(a) A director shall not be liable to the corporation or its shareholders for any decision to take or not to take action, or any failure to take any action, as a director, unless the party asserting liability in a proceeding establishes that:

(1) No defense interposed by the director based on (A) any provision in the certificate of incorporation authorized by subdivision (4) or (6) of subsection (b) of section 33-636, or (B) the protection afforded by section 33-782, for action taken in compliance with section 33-783 or 33-784, or (C) the protection afforded by section 33-785 precludes liability of the director; and

(2) The challenged conduct consisted of or was the result of (A) an action not in good faith; (B) a decision (i) which the director did not reasonably believe to be in the best interests of the corporation, or (ii) as to which the director was not informed to an extent the director reasonably believed appropriate in the circumstances; (C) a lack of objectivity due to the director’s familial, financial or business relationship with, or a lack of independence due to the director’s domination or control by, another person having a material interest in the challenged conduct (i) which relationship or which domination or control could reasonably be expected to have affected the director’s judgment respecting the challenged conduct in a manner adverse to the corporation, and (ii) after a reasonable expectation to such effect has been established, the director has not established that the challenged conduct was reasonably believed by the director to be in the best interests of the corporation; (D) a sustained failure of the director to devote attention to ongoing oversight of the business and affairs of the corporation, or a failure to devote timely attention, by making, or causing to be made, appropriate inquiry, when particular facts and circumstances of significant concern materialize that would alert a reasonably attentive director to the need for such inquiry; or (E) the receipt of a financial benefit to which the director was not entitled or any other breach of the director’s duties to deal fairly with the corporation and its shareholders that is actionable under applicable law.

(b) The party seeking to hold the director liable:

(1) For money damages, shall also have the burden of establishing that (A) harm to the corporation or its shareholders has been suffered, and (B) the harm suffered was proximately caused by the director’s challenged conduct;

(2) For other money payment under a legal remedy, such as compensation for the unauthorized use of corporate assets, shall also have whatever persuasion burden may be called for to establish that the payment sought is appropriate in the circumstances; or

(3) For other money payment under an equitable remedy, such as profit recovery by or disgorgement to the corporation, shall also have whatever persuasion burden may be called for to establish that the equitable remedy sought is appropriate in the circumstances.

(c) Nothing in this section shall:

(1) In any instance where fairness is at issue, such as consideration of the fairness of a transaction to the corporation under subdivision (3) of subsection (b) of section 33-782, alter the burden of proving the fact or lack of fairness otherwise applicable;

(2) Alter the fact or lack of liability of a director under any provision in sections 33-600 to 33-998, inclusive, such as the provisions governing the consequences of an unlawful distribution under section 33-757 or a transactional interest under section 33-782; or

(3) Affect any rights to which the corporation or a shareholder may be entitled under another chapter of the general statutes or a section of the United States Code.

(P.A. 17-108, S. 2.)