The Vermont Statutes Online

Title 11B: Nonprofit Corporations

Chapter 014: Dissolution

• Subchapter 001: VOLUNTARY DISSOLUTION

• § 14.01. Dissolution by incorporators or directors

  (a) A majority of the incorporators or directors of a corporation that has no members may, subject to any approval required by the articles or bylaws, dissolve the corporation by delivering to the Secretary of State articles of dissolution.

  (b) The corporation shall give notice of any meeting at which dissolution will be approved. The notice shall be in accordance with subsection 8.22(c) of this title. The notice must also state that the purpose, or one of the purposes, of the meeting is to consider dissolution of the corporation.

  (c) The incorporators or directors in approving dissolution shall adopt a plan of dissolution indicating to whom the assets owned or held by the corporation will be distributed after all creditors have been paid. (Added 1995, No. 179 (Adj. Sess.), § 1, eff. Jan. 1, 1997.)

• § 14.02. Dissolution by directors, members

  (a) Unless this title, the articles, bylaws, or the board of directors or members (acting pursuant to subsection (c) of this section) require a greater vote or voting by class dissolution is authorized if it is approved:

  (1) by the board;

  (2) by the members, if any, by two-thirds of the votes cast or a majority of the voting power, whichever is less; or

  (3) in writing by any person or persons whose approval is required by a provision of the articles authorized by section 10.30 of this title for an amendment to the articles or bylaws.

  (b) If the corporation does not have members, dissolution must be approved by a vote of a majority of the directors in office at the time the transaction is approved. In addition, the corporation shall provide notice of any directors’ meeting at which such approval is to be obtained in accordance with subsection 8.22(c) of this title. The notice must also state that the purpose, or one of the purposes, of the meeting is to consider dissolution of the corporation and contain or be accompanied by a copy or summary of the plan of dissolution.

  (c) The board may condition its submission of the proposed dissolution, and the members may condition their approval of the dissolution on receipt of a higher percentage of affirmative votes or on any other basis.

  (d) If the board seeks to have dissolution approved by the members at a membership meeting, the corporation shall give notice to its members of the proposed membership meeting in accordance with section 7.05 of this title. The notice must also state that the purpose, or one of the purposes, of the meeting is to consider dissolving the corporation and contain or be accompanied by a copy or summary of the plan of dissolution.

  (e) If the board seeks to have dissolution approved by the members by written consent or written ballot, the material soliciting the approval shall contain or be accompanied by a copy or summary of the plan of dissolution.

  (f) The plan of dissolution shall indicate to whom the assets owned or held by the corporation will be distributed after all creditors have been paid. (Added 1995, No. 179 (Adj. Sess.), § 1, eff. Jan. 1, 1997.)

• § 14.03. Articles of dissolution

  (a) At any time after dissolution is authorized, the corporation may dissolve by delivering to the Secretary of State articles of dissolution setting forth:

  (1) the name of the corporation;

  (2) the date dissolution was authorized;

  (3) a statement that dissolution was approved by a sufficient vote of the board;

  (4) if approval of members was not required, a statement to that effect and a statement that dissolution was approved by a sufficient vote of the board of directors or incorporators;

  (5) if approval by members was required:

  (A) the designation, number of memberships outstanding, number of votes entitled to be cast by each class entitled to vote separately on dissolution, and number of votes of each class indisputably voting on dissolution; and

  (B) either the total number of votes cast for and against dissolution by each class entitled to vote separately on dissolution or the total number of undisputed votes cast for dissolution by each class and a statement that the number cast for dissolution by each class was sufficient for approval by that class;

  (6) if approval of dissolution by some person or persons other than the members, the board or the incorporators is required pursuant to subdivision 14.02(a)(3) of this title, a statement that the approval was obtained.

  (b) A corporation is dissolved upon the effective date of its articles of dissolution. (Added 1995, No. 179 (Adj. Sess.), § 1, eff. Jan. 1, 1997.)

• § 14.04. Revocation of dissolution

  (a) A corporation may revoke its dissolution within 120 days of its effective date.

  (b) Revocation of dissolution must be authorized in the same manner as the dissolution was authorized unless that authorization permitted revocation by action of the board of directors alone, in which event the board of directors may revoke the dissolution without action by the members or any other person.

  (c) After the revocation of dissolution is authorized, the corporation may revoke the dissolution by delivering to the Secretary of State for filing articles of revocation of dissolution, together with a copy of its articles of dissolution, that set forth:

  (1) the name of the corporation;

  (2) the effective date of the dissolution that was revoked;

  (3) the date that the revocation of dissolution was authorized;

  (4) if the corporation’s board of directors (or incorporators) revoked the dissolution, a statement to that effect;

  (5) if the corporation’s board of directors revoked a dissolution authorized by the members alone or in conjunction with another person or persons, a statement that revocation was permitted by action by the board of directors alone pursuant to that authorization; and

  (6) if member or third person action was required to revoke the dissolution, the information required by subdivision 14.03(a)(5) or (6) of this title.

  (d) Revocation of dissolution is effective upon the effective date of the articles of revocation of dissolution.

  (e) 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 activities as if dissolution had never occurred. (Added 1995, No. 179 (Adj. Sess.), § 1, eff. Jan. 1, 1997.)

• § 14.05. Effect of dissolution

  (a) A dissolved corporation continues its corporate existence but may not carry on any activities except those appropriate to wind up and liquidate its affairs, including:

  (1) preserving and protecting its assets and minimizing its liabilities;

  (2) discharging or making provision for discharging its liabilities and obligations;

  (3) disposing of its properties that will not be distributed in kind;

  (4) returning, transferring, or conveying assets held by the corporation upon a condition requiring return, transfer, or conveyance, which condition occurs by reason of the dissolution, in accordance with such condition;

  (5) transferring, subject to any contractual or legal requirements, its assets as provided in or authorized by its articles of incorporation or bylaws;

  (6) if the corporation is a public benefit corporation, and no provision has been made in its articles or bylaws for distribution of assets on dissolution, transferring, subject to any contractual or legal requirement, its assets:

  (A) to one or more persons recognized as exempt under section 501(c)(3) of the Internal Revenue Code; or

  (B) if the dissolved corporation is not recognized as exempt under section 501(c)(3) of the Internal Revenue Code, to one or more public benefit corporations;

  (7) if the corporation is a mutual benefit corporation and no provision has been made in its articles or bylaws for distribution of assets on dissolution, transferring its assets to its members or, if it has no members those persons whom the corporation holds itself out as benefiting or serving; and

  (8) doing every other act necessary to wind up and liquidate its assets and affairs.

  (b) Dissolution of a corporation does not:

  (1) transfer title to the corporation’s property;

  (2) subject its directors or officers to standards of conduct different from those prescribed in chapter 8 of this title;

  (3) change quorum or voting requirements for its board or members; change provisions for selection, resignation, or removal of its directors or officers or both; or change provisions for amending its bylaws;

  (4) prevent commencement of a proceeding by or against the corporation in its corporate name;

  (5) abate or suspend a proceeding pending by or against the corporation on the effective date of dissolution; or

  (6) terminate the authority of the registered agent. (Added 1995, No. 179 (Adj. Sess.), § 1, eff. Jan. 1, 1997.)

• § 14.06. Known claims against dissolved corporation

  (a) A dissolved corporation may dispose of the known claims against it by following the procedure described in this section.

  (b) The dissolved corporation shall notify its known claimants in writing of the dissolution at any time after its effective date. The written notice must:

  (1) describe information that must be included in a claim;

  (2) provide a mailing address where a claim may be sent;

  (3) state the deadline, which may not be fewer than 120 days from the effective date of the written notice, by which the dissolved corporation must receive the claim; and

  (4) state that the claim will be barred if not received by the deadline.

  (c) A claim against the dissolved corporation is barred:

  (1) if a claimant who was given written notice under subsection (b) of this section does not deliver the claim to the dissolved corporation by the deadline;

  (2) if a claimant whose claim was rejected by the dissolved corporation does not commence a proceeding to enforce the claim within 90 days from the effective date of the rejection notice.

  (d) 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. (Added 1995, No. 179 (Adj. Sess.), § 1, eff. Jan. 1, 1997.)

• § 14.07. Unknown claims against dissolved corporation

  (a) A dissolved corporation may also publish notice of its dissolution and request that persons with claims against the corporation present them in accordance with the notice.

  (b) The notice must:

  (1) be published one time in a newspaper of general circulation in the county where the dissolved corporation’s principal office (or, if none in this State, its registered office) is or was last located;

  (2) describe the information that must be included in a claim and provide a mailing address where the claim may be sent; and

  (3) state that a claim against the corporation will be barred unless a proceeding to enforce the claim is commenced within five years after publication of the notice.

  (c) If the dissolved corporation publishes a newspaper notice in accordance with subsection (b) of this section, the claim of each of the following claimants is barred unless the claimant commences a proceeding to enforce the claim against the dissolved corporation within five years after the publication date of the newspaper notice:

  (1) a claimant who did not receive written notice under section 14.06 of this title;

  (2) a claimant whose claim was timely sent to the dissolved corporation but not acted on; and

  (3) a claimant whose claim is contingent or based on an event occurring after the effective date of dissolution.

  (d) A claim may be enforced under this section:

  (1) against the dissolved corporation, to the extent of its undistributed assets; or

  (2) if the assets have been distributed in liquidation, against any person, other than a creditor of the corporation, to whom the corporation distributed its property to the extent of the distributee’s pro rata share of the claim or the corporate assets distributed to such person in liquidation, whichever is less, but the distributee’s total liability for all claims under this section may not exceed the total amount of assets distributed to the distributee.

  (e) The provisions of this section shall not apply to claimants whose claim is commenced in a timely manner pursuant to 12 V.S.A. § 512, 518, 521, 522, 551, or 560. (Added 1995, No. 179 (Adj. Sess.), § 1, eff. Jan. 1, 1997.)

• Subchapter 002: INVOLUNTARY TERMINATION

• § 14.20. Involuntary termination

  The Secretary of State may commence a proceeding under section 14.21 of this title to administratively dissolve a corporation if:

  (1) the corporation does not pay within 60 days after they are due fees imposed by this title;

  (2) the corporation does not deliver its biennial report to the Secretary of State within 60 days after it is due;

  (3) the corporation is without a registered agent or registered office in this State for 60 days or more; or

  (4) the corporation does not notify the Secretary of State within 120 days that its registered agent or registered office has been changed, that its registered agent has resigned, or that its registered office has been discontinued. (Added 1995, No. 179 (Adj. Sess.), § 1, eff. Jan. 1, 1997.)

• § 14.21. Procedure for and effect of involuntary termination

  (a) Upon determining that one or more grounds exist under section 14.20 of this title for dissolving a corporation, the Secretary of State shall serve the corporation with written notice of that determination under section 5.04 of this title.

  (b) If the corporation does not correct each ground for dissolution or demonstrate to the reasonable satisfaction of the Secretary of State that each ground determined by the Secretary of State does not exist within at least 60 days after service of the notice is perfected under section 5.04 of this title, the Secretary of State may administratively dissolve the corporation by signing a certificate of dissolution that recites the ground or grounds for dissolution and its effective date. The Secretary of State shall file the original of the certificate and serve a copy on the corporation under section 5.04 of this title, and in the case of a public benefit corporation shall notify the Attorney General in writing.

  (c) A corporation involuntarily dissolved continues its corporate existence but may not carry on any activities except those necessary to wind up and liquidate its affairs under section 14.05 of this title and notify its claimants under sections 14.06 and 14.07 of this title.

  (d) The involuntarily dissolution of a corporation does not terminate the authority of its registered agent. (Added 1995, No. 179 (Adj. Sess.), § 1, eff. Jan. 1, 1997.)

• § 14.22. Reinstatement following involuntary dissolution

  (a) A corporation involuntarily dissolved that has not distributed its assets under section 14.21 of this title may apply to the Secretary of State for reinstatement upon payment of $25.00 for each year the corporation is delinquent. The application must:

  (1) recite the name of the corporation and the effective date of its involuntary dissolution;

  (2) state that the ground or grounds for dissolution either did not exist or have been eliminated;

  (3) state that the corporation’s name satisfies the requirements of section 4.01 of this title.

  (b) If the Secretary of State determines that the application contains the information required by subsection (a) of this section and that the information is correct, the Secretary of State shall cancel the certificate of dissolution and prepare a certificate of reinstatement reciting that determination and the effective date of reinstatement, file the original of the certificate, and serve a copy on the corporation under section 5.04 of this title.

  (c) When reinstatement is effective, it relates back to and takes effect as of the effective date of the administrative dissolution and the corporation shall resume carrying on its activities as if the administrative dissolution had never occurred. (Added 1995, No. 179 (Adj. Sess.), § 1, eff. Jan. 1, 1997.)

• § 14.23. Appeal from denial of reinstatement

  (a) The Secretary of State, upon denying a corporation’s application for reinstatement following involuntary dissolution, shall serve the corporation under section 5.04 of this title with a written notice that explains the reason or reasons for denial.

  (b) The corporation may appeal the denial of reinstatement to the Superior Court of Washington County within 90 days after service of the notice of denial is perfected. The corporation appeals by petitioning the court to set aside the dissolution and attaching to the petition copies of the Secretary of State’s certificate of dissolution, the corporation’s application for reinstatement, and the Secretary of State’s notice of denial.

  (c) The court may summarily order the Secretary of State to reinstate the dissolved corporation or may take other action the court considers appropriate.

  (d) The court’s final decision may be appealed as in other civil proceedings. (Added 1995, No. 179 (Adj. Sess.), § 1, eff. Jan. 1, 1997.)

• Subchapter 003: JUDICIAL DISSOLUTION

• § 14.30. Grounds for judicial dissolution

  (a) The Superior Court may dissolve a corporation:

  (1) in a proceeding by the Attorney General if it is established that:

  (A) the corporation obtained its articles of incorporation through fraud;

  (B) the corporation has continued to exceed or abuse the authority conferred upon it by law;

  (C) the corporation is a public benefit corporation and the corporate assets are being misapplied or wasted; or

  (D) the corporation is a public benefit corporation and is no longer able to carry out its purposes;

  (2) in a proceeding by 50 members or members holding five percent of the voting power, whichever is less, or by a director or any person specified in the articles, if it is established that:

  (A) the directors are deadlocked in the management of the corporate affairs, and the members, if any, are unable to breach the deadlock;

  (B) the directors or those in control of the corporation have acted, are acting or will act in a manner that is illegal, oppressive, or fraudulent;

  (C) the members are deadlocked in voting power and have failed, for a period that includes at least two consecutive annual meeting dates, to elect successors to directors whose terms have, or would otherwise have, expired;

  (D) the corporate assets are being misapplied or wasted; or

  (E) the corporation is a public benefit corporation and is no longer able to carry out its purposes;

  (3) in a proceeding by a creditor if it is established that:

  (A) the creditor’s claim has been reduced to judgment, the execution on the judgment returned unsatisfied and the corporation is insolvent; or

  (B) the corporation has admitted in writing that the creditor’s claim is due and owing and the corporation is insolvent; or

  (4) in a proceeding by the corporation to have its voluntary dissolution continued under court supervision.

  (b) Prior to dissolving a corporation, the court shall consider whether:

  (1) there are reasonable alternatives to dissolution;

  (2) dissolution is in the public interest, if the corporation is a public benefit corporation;

  (3) dissolution is the best way of protecting the interests of members, if the corporation is a mutual benefit corporation. (Added 1995, No. 179 (Adj. Sess.), § 1, eff. Jan. 1, 1997.)

• § 14.31. Procedure for judicial dissolution

  (a) Venue for a proceeding by the Attorney General to dissolve a corporation lies in the Superior Court of Washington County. Venue for a proceeding brought by any other party named in section 14.30 of this title lies in the county where a corporation’s principal office (or, if none in this State, its registered office) is or was last located.

  (b) It is not necessary to make directors or members parties to a proceeding to dissolve a corporation unless relief is sought against them individually.

  (c) A court in a proceeding brought to dissolve a corporation may issue injunctions, appoint a receiver or custodian pendente lite with all powers and duties the court directs, take other action required to preserve the corporate assets wherever located, and carry on the activities of the corporation until a full hearing can be held.

  (d) A person other than the Attorney General who brings an involuntary dissolution proceeding for a public benefit corporation shall forthwith give written notice of the proceeding to the Attorney General who may intervene. (Added 1995, No. 179 (Adj. Sess.), § 1, eff. Jan. 1, 1997.)

• § 14.32. Receivership or custodianship

  (a) A court in a judicial proceeding brought to dissolve a corporation may appoint one or more receivers to wind up and liquidate, or one or more custodians to manage, the affairs of the corporation. The court shall hold a hearing, after notifying all parties to the proceeding and any interested persons designated by the court, before appointing a receiver or custodian. The court appointing a receiver or custodian has exclusive jurisdiction over the corporation and all of its property wherever located.

  (b) The court may appoint an individual, or a domestic or foreign business or nonprofit corporation (authorized to transact business in this state) as a receiver or custodian. The court may require the receiver or custodian to post bond, with or without sureties, in an amount the court directs.

  (c) The court shall describe the powers and duties of the receiver or custodian in its appointing order, which may be amended from time to time. Among other powers:

  (1) the receiver:

  (A) may dispose of all or any part of the assets of the corporation wherever located, at a public or private sale, if authorized by the court; provided, however, that the receiver’s power to dispose of the assets of the corporation is subject to any trust and other restrictions that would be applicable to the corporation; and

  (B) may sue and defend in the receiver’s or custodian’s name as receiver or custodian of the corporation in all courts of this State;

  (2) the custodian may exercise all of the powers of the corporation, through or in place of its board of directors or officers, to the extent necessary to manage the affairs of the corporation in the best interests of its members and creditors.

  (d) The court during a receivership may redesignate the receiver a custodian, and during a custodianship may redesignate the custodian a receiver, if doing so is in the best interests of the corporation, its members, and creditors.

  (e) The court from time to time during the receivership or custodianship may order compensation paid and expense disbursements or reimbursements made to the receiver or custodian and the receiver’s or custodian’s counsel from the assets of the corporation or proceeds from the sale of the assets. (Added 1995, No. 179 (Adj. Sess.), § 1, eff. Jan. 1, 1997.)

• § 14.33. Decree of dissolution

  (a) If after a hearing the court determines that one or more grounds for judicial dissolution described in section 14.30 of this title exist, it may enter a decree dissolving the corporation and specifying the effective date of the dissolution, and the clerk of the court shall deliver a certified copy of the decree to the Secretary of State, who shall file it.

  (b) After entering the decree of dissolution, the court shall direct the winding up and liquidation of the corporation’s affairs in accordance with section 14.05 of this title and the notification of its claimants in accordance with sections 14.06 and 14.07 of this title. (Added 1995, No. 179 (Adj. Sess.), § 1, eff. Jan. 1, 1997.)

• Subchapter 004: MISCELLANEOUS

• § 14.40. Deposit with State Treasurer

  Assets of a dissolved corporation that should be transferred to a creditor, claimant, or member of the corporation who cannot be found or who is not competent to receive them shall be reduced to cash subject to known trust restrictions and deposited with the State Treasurer for safekeeping; provided, however, that in the State Treasurer’s discretion property may be received and held in kind. When the creditor, claimant, or member furnishes satisfactory proof of entitlement to the amount deposited or property held in kind, the State Treasurer shall deliver to the creditor, member, or other person or his or her representative that amount or property. (Added 1995, No. 179 (Adj. Sess.), § 1, eff. Jan. 1, 1997.)