Title 47 — CORPORATIONS

The fact that a certificate of trust is on file in the Office of the Secretary of State is notice that the entity formed in connection with the filing of the certificate of trust is a business trust formed under the laws of the state and is notice of all other facts set forth the…

No document required to be filed under this section is effective until the applicable fee required by this section is paid. The following fees shall be paid to and collected by the secretary of state for the use of the state: (1) Application for reservation of name, $50; (2) Appl…

The name of each business trust as set forth in its certificate of trust shall be such as to distinguish it upon the records of the Office of the Secretary of State from the name of any corporation, limited partnership, business trust, or limited liability company reserved, regis…

The name of each business trust as set forth in its certificate of trust may contain the name of a beneficial owner, a trustee or any other person. Source: SL 2001, ch 245 , § 59.

Except to the extent otherwise provided in the governing instrument of a business trust, a trustee, when acting in such capacity, is not personally liable to any person other than the business trust or a beneficial owner for any act, omission, or obligation of the business trust …

The name of each business trust, as set forth in its certificate of trust, may contain the following words: company, association, club, foundation, fund, institute, society, union, syndicate, limited or trust (or abbreviations of like import). Source: SL 2001, ch 245 , § 60.

The exclusive right to the use of a name may be reserved by any person intending to form a business trust and to adopt that name or any business trust registered in this state which proposes to change its name. Source: SL 2001, ch 245 , § 61.

The reservation of a specified name shall be made by filing with the secretary of state an application, executed by the applicant, together with a duplicate copy, which may either be a signed or conformed copy, specifying the name to be reserved and the name and address of the ap…

Any fee set forth in § 47-14A-57 shall be paid at the time of the initial reservation of any name, at the time of the renewal of any such reservation and at the time of the filing of a notice of the transfer or cancellation of any such reservation. Source: SL 2001, ch 245 , § 63.

Pursuant to an agreement of merger or consolidation, a business trust may merge or consolidate with or into one or more business trusts or other business entities formed or organized or existing under the laws of the state or any other state or the United States or any foreign co…

If a business trust is merging or consolidating, the business trust or other business entity surviving or resulting in or from the merger or consolidation shall file a certificate of merger or consolidation in the Office of the Secretary of State. The certificate of merger or con…

Any failure to file a certificate of merger or consolidation in connection with a merger or consolidation which was effective prior to July 1, 2001, does not affect the validity or effectiveness of any such merger or consolidation. Source: SL 2001, ch 245 , § 66.

Unless a future effective date or time is provided in a certificate of merger or consolidation, in which event a merger or consolidation shall be effective at any such future effective date or time, a merger or consolidation shall be effective upon the filing in the Office of the…

A certificate of merger or consolidation shall act as a certificate of cancellation for a business trust which is not the surviving or resulting entity in the merger or consolidation. Source: SL 2001, ch 245 , § 68.

Notwithstanding anything to the contrary contained in the governing instrument of a business trust, a governing instrument of a business trust containing a specific reference to this chapter may provide that an agreement of merger or consolidation approved in accordance with § 47…

Except to the extent otherwise provided in the governing instrument of a business trust, an officer, employee, manager, or other person acting pursuant to subdivision 47-14A-25(7), when acting in such capacity, is not personally liable to any person other than the business trust …

When any merger or consolidation has become effective under this chapter, for all purposes of the laws of the state, all of the rights, privileges, and powers of each of the business trusts and other business entities that have merged or consolidated, and all property, real, pers…

A governing instrument or an agreement of merger or consolidation may provide that contractual appraisal rights with respect to a beneficial interest or another interest in a business trust shall be available for any class or group of beneficial owners or beneficial interests in …

A beneficial owner may bring an action in the circuit court in the right of a business trust to recover a judgment in its favor if trustees with authority to do so have refused to bring the action or if an effort to cause those trustees to bring the action is not likely to succee…

In a derivative action, the plaintiff must be a beneficial owner at the time of bringing the action and: (1) At the time of the transaction of which the plaintiff complains; or (2) Plaintiff's status as a beneficial owner had devolved upon plaintiff by operation of law or pursuan…

In a derivative action, the complaint shall set forth with particularity the effort, if any, of the plaintiff to secure initiation of the action by the trustees, or the reasons for not making the effort. Source: SL 2001, ch 245 , § 74.

If a derivative action is successful, in whole or in part, or if anything is received by a business trust as a result of a judgment, compromise, or settlement of any such action, the court may award the plaintiff reasonable expenses, including reasonable attorney's fees. If anyth…

A beneficial owner's right to bring a derivative action may be subject to such additional standards and restrictions, if any, as are set forth in the governing instrument of the business trust, including, without limitation, the requirement that beneficial owners owning a specifi…

Subject to such standards and restrictions, if any, as are set forth in the governing instrument of a business trust, a business trust may indemnify and hold harmless any trustee or beneficial owner or other person from and against any and all claims and demands whatsoever. Sourc…

The absence of a provision for indemnity in the governing instrument of a business trust may not be construed to deprive any trustee or beneficial owner or other person of any right to indemnity which is otherwise available to such person under the laws of this state. Source: SL …

Except to the extent otherwise provided in the governing instrument of a business trust, a business trust may acquire, by purchase, redemption, or otherwise, any beneficial interest in the business trust held by a beneficial owner of the business trust. Except to the extent other…

No obligation of a beneficial owner or trustee of a business trust to the business trust arising under the governing instrument or a separate agreement in writing, and no note, instrument or other writing evidencing any such obligation of a beneficial owner or trustee, is subject…

Except to the extent otherwise provided in the governing instrument of a business trust, each beneficial owner of a business trust has the right, subject to such reasonable standards (including standards governing what information and documents are to be furnished at what time an…

Except to the extent otherwise provided in the governing instrument of a business trust, each trustee may examine all the information described in § 47-14A-80 for any purpose reasonably related to the trustee's position as a trustee. Source: SL 2001, ch 245 , § 81.

Except to the extent otherwise provided in the governing instrument of a business trust, the trustees of a business trust may keep confidential from the beneficial owners, for such period of time as the trustees deem reasonable, any information that the trustees reasonably believ…

A business trust may maintain its records in other than a written form if such form is capable of conversion into a written form within a reasonable time. Any demand by a beneficial owner or trustee under § 47-14A-80 shall be in writing and shall state the purpose of such demand.…

Any other business entity formed or organized or existing under the laws of the State of South Dakota or any other state or the United States or any foreign country or other foreign jurisdiction may convert to a business trust by complying with § 47-14A-89 and filing in the Offic…

The certificate of conversion to business trust shall state: (1) The date on which and jurisdiction where the other business entity was first formed or organized or otherwise came into being and, if it has changed, its jurisdiction immediately prior to its conversion to a busines…

Upon the filing in the Office of the Secretary of State of the certificate of conversion to business trust and the certificate of trust or upon the future effective date or time of the certificate of conversion to business trust and the certificate of trust, the other business en…

The conversion of any other business entity into a business trust may not be deemed to affect any obligations or liabilities of the other business entity incurred prior to its conversion to a business trust, or the personal liability of any person incurred prior to such conversio…

When any conversion has become effective under this chapter, for all purposes of the laws of the State of South Dakota, all of the rights, privileges, and powers of the other business entity that has converted, and all property, real, personal, and mixed, and all debts due to suc…

Unless otherwise agreed, or as required under applicable non - South Dakota law, the converting other business entity is not required to wind up its affairs or pay its liabilities and distribute its assets, and the conversion may not be deemed to constitute a dissolution of such …

A business trust may sue and be sued, and service of process upon one of the trustees is sufficient. A business trust may be sued for debts and other obligations or liabilities contracted or incurred by the trustees, or by the duly authorized agents of such trustees, in the perfo…

Prior to filing a certificate of conversion to business trust with the Office of the Secretary of State, the conversion shall be approved in the manner provided for by the document, instrument, agreement, or other writing, as the case may be, governing the internal affairs of the…

The provisions of this chapter may not be construed to limit the accomplishment of a change in the law governing, or the domicile of, an other business entity to the State of South Dakota by any other means provided for in an agreement governing the internal affairs of the other …

In connection with a conversion pursuant to this chapter, rights or securities of, or interests in, the other business entity which is to be converted to a business trust may be exchanged for or converted into cash, property, rights, or securities of, or interests in, such busine…

A business trust may convert to an other business entity formed or organized under the laws of the State of South Dakota, upon the authorization of such conversion in accordance with this section. If the governing instrument specifies the manner of authorizing a conversion of the…

All provisions of this section may be altered from time to time or repealed and all rights of business trusts, trustees, beneficial owners, and other persons are subject to this reservation. Source: SL 2001, ch 245 , § 94.

The rule that statutes in derogation of the common law are to be strictly construed shall have no application to this section. It is the policy of this section to give maximum effect to the principle of freedom of contract and to the enforceability of governing instruments. Sourc…

This chapter may be cited as the South Dakota Business Trust Act. Source: SL 2001, ch 245 , § 96.