May 31, 2016, Introduced by Reps. Greig, LaGrand, Vaupel, Graves, Irwin, Yanez, Townsend, LaVoy, Lucido, Yonker, Plawecki, Chang, Garrett, Pagan, Wittenberg, Zemke, Cochran, Liberati, Brinks, Canfield, Pagel and Love and referred to the Committee on Commerce and Trade.
A bill to amend 1972 PA 284, entitled
"Business corporation act,"
(MCL 450.1101 to 450.2098) by adding chapter 9A.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 951. (1) As used in this chapter:
(a) "Benefit enforcement proceeding" means a claim asserted or
action brought directly by a benefit corporation, or derivatively
on behalf of a benefit corporation, against a director or officer
for any of the following:
(i) A failure to pursue the general public benefit purpose of
a benefit corporation or any specific public benefit purpose set
forth in the articles of a benefit corporation.
(ii) A violation of a duty or standard of conduct under this
(b) "General public benefit" means a material positive impact
on society and the environment, taken as a whole, as measured by a
third-party standard, from the business and operations of a benefit
(c) "Minimum status vote" means an authorization or approval
of a corporate action by the shareholders of a benefit corporation
that meets all of the following:
(i) It meets the shareholder approval or vote requirements of
(ii) It meets any shareholder approval or vote requirements
included in any provisions of the articles of incorporation or the
bylaws of the benefit corporation adopted by the shareholders.
(iii) The shareholders of every class or series are entitled
to vote on the corporate action regardless of a limitation stated
in the articles of incorporation or bylaws on the voting rights of
any class or series.
(iv) The corporate action is approved by vote of the
shareholders of each class or series entitled to cast at least 2/3
of the votes that all shareholders of the class or series are
entitled to cast on the action.
(d) "Specific public benefit" includes, but is not limited to,
any of the following:
(i) Providing low-income or underserved individuals or
communities with beneficial products or services.
(ii) Promoting economic opportunity for individuals or
communities beyond the creation of jobs in the normal course of
(iii) Preserving the environment.
(iv) Improving human health.
(v) Promoting the arts, sciences, or advancement of knowledge.
(vi) Increasing the flow of capital to entities that have a
public benefit purpose.
(vii) Conferring any other particular benefit on society or
(e) In relation to a person, "subsidiary" means an entity in
which the person owns beneficially or of record 50% or more of the
outstanding equity interests. For purposes of determining a
person's ownership percentage under this subdivision, any
outstanding rights to acquire equity interests in an entity are
considered outstanding equity interests in that entity.
(f) "Third-party standard" means a standard for defining,
reporting, and assessing overall corporate social and environmental
performance that is all of the following:
(i) Comprehensive, in that it assesses the effect of the
business and its operations on the interests listed in section
957(1)(a)(ii) to (v).
(ii) Developed by an organization that is independent of the
benefit corporation and satisfies the following requirements:
(A) Not more than 1/3 of the members of the governing body of
the organization are representatives of either of the following:
(I) An association of businesses operating in a specific
industry if the performance of the member businesses is measured by
(II) Businesses whose performance is measured by the standard.
(B) The organization is not materially financed by an
association or business described in sub-subparagraph (A).
(iii) Credible, because the standard is developed by a person
that meets both of the following:
(A) The person has access to necessary expertise to assess
overall corporate social and environmental performance.
(B) The person uses a balanced multistakeholder approach that
includes a public comment period of at least 30 days to develop the
(iv) Transparent, because all of the following are publicly
(A) The criteria considered in the standard when measuring the
overall social and environmental performance of a business, and the
relative weightings of those criteria.
(B) The following information about the development and
revision of the standard:
(I) The identity of the directors, officers, any material
owners, and the governing body of the organization that developed
and controls revisions to the standard.
(II) The process by which revisions to the standard and
changes to the membership of the governing body are made.
(III) An accounting of the sources of financial support for
the organization, with sufficient detail to disclose any
relationships that could reasonably be considered to present a
potential conflict of interest.
(2) This chapter does not apply to any corporation that is not
a benefit corporation or to a corporation that terminates its
status as a benefit corporation under section 953(4).
(3) If there is a conflict between a specific provision of
this chapter and a general provision of this act, the provision of
this chapter applies with respect to a benefit corporation.
Sec. 953. (1) A domestic corporation that meets all of the
following is a benefit corporation and subject to this chapter:
(a) The corporation is formed under this act.
(b) The articles of the corporation state that it is a benefit
corporation. However, an amendment to the articles to include the
statement described in this subdivision is not effective unless it
is adopted by a minimum status vote.
(2) In addition to the purposes described in section 202(b),
the purposes included in the articles of a benefit corporation
shall include creating general public benefit. The purposes may
also include 1 or more specific public benefits identified in the
articles, but the identification of a specific public benefit under
this subdivision does not limit the obligation of a benefit
corporation to create general public benefit.
(3) An amendment to the articles of incorporation of a benefit
corporation to change the purposes of the corporation by adding,
amending, or deleting 1 or more specific public benefits is not
effective unless it is adopted by a minimum status vote.
(4) A benefit corporation may terminate its status as a
benefit corporation by amending its articles to remove the
provisions described in this section. However, each of the
following applies to an amendment to the articles described in this
(a) The amendment is not effective unless it is adopted by a
minimum status vote.
(b) A shareholder that does not vote for or consent in writing
to the amendment may dissent under section 762 and receive payment
for the shares.
Sec. 955. (1) In addition to the requirements of chapter 7, if
a domestic corporation that is not a benefit corporation is a
constituent corporation in a merger or an exchanging corporation in
a share exchange, and the surviving or acquiring corporation will
be a benefit corporation under the plan of merger or share
exchange, the plan must be approved by a minimum status vote of
that constituent or exchanging corporation.
(2) In addition to the requirements of chapter 7, a plan of
merger or share exchange that would have the effect of terminating
the status of a domestic corporation as a benefit corporation must
be approved by a minimum status vote of that corporation.
(3) A shareholder of a corporation that is not a benefit
corporation may dissent under section 762 and receive payment for
the shares if the shareholder did not vote for or consent in
writing to a plan of merger or share exchange under subsection (1)
and the shareholder held the shares immediately before the
effective time of the merger or share exchange.
Sec. 957. (1) All of the following apply to the board,
committees of the board, and individual directors of a benefit
corporation, and to any officer of a benefit corporation who has
discretion to act with respect to any matter if it reasonably
appears to the officer that the matter may have a material effect
on the creation of general public benefit or a specific public
benefit by the benefit corporation, in discharging the duties of
their respective positions and in considering the best interests of
the benefit corporation:
(a) They shall consider the effects of any action on all of
(i) The shareholders of the benefit corporation.
(ii) The employees and work force of the benefit corporation
and its subsidiaries and suppliers.
(iii) The interests of customers as beneficiaries of the
general public benefit and any specific public benefit included in
the purpose of the benefit corporation.
(iv) Community and societal considerations, including those of
each community in which offices or facilities of the benefit
corporation and its subsidiaries and suppliers are located.
(v) The local and global environment.
(vi) The short-term and long-term interests of the benefit
corporation, including benefits that may accrue to the benefit
corporation from its long-term plans and the possibility that these
interests and the general public benefit and any specific public
benefit included in the purpose of the benefit corporation may be
best served by the continued independence of the benefit
(vii) The ability of the benefit corporation to accomplish
general public benefit and any specific public benefit included in
the purposes of the benefit corporation.
(b) In evaluating a person's proposed acquisition of control
of the benefit corporation, they may consider the resources,
intent, and conduct of the person seeking to acquire control of the
(c) They may consider any other pertinent factors or the
interests of any other group that they consider appropriate.
(d) They are not required to give priority to the interests of
a particular person or group described in subdivision (a), (b), or
(c) over the interests of any other person or group unless the
benefit corporation has stated its intention to give priority to
interests related to a specific public benefit purpose identified
in its articles.
(2) The consideration of interests and factors by a director
or officer of a benefit corporation under subsection (1) in the
discharge of his or her duties does not constitute a violation of
(3) A director or officer of a benefit corporation is not
personally liable for monetary damages for any of the following:
(a) Any action taken as a director or officer if the director
or officer performed his or her duties in compliance with section
541a and this section.
(b) The failure of the benefit corporation to create general
public benefit or any specific public benefit.
(4) A director or officer of a benefit corporation does not
have a fiduciary duty to a person that is a beneficiary of the
general or any specific public benefit purposes of the benefit
corporation arising from the status of the person as a beneficiary.
(5) Any corporate action taken by a benefit corporation to
advance general public benefit or any specific public benefit
included in the purpose of the corporation under section 953(2) is
presumed to be in the best interests of the benefit corporation.
Sec. 959. (1) The duties of any directors and officers of a
benefit corporation, or the general public benefit purpose or any
specific public benefit purpose of a benefit corporation, may be
enforced only in a benefit enforcement proceeding under this
section. A person shall not bring an action or assert a claim
against a benefit corporation or its directors or officers with
respect to the duties of any directors or officers of the benefit
corporation or the general public benefit purpose or any specific
public benefit purpose of the benefit corporation except in a
benefit enforcement proceeding under this section.
(2) A benefit enforcement proceeding against a benefit
corporation may be commenced or maintained only by 1 of the
(a) Directly, by the benefit corporation.
(b) Derivatively, by any of the following:
(i) A shareholder of the benefit corporation that owns,
individually or collectively, as of the date the benefit
enforcement proceeding is instituted, either of the following:
(A) At least 2% of the corporation's outstanding shares.
(B) If the shares of the benefit corporation are listed on a
national securities exchange, 2% of the corporation's outstanding
shares, or shares that have a market value of $2,000,000.00,
whichever is less.
(ii) A director of the benefit corporation.
(iii) A person or group of persons that owns beneficially or
of record 5% or more of the equity interests in an entity of which
the benefit corporation is a subsidiary.
(iv) Any other person specified in the articles or bylaws of
the benefit corporation.
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.
Enacting section 2. This amendatory act does not take effect
unless all of the following bills of the 98th Legislature are
enacted into law:
(a) Senate Bill No.____ or House Bill No. 5712 (request no.
(b) Senate Bill No.____ or House Bill No. 5713 (request no.
(c) Senate Bill No.____ or House Bill No. 5711 (request no.