[Rev. 2/10/2015 4:09:27
PM--2014R2]
CHAPTER 88A - BUSINESS TRUSTS
GENERAL PROVISIONS
NRS 88A.010 Definitions.
NRS 88A.020 “Beneficial
owner” defined.
NRS 88A.030 “Business
trust” defined.
NRS 88A.040 “Foreign
business trust” defined.
NRS 88A.050 “Governing
instrument” defined.
NRS 88A.057 “Registered
agent” defined.
NRS 88A.060 “Registered
office” defined.
NRS 88A.110 “Trustee”
defined.
APPLICABILITY
NRS 88A.150 Applicability
of chapter to foreign and interstate commerce.
NRS 88A.160 Applicability
of laws pertaining to trusts; principle of freedom of contract and
enforceability of governing instruments.
NRS 88A.170 Provisions
of chapter may be altered or repealed.
FORMATION
NRS 88A.200 Purpose;
prohibition against formation of business trust for certain illegal purposes.
NRS 88A.210 Filing
requirements; required and optional provisions of certificate of trust.
NRS 88A.215 Penalty
for purporting to do business as business trust without filing certificate of
trust; enforcement; regulations.
NRS 88A.220 Amendment
and restatement of certificate of trust.
NRS 88A.230 Name
of trust: Distinguishable name required; availability of name of revoked,
merged or otherwise terminated trust; regulations.
NRS 88A.240 Name
of trust: Reservation; injunctive relief.
NRS 88A.250 Certificate
of amendment, restatement or cancellation and articles of merger: Filing and
effectiveness of certificates and articles.
NRS 88A.260 Perpetual
existence of trust; artificial person formed pursuant to other laws who is
beneficial owner or trustee; inapplicability of certain laws.
NRS 88A.270 Governing
instrument: Optional provisions.
NRS 88A.280 Governing
instrument: Optional provisions relating to management of trust and rights,
duties and obligations of trustees, beneficial owners and other persons.
OPERATION
NRS 88A.300 General
powers.
NRS 88A.310 Management
of business and affairs by trustees; giving directions to trustees.
NRS 88A.320 Ownership
of beneficial interest in trust: Participation in profits and losses; creditor
of beneficial owner; personal property; evidence of interest; transferability;
distributions.
NRS 88A.330 Beneficial
owners: Contributions to trust; obligations; penalties.
NRS 88A.340 Maintenance
of records at registered office.
NRS 88A.345 Information
concerning records; requirement to assist in criminal investigation; failure to
comply; regulations.
NRS 88A.350 Right
of beneficial owners to inspect and copy ledger; denial of inspection.
NRS 88A.360 Duties
and liabilities of trustee.
NRS 88A.370 Duties
and liabilities of officer, employee, manager or other person acting pursuant
to certificate of trust or governing instrument.
NRS 88A.380 Enforceability
of debts, liabilities, obligations and expenses against assets of series of
trustees, beneficial owners or beneficial interests.
NRS 88A.390 Liability
of beneficial owner, trustee, officer, agent, manager or employee for debts or
liabilities of trust.
NRS 88A.400 Indemnification
of trustee, beneficial owner or other person.
NRS 88A.410 Derivative
actions: Authority of beneficial owner to bring action; qualifications of
plaintiff; pleading; expenses.
NRS 88A.420 Cancellation
of certificate of trust upon termination of trust.
REGISTERED AGENT
NRS 88A.500 Requirement;
address; penalty for noncompliance.
NRS 88A.520 Powers;
service of process, demand or notice.
NRS 88A.530 Resignation
of registered agent or termination of registration of commercial registered
agent.
ANNUAL LIST; DEFAULTING TRUSTS
NRS 88A.600 Filing
requirements; fee; notice; regulations.
NRS 88A.610 Certificate
of authorization to transact business.
NRS 88A.620 Addresses
of trustees required; failure to file.
NRS 88A.630 Defaulting
trusts: Identification; penalty.
NRS 88A.640 Defaulting
trusts: Duties of Secretary of State; forfeiture of right to transact business;
assets held in trust.
NRS 88A.650 Defaulting
trusts: Conditions and procedure for reinstatement.
NRS 88A.660 Defaulting
trusts: Reinstatement under old or new name.
FOREIGN BUSINESS TRUSTS
NRS 88A.700 Laws
governing organization, internal affairs and liability of beneficial owners,
trustees, officers, employees and managers.
NRS 88A.710 Filing
requirements; required provisions of application for registration; prohibition
against registration for certain illegal purposes.
NRS 88A.720 Issuance
of certificate of registration by Secretary of State.
NRS 88A.730 Registration
of name.
NRS 88A.732 Annual
list: Filing requirements; fees; powers and duties of Secretary of State;
regulations.
NRS 88A.733 Certificate
of authorization to transact business.
NRS 88A.734 Addresses
of trustees required; failure to file.
NRS 88A.7345 List
or statement to be maintained at registered office; requirement to assist in
criminal investigation; failure to comply; regulations.
NRS 88A.735 Defaulting
trusts: Identification; forfeiture of right to transact business; penalty.
NRS 88A.736 Defaulting
trusts: Duties of Secretary of State.
NRS 88A.737 Defaulting
trusts: Conditions and procedure for reinstatement.
NRS 88A.738 Defaulting
trusts: Reinstatement under old or new name; regulations.
NRS 88A.740 Cancellation
of registration.
NRS 88A.750 Penalty
for transacting business without registration; enforcement; regulations.
MISCELLANEOUS PROVISIONS
NRS 88A.890 Form
required for filing of records.
NRS 88A.900 Fees.
NRS 88A.910 Manner
in which record may be filed.
NRS 88A.920 Procedure
to submit replacement page to Secretary of State before actual filing of
record.
NRS 88A.930 Correction
of inaccurate or defective record filed with Secretary of State; cancellation
of filings.
NRS 88A.940 Secretary
of State authorized to adopt certain regulations to allow business trust to
carry out powers and duties through most recent technology.
_________
GENERAL PROVISIONS
NRS 88A.010 Definitions. As
used in this chapter, unless the context otherwise requires, the words and
terms defined in NRS 88A.020 to 88A.110, inclusive, have the meanings ascribed to
them in those sections.
(Added to NRS by 1999, 1561; A 2003, 3155; 2007, 2695)
NRS 88A.020 “Beneficial owner” defined. “Beneficial
owner” means the owner of a beneficial interest in a business trust.
(Added to NRS by 1999, 1561)
NRS 88A.030 “Business trust” defined. “Business
trust” means an unincorporated association which:
1. Is created by a governing instrument
under which property is held, administered, managed, controlled, invested,
reinvested or operated, or any combination of these, or business or
professional activities for profit are carried on, by a trustee or trustees for
the benefit of the persons entitled to a beneficial interest in the trust
property or as otherwise provided in the governing instrument; and
2. Files a certificate of trust pursuant
to NRS 88A.210.
Ê The term
includes, without limitation, a trust of the type known at common law as a
business trust or Massachusetts trust, a trust qualifying as a real estate
investment trust pursuant to 26 U.S.C. §§ 856 et seq., as amended, or any
successor provision, or a trust qualifying as a real estate mortgage investment
conduit pursuant to 26 U.S.C. § 860D, as amended, or any successor provision.
(Added to NRS by 1999, 1561; A 2001, 1401, 3199; 2011, 2808)
NRS 88A.040 “Foreign business trust” defined. “Foreign
business trust” means a business trust formed pursuant to the laws of a foreign
nation or other foreign jurisdiction and denominated as such pursuant to those
laws.
(Added to NRS by 1999, 1561)
NRS 88A.050 “Governing instrument” defined. “Governing
instrument” means any one or more instruments, whether referred to as a trust
instrument, declaration of trust or otherwise, that create a trust and provide
for the governance of its affairs and the conduct of its business.
(Added to NRS by 1999, 1561; A 2003, 3156; 2011, 2808)
NRS 88A.057 “Registered agent” defined. “Registered
agent” has the meaning ascribed to it in NRS
77.230.
(Added to NRS by 2007, 2695)
NRS 88A.060 “Registered office” defined. “Registered
office” means the office of a business trust maintained at the street address
of its registered agent.
(Added to NRS by 1999, 1561; A 2007, 2695)
NRS 88A.110 “Trustee” defined. “Trustee”
means the person or persons appointed as trustee in accordance with the
governing instrument of a business trust.
(Added to NRS by 1999, 1562)
APPLICABILITY
NRS 88A.150 Applicability of chapter to foreign and interstate commerce. The provisions of this chapter apply to
commerce with foreign nations and among the several states. It is the intention
of the Legislature by enactment of this chapter that the legal existence of
business trusts formed pursuant to this chapter be recognized beyond the limits
of this State and that, subject to any reasonable requirement of registration,
any such business trust transacting business outside this State be granted
protection of full faith and credit pursuant to Section 1 of Article IV of the
Constitution of the United States.
(Added to NRS by 1999, 1562)
NRS 88A.160 Applicability of laws pertaining to trusts; principle of freedom
of contract and enforceability of governing instruments.
1. Except as otherwise provided in the
certificate of trust, the governing instrument or this chapter, the laws of
this State pertaining to trusts apply to a business trust.
2. In applying the provisions of this
chapter, the court shall give the greatest effect to the principle of freedom
of contract and the enforceability of governing instruments.
(Added to NRS by 1999, 1573)
NRS 88A.170 Provisions of chapter may be altered or repealed. All provisions of this chapter 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.
(Added to NRS by 1999, 1574)
FORMATION
NRS 88A.200 Purpose; prohibition against formation of business trust for
certain illegal purposes.
1. A business trust may be formed to carry
on any lawful business or activity.
2. A person shall not form a business
trust for any illegal purpose or with the fraudulent intent to conceal any
business activity, or lack thereof, from another person or a governmental
agency.
(Added to NRS by 1999, 1562; A 2013, 889)
NRS 88A.210 Filing requirements; required and optional provisions of
certificate of trust.
1. One or more persons may create a
business trust by adopting a governing instrument and signing and filing with
the Secretary of State a certificate of trust. The certificate of trust must
set forth:
(a) The name of the business trust;
(b) The name and address, either residence or
business, of at least one trustee;
(c) The information required pursuant to NRS 77.310;
(d) The name and address, either residence or
business, of each person signing the certificate of trust; and
(e) Any other information the trustees determine
to include.
2. Upon the filing of the certificate of
trust with the Secretary of State and the payment to the Secretary of State of
the required filing fee, the Secretary of State shall issue to the business
trust a certificate that the required records with the required content have
been filed. From the date of that filing, the business trust is legally formed
pursuant to this chapter.
3. Except as otherwise provided in the
governing instrument, a business trust organized on or after October 1, 2011,
is deemed to be an entity separate from its trustee or trustees and beneficial
owner. Except as otherwise provided in the governing instrument, a business
trust may hold or take title to property in its own name, or in the name of a
trustee in the trustee’s capacity as trustee, whether in an active, passive or
custodial capacity. The provisions of this subsection do not change the status
of any business trust existing as an entity or aggregation before October 1,
2011.
4. Neither the use of the designation
“business trust” nor a statement in a governing instrument or certificate of
trust to the effect that the trust formed thereby is or will qualify as a
business trust under this chapter creates a presumption or inference that the
trust so formed is a business trust for the purposes of Title 11 of the United
States Code.
(Added to NRS by 1999, 1562; A 2003, 3156; 2005, 2268; 2007, 2695; 2011, 2809)
NRS 88A.215 Penalty for purporting to do business as business trust without
filing certificate of trust; enforcement; regulations.
1. Every person, other than a foreign
business trust, who is purporting to do business in this State as a business
trust and who willfully fails or neglects to file with the Secretary of State a
certificate of trust is subject to a fine of not less than $1,000 but not more
than $10,000, to be recovered in a court of competent jurisdiction.
2. When the Secretary of State is advised
that a person, other than a foreign business trust, is subject to the fine
described in subsection 1, the Secretary of State may, as soon as practicable,
refer the matter to the district attorney of the county in which the person’s
principal place of business is located or the Attorney General, or both, for a
determination of whether to institute proceedings to recover the fine. The
district attorney of the county in which the person’s principal place of
business is located or the Attorney General may institute and prosecute the
appropriate proceedings to recover the fine. If the district attorney or the
Attorney General prevails in a proceeding to recover the fine described in
subsection 1, the district attorney or the Attorney General is entitled to
recover the costs of the proceeding, including, without limitation, the cost of
any investigation and reasonable attorney’s fees.
3. In the course of an investigation of a
violation of this section, the Secretary of State may require a person to
answer any interrogatory submitted by the Secretary of State that will assist
in the investigation.
4. The Secretary of State may adopt regulations
to administer the provisions of this section.
(Added to NRS by 2009, 1713;
A 2013, 889)
NRS 88A.220 Amendment and restatement of certificate of trust.
1. A certificate of trust may be amended
by filing with the Secretary of State a certificate of amendment signed by at
least one trustee. The certificate of amendment must set forth:
(a) The name of the business trust; and
(b) The amendment to the certificate of trust.
2. A certificate of trust may be restated
by integrating into a single instrument all the provisions of the original
certificate, and all amendments to the certificate, which are then in effect or
are to be made by the restatement. The restated certificate of trust must be so
designated in its heading, must be signed by at least one trustee and must set
forth:
(a) The present name of the business trust;
(b) The provisions of the original certificate of
trust, and all amendments to the certificate, which are then in effect; and
(c) Any further amendments to the certificate of
trust.
3. A certificate of trust may be amended
or restated at any time for any purpose determined by the trustees.
(Added to NRS by 1999, 1562; A 2001, 1401, 3199; 2003,
20th Special Session, 105)
NRS 88A.230 Name of trust: Distinguishable name required; availability of
name of revoked, merged or otherwise terminated trust; regulations.
1. The name of a business trust formed
pursuant to the provisions of this chapter must contain the words “Business
Trust” or the abbreviation “B.T.” or “BT.”
2. The name proposed for a business trust
must be distinguishable on the records of the Secretary of State from the names
of all other artificial persons formed, organized, registered or qualified
pursuant to the provisions of this title that are on file in the Office of the
Secretary of State and all names that are reserved in the Office of the
Secretary of State pursuant to the provisions of this title. If a proposed name
is not so distinguishable, the Secretary of State shall return the certificate
of trust containing it to the signers of the certificate, unless the written,
acknowledged consent of the holder of the name on file or reserved name to use
the same name or the requested similar name accompanies the certificate.
3. For the purposes of this section and NRS 88A.240, a proposed name is not distinguishable
from a name on file or reserved name solely because one or the other contains
distinctive lettering, a distinctive mark, a trademark or trade name, or any
combination of these.
4. The name of a business trust whose
certificate of trust has been revoked, which has merged and is not the
surviving entity or whose existence has otherwise terminated is available for
use by any other artificial person.
5. The Secretary of State may adopt
regulations that interpret the requirements of this section.
(Added to NRS by 1999, 1563)
NRS 88A.240 Name of trust: Reservation; injunctive relief.
1. The Secretary of State, when requested
to do so, shall reserve, for a period of 90 days, the right to use a name
available pursuant to NRS 88A.230 for the use of a
proposed business trust. During the period, the name so reserved is not
available for use or reservation by any other artificial person forming,
organizing, registering or qualifying in the Office of the Secretary of State
pursuant to the provisions of this title without the signed consent of the
person at whose request the reservation was made.
2. The use by any artificial person of a
name in violation of subsection 1 or NRS 88A.230
may be enjoined, even if the record under which the artificial person is
formed, organized, registered or qualified has been filed by the Secretary of
State.
(Added to NRS by 1999, 1563; A 2001, 101; 2003, 3156)
NRS 88A.250 Certificate of amendment, restatement or cancellation and
articles of merger: Filing and effectiveness of certificates and articles.
1. A certificate of amendment or
restatement filed with the Secretary of State pursuant to this chapter is
effective:
(a) At the time of the filing of the certificate
or restatement with the Secretary of State;
(b) Upon a later date and time as specified in
the certificate, which date must not be more than 90 days after the date on
which the certificate or restatement is filed with the Secretary of State; or
(c) If the certificate or restatement specifies a
later effective date but does not specify an effective time, at 12:01 a.m. in
the Pacific time zone on the specified later date.
Ê At the
effective time of the certificate or restatement, the certificate of trust is
amended or restated as set forth in the certificate or restatement.
2. A certificate of cancellation or the
articles of merger in which the business trust is not a surviving entity are
effective:
(a) At the time of the filing of the certificate
or articles with the Secretary of State;
(b) Upon a later date and time as specified in
the certificate or articles, which date must not be more than 90 days after the
date on which the certificate or articles are filed with the Secretary of
State; or
(c) If the certificate or articles specify a
later effective date but do not specify an effective time, at 12:01 a.m. in the
Pacific time zone on the specified later date.
Ê At the
effective time of the certificate or articles, the certificate of trust is
cancelled.
(Added to NRS by 1999, 1563; A 2011, 2809)
NRS 88A.260 Perpetual existence of trust; artificial person formed pursuant
to other laws who is beneficial owner or trustee; inapplicability of certain
laws.
1. Except as otherwise provided in the
certificate of trust, the governing instrument or this chapter, a business
trust has perpetual existence and may not be terminated or revoked by a
beneficial owner or other person except in accordance with the certificate of
trust or governing instrument.
2. Except as otherwise provided in the
certificate of trust or the governing instrument, the death, incapacity,
dissolution, termination or bankruptcy of a beneficial owner does not result in
the termination or dissolution of a business trust.
3. An artificial person formed or
organized pursuant to the laws of a foreign nation or other foreign
jurisdiction or the laws of another state shall not be deemed to be doing
business in this State solely because it is a beneficial owner or trustee of a
business trust.
4. The provisions of NRS 662.245 do not apply to the
appointment of a trustee of a business trust formed pursuant to this chapter.
5. A business trust or any series thereof
does not terminate because the same person is the sole trustee and sole
beneficial owner.
(Added to NRS by 1999, 1564; A 2011, 2810)
NRS 88A.270 Governing instrument: Optional provisions. A governing instrument may consist of one or
more agreements, instruments or other writings and may include or incorporate
bylaws containing provisions relating to the business of the business trust, the
conduct of its affairs, and its rights or powers or the rights or powers of its
trustees, beneficial owners, agents or employees. The governing instrument may
provide that one or more of the beneficial owners may serve as trustee.
(Added to NRS by 1999, 1564)
NRS 88A.280 Governing instrument: Optional provisions relating to management
of trust and rights, duties and obligations of trustees, beneficial owners and
other persons. A governing
instrument may contain any provision relating to the management or the business
or affairs of the business trust and the rights, duties and obligations of the
trustees, beneficial owners and other persons which is not contrary to a
provision or requirement of this chapter and may:
1. Provide for classes, groups or series
of trustees or beneficial owners, or of beneficial interests, having such
relative rights, powers and duties as the governing instrument provides, and
may provide for the future creation in the manner provided in the governing
instrument of additional such classes having such relative rights, powers and
duties as may from time to time be established, including rights, powers and
duties senior or subordinate to existing classes, groups or series.
2. Provide that a person becomes a
beneficial owner and bound by the governing instrument if the person, or the
person’s representative authorized orally, in writing or by action such as
payment for a beneficial interest, complies with the conditions for becoming a
beneficial owner set forth in the governing instrument or any other writing and
acquires a beneficial interest.
3. Establish or provide for a designated
series of trustees, beneficial owners or beneficial interests having separate
rights, powers or duties with respect to specified property or obligations of
the business trust or profits and losses associated with specified property or
obligations, and, to the extent provided in the governing instrument, any such
series may have a separate business purpose or investment objective.
4. Provide for the taking of any action,
including the amendment of the governing instrument, the accomplishment of a
merger, the appointment of one or more trustees, the sale, lease, transfer,
pledge or other disposition of all or any part of the assets of the business
trust or the assets of any series, or the dissolution of the business trust,
and the creation of a class, group or series of beneficial interests that was
not previously outstanding, without the vote or approval of any particular
trustee or beneficial owner or class, group or series of trustees or beneficial
owners.
5. Grant to or withhold from all or
certain trustees or beneficial owners, or a specified class, group or series of
trustees or beneficial owners, the right to vote, separately or with one or
more of the trustees, beneficial owners or classes, groups or series thereof,
on any matter. Voting power may be apportioned per capita, proportionate to
financial interest, by class, group or series, or on any other basis.
6. If and to the extent that voting rights
are granted under the certificate of trust or governing instrument, set forth
provisions relating to notice of the time, place or purpose of a meeting at
which a matter will be voted on, waiver of notice, action by consent without a
meeting, the establishment of record dates, requirement of a quorum, voting in
person, by proxy or otherwise, or any other matter with respect to the exercise
of the right to vote.
7. Provide for the present or future
creation of more than one business trust, including the creation of a future
business trust to which all or any part of the assets, liabilities, profits or
losses of any existing business trust are to be transferred, and for the
conversion of beneficial interests in an existing business trust, or series
thereof, into beneficial interests in the separate business trust or a series
thereof.
8. Provide for the appointment, election
or engagement, either as agents or independent contractors of the business
trust or as delegates of the trustees, of officers, employees, managers or
other persons who may manage the business and affairs of the business trust and
have such titles and relative rights, powers and duties as the governing
instrument provides. Except as otherwise provided in the governing instrument,
the trustees shall choose and supervise those officers, managers and other
persons.
(Added to NRS by 1999, 1569)
OPERATION
NRS 88A.300 General powers. A
business trust formed and existing pursuant to this chapter has such powers as
are necessary or convenient to effect any of the purposes for which the
business trust is formed.
(Added to NRS by 1999, 1569)
NRS 88A.310 Management of business and affairs by trustees; giving
directions to trustees.
1. Except as otherwise provided in this
section, the certificate of trust or the governing instrument, the business and
affairs of a business trust must be managed by or under the direction of its
trustees. To the extent provided in the certificate of trust or the governing
instrument, any person, including a beneficial owner, may direct the trustees
or other persons in the management of the business trust.
2. Except as otherwise provided in the
certificate of trust or the governing instrument, neither the power to give
direction to a trustee or other person nor the exercise thereof by any person,
including a beneficial owner, makes the person a trustee. To the extent
provided in the certificate of trust or the governing instrument, neither the
power to give direction to a trustee or other person nor the exercise thereof
by a person, including a beneficial owner, causes the person to have duties,
fiduciary or other, or liabilities relating to the power or its exercise to the
business trust or a beneficial owner thereof.
(Added to NRS by 1999, 1569)
NRS 88A.320 Ownership of beneficial interest in trust: Participation in
profits and losses; creditor of beneficial owner; personal property; evidence
of interest; transferability; distributions.
1. Except as otherwise provided in the
governing instrument, a beneficial owner participates in the profits and losses
of a business trust in the proportion of his or her beneficial interest to the
entire beneficial interest. A governing instrument may provide that the
business trust, or the trustees on its behalf, hold beneficial ownership of
income earned on securities owned by the business trust.
2. A creditor of a beneficial owner has no
right to obtain possession of, or otherwise exercise legal or equitable
remedies with respect to, property of the business trust.
3. A beneficial interest in a business
trust is personal property regardless of the nature of the property of the
business trust. Except as otherwise provided in the certificate of trust or the
governing instrument, a beneficial owner has no interest in specific property
of the business trust.
4. A beneficial interest in a business trust
may be evidenced by the issuance of certificates of ownership or by other means
set forth in the certificate of trust or the governing instrument.
5. Except as otherwise provided in the
certificate of trust or the governing instrument, a beneficial interest in a
business trust is freely transferable.
6. Except as otherwise provided in the
certificate of trust or the governing instrument, if a beneficial owner becomes
entitled to receive a distribution, the beneficial owner has the status of, and
is entitled to all remedies available to, a creditor of the business trust with
respect to the distribution. The governing instrument may provide for the
establishment of record dates with respect to allocations and distributions by
a business trust.
7. The fact of ownership of a beneficial
interest in a business trust is determined, and the means of evidencing it are
set forth, by the applicable provisions of the certificate of trust or the
governing instrument.
(Added to NRS by 1999, 1564)
NRS 88A.330 Beneficial owners: Contributions to trust; obligations;
penalties.
1. A contribution of a beneficial owner to
a business trust may be any tangible or intangible property or benefit to the
business trust, including cash, a promissory note, services performed, a
contract for services to be performed, or a security of the business trust. A
person may become a beneficial owner of a business trust and may receive a
beneficial interest in a business trust without making, or being obligated to
make, a contribution to the business trust.
2. Except as otherwise provided in the
certificate of trust or the governing instrument, a beneficial owner is
obligated to the business trust to perform a promise to make a contribution
even if the beneficial owner is unable to perform because of death, disability
or any other reason. If a beneficial owner does not make a promised
contribution of property or services, the beneficial owner is obligated at the
option of the business trust to contribute cash equal to that portion of the
agreed value, as stated in the records of the business trust, of the
contribution which has not been made. The foregoing option is in addition to
any other rights, including specific performance, that the business trust may
have against the beneficial owner under the governing instrument or applicable
law.
3. A certificate of trust or governing
instrument may provide that the interest of a beneficial owner who fails to
make a contribution that the beneficial owner is obligated to make is subject
to specific penalties for, or specified consequences of, such failure. The
penalty or consequence may take the form of reducing or eliminating the
defaulting beneficial owner’s proportionate interest in the business trust,
subordinating that beneficial interest to those of nondefaulting owners, a
forced sale of the beneficial interest, forfeiture of the beneficial interest,
the lending by other beneficial owners of the amount necessary to meet the
defaulter’s commitment, a fixing of the value of the beneficial interest by
appraisal or formula and redemption or sale of the beneficial interest at that
value, or any other form.
(Added to NRS by 1999, 1571)
NRS 88A.340 Maintenance of records at registered office.
1. A business trust shall keep a copy of
the following records at its registered office:
(a) A copy certified by the Secretary of State of
its certificate of trust and all amendments thereto or restatements thereof;
(b) A copy certified by one of its trustees of
its governing instrument and all amendments thereto; and
(c) A ledger or duplicate ledger, revised
annually, containing the names, alphabetically arranged, of all its beneficial
owners, showing their places of residence if known. Instead of this ledger, the
business trust may keep a statement containing the name of the custodian of the
ledger and the present complete address, including street and number, if any,
where the ledger is kept.
2. A business trust shall maintain the
records required by subsection 1 in written form or in another form capable of
conversion into written form within a reasonable time.
(Added to NRS by 1999, 1566)
NRS 88A.345 Information concerning records; requirement to assist in
criminal investigation; failure to comply; regulations.
1. Upon the request of the Secretary of
State, a business trust shall:
(a) Provide the Secretary of State with the name
and contact information of the custodian of the ledger, duplicate ledger or
statement described in subsection 1 of NRS 88A.340.
The information required pursuant to this paragraph shall be kept confidential
by the Secretary of State.
(b) Provide written notice to the Secretary of
State within 10 days after any change in the information contained in the
ledger, duplicate ledger or statement described in subsection 1 of NRS 88A.340.
2. Upon the request of any law enforcement
agency in the course of a criminal investigation, the Secretary of State may
require a business trust to:
(a) Submit to the Secretary of State, within 3
business days, a copy of the ledger, duplicate ledger or statement required to
be maintained pursuant to subsection 1 of NRS 88A.340;
or
(b) Answer any interrogatory submitted by the
Secretary of State that will assist in the criminal investigation.
3. If a business trust fails to comply
with any requirement pursuant to subsection 2, the Secretary of State may take
any action necessary, including, without limitation, the suspension or
revocation of the certificate of trust.
4. The Secretary of State shall not
reinstate or revive a certificate of trust that was revoked or suspended
pursuant to subsection 3 unless:
(a) The business trust complies with the
requirements of subsection 2; or
(b) The law enforcement agency conducting the
investigation advises the Secretary of State to reinstate or revive the
business trust.
5. The Secretary of State may adopt regulations
to administer the provisions of this section.
(Added to NRS by 2007, 1332; A 2009, 2854)
NRS 88A.350 Right of beneficial owners to inspect and copy ledger; denial of
inspection.
1. A person who has been a beneficial
owner of record of a business trust for at least 6 months immediately preceding
the person’s demand, or a person holding, or authorized in writing by the
holders of, at least 5 percent of its beneficial ownership, is entitled, upon
at least 5 days’ written demand, to inspect in person or by agent or attorney,
during usual business hours, the ledger or duplicate ledger, whether kept in
the registered office of the business trust or elsewhere, and to make copies
therefrom.
2. An inspection authorized by subsection
1 may be denied to a beneficial owner or other person upon the refusal of the
beneficial owner or other person to furnish to the business trust an affidavit
that the inspection is not desired for a purpose which is in the interest of a
business or object other than the business of the business trust and that the
beneficial owner or other person has not at any time sold or offered for sale
any list of beneficial owners of a domestic or foreign business trust, stockholders
of a domestic or foreign corporation or members of a domestic or foreign
limited-liability company, or aided or abetted any person in procuring such a
list for such a purpose.
(Added to NRS by 1999, 1567)
NRS 88A.360 Duties and liabilities of trustee.
1. Except as otherwise provided in the
governing instrument but subject to the provisions of subsection 3, a trustee
shall act in good faith and in a manner the trustee reasonably believes to be
in the best interest of the business trust.
2. If there is at least one trustee of a
series trust that, in discharging its duties, is obligated to consider the
interests of the trust and all series thereof, the governing instrument may
provide that one or more other trustees, in discharging their duties, may
consider only the interest of the trust or one or more series thereof.
3. The governing instrument may expand,
restrict or eliminate the duties of the trustee of a business trust, except
that a governing instrument may not eliminate the implied contractual covenant
of good faith and fair dealing.
4. If the trustee acts pursuant to a
governing instrument, the trustee is not liable to the business trust or to a
beneficial owner for the trustee’s reliance in good faith on the provisions of
the governing instrument.
(Added to NRS by 1999, 1571; A 2011, 2810)
NRS 88A.370 Duties and liabilities of officer, employee, manager or other
person acting pursuant to certificate of trust or governing instrument. To the extent that, at law or in equity, an
officer, employee, manager or other person acting pursuant to the certificate
of trust or a governing instrument has duties, fiduciary or otherwise, and
liabilities relating thereto to a business trust, beneficial owner or trustee:
1. If such a person acts pursuant to a
governing instrument, the person is not liable to the business trust, a
beneficial owner or a trustee for the person’s reliance in good faith on the
provisions of the governing instrument; and
2. The duties and liabilities of such a
person may be expanded or restricted by provisions in the governing instrument.
(Added to NRS by 1999, 1571)
NRS 88A.380 Enforceability of debts, liabilities, obligations and expenses
against assets of series of trustees, beneficial owners or beneficial
interests. The debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing with
respect to a particular series of trustees, beneficial owners or beneficial interests
are enforceable against the assets of only that series only if:
1. The governing instrument of the
business trust creates one or more series of trustees, beneficial owners or
beneficial interests;
2. Separate records are maintained for the
series;
3. The assets associated with the series
are held and accounted for separately from the other assets of the business
trust or any other series of the business trust and the governing instrument
requires separate holding and accounting; and
4. Notice of the limitation on liability
of the series is set forth in the certificate of trust, or an amendment
thereto, filed with the Secretary of State before the series is established.
(Added to NRS by 1999, 1571)
NRS 88A.390 Liability of beneficial owner, trustee, officer, agent, manager
or employee for debts or liabilities of trust.
1. Unless otherwise provided in the
certificate of trust, the governing instrument or an agreement signed by the
person to be charged, a beneficial owner, trustee, officer, agent, manager or
employee of a business trust formed pursuant to the laws of this State is not
personally liable for the debts or liabilities of the business trust.
2. Except as otherwise provided in the
certificate of trust or the governing instrument, a trustee acting in that
capacity is not personally liable to any person other than the business trust
or a beneficial owner for any act or omission of the business trust or a
trustee thereof.
3. Except as otherwise provided in the
certificate of trust or the governing instrument, an officer, employee, agent
or manager of a business trust or another person who manages the business and
affairs of a business trust, acting in that capacity, is not personally liable to
any person other than the business trust or a beneficial owner for any act or
omission of the business trust or a trustee thereof.
4. Except as otherwise provided in the
certificate of trust or the governing instrument, a trustee, officer, employee,
agent or manager of a business trust or another person who manages the business
and affairs of a business trust is not personally liable to the business trust
or a beneficial owner for damages for breach of fiduciary duty in such capacity
except for acts or omissions that involve intentional misconduct, fraud or a
knowing violation of law.
(Added to NRS by 1999, 1572)
NRS 88A.400 Indemnification of trustee, beneficial owner or other person.
1. Subject to the standards and
restrictions, if any, set forth in the certificate of trust or the governing
instrument, a business trust may indemnify and hold harmless a trustee, beneficial
owner or other person from and against all claims and demands.
2. The absence of a provision for
indemnity in the certificate of trust or governing instrument does not deprive
a trustee or beneficial owner of any right to indemnity which is otherwise
available to the trustee or beneficial owner pursuant to the laws of this
State.
(Added to NRS by 1999, 1572)
NRS 88A.410 Derivative actions: Authority of beneficial owner to bring
action; qualifications of plaintiff; pleading; expenses.
1. A beneficial owner may maintain an
action in the right of a business trust to recover a judgment in its favor if
trustees having authority to do so have refused to bring the action or if an
effort to cause those trustees to bring the action is unlikely to succeed.
2. In a derivative action, the plaintiff
must be a beneficial owner at the time of bringing the action and:
(a) The plaintiff must have been a beneficial
owner at the time of the transaction of which the plaintiff complains; or
(b) The plaintiff’s status as a beneficial owner
must have devolved upon the plaintiff by operation of law or pursuant to a
provision of the certificate of trust or the governing instrument from a person
who was a beneficial owner at the time of the transaction.
3. In a derivative action, the complaint
must state with particularity the effort, if any, of the plaintiff to cause the
trustees to bring the act, or the reasons for not making the effort.
4. If a derivative action is successful,
in whole or in part, or if anything is received by the business trust through
judgment or settlement of the action, the court may award the plaintiff reasonable
expenses, including attorney’s fees. If the plaintiff receives any proceeds of
judgment or settlement, the court shall make the award of the plaintiff’s
expenses payable from those proceeds and remit the remainder to the business
trust. If the proceeds received by the plaintiff are less than the expenses
awarded, the court may direct all or part of the remainder of the award to be
paid by the business trust.
5. A beneficial owner’s right to bring a
derivative action may be subject to additional standards and restrictions set
forth in the governing instrument, including, without limitation, a requirement
that beneficial owners of a specified beneficial interest join in the action.
(Added to NRS by 1999, 1573)
NRS 88A.420 Cancellation of certificate of trust upon termination of trust.
1. A certificate of trust must be
cancelled upon the completion or winding up of the business trust and its
termination. A certificate of cancellation must be signed by a trustee, filed
with the Secretary of State, and set forth:
(a) The name of the business trust;
(b) The effective date and time of the
cancellation if other than the time of the filing of the certificate, which
date must not be more than 90 days after the date on which the certificate is
filed; and
(c) Any other information the trustee determines
to include.
2. If a certificate filed pursuant to
subsection 1 specifies a later effective date but does not specify an effective
time, the cancellation of the certificate of trust is effective at 12:01 a.m.
in the Pacific time zone on the specified later date.
(Added to NRS by 1999, 1573; A 2003,
20th Special Session, 105; 2005, 2200; 2011, 2810)
REGISTERED AGENT
NRS 88A.500 Requirement; address; penalty for noncompliance.
1. A business trust shall have a
registered agent who resides or is located in this State. A registered agent
shall have a street address for the service of process and may have a mailing
address such as a post office box, which may be different from the street address.
2. A business trust formed pursuant to
this chapter that fails or refuses to comply with the requirements of this
section is subject to a fine of not less than $100 nor more than $500, to be
recovered with costs by the State, before any court of competent jurisdiction,
by action at law prosecuted by the Attorney General or by the district attorney
of the county in which the action or proceeding to recover the fine is
prosecuted.
(Added to NRS by 1999, 1565; A 2007, 2695)
NRS 88A.520 Powers; service of process, demand or notice.
1. If the registered agent is a bank or an
artificial person formed or organized pursuant to this title, it may:
(a) Act as the fiscal or transfer agent of a
state, municipality, body politic or business trust, and in that capacity may
receive and disburse money.
(b) Transfer, register and countersign
certificates evidencing a beneficial owner’s interest in a business trust,
bonds or other evidences of indebtedness and act as agent of any business trust,
foreign or domestic, for any purpose required by statute or otherwise.
2. All legal process and any demand or
notice authorized by law to be served upon a business trust may be served upon
its registered agent in the manner provided in subsection 2 of NRS 14.020. If a demand, notice or legal
process, other than a summons and complaint, cannot be served upon the
registered agent, it may be served in the manner provided in NRS 14.030. These manners of service are
in addition to any other service authorized by law.
(Added to NRS by 1999, 1565; A 2007, 2696)
NRS 88A.530 Resignation of registered agent or termination of registration
of commercial registered agent.
1. If its registered agent resigns
pursuant to NRS 77.370 or if its
commercial registered agent terminates its registration as a commercial
registered agent pursuant to NRS 77.330,
a business trust, before the effective date of the resignation or termination, shall
file with the Secretary of State a statement of change of registered agent
pursuant to NRS 77.340.
2. A business trust that fails to comply
with subsection 1 shall be deemed in default and is subject to the provisions
of NRS 88A.630 to 88A.660,
inclusive.
3. As used in this section, “commercial
registered agent” has the meaning ascribed to it in NRS 77.040.
(Added to NRS by 1999, 1566; A 2003, 3157; 2003,
20th Special Session, 105; 2007, 2696; 2013, 890)
ANNUAL LIST; DEFAULTING TRUSTS
NRS 88A.600 Filing requirements; fee; notice; regulations.
1. A business trust formed pursuant to
this chapter shall, on or before the last day of the first month after the
filing of its certificate of trust with the Secretary of State or, if the
business trust has selected an alternative due date pursuant to subsection 8,
on or before that alternative due date, and annually thereafter on or before
the last day of the month in which the anniversary date of the filing of its
certificate of trust with the Secretary of State occurs, file with the
Secretary of State or, if applicable, on or before the last day of the month in
which the anniversary date of the alternative due date occurs in each year, on
a form furnished by the Secretary of State, a list signed by at least one
trustee, or by some other person specifically authorized by the business trust
to sign the list, that contains the name and street address of at least one
trustee. Each list filed pursuant to this subsection must be accompanied by a
declaration under penalty of perjury that:
(a) The business trust has complied with the
provisions of chapter 76 of NRS;
(b) The business trust acknowledges that pursuant
to NRS 239.330, it is a category C
felony to knowingly offer any false or forged instrument for filing in the
Office of the Secretary of State; and
(c) None of the trustees identified in the list
has been identified in the list with the fraudulent intent of concealing the
identity of any person or persons exercising the power or authority of a
trustee in furtherance of any unlawful conduct.
2. Upon filing:
(a) The initial list required by subsection 1,
the business trust shall pay to the Secretary of State a fee of $125.
(b) Each annual list required by subsection 1,
the business trust shall pay to the Secretary of State a fee of $125.
3. If a trustee of a business trust
resigns and the resignation is not reflected on the annual or amended list of
trustees, the business trust or the resigning trustee shall pay to the
Secretary of State a fee of $75 to file the resignation.
4. The Secretary of State shall, 90 days
before the last day for filing each annual list required by subsection 1,
provide to each business trust which is required to comply with the provisions
of NRS 88A.600 to 88A.660,
inclusive, and which has not become delinquent, a notice of the fee due
pursuant to subsection 2 and a reminder to file the list required pursuant to
subsection 1. Failure of a business trust to receive a notice does not excuse
it from the penalty imposed by law.
5. An annual list for a business trust not
in default which is received by the Secretary of State more than 90 days before
its due date shall be deemed an amended list for the previous year.
6. A person who files with the Secretary
of State an initial list or annual list required by subsection 1 which
identifies a trustee with the fraudulent intent of concealing the identity of
any person or persons exercising the power or authority of a trustee in
furtherance of any unlawful conduct is subject to the penalty set forth in NRS 225.084.
7. For the purposes of this section, a
person who is a beneficial owner is not deemed to exercise actual control of
the daily operations of a business trust based solely on the fact that the
person is a beneficial owner.
8. The Secretary of State may allow a
business trust to select an alternative due date for filing the initial list
required by subsection 1.
9. The Secretary of State may adopt
regulations to administer the provisions of subsection 8.
(Added to NRS by 1999, 1567; A 2001, 3188; 2003,
20th Special Session, 106, 187; 2005, 2268; 2007, 2697; 2009, 2044,
2855; 2013, 890)
NRS 88A.610 Certificate of authorization to transact business. When the fee for filing the annual list has
been paid, the cancelled check or other proof of payment received by the
business trust constitutes a certificate authorizing it to transact its
business within this State until the last day of the month in which the
anniversary of the filing of its certificate of trust occurs in the next
succeeding calendar year.
(Added to NRS by 1999, 1567; A 2003,
20th Special Session, 107)
NRS 88A.620 Addresses of trustees required; failure to file.
1. Each list required to be filed pursuant
to the provisions of NRS 88A.600 to 88A.660, inclusive, must, after the name of each
trustee listed thereon, set forth the trustee’s address, either residence or
business.
2. If the addresses are not stated on a
list offered for filing, the Secretary of State may refuse to file the list,
and the business trust for which the list has been offered for filing is
subject to all the provisions of NRS 88A.600 to 88A.660, inclusive, relating to failure to file the
list when or at the times therein specified, unless a list is subsequently
submitted for filing which conforms to the provisions of those sections.
(Added to NRS by 1999, 1568; A 2003, 3157; 2003, 20th
Special Session, 107)
NRS 88A.630 Defaulting trusts: Identification; penalty.
1. Each business trust required to file
the list and pay the fee prescribed in NRS 88A.600
to 88A.660, inclusive, which refuses or neglects
to do so within the time provided shall be deemed in default.
2. For default, there must be added to the
amount of the fee a penalty of $75. The fee and penalty must be collected as
provided in this chapter.
(Added to NRS by 1999, 1568; A 2001, 3189; 2003,
20th Special Session, 107)
NRS 88A.640 Defaulting trusts: Duties of Secretary of State; forfeiture of
right to transact business; assets held in trust.
1. The Secretary of State shall notify, by
providing written notice to its registered agent, each business trust deemed in
default pursuant to the provisions of this chapter. The written notice:
(a) Must include a statement indicating the
amount of the filing fee, penalties incurred and costs remaining unpaid.
(b) At the request of the registered agent, may
be provided electronically.
2. Immediately after the first day of the
first anniversary of the month following the month in which the filing was
required, the certificate of trust of the business trust is revoked and its
right to transact business is forfeited.
3. The Secretary of State shall compile a
complete list containing the names of all business trusts whose right to
transact business has been forfeited.
4. The Secretary of State shall forthwith
notify, by providing written notice to its registered agent, each business
trust specified in subsection 3 of the revocation of its certificate of trust.
The written notice:
(a) Must include a statement indicating the
amount of the filing fee, penalties incurred and costs remaining unpaid.
(b) At the request of the registered agent, may
be provided electronically.
5. If the certificate of trust is revoked
and the right to transact business is forfeited, all the property and assets of
the defaulting business trust must be held in trust by its trustees as for
insolvent business trusts, and the same proceedings may be had with respect
thereto as are applicable to insolvent business trusts. Any person interested
may institute proceedings at any time after a forfeiture has been declared,
but, if the Secretary of State reinstates the certificate of trust, the
proceedings must at once be dismissed.
(Added to NRS by 1999, 1568; A 2001, 1402, 3199; 2003, 48; 2003,
20th Special Session, 108; 2007, 2697)
NRS 88A.650 Defaulting trusts: Conditions and procedure for reinstatement.
1. Except as otherwise provided in
subsections 3 and 4 and NRS 88A.345, the Secretary
of State shall reinstate a business trust which has forfeited or which forfeits
its right to transact business pursuant to the provisions of this chapter and
shall restore to the business trust its right to carry on business in this
State, and to exercise its privileges and immunities, if it:
(a) Files with the Secretary of State:
(1) The list required by NRS 88A.600;
(2) The information required pursuant to NRS 77.310; and
(3) A declaration under penalty of
perjury, on a form provided by the Secretary of State, that the reinstatement
is authorized by a court of competent jurisdiction in this State or by the duly
selected trustees of the business trust; and
(b) Pays to the Secretary of State:
(1) The filing fee and penalty set forth
in NRS 88A.600 and 88A.630
for each year or portion thereof during which its certificate of trust was
revoked; and
(2) A fee of $300 for reinstatement.
2. When the Secretary of State reinstates
the business trust, the Secretary of State shall issue to the business trust a
certificate of reinstatement if the business trust:
(a) Requests a certificate of reinstatement; and
(b) Pays the required fees pursuant to NRS 88A.900.
3. The Secretary of State shall not order
a reinstatement unless all delinquent fees and penalties have been paid, and
the revocation of the certificate of trust occurred only by reason of the
failure to file the list or pay the fees and penalties.
4. If a certificate of business trust has
been revoked pursuant to the provisions of this chapter and has remained
revoked for a period of 5 consecutive years, the certificate must not be
reinstated.
5. Except as otherwise provided in NRS 88A.660, a reinstatement pursuant to this section
relates back to the date on which the business trust forfeited its right to
transact business under the provisions of this chapter and reinstates the
business trust’s right to transact business as if such right had at all times
remained in full force and effect.
(Added to NRS by 1999, 1568; A 2001, 3189; 2003,
20th Special Session, 108; 2007, 1334, 2431, 2698; 2013, 891)
NRS 88A.660 Defaulting trusts: Reinstatement under old or new name.
1. Except as otherwise provided in
subsection 2, if a certificate of trust is revoked pursuant to the provisions
of this chapter and the name of the business trust has been legally reserved or
acquired by another artificial person formed, organized, registered or
qualified pursuant to the provisions of this title whose name is on file with
the Office of the Secretary of State or reserved in the Office of the Secretary
of State pursuant to the provisions of this title, the business trust shall
submit in writing to the Secretary of State some other name under which it
desires to be reinstated. If that name is distinguishable from all other names
reserved or otherwise on file, the Secretary of State shall reinstate the
business trust under that new name.
2. If the defaulting business trust
submits the written, acknowledged consent of the artificial person using a
name, or the person who has reserved a name, which is not distinguishable from
the old name of the business trust or a new name it has submitted, it may be
reinstated under that name.
(Added to NRS by 1999, 1569; A 2003,
20th Special Session, 109)
FOREIGN BUSINESS TRUSTS
NRS 88A.700 Laws governing organization, internal affairs and liability of
beneficial owners, trustees, officers, employees and managers. Subject to the Constitution of this State:
1. The laws of the state under which a
foreign business trust is organized govern its organization and internal
affairs and the liability of its beneficial owners, trustees, officers,
employees or managers; and
2. A foreign business trust may not be
denied registration by reason of any difference between those laws and the laws
of this State.
(Added to NRS by 1999, 1574)
NRS 88A.710 Filing requirements; required provisions of application for
registration; prohibition against registration for certain illegal purposes.
1. Before transacting business in this State,
a foreign business trust shall register with the Secretary of State. A person
shall not register a foreign business trust with the Secretary of State for any
illegal purpose or with the fraudulent intent to conceal any business activity,
or lack thereof, from another person or a governmental agency.
2. In order to register, a foreign
business trust shall submit to the Secretary of State an application for
registration as a foreign business trust, signed by a trustee. The application
for registration must set forth:
(a) The name of the foreign business trust and,
if different, the name under which it proposes to register and transact
business in this State;
(b) The state and date of its formation;
(c) The information required pursuant to NRS 77.310;
(d) The address of the office required to be
maintained in the state of its organization by the laws of that state or, if
not so required, of the principal office of the foreign business trust; and
(e) The name and address, either residence or
business, of one trustee.
(Added to NRS by 1999, 1574; A 2003,
20th Special Session, 109; 2007, 2698; 2013, 892)
NRS 88A.720 Issuance of certificate of registration by Secretary of State. If the Secretary of State finds that an
application for registration conforms to law and all requisite fees have been
paid, the Secretary of State shall issue a certificate of registration to
transact business in this State and mail it to the person who filed the
application or the person’s representative.
(Added to NRS by 1999, 1575)
NRS 88A.730 Registration of name. A
foreign business trust may register with the Secretary of State under any name,
whether or not it is the name under which it is registered in its state of
organization, which includes the words “Business Trust” or the abbreviation
“B.T.” or “BT” and which could be registered by a domestic business trust.
(Added to NRS by 1999, 1575)
NRS 88A.732 Annual list: Filing requirements; fees; powers and duties of
Secretary of State; regulations.
1. Each foreign business trust doing
business in this State shall, on or before the last day of the first month
after the filing of its application for registration as a foreign business
trust with the Secretary of State or, if the foreign business trust has
selected an alternative due date pursuant to subsection 10, on or before that
alternative due date, and annually thereafter on or before the last day of the
month in which the anniversary date of its qualification to do business in this
State occurs in each year or, if applicable, on or before the last day of the
month in which the anniversary date of the alternative due date occurs in each year,
file with the Secretary of State a list, on a form furnished by the Secretary
of State, that contains:
(a) The name of the foreign business trust;
(b) The file number of the foreign business
trust, if known;
(c) The name of at least one of its trustees;
(d) The address, either residence or business, of
the trustee listed pursuant to paragraph (c); and
(e) The signature of a trustee of the foreign
business trust, or some other person specifically authorized by the foreign
business trust to sign the list, certifying that the list is true, complete and
accurate.
2. Each list required to be filed pursuant
to this section must be accompanied by a declaration under penalty of perjury
that:
(a) The foreign business trust has complied with
the provisions of chapter 76 of NRS;
(b) The foreign business trust acknowledges that
pursuant to NRS 239.330, it is a
category C felony to knowingly offer any false or forged instrument for filing
in the Office of the Secretary of State; and
(c) None of the trustees identified in the list
has been identified in the list with the fraudulent intent of concealing the
identity of any person or persons exercising the power or authority of a
trustee in furtherance of any unlawful conduct.
3. Upon filing:
(a) The initial list required by this section,
the foreign business trust shall pay to the Secretary of State a fee of $125.
(b) Each annual list required by this section,
the foreign business trust shall pay to the Secretary of State a fee of $125.
4. If a trustee of a foreign business
trust resigns and the resignation is not reflected on the annual or amended
list of trustees, the foreign business trust or the resigning trustee shall pay
to the Secretary of State a fee of $75 to file the resignation.
5. The Secretary of State shall, 90 days
before the last day for filing each annual list required by subsection 1,
provide to each foreign business trust which is required to comply with the
provisions of NRS 88A.732 to 88A.738, inclusive, and which has not become delinquent,
a notice of the fee due pursuant to subsection 3 and a reminder to file the
list required pursuant to subsection 1. Failure of any foreign business trust
to receive a notice does not excuse it from the penalty imposed by the
provisions of NRS 88A.732 to 88A.738, inclusive.
6. If the list to be filed pursuant to the
provisions of subsection 1 is defective or the fee required by subsection 3 is
not paid, the Secretary of State may return the list for correction or payment.
7. An annual list for a foreign business
trust not in default which is received by the Secretary of State more than 90
days before its due date shall be deemed an amended list for the previous year
and does not satisfy the requirements of subsection 1 for the year to which the
due date is applicable.
8. A person who files with the Secretary
of State a list required by this section which identifies a trustee with the
fraudulent intent of concealing the identity of any person or persons
exercising the power or authority of a trustee in furtherance of any unlawful
conduct is subject to the penalty set forth in NRS 225.084.
9. For the purposes of this section, a
person who is a beneficial owner is not deemed to exercise actual control of
the daily operations of a foreign business trust based solely on the fact that
the person is a beneficial owner.
10. The Secretary of State may allow a
foreign business trust to select an alternative due date for filing the initial
list required by this section.
11. The Secretary of State may adopt
regulations to administer the provisions of subsection 10.
(Added to NRS by 2003,
20th Special Session, 102; A 2005, 2269; 2007, 2699; 2009, 2044,
2855; 2013, 892)
NRS 88A.733 Certificate of authorization to transact business. If a foreign business trust has filed the
initial or annual list in compliance with NRS 88A.732
and has paid the appropriate fee for the filing, the cancelled check or other
proof of payment received by the foreign business trust constitutes a
certificate authorizing it to transact its business within this State until the
last day of the month in which the anniversary of its qualification to transact
business occurs in the next succeeding calendar year.
(Added to NRS by 2003,
20th Special Session, 103)
NRS 88A.734 Addresses of trustees required; failure to file.
1. Each list required to be filed under
the provisions of NRS 88A.732 to 88A.738, inclusive, must, after the name of each
trustee listed thereon, set forth the address, either residence or business, of
each trustee.
2. If the addresses are not stated for
each person on any list offered for filing, the Secretary of State may refuse
to file the list, and the foreign business trust for which the list has been
offered for filing is subject to all the provisions of NRS
88A.732 to 88A.738, inclusive, relating to
failure to file the list within or at the times therein specified, unless a
list is subsequently submitted for filing which conforms to the provisions of
this section.
(Added to NRS by 2003,
20th Special Session, 103)
NRS 88A.7345 List or statement to be maintained at registered office;
requirement to assist in criminal investigation; failure to comply;
regulations.
1. A foreign business trust shall maintain
at its registered office:
(a) A current list of its beneficial owners; or
(b) A statement indicating where such a list is
maintained.
2. Upon the request of the Secretary of
State, the foreign business trust shall:
(a) Provide the Secretary of State with the name
and contact information of the custodian of the list described in subsection 1.
The information required pursuant to this paragraph shall be kept confidential
by the Secretary of State.
(b) Provide written notice to the Secretary of
State within 10 days after any change in the information contained in the list
described in subsection 1.
3. Upon the request of any law enforcement
agency in the course of a criminal investigation, the Secretary of State may
require a foreign business trust to:
(a) Submit to the Secretary of State, within 3
business days, a copy of the list required to be maintained pursuant to
subsection 1; or
(b) Answer any interrogatory submitted by the
Secretary of State that will assist in the criminal investigation.
4. If a foreign business trust fails to
comply with any requirement pursuant to subsection 3, the Secretary of State
may take any action necessary, including, without limitation, the suspension or
revocation of the right of the foreign business trust to transact business in
this State.
5. The Secretary of State shall not
reinstate or revive the right of a foreign business trust to transact business
in this State that was revoked or suspended pursuant to subsection 4 unless:
(a) The foreign business trust complies with the
requirements of subsection 3; or
(b) The law enforcement agency conducting the
investigation advises the Secretary of State to reinstate or revive the right
of the foreign business trust to transact business in this State.
6. The Secretary of State may adopt
regulations to administer the provisions of this section.
(Added to NRS by 2007, 1333; A 2009, 2856)
NRS 88A.735 Defaulting trusts: Identification; forfeiture of right to
transact business; penalty.
1. Each foreign business trust which is
required to make a filing and pay the fee prescribed in NRS
88A.732 to 88A.738, inclusive, and which
refuses or neglects to do so within the time provided is in default.
2. For default there must be added to the
amount of the fee a penalty of $75, and unless the filing is made and the fee
and penalty are paid on or before the last day of the month in which the
anniversary date of the foreign business trust occurs, the defaulting foreign
business trust by reason of its default forfeits its right to transact any
business within this State. The fee and penalty must be collected as provided
in this chapter.
(Added to NRS by 2003,
20th Special Session, 103)
NRS 88A.736 Defaulting trusts: Duties of Secretary of State.
1. The Secretary of State shall notify, by
providing written notice to its registered agent, each foreign business trust
deemed in default pursuant to NRS 88A.735. The
written notice:
(a) Must include a statement indicating the
amount of the filing fee, penalties incurred and costs remaining unpaid.
(b) At the request of the registered agent, may
be provided electronically.
2. Immediately after the last day of the
month in which the anniversary date of the filing of the certificate of trust
occurs, the Secretary of State shall compile a complete list containing the
names of all foreign business trusts whose right to transact business has been
forfeited.
3. The Secretary of State shall notify, by
providing written notice to its registered agent, each foreign business trust
specified in subsection 2 of the forfeiture of its right to transact business.
The written notice:
(a) Must include a statement indicating the
amount of the filing fee, penalties incurred and costs remaining unpaid.
(b) At the request of the registered agent, may
be provided electronically.
(Added to NRS by 2003,
20th Special Session, 103; A 2007, 2700)
NRS 88A.737 Defaulting trusts: Conditions and procedure for reinstatement.
1. Except as otherwise provided in
subsections 3 and 4 and NRS 88A.7345, the
Secretary of State shall reinstate a foreign business trust which has forfeited
or which forfeits its right to transact business under the provisions of this
chapter and shall restore to the foreign business trust its right to transact
business in this State, and to exercise its privileges and immunities, if it:
(a) Files with the Secretary of State:
(1) The list required by NRS 88A.732;
(2) The information required pursuant to NRS 77.310; and
(3) A declaration under penalty of
perjury, on a form provided by the Secretary of State, that the reinstatement
is authorized by a court of competent jurisdiction in this State or by the duly
selected trustees of the foreign business trust; and
(b) Pays to the Secretary of State:
(1) The filing fee and penalty set forth
in NRS 88A.732 and 88A.735
for each year or portion thereof that its right to transact business was
forfeited; and
(2) A fee of $300 for reinstatement.
2. When the Secretary of State reinstates
the foreign business trust, the Secretary of State shall issue to the foreign
business trust a certificate of reinstatement if the foreign business trust:
(a) Requests a certificate of reinstatement; and
(b) Pays the required fees pursuant to NRS 88A.900.
3. The Secretary of State shall not order
a reinstatement unless all delinquent fees and penalties have been paid and the
revocation of the right to transact business occurred only by reason of failure
to pay the fees and penalties.
4. If the right of a foreign business
trust to transact business in this State has been forfeited pursuant to the
provisions of this chapter and has remained forfeited for a period of 5
consecutive years, the right to transact business must not be reinstated.
5. Except as otherwise provided in NRS 88A.738, a reinstatement pursuant to this section
relates back to the date the foreign business trust forfeited its right to
transact business under the provisions of this chapter and reinstates the
foreign business trust’s right to transact business as if such right had at all
times remained in full force and effect.
(Added to NRS by 2003,
20th Special Session, 104; A 2007, 1334, 2432, 2700; 2013, 894)
NRS 88A.738 Defaulting trusts: Reinstatement under old or new name;
regulations.
1. Except as otherwise provided in
subsection 2, if a foreign business trust applies to reinstate its certificate
of trust and its name has been legally reserved or acquired by another
artificial person formed, organized, registered or qualified pursuant to the
provisions of this title whose name is on file with the Office of the Secretary
of State or reserved in the Office of the Secretary of State pursuant to the
provisions of this title, the foreign business trust must submit in writing in
its application for reinstatement to the Secretary of State some other name
under which it desires its existence to be reinstated. If that name is
distinguishable from all other names reserved or otherwise on file, the
Secretary of State shall reinstate the foreign business trust under that new
name.
2. If the applying foreign business trust
submits the written, acknowledged consent of the artificial person having a
name, or the person who has reserved a name, which is not distinguishable from
the old name of the applying foreign business trust or a new name it has
submitted, it may be reinstated under that name.
3. For the purposes of this section, a
proposed name is not distinguishable from a name on file or reserved solely
because one or the other contains distinctive lettering, a distinctive mark, a
trademark or a trade name, or any combination thereof.
4. The Secretary of State may adopt
regulations that interpret the requirements of this section.
(Added to NRS by 2003,
20th Special Session, 104)
NRS 88A.740 Cancellation of registration.
1. A foreign business trust may cancel its
registration by filing with the Secretary of State a certificate of
cancellation signed by a trustee. The certificate must set forth:
(a) The name of the foreign business trust;
(b) The effective date and time of the
cancellation if other than the time of the filing of the certificate, which
date must not be more than 90 days after the date on which the certificate is
filed; and
(c) Any other information deemed necessary by the
trustee.
Ê A
cancellation does not terminate the authority of the Secretary of State to
accept service of process on the foreign business trust with respect to causes
of action arising out of the transaction of business in this State.
2. If a certificate filed pursuant to
subsection 1 specifies a later effective date but does not specify an effective
time, the cancellation of the registration is effective at 12:01 a.m. in the
Pacific time zone on the specified later date.
(Added to NRS by 1999, 1575; A 2003,
20th Special Session, 109; 2005, 2200; 2011, 2811)
NRS 88A.750 Penalty for transacting business without registration;
enforcement; regulations.
1. Every foreign business trust
transacting business in this State which willfully fails or neglects to
register with the Secretary of State pursuant to the provisions of NRS 88A.710 is subject to a fine of not less than
$1,000 but not more than $10,000, to be recovered in a court of competent
jurisdiction.
2. Every foreign business trust
transacting business in this State which fails or neglects to register with the
Secretary of State pursuant to the provisions of NRS
88A.710 may not commence or maintain any action, suit or proceeding in any
court of this State until it has registered with the Secretary of State.
3. The failure of a foreign business trust
to register with the Secretary of State does not impair the validity of any
contract or act of the foreign business trust or prevent the foreign business
trust from defending any action, suit or proceeding in any court of this State.
4. When the Secretary of State is advised
that a foreign business trust is subject to the fine described in subsection 1,
the Secretary of State may, as soon as practicable, refer the matter to the
district attorney of the county where the foreign business trust has its
principal place of business or the Attorney General, or both, for a
determination of whether to institute proceedings to recover the fine. The
district attorney of the county where the foreign business trust has its
principal place of business or the Attorney General may institute and prosecute
the appropriate proceedings to recover the fine. If the district attorney or
the Attorney General prevails in a proceeding to recover the fine described in
subsection 1, the district attorney or the Attorney General is entitled to
recover the costs of the proceeding, including, without limitation, the cost of
any investigation and reasonable attorney’s fees.
5. In the course of an investigation of a
violation of this section, the Secretary of State may require a foreign
business trust to answer any interrogatory submitted by the Secretary of State
that will assist in the investigation.
6. A foreign business trust, by
transacting business in this State without registering with the Secretary of
State, appoints the Secretary of State as its agent for service of process with
respect to causes of action arising out of the transaction of business in this
State.
7. The Secretary of State may adopt
regulations to administer the provisions of this section.
(Added to NRS by 1999, 1575; A 2009, 1713;
2013, 894)
MISCELLANEOUS PROVISIONS
NRS 88A.890 Form required for filing of records.
1. Each record filed with the Secretary of
State pursuant to this chapter must be on or accompanied by a form prescribed
by the Secretary of State.
2. The Secretary of State may refuse to
file a record which does not comply with subsection 1 or which does not contain
all of the information required by statute for filing the record.
3. If the provisions of the form
prescribed by the Secretary of State conflict with the provisions of any record
that is submitted for filing with the form:
(a) The provisions of the form control for all
purposes with respect to the information that is required by statute to appear
in the record in order for the record to be filed; and
(b) Unless otherwise provided in the record, the
provisions of the record control in every other situation.
4. The Secretary of State may by
regulation provide for the electronic filing of records with the Office of the
Secretary of State.
(Added to NRS by 2003,
20th Special Session, 102)
NRS 88A.900 Fees. The Secretary
of State shall charge and collect the following fees for:
1. Filing an original certificate of
trust, or for registering a foreign business trust, $75.
2. Filing an amendment or restatement, or
a combination thereof, to a certificate of trust, $175.
3. Filing a certificate of cancellation,
$100.
4. Certifying a copy of a certificate of
trust or an amendment or restatement, or a combination thereof, $30 per
certification.
5. Certifying an authorized printed copy
of this chapter, $30.
6. Reserving a name for a business trust,
$25.
7. Signing a certificate of existence of a
business trust which does not list the previous records relating to it, or a
certificate of change in the name of a business trust, $50.
8. Signing a certificate of existence of a
business trust which lists the previous records relating to it, $50.
9. Signing, certifying or filing any
certificate or record not otherwise provided for in this section, $50.
10. Examining and provisionally approving
a record before the record is presented for filing, $125.
11. Copying a record on file with the
Secretary of State, for each page, $2.
(Added to NRS by 1999, 1574; A 2001, 1402, 3189, 3199; 2003, 3158; 2003,
20th Special Session, 110; 2007, 2701; 2010, 26th
Special Session, 75)
NRS 88A.910 Manner in which record may be filed. A
record may be filed by telecopy, facsimile or similar electronic transmission,
but the Secretary of State need not accept any record that is illegible or
otherwise unsuitable for the procedures of the Office of the Secretary of
State.
(Added to NRS by 1999, 1564; A 2003, 3158)
NRS 88A.920 Procedure to submit replacement page to Secretary of State
before actual filing of record. A
trustee of a business trust may authorize the Secretary of State in writing to
replace any page of a record submitted for filing on an expedited basis, before
the actual filing, and to accept the page as if it were part of the original
record.
(Added to NRS by 2001, 1401; A 2001, 3199; 2003, 3158)
NRS 88A.930 Correction of inaccurate or defective record filed with
Secretary of State; cancellation of filings.
1. A business trust may correct a record
filed in the Office of the Secretary of State with respect to the business
trust if the record contains an inaccurate description of a trust action or if
the record was defectively signed, attested, sealed, verified or acknowledged.
2. To correct a record, the business trust
must:
(a) Prepare a certificate of correction that:
(1) States the name of the business trust;
(2) Describes the record, including,
without limitation, its filing date;
(3) Specifies the inaccuracy or defect;
(4) Sets forth the inaccurate or defective
portion of the record in an accurate or corrected form; and
(5) Is signed by a trustee of the business
trust or by some other person specifically authorized by the business trust to
sign the certificate.
(b) Deliver the certificate to the Secretary of
State for filing.
(c) Pay a filing fee of $175 to the Secretary of
State.
3. A certificate of correction is
effective on the effective date of the record it corrects except as to persons
relying on the uncorrected record and adversely affected by the correction. As
to those persons, the certificate is effective when filed.
4. If a business trust has made a filing
with the Secretary of State and the Secretary of State has not processed the
filing and placed the filing into the public record, the business trust may
cancel the filing by:
(a) Filing a statement of cancellation with the
Secretary of State; and
(b) Paying a fee of $50.
(Added to NRS by 2001, 1401; A 2001, 3199; 2003, 3158; 2003,
20th Special Session, 110; 2009, 2857;
2013, 895)
NRS 88A.940 Secretary of State authorized to adopt certain regulations to
allow business trust to carry out powers and duties through most recent
technology. The Secretary of State
may adopt regulations to define, for the purposes of certain provisions of this
chapter, the terms “meeting,” “writing,” “written,” and other terms to allow a
business trust or other entity which is subject to the provisions of this
chapter to carry out its powers and duties as prescribed by this chapter
through the use of the most recent technology available, including, without
limitation, the use of electronic communications, videoconferencing and
telecommunications.
(Added to NRS by 2011, 781)
