2018 South Dakota Codified Laws
Chapter 14A - South Dakota Business Trust Act
§ 47-14A-1 Definitions.

47-14A-1. Definitions. Terms used in this chapter mean:

(1) "Business trust," an unincorporated association which:

(a) Is created by a governing instrument under which property is or will be held, managed, administered, controlled, invested, reinvested, or operated, or business or professional activities for profit are carried on or will be carried on, by a trustee or trustees for the benefit of such person or persons as are or may become entitled to a beneficial interest in the trust property, including a trust of the type known at common law as a business trust, or Massachusetts trust, or a trust qualifying as a real estate investment trust under § 856 et seq., of the United States Internal Revenue Code of 1986 (26 U.S.C. § 856 et seq.), as amended, or under any successor provision, or a trust qualifying as a real estate mortgage investment conduit under § 860D of the United States Internal Revenue Code of 1986 (26 U.S.C. § 860D), as amended, or under any successor provision; and

(b) Files a certificate of trust pursuant to § 47-14A-10.

Any such association heretofore or hereafter organized shall be a business trust and a separate legal entity. A business trust may be organized to carry on any lawful business or activity, whether or not conducted for profit, or for any of the purposes referred to in subsection (a) of this subdivision (including, without limitation, for the purpose of holding or otherwise taking title to property, whether in an active or custodial capacity);

(2) "Beneficial owner," any owner of a beneficial interest in a business trust, the fact of ownership to be determined and evidenced (whether by means of registration, the issuance of certificates or otherwise) in conformity to the applicable provisions of the governing instrument of the business trust;

(3) "Trustee," any person appointed as a trustee in accordance with the governing instrument of a business trust, and may include the beneficial owners or any of them;

(4) "Person," any natural person, partnership, limited partnership, trust, estate, association, corporation, custodian, nominee, or any other individual or entity in its own or any representative capacity;

(5) "Other business entity," any corporation, partnership (whether general or limited), limited liability company, common- law trust, foreign business trust, or any other unincorporated business, excluding a business trust;

(6) "Governing instrument," any instrument which creates a business trust provides for the governance of the affairs of the business trust and the conduct of its business. A governing instrument:

(a) May provide that a person shall become a beneficial owner and shall become bound by the governing instrument if such person (or a representative authorized by such person orally, in writing or by other 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;

(b) 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; and

(c) May contain any provision that is not inconsistent with law or with the information contained in the certificate of trust;

(7) "Foreign business trust," any business trust formed under the laws of any state or under the laws of any foreign country or other foreign jurisdiction and denominated as such under the laws of such state or foreign country or other foreign jurisdiction;

(8) "Independent trustee," solely with respect to a business trust that is registered as an investment company under the Investment Company Act of 1940, as amended (15 U.S.C. § 80a-1 et seq.), or any successor statute thereto (the 1940 Act), any trustee who is not an interested person of the business trust. However, the receipt of compensation for service as an independent trustee of the business trust and also for service as an independent trustee of one or more other investment companies managed by a single investment adviser (or an affiliated person of such investment adviser) does not affect the status of a trustee as an independent trustee under this chapter. An independent trustee shall be deemed to be independent and disinterested for all purposes. For purposes of this definition, the terms, affiliated person and interested person, have the meanings set forth in the 1940 Act or any rule adopted thereunder.
Source: SL 2001, ch 245, § 1.

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