HRS §414D-1 Short title
414D-1. Short title
This chapter shall be known and may be cited as the "Hawaii Nonprofit Corporations Act".
L 2001, c 105, pt of §1
General Provisions
HRS div. 2, tit. 23, ch. 414D, pt. I
in effectHRS §414D-2 Reservation of power to amend or repeal
414D-2. Reservation of power to amend or repeal
The Hawaii legislature has power to amend or repeal all or part of this chapter at any time and all domestic and foreign corporations subject to this chapter are governed by the amendment or repeal.
L 2001, c 105, pt of §1
HRS §414D-3 Filing requirements
414D-3. Filing requirements
(a) A document must satisfy the requirements of this section, and of any other section that adds to or varies these requirements, to be entitled to filing by the department director.
(b) This chapter
must require or permit filing of the document with the department director.
(c) The document
must contain the information required by this chapter. It may contain other
information as well.
(d) The document
must be typewritten or printed.
(e) The document
must be in the English language. However, a corporate name need not be in
English if written in English letters or Arabic or Roman numerals, and the
certificate of good standing required of foreign corporations need not be in
English if accompanied by an English translation under oath of the translator.
(f) The
document must be certified and executed:
(1) By the presiding officer of the board of
directors of a domestic or foreign corporation, by its president, or by another
of its officers;
(2) If directors have not been selected or the
corporation has not been formed, by an incorporator; or
(3) If the corporation is in the hands of a receiver,
trustee, or other court-appointed fiduciary, by that fiduciary.
(g) The person
executing a document shall sign it and state beneath or opposite the signature
the person's name and the capacity in which the person signs. The document may
but need not contain:
(1) The corporate seal;
(2) An attestation by the secretary or an assistant
secretary; or
(3) An acknowledgment, verification, or proof.
(h) If the
department director has prescribed a mandatory form for a document under
section 414D-4, the document must be in or on the prescribed form.
(i) The document shall be delivered to the
office of the department director for filing and shall be accompanied by the
correct filing fee and any penalty payment required under this chapter.
[L
2001, c 105, pt of §1; am L 2003, c 124, §19]
HRS §414D-4 Forms
414D-4. Forms
(a) The department director may prescribe and furnish on request, forms for:
(1) An application for a certificate of good
standing;
(2) A foreign corporation's application for a
certificate of authority to transact business in this State;
(3) A foreign corporation's application for a
certificate of withdrawal; and
(4) The annual report.
If the department
director so requires, use of these forms is mandatory.
(b) The department
director may prescribe and furnish on request forms for other documents
required or permitted to be filed by this chapter but their use is not
mandatory.
[L 2001, c 105, pt of §1]
HRS §414D-5 Filing, service, and copying fees
414D-5. Filing, service, and copying fees
(a) The following fees shall be paid to the department director upon the filing of corporate documents:
(1) Articles of incorporation, $50;
(2) Articles of amendment, $10;
(3) Restated articles of incorporation, $10;
(4) Articles of merger, $50;
(5) Articles of conversion, $50;
(6) Articles of dissolution, $10;
(7) Annual report of nonprofit domestic or foreign
corporation, $5;
(8) Any other statement, report, certificate,
application, or other corporate document, except an annual report, of a
nonprofit domestic or foreign corporation, $10;
(9) Application for a certificate of authority, $50;
(10) Application for a certificate of withdrawal, $10;
(11) Reservation of corporate name, $10;
(12) Transfer of reservation of corporate name, $10;
(13) Good standing certificate, $5;
(14) Special handling fee for review of corporation
documents, excluding articles of merger or conversion, $25;
(15) Special handling fee for review of articles of
conversion or merger, $75;
(16) Special handling fee for certificates issued by
the department, $10 per certificate;
(17) Special handling fee for certification of
documents, $10; and
(18) For filings relating to registered agents, the
fees established by section 425R-2.
(b) All special handling fees shall be
credited to the compliance resolution fund established under section 26-9(o).
(c) The department director shall adjust the
fees assessed under this section, as necessary from time to time, through rules
adopted pursuant to chapter 91.
[L 2001, c 105, pt of §1; am L 2003, c 124,
§20; am L 2004, c 116, §4 and c 117, §2; am L 2009, c 55, §17]
HRS §414D-6 Effective time and date of document
414D-6. Effective time and date of document
(a) Except as otherwise provided in subsection (b) and section 414D-7(c), a document is effective:
(1) At the time of filing on the date it is filed, as
evidenced by the department director's endorsement on the original document; or
(2) At the time specified in the document as its
effective time on the date it is filed.
(b) Articles of dissolution, articles of
conversion, and articles of merger may specify a delayed effective time and
date, and if it does so the document becomes effective at the time and date
specified. If a delayed effective date but no time is specified, the document
is effective at the close of business on that date. A delayed effective date
for a document may not be later than the thirtieth day after the date filed.
[L
2001, c 105, pt of §1; am L 2003, c 124, §21]
HRS §414D-7 Correcting filed document
414D-7. Correcting filed document
(a) A domestic or foreign corporation may correct a document filed by the department director if the document:
(1) Contains an incorrect statement; or
(2) Was defectively executed, attested, sealed,
verified, or acknowledged.
(b) A document is corrected by:
(1) Preparing articles of correction that:
(A) Describe the document (including its
filing date) or attach a copy of it to the articles;
(B) Specify the incorrect statement and the
reason it is incorrect or the manner in which the execution was defective; and
(C) Correct the incorrect statement or
defective execution; and
(2) Delivering the articles of correction to the
department director.
(c) Articles of correction are effective on
the effective date of the document they correct except as to persons relying on
the uncorrected document and adversely affected by the correction. As to those
persons, articles of correction are effective when filed.
[L 2001, c 105, pt of
§1]
HRS §414D-8 Filing duty of the department director
414D-8. Filing duty of the department director
(a) If a document delivered to the office of the department director for filing satisfies the requirements of section 414D‑3, the department director shall file it.
(b) The department director files a document
by stamping or otherwise endorsing it with the date and the time of receipt.
(c) If the department director refuses to file
a document, the department director shall return it to the domestic or foreign
corporation or its designated representative, together with a brief, written
explanation of the reason or reasons for the refusal.
(d) The department director's duty to
file documents under this section is ministerial. The department director's
filing or refusal to file a document does not:
(1) Affect the validity or invalidity of the document
in whole or in part;
(2) Relate to the correctness or incorrectness of
information contained in the document; or
(3) Create a presumption that the document is valid
or invalid or that information contained in the document is correct or
incorrect.
[L 2001, c 105, pt of §1; am L 2003, c 124, §22]
HRS §414D-9 Appeal from the department director's refusal to file document
414D-9. Appeal from the department director's refusal to file document
(a) If the department director refuses to file a document delivered for filing to the department director's office, the domestic or foreign corporation may within thirty days after the return of the document appeal the refusal to the circuit court. The appeal shall be commenced by petitioning the court to compel filing the document and by attaching to the petition the document and the department director's explanation of the refusal to file.
(b) The court may summarily order the
department director to file the document or take other action the court
considers appropriate.
(c) The court's final decision may be appealed
as in other civil proceedings.
[L 2001, c 105, pt of §1]
HRS §414D-10 Evidentiary effect of copy of filed document
414D-10. Evidentiary effect of copy of filed document
A certificate attached to a copy of a document bearing the department director's signature (which may be in facsimile) and the seal of the department is conclusive evidence that the original document is on file with the department director.
[L 2001, c 105, pt of §1]
HRS §414D-11 Certificates and certified copies to be received in evidence
414D-11. Certificates and certified copies to be received in evidence
All certificates issued by the department director pursuant to this chapter, and all copies of documents filed in the department director's office pursuant to this chapter when certified by the department director, shall be taken and received in all courts, public offices, and official bodies as prima facie evidence of the facts stated therein. A certificate issued by the department director under the seal of the department of commerce and consumer affairs as to the existence or nonexistence of the facts relating to corporations, shall be taken and received in all courts, public offices, and official bodies as prima facie evidence of the existence or nonexistence of the facts stated therein.
[L 2001, c 105, pt of §1; am L 2003, c 124, §23]
HRS §414D-12 Penalty for signing false document
414D-12. Penalty for signing false document
(a) A person commits an offense by signing a document the person knows is false in any material respect with intent that the document be delivered to the department director for filing.
(b) An offense under this section is a class C
felony.
[L 2001, c 105, pt of §1]
HRS §414D-13 Department director; powers
414D-13. Department director; powers
The department director has the power reasonably necessary to perform the duties required of the department director's office by this chapter. The department director shall adopt necessary rules pursuant to chapter 91.
L
2001, c 105, pt of §1
HRS §414D-14 Definitions
414D-14. Definitions
Unless the context otherwise requires in this chapter:
"Affiliate" means an entity that
directly or indirectly controls, is controlled by, or is under common control
with the public benefit corporation. Control includes the power to select the
public benefit corporation's board of directors.
"Approved by the members" or
"approval by the members" means an act approved or ratified by:
(1) The affirmative vote of a majority of the votes
represented and cast at a duly held meeting at which a quorum is present;
provided that the affirmative votes cast constitute a majority of the required
quorum;
(2) A ballot or written consent in conformity with
this chapter; or
(3) The affirmative vote, ballot, or written consent
of the greater proportion, including the votes of all the members of any class,
unit, or grouping as may be provided in the articles, bylaws, or this chapter
for any specified member action.
"Articles of incorporation" or
"articles" includes amended and restated articles of incorporation,
and articles of merger.
"Board" or "board of
directors" means the board of directors of a corporation except that no
person or group of persons are the board of directors because of powers
delegated to that person or group pursuant to section 414D-131.
"Bylaws" means the code or codes of
rules (other than the articles) adopted pursuant to this chapter for the
regulation or management of the affairs of the corporation irrespective of the
name or names by which the rules are designated.
"Class" refers to a group of
memberships which have the same rights with respect to voting, dissolution,
redemption, and transfer. For the purpose of this chapter, rights shall be
considered the same if they are determined by a formula applied uniformly.
"Code" means the federal Internal
Revenue Code of 1986, as amended.
"Corporation" means a nonprofit
corporation unless otherwise specified.
"Delegates" means those persons
elected or appointed to vote in a representative assembly for the election of a
director or directors or on other matters.
"Deliver" includes mail.
"Department" means the department of
commerce and consumer affairs, unless the context otherwise requires.
"Department director" means the
director of the department of commerce and consumer affairs, unless the context
otherwise requires.
"Directors" means individuals,
designated in the articles or bylaws or elected by the incorporators, and their
successors and individuals elected or appointed by any other name or title, to
act as members of the board. Any person who does not have authority to vote as
a member of the board is not a director as that term is used in this chapter,
regardless of title.
"Distribution" means the payment of a
dividend or any part of the income or profit of a corporation to its members,
directors, or officers.
"Domestic corporation" means a
corporation organized under the laws of this State.
"Electronic transmission" means any
form of communication, not directly involving the physical transmission of
paper, that creates a record that may be retained, retrieved, and reviewed by a
recipient thereof, and that may be directly reproduced in paper form by such a
recipient through an automated process.
"Employee" does not include an
officer or director who is not otherwise employed by the corporation.
"Entity" includes domestic and
foreign corporations, domestic professional corporations, domestic and foreign
limited liability companies, domestic and foreign nonprofit corporations,
domestic and foreign business trusts, estates, domestic and foreign
partnerships, domestic and foreign limited partnerships, domestic and foreign
limited liability partnerships, trusts, two or more persons having a joint or
common economic interest, associations and cooperative associations, and state,
federal, and foreign governments.
"File", "filed", or
"filing" means filed in the office of the department director.
"Foreign corporation" means a
corporation organized under a law other than the law of this State.
"Governmental subdivision" includes
authority, county, district, and municipality.
"Includes" denotes a partial
definition.
"Individual" means a natural person.
"Means" denotes a complete
definition.
"Member" means (without regard to
what a person is called in the articles or bylaws) any person or persons having
the rights and obligations of membership pursuant to a corporation's articles
of incorporation or bylaws.
"Membership" refers to the rights and
obligations a member or members have pursuant to a corporation's articles,
bylaws, and this chapter.
"Merger" means the procedure
authorized by this part in which one domestic or foreign entity combines with
one or more domestic or foreign entities resulting in either one surviving
entity or one new entity.
"Notice" is defined in section
414D-15.
"Person" includes any individual or
entity.
"Principal office" means the office
(in or out of the State) so designated in the annual report where the principal
offices of a domestic or foreign corporation are located.
"Proceeding" includes civil suit and
criminal, administrative, and investigatory action.
"Profit corporation" means a
corporation organized for profit and registered under chapter 414.
"Public benefit corporation" means
any corporation designated by statute as a public benefit corporation, or any
corporation that is recognized as exempt under section 501(c)(3) of the
Internal Revenue Code of 1986, as amended, or that is organized for public or
charitable purposes and upon dissolution must distribute its assets to a public
benefit corporation, the United States, a state, or a person recognized as
exempt under section 501(c)(3) of the Internal Revenue Code of 1986, as
amended.
"Record date" means the date
established under part VI or part VII on which a corporation determines the
identity of its members for the purposes of this chapter.
"Secretary" means the corporate
officer to whom the board of directors has delegated responsibility under
section 414D-153(b) for preparing the minutes of the directors' and members'
meetings and for authenticating the records of the corporation.
"State" when referring to a part of
the United States, includes a state and commonwealth (and their agencies and
governmental subdivisions) and a territory, and insular possession (and their
agencies and governmental subdivisions) of the United States.
"United States" includes district,
authority, bureau, commission, department, and any other agency of the United
States.
"Vote" includes authorization by
ballot and written consent.
"Voting power" means the total number
of votes entitled to be cast for the election of directors at the time the
determination of voting power is made, excluding a vote which is contingent
upon the happening of a condition or event that has not occurred at the time.
Where a class is entitled to vote as a class for directors, the determination
of voting power of the class shall be based on the percentage of the number of
directors the class is entitled to elect out of the total number of authorized
directors.
[L 2001, c 105, pt of §1; am L 2002, c 41, §12; am L 2003, c 124,
§2; am L 2004, c 121, §15 and c 171, §4; am L 2006, c 184, §9; am L 2009, c 23,
§3; am L 2010, c 43, §2; am L 2011, c 37, §3; am L 2012, c 58, §3; am L 2019, c
65, §2]
HRS §414D-15 Notice
414D-15. Notice
(a) Notice may be oral, in the form of an electronic transmission as described in subsections (i) and (j), or written.
(b) Notice may be communicated in person; by
telephone, telegraph, teletype, or other form of wire or wireless
communication; by mail or private carrier; or by electronic transmission as
described in subsections (i) and (j). If these forms of personal notice are
impracticable, notice may be communicated by a newspaper of general circulation
in the area where it is published; or by radio, television, or other form of
public broadcast communication.
(c) Oral notice is effective when communicated
if communicated in a comprehensible manner.
(d) Written notice by a domestic or foreign
corporation to its members, if in a comprehensible form, shall be effective
when mailed, if mailed postpaid and correctly addressed to the member's address
shown in the corporation's current record of members.
(e) Except as provided in subsection (d),
written notice, if in a comprehensible form, is effective at the earliest of
the following:
(1) When received;
(2) Five days after its deposit with the United
States Postal Service, as evidenced by the postmark; provided the notice is
mailed with the correct address and with first class postage affixed; or
(3) On the date shown on the return receipt, if sent
by registered or certified mail, return receipt requested, and the receipt is
signed by or on behalf of the addressee.
(f) Written notice is correctly addressed to a
member of a domestic or foreign corporation if addressed to the member's last
known address shown in the corporation's current list of members.
(g) A written notice or report delivered as
part of a newsletter, magazine, or other publication regularly sent to members
shall constitute a written notice or report if addressed or delivered to the
member's last known address shown in the corporation's current list of members,
or in the case of members who are residents of the same household and who have
the same address in the corporation's current list of members, if addressed or
delivered to one of the members, at the last known address appearing on the
current list of members.
(h) Written notice is correctly addressed to a
domestic or foreign corporation (authorized to transact business in the State),
other than in its capacity as a member, if addressed to its registered agent or
to its secretary at its principal office shown in its most recent annual report
or, in the case of a foreign corporation that has not yet delivered an annual
report, in its application for a certificate of authority.
(i) Without limiting the manner by which
notice otherwise may be given to members or directors, notice to members or
directors given by the corporation under this chapter, the articles of
incorporation, or the bylaws shall be effective if provided by electronic
transmission consented to by the member or director to whom the notice is
given. Any consent shall be revocable by the member or director by written
notice or notice by electronic transmission to the corporation. Consent shall
be deemed revoked if:
(1) The corporation is unable to deliver by
electronic transmission two consecutive notices given by the corporation in
accordance with the consent; and
(2) The inability to deliver becomes known to the
secretary or an assistant secretary of the corporation, to the transfer agent,
or other person responsible for giving notice; provided that the inadvertent
failure to treat the inability to give electronic notice as a revocation shall
not invalidate any meeting or other action.
(j) Notice given pursuant to subsection (i)
shall be deemed given:
(1) If by facsimile telecommunication, when directed
to a number at which the member or director has consented to receive notice;
(2) If by electronic mail, when directed to an
electronic mail address at which the member or director has consented to
receive notice;
(3) If by posting on an electronic network together
with separate notice to the member or director of the specific posting, upon
the later of the posting and the giving of the separate notice; and
(4) If by any other form of electronic transmission,
when directed to the member or director.
An affidavit of the secretary, assistant secretary,
transfer agent, or other agent of the corporation that the notice has been
given by a form of electronic transmission, in the absence of fraud, shall be
prima facie evidence of the fact of notice.
(k) If section 414D-105(b) or any other
provision of this chapter prescribes notice requirements for particular
circumstances, those requirements shall govern. If articles or bylaws
prescribe notice requirements, not inconsistent with this section or other
provisions of this chapter, those requirements shall govern.
[L 2001, c 105, pt
of §1; am L 2002, c 130, §38; am L 2009, c 23, §4; am L 2011, c 37, §4]
HRS §414D-16 Private foundations
414D-16. Private foundations
Except as otherwise determined by a court of competent jurisdiction, a corporation that is a private foundation as defined in section 509(a) of the Code:
(1) Shall distribute such amounts for each taxable
year at such time and in such manner as not to subject the corporation to tax
under section 4942 of the Code;
(2) Shall not engage in any act of self-dealing as
defined in section 4941(d) of the Code;
(3) Shall not retain any excess business holdings as
defined in section 4943(c) of the Code;
(4) Shall not make any investments in such manner as
to subject the corporation to tax under section 4944 of the Code;
(5) Shall not make any taxable expenditures as
defined in section 4945(d) of the Code.
[L 2001, c
105, pt of §1]
HRS §414D-17 Judicial relief
414D-17. Judicial relief
(a) If for any reason it is impractical or impossible for any corporation to call or conduct a meeting of its members, delegates, or directors or otherwise obtain their consent in the manner prescribed by its articles, bylaws, or this chapter, then upon petition of a director, officer, delegate, or member, the court may order that the meeting be called or that a ballot or other form of obtaining the vote of members, delegates, or directors be authorized in a manner that the court finds fair and equitable under the circumstances.
(b) The court, in an order issued pursuant to
this section, shall provide for a method of notice reasonably designed to give
actual notice to all persons who would be entitled to notice of a meeting held
pursuant to the articles, bylaws, and this chapter, whether or not the method
results in actual notice to all such persons or conforms to the notice
requirements that would otherwise apply. In a proceeding under this section,
the court may determine who the members or directors are.
(c) The order issued pursuant to this section
may dispense with any requirement relating to the holding of or voting at
meetings or obtaining votes, including any requirement as to quorums or as to
the number or percentage of votes needed for approval, that would otherwise be
imposed by the articles, bylaws, or this chapter.
(d) Whenever practical, any order issued
pursuant to this section shall limit the subject matter of meetings or other
forms of consent authorized to items, including amendments to the articles or
bylaws, the resolution of which will or may enable the corporation to continue
managing its affairs without further resort to this section; provided an order
under this section may also authorize the obtaining of whatever votes and
approvals are necessary for the dissolution, merger, or sale of assets.
(e) Any meeting or other method of obtaining
the vote of members, delegates, or directors conducted pursuant to an order
issued under this section, and that complies with all the provisions of such
order, is for all purposes a valid meeting or vote, as the case may be, and
shall have the same force and effect as if it complied with every requirement
imposed by the articles, bylaws, and this chapter.
[L 2001, c 105, pt of §1; am
L 2011, c 37, §5]
HRS §414D-18 Miscellaneous charges
414D-18. Miscellaneous charges
The department director shall charge and collect:
(1) For furnishing a certified copy of any document,
instrument, or paper relating to a corporation, $10; and
(2) At the time of any service of process on the department
director as agent for service of process of a corporation, $10, which amount
may be recovered as taxable costs by the party to the action causing the
service to be made if that party prevails in the action.
[L 2002, c 130, §4; am
L 2004, c 116, §5]
HRS §414D-19 Shares of stock and dividends prohibited; compensation; distribution
414D-19. Shares of stock and dividends prohibited; compensation; distribution
A corporation under this chapter shall not authorize or issue shares of stock except for limited-equity housing cooperatives. No dividend shall be paid and no part of the income or profit of a corporation shall be distributed to its members, directors, or officers. A corporation may pay compensation in a reasonable amount to its members, directors, or officers for services rendered, may confer benefits upon its members in conformity with its purposes, and upon dissolution or final liquidation may make distributions to its members as permitted by this chapter; provided that no such payment, benefit, or distribution shall be deemed to be a dividend or a distribution of income or profit.
[L 2003, c 124, §1]
HRS §414D-20 Notice to the attorney general of commencement of proceeding
414D-20. Notice to the attorney general of commencement of proceeding
(a) The attorney general shall be given written notice of the commencement of any proceeding that this chapter authorizes the attorney general to bring but that has been commenced by another person within ten days of its commencement.
(b) Whenever any provision of this chapter
requires that notice be given to the attorney general before or after the
commencement of a proceeding or permits the attorney general to commence a
proceeding:
(1) If no proceeding has been commenced, the attorney
general may take appropriate action, including but not limited to seeking
injunctive relief; or
(2) If a proceeding has been commenced by a person
other than the attorney general, the attorney general, as of right, may
intervene in such proceeding.
[L 2004, c 171, §1]
Source: Hawaii State Legislature (capitol.hawaii.gov), via Internet Archive capturesURL: http://www.capitol.hawaii.gov/hrscurrent/Vol08_Ch0401-0429/HRS0414D/HRS_0414D-.htmFetched: 11/10/2026