Common use of Failure to Exercise Clause in Contracts

Failure to Exercise. Upon the expiration of the Second Participation Period, or in the event that (i) the New Issuance is a Qualified Financing or (ii) no Investor exercises in full the Right of Participation within the First Participation Period, upon the expiration of the First Participation Period, the Company shall have ninety (90) days thereafter to sell the New Securities described in the First Participation Notice with respect to which the Right of Participation hereunder was not exercised at the same or higher price and upon non-price terms not more favorable to the purchasers thereof than specified in the First Participation Notice, provided that the prospective purchaser of such New Securities shall comply with this Agreement and the Restated Articles, as maybe amended from time to time, to the fullest extent. In the event that the Company has not issued and sold such New Securities within such ninety (90) day period, then the Company shall not thereafter issue or sell any New Securities without again first offering such New Securities to Investors pursuant to this Section 3.

Failure to Exercise. Upon the expiration of the Second Participation Period, or the First Participation Period in the event that (i) no Rights Holder exercises the New Issuance is a Qualified Financing or (ii) no Investor exercises in full the Right of Participation Preemptive Rights within the First Participation Period, upon the expiration of the First Participation Period, the Company shall have ninety one hundred and twenty (90120) days thereafter to sell complete the issuance and sale of the New Securities described in the First Participation Notice with respect to which the Right of Participation Preemptive Rights hereunder was were not exercised at the same or higher price and upon non-price terms not more favorable to the purchasers thereof than specified in the First Participation Notice, provided that . The purchaser shall execute and deliver a joinder agreement in substantially the prospective purchaser form attached hereto as Exhibit A to join in and be bound by the terms of such New Securities shall comply with this Agreement and be bound by the Restated Articles, as maybe amended from time to time, to terms of the fullest extentAmended M&AA (if not already a Party). In the event that the Company has not issued and sold such New Securities within such ninety one hundred and twenty (90120) day days period, then the Company shall not thereafter issue or sell any New Securities without again first offering such New Securities to Investors the Rights Holders pursuant to this Section 37.

Failure to Exercise. Upon the expiration of the Second Participation PeriodPeriod and to the extent that not all New Securities have been subscribed for by the Participation Rights Holders, or in the event that (i) the New Issuance is a Qualified Financing or (ii) no Investor Participation Rights Holder exercises in full the Right of Participation within ten (10) Business Days following the First Participation Period, upon the expiration issuance of the First Participation PeriodNotice, the Company shall have ninety one hundred and twenty (90120) days thereafter to sell the New Securities described in the First Participation Notice with respect (the portion to which the Right of Participation hereunder was were not exercised exercised) at the same or higher price and upon non-price terms not materially more favorable to the purchasers thereof than specified in the First Participation Notice, ; provided that each of the prospective purchaser of such New Securities purchasers shall comply with this Agreement and execute a joinder agreement in the Restated Articles, form attached hereto as maybe amended from time to time, to the fullest extent. Exhibit A. In the event that the Company has not issued and sold such New Securities within such ninety one hundred and twenty (90120) day period, then the Company shall not thereafter issue or sell any New Securities without again first offering such New Securities to Investors the Participation Rights Holders pursuant to this Section 35.

Failure to Exercise. Upon the expiration of the Second Participation Period, or in the event that (i) the New Issuance is a Qualified Financing or (ii) no Investor exercises in full the Right of Participation Preemptive Rights within thirty (30) days following the First Participation Period, upon the expiration issuance of the First Participation PeriodNotice, the Company shall have ninety (90) days thereafter to sell complete the sale of the New Securities described in the First Participation Notice with respect to which the Right of Participation Preemptive Rights hereunder was were not exercised at the same or higher price and upon non-price such other terms as are not more favorable to the purchasers thereof than specified in the First Participation Notice, provided that the prospective purchaser purchaser(s) of such New Securities shall comply with be required to enter into this Agreement and the Restated ArticlesRight of First Refusal & Co-Sale Agreement by executing a Deed of Joinder, as maybe amended from time to time, to unless otherwise agreed by the fullest extentInvestors. In the event that the Company has not issued and sold such New Securities within such ninety (90) day period, then the Company shall not thereafter issue or sell any New Securities without again first offering such New Securities to the Investors pursuant to this Section 37 (including, if applicable, to Walmart pursuant to Section 7.4).

Failure to Exercise. Upon the expiration of the Second Participation Period, or in the event that no Rights Holder exercises the Preemptive Rights within thirty (i30) days following the New Issuance is a Qualified Financing or (ii) no Investor exercises in full the Right of Participation within the First Participation Period, upon the expiration receipt of the First Participation PeriodNotice, the Company shall have ninety one hundred and twenty (90120) days thereafter to sell complete the sale of the remaining New Securities described in the First Participation Notice with respect to which the Right of Participation Preemptive Rights hereunder was were not exercised at the same or higher price and upon non-price such other terms as are not more favorable to the purchasers thereof than specified in the First Participation Notice, provided that the prospective purchaser purchaser(s) of such New Securities shall comply with be required to enter into this Agreement and the Restated ArticlesRight of First Refusal & Co-Sale Agreement or an agreement substantially similar thereto, as maybe amended from time to time, to unless otherwise agreed by the fullest extentInvestors. In the event that the Company has not issued and sold such New Securities within such ninety one hundred and twenty (90120) day period, then the Company shall not thereafter issue or sell any New Securities without again first offering such New Securities to Investors the Rights Holder pursuant to this Section 37.

Failure to Exercise. Upon the expiration of the Second Participation Period, or in the event that no Rights Holder exercises the Preemptive Rights within ten (i1 0) Business Days following the New Issuance is a Qualified Financing or (ii) no Investor exercises in full the Right of Participation within the First Participation Period, upon the expiration issuance of the First Participation PeriodNotice, the Company shall have ninety (90) days thereafter to sell complete the sale of the New Securities described in the First Participation Notice with respect to which the Right of Participation Preemptive Rights hereunder was were not exercised at the same or higher price and upon non-price such other terms as are not more favorable to the purchasers thereof than specified in the First Participation Notice, provided that the prospective purchaser purchaser(s) of such New Securities shall comply with be required to enter into this Agreement as a Principal or an agreement substantially similar thereto, unless otherwise agreed by the Preferred Holders Majority. Any attempt to exercise any option or other security granted or issued under the ESOP in contravention of this paragraph shall be null, void and the Restated Articles, as maybe amended from time to time, to the fullest extentwithout effect. In the event that the Company has not issued and sold such New Securities within such ninety (90) day period, then the Company shall not thereafter issue or sell any such New Securities without again first offering such New Securities to Investors the Rights Holders pursuant to this Section 37.

Failure to Exercise. Upon the expiration of the Second Participation Period, or in the event that (i) the New Issuance is a Qualified Financing or (ii) no Investor Participation Rights Holder exercises in full the Right of Participation within fifteen (15) days following the First Participation Period, upon the expiration issuance of the First Participation PeriodNotice, the Company shall have ninety one hundred and twenty (90120) days thereafter to sell the New Securities described in the First Participation Notice (with respect to which the Right of Participation hereunder was were not exercised exercised) at the same or higher price and upon non-price terms not materially more favorable to the purchasers thereof than specified in the First Participation Notice, provided that the prospective purchaser of such New Securities shall comply with this Agreement and the Restated Articles, as maybe amended from time to time, to time，to the fullest extentextent or otherwise approved by the Participation Rights Holder. In the event that the Company has not issued and sold such New Securities within such ninety one hundred and twenty (90120) day period, then the Company shall not thereafter issue or sell any New Securities without again first offering such New Securities to Investors the Participation Rights Holders pursuant to this Section 3.

Failure to Exercise. Upon the expiration of the Second Participation Period, or if any New Securities referred to in the event that (i) the New Issuance is a Qualified Financing Participation Notice are not elected to be purchased or (ii) no Investor exercises obtained as provided in full the Right of Participation within the First Participation Period, upon the expiration of the First Participation PeriodSection 2.4 hereof, the Company shall have ninety one hundred and twenty (90120) days thereafter to sell the New Securities described in the First Participation Notice (with respect to which the Right of Participation hereunder was were not exercised exercised) at the same or higher price and upon non-price terms not materially more favorable to the purchasers thereof than specified in the First Participation Notice, provided that the prospective purchaser of such New Securities shall comply with this Agreement and the Restated Articles, as maybe amended from time to time, to the fullest extentextent or otherwise approved by the Participation Rights Holder. In the event that the Company has not issued and sold such New Securities within such ninety one hundred and twenty (90120) day period, then the Company shall not thereafter issue or sell any New Securities without again first offering such New Securities to Investors the Participation Rights Holders pursuant to this Section 32.

Failure to Exercise. Upon the expiration of the Second Participation Period, or the First Participation Period in the event that (i) no Rights Holder exercises the New Issuance is a Qualified Financing or (ii) no Investor exercises in full the Right of Participation Preemptive Rights within the First Participation Period, upon the expiration of the First Participation Period, the Company shall have ninety one hundred and twenty (90120) days thereafter to sell complete the issuance and sale of the New Securities described in the First Participation Notice with respect to which the Right of Participation Preemptive Rights hereunder was were not fully exercised at the same or higher price and upon non-price terms not more favorable to the purchasers thereof than specified in the First Participation Notice, provided that . The purchaser shall execute and deliver a deed of accession in substantially the prospective purchaser form attached hereto as Exhibit B-1 to join in and be bound by the terms of such New Securities shall comply with this Agreement and the Restated Articles, as maybe amended from time to time, to the fullest extent(if not already a Party). In the event that the Company has not issued and sold such New Securities within such ninety one hundred and twenty (90) day 120)-day period, then the Company shall not thereafter issue or sell any New Securities without again first offering such New Securities to Investors the Rights Holders pursuant to this Section 3.

Failure to Exercise. Upon the expiration of the Second Participation Period, or in the event that (i) the New Issuance is a Qualified Financing or (ii) no Investor exercises in full Participating Rights Holder exercise the Right of Participation within the First Participation Period, upon the expiration of the First Participation Period, the Company shall have ninety one hundred and twenty (90120) days thereafter to sell complete the sale of the New Securities described in the First Participation Notice (with respect to which the Right of Participation and oversubscription right hereunder was were not exercised exercised) at the same or higher price and upon non-price terms not materially more favorable to the purchasers thereof than specified in the First Participation Notice, provided that the prospective purchaser of such New Securities shall comply with this Agreement and the Restated Articles, as maybe amended from time to time, to the fullest extentextent or otherwise approved by the Participation Rights Holders. In the event that the Company has not issued and sold such New Securities within such ninety one hundred and twenty (90120) day days period, then the Company shall not thereafter issue or sell any New Securities without again first offering such New Securities to Investors the Participation Rights Holders pursuant to this Section 3.

Failure to Exercise. Upon If any portion of the New Securities have not been subscribed pursuant to the exercise of the Right of Participation in accordance with Section 3.2 before the expiration of the Second Participation Period, or in the event that (i) the New Issuance is a Qualified Financing or (ii) no Investor Participation Rights Holder exercises in full the Right of Participation within fifteen (15) days following the First Participation Period, upon the expiration issuance of the First Participation PeriodNotice, the Company shall have ninety (90) days thereafter (as may be extended in order to sell obtain required regulatory approvals) to complete the issue of such portion of the New Securities described in the First Participation Notice with respect to which the Right of Participation hereunder was not exercised at the same or a higher price and upon non-price terms not materially more favorable to the purchasers thereof than specified in the First Participation Notice, provided that the prospective purchaser of such New Securities shall comply with this Agreement and the Restated Articles, as maybe amended from time to time, to the fullest extent. In the event that the Company has not issued and sold such New Securities within such ninety (90) day period, then the Company shall not thereafter issue or sell any New Securities without again first offering such New Securities to Investors pursuant to the Participation Rights Holders in accordance with this Section 3.

Failure to Exercise. Upon the expiration of the Second Participation Period, or in In the event that (i) all or any part of the New Issuance is a Qualified Financing Securities offered by the Company for issuance are not taken up by the Participation Rights Holders or (ii) no Investor exercises the Allocation Right Holders in full the Right of Participation within the First Participation Periodaccordance with Section 4.3, then upon the expiration of all the First Participation Periodthen-applicable prescribed time periods set out in Section 4.3, the Company shall have ninety (90) 90 days thereafter to sell the to any Person (subject to Section 6.2), such unsubscribed New Securities described in the First Participation Notice with respect to which the Right of Participation hereunder was not exercised at the same or higher price and upon non-price terms not more favorable to the purchasers purchaser(s) thereof than specified in the First Participation Notice, ; provided that the prospective purchaser of such New Securities purchaser(s) shall comply with this Agreement execute and the Restated Articles, as maybe amended from time to time, deliver to the fullest extentCompany a deed of adherence in the form attached hereto as Exhibit 1 (the “Deed of Adherence”). In the event that the Company has not issued and sold such New Securities within such ninety (90) -day period, then the Company shall not thereafter issue or sell any New Securities without again first offering such New Securities to Investors the Participation Rights Holders pursuant to this Section 3Article IV.