Notwithstanding the forgoing, a Washington corporation may not indemnify a director under
RCW 23B.08.510 in connection with (a) a proceeding by or on behalf of the corporation in which the director was adjudged liable to the corporation or (b) any other proceeding charging improper personal benefit to the director, in which the
director was adjudged liable on the basis that personal benefit was improperly received by the director. Additionally, where a proceeding is by or on behalf of the corporation, the indemnification permitted under RCW 23B.08.510 is limited to
reasonable expenses incurred in connection with the proceeding.
RCW 23B.08.520 mandates a Washington corporation to indemnify a director
who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which the director was a party because of being a director of the corporation against reasonable expenses incurred by the director in connection with the
proceeding, unless such indemnification is limited in the corporations articles of incorporation. Our Articles of Incorporation do not contain any such limitation.
RCW 23B.08.540 permits court-ordered indemnification, unless a corporations articles of incorporation provides otherwise. Pursuant to
this provision, in the absence of a contrary provision in a corporations articles of incorporation, a director who is a party to a proceeding may apply for indemnification or advance of expenses to the court conducting the proceeding or to
another court of competent jurisdiction, and such court may order indemnification or advance of expenses if it makes certain determinations.
Under RCW 23B.08.570, unless a corporations articles of incorporation provide otherwise, an officer of a Washington corporation who is
not a director is also entitled to mandatory indemnification under RCW 23B.08.520 and court-ordered indemnification under RCW 23B.08.540, each of which sections are summarized above, to the same extent as a director. Further, a Washington
corporation may indemnify an officer, employee or agent of the corporation under RCW 23B.08.510, to the same extent as a director.
RCW
23B.08.580 permits a corporation to purchase and maintain insurance on behalf of any individual who is or was a director, officer, employee or agent of the corporation, or who while a director, officer, employee or agent of the corporation, is or
was serving at the corporations request as a director, officer, partner, trustee, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against liability asserted against or
incurred by the individual in that capacity or arising from the individuals status as a director, officer, employee or agent, whether or not the corporation would have power to indemnify such individual against the same liability under RCW
23B.08.510 and 23B.08.520.
Our Articles of Incorporation and our Bylaws provide that we will indemnify our directors and officers to the
fullest extent permitted under Washington law.
We have entered into indemnification agreements with each of our current directors and
executive officers, and may enter into indemnification agreements with future directors and executive officers, to provide such directors and officers, additional contractual assurances regarding the scope of the indemnification set forth in our
amended and restated articles of incorporation and our amended and restated bylaws and to provide additional procedural protections.
We
may also purchase and maintain liability insurance on behalf of our directors, officers, employees, and agents. We currently maintain a liability insurance policy pursuant to which our directors and officers may be indemnified against liability
incurred as a result of serving in their capacities as directors and officers, subject to certain exclusions.
Any underwriting agreement
that we may enter into will likely provide for indemnification by the underwriters of us and our officers and directors, and by us of the underwriters, against certain liabilities, including liabilities arising under the Securities Act.
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