Common use of Failure of Purchase Clause in Contracts

Failure of Purchase. In the event the Investors do not exercise the rights provided in this Section 4 within the ten-business day period or, if so exercised, the Investors are unable to consummate such purchase within the time period specified in Section 4(c), the Company shall thereafter be entitled (during the period of 90 days following the conclusion of the applicable period) to sell or enter into an agreement (pursuant to which the sale of the New Securities covered thereby shall be consummated, if at all, within 90 days from the date of said agreement) to sell the New Securities not elected to be purchased pursuant to this Section 4, at a price and upon terms, taken together in the aggregate, no more favorable to the purchasers of such securities than were specified in the Company’s notice to the Investors. In the event the Company has not sold the New Securities or entered into an agreement to sell the New Securities within such 90-day period (or sold and issued New Securities in accordance with the foregoing within 90 days from the date of said agreement), the Company shall not thereafter offer, issue or sell such New Securities without first offering such securities to the Investor in the manner provided above.

Failure of Purchase. In the event the Investors do not Investor fails to exercise the its preemptive purchase rights provided in this Section 4 3.5 within the ten-business day applicable five Business Day period or, if so exercised, the Investors are unable to Investor does not consummate such purchase within the time period specified in Section 4(c)applicable period, the Company shall thereafter be entitled (during the period of 90 120 days following the conclusion of the applicable period) period to sell or enter into an agreement (pursuant to which the sale of the New Securities Stock covered thereby shall be consummated, if at all, within 90 60 days from the date of said such agreement) to sell the New Securities Stock not elected to be purchased pursuant to this Section 4, 3.5 at a price and upon terms, taken together which is at a discount (expressed as a percentage) to the market price of the shares of the Company that does not exceed by more than 5% the discount (expressed as a percentage) to the market price offered in the aggregate, no more favorable Qualified Equity Offering giving rise to the purchasers of such securities than were specified in the Company’s notice to the Investorspreemptive purchase rights hereunder (if such a discount was so offered). In the event the Company has not sold the New Securities Stock or entered into an agreement to sell the New Securities Stock within such 90-said 120 day period (or sold and issued New Securities in accordance with the foregoing within 90 days from the date of said agreement)period, the Company shall not thereafter offer, issue or sell such New Securities Stock without first offering such securities to the Investor in the manner provided abovein this Section 3.5.