Business Organizations Code revisor's report, part 4

on a motion by the corporation if the person
or group described in Section H of this
Article determines in good faith, after
conducting a reasonable inquiry and based on
the factors as the person or group deems
appropriate under the circumstances, that the
continuation of the derivative proceeding is
not in the best interests of the corporation.
In determining whether the requirements of
the previous sentence have been met, the
burden of proof shall be on:
(1) the plaintiff shareholder, if
a majority of the board of directors consists
of independent and disinterested directors at
the time the determination is made or if the
determination is made by a panel of one or
more independent and disinterested persons
appointed under Section H(3) of this Article;
or
(2) the corporation, in all other
circumstances; provided that if the
corporation presents prima facie evidence
that demonstrates that the directors
appointed pursuant to Section H(2) of this
Article are independent and disinterested,
the burden of proof is on the plaintiff
shareholder.
Revisor's Note
See the revisor's note to Section
101.451. No substantive change is intended.
Revised Law
Sec. 101.459. ALLEGATIONS IF DEMAND REJECTED. If a
derivative proceeding is instituted after a demand is rejected,
the petition must allege with particularity facts that establish
that the rejection was not made in accordance with the
requirements of Sections 101.454 and 101.458. (TLLCA 8.12.A, C;
TBCA 5.14.G.)
Source Law
[TLLCA 8.12]
A. Subject to Section C of this
Article, Articles 2.07, 4.14, and 5.14 and
Part Seven of the TBCA apply to a limited
liability company and its members, managers,
and officers.
. . .
C. For purposes of the application of