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2010 Amendments to Delaware Statutory Trust Act

Delaware Statutory Trust Act

A. Pools of Assets.  Amending § 3806(b)(2) of the Statutory Trust Act to:

• Confirm that pools of assets may constitute series.

B. Continuance of Statutory Trust in the Absence of a Trustee.  Amending § 3808(b) to:

• Confirm that a statutory trust will not be void for lack of a trustee.

C. Cancellation of a Certificate of Trust.  Amending § 3810(d) and § 3810(e) to clarify:

• The time of dissolution of a statutory trust that is not the surviving entity in a merger or consolidation or has transferred to another jurisdiction and/or converted to another entity.
• The effective time of a certificate of correction.
• The fact that the Secretary of State may not issue a certificate of good standing for a statutory trust once the certificate of trust has been cancelled.

D. Merger and Consolidation.  Amending § 3815 to:

• Provide increased flexibility with respect to amendment of an existing governing instrument or the adoption of a new governing instrument by, among other things, no longer requiring a specific reference to § 3815(f) of the Statutory Trust Act in the governing instrument agreement.  This amendment does not apply to statutory trusts formed prior to the effectiveness of this amendment unless the governing instrument of such statutory trusts provide otherwise.
• Clarify that a statutory trust that is not the surviving or resulting entity in a merger or consolidation is not considered to have dissolved and is not required to wind-up its affairs.
• Clarify that appraisal rights can be extended to series of beneficial interests.
• Add a new subsection (i) to §3815, which clarifies that a governing interest may provide that a statutory trust does not have the power to merge or consolidate.

E. Conversion of a Statutory Trust.  Amending § 3821 to:

• Add a new subsection (i) to §3821, which clarifies that a governing interest may provide that a statutory trust does not have the power to convert to another business entity.

F. Transfer or Continuance of a Statutory Trust.  Amending § 3823 to:

• Add a new subsection (h) to §3823, which clarifies that a governing interest may provide that a statutory trust does not have the power to transfer, domesticate or continue.

G. Construction and Application of Statutory Trust Act and Governing Instrument.  Amending § 3825 to:

• Add a new subsection (c) to § 3825, which clarifies that the doctrine of “independent legal significance” applies to statutory trusts.

H. Foreign Statutory Trusts.  Amending § 3852 to:

• Mandate that a foreign statutory trust registering with the Secretary of State must file a certificate, as of a date not earlier than 6 months prior to the filing date, issued by an authorized officer of the jurisdiction of its formation evidencing its existence, along with, if applicable, a translation thereof under oath.
• Require that a foreign statutory trust organized in series provide notice of that fact when registering with the Secretary of State and disclose whether there is a limitation on inter-series liability.

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