Bill Text: CA AB816 | 2015-2016 | Regular Session | Chaptered
Bill Title: Cooperative corporations: worker cooperatives.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Passed) 2015-08-12 - Chaptered by Secretary of State - Chapter 192, Statutes of 2015. [AB816 Detail]
Download: California-2015-AB816-Chaptered.html
BILL NUMBER: AB 816 CHAPTERED
BILL TEXT
CHAPTER 192
FILED WITH SECRETARY OF STATE AUGUST 12, 2015
APPROVED BY GOVERNOR AUGUST 12, 2015
PASSED THE SENATE JULY 13, 2015
PASSED THE ASSEMBLY JULY 16, 2015
AMENDED IN SENATE JULY 6, 2015
AMENDED IN SENATE JUNE 22, 2015
AMENDED IN ASSEMBLY MAY 14, 2015
AMENDED IN ASSEMBLY APRIL 30, 2015
AMENDED IN ASSEMBLY APRIL 13, 2015
INTRODUCED BY Assembly Member Bonta
(Coauthor: Assembly Member Dababneh)
(Coauthor: Senator Hancock)
FEBRUARY 26, 2015
An act to amend Sections 12200, 12238, 12243, 12253, 12310, 12404,
12420, 12431, 12460, 12461, 12530, 12653, and 25100 of, to amend the
heading of Part 2 (commencing with Section 12200) of Division 3 of
Title 1 of, and to add Sections 12201.5, 12228.3, 12230.5, 12253.5,
12310.5, 12317, 12404.5, 12454.5, 12460.5, 12530.5, and 12656.5 to,
the Corporations Code, relating to cooperative corporations.
LEGISLATIVE COUNSEL'S DIGEST
AB 816, Bonta. Cooperative corporations: worker cooperatives.
Existing law, the Consumer Cooperative Corporation Law, governs
the organization and operation of consumer cooperative corporations.
The law specifies the provisions that may be set forth in the
articles of incorporation of a consumer cooperative. Existing law
provides for, among other things, information to be included in a
corporation's bylaws, definitions necessary for purposes of defining
patrons, and requirements as to voting rights of members. Except as
specified, existing law requires that the voting power of members
having voting rights in a cooperative corporation be equal. Existing
law also requires cooperative corporations to hold a meeting of
members annually. Existing law makes the violation of specified
provisions a crime.
This bill would rename the law the Cooperative Corporation Law,
and authorize a cooperative corporation to elect to designate itself
as a worker cooperative in its articles of incorporation. The bill
would require that 51% of the workers shall be worker-members or
candidates. The bill would authorize a worker cooperative to
apportion and distribute its net earnings and losses at the time and
in the manner specified in the articles of incorporation or bylaws.
The bill would require a worker cooperative to only make patronage
distributions to the worker-member class. The bill would define the
patrons of a worker cooperative as worker-members and authorize their
patronage to be measured by work performed. The bill would authorize
a worker cooperative to issue a membership, that is not divisible
into partial memberships, having the rights, privileges, preferences,
restrictions, or conditions as provided in the articles or bylaws.
This bill would also authorize a worker cooperative to establish
itself as a capital account cooperative in its articles or bylaws, in
which case the entire net book value of the corporation would be
reflected in member capital accounts, one for each member, and an
unallocated capital account, if any, as specified.
This bill would also authorize a worker cooperative to establish
itself as a collective board worker cooperative, in which all
worker-members serve on the board. A collective board worker
cooperative would not be required to hold an annual meeting of
members.
This bill would authorize 2 or more worker cooperatives to
consolidate, as specified, prescribe the actions to be taken upon the
dissolution of a worker cooperative, and make other conforming
changes.
The Corporate Securities Law of 1968 generally regulates the offer
and sale of securities in this state. That law requires the offer
and sale of securities to be qualified with the Commissioner of
Business Oversight, and exempts specified transactions or securities
from qualification. That law makes it unlawful for a person in
connection with the offer or sale of a security to engage in
fraudulent or misleading acts or omissions.
The shares or memberships by a corporation subject to the Consumer
Cooperative Corporation Law are exempt from the qualification
requirement, if the investment does not exceed $300.
The bill would increase the investment limitation of the
above-referenced exemption from qualification from $300 to $1,000.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) A worker cooperative has the purpose of creating and
maintaining sustainable jobs and generating wealth in order to
improve the quality of life of its worker-members, dignify human
work, allow workers' democratic self-management, and promote
community and local development in this state.
(b) The purpose of this act is to amend the Consumer Cooperative
Corporation Law to clarify that the law applies to cooperatives in
general, not just consumer cooperatives, and to create more
visibility for worker cooperatives. This act is intended to provide a
definition of worker cooperative for purposes of this act, and not
for purposes of other laws.
SEC. 2. The heading of Part 2 (commencing with Section 12200) of
Division 3 of Title 1 of the Corporations Code is amended to read:
PART 2. COOPERATIVE CORPORATIONS
SEC. 3. Section 12200 of the Corporations Code is amended to read:
12200. This part shall be known as the Cooperative Corporation
Law. This part is intended primarily to apply to the organization and
operation of cooperatives, including, but not limited to, consumer
cooperatives, worker cooperatives, and cooperatives formed for the
purpose of recycling or treating hazardous waste that elect to
incorporate under its provisions.
SEC. 4. Section 12201.5 is added to the Corporations Code, to
read:
12201.5. (a) Notwithstanding Section 12201, the net earnings and
losses of a worker cooperative shall be apportioned and distributed
at the time and in the manner specified in the articles of
incorporation or bylaws.
(b) Net earnings declared as patronage distributions with respect
to a period of time, and paid to a creditor or member, shall be
apportioned among the members in accordance with the ratio that each
member's patronage during the period bears to total patronage by all
members during the period.
(c) The apportionment, distribution, and payment of net earnings
required by subdivision (a) may be paid in cash, credits, written
notices of allocation, or capital stock issued by the worker
cooperative.
SEC. 5. Section 12228.3 is added to the Corporations Code, to
read:
12228.3. "Capital account cooperative" is a worker cooperative in
which the entire net book value is reflected in member capital
accounts, one for each member, and an unallocated capital account, if
any.
SEC. 6. Section 12230.5 is added to the Corporations Code, to
read:
12230.5. "Collective board worker cooperative" means a worker
cooperative in which there is only one class of members consisting of
worker-members, all of whom are members of the board.
SEC. 7. Section 12238 of the Corporations Code is amended to read:
12238. (a) "Member" means any person who, pursuant to a specific
provision of a corporation's articles or bylaws, has the right to
vote for the election of a director or directors, or possesses
proprietary interests in the corporation.
(b) The articles or bylaws may confer some or all of the rights of
a member, set forth in this part, upon any person or persons who do
not have any of the voting rights referred to in subdivision (a).
(c) Where a member of a corporation is not a natural person, such
member may authorize in writing one or more natural persons to vote
on its behalf on any or all matters which may require a vote of the
members.
(d) A person is not a member by virtue of any of the following:
(1) Any rights such person has as a delegate.
(2) Any rights such person has to designate or select a director
or directors.
(3) Any rights such person has as a director.
(e) "Worker-member" means a member of a worker cooperative who is
a natural person and also a patron of a worker cooperative.
(f) "Community investor" means a person who is not a
worker-member and who holds a share or other proprietary interest in
a worker cooperative.
(g) "Worker" means a natural person contributing labor or services
to a worker cooperative. "Candidate" means a worker who is being
considered for membership in a worker cooperative, as defined in the
corporation's articles or bylaws.
SEC. 8. Section 12243 of the Corporations Code is amended to read:
12243. (a) (1) If the corporation is organized to provide goods
or services to its members, the corporation's "patrons" are those who
purchase those types of goods from, or use those types of services
of, the corporation. If the corporation is organized to market,
process, or otherwise handle its members' products or services, the
corporation's "patrons" are those persons whose products or services
are so marketed, processed, or handled by the corporation.
(2) "Patronage" of a patron is measured by the volume or value, or
both, of a patron's purchases of products from, and use of services
furnished by, the corporation, and by products and services provided
by the patron to the corporation for marketing.
(b) (1) If the corporation is organized as a worker cooperative,
the corporation's "patrons" are its worker-members.
(2) If the corporation is organized as a worker cooperative,
"patronage" may be measured by work performed, including, but not
limited to, wages earned, number of hours worked, number of jobs
created, or some combination of these measures.
SEC. 9. Section 12253 of the Corporations Code is amended to read:
12253. (a) "Voting power" means the power to vote for the
election of directors at the time any determination of voting power
is made and does not include the right to vote upon the happening of
some condition or event that has not yet occurred.
(b) If different classes of memberships are entitled to vote as
separate classes for different members of the board, the
determination of percentage of voting power shall be made on the
basis of the percentage of the total number of authorized directors
that the memberships in question (whether of one or more classes)
have the power to elect in an election at which all memberships then
entitled to vote for the election of any directors are voted.
(c) Community investor voting power in a worker cooperative shall
be provided in the articles or bylaws, and is limited to approval
rights only over a merger, sale of major assets, reorganization, or
dissolution. Approval rights shall not include the right to propose
any action.
SEC. 10. Section 12253.5 is added to the Corporations Code, to
read:
12253.5. "Worker cooperative" or "employment cooperative" means a
corporation formed under this part that includes a class of
worker-members who are natural persons whose patronage consists of
labor contributed to or other work performed for the corporation.
Election to be organized as a worker cooperative or an employment
cooperative does not create a presumption that workers are employees
of the corporation for any purposes. At least 51 percent of the
workers shall be worker-members or candidates.
SEC. 11. Section 12310 of the Corporations Code is amended to
read:
12310. The articles of incorporation of a corporation formed
under this part shall set forth:
(a) The name of the corporation.
(b) The following statement:
"This corporation is a cooperative corporation organized under the
Cooperative Corporation Law. The purpose of this corporation is to
engage in any lawful act or activity for which a corporation may be
organized under the law."
The articles may include a further description of the
corporation's purpose.]
(c) The name and street address in this state of the corporation's
initial agent for service of process in accordance with subdivision
(b) of Section 12570.
(d) The initial street address of the corporation.
(e) The initial mailing address of the corporation, if different
from the initial street address.
(f) Whether the voting power or the proprietary interests of the
members are equal or unequal. If the voting power or proprietary
interests of the members are unequal, the articles shall state either
(i) the general rule or rules by which the voting power and
proprietary interests of the members shall be determined or (ii) that
such rule or rules shall be prescribed in the corporation's bylaws.
Equal voting power means voting power apportioned on the basis of one
vote for each member. Equal proprietary rights means property rights
apportioned on the basis of one proprietary unit for each member.
(g) Pursuant to Section 12310.5, the articles of incorporation may
state whether the cooperative has elected to be governed as a worker
cooperative.
SEC. 12. Section 12310.5 is added to the Corporations Code, to
read:
12310.5. (a) A corporation organized under this part may elect to
be governed as a worker cooperative by making the following
statement in its articles of incorporation or its amended articles of
incorporation:
"This corporation is a worker cooperative corporation organized
under the Cooperative Corporation Law."
(b) A corporation that makes the election to be governed as a
worker cooperative, unless expressly exempted, shall be governed by
all the provisions of this part.
SEC. 13. Section 12317 is added to the Corporations Code, to read:
12317. (a) A worker cooperative may, in its articles or bylaws,
establish itself as a capital account cooperative.
(b) The articles or bylaws of a capital account cooperative may
authorize assignment of a portion of retained net earnings and net
losses to an unallocated capital account. The unallocated capital
account in a capital account cooperative shall reflect any paid-in
capital and retained net earnings not allocated to individual
members. Earnings assigned to the unallocated capital account may be
used for any and all corporate purposes, as determined by the board
of directors.
(c) The system of member and unallocated capital accounts may be
used to determine the redemption price of member shares, capital
stock, and written notices of allocation. The articles or bylaws may
provide for the capital account cooperative worker cooperative to pay
or credit interest on the balance in each member's capital account.
(d) The articles or bylaws of a capital account cooperative may
permit the periodic redemption of written notices of allocation and
capital stock and shall provide for recall and redemption of
membership shares upon termination of membership in the cooperative.
However, no redemption may occur that would result in the liability
of any director or officer pursuant to Article 2 (commencing with
Section 12370) of Chapter 2.
(e) As used in this section, "written notice of allocation" has
the same meaning as defined in Section 1388 (b) of the Internal
Revenue Code.
SEC. 14. Section 12404 of the Corporations Code is amended to
read:
12404. Except as permitted in Sections 12314 and 12404.5, the
voting power of members having voting rights shall be equal.
SEC. 15. Section 12404.5 is added to the Corporations Code, to
read:
12404.5. (a) The worker-members of a worker cooperative shall
have voting power as provided in subdivision (a) of Section 12253.
(b) Community investors have voting power only as provided in
subdivision (c) of Section 12253.
SEC. 16. Section 12420 of the Corporations Code is amended to
read:
12420. (a) Except as provided in subdivision (b), a corporation
may issue memberships having different rights, privileges,
preferences, restrictions, or conditions, as provided in its articles
or bylaws. If the articles or bylaws authorize at least one class of
voting memberships, a corporation may also authorize and issue
additional classes of memberships, preferred or otherwise, that are
divisible into a series or are nonvoting or both.
(b) All worker-members shall have the rights, privileges,
preferences, restrictions, or conditions as provided in the articles
or bylaws. This membership shall not be divided into partial
memberships.
(c) A worker cooperative shall only make patronage distributions
to the worker-member class.
SEC. 17. Section 12431 of the Corporations Code is amended to
read:
12431. (a) No member may be expelled or suspended, and no
membership or memberships may be terminated or suspended, except
according to procedures satisfying the requirements of this section.
An expulsion, termination, or suspension not in accord with this
section shall be void and without effect.
(b) Any expulsion, suspension, or termination must be done in good
faith and in a fair and reasonable manner. Any procedure that
conforms to the requirements of subdivision (c) or (d) is fair and
reasonable, but a court may also find other procedures to be fair and
reasonable when the full circumstances of the suspension,
termination, or expulsion are considered.
(c) A procedure is fair and reasonable if all of the following
occur:
(1) The provisions of the procedure have been set forth in the
articles or bylaws, or copies of such provisions are sent annually to
all the members as required by the articles or bylaws.
(2) It provides the giving of 15 days' prior notice of the
expulsion, suspension, or termination and the reasons therefor.
(3) It provides an opportunity for the member to be heard, orally
or in writing, not less than five days before the effective date of
the expulsion, suspension, or termination by a person or body
authorized to decide that the proposed expulsion, termination, or
suspension not take place.
(d) Any notice required under this section may be given by any
method reasonably calculated to provide actual notice. Any notice
given by mail must be given by first-class or registered mail sent to
the last address of the members shown on the corporation's records.
(e) Any action challenging an expulsion, suspension, or
termination of membership, including any claim alleging defective
notice, must be commenced within one year after the date of the
expulsion, suspension, or termination. In the event such an action is
successful the court may order any relief, including reinstatement,
it finds equitable under the circumstances, but no vote of the
members or of the board may be set aside solely because a person was
at the time of the vote wrongfully excluded by virtue of the
challenged expulsion, suspension, or termination, unless the court
finds further that the wrongful expulsion, suspension, or termination
was in bad faith and for the purpose, and with the effect, of
wrongfully excluding the member from the vote or from the meeting at
which the vote took place, so as to affect the outcome of the vote.
(f) This section governs only the procedures for expulsion,
suspension, or termination and not the substantive grounds therefor.
An expulsion, suspension, or termination based upon substantive
grounds which violate contractual or other rights of the member or
are otherwise unlawful is not made valid by compliance with this
section.
(g) A member who is expelled or suspended or whose membership is
terminated shall be liable for any charges incurred, services or
benefits actually rendered, dues, assessments, or fees incurred
before expulsion, suspension, or termination or arising from contract
or otherwise.
SEC. 18. Section 12454.5 is added to the Corporations Code, to
read:
12454.5. (a) A worker cooperative may create an indivisible
reserves account that shall not be distributed to members.
(b) Funds in the indivisible reserves account shall only derive
from non-patronage-sourced income, in a manner provided in the
articles or bylaws, or by the board, and shall be used as capital for
the cooperative.
SEC. 19. Section 12460 of the Corporations Code is amended to
read:
12460. (a) Meetings of members may be held at a place within or
without this state that is stated in or fixed in accordance with the
bylaws. If no other place is so stated or fixed, meetings of members
shall be held at the principal executive office of the corporation.
Unless prohibited by the bylaws of the corporation, if authorized by
the board of directors in its sole discretion, and subject to the
requirement of consent in clause (b) of Section 20 and those
guidelines and procedures as the board of directors may adopt,
members not physically present in person at a meeting of members may,
by electronic transmission by and to the corporation (Sections 20
and 21) or by electronic video screen communication, participate in a
meeting of members, be deemed present in person, and vote at a
meeting of members whether that meeting is to be held at a designated
place or in whole or in part by means of electronic transmission by
and to the corporation or by electronic video screen communication,
in accordance with subdivision (f).
(b) Except as provided in Section 12460.5, a regular meeting of
members shall be held annually. In any year in which directors are
elected, the election shall be held at the regular meeting unless the
directors are chosen in some other manner authorized by law. Any
other proper business may be transacted at the meeting.
(c) If a corporation fails to hold the regular meeting for a
period of 60 days after the date designated therefor or, if no date
has been designated, for a period of 15 months after the formation of
the corporation or after its last regular meeting, or if the
corporation fails to hold a written ballot for a period of 60 days
after the date designated therefor, then the superior court of the
proper county may summarily order the meeting to be held or the
ballot to be conducted upon the application of a member, after notice
to the corporation giving it an opportunity to be heard.
(d) The votes represented at a meeting called or by written ballot
ordered pursuant to subdivision (c) and entitled to be cast on the
business to be transacted shall constitute a quorum, notwithstanding
any provision of the articles or bylaws or provision in this part to
the contrary. The court may issue such orders as may be appropriate
including, without limitation, orders designating the time and place
of the meeting, the record date for determination of members entitled
to vote, and the form of notice of the meeting.
(e) Special meetings of members for any lawful purpose may be
called by the board, the chairman of the board, the president, or
other persons, if any, as are specified in the bylaws. In addition,
special meetings of members for any lawful purpose may be called by 5
percent or more of the members, however, in a worker cooperative
with more than four worker-members, a special meeting may only be
called by the greater of three worker-members or 5 percent of the
worker-members. In a worker cooperative with fewer than four
worker-members, special meetings may be called by one worker-member.
(f) A meeting of the members may be conducted, in whole or in
part, by electronic transmission by and to the corporation or by
electronic video screen communication (1) if the corporation
implements reasonable measures to provide members a reasonable
opportunity to participate in the meeting and to vote on matters
submitted to the members, including an opportunity to read or hear
the proceedings of the meeting concurrently with those proceedings,
and (2) if any member votes or takes other action at the meeting by
means of electronic transmission to the corporation or electronic
video screen communication, a record of that vote or action is
maintained by the corporation. Any request by a corporation to a
member pursuant to clause (b) of Section 20 for consent to conduct a
meeting of members by electronic transmission by and to the
corporation, shall include a notice that absent consent of the member
pursuant to clause (b) of Section 20, the meeting shall be held at a
physical location in accordance with subdivision (a).
SEC. 20. Section 12460.5 is added to the Corporations Code, to
read:
12460.5. Notwithstanding Section 12460, a collective board worker
cooperative shall not be required to hold an annual meeting of
members.
SEC. 21. Section 12461 of the Corporations Code is amended to
read:
12461. (a) Whenever members are required or permitted to take any
action at a meeting, a written notice of the meeting shall be given
not less than 10 nor more than 90 days before the date of the meeting
to each member who, on the record date for notice of the meeting, is
entitled to vote thereat; provided, however, that if notice is given
by mail, and the notice is not mailed by first-class, registered, or
certified mail, that notice shall be given not less than 20 days
before the meeting. A worker cooperative shall provide notice of the
meeting not less than 48 hours before the meeting if the meeting is a
meeting of only worker-members, provided that the notice is
delivered personally to every worker-member. Subject to subdivision
(f), and subdivision (b) of Section 12462, that notice shall state
the place, date, and time of the meeting, the means of electronic
transmission by and to the corporation (Sections 20 and 21) or
electronic video screen communication, if any, by which members may
participate in that meeting, and (1) in the case of a special
meeting, the general nature of the business to be transacted, and no
other business may be transacted, or (2) in the case of the regular
meeting, those matters which the board, at the time the notice is
given, intends to present for action by the members, but, except as
provided in subdivision (b) of Section 12462, any proper matter may
be presented at the meeting for such action. The notice of any
meeting at which directors are to be elected shall include the names
of all those who are nominees at the time the notice is given to
members.
(b) Notice of a members' meeting or any report shall be given
personally, by electronic transmission by the corporation, or by mail
or other means of written communication, addressed to a member at
the address of such member appearing on the books of the corporation
or given by the member to the corporation for purpose of notice; or
if no such address appears or is given, at the place where the
principal office of the corporation is located or by publication at
least once in a newspaper of general circulation in the county in
which the principal office is located. An affidavit of giving of any
notice or report in accordance with the provisions of this part,
executed by the secretary, assistant secretary, or any transfer
agent, shall be prima facie evidence of the giving of the notice or
report.
If any notice or report addressed to the member at the address of
such member appearing on the books of the corporation is returned to
the corporation by the United States Postal Service marked to
indicate the United States Postal Service is unable to deliver the
notice or report to the member at such address, all future notices or
reports shall be deemed to have been duly given without further
mailing if the same shall be available for the member upon written
demand of the member at the principal office of the corporation for a
period of one year from the date of the giving of the notice or
report to all other members.
Notice given by electronic transmission by the corporation under
this subdivision shall be valid only if it complies with Section 20.
Notwithstanding the foregoing, notice shall not be given by
electronic transmission by the corporation under this subdivision
after either of the following:
(1) The corporation is unable to deliver two consecutive notices
to the member by that means.
(2) The inability to so deliver the notices to the member becomes
known to the secretary, any assistant secretary, the transfer agent,
or other person responsible for the giving of the notice.
(c) Upon request in writing to the corporation addressed to the
attention of the chairman of the board, president, vice president, or
secretary by any person (other than the board) entitled to call a
special meeting of members, the officer forthwith shall cause notice
to be given to the members entitled to vote that a meeting will be
held at a time fixed by the board not less than 35 nor more than 90
days after the receipt of the request. If the notice is not given
within 20 days after receipt of the request, the persons entitled to
call the meeting may give the notice or the superior court of the
proper county shall summarily order the giving of the notice, after
notice to the corporation giving it an opportunity to be heard. The
court may issue such orders as may be appropriate, including, without
limitation, orders designating the time and place of the meeting,
the record date for determination of members entitled to vote, and
the form of notice.
(d) When a members' meeting is adjourned to another time or place,
unless the bylaws otherwise require and except as provided in this
subdivision, notice need not be given of the adjourned meeting if the
time and place thereof (or the means of electronic transmission by
and to the corporation or electronic video screen communication, if
any, by which members may participate) are announced at the meeting
at which the adjournment is taken. At the adjourned meeting the
corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for more
than 45 days or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be
given to each member of record entitled to vote at the meeting.
(e) The transactions of any meeting of members however called and
noticed, and wherever held, are as valid as though had at a meeting
duly held after regular call and notice, if a quorum is present, and
if, either before or after the meeting, each of the persons entitled
to vote, not present in person, provides a waiver of notice or
consent to the holding of the meeting or an approval of the minutes
thereof in writing. All such waivers, consents, and approvals shall
be filed with the corporate records or made a part of the minutes of
the meeting. Attendance of a person at a meeting shall constitute a
waiver of notice of and presence at such meeting, except when the
person objects, at the beginning of the meeting, to the transaction
of any business because the meeting is not lawfully called or
convened and except that attendance at a meeting is not a waiver of
any right to object to the consideration of matters required by this
part to be included in the notice but not so included, if such
objection is expressly made at the meeting. Neither the business to
be transacted at nor the purpose of any regular or special meeting of
members need be specified in any written waiver of notice, consent
to the holding of the meeting, or approval of the minutes thereof,
unless otherwise provided in the articles or bylaws, except as
provided in subdivision (f).
(f) Any approval of the
members required under Section 12362, 12364, 12373, 12502, or 12658
other than unanimous approval by those entitled to vote, shall be
valid only if the general nature of the proposal so approved was
stated in the notice of meeting or in any written waiver of notice.
(g) A court may find that notice not given in conformity with this
section is still valid, if it was given in a fair and reasonable
manner.
(h) Subject to the provisions of subdivision (i), and unless
prohibited by the articles or bylaws, prior to any regular or special
meeting of members, the board may authorize distribution of a
written ballot to every member entitled to vote at the meeting. Such
ballot shall set forth the action proposed to be taken at the
meeting, shall provide an opportunity to specify approval or
disapproval of the proposed action, and shall state that unless
revoked by the member voting in person at the meeting, the ballot
will be counted if received by the corporation on or before the time
of the meeting with respect to which it was sent. If ballots are so
distributed with respect to a meeting, the number of members voting
at the meeting by unrevoked written ballots shall be deemed present
at the meeting for purposes of determining the existence of a quorum
pursuant to subdivision (a) of Section 12462 but only with respect to
the proposed action referred to in the ballots. These ballots shall
be distributed in a manner consistent with the requirements of
subdivision (b) and Section 12464.
(i) Unless prohibited by the articles or bylaws, written ballots
may be distributed in a manner contemplated by subdivision (h) with
respect to the election of directors, except that no ballots may be
so distributed with respect to the election of directors if
cumulative voting is permitted pursuant to Section 12484.
SEC. 22. Section 12530 of the Corporations Code is amended to
read:
12530. Except as provided in Section 12530.5, any corporation may
merge with another domestic corporation, foreign corporation, or
other business entity. However, a merger with a nonprofit public
benefit corporation or a nonprofit religious corporation must have
the prior written consent of the Attorney General.
SEC. 23. Section 12530.5 is added to the Corporations Code, to
read:
12530.5. Notwithstanding Section 12530, a worker cooperative that
has not revoked its election to be governed as a worker cooperative
under Section 12310.5 shall not consolidate or merge with another
corporation other than another worker cooperative. Two or more worker
cooperatives may merge or consolidate in a manner consistent with
this chapter.
SEC. 24. Section 12653 of the Corporations Code is amended to
read:
12653. (a) After determining that all the known debts and
liabilities of a corporation in the process of winding up have been
paid or adequately provided for, the board shall distribute all the
remaining corporate assets in the manner provided in Sections 12655,
12656, and 12656.5.
(b) If the winding up is by court proceeding or subject to court
supervision, the distribution shall not be made until after the
expiration of any period for the presentation of claims that has been
prescribed by order of the court.
(c) Anything to the contrary notwithstanding, assets, if any, that
are not subject to attachment, execution, or sale for the
corporation's debts and liabilities may be distributed pursuant to
Sections 12655, 12656, and 12656.5 even though all debts and
liabilities have not been paid or adequately provided for.
SEC. 25. Section 12656.5 is added to the Corporations Code, to
read:
12656.5. (a) After complying with the provisions of Section
12653, and except as otherwise provided in Section 12655, upon
dissolution of a worker cooperative the majority of the unallocated
capital account shall be distributed to members on the basis of any
of the following, as specified in the articles of incorporation or
bylaws of the cooperative:
(1) Patronage.
(2) Capital contributions.
(3) A combination of patronage and capital contributions.
(b) A worker cooperative is authorized to include patronage
provided by past and current members in its distribution of the
unallocated capital account.
(c) Subdivision (a) shall not apply to any amounts in the
indivisible reserve account. Any amount in the indivisible reserve
account shall, upon dissolution, be allocated to a cooperative
development organization designated in the articles of incorporation
or the bylaws.
SEC. 26. Section 25100 of the Corporations Code is amended to
read:
25100. The following securities are exempted from Sections 25110,
25120, and 25130:
(a) Any security (including a revenue obligation) issued or
guaranteed by the United States, any state, any city, county, city
and county, public district, public authority, public corporation,
public entity, or political subdivision of a state or any agency or
corporate or other instrumentality of any one or more of the
foregoing; or any certificate of deposit for any of the foregoing.
(b) Any security issued or guaranteed by Canada, any Canadian
province, any political subdivision or municipality of that province,
or by any other foreign government with which the United States
currently maintains diplomatic relations, if the security is
recognized as a valid obligation by the issuer or guarantor; or any
certificate of deposit for any of the foregoing.
(c) Any security issued or guaranteed by and representing an
interest in or a direct obligation of a national bank or a bank or
trust company incorporated under the laws of this state, and any
security issued by a bank to one or more other banks and representing
an interest in an asset of the issuing bank.
(d) Any security issued or guaranteed by a federal savings
association or federal savings bank or federal land bank or joint
land bank or national farm loan association or by any savings
association, as defined in subdivision (a) of Section 5102 of the
Financial Code, which is subject to the supervision and regulation of
the Commissioner of Business Oversight of this state.
(e) Any security (other than an interest in all or portions of a
parcel or parcels of real property which are subdivided land or a
subdivision or in a real estate development), the issuance of which
is subject to authorization by the Insurance Commissioner, the Public
Utilities Commission, or the Real Estate Commissioner of this state.
(f) Any security consisting of any interest in all or portions of
a parcel or parcels of real property that are subdivided lands or a
subdivision or in a real estate development; provided that the
exemption in this subdivision shall not be applicable to: (1) any
investment contract sold or offered for sale with, or as part of,
that interest, or (2) any person engaged in the business of selling,
distributing, or supplying water for irrigation purposes or domestic
use that is not a public utility except that the exemption is
applicable to any security of a mutual water company (other than an
investment contract as described in paragraph (1)) offered or sold in
connection with subdivided lands pursuant to Chapter 2 (commencing
with Section 14310) of Part 7 of Division 3 of Title 1.
(g) Any mutual capital certificates or savings accounts, as
defined in the Savings Association Law, issued by a savings
association, as defined by subdivision (a) of Section 5102 of the
Financial Code, and holding a license or certificate of authority
then in force from the Commissioner of Business Oversight of this
state.
(h) Any security issued or guaranteed by any federal credit union,
or by any credit union organized and supervised, or regulated, under
the Credit Union Law.
(i) Any security issued or guaranteed by any railroad, other
common carrier, public utility, or public utility holding company
which is (1) subject to the jurisdiction of the Interstate Commerce
Commission or its successor or (2) a holding company registered with
the Securities and Exchange Commission under the Public Utility
Holding Company Act of 1935 or a subsidiary of that company within
the meaning of that act or (3) regulated in respect of the issuance
or guarantee of the security by a governmental authority of the
United States, of any state, of Canada or of any Canadian province;
and the security is subject to registration with or authorization of
issuance by that authority.
(j) Any security (except evidences of indebtedness, whether
interest bearing or not) of an issuer (1) organized exclusively for
educational, benevolent, fraternal, religious, charitable, social, or
reformatory purposes and not for pecuniary profit, if no part of the
net earnings of the issuer inures to the benefit of any private
shareholder or individual, or (2) organized as a chamber of commerce
or trade or professional association. The fact that amounts received
from memberships or dues or both will or may be used to construct or
otherwise acquire facilities for use by members of the nonprofit
organization does not disqualify the organization for this exemption.
This exemption does not apply to the securities of any nonprofit
organization if any promoter thereof expects or intends to make a
profit directly or indirectly from any business or activity
associated with the organization or operation of that nonprofit
organization or from remuneration received from that nonprofit
organization.
(k) Any agreement, commonly known as a "life income contract," of
an issuer (1) organized exclusively for educational, benevolent,
fraternal, religious, charitable, social, or reformatory purposes and
not for pecuniary profit and (2) which the commissioner designates
by rule or order, with a donor in consideration of a donation of
property to that issuer and providing for the payment to the donor or
persons designated by him or her of income or specified periodic
payments from the donated property or other property for the life of
the donor or those other persons.
( l ) Any note, draft, bill of exchange, or banker's
acceptance which is freely transferable and of prime quality, arises
out of a current transaction or the proceeds of which have been or
are to be used for current transactions, and which evidences an
obligation to pay cash within nine months of the date of issuance,
exclusive of days of grace, or any renewal of that paper which is
likewise limited, or any guarantee of that paper or of that renewal,
provided that the paper is not offered to the public in amounts of
less than twenty-five thousand dollars ($25,000) in the aggregate to
any one purchaser. In addition, the commissioner may, by rule or
order, exempt any issuer of any notes, drafts, bills of exchange or
banker's acceptances from qualification of those securities when the
commissioner finds that the qualification is not necessary or
appropriate in the public interest or for the protection of
investors.
(m) Any security issued by any corporation organized and existing
under the provisions of Chapter 1 (commencing with Section 54001) of
Division 20 of the Food and Agricultural Code.
(n) Any beneficial interest in an employees' pension,
profit-sharing, stock bonus, or similar benefit plan which meets the
requirements for qualification under Section 401 of the federal
Internal Revenue Code or any statute amendatory thereof or
supplementary thereto. A determination letter from the Internal
Revenue Service stating that an employees' pension, profit-sharing,
stock bonus, or similar benefit plan meets those requirements shall
be conclusive evidence that the plan is an employees' pension,
profit-sharing, stock bonus, or similar benefit plan within the
meaning of the first sentence of this subdivision until the date the
determination letter is revoked in writing by the Internal Revenue
Service, regardless of whether or not the revocation is retroactive.
(o) Any security listed or approved for listing upon notice of
issuance on a national securities exchange, if the exchange has been
certified by rule or order of the commissioner and any warrant or
right to purchase or subscribe to the security. The exemption
afforded by this subdivision does not apply to securities listed or
approved for listing upon notice of issuance on a national securities
exchange, in a rollup transaction unless the rollup transaction is
an eligible rollup transaction as defined in Section 25014.7.
That certification of any exchange shall be made by the
commissioner upon the written request of the exchange if the
commissioner finds that the exchange, in acting on applications for
listing of common stock, substantially applies the minimum standards
set forth in either subparagraph (A) or (B) of paragraph (1), and, in
considering suspension or removal from listing, substantially
applies each of the criteria set forth in paragraph (2).
(1) Listing standards:
(A) (i) Shareholders' equity of at least four million dollars
($4,000,000).
(ii) Pretax income of at least seven hundred fifty thousand
dollars ($750,000) in the issuer's last fiscal year or in two of its
last three fiscal years.
(iii) Minimum public distribution of 500,000 shares (exclusive of
the holdings of officers, directors, controlling shareholders, and
other concentrated or family holdings), together with a minimum of
800 public holders or minimum public distribution of 1,000,000 shares
together with a minimum of 400 public holders. The exchange may also
consider the listing of a company's securities if the company has a
minimum of 500,000 shares publicly held, a minimum of 400
shareholders and daily trading volume in the issue has been
approximately 2,000 shares or more for the six months preceding the
date of application. In evaluating the suitability of an issue for
listing under this trading provision, the exchange shall review the
nature and frequency of that activity and any other factors as it may
determine to be relevant in ascertaining whether the issue is
suitable for trading. A security that trades infrequently shall not
be considered for listing under this paragraph even though average
daily volume amounts to 2,000 shares per day or more.
Companies whose securities are concentrated in a limited
geographical area, or whose securities are largely held in block by
institutional investors, normally may not be considered eligible for
listing unless the public distribution appreciably exceeds 500,000
shares.
(iv) Minimum price of three dollars ($3) per share for a
reasonable period of time prior to the filing of a listing
application; provided, however, in certain instances an exchange may
favorably consider listing an issue selling for less than three
dollars ($3) per share after considering all pertinent factors,
including market conditions in general, whether historically the
issue has sold above three dollars ($3) per share, the applicant's
capitalization, and the number of outstanding and publicly held
shares of the issue.
(v) An aggregate market value for publicly held shares of at least
three million dollars ($3,000,000).
(B) (i) Shareholders' equity of at least four million dollars
($4,000,000).
(ii) Minimum public distribution set forth in clause (iii) of
subparagraph (A) of paragraph (1).
(iii) Operating history of at least three years.
(iv) An aggregate market value for publicly held shares of at
least fifteen million dollars ($15,000,000).
(2) Criteria for consideration of suspension or removal from
listing:
(A) If a company that (A) has shareholders' equity of less than
one million dollars ($1,000,000) has sustained net losses in each of
its two most recent fiscal years, or (B) has net tangible assets of
less than three million dollars ($3,000,000) and has sustained net
losses in three of its four most recent fiscal years.
(B) If the number of shares publicly held (excluding the holdings
of officers, directors, controlling shareholders, and other
concentrated or family holdings) is less than 150,000.
(C) If the total number of shareholders is less than 400 or if the
number of shareholders of lots of 100 shares or more is less than
300.
(D) If the aggregate market value of shares publicly held is less
than seven hundred fifty thousand dollars ($750,000).
(E) If shares of common stock sell at a price of less than three
dollars ($3) per share for a substantial period of time and the
issuer shall fail to effectuate a reverse stock split of the shares
within a reasonable period of time after being requested by the
exchange to take that action.
A national securities exchange, certified by rule or order of the
commissioner under this subdivision, shall file annual reports when
requested to do so by the commissioner. The annual reports shall
contain, by issuer: the variances granted to an exchange's listing
standards, including variances from corporate governance and voting
rights' standards, for any security of that issuer; the reasons for
the variances; a discussion of the review procedure instituted by the
exchange to determine the effect of the variances on investors and
whether the variances should be continued; and any other information
that the commissioner deems relevant. The purpose of these reports is
to assist the commissioner in determining whether the quantitative
and qualitative requirements of this subdivision are substantially
being met by the exchange in general or with regard to any particular
security.
The commissioner after appropriate notice and opportunity for
hearing in accordance with the provisions of the Administrative
Procedure Act, Chapter 5 (commencing with Section 11500) of Part 1 of
Division 3 of Title 2 of the Government Code, may, in his or her
discretion, by rule or order, decertify any exchange previously
certified that ceases substantially to apply the minimum standards or
criteria as set forth in paragraphs (1) and (2).
A rule or order of certification shall conclusively establish that
any security listed or approved for listing upon notice of issuance
on any exchange named in a rule or order of certification, and any
warrant or right to purchase or subscribe to that security, is exempt
under this subdivision until the adoption by the commissioner of any
rule or order decertifying the exchange.
(p) A promissory note secured by a lien on real property, which is
neither one of a series of notes of equal priority secured by
interests in the same real property nor a note in which beneficial
interests are sold to more than one person or entity.
(q) Any unincorporated interindemnity or reciprocal or
interinsurance contract, that qualifies under the provisions of
Section 1280.7 of the Insurance Code, between members of a
cooperative corporation, organized and operating under Part 2
(commencing with Section 12200) of Division 3 of Title 1, and whose
members consist only of physicians and surgeons licensed in
California, which contracts indemnify solely in respect to medical
malpractice claims against the members, and which do not collect in
advance of loss any moneys other than contributions by each member to
a collective reserve trust fund or for necessary expenses of
administration.
(1) Whenever it appears to the commissioner that any person has
engaged or is about to engage in any act or practice constituting a
violation of any provision of Section 1280.7 of the Insurance Code,
the commissioner may, in the commissioner's discretion, bring an
action in the name of the people of the State of California in the
superior court to enjoin the acts or practices or to enforce
compliance with Section 1280.7 of the Insurance Code. Upon a proper
showing a permanent or preliminary injunction, a restraining order,
or a writ of mandate shall be granted and a receiver or conservator
may be appointed for the defendant or the defendant's assets.
(2) The commissioner may, in the commissioner's discretion, (A)
make public or private investigations within or outside of this state
as the commissioner deems necessary to determine whether any person
has violated or is about to violate any provision of Section 1280.7
of the Insurance Code or to aid in the enforcement of Section 1280.7,
and (B) publish information concerning the violation of Section
1280.7.
(3) For the purpose of any investigation or proceeding under this
section, the commissioner or any officer designated by the
commissioner may administer oaths and affirmations, subpoena
witnesses, compel their attendance, take evidence, and require the
production of any books, papers, correspondence, memoranda,
agreements, or other documents or records which the commissioner
deems relevant or material to the inquiry.
(4) In case of contumacy by, or refusal to obey a subpoena issued
to, any person, the superior court, upon application by the
commissioner, may issue to the person an order requiring the person
to appear before the commissioner, or the officer designated by the
commissioner, to produce documentary evidence, if so ordered, or to
give evidence touching the matter under investigation or in question.
Failure to obey the order of the court may be punished by the court
as a contempt.
(5) No person is excused from attending or testifying or from
producing any document or record before the commissioner or in
obedience to the subpoena of the commissioner or any officer
designated by the commissioner, or in any proceeding instituted by
the commissioner, on the ground that the testimony or evidence
(documentary or otherwise), required of the person may tend to
incriminate the person or subject the person to a penalty or
forfeiture, but no individual may be prosecuted or subjected to any
penalty or forfeiture for or on account of any transaction, matter,
or thing concerning which the person is compelled, after validly
claiming the privilege against self-incrimination, to testify or
produce evidence (documentary or otherwise), except that the
individual testifying is not exempt from prosecution and punishment
for perjury or contempt committed in testifying.
(6) The cost of any review, examination, audit, or investigation
made by the commissioner under Section 1280.7 of the Insurance Code
shall be paid to the commissioner by the person subject to the
review, examination, audit, or investigation, and the commissioner
may maintain an action for the recovery of these costs in any court
of competent jurisdiction. In determining the cost, the commissioner
may use the actual amount of the salary or other compensation paid to
the persons making the review, examination, audit, or investigation
plus the actual amount of expenses including overhead reasonably
incurred in the performance of the work.
The recoverable cost of each review, examination, audit, or
investigation made by the commissioner under Section 1280.7 of the
Insurance Code shall not exceed twenty-five thousand dollars
($25,000), except that costs exceeding twenty-five thousand dollars
($25,000) shall be recoverable if the costs are necessary to prevent
a violation of any provision of Section 1280.7 of the Insurance Code.
(r) Any shares or memberships issued by any corporation organized
and existing pursuant to the provisions of Part 2 (commencing with
Section 12200) of Division 3 of Title 1, provided the aggregate
investment of any shareholder or member in shares or memberships sold
pursuant to this subdivision does not exceed one thousand dollars
($1,000). This exemption does not apply to the shares or memberships
of that corporation if any promoter thereof expects or intends to
make a profit directly or indirectly from any business or activity
associated with the corporation or the operation of the corporation
or from remuneration, other than reasonable salary, received from the
corporation. This exemption does not apply to nonvoting shares or
memberships of that corporation issued to any person who does not
possess, and who will not acquire in connection with the issuance of
nonvoting shares or memberships, voting power (Section 12253) in the
corporation. This exemption also does not apply to shares or
memberships issued by a nonprofit cooperative corporation organized
to facilitate the creation of an unincorporated interindemnity
arrangement that provides indemnification for medical malpractice to
its physician and surgeon members as set forth in subdivision (q).
(s) Any security consisting of or representing an interest in a
pool of mortgage loans that meets each of the following requirements:
(1) The pool consists of whole mortgage loans or participation
interests in those loans, which loans were originated or acquired in
the ordinary course of business by a national bank or federal savings
association or federal savings bank having its principal office in
this state, by a bank incorporated under the laws of this state or by
a savings association as defined in subdivision (a) of Section 5102
of the Financial Code and which is subject to the supervision and
regulation of the Commissioner of Financial Institutions, and each of
which at the time of transfer to the pool is an authorized
investment for the originating or acquiring institution.
(2) The pool of mortgage loans is held in trust by a trustee which
is a financial institution specified in paragraph (1) as trustee or
otherwise.
(3) The loans are serviced by a financial institution specified in
paragraph (1).
(4) The security is not offered in amounts of less than
twenty-five thousand dollars ($25,000) in the aggregate to any one
purchaser.
(5) The security is offered pursuant to a registration under the
Securities Act of 1933, or pursuant to an exemption under Regulation
A under that act, or in the opinion of counsel for the issuer, is
offered pursuant to an exemption under Section 4(2) of that act.
(t) (1) Any security issued or guaranteed by and representing an
interest in or a direct obligation of an industrial loan company
incorporated under the laws of the state and authorized by the
Commissioner of Financial Institutions to engage in industrial loan
business.
(2) Any investment certificate in or issued by any industrial loan
company that is organized under the laws of a state of the United
States other than this state, that is insured by the Federal Deposit
Insurance Corporation, and that maintains a branch office in this
state.
