TITLE LVI
PROBATE COURTS AND DECEDENTS' ESTATES
Chapter 564-F
NEW HAMPSHIRE FOUNDATION ACT
ARTICLE 1
Section 564-F:1-101
564-F:1-101 Short Title. –
This chapter may be cited as the "New Hampshire Foundation Act."
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:1-102
564-F:1-102 Scope. –
This chapter applies to foundations and foreign foundations.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:1-103
564-F:1-103 Reservation of Power to Amend or Repeal. –
The general court has power to amend or repeal all or part of this chapter at any time, and all persons subject to this chapter are governed by the amendment or repeal.
Source. 2017, 257:47, eff. Oct. 1, 2017.
ARTICLE 2
Definitions and Rules of Construction
Section 564-F:2-201
564-F:2-201 Definitions. –
For purposes of this chapter, the following definitions shall apply:
(a) "Beneficiary" means a person:
(1) To whom the foundation may distribute foundation property; and
(2) The person is:
(A) Identified by name in the foundation's governing documents; or
(B) Ascertainable from the foundation's governing documents by reference to:
(i) A class; or
(ii) A relationship to another person, including an individual who may not be living at the time of the foundation's formation or at the time members of a class are to be determined under the foundation's governing documents.
(b) "Beneficiary's interest" means a beneficiary's interest in a foundation as defined by the foundation's governing documents.
(c) "Breach of duty" means a breach of any duty imposed on a foundation official by this chapter or the foundation's governing documents.
(d) "Bylaws" means the bylaws adopted under RSA 564-F:7-701, as may be amended or restated in accordance with RSA 564-F:7-703.
(e) "Certificate of formation" means the certificate of formation as filed with the secretary of state under RSA 564-F:3-301, as may be amended in accordance with RSA 564-F:3-305 or restated in accordance with RSA 564-F:3-306.
(f) "Charitable trust" means a foundation or a portion of a foundation created for one or more charitable purposes.
(g) "Director" means a person appointed as a director in accordance with RSA 564-F:10-1005.
(h) "Entity" means a person other than a natural person.
(i) "Foreign foundation" means a foundation formed under the laws of a jurisdiction other than this state.
(j) "Foundation" means a foundation formed under this chapter.
(k) "Foundation official" means each of a foundation's directors and protectors.
(l) "Founder" means a person who contributes property to a foundation. If more than one person contributes property to a foundation, then each person is a founder of the portion of the foundation property attributable to that person's contribution, except to the extent that another person has the power to revoke or withdraw that portion.
(m) "Good faith" means, with respect to a foundation official, the observance of common standards of honesty, decency, fairness, and reasonableness in accordance with the governing documents, the foundation's purposes, and the beneficiaries' interests.
(n) "Governing document" means the foundation's certificate of formation or its bylaws.
(o) "Incapacity" means an individual's inability to manage property or business affairs because the individual:
(1) Has an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance; or
(2) Is:
(A) Missing;
(B) Detained, including incarcerated in a penal system; or
(C) Outside the United States and unable to return.
(p) "Individual" means a natural person.
(q) "Jurisdiction," with respect to a geographic area, includes a state or country.
(r) "Person" means an individual, corporation, business trust, estate, trust, foundation, partnership, limited liability company, association, joint venture, government (including a governmental subdivision, agency, or instrumentality), public corporation, or any other legal or commercial entity.
(s) "Principal office" means the office where a foundation's principal executive offices are located. A foundation's principal office may be located in or outside this state.
(t) "Property" means anything that may be the subject of ownership, whether real or personal, legal or equitable, or any interest in anything that may be the subject of ownership.
(u) "Qualified beneficiary" means a beneficiary who, on the date the beneficiary's qualification is determined:
(1) Is a distributee or permissible distributee of the foundation's property;
(2) Would be a distributee or permissible distributee of the foundation's property if the interests of the distributees described in subsection (u) (1) terminated on that date but the termination of those interests would not cause the foundation to dissolve; or
(3) Would be a distributee or permissible distributee of the foundation's property if the foundation dissolved on that date.
(v) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(w) "Registered foreign foundation" means a foreign foundation that is registered under RSA 564-F:21-2102.
(x) "Registrable activity" is defined in RSA 564-F:21-2101(b).
(y) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term "state" includes an Indian tribe or band that is recognized by federal law or formally acknowledged by a state.
Source. 2017, 257:47, eff. Oct. 1, 2017. 2018, 210:1, 4, eff. June 8, 2018.
Section 564-F:2-202
564-F:2-202 Rules of Construction. –
(a) In interpreting or construing this chapter or a provision of a governing document, the power or obligation to distribute, appoint, or direct the distribution of property to a person includes the power to distribute, appoint, or direct the distribution of the property for the benefit of that person.
(b) In interpreting or construing this chapter or a provision of a governing document, the following considerations shall apply:
(1) Primary consideration shall be given to the preservation of the founder's intent as expressed in the governing documents.
(2) Secondary consideration shall be given to the following objectives, in no order of priority among them:
(A) The protection of the beneficiaries' interests consistent with the founder's intent as expressed in the governing documents;
(B) The promotion of certainty concerning the foundation officials' duties, powers, and liabilities, including the division of those duties, powers, and liabilities among the foundation officials; and
(C) The promotion of the efficient administration of the foundation.
(c) The word "include" and any variants of that word shall be construed as words of enlargement and shall not be construed as words of limitation or restriction.
Source. 2017, 257:47, eff. Oct. 1, 2017.
ARTICLE 3
Formation
Section 564-F:3-301
564-F:3-301 Formation. –
(a) One or more persons may act as the organizers of a foundation by filing with the secretary of state the foundation's certificate of formation.
(b) The foundation's certificate of formation shall set forth:
(1) The foundation's name;
(2) The name of the foundation's initial registered agent in this state; and
(3) The address of the foundation's initial registered office in this state.
(c) Except to the extent that it is inconsistent with this chapter or any other applicable law, the foundation's certificate of formation may include any of the following:
(1) The foundation's purposes;
(2) The name of each of the foundation's initial directors;
(3) If the foundation's existence will not begin upon the filing of certificate of formation with the secretary of state, the effective date and time on which the foundation's existence shall begin;
(4) If the foundation will exist only for a limited period, the date on which the foundation shall terminate;
(5) Any provision managing or regulating the foundation's affairs;
(6) Any provision defining, limiting, or regulating the foundation's powers;
(7) Any provision defining, limiting, or regulating a foundation official's duties and powers; and
(8) Any other matter that the organizer deems necessary or advisable.
(d) For purposes of subsection (c)(3), the effective date and time shall not be more than 90 days after the filing of the foundation's certificate of formation with the secretary of state.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:3-302
564-F:3-302 Date of Formation. –
(a) Unless the certificate of formation specifies a delayed effective time and date in accordance with RSA 564-F:3-301(c)(3) and (d), the foundation's existence begins upon the filing of its certificate of formation with the secretary of state.
(b) The secretary of state's acceptance for filing of the certificate of formation is conclusive proof that the organizer satisfied all conditions precedent to the foundation's formation, except in a judicial proceeding by this state to revoke the foundation's formation or involuntarily dissolve the foundation.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:3-303
564-F:3-303 Legal Status. –
A foundation is a legal entity separate from each of its founders, foundation officials, and beneficiaries.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:3-304
564-F:3-304 Pre-Formation Transactions. –
All persons who purport to act as or on behalf of a foundation while knowing that a foundation had not been formed under this chapter are jointly and severally liable for all liabilities created while acting in that manner.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:3-305
564-F:3-305 Amendment of the Certificate of Formation. –
(a) Unless the governing documents provide otherwise, the founder or the directors may amend a foundation's certificate of formation by filing with the secretary of state a certificate of amendment.
(b) The certificate of amendment shall set forth:
(1) The foundation's name; and
(2) The amendment to the certificate of formation.
(c) A certificate of formation may be amended at any time in any respect so long as the certificate of formation as amended contains only provisions that lawfully may be contained in the certificate of formation at the time of making the amendment.
(d) Any amendment to the certificate of formation shall be effective on the date on which the certificate of amendment is filed.
(e) If the founder retained the power to direct the directors to amend the certificate of formation, then the directors shall have a duty to amend the certificate of formation in accordance with the founder's directions.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:3-306
564-F:3-306 Restated Certificate of Formation. –
(a) Unless the governing documents provide otherwise, the founder or the directors may restate the foundation's certificate of formation by filing with the secretary of state a restated certificate of formation.
(b) The restated certificate of formation shall set forth:
(1) The foundation's name; and
(2) The restatement of the certificate of formation.
(c) The restated certificate of formation may contain one or more amendments to the certificate of formation as permitted in a certificate of amendment under RSA 564-F:3-305.
Source. 2017, 257:47, eff. Oct. 1, 2017.
ARTICLE 4
Name
Section 564-F:4-401
564-F:4-401 Name. –
(a) A foundation's name shall contain the word "foundation," "stichting," or the abbreviation "fnd." or "stak."
(b) A foundation's name shall not contain language stating or implying that the foundation is organized for a purpose other than that permitted by this chapter and the foundation's certificate of formation.
(c) Except as authorized by subsections (d) and (e), a foundation's name shall be distinguishable from and not the same as:
(1) The name of an entity incorporated, authorized, formed, or registered to transact business in this state under RSA 292, RSA 293-A, RSA 293-B, RSA 294-A, RSA 301, RSA 301-A, RSA 304-A, RSA 304-B, RSA 304-C, RSA 305-A, RSA 383-E, RSA 349, or this chapter;
(2) A name reserved or registered under RSA 293-A, RSA 293-B, RSA 304-A, RSA 304-B, RSA 304-C, or this chapter;
(3) The fictitious name adopted by a foreign entity authorized to transact business in this state because its real name is unavailable;
(4) The name of an agency or instrumentality of the United States or this state or a subdivision of this state;
(5) The name of any political party recognized under RSA 652:11, unless written consent is obtained from the authorized representative of the political organization; and
(6) The name "farmers' market" unless the foundation meets the definition of "farmers' market" under RSA 21:34-a, V.
(d) A foundation may apply to the secretary of state for authorization to use a name that is not distinguishable from, or is the same as, one or more of the names described in subsection (c) as determined from review of the records of the secretary of state.
(e) The secretary of state shall authorize use of the name that a foundation applies to use if:
(1) In the case of a name that is not distinguishable from a name described in subsection (c), each holder of the name described in subsection (c) consents to the foundation's use of that name;
(2) In the case of a name that is the same as a name described in subsection (c), each holder of the name described in subsection (c) consents to the foundation's use of that name and one or more words are added to the name so that the foundation's name is distinguishable from the name described in subsection (c);
(3) The entity that has a name described in subsection (c) consents to the foundation's use of that name, and the entity undertakes to change its name to a name that is distinguishable from, and not the same as, the name that the foundation is applying to use; or
(4) The foundation delivers to the secretary of state a certified copy of the final judgment of a court of competent jurisdiction establishing the foundation's right to use the name that the foundation applied to use in this state.
(f) Any consent under subsection (e)(1) or (e)(2) must be filed with the secretary of state.
(g) Any undertaking under subsection (e)(3) must be made in a form satisfactory to the secretary of state and must be filed with the secretary of state.
(h) A foundation may use the name, including the fictitious name, of another domestic or foreign entity that is used in this state if:
(1) The other entity is incorporated, authorized, formed, or registered to transact business in this state; and
(2) The foundation:
(A) Has merged with the other entity;
(B) Has been formed by reorganization of the other entity; or
(C) Has acquired all or substantially all of the assets, including the name, of the other entity.
(i) This section does not:
(1) Prohibit an entity incorporated, authorized, formed, or registered to transact business in this state from using the word "foundation" or an abbreviation of that word in the entity's name;
(2) Control the use of fictitious names; or
(3) Prohibit the owner or owners of a trade name registered under RSA 349 to form a foundation under the same name as the trade name.
Source. 2017, 257:47, eff. Oct. 1, 2017. 2018, 210:5, eff. June 8, 2018.
Section 564-F:4-402
564-F:4-402 Reservation of Name. –
(a) A person may reserve the exclusive use of a foundation's name by filing with the secretary of state an application to reserve the name.
(b) The application shall set forth:
(1) The applicant's name;
(2) The applicant's address; and
(3) The name that the applicant is applying to reserve.
(c) If the secretary of state finds that the name applied for is available, then the secretary of state shall reserve the name for the applicant's exclusive use for a 120-day period.
(d) Once having reserved a name, the applicant may renew the reservation of the name for successive 120-day periods.
(e) The applicant may transfer the reserved name to another person by filing with the secretary of state a notice of transfer.
(f) The notice of transfer shall set forth:
(1) The reserved name;
(2) The transferor's name;
(3) The transferee's name; and
(4) The transferee's address.
(g) The transfer of a reserved name under subsection (e) shall be effective upon filing the notice of transfer, and the transferee shall have the right to renew the reservation of the name in accordance with subsection (d).
Source. 2017, 257:47, eff. Oct. 1, 2017.
ARTICLE 5
Registered Agent and Registered Office
Section 564-F:5-501
564-F:5-501 Registered Agent. –
(a) Each foundation shall continuously maintain a registered agent in this state.
(b) Each of the following persons qualifies as a registered agent:
(1) An individual who:
(A) Resides in this state; and
(B) Has a residential or business office that is identical with the registered office;
(2) A corporation that:
(A) Is organized or authorized under RSA 292, RSA 293-A, or RSA 294-A; and
(B) Has a business office that is identical with the registered office;
(3) A limited liability company that:
(A) Is formed or authorized under RSA 304-C; and
(B) Has a business office that is identical with the registered office;
(4) A professional limited liability company that:
(A) Is formed or authorized under RSA 304-D; and
(B) Has a business office that is identical with the registered office;
(5) A limited liability partnership that:
(A) Is formed or authorized under RSA 304-A:44; and
(B) Has a business office that is identical with the registered office; or
(6) A foundation that:
(A) Is formed or authorized under this chapter; and
(B) Has a business office that is identical with the registered office.
(c) Upon ceasing to qualify as a registered agent under subsection (b), a person who is a foundation's registered agent shall file with the secretary a notice of resignation in accordance with RSA 564-F:5-503.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:5-502
564-F:5-502 Registered Office. –
(a) Each foundation shall continuously maintain in this state a registered office.
(b) A foundation's registered office may be the same as any of its offices in this state.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:5-503
564-F:5-503 Change of the Registered Agent. –
(a) A foundation may change its registered agent by filing with the secretary of state a notice of change of registered agent.
(b) The notice of change of registered agent shall set forth:
(1) The foundation's name;
(2) The street address of its current registered office;
(3) The current registered agent's name; and
(4) The successor registered agent's name.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:5-504
564-F:5-504 Resignation of the Registered Agent. –
(a) A foundation's registered agent may resign as registered agent by filing with the secretary of state a notice of resignation.
(b) The notice of resignation shall set forth:
(1) The foundation's name; and
(2) The registered agent's name.
(c) The notice of resignation may include a statement that the registered office is also discontinued.
(d) The secretary of state shall mail a copy of the notice of resignation to the foundation at the foundation's principal office.
(e) The appointment of the registered agent shall terminate on the earlier of:
(1) Thirty-one days after filing of the notice of resignation with the secretary of state; or
(2) Upon the appointment of a successor registered agent.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:5-505
564-F:5-505 Registered Agent's Change of Address. –
(a) If a registered agent changes its address to another place in this state, then it may change the address of the registered office of any foundation for which it is a registered agent by filing with the secretary of state a notice of change of address.
(b) The notice of change of address shall set forth:
(1) The foundation's name;
(2) The registered agent's name;
(3) The registered agent's new address; and
(4) A statement that a copy of the notice has been sent to the foundation.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:5-506
564-F:5-506 Change of the Registered Office. –
(a) A foundation may change its registered office by filing with the secretary of state a notice of change of registered office.
(b) The notice of change of registered office shall set forth:
(1) The foundation's name;
(2) The street address of the foundation's current registered office; and
(3) The street address of the foundation's new registered office.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:5-507
564-F:5-507 Service on a Foundation. –
(a) A foundation's registered agent is the foundation's agent for service of process, notice, or demand required or permitted by law to be served on the foundation.
(b) A foundation may be served by registered mail or certified mail if:
(1) The foundation does not have a registered agent; or
(2) After reasonable diligence, the foundation's registered agent cannot be served.
(c) Service under subsection (b) shall be effective if:
(1) It is correctly addressed to the foundation at the foundation's principal office;
(2) Postage is prepaid; and
(3) It is sent return receipt requested.
(d) Service under subsection (b) is perfected at the earliest of:
(1) The date on which the foundation receives the documents sent by registered mail or certified mail;
(2) If a person signs the return receipt on the foundation's behalf, the date of receipt shown on the return receipt; or
(3) Five days after its deposit for mailing with the United States Postal Service, as evidenced by the postmark.
(e) This section does not preclude other means of serving a foundation.
Source. 2017, 257:47, eff. Oct. 1, 2017.
ARTICLE 6
Purpose
Section 564-F:6-601
564-F:6-601 Purpose. –
(a) A foundation shall have one or more purposes.
(b) Each of the purposes shall be:
(1) Lawful;
(2) Not contrary to public policy; and
(3) Possible to achieve.
(c) A foundation's purposes may include any charitable purpose and any noncharitable purpose.
Source. 2017, 257:47, eff. Oct. 1, 2017.
ARTICLE 7
Bylaws
Section 564-F:7-701
564-F:7-701 Bylaws. –
(a) The founder, organizers, or initial directors shall adopt the foundation's initial bylaws.
(b) The foundation's bylaws shall set forth each of the foundation's purposes.
(c) Except to the extent that it is inconsistent with the certificate of formation, this chapter, or any other applicable law, the foundation's bylaws may set forth any of the following:
(1) Any provision defining, limiting, or regulating capital contributions;
(2) Any provision defining, limiting, or regulating a founder's rights, powers, and interests in the foundation;
(3) Any provision defining, limiting, or regulating the manner in which the foundation property may be applied, distributed, or accumulated;
(4) Any provision imposing obligations upon beneficiaries as a condition of any distribution or other benefit;
(5) Any provision for the revocable or irrevocable addition of one or more beneficiaries or classes of beneficiaries;
(6) Any provision for the revocable or irrevocable elimination of one or more beneficiaries or classes of beneficiaries;
(7) Any provision defining, limiting, or regulating the duties, powers, and liabilities of one or more foundation officials or classes of foundation officials;
(8) Any provision regarding the appointment, resignation, and removal of foundation officials;
(9) A nonjudicial dispute resolution provision in accordance with RSA 564-F:16-1606;
(10) A no-contest provision in accordance with RSA 564-F:14-1404; and
(11) Any provision regarding any other matter that the founder or the board of directors deems necessary or advisable.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:7-702
564-F:7-702 Reserved Powers. –
(a) The founder may reserve any one or more powers, rights, and interests, including any of the following:
(1) The power to amend or restate the foundation's certificate of formation;
(2) The power to amend, restate, or revoke the foundation's bylaws;
(3) The power to appoint any one or more foundation officials;
(4) The power to remove any one or more foundation officials;
(5) The power to direct the directors to distribute some or all of the foundation's property to one or more beneficiaries or in furtherance of one or more of the foundation's purposes;
(6) The power to direct the directors concerning the investment of the foundation property;
(7) The right to receive distributions from the foundation; and
(8) The power to dissolve the foundation.
(b) Unless the governing documents provide otherwise, the founder retains the following powers, rights, and interests:
(1) The power to amend or restate the foundation's certificate of formation;
(2) The power to amend, restate, or revoke the foundation's bylaws;
(3) The power to direct the directors concerning distributions of the foundation's property;
(4) The right to receive distributions from the foundation; or
(5) The power to dissolve the foundation.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:7-703
564-F:7-703 Amendment and Restatement of the Bylaws. –
Unless the governing documents provide otherwise, the following persons may revoke, amend, or restate the bylaws:
(a) The founder; or
(b) The board of directors.
Source. 2017, 257:47, eff. Oct. 1, 2017.
ARTICLE 8
Powers
Section 564-F:8-801
564-F:8-801 General Powers. –
(a) Unless the governing documents provide otherwise, a foundation shall have the power to do all things necessary or convenient to carry out its activities and internal affairs, including the capacity to sue and be sued in its own name.
(b) Subject to subsection (c), the validity of an action taken by a foundation may not be challenged on the ground that the foundation lacks or lacked power to act.
(c) A foundation's power to act may be challenged:
(1) In a proceeding by any of the following persons against the foundation to enjoin the act:
(A) A founder;
(B) A foundation official;
(C) A beneficiary; or
(D) To the extent that the foundation is a charitable trust, the director of charitable trusts;
(2) In a proceeding by the foundation, directly, derivatively, or through a receiver, trustee, or other legal representative, against an incumbent or former foundation official, employee, or agent of the foundation; or
(3) In a proceeding by the attorney general under RSA 564-F:20-2013(a) to dissolve the foundation.
(d) In a judicial proceeding under subsection (c)(1), the court may:
(1) Enjoin or set aside the act if:
(A) It is equitable to do so; and
(B) All of the affected persons are parties to the proceeding; and
(2) Award damages for loss suffered by the foundation or another party because of enjoining the unauthorized act.
Source. 2017, 257:47, eff. Oct. 1, 2017. 2018, 210:2, eff. June 8, 2018.
Section 564-F:8-802
564-F:8-802 Trust Powers. –
(a) A foundation shall have trust powers to the extent that it:
(1) Does not transact business with the general public;
(2) Is a family trust company as defined in RSA 383-A:2-201(a)(26); or
(3) Is a foreign family trust company that is authorized to engage in trust business in this state under RSA 383-D:13-1301.
(b) Trust powers include the power to act as a trustee or other fiduciary, a trust advisor as defined in RSA 564-B:1-103(27), or a trust protector as defined in RSA 564-B:1-103(28).
(c) For purposes of subsection (a)(1), a foundation does not transact business with the general public to the extent that the foundation:
(1) Qualifies as a family office under 15 U.S.C. section 80b-2(a)(11)(G); or
(2) Offers and provides its services only to persons who would qualify as family clients as defined in RSA 383-D:2-201(b)(5) if the foundation was chartered as a family trust company under RSA 383-D.
(d) For purposes of subsection (c)(2), a foundation may use any reasonable method for:
(1) Identifying a designated relative as defined in RSA 383-D:2-201(b)(2); and
(2) Selecting a method for determining family members as described in RSA 383-D:4-402(b)(2) or (c).
(e) A foundation described in subsection (a)(1) shall be exempt from RSA Title 35 and shall not be subject to the jurisdiction of the New Hampshire bank commissioner.
(f) To the extent that a foundation other than a foundation described in subsection (a)(2) or (a)(3) transacts business with the general public, the following shall apply:
(1) Any action by the foundation shall not be void or voidable solely by reason of the foundation transacting business with the general public.
(2) Each of the foundation's directors shall be personally, jointly, and severally liable for all liabilities created by the foundation transacting business with the general public, including any breach of a fiduciary duty to a member of the general public.
(3) A director's liability under subsection (f)(2) is in addition to any civil or criminal penalties imposed by applicable law.
(g) This section does not restrict the rights and remedies of any person affected by a foundation's exercise of trust powers, including the right to commence a judicial proceeding seeking:
(1) A remedy for a breach of trust under RSA 564-B:10-1001;
(2) Damages for a breach of trust under RSA 564-B:10-1002; or
(3) Damages under RSA 564-B:10-1003.
Source. 2017, 257:47, eff. Oct. 1, 2017.
ARTICLE 9
Capital
Section 564-F:9-901
564-F:9-901 Capital. –
(a) Any property may be contributed to a foundation's capital.
(b) After the initial contribution to a foundation's capital, additional contributions to a foundation's capital shall be made as follows:
(1) An additional contribution shall be made in substantial compliance with the provisions of the certificate of formation and bylaws concerning additional contributions; or
(2) If the certificate of formation and bylaws do not contain any provision concerning additional contributions, the additional contribution shall be made in accordance with the terms and conditions that the directors deem prudent, considering the foundation's purposes and the beneficiaries' interests.
(c) Subject to RSA 564-F:7-702(b), a founder shall not have any right, power, or interest in a foundation solely by reason of contributing property to the foundation.
Source. 2017, 257:47, eff. Oct. 1, 2017. 2018, 210:3, eff. June 8, 2018.
ARTICLE 10
Directors
Section 564-F:10-1001
564-F:10-1001 Board of Directors. –
(a) A foundation shall have a board of directors.
(b) Unless the governing documents provide otherwise, the board of directors shall have general responsibility for managing the foundation's affairs and the authority to exercise the foundation's powers.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:10-1002
564-F:10-1002 Qualifications. –
(a) The governing documents may prescribe qualifications for directors.
(b) Unless the governing documents provide otherwise, a director may be:
(1) An individual or an entity; and
(2) A resident of any jurisdiction and need not be a resident of this state.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:10-1003
564-F:10-1003 Number. –
(a) A foundation shall have at least one director.
(b) Subject to subsection (a), the number of directors may be increased or decreased:
(1) In accordance with the provisions of the governing documents governing the method for increasing or decreasing the number of directors; or
(2) By an amendment of the governing documents.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:10-1004
564-F:10-1004 Classes. –
(a) A foundation may have one or more classes of directors.
(b) Each class of directors shall have the duties and powers assigned to that class under the governing documents.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:10-1005
564-F:10-1005 Appointment and Term. –
(a) The initial directors shall be appointed by:
(1) The organizers; or
(2) The founder.
(b) After the appointment of the initial directors, any additional or successor director shall be appointed:
(1) In accordance with the provisions of the governing documents governing the appointment of directors; or
(2) If the governing documents do not contain any provision for the appointment of directors, by:
(A) The directors; or
(B) An amendment of the governing documents.
(c) Unless the governing documents provide otherwise, the duration of a director's term shall be indefinite and shall terminate only upon:
(1) In the case of a director who is an individual, the director's incapacity, death, resignation, or removal; or
(2) In the case of a director that is an entity, the director's dissolution, resignation, or removal.
Source. 2017, 257:47, eff. Oct. 1, 2017. 2018, 210:6, eff. June 8, 2018.
Section 564-F:10-1006
564-F:10-1006 Resignation. –
(a) A director may resign at any time by delivering written notice of the resignation to:
(1) The other directors; and
(2) The persons who have the power to appoint a successor director.
(b) A resignation is effective upon the delivery of the notice of resignation, unless that notice specifies a later effective date or an effective date determined upon the happening of an event or events.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:10-1007
564-F:10-1007 Removal. –
(a) A director may be removed in accordance with the governing documents.
(b) The court may remove a director if:
(1) The director has committed a serious breach of duty;
(2) Lack of cooperation among the directors substantially impairs the management of the foundation's affairs;
(3) Because of unfitness, unwillingness, or persistent failure of the director to manage the foundation effectively, the court determines that removal of the director best serves the foundation's purposes and the beneficiaries' interests; or
(4) The court finds that:
(A) There has been a substantial change of circumstances or all of the beneficiaries request the removal;
(B) The director's removal best serves the beneficiaries' interests and the foundation's purposes;
(C) The director's removal is not inconsistent with any of the foundation's material purposes; and
(D) One or more suitable persons are continuing to serve as directors or a suitable successor director is available.
(c) For purposes of subsection (b)(4)(C), the removal of a person whom the founder personally appointed as a director is presumptively inconsistent with one of the foundation's material purposes, but that presumption may be rebutted by a preponderance of the evidence.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:10-1008
564-F:10-1008 Committees. –
(a) Unless the governing documents provide otherwise, the directors may:
(1) Establish one or more committees;
(2) Appoint one or more directors as members of a committee;
(3) Remove one or more members of a committee; and
(4) Terminate any committee.
(b) To the extent specified by the directors or in the governing documents, each committee may exercise the powers of the directors.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:10-1009
564-F:10-1009 Delegation. –
(a) Unless the governing documents provide otherwise, the directors may delegate to any one or more persons any duty or power that prudent directors of comparable skills and having the same power or duty could properly delegate under the circumstances.
(b) The directors may delegate a duty or power to a person who is associated or affiliated with any of the directors to the extent permitted under RSA 564-F:11-1102.
(c) In delegating to an agent, the directors shall exercise reasonable care, skill, and caution in:
(1) Selecting an agent;
(2) Establishing the scope and terms of the delegation, consistent with the foundation's purposes and the beneficiaries' interests; and
(3) Periodically reviewing the agent's actions for the purpose of monitoring the agent's performance and compliance with the scope and terms of the delegation.
(d) To the extent that the directors comply with subsections (a) and (c), the directors are not liable to the foundation or the beneficiaries for an act or omission of the agent to whom the power or duty was delegated.
(e) A director's delegation of a power or duty to an agent under a power of attorney shall not be valid unless the power of attorney expressly refers to the director in his, her, or its capacity as a director of the foundation.
(f) In the case of a director who is an individual, the director's delegation of any power or duty to an agent under a power of attorney shall terminate upon the director's incapacity unless:
(1) The governing documents provide that the delegation may remain effective during the director's incapacity; and
(2) The power of attorney provide that the delegation does not terminate upon the director's incapacity.
(g) In performing a delegated duty or power, an agent owes to the foundation a duty to exercise reasonable care to comply with the terms of the delegation.
(h) By accepting a delegation of any duty or power from a foundation's directors, an agent shall be subject to the personal jurisdiction of the courts of this state regarding any matter involving the foundation.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:10-1010
564-F:10-1010 Voting. –
(a) Unless the governing documents provides otherwise, each director shall have one vote on each matter on which the directors may vote.
(b) Unless the governing documents provide otherwise, each matter on which the directors may vote shall be decided by vote of a majority of the directors.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:10-1011
564-F:10-1011 Meetings. –
(a) The governing documents may set forth provisions relating to:
(1) Notice of the time, place, or purpose of any meeting at which any matter is to be voted on by any directors or class of directors;
(2) Waiver of any notice of a meeting;
(3) Action by vote without a meeting;
(4) Quorum requirements;
(5) Voting in person or by proxy; or
(6) Any other matter with respect to the exercise of a right to vote.
(b) Unless the governing documents provide otherwise, any meeting of the directors may be held by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other.
(c) Participation in a meeting under subsection (b) shall constitute presence in person at the meeting.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:10-1012
564-F:10-1012 Actions by Consent. –
Unless the governing documents provide otherwise, the directors may take any vote without a meeting and without prior notice if the vote is recorded in a writing setting forth the action so taken and is signed by all of the directors.
Source. 2017, 257:47, eff. Oct. 1, 2017.
ARTICLE 11
Directors' Duties
Section 564-F:11-1101
564-F:11-1101 Duty to Manage the Foundation in Good Faith. –
A director has a duty to manage the foundation and its property in good faith, in accordance with the terms of the governing documents, and in accordance with this chapter.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:11-1102
564-F:11-1102 Duty of Loyalty. –
(a) Unless the governing documents provide otherwise, a director has a duty to manage the foundation and its property solely in the interests of the foundation's purposes and the beneficiaries' interests.
(b) A transaction not concerning the foundation or its property in which a director engages in the director's personal capacity or a person affiliated, related, or similarly associated with the director engages does not violate the director's duty under subsection (a) to the extent that:
(1) The director discloses the transaction to the other directors reasonably in advance of the transaction; and
(2) The transaction is fair to the foundation.
(c) A transaction not concerning the foundation or its property in which a director engages in the director's personal capacity involves a conflict between personal and fiduciary interests if the transaction concerns an opportunity properly belonging to the foundation.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:11-1103
564-F:11-1103 Duty of Impartiality. –
Unless the governing documents provide otherwise, if a foundation has two or more beneficiaries, then a director has a duty to act impartially in managing the foundation, its affairs, and its property, giving due regard to the foundation's purposes and the beneficiaries' interests.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:11-1104
564-F:11-1104 Duty of Prudent Management. –
(a) Unless the governing documents provide otherwise, a director has a duty to manage the foundation, its affairs, and its property as a prudent person would manage the foundation, its affairs, and its property.
(b) In satisfying the standard under subsection (a), a director shall:
(1) Exercise reasonable care and skill; and
(2) Consider the factors that are relevant under the circumstances, including:
(A) The foundation's purposes;
(B) The beneficiaries' interests; and
(C) The foundation's distributional requirements.
(c) In managing the foundation, its affairs, and its property, a director may incur only costs that are reasonable in relation to the foundation's property, the foundation's purposes, and the director's skills.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:11-1105
564-F:11-1105 Duty to Control and Protect Foundation Property. –
(a) Unless the governing documents provide otherwise, a director has a duty to take reasonable steps to control and protect the foundation's property.
(b) Under subsection (a), a director's duty includes:
(1) Enforcing the claims of the foundation;
(2) Defending claims against the foundation; and
(3) Redressing a breach of duty that the director knows to have been committed by a foundation official or a former foundation official.
(c) A director has a duty to keep a foundation's property separate from the director's property.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:11-1106
564-F:11-1106 Duty to Maintain Records. –
Unless the governing documents provide otherwise, a director shall keep adequate records of the foundation, the management of its property, and the management of its affairs.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:11-1107
564-F:11-1107 Duty to Inform. –
Unless the governing documents provide otherwise, a director has a duty to keep each qualified beneficiary reasonably informed about the foundation, the management of the foundation's affairs and property, and all material facts necessary for the beneficiary to protect the beneficiary's interests.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:11-1108
564-F:11-1108 Director's Skills. –
(a) Unless the governing documents provide otherwise, a director who has special skills or expertise shall use those special skills or expertise.
(b) Unless the governing documents provide otherwise, a director who is appointed as a director in reliance upon the director's representation that he, she, or it has special skills or expertise shall use those special skills or expertise.
Source. 2017, 257:47, eff. Oct. 1, 2017.
ARTICLE 12
Protectors
Section 564-F:12-1201
564-F:12-1201 Protectors. –
(a) A foundation may have one or more protectors.
(b) A protector shall have any duties and powers set forth in the governing documents.
(c) Unless the governing documents provide otherwise, a protector shall have the power to commence a judicial proceeding for the purposes of:
(1) Protecting the foundation's purposes; or
(2) Enforcing the provisions of the governing documents.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:12-1202
564-F:12-1202 Qualifications. –
(a) The governing documents may prescribe qualifications for protectors.
(b) Unless the governing documents provide otherwise, a protector may be:
(1) An individual or an entity; and
(2) A resident of any jurisdiction and need not be a resident of this state.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:12-1203
564-F:12-1203 Number. –
(a) Unless the governing documents provide otherwise, a foundation may have one or more protectors.
(b) The number of protectors may be increased or decreased:
(1) In accordance with the provisions of the governing documents governing the method for increasing or decreasing the number of protectors; or
(2) By an amendment of the governing documents.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:12-1204
564-F:12-1204 Classes. –
(a) A foundation may have one or more classes of protectors.
(b) Each class of protectors shall have the duties and powers assigned to that class under the governing documents.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:12-1205
564-F:12-1205 Appointment and Term. –
(a) The initial protectors may be appointed by:
(1) The organizers; or
(2) The founder.
(b) After the appointment of the initial protectors, any additional or successor protector shall be appointed:
(1) In accordance with the provisions of the governing documents governing the appointment of protectors; or
(2) If the governing documents do not contain any provision for the appointment of protectors, by:
(A) The protectors; or
(B) The court.
(c) Unless the certificate of formation or bylaws provide otherwise, the duration of a protector's term shall be indefinite and shall terminate only upon:
(1) The protector's resignation or removal;
(2) In the case of protector who is an individual, the protector's incapacity or death; or
(3) In the case of a protector that is an entity, the protector's dissolution.
Source. 2017, 257:47, eff. Oct. 1, 2017. 2018, 210:7, eff. June 8, 2018.
Section 564-F:12-1206
564-F:12-1206 Resignation. –
(a) Unless the governing documents provide otherwise, a protector may resign at any time by delivering written notice of the resignation to:
(1) Each of the other protectors; and
(2) The persons who have the power to appoint a successor protector.
(b) A protector's resignation is effective upon the delivery of the notice of resignation, unless that notice specifies a later effective date or an effective date determined upon the happening of an event or events.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:12-1207
564-F:12-1207 Removal. –
(a) A protector may be removed in accordance with the governing documents.
(b) The court may remove a protector if:
(1) The protector has committed a serious breach of duty;
(2) Lack of cooperation among the protectors substantially impairs the performance of the protector's duties or the management of the foundation's affairs;
(3) Because of unfitness, unwillingness, persistent failure of the protector to manage the foundation effectively, the court determines that removal of the protector best serves the foundation's purposes and the beneficiaries' interests; or
(4) The court finds that:
(A) There has been a substantial change of circumstances or all of the beneficiaries request the removal;
(B) The protector's removal best serves the foundation's purposes and the beneficiaries' interests;
(C) The protector's removal is not inconsistent with any of the foundation's material purpose; and
(D) One or more suitable persons are continuing to serve as protectors or a suitable successor protector is available.
(c) For purposes of subsection (b)(4)(C), the removal of a person whom the founder personally appointed as a protector is presumptively inconsistent with one of the foundation's material purposes, but that presumption may be rebutted by a preponderance of the evidence.
Source. 2017, 257:47, eff. Oct. 1, 2017. 2018, 210:8, eff. June 8, 2018.
Section 564-F:12-1208
564-F:12-1208 Committees. –
(a) Unless the governing documents provide otherwise, the protectors may:
(1) Establish one or more committees;
(2) Appoint one or more protectors as members of a committee;
(3) Remove one or more members of a committee; and
(4) Terminate any committee.
(b) To the extent specified by the protectors or in the governing documents, each committee may exercise the powers of the protectors.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:12-1209
564-F:12-1209 Delegation. –
(a) Unless the governing documents provide otherwise, the protectors may delegate to any one or more persons any duty or power that prudent protectors of comparable skills and having the same power or duty could properly delegate under the circumstances.
(b) The protectors may delegate a duty or power to a person who is associated or affiliated with any of the protectors to the extent permitted under RSA 564-F:13-1302.
(c) In delegating to an agent, the protectors shall exercise reasonable care, skill, and caution in:
(1) Selecting an agent;
(2) Establishing the scope and terms of the delegation, consistent with the foundation's purposes and the beneficiaries' interests; and
(3) Periodically reviewing the agent's actions for the purpose of monitoring the agent's performance and compliance with the scope and terms of the delegation.
(d) To the extent that the protectors comply with subsections (a) and (c), the protectors are not liable to the foundation or the beneficiaries for an act or omission of the agent to whom the power or duty was delegated.
(e) A protector's delegation of a power or duty to an agent under a power of attorney shall not be valid unless the power of attorney expressly refers to the protector in his, her, or its capacity as a protector of the foundation.
(f) In the case of a protector who is an individual, the protector's delegation of any power or duty to an agent under a power of attorney shall terminate upon the protector's incapacity unless:
(1) The governing documents provide that the delegation may remain effective during the protector's incapacity; and
(2) The power of attorney provide that the delegation does not terminate upon the protector's incapacity.
(g) In performing a delegated duty or power, an agent owes to the foundation a duty to exercise reasonable care to comply with the terms of the delegation.
(h) By accepting a delegation of any duty or power from a foundation's protectors, an agent shall be subject to the personal jurisdiction of the courts of this state regarding any matter involving the foundation.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:12-1210
564-F:12-1210 Voting. –
(a) Unless the governing documents provide otherwise, each protector shall have one vote on each matter on which the protectors may vote.
(b) Unless the governing documents provide otherwise, each matter on which the protectors may vote shall be decided by vote of a majority of the protectors.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:12-1211
564-F:12-1211 Meetings. –
(a) The governing documents may set forth provisions relating to:
(1) Notice of the time, place, or purpose of any meeting at which any matter is to be voted on by any protectors or class of protectors;
(2) Waiver of any notice of a meeting;
(3) Action by vote without a meeting;
(4) Quorum requirements;
(5) Voting in person or by proxy; or
(6) Any other matter with respect to the exercise of a right to vote.
(b) Unless the governing documents provide otherwise, any meeting of the protectors may be held by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other.
(c) Participation in a meeting under subsection (b) shall constitute presence in person at the meeting.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:12-1212
564-F:12-1212 Actions by Consent. –
Unless the governing documents provide otherwise, the protectors may take any vote without a meeting and without prior notice if the vote is recorded in a writing setting forth the action so taken and is signed by all of the protectors.
Source. 2017, 257:47, eff. Oct. 1, 2017.
ARTICLE 13
Protector's Duties
Section 564-F:13-1301
564-F:13-1301 Duty to Act in Good Faith. –
A protector has a duty to act in good faith, in accordance with the provisions of the governing documents, and in accordance with this chapter.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:13-1302
564-F:13-1302 Duty of Loyalty. –
(a) Unless the governing documents provide otherwise, a protector has a duty to exercise his, her, or its powers solely in the interests of the foundation's purposes and the beneficiaries' interests.
(b) Unless the governing documents provide otherwise, a transaction not concerning the foundation or its property in which a protector engages in the protector's personal capacity or a person affiliated, related, or similarly associated with the protector engages does not violate the protector's duty under subsection (a) to the extent that:
(1) The protector discloses the transaction to the other protectors reasonably in advance of the transaction; and
(2) The transaction is fair to the foundation.
(c) A transaction not concerning a foundation's property in which a protector engages in the protector's personal capacity involves a conflict between personal and fiduciary interests if the transaction concerns an opportunity properly belonging to the foundation.
Source. 2017, 257:47, eff. Oct. 1, 2017. 2018, 210:9, eff. June 8, 2018.
Section 564-F:13-1303
564-F:13-1303 Duty of Impartiality. –
Unless the governing documents provide otherwise, if a foundation has two or more beneficiaries, then the protector has a duty to act impartially in exercising his, her, or its powers, giving due regard to the foundation's purposes and the beneficiaries' interests.
Source. 2017, 257:47, eff. Oct. 1, 2017. 2018, 210:10, eff. June 8, 2018.
Section 564-F:13-1304
564-F:13-1304 Duty to Maintain Records. –
Unless the governing documents provide otherwise, a protector shall keep adequate records of the protector's acts as a protector.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:13-1305
564-F:13-1305 Protector's Skills. –
(a) Unless the governing documents provide otherwise, a protector who has special skills or expertise shall use those special skills or expertise.
(b) Unless the governing documents provide otherwise, a protector who is appointed as a protector in reliance upon the protector's representation that he, she, or it has special skills or expertise shall use those special skills or expertise.
Source. 2017, 257:47, eff. Oct. 1, 2017.
ARTICLE 14
Beneficiaries
Section 564-F:14-1401
564-F:14-1401 Nature of Beneficial Interests. –
(a) Subject to subsection (b), a beneficiary's interest is a mere expectancy and is not a property interest or an enforceable right.
(b) A beneficiary's interest is a property interest to the extent that:
(1) The beneficiary has a currently exercisable power to appoint the foundation's property to himself, herself, or itself without the consent of any other person; or
(2) The directors have failed to make a distribution to the beneficiary in accordance with a provision of the governing documents requiring the directors to make that distribution.
(c) For the purposes of determining a beneficiary's interest, the founder's intent as expressed in the terms of the governing documents shall be paramount.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:14-1402
564-F:14-1402 Representatives. –
(a) Subject to subsections (b) and (c), the following shall apply:
(1) A conservator may represent and bind the conservatee.
(2) The following person may represent and bind an incompetent individual:
(A) A guardian of the incompetent individual's estate; or
(B) A guardian of the incompetent individual's person if a guardian of the incompetent individual's estate has not been appointed.
(3) An agent may represent and bind the principal to the extent that the agent has the power to represent and bind the principal in connection with the particular matter or dispute.
(4) A trustee of a trust may represent and bind the trust's beneficiaries.
(5) A personal representative of a decedent's estate may represent and bind the persons interested in the estate.
(6) An individual may represent and bind each of the individual's minor, incapacitated, or unborn children if the child is not represented by:
(A) A guardian of the estate under subsection (a)(2)(A); or
(B) A guardian of the person under subsection (a)(2)(B).
(7) An individual may represent and bind each of the individual's minor, incapacitated, or unborn descendants if the descendant is not represented by:
(A) The descendant's parent under subsection (a)(6);
(B) A guardian of the estate under subsection (a)(2)(A); or
(C) A guardian of the person under subsection (a)(2)(B).
(8) An individual who has a power of appointment may represent and bind each of the permissible appointees if the permissible appointees include the individual, the individual's creditors, the individual's estate, or the creditors of the individual's estate.
(9) A person may represent and bind any of the following persons if the representative and the represented persons have substantially identical interests with respect to the matter or dispute:
(A) A minor, incapacitated, or unborn individual; or
(B) A person whose identity or location is unknown and is not reasonably ascertainable.
(10) Subject to section (d), a person may represent and bind any of the following persons whom the person is appointed to represent in accordance with reasonable procedures under the governing documents:
(A) A minor, incapacitated, or unborn individual;
(B) A person whose identity or location is unknown and is not reasonably ascertainable; or
(C) A person whose interest is not adequately represented under this section.
(11) A person may represent and bind any of the following persons whom a court appoints the person to represent:
(A) A minor, incapacitated, or unborn individual;
(B) A person whose identity or location is unknown and is not reasonably ascertainable; or
(C) A person whose interest is not adequately represented under this section.
(b) A person may not represent another person to the extent that:
(1) There is any conflict of interest between them; or
(2) The represented person has objected to the representation.
(c) A founder shall not represent or bind a beneficiary in connection with any matter or dispute involving:
(1) A modification of the governing documents; or
(2) The foundation's dissolution.
(d) For purposes of subsection (a)(10), the procedure for the appointment of a representative is not reasonable if:
(1) There is a conflict of interest between the person appointing the representative and any interested person;
(2) There is a conflict of interest between the representative and any represented person; or
(3) With respect to any matter that is the subject of a dispute involving the foundation or its affairs, there is a conflict of interest among the persons whom the representative is appointed to represent.
(e) A person who may act as another person's representative under section (a) may represent and bind the represented person in connection with any matter, dispute, or judicial proceeding involving the foundation.
(1) Notice to a representative shall have the same effect as notice to each person whom the representative represents.
(2) A consent, release, ratification, or agreement by a representative shall have the same effect as a consent, release, ratification, or agreement by each person whom the representative represents.
Source. 2017, 257:47, eff. Oct. 1, 2017. 2018, 210:11-13, eff. June 8, 2018.
Section 564-F:14-1403
564-F:14-1403 Return of Improper Distributions. –
A person who receives a distribution from a foundation is liable to return the distribution to the extent that a court subsequently determines that the person was not entitled to the distribution.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:14-1404
564-F:14-1404 Enforcement of No-Contest Provision. –
(a) For the purposes of this section, a "no-contest provision" means a provision of the governing documents that, if given effect, would reduce or eliminate a beneficiary's interest because the beneficiary directly or indirectly initiates or otherwise pursues:
(1) Any judicial proceeding against the foundation or any of the foundation officials, including any judicial proceeding:
(A) Contesting the validity of the foundation's formation;
(B) Contesting the validity of a contribution by a founder to the foundation;
(C) Contesting the validity of the foundation's governing documents;
(D) Seeking to set aside any provision of the governing documents;
(E) Seeking to void any action by the foundation officials; or
(F) Seeking to dissolve the foundation; or
(2) Any act that frustrates or defeats the founder's intent as expressed in the terms of the governing documents.
(b) Subject to subsections (c) and (d), a no-contest provision shall be enforceable in accordance with its express terms regardless of whether:
(1) The beneficiary acted in good faith or with probable cause; or
(2) The enforcement of the no-contest provision would result in a partial or complete forfeiture of the beneficiary's interest.
(c) A no-contest provision shall be unenforceable to the extent that:
(1) The court dissolves the foundation under RSA 564-F:20-2013(a); or
(2) A judicial proceeding only involved a claim against a foundation official for a breach of duty, and the foundation official committed a breach of duty.
(d) A no-contest provision shall be unenforceable to the extent that a beneficiary initiates, maintains, or cooperates in:
(1) Any judicial proceeding initiated by a foundation official;
(2) Any nonjudicial settlement agreement or other agreement among the beneficiaries and any other interested persons in settlement of a dispute or resolution of any other matter relating to the foundation;
(3) Any judicial proceeding for the interpretation or construction of a provision of the governing instrument, including the interpretation or construction of the no-contest provision with respect to any proposed or pending petition or motion; or
(4) To the extent that the foundation is a charitable trust, any judicial proceeding brought by the director of charitable trusts for the interpretation or construction of the foundation's governing documents.
Source. 2017, 257:47, eff. Oct. 1, 2017. 2018, 210:14, eff. June 8, 2018.
ARTICLE 15
Third Parties
Section 564-F:15-1501
564-F:15-1501 Liability of Foundation Officials and Beneficiaries to Third Parties. –
(a) Subject to RSA 564-F:20-2007 and subsection (c), a foundation's debts, obligations, and liabilities, whether arising in contract, tort, or otherwise, shall be solely the foundation's debts, obligations, and liabilities.
(b) Subject to RSA 564-F:20-2007 and subsection (c), a founder, foundation official, or beneficiary shall not be personally liable for any of the foundation's debts, obligations, and liabilities solely by reason of being a founder, foundation official, or beneficiary.
(c) A founder, foundation official, or beneficiary may agree to be personally liable for any or all of the foundation's debts, obligations, and liabilities.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:15-1502
564-F:15-1502 Liability of Foundation for Certain Claims Against a Founder. –
(a) A transfer of property by a founder to the foundation shall not be void or voidable solely by reason that the transfer defeats any forced heirship, legitime, forced share, or any similar heirship right under the laws of a foreign jurisdiction.
(b) The foundation property shall not be subject to any forced heirship, legitime, forced share, or any similar heirship rights against a founder, a founder's estate, or any of a founder's property under the laws of any jurisdiction.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:15-1503
564-F:15-1503 Rights of a Beneficiary's Creditors and Assignees. –
(a) Subject to subsection (c), a court may authorize a beneficiary's creditor or assignee to reach the beneficiary's interest by attachment of present or future distributions to or for the benefit of the beneficiary.
(1) Attachment of distributions is the creditor's or assignee's exclusive remedy against the beneficiary's interest.
(2) The court may limit the relief under this subsection (a) as the court deems appropriate under the circumstances.
(b) Subject to subsection (c), a beneficiary's creditor or assignee may not compel the foundation to make a distribution to the beneficiary.
(c) A beneficiary's creditor or assignee may reach the beneficiary's interest to the extent that:
(1) Without the consent of any other person, the beneficiary has the power to appoint the foundation's property to:
(A) The beneficiary; or
(B) The beneficiary's creditors or assignees; or
(2) Upon the foundation's dissolution, the beneficiary would receive the foundation's property and, without the consent of any other person, the beneficiary has the power to dissolve the foundation or cause the foundation's dissolution.
(d) A beneficiary's creditor or assignee may not compel a beneficiary to exercise any right or power that, in any fiduciary or nonfiduciary capacity, the beneficiary has under the governing documents, including any of the following:
(1) Any power of appointment;
(2) Any power to dissolve the foundation or cause the foundation's dissolution;
(3) Any power to direct or veto a distribution;
(4) Any power to appoint or remove a foundation official; or
(5) Any right to receive reports, notices, or other information concerning the foundation and its administration.
(e) A beneficiary's interest shall not be assignable, except to the extent expressly permitted by the governing documents.
(f) A beneficiary's interest shall not be subject to any forced heirship, legitime, forced share, or any similar heirship rights under the laws of any jurisdiction.
Source. 2017, 257:47, eff. Oct. 1, 2017. 2018, 210:15, eff. June 8, 2018.
ARTICLE 16
Dispute Resolution
Section 564-F:16-1601
564-F:16-1601 Role of Court in a Foundation's Affairs. –
(a) The court may intervene in a foundation's affairs to the extent its jurisdiction is invoked by an interested person or as provided by law.
(b) A foundation shall not be subject to continuing judicial supervision unless ordered by the court.
(c) A judicial proceeding involving a foundation may relate to any matter involving the foundation's affairs, including:
(1) A request for instruction;
(2) Construction of the governing documents;
(3) A claim for breach of duty; or
(4) A request to declare rights.
(d) Each of the following persons may commence a judicial proceeding for the purpose of enforcing the provisions of the governing documents:
(1) A founder;
(2) A foundation official;
(3) A beneficiary; or
(4) In the case of a foundation that is a charitable trust, the director of charitable trusts.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:16-1602
564-F:16-1602 Jurisdiction over Foundation Officials and Beneficiaries. –
(a) By accepting an appointment as a foundation official, a foundation official shall be subject to the personal jurisdiction of the courts of this state regarding any matter involving the foundation.
(b) With respect to the beneficiary's interest, a beneficiary shall be subject to the personal jurisdiction of the courts of this state regarding any matter involving the foundation.
(c) By accepting a distribution from a foundation, the recipient shall be subject to the personal jurisdiction of the courts of this state regarding any matter involving the foundation.
(d) This section does not preclude other methods of obtaining jurisdiction over a foundation official, beneficiary, or other person receiving property from the foundation.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:16-1603
564-F:16-1603 Subject-Matter Jurisdiction. –
The probate division of the circuit court shall have exclusive jurisdiction over:
(1) The formation, termination, and management of foundations;
(2) The interpretation, construction, and modification of governing documents; and
(3) The appointment, removal, and surcharge of foundation officials.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:16-1604
564-F:16-1604 Venue. –
Venue for a judicial proceeding involving a foundation is in:
(1) The county of this state in which the foundation's principal office is located; or
(2) If the foundation does not have a principal office in this state, the county of this state in which the foundation's registered office is located.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:16-1605
564-F:16-1605 Confidential Information. –
(a) A communication between an attorney and a client that is a foundation or a foundation official is privileged and is protected from disclosure to the same extent as a communication between an attorney and a client who is an individual acting in his or her personal capacity.
(b) The privilege is not waived by:
(1) A fiduciary relationship between a foundation official and a beneficiary; or
(2) The use of the foundation's property to compensate the attorney for legal services rendered to the foundation or a foundation official.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:16-1606
564-F:16-1606 Nonjudicial Settlement Agreement. –
(a) For purposes of this section, "interested person" means each of the following persons:
(1) A founder;
(2) A foundation official;
(3) A person who, under the governing documents, has the power to enforce the terms of the governing documents;
(4) If the trust is a charitable trust, the director of charitable trusts; and
(5) Any other person whose consent would be required in order to achieve a binding settlement if a court would approve the settlement.
(b) Subject to subsection (c), all of the interested persons may enter into a binding nonjudicial settlement agreement with respect to any matter involving a foundation.
(c) A nonjudicial settlement agreement is valid only to the extent that:
(1) It does not violate any of the foundation's material purpose; and
(2) It includes only terms and conditions that could be properly approved by a court under this chapter or other applicable law.
(d) Matters that may be resolved by a nonjudicial settlement agreement include:
(1) The interpretation or construction of the governing documents;
(2) The modification of the governing documents;
(3) The approval of a director's report or accounting;
(4) A direction to a foundation official to refrain from performing a particular act or the grant to a foundation official of any necessary or desirable power;
(5) A foundation official's appointment or resignation;
(6) The determination of a foundation official's compensation;
(7) A foundation official's liability for an action relating to the foundation; and
(8) The foundation's dissolution.
(e) Any interested person may commence a judicial proceeding requesting that the court:
(1) Approve a nonjudicial settlement agreement;
(2) Determine whether the representation under 564-F:14-1402 was adequate; and
(3) Determine whether the agreement contains terms and conditions the court could have properly approved.
Source. 2017, 257:47, eff. Oct. 1, 2017. 2018, 210:16, eff. June 8, 2018.
Section 564-F:16-1607
564-F:16-1607 Nonjudicial Dispute Resolution. –
(a) For purposes of this section, the following definitions shall apply:
(1) "Interested person" means any person who would be an interested person in a judicial proceeding to resolve a dispute.
(2) "Dispute" means any matter in which a court has subject-matter jurisdiction under 564-F:16-1603, excluding:
(A) The determination of the validity of the foundation's formation;
(B) The determination of the validity of a contribution by a founder to the foundation; and
(C) The determination of any of the foundation's material purposes, including a determination of whether any modification, dissolution, or other action is consistent with the foundation's material purposes.
(b) If the governing documents require the interested persons to resolve a dispute exclusively by reasonable nonjudicial procedures, then those interested persons shall resolve that dispute in accordance with the governing documents.
(c) An interested person may commence a judicial proceeding to determine whether the nonjudicial procedures are reasonable.
(d) To the extent that a provision of the governing documents purport to prohibit an interested person from commencing a judicial proceeding under subsection (c) or penalize an interested person for commencing a judicial proceeding under subsection (c), that provision is void.
(e) Unless the director of charitable trust expressly consents to the nonjudicial procedures, those procedures shall not apply to any matter in which the director of charitable trust would be an interested person.
(f) Unless the department of health and human services expressly consents to the nonjudicial procedures, those procedures shall not apply to any matter in which that department would be an interested person.
Source. 2017, 257:47, eff. Oct. 1, 2017.
ARTICLE 17
Modification
Section 564-F:17-1701
564-F:17-1701 Modification. –
(a) A court may modify a foundation's certificate of formation or its bylaws if:
(1) All of the foundation officials consent to the modification;
(2) All of the beneficiaries consent to the modification;
(3) To the extent that the foundation is a charitable trust, the director of charitable trusts consents to the modification; and
(4) The modification does not violate any of the foundation's material purposes.
(b) A court may modify a foundation's certificate of formation or its bylaws if:
(1) Due to circumstances that the founder did not anticipate, modification will further the foundation's purposes;
(2) The modification is consistent with the founder's probable intent; and
(3) The modification does not violate any of the foundation's material purposes.
(c) A court may modify a foundation's certificate of formation or its bylaws if:
(1) The foundation's continuation would be impractical, wasteful, or impair the foundation's administration;
(2) The modification is consistent with the founder's intent; and
(3) The modification does not violate any of the foundation's material purposes.
(d) Any of the following persons may commence a judicial proceeding seeking modification of a foundation's certificate of formation or its bylaws under this section:
(1) A foundation official;
(2) Unless the governing documents provide otherwise, a beneficiary; or
(3) To the extent that the foundation is a charitable trust, the director of charitable trusts.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:17-1702
564-F:17-1702 Reformation. –
(a) A court may reform a foundation's certificate of formation or its bylaws for purposes of conforming the certificate of formation or the bylaws to the founder's intent if:
(1) Whether in the expression or inducement, the foundation's certificate of formation or its bylaws were affected by a mistake of fact, a mistake of law, or both a mistake of fact and a mistake of law; and
(2) The founder's intent is proven by clear and convincing evidence;
(3) The mistake is proven by clear and convincing evidence; and
(4) The reformation does not violate any of the foundation's material purposes.
(b) A court may reform a foundation's certificate of formation or its bylaws for purposes of achieving the founder's tax objectives if:
(1) The reformation is consistent with the founder's intent; and
(2) The reformation does not violate any of the foundation's material purposes.
(c) A reformation under this section may be retroactive or prospective.
(d) Any of the following persons may commence a judicial proceeding seeking reformation of a foundation's certificate of formation or its bylaws under this section:
(1) A founder;
(2) A foundation official;
(3) Unless the governing documents provide otherwise, a beneficiary; and
(4) To the extent that the foundation is a charitable trust, the director of charitable trusts.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:17-1703
564-F:17-1703 Cy Pres. –
(a) To the extent that a foundation is a charitable trust and one of its charitable purposes becomes impossible, impracticable, illegal, obsolete, ineffective, or prejudicial to the public interest to achieve, a court may apply cy pres for the following purposes:
(1) Modifying the foundation's certificate of formation or its bylaws; or
(2) Directing the foundation to apply or distribute some or all of its property to one or more charitable purposes that:
(A) Are useful to the community;
(B) Fulfills as nearly as possible the founder's charitable intent; and
(C) Do not violate any of the foundation's material purposes; or
(3) Terminating the foundation.
(b) Any of the following persons may commence a judicial proceeding seeking the application of cy pres to a foundation under this section:
(1) A foundation official;
(2) Unless the governing documents provide otherwise, a beneficiary; and
(3) The director of charitable trusts.
Source. 2017, 257:47, eff. Oct. 1, 2017.
ARTICLE 18
Breach of Duty
Section 564-F:18-1801
564-F:18-1801 Remedies for Breach of Duty. –
(a) For purposes of remedying a breach of duty that has occurred or may occur, the court may:
(1) Compel a foundation official to perform the foundation official's duties;
(2) Enjoin a foundation official from committing a breach of duty;
(3) Compel a foundation official to redress a breach of duty by paying money, restoring property, or other means;
(4) Order a foundation official to account;
(5) Appoint a special director to take possession of the foundation's property and administer the foundation;
(6) Suspend a foundation official;
(7) Remove a director under RSA 564-F:10-1007;
(8) Remove a protector under RSA 564-F:12-1207;
(9) Reduce or deny compensation to a foundation official;
(10) Void a foundation official's act;
(11) Impose a lien or a constructive trust on the foundation's property;
(12) Trace the foundation's property wrongfully disposed of and recover the property or its proceeds; or
(13) Order any other appropriate relief.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:18-1802
564-F:18-1802 Damages for Breach of Duty. –
(a) A foundation official who commits a breach of duty is liable to the affected beneficiaries for the greater of:
(1) The amount required to restore the value of the foundation's property and distributions to what they would have been had the breach of duty not occurred; or
(2) the profit that the foundation official made by reason of the breach of duty.
(b) Except as otherwise provided in subsection (c) or (d), a foundation official is entitled to contribution from the other foundation officials to the extent permitted by RSA 507:7-f if more than one foundation official is liable to the beneficiaries for a breach of duty.
(c) A foundation official is not entitled to contribution if:
(1) The foundation official was substantially more at fault than another foundation officials; or
(2) The foundation official committed the breach of duty in bad faith or with reckless indifference to the foundation's purposes or the beneficiaries' interests.
(d) A foundation official who received a benefit from the breach of duty is not entitled to contribution from another foundation official to the extent of the benefit received.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:18-1803
564-F:18-1803 Damages in Absence of Breach of Duty. –
(a) Even absent a breach of duty, a foundation official is accountable to an affected beneficiary for any profit made by the foundation official arising from the foundation's administration.
(b) Absent a breach of duty, a foundation official is not liable to a beneficiary for a loss or depreciation in the value of the foundation property or for not having made a profit.
(c) This section does not preclude the payment of reasonable compensation to a foundation official.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:18-1804
564-F:18-1804 Attorney's Fees and Costs. –
In a judicial proceeding involving a foundation's administration, the court may award costs and expenses as justice and equity may require, including reasonable attorney's fees, to any party, to be paid by another party or from the foundation that is the subject of the controversy.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:18-1805
564-F:18-1805 Limitation of Action Against a Foundation Official. –
(a) A judicial proceeding against a foundation official for breach of duty may be commenced only within the earliest of:
(1) In the case of a claim by a beneficiary, one year after the beneficiary was sent a report that adequately disclosed the existence of a potential claim for breach of duty;
(2) Except as provided in subsection (a)(3), 3 years after the earliest of:
(A) The foundation official's removal, resignation, or death;
(B) The termination of the beneficiary's interest;
(C) The foundation's dissolution or
(3) If the act or omission was not discovered and could not reasonably have been discovered at the time of the act or omission, one year after the earlier of:
(A) The discovery of the act or omission; or
(B) In the exercise of reasonable diligence, the date on which the act or omission should have been discovered.
(b) A report adequately discloses the existence of a potential claim for breach of duty if it provides sufficient information so that the beneficiary or the beneficiary's representative knows of the potential claim or should have inquired into its existence.
(c) The limitation periods under this section shall not be tolled for any reason, except by a court order or a written agreement between the foundation official and the beneficiary.
Source. 2017, 257:47, eff. Oct. 1, 2017. 2018, 210:17, eff. June 8, 2018.
Section 564-F:18-1806
564-F:18-1806 Reliance on the Governing Documents. –
A foundation official who acts in reasonable reliance on the foundation's governing documents is not liable to any person for a breach of duty to the extent that the breach of duty resulted from that reliance.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:18-1807
564-F:18-1807 Event Affecting Administration or Distribution. –
(a) If the happening of an event affects the foundation's administration or a distribution from the foundation, then a foundation official who has exercised reasonable care to ascertain the happening of the event is not liable for a loss resulting from the foundation official's lack of knowledge.
(b) An event to which subsection (a) applies includes:
(1) Marriage;
(2) Divorce;
(3) The performance of educational requirements; or
(4) Death.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:18-1808
564-F:18-1808 Exculpation of a Foundation Official. –
(a) Subject to subsection (b), a provision of the governing documents relieving a foundation official of liability for breach of duty is enforceable except to the extent that the provision relieves the foundation official of liability for a breach of duty for:
(1) Failing to act in good faith; or
(2) Acting with reckless indifference to the foundation's purposes or the beneficiaries' interests.
(b) A provision of the governing documents relieving a foundation official of liability for breach of duty is unenforceable if the provision was inserted as the result of an abuse by the foundation official of a fiduciary or confidential relationship to the founder.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:18-1809
564-F:18-1809 Beneficiary's Consent, Release, or Ratification. –
(a) Subject to subsection (b), a foundation official is not liable to a beneficiary for breach of duty if the beneficiary:
(1) Consented to the conduct constituting the breach of duty;
(2) Released the foundation official from liability for the breach of duty; or
(3) Ratified the transaction constituting the breach of duty.
(b) For purposes of subsection (a), a beneficiary's consent, release, or ratification is invalid if:
(1) In making the consent, release, or ratification, the beneficiary was induced by a foundation official's improper conduct; or
(2) At the time of making the consent, release, or ratification, the beneficiary did not know of the beneficiary's rights or the material facts relating to the breach of duty.
Source. 2017, 257:47, eff. Oct. 1, 2017.
ARTICLE 19
Merger
Section 564-F:19-1901
564-F:19-1901 Merger. –
(a) Subject to subsections (f) and (g), one or more foundations may merge with one or more foundations by filing with the secretary of state a certificate of merger.
(b) Subject to subsections (f) and (g), one or more foundations and one or more foreign foundations may merge into a foundation that will be formed under this chapter by filing with the secretary of state a certificate of merger.
(c) The certificate of merger shall set forth:
(1) The name of each foundation that is a party to the merger;
(2) The address of the principal office of each foundation that is a party to the merger;
(3) If a foreign foundation is a party to the merger, the jurisdiction in which the foreign foundation is formed;
(4) The name of the surviving foundation; and
(5) If the merger will not begin upon the filing of the certificate of merger with the secretary of state, the date and time on which the merger shall be effective.
(d) In the case of a merger under subsection (b), the certificate of merger shall include a certificate of formation for the surviving foundation.
(e) The certificate of merger may include any other matter that the parties to the merger deem necessary or advisable.
(f) The following persons must approve a merger:
(1) In the case of a foundation that is a party to a merger, the foundation's directors, unless the governing documents provide otherwise.
(2) In the case of a foreign foundation that is a party to a merger, each person who, under the laws under which the foreign foundation is organized, must approve the plan of merger.
(g) A foundation shall not merge with or into another foundation if:
(1) The foundation's governing documents prohibit the merger; or
(2) The merger would violate any of the foundation's material purposes.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:19-1902
564-F:19-1902 Effects of Merger. –
(a) A merger under RSA 564-F:19-1901 has the following effects:
(1) Each foundation and foreign foundation that is a party to the merger shall be merged into a single foundation, which shall be the foundation designated as the surviving foundation in the certificate of merger;
(2) Each foundation and foreign foundation that is a party to the merger, except the surviving foundation, shall cease to exist;
(3) All title to real property and other property owned by each foundation and foreign foundation that is a party to the merger and all contractual rights possessed by each foundation and foreign foundation that is a party to the merger are vested in the surviving foundation without reversion or impairment; and
(4) All liabilities of each foundation and foreign foundation that is a party to the merger are vested in the surviving foundation.
(b) For each domestic foundation that is a party to a merger and is not the surviving foundation, a certificate of merger shall constitute a certificate of cancellation.
Source. 2017, 257:47, eff. Oct. 1, 2017.
ARTICLE 20
Dissolution
Part A
Voluntary Dissolution
Section 564-F:20-2001
564-F:20-2001 Dissolution by Organizers or Initial Directors. –
(a) If the foundation has not received its initial capital contribution, then the following persons may dissolve a foundation by filing with the secretary of state a certificate of dissolution:
(1) A majority of the organizers; or
(2) A majority of the initial directors.
(b) The certificate of dissolution shall set forth:
(1) The foundation's name;
(2) The date on which the dissolution was authorized;
(3) If a majority of organizers have authorized the dissolution, a statement that a majority of the organizers authorized the dissolution;
(4) If a majority of initial directors have authorized the dissolution, a statement that a majority of the initial directors authorized the dissolution; and
(5) A statement that the foundation has not received its initial capital contribution.
(c) A foundation's dissolution is effective upon filing the certificate of dissolution.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:20-2002
564-F:20-2002 Dissolution by Founder. –
(a) Except as otherwise provided in the governing documents, a founder may dissolve a foundation by filing with the secretary of state a certificate of dissolution.
(b) The certificate of dissolution shall set forth:
(1) The foundation's name;
(2) The date on which the dissolution was authorized; and
(3) A statement that the founder authorized the dissolution.
(c) A foundation's dissolution is effective upon filing the certificate of dissolution.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:20-2003
564-F:20-2003 Dissolution by Board of Directors. –
(a) Except as otherwise provided in the governing documents, the board of directors may dissolve a foundation by filing with the secretary of state a certificate of dissolution.
(b) The certificate of dissolution shall set forth:
(1) The foundation's name;
(2) The date on which the dissolution was authorized;
(3) A statement that the board of directors authorized the dissolution; and
(4) A statement that a copy of the certificate of dissolution has been sent to the department of revenue.
(c) A foundation's dissolution is effective upon filing the certificate of dissolution.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:20-2004
564-F:20-2004 Revocation of Dissolution. –
(a) A foundation may revoke the dissolution by filing with the secretary of state a certificate of revocation of dissolution.
(b) The certificate of revocation of dissolution shall set forth:
(1) The foundation's name;
(2) The date on which the revocation of the dissolution was authorized;
(3) If a majority of organizers have authorized the revocation of the dissolution, a statement that a majority of the organizers authorized the revocation of the dissolution;
(4) If a majority of initial directors have authorized the revocation of the dissolution, a statement that a majority of the initial directors authorized the revocation of the dissolution;
(5) If the founder authorized the revocation of the dissolution, a statement that the founder authorized the revocation of the dissolution; and
(6) If the board of directors authorized the revocation of the dissolution, a statement that the board of directors authorized the revocation of the dissolution.
(c) A foundation may revoke its dissolution within 120 days of the dissolution's effective date.
(d) The revocation of dissolution shall be authorized in the same manner as the dissolution was authorized.
(e) The revocation of dissolution is effective upon the filing of the certificate of revocation of dissolution.
(f) When the revocation of dissolution is effective, it relates back to and takes effect as of the effective date of the dissolution and the corporation resumes carrying on its business as if dissolution had never occurred.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:20-2005
564-F:20-2005 Effect of Dissolution. –
(a) A dissolved foundation continues its existence as a legal entity but may not engage in any activities except to the extent necessary or appropriate to wind up its affairs, including:
(1) Collecting its property;
(2) Disposing of its property that will not be distributed in kind to its beneficiaries or in furtherance of its purposes;
(3) Discharging or making provision for discharging its liabilities; and
(4) Distributing its remaining property to its beneficiaries or in furtherance of its purposes in accordance with the governing documents.
(b) A foundation's dissolution does not:
(1) Transfer title to the foundation's property;
(2) Subject its directors to duties different from those prescribed in article 11;
(3) Subject its protectors to duties different from those prescribed in article 13;
(4) Change the provisions for appointment, resignation, or removal of the foundation officials;
(5) Change the provisions for amending its governing documents;
(6) Prevent commencement of a judicial proceeding by or against the foundation in the foundation's name;
(7) Abate or suspend a judicial proceeding pending by or against the foundation on the dissolution's effective date; or
(8) Terminate the authority of the foundation's registered agent.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:20-2006
564-F:20-2006 Known Claims Against Dissolved Foundation. –
(a) A dissolved foundation may dispose of a known claimant's claim against the dissolved foundation by delivering to the claimant a written notice of the dissolution at any time after the dissolution's effective date.
(b) The notice of dissolution shall set forth:
(1) A description of the information that must be included in a claim;
(2) A mailing address where a claim may be sent;
(3) The deadline by which the dissolved foundation must receive the claim; and
(4) A statement that the claim will be barred if not received by the deadline.
(c) For purposes of subsection (b)(3), the deadline may not be fewer than 90 days from the date on which the dissolved foundation delivers the notice of dissolution to the claimant.
(d) If the dissolved foundation delivers to a claimant a notice of dissolution in accordance with subsection (a), then the claimant's claim against a dissolved foundation shall be barred unless:
(1) The claimant delivers a notice of the claim to the dissolved foundation on or before the deadline set forth in the notice of dissolution; and
(2) The claimant commences a judicial proceeding to enforce the claim against the dissolved foundation within 90 days after the deadline set forth in the notice of dissolution.
(e) For purposes of this section, "claim" does not include a contingent liability or a claim based on an event occurring after the effective date of dissolution.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:20-2007
564-F:20-2007 Other Claims Against Dissolved Foundation. –
(a) A dissolved foundation may publish notice of its dissolution and request that persons with claims against the dissolved foundation present them in accordance with the notice.
(b) The notice shall be published one time in a newspaper of general circulation in:
(1) The county in which the dissolved foundation's principal office in this state is located; or
(2) If the dissolved foundation does not have a principal office in this state, the county in which its registered office is located.
(c) The notice shall set forth:
(1) A description of the information that must be included in a claim;
(2) A mailing address where the claim may be sent; and
(3) A statement that a claim against the dissolved foundation will be barred unless a judicial proceeding to enforce the claim is commenced within three years after the publication of the notice.
(d) If a dissolved foundation publishes a newspaper notice in accordance with subsection (a), then a claimant's claim against the dissolved foundation shall be barred unless:
(1) The claimant was entitled to receive notice under RSA 564-F:20-2006;
(2) The claimant commences a judicial proceeding to enforce the claim against the dissolved foundation within three years after the publication date of the newspaper notice; or
(3) The claim is contingent or based on an event occurring after the effective date of the foundation's dissolution.
(e) A claim that is not barred by RSA 564-F:20-2006(d) or subsection (d) may be enforced against:
(1) To the extent of its undistributed assets, the dissolved foundation; or
(2) To the extent that a person has received a distribution in liquidation of the dissolved foundation and subject to subsection (f), the person who received the distribution.
(f) The total liability of a person against whom a claim is enforceable under subsection (e)(2) shall not exceed the lesser of:
(1) The person's pro-rata share of the claim; and
(2) The total amount of property that the person received as distributions in liquidation of the dissolved foundation.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:20-2008
564-F:20-2008 Director Duties. –
(a) A director of a dissolved foundation shall have the following duties:
(1) A duty to cause the dissolved foundation to discharge its liabilities or make reasonable provision for discharging its liabilities; and
(2) A duty to cause the dissolved foundation to distribute its remaining property in accordance with the governing documents.
(b) A director of a dissolved foundation that has disposed of claims under RSA 564-F:20-2006 or RSA 564-F:20-2007 shall not be liable for breach of subsection (a) to the extent that the claim against the dissolved foundation is barred or satisfied under RSA 564-F:20-2006 or RSA 564-F:20-2007.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Part B
Administrative Dissolution
Section 564-F:20-2009
564-F:20-2009 Administrative Dissolution. –
(a) The secretary of state may administratively dissolve a foundation if:
(1) For 2 consecutive years, the foundation does not pay the annual fee or any penalty imposed by this chapter or other law within 60 days after the fee or penalty is due;
(2) For 2 consecutive years, the foundation does not file its annual report with the secretary of state within 60 days after the annual report is due;
(3) For a period of 60 days or more, the foundation does not have a registered agent or a registered office;
(4) The foundation fails to file with the secretary of state:
(A) A notice of a change of its registered agent within 60 days after the change;
(B) A notice of a change of its registered office within 60 days after the change;
(C) A notice of its registered agent's resignation within 60 days after the resignation; or
(D) A notice of the discontinuance of its registered office within 60 days after the discontinuance; or
(5) The period of foundation's duration stated in its certificate of formation expires.
(b) The secretary of state may dissolve a foundation under subsection (a) by sending the following documents to the foundation at the foundation's registered office:
(1) A notice of administrative dissolution; and
(2) An application for reinstatement.
(c) The notice of administrative dissolution shall set forth:
(1) The grounds for dissolution; and
(2) The effective date of dissolution.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:20-2010
564-F:20-2010 Effects of Administrative Dissolution. –
(a) A foundation that is administratively dissolved continues its existence as a legal entity but may not engage in any activities except to the extent necessary or appropriate to wind up its affairs in accordance with RSA 564-F:20-2005 to RSA 564-F:20-2008.
(b) A foundation's administrative dissolution does not terminate the authority of the foundation's registered agent.
(c) For a period of 120 days after the date of mailing of a notice of administrative dissolution under RSA 564-F:20-2009(b) and subject to subsection (d), the secretary of state shall not permit any person to use or reserve:
(1) A name that is the same as or similar to the name of a foundation that was administratively dissolved under RSA 564-F:20-2009; or
(2) A trade name registered by the limited liability company under RSA 349.
(d) The secretary of state may permit a person to use or reserve a name described in subsection (c)(1) or (c)(2) if the dissolved foundation consents to the use or reservation of that name.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:20-2011
564-F:20-2011 Reinstatement After Administrative Dissolution. –
(a) For a period of three years after the effective date of its dissolution, a foundation that has been administratively dissolved under RSA 564-F:20-2009 may apply to the secretary of state for reinstatement.
(b) The application for reinstatement shall include:
(1) The foundation's name;
(2) The effective date of the foundation's dissolution;
(3) A statement that each of the grounds for the foundation's dissolution did not exist or has been eliminated; and
(4) A statement that the foundation's name or proposed name satisfies the requirements of RSA 564-F:4-401.
(c) The secretary of state may cancel the administrative dissolution if:
(1) The secretary of state determines that the notice contains the information required under subsection (b);
(2) The information contained in the application is correct in all material respects; and
(3) The foundation's name or proposed name is available for registration.
(d) The secretary of state cancels an administrative dissolution by:
(1) Cancelling the notice of administrative dissolution;
(2) Sending to the foundation at its principal office a notice of reinstatement.
(e) The notice of reinstatement shall set forth:
(1) The secretary of state's determination under subsection (c);
(2) If the application for reinstatement includes a change of the foundation's name, the change of the foundation's name; and
(3) The effective date of reinstatement.
(f) A foundation's reinstatement shall have the following effects:
(1) The notice of reinstatement shall have the effect of an amendment of the foundation's certificate of formation;
(2) The reinstatement shall relate back to the effective date of the foundation's administrative dissolution;
(3) The foundation may resume engaging in activities in this state as if the administrative dissolution had never occurred; and
(4) All of the foundation's otherwise legally valid actions during the period if its dissolution shall be legally valid.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:20-2012
564-F:20-2012 Appeal from Denial of Reinstatement. –
(a) If the secretary of state denies a foundation's application for reinstatement following administrative dissolution, then the secretary of state shall send to the foundation written notice of denial.
(b) The notice of denial shall set forth each of the secretary of state's reasons for denial.
(c) The secretary of state shall send the notice of denial to the foundation at the foundation's principal address.
(d) The foundation may appeal the denial of reinstatement by filing a petition for reinstatement with the court located in:
(1) The county in which the foundation's principal office in this state is located; or
(2) If the foundation does not have a principal office in this state, the county in which the foundation's registered office is located.
(e) The foundation's petition for reinstatement shall include:
(1) A copy of the secretary of state's certificate of dissolution;
(2) The foundation's application for reinstatement; and
(3) The secretary of state's notice of denial.
(f) The foundation may commence the appeal under subsection (d) only within 30 days after the date of the notice of denial.
(g) The court may summarily order the secretary of state to reinstate the dissolved corporation or may take other action that the court considers appropriate.
(h) The court's final decision may be appealed as in other civil proceedings.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Part C
Judicial Dissolution
Section 564-F:20-2013
564-F:20-2013 Judicial Dissolution. –
(a) A court may dissolve a foundation if:
(1) The foundation procured its certificate of formation through fraud, duress, or undue influence;
(2) The foundation's purposes are not lawful or are contrary to the public policy of this state;
(3) The foundation has exceeded or abused its lawful authority under this chapter;
(4) The foundation has carried on, conducted, or transacted its affairs in a persistently fraudulent or illegal manner; or
(5) The foundation has abused its power contrary to the public policy of this state.
(b) A court may dissolve a foundation if:
(1) All of the foundation officials consent to the termination;
(2) All of the beneficiaries consent to the termination;
(3) To the extent that the foundation is a charitable trust, the director of charitable trusts consents to the dissolution; and
(4) The dissolution does not violate any of the foundation's material purposes.
(c) A court may dissolve a foundation if:
(1) Because of circumstances that the founder did not anticipate, the dissolution will further the foundation's purposes; and
(2) The dissolution does not violate any of the foundation's material purposes.
(d) Any of the following persons may commence a judicial proceeding seeking the foundation's dissolution under this section:
(1) A foundation official;
(2) A beneficiary unless the governing documents prohibit the beneficiary from commencing a judicial proceeding seeking the foundation's dissolution;
(3) To the extent that the foundation is a charitable trust, the director of charitable trusts; and
(4) With respect to a dissolution under subsection (a), the attorney general.
Source. 2017, 257:47, eff. Oct. 1, 2017.
ARTICLE 21
Foreign Foundations
Section 564-F:21-2101
564-F:21-2101 Activities in This State. –
(a) A foreign foundation shall not engage in any registrable activity in this state until it registers with the secretary of state.
(b) A registrable activity includes any activity that, if conducted by a foreign corporation, would constitute the corporation's transacting business in this state.
(c) Activities that are not registrable activities include:
(1) Maintaining, defending, or settling any judicial proceeding;
(2) Holding meetings of the board of directors or carrying on other activities concerning the foundation's internal affairs;
(3) Maintaining one or more bank accounts;
(4) Creating or acquiring indebtedness, mortgages, and security interests in real or personal property;
(5) Securing or collecting debts or enforcing mortgages and security interests in property securing the debts;
(6) Without more, owning any real or personal property located in this state;
(7) Conducting an isolated transaction that:
(A) Is completed within 30 days; and
(B) Is not a single transaction in the course of repeated transactions of a like nature;
(8) Transacting any activity in interstate commerce; and
(9) Any activity that, if conducted by a foreign corporation, would not constitute the corporation's transacting business in this state.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:21-2102
564-F:21-2102 Registration. –
(a) A foreign foundation may register with the secretary of state by filing with the secretary of state a certificate of registration.
(b) The certificate of registration shall set forth:
(1) The foreign foundation's name or, if its name is unavailable for use in this state, a name that satisfies the requirements of RSA 564-F:4-401;
(2) The name and usual business address of each of the foundation's directors;
(3) The name of the jurisdiction under the laws of which the foundation is organized;
(4) The foundation's date of formation;
(5) The foundation's period of duration;
(6) The street address of the foundation's principal office;
(7) The name of the foundation's initial registered agent in this state; and
(8) The address of the foundation's initial registered office in this state.
(c) The certificate of registration may set forth any other matter that the foreign foundation deems necessary or advisable.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:21-2103
564-F:21-2103 Amended Registration. –
(a) Subject to subsection (c), a foreign foundation may amend its certificate of registration by filing an amended certificate of registration with the secretary of state.
(b) An amended certificate of registration shall set forth:
(1) The foreign foundation's name or, if its name is unavailable for use in this state or does not satisfy the requirements of RSA 564-F:4-401, a name that satisfies the requirements of RSA 564-F:4-401; and
(2) The amendment to the certificate of registration.
(c) A certificate of registration may be amended at any time in any respect so long as the amended certificate of registration contains only provisions that lawfully may be contained in the certificate of registration at the time of making the amendment.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:21-2104
564-F:21-2104 Restated Certificate of Registration. –
(a) A foreign foundation may restate its certificate of formation by filing with the secretary of state a restated certificate of registration.
(b) The restated certificate of registration shall set forth:
(1) The foundation's name; and
(2) The restatement of the certificate of registration.
(c) The restated certificate of formation may contain one or more amendments to the certificate of registration as permitted in a certificate of amendment under RSA 564-F:21-2103.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:21-2105
564-F:21-2105 Effect of Registration. –
(a) Subject to RSA 564-F:21-2116, a foreign foundation's registration under RSA 564-F:21-2102 authorizes the foreign foundation to engage in any registrable activity in this state.
(b) A registered foreign foundation:
(1) Has the same rights and privileges as a domestic foundation; and
(2) Except as otherwise provided in this chapter, the same duties, restrictions, penalties, and liabilities now or later imposed on a foundation of like character.
(c) This chapter does not authorize this state to regulate the organization or internal affairs of a registered foreign foundation.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:21-2106
564-F:21-2106 Effect of Engaging in Registrable Activities Without Registration. –
(a) A foreign foundation engaging in a registrable activity in this state may not maintain any judicial proceeding in this state until it has registered and has paid all fees for the period during which it engaged in registrable activities in this state while unregistered.
(b) A foreign foundation's failure to register does not:
(1) Impair the validity of any of the foreign foundation's acts;
(2) Impair the validity of any contract to which the foreign foundation is a party;
(3) Impair the rights of any other party to a contract to which the foreign foundation also is a party, including the right to maintain a judicial proceeding regarding any matter involving the contract; or
(4) Prevent the foreign foundation from defending any judicial proceeding in any court in this state.
(c) A foreign foundation's directors, officers, managers, other officeholders, employees, and agents are not liable for the foreign foundation's obligations solely by reason of the foreign foundation having engaged in registrable activities in this state without registration.
(d) A foreign foundation engaging in a registrable activity shall be liable to the state for the years or parts of the year during which it engaged in registrable activities in this state without registration in an amount equal to:
(1) All fees that would have been imposed under this chapter on that foreign foundation had it duly registered; and
(2) All penalties imposed by this chapter.
(e) The attorney general may commence judicial proceedings to recover all amounts due to this state under this section.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:21-2107
564-F:21-2107 Registered Agent. –
(a) Each foreign foundation shall continuously maintain a registered agent in this state.
(b) A registered agent may be any of the persons described in RSA 564-F:5-501(b).
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:21-2108
564-F:21-2108 Registered Office. –
(a) Each foreign foundation shall continuously maintain in this state a registered office.
(b) A foreign foundation's registered office may be the same as any of its offices in this state.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:21-2109
564-F:21-2109 Change of the Registered Agent. –
(a) A foreign foundation may change its registered agent by filing with the secretary of state a notice of change of registered agent.
(b) The notice of change of registered agent shall set forth the information described in RSA 564-F:5-504(b).
(c) For purposes of subsection (b), the foreign foundation's name is the name under which the foreign foundation registered in accordance with RSA 564-F:4-401.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:21-2110
564-F:21-2110 Resignation of the Registered Agent. –
(a) A foreign foundation's registered agent may resign as registered agent by filing with the secretary of state a notice of resignation.
(b) The notice of resignation may include a statement that the foreign foundation's registered office in this state is discontinued.
(c) The secretary of state shall send a copy of the notice of registration to the foreign foundation at the foreign foundation's principal office.
(d) The registered agent's appointment shall terminate on the earlier of:
(1) Thirty-one days after the filing of the notice of resignation with the secretary of state; or
(2) The date of the appointment of a successor registered agent.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:21-2111
564-F:21-2111 Registered Agent's Change of Address. –
If a registered agent changes its address to another place in this state, then the registered agent may change the address of the registered office of any foreign foundation for which it is a registered agent by filing a statement in accordance with RSA 564-F:5-504.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:21-2112
564-F:21-2112 Change of the Registered Office. –
(a) A foreign foundation may change its registered office by filing with the secretary of state a notice of change of registered office.
(b) The notice of change of registered office shall set forth the information described in RSA 564-F:5-505(b).
(c) For purposes of subsection (b), the foreign foundation's name is the name under which the foreign foundation registered in accordance with RSA 564-F:4-401.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:21-2113
564-F:21-2113 Service on a Foundation. –
(a) A foreign foundation's registered agent is the foundation's agent for service of process, notice, or demand required or permitted by law to be served on the foreign foundation.
(b) A foreign foundation may be served by registered mail or certified mail, return receipt requested, addressed to the foreign foundation at its principal office if:
(1) The foreign foundation does not have a registered agent; or
(2) With reasonable due diligence, the foreign foundation's registered agent cannot be served.
(c) Service is perfected under subsection (b) at the earliest of:
(1) The date the foreign foundation receives the documents sent by registered mail or certified mail;
(2) The date shown on the return receipt if the return receipt is signed on the foreign foundation's behalf; or
(3) Five days after the documents are deposited in the United States Postal Service for mailing by registered mail or certified mail, as evidenced by the postmark.
(d) This section does not preclude other means of serving a foreign foundation.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:21-2114
564-F:21-2114 Voluntary Cancellations of Registration. –
(a) A registered foreign foundation may cancel its registration by filing with the secretary of state a certificate of cancellation.
(b) The certificate of cancellation shall set forth:
(1) The foreign foundation's name;
(2) The name of the jurisdiction in which the foundation is organized;
(3) A statement that the foreign foundation is not engaging in any registrable activity in this state;
(4) A statement that the foreign foundation revokes the authority of its registered agent to accept service on the foreign foundation's behalf;
(5) A statement that the foreign foundation discontinues its registered office;
(6) A statement that the foreign foundation appoints the secretary of state as its agent for service of process in any proceeding based on a cause of action arising while the foreign foundation was registered in this state;
(7) A mailing address to which the secretary of state may mail a copy of any process served on the secretary of state under subsection (b)(6); and
(8) A statement by which the foreign foundation commits to notify the secretary of state in the future of any change in its mailing address.
(c) The cancellation of the foreign foundation's registration is effective upon filing the certificate of cancellation.
(d) After the cancellation of the foreign foundation's registration is effective, service of process on the secretary of state under this section is service on the foreign corporation.
(e) Upon receipt of service on a foreign foundation under this section, the secretary of state shall mail a copy of the service of process to the foreign corporation at the mailing address set forth under subsection (b)(7) or updated in accordance with subsection (b)(8).
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:21-2115
564-F:21-2115 Automatic Cancellation upon Certain Mergers. –
Upon merging into a foundation, a foreign foundation's registration automatically is cancelled effective upon the filing of the certificate of merger.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:21-2116
564-F:21-2116 Administrative Cancellation. –
(a) The secretary of state may administratively cancel a foreign foundation's registration if:
(1) For 2 consecutive years, the foreign foundation does not pay the annual fee, late filing fee, or any penalty imposed by this chapter or other law within 60 days after the fee or penalty is due;
(2) For 2 consecutive years, the foreign foundation does not file its annual report with the secretary of state within 60 days after the annual report is due;
(3) For a period of 60 days or more, the foreign foundation does not have a registered agent or a registered office;
(4) Within 60 days any of the following events, the foreign foundation fails to file with the secretary of state the requisite notice of the event:
(A) A change of its registered agent;
(B) A change of its registered office;
(C) A registered agent's resignation; or
(D) The discontinuance of its registered office.
(5) The period of foreign foundation's duration stated in its certificate of registration expires.
(6) The foreign foundation files with the secretary of state any report or other document that:
(A) Is required or permitted to be filed under this chapter;
(B) Contains a misrepresentation of any material matter; or
(7) The secretary of state receives a duly authenticated certificate from the secretary of state or other official having custody of the foundation's records in the jurisdiction in which the foreign foundation is organized stating that the foreign foundation has been dissolved or has ceased to exist as the result of a merger.
(b) The secretary of state may administratively dissolve a foreign foundation under subsection (a) by sending the following documents to the foreign foundation at the foreign foundation's principal office:
(1) A notice of dissolution; and
(2) An application for reinstatement.
(c) The notice of dissolution shall set forth:
(1) The grounds for dissolution; and
(2) The effective date of dissolution.
(d) The cancellation of the foreign foundation's registration is effective on the date of the notice of dissolution.
Source. 2017, 257:47, eff. Oct. 1, 2017. 2018, 210:18, eff. June 8, 2018.
Section 564-F:21-2117
564-F:21-2117 Effects of Administrative Cancellation. –
(a) A foreign foundation's authority to engage in registrable activities in this state shall cease on the effective date of the administrative cancellation of the foreign foundation's registration.
(b) The administrative cancellation of a foreign foundation's registration shall not terminate the authority of the foreign foundation's registered agent.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:21-2118
564-F:21-2118 Appeal from Administrative Cancellation. –
(a) A foreign foundation may appeal the administrative cancellation of its registration to the probate division of the circuit court for the sixth circuit within 30 days after cancellation.
(b) The foreign foundation appeals by:
(1) Petitioning the court to set aside the cancellation; and
(2) Attaching to its petition copies of:
(A) The foreign foundation's certificate of registration; and
(B) The secretary of state's notice of administrative cancellation.
(c) The court may summarily order the secretary of state to reinstate the foreign foundation's registration or may take any other action the court considers appropriate.
(d) The court's final decision may be appealed as in other civil proceedings.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:21-2119
564-F:21-2119 Domestication. –
(a) A foreign foundation may domesticate as a foundation formed under this chapter by filing with the secretary of state a certificate of domestication.
(b) The certificate of domestication shall set forth:
(1) The foreign foundation's name or, if its name is unavailable for use in this state, a name that satisfies the requirements of RSA 564-F:4-401;
(2) The name and usual business address of each of the foreign foundation's directors;
(3) The name of the jurisdiction under the laws of which the foreign foundation was originally formed;
(4) The foreign foundation's original date of formation;
(5) If the foreign foundation's domestication will not be effective upon the filing of certificate of domestication with the secretary of state, the effective date and time on which the foreign foundation's domestication shall begin;
(6) The name of the foreign foundation's initial registered agent in this state; and
(7) The address of the foreign foundation's initial registered office in this state.
(c) The certificate of domestication may set forth any other matter that the foreign foundation deems necessary or advisable.
(d) For purposes of subsection (b)(5), the effective date and time shall not be more than 90 days after the filing of the foreign foundation's certificate of domestication with the secretary of state.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:21-2120
564-F:21-2120 Date of Domestication. –
(a) A foreign foundation's domestication shall be effective upon:
(1) If certificate of domestication does not specify a delayed effective time and date in accordance with RSA 564-F:21-2120(b)(5) and (c), the filing of the certificate of domestication; or
(2) If certificate of domestication specifies a delayed effective time and date in accordance with RSA 564-F:21-2120(b)(5) and (c), the effective time and date specified in the certificate of domestication.
(b) The secretary of state's acceptance for filing of the certificate of domestication is conclusive proof that the foundation satisfied all conditions precedent to the foundation's domestication, except in a judicial proceeding by this state to revoke the foundation's domestication or involuntarily dissolve the foundation.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:21-2121
564-F:21-2121 Effects of Domestication. –
(a) Upon its domestication, a foreign foundation shall be:
(1) Domesticated as foundation; and
(2) Subject to this chapter in the same manner as a foundation originally formed under this chapter.
(b) Notwithstanding the effective date of the domestication or this chapter, a domesticated foundation's existence shall be deemed to have commenced on the date that its existence commenced in the jurisdiction in which it was originally formed.
(c) All title to real property and other property owned by a foundation before its domestication and all contractual rights possessed by a foundation before its domestication shall remain vested in the foundation without reversion or impairment.
(d) Domestication shall not affect:
(1) Any obligations or liabilities that a foundation incurred before its domestication;
(2) The personal liability of any person for any of the obligations or liabilities described in subsection (b)(1); or
(3) The laws applicable to a foundation before the filing of its certificate of formation.
Source. 2017, 257:47, eff. Oct. 1, 2017.
ARTICLE 22
Reports and Other Filings
Section 564-F:22-2201
564-F:22-2201 Annual Reports. –
(a) Each foundation and each registered foreign foundation shall file with the secretary of state an annual report.
(b) In the case of a foundation, an annual report shall set forth:
(1) The foundation's name;
(2) The address of the foundation's principal office;
(3) The foundation's registered agent;
(4) The foundation's registered office; and
(5) The name and business address of each of the foundation's directors.
(c) In the case of a registered foreign foundation, an annual report shall set forth:
(1) The foundation's name;
(2) The jurisdiction in which the foundation is formed;
(3) The address of the foundation's principal office;
(4) The foundation's registered agent;
(5) The foundation's registered office; and
(6) The name and business address of each of the foundation's directors.
(d) On its annual report, a foundation or a registered foreign foundation shall report information that is accurate as of January 1 of the year in which the annual report is due.
(e) A foundation's annual reports are due:
(1) Subject to subsection (e)(2), a foundation shall file its initial annual report on or before April 1 of the year following the calendar year in which the foundation was formed.
(2) If the foundation was formed during the month of December, then the foundation shall file its initial annual report on or before April 1 of the second year following the calendar year in which the foundation was formed.
(3) In each calendar year after the year in which its initial annual report is due, the foundation shall file an annual report on or before April 1 of that year.
(f) A foreign foundation's annual reports are due:
(1) Subject to subsection (f)(2), a registered foreign foundation shall file its initial annual report on or before April 1 of the year following the calendar year in which the foundation was formed.
(2) If the foreign foundation registered during the month of December, then the registered foreign foundation shall file its initial annual report on or before April 1 of the second year following the calendar year in which the foreign foundation was registered.
(3) In each calendar year after the year in which its initial annual report is due, the foreign foundation shall file an annual report on or before April 1 of that year.
(g) If an annual report of a foundation or a registered foreign foundation does not contain the information required by this section, then the secretary of state shall promptly send to the foundation or the registered foreign foundation:
(1) A notice describing the deficiencies in the annual report; and
(2) The annual report that fails to contain the information required by this section.
(h) If a foundation or a registered foreign foundation files a corrected annual report within 30 days after the date of notice under subsection (g)(1), then the annual report will be deemed timely filed.
(i) In addition to the annual report fee, a foundation that fails to file its annual report on or before the due date under RSA 564-F:22-2201(e) or a registered foreign foundation that fails to file its annual report on or before the due date under RSA 564-F:22-2201(f) shall pay the late filing fee under RSA 564-F:22-2205(a)(19).
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:22-2202
564-F:22-2202 Correcting Filed Document. –
(a) Subject to subsection (b), a foundation or foreign foundation may correct a document described in subsection (c) by filing with the secretary of state a certificate of correction.
(b) A foundation or foreign foundation may file a certificate of correction only within one year of the filing of the document described in subsection (c).
(c) A document filed with the secretary of state may be corrected if:
(1) The document contains an inaccuracy; or
(2) The document was defectively executed, attested, sealed, verified, or acknowledged.
(d) The certificate of correction shall set forth:
(1) A statement identifying the document to be corrected;
(2) The filing date of the document to be corrected;
(3) A description of the inaccuracy or defect to be corrected; and
(4) A statement correcting the inaccuracy or defect.
(e) The certificate of correction may include a copy of the document to be corrected.
(f) A certificate of correction is effective on:
(1) Except as provided in subsection (f)(2), the effective date of the document that the certificate of correction corrects; and
(2) With respect to any person relying on the uncorrected document and adversely affected by the correction, the date on which the certificate of correction is filed.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:22-2203
564-F:22-2203 Penalty for Filing False Document. –
(a) A person commits an offense by:
(1) Filing with the secretary of state a document that the person knows is false in any material respect; or
(2) Signing a document that the person knows is false in any material respect with intent that the document be delivered to the secretary of state for filing.
(b) An offense under this section is a misdemeanor.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:22-2204
564-F:22-2204 Collections and Payments of Fees. –
(a) The secretary of state shall collect all fees required under this chapter and, subject to subsection (b), shall pay those fees to the state treasurer to be deposited in the general fund as unrestricted revenue.
(b) The state treasurer shall pay amounts to the secretary of state as follows:
(1) The state treasurer shall pay the expenses of administering this chapter out of any money in the treasury not otherwise appropriated until the fees collected under this chapter have been received by the state treasurer.
(2) After the fees collected under this chapter have been received by the state treasurer, the state treasurer shall pay the expenses of administering this chapter out of the fees collected under this chapter and shall reimburse the treasury for previous expenses paid by the state treasurer.
(c) The governor is authorized to draw a warrant for the sums authorized by this section out of any money in the treasury not otherwise appropriated.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:22-2205
564-F:22-2205 Fees. –
(a) The secretary of state shall collect the following fees for:
(1) Certificate of formation$100
(2) Certificate of amendment$35
(3) Restated certificate of formation$35
(4) Application to reserve name$15
(5) Notice of transfer of reserved name$15
(6) Notice of change of registered agent$15
(7) Notice of resignation of registered agent$15
(8) Notice of registered agent's change of address$15
(9) Notice of change of registered office$15
(10) Certificate of merger$35
(11) Certificate of dissolution$35
(12) Certificate of revocation of dissolution$35
(13) Certificate of registration$100
(14) Amended certificate of registration$35
(15) Restated certificate of registration$35
(16) Certificate of cancellation$35
(17) Application for reinstatement$135
(18) Certificate of domestication$100
(19) Annual report$100
(20) Late filing fee$50
(21) Certificate of correction$35
(b) The secretary of state shall collect a fee of $25 each time process is served on the secretary of state under this chapter. The party to a judicial proceeding causing service of process is entitled to recover this fee as costs if that party prevails in the judicial proceeding.
(c) The secretary of state shall collect the following fees for certifying any filed document relating to a foundation or foreign foundation:
(1) $1 per document; and
(2) $5 for the certificate.
Source. 2017, 257:47, eff. Oct. 1, 2017. 2023, 170:12, eff. Nov. 1, 2023.
ARTICLE 23
Miscellaneous Provisions
Section 564-F:23-2301
564-F:23-2301 Director of Charitable Trusts. –
With respect to a foundation that is a charitable trust, this chapter shall not limit the authority of the director of charitable trusts as otherwise provided by statute or common law.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:23-2302
564-F:23-2302 Department of Health and Human Services. –
This chapter shall not limit the authority of the department of health and human services as otherwise provided by statute or common law.
Source. 2017, 257:47, eff. Oct. 1, 2017.
Section 564-F:23-2303
564-F:23-2303 Severability. –
If any provision of this chapter or its application to any person or circumstance is held invalid, then the invalidity shall not affect other provisions or applications of this chapter that can be given effect without the invalid provision or application. To that end, the provisions of this chapter are severable.
Source. 2017, 257:47, eff. Oct. 1, 2017.