EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted. Green numbers along left margin indicate location on the printed bill (e.g., 5-15 indicates page 5, line 15).

1-1 Section 1. Title 7 of NRS is hereby amended by adding thereto a new

1-3 of this act.

1-4 Sec. 2. As used in this chapter, unless the context otherwise requires,

1-5 the words and terms defined in sections 3 to 9, inclusive, of this act have

1-6 the meanings ascribed to them in those sections.

1-7 Sec. 3. "Beneficial owner" means the owner of a beneficial interest

1-8 in a business trust.

1-9 Sec. 4. "Business trust" means an unincorporated association

1-10 which:

1-11 1. Is created by a trust instrument under which property is held,

1-12 managed, controlled, invested, reinvested or operated, or any

1-13 combination of these, or business or professional activities for profit are

1-14 carried on, by a trustee for the benefit of the persons entitled to a

1-15 beneficial interest in the trust property; and

2-1 2. Files a certificate of trust pursuant to section 12 of this act.

2-2 The term includes, without limitation, a trust of the type known at

2-3 common law as a business trust or Massachusetts trust, a trust qualifying

2-4 as a real estate investment trust pursuant to 26 U.S.C. §§ 856 et seq., as

2-5 amended, or any successor provision, or a trust qualifying as a real estate

2-6 mortgage investment conduit pursuant to 26 U.S.C. § 860D, as amended,

2-7 or any successor provision. The term does not include a corporation as

2-8 that term is defined in 11 U.S.C. § 101(9).

2-9 Sec. 5. "Foreign business trust" means a business trust formed

2-10 pursuant to the laws of a foreign nation or other foreign jurisdiction and

2-11 denominated as such pursuant to those laws.

2-12 Sec. 6. "Governing instrument" means the trust instrument that

2-13 creates a business trust and provides for the governance of its affairs and

2-14 the conduct of its business.

2-15 Sec. 7. "Registered office" means the office of a business trust

2-16 maintained at the street address of its resident agent.

2-17 Sec. 8. "Resident agent" means the agent appointed by a business

2-18 trust upon whom process or a notice or demand authorized by law to be

2-19 served upon the business trust may be served.

2-20 Sec. 9. "Trustee" means the person or persons appointed as trustee

2-21 in accordance with the governing instrument of a business trust.

2-22 Sec. 10. The provisions of this chapter apply to commerce with

2-23 foreign nations and among the several states. It is the intention of the

2-24 legislature by enactment of this chapter that the legal existence of

2-25 business trusts formed pursuant to this chapter be recognized beyond the

2-26 limits of this state and that, subject to any reasonable requirement of

2-27 registration, any such business trust transacting business outside this

2-28 state be granted protection of full faith and credit pursuant to section 1 of

2-29 article IV of the Constitution of the United States.

2-30 Sec. 11. A business trust may be formed to carry on any lawful

2-31 business or activity.

2-32 Sec. 12. 1. One or more persons may form a business trust by

2-33 executing, acknowledging and filing with the secretary of state a

2-34 certificate of trust and a certificate of acceptance of appointment signed

2-35 by the resident agent of the business trust. The certificate of trust must

2-36 set forth:

2-37 (a) The name of the business trust;

2-38 (b) The name and the post office box or street address, either

2-39 residence or business, of at least one trustee;

2-40 (c) The name of the person designated as the resident agent for the

2-41 business trust, the street address of the resident agent where process may

2-42 be served upon the business trust and the mailing address of the resident

2-43 agent if different from the street address;

3-1 (d) The name and post office box or street address, either residence or

3-2 business, of each person signing the certificate of trust; and

3-3 (e) Any other information the trustees determine to include.

3-4 2. Upon the filing of the certificate of trust and the certificate of

3-5 acceptance with the secretary of state and the payment to him of the

3-6 required filing fee, the secretary of state shall issue to the business trust a

3-7 certificate that the required documents with the required content have

3-8 been filed. After the date of that filing, the business trust is legally

3-9 formed pursuant to this chapter.

3-10 Sec. 13. 1. A certificate of trust may be amended by filing with the

3-11 secretary of state a certificate of amendment signed by at least one

3-12 trustee. The certificate of amendment must set forth:

3-13 (a) The name of the business trust;

3-14 (b) The date of filing of the original certificate of trust; and

3-15 (c) The amendment to the certificate of trust.

3-16 2. A certificate of trust may be restated by integrating into a single

3-17 instrument all the provisions of the original certificate, and all

3-18 amendments to the certificate, which are then in effect or are to be made

3-19 by the restatement. The restated certificate of trust must be so designated

3-20 in its heading, must be signed by at least one trustee and must set forth:

3-21 (a) The present name of the business trust and, if the name has been

3-22 changed, the name under which the business trust was originally formed;

3-23 (b) The date of filing of the original certificate of trust;

3-24 (c) The provisions of the original certificate of trust, and all

3-25 amendments to the certificate, which are then in effect; and

3-26 (d) Any further amendments to the certificate of trust.

3-27 3. A certificate of trust may be amended or restated at any time for

3-28 any purpose determined by the trustees.

3-29 Sec. 14. 1. The name of a business trust formed pursuant to the

3-30 provisions of this chapter must contain the words "Business Trust" or the

3-31 abbreviation "B.T." or "BT."

3-32 2. The name proposed for a business trust must be distinguishable

3-33 from the names of all other artificial persons formed, organized or

3-34 qualified pursuant to the provisions of this Title which are on file in the

3-35 office of the secretary of state and all names reserved pursuant to the

3-36 provisions of this Title. If a proposed name is not so distinguishable, the

3-37 secretary of state shall return the certificate of trust containing it to the

3-38 signers of the certificate, unless the written, acknowledged consent of the

3-39 holder of the registered or reserved name to use the same name or the

3-40 requested similar name accompanies the certificate.

3-41 3. For the purposes of this section and section 15 of this act, a

3-42 proposed name is not distinguishable from a name on file or a reserved

3-43 name solely because one or the other contains distinctive lettering, a

4-1 distinctive mark, a trade-mark or trade name or, any combination of

4-2 these.

4-3 4. The name of a business trust whose certificate of trust has been

4-4 revoked or whose existence has otherwise terminated is available for use

4-5 by any other artificial person.

4-6 Sec. 15. 1. The secretary of state, when requested to do so, shall

4-7 reserve, for a period of 90 days, the right to use a name available

4-8 pursuant to section 14 of this act for the use of a proposed business trust.

4-9 During the period, the name so reserved is not available for use by any

4-10 other artificial person without the written, acknowledged consent of the

4-11 person at whose request the reservation was made.

4-12 2. The use by any artificial person of a name in violation of

4-13 subsection 1 or section 14 of this act may be enjoined, even if the

4-14 document under which the artificial person is formed, organized or

4-15 qualified has been filed by the secretary of state.

4-16 Sec. 16. Upon the filing of a certificate of amendment or

4-17 restatement with the secretary of state, or upon the future effective date

4-18 of such a certificate as provided for therein, the certificate of trust is

4-19 amended or restated as set forth. Upon the filing of a certificate of

4-20 cancellation, or articles of merger in which the business trust is not a

4-21 surviving entity, with the secretary of state, or upon the future effective

4-22 date of the certificate or articles, the certificate of trust is canceled.

4-23 Sec. 17. A signature on any certificate authorized to be filed with the

4-24 secretary of state pursuant to a provision of this chapter may be a

4-25 facsimile. The certificate may be filed by telecopy or similar electronic

4-26 transmission, but the secretary of state need not accept the filing if the

4-27 certificate is illegible or otherwise unsuitable for the procedures of his

4-28 office.

4-29 Sec. 18. 1. Except as otherwise provided in the certificate of trust,

4-30 the governing instrument or this chapter, a business trust has perpetual

4-31 existence and may not be terminated or revoked by a beneficial owner or

4-32 other person except in accordance with the certificate of trust or

4-33 governing instrument.

4-34 2. Except as otherwise provided in the certificate of trust or the

4-35 governing instrument, the death, incapacity, dissolution, termination or

4-36 bankruptcy of a beneficial owner does not result in the termination or

4-37 dissolution of a business trust.

4-38 3. An artificial person formed or organized pursuant to the laws of a

4-39 foreign nation or other foreign jurisdiction or the laws of another state

4-40 shall not be deemed to be doing business in this state solely because it is a

4-41 beneficial owner or trustee of a business trust.

4-42 4. The provisions of NRS 662.245 do not apply to the appointment of

4-43 a trustee of a business trust formed pursuant to this chapter.

5-1 Sec. 19. A governing instrument may consist of one or more

5-2 agreements, instruments or other writings and may include or

5-3 incorporate bylaws containing provisions relating to the business of the

5-4 business trust, the conduct of its affairs, and its rights or powers or the

5-5 rights or powers of its trustees, beneficial owners, agents or employees.

5-6 The governing instrument may provide that one or more of the beneficial

5-7 owners may serve as trustee.

5-8 Sec. 20. 1. Except as otherwise provided in the governing

5-9 instrument, a beneficial owner participates in the profits and losses of a

5-10 business trust in the proportion of his beneficial interest to the entire

5-11 beneficial interest. A governing instrument may provide that the business

5-12 trust, or the trustees on its behalf, hold beneficial ownership of income

5-13 earned on securities owned by the business trust.

5-14 2. A creditor of a beneficial owner has no right to obtain possession

5-15 of, or otherwise exercise legal or equitable remedies with respect to,

5-16 property of the business trust.

5-17 3. A beneficial interest in a business trust is personal property

5-18 regardless of the nature of the property of the business trust. Except as

5-19 otherwise provided in the certificate of trust or the governing instrument,

5-20 a beneficial owner has no interest in specific property of the business

5-21 trust.

5-22 4. A beneficial interest in a business trust may be evidenced by the

5-23 issuance of certificates of ownership or by other means set forth in the

5-24 certificate of trust or the governing instrument.

5-25 5. A beneficial interest in a business trust is freely transferable

5-26 except as otherwise provided in the certificate of trust or the governing

5-27 instrument.

5-28 6. Except as otherwise provided in the certificate of trust or the

5-29 governing instrument, if a beneficial owner becomes entitled to receive a

5-30 distribution, he has the status of, and is entitled to all remedies available

5-31 to, a creditor of the business trust with respect to the distribution. The

5-32 governing instrument may provide for the establishment of record dates

5-33 with respect to allocations and distributions by a business trust.

5-34 7. The fact of ownership of a beneficial interest in a business trust is

5-35 determined, and the means of evidencing it are set forth, by the

5-36 applicable provisions of the certificate of trust or the governing

5-37 instrument.

5-38 Sec. 21. 1. Except during any period of vacancy described in

5-39 section 24 of this act, a business trust shall have a resident agent who

5-40 resides or is located in this state. A resident agent shall have a street

5-41 address for the service of process and may have a mailing address such

5-42 as a post office box, which may be different from the street address.

6-1 2. A business trust formed pursuant to this chapter that fails or

6-2 refuses to comply with the requirements of this section is subject to a fine

6-3 of not less than $100 nor more than $500, to be recovered with costs by

6-4 the state, before any court of competent jurisdiction, by action at law

6-5 prosecuted by the attorney general or by the district attorney of the

6-6 county in which the action or proceeding to recover the fine is

6-7 prosecuted.

6-8 Sec. 22. 1. Within 30 days after changing the location of his office

6-9 from one address to another in this state, a resident agent shall execute a

6-10 certificate setting forth:

6-11 (a) The names of all the business trusts represented by him;

6-12 (b) The address at which he has maintained the registered office for

6-13 each of those business trusts; and

6-14 (c) The new address to which his office is transferred and at which he

6-15 will maintain the registered office for each of those business trusts.

6-16 2. Upon the filing of the certificate with the secretary of state, the

6-17 registered office of each of the business trusts listed in the certificate is

6-18 located at the new address set forth in the certificate.

6-19 Sec. 23. 1. If the resident agent is a bank or an artificial person

6-20 formed or organized pursuant to this Title, it may:

6-21 (a) Act as the fiscal or transfer agent of a state, municipality, body

6-22 politic or business trust, and in that capacity may receive and disburse

6-23 money.

6-24 (b) Transfer, register and countersign certificates evidencing a

6-25 beneficial owner’s interest in a business trust, bonds or other evidences

6-26 of indebtedness and act as agent of any business trust, foreign or

6-27 domestic, for any purpose required by statute or otherwise.

6-28 2. All legal process and any demand or notice authorized by law to

6-29 be served upon a business trust may be served upon its resident agent in

6-30 the manner provided in subsection 2 of NRS 14.020. If a demand, notice

6-31 or legal process, other than a summons and complaint, cannot be served

6-32 upon the resident agent, it may be served in the manner provided in NRS

6-33 14.030. These manners of service are in addition to any other service

6-34 authorized by law.

6-35 Sec. 24. 1. A resident agent who desires to resign shall file with the

6-36 secretary of state a signed statement for each business trust for which he

6-37 is unwilling to continue to act. The execution of the statement must be

6-38 acknowledged. A resignation is not effective until the signed statement is

6-39 so filed.

6-40 2. The statement of resignation may contain an acknowledged

6-41 statement of the affected business trust appointing a successor resident

6-42 agent. A certificate of acceptance executed by the new resident agent,

6-43 stating the full name, complete street address and, if different from the

7-1 street address, mailing address of the new resident agent, must

7-2 accompany the statement appointing a successor resident agent.

7-3 3. Upon the filing of the statement of resignation with the secretary

7-4 of state, the capacity of the resigning person as resident agent terminates.

7-5 If the statement of resignation contains no statement by the business trust

7-6 appointing a successor resident agent, the resigning agent shall

7-7 immediately give written notice, by mail, to the business trust of the filing

7-8 of the statement of resignation and its effect. The notice must be

7-9 addressed to a trustee of the business trust other than the resident agent.

7-10 4. If its resident agent dies, resigns or removes from the state, a

7-11 business trust, within 30 days thereafter, shall file with the secretary of

7-12 state a certificate of acceptance executed by a new resident agent. The

7-13 certificate must set forth the full name and complete street address of the

7-14 new resident agent, and may contain a mailing address, such as a post

7-15 office box, different from the street address.

7-16 5. A business trust that fails to file a certificate of acceptance

7-17 executed by its new resident agent within 30 days after the death,

7-18 resignation or removal of its former resident agent shall be deemed in

7-19 default and is subject to the provisions of sections 31 to 34, inclusive, of

7-20 this act.

7-21 Sec. 25. 1. If a business trust formed pursuant to this chapter

7-22 desires to change its resident agent, the change may be effected by filing

7-23 with the secretary of state a certificate of change, signed by at least one

7-24 trustee of the business trust, setting forth:

7-25 (a) The name of the business trust;

7-26 (b) The name and street address of the present resident agent; and

7-27 (c) The name and street address of the new resident agent.

7-28 2. A certificate of acceptance executed by the new resident agent

7-29 must be a part of or attached to the certificate of change.

7-30 3. The change authorized by this section becomes effective upon the

7-31 filing of the certificate of change.

7-32 Sec. 26. 1. A business trust shall keep a copy of the following

7-33 records at its registered office:

7-34 (a) A copy certified by the secretary of state of its certificate of trust

7-35 and all amendments thereto or restatements thereof;

7-36 (b) A copy certified by one of its trustees of its governing instrument

7-37 and all amendments thereto; and

7-38 (c) A ledger or duplicate ledger, revised annually, containing the

7-39 names, alphabetically arranged, of all its beneficial owners, showing

7-40 their places of residence if known. Instead of this ledger, the business

7-41 trust may keep a statement containing the name of the custodian of the

7-42 ledger and the present complete address, including street and number, if

7-43 any, where the ledger is kept.

8-1 2. A business trust shall maintain the records required by subsection

8-2 1 in written form or in another form capable of conversion into written

8-3 form within a reasonable time.

8-4 Sec. 27. 1. A person who has been a beneficial owner of record of

8-5 a business trust for at least 6 months immediately preceding his demand,

8-6 or a person holding, or authorized in writing by the holders of, at least 5

8-7 percent of its beneficial ownership, is entitled, upon at least 5 days’

8-8 written demand, to inspect in person or by agent or attorney, during

8-9 usual business hours, the ledger or duplicate ledger, whether kept in the

8-10 registered office of the business trust or elsewhere, and to make copies

8-11 therefrom.

8-12 2. An inspection authorized by subsection 1 may be denied to a

8-13 beneficial owner or other person upon his refusal to furnish to the

8-14 business trust an affidavit that the inspection is not desired for a purpose

8-15 which is in the interest of a business or object other than the business of

8-16 the business trust and that he has not at any time sold or offered for sale

8-17 any list of beneficial owners of a domestic or foreign business trust,

8-18 stockholders of a domestic or foreign corporation or member of a

8-19 domestic foreign limited-liability company, or aided or abetted any

8-20 person in procuring such a list for such a purpose.

8-21 Sec. 28. 1. A business trust formed pursuant to this chapter shall

8-22 annually, on or before the last day of the month in which the anniversary

8-23 date of the filing of its certificate of trust with the secretary of state

8-24 occurs, file with the secretary of state on a form furnished by him a list

8-25 signed by at least one trustee containing the name and mailing address of

8-26 its resident agent and at least one trustee. Upon filing the list, the

8-27 business trust shall pay to the secretary of state a fee of $85.

8-28 2. The secretary of state shall, 60 days before the last day for filing

8-29 the annual list required by subsection 1, cause to be mailed to each

8-30 business trust which is required to comply with the provisions of sections

8-31 28 to 34, inclusive, of this act and which has not become delinquent, the

8-32 blank forms to be completed and filed with him. Failure of a business

8-33 trust to receive the forms does not excuse it from the penalty imposed by

8-34 law.

8-35 3. An annual list for a business trust not in default which is received

8-36 by the secretary of state more than 60 days before its due date shall be

8-37 deemed an amended list for the previous year.

8-38 Sec. 29. When the fee for filing the annual list has been paid, the

8-39 canceled check received by the business trust constitutes a certificate

8-40 authorizing it to transact its business within this state until the last day of

8-41 the month in which the anniversary of the filing of its certificate of trust

8-42 occurs in the next succeeding calendar year. If the business trust desires

9-1 a formal certificate upon its payment of the annual fee, its payment must

9-2 be accompanied by a self-addressed, stamped envelope.

9-3 Sec. 30. 1. Each list required to be filed pursuant to the provisions

9-4 of sections 28 to 34, inclusive, of this act must, after the name of each

9-5 trustee listed thereon, set forth his post office box or street address, either

9-6 residence or business.

9-7 2. If the addresses are not stated on a list offered for filing, the

9-8 secretary of state may refuse to file the list, and the business trust for

9-9 which the list has been offered for filing is subject to all the provisions of

9-10 sections 28 to 34, inclusive, of this act relating to failure to file the list

9-11 when or at the times therein specified, unless a list is subsequently

9-12 submitted for filing which conforms to the provisions of those sections.

9-13 Sec. 31. 1. Each business trust required to file the annual list and

9-14 pay the fee prescribed in sections 28 to 34, inclusive, of this act which

9-15 refuses or neglects to do so within the time provided shall be deemed in

9-16 default.

9-17 2. For default, there must be added to the amount of the fee a

9-18 penalty of $15. The fee and penalty must be collected as provided in this

9-19 chapter.

9-20 Sec. 32. 1. The secretary of state shall notify, by letter addressed to

9-21 its resident agent, each business trust deemed in default pursuant to the

9-22 provisions of this chapter. The notice must be accompanied by a

9-23 statement indicating the amount of the filing fee, penalties and costs

9-24 remaining unpaid.

9-25 2. On the first day of the ninth month following the month in which

9-26 the filing was required, the certificate of trust of the business trust is

9-27 revoked and its right to transact business is forfeited.

9-28 3. The secretary of state shall compile a complete list containing the

9-29 names of all business trusts whose right to do business has been forfeited.

9-30 He shall forthwith notify each such business trust, by letter addressed to

9-31 its resident agent, of the revocation of its certificate of trust. The notice

9-32 must be accompanied by a statement indicating the amount of the filing

9-33 fee, penalties and costs remaining unpaid.

9-34 4. If the certificate of trust is revoked and the right to transact

9-35 business is forfeited, all the property and assets of the defaulting business

9-36 trust must be held in trust by its trustees as for insolvent business trusts,

9-37 and the same proceedings may be had with respect thereto as are

9-38 applicable to insolvent business trusts. Any person interested may

9-39 institute proceedings at any time after a forfeiture has been declared, but

9-40 if the secretary of state reinstates the certificate of trust, the proceedings

9-41 must at once be dismissed.

10-1 Sec. 33. 1. Except as otherwise provided in subsection 3, the

10-2 secretary of state shall reinstate a business trust which has forfeited its

10-3 right to transact business pursuant to the provisions of this chapter and

10-4 restore to the business trust its right to carry on business in this state, and

10-5 to exercise its privileges and immunities, if it:

10-6 (a) Files with the secretary of state the list and designation required by

10-7 section 28 of this act; and

10-8 (b) Pays to the secretary of state:

10-9 (1) The annual filing fee and penalty set forth in sections 28 and 31

10-10 of this act for each year or portion thereof during which its certificate of

10-11 trust was revoked; and

10-12 (2) A fee of $50 for reinstatement.

10-13 2. When the secretary of state reinstates the business trust, he shall:

10-14 (a) Immediately issue and deliver to the business trust a certificate of

10-15 reinstatement authorizing it to transact business as if the filing fee had

10-16 been paid when due; and

10-17 (b) Upon demand, issue to the business trust one or more certified

10-18 copies of the certificate of reinstatement.

10-19 3. The secretary of state shall not order a reinstatement unless all

10-20 delinquent fees and penalties have been paid, and the revocation of the

10-21 certificate of trust occurred only by reason of the failure to pay the fees

10-22 and penalties.

10-23 Sec. 34. 1. Except as otherwise provided in subsection 2, if a

10-24 certificate of trust is revoked pursuant to the provisions of this chapter

10-25 and the name of the business trust has been legally reserved or acquired

10-26 by another artificial person formed, organized, registered or qualified

10-27 pursuant to the provisions of this Title whose name is on file with the

10-28 secretary of state and not revoked, the business trust shall submit in

10-29 writing to the secretary of state some other name under which it desires

10-30 to be reinstated. If that name is distinguishable from all other names

10-31 reserved or otherwise on file and not revoked, the secretary of state shall

10-32 issue to the business trust a certificate of reinstatement under that new

10-33 name.

10-34 2. If the defaulting business trust submits the written acknowledged

10-35 consent of the artificial person using a name, or the person who has

10-36 reserved a name, which is not distinguishable from the old name of the

10-37 business trust or a new name it has submitted, it may be reinstated under

10-38 that name.

10-39 Sec. 35. A business trust formed and existing pursuant to this

10-40 chapter has such powers as are necessary or convenient to effect any of

10-41 the purposes for which the business trust is formed.

11-1 Sec. 36. 1. Except as otherwise provided in this section, the

11-2 certificate of trust or the governing instrument, the business and affairs

11-3 of a business trust must be managed by or under the direction of its

11-4 trustees. To the extent provided in the certificate of trust or the governing

11-5 instrument, any person, including a beneficial owner, may direct the

11-6 trustees or other persons in the management of the business trust.

11-7 2. Except as otherwise provided in the certificate of trust or the

11-8 governing instrument, neither the power to give direction to a trustee or

11-9 other person nor the exercise thereof by any person, including a

11-10 beneficial owner, makes him a trustee. To the extent provided in the

11-11 certificate of trust or the governing instrument, neither the power to give

11-12 direction to a trustee or other person nor the exercise thereof by a person,

11-13 including a beneficial owner, causes him to have duties, fiduciary or

11-14 other, or liabilities relating to the power or its exercise to the business

11-15 trust or a beneficial owner thereof.

11-16 Sec. 37. A governing instrument may contain any provision relating

11-17 to the management or the business or affairs of the business trust and the

11-18 rights, duties and obligations of the trustees, beneficial owners and other

11-19 persons which is not contrary to a provision or requirement of this

11-20 chapter and may:

11-21 1. Provide for classes, groups or series of trustees or beneficial

11-22 owners, or of beneficial interests, having such relative rights, powers and

11-23 duties as the governing instrument provides, and may provide for the

11-24 future creation in the manner provided in the governing instrument of

11-25 additional such classes having such relative rights, powers and duties as

11-26 may from time to time be established, including rights, powers and duties

11-27 senior or subordinate to existing classes, groups or series.

11-28 2. Provide that a person becomes a beneficial owner and bound by

11-29 the governing instrument if he, or his representative authorized orally, in

11-30 writing or by action such as payment for a beneficial instrument,

11-31 complies with the conditions for becoming a beneficial owner set forth in

11-32 the governing instrument or any other writing and acquires a beneficial

11-33 interest.

11-34 3. Establish or provide for a designated series of trustees, beneficial

11-35 owners or beneficial interests having separate rights, powers or duties

11-36 with respect to specified property or obligations of the business trust or

11-37 profits and losses associated with specified property or obligations, and,

11-38 to the extent provided in the governing instrument, any such series may

11-39 have a separate business purpose or investment objective.

11-40 4. Provide for the taking of any action, including the amendment of

11-41 the governing instrument, the accomplishment of a merger, the

11-42 appointment of one or more trustees, the sale, lease, transfer, pledge or

11-43 other disposition of all or any part of the assets of the business trust or

12-1 the assets of any series, or the dissolution of the business trust, and the

12-2 creation of a class, group or series of beneficial interests that was not

12-3 previously outstanding, without the vote or approval of any particular

12-4 trustee or beneficial owner or class, group or series of trustees or

12-5 beneficial owners.

12-6 5. Grant to or withhold from all or certain trustees or beneficial

12-7 owners, or a specified class, group or series of trustees or beneficial

12-8 owners, the right to vote, separately or with all or any other trustees,

12-9 beneficial owners or classes, groups or series thereof, on any matter.

12-10 Voting may be per capita, proportionate to financial interest, by class,

12-11 group or series, or on any other basis.

12-12 6. If and to the extent that voting rights are granted under the

12-13 certificate of trust or governing instrument, set forth provisions relating

12-14 to notice of the time, place or purpose of a meeting at which a matter will

12-15 be voted on, waiver of notice, action by consent without a meeting, the

12-16 establishment of record dates, requirement of a quorum, voting in

12-17 person, by proxy or otherwise, or any other matter with respect to the

12-18 exercise of the right to vote.

12-19 7. Provide for the present or future creation of more than one

12-20 business trust, including the creation of a future business trust to which

12-21 all or any part of the assets, liabilities, profits or losses of any existing

12-22 business trust are to be transferred, and for the conversion of beneficial

12-23 interests in an existing business trust, or series thereof, into beneficial

12-24 interests in the separate business trust or a series thereof.

12-25 8. Provide for the appointment, election or engagement, either as

12-26 agents or independent contractors of the business trust or as delegates of

12-27 the trustees, of officers, employees, managers or other persons who may

12-28 manage the business and affairs of the business trust and have such titles

12-29 and relative rights, powers and duties as the governing instrument

12-30 provides. Except as otherwise provided in the governing instrument, the

12-31 trustees shall choose and supervise those officers, managers and other

12-32 persons.

12-33 Sec. 38. To the extent that, at law or in equity, a trustee has duties,

12-34 fiduciary or other, and liabilities relating thereto to a business trust or

12-35 beneficial owner:

12-36 1. If he acts under a governing instrument, he is not liable to the

12-37 business trust or to a beneficial owner for his reliance in good faith on

12-38 the provisions of the governing instrument; and

12-39 2. His duties and liabilities may be expanded or restricted by

12-40 provisions in the governing instrument.

13-1 Sec. 39. To the extent that, at law or in equity, an officer, employee,

13-2 manager or other person acting pursuant to the certificate of trust or a

13-3 governing instrument has duties, fiduciary or other, and liabilities

13-4 relating thereto to a business trust, beneficial owner or trustee:

13-5 1. If he acts pursuant to a governing instrument, he is not liable to

13-6 the business trust, a beneficial owner or a trustee for his reliance in good

13-7 faith on the provisions of the governing instrument; and

13-8 2. His duties and liabilities may be expanded or restricted by

13-9 provisions in the governing instrument.

13-10 Sec. 40. The debts, obligations and expenses incurred, contracted

13-11 for or otherwise existing with respect to a particular series of trustees,

13-12 beneficial owners or beneficial interests are enforceable against the

13-13 assets of that series only if:

13-14 1. The governing instrument of the business trust creates one or

13-15 more series of trustees, beneficial owners or beneficial interests;

13-16 2. Separate records are maintained for the series;

13-17 3. The assets associated with the series are held and accounted for

13-18 separately from the other assets of the business trust or any other series

13-19 of the business trust and the governing instrument requires separate

13-20 holding and accounting; and

13-21 4. Notice of the limitation on liability of the series is set forth in the

13-22 certificate of trust, or an amendment thereto, filed before the series is

13-23 established.

13-24 Sec. 41. 1. A contribution of a beneficial owner to a business trust

13-25 may be any tangible or intangible property or benefit to the business

13-26 trust, including cash, a promissory note, services performed, a contract

13-27 for services to be performed, or a security of the business trust. A person

13-28 may become a beneficial owner of a business trust and may receive a

13-29 beneficial interest in a business trust without making, or being obligated

13-30 to make, a contribution to the business trust.

13-31 2. Except as otherwise provided in the certificate of trust or the

13-32 governing instrument, a beneficial owner is obligated to the business

13-33 trust to perform a promise to make a contribution even if he is unable to

13-34 perform because of death, disability or any other reason. If a beneficial

13-35 owner does not make a promised contribution of property or services, he

13-36 is obligated at the option of the business trust to contribute cash equal to

13-37 that portion of the agreed value, as stated in the records of the business

13-38 trust, of the contribution which has not been made. The foregoing option

13-39 is in addition to any other rights, including specific performance, that the

13-40 business trust may have against the beneficial owner under the

13-41 governing instrument or applicable law.

14-1 3. A certificate of trust or governing instrument may provide that the

14-2 interest of a beneficial owner who fails to make a contribution that he is

14-3 obligated to make is subject to specific penalties for, or specified

14-4 consequences of, such failure. The penalty or consequence may take the

14-5 form of reducing the defaulting beneficial owner’s proportionate interest

14-6 in the business trust, subordinating that beneficial interest to those of

14-7 nondefaulting owners, a forced sale of the beneficial interest, forfeiture

14-8 of the beneficial interest, the lending by other beneficial owners of the

14-9 amount necessary to meet the defaulter’s commitment, a fixing of the

14-10 value of the beneficial interest by appraisal or formula and redemption

14-11 or sale of the beneficial interest at that value, or any other form.

14-12 Sec. 42. 1. Unless otherwise provided in the certificate of trust, the

14-13 governing instrument or an agreement signed by the person to be

14-14 charged, a beneficial owner, officer, agent, manager or employee of a

14-15 business trust formed pursuant to the laws of this state is not personally

14-16 liable for the debts or liabilities of the business trust.

14-17 2. Except as otherwise provided in the certificate of trust or the

14-18 governing instrument, a trustee acting in that capacity is not personally

14-19 liable to any person other than the business trust or a beneficial owner

14-20 for any act or omission of the business trust or a trustee thereof.

14-21 3. Except as otherwise provided in the certificate of trust or the

14-22 governing instrument, an officer, employee, agent or manager of the

14-23 business trust or another person who manages the business and affairs of

14-24 the business trust, acting in that capacity, is not personally liable to any

14-25 person other than the business trust or a beneficial owner for any act or

14-26 omission of the business trust or a trustee thereof.

14-27 4. Except as otherwise provided in the certificate of trust or the

14-28 governing instrument, a trustee of a business trust is not personally liable

14-29 to the business trust or a beneficial owner for damages for breach of

14-30 fiduciary duty as a trustee, excluding only acts or omissions that involve

14-31 intentional misconduct, fraud or a knowing violation of law.

14-32 Sec. 43. 1. Subject to the standards and restrictions, if any, set

14-33 forth in the certificate of trust or the governing instrument, a business

14-34 trust may indemnify and hold harmless a trustee, beneficial owner or

14-35 other person from and against all claims and demands.

14-36 2. The absence of a provision for indemnity in the certificate of trust

14-37 or governing instrument does not deprive a trustee or beneficial owner of

14-38 any right to indemnity which is otherwise available to him pursuant to

14-39 the laws of this state.

14-40 Sec. 44. A certificate of trust must be canceled upon the completion

14-41 or winding up of the business trust and its termination. A certificate of

14-42 cancellation must be signed by a trustee, filed with the secretary of state,

14-43 and set forth:

15-1 1. The name of the business trust;

15-2 2. The date of filing of its certificate of trust;

15-3 3. A future effective date of the certificate of cancellation, if it is not

15-4 to be effective upon filing, which may not be more than 90 days after the

15-5 certificate is filed; and

15-6 4. Any other information the trustee determines to include.

15-7 Sec. 45. 1. A beneficial owner may maintain an action in the right

15-8 of a business trust to recover a judgment in its favor if trustees having

15-9 authority to do so have refused to bring the action or if an effort to cause

15-10 those trustees to bring the action is unlikely to succeed.

15-11 2. In a derivative action, the plaintiff must be a beneficial owner at

15-12 the time of bringing the action and:

15-13 (a) He must have been a beneficial owner at the time of the

15-14 transaction of which he complains; or

15-15 (b) His status as a beneficial owner must have devolved upon him by

15-16 operation of law or pursuant to a provision of the certificate of trust or

15-17 the governing instrument from a person who was a beneficial owner at

15-18 the time of the transaction.

15-19 3. In a derivative action, the complaint must state with particularity

15-20 the effort, if any, of the plaintiff to cause the trustees to bring the act, or

15-21 the reasons for not making the effort.

15-22 4. If a derivative action is successful, in whole or in part, or if

15-23 anything is received by the business trust through judgment or settlement

15-24 of the action, the court may award the plaintiff reasonable expenses,

15-25 including attorney’s fees. If the plaintiff receives any proceeds of

15-26 judgment or settlement, the court shall make the award of his expenses

15-27 payable from those proceeds and remit the remainder to the business

15-28 trust. If the proceeds received by the plaintiff are less than the expenses

15-29 awarded, the court may direct all or part of the remainder of the award to

15-30 be paid by the business trust.

15-31 5. A beneficial owner’s right to bring a derivative action may be

15-32 subject to additional standards and restrictions set forth in the governing

15-33 instrument, including, without limitation, a requirement that beneficial

15-34 owners of a specified beneficial interest join in the action.

15-35 Sec. 46. 1. Except as otherwise provided in the certificate of trust,

15-36 the governing instrument or this chapter, the laws of this state pertaining

15-37 to trusts apply to a business trust.

15-38 2. In applying the provisions of this chapter, the court shall give the

15-39 greatest effect to the principle of freedom of contract and the

15-40 enforceability of governing instruments.

15-41 Sec. 47. All provisions of this chapter may be altered from time to

15-42 time or repealed, and all rights of business trusts, trustees, beneficial

15-43 owners and other persons are subject to this reservation.

16-1 Sec. 48. The secretary of state shall charge and collect the following

16-2 fees for:

16-3 1. Filing an original certificate of trust, $125.

16-4 2. Filing an amendment, restatement, or combination thereof, to a

16-5 certificate of trust, $75.

16-6 3. Filing a certificate of cancellation, $125.

16-7 4. Certifying a copy of a certificate of trust or an amendment,

16-8 restatement, or combination thereof, $10.

16-9 5. Certifying an authorized printed copy of this chapter, $10.

16-10 6. Reserving a name for a business trust, $20.

16-11 7. Executing a certificate of existence of a business trust which does

16-12 not list the previous documents relating to it, or a certificate of change in

16-13 the name of a business trust, $15.

16-14 8. Executing a certificate of existence of a business trust which lists

16-15 the previous documents relating to it, $20.

16-16 9. Filing a statement of change of address of the registered office for

16-17 each business trust, $15.

16-18 10. Filing a statement of change of the registered agent, $15.

16-19 11. Executing, certifying or filing any certificate or document not

16-20 otherwise provided for in this section, $20.

16-21 12. Examining and provisionally approving a document before the

16-22 document is presented for filing, $100.

16-23 13. Copying a document on file with him, for each page, $1.

16-24 Sec. 49. Chapter 78 of NRS is hereby amended by adding thereto a

17-1 3. The provisions of subsection 2 do not apply to:

17-2 (a) Actions that only affect the time of the exercise of stockholders’

17-3 voting rights; or

17-4 (b) The adoption or execution of plans, arrangement or instruments

17-5 that deny rights, privileges, power or authority to a holder of a specified

17-6 number or fraction of shares or fraction of voting power.

17-7 4. The provisions of subsections 2 and 3 do not permit directors or

17-8 officers to abrogate any right conferred by statute or the articles of

17-9 incorporation.

17-10 5. Directors may resist a change or potential change in control of the

17-11 corporation if the directors by a majority vote of a quorum determine that

17-12 the change or potential change is opposed to or not in the best interest of

17-13 the corporation:

17-14 (a) Upon consideration of the interests of the corporation’s

17-15 stockholders and any of the matters set forth in subsection 4 of NRS

17-16 78.138; or

17-17 (b) Because the amount or nature of the indebtedness and other

17-18 obligations to which the corporation or any successor to the property of

17-19 either may become subject, in connection with the change or potential

17-20 change in control, provides reasonable grounds to believe that, within a

17-21 reasonable time:

17-22 (1) The assets of the corporation or any successor would be or

17-23 become less than its liabilities;

17-24 (2) The corporation or any successor would be or become insolvent;

17-25 or

17-26 (3) Any voluntary or involuntary proceeding pursuant to the federal

17-27 bankruptcy laws concerning the corporation or any successor would be

17-28 commenced by any person.

17-29 Sec. 50. NRS 78.010 is hereby amended to read as follows:

17-30 78.010 1. As used in this chapter:

17-31 (a) "Approval" and "vote" as describing action by the directors or

17-32 stockholders mean the vote of directors in person or by written consent or

17-33 of stockholders in person, by proxy or by written consent.

17-34 (b) "Articles," "articles of incorporation" and "certificate of

17-35 incorporation" are synonymous terms and unless the context otherwise

17-36 requires, include all certificates filed pursuant to NRS 78.030, [78.195,]

17-37 78.1955, 78.209, 78.380, 78.385 and 78.390 and any articles of merger or

17-38 exchange filed pursuant to NRS 92A.200 to 92A.240, inclusive. Unless the

17-39 context otherwise requires, these terms include restated articles and

17-40 certificates of incorporation.

17-41 (c) "Directors" and "trustees" are synonymous terms.

17-42 (d) "Receiver" includes receivers and trustees appointed by a court as

17-43 provided in this chapter or in chapter 32 of NRS.

18-1 (e) "Registered office" means the office maintained at the street address

18-2 of the resident agent.

18-3 (f) "Resident agent" means the agent appointed by the corporation upon

18-4 whom process or a notice or demand authorized by law to be served upon

18-5 the corporation may be served.

18-6 (g) "Stockholder of record" means a person whose name appears on the

18-7 stock ledger of the corporation.

18-8 2. General terms and powers given in this chapter are not restricted by

18-9 the use of special terms, or by any grant of special powers contained in this

18-10 chapter.

18-11 Sec. 51. NRS 78.029 is hereby amended to read as follows:

18-12 78.029 [An incorporator or] Before the issuance of stock an

18-19 the original document as requested.]

18-20 Sec. 52. NRS 78.039 is hereby amended to read as follows:

18-21 78.039 1. The name proposed for a corporation must be

18-22 distinguishable from the names of all other artificial persons formed,

18-23 organized [or registered under chapter 78, 78A, 80, 81, 82, 84, 86, 87, 88

18-24 or 89 of NRS] , registered or qualified pursuant to the provisions of this

18-25 Title whose names are on file in the office of the secretary of state [.] and

18-26 all names reserved in that office pursuant to the provisions of this Title.

18-27 If a proposed name is not so distinguishable, the secretary of state shall

18-28 return the articles of incorporation containing the proposed name to the

18-29 incorporator, unless the written acknowledged consent of the holder of the

18-30 registered or reserved name to use the same name or the requested similar

18-31 name accompanies the articles of incorporation.

18-32 2. For the purposes of this section and NRS 78.040, a proposed name

18-33 is not [distinguished from a registered] distinguishable from a name on

18-34 file or reserved name solely because one or the other contains distinctive

18-35 lettering, a distinctive mark, a trade-mark or a trade name or any

18-36 combination of these.

18-37 3. The name of a corporation whose charter has been revoked [,] or

18-38 whose existence has otherwise terminated [, which has merged and is not

18-39 the surviving corporation, or which for any other reason is no longer in

18-40 good standing in this state] is available for use by any other artificial

18-41 person.

19-1 Sec. 53. NRS 78.040 is hereby amended to read as follows:

19-2 78.040 1. The secretary of state, when requested so to do, shall

19-3 reserve, for a period of 90 days, the right to use any name available under

19-4 NRS 78.039, for the use of any proposed corporation. During the period, a

19-5 name so reserved is not available for use by any [corporation, limited

19-6 partnership or limited-liability company without the] other artificial person

19-7 without the written, acknowledged consent of the person at whose request

19-8 the reservation was made.

19-9 2. The use by any [corporation, limited partnership or limited-liability

19-10 company] other artificial person of a name in violation of subsection 1 or

19-11 NRS 78.039 [or subsection 1 of this section] may be enjoined,

19-12 [notwithstanding the fact that the articles of incorporation or organization

19-13 of the corporation or limited-liability company, or the certificate of limited

19-14 partnership, may have] even if the document under which the artificial

19-15 person is formed, organized, registered or qualified has been filed by the

19-16 secretary of state.

19-17 Sec. 54. NRS 78.110 is hereby amended to read as follows:

19-18 78.110 1. If a corporation created pursuant to this chapter desires to

19-35 filing of the certificate of change.

19-36 Sec. 55. NRS 78.138 is hereby amended to read as follows:

19-37 78.138 1. Directors and officers shall exercise their powers in good

19-42 prepared or presented by:

20-1 (a) One or more directors, officers or employees of the corporation

20-2 reasonably believed to be reliable and competent in the matters prepared or

20-3 presented;

20-4 (b) Counsel, public accountants, or other persons as to matters

20-5 reasonably believed to be within the [preparer] preparer’s or presenter’s

20-6 professional or expert competence; or

20-7 (c) A committee on which the director or officer relying thereon does

20-8 not serve, established in accordance with NRS 78.125, as to matters within

20-9 the committee’s designated authority and matters on which the committee is

20-10 reasonably believed to merit confidence,

20-11 but a director or officer is not entitled to rely on such information, opinions,

20-12 reports, books of account or statements if he has knowledge concerning the

20-13 matter in question that would cause reliance thereon to be unwarranted.

20-14 3. Directors and officers, in deciding upon matters of business, are

20-15 presumed to act in good faith, upon information and with a view to the

20-16 interests of the corporation.

20-17 4. Directors and officers, in exercising their respective powers with a

20-18 view to the interests of the corporation, may consider:

20-19 (a) The interests of the corporation’s employees, suppliers, creditors and

20-20 customers;

20-21 (b) The economy of the state and nation;

20-22 (c) The interests of the community and of society; and

20-23 (d) The long-term as well as short-term interests of the corporation and

20-24 its stockholders, including the possibility that these interests may be best

20-25 served by the continued independence of the corporation. [This subsection

20-26 does]

20-27 5. Directors and officers are not required to consider the effect of a

20-28 proposed corporate action upon any particular group having an interest

20-29 in the corporation as a dominant factor.

20-30 6. The provisions of subsections 4 and 5 do not create or authorize

20-31 any causes of action against the corporation or its directors or officers.

20-32 [4. Directors may resist a change or potential change in control of the

20-33 corporation if the directors by a majority vote of a quorum determine that

20-34 the change or potential change is opposed to or not in the best interest of

20-35 the corporation:

20-36 (a) Upon consideration of the interests of the corporation’s stockholders

20-37 and any of the matters set forth in subsection 3; or

20-38 (b) Because the amount or nature of the indebtedness and other

20-39 obligations to which the corporation or any successor to the property of

20-40 either may become subject in connection with the change or potential

20-41 change in control provides reasonable grounds to believe that, within a

20-42 reasonable time:

21-1 (1) The assets of the corporation or any successor would be or

21-2 become less than its liabilities;

21-3 (2) The corporation or any successor would be or become insolvent;

21-4 or

21-5 (3) Any voluntary or involuntary proceeding under the federal

21-6 bankruptcy laws concerning the corporation or any successor would be

21-7 commenced by any person.]

21-8 Sec. 56. NRS 78.150 is hereby amended to read as follows:

21-9 78.150 1. A corporation organized under the laws of this state shall,

21-43 the secretary of state may return the list for correction or payment.

22-1 6. An annual list for a corporation not in default which is received by

22-2 the secretary of state more than 60 days before its due date shall be deemed

22-3 an amended list for the previous year.

22-4 7. If the corporation is an association as defined in NRS 116.110315,

22-5 the secretary of state shall not accept the filing required by this section

22-6 unless it is accompanied by the fee required to be paid pursuant to NRS

22-7 116.31155.

22-8 Sec. 57. NRS 78.185 is hereby amended to read as follows:

22-9 78.185 1. Except as otherwise provided in subsection 2, if a

22-31 trade-mark or a trade name or any combination of those.

22-32 Sec. 58. NRS 78.195 is hereby amended to read as follows:

22-33 78.195 1. If a corporation desires to have more than one class or

22-43 designation of each class or series of stock must be described in the articles

23-1 of incorporation or the resolution of the board of directors before the

23-2 issuance of shares of that class or series.

23-3 2. All shares of a series must have voting powers, designations,

23-4 preferences, limitations, restrictions and relative rights identical with those

23-5 of other shares of the same series and, except to the extent otherwise

23-6 provided in the description of the series, with those of other series of the

23-7 same class.

23-8 3. Unless otherwise provided in the articles of incorporation, no stock

23-9 issued as fully paid up may ever be assessed and the articles of

23-10 incorporation must not be amended in this particular.

23-11 4. Any rate, condition or time for payment of distributions on any class

23-12 or series of stock may be made dependent upon any fact or event which

23-13 may be ascertained outside the articles of incorporation or the resolution

23-14 providing for the distributions adopted by the board of directors if the

23-15 manner in which a fact or event may operate upon the rate, condition or

23-16 time of payment for the distributions is stated in the articles of

23-17 incorporation or the resolution.

23-18 5. [If the corporation is authorized to issue more than one class of

23-19 stock or more than one series of any class, the voting powers, designations,