Sec. 39. Directors' and officers' liability.
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Sec. 39. Directors' and officers' liability.
(a)Every director or officer of a State bank, who shall violate, or participate in, or assent to a violation of Section 32, 33, 34, 35.1, or 35.2 of this Act, or who shall permit any of the officers, agents, or servants of the state bank to violate the provisions of Section 32, 33, 34, 35.1, or 35.2 of this Act shall be held liable in his or her personal or individual capacity for all damages which the State bank, its stockholders, or any other person shall have sustained in consequence of the violation. No director or officer of a State bank shall be held liable in his or her personal or individual capacity under this Section, however, for a loan, investment, lease, or other transaction that complied in good faith with the applicable provisions of Section 32, 33, 34, 35.1, or 35.2, when made or acquired by the State bank, but later violated the provisions of Section 32, 33, 34, 35.1, or 35.2 solely because of a subsequent reduction in the amount of the unimpaired capital or unimpaired surplus of the State bank. Nothing contained in this Section shall be construed to limit in any way the Commissioner's powers and authority including, but not limited to, the powers and authority vested in the Commissioner by Section 48 of this Act.
(b)By the affirmative vote of the holders of at least two-thirds of the outstanding shares of stock of a State bank, such vote occurring at any annual or special meeting of shareholders held pursuant to this Act or occurring pursuant to the waiver provisions of Section 43 of this Act, a State bank may establish that a director is not personally liable to the bank or its shareholders for monetary damages for a breach of the director's fiduciary duty; provided, however, that such provision may not eliminate or limit the liability of a director for any of the following:
(1)An act or omission that is grossly negligent.
(2)A breach of the director's duty of loyalty to the bank or its shareholders.
(3)Acts or omissions not in good faith or that involve intentional misconduct or a
knowing violation of law.
(4)A transaction from which the director derived an improper personal benefit.
(5)An act or omission occurring before the effective date of the provision authorized
by this subsection.