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Consideration by an amount equal to: (x) the difference between $18.00 and the SBA Average Closing Price, multiplied by (y) the Stock Consideration. If Buyer elects to increase the Cash Consideration, it shall promptly, but in any case within the three-day period after receipt of such notice, notify Seller of its intent to increase the Cash Consideration, whereupon such election shall be binding on Buyer, Seller’s right to terminate the Agreement pursuant to this Section 8.1(d)(iii) shall be terminated and this Agreement shall remain in effect in accordance with its terms (except for the adjustments to the Cash Consideration). If Seller has elected to terminate this Agreement pursuant to this Section 8.1(d)(iii) and Buyer has not elected to increase the Cash Consideration, then Seller shall reimburse Buyer for all reasonable costs and expenses associated with this Agreement, for an amount up to $1,000,000, and the transactions contemplated hereby and the Agreement shall be null and void, subject to Section 8.2 below.

Section 8.2 Effect of Termination . If this Agreement is terminated pursuant to Section 8.1, the provisions of Section 5.2, Section 5.8, Article VIII and Article IX will survive any such termination and remain in full force and effect. In addition, the respective parties shall have and may pursue any and all rights and remedies available to them at law or in equity.

Section 8.3 Waiver . At any time prior to the Closing, any party hereto may (i) extend the time for the performance of any of the covenants, obligations or other acts of any other party hereto or (ii) waive any inaccuracy of any representations or warranties or compliance with any of the agreements, covenants or conditions of any other party or with any conditions to its own obligations. Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party by its duly authorized officer. The failure of any party to this Agreement to assert any of its rights under this Agreement or otherwise shall not constitute a waiver of such rights. The waiver of any such right with respect to particular facts and other circumstances shall not be deemed a waiver with respect to any other facts and circumstances and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time.


Section 9.1 No Third Party Beneficiaries . Other than the provisions of Section 5.7 and Sections 5.12 and 5.13 (solely with respect to transferees or distributees pursuant to Section 2.5(c)), nothing in this Agreement shall confer any rights or remedies upon any person other than the parties hereto.

Section 9.2 Entire Agreement . This Agreement, together with the Confidentiality Agreement, constitutes the entire Agreement among the parties with respect to the subject matter hereof and supersedes any prior understandings, agreements or representations by or among the parties, written or oral, with respect to the subject matter hereof. No amendment, modification or alteration of the terms or provisions of this Agreement or the Confidentiality Agreement shall be binding unless the same shall be in writing and duly executed by the parties hereto.


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