N.H. Rev. Stat. § 293-B:18

Current through Chapter 381 of the 2024 Legislative Session

Section 293-B:18 - Merger and Consolidation

I. Pursuant to an agreement of merger or consolidation, a New Hampshire investment trust may merge or consolidate with or into one or more New Hampshire investment trusts or other investment entities formed or organized or existing under the laws of any other state or the United States or any foreign country or other foreign jurisdiction, with such New Hampshire investment trust or other investment entity as the agreement shall provide being the surviving or resulting New Hampshire investment trust or other investment entity. Unless otherwise provided in the governing instrument of a New Hampshire investment trust, a merger or consolidation shall be approved by each New Hampshire investment trust which is to merge or consolidate by all of the trustees and the beneficial owners of such New Hampshire investment trust. In connection with a merger or consolidation hereunder, rights or securities of, or interests in, a New Hampshire investment trust or other investment entity which is a constituent party to the merger or consolidation may be exchanged for or converted into cash, property, rights or securities of, or interests in, the surviving or resulting New Hampshire investment trust or other investment entity or, in addition to or in lieu thereof, may be exchanged for or converted into cash, property, rights or securities of, or interest in, a New Hampshire investment trust or other investment entity which is not the surviving or resulting New Hampshire investment trust or other investment entity in the merger or consolidation or may be cancelled. Notwithstanding prior approval, an agreement of merger or consolidation may be terminated or amended pursuant to a provision for such termination or amendment contained in the agreement of merger or consolidation.

II. If a New Hampshire investment trust is merging or consolidating under this section, the New Hampshire investment trust or other investment entity surviving or resulting in or from the merger or consolidation shall deliver one original and one exact copy of a certificate of merger or consolidation to the secretary of state. The certificate of merger or consolidation shall state:

(a) The name and jurisdiction of formation or organization of each of the New Hampshire investment trusts or other investment entities which is to merge or consolidate;

(b) That an agreement of merger or consolidation has been approved and executed by each of the New Hampshire investment trusts or other investment entities which is to merge or consolidate;

(c) The name of the surviving or resulting New Hampshire investment trust or other investment entity;

(d) In the case of a merger in which a New Hampshire investment trust is the surviving entity, such amendments, if any, to the certificate of trust of the surviving New Hampshire investment trust to change its name as are desired to be effected by the merger;

(e) The future effective date or time, which shall be a date or time certain, of the merger or consolidation if it is not to be effective upon the filing of the certificate of merger or consolidation;

(f) That the executed agreement of merger or consolidation is on file at the principal place of business of the surviving or resulting New Hampshire investment trust or other investment entity, and shall state the address thereof;

(g) That a copy of the agreement of merger or consolidation will be furnished by the surviving or resulting New Hampshire investment trust or other investment entity, on request and without cost, to any beneficial owner of any New Hampshire investment trust or any person holding an interest in any other investment entity which is to merge or consolidate; and

(h) If the surviving or resulting entity is not a New Hampshire investment trust, a statement that such surviving or resulting other investment entity agrees that it may be served with process in the state of New Hampshire in any action, suit, or proceeding for the enforcement of any obligation of any New Hampshire investment trust which is to merge or consolidate, irrevocably appointing the secretary of state as its agent to accept service of process in any such action, suit, or proceeding and specifying the address to which a copy of such process shall be mailed to it by the secretary of state. In the event of service under this subparagraph upon the secretary of state, the plaintiff in any such action, suit, or proceeding shall furnish the secretary of state with the address specified in the certificate of merger or consolidation provided for in this section and any other address which the plaintiff may elect to furnish, together with copies of such process as required by the secretary of state, and the secretary of state shall notify such surviving or resulting other investment entity thereof at all such addresses furnished by the plaintiff by letter, certified mail, return receipt requested. Such letter shall enclose a copy of the process and any other papers served upon the secretary of state. It shall be the duty of the plaintiff in the event of such service to serve process and any other papers in duplicate, to notify the secretary of state that service is being made pursuant to this subparagraph, and to pay the secretary of state the sum of $50 for use of the state of New Hampshire, which sum shall be taxed as part of the costs in the proceeding, if the plaintiff shall prevail therein. The secretary of state shall maintain an alphabetical record of any such process setting forth the names of the plaintiff and defendant, the title, docket number, and nature of the proceedings in which process has been served upon him or her, the return date thereof, and the day and hour when the service was made. The secretary of state shall not be required to retain such information for a period longer than 5 years from his or her receipt of the service of process.

III. Any failure to file a certificate of merger or consolidation in connection with a merger or consolidation which was effective prior to the effective date of this chapter shall not affect the validity or effectiveness of any such merger or consolidation.

IV. Unless a future effective date or time is provided in a certificate of merger or consolidation, in which event a merger or consolidation shall be effective at any such future effective date or time, a merger or consolidation shall be effective upon the filing in the office of the secretary of state of a certificate of merger or consolidation.

V. A certificate of merger or consolidation shall act as a certificate of cancellation for a New Hampshire investment trust which is not the surviving or resulting entity in the merger or consolidation. A certificate of merger that sets forth any amendment in accordance with subparagraph II(d) of this section shall be deemed to be an amendment to the certificate of trust of the New Hampshire investment trust, and the New Hampshire investment trust shall not be required to take any further action to amend its certificate of trust under RSA 293-B:12 with respect to such amendments set forth in the certificate of merger. Whenever this section requires the filing of a certificate of merger or consolidation, such requirement shall be deemed satisfied by the filing of an agreement of merger or consolidation containing the information required by this section to be set forth in the certificate of merger or consolidation.

VI.

(a) Notwithstanding anything to the contrary contained in the governing instrument of a New Hampshire investment trust, a governing instrument of a New Hampshire investment trust containing a specific reference to this paragraph may provide that an agreement of merger or consolidation approved in accordance with paragraph I may:

(1) Effect any amendment to the governing instrument of the New Hampshire investment trust; or

(2) Effect the adoption of a new governing instrument of the New Hampshire investment trust if it is the surviving or resulting New Hampshire investment trust in the merger or consolidation.

(b) Any amendment to the governing instrument of a New Hampshire investment trust or adoption of a new governing instrument of the New Hampshire investment trust made pursuant to this paragraph shall be effective at the effective time or date of the merger or consolidation. The provisions of this paragraph shall not be construed to limit the accomplishment of a merger or consolidation or of any of the matters referred to herein by any other means provided for in the governing instrument of a New Hampshire investment trust or other agreement or as otherwise permitted by law, including that the governing instrument of any constituent New Hampshire investment trust to the merger or consolidation, including a New Hampshire investment trust formed for the purpose of consummating a merger or consolidation, shall be the governing instrument of the surviving or resulting New Hampshire investment trust.

VII. When any merger or consolidation shall have become effective under this section, for all purposes of the laws of the state of New Hampshire, all of the rights, privileges and powers of each of the New Hampshire investment trusts and other investment entities that have merged or consolidated, and all property, real, personal, and mixed, and all debts due to any of said New Hampshire investment trusts and other investment entities, as well as all other things and causes of action belonging to each of such New Hampshire investment trusts and other investment entities, shall have vested in the surviving or resulting New Hampshire investment trust or other investment entity, and shall thereafter be the property of the surviving or resulting New Hampshire investment trust or other investment entity as they were of each of the New Hampshire investment trusts and other investment entities that have merged or consolidated, and the title to any real property vested by deed or otherwise, under the laws of the state of New Hampshire, in any of such New Hampshire investment trusts and other investment entities, shall not revert or be in any way impaired by reason of this chapter; but all rights of creditors and all liens upon any property of any of said New Hampshire investment trusts and other investment entities shall be preserved unimpaired, and all debts, liabilities, and duties of each of the said New Hampshire investment trusts and other investment entities that have merged or consolidated shall thenceforth attach to the surviving or resulting New Hampshire investment trust or other investment entity, and may be enforced against it to the same extent as if said debts, liabilities, and duties had been incurred or contracted by it.

VIII. A governing instrument or an agreement of merger or consolidation may provide that contractual appraisal rights with respect to a beneficial interest or another interest in a New Hampshire investment trust shall be available for any class or group of beneficial owners or beneficial interests in connection with any amendment of a governing instrument, any merger or consolidation in which the New Hampshire investment trust is a constituent party to the merger or consolidation, or the sale of all or substantially all of the New Hampshire investment trust's assets. The New Hampshire courts shall have jurisdiction to hear and determine any matter relating to any such appraisal rights.

RSA 293-B:18

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