Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated
filer or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule
12b-2
of the Exchange Act.
(Check one):
PART II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Company with the Commission are incorporated by reference into this Registration Statement:
(a) The Companys annual report on Form
10-K
for the fiscal year ended August 31, 2017,
filed with the Commission on October 27, 2017.
(b) The Companys quarterly report on Form
10-Q
for the quarter ended November 30, 2017, filed with the Commission on January 5, 2018.
(c) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the
Companys annual report referred to in (a) above.
(d) The description of the Companys common stock set forth in the
Companys Registration Statement on Form
S-1,
as declared effective on July 11, 1994 (Registration
No. 33-78852),
and any amendment or report filed for
the purpose of updating such description.
In addition, all reports and other documents subsequently filed by the Company pursuant to
Sections 13(a) and (c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of the filing of such reports and documents.
Item 5. Interests of Named Experts and Counsel.
A partner at Tonkon Torp LLP, legal counsel to the Company, is the Secretary of the Company.
Item 6. Indemnification of Directors and Officers.
The Oregon Business Corporation Act (the OBCA) authorizes that an individual made a party to a proceeding because the individual is
or was an officer or director may be indemnified 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.
The OBCA also authorizes a court to order indemnification, whether or not the above standards of conduct have been met, if the court
determines that the director or officer is fairly and reasonably entitled to indemnification in view of all the relevant circumstances. The Companys Articles of Incorporation permit, and the Companys Bylaws require, the Company to
indemnify directors and officers to the fullest extent permissible by law.
The OBCA further provides that the articles of incorporation
of a corporation may provide that no director shall be personally liable to a corporation or its shareholders for monetary damages for conduct as a director, except that such provision does not eliminate the liability of a director (i) for any
breach of the directors 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 the law; (iii) for any unlawful
distribution as defined under the OBCA; or (iv) for any transaction from which the director derived an improper personal benefit. The Companys Articles of Incorporation provide that, to the fullest extent permissible by law, no director
shall be personally liable to the Company or its shareholders for monetary damages.
In addition to the indemnification and exculpation
provided by the Companys Articles of Incorporation and Bylaws, the Company has entered into indemnification agreements with its directors and certain officers. The indemnification agreements provide that no director or officer shall have a
monetary liability of any kind in respect of the directors or officers errors or omissions in serving the Company or any of its subsidiaries, shareholders or related enterprises, so long as such errors are not shown by clear and
convincing evidence to have involved: (i) any breach of the duty of loyalty to such entities; (ii) any act or omission not in good faith or which involved intentional misconduct or a knowing violation of the law; (iii) any transaction
from which the director or officer derived an improper personal benefit; (iv) any unlawful corporate distribution; or (v) profits made from the purchase and sale by the director or officer of securities of the Company within the meaning of
Section 16(b) of the Securities Exchange Act of 1934. Furthermore, regardless of the theory of liability asserted and to the fullest extent permitted by law, no director or officer shall have personal liability for (a) punitive, exemplary
or consequential damages; (b) treble or other damages computed based upon any multiple of damages actually and directly proved to have been sustained; (c) fees of attorneys, accountants, expert witnesses or professional consultants; or
(d) civil fines or penalties of any kind or nature whatsoever.
The indemnification agreements also require the Company to indemnify
any director or officer who is a party to, or is threatened to be made a party to, any proceeding, against all expenses, judgments, fines and amounts paid in settlement, actually and reasonably incurred by the director or officer in connection with
such proceeding, if the director or officer: (i) acted in good faith and in a manner the director or officer reasonably believed was in or not opposed to the best interests of the Company; and (ii) with respect to any criminal proceeding,
the director or officer also had no reasonable cause to believe that his or her conduct was unlawful. In any proceeding charging a director or officer with improper personal benefit to the director or officer, the Company will indemnify the director
or officer if the appropriate court determines that the director or officer is fairly and reasonably entitled to indemnification.
The
indemnification agreements also provide indemnity to a director or officer in proceedings brought by or in the right of the Company, as long as the director or officer acted in good faith and in a
manner which he or she reasonably believed to be in, or not opposed to, the best interests of the Company. If a director or officer is adjudged liable to the Company, he or she will not be
indemnified unless the appropriate court determines that the director or officer is fairly and reasonably entitled to indemnification.
The Company maintains directors and officers liability insurance under which the Companys directors and officers are insured
against claims for errors, neglect, breach of duty and other matters.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibit Index immediately preceding the signatures to this Registration Statement is incorporated herein by reference.
Item 9. Undertakings.
(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 a 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 percent 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 this Registration Statement or any material change to such information in this Registration Statement;
Provided, however
, that paragraphs (a)(1)(i) and (a)(1)(ii) 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 this 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 registrants annual report pursuant to section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans 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 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.
(c) 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 proceedings) 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.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below hereby constitutes and appoints William A. Furman his or
her true and lawful
attorney-in-fact
and agent, with full power of substitution for him or her in any and all capacities, to sign any and all amendments or
post-effective amendments to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Commission, granting unto such attorney and agent full power and authority to do any and
all acts and things necessary or advisable in connection with such matters, and hereby ratifying and confirming all that the attorney and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities
indicated on February 28, 2018:
Principal Executive Officers:
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/s/ William A. Furman
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William A. Furman
Chairman, Chief Executive
Officer and President
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/s/ Lorie L. Tekorius
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Lorie L. Tekorius
Executive Vice
President
and Chief Financial Officer
(Principal Financial
Officer)
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/s/ Adrian J. Downes
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Adrian J. Downes
Senior Vice President
and Chief Accounting Officer
(Principal Accounting
Officer)
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Pursuant to the requirements of the Securities Act, this Registration Statement has been signed
by the following persons in the capacities indicated on February 28, 2018:
Directors:
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/s/ William A. Furman
William A. Furman, Chairman
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/s/ Thomas B. Fargo
Thomas B. Fargo
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/s/ Wanda F. Felton
Wanda F. Felton
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/s/ Graeme A. Jack
Graeme A. Jack
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/s/ Duane C. McDougall
Duane C. McDougall
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/s/ David L. Starling
David L. Starling
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/s/ Charles J. Swindells
Charles J. Swindells
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/s/ Donald A. Washburn
Donald A. Washburn
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/s/ Kelly M. Williams
Kelly M. Williams
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