Standards of Liability for Directors

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

(1)any provision in the Articles of Incorporation authorized by § 28202(b)(4) or protection afforded by § 28861 for action taken in compliance with §§ 28862 or 28863, if interposed as a bar to the proceeding by the director, does not preclude liability; and

(2)the challenged conduct consisted or was the result of: COL372014 CH. 28 GUAM BUSINESS CORPORATION ACT

(A)action not in good faith; or

(B)a decision

(i)which the director did not reasonably believe to be in the best interest of the corporation, or

(ii)as to which the director was not informed to an extent the director reasonably believed appropriate in the circumstances; or

(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 shall not have established that the challenged conduct was reasonably believed by the director to be in the best interest of the corporation, or

(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 therefore; or

(E)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 COL372014 CH. 28 GUAM BUSINESS CORPORATION ACT

(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 contained 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 § 28861(b)(3), 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 another section of this Act, such as the provisions governing the consequences of an unlawful distribution under §28818 or a transactional interest under § 28861, or

(3)affect any rights to which the corporation or a share holder may be entitled under another statute of this territory or the United States.