BILL NUMBER: AB 816 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Bonta
FEBRUARY 26, 2015
An act to amend Sections 12200, 12243, 12253, 12310, 12404, 12420,
12460, 12530, 12653, 25017, 25019, 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, 12454.5, 12460.5, 12530.5, and 12656.5 to, the
Corporations Code relating to cooperative corporations.
LEGISLATIVE COUNSEL'S DIGEST
AB 816, as introduced, 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 General 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 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 define the
patrons of a worker cooperative as worker-members and authorize
their patronage to be measured by work performed or personal services
contributed. The bill would exempt worker cooperatives from the
requirement that voting power of members be equal. The bill would
authorize a worker cooperative to issue only one type of indivisible
membership having the same rights, privileges, preferences,
restrictions or conditions as all other worker members 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 two or more worker cooperatives to
consolidate, as specified, proscribe 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 the qualification, and certain interests from the definition of
a security. 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 of omissions.
The issuance of shares or memberships by a corporation subject to
the Consumer Cooperative Corporation Law is 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 bill would exclude any written notice of allocation, as defined,
issued by a specified type of organization, and a membership interest
in a collective board worker cooperative, from the definition of a
security. The bill would exclude shares or memberships issued by a
worker cooperative from qualification, provided that the aggregate
investment of any shareholder or member does not exceed $5,000.
Because this bill would change the definition of existing crimes,
this bill would create a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
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.
(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. CONSUMER GENERAL
COOPERATIVE CORPORATIONS
SEC. 3. Section 12200 of the Corporations Code is amended to read:
12200. This part shall be known as the Consumer
General Cooperative Corporation Law. This part
is intended primarily to apply to the organization and operation of
consumer cooperatives. It is also applicable to other
cooperatives, including, but not limited to, cooperatives formed for
the purpose of recycling or treating hazardous wastes, which elect to
incorporate under it. 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 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 service 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.
"Patronage"
(2) "Patronage " of a
patron is measured by the volume or value, or both, of a patron's
purchases of such products from, and use of
such services furnished by, the corporation, and
by such 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 or personal services
contributed, including wages earned, number of hours worked,
seniority in the cooperative, number of jobs created in the previous
taxable year, or some combination of these measures.
SEC. 8. 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 which
that has not yet occurred. In any case
where
(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 which 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.
SEC. 9. Section 12253.5 is added to the Corporations Code, to
read:
12253.5. "Worker 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, personal
services performed for, or other work performed for the corporation.
SEC. 10. 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
Consumer General 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
such 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 worker
cooperative.
SEC. 11. 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 General 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. 12. 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) In a capital account cooperative, each member shall have only
one vote in any matter requiring a vote of the membership.
(c) 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, net losses, 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.
(d) 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.
(e) 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.
(f) 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. 13. Section 12404 of the Corporations Code is amended to
read:
12404. Except as permitted in Section 12314, the voting power of
members having voting rights , other than members of a worker
cooperative, shall be equal.
SEC. 14. Section 12420 of the Corporations Code is amended to
read:
12420. A (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) A worker cooperative may issue only one type of membership.
All worker-members shall have the rights, privileges, preferences,
restrictions or conditions as provided in the articles or bylaws.
This membership shall be indivisible.
SEC. 15. Section 12454.5 is added to the Corporations Code, to
read:
12454.5. (a) A worker cooperative is authorized to create an
indivisible reserves account that shall not be distributed to
members.
(b) Funds in the indivisible reserves account shall, in a manner
provided in the articles or bylaws, or by the board, be used as
capital for the cooperative.
SEC. 16. 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) A 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 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
such 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.
(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. 17. 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. 18. Section 12530 of the Corporations Code is amended to
read:
12530. Any Except as provided in Section
12530.5, any corporation may merge with another domestic
corporation, foreign corporation, or other business entity
(Section 12242.5) . 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. 19. 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. 20. 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 and 12656. 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,
which that are not subject to
attachment, execution or sale for the corporation's debts and
liabilities may be distributed pursuant to Sections 12655
and 12656 12655, 12656, and 12656.5 even though
all debts and liabilities have not been paid or adequately provided
for.
SEC. 21. 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 the
following:
(1) Patronage,
(2) Capital contributions, or
(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 amounts in the indivisible reserve
account shall, upon dissolution, be allocated to an International
Cooperative Alliance approved national federation or a regional body
in this state designated in the articles of incorporation or the
bylaws.
SEC. 22. Section 25017 of the Corporations Code is amended to
read:
25017. (a) "Sale" or "sell" includes every contract of sale of,
contract to sell, or disposition of, a security or interest in a
security for value. "Sale" or "sell" includes any exchange of
securities and any change in the rights, preferences, privileges, or
restrictions of or on outstanding securities.
(b) "Offer" or "offer to sell" includes every attempt or offer to
dispose of, or solicitation of an offer to buy, a security or
interest in a security for value.
(c) Any security given or delivered with, or as a bonus on account
of, any purchase of securities or any other thing constitutes a part
of the subject of the purchase and is considered to have been
offered and sold for value.
(d) A purported gift of assessable stock involves an offer and
sale.
(e) Every sale or offer of a warrant or right to purchase or
subscribe to another security of the same or another issuer, as well
as every sale or offer of a security which gives the holder a present
or future right or privilege to convert the security into another
security of the same or another issuer, includes an offer and sale of
the other security only at the time of the offer or sale of the
warrant or right or convertible security; but neither the exercise of
the right to purchase or subscribe or to convert nor the issuance of
securities pursuant thereto is an offer or sale.
(f) The terms defined in this section do not include: (1) any bona
fide secured transaction in or loan of outstanding securities; (2)
any stock dividend payable with respect to common stock of a
corporation solely (except for any cash or scrip paid for fractional
shares) in shares of such common stock, if the corporation has no
other class of voting stock outstanding; provided, that shares issued
in any such dividend shall be subject to any conditions previously
imposed by the commissioner applicable to the shares with respect to
which they are issued; or (3) any act incident to
a transaction or reorganization approved by a state or federal court
in which securities are issued and exchanged for one or more
outstanding securities, claims, or property interests, or partly in
that exchange and partly for cash, and nothing in this division shall
be construed to prohibit a court from applying the protections
described in Section 25014.7 or 25140 and the regulations adopted
thereunder when approving any transaction involving a rollup
participant. participant; or (4) any written notice
of allocation, as defined in Section 1388( b) of the
Internal Revenue Code, issued by an organization described in Section
1381(a) of the Internal Revenue Code.
SEC. 23. Section 25019 of the Corporations Code is amended to
read:
25019. "Security" means any note; stock; treasury stock;
membership in an incorporated or unincorporated association; bond;
debenture; evidence of indebtedness; certificate of interest or
participation in any profit-sharing agreement; collateral trust
certificate; preorganization certificate or subscription;
transferable share; investment contract; viatical settlement contract
or a fractionalized or pooled interest therein; life settlement
contract or a fractionalized or pooled interest therein; voting trust
certificate; certificate of deposit for a security; interest in a
limited liability company and any class or series of those interests
(including any fractional or other interest in that interest), except
a membership interest in a limited liability company in which the
person claiming this exception can prove that all of the members are
actively engaged in the management of the limited liability company;
provided that evidence that members vote or have the right to vote,
or the right to information concerning the business and affairs of
the limited liability company, or the right to participate in
management, shall not establish, without more, that all members are
actively engaged in the management of the limited liability company;
certificate of interest or participation in an oil, gas or mining
title or lease or in payments out of production under that title or
lease; put, call, straddle, option, or privilege on any security,
certificate of deposit, or group or index of securities (including
any interest therein or based on the value thereof); or any put,
call, straddle, option, or privilege entered into on a national
securities exchange relating to foreign currency; any beneficial
interest or other security issued in connection with a funded
employees' pension, profit sharing, stock bonus, or similar benefit
plan; or, in general, any interest or instrument commonly known as a
"security"; or any certificate of interest or participation in,
temporary or interim certificate for, receipt for, guarantee of, or
warrant or right to subscribe to or purchase, any of the foregoing.
All of the foregoing are securities whether or not evidenced by a
written document. "Security" does not include: (1) any beneficial
interest in any voluntary inter vivos trust which is not created for
the purpose of carrying on any business or solely for the purpose of
voting, or (2) any beneficial interest in any testamentary trust,
or (3) any insurance or endowment policy or
annuity contract under which an insurance company admitted in this
state promises to pay a sum of money (whether or not based upon the
investment performance of a segregated fund) either in a lump sum or
periodically for life or some other specified period, or
(4) any franchise subject to registration under the
Franchise Investment Law (Division 5 (commencing with Section
31000)), or exempted from registration by Section 31100 or
31101. 31101, or (5) a membership or share interest in
a collective board worker cooperative, as defined in Section
12230.5.
SEC. 24. 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 Financial Institutions 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 which 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 Financial Institutions 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:
(i) 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.
(ii) 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.
(iii) 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.
(iv) If the aggregate market value of shares publicly held is less
than seven hundred fifty thousand dollars ($750,000).
(v) 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 three hundred
dollars ($300). one thousand ($1,000). In the case of
a worker cooperative, the aggregate investment of any worker member
in shares or memberships sold pursuant to this subdivision shall not
exceed five thousand dollars ($5,000). 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.
SEC. 25. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.