Common use of Closing; Payment of Purchase Price Clause in Contracts

Closing; Payment of Purchase Price. The sale of the Shares to be purchased by the Purchasers shall take place at the offices of X'Xxxxxxxx Graev & Karabell, LLP at 10:00 a.m., New York City time, at a closing (the "Closing") on the later of (a) the first Business Day after the conditions to closing set forth in Section 4 (other than those to be satisfied at the Closing, which shall be satisfied or waived at the Closing) have been satisfied or waived by the party entitled to waive such condition) or (b) the first to occur of (i) the 163rd day after the date of this Agreement, (ii) the 10/th/ Business Day after the Company gives notice to Purchasers that the Company's Debt to Total Capitalization Ratio first equals or exceeds 0.6 , and (iii) the 10/th/ Business Day after the Company gives notice to Purchasers that the volume-weighted average of the closing price of the Company's Common Stock on the New York Stock Exchange for the preceding 20 trading days shall have exceeded $30.00 per share, or on such other Business Day thereafter or prior to such date as may be agreed upon by the Company and the Purchasers. The Company's Debt to Total Capitalization Ratio shall mean an amount determined by dividing (A) the sum of the Company's and its subsidiaries' funded debt, consisting of notes, capital leases, debentures (other than those issued to subsidiaries) and bank debt, less cash and cash equivalents, by (B) the total capitalization (funded debt, preferred stock of a subsidiary trust and stockholders' equity, less cash and cash equivalents) of the Company and its subsidiaries, all as set forth on a month end consolidated balance sheet of the Company prepared in accordance with generally accepted accounting principles. The names in which the Company will register the shares of the Stock to be purchased at the Closing are as set forth in Exhibit 1. At the Closing, the Company will deliver to the Purchasers the Shares to be purchased by the Purchasers in the form of such number of certificates representing such Shares as the Purchasers may reasonably request, dated the date of the Closing and registered in the names aforesaid, and the Purchasers jointly and severally shall deliver to the Company or its order immediately available funds in the amount of the purchase price for such Shares. If at the Closing the Company shall fail to tender to the Purchasers the Shares to be purchased by the Purchasers, as provided above in this Section 3, or any of the conditions specified in Section 4 shall not have been fulfilled to the Purchasers' reasonable satisfaction, the Purchasers shall, at their election, be relieved of all further obligations under this Agreement, without thereby waiving any other rights the Purchasers may have by reason of such failure or such nonfulfillment. If at the Closing, Purchasers shall fail to tender to the Company the purchase price for the Shares, as provided above in this Section 3, other than on account of any of the conditions specified in section 4 not having been fulfilled to the Purchasers' satisfaction or on account of the breach by the Company of any of its obligations under this Agreement, the Company shall, at its election, be relieved of all further obligations under this Agreement, without thereby waiving any other rights the Company may have by reason of such failure.

Closing; Payment of Purchase Price. The sale (a) Unless this Agreement shall have been terminated and the transactions herein contemplated shall have been abandoned pursuant to Section 11.01, and subject to the satisfaction or waiver (where applicable) of the Shares to be purchased by conditions set forth in Articles VII and VIII, the Purchasers shall closing of the Merger (the "Closing") will take place at the offices of X'Xxxxxxxx Graev Milbank, Tweed, Xxxxxx & KarabellXxXxxx LLP, LLP 1 Chase Manhattan Plaza, New York, New York, at 10:00 a.m., New York City local time, on the Closing Date, or at such other place and time as is agreed to in writing by Purchaser and the Company. (b) At the Closing, a closing certificate of merger (the "ClosingCertificate of Merger") shall be duly prepared and executed by the Surviving Corporation and thereafter delivered to the Secretary of State of the State of Delaware (the "Secretary of State") for filing, as provided in Section 251 of the DGCL, as soon as practicable on the later Closing Date. The Merger shall become effective at the time of the filing of the Certificate of Merger with the Secretary of State (the date and time of such filing being referred to herein as the "Effective Time"). (c) At the Closing, Purchaser will pay the Purchase Price by delivering a combination of (x) cash in an aggregate amount of $325,000,000 (the "Cash Amount") payable in immediately available United States funds wired to the account of the applicable recipient provided to Purchaser prior to the Closing Date, and (y) 8,868,393 shares of Purchaser Common Stock (if and as adjusted in the manner provided below, the "Closing Shares") by delivery of certificates representing the Closing Shares issued in the names provided to Purchaser by or on behalf of the Stockholders' Agent prior to the Closing Date, to be allocated among the applicable recipients in the following manner: (i) to the Company, cash in an amount necessary to enable the Company to pay and satisfy the Transaction Expenses and Change of Control Payments in the manner contemplated by Section 2.05; (ii) to the Escrow Agent under the Escrow Agreement substantially in the form of Exhibit A hereto to be entered into on the Closing Date by Stockholders' Agent (on behalf of the Contributing Stockholders), Purchaser and the Escrow Agent (the "Escrow Agreement"), a number of shares (ignoring fractions) of Purchaser Common Stock having an aggregate Value Per Share equal to ten percent (10%) of the Contributing Stockholder Purchase Price for deposit with the Escrow Agent under the Escrow Agreement (the "Escrow Shares"); (iii) to Stockholders' Agent on behalf of each Contributing Stockholder who owns shares of Company Preferred Stock, (A) a cash amount equal to the result obtained by multiplying the Preferred Stock Dividend by the number of shares of Preferred Stock owned by such Contributing Stockholder and (B) an amount equal to the result obtained by multiplying the Company Preferred Stock Per Share Purchase Price by the number of shares of Company Preferred Stock owned by such Contributing Stockholder (the "Preferred Stock Payment"), such Preferred Stock Payment to be payable in a combination of (x) a number of shares of Purchaser Common Stock equal to the result obtained by multiplying the total number of Closing Shares by a fraction, the numerator of which is the number of shares of Company Common Stock issuable upon conversion of all shares of Company Preferred Stock owned by such Contributing Stockholder and the denominator of which is the total number of Outstanding Contributing Stockholder Company Shares, less the number of Escrow Shares (ignoring fractions) allocated to such Contributing Stockholder in Annex I hereto, and (y) cash in an amount equal to the amount by which the Preferred Stock Payment exceeds the result obtained by multiplying the number of shares of Purchaser Common Stock calculated in accordance with the preceding clause (x) (before deducting the Escrow Shares allocated to such Contributing Stockholder) by the Closing Value Per Share; (iv) to Stockholders' Agent on behalf of each holder of Company Options (subject to deduction for any applicable withholding Tax), whether or not then exercisable, a cash amount equal to the result obtained by multiplying the Option Consideration by the number of Company Options held by such optionholder; (v) to Stockholders' Agent on behalf of each Contributing Stockholder who owns shares of Company Common Stock, an amount equal to the result obtained by multiplying the Company Common Stock Per Share Purchase Price by the number of shares of Company Common Stock owned by such Contributing Stockholder (the "Common Stock Payment"), such Common Stock Payment to be payable in a combination of (A) a number of shares of Purchaser Common Stock equal to the result obtained by multiplying the total number of Closing Shares by a fraction, the numerator of which is the number of shares of Company Common Stock owned by such Contributing Stockholder and the denominator of which is the total number of Outstanding Contributing Stockholder Company Shares, less the number of Escrow Shares (ignoring fractions) allocated to such Contributing Stockholder in Annex I hereto, and (B) cash in an amount equal to the amount by which the Common Stock Payment exceeds the result obtained by multiplying the number of shares of Purchaser Common Stock calculated in accordance with the preceding clause (A) (before deducting the Escrow Shares allocated to such Contributing Stockholder) by the Closing Value Per Share; and (vi) to Stockholders' Agent on behalf of (A) each owner of shares of Company Preferred Stock who is not a Contributing Stockholder, (x) a cash amount equal to the result obtained by multiplying the Preferred Stock Dividend by the number of shares of Preferred stock owned by such stockholder and (y) a cash amount equal to the result obtained by multiplying the Company Preferred stock Per Share Purchase Price by the number of shares of Company Preferred Stock owned by such stockholder; and (B) each owner of shares of Company Common Stock who is not a Contributing Stockholder, cash in an amount equal to the result obtained by multiplying the Company Common Stock Per Share Purchase Price by the number of shares of Company Common Stock owned by such stockholder; provided however, that if, at the time of Closing, the closing of the transactions contemplated by the Retavase® Purchase Agreement shall not have occurred and the Retavase® Purchase Agreement shall not be in full force and effect, or either party shall be in breach thereof (other than breaches (a) caused by Purchaser's failure to provide the first Business Day after financing described in that certain Commitment Letter dated January 31, 2005 from Purchaser to the conditions to closing set forth Company in Section 4 (other than those to be satisfied at the Closing, which shall be satisfied or waived at the Closing) have been satisfied or waived by the party entitled to waive such condition) accordance with its terms or (b) the first to occur of that Purchaser determines in its reasonable discretion (i) can be cured without other than nominal expense to Purchaser and (ii) will not unreasonably prevent or impede the 163rd day after closing of the date transaction contemplated by the Retavase® Purchase Agreement), the Cash Amount shall be reduced to $300,000,000. Notwithstanding the foregoing, if (I) the Closing Value Per Share is less than $17.7597, the number of Closing Shares shall be increased to the extent necessary so that the result obtained by multiplying the number of Closing Shares (as so increased) by the Closing Value Per Share is equal to $157,500,000 (provided that such number shall not be increased to more than a maximum of 9,853,770 shares of Purchaser Common Stock), or (II) the Closing Value Per Share is greater than $21.7063, the number of Closing Shares shall be decreased to the extent necessary so that the result obtained by multiplying the number of Closing Shares (as so decreased) by the Closing Value Per Share is equal to $192,500,000 (provided that such number shall not be decreased to less than a minimum of 8,062,175 shares of Purchaser Common Stock. If Purchaser determines in its discretion not to issue any additional shares that may otherwise be issuable under the foregoing provision, Purchaser may instead increase the total cash compensation payable under this Section 2.01(c) by an amount equal to the number of additional shares otherwise issuable under this Section 2.01 multiplied by the Closing Value Per Share. To effect this provision, Purcshaser must give notice to the Stockholders' Agent at least two (2) days prior to the Closing electing to make such change including the amount of the adjusted cash purchase price and the calculation thereof. In such case, appropriate adjustments will be made, if any, by the parties to the provisions of this Section 2.01. Notwithstanding any provisions of this Agreement to the contrary, (x) to the extent that Purchaser is obligated hereunder to deliver any cash to the Company for the payment of any Transaction Expenses or Change in Control Payments, at the Company's election, Purchaser shall deliver such cash payments directly, in the case of Transaction Expenses, to recipients designated on the certificate delivered pursuant to Section 2.05 and, in the case of all or a portion of Change in Control Payments, to one single agent that has been engaged by the Company to distribute such cash payments in accordance with this Agreement; (y) to the extent that Purchaser is obligated to deliver any cash payments to the Stockholders' Agent under Sections 2.01(c)(iii), (iv), (v) or (vi) of this Agreement, (ii) at the 10/th/ Business Day after the Company gives notice Stockholders' Agent's election, Purchaser shall deliver all such cash payments to Purchasers no more than five agents that the Company's Debt to Total Capitalization Ratio first equals or exceeds 0.6 , and (iii) the 10/th/ Business Day after the Company gives notice to Purchasers that the volume-weighted average of the closing price of the Company's Common Stock on the New York Stock Exchange for the preceding 20 trading days shall have exceeded $30.00 per share, or on such other Business Day thereafter or prior to such date as may be agreed upon been engaged by the Company and the Purchasers. The Company's Debt Stockholders' Agent to Total Capitalization Ratio shall mean an amount determined by dividing (A) the sum of the Company's and its subsidiaries' funded debt, consisting of notes, capital leases, debentures (other than those issued to subsidiaries) and bank debt, less allocate or distribute such cash and cash equivalents, by (B) the total capitalization (funded debt, preferred stock of a subsidiary trust and stockholders' equity, less cash and cash equivalents) of the Company and its subsidiaries, all as set forth on a month end consolidated balance sheet of the Company prepared payments in accordance with generally accepted accounting principles. The names in this Agreement, and one of which agents must be the Company will register the shares of the Stock to be purchased at the Closing are same agent as set forth in Exhibit 1. At the Closing, the Company will deliver to the Purchasers the Shares to be purchased by the Purchasers in the form of such number of certificates representing such Shares as the Purchasers may reasonably request, dated the date of the Closing and registered in the names aforesaid, and the Purchasers jointly and severally shall deliver to the Company or its order immediately available funds in the amount of the purchase price for such Shares. If at the Closing the Company shall fail to tender to the Purchasers the Shares to be purchased by the Purchasers, as provided subsection (x) above in this Section 3, or any of the conditions specified in Section 4 shall not have been fulfilled to the Purchasers' reasonable satisfaction, the Purchasers shall, at their election, be relieved of all further obligations under this Agreement, without thereby waiving any other rights the Purchasers may have by reason of such failure or such nonfulfillment. If at the Closing, Purchasers shall fail to tender to the Company the purchase price for the Shares, as provided above in this Section 3, other than on account of any of the conditions specified in section 4 not having been fulfilled to the Purchasers' satisfaction or on account of the breach if an election is made by the Company under subsection (x) above; and (z) to the extent that Purchaser is obligated to deliver any shares of any of its obligations Purchaser Common Stock to the Stockholders' Agent under this Agreement, the Company shallSections 2.01(c)(iii) or (v), at its the Stockholders' Agent's election, be relieved of all further obligations under this Agreement, without thereby waiving any other rights Purchaser shall deliver such shares directly to the Company may have by reason of individuals or entities entitled to such failureshares.

Closing; Payment of Purchase Price. The closing (the "Closing") of the ---------------------------------- purchase and sale of the Shares to be purchased by the Purchasers hereunder shall take place at the offices of X'Xxxxxxxx Graev Xxxxx, Xxxxxxx & KarabellXxxxxxxxx, LLP LLP, 000 Xxxx Xxxxxx, Xxxx Xxxxxx Tower in Boston, Massachusetts as soon as possible, but in no event later than 3 business days after satisfaction of the conditions set forth in Article X, or at 10:00 a.m.such other time or place as Buyer and Sellers may agree. At the Closing, (a) Buyer shall make wire transfers to an account or accounts designated by Sellers in the respective amounts and to the Sellers as set forth on Schedule -------- 2.01, New York City time, at a closing in the aggregate amount ---- of $4,433,181 of the Cash Consideration (the "ClosingClosing Date Cash Consideration") minus transaction expenses in excess of U.S. $100,000 and other expenses ----- incurred by the Company and Sellers and accrued on the later books of the Company as of Closing Date and not required to be paid at Closing by the Company pursuant to paragraphs (ae)(i), (e)(ii) and (e)(iii) of this Section 2.02. (b) Buyer shall deliver the first Business Day after Share Consideration to each of the conditions Sellers as set forth on Schedule 2.01. ------------- (c) Buyer shall deliver to closing the Escrow Agent $3,925,360 in cash (the "Escrow Amount"), by certified or official bank check or by wire transfer, to be held by the Escrow Agent in accordance with the Escrow Agreement. Of the Escrow Amount, $3,087,354 shall be delivered on behalf of the Sellers, $441,228 shall be delivered by certain holders of options and other rights to purchase capital stock of the Company (the "Optionholders") and $396,778 shall be delivered on behalf of Xxxx Xxxxxx related to the payment set forth in Section 4 2.02(e)(iii) (other than those the "Bonus Holder"). The Escrow Amount shall serve as security for breaches of representations, warranties and covenants and any indemnification claims by Buyer under Article XI hereof. In accordance with the Escrow Agreement, (A) so long as any portion of the Escrow Amount remains held pursuant to be satisfied at the ClosingEscrow Agreement, the Escrow Agent shall pay to Buyer the portion of the Escrow Amount equal to the amount of indemnification claims by Buyer under Section 11.02(a) of Article XI, if any, which shall be satisfied or waived at the Closing) have been satisfied settled or waived by finally determined between Buyer, Sellers, Optionholders and Bonus Holder, as the party entitled case may be; (B) on September 30, 1998, the Escrow Agent shall pay to waive such condition) or (b) Sellers, Optionholders and Bonus Holder an aggregate amount equal to $1,925,360 of the first Escrow Amount held pursuant to occur of the Escrow Agreement minus (i) an amount equal to ----- the 163rd day after indemnification claims of Buyer under Section 11.02(a) of Article XI, if any, that have been settled or finally determined between Buyer, Sellers, Optionholders and Bonus Holder, as the date of this Agreementcase may be, on or before August 31, 1998 and (ii) an amount equal to the 10/th/ Business Day after the Company gives amount of any unresolved indemnification claims by Buyer set forth in Buyer's notice pursuant to Purchasers that the Company's Debt to Total Capitalization Ratio first equals or exceeds 0.6 , and (iii) the 10/th/ Business Day after the Company gives notice to Purchasers that the volume-weighted average of the closing price of the Company's Common Stock Article XI given on the New York Stock Exchange for the preceding 20 trading days shall have exceeded $30.00 per share, or on such other Business Day thereafter or prior to August 31, 1998. Such retained portion shall be retained only until the claim for indemnification is settled or finally determined between Buyer, Sellers, Optionholders and Bonus Holder, as the case may be; (C) on September 30, 1999, the Escrow Agent shall pay to Sellers, Optionholders and Bonus Holder the portion of the Escrow Amount, if any, remaining held pursuant to the Escrow Agreement; provided that the Escrow Agent -------- shall retain and not pay to Sellers, Optionholders and Bonus Holder the portion of the Escrow Amount, if any, equal to the amount of any unresolved indemnification claims by Buyer (it being understood that the portion to be retained shall be the amount set forth in Buyer's notice pursuant to Article XI and any other portion shall be released), and such date retained portion shall be retained only until the claim for indemnification is settled or finally determined between Buyer, Sellers, Optionholders and Bonus Holder, as the case may be agreed upon be. (d) Buyer shall pay by check or by wire transfer up to $100,000 U.S. Dollars related to transaction expenses incurred by the Company and the Purchasers. The Company's Debt to Total Capitalization Ratio shall mean an amount determined by dividing (A) the sum of the Company's and its subsidiaries' funded debtSellers, consisting of notesincluding reasonable attorneys fees, capital leases, debentures (other than those issued to subsidiaries) and bank debt, less cash and cash equivalents, by (B) the total capitalization (funded debt, preferred stock of a subsidiary trust and stockholders' equity, less cash and cash equivalents) of the Company and its subsidiaries, all as set forth on a month end consolidated balance sheet statement submitted by the Company to Buyer identifying in reasonable detail the actual transaction expenses incurred. The Buyer may, in its sole and absolute discretion, elect to pay for transaction expenses exceeding $100,000 U.S. Dollars. Notwithstanding the foregoing, Buyer shall not pay for any fees or commissions incurred by the Company or any Seller for the services of any investment banker, broker, finder or agent in connection with the transactions set forth in this Agreement, including, but not limited to, any such fees or commissions of Xxxxx Xxxxxxx Inc. (e) Buyer shall fund and then cause the Company to pay by check or wire transfer the following: (i) $425,000 U.S. Dollars to Xxxxx Xxxxxxx Inc. as payment for investment banking services rendered by Xxxxx Xxxxxxx Inc. to the Company in connection with the consummation of the transactions contemplated by this Agreement; (ii) $2,137,113 U.S. Dollars to the Employee Settlement Paying Agent in respect of certain settlement and release agreements between the Company prepared and certain of the employees of the Company, which shall be paid by the Employee Settlement Paying Agent in accordance with generally accepted accounting principles. The names such agreements subject to applicable withholding; and (iii) $1,068,222 U.S. Dollars to Xxxx Xxxxxx in which the Company will register the shares respect of certain contractual obligations of the Stock to be purchased at the Closing are as set forth in Exhibit 1. At the Closing, the Company will deliver to the Purchasers the Shares to be purchased by the Purchasers in the form of such number of certificates representing such Shares as the Purchasers may reasonably request, dated the date of the Closing and registered in the names aforesaid, and the Purchasers jointly and severally Company. (f) Sellers shall deliver to the Company or its order immediately available funds in the amount of the purchase price Buyer certificates for such Shares. If at the Closing the Company shall fail to tender to the Purchasers the Shares to be purchased duly endorsed or accompanied by stock powers duly endorsed in blank, with any required transfer stamps affixed thereto. (g) The appropriate parties shall execute and deliver the Purchasers, as provided above in this Section 3, or any of the conditions specified in Section 4 shall not have been fulfilled to the Purchasers' reasonable satisfaction, the Purchasers shall, at their election, be relieved of all further obligations under this Agreement, without thereby waiving any other rights the Purchasers may have by reason of such failure or such nonfulfillment. If at the Closing, Purchasers shall fail to tender to the Company the purchase price for the Shares, as provided above in this Section 3, other than on account of any of the conditions specified in section 4 not having been fulfilled to the Purchasers' satisfaction or on account of the breach by the Company of any of its obligations under this Agreement, the Company shall, at its election, be relieved of all further obligations under this Agreement, without thereby waiving any other rights the Company may have by reason of such failureAncillary Agreements.

Closing; Payment of Purchase Price. The closing (the "CLOSING") of the purchase and sale of the Shares to be purchased by Purchased Assets and the Purchasers assumption of the Assumed Liabilities shall take place at the offices of X'Xxxxxxxx Graev O'Suxxxxxx Xxxev & Karabell, LLP at LLP, 30 Rxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx, xx 10:00 a.m.A.M., New York City local time, at a closing (the "Closing") on the as soon as possible, but in no event later than five business days after satisfaction or waiver of (a) the first Business Day after the conditions to closing set forth in Section 4 (other than those to be satisfied at the Closing, which shall be satisfied or waived at the Closing) have been satisfied or waived by the party entitled to waive such condition) or (b) the first to occur of (i) the 163rd day after the date of this Agreement, (ii) the 10/th/ Business Day after the Company gives notice to Purchasers that the Company's Debt to Total Capitalization Ratio first equals or exceeds 0.6 , and (iii) the 10/th/ Business Day after the Company gives notice to Purchasers that the volume-weighted average of the closing price of the Company's Common Stock on the New York Stock Exchange for the preceding 20 trading days shall have exceeded $30.00 per shareArticle X, or on such other Business Day thereafter or prior to such date as may be mutually agreed upon by the Company parties hereto (the "CLOSING DATE"). Seller and the Purchasers. The Company's Debt to Total Capitalization Ratio shall mean an amount determined by dividing (A) the sum Buyer specifically acknowledge that time is of the Companyessence because Seller's intention to exit the Business is or will become known to its employees, customers, suppliers and its subsidiaries' funded debt, consisting of notes, capital leases, debentures (other than those issued to subsidiaries) and bank debt, less cash and cash equivalents, by (B) the total capitalization (funded debt, preferred stock of a subsidiary trust and stockholders' equity, less cash and cash equivalents) of the Company and its subsidiaries, all as set forth on a month end consolidated balance sheet of the Company prepared in accordance others having dealings with generally accepted accounting principles. The names in which the Company will register the shares of the Stock to be purchased at the Closing are as set forth in Exhibit 1Seller. At the Closing, the Company will deliver to the Purchasers the Shares to be purchased by the Purchasers in the form of such number of certificates representing such Shares as the Purchasers may reasonably request, dated the date of the Closing and registered in the names aforesaid, and the Purchasers jointly and severally : (a) Buyer shall deliver to Seller the Company or its order Purchase Price in immediately available funds by wire transfer to such bank account as Seller shall designate in writing to Buyer at least two (2) business days prior to the Closing Date (or if not so designated, then by certified or official bank check payable in immediately available funds to the order of Seller in such amount). (b) Seller and Buyer shall enter into an Assignment and Assumption Agreement, and, subject to the provisions hereof, Seller shall deliver to Buyer such bills of sale, endorsements, consents, assignments and other good and sufficient instruments of conveyance and assignment as the parties and their respective counsel shall deem reasonably necessary to vest in Buyer all right, title and interest in, to and under the Purchased Assets. The patents and trademarks included in the amount of Purchased Assets shall be transferred to Buyer by a general assignment delivered at Closing and by individual assignments delivered after Closing pursuant to Section 7.2(b). (c) Seller and Buyer shall enter into the purchase price for such Shares. If at the Closing the Company Transition Services Agreement. (d) Seller and Buyer shall fail to tender to the Purchasers the Shares to be purchased by the Purchasers, as provided above deliver or satisfy all other items or obligations set forth in this Section 3, or any of the conditions specified in Section 4 shall not have been fulfilled to the Purchasers' reasonable satisfaction, the Purchasers shall, at their election, be relieved of all further obligations under this Agreement, without thereby waiving any other rights the Purchasers may have by reason of such failure or such nonfulfillment. If at the Closing, Purchasers shall fail to tender to the Company the purchase price for the Shares, as provided above in this Section 3, other than on account of any of the conditions specified in section 4 not having been fulfilled to the Purchasers' satisfaction or on account of the breach by the Company of any of its obligations under this Agreement, the Company shall, at its election, be relieved of all further obligations under this Agreement, without thereby waiving any other rights the Company may have by reason of such failure.Article X.