellers’ Working Capital exceeds the Estimated Closing Date Working Capital, then the Buyer shall pay to each Seller, within five (5) Business Days of the delivery of the Closing Sellers’ Statement, an amount equal to each Seller’s respective Share Percentage of the excess, such payment to be made by wire transfer of immediately available funds to an account designated by such Seller. (e) On or prior to July 14, 2006, FTI and the Buyer shall deliver to the Sellers’ Representative either a notice indicating that FTI and the Buyer accept the Closing Sellers’ Statement (the “Acceptance Notice”) or a detailed statement describing their objections thereto (the “Objection Notice). If FTI and the Buyer timely deliver the Acceptance Notice to the Sellers’ Representative, or if FTI and the Buyer do not deliver the Objection Notice or the Acceptance Notice on or prior to July 14, 2006, then, effective as of either the date of delivery of the Acceptance Notice or as of the close of business on July 14, 2006, whichever is referred earlier, FTI and the Buyer shall be deemed to herein as have accepted (i) Sellers’ Base EBIT, in which event Sellers’ Base EBIT shall be deemed Final Base EBIT and the "PRELIMINARY ACTUAL AMOUNT")Sellers’ Base Purchase Price shall be deemed the Final Base Purchase Price, including for purposes of calculations under Sections 1.5 and 1.9, and (ii) Sellers’ Working Capital, which shall be deemed Final Closing Date Working Capital. (f) If FTI and the basis for such Determination Buyer timely deliver the Objection Notice, their objections shall be resolved as follows: (i) FTI, the Buyer and the Sellers’ Representative shall first use reasonable efforts to resolve objections. (ii) If FTI, the Buyer and the Sellers’ Representative do not reach a resolution of all objections set forth in reasonable detailthe Objection Notice within 30 days after delivery thereof, prepared in accordance with GAAP. IfFTI, the Buyer and the Sellers’ Representative shall, within 30 days after following the date on which the Determination is delivered to the Buyer, the Buyer shall not have given written notice to the Determination Committee setting forth in reasonable detail any objection expiration of the Buyer to such Determination, then such Determination shall be final and binding upon the parties and the Preliminary Actual Amount shall be deemed the final actual amount of the Closing Stockholders' Equity (including, as may be determined mutually by the parties or by the Settlement Accountant, as described below, the "FINAL ACTUAL AMOUNT"). In the event that the Buyer gives written notice of any objection to such Determination within such 30-day period, engage the Determination Committee and the Buyer shall use all reasonable efforts Accountant to resolve the dispute Unresolved Objections pursuant to an engagement agreement executed by FTI, the Buyer, the Sellers’ Representative and the Accountant. (iii) FTI, the Buyer and the Sellers’ Representative shall jointly submit to the Accountant, within fifteen five (155) days following Business Days after the receipt date of the engagement of the Accountant (as evidenced by the Determination Committee date of such written notice from the engagement agreement), a copy of the Closing Sellers’ Statement, a copy of the Objection Notice, and a statement setting forth the resolution of any objections agreed to by FTI, the Buyer and the Sellers’ Representative. Each of FTI (on behalf of the Buyer. If the Determination Committee ) and the Buyer are able Sellers’ Representative shall submit to reach an agreement during such 15-day periodthe Accountant (with a copy delivered to the other party on the same day), within 45 days after the date of the engagement of the Accountant, a memorandum (which may include supporting exhibits) setting forth its positions on the Unresolved Objections. Each of FTI and the Sellers’ Representative may (but shall not be required to) submit to the Accountant (with a copy delivered to the other party on the same day), within 60 days after the date of the engagement of the Accountant, a memorandum responding to the initial memorandum submitted to the Accountant by the other party. Unless requested by the Accountant in writing, neither party may present any additional information or arguments to the Accountant, either orally or in writing. (iv) Within 90 days after the date of its engagement hereunder, the Accountant shall determine whether the Unresolved Objections are appropriate (in whole or in part) and shall issue a ruling which shall include a statement substantially in the same form as the Closing Stockholders' Equity they Sellers’ Statement. Such statement shall reflect any resolutions to objections agreed upon by FTI, the Buyer and the Sellers’ Representative, and the Accountant’s resolution of the Unresolved Objections, which resolution shall be limited to the Unresolved Objections and shall not reflect adjustments to the Closing Sellers’ Statement in excess of the proposed adjustments set forth in the Objection Notice. The Accountant’s statement shall set forth a calculation of (x) Final Base EBIT, which result shall be deemed to be Final Base EBIT for purposes of calculations under Sections 1.5 and 1.9, and (y) Final Closing Date Working Capital. (v) The resolution by the Accountant of the Unresolved Objections and the calculations of Final Base EBIT and Final Closing Date Working Capital shall be conclusive and binding upon FTI, the Buyer, the Sellers and the Sellers’ Representative. FTI, the Buyer, the Sellers and the Sellers’ Representative agree upon that the procedure set forth in this Section 1.7(f) for resolving disputes with respect to Final Base EBIT, Final Closing Date Working Capital and determining the Final Base Purchase Price shall be the sole and exclusive method for resolving any such disputes and making such determination; provided that this provision shall not prohibit FTI and the Buyer, on the one hand, and the Sellers’ Representative, on the other hand, from instituting litigation to enforce the ruling of the Accountant. (vi) The Buyer, and the Sellers collectively, each shall pay 50% of the fees and expenses of the Accountant. (g) Immediately (i) on July 17, 2006, if no Objection Notice or Acceptance Notice was timely delivered, (ii) upon delivery of the Acceptance Notice, or (iii) upon final resolution of any dispute in connection with the determination of Final Actual Amount. Base EBIT and Final Closing Date Working Capital pursuant to this Section 1.7, the Final Base Purchase Price shall be calculated in accordance with Section 1.5 on the basis of Final Base EBIT as determined in accordance with Section 1.7. (h) If the parties are unable to reach an agreement as Sellers’ Base Purchase Price exceeds the Final Base Purchase Price, the amount of such difference (the “Final Negative Closing Adjustment Amount”) shall be paid by the Sellers to the Buyer, (i) in cash by each Seller in an amount equal to such Seller’s Blended Percentage multiplied by the product of (A) 0.64 and (B) the Final Actual Amount Negative Closing Adjustment Amount, such payment to be made by wire transfer of immediately available funds within such 15-day period, five (5) Business Days of the matter shall be submitted to a mutually agreed upon "big five" certified public accounting firm (the "SETTLEMENT ACCOUNTANT") for determination of the Final Actual Amount Base Purchase Price to an account designated by the Buyer; and (ii) in accordance with the Restricted Stock Agreements, by delivery by the Escrow Agent to the Buyer of certificates representing a number of FTI Shares (rounded to the nearest whole share) equal to such Seller’s Blended Percentage multiplied by a fraction, the numerator of which is the product of (A) 0.36 and (B) the Final Negative Closing Adjustment Amount, and the denominator of which is the Closing Market Value. (i) If the Sellers’ Base Purchase Price is less than the Final Base Purchase Price, the amount of such difference (the “Final Positive Closing Adjustment Amount”) shall be paid by the Buyer to the Sellers (i) in cash to each Seller in an amount equal to such Seller’s Blended Percentage multiplied by the product of (A) 0.64 and (B) the Final Positive Closing Adjustment Amount, such payment to be made by wire transfer of immediately available funds within 20 days after submission, and five (5) Business Days of the determination of the Settlement Accountant Final Base Purchase Price to an account designated by the Sellers; and (ii) by delivery to the Escrow Agent in accordance with the Restricted Stock Agreements by FTI of certificates representing a number of FTI Shares (rounded to the nearest whole share) equal to such Seller’s Blended Percentage multiplied by a fraction, the numerator of which is the product of (A) 0.36 and (B) the Final Positive Closing Adjustment Amount and the denominator of which is the Closing Market Value. (j) In addition to any payments made by the Parties under subsections (h) or (i) of this Section 1.7: (i) in the event that the Sellers’ Working Capital exceeds the Final Closing Date Working Capital, then the Sellers shall pay to the Buyer, within five (5) Business Days of the determination of the Final Actual Amount shall Closing Date Working Capital under this Section 1.7, an amount equal to such Seller’s respective Share Percentage of the excess, such payment to be final and binding upon the Buyer and the Company. The Buyer and the Company shall contribute equally made by wire transfer of immediately available funds to all costs (including fees and expenses charged an account designated by the Settlement AccountantBuyer; or (ii) in connection with the resolution of any such dispute. The Buyer and event that the Company agree that Final Closing Date Working Capital exceeds the Sellers’ Working Capital, then the Buyer shall be entitled to receive from pay, within five (5) Business Days of the Stockholders' Equity Adjustment Escrow Funds (as defined in determination of the Escrow Agreement)Final Closing Date Working Capital under this Section 1.7, and the Purchase Price shall be adjusted downward by, the positive amount, if any, an amount equal to (i) $700,000each Seller’s respective Share Percentage of the excess, less (ii) the Final Actual Amount, (the "STOCKHOLDERS' EQUITY ADJUSTMENT AMOUNT"); provided, however, that the Stockholders' Equity Adjustment Amount such payment to be received made by wire transfer of immediately available funds to accounts designated by the Buyer pursuant to this Section 1.3 shall not exceed $200,000. The sole source of funds for recovery of any Stockholders' Equity Adjustment Amount shall be the Stockholders' Equity Adjustment Escrow Funds. As used herein, the term "DETERMINATION COMMITTEE" means a committee consisting of the members of the Board of Directors of the Company (the "BOARD") in office immediately prior to the Closing; provided that, in the event any member of the Determination Committee as of the Closing of the Securities Purchase Agreement is removed or resigns or fails to be re-elected as a director of the Company, then the Determination Committee shall consist of such Persons that were members of the Determination Committee as of the Closing of the Securities Purchase Agreement and are, as of the relevant time, directors of the Company; further provided that, in the event no such persons remain as directors of the Company, the Company shall appoint an independent trustee to serve on the Determination CommitteeSellers.

Post-Closing Purchase Price Adjustments. The Purchase Price (a) On or before sixty (60) days following the Closing Date, Seller shall be adjusted as provided herein based on the actual amount prepare and deliver to Buyer an updated statement of the Stockholders' Equity Net Book Value of the CompanyPurchased Assets adjusted to the extent necessary to reflect the Net Book Value of the Purchased Assets as of the Closing Date, as determined in accordance with GAAP (but without giving effect to any adjustment that is required by GAAP solely and in respect a manner consistent with the determination of the Liberate Licenses), as of December 31, 2001 Reference Net Book Value (the CLOSING STOCKHOLDERS' EQUITY"Closing Date Net Book Value"). Within 30 . (b) Unless Buyer notifies Seller in writing within thirty (30) days after Buyer's receipt of the Closing Date Net Book Value of any objection to the determination of Net Book Value (the "REVIEW PERIODNotice of Disagreement"), the Determination Committee (as defined below) Closing Date Net Book Value shall cause to be prepared become final and delivered to binding for purposes of determining the Buyer a determination (Purchase Price. During the "Determination") 30-day period following Buyer's receipt of the Closing Stockholders' Equity Date Net Book Value, Buyer and Buyer's representatives will be permitted to review the working papers of Seller and Seller's independent public accountants, if any such accountants were engaged by Seller to assist in such determination, relating to the Closing Date Net Book Value and any financial records relevant to the preparation of the Closing Date Net Book Value, provided that such access shall be during normal business hours. Seller and Seller's independent public accountants will also be reasonably available from time to time during normal business hours to address related questions raised by Buyer and Buyer's representatives. (which amount is referred to herein as the "PRELIMINARY ACTUAL AMOUNT"), including c) Any Notice of Disagreement shall specify in reasonable detail the basis for such Determination the objections set forth therein. The objections contained in reasonable detail, prepared in accordance with GAAP. If, within 30 days after the date on which the Determination is delivered Notice of Disagreement may relate to the Buyer, the Buyer shall not have given written notice to the Determination Committee setting forth in reasonable detail any objection aspect of the Buyer to such Determination, then such Determination shall be final and binding upon the parties and the Preliminary Actual Amount shall be deemed the final actual amount determination of the Closing Stockholders' Equity (Date Net Book Value, including, without limitation, the proper or consistent application of GAAP, capital additions, capital retirements, cost of removal, annual depreciation allocations and arithmetic calculations. Notwithstanding any Option exercise by Buyer, Buyer's acquisition of the Purchased Assets based on the Reference Net Book Value or the Estimated Net Book Value, or the net book value of the Purchased Assets as may be determined mutually by reflected on Seller's books, the parties acknowledge and agree that all rights Buyer has hereunder to raise objections in the Notice of Disagreement shall not be prejudiced or by the Settlement Accountant, as described below, the "FINAL ACTUAL AMOUNT")waived and are expressly reserved. In the event that the If Buyer gives written notice a Notice of any objection Disagreement to Seller within such Determination 30-day period, Seller and Buyer shall, during the 30-day period following Seller's receipt of the Notice of Disagreement, attempt in good faith to resolve Buyer's objections. During such 30-day period, Seller and Seller's representatives shall be permitted to review the working papers of Buyer and Buyer's representatives relating to the Notice of Disagreement and the basis therefor. Buyer and Buyer's representatives will also be reasonably available from time to time during normal business hours to address related questions raised by Seller and Seller's independent public accountants. If Seller and Buyer are unable to resolve all such objections within such 30-day period, the Determination Committee and the Buyer shall use all reasonable efforts to resolve the matters remaining in dispute within fifteen (15) days following the receipt by the Determination Committee of such written notice from the Buyer. If the Determination Committee and the Buyer are able to reach an agreement during such 15-day period, the Closing Stockholders' Equity they agree upon shall be the Final Actual Amount. If the parties are unable to reach an agreement as to the Final Actual Amount within such 15-day period, the matter shall be submitted to a mutually agreed upon "big five" certified public the New York, New York office of Xxxxx Xxxxxxxx LLP or such other accounting firm as the parties may agree (the "SETTLEMENT ACCOUNTANTIndependent Expert") for determination ). Each of Buyer and Seller represent and warrant that it neither has nor has had, and covenants that it will not engage in, a relationship that could be reasonably interpreted to compromise the Final Actual Amount Independent Expert's independence. The parties shall instruct the Independent Expert to be made within 20 days after submissionrender a reasoned written decision addressing the issues raised in the Notice of Disagreement and determining whether the Closing Date Net Book Value was determined in accordance with GAAP, consistently applied beginning from May 28, 1998, and the provisions of this agreement, which decision shall be rendered as promptly as practicable but in no event later than thirty (30) days after its selection. If the Independent Expert determines that the Closing Date Net Book Value as prepared by Seller and submitted to the Independent Expert was not determined in accordance with GAAP and the provisions of this Agreement, it shall determine the Closing Date Net Book Value. The resolution of disputed items and determination of by the Settlement Accountant of the Final Actual Amount Independent Expert shall be final and binding upon the Buyer and the Companybinding. The Buyer and the Company shall contribute equally to all costs (including fees and expenses charged by of the Settlement Accountant) in connection with the resolution of any such dispute. The Buyer and the Company agree that the Buyer Independent Expert shall be entitled shared equally by Seller and Buyer. (d) The Purchase Price shall be an amount equal to receive from the Stockholders' Equity Adjustment Escrow Funds Closing Date Net Book Value determined pursuant to this Section 3.2 (as defined in the Escrow Agreement), and "Final Net Book Value") multiplied by 1.25 for the Purchased Assets (other than the Related Assets for which the Purchase Price shall be adjusted downward byan amount equal to the Final Net Book Value) (the "Final Closing Payment Amount"). If the Final Closing Payment Amount is less than the Closing Payment Amount, Seller shall pay or cause to be paid to Buyer, an amount equal to the positive amountamount by which the Final Closing Payment Amount is less than the Closing Payment Amount (together with interest thereon from the Closing Date to the date paid at the Prime Rate). If the Final Closing Payment Amount is greater than the Closing Payment Amount, Buyer shall pay or cause to be paid to Seller, an amount equal to the amount by which Final Closing Payment Amount exceeds the Closing Payment Amount (together with interest thereon from the Closing Date to the date paid at the Prime Rate). All payments pursuant to this Section 3.2(d), if any, equal to shall be made by wire transfer of immediately available funds within three (i3) $700,000, less (ii) Business Days after final determination of the Final Actual Amount, (the "STOCKHOLDERS' EQUITY ADJUSTMENT AMOUNT"); provided, however, that the Stockholders' Equity Adjustment Amount amounts to be received by the Buyer pursuant to this Section 1.3 shall not exceed $200,000. The sole source of funds for recovery of any Stockholders' Equity Adjustment Amount shall be the Stockholders' Equity Adjustment Escrow Funds. As used herein, the term "DETERMINATION COMMITTEE" means a committee consisting of the members of the Board of Directors of the Company (the "BOARD") in office immediately prior to the Closing; provided that, in the event any member of the Determination Committee as of the Closing of the Securities Purchase Agreement is removed or resigns or fails to be re-elected as a director of the Company, then the Determination Committee shall consist of such Persons that were members of the Determination Committee as of the Closing of the Securities Purchase Agreement and are, as of the relevant time, directors of the Company; further provided that, in the event no such persons remain as directors of the Company, the Company shall appoint an independent trustee to serve on the Determination Committeeso paid.

Post-Closing Purchase Price Adjustments. (a) The Purchase Price shall Cash Adjustment and the Net Working Capital Adjustment will be adjusted as provided herein based on the actual amount finally determined by reference to reviewed financial statements of the Stockholders' Equity Corporation to be prepared by the Corporation and reviewed by Deloitte LLP, in their capacity as the former accountants of the Company, as determined in accordance with GAAP Corporation (but without giving effect “Vendors’ Accountants”) for the fiscal period ending immediately prior to any adjustment that is required by GAAP solely in respect of the Liberate Licenses), as of December 31, 2001 Effective Time (the CLOSING STOCKHOLDERS' EQUITY"“Closing Financial Statements”). Within 30 The Vendors shall cause draft Closing Financial Statements reviewed by the Vendors’ Accountants (“Draft Closing Financial Statements”) to be delivered to the Purchaser within sixty (60) days after following the Closing Date (or such other date as is mutually agreed to by the "REVIEW PERIOD"Vendors and the Purchaser in writing) together with calculations prepared by the Corporation and reviewed by the Vendors’ Accountants (collectively, “Vendors’ Calculations”) of: (i) Cash immediately prior to the Effective Time and the Cash Adjustment calculated by reference thereto; (ii) Net Working Capital immediately prior to the Effective Time and the Net Working Capital Adjustment calculated by reference thereto; (iii) the aggregate amount of the Closing Indebtedness immediately prior to the Effective Time; and (iv) the amount of the Purchase Price payable at Closing calculated by reference thereto. During such sixty (60) day period and thereafter, until such time as the Final Closing Financial Statements and the Final Calculations are definitively determined as provided in this Section 1.5, the Purchaser shall permit the Vendors’ Accountants on a confidential basis to have access to all relevant Books and Records that are necessary or desirable in the opinion of the Vendors’ Accountants, acting reasonably, to permit the Vendors’ Accountants to review the Draft Closing Financial Statements and the Vendors’ Calculations. The cost of the preparation of the Vendors’ Calculations and the Draft Closing Financial Statements will be borne solely by the Vendors. (b) From time to time following delivery of the Vendors’ Calculations, the Vendors will cause the Vendors’ Accountants to deliver, in a timely manner, to the Purchaser such back-up to the Vendors’ Calculations as the Purchaser may reasonably request. (c) Within 45 days after its receipt of the Draft Closing Financial Statements, the Vendors’ Calculations and any back-up thereto requested by the Purchaser, acting reasonably and in a timely manner, the Purchaser may notify the Vendors in writing of any objection which the Purchaser may have to the Draft Closing Financial Statements or the Vendors’ Calculations (an “Objection Notice”), specifying in reasonable detail the dollar amount and nature of the Purchaser’s objections and the reasons therefor. (d) If the Purchaser gives an Objection Notice within the period set forth in Section 1.5(c), the Determination Committee (as defined below) Vendors and the Purchaser shall cause work expeditiously and in good faith in an attempt to be prepared and delivered to resolve the Buyer Purchaser’s objections within a determination (further period of 45 days following the "Determination") date of the Closing Stockholders' Equity (which Objection Notice. Any resolution of the dispute by the Vendors and the Purchaser will be recorded in writing and will be final and binding on the Vendors and the Purchaser. Failing resolution of all objections raised by the Purchaser in its Objection Notice, any objections remaining in dispute will be submitted for determination by the Independent Accountants. The Independent Accountants will, as soon as reasonably possible and in any event, within 20 Business Days of its appointment, determine the matters still in dispute as set out in the Objection Notice. In making its determination, the Independent Accountants will act as an expert and not as an arbitrator. The Independent Accountants will limit their review solely to those items in dispute, base their determination on the written submissions of the Parties without conducting independent investigation, and no adjustment will increase or decrease such item in dispute to an amount that is referred not equal to herein as or between the "PRELIMINARY ACTUAL AMOUNT"), including amount claimed by the basis for such Determination Purchaser and the amount set forth in reasonable detail, prepared in accordance with GAAPthe Draft Closing Financial Statements or the Vendors’ Calculations. If, within 30 days after the date on which the Determination is delivered to the Buyer, the Buyer shall not have given written notice to the Determination Committee setting forth in reasonable detail any objection The determination of the Buyer to such Determination, then such Determination shall Independent Accountants will be final and binding upon the parties Vendors and the Preliminary Actual Amount shall Purchaser and will not be subject to appeal, absent manifest error. (e) If the Purchaser does not give an Objection Notice within the period set forth in Section 1.5(c), the Purchaser will be deemed to have accepted and approved the Draft Closing Financial Statements and the Vendors’ Calculations, and they will become the “Final Closing Financial Statements” and the “Final Calculations”, respectively. (f) If the Purchaser gives an Objection Notice within the period set forth in Section 1.5(c), the Vendors shall cause the Vendors’ Accountants to revise the Draft Closing Financial Statements and Vendors’ Calculations to reflect the final actual amount resolution or final determination of any objections set forth in an Objection Notice pursuant to Section 1.5(d) within ten Business Days following such final resolution or determination. The Draft Closing Financial Statements and the Vendors’ Calculations as revised in accordance with Section 1.5(f) will upon such revision become the “Final Closing Financial Statements” and the “Final Calculations”, respectively. (g) The Final Closing Financial Statements and the Final Calculations will be final, conclusive and binding upon the Vendors and the Purchaser and will not be subject to appeal, absent manifest error. (h) The Vendors and the Purchaser shall each bear their own respective costs and expenses incurred in connection with the review of the Draft Closing Stockholders' Equity (including, as may be determined mutually by Financial Statements and the parties or by Vendors’ Calculations and the Settlement Accountant, as described below, settlement of the "FINAL ACTUAL AMOUNT")Final Closing Financial Statements and the Final Calculations. In the event case of a dispute and the retention of Independent Accountants to determine such dispute, the costs and expenses of the Independent Accountants shall be borne equally by the Vendors on one hand and the Purchaser on the other hand. However, the Vendors and the Purchaser shall each bear their own respective costs in presenting their respective cases to the Independent Accountants. (i) The Vendors and the Purchaser agree that the Buyer gives written notice of any objection to such Determination within such 30-day period, the Determination Committee and the Buyer shall use all reasonable efforts to resolve the dispute within fifteen (15) days following the receipt by the Determination Committee of such written notice from the Buyer. If the Determination Committee and the Buyer are able to reach an agreement during such 15-day period, the Closing Stockholders' Equity they agree upon shall be the Final Actual Amount. If the parties are unable to reach an agreement as procedure set forth in Section 1.5 for resolving disputes with respect to the Final Actual Amount within Closing Financial Statements and the Final Calculations is the sole and exclusive method of resolving such 15-day perioddisputes. This Section 1.5(i) will not, however, prohibit the Vendors or the Purchaser from instigating litigation to compel specific performance of this Section 1.5 or to enforce the provisions of this Section 1.5. (j) If the Purchase Price payable at Closing as determined in accordance with this Section 1.5 (“Final Purchase Price”) is more or less than the Estimated Purchase Price, payments will be made as follows: (i) if the Final Purchase Price is greater than the Estimated Purchase Price, the matter amount by which the Final Purchase Price is greater than the Estimated Purchase Price will be paid by the Purchaser to the Vendors’ Solicitors in trust for the Vendors in accordance with Section 1.5(k); and (ii) if the Final Purchase Price is less than the Estimated Purchase Price, the amount by which the Final Purchase Price is less than the Estimated Purchase Price will be paid by the Vendors to the Purchaser in accordance with their respective Proportionate Shares and in accordance with Section 1.5(k). (k) All amounts required to settle the amount provided in Section 1.5(j) shall be submitted to a mutually agreed upon "big five" certified public accounting firm (paid by the "SETTLEMENT ACCOUNTANT") for owing Party within ten days of the determination of the Final Actual Amount to be made within 20 days after submission, Closing Financial Statements and the determination Final Calculations by certified cheque, bank draft or wire transfer of the Settlement Accountant of the Final Actual Amount shall be final and binding upon the Buyer and the Company. The Buyer and the Company shall contribute equally to all costs (including fees and expenses charged by the Settlement Accountant) in connection with the resolution of any such dispute. The Buyer and the Company agree that the Buyer shall be entitled to receive from the Stockholders' Equity Adjustment Escrow Funds (as defined in the Escrow Agreement), and the Purchase Price shall be adjusted downward by, the positive amount, if any, equal to (i) $700,000, less (ii) the Final Actual Amount, (the "STOCKHOLDERS' EQUITY ADJUSTMENT AMOUNT"); provided, however, that the Stockholders' Equity Adjustment Amount to be received by the Buyer pursuant to this Section 1.3 shall not exceed $200,000. The sole source of immediately available funds for recovery of any Stockholders' Equity Adjustment Amount shall be the Stockholders' Equity Adjustment Escrow Funds. As used herein, the term "DETERMINATION COMMITTEE" means a committee consisting of the members of the Board of Directors of the Company (the "BOARD") in office immediately prior to the Closing; provided that, in the event any member of the Determination Committee as of the Closing of the Securities Purchase Agreement is removed or resigns or fails to be re-elected as a director of the Company, then the Determination Committee shall consist of such Persons that were members of the Determination Committee as of the Closing of the Securities Purchase Agreement and are, as of the relevant time, directors of the Company; further provided that, in the event no such persons remain as directors of the Company, the Company shall appoint an independent trustee to serve on the Determination Committeeapplicable Party.

Post-Closing Purchase Price Adjustments. The Purchase Price shall be adjusted (a) As soon as provided herein based on the actual amount of the Stockholders' Equity of the Company, as determined in accordance with GAAP (but without giving effect to any adjustment that is required by GAAP solely in respect of the Liberate Licenses), as of December 31, 2001 (the CLOSING STOCKHOLDERS' EQUITY"). Within 30 days reasonably practicable after the Closing Date Date, and in any event, within sixty (60) days thereof, Purchaser shall prepare and deliver to the Sellers a statement (the "REVIEW PERIOD"), “Closing Date Current Asset Statement”) setting forth the Determination Committee (as defined below) shall cause to be prepared and delivered to the Buyer a determination (the "Determination") calculation of the Closing Stockholders' Equity (which amount is referred to herein as the "PRELIMINARY ACTUAL AMOUNT"), including the basis for such Determination set forth in reasonable detail, Date Current Assets. The Closing Date Current Asset Statement shall be prepared in accordance a manner consistent with GAAPthe accounting methods, policies, categorizations, definitions, principles, practices, techniques and procedures utilized in the preparation of the Estimated Current Asset Statement, but shall not include any changes in assets or liabilities as a result of changes arising from or resulting as a consequence of the Closing. IfUpon receipt from Purchaser, within 30 Sellers shall have thirty (30) days after to review the date Closing Date Current Asset Statement (the “Review Period”). At Sellers’ request, Purchaser and its employees, accountants and representatives (i) shall cooperate and assist Sellers and its representatives in reviewing the Closing Date Current Asset Statement and the materials used in its preparation and (ii) shall provide Sellers and their representatives with any information reasonably requested by them in connection therewith. If Sellers disagree with Purchaser’s computation of Closing Date Current Assets, Sellers may, on which the Determination is delivered or prior to the Buyerlast day of the Review Period, the Buyer shall not have given deliver a written notice to Purchaser (the Determination Committee setting “Notice of Objection”), which sets forth in reasonable detail any objection (i) those items or amounts with which Sellers disagree and (ii) Sellers’ calculation of Closing Date Current Assets based on such objections. To the Buyer to such Determinationextent not set forth in the Notice of Objection, then such Determination shall be final and binding upon the parties and the Preliminary Actual Amount Sellers shall be deemed to have agreed with Purchaser’s calculation of all other items and amounts contained in the final actual amount Closing Date Current Asset Statement. Unless Sellers deliver the Notice of Objection to Purchaser on or prior to the last day of the Review Period, Sellers shall be deemed to have accepted Purchaser’s calculation of Closing Stockholders' Equity (including, as may be determined mutually by the parties or by the Settlement Accountant, as described below, the "FINAL ACTUAL AMOUNT"). In the event that the Buyer gives written notice of any objection to such Determination within such 30-day period, the Determination Committee Date Current Assets and the Buyer Closing Date Current Asset Statement shall be final, conclusive and binding. (b) If Sellers deliver the Notice of Objection to Purchaser within the Review Period, Purchaser and Sellers shall, during the thirty (30) days following such delivery or any mutually agreed extension thereof, use all their commercially reasonable efforts to resolve reach agreement on the dispute within fifteen (15) days following disputed items and amounts in order to determine the receipt by amount of Closing Date Current Assets. If, at the Determination Committee end of such written notice from the Buyer. If the Determination Committee period or any mutually agreed extension thereof, Purchaser and the Buyer are able to reach an agreement during such 15-day period, the Closing Stockholders' Equity they agree upon shall be the Final Actual Amount. If the parties Sellers are unable to reach an agreement as resolve their disagreements, they shall jointly retain and refer their disagreements to a single neutral arbitrator (the “Arbitrator”). The Purchaser and Sellers shall instruct the Arbitrator promptly to review this Section 2.4 and to determine solely with respect to the Final Actual Amount within such 15-day period, the matter shall be disputed items and amounts so submitted whether and to a mutually agreed upon "big five" certified public accounting firm (the "SETTLEMENT ACCOUNTANT") for determination of the Final Actual Amount to be made within 20 days after submission, and the determination of the Settlement Accountant of the Final Actual Amount shall be final and binding upon the Buyer and the Company. The Buyer and the Company shall contribute equally to all costs (including fees and expenses charged by the Settlement Accountant) in connection with the resolution of any such dispute. The Buyer and the Company agree that the Buyer shall be entitled to receive from the Stockholders' Equity Adjustment Escrow Funds (as defined in the Escrow Agreement), and the Purchase Price shall be adjusted downward by, the positive amountwhat extent, if any, equal the Closing Date Current Assets set forth in the Closing Date Current Asset Statement requires adjustment. The Arbitrator shall base its determination solely on written submissions by Purchaser and Sellers regarding the items in dispute and consistent with the terms of this Agreement and not on an independent review. Purchaser and Sellers shall make available to the Arbitrator all relevant books and records and other items reasonably requested by the Arbitrator. As promptly as practicable, but in no event later than thirty (30) days after its retention, the Arbitrator shall deliver to Purchaser and Sellers a report which sets forth its resolution of the disputed items and amounts and its calculation of Closing Date Current Assets; provided that such resolution with respect to each disputed item, must be within the range of values established for such item as determined by reference to the value assigned to such item by the Sellers in the Notice of Objection and by Purchaser in the Closing Date Current Asset Statement. The decision of the Arbitrator shall be final, conclusive and binding on Purchaser and Sellers. The costs and expenses of the Arbitrator shall be allocated between Purchaser and Sellers based upon the percentage which the portion of the contested amounts not awarded to each party bears to the amounts actually contested by such party, as determined by the Arbitrator. (c) For purposes of this Agreement, “Final Current Assets” means the Closing Date Current Assets: (i) $700,000as shown in the Closing Date Current Asset Statement delivered by Purchaser to Sellers pursuant to Section 2.4(a), less if no Notice of Objection with respect thereto is timely delivered by Sellers to Purchaser pursuant to Section 2.4(a); or (ii) the Final Actual Amountif a Notice of Objection is so delivered, (the "STOCKHOLDERS' EQUITY ADJUSTMENT AMOUNT"); provided, however, that the Stockholders' Equity Adjustment Amount to be received A) as agreed by the Buyer Purchaser and Sellers pursuant to this Section 1.3 shall not exceed $200,000. The sole source of funds for recovery of any Stockholders' Equity Adjustment Amount shall be the Stockholders' Equity Adjustment Escrow Funds. As used herein, the term "DETERMINATION COMMITTEE" means a committee consisting of the members of the Board of Directors of the Company 2.4(b) or (the "BOARD"B) in office immediately prior to the Closing; provided thatabsence of such agreement, as shown in the event any member of the Determination Committee as of the Closing of the Securities Purchase Agreement is removed or resigns or fails Arbitrator’s calculation delivered pursuant to be re-elected as a director of the Company, then the Determination Committee shall consist of such Persons that were members of the Determination Committee as of the Closing of the Securities Purchase Agreement and are, as of the relevant time, directors of the Company; further provided that, in the event no such persons remain as directors of the Company, the Company shall appoint an independent trustee to serve on the Determination CommitteeSection 2.4(b).

Post-Closing Purchase Price Adjustments. The Purchase Price (a) On or before sixty (60) days following the Closing Date, Seller shall be adjusted as provided herein based on the actual amount prepare and deliver to Buyer an updated statement of the Stockholders' Equity Net Book Value of the CompanyPurchased Assets adjusted to the extent necessary to reflect the Net Book Value of the Purchased Assets as of the Closing Date, as determined in accordance with GAAP (but without giving effect to any adjustment that is required by GAAP solely and in respect a manner consistent with the determination of the Liberate Licenses), as of December 31, 2001 Reference Net Book Value (the CLOSING STOCKHOLDERS' EQUITY"Closing Date Net Book Value"). Within 30 . (b) Unless Buyer notifies Seller in writing within thirty (30) days after Buyer's receipt of the Closing Date Net Book Value of any objection to the determination of Net Book Value (the "REVIEW PERIODNotice of Disagreement"), the Determination Committee (as defined below) Closing Date Net Book Value shall cause to become final and binding and shall be prepared and delivered to the Buyer a determination (Purchase Price. During the "Determination") 30-day period following Buyer's receipt of the Closing Stockholders' Equity Date Net Book Value, Buyer and Buyer's representatives will be permitted to review the working papers of Seller and Seller's independent public accountants, if any such accountants were engaged by Seller to assist in such determination, relating to the Closing Date Net Book Value and any financial records relevant to the preparation of the Closing Date Net Book Value, provided that such access shall be during normal business hours. Seller and Seller's independent public accountants will also be reasonably available from time to time during normal business hours to address related questions raised by Buyer and Buyer's representatives. (which amount is referred to herein as the "PRELIMINARY ACTUAL AMOUNT"), including c) Any Notice of Disagreement shall specify in reasonable detail the basis for such Determination the objections set forth therein. The objections contained in reasonable detail, prepared in accordance with GAAP. If, within 30 days after the date on which the Determination is delivered Notice of Disagreement may relate to the Buyer, the Buyer shall not have given written notice to the Determination Committee setting forth in reasonable detail any objection aspect of the Buyer to such Determination, then such Determination shall be final and binding upon the parties and the Preliminary Actual Amount shall be deemed the final actual amount determination of the Closing Stockholders' Equity (Date Net Book Value, including, without limitation, the proper or consistent application of GAAP, capital additions, capital retirements, cost of removal, annual depreciation allocations and arithmetic calculations. Notwithstanding any Option exercise by Buyer, Buyer's acquisition of the Purchased Assets based on the Reference Net Book Value or the Estimated Net Book Value, or the net book value of the Purchased Assets as may be determined mutually by reflected on Seller's books, the parties acknowledge and agree that all rights Buyer has hereunder to raise objections in the Notice of Disagreement shall not be prejudiced or by the Settlement Accountant, as described below, the "FINAL ACTUAL AMOUNT")waived and are expressly reserved. In the event that the If Buyer gives written notice a Notice of any objection Disagreement to Seller within such Determination 30-day period, Seller and Buyer shall, during the 30-day period following Seller's receipt of the Notice of Disagreement, attempt in good faith to resolve Buyer's objections. During such 30-day period, Seller and Seller's representatives shall be permitted to review the working papers of Buyer and Buyer's representatives relating to the Notice of Disagreement and the basis therefor. Buyer and Buyer's representatives will also be reasonably available from time to time during normal business hours to address related questions raised by Seller and Seller's independent public accountants. If Seller and Buyer are unable to resolve all such objections within such 30-day period, the Determination Committee and the Buyer shall use all reasonable efforts to resolve the matters remaining in dispute within fifteen (15) days following the receipt by the Determination Committee of such written notice from the Buyer. If the Determination Committee and the Buyer are able to reach an agreement during such 15-day period, the Closing Stockholders' Equity they agree upon shall be the Final Actual Amount. If the parties are unable to reach an agreement as to the Final Actual Amount within such 15-day period, the matter shall be submitted to a mutually agreed upon "big five" certified public the New York, New York office of Grant Thornton LLP or such other accounting firm as the partxxx xxx xxxxx (the "SETTLEMENT ACCOUNTANTIndependent Expert"). Each of Buyer and Seller represent and warrant that it neither has nor has had, and covenants that it will not engage in, a relationship that could be reasonably interpreted to compromise the Independent Expert's independence. The parties shall instruct the Independent Expert to render a reasoned written decision addressing the issues raised in the Notice of Disagreement and determining whether the Closing Date Net Book Value was determined in accordance with GAAP, consistently applied beginning from May 28, 1998, and the provisions of this agreement, which decision shall be rendered as promptly as practicable but in no event later than thirty (30) for days after its selection. If the Independent Expert determines that the Closing Date Net Book Value as prepared by Seller and submitted to the Independent Expert was not determined in accordance with GAAP and the provisions of this Agreement, it shall determine the Closing Date Net Book Value. The resolution of disputed items and determination by the Independent Expert shall be final and binding. The fees and expenses of the Final Actual Amount Independent Expert shall be shared equally by Seller and Buyer. (d) The Purchase Price shall be an amount equal to be made within 20 days after submission, and the determination of the Settlement Accountant of Closing Date Net Book Value pursuant to this Section 3.2 (the "Final Net Book Value"). If the Final Actual Net Book Value is less than the Closing Payment Amount, Seller shall pay or cause to be paid to Buyer, an amount equal to the amount by which the Final Net Book Value is less than the Closing Payment Amount shall be final and binding upon (together with interest thereon from the Buyer and Closing Date to the Companydate paid at the Prime Rate). The Buyer and If the Company shall contribute equally to all costs (including fees and expenses charged by Final Net Book Value is greater than the Settlement Accountant) in connection with the resolution of any such dispute. The Buyer and the Company agree that the Closing Payment Amount, Buyer shall pay or cause to be entitled paid to receive Seller, an amount equal to the amount by which Final Net Book Value exceeds the Closing Payment Amount (together with interest thereon from the Stockholders' Equity Adjustment Escrow Funds (as defined in Closing Date to the Escrow Agreementdate paid at the Prime Rate), and the Purchase Price shall be adjusted downward by, the positive amount. All payments pursuant to this Section 3.2(d), if any, equal to shall be made by wire transfer of immediately available funds within three (i3) $700,000, less (ii) Business Days after final determination of the Final Actual Amount, (the "STOCKHOLDERS' EQUITY ADJUSTMENT AMOUNT"); provided, however, that the Stockholders' Equity Adjustment Amount amounts to be received by the Buyer pursuant to this Section 1.3 shall not exceed $200,000. The sole source of funds for recovery of any Stockholders' Equity Adjustment Amount shall be the Stockholders' Equity Adjustment Escrow Funds. As used herein, the term "DETERMINATION COMMITTEE" means a committee consisting of the members of the Board of Directors of the Company (the "BOARD") in office immediately prior to the Closing; provided that, in the event any member of the Determination Committee as of the Closing of the Securities Purchase Agreement is removed or resigns or fails to be re-elected as a director of the Company, then the Determination Committee shall consist of such Persons that were members of the Determination Committee as of the Closing of the Securities Purchase Agreement and are, as of the relevant time, directors of the Company; further provided that, in the event no such persons remain as directors of the Company, the Company shall appoint an independent trustee to serve on the Determination Committeeso paid.