N.H. Rev. Stat. § 293-B:8

Current through the 2024 Legislative Session

Section 293-B:8 - Management of a New Hampshire Investment Trust

I. Except to the extent otherwise provided in the governing instrument of a New Hampshire investment trust, the business and affairs of a New Hampshire investment trust shall be managed by or under the direction of its trustees. To the extent provided in the governing instrument of a New Hampshire investment trust, any person, including a beneficial owner, shall be entitled to direct the trustees or other persons in the management of a New Hampshire investment trust, including without limitation the investment of securities, real estate, mortgages, and other assets of the New Hampshire investment trust. Except to the extent otherwise provided in the governing instrument of a New Hampshire investment trust, neither the power to give direction to a trustee or other persons nor the exercise thereof by any person, including a beneficial owner, shall cause such person to be a trustee or be subject to any duties or liabilities.

II. A governing instrument may contain any provision relating to the management of the business or investment affairs of the New Hampshire investment trust, and the rights, duties, and obligations of the trustees, beneficial owners, and other persons, which is not contrary to any provision or requirement of this chapter and, without limitation:

(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 or investment activities of the New Hampshire investment trust, the conduct of its affairs, and its rights or powers or the rights or powers of its trustees, beneficial owners, agents, or employees;

(c) May provide for classes, groups, or series of trustees or beneficial owners, or classes, groups, or series of beneficial interests, having such relative rights, powers, and duties as the governing instrument may provide, and may make provision for the future creation in the manner provided in the governing instrument of additional classes, groups, or series of trustees, beneficial owners or beneficial interests, 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 of trustees, beneficial owners, or beneficial interests;

(d) May establish or provide for the establishment of designated series of trustees, beneficial owners or beneficial interests having separate rights, powers, or duties with respect to specified property or obligations of the New Hampshire investment trust or specified profits and specified losses associated with specified property or obligations, and to the extent provided in the governing instrument, any such series may have a separate investment objective;

(e) May provide for the taking of any action, including the amendment of the governing instrument; the accomplishment of a merger, conversion, or consolidation; the appointment of one or more trustees; the sale, lease, exchange, transfer, pledge, or other disposition of all or any part of the assets of the New Hampshire investment trust or the assets of any series; or the dissolution of the New Hampshire investment trust, or may provide for the taking of any action to create under the provisions of the governing instrument a class, group, or series of beneficial interests that was not previously outstanding, in any such case without the vote or approval of any particular trustee, beneficial owner, or other person with an interest in the New Hampshire investment trust or class, group or series of trustees, beneficial owners, or other persons with an interest in the New Hampshire investment trust;

(f) May grant to or withhold from all or certain trustees, beneficial owners, or other persons with an interest in the New Hampshire investment trust or a specified class, group, or series of trustees, beneficial owners, or other persons with an interest in the New Hampshire investment trust the right to vote, separately or with any or all other classes, groups, or series of the trustees, beneficial owners, or other persons with an interest in the New Hampshire investment trust, on any matter, such voting being on a per capita, number, financial interest, class, group, series, or any other basis;

(g) May, if and to the extent that voting rights are granted under the governing instrument, set forth provisions relating to notice of the time, place, or purpose of any meeting at which any matter is to be voted on; waiver of any such notice; action by consent without a meeting; the establishment of record dates, quorum requirements, voting in person, by proxy or in any other manner; or any other matter with respect to the exercise of any such right to vote;

(h) May provide for the present or future creation of more than one New Hampshire investment trust, including the creation of a future New Hampshire investment trust to which all or any part of the assets, liabilities, profits, or losses of any existing New Hampshire investment trust will be transferred, and for the conversion of beneficial interests in an existing New Hampshire investment trust, or series thereof, into beneficial interests in the separate New Hampshire investment trust, or series thereof;

(i) May provide for the appointment, election, or engagement, either as agents or independent contractors of the New Hampshire investment trust or as delegatees of the trustees, of officers, employees, managers, or other persons who may manage the business and affairs of the New Hampshire investment trust and may have such titles and such relative rights, powers, and duties as the governing instrument shall provide. Except to the extent otherwise provided in the governing instrument of a New Hampshire investment trust, the trustees shall choose and supervise such officers, managers, employees, and other persons;

(j) May provide rights to any person, including a person who is not a party to the governing instrument of the New Hampshire investment trust, to the extent set forth therein; or

(k) May provide for the manner in which it may be amended, including by requiring the approval of a person who is not a party to the governing instrument of the New Hampshire investment trust or the satisfaction of conditions, and to the extent the governing instrument of the New Hampshire investment trust provides for the manner in which it may be amended such governing instrument may be amended only in that manner or as otherwise permitted by law, provided that the approval of any person may be waived by such person and that any such conditions may be waived by all persons for whose benefit such conditions were intended.

III.

(a) Unless otherwise provided in the governing instrument of a New Hampshire investment trust, meetings of beneficial owners may be held by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this paragraph shall constitute presence in person at the meeting. Unless otherwise provided in the governing instrument of a New Hampshire investment trust, on any matter that is to be voted on by the beneficial owners:

(1) The beneficial owners may take such action without a meeting, without a prior notice, and without a vote if a consent or consents in writing, setting forth the action so taken, shall be signed by the beneficial owners having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all interests in the New Hampshire investment trust entitled to vote thereon were present and voted; and

(2) The beneficial owners may vote in person or by proxy, and such proxy may be granted in writing, by means of electronic transmission, or as otherwise permitted by applicable law.

(b) Unless otherwise provided in a governing instrument of a New Hampshire investment trust, a consent transmitted by electronic transmission by a beneficial owner or by a person or persons authorized to act for a beneficial owner shall be deemed to be written and signed for purposes of this paragraph. For purposes of this paragraph, the term "electronic transmission" means any form of communication not directly involving the physical transmission of paper that creates a record that may be retained, retrieved, and reviewed, by a recipient thereof and that may be directly reproduced in paper form by such a recipient through an automated or other process.

IV.

(a) Unless otherwise provided in the governing instrument of a New Hampshire investment trust, meetings of trustees may be held by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this paragraph shall constitute presence in person at the meeting. Unless otherwise provided in the governing instrument of a New Hampshire investment trust, on any matter that is to be voted on by the trustees:

(1) The trustees may take such action without a meeting, without a prior notice, and without a vote if a consent or consents in writing, setting forth the action so taken, shall be signed by the trustees having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all trustees entitled to vote thereon were present and voted; and

(2) The trustee may vote in person or by proxy, and such proxy may be granted in writing, by means of electronic transmission, or as otherwise permitted by applicable law.

(b) Unless otherwise provided in a governing instrument of a New Hampshire investment trust, a consent transmitted by electronic transmission by a trustee or by a person or persons authorized to act for a trustee shall be deemed to be written and signed for purposes of this paragraph. For purposes of this paragraph, the term "electronic transmission" means any form of communication not directly involving the physical transmission of paper that creates a record that may be retained, retrieved and reviewed by a recipient thereof and that may be directly reproduced in paper form by such a recipient through an automated or other process.

V. Except to the extent otherwise provided in the governing instrument of a New Hampshire investment trust, a beneficial owner, trustee, officer, employee, or manager may lend money to, borrow money from, act as a surety, guarantor, or endorser for, guarantee or assume one or more obligations of, provide collateral for, and transact other business with a New Hampshire investment trust and, subject to other applicable law, has the same rights and obligations with respect to any such matter as a person who is not a beneficial owner, trustee, officer, employee, or manager.

VI. Except to the extent otherwise provided in the governing instrument of a New Hampshire investment trust, a trustee of a New Hampshire investment trust has the power and authority to delegate to one or more other persons the trustee's rights and powers to manage and control the business and affairs of the New Hampshire investment trust, including to delegate to agents, officers, and employees of the trustee or the New Hampshire investment trust, and to delegate by management agreement or other agreement with, or otherwise to, other persons. Except to the extent otherwise provided in the governing instrument of a New Hampshire investment trust, such delegation by a trustee of a New Hampshire investment trust shall not cause the trustee to cease to be a trustee of the New Hampshire investment trust or cause the person to whom any such rights and powers have been delegated to be a trustee of the New Hampshire investment trust.

VII. The governing instrument of a New Hampshire investment trust may provide that:

(a) A beneficial owner who fails to perform in accordance with, or to comply with the terms and conditions of, the governing instrument shall be subject to specified penalties or specified consequences;

(b) At the time or upon the happening of events specified in the governing instrument, a beneficial owner shall be subject to specified penalties or specified consequences; and

(c) The specified penalties or specified consequences under subparagraphs (a) and (b) may include and take the form of any penalty or consequence set forth in RSA 293-B:4, III.

VIII. A trustee, beneficial owner or an officer, employee, manager or other person designated in accordance with subparagraph II(i) of this section shall be fully protected in relying in good faith upon the records of the New Hampshire investment trust and upon information, opinions, reports, or statements presented by another trustee, beneficial owner, or officer, employee, manager, or other person designated in accordance with subparagraph II(i) of this section, or by any other person as to matters the trustee, beneficial owner, or officer, employee, manager, or other person designated in accordance with subparagraph II(i) of this section reasonably believes are within such other person's professional or expert competence, including information, opinions, reports, or statements as to the value and amount of the assets, liabilities, profits, or losses of the New Hampshire investment trust, or the value and amount of assets or reserves or contracts, agreements, or other undertakings that would be sufficient to pay claims and obligations of the New Hampshire investment trust or to make reasonable provision to pay such claims and obligations, or any other facts pertinent to the existence and amount of assets from which distributions to beneficial owners or creditors might properly be paid.

RSA 293-B:8

2010, 149:2, eff. June 14, 2010.