Title 7
Corporations, Associations, and Partnerships

Chapter 5.3
Benefit Corporations

§ 7-5.3-8. Benefit director.

(a) The board of directors of a benefit corporation that is a publicly traded corporation shall, and the board of any other benefit corporation may, include a director who:

(1) Shall be designated the benefit director; and

(2) Shall have, in addition to the powers, duties, rights, and immunities of the other directors of the benefit corporation, the powers, duties, rights, and immunities provided in this chapter.

(b) The benefit director shall be elected, and may be removed, in the manner provided by chapter 1.2 of this title. Except as provided in subsections (f) and (g), the benefit director shall be an individual who is independent. 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 subsection.

(c) The benefit director shall prepare, and the benefit corporation shall include in the annual benefit report to shareholders required by § 7-5.3-12, the opinion of the benefit director on all of the following:

(1) Whether the benefit corporation acted in accordance with its general public benefit purpose and any specific public benefit purpose in all material respects during the period covered by the report.

(2) Whether the directors and officers complied with §§ 7-5.3-7(a) and 7-5.3-9(a), respectively.

(3) If, in the opinion of the benefit director, the benefit corporation or its directors or officers failed to act or comply in the manner described in subsections (c)(1) and (c)(2), a description of the ways in which the benefit corporation or its directors or officers failed to act or comply.

(d) The act or inaction of an individual in the capacity of a benefit director shall constitute for all purposes an act or inaction of that individual in the capacity of a director of the benefit corporation.

(e) Regardless of whether the articles of incorporation of a benefit corporation include a provision eliminating or limiting the personal liability of directors authorized by § 7-1.2-202(b)(3), a benefit director shall not be personally liable for an act or omission in the capacity of a benefit director unless the act or omission constitutes self-dealing, willful misconduct, or a knowing violation of law.

(f) If the articles of incorporation of a benefit corporation provide that the powers and duties conferred or imposed upon the board of directors shall be exercised or performed by a person other than the directors as permitted by § 7-1.2-801(a), the articles must provide that the persons or shareholders who perform the duties of the board of directors include a person with the powers, duties, rights and immunities of a benefit director. A person that exercises one or more of the powers, duties, or rights of a benefit director under this subsection:

(1) Does not need to be independent of the benefit corporation;

(2) Shall have the immunities of a benefit director; and

(3) May share the powers, duties, and rights of a benefit director with one or more other persons.

(g) The benefit director of a professional corporation or consumer cooperative does not need to be independent.