WYOMING STATUTORY TRUST ACT enacted in Wyoming, 1995 Session, Part 2 of 2 Section 1 of the Act, Wyoming Statutes 17-23-114 through end Source State of Wyoming, telnet: ferret.state.wy.us, sign on as ferret ---------------------------------------------------------------------------- 17-23-114. Certificate of trust; amendment; cancellation. (a) Every statutory trust shall file a certificate of trust in the office of the secretary of state. The certificate of trust shall set forth: (i) The name of the statutory trust, which shall not be the same as, or deceptively similar to the name of any statutory trust company, profit or nonprofit corporation, trade name, trademark, limited liability company or limited partnership organized, continued or domesticated under the laws of this state or licensed or registered as a foreign profit or nonprofit corporation, foreign limited partnership, foreign joint stock company or foreign limited liability company in this state or any fictitious or reserved name; (ii) The name and the business address of at least one (1) of the trustees authorized to manage the statutory trust; (iii) The future effective date or time of the certificate if it is not to be effective upon the filing of the certificate; and (iv) Any other information the trustee determines to include. (b) A certificate of trust may be amended by filing a certificate of amendment in the office of the secretary of state. The certificate of amendment shall set forth: (i) The name of the statutory trust; (ii) The amendment to the certificate; and (iii) The future effective date or time of the certificate if it is not to be effective upon the filing of the certificate. (c) A certificate of trust may be amended at any time for any purpose as the trustees may determine. A trustee who becomes aware that any statement in a certificate of trust was false when made or that any matter described has changed making the certificate false in any material respect, shall promptly file a certificate of amendment. (d) A certificate of trust shall be canceled upon the completion of winding up of the statutory trust and its termination. A certificate of cancellation shall be filed in the office of the secretary of state and set forth: (i) The name of the statutory trust; (ii) The date of filing of its certificate of trust; (iii) The future effective date or time of cancellation if it is not to be effective upon the filing of the certificate; and (iv) Any other information the trustee determines to include. 17-23-115. Execution of certificate. (a) Each certificate required by this chapter to be filed with the secretary of state shall be executed in the following manner: (i) A certificate of trust shall be signed by at least one (1) of the trustees; (ii) A certificate of amendment shall be signed by at least one (1) of the trustees; (iii) A certificate of cancellation shall be signed by all of the trustees or as otherwise provided in the governing instrument; (iv) If a statutory trust is filing a certificate of merger or consolidation, the certificate of merger or consolidation shall be signed by all of the trustees or as otherwise provided in the governing instrument. If the certificate of merger or consolidation is being filed by another business entity, the certificate of merger or consolidation shall be signed by a person authorized to execute the instrument on behalf of the other business entity; and (v) The certificate of trust shall be accompanied by a written consent to appointment manually signed by the registered agent. (b) The execution of a certificate by a trustee constitutes an oath or affirmation, under the penalties of false swearing of W.S. 6-5-303, that, to the best of the trustee's knowledge and belief, the facts stated are true. 17-23-116. Filing of certificate; effective date; fee; organization. (a) The original signed copy together with a duplicate copy, which may be either a signed or conformed copy, of the certificate of trust and any certificates of amendment or cancellation or any certificate of merger or consolidation shall be delivered to the secretary of state. Unless the secretary of state finds that any certificate does not conform to law, upon receipt of all filing fees required he shall: (i) Certify that the certificate of trust, the certificate of amendment, the certificate of cancellation or the certificate of merger or consolidation has been filed in his office by endorsing upon the original and duplicate copy of the certificate the word "Filed," and the date and hour of the filing. This endorsement is conclusive of the date and time of its filing in the absence of actual fraud; (ii) File and index the original endorsed certificate; and (iii) Issue a certificate of organization to which he shall affix the duplicate copy of the certificate of trust. In the case of the filing of any certificate other than a certificate of trust, the secretary of state shall return the duplicate copy, similarly endorsed, to the person who filed it or his representative. (b) A certificate of trust, certificate of amendment, certificate of cancellation or certificate of merger or consolidation which acts as a certificate of cancellation shall be effective as provided in W.S. 17-23-118. (c) A fee as set forth in W.S. 17-23-117 shall be paid at the time of the filing of a certificate of trust, a certificate of amendment, a certificate of cancellation or a certificate of merger or consolidation. (d) Upon the issuance of the certificate of organization, the statutory trust shall be considered organized. The certificate of organization shall be conclusive evidence that all conditions precedent required to be performed by the trustee and beneficial owners have been complied with and that the statutory trust has been legally organized under this chapter, except as against this state in a proceeding to cancel or revoke the certificate of organization or for involuntary dissolution of the statutory trust. (e) A statutory trust shall not transact business or incur indebtedness, except that which is incidental to its organization or until the secretary of state has issued a certificate of organization. 17-23-117. Administration; filing, service and copying fees; annual fee. (a) The secretary of state has the power reasonably necessary to perform the duties required by this chapter. The secretary of state shall promulgate reasonable rules and regulations necessary to carry out the purposes of this chapter. (b) The secretary of state shall set and collect filing, service and copying fees to recover costs to administer this chapter. Fees shall not exceed the costs of providing these services. (c) The secretary of state shall collect an annual tax of one hundred dollars ($100.00), due and payable January 2 of each year. This tax is delinquent if not paid by February 1 and an addition to the tax shall then be due of one hundred dollars ($100.00). 17-23-118. Effective time and date of document. (a) Except as provided in subsection (b) of this section, a document accepted for filing is effective: (i) At the time of filing on the date it is filed, as evidenced by the secretary of state's date and time endorsement on the original document; or (ii) At the time specified in the document as its effective time on the date it is filed. (b) A document may specify a delayed effective time and date, which shall be a date and time certain, and if it does so the document becomes effective at the time and date specified. If a delayed effective date but no time is specified, the document is effective at the close of business on that date. A delayed effective date for a document may not be later than ninety (90) days after the date it is filed. 17-23-119. Reserved name. (a) A person may apply to reserve the exclusive use of a statutory trust name by delivering an application to the secretary of state for filing. The application shall set forth the name and address of the applicant and the name proposed to be reserved. If the secretary of state finds that the statutory trust name applied for is available, the secretary shall file the application and reserve the name for the applicant's exclusive use for a nonrenewable one hundred twenty (120) day period. (b) The owner of a reserved statutory trust name may transfer the reservation to another person by delivering to the secretary of state a manually signed notice of the transfer that states the name and address of the transferee. 17-23-120. Derivative actions. (a) A beneficial owner may bring an action in the district court in the right of a statutory trust to recover a judgment in its favor if trustees with authority to do so have refused to bring the action or if an effort to cause those trustees to bring the action is not likely to succeed. (b) In a derivative action, the plaintiff must be a beneficial owner at the time of bringing the action and: (i) At the time of the transaction of which he complains; or (ii) His status as a beneficial owner had devolved upon him by operation of law or pursuant to the terms of the governing instrument of the statutory trust from a person who was a beneficial owner at the time of the transaction. (c) In a derivative action, the complaint shall set forth with particularity the effort, if any, of the plaintiff to secure initiation of the action by the trustees, or the reasons for not making the effort. (d) If a derivative action is successful, in whole or in part, or if anything is received by a statutory trust as a result of a judgment, compromise or settlement of any derivative action, the court may award the plaintiff reasonable expenses, including reasonable attorney's fees. If anything is so received by the plaintiff, the court shall make the award of the plaintiff's expenses payable out of those proceeds and direct the plaintiff to remit to the statutory trust the remainder of the proceeds. If those proceeds are insufficient to reimburse the plaintiff's reasonable expenses, the court may direct that any award of plaintiff's expenses or portion thereof be paid by the statutory trust. (e) A beneficial owner's right to bring a derivative action may be subject to additional standards and restrictions, if any, as are set forth in the governing instrument, including, without limitation, the requirement that beneficial owners owning a specified beneficial interest in the statutory trust join in the bringing of the derivative action. 17-23-121. Indemnification. (a) Subject to standards and restrictions, if any, as are set forth in the governing instrument, a statutory trust shall have the power to indemnify and hold harmless any trustee or beneficial owner or other person from and against any and all claims and demands whatsoever. (b) The absence of a provision for indemnity in the governing instrument shall not be construed to deprive any trustee or beneficial owner or other person of any right to indemnity which is otherwise available to the person under the laws of this state. ARTICLE 2 MERGER, CONSOLIDATION AND CONTINUANCE 17-23-201. Merger and consolidation. (a) Pursuant to an agreement of merger or consolidation, a statutory trust may merge or consolidate with or into one (1) or more statutory trusts or other business entities formed or organized or existing under the laws of this state or any other state of the United States or any foreign country or other foreign jurisdiction, with the statutory trust or other business entity as the agreement provides being the surviving or resulting statutory trust or other business entity. Unless otherwise provided in the governing instrument of a statutory trust, a merger or consolidation shall be approved by all of the trustees and the beneficial owners of each statutory trust which is to merge or consolidate. In connection with a merger or consolidation, rights or securities of, or interests in, a statutory trust or other business 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 statutory trust or other business entity or, in addition to or in lieu thereof, may be exchanged for or converted into cash, property, rights or securities of, or interests in, a statutory trust or other business entity which is not the surviving or resulting statutory trust or other business entity in the merger or consolidation. Notwithstanding prior approval, an agreement of merger or consolidation may be terminated or amended pursuant to a provision for termination or amendment contained in the agreement of merger or consolidation. (b) If a statutory trust is merging or consolidating under this section, the statutory trust or other business entity surviving or resulting from the merger or consolidation shall file a certificate of merger or consolidation in the office of the secretary of state. The certificate of merger or consolidation shall state: (i) The name and jurisdiction of formation or organization of each statutory trust or other business entity which is to merge or consolidate; (ii) That an agreement of merger or consolidation has been approved and executed by each statutory trust or other business entity which is to merge or consolidate; (iii) The name of the surviving or resulting statutory trust or other business entity; (iv) The future effective date or time of the merger or consolidation if it is not to be effective upon the filing of the certificate of merger or consolidation; (v) That the executed agreement of merger or consolidation is on file at the principal place of business of the surviving or resulting statutory trust or other business entity, and the address thereof; (vi) That a copy of the agreement of merger or consolidation will be furnished by the surviving or resulting statutory trust or other business entity, on request and without cost, to any beneficial owner of any statutory trust or any person holding an interest in any other business entity which is to merge or consolidate; and (vii) If the surviving or resulting entity is not a statutory trust or other business entity formed or organized or existing under the laws of this state, a statement that the surviving or resulting other business entity agrees that it may be served with process in this state in any action, suit or proceeding for the enforcement of any obligation of any statutory trust which is to merge or consolidate. The statement shall irrevocably appoint the secretary of state as the agent to accept service of process in any such action, suit or proceeding and specify the address to which a copy of the process shall be mailed by the secretary of state. In the event of service under this paragraph upon the secretary of state, the plaintiff shall furnish the secretary of state with the address specified in the certificate of merger or consolidation provided for in this paragraph and any other address which the plaintiff may elect to furnish, together with copies of the process required by the secretary of state. The secretary of state shall notify the surviving or resulting other business entity at all addresses furnished by the plaintiff by letter, certified mail, return receipt requested. The 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 paragraph, and to pay the secretary of state the sum of fifty dollars ($50.00) for use of the state, which shall be taxed as part of the costs in the proceeding, if the plaintiff shall prevail. The secretary of state shall maintain an alphabetical record of any process under this paragraph setting forth the name of the plaintiff and defendant, the title, docket number and nature of the proceedings in which process has been served upon him, the return date thereof, and the day and hour when the service was made. The secretary of state shall not be required to retain the information for a period longer than five (5) years from his receipt of the service of process. (c) 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 the 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. (d) A certificate of merger or consolidation shall act as a certificate of cancellation for a statutory trust which is not the surviving or resulting entity in the merger or consolidation. (e) Notwithstanding anything to the contrary contained in the governing instrument, a governing instrument containing a specific reference to this subsection may provide that an agreement of merger or consolidation approved in accordance with subsection (a) of this section may: (i) Effect any amendment to the governing instrument of the statutory trust; or (ii) Effect the adoption of a new governing instrument of the statutory trust if it is the surviving or resulting statutory trust in the merger or consolidation. (f) Any amendment to the governing instrument of a statutory trust or adoption of a new governing instrument of the statutory trust made pursuant to subsection (e) of this section shall be effective at the effective time or date of the merger or consolidation. The provisions of subsection (e) of this section and this subsection shall not be construed to limit the accomplishment of a merger or consolidation or of any of the matters referred to in this article by any other means provided for in the governing instrument of a statutory trust or other agreement or as otherwise permitted by law, including that the governing instrument of any constituent statutory trust to the merger or consolidation, including a statutory trust formed for the purpose of consummating a merger or consolidation, shall be the governing instrument of the surviving or resulting statutory trust. (g) When any merger or consolidation shall have become effective under this section, for all purposes of the laws of the state, all of the rights, privileges and powers of each of the statutory trusts and other business entities that have merged or consolidated, and all property, real, personal and mixed, and all debts due to any of those statutory trusts and other business entities, as well as all other things and causes of action belonging to each of such statutory trusts and other business entities, shall be vested in the surviving or resulting statutory trust or other business entity as they were of each of the statutory trusts and other business entities that have merged or consolidated. The title to any real property vested by deed or otherwise, under the laws of the state, in any of merging or consolidating statutory trusts and other business entities, shall not revert or be in any way impaired by reason of this chapter. All rights of creditors and all liens upon any property of any merging or consolidating statutory trusts and other business entities shall be preserved unimpaired, and all debts, liabilities and duties of each of the statutory trusts and other business entities that have merged or consolidated shall attach to the surviving or resulting statutory trust or other business entity, and may be enforced against it to the same extent as if the debts, liabilities and duties had been incurred or contracted by it. 17-23-202. Continuance of foreign statutory trusts. (a) Subject to subsection (b) of this section, any statutory trust created for any purpose except insurance or acting as a financial institution as defined by W.S. 13-1-101(a)(ix) or its successor statute, under the laws of any jurisdiction other than this state may, if the jurisdiction will acknowledge the statutory trust's termination of domicile in the foreign jurisdiction, apply to the secretary of state for registration under this chapter, thus continuing the statutory trust in Wyoming as if it had been organized under the laws of this state. The secretary of state may issue a certificate of continuance upon receipt of an application for continuance as provided in subsection (c) of this section. The certificate of continuance may then be issued subject to any limitations and conditions and may contain any provisions as appear proper to the secretary of state. (b) The secretary of state shall cause notice of issuance of a certificate of continuance to be given forthwith to the proper officer of the jurisdiction in which the statutory trust was previously organized. (c) The application for continuance filed by a foreign statutory trust with the secretary of state shall include: (i) A certified copy of its original certificate of trust and all amendments thereto or its equivalent; (ii) The name of the statutory trust and the jurisdiction under the laws of which it is organized; (iii) The date of organization and the period of duration of the statutory trust; (iv) The address of the principal office of the statutory trust; (v) The street address of the proposed registered office of the statutory trust in this state and the name of its proposed registered agent in this state at the address; (vi) The purpose or purposes of the statutory trust which it proposes to pursue in the transaction of business in this state; (vii) Any information concerning capital structure or financial status the secretary of state deems necessary to establish fees and taxes under the laws of this state; (viii) Any additional information necessary or appropriate to enable the secretary of state to determine whether the statutory trust is entitled to a certificate of organization evidencing its existence and authority to transact business in this state. (d) The application shall be executed by the statutory trust by its trustees or a trustee who is authorized to execute the application on behalf of the statutory trust and shall be verified by the trustee signing the application. (e) The provisions of the application for continuance may without expressly so stating, vary from the provisions of the statutory trust's certificate of trust or governing instrument or equivalent, if the variation is one which a statutory trust organized under the Wyoming Statutory Trust Act could effect by way of amendment to its certificate of trust or governing instrument. Upon issuance of a certificate of continuance by the secretary of state, the certificate of continuance shall be the certificate of trust of the continued statutory trust. The statutory trust may elect to incorporate by reference in and attachment to the application for continuance its original certificate of trust or other authorization which had been adopted by the statutory trust in the foreign jurisdiction, in order to permit the original to continue to act as the certificate of trust of the statutory trust provided, however, that the original certificate of trust or other authorization shall be deemed amended to the extent necessary to make it conform to the laws of this state. (f) The existence of any statutory trust issued a certificate of continuance under this chapter shall be deemed to have commenced on the date the statutory trust commenced its existence in the jurisdiction in which the statutory trust was first formed, organized or otherwise came into being. The laws of this state shall apply to a statutory trust continuing under this chapter to the same extent as if the statutory trust had been organized under the laws of this state from and after the issuance of a certificate of continuance under this chapter by the secretary of state to the statutory trust. When a foreign statutory trust is continued as a statutory trust under this chapter, the continuance shall not affect the statutory trust's ownership of its property or liability for any existing obligations, causes of action, claims, pending or threatened prosecutions or civil or administrative actions, convictions, rulings, orders, judgments or any other characteristics or aspects of the statutory trust and its existence. (g) As used in this section, the term "statutory trust" shall include any business trust, association or similar entity which appears to the secretary of state to possess characteristics sufficiently similar to those of a statutory trust organized under the Wyoming Statutory Trust Act. ARTICLE 3 EFFECTIVENESS 17-23-301. Reserved power of state to amend or repeal chapter. All provisions of this chapter may be altered from time to time or repealed and all rights of statutory trusts, trustees, beneficial owners and other persons are subject to this reservation. 17-23-302. Construction and application of chapter and governing instrument. (a) The rule that statutes in derogation of the common law are to be strictly construed shall have no application to this chapter. (b) It is the policy of this chapter to give maximum effect to the principle of freedom of contract and to the enforceability of governing instruments. Section 2. This act is effective July 1, 1995. (END) __________________________ __________________________ Speaker of the House President of the Senate __________________________ Governor TIME APPROVED: ___________ DATE APPROVED: ___________ I hereby certify that this act originated in the House. ________________________________ Chief Clerk --------------- End of Part 2 of 2 -- John DeBruyn, Denver, Colorado, The Mile High City, USA (jdebruyn@usa.net)