(A) The board of directors of a benefit corporation shall designate one director who is an independent person to be the benefit director. The benefit director, in addition to the powers, duties, rights, and immunities of the other directors of the benefit corporation, shall have the powers, duties, rights, and immunities provided in this section. The benefit director shall be elected, and may be removed, in the manner provided in Article 1, Chapter 8, Title 33.
(B) The benefit director may serve as the benefit officer at the same time as serving as the benefit director. The articles of incorporation or bylaws of a benefit corporation may prescribe additional qualifications of the benefit director not inconsistent with this section.
(C)(1) The benefit director shall prepare, and the benefit corporation shall include in the annual benefit report to shareholders required by Section 33-38-500, the opinion of the benefit director concerning the following matters:
(a) whether the benefit corporation acted in accordance with its general and any specific public benefit purpose in all material respects during the period covered by the report;
(b) whether the benefit corporation conferred a general public benefit and any specific public benefit during the period covered by the report; and
(c) whether the directors complied with Section 33-38-400.
(2) If the benefit director finds a failure under item (a), (b), or (c) of this subsection, the benefit director shall include in the annual benefit report a description, to the extent relevant, of the ways in which the benefit corporation or its directors failed to act or comply.
(D) If a benefit corporation dispenses with a board of directors as provided by law, the articles of incorporation of the benefit corporation must provide that a person who exercises one or more of the powers, duties, rights, or obligations of a benefit director under this subsection shall have the powers, duties, rights, and obligations of a benefit director or may share the powers, duties, rights, and obligations of a benefit director with one or more other persons. A person who has the powers, duties, rights, and obligations of a benefit director pursuant to this subsection:
(1) does not need to be independent of the benefit corporation;
(2) shall have the immunities of a benefit director; and
(3) shall not be subject to the procedures for election or removal of directors pursuant to Article 1, Chapter 8, Title 33 unless the bylaws make those procedures applicable.
(E) The benefit director of a professional corporation does not need to be independent.
(F) Regardless of whether the articles of incorporation or the bylaws of a benefit corporation include a provision limiting or eliminating the personal liability of directors, a benefit director is not personally liable for monetary damages for any act or omission taken in that capacity unless the act or omission constitutes a transaction from which the director derived an improper personal benefit, wilful misconduct, or a knowing violation of law.
HISTORY: 2012 Act No. 277, Section 1, eff June 14, 2012.