Common use of Failure of Purchase Clause in Contracts

Failure of Purchase. In the event the Investor fails to exercise its preemptive purchase rights provided in this Section 3.5 within the applicable five Business Day period or, if so exercised, the Investor does not consummate such purchase within the applicable period, the Company shall thereafter be entitled during the period of 120 days following the conclusion of the applicable period to sell or enter into an agreement (pursuant to which the sale of New Stock covered thereby shall be consummated, if at all, within 60 days from the date of such agreement) to sell the New Stock not purchased pursuant to this Section 3.5 at a price 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 Qualified Equity Offering giving rise to such preemptive purchase rights hereunder (if such a discount was so offered). In the event the Company has not sold the New Stock or entered into an agreement to sell the New Stock within said 120 day period, the Company shall not thereafter offer, issue or sell such New Stock without first offering such securities to Investor in the manner provided in this Section 3.5.

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