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ARTICLE VIII TERMINATION, AMENDMENT AND WAIVER

Section 8.1 Termination . This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing:

  • (a)

    by mutual written consent of Seller and Buyer;

  • (b)

    by either Seller or Buyer:

  • (i)

    if the Closing shall not have been consummated within one hundred eighty (180) days from the date of this Agreement for

any reason, unless otherwise agreed to in writing by Seller and Buyer; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b)(i) shall not be available to any party whose breach of a representation or warranty or failure to fulfill any covenant or agreement contained in this Agreement has been a principal cause of, or resulted in, the failure of the Closing to be consummated on or by such date; or

(ii) if any Judgment having any of the effects set forth in Section 6.1(a) shall be in effect and shall have become final and nonappealable.

(c) by Buyer, if Seller or Company shall have breached or failed to perform in any material respect any of their representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would give rise to the failure of a condition set forth in Section 6.2(a) or Section 6.2(b) and (ii) is incapable of being cured, or is not cured, by Seller or Company within thirty (30) calendar days following receipt of written notice of such breach or failure to perform from Buyer; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to Buyer at any time that Buyer is in material breach of this Agreement; and

  • (d)

    by Seller:

  • (i)

    if Buyer or Parent shall have breached or failed to perform in any material respect any of its representations, warranties,

covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would give rise to the failure of a condition set forth in Section 6.3(a) or Section 6.3(b) and (ii) is incapable of being cured, or is not cured, by Buyer or Parent within thirty (30) calendar days following receipt of written notice of such breach or failure to perform from Seller provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(d) shall not be available to Seller at any time that Seller is in material breach of this Agreement;

(ii) if the Closing shall not have been consummated within one hundred twenty (120) days from the date of this Agreement for any reason; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(d)(ii) shall not be available if Seller’s breach of a representation or warranty or failure to fulfill any covenant or agreement contained in this Agreement has been a principal cause of, or resulted in, the failure of the Closing to be consummated on or by such date; or

(iii) at any time during the one (1) trading day period after the Determination Date, if the SBA Average Closing Price is less than $18.00 per share on the Determination Date, subject to the following provisions of this Section 8.1(d)(iii). If Seller elects to terminate pursuant to this Section 8.1(d)(iii), it shall promptly provide written notice to Parent of such election. During the three (3) trading day period commencing with its receipt of such notice, Buyer shall have the option, but not the obligation, to increase the Cash

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