Delaware § 3881 Control beneficial interest acquisition definitions

Delaware Statutes

§ 3881 — Control beneficial interest acquisition definitions

Delaware·Title 12·Part Fiduciary Relations·Ch. 38 TREATMENT OF DELAWARE STATUTORY TRUSTS·Subch. Control Beneficial Interest Acquisitions

(a)“1940 Act” means the Investment Company Act of 1940, as amended (15 U.S.C. § 80a-1 et seq.), or any successor statute thereto.

(b)“Acquiring person” means a person who makes or proposes to make a control beneficial interest acquisition.

(c)“Associate,” when used to indicate a relationship with any person, means:

(1)Any other person (other than the statutory trust or a subsidiary of the statutory trust) of which such person is an officer, director, or partner or is, directly or indirectly, the holder of 10% or more of any class of equity securities;

(2)Any trust, corporation or other entity in which such person has a substantial beneficial interest or as to which such person serves as a director, trustee or in a similar fiduciary capacity;

(3)Any relative or spouse of such per

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(a) “1940 Act” means the Investment Company Act of 1940, as amended (15 U.S.C. § 80a-1 et seq.), or any successor statute thereto.

(b) “Acquiring person” means a person who makes or proposes to make a control beneficial interest acquisition.

(c) “Associate,” when used to indicate a relationship with any person, means:

(1) Any other person (other than the statutory trust or a subsidiary of the statutory trust) of which such person is an officer, director, or partner or is, directly or indirectly, the holder of 10% or more of any class of equity securities;

(2) Any trust, corporation or other entity in which such person has a substantial beneficial interest or as to which such person serves as a director, trustee or in a similar fiduciary capacity;

(3) Any relative or spouse of such person, or any relative of such spouse, who has the same home as such person or who is a trustee or officer of the statutory trust or any of its affiliates; or

(4) Any other person that:

a. Directly or indirectly controls, or is controlled by, or is under common control with, the person specified, which will include any investment fund or other collective investment vehicle that has the same investment adviser as the person specified;

b. Is acting as an investment adviser with regard to any person specified that is an investment fund or other collective investment vehicle; or

c. Is acting or intends to act jointly or in concert with the person specified.

(d) (1) “Control beneficial interest acquisition” means the acquisition, directly or indirectly, by any person of ownership of, or the power to direct the exercise of voting power with respect to, issued and outstanding control beneficial interests.

(2) “Control beneficial interest acquisition” does not include the acquisition of beneficial interests:

a. Before August 1, 2022;

b. Under a contract entered into before August 1, 2022, creating a binding obligation to purchase beneficial interests at a set price;

c. Under the laws of descent and distribution;

d. Under the satisfaction of a pledge or other security interest created in good faith and not for the purpose of circumventing this subchapter as determined by the trustees; or

e. Under a merger or consolidation effected under § 3815 of this title if the statutory trust is the surviving or resulting party in the merger or consolidation, except with respect to any shares issued to a holder of control beneficial interests in the target party.

(e) (1) “Control beneficial interests” means beneficial interests that, except for this subchapter, would, if aggregated with all other beneficial interests of the statutory trust (including beneficial interests the acquisition of which is excluded from “control beneficial interest acquisition” in paragraph (d)(2) of this section) owned by a person or in respect of which that person is entitled to exercise or direct the exercise of voting power (whether such power is direct or indirect or through any contract, arrangement, understanding, relationship or otherwise), except solely by virtue of a revocable proxy, entitle that person, directly or indirectly, to exercise or direct the exercise of the voting power of beneficial interests of the statutory trust in the election of trustees (either generally or with respect to any subset, series or class of trustees, including any trustees elected solely by a particular series or class of beneficial interests) within any of the following ranges of voting power:

a. Ten percent or more, but less than 15% of all voting power;

b. Fifteen percent or more, but less than 20% of all voting power;

c. Twenty percent or more, but less than 25% of all voting power;

d. Twenty-five percent or more, but less than 30% of all voting power;

e. Thirty percent or more, but less than a majority of all voting power; or

f. A majority or more of all voting power.

Notwithstanding the foregoing, a member of a national securities exchange shall not be deemed to be a beneficial owner of beneficial interests held directly or indirectly by it on behalf of another person solely because such member is the record holder of such securities and, pursuant to the rules of such exchange, may direct the vote of such beneficial interests, without instruction, on other than contested matters or matters that may affect substantially the rights or privileges of the holders of the beneficial interests to be voted but is otherwise precluded by the rules of such exchange from voting without instructions.

(2) “Control beneficial interests” includes:

a. Beneficial interests of a statutory trust only to the extent that the acquiring person, following the acquisition of the beneficial interests, is entitled, directly or indirectly, to exercise or direct the exercise of voting power within any level of voting power set forth in this section for which approval has not been obtained under § 3883 of this title; provided that, if the statutory trust subsequently issues additional beneficial interests, all control beneficial interests prior to such issuance will remain control beneficial interests, even if they represent a percentage of voting power that is below the ranges described in paragraph (e)(1) of this section; and

b. Beneficial interests of a statutory trust acquired within any range of voting power described in paragraph (e)(1) of this section, even if the initial beneficial interests acquired within the applicable range of voting power are excluded from a control beneficial interest acquisition, including due to a reduction in the beneficial interests outstanding due to the statutory trust repurchasing or redeeming beneficial interests.

(f) “Interested beneficial interests” means beneficial interests of a statutory trust in respect of which any of the following persons is entitled to exercise or direct the exercise of the voting power of beneficial interests of the statutory trust in the election of trustees:

(1) An acquiring person;

(2) An officer of the statutory trust;

(3) An employee of the statutory trust who is also a trustee of the statutory trust; or

(4) A trustee of the statutory trust who is an “interested person” of the statutory trust as defined in the 1940 Act or any rule adopted thereunder.

(g) “Person” includes an associate of the person.

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