TITLE 6

Commerce and Trade

SUBTITLE II

Other Laws Relating to Commerce and Trade

CHAPTER 18. Limited Liability Company Act

Subchapter XII. Statutory Public Benefit Limited Liability Companies


This subchapter applies to all statutory public benefit limited liability companies, as defined in § 18-1202 of this title. If a limited liability company elects to become a statutory public benefit limited liability company under this subchapter in the manner prescribed in this subchapter, it shall be subject in all respects to the provisions of this chapter, except to the extent this subchapter imposes additional or different requirements, in which case such requirements shall apply, and notwithstanding § 18-1101 of this title or any other provision of this title, such requirements imposed by this subchapter may not be altered in the limited liability company agreement.

81 Del. Laws, c. 357, § 34.;

(a) A “statutory public benefit limited liability company” is a for-profit limited liability company formed under and subject to the requirements of this chapter that is intended to produce a public benefit or public benefits and to operate in a responsible and sustainable manner. To that end, a statutory public benefit limited liability company shall be managed in a manner that balances the members’ pecuniary interests, the best interests of those materially affected by the limited liability company’s conduct, and the public benefit or public benefits set forth in its certificate of formation. A statutory public benefit limited liability company shall state in the heading of its certificate of formation that it is a statutory public benefit limited liability company and shall set forth 1 or more specific public benefits to be promoted by the limited liability company in its certificate of formation. The limited liability company agreement of a statutory public benefit limited liability company may not contain any provision inconsistent with this subchapter.

(b) “Public benefit” means a positive effect (or reduction of negative effects) on 1 or more categories of persons, entities, communities or interests (other than members in their capacities as members) including, but not limited to, effects of an artistic, charitable, cultural, economic, educational, environmental, literary, medical, religious, scientific or technological nature. “Public benefit provisions” means the provisions of a limited liability company agreement contemplated by this subchapter.

81 Del. Laws, c. 357, § 34.;

Notwithstanding any other provision of this chapter, a statutory public benefit limited liability company may not, without the approval of members who own at least 2/3 of the then-current percentage or other interest in the profits of the limited liability company owned by all members:

(1) Amend its certificate of formation to delete or amend a provision required by § 18-1202(a) of this title;

(2) Merge or consolidate with or into another entity or divide into 2 or more domestic limited liability companies if, as a result of such merger, consolidation or division, the limited liability company interests in such limited liability company would become, or be converted into or exchanged for the right to receive, limited liability company interests or other equity interests in a domestic or foreign limited liability company or other entity that is not a statutory public benefit limited liability company or similar entity, the certificate of formation or limited liability company agreement (or similar governing document) of which does not contain provisions identifying a public benefit or public benefits comparable in all material respects to those set forth in the certificate of formation of such limited liability company as contemplated by § 18-1202(a) of this title; or

(3) Cease to be a statutory public benefit limited liability company under the provisions of this subchapter.

81 Del. Laws, c. 357, § 34.;

(a) The members or managers or other persons with authority to manage or direct the business and affairs of a statutory public benefit limited liability company shall manage or direct the business and affairs of the statutory public benefit limited liability company in a manner that balances the pecuniary interests of the members, the best interests of those materially affected by the limited liability company’s conduct, and the specific public benefit or public benefits set forth in its certificate of formation. Unless otherwise provided in a limited liability company agreement, no member, manager or other person with authority to manage or direct the business and affairs of the statutory public benefit limited liability company shall have any liability for monetary damages for the failure to manage or direct the business and affairs of the statutory public benefit limited liability company as provided in this subsection.

(b) A member or manager of a statutory public benefit limited liability company or any other person with authority to manage or direct the business and affairs of the statutory public benefit limited liability company shall not, by virtue of the public benefit provisions or § 18-1202(a) of this title, have any duty to any person on account of any interest of such person in the public benefit or public benefits set forth in its certificate of formation or on account of any interest materially affected by the limited liability company’s conduct and, with respect to a decision implicating the balance requirement in subsection (a) of this section, will be deemed to satisfy such person’s fiduciary duties to members and the limited liability company if such person’s decision is both informed and disinterested and not such that no person of ordinary, sound judgment would approve.

81 Del. Laws, c. 357, § 34.;

A statutory public benefit limited liability company shall no less than biennially provide its members with a statement as to the limited liability company’s promotion of the public benefit or public benefits set forth in its certificate of formation and as to the best interests of those materially affected by the limited liability company’s conduct. The statement shall include:

(1) The objectives that have been established to promote such public benefit or public benefits and interests;

(2) The standards that have been adopted to measure the limited liability company’s progress in promoting such public benefit or public benefits and interests;

(3) Objective factual information based on those standards regarding the limited liability company’s success in meeting the objectives for promoting such public benefit or public benefits and interests; and

(4) An assessment of the limited liability company’s success in meeting the objectives and promoting such public benefit or public benefits and interests.

81 Del. Laws, c. 357, § 34.;

Members of a statutory public benefit limited liability company or assignees of limited liability company interests in a statutory public benefit limited liability company owning individually or collectively, as of the date of instituting such derivative suit, at least 2% of the then-current percentage or other interest in the profits of the limited liability company or, in the case of a limited liability company with limited liability company interests listed on a national securities exchange, the lesser of such percentage or limited liability company interests of at least $2,000,000 in market value, may maintain a derivative lawsuit to enforce the requirements set forth in § 18-1204(a) of this title.

81 Del. Laws, c. 357, § 34.;

This subchapter shall not affect a statute or rule of law that is applicable to a limited liability company that is not a statutory public benefit limited liability company.

81 Del. Laws, c. 357, § 34.;

The provisions of this subchapter shall not be construed to limit the accomplishment by any other means permitted by law of the formation or operation of a limited liability company that is formed or operated for a public benefit (including a limited liability company that is designated as a public benefit limited liability company) that is not a statutory public benefit limited liability company.

81 Del. Laws, c. 357, § 34.;