A director who votes for or assents to a distribution made in violation of Section 16-10a-640 or the articles of incorporation is personally liable to the corporation for the amount of the distribution that exceeds what could have been distributed without violating Section 16-10a-640 or the articles of incorporation, if it is established that the director’s duties were not performed in compliance with Section 16-10a-840. In any proceeding commenced under this section, a director has all of the defenses ordinarily available to a director.
Terms Used In Utah Code 16-10a-842
Articles of incorporation: include :
(a)
amended and restated articles of incorporation;
(b)
articles of merger; and
(c)
a document of a similar import to those described in Subsections (4)(a) and (b). See Utah Code 16-10a-102
Corporation: A legal entity owned by the holders of shares of stock that have been issued, and that can own, receive, and transfer property, and carry on business in its own name.
Distribution: means the following by a corporation to or for the benefit of its shareholders in respect of any of the corporation's shares:
(i)
a direct or indirect transfer of money or other property, other than a corporation's own shares; or
A director held liable under Subsection (1) for an unlawful distribution is entitled to contribution:
(a)
from every other director who could be held liable under Subsection (1) for the unlawful distribution; and
(b)
from each shareholder, who accepted the distribution knowing the distribution was made in violation of Section 16-10a-640 or the articles of incorporation, the amount of the contribution from each shareholder being the amount of the distribution to the shareholder multiplied by the percentage of the amount of distribution to all shareholders that exceeded what could have been distributed to shareholders without violating Section 16-10a-640 or the articles of incorporation.
(3)
A proceeding under this section is barred unless it is commenced within two years after the date on which the effect of the distribution is measured under Subsection 16-10a-640(5) or (7).
