2010 Wyoming Statutes
Title 17 - Corporations, Partnerships And Associations
Chapter 23 - Wyoming Statutory Trust Act

CHAPTER 23 - WYOMING STATUTORY TRUST ACT

 

ARTICLE 1 - GENERAL PROVISIONS

 

17-23-101. Short title.

 

This chapter shall be known as the "Wyoming Statutory Trust Act."

 

17-23-102. Definitions.

 

 

(a) As used in this chapter:

 

(i) "Beneficial owner" means any owner of a beneficial interest in a statutory trust. The fact of ownership shall be determined and evidenced, whether by means of registration, the issuance of certificates or otherwise, in conformity to the applicable provisions of the governing instrument of the statutory trust;

 

(ii) "Governing instrument" means a trust instrument which creates a statutory trust and provides for the governance of the affairs of the statutory trust and the conduct of its business. A governing instrument may:

 

(A) Provide that a person shall become a beneficial owner and shall become bound by the governing instrument if the person, or a representative authorized by the 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; and

 

(B) Consist of one (1) or more agreements, instruments or other writings and may include or incorporate bylaws containing provisions relating to the business of the statutory trust, the conduct of its affairs and its rights or powers or the rights or powers of its trustees, beneficial owners, agents or employees.

 

(iii) "Other business entity" means a corporation, a partnership, a limited partnership, a limited liability company, a common-law trust or any other unincorporated business, excluding a statutory trust;

 

(iv) "Person" means a natural person, partnership, limited partnership, limited liability company, trust, estate, association, corporation, custodian, nominee or any other individual or entity in its own or any representative capacity;

 

(v) "Statutory trust" means an unincorporated association which:

 

(A) Is created by a trust instrument under which property is or will be held, managed, administered, controlled, invested, reinvested or operated, or business or professional activities for profit are carried on or will be carried on, by a trustee or trustees for the benefit of a person who is or may become entitled to a beneficial interest in the trust property, including but not limited to a trust of the type known at common law as a "business trust," "Massachusetts trust," a trust qualifying as a real estate investment trust under sections 856 through 859 of the United States Internal Revenue Code of 1986, as amended, or under any successor provision, or a trust qualifying as a real estate mortgage investment conduit under section 860D of the United States Internal Revenue Code of 1986, as amended, or under any successor provision; and

 

(B) Files a certificate of trust pursuant to W.S. 17-23-114. Any association meeting the definition of this paragraph whether organized before or after the effective date of this chapter shall be a statutory trust and a separate legal entity.

 

(vi) "Trustee" means the person or persons appointed as a trustee in accordance with the governing instrument of a statutory trust, and may include the beneficial owners or any of them.

 

17-23-103. Purpose.

 

Statutory trusts may be organized under this chapter for any lawful purpose, except acting as an insurer as defined in W.S. 26-1-102(a)(xvi), or acting as a financial institution as defined by W.S. 13-1-101(a)(ix) or its successor statute, whether or not conducted for profit, or for any of the purposes referred to in W.S. 17-23-102(a)(v)(A) including, without limitation, for the purpose of holding or otherwise taking title to property, whether in an active or custodial capacity.

 

17-23-104. Contributions by beneficial owners.

 

 

(a) A contribution of a beneficial owner to the statutory trust may be in cash, property or services rendered, or a promissory note or other obligation to contribute cash or property or to perform services. A person may become a beneficial owner of a statutory trust and may receive a beneficial interest in a statutory trust without making a contribution or being obligated to make a contribution to the statutory trust.

 

(b) Except as provided in the governing instrument, a beneficial owner is obligated to the statutory trust to perform any promise to contribute cash, property or to perform services, even if the beneficial owner is unable to perform because of death, disability or any other reason. If a beneficial owner does not make the required contribution of property or services, the beneficial owner is obligated at the option of the statutory trust to contribute cash equal to that portion of the agreed value, as stated in the records of the statutory trust, of the contribution that has not been made. The cash contribution shall be in addition to any other rights, including the right to specific performance, that the statutory trust may have against the beneficial owner under the governing instrument or applicable law.

 

(c) A governing instrument may provide that the interest of any beneficial owner who fails to make any contribution that he is obligated to make shall be subject to specific penalties or consequences for the failure. The penalty or consequence may take the form of:

 

(i) Reducing or eliminating the defaulting beneficial owner's proportionate interest in the statutory trust;

 

(ii) Subordinating his beneficial interest to that of nondefaulting beneficial owners;

 

(iii) A forced sale of his beneficial interest;

 

(iv) Forfeiture of his beneficial interest;

 

(v) The lending by other beneficial owners of the amount necessary to meet his commitment;

 

(vi) Fixing of the value of his beneficial interest by appraisal or by formula and redemption or sale of his beneficial interest at that value; or

 

(vii) Any other penalty or consequence.

 

17-23-105. Liability of beneficial owners and trustees.

 

 

(a) Except to the extent otherwise provided in the governing instrument, the beneficial owner shall be entitled to any limitations of personal liability extended to shareholders of private corporations for profit organized under the Wyoming Business Corporation Act or extended to members of limited liability companies organized under the Wyoming Limited Liability Company Act.

 

(b) Except to the extent otherwise provided in the governing instrument, a trustee, when acting in that capacity, shall not be personally liable to any persons other than the statutory trust or a beneficial owner for any act, omission or obligation of the statutory trust or any trustee. Notwithstanding the provisions of W.S. 17-23-113, trustees of a statutory trust shall not be held to a more rigorous standard of care than that imposed upon directors of a business corporation under the Wyoming Business Corporation Act.

 

17-23-106. Legal proceedings.

 

 

(a) A statutory trust may sue and be sued in its own name, and service of process upon any one (1) of the trustees or upon the registered agent shall be sufficient. A statutory trust may be sued for debts and other obligations or liabilities contracted or incurred by the trustees, or by the duly authorized agents of the trustees, in the performance of their respective duties under the governing instrument of the statutory trust, and for any damages to persons or property resulting from the negligence of the trustees or agents acting in the performance of their respective duties. The property of a statutory trust shall be subject to attachment and execution pursuant to the Wyoming Statutes of Civil Procedure, as if it were a corporation.

 

(b) Notwithstanding the provisions of subsection (a) of this section, in the event that the governing instrument of a statutory trust which is a registered investment company under the Investment Company Act of 1940, as amended, creates one (1) or more series as provided in W.S. 17-23-108(b)(ii), the debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to a particular series shall be enforceable against the assets of that series only, and not against the assets of the statutory trust generally if:

 

(i) Separate and distinct records are maintained for the series;

 

(ii) The assets associated with the series are held and accounted for separately from the other assets of the statutory trust, or any other series of that trust; and

 

(iii) The governing instrument so provides, and notice of the limitation on liabilities of a series as referenced in this subsection is set forth in the certificate of trust of the statutory trust.

 

(c) A trustee of a statutory trust may be served with process in the manner prescribed in subsection (d) of this section in all civil actions or proceedings brought in this state involving or relating to the activities of the statutory trust or a violation by a trustee of a duty to the statutory trust, or any beneficial owner, whether or not the trustee is a trustee at the time suit is commenced. Every resident or nonresident of the state who accepts election or appointment or serves as a trustee of a statutory trust shall, by the acceptance or service, have consented to the appointment of the registered agent of the statutory trust required by W.S. 17-23-109 as that person's agent upon whom service of process may be made as provided in this section. Any process served in accordance with this section shall be of the same legal force and validity as if served upon the trustee within the state and the appointment of the registered agent shall be irrevocable.

 

(d) Service of process shall be effected by serving a Wyoming trustee or registered agent of the statutory trust required by W.S. 17-23-109, with one (1) copy of the process in the manner provided by law for service of process.

 

(e) In the governing instrument or other writing, a trustee may consent to be subject to the nonexclusive jurisdiction of the courts of, or arbitration in, a specified jurisdiction, or the exclusive jurisdiction of the courts of, or the exclusivity of arbitration in, this state, and to be served with legal process in the manner prescribed in the governing instrument or other writing.

 

(f) Nothing in this section limits or affects the right to serve process in any other manner provided by law. This section is an extension of and not a limitation upon the right otherwise existing of service of legal process upon nonresidents.

 

(g) A partnership, limited partnership, corporation, limited liability company or other nonnatural person formed or organized under the laws of any foreign country or other foreign jurisdiction or the laws of any state other than the state of Wyoming shall not be deemed to be doing business in the state solely by reason of its being a trustee of a statutory trust.

 

17-23-107. Rights of beneficial owners in trust property.

 

 

(a) Except to the extent otherwise provided in the governing instrument, a beneficial owner shall have an undivided beneficial interest in the property of the statutory trust and shall share in the profits or losses of the statutory trust in the proportion of the entire undivided beneficial interest in the statutory trust he owns. The governing instrument of a statutory trust may provide that the statutory trust or the trustees, acting for and on behalf of the statutory trust, shall be deemed to hold beneficial ownership of any income earned on securities of the statutory trust issued by any business entities formed, organized or existing under the laws of any jurisdiction, including the laws of any foreign country.

 

(b) No creditor of the beneficial owner shall have any right to obtain possession of, or otherwise exercise legal or equitable remedies with respect to, the property of the statutory trust.

 

(c) A beneficial owner's beneficial interest in the statutory trust is personal property notwithstanding the nature of the property of the trust. Except to the extent otherwise provided in the governing instrument, a beneficial owner has no interest in specific statutory trust property.

 

(d) Except to the extent otherwise provided in the governing instrument, the transferee of a beneficial owner's beneficial interest in the statutory trust shall only be entitled to receive the share of profits and the return of contributions to which the beneficial owner otherwise would be entitled. In the absence of the unanimous written consent of the owners of all other beneficial interests and of all trustees of the statutory trust, and except to the extent otherwise provided in the governing instrument, a transferee of a beneficial owner's beneficial interest shall have no right to participate in, be kept apprised of the affairs of the statutory trust or to become a beneficial owner of a beneficial interest in the statutory trust.

 

(e) Except to the extent otherwise provided in the governing instrument, at the time a beneficial owner becomes entitled to receive a distribution, he has the status of, and is entitled to all remedies available to, a creditor of the statutory trust with respect to the distribution. A governing instrument may provide for the establishment of record dates with respect to allocations and distributions by a statutory trust.

 

17-23-108. Management of statutory trust.

 

 

(a) The business and affairs of a statutory trust shall be managed by or under the direction of its trustees. To the extent provided in the governing instrument, any person, including a beneficial owner, shall be entitled to direct the trustees in the management of a statutory trust. Except to the extent otherwise provided in the governing instrument, neither the power to give direction to a trustee nor the exercise thereof by any person, including a beneficial owner, shall cause the person to be a trustee.

 

(b) A governing instrument may contain any provision relating to the management of the business and affairs of the statutory 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 may:

 

(i) Provide for classes, groups or series of trustees or beneficial owners, or classes, groups or series of beneficial interests, having the 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 be established, including rights, powers and duties senior or subordinate to existing classes, groups or series of trustees, beneficial owners or beneficial interests;

 

(ii) 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 statutory trust or profits and losses associated with specified property or obligations, and, to the extent provided in the governing instrument, any designated series may have a separate business purpose or investment objective;

 

(iii) Provide for the taking of any action, including the amendment of the governing instrument, the accomplishment of a merger or consolidation, the appointment of one (1) or more trustees, the sale, lease, exchange, transfer, pledge or other disposition of all or any part of the assets of the statutory trust or the assets of any series, or the dissolution of the statutory 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 of or approval of any particular trustee or beneficial owner, or class, group or series of trustees or beneficial owners;

 

(iv) Grant to, or withhold from, all or certain trustees or beneficial owners, or a specified class, group or series of trustees or beneficial owners, the right to vote, separately or with any other classes, groups or series of the trustees or beneficial owners, on any matter, with voting being on a per capita, number, financial interest, class, group series or any other basis;

 

(v) 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 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 right to vote;

 

(vi) Provide for the present or future creation of more than one (1) statutory trust, including the creation of a future statutory trust to which all or any part of the assets, liabilities, profits or losses of any existing statutory trust will be transferred, and for the conversion of beneficial interests in an existing statutory trust, or series thereof, into beneficial interests in the separate statutory trust, or series thereof.

 

(c) To the extent that, at law or in equity, a trustee has duties, including fiduciary duties, and liabilities relating to a statutory trust or to a beneficial owner:

 

(i) Any trustee acting under a governing instrument shall not be liable to the statutory trust or to any beneficial owner for the trustee's good faith reliance on the provisions of the governing instrument; and

 

(ii) The trustee's duties and liabilities may be expanded or restricted by provisions in a governing instrument.

 

17-23-109. Registered office and registered agent to be maintained.

 

(a) Each statutory trust shall have and continuously maintain in this state:

 

(i) A registered office as provided in W.S. 17-28-101 through 17-28-111; and

 

(ii) A registered agent as provided in W.S. 17-28-101 through 17-28-111.

 

(b) The provisions of W.S. 17-28-101 through 17-28-111 shall apply to all statutory trusts.

 

17-23-110. Repealed by Laws 2008, Ch. 90, 3.

 

17-23-111. Failure to maintain registered agent or registered office or pay annual fee.

 

If any statutory trust has failed to comply with the provisions of W.S. 17-28-101 through 17-28-111 or has failed to pay the fee required by W.S. 17-23-117, it is transacting business within this state without authority and shall forfeit any franchises, rights or privileges acquired under the laws of this state. The forfeiture shall be made effective in the following manner. The secretary of state shall mail by certified mail a notice of its failure to comply. Unless compliance is made within sixty (60) days of the delivery of notice, the statutory trust shall be deemed defunct and to have forfeited its certificate of organization acquired under the laws of this state. Any defunct statutory trust may at any time within two (2) years after the forfeiture of its certificate, be revived and reinstated, by filing the necessary statement under this chapter and paying the prescribed fee, together with a penalty of one hundred dollars ($100.00). The statutory trust shall retain its registered name during the two (2) year reinstatement period.

 

17-23-112. Existence of statutory trust.

 

 

(a) Except to the extent otherwise provided in the governing instrument, the statutory trust shall have perpetual existence.

 

(b) Except to the extent otherwise provided in the governing instrument, the death, incapacity, dissolution, termination or bankruptcy of a beneficial owner shall not result in the termination or dissolution of a statutory trust.

 

17-23-113. Applicability of trust law.

 

Except to the extent otherwise provided in the governing instrument or in this chapter, the laws of this state pertaining to trusts are hereby made applicable to statutory trusts. A statutory trust complying with the provisions of this chapter shall not be considered a financial institution as defined in W.S. 13-1-101(a)(ix).

 

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 any trademark or service mark registered in this state and shall be distinguishable upon the records of the secretary of state from other business names as required by W.S. 17-16-401;

 

(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 acting as an insurer as defined in W.S. 26-1-102(a)(xvi), 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.