Exhibit 99.16
Sections 13.1-692, 13.1-692.1 and 13.1-696 to 13.1-704 of the
Virginia Stock Corporation Act
s 13.1-692. Liability for unlawful distributions
A. Unless he complies with the applicable standards of conduct described in
s 13.1-690, a director who votes for or assents to a distribution made in
violation of this chapter or the articles of incorporation is personally liable
to the corporation and its creditors for the amount of the distribution that
exceeds what could have been distributed without violating this chapter or the
articles of incorporation.
B. A director held liable for an unlawful distribution under subsection A
of this section is entitled to contribution:
1. From every other director who voted for or assented to the distribution
without complying with the applicable standards of conduct described in s
13.1-690; and
2. From the shareholders who received the unlawful distribution in
proportion to the amounts of such unlawful distribution received by them
respectively.
C. No suit shall be brought against any director for any liability imposed
by this section except within two years after the right of action shall accrue.
s 13.1-692.1. Limitation on liability of officers and directors; exception
A. In any proceeding brought by or in the right of a corporation or brought
by or on behalf of shareholders of the corporation, the damages assessed against
an officer or director arising out of a single transaction, occurrence or course
of conduct shall not exceed the lesser of:
1. The monetary amount, including the elimination of liability, specified
in the articles of incorporation or, if approved by the shareholders, in the
bylaws as a limitation on or elimination of the liability of the officer or
director; or
2. The greater of (i) $100,000 or (ii) the amount of cash compensation
received by the officer or director from the corporation during the twelve
months immediately preceding the act or omission for which liability was
imposed.
B. The liability of an officer or director shall not be limited as provided
in this section if the officer or director engaged in willful misconduct or a
knowing violation of the criminal law or of any federal or state securities law,
including, without limitation, any claim of unlawful insider trading or
manipulation of the market for any security.
C. No limitation on or elimination of liability adopted pursuant to this
section may be affected by any amendment of the articles of incorporation or
bylaws with respect to any act or omission occurring before such amendment.
s 13.1-696. Definitions
In this article:
"Corporation" includes any domestic or foreign predecessor entity of a
corporation in a merger or other transaction in which the predecessor's
existence ceased upon consummation of the transaction.
"Director" means an individual who is or was a director of a corporation or
an individual who, while a director of a corporation, is or was serving at the
corporation's request as a director, officer, partner, trustee, employee, or
agent of another foreign or domestic corporation, partnership, joint venture,
trust, employee benefit plan, or other enterprise. A director is considered to
be serving an employee benefit plan at the corporation's request if his duties
to the corporation also impose duties on, or otherwise involve services by, him
to the plan or to participants in or beneficiaries of the plan. "Director"
includes, unless the context requires otherwise, the estate or personal
representative of a director.
"Expenses" includes counsel fees.
"Liability" means the obligation to pay a judgment, settlement, penalty,
fine, including any excise tax assessed with respect to an employee benefit
plan, or reasonable expenses incurred with respect to a proceeding.
"Official capacity" means, (i) when used with respect to a director, the
office of director in a corporation; or (ii) when used with respect to an
individual other than a director, as contemplated in s 13.1-702, the office in a
corporation held by the officer or the employment or agency relationship
undertaken by the employee or agent on behalf of the corporation. "Official
capacity" does not include service for any other foreign or domestic corporation
or any partnership, joint venture, trust, employee benefit plan, or other
enterprise.
"Party" includes an individual who was, is, or is threatened to be made a
named defendant or respondent in a proceeding.
"Proceeding" means any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative or investigative and whether
formal or informal.
s 13.1-697. Authority to indemnify
A. Except as provided in subsection D of this section, a corporation may
indemnify an individual made a party to a proceeding because he is or was a
director against liability incurred in the proceeding if:
1. He conducted himself in good faith; and
2. He believed:
a. In the case of conduct in his official capacity with the corporation,
that his conduct was in its best interests; and
b. In all other cases, that his conduct was at least not opposed to its
best interests; and
3. In the case of any criminal proceeding, he had no reasonable cause to
believe his conduct was unlawful.
B. A director's conduct with respect to an employee benefit plan for a
purpose he believed to be in the interests of the participants in and
beneficiaries of the plan is conduct that satisfies the requirement of
subdivision 2 b of subsection A of this section.
C. The termination of a proceeding by judgment, order, settlement or
conviction is not, of itself, determinative that the director did not meet the
standard of conduct described in this section.
D. A corporation may not indemnify a director under this section:
1. In connection with a proceeding by or in the right of the corporation in
which the director was adjudged liable to the corporation; or
2. In connection with any other proceeding charging improper personal
benefit to him, whether or not involving action in his official capacity, in
which he was adjudged liable on the basis that personal benefit was improperly
received by him.
E. Indemnification permitted under this section in connection with a
proceeding by or in the right of the corporation is limited to reasonable
expenses incurred in connection with the proceeding.
s 13.1-698. Mandatory indemnification
Unless limited by its articles of incorporation, a corporation shall
indemnify a director who entirely prevails in the defense of any proceeding to
which he was a party because he is or was a director of the corporation against
reasonable expenses incurred by him in connection with the proceeding.
s 13.1-699. Advance for expenses
A. A corporation may 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:
1. The director furnishes the corporation a written statement of his good
faith belief that he has met the standard of conduct described in s 13.1- 697;
2. The director furnishes the corporation a written undertaking, executed
personally or on his behalf, to repay the advance if it is ultimately determined
that he did not meet the standard of conduct; and
3. A determination is made that the facts then known to those making the
determination would not preclude indemnification under this article.
B. The undertaking required by subdivision 2 of subsection A of this
section shall be an unlimited general obligation of the director but need not be
secured and may be accepted without reference to financial ability to make
repayment.
C. Determinations and authorizations of payments under this section shall
be made in the manner specified in s 13.1-701.
s 13.1-700. Repealed by Acts 1987, c. 59; Acts 1987, c. 257
s 13.1-700.1. Court orders for advances, reimbursement or indemnification
A. An individual who is made a party to a proceeding because he is or was a
director of a corporation may apply to a court for an order directing the
corporation to make advances or reimbursement for expenses or to provide
indemnification. Such application may be made to the court conducting the
proceeding or to another court of competent jurisdiction.
B. The court shall order the corporation to make advances and/or
reimbursement for expenses or to provide indemnification if it determines that
the director is entitled to such advances, reimbursement or indemnification and
shall also order the corporation to pay the director's reasonable expenses
incurred to obtain the order.
C. With respect to a proceeding by or in the right of the corporation, the
court may (i) order indemnification of the director to the extent of his
reasonable expenses if it determines that, considering all the relevant
circumstances, the director is entitled to indemnification even though he was
adjudged liable to the corporation and (ii) also order the corporation to pay
the director's reasonable expenses incurred to obtain the order of
indemnification.
D. Neither (i) the failure of the corporation, including its board of
directors, its independent legal counsel and its shareholders, to have made an
independent determination prior to the commencement of any action permitted by
this section that the applying director is entitled to receive advances and/or
reimbursement nor (ii) the determination by the corporation, including its board
of directors, its independent legal counsel and its shareholders, that the
applying director is not entitled to receive advances and/or reimbursement or
indemnification shall create a presumption to that effect or otherwise of itself
be a defense to that director's application for advances for expenses,
reimbursement or indemnification.
s 13.1-701. Determination and authorization of indemnification
A. A corporation may not indemnify a director under s 13.1-697 unless
authorized in the specific case after a determination has been made that
indemnification of the director is permissible in the circumstances because he
has met the standard of conduct set forth in s 13.1-697.
B. The determination shall be made:
1. By the board of directors by a majority vote of a quorum consisting of
directors not at the time parties to the proceeding;
2. If a quorum cannot be obtained under subdivision 1 of this subsection,
by majority vote of a committee duly designated by the board of directors (in
which designation directors who are parties may participate), consisting solely
of two or more directors not at the time parties to the proceeding;
3. By special legal counsel:
a. Selected by the board of directors or its committee in the manner
prescribed in subdivisions 1 and 2 of this subsection; or
b. If a quorum of the board of directors cannot be obtained under
subdivision 1 of this subsection and a committee cannot be designated under
subdivision 2 of this subsection, selected by majority vote of the full board of
directors, in which selection directors who are parties may participate; or
4. By the shareholders, but shares owned by or voted under the control of
directors who are at the time parties to the proceeding may not be voted on the
determination.
C. Authorization of indemnification and evaluation as to reasonableness of
expenses shall be made in the same manner as the determination that
indemnification is permissible, except that if the determination is made by
special legal counsel, authorization of indemnification and evaluation as to
reasonableness of expenses shall be made by those entitled under subdivision 3
of subsection B of this section to select counsel.
s 13.1-702. Indemnification of officers, employees and agents
Unless limited by a corporation's articles of incorporation,
1. An officer of the corporation is entitled to mandatory indemnification
under s 13.1-698, and is entitled to apply for court-ordered indemnification
under s 13.1-700.1, in each case to the same extent as a director; and
2. The corporation may indemnify and advance expenses under this article to
an officer, employee, or agent of the corporation to the same extent as to a
director.
s 13.1-703. Insurance
A corporation may purchase and maintain insurance on behalf of an
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 request of the corporation as a director,
officer, partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan, or other
enterprise, against liability asserted against or incurred by him in that
capacity or arising from his status as a director, officer, employee, or agent,
whether or not the corporation would have power to indemnify him against the
same liability under s 13.1-697 or s 13.1-698.
s 13.1-704. Application of article
A. Unless the articles of incorporation or bylaws expressly provide
otherwise, any authorization of indemnification in the articles of incorporation
or bylaws shall not be deemed to prevent the corporation from providing the
indemnity permitted or mandated by this article.
B. Any corporation shall have power to make any further indemnity,
including indemnity with respect to a proceeding by or in the right of the
corporation, and to make additional provision for advances and reimbursement of
expenses, to any director, officer, employee or agent that may be authorized by
the articles of incorporation or any bylaw made by the shareholders or any
resolution adopted, before or after the event, by the shareholders, except an
indemnity against (i) his willful misconduct, or (ii) a knowing violation of the
criminal law. Unless the articles of incorporation, or any such bylaw or
resolution expressly provide otherwise, any determination as to the right to any
further indemnity shall be made in accordance with s 13.1-701 B. Each such
indemnity may continue as to a person who has ceased to have the capacity
referred to above and may inure to the benefit of the heirs, executors and
administrators of such a person.
C. No right provided to any person pursuant to this section may be reduced
or eliminated by any amendment of the articles of incorporation or bylaws with
respect to any act or omission occurring before such amendment.