|
Item 6.
|
Indemnification of Directors and Officers.
|
Under the Oregon Business Corporation Act (the “Oregon
Act”), our Second Amended and Restated Articles of Incorporation (the “Articles”) and our Second Amended and
Restated Bylaws (the “Bylaws”), we have the ability to indemnify directors and officers against liabilities that they
may incur in such capacities.
The Oregon Act authorizes a corporation to indemnify an individual
made a party to a proceeding because the individual is or was an officer or director against certain liability incurred in the
proceeding if:
(a) the conduct of the individual was in good faith;
(b) the individual reasonably believed that his or
her conduct was in the best interests of the corporation, or at least not opposed to its best interests;
(c) in the case of any criminal proceeding, the individual
had no reasonable cause to believe his or her conduct was unlawful;
(d) in the case of any proceeding by or in the right
of the corporation, the individual was not adjudged liable to the corporation; and
(e) in connection with any proceeding (other than a
proceeding by or in the right of the corporation) charging improper personal benefit to the individual, the individual was not
adjudged liable on the basis that he or she improperly received personal benefit.
Section 6.3 of our Bylaws authorizes us to indemnify an individual
made a party to a proceeding because the individual is or was an officer or director against certain liability incurred in the
proceeding if:
(a) the conduct of the director or officer was in good
faith;
(b) the director or officer reasonably
believed that his or her conduct was in the Company's best interests, or at least not opposed to its best interests;
(c) in the case of any criminal
proceeding, the director or officer had no reasonable cause to believe his or her conduct was unlawful; and
(d) a director's or officer's
conduct was with respect to an employee benefit plan for a purpose the director or officer reasonably believed to be in the interests
of the participants in and beneficiaries of the plan and the conduct satisfies the requirement of (b) above.
The Oregon Act also authorizes a court to order indemnification,
whether or not the above standards of conduct have been met, if the court determines that the officer or director is fairly and
reasonably entitled to indemnification in view of all the relevant circumstances. In addition, the Oregon Act and Section 6.6 of
our Bylaws provides that the indemnification described above is not exclusive of any other rights to which officers or directors
may be entitled under our Articles or Bylaws, or under any agreement, action of our board of directors, vote of shareholders or
otherwise.
As authorized by the Oregon Act, Article VII of our Articles
limits the personal liability of a director to the corporation or its shareholders for monetary damages for conduct as a director,
except that such a provision cannot affect the liability of a director (i) for any breach of the director's duty of loyalty to
the corporation or its shareholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) for any unlawful corporate distribution as defined in the Oregon Act or (iv) for any transaction
from which the director derived an improper personal benefit.
Section 6.2 of our Bylaws authorizes us, upon a determination
that indemnification is permissible in the circumstances, to indemnify all directors and officers against any liability incurred
in a proceeding in which the director or officer is a party, due to his or her status as a director or officer. However, indemnification
in connection with a proceeding by or in the right of the Company is limited to reasonable expenses in connection with the proceeding.
Indemnification of reasonable expenses is permissible in any proceeding in which a director or officer is wholly successful, on
the merits or otherwise, in the defense of the proceeding.
The Oregon Act and Section 6.4 of our Bylaws authorizes us to
pay for or reimburse the reasonable expenses incurred by a director who is a party to a proceeding in advance of final disposition
of the proceeding if (i) the director furnishes the corporation a written affirmation of the director’s good faith belief
that the director has met the standard of conduct by the Oregon Act and (ii) the director furnishes a written undertaking, executed
personally or on the director’s behalf, to repay the advance if the director is ultimately determined not to have met the
standard of conduct.
We have an insurance policy covering our officers and directors
with respect to certain liabilities, including liabilities arising under the Securities Act, or otherwise.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
|
(i)
|
To include any prospectus required by Section 10(a)(3) of the Securities Act;
|
|
|
|
|
(ii)
|
To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement;
|
|
|
|
|
(iii)
|
To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;
|
provided
,
however
, that paragraphs (a)(1)(i) and
(a)(1)(ii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs
is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed
to be a new registration statement related to the securities offered therein, and the offering of such securities at the time shall
be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
[THE NEXT PAGE IS THE SIGNATURE PAGE]