128.095 Trustee may amend governing instrument of “private foundation” or “split-interest” trust with prior consent of Attorney General and benefited organizations

DEPOSIT OF SECURITIES IN CLEARING CORPORATIONS

128.100 Authority of fiduciary to deposit securities in clearing corporation

UNIFORM MANAGEMENT OF INSTITUTIONAL FUNDS ACT

128.310 Short title

128.315 Definitions for ORS 128.310 to 128.355

128.320 Amount of expenditure for uses and purposes of fund

128.325 When ORS 128.320 not applicable; limit on implying net appreciation restriction

128.330 Power of governing board to invest and retain property of fund

128.335 Authority of governing board to delegate power

128.340 Standard of care for investment and delegation of duties

128.345 Release of restriction on fund with consent of donor by application to court; notice to Attorney General; limit on extent of release

128.350 Uniformity of interpretation

128.355 Severability

EMPLOYEES’ TRUSTS

128.510 Definitions for ORS 128.520

128.520 Employees’ trust may be in perpetuity; accumulation of income

BUSINESS TRUSTS

128.560 “Business trust” described

128.565 Business trust permitted

128.570 Business trusts and trustees not subject to bank and trust company regulations

128.573 Forms; rules

128.575 Filing with Office of Secretary of State required; fees; amendments

128.580 Business trusts subject to certain corporate laws

128.585 Personal liability of trustees, shareholders or beneficiaries of business trust

128.590 Filing of trust instrument as conclusive evidence of compliance with laws; exception

128.595 Annual report; due date; content; notice of requirement; effect of failure to file

128.597 Inactivation of business trust

128.599 Reinstatement of business trust following inactivation

128.600 Filing, service, copying and certification fees

CHARITABLE TRUST AND CORPORATION ACT

128.610 Short title

128.620 Definitions for ORS 128.610 to 128.750

128.630 Application of ORS 128.610 to 128.750

128.640 Exemptions from application of ORS 128.610 to 128.750

128.650 Register of charitable corporations and trustees; authority of Attorney General to maintain register

128.660 Filing of articles of incorporation or other instrument with Attorney General

128.670 Filing of reports; rules; fees; authority of Attorney General relating to reports; civil penalty

128.680 Investigatory authority of Attorney General

128.690 Order for attendance by Attorney General; effect

128.710 Enforcement; jurisdiction of court

128.720 Copies of certain documents and notice to be provided Attorney General

128.730 List of certain claims for exemptions from taxation to be provided Attorney General

128.735 Attorney fees in action to enforce fiduciary or other duty

128.750 Uniformity of interpretation

CHARITABLE SOLICITATIONS ACT

128.801 Definitions for ORS 128.801 to 128.898

128.802 Registration of professional fund raising firms required; fee; renewal; notice of change of information

128.804 Fund raising notice; contents

128.807 Required submission of financial plan to nonprofit beneficiary

128.809 Required disclosure of agency by solicitors

128.812 Required submission of financial report after campaign

128.814 Presumption of breach of fiduciary duty by officer or director of nonprofit beneficiary

128.821 Registration of commercial fund raising firms required; fee; renewal; notice of change in information

128.823 Designation of amount to be paid to beneficiaries; manner of specification; minimum amount payable

128.824 Disclosures required in commercial fund raising solicitations

128.826 Commercial fund raising contracts and notice; filing

128.841 Commercial fund raising firm financial reports; contents; filing

128.846 Maintenance of records by commercial fund raising firm

128.848 Accountings required of commercial coventurer

128.856 Written consent by beneficiary to use of name

128.861 Written consent required for representations about use of tickets

128.866 Injunction by Attorney General

128.871 Denial or revocation of registration

128.876 Rules

128.881 Deposit of fees and penalties; use

128.886 False or misleading representations prohibited

128.891 Prohibited representations; written notice

128.893 Use of in-state address

128.898 Short title

CIVIL PENALTIES

128.899 Civil penalties for violation of ORS 128.610 to 128.750

CRIMINAL PENALTIES

128.992 Penalties for ORS 128.610 to 128.750

128.995 Penalties for ORS 128.801 to 128.898

(Temporary provisions relating to court-appointed trustees)

Note: Sections 1 to 5, chapter 472, Oregon Laws 2005, provide:

Sec. 1. (1) Before appointing any person to serve as trustee, a court shall require that the person submit a statement that includes:

(a) The full name of the person, including any business name used by the person;

(b) The address and telephone number of the person;

(d) Identification of any other trusts administered by the person;

(e) The aggregate dollar value of all assets currently under the person’s supervision;

(f) A disclosure of whether the person has ever been removed by a court as trustee for cause or has resigned as court appointed trustee in a specific case and, if so, the circumstances of the removal or resignation, the case name and number and the address of the court; and

(g) Other information required by court rule.

(2) Any person who is required to provide a statement under this section must notify the court within 30 days of any change to the information contained in the statement.

(3) If the person provides false information in a statement required under this section, or fails to comply with subsection (2) of this section, the court may remove the person as trustee and impose such sanction as may be appropriate.

(4) The provisions of this section do not apply to:

(a) A trust company as defined in ORS 706.008, or an employee of the trust company while the employee is employed by the trust company.

(b) An institution insured by the Federal Deposit Insurance Corporation, a holding company or affiliate of the institution or an employee of the institution while the employee is employed by the institution.

Sec. 2. Upon removing any person as trustee who was required to provide a statement under section 1 of this 2005 Act, a court shall give written notice to the State Court Administrator of the removal and provide such other information as may be required by the State Court Administrator. The State Court Administrator shall maintain a record of the information in a format that is easily accessible by judges of this state and members of the public. The State Court Administrator shall retain information submitted under this section for at least five years. [2005 c.472 §2]

Sec. 3. Sections 1 and 2 of this 2005 Act do not affect the ability of the Chief Justice of the Supreme Court, by rule or order, to require that courts of this state provide information to the State Court Administrator relating to guardians, conservators and other court appointed fiduciaries. [2005 c.472 §3]

Sec. 4. Notwithstanding section 2 of this 2005 Act, upon the repeal of sections 1, 2 and 3 of this 2005 Act by section 5 of this 2005 Act, the State Court Administrator may destroy all records maintained by the State Court Administrator under section 2 of this 2005 Act. [2005 c.472 §4]

Sec. 5. Sections 1, 2 and 3 of this 2005 Act are repealed January 2, 2010. [2005 c.472 §5]

PREPARATION OF TRUSTS

128.001 Limitations on accepting payment for preparation of trust. (1) Except as provided in this section, a person may not accept anything of value in exchange for the preparation of a trust.

(2) Subsection (1) of this section does not apply to an attorney who charges and accepts a fee for the preparation of a trust for a client in the course of representing that client.

(3) Subsection (1) of this section does not apply to any trust company or financial institution as defined in ORS chapter 706.

(4) Subsection (1) of this section does not apply to a resulting or constructive trust, a business trust that provides for certificates to be issued to the beneficiary, an investment trust, a voting trust, a security instrument, a trust created by the judgment of a court, a liquidation trust, a trust for the primary purpose of paying dividends, interests, interest coupons, salaries, wages, pensions, profits or employee benefits of any kind, an instrument in which a person is nominee or escrowee for another person or a trust created in deposits in any financial institution.

(5) Nothing in this section authorizes any person to engage in the practice of law in violation of ORS 9.160. [1997 c.806 §1; 2003 c.576 §383]

128.003 [1977 c.614 §10; repealed by 2005 c.348 §128]

128.005 [1977 c.614 §1; 2003 c.576 §384; repealed by 2005 c.348 §128]

128.007 [1977 c.614 §2; 1995 c.157 §18; repealed by 2005 c.348 §128]

128.009 [1977 c.614 §3; 1981 c.915 §1; 1989 c.73 §1; 1993 c.228 §1; 1995 c.157 §19; 2003 c.84 §13; repealed by 2005 c.348 §128]

128.010 [Renumbered 128.055]

128.015 [1977 c.614 §4; 1993 c.228 §2; repealed by 2005 c.348 §128]

128.020 [Amended by 1969 c.267 §1; renumbered 128.057]

128.021 [1977 c.614 §5; 1995 c.157 §20; repealed by 2005 c.348 §128]

128.025 [1969 c.267 §3; renumbered 128.061]

128.026 [1977 c.614 §6; 1995 c.157 §21; repealed by 2005 c.348 §128]

128.030 [Amended by 1977 c.614 §13; renumbered 128.065]

128.031 [1977 c.614 §7; repealed by 2005 c.348 §128]

128.035 [1977 c.614 §8; repealed by 2005 c.348 §128]

128.040 [Repealed by 1977 c.614 §14]

128.041 [1977 c.614 §9; repealed by 2005 c.348 §128]

128.045 [1977 c.614 §11; repealed by 2005 c.348 §128]

128.047 [1993 c.226 §3; repealed by 2005 c.348 §128]

128.050 [Repealed by 1977 c.614 §14]

128.051 [1977 c.614 §12; repealed by 2005 c.348 §128]

128.055 [Formerly 128.010; repealed by 2005 c.348 §128]

128.057 [Formerly 128.020; 1979 c.382 §1; repealed by 1995 c.157 §26]

128.060 [Amended by 1973 c.827 §19; repealed by 1977 c.614 §14]

128.061 [1969 c.267 §3; formerly 128.025; repealed by 1979 c.382 §2]

128.065 [Formerly 128.030; 1995 c.157 §22; repealed by 2005 c.348 §128]

128.070 [Repealed by 1973 c.506 §46]

128.075 [1973 c.367 §16; renumbered 128.595]

128.080 [Amended by 1973 c.177 §2; repealed by 1973 c.506 §46]

PRIVATE FOUNDATION AND SPLIT INTEREST TRUSTS

128.085 Limitations on trustee’s administration of “private foundation” trust. Notwithstanding any provision to the contrary in the governing instrument or any law of this state, the trustee of a trust which is a “private foundation” as defined in section 509 of the Internal Revenue Code of 1954 (including nonexempt charitable trusts as defined in section 4947 (a) (1) of the Internal Revenue Code of 1954) shall not engage in any act of self dealing as defined in section 4941 (d) of the Internal Revenue Code of 1954; shall distribute its income and, when necessary, amounts from principal at such time and in such manner as not to subject the trust to the taxes on failure to distribute income imposed by section 4942 of the Internal Revenue Code of 1954; shall not retain any excess business holdings as defined in section 4943 (c) of the Internal Revenue Code of 1954; shall not make any investments in such manner as to subject the trust to the taxes on investments which jeopardize charitable purpose imposed by section 4944 of the Internal Revenue Code of 1954; and shall not make any taxable expenditures as defined in section 4945 (d) of the Internal Revenue Code of 1954. [1971 c.197 §1]

128.090 Limitations on trustee’s administration of “split-interest” trust. (1) Notwithstanding any provision to the contrary in the governing instrument or any law of this state, the trustee of a trust which is a “split-interest trust” as defined in section 4947 (a) (2) of the Internal Revenue Code of 1954, shall not engage in any act of self dealing as defined in section 4941 (d) of the Internal Revenue Code of 1954; shall not retain any excess business holdings as defined in section 4943 (c) of the Internal Revenue Code of 1954, unless the trust is one exempted from the requirements of section 4943 by section 4947 (b) (3) of the Internal Revenue Code of 1954; shall not make any investment in such manner as to subject the trust to the taxes on investments which jeopardize charitable purpose imposed by section 4944 of the Internal Revenue Code of 1954, unless the trust is one exempted from the requirements of section 4944 by section 4947 (b) (3) of the Internal Revenue Code of 1954; and shall not make any taxable expenditures as defined in section 4945 (d) of the Internal Revenue Code of 1954.

(2) This section shall not apply with respect to:

(a) Any amounts payable under the terms of a trust to income beneficiaries, unless a deduction was allowed under section 170 (f) (2) (B), section 2055 (e) (2) (B), or section 2522 (c) (2) (B) of the Internal Revenue Code of 1954;

(b) Any amounts in trust other than amounts for which a deduction was allowed under section 170, section 545 (b) (2), section 556 (b) (2), section 642 (c), section 2055, section 2106 (a) (2) or section 2522 of the Internal Revenue Code of 1954, if such other amounts are segregated from amounts for which no deduction was allowable; or

128.095 Trustee may amend governing instrument of “private foundation” or “split-interest” trust with prior consent of Attorney General and benefited organizations. The trustee of a trust which is a private foundation to which ORS 128.085 applies or a split-interest trust to which ORS 128.090 applies may, with the prior consent of the Attorney General, amend the terms of the governing instrument to the extent necessary (1) to assure conformity of the governing instrument with the requirements for exemption from the taxes imposed by sections 4941 to 4945 of the Internal Revenue Code of 1954, including amendments which broaden, extend, reduce or limit the charitable purposes for which the trust is administered, or (2) to terminate the status of the trust as a private foundation in a manner described in section 507 (b) (1) of the Internal Revenue Code of 1954. Prior to giving consent, the Attorney General shall determine that the proposed amendments are necessary or appropriate to achieve the charitable purposes of the trust. If the trust is for the exclusive benefit of one or more charitable organizations, the trustee shall also obtain the prior consent of such organizations prior to amending the terms of the governing instrument in the manner set forth in this section. [1971 c.197 §3]

DEPOSIT OF SECURITIES IN CLEARING CORPORATIONS

128.100 Authority of fiduciary to deposit securities in clearing corporation. (1) Notwithstanding any other provision of law, any fiduciary holding securities in a fiduciary capacity, any financial institution or trust company holding securities as a custodian or managing agent, and any financial institution or trust company holding securities as custodian for a fiduciary is authorized to deposit or arrange for the deposit of the securities in a clearing corporation as defined in ORS 78.1020. When the securities are deposited, certificates representing securities of the same class of the same issuer may be merged and held in bulk in the name of the nominee of the clearing corporation with any other securities of the same class deposited in the clearing corporation by any person regardless of the ownership of the securities, and certificates of small denomination may be merged into one or more certificates of larger denomination. The records of the fiduciary and the records of the financial institution or trust company acting as custodian, as managing agent or as custodian for a fiduciary shall at all times show the name of the party for whose account the securities are deposited. Ownership of, and other interests in, the securities may be transferred by bookkeeping entry on the books of the clearing corporation without physical delivery of certificates representing the securities. A financial institution or trust company depositing securities pursuant to this section shall be subject to the rules and regulations as, in the case of state-chartered institutions, the Department of Consumer and Business Services and, in the case of national banking associations, the Comptroller of the Currency may from time to time issue. A financial institution or a trust company acting as custodian for a fiduciary shall, on demand by the fiduciary, certify in writing to the fiduciary the securities deposited by the financial institution or trust company in the clearing corporation for the account of the fiduciary. A fiduciary shall, on demand by any party to a judicial proceeding for the settlement of the fiduciary’s account or on demand by the attorney for the party, certify in writing to the party the securities deposited by the fiduciary in the clearing corporation for its account as the fiduciary.

(2) This section shall apply to any fiduciary holding securities in a fiduciary capacity, and to any financial institution or trust company holding securities as a custodian, managing agent or custodian for a fiduciary, acting on October 5, 1973, or who thereafter may act regardless of the date of the agreement, instrument or court order by which it is appointed and regardless of whether or not the fiduciary, custodian, managing agent or custodian for a fiduciary owns capital stock of the clearing corporation. [1973 c.365 §§1,2; 1985 c.676 §59; 1985 c.762 §177; 1997 c.631 §414]

128.102 [1993 c.226 §5; 1997 c.659 §1; repealed by 2005 c.348 §128]

128.110 [Amended by 1979 c.284 §108; repealed by 1981 c.66 §8]

128.115 [1981 c.66 §1; repealed by 2005 c.348 §128]

128.120 [Repealed by 1981 c.66 §8]

128.125 [1981 c.66 §2; repealed by 2005 c.348 §128]

128.130 [Amended by 1979 c. 284 §109; repealed by 1981 c.66 §8]

128.135 [1981 c.66 §3; 1993 c.222 §6; 2003 c.279 §33a; repealed by 2005 c.348 §128]

128.140 [Repealed by 1981 c.66 §8]

128.145 [1981 c.66 §4; repealed by 2005 c.348 §128]

128.150 [Repealed by 1981 c.66 §8]

128.155 [1981 c.66 §5; 1991 c.331 §42; 1997 c.631 §415; repealed by 2005 c.348 §128]

128.160 [Repealed by 1981 c.66 §8]

128.165 [1981 c.66 §6; repealed by 2005 c.348 §128]

128.170 [Repealed by 1981 c.66 §8]

128.175 [1981 c.66 §7; repealed by 2005 c.348 §128]

128.177 [1993 c.222 §2; repealed by 2005 c.348 §128]

128.179 [1993 c.222 §3; repealed by 2005 c.348 §128]

128.180 [Repealed by 1981 c.66 §8]

128.181 [1993 c.222 §4; repealed by 2005 c.348 §128]

128.183 [1993 c.222 §5; repealed by 2005 c.348 §128]

128.185 [1993 c.222 §7; repealed by 2005 c.348 §128]

128.190 [Repealed by 1981 c.66 §8]

128.192 [1995 c.157 §1; repealed by 2005 c.348 §128]

128.194 [1995 c.157 §2; repealed by 2005 c.348 §128]

128.196 [1995 c.157 §3; repealed by 2005 c.348 §128]

128.198 [1995 c.157 §4; repealed by 2005 c.348 §128]

128.200 [Repealed by 1981 c.66 §8]

128.202 [1995 c.157 §5; repealed by 2005 c.348 §128]

128.204 [1995 c.157 §§6,7; repealed by 2005 c.348 §128]

128.206 [1995 c.157 §8; repealed by 2005 c.348 §128]

128.208 [1995 c.157 §9; repealed by 2005 c.348 §128]

128.210 [Repealed by 1981 c.66 §8]

128.212 [1995 c.157 §10; repealed by 2005 c.348 §128]

128.214 [1995 c.157 §11; repealed by 2005 c.348 §128]

128.216 [1995 c.157 §§12,14; repealed by 2005 c.348 §128]

128.218 [1995 c.157 §13; repealed by 2005 c.348 §128]

128.220 [Repealed by 1981 c.66 §8]

128.230 [Repealed by 1981 c.66 §8]

128.232 [1995 c.679 §1; repealed by 2005 c.348 §128]

128.234 [1995 c.679 §2; repealed by 2005 c.348 §128]

128.236 [1995 c.679 §3; repealed by 2005 c.348 §128]

128.238 [1995 c.679 §4; repealed by 2005 c.348 §128]

128.240 [Repealed by 1981 c.66 §8]

128.242 [1995 c.679 §5; repealed by 2005 c.348 §128]

128.244 [1995 c.679 §6; repealed by 2005 c.348 §128]

128.246 [1995 c.679 §7; repealed by 2005 c.348 §128]

128.250 [Amended by 1979 c.284 §110; repealed by 1981 c.66 §8]

128.255 [1997 c.151 §4; repealed by 2005 c.348 §128]

128.256 [2001 c.593 §1; 2005 c.348 §99; renumbered 130.350 in 2005]

128.258 [2001 c.593 §1a; 2005 c.348 §100; renumbered 130.355 in 2005]

128.260 [Amended by 1979 c.284 §111; repealed by 1981 c.66 §8]

128.262 [2001 c.593 §2; renumbered 130.360 in 2005]

128.264 [2001 c.593 §3; 2005 c.348 §101; renumbered 130.365 in 2005]

128.266 [2001 c.593 §4; 2003 c.14 §45; 2005 c.348 §102; renumbered 130.370 in 2005]

128.268 [2001 c.593 §5; renumbered 130.375 in 2005]

128.270 [Repealed by 1981 c.66 §8]

128.272 [2001 c.593 §6; 2005 c.348 §103; renumbered 130.380 in 2005]

128.274 [2001 c.593 §7; renumbered 130.385 in 2005]

128.276 [2001 c.593 §7a; renumbered 130.390 in 2005]

128.278 [2001 c.593 §8; renumbered 130.395 in 2005]

128.280 [2001 c.593 §9; 2005 c.348 §121; renumbered 130.400 in 2005]

128.282 [2001 c.593 §9a; renumbered 130.405 in 2005]

128.284 [2001 c.593 §9b; renumbered 130.410 in 2005]

128.286 [2001 c.593 §9c; renumbered 130.415 in 2005]

128.288 [2001 c.593 §9d; 2005 c.348 §104; renumbered 130.420 in 2005]

128.290 [2001 c.593 §10; 2005 c.348 §105; renumbered 130.425 in 2005]

128.292 [2001 c.593 §11; renumbered 130.430 in 2005]

128.294 [2001 c.593 §12; 2005 c.348 §106; renumbered 130.435 in 2005]

128.296 [2001 c.593 §13; renumbered 130.440 in 2005]

128.298 [2001 c.593 §14; renumbered 130.445 in 2005]

128.300 [2001 c.593 §15; 2005 c.348 §107; renumbered 130.450 in 2005]

128.308 [2001 c.636 §1; repealed by 2005 c.348 §128]

UNIFORM MANAGEMENT OF INSTITUTIONAL FUNDS ACT

128.310 Short title. ORS 128.310 to 128.355 may be cited as the “Uniform Management of Institutional Funds Act.” [1975 c.707 §11]

128.315 Definitions for ORS 128.310 to 128.355. As used in ORS 128.310 to 128.355:

(1) “Institution” means an incorporated or unincorporated nonpublic organization organized and operated exclusively for educational, religious, charitable, or other eleemosynary purposes.

(2) “Institutional fund” means a fund held by an institution for its exclusive use, benefit or purposes, but does not include (a) a fund held for an institution by a trustee that is not an institution or (b) a fund in which a beneficiary that is not an institution has an interest, other than possible rights that could arise upon violation or failure of the purposes of the fund.

(3) “Endowment fund” means an institutional fund, or any part thereof, not wholly expendable by the institution on a current basis under the terms of the applicable gift instrument.

(4) “Governing board” means the body responsible for the management of an institution or of an institutional fund.

(5) “Historic dollar value” means the aggregate fair value in dollars of (a) an endowment fund at the time it became an endowment fund, (b) each subsequent donation to the fund at the time it is made and (c) each accumulation made pursuant to a direction in the applicable gift instrument at the time the accumulation is added to the fund. The determination of historic dollar value made in good faith by the institution is conclusive.

(6) “Gift instrument” means a will, deed, grant, conveyance, agreement, memorandum, writing or other governing document (including the terms of any institutional solicitations from which an institutional fund resulted) under which property is transferred to or held by an institution as an institutional fund. [1975 c.707 §2]

128.320 Amount of expenditure for uses and purposes of fund. The governing board may appropriate for expenditure for the uses and purposes for which an endowment fund is established so much of the net appreciation, realized and unrealized, in the fair value of the assets of an endowment fund over the historic dollar value of the fund as is prudent under the standard established by ORS 128.340. This section does not limit the authority of the governing board to expend funds as permitted under other law, the terms of the applicable gift instrument, or the charter of the institution. [1975 c.707 §3; 1995 c.79 §47]

128.325 When ORS 128.320 not applicable; limit on implying net appreciation restriction. ORS 128.320 does not apply if the applicable gift instrument indicates the donor’s intention that net appreciation shall not be expended. A restriction upon the expenditure of net appreciation may not be implied from a designation of a gift as an endowment, or from a direction or authorization in the applicable gift instrument to use only “income,” “interest,” “dividends,” or “rents, issues or profits,” or “to preserve the principal intact,” or a direction which contains other words of similar import. This rule of construction applies to gift instruments executed or in effect before or after September 13, 1975. [1975 c.707 §4]

128.330 Power of governing board to invest and retain property of fund. In addition to an investment otherwise authorized by law or by the applicable gift instrument, and without restriction to investments a fiduciary may make, the governing board, subject to any specific limitations set forth in the applicable gift instrument or in the applicable law other than law relating to investments by a fiduciary, may:

(1) Invest and reinvest an institutional fund in any real or personal property deemed advisable by the governing board, whether or not it produces a current return, including mortgages, stocks, bonds, debentures and other securities of profit or nonprofit corporations, shares in or obligations of associations, partnerships or individuals and obligations of any government or subdivision or instrumentality thereof;

(2) Retain property contributed by a donor to an institutional fund for as long as the governing board deems advisable;

(3) Include all or any part of an institutional fund in any pooled or common fund maintained by the institution; and

(4) Invest all or any part of an institutional fund in any other pooled or common fund available for investment, including shares or interests in regulated investment companies, mutual funds, common trust funds, investment partnerships, real estate investment trusts or similar organizations in which funds are commingled and investment determinations are made by persons other than the governing board. [1975 c.707 §5]

128.335 Authority of governing board to delegate power. The governing board may:

(1) Delegate to its committees, officers or employees of the institution or the fund or agents, including investment counsel, the authority to act in place of the board in investment and reinvestment of institutional funds;

(2) Contract with independent investment advisors, investment counsel or managers, banks or trust companies, so to act; and

(3) Authorize the payment of compensation for investment advisory or management services. [1975 c.707 §6]

128.340 Standard of care for investment and delegation of duties. In the administration of the powers to appropriate appreciation, to make and retain investments and to delegate investment management of institutional funds, members of a governing board shall exercise ordinary business care and prudence under the facts and circumstances prevailing at the time of the action or decision. In so doing they shall consider long and short term needs of the institution in carrying out its education, religious, charitable or other eleemosynary purposes, its present and anticipated financial requirements, expected total return on its investments, price level trends and general economic conditions. [1975 c.707 §7]

128.345 Release of restriction on fund with consent of donor by application to court; notice to Attorney General; limit on extent of release. (1) With the written consent of the donor, the governing board may release, in whole or in part, a restriction imposed by the applicable gift instrument on the use or investment of an institutional fund.

(2) If written consent of the donor cannot be obtained by reason of the death, disability, unavailability or impossibility of identification of the donor, the governing board may apply in the name of the institution to the appropriate circuit court for release of a restriction imposed by the applicable gift instrument on the use or investment of an institutional fund. The Attorney General shall be notified of the application and shall be given an opportunity to be heard. If the court finds that the restriction is obsolete, inappropriate or impracticable, it may by order release the restriction in whole or in part. A release under this subsection may not change an endowment fund to a fund that is not an endowment fund.

(3) A release under this section may not allow a fund to be used for purposes other than educational, religious, charitable or other eleemosynary purposes of the institution affected.

(4) This section does not limit the application of the doctrine of cy pres. [1975 c.707 §8]

128.350 Uniformity of interpretation. ORS 128.310 to 128.355 shall be so applied and construed as to effectuate its general purpose to make uniform the law with respect to the subject of ORS 128.310 to 128.355 among those states which enact it. [1975 c.707 §10]

128.355 Severability. If any provision of ORS 128.310 to 128.355 or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of ORS 128.310 to 128.355 which can be given effect without the invalid provision or application, and to this end the provisions of ORS 128.310 to 128.355 are declared severable. [1975 c.707 §9]

128.370 [2003 c.84 §1; 2005 c.348 §108; renumbered 130.520 in 2005]

128.375 [2003 c.84 §2; 2005 c.348 §111; renumbered 130.530 in 2005]

128.378 [2003 c.84 §3; 2005 c.348 §112; renumbered 130.535 in 2005]

128.380 [2003 c.84 §4; renumbered 130.540 in 2005]

128.382 [2003 c.84 §5; renumbered 130.545 in 2005]

128.385 [2003 c.84 §6; 2005 c.348 §113; renumbered 130.550 in 2005]

128.388 [2003 c.84 §7; 2005 c.348 §114; renumbered 130.555 in 2005]

128.390 [2003 c.84 §8; 2005 c.348 §115; renumbered 130.560 in 2005]

128.392 [2003 c.84 §9; renumbered 130.565 in 2005]

128.395 [2003 c.84 §10; 2005 c.348 §116; renumbered 130.570 in 2005]

128.397 [2003 c.84 §11; 2005 c.348 §117; renumbered 130.575 in 2005]

128.398 [2003 c.84 §12; 2005 c.22 §99; 2005 c.348 §118; renumbered 130.240 in 2005]

128.400 [1987 c.813 §3; 1997 c.631 §416; 2001 c.796 §7; renumbered 97.923 in 2001]

128.405 [1987 c.813 §1; 2001 c.796 §16; renumbered 97.925 in 2001]

128.407 [1987 c.813 §2; 2001 c.796 §17; renumbered 97.927 in 2001]

128.410 [1953 c.639 §1; 1955 c.524 §1; 1959 c.691 §1; 1965 c.611 §14; 1967 c.359 §681; 1979 c.661 §1; repealed by 1987 c.813 §17]

128.412 [1959 c.691 §2; 1967 c.359 §682; 1985 c.207 §23; 1987 c.813 §11; 1991 c.331 §43; 1997 c.631 §417; 1999 c.68 §1; 2001 c.796 §8; renumbered 97.929 in 2001]

128.414 [1993 c.467 §3; 1995 c.325 §2; 2001 c.796 §9; renumbered 97.931 in 2001]

128.415 [1953 c.639 §2; 1955 c.524 §2; 1959 c.691 §3; 1981 c.484 §1; 1985 c.207 §24; 1987 c.214 §1; 1987 c.813 §12; 1989 c.171 §14; 2001 c.796 §10; renumbered 97.937 in 2001]

128.420 [1981 c.719 §9a; 1983 c.810 §26; 1987 c.158 §18b; repealed by 1987 c.813 §17]

128.421 [1987 c.813 §4; 1989 c.1048 §3; 2001 c.796 §11; renumbered 97.939 in 2001]

128.423 [1987 c.813 §5; 1989 c.1048 §1; 1995 c.720 §1; 2001 c.796 §12; renumbered 97.941 in 2001]

128.425 [1987 c.813 §6; 1989 c.1048 §2; 1995 c.720 §2; 2001 c.796 §13; renumbered 97.943 in 2001]

128.430 [1987 c.813 §7; 2001 c.796 §14; renumbered 97.944 in 2001]

128.435 [1987 c.813 §8; 1995 c.144 §8; 2001 c.796 §15; renumbered 97.945 in 2001]

128.440 [1987 c.813 §8a; 2001 c.796 §18; renumbered 97.946 in 2001]

128.460 [1971 c.182 §1; repealed by 2005 c.348 §128]

128.470 [1971 c.182 §2; repealed by 2005 c.348 §128]

128.480 [1971 c.182 §3; repealed by 2005 c.348 §128]

128.490 [1971 c.182 §4; repealed by 2005 c.348 §128]

128.500 [1971 c.182 §5; repealed by 2005 c.348 §128]

EMPLOYEES’ TRUSTS

128.510 Definitions for ORS 128.520. As used in ORS 128.520, “employees’ trust” means a trust of real or personal property forming part of a pension, profit sharing, stock bonus, annuity, disability or death benefit plan of an employer or group of employers for the benefit of the employees of the employer or group of employers, to which contributions are made by such employers or employees, or both, for the purpose of distributing income or principal, or both, to such employees or the beneficiaries of such employees. [1955 c.586 §1]

128.520 Employees’ trust may be in perpetuity; accumulation of income. An employees’ trust may be permitted to accumulate for such time as may be necessary to accomplish the purpose for which it is created, and is not invalid as violating any rule of law against perpetuities or the suspension of the power of alienation of title to property. The income from any property held in an employees’ trust may continue in perpetuity or in accordance with the terms of such trust, and the plan of which such trust forms a part, for such time as may be necessary to accomplish the purpose for which such trust is created. [1955 c.586 §2]

BUSINESS TRUSTS

128.560 “Business trust” described. A “business trust” is any association, including a real estate investment trust, engaged in or operating a business under a written trust agreement or declaration of trust, the beneficial interest under which is divided into transferable certificates of participation or shares, other than a trust engaged solely in exercising the voting rights pertaining to corporate shares or other securities in accordance with the terms of a written instrument. [1971 c.491 §1]

128.565 Business trust permitted. A business trust is permitted as a recognized form of association for the conduct of business within the State of Oregon. [1971 c.491 §2]

128.570 Business trusts and trustees not subject to bank and trust company regulations. Neither a business trust nor the trustees of such trust are subject to the provisions of ORS chapters 706, 707 and 709. [1971 c.491 §3; 1997 c.631 §418]

128.573 Forms; rules. Upon request, the Secretary of State may furnish forms for documents required or permitted to be filed under ORS 128.560 to 128.600. The Secretary of State may by rule require the use of the forms. [1995 c.215 §23]

128.575 Filing with Office of Secretary of State required; fees; amendments. (1) Any business trust desiring to do business in this state shall first submit to the Office of Secretary of State a copy of the trust instrument creating the trust and any subsequent amendments to the trust and a document setting forth:

(a) The business trust name and the state or country of formation;

(b) The names and addresses of its trustees;

(d) A mailing address to which the Secretary of State may mail notices; and

(e) Any additional identifying information that the Secretary of State by rule may require.

(2) The filing described in subsection (1) of this section shall be accompanied by the applicable filing fee.

(3) If the Secretary of State finds that the document contains the required information, the Secretary of State, when all fees have been paid, shall file the trust instrument and document and return an acknowledgment of filing to the sender.

(4) If a business trust amends its trust instrument it shall submit for filing a copy of the amendment to the Office of Secretary of State. The amendment shall set forth:

(a) The name of the business trust as shown on the records of the Office of Secretary of State; and

(b) The information as changed. [1971 c.491 §4; 1973 c.367 §12; 1985 c.351 §21; 1985 c.728 §81a; 1987 c.94 §128; 1995 c.215 §24; 1999 c.486 §18]

128.580 Business trusts subject to certain corporate laws. Any business trust shall be subject to such provisions of law, now or hereafter enacted, with respect to domestic and foreign corporations, respectively, as relate to the issuance of securities, filing of required statements or reports, service of process, general grants of power to act, right to sue and be sued, limitation of individual liability of shareholders and rights to acquire, mortgage, sell, lease, operate and otherwise to deal in real and personal property. Except as otherwise provided in its trust agreement or declaration of trust, or any amendments thereto, any business trust shall also be subject to the other provisions of ORS chapter 60 and other rights and duties existing under the common law and statutes of this state applicable to domestic and foreign corporations. Title to any real or personal property may be held in the name of the trust, one or more of the trustees or any other person as nominee. [1971 c.491 §5; 1973 c.367 §13; 1979 c.208 §6; 1987 c.94 §99]

128.585 Personal liability of trustees, shareholders or beneficiaries of business trust. The trustees, shareholders or beneficiaries of a business trust shall not, as such, be personally liable for any obligations of such business trust arising after June 25, 1971. Persons becoming trustees, shareholders or beneficiaries after June 25, 1971, shall not be personally liable, as such, for obligations of the business trust existing on June 25, 1971. [1971 c.491 §6; 1973 c.367 §14]

128.590 Filing of trust instrument as conclusive evidence of compliance with laws; exception. For purposes of ORS 128.585, filing of the trust instrument by the Secretary of State shall be conclusive evidence that all conditions precedent required to be performed by the business trust have been complied with and that the business trust is authorized to do business in this state, except as against this state in a proceeding to cancel or revoke the filing for violations of the provisions of ORS 128.580. [1971 c.491 §7; 1985 c.728 §82]

128.595 Annual report; due date; content; notice of requirement; effect of failure to file. (1) Each business trust by the anniversary date shall file a report with the Secretary of State accompanied by the annual fee.

(2) The report shall contain the following:

(a) The name of the business trust and the state or country under whose law it is formed;

(b) The names and addresses of its trustees;

(c) The street address of the registered office in this state and the name of the trust’s registered agent at that office;

(d) A mailing address to which the Secretary of State may mail notices;

(e) The category of the classification code as established by rule of the Secretary of State most closely designating the primary business activity of the business trust;

(f) The federal employer identification number of the trust; and

(g) Any additional identifying information that the Secretary of State by rule may require.

(3) The annual report shall be on forms prescribed and furnished by the Secretary of State. The information contained in the annual report shall be current as of 30 days before the anniversary of the business trust.

(4) The Secretary of State shall mail the report form to any address shown for the business trust in the current records of the Office of the Secretary of State. The failure of the business trust to receive the report form from the Secretary of State shall not relieve the business trust of its duty to deliver a report as required by this section.

(5) If the Secretary of State finds the report conforms to the requirements of this section, the Secretary of State shall file the report.

(6) If the Secretary of State finds that the report does not conform to the requirements of this section, the Secretary of State shall return the report to the business trust. The business trust shall correct the annual report and return it to the Secretary of State within 45 days after the Secretary of State returns the report.

(7) If no report is filed by the reporting date or if no corrected report is filed within the 45-day period, the Secretary of State shall send to the business trust a final notice advising that no report has been filed and it is, therefore, assumed that the business trust is no longer active unless a report is filed within 45 days after the mailing of such final notice.

(8) Not less than 45 days after the date of mailing of the final notice provided for by subsection (7) of this section, the Secretary of State may assume and note on the records of the Secretary of State that the business trust is inactive. [Formerly 128.075; 1983 c.717 §29; 1985 c.351 §22; 1985 c.728 §82b; 1987 c.94 §130; 1987 c.843 §18; 1993 c.190 §17; 1995 c.215 §25]

128.597 Inactivation of business trust. The Secretary of State may commence a proceeding to inactivate the trust instrument of a business trust if:

(1) The business trust does not pay when due any fees imposed by ORS 128.560 to 128.600;

(2) The business trust does not deliver its annual report to the Secretary of State when due;

(3) The business trust is without a registered agent or registered office in this state;

(4) The business trust does not notify the Secretary of State that its registered agent or registered office has been changed, that its registered agent has resigned or that its registered office has been discontinued; or

(5) The business trust’s period of duration stated in the trust instrument expires. [1995 c.215 §27]

128.599 Reinstatement of business trust following inactivation. (1) A business trust inactivated under ORS 128.597 may apply to the Secretary of State for reinstatement within five years from the date of inactivation. The application shall state:

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Oregon Chapter 128

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