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23LSO-0049
2023
STATE OF WYOMING
23LSO-0049
Numbered
2.0
HOUSE BILL NO. HB0085
For-profit public benefit corporations.
Sponsored by: Select Committee on Blockchain, Financial Technology and Digital Innovation Technology
A BILL
for
AN ACT relating to corporations; providing for for-profit public benefit corporations; providing definitions; specifying requirements and applicability; imposing duties on boards of directors; and providing for an effective date.
Be It Enacted by the Legislature of the State of Wyoming:
Section 1
.
W.S. 17
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32
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101 through 17
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32
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110 are created to read:
CHAPTER 32
FOR
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PROFIT PUBLIC BENEFIT CORPORATIONS SUPPLEMENT
ARTICLE 1
PROVISIONS
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32
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101.
Short title.
This chapter shall be known and may be cited as the "Wyoming For
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profit Public Benefit Corporations Supplement".
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32
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102.
Definitions.
(a)
As used in this chapter:
(i)
A "for
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profit public benefit corporation" is a corporation operated for profit and organized under and subject to the requirements of this chapter that is intended to produce a public benefit and to operate in a responsible and sustainable manner. This definition does not apply to or modify "public benefit corporation" as defined in W.S. 17
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19
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140(a)(xxix);
(ii)
"Public benefit" means a positive effect or reduction of negative effects on one (1) or more categories of persons, entities, communities or interests, other than stockholders in their capacities as stockholders;
(iii)
"Public benefit provisions" means the provisions of the articles of incorporation required by this chapter.
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32
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103.
Applicability; formation.
(a)
The Wyoming Business Corporation Act applies to for
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profit public benefit corporations to the extent not inconsistent with the provisions of this chapter.
(b)
This chapter applies to for
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profit public benefit corporations. If any other type of corporation elects to become, or converts to, a for
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profit public benefit corporation under this chapter in the manner prescribed in this chapter, it shall be subject in all respects to the provisions of this chapter.
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32
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104.
Contents of articles of incorporation.
(a)
In addition to any requirements set forth in W.S. 17
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16
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202, in its articles of incorporation a for
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profit public benefit corporation shall:
(i)
Identify one (1) or more public benefits to be promoted by the corporation; and
(ii)
State that it is a for
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profit public benefit corporation.
(b)
The name of the for
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profit public benefit corporation may contain the words "public benefit corporation", or the abbreviation "P.B.C.", or the designation "PBC," which shall be deemed to satisfy the requirements of W.S. 17
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16
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401. Except as otherwise provided in this subsection, if the name does not contain "public benefit corporation", "P.B.C." or "PBC", the corporation shall, prior to issuing unissued shares of stock or disposing of treasury shares, provide notice to any person to whom the stock is issued or who acquires the treasury shares that it is a for
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profit public benefit corporation. The notice required under this subsection need not be provided if the issuance or disposal is pursuant to an offering registered under the Securities Act of 1933 (15 U.S.C. § 77r et seq.) or if, at the time of issuance or disposal, the corporation has a class of securities that is registered under the Securities Exchange Act of 1934 (15 U.S.C. § 78a et seq.).
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32
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105.
Nonprofit nonstock corporations.
A nonprofit corporation shall not be a constituent corporation to any merger or consolidation with a for
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profit public benefit corporation or in which the articles of incorporation of the surviving corporation are amended to include a provision authorized by W.S. 17
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32
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104(a)(i).
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32
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106.
Stock certificates; notices regarding uncertificated stock.
Any stock certificate issued by a for
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profit public benefit corporation shall note conspicuously that the corporation is a for
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profit public benefit corporation formed pursuant to this chapter and that the directors of the for
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profit public benefit corporation are required to balance the pecuniary interests of the stockholders and the public benefits identified in the corporation's articles of incorporation. Any notice given by a for
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profit public benefit corporation pursuant to W.S. 17
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16
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626(b) shall state conspicuously that the corporation is a for
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profit public benefit corporation formed pursuant to this chapter.
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32
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107.
Duties of directors.
(a)
The board of directors of a for
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profit public benefit corporation shall manage or direct the business and affairs of the for
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profit public benefit corporation in a manner that balances the pecuniary interests of the stockholders and the public benefits identified in its articles of incorporation.
(b)
A director of a for
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profit public benefit corporation shall not, by virtue of the public benefit provisions or W.S. 17
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32
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102(a)(i), have any duty to any person on account of any interest of the person in the public benefits identified in the articles of incorporation. With respect to a decision implicating the balance requirement in subsection (a) of this section, a director of a for
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profit public benefit corporation shall be deemed to satisfy the director's fiduciary duties to stockholders and the corporation if the director's decision is both informed and disinterested and such that a person of ordinary, sound judgment would approve.
(c)
A director's ownership of or other interest in the stock of the for
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profit public benefit corporation shall not alone, for the purposes of this section, create a conflict of interest on the part of the director with respect to the director's decision implicating the balancing requirement in subsection (a) of this section, except to the extent that the ownership or interest would create a conflict of interest if the corporation were not a for
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profit public benefit corporation.
(d)
In the absence of a conflict of interest, no failure to satisfy the balancing requirement in subsection (a) of this section shall, for the purposes of W.S. 17
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16
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202(b)(iv) or 17
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16
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851 through 17
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858, constitute an act or omission not in good faith or a breach of the duty of loyalty, unless the articles of incorporation so provide.
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32
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108.
Periodic statements and third
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party certification.
(a)
A for
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profit public benefit corporation shall include in every notice of a meeting of stockholders a statement to the effect that it is a for
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profit public benefit corporation formed pursuant to this chapter.
(b)
A for
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profit public benefit corporation shall not less than annually provide its stockholders with a statement as to the corporation's promotion of the public benefits identified in the articles of incorporation. The statement required by this subsection shall include all of the following:
(i)
The objectives the board of directors has established to promote the public benefits and interests;
(ii)
The standards the board of directors has adopted to measure the corporation's progress in promoting the benefits and interests and objective factual information based on those standards regarding the corporation's success in meeting the objectives for promoting the public benefits and interests;
(iii)
An assessment of the corporation's success in meeting its objectives and promoting the public benefits and interests.
(c)
The articles of incorporation or bylaws of a for
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profit public benefit corporation may require that the corporation do any one (1) or more of the following:
(i)
Provide the statement described in subsection (b) of this section more frequently than annually;
(ii)
Make the statement described in subsection (b) of this section available to the public;
(iii)
Use a third
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party standard in connection with or attain a periodic third
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party certification addressing the corporation's promotion of the public benefits identified in the articles of incorporation.
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32
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109.
Enforcement of balancing requirements.
Unless otherwise agreed to by the shareholders, any action to enforce the balancing requirement of W.S. 17
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107(a), including any individual, derivative or any other type of proceeding, shall not be brought unless the plaintiffs in the proceeding own individually or collectively, as of the date of instituting the proceeding, at least two percent (2%) of the corporation's outstanding shares or, in the case of a corporation with shares listed on a national securities exchange, the lesser of two percent (2%) of the corporation's outstanding shares or shares with a market value of at least two million dollars ($2,000,000.00) as of the date the action is instituted. This section shall not relieve the plaintiffs from complying with any other conditions applicable to filing a derivative proceeding including W.S. 17
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16
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741(a)(i) and any rules of the court in which the action is filed.
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110.
No effect on other corporations.
This chapter shall not affect any statute or rule of law that is applicable to a corporation that is not a for
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profit public benefit corporation formed under this act, except as provided in W.S. 17
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32
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105.
Section 2
.
This act is effective July 1, 2023
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(END)
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HB0085