FORFEIT ITS RIGHTS SET FORTH IN THIS
SECTION 4.10 FROM THAT DATE FORWARD; PROVIDED, THAT A HOLDER FORFEITING SUCH
RIGHTS SHALL NONETHELESS BE ENTITLED TO PARTICIPATE UNDER SECTIONS
4.10(A)(4)-(6) IN ANY PENDING UNDERWRITTEN OFFERING TO THE SAME EXTENT THAT SUCH
HOLDER WOULD HAVE BEEN ENTITLED TO IF THE HOLDER HAD NOT WITHDRAWN; AND
PROVIDED, FURTHER, THAT NO SUCH FORFEITURE SHALL TERMINATE A HOLDER'S RIGHTS OR
OBLIGATIONS UNDER SECTION 4.10(F) WITH RESPECT TO ANY PRIOR REGISTRATION OR
PENDING UNDERWRITTEN OFFERING.
"PENDING UNDERWRITTEN OFFERING" MEANS, WITH
RESPECT TO ANY HOLDER FORFEITING ITS RIGHTS PURSUANT TO THIS SECTION 4.10(L),
ANY UNDERWRITTEN OFFERING OF REGISTRABLE SECURITIES IN WHICH SUCH HOLDER HAS
ADVISED THE COMPANY OF ITS INTENT TO REGISTER ITS REGISTRABLE SECURITIES EITHER
PURSUANT TO SECTION 4.10(A)(2) OR 4.10(A)(4) PRIOR TO THE DATE OF SUCH HOLDER'S
FORFEITURE.
4.11
Articles of Amendment.
At or prior to the
Closing, the Company shall file the Series A Preferred Stock Articles of
Amendment for the Series A Preferred Stock and the Series B Preferred Stock
Articles of Amendment for the Series B Preferred Stock with the Office of the
52
Secretary of State of Oregon, and such Series A Preferred Stock Articles of
Amendment or Series B Preferred Stock Articles of Amendment, as the case may be,
shall be in full force and effect.
4.12
[TRANSFER RESTRICTIONS.(20)
(A)
RESTRICTIONS ON TRANSFER.
EXCEPT AS
OTHERWISE PERMITTED IN THIS AGREEMENT OR AS PROVIDED IN THE TERMS OF THE
APPLICABLE SECURITY, THE INVESTOR WILL NOT TRANSFER, SELL, ASSIGN OR OTHERWISE
DISPOSE OF ("TRANSFER") ANY SECURITIES ACQUIRED PURSUANT TO THIS AGREEMENT,
EXCEPT AS FOLLOWS: (I) FOLLOWING THE DATE THAT IS TWELVE MONTHS FROM THE CLOSING
DATE, INVESTOR MAY TRANSFER ANY OR ALL OF THE SECURITIES OWNED BY THE INVESTOR
FROM TIME TO TIME; AND (II) IF THE APPROVAL BY THE COMPANY'S STOCKHOLDERS OF THE
STOCKHOLDER PROPOSALS SHALL NOT HAVE BEEN OBTAINED BY MARCH 1, 2010, THE
INVESTOR MAY TRANSFER 50% OF THE COMMON STOCK, PREFERRED STOCK AND THE WARRANTS
OWNED BY THE INVESTOR DURING THE PERIOD COMMENCING ON SUCH DATE AND ENDING ON
THE DATE THAT IS TWELVE MONTHS AFTER THE CLOSING DATE.
(B)
INVESTOR PERMITTED TRANSFERS.
NOTWITHSTANDING SECTION 4.12(A), THE INVESTOR SHALL BE PERMITTED TO TRANSFER ANY
PORTION OR ALL OF ITS SECURITIES AT ANY TIME UNDER THE FOLLOWING CIRCUMSTANCES:
(1)
TRANSFERS BY THE INVESTOR TO (I) ANY
AFFILIATE OF THE INVESTOR UNDER COMMON CONTROL WITH THE INVESTOR'S ULTIMATE
PARENT, GENERAL PARTNER OR INVESTMENT ADVISOR (ANY SUCH TRANSFEREE SHALL BE
INCLUDED IN THE TERM "INVESTOR") OR (II) ANY LIMITED PARTNER OR SHAREHOLDER OF
THE INVESTOR, BUT IN EACH CASE ONLY IF THE TRANSFEREE AGREES IN WRITING FOR THE
BENEFIT OF THE COMPANY (WITH A COPY THEREOF TO BE FURNISHED TO THE COMPANY) TO
BE BOUND BY THE TERMS OF THIS AGREEMENT;
(2)
TRANSFERS, IF, AT ANY TIME, (I) THE COMPANY
HAS ENTERED INTO A DEFINITIVE AGREEMENT, THE CONSUMMATION OF WHICH WOULD RESULT
IN A CHANGE IN CONTROL OR (II) ANY PERSON SHALL HAVE COMMENCED AND NOT WITHDRAWN
A BONA FIDE