1 | A bill to be entitled |
2 | An act relating to benefit corporations; creating s. |
3 | 607.2001, F.S.; defining terms; creating s. 607.2003, |
4 | F.S.; providing applicability; creating s. 607.2005, |
5 | F.S.; providing for the organization of benefit |
6 | corporations; creating s. 607.2007, F.S.; providing |
7 | for existing corporations to become benefit |
8 | corporations; creating s. 607.2009, F.S.; authorizing |
9 | a corporation to terminate its status as a benefit |
10 | corporation; creating s. 607.2011, F.S.; requiring the |
11 | corporate purposes set forth in the articles of |
12 | incorporation of a benefit corporation to include |
13 | certain public benefits; authorizing benefit |
14 | corporations to set forth certain public benefit |
15 | purposes in their bylaws; authorizing the board of |
16 | directors of a benefit corporation to adopt certain |
17 | public benefit purposes for the corporation under |
18 | certain circumstances; creating s. 607.2013, F.S.; |
19 | prescribing certain standards of conduct for, and |
20 | limiting the liability of, directors of benefit |
21 | corporations; creating s. 207.2015, F.S.; limiting the |
22 | liability of officers of a benefit corporation; |
23 | creating s. 607.2017, F.S.; authorizing a benefit |
24 | corporation to bring enforcement actions for certain |
25 | claims against directors and officers of the |
26 | corporation; providing for commencement and |
27 | maintenance of the proceedings; creating s. 607.2019, |
28 | F.S.; requiring a benefit corporation to submit an |
29 | annual benefit report to the Department of State and |
30 | the corporation's shareholders; providing for public |
31 | disclosure of the annual benefit reports; authorizing |
32 | the department to adopt rules; amending s. 607.0128, |
33 | F.S.; revising the required contents of a certificate |
34 | of status, to conform; providing an effective date. |
35 |
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36 | Be It Enacted by the Legislature of the State of Florida: |
37 |
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38 | Section 1. Section 607.2001, Florida Statutes, is created |
39 | to read: |
40 | 607.2001 Definitions; ss. 607.2001-607.2019.-As used in |
41 | ss. 607.2001-607.2019, the term: |
42 | (1) "Benefit corporation" means a corporation organized |
43 | under this chapter that elects to become subject to ss. |
44 | 607.2001-607.2019, the status of which as a benefit corporation |
45 | has not been terminated under s. 607.2009. |
46 | (2) "General public benefit" means a material positive |
47 | impact on society and the environment taken as a whole, as |
48 | measured by an independent third-party standard, from the |
49 | business and operations of the benefit corporation. |
50 | (3) "Independent" means not having a material relationship |
51 | with a benefit corporation or any of its subsidiaries, either |
52 | directly as a shareholder of the benefit corporation or as a |
53 | partner, a member, or an owner of any of its subsidiaries or |
54 | indirectly as a director, an officer, an owner, or a manager of |
55 | an entity that has a material relationship with the benefit |
56 | corporation or any of its subsidiaries. A material relationship |
57 | between a person and a benefit corporation or any of its |
58 | subsidiaries is conclusively presumed to exist if: |
59 | (a) The person is or, within the previous 3 years, has |
60 | been an employee of the benefit corporation or any of its |
61 | subsidiaries; |
62 | (b) An immediate family member of the person is or, within |
63 | the previous 3 years, has been an officer of the benefit |
64 | corporation or any of its subsidiaries; or |
65 | (c) There is beneficial ownership of 5 percent or more of |
66 | the outstanding shares of the benefit corporation by the person |
67 | or an entity: |
68 | 1. Of which the person is a director, an officer, or a |
69 | manager; or |
70 | 2. In which the person owns beneficially 5 percent or more |
71 | of the outstanding equity interests, which percentage is |
72 | calculated as if all outstanding rights to acquire equity |
73 | interests in the entity are exercised. |
74 | (4) "Independent third-party standard" means a recognized |
75 | standard for defining, reporting, and assessing corporate social |
76 | and environmental performance that: |
77 | (a) Is developed by a person who is independent of the |
78 | benefit corporation. |
79 | (b) Is transparent because the following information about |
80 | the standard is publicly available: |
81 | 1. The factors considered when measuring the performance |
82 | of a business. |
83 | 2. The relative weightings of those factors. |
84 | 3. The identity of the persons that develop and control |
85 | changes to the standard and the process by which those changes |
86 | are made. |
87 | (5) "Specific public benefit" means a benefit that serves |
88 | one or more public welfare, religious, charitable, scientific, |
89 | literary, or educational purposes, or other purpose or benefit |
90 | beyond the strict interests of the shareholders of the benefit |
91 | corporation. |
92 | (6) "Subsidiary" means, in relation to an individual, an |
93 | entity in which the individual either: |
94 | (a) Directly or indirectly owns equity interests entitled |
95 | to cast a majority of the votes entitled to be cast generally in |
96 | an election of directors or members of the governing body of the |
97 | entity; or |
98 | (b) Otherwise owns or controls voting or contractual power |
99 | to exercise effective governing control of the entity. The |
100 | percentage of ownership of equity interests or ownership or |
101 | control of power to exercise control is calculated as if all |
102 | outstanding rights to acquire equity interests in the entity are |
103 | exercised. |
104 | Section 2. Section 607.2003, Florida Statutes, is created |
105 | to read: |
106 | 607.2003 Application and effect of ss. 607.2001-607.2019.- |
107 | (1) Sections 607.2001-607.2019 apply to all benefit |
108 | corporations in the state. |
109 | (2) Any provision in ss. 607.2001-607.2019 does not itself |
110 | create the implication that a contrary or different law applies |
111 | to a corporation organized under this chapter that is not a |
112 | benefit corporation. Sections 607.2001-607.2019 do not affect |
113 | any law that applies to a corporation that is not a benefit |
114 | corporation. |
115 | (3) The provisions of ss. 607.2001-607.2019 shall control |
116 | over the general provisions of this chapter with respect to a |
117 | benefit corporation. |
118 | Section 3. Section 607.2005, Florida Statutes, is created |
119 | to read: |
120 | 607.2005 Organization of benefit corporations.-A benefit |
121 | corporation must be organized under this chapter, except that |
122 | its articles of incorporation, as initially filed with the |
123 | Department of State or as amended, must also state that it is a |
124 | benefit corporation. |
125 | Section 4. Section 607.2007, Florida Statutes, is created |
126 | to read: |
127 | 607.2007 Election of status after incorporation.-A |
128 | corporation that was not organized as a benefit corporation may |
129 | become a benefit corporation by amending its articles of |
130 | incorporation to contain, in addition to the requirements of s. |
131 | 607.0202, a statement that the corporation is a benefit |
132 | corporation. Any such amendment must be adopted under s. |
133 | 607.1003 and be approved by all shareholders entitled to vote on |
134 | the amendment or, if shares have not yet been issued, the |
135 | amendment must be approved under s. 607.1005. |
136 | Section 5. Section 607.2009, Florida Statutes, is created |
137 | to read: |
138 | 607.2009 Termination of status.-A corporation may |
139 | terminate its status as a benefit corporation and cease to be |
140 | subject to ss. 607.2001-607.2019 by amending its articles of |
141 | incorporation to delete the statement required in ss. 607.2005 |
142 | and 607.2007 that the corporation is a benefit corporation. Any |
143 | such amendment must be adopted under s. 607.1003 and be approved |
144 | by all shareholders entitled to vote on the amendment or, if |
145 | shares have not yet been issued, the amendment must be approved |
146 | under s. 607.1005. |
147 | Section 6. Section 607.2011, Florida Statutes, is created |
148 | to read: |
149 | 607.2011 Corporate purposes; general and specific public |
150 | benefits.- |
151 | (1) A benefit corporation must have as one of its purposes |
152 | the creation of the general public benefit. A benefit |
153 | corporation must include this purpose, in addition to the lawful |
154 | purpose or purposes for which the corporation is organized under |
155 | s. 607.0301, in its articles of incorporation. |
156 | (2) A benefit corporation may also have as one of its |
157 | purposes the creation of one or more of the following specific |
158 | public benefits: |
159 | (a) Providing low-income or underserved individuals or |
160 | communities with beneficial products or services. |
161 | (b) Promoting economic opportunity for individuals or |
162 | communities beyond the creation of jobs in the normal course of |
163 | business. |
164 | (c) Preserving the environment. |
165 | (d) Improving human health. |
166 | (e) Promoting the arts, sciences, or advancement of |
167 | knowledge. |
168 | (f) Increasing the flow of capital to entities with a |
169 | public benefit purpose. |
170 | (g) Conferring any other particular benefit on society or |
171 | the environment. |
172 |
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173 | Any specific public benefit created under this subsection does |
174 | not satisfy the obligation of the benefit corporation to create |
175 | the general public benefit. |
176 | (3)(a) A benefit corporation may set forth a specific |
177 | public benefit purpose in its articles of incorporation or |
178 | bylaws and, except as otherwise provided in the articles of |
179 | incorporation or bylaws, the board of directors may also adopt a |
180 | specific public benefit purpose for the corporation. |
181 | (b) A benefit corporation may amend its articles of |
182 | incorporation to add, amend, or delete a specific public benefit |
183 | purpose. Any such amendment must be approved under s. 607.1003. |
184 | (4) A benefit corporation may only create the general |
185 | public benefit and any specific public benefit, if such benefits |
186 | are within the best interests of the benefit corporation. |
187 | Section 7. Section 607.2013, Florida Statutes, is created |
188 | to read: |
189 | 607.2013 Standards for directors of benefit corporations.- |
190 | (1) In accordance with the general standards for directors |
191 | of corporations in s. 607.0830, in discharging the duties of his |
192 | or her respective position and considering the best interests of |
193 | the benefit corporation, a member of the board of directors, a |
194 | member of a committee, or an individual director of a benefit |
195 | corporation: |
196 | (a) Shall consider the effects of any corporate action |
197 | upon: |
198 | 1. The shareholders of the benefit corporation. |
199 | 2. The employees and workforce of the benefit corporation |
200 | and its subsidiaries and suppliers. |
201 | 3. The interests of customers as beneficiaries of the |
202 | general and any specific public benefit purposes of the benefit |
203 | corporation. |
204 | 4. Community and societal considerations, including those |
205 | of each community in which offices or facilities of the benefit |
206 | corporation and its subsidiaries and suppliers are located. |
207 | 5. The local and global environment. |
208 | 6. The short-term and long-term interests of the benefit |
209 | corporation, including benefits that may accrue to the benefit |
210 | corporation from its long-term plans and the possibility that |
211 | these interests and the general and any specific public benefit |
212 | purposes of the benefit corporation may be best served by the |
213 | continued independence of the benefit corporation. |
214 | 7. The ability of the benefit corporation to create the |
215 | general public benefit and any of its specific public benefit |
216 | purposes. |
217 | (b) May consider: |
218 | 1. The factors listed in s. 607.0830(3). |
219 | 2. The resources; intent; and past, stated, and potential |
220 | conduct of any person seeking to acquire control of the benefit |
221 | corporation. |
222 | 3. Other pertinent factors or the interests of any other |
223 | person who he or she deems appropriate. |
224 | (c) Need not give priority to the interests of a |
225 | particular person or group referred to in paragraph (a) or |
226 | paragraph (b) over the interests of any other person or group |
227 | unless the benefit corporation states its intention to give |
228 | priority to interests related to any specific public benefit |
229 | purpose set forth in its articles of incorporation or bylaws or |
230 | otherwise adopted by its board of directors. |
231 | (2) Consideration of interests and factors in the manner |
232 | required under subsection (1) does not constitute a violation of |
233 | s. 607.0830 or a conflict of interest under s. 607.0832. |
234 | (3) In any proceeding brought by or on behalf of a benefit |
235 | corporation or its shareholders, a director is not personally |
236 | liable for monetary damages for: |
237 | (a) Any action taken as a director, if the director |
238 | complied with s. 607.0830 and this section in the performance of |
239 | his or her duties. |
240 | (b) Failure of the benefit corporation to create the |
241 | general public benefit or any specific public benefit. |
242 | Section 8. Section 207.2015, Florida Statutes, is created |
243 | to read: |
244 | 207.2015 Limitation of liability of officers.-An officer |
245 | of a benefit corporation is not liable for any action taken in |
246 | the performance of his or her duties as an officer, which he or |
247 | she believes, in his or her good faith business judgment, is |
248 | consistent with: |
249 | (1) The general public benefit purpose of the benefit |
250 | corporation or any specific public benefit purpose set forth in |
251 | its articles of incorporation or bylaws or otherwise adopted by |
252 | its board of directors. |
253 | (2) The requirements of any independent third-party |
254 | standard in effect for the benefit corporation. |
255 | Section 9. Section 607.2017, Florida Statutes, is created |
256 | to read: |
257 | 607.2017 Benefit enforcement proceedings.- |
258 | (1) A benefit corporation may bring an action for any |
259 | claim against a director or officer of the corporation for: |
260 | (a) Failing to pursue the general public benefit purpose |
261 | of the benefit corporation or any specific public benefit |
262 | purpose set forth in its articles of incorporation or bylaws or |
263 | otherwise adopted by its board of directors. |
264 | (b) Violating a duty or standard of conduct under ss. |
265 | 607.2001-607.2019. |
266 | (c) Failing to prepare and make available the annual |
267 | benefit report required under s. 607.2019. |
268 | (2) A benefit enforcement proceeding brought under |
269 | subsection (1) shall exclusively be commenced and maintained: |
270 | (a) Directly by the benefit corporation; or |
271 | (b) Derivatively by: |
272 | 1. A shareholder of the benefit corporation; |
273 | 2. A director of the benefit corporation; |
274 | 3. A person or group who owns beneficially or of record 10 |
275 | percent or more of the equity interests in an entity of which |
276 | the benefit or corporation is a subsidiary; or |
277 | 4. Any other person specifically authorized in the |
278 | articles of incorporation or bylaws of the benefit corporation. |
279 | (3)(a) The enforcement of any claim against a director or |
280 | officer of a benefit corporation for conduct described in |
281 | subsection (1) shall be enforced exclusively through a benefit |
282 | enforcement proceeding brought under this section. |
283 | (b) A person may not bring an action or assert a claim |
284 | against a benefit corporation or its directors or officers with |
285 | respect to the conduct described in subsection (1), except in a |
286 | benefit enforcement proceeding brought under this section. |
287 | Section 10. Section 607.2019, Florida Statutes, is created |
288 | to read: |
289 | 607.2019 Annual benefit report.- |
290 | (1) A benefit corporation shall prepare an annual benefit |
291 | report in the format prescribed by the Department of State which |
292 | includes the following: |
293 | (a) A narrative description of: |
294 | 1. The ways in which the benefit corporation pursued the |
295 | general public benefit during the year and the extent to which |
296 | the general public benefit was created. |
297 | 2. The ways in which the benefit corporation pursued any |
298 | specific public benefit during the year and extent to which that |
299 | specific public benefit was created. |
300 | 3. Any circumstances that hindered the creation by the |
301 | benefit corporation of the general or any specific public |
302 | benefit. |
303 | (b) An assessment of the social and environmental |
304 | performance of the benefit corporation. The assessment must be: |
305 | 1. Prepared in accordance with an independent third-party |
306 | standard specified in the articles of incorporation, the bylaws, |
307 | or otherwise adopted by the board of directors and applied |
308 | consistently with any application of that standard in previous |
309 | benefit reports; or |
310 | 2. Accompanied by an explanation of the reasons for any |
311 | inconsistent application. |
312 | (c) Any other information or disclosures that may be |
313 | required under any independent third-party standard adopted by |
314 | the directors of the benefit corporation. |
315 | (2)(a) A benefit corporation must annually file its |
316 | benefit report with the Department of State by a date prescribed |
317 | by the department. |
318 | (b) A benefit corporation must also submit a copy of its |
319 | annual benefit report to each shareholder of the corporation |
320 | within 120 days after the end of the corporation's fiscal year |
321 | or upon submitting any other annual report to its shareholders. |
322 | (3) A benefit corporation shall post its most recent |
323 | benefit report on a publicly accessible portion of its Internet |
324 | website, if any. If a benefit corporation does not have an |
325 | Internet website, it must make a written or electronic copy of |
326 | its most recent benefit report available to the public upon |
327 | written request. A benefit corporation is not required to |
328 | publicly disclose to persons other than its shareholders any |
329 | proprietary, confidential, or individual compensation |
330 | information contained in its benefit report, to the extent that |
331 | any independent third-party standard adopted by the directors of |
332 | the benefit corporation permits the omission of such information |
333 | from public disclosure. |
334 | (4) The Department of State may adopt rules to administer |
335 | this section. |
336 | Section 11. Paragraphs (c) through (e) of subsection (2) |
337 | of section 607.0128, Florida Statutes, are redesignated as |
338 | paragraphs (d) through (f), respectively, and a new paragraph |
339 | (c) is added to that subsection to read: |
340 | 607.0128 Certificate of status.- |
341 | (2) A certificate of status or authorization sets forth: |
342 | (c) If the corporation is a benefit corporation under ss. |
343 | 607.2001-607.2019, a statement that the corporation is a benefit |
344 | corporation. |
345 | Section 12. This act shall take effect upon becoming a |
346 | law. |