CORPORATIONS, ASSOCIATIONS, AND PROPRIETORS OF COMMON LANDS
293-C:8 Benefit Director.
I. 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:
(a) Shall be designated the benefit director; and
(b) 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.
II. The benefit director shall be elected, and may be removed, in the manner provided by RSA 293-A:8.01 through RSA 293-A:8.11. Except as provided in paragraphs VI and VII, 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 paragraph.
III. The benefit director shall prepare, and the benefit corporation shall include in the annual benefit report to shareholders required by section RSA 293-C:12, the opinion of the benefit director on all of the following:
(a) 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.
(b) Whether the directors and officers complied with RSA 293-C:7 and RSA 293-C:9.
(c) 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 paragraphs I and II, a description of the ways in which the benefit corporation or its directors or officers failed to act or comply.
IV. 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.
V. Regardless of whether the articles of incorporation or bylaws of a benefit corporation include a provision eliminating or limiting the personal liability of directors authorized by RSA 293-A:2.02(b)(4), 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.
VI. The articles of incorporation or bylaws of a benefit corporation shall 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 if the articles of incorporation or bylaws of the benefit corporation or a shareholder agreement 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 under RSA 293-A:7.32. A person that exercises one or more of the powers, duties, or rights of a benefit director under this paragraph:
(a) Does not need to be independent of the benefit corporation;
(b) Shall have the immunities of a benefit director;
(c) May share the powers, duties, and rights of a benefit director with one or more other persons; and
(d) Shall not be subject to the procedures for election or removal of directors in RSA 293-A:8.01 through RSA 293-A:8.11 unless:
(1) The person is also a director of the benefit corporation; or
(2) The articles, bylaws, or shareholder agreement make those procedures applicable.
VII. The benefit director of a professional corporation does not need to be independent.
Source. 2014, 216:1, eff. Jan. 1, 2015.