State Codes and Statutes

Statutes > Wyoming > Title17 > Chapter23

CHAPTER 23 - WYOMING STATUTORY TRUST ACT

 

ARTICLE 1 - GENERAL PROVISIONS

 

17-23-101. Short title.

 

Thischapter 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 abeneficial interest in a statutory trust. The fact of ownership shall bedetermined and evidenced, whether by means of registration, the issuance ofcertificates or otherwise, in conformity to the applicable provisions of thegoverning instrument of the statutory trust;

 

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

 

(A) Provide that a person shall become a beneficial owner andshall become bound by the governing instrument if the person, or a representativeauthorized by the person orally, in writing or by other action such as paymentfor a beneficial interest, complies with the conditions for becoming abeneficial owner set forth in the governing instrument or any other writing andacquires a beneficial interest; and

 

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

 

(iii) "Other business entity" means a corporation, apartnership, a limited partnership, a limited liability company, a common-lawtrust 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 orany representative capacity;

 

(v) "Statutory trust" means an unincorporatedassociation which:

 

(A) Is created by a trust instrument under which property is orwill be held, managed, administered, controlled, invested, reinvested oroperated, or business or professional activities for profit are carried on orwill be carried on, by a trustee or trustees for the benefit of a person who isor 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 qualifyingas a real estate investment trust under sections 856 through 859 of the UnitedStates Internal Revenue Code of 1986, as amended, or under any successorprovision, or a trust qualifying as a real estate mortgage investment conduitunder section 860D of the United States Internal Revenue Code of 1986, asamended, 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 organizedbefore or after the effective date of this chapter shall be a statutory trustand a separate legal entity.

 

(vi) "Trustee" means the person or persons appointedas 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.

 

Statutorytrusts may be organized under this chapter for any lawful purpose, exceptacting as an insurer as defined in W.S. 26-1-102(a)(xvi), or acting as afinancial institution as defined by W.S. 13-1-101(a)(ix) or its successorstatute, whether or not conducted for profit, or for any of the purposesreferred to in W.S. 17-23-102(a)(v)(A) including, without limitation, for thepurpose of holding or otherwise taking title to property, whether in an activeor custodial capacity.

 

17-23-104. Contributions by beneficial owners.

 

 

(a) A contribution of a beneficial owner to the statutory trustmay be in cash, property or services rendered, or a promissory note or otherobligation to contribute cash or property or to perform services. A person maybecome a beneficial owner of a statutory trust and may receive a beneficialinterest in a statutory trust without making a contribution or being obligatedto make a contribution to the statutory trust.

 

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

 

(c) A governing instrument may provide that the interest of anybeneficial owner who fails to make any contribution that he is obligated tomake 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'sproportionate interest in the statutory trust;

 

(ii) Subordinating his beneficial interest to that ofnondefaulting 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 amountnecessary to meet his commitment;

 

(vi) Fixing of the value of his beneficial interest by appraisalor 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 governinginstrument, the beneficial owner shall be entitled to any limitations ofpersonal liability extended to shareholders of private corporations for profitorganized under the Wyoming Business Corporation Act or extended to members oflimited liability companies organized under the Wyoming Limited LiabilityCompany Act.

 

(b) Except to the extent otherwise provided in the governinginstrument, a trustee, when acting in that capacity, shall not be personallyliable to any persons other than the statutory trust or a beneficial owner forany act, omission or obligation of the statutory trust or any trustee.Notwithstanding the provisions of W.S. 17-23-113, trustees of a statutory trustshall not be held to a more rigorous standard of care than that imposed upondirectors 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, andservice of process upon any one (1) of the trustees or upon the registeredagent shall be sufficient. A statutory trust may be sued for debts and otherobligations or liabilities contracted or incurred by the trustees, or by theduly authorized agents of the trustees, in the performance of their respectiveduties under the governing instrument of the statutory trust, and for anydamages to persons or property resulting from the negligence of the trustees oragents acting in the performance of their respective duties. The property of astatutory trust shall be subject to attachment and execution pursuant to theWyoming Code of Civil Procedure, as if it were a corporation.

 

(b) Notwithstanding the provisions of subsection (a) of thissection, in the event that the governing instrument of a statutory trust whichis a registered investment company under the Investment Company Act of 1940, asamended, 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 orotherwise existing with respect to a particular series shall be enforceableagainst the assets of that series only, and not against the assets of thestatutory trust generally if:

 

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

 

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

 

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

 

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

 

(d) Service of process shall be effected by serving a Wyomingtrustee 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 ofprocess.

 

(e) In the governing instrument or other writing, a trustee mayconsent to be subject to the nonexclusive jurisdiction of the courts of, orarbitration in, a specified jurisdiction, or the exclusive jurisdiction of thecourts of, or the exclusivity of arbitration in, this state, and to be servedwith legal process in the manner prescribed in the governing instrument orother writing.

 

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

 

(g) A partnership, limited partnership, corporation, limitedliability company or other nonnatural person formed or organized under the lawsof any foreign country or other foreign jurisdiction or the laws of any stateother than the state of Wyoming shall not be deemed to be doing business in thestate 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 governinginstrument, a beneficial owner shall have an undivided beneficial interest inthe property of the statutory trust and shall share in the profits or losses ofthe statutory trust in the proportion of the entire undivided beneficialinterest in the statutory trust he owns. The governing instrument of astatutory trust may provide that the statutory trust or the trustees, actingfor and on behalf of the statutory trust, shall be deemed to hold beneficialownership of any income earned on securities of the statutory trust issued byany 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 toobtain possession of, or otherwise exercise legal or equitable remedies withrespect to, the property of the statutory trust.

 

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

 

(d) Except to the extent otherwise provided in the governinginstrument, the transferee of a beneficial owner's beneficial interest in thestatutory trust shall only be entitled to receive the share of profits and thereturn of contributions to which the beneficial owner otherwise would beentitled. In the absence of the unanimous written consent of the owners of allother beneficial interests and of all trustees of the statutory trust, andexcept to the extent otherwise provided in the governing instrument, atransferee of a beneficial owner's beneficial interest shall have no right toparticipate in, be kept apprised of the affairs of the statutory trust or tobecome a beneficial owner of a beneficial interest in the statutory trust.

 

(e) Except to the extent otherwise provided in the governinginstrument, at the time a beneficial owner becomes entitled to receive adistribution, he has the status of, and is entitled to all remedies availableto, a creditor of the statutory trust with respect to the distribution. Agoverning instrument may provide for the establishment of record dates withrespect 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 bemanaged by or under the direction of its trustees. To the extent provided inthe governing instrument, any person, including a beneficial owner, shall beentitled to direct the trustees in the management of a statutory trust. Exceptto the extent otherwise provided in the governing instrument, neither the powerto 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 relatingto the management of the business and affairs of the statutory trust, and therights, duties and obligations of the trustees, beneficial owners and otherpersons, which is not contrary to any provision or requirement of this chapterand, without limitation may:

 

(i) Provide for classes, groups or series of trustees orbeneficial owners, or classes, groups or series of beneficial interests, havingthe relative rights, powers and duties as the governing instrument may provide,and may make provision for the future creation in the manner provided in thegoverning instrument of additional classes, groups or series of trustees,beneficial owners or beneficial interests, having such relative rights, powersand duties as may be established, including rights, powers and duties senior orsubordinate to existing classes, groups or series of trustees, beneficialowners or beneficial interests;

 

(ii) Establish or provide for the establishment of designatedseries of trustees, beneficial owners or beneficial interests having separaterights, powers or duties with respect to specified property or obligations ofthe statutory trust or profits and losses associated with specified property orobligations, and, to the extent provided in the governing instrument, anydesignated series may have a separate business purpose or investment objective;

 

(iii) Provide for the taking of any action, including theamendment of the governing instrument, the accomplishment of a merger orconsolidation, the appointment of one (1) or more trustees, the sale, lease,exchange, transfer, pledge or other disposition of all or any part of theassets of the statutory trust or the assets of any series, or the dissolutionof the statutory trust, or may provide for the taking of any action to createunder the provisions of the governing instrument a class, group or series ofbeneficial interests that was not previously outstanding, in any such casewithout 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 orbeneficial owners, or a specified class, group or series of trustees orbeneficial owners, the right to vote, separately or with any other classes,groups or series of the trustees or beneficial owners, on any matter, withvoting being on a per capita, number, financial interest, class, group seriesor any other basis;

 

(v) To the extent that voting rights are granted under thegoverning 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, waiverof any notice, action by consent without a meeting, the establishment of recorddates, 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 towhich all or any part of the assets, liabilities, profits or losses of anyexisting statutory trust will be transferred, and for the conversion ofbeneficial interests in an existing statutory trust, or series thereof, intobeneficial interests in the separate statutory trust, or series thereof.

 

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

 

(i) Any trustee acting under a governing instrument shall notbe liable to the statutory trust or to any beneficial owner for the trustee'sgood faith reliance on the provisions of the governing instrument; and

 

(ii) The trustee's duties and liabilities may be expanded orrestricted 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 maintainin this state:

 

(i) A registered office as provided in W.S. 17-28-101 through17-28-111; and

 

(ii) A registered agent as provided in W.S. 17-28-101 through17-28-111.

 

(b) The provisions of W.S. 17-28-101 through 17-28-111 shallapply 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 orpay annual fee.

 

Ifany statutory trust has failed to comply with the provisions of W.S. 17-28-101through 17-28-111 or has failed to pay the fee required by W.S. 17-23-117, itis transacting business within this state without authority and shall forfeitany franchises, rights or privileges acquired under the laws of this state. The forfeiture shall be made effective in the following manner. The secretaryof 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, thestatutory trust shall be deemed defunct and to have forfeited its certificateof organization acquired under the laws of this state. Any defunct statutorytrust may at any time within two (2) years after the forfeiture of itscertificate, be revived and reinstated, by filing the necessary statement underthis chapter and paying the prescribed fee, together with a penalty of onehundred dollars ($100.00). The statutory trust shall retain its registered nameduring the two (2) year reinstatement period.

 

17-23-112. Existence of statutory trust.

 

 

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

 

(b) Except to the extent otherwise provided in the governinginstrument, the death, incapacity, dissolution, termination or bankruptcy of abeneficial owner shall not result in the termination or dissolution of astatutory trust.

 

17-23-113. Applicability of trust law.

 

Exceptto the extent otherwise provided in the governing instrument or in thischapter, the laws of this state pertaining to trusts are hereby made applicableto statutory trusts. A statutory trust complying with the provisions of thischapter 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 inthe office of the secretary of state. The certificate of trust shall setforth:

 

(i) The name of the statutory trust, which shall not be thesame as, or deceptively similar to any trademark or service mark registered inthis state and shall be distinguishable upon the records of the secretary ofstate from other business names as required by W.S. 17-16-401;

 

(ii) The name and the business address of at least one (1) ofthe trustees authorized to manage the statutory trust;

 

(iii) The future effective date or time of the certificate if itis 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 acertificate of amendment in the office of the secretary of state. Thecertificate 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 itis not to be effective upon the filing of the certificate.

 

(c) A certificate of trust may be amended at any time for anypurpose as the trustees may determine. A trustee who becomes aware that anystatement in a certificate of trust was false when made or that any matterdescribed 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 thecompletion of winding up of the statutory trust and its termination. Acertificate of cancellation shall be filed in the office of the secretary ofstate 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 isnot 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 withthe 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 thetrustees or as otherwise provided in the governing instrument;

 

(iv) If a statutory trust is filing a certificate of merger orconsolidation, the certificate of merger or consolidation shall be signed byall of the trustees or as otherwise provided in the governing instrument. Ifthe certificate of merger or consolidation is being filed by another businessentity, the certificate of merger or consolidation shall be signed by a personauthorized to execute the instrument on behalf of the other business entity;and

 

(v) The certificate of trust shall be accompanied by a writtenconsent to appointment manually signed by the registered agent.

 

(b) The execution of a certificate by a trustee constitutes anoath 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 aretrue.

 

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 andany certificates of amendment or cancellation or any certificate of merger orconsolidation shall be delivered to the secretary of state. Unless thesecretary of state finds that any certificate does not conform to law, uponreceipt of all filing fees required he shall:

 

(i) Certify that the certificate of trust, the certificate ofamendment, the certificate of cancellation or the certificate of merger orconsolidation has been filed in his office by endorsing upon the original andduplicate copy of the certificate the word "Filed," and the date andhour of the filing. This endorsement is conclusive of the date and time of itsfiling 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 affixthe duplicate copy of the certificate of trust. In the case of the filing ofany certificate other than a certificate of trust, the secretary of state shallreturn the duplicate copy, similarly endorsed, to the person who filed it orhis representative.

 

(b) A certificate of trust, certificate of amendment,certificate of cancellation or certificate of merger or consolidation whichacts 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 thetime of the filing of a certificate of trust, a certificate of amendment, acertificate of cancellation or a certificate of merger or consolidation.

 

(d) Upon the issuance of the certificate of organization, thestatutory trust shall be considered organized. The certificate of organizationshall be conclusive evidence that all conditions precedent required to beperformed by the trustee and beneficial owners have been complied with and thatthe statutory trust has been legally organized under this chapter, except asagainst this state in a proceeding to cancel or revoke the certificate oforganization or for involuntary dissolution of the statutory trust.

 

(e) A statutory trust shall not transact business or incurindebtedness, except that which is incidental to its organization or until thesecretary of state has issued a certificate of organization.

 

17-23-117. Administration; filing, service and copying fees; annualfee.

 

 

(a) The secretary of state has the power reasonably necessaryto perform the duties required by this chapter. The secretary of state shallpromulgate reasonable rules and regulations necessary to carry out the purposesof this chapter.

 

(b) The secretary of state shall set and collect filing,service and copying fees to recover costs to administer this chapter. Feesshall not exceed the costs of providing these services.

 

(c) The secretary of state shall collect an annual tax of onehundred dollars ($100.00), due and payable January 2 of each year. This tax isdelinquent if not paid by February 1 and an addition to the tax shall then bedue 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, adocument accepted for filing is effective:

 

(i) At the time of filing on the date it is filed, as evidencedby 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 timeon 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 becomeseffective at the time and date specified. If a delayed effective date but notime is specified, the document is effective at the close of business on thatdate. 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 astatutory trust name by delivering an application to the secretary of state forfiling. The application shall set forth the name and address of the applicantand the name proposed to be reserved. If the secretary of state finds that thestatutory trust name applied for is available, the secretary shall file theapplication and reserve the name for the applicant's exclusive use for anonrenewable one hundred twenty (120) day period.

 

(b) The owner of a reserved statutory trust name may transferthe reservation to another person by delivering to the secretary of state amanually signed notice of the transfer that states the name and address of thetransferee.

 

17-23-120. Derivative actions.

 

 

(a) A beneficial owner may bring an action in the districtcourt in the right of a statutory trust to recover a judgment in its favor iftrustees with authority to do so have refused to bring the action or if aneffort to cause those trustees to bring the action is not likely to succeed.

 

(b) In a derivative action, the plaintiff must be a beneficialowner 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 byoperation of law or pursuant to the terms of the governing instrument of thestatutory trust from a person who was a beneficial owner at the time of thetransaction.

 

(c) In a derivative action, the complaint shall set forth withparticularity the effort, if any, of the plaintiff to secure initiation of theaction 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 theplaintiff reasonable expenses, including reasonable attorney's fees. Ifanything is so received by the plaintiff, the court shall make the award of theplaintiff's expenses payable out of those proceeds and direct the plaintiff toremit to the statutory trust the remainder of the proceeds. If those proceedsare insufficient to reimburse the plaintiff's reasonable expenses, the courtmay direct that any award of plaintiff's expenses or portion thereof be paid bythe statutory trust.

 

(e) A beneficial owner's right to bring a derivative action maybe subject to additional standards and restrictions, if any, as are set forthin the governing instrument, including, without limitation, the requirementthat beneficial owners owning a specified beneficial interest in the statutorytrust join in the bringing of the derivative action.

 

17-23-121. Indemnification.

 

 

(a) Subject to standards and restrictions, if any, as are setforth in the governing instrument, a statutory trust shall have the power toindemnify and hold harmless any trustee or beneficial owner or other personfrom and against any and all claims and demands whatsoever.

 

(b) The absence of a provision for indemnity in the governinginstrument shall not be construed to deprive any trustee or beneficial owner orother person of any right to indemnity which is otherwise available to theperson 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, astatutory trust may merge or consolidate with or into one (1) or more statutorytrusts or other business entities formed or organized or existing under thelaws of this state or any other state of the United States or any foreigncountry or other foreign jurisdiction, with the statutory trust or otherbusiness entity as the agreement provides being the surviving or resultingstatutory trust or other business entity. Unless otherwise provided in thegoverning instrument of a statutory trust, a merger or consolidation shall beapproved by all of the trustees and the beneficial owners of each statutorytrust which is to merge or consolidate. In connection with a merger orconsolidation, rights or securities of, or interests in, a statutory trust orother business entity which is a constituent party to the merger or consolidationmay be exchanged for or converted into cash, property, rights or securities of,or interests in, the surviving or resulting statutory trust or other businessentity or, in addition to or in lieu thereof, may be exchanged for or convertedinto cash, property, rights or securities of, or interests in, a statutorytrust or other business entity which is not the surviving or resultingstatutory trust or other business entity in the merger or consolidation. Notwithstanding prior approval, an agreement of merger or consolidation may beterminated or amended pursuant to a provision for termination or amendmentcontained in the agreement of merger or consolidation.

 

(b) If a statutory trust is merging or consolidating under thissection, the statutory trust or other business entity surviving or resultingfrom the merger or consolidation shall file a certificate of merger orconsolidation in the office of the secretary of state. The certificate ofmerger or consolidation shall state:

 

(i) The name and jurisdiction of formation or organization ofeach statutory trust or other business entity which is to merge or consolidate;

 

(ii) That an agreement of merger or consolidation has beenapproved and executed by each statutory trust or other business entity which isto merge or consolidate;

 

(iii) The name of the surviving or resulting statutory trust orother business entity;

 

(iv) The future effective date or time of the merger orconsolidation if it is not to be effective upon the filing of the certificateof merger or consolidation;

 

(v) That the executed agreement of merger or consolidation ison file at the principal place of business of the surviving or resultingstatutory trust or other business entity, and the address thereof;

 

(vi) That a copy of the agreement of merger or consolidationwill be furnished by the surviving or resulting statutory trust or otherbusiness entity, on request and without cost, to any beneficial owner of anystatutory trust or any person holding an interest in any other business entitywhich is to merge or consolidate; and

 

(vii) If the surviving or resulting entity is not a statutorytrust or other business entity formed or organized or existing under the lawsof this state, a statement that the surviving or resulting other businessentity 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 trustwhich is to merge or consolidate. The statement shall irrevocably appoint the secretaryof state as the agent to accept service of process in any such action, suit orproceeding and specify the address to which a copy of the process shall bemailed by the secretary of state. In the event of service under this paragraphupon the secretary of state, the plaintiff shall furnish the secretary of statewith the address specified in the certificate of merger or consolidationprovided for in this paragraph and any other address which the plaintiff mayelect to furnish, together with copies of the process required by the secretaryof state. The secretary of state shall notify the surviving or resulting otherbusiness entity at all addresses furnished by the plaintiff by letter,certified mail, return receipt requested. The letter shall enclose a copy ofthe process and any other papers served upon the secretary of state. It shallbe the duty of the plaintiff in the event of such service to serve process andany other papers in duplicate, to notify the secretary of state that service isbeing made pursuant to this paragraph, and to pay the secretary of state thesum of fifty dollars ($50.00) for use of the state, which shall be taxed aspart of the costs in the proceeding, if the plaintiff shall prevail. Thesecretary of state shall maintain an alphabetical record of any process underthis paragraph setting forth the name of the plaintiff and defendant, thetitle, docket number and nature of the proceedings in which process has beenserved upon him, the return date thereof, and the day and hour when the servicewas made. The secretary of state shall not be required to retain theinformation for a period longer than five (5) years from his receipt of theservice of process.

 

(c) Unless a future effective date or time is provided in acertificate of merger or consolidation, in which event a merger orconsolidation shall be effective at the future effective date or time, a mergeror consolidation shall be effective upon the filing in the office of thesecretary of state of a certificate of merger or consolidation.

 

(d) A certificate of merger or consolidation shall act as acertificate of cancellation for a statutory trust which is not the surviving orresulting entity in the merger or consolidation.

 

(e) Notwithstanding anything to the contrary contained in thegoverning instrument, a governing instrument containing a specific reference tothis subsection may provide that an agreement of merger or consolidationapproved in accordance with subsection (a) of this section may:

 

(i) Effect any amendment to the governing instrument of thestatutory trust; or

 

(ii) Effect the adoption of a new governing instrument of thestatutory trust if it is the surviving or resulting statutory trust in themerger or consolidation.

 

(f) Any amendment to the governing instrument of a statutorytrust or adoption of a new governing instrument of the statutory trust madepursuant to subsection (e) of this section shall be effective at the effectivetime or date of the merger or consolidation. The provisions of subsection (e)of this section and this subsection shall not be construed to limit theaccomplishment of a merger or consolidation or of any of the matters referredto in this article by any other means provided for in the governing instrumentof a statutory trust or other agreement or as otherwise permitted by law,including that the governing instrument of any constituent statutory trust tothe merger or consolidation, including a statutory trust formed for the purposeof consummating a merger or consolidation, shall be the governing instrument ofthe surviving or resulting statutory trust.

 

(g) When any merger or consolidation shall have becomeeffective under this section, for all purposes of the laws of the state, all ofthe rights, privileges and powers of each of the statutory trusts and otherbusiness entities that have merged or consolidated, and all property, real,personal and mixed, and all debts due to any of those statutory trusts andother business entities, as well as all other things and causes of actionbelonging to each of such statutory trusts and other business entities, shallbe vested in the surviving or resulting statutory trust or other businessentity as they were of each of the statutory trusts and other business entitiesthat have merged or consolidated. The title to any real property vested bydeed or otherwise, under the laws of the state, in any of merging orconsolidating statutory trusts and other business entities, shall not revert orbe in any way impaired by reason of this chapter. All rights of creditors andall liens upon any property of any merging or consolidating statutory trustsand other business entities shall be preserved unimpaired, and all debts,liabilities and duties of each of the statutory trusts and other businessentities that have merged or consolidated shall attach to the surviving orresulting statutory trust or other business entity, and may be enforced againstit to the same extent as if the debts, liabilities and duties had been incurredor contracted by it.

 

17-23-202. Continuance of foreign statutory trusts.

 

(a) Subject to subsection (b) of this section, any statutorytrust 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 jurisdictionother than this state may, if the jurisdiction will acknowledge the statutorytrust's termination of domicile in the foreign jurisdiction, apply to the secretaryof state for registration under this chapter, thus continuing the statutorytrust in Wyoming as if it had been organized under the laws of this state. Thesecretary of state may issue a certificate of continuance upon receipt of anapplication for continuance as provided in subsection (c) of this section. Thecertificate of continuance may then be issued subject to any limitations andconditions and may contain any provisions as appear proper to the secretary ofstate.

 

(b) The secretary of state shall cause notice of issuance of acertificate of continuance to be given forthwith to the proper officer of thejurisdiction in which the statutory trust was previously organized.

 

(c) The application for continuance filed by a foreignstatutory trust with the secretary of state shall include:

 

(i) A certified copy of its original certificate of trust andall amendments thereto or its equivalent;

 

(ii) The name of the statutory trust and the jurisdiction underthe laws of which it is organized;

 

(iii) The date of organization and the period of duration of thestatutory trust;

 

(iv) The address of the principal office of the statutory trust;

 

(v) The street address of the proposed registered office of thestatutory trust in this state and the name of its proposed registered agent inthis state at the address;

 

(vi) The purpose or purposes of the statutory trust which itproposes to pursue in the transaction of business in this state;

 

(vii) Any information concerning capital structure or financialstatus the secretary of state deems necessary to establish fees and taxes underthe laws of this state;

 

(viii) Any additional information necessary or appropriate toenable the secretary of state to determine whether the statutory trust isentitled to a certificate of organization evidencing its existence andauthority to transact business in this state.

 

(d) The application shall be executed by the statutory trust byits trustees or a trustee who is authorized to execute the application onbehalf of the statutory trust and shall be verified by the trustee signing theapplication.

 

(e) The provisions of the application for continuance maywithout expressly so stating, vary from the provisions of the statutory trust'scertificate of trust or governing instrument or equivalent, if the variation isone which a statutory trust organized under the Wyoming Statutory Trust Actcould effect by way of amendment to its certificate of trust or governinginstrument. Upon issuance of a certificate of continuance by the secretary ofstate, the certificate of continuance shall be the certificate of trust of thecontinued statutory trust. The statutory trust may elect to incorporate byreference in and attachment to the application for continuance its original certificateof trust or other authorization which had been adopted by the statutory trustin the foreign jurisdiction, in order to permit the original to continue to actas the certificate of trust of the statutory trust provided, however, that theoriginal certificate of trust or other authorization shall be deemed amended tothe extent necessary to make it conform to the laws of this state.

 

(f) The existence of any statutory trust issued a certificateof continuance under this chapter shall be deemed to have commenced on the datethe statutory trust commenced its existence in the jurisdiction in which thestatutory trust was first formed, organized or otherwise came into being. Thelaws of this state shall apply to a statutory trust continuing under thischapter to the same extent as if the statutory trust had been organized underthe laws of this state from and after the issuance of a certificate ofcontinuance under this chapter by the secretary of state to the statutorytrust. When a foreign statutory trust is continued as a statutory trust underthis chapter, the continuance shall not affect the statutory trust's ownershipof 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 aspectsof the statutory trust and its existence.

 

(g) As used in this section, the term "statutorytrust" shall include any business trust, association or similar entitywhich appears to the secretary of state to possess characteristics sufficientlysimilar to those of a statutory trust organized under the Wyoming StatutoryTrust Act.

 

ARTICLE 3 - EFFECTIVENESS

 

17-23-301. Reserved power of state to amend or repeal chapter.

 

Allprovisions of this chapter may be altered from time to time or repealed and allrights of statutory trusts, trustees, beneficial owners and other persons aresubject to this reservation.

 

17-23-302. Construction and application of chapter and governinginstrument.

 

 

(a) The rule that statutes in derogation of the common law areto be strictly construed shall have no application to this chapter.

 

(b) It is the policy of this chapter to give maximum effect tothe principle of freedom of contract and to the enforceability of governinginstruments.

 

State Codes and Statutes

Statutes > Wyoming > Title17 > Chapter23

CHAPTER 23 - WYOMING STATUTORY TRUST ACT

 

ARTICLE 1 - GENERAL PROVISIONS

 

17-23-101. Short title.

 

Thischapter 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 abeneficial interest in a statutory trust. The fact of ownership shall bedetermined and evidenced, whether by means of registration, the issuance ofcertificates or otherwise, in conformity to the applicable provisions of thegoverning instrument of the statutory trust;

 

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

 

(A) Provide that a person shall become a beneficial owner andshall become bound by the governing instrument if the person, or a representativeauthorized by the person orally, in writing or by other action such as paymentfor a beneficial interest, complies with the conditions for becoming abeneficial owner set forth in the governing instrument or any other writing andacquires a beneficial interest; and

 

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

 

(iii) "Other business entity" means a corporation, apartnership, a limited partnership, a limited liability company, a common-lawtrust 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 orany representative capacity;

 

(v) "Statutory trust" means an unincorporatedassociation which:

 

(A) Is created by a trust instrument under which property is orwill be held, managed, administered, controlled, invested, reinvested oroperated, or business or professional activities for profit are carried on orwill be carried on, by a trustee or trustees for the benefit of a person who isor 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 qualifyingas a real estate investment trust under sections 856 through 859 of the UnitedStates Internal Revenue Code of 1986, as amended, or under any successorprovision, or a trust qualifying as a real estate mortgage investment conduitunder section 860D of the United States Internal Revenue Code of 1986, asamended, 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 organizedbefore or after the effective date of this chapter shall be a statutory trustand a separate legal entity.

 

(vi) "Trustee" means the person or persons appointedas 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.

 

Statutorytrusts may be organized under this chapter for any lawful purpose, exceptacting as an insurer as defined in W.S. 26-1-102(a)(xvi), or acting as afinancial institution as defined by W.S. 13-1-101(a)(ix) or its successorstatute, whether or not conducted for profit, or for any of the purposesreferred to in W.S. 17-23-102(a)(v)(A) including, without limitation, for thepurpose of holding or otherwise taking title to property, whether in an activeor custodial capacity.

 

17-23-104. Contributions by beneficial owners.

 

 

(a) A contribution of a beneficial owner to the statutory trustmay be in cash, property or services rendered, or a promissory note or otherobligation to contribute cash or property or to perform services. A person maybecome a beneficial owner of a statutory trust and may receive a beneficialinterest in a statutory trust without making a contribution or being obligatedto make a contribution to the statutory trust.

 

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

 

(c) A governing instrument may provide that the interest of anybeneficial owner who fails to make any contribution that he is obligated tomake 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'sproportionate interest in the statutory trust;

 

(ii) Subordinating his beneficial interest to that ofnondefaulting 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 amountnecessary to meet his commitment;

 

(vi) Fixing of the value of his beneficial interest by appraisalor 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 governinginstrument, the beneficial owner shall be entitled to any limitations ofpersonal liability extended to shareholders of private corporations for profitorganized under the Wyoming Business Corporation Act or extended to members oflimited liability companies organized under the Wyoming Limited LiabilityCompany Act.

 

(b) Except to the extent otherwise provided in the governinginstrument, a trustee, when acting in that capacity, shall not be personallyliable to any persons other than the statutory trust or a beneficial owner forany act, omission or obligation of the statutory trust or any trustee.Notwithstanding the provisions of W.S. 17-23-113, trustees of a statutory trustshall not be held to a more rigorous standard of care than that imposed upondirectors 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, andservice of process upon any one (1) of the trustees or upon the registeredagent shall be sufficient. A statutory trust may be sued for debts and otherobligations or liabilities contracted or incurred by the trustees, or by theduly authorized agents of the trustees, in the performance of their respectiveduties under the governing instrument of the statutory trust, and for anydamages to persons or property resulting from the negligence of the trustees oragents acting in the performance of their respective duties. The property of astatutory trust shall be subject to attachment and execution pursuant to theWyoming Code of Civil Procedure, as if it were a corporation.

 

(b) Notwithstanding the provisions of subsection (a) of thissection, in the event that the governing instrument of a statutory trust whichis a registered investment company under the Investment Company Act of 1940, asamended, 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 orotherwise existing with respect to a particular series shall be enforceableagainst the assets of that series only, and not against the assets of thestatutory trust generally if:

 

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

 

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

 

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

 

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

 

(d) Service of process shall be effected by serving a Wyomingtrustee 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 ofprocess.

 

(e) In the governing instrument or other writing, a trustee mayconsent to be subject to the nonexclusive jurisdiction of the courts of, orarbitration in, a specified jurisdiction, or the exclusive jurisdiction of thecourts of, or the exclusivity of arbitration in, this state, and to be servedwith legal process in the manner prescribed in the governing instrument orother writing.

 

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

 

(g) A partnership, limited partnership, corporation, limitedliability company or other nonnatural person formed or organized under the lawsof any foreign country or other foreign jurisdiction or the laws of any stateother than the state of Wyoming shall not be deemed to be doing business in thestate 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 governinginstrument, a beneficial owner shall have an undivided beneficial interest inthe property of the statutory trust and shall share in the profits or losses ofthe statutory trust in the proportion of the entire undivided beneficialinterest in the statutory trust he owns. The governing instrument of astatutory trust may provide that the statutory trust or the trustees, actingfor and on behalf of the statutory trust, shall be deemed to hold beneficialownership of any income earned on securities of the statutory trust issued byany 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 toobtain possession of, or otherwise exercise legal or equitable remedies withrespect to, the property of the statutory trust.

 

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

 

(d) Except to the extent otherwise provided in the governinginstrument, the transferee of a beneficial owner's beneficial interest in thestatutory trust shall only be entitled to receive the share of profits and thereturn of contributions to which the beneficial owner otherwise would beentitled. In the absence of the unanimous written consent of the owners of allother beneficial interests and of all trustees of the statutory trust, andexcept to the extent otherwise provided in the governing instrument, atransferee of a beneficial owner's beneficial interest shall have no right toparticipate in, be kept apprised of the affairs of the statutory trust or tobecome a beneficial owner of a beneficial interest in the statutory trust.

 

(e) Except to the extent otherwise provided in the governinginstrument, at the time a beneficial owner becomes entitled to receive adistribution, he has the status of, and is entitled to all remedies availableto, a creditor of the statutory trust with respect to the distribution. Agoverning instrument may provide for the establishment of record dates withrespect 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 bemanaged by or under the direction of its trustees. To the extent provided inthe governing instrument, any person, including a beneficial owner, shall beentitled to direct the trustees in the management of a statutory trust. Exceptto the extent otherwise provided in the governing instrument, neither the powerto 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 relatingto the management of the business and affairs of the statutory trust, and therights, duties and obligations of the trustees, beneficial owners and otherpersons, which is not contrary to any provision or requirement of this chapterand, without limitation may:

 

(i) Provide for classes, groups or series of trustees orbeneficial owners, or classes, groups or series of beneficial interests, havingthe relative rights, powers and duties as the governing instrument may provide,and may make provision for the future creation in the manner provided in thegoverning instrument of additional classes, groups or series of trustees,beneficial owners or beneficial interests, having such relative rights, powersand duties as may be established, including rights, powers and duties senior orsubordinate to existing classes, groups or series of trustees, beneficialowners or beneficial interests;

 

(ii) Establish or provide for the establishment of designatedseries of trustees, beneficial owners or beneficial interests having separaterights, powers or duties with respect to specified property or obligations ofthe statutory trust or profits and losses associated with specified property orobligations, and, to the extent provided in the governing instrument, anydesignated series may have a separate business purpose or investment objective;

 

(iii) Provide for the taking of any action, including theamendment of the governing instrument, the accomplishment of a merger orconsolidation, the appointment of one (1) or more trustees, the sale, lease,exchange, transfer, pledge or other disposition of all or any part of theassets of the statutory trust or the assets of any series, or the dissolutionof the statutory trust, or may provide for the taking of any action to createunder the provisions of the governing instrument a class, group or series ofbeneficial interests that was not previously outstanding, in any such casewithout 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 orbeneficial owners, or a specified class, group or series of trustees orbeneficial owners, the right to vote, separately or with any other classes,groups or series of the trustees or beneficial owners, on any matter, withvoting being on a per capita, number, financial interest, class, group seriesor any other basis;

 

(v) To the extent that voting rights are granted under thegoverning 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, waiverof any notice, action by consent without a meeting, the establishment of recorddates, 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 towhich all or any part of the assets, liabilities, profits or losses of anyexisting statutory trust will be transferred, and for the conversion ofbeneficial interests in an existing statutory trust, or series thereof, intobeneficial interests in the separate statutory trust, or series thereof.

 

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

 

(i) Any trustee acting under a governing instrument shall notbe liable to the statutory trust or to any beneficial owner for the trustee'sgood faith reliance on the provisions of the governing instrument; and

 

(ii) The trustee's duties and liabilities may be expanded orrestricted 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 maintainin this state:

 

(i) A registered office as provided in W.S. 17-28-101 through17-28-111; and

 

(ii) A registered agent as provided in W.S. 17-28-101 through17-28-111.

 

(b) The provisions of W.S. 17-28-101 through 17-28-111 shallapply 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 orpay annual fee.

 

Ifany statutory trust has failed to comply with the provisions of W.S. 17-28-101through 17-28-111 or has failed to pay the fee required by W.S. 17-23-117, itis transacting business within this state without authority and shall forfeitany franchises, rights or privileges acquired under the laws of this state. The forfeiture shall be made effective in the following manner. The secretaryof 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, thestatutory trust shall be deemed defunct and to have forfeited its certificateof organization acquired under the laws of this state. Any defunct statutorytrust may at any time within two (2) years after the forfeiture of itscertificate, be revived and reinstated, by filing the necessary statement underthis chapter and paying the prescribed fee, together with a penalty of onehundred dollars ($100.00). The statutory trust shall retain its registered nameduring the two (2) year reinstatement period.

 

17-23-112. Existence of statutory trust.

 

 

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

 

(b) Except to the extent otherwise provided in the governinginstrument, the death, incapacity, dissolution, termination or bankruptcy of abeneficial owner shall not result in the termination or dissolution of astatutory trust.

 

17-23-113. Applicability of trust law.

 

Exceptto the extent otherwise provided in the governing instrument or in thischapter, the laws of this state pertaining to trusts are hereby made applicableto statutory trusts. A statutory trust complying with the provisions of thischapter 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 inthe office of the secretary of state. The certificate of trust shall setforth:

 

(i) The name of the statutory trust, which shall not be thesame as, or deceptively similar to any trademark or service mark registered inthis state and shall be distinguishable upon the records of the secretary ofstate from other business names as required by W.S. 17-16-401;

 

(ii) The name and the business address of at least one (1) ofthe trustees authorized to manage the statutory trust;

 

(iii) The future effective date or time of the certificate if itis 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 acertificate of amendment in the office of the secretary of state. Thecertificate 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 itis not to be effective upon the filing of the certificate.

 

(c) A certificate of trust may be amended at any time for anypurpose as the trustees may determine. A trustee who becomes aware that anystatement in a certificate of trust was false when made or that any matterdescribed 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 thecompletion of winding up of the statutory trust and its termination. Acertificate of cancellation shall be filed in the office of the secretary ofstate 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 isnot 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 withthe 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 thetrustees or as otherwise provided in the governing instrument;

 

(iv) If a statutory trust is filing a certificate of merger orconsolidation, the certificate of merger or consolidation shall be signed byall of the trustees or as otherwise provided in the governing instrument. Ifthe certificate of merger or consolidation is being filed by another businessentity, the certificate of merger or consolidation shall be signed by a personauthorized to execute the instrument on behalf of the other business entity;and

 

(v) The certificate of trust shall be accompanied by a writtenconsent to appointment manually signed by the registered agent.

 

(b) The execution of a certificate by a trustee constitutes anoath 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 aretrue.

 

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 andany certificates of amendment or cancellation or any certificate of merger orconsolidation shall be delivered to the secretary of state. Unless thesecretary of state finds that any certificate does not conform to law, uponreceipt of all filing fees required he shall:

 

(i) Certify that the certificate of trust, the certificate ofamendment, the certificate of cancellation or the certificate of merger orconsolidation has been filed in his office by endorsing upon the original andduplicate copy of the certificate the word "Filed," and the date andhour of the filing. This endorsement is conclusive of the date and time of itsfiling 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 affixthe duplicate copy of the certificate of trust. In the case of the filing ofany certificate other than a certificate of trust, the secretary of state shallreturn the duplicate copy, similarly endorsed, to the person who filed it orhis representative.

 

(b) A certificate of trust, certificate of amendment,certificate of cancellation or certificate of merger or consolidation whichacts 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 thetime of the filing of a certificate of trust, a certificate of amendment, acertificate of cancellation or a certificate of merger or consolidation.

 

(d) Upon the issuance of the certificate of organization, thestatutory trust shall be considered organized. The certificate of organizationshall be conclusive evidence that all conditions precedent required to beperformed by the trustee and beneficial owners have been complied with and thatthe statutory trust has been legally organized under this chapter, except asagainst this state in a proceeding to cancel or revoke the certificate oforganization or for involuntary dissolution of the statutory trust.

 

(e) A statutory trust shall not transact business or incurindebtedness, except that which is incidental to its organization or until thesecretary of state has issued a certificate of organization.

 

17-23-117. Administration; filing, service and copying fees; annualfee.

 

 

(a) The secretary of state has the power reasonably necessaryto perform the duties required by this chapter. The secretary of state shallpromulgate reasonable rules and regulations necessary to carry out the purposesof this chapter.

 

(b) The secretary of state shall set and collect filing,service and copying fees to recover costs to administer this chapter. Feesshall not exceed the costs of providing these services.

 

(c) The secretary of state shall collect an annual tax of onehundred dollars ($100.00), due and payable January 2 of each year. This tax isdelinquent if not paid by February 1 and an addition to the tax shall then bedue 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, adocument accepted for filing is effective:

 

(i) At the time of filing on the date it is filed, as evidencedby 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 timeon 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 becomeseffective at the time and date specified. If a delayed effective date but notime is specified, the document is effective at the close of business on thatdate. 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 astatutory trust name by delivering an application to the secretary of state forfiling. The application shall set forth the name and address of the applicantand the name proposed to be reserved. If the secretary of state finds that thestatutory trust name applied for is available, the secretary shall file theapplication and reserve the name for the applicant's exclusive use for anonrenewable one hundred twenty (120) day period.

 

(b) The owner of a reserved statutory trust name may transferthe reservation to another person by delivering to the secretary of state amanually signed notice of the transfer that states the name and address of thetransferee.

 

17-23-120. Derivative actions.

 

 

(a) A beneficial owner may bring an action in the districtcourt in the right of a statutory trust to recover a judgment in its favor iftrustees with authority to do so have refused to bring the action or if aneffort to cause those trustees to bring the action is not likely to succeed.

 

(b) In a derivative action, the plaintiff must be a beneficialowner 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 byoperation of law or pursuant to the terms of the governing instrument of thestatutory trust from a person who was a beneficial owner at the time of thetransaction.

 

(c) In a derivative action, the complaint shall set forth withparticularity the effort, if any, of the plaintiff to secure initiation of theaction 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 theplaintiff reasonable expenses, including reasonable attorney's fees. Ifanything is so received by the plaintiff, the court shall make the award of theplaintiff's expenses payable out of those proceeds and direct the plaintiff toremit to the statutory trust the remainder of the proceeds. If those proceedsare insufficient to reimburse the plaintiff's reasonable expenses, the courtmay direct that any award of plaintiff's expenses or portion thereof be paid bythe statutory trust.

 

(e) A beneficial owner's right to bring a derivative action maybe subject to additional standards and restrictions, if any, as are set forthin the governing instrument, including, without limitation, the requirementthat beneficial owners owning a specified beneficial interest in the statutorytrust join in the bringing of the derivative action.

 

17-23-121. Indemnification.

 

 

(a) Subject to standards and restrictions, if any, as are setforth in the governing instrument, a statutory trust shall have the power toindemnify and hold harmless any trustee or beneficial owner or other personfrom and against any and all claims and demands whatsoever.

 

(b) The absence of a provision for indemnity in the governinginstrument shall not be construed to deprive any trustee or beneficial owner orother person of any right to indemnity which is otherwise available to theperson 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, astatutory trust may merge or consolidate with or into one (1) or more statutorytrusts or other business entities formed or organized or existing under thelaws of this state or any other state of the United States or any foreigncountry or other foreign jurisdiction, with the statutory trust or otherbusiness entity as the agreement provides being the surviving or resultingstatutory trust or other business entity. Unless otherwise provided in thegoverning instrument of a statutory trust, a merger or consolidation shall beapproved by all of the trustees and the beneficial owners of each statutorytrust which is to merge or consolidate. In connection with a merger orconsolidation, rights or securities of, or interests in, a statutory trust orother business entity which is a constituent party to the merger or consolidationmay be exchanged for or converted into cash, property, rights or securities of,or interests in, the surviving or resulting statutory trust or other businessentity or, in addition to or in lieu thereof, may be exchanged for or convertedinto cash, property, rights or securities of, or interests in, a statutorytrust or other business entity which is not the surviving or resultingstatutory trust or other business entity in the merger or consolidation. Notwithstanding prior approval, an agreement of merger or consolidation may beterminated or amended pursuant to a provision for termination or amendmentcontained in the agreement of merger or consolidation.

 

(b) If a statutory trust is merging or consolidating under thissection, the statutory trust or other business entity surviving or resultingfrom the merger or consolidation shall file a certificate of merger orconsolidation in the office of the secretary of state. The certificate ofmerger or consolidation shall state:

 

(i) The name and jurisdiction of formation or organization ofeach statutory trust or other business entity which is to merge or consolidate;

 

(ii) That an agreement of merger or consolidation has beenapproved and executed by each statutory trust or other business entity which isto merge or consolidate;

 

(iii) The name of the surviving or resulting statutory trust orother business entity;

 

(iv) The future effective date or time of the merger orconsolidation if it is not to be effective upon the filing of the certificateof merger or consolidation;

 

(v) That the executed agreement of merger or consolidation ison file at the principal place of business of the surviving or resultingstatutory trust or other business entity, and the address thereof;

 

(vi) That a copy of the agreement of merger or consolidationwill be furnished by the surviving or resulting statutory trust or otherbusiness entity, on request and without cost, to any beneficial owner of anystatutory trust or any person holding an interest in any other business entitywhich is to merge or consolidate; and

 

(vii) If the surviving or resulting entity is not a statutorytrust or other business entity formed or organized or existing under the lawsof this state, a statement that the surviving or resulting other businessentity 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 trustwhich is to merge or consolidate. The statement shall irrevocably appoint the secretaryof state as the agent to accept service of process in any such action, suit orproceeding and specify the address to which a copy of the process shall bemailed by the secretary of state. In the event of service under this paragraphupon the secretary of state, the plaintiff shall furnish the secretary of statewith the address specified in the certificate of merger or consolidationprovided for in this paragraph and any other address which the plaintiff mayelect to furnish, together with copies of the process required by the secretaryof state. The secretary of state shall notify the surviving or resulting otherbusiness entity at all addresses furnished by the plaintiff by letter,certified mail, return receipt requested. The letter shall enclose a copy ofthe process and any other papers served upon the secretary of state. It shallbe the duty of the plaintiff in the event of such service to serve process andany other papers in duplicate, to notify the secretary of state that service isbeing made pursuant to this paragraph, and to pay the secretary of state thesum of fifty dollars ($50.00) for use of the state, which shall be taxed aspart of the costs in the proceeding, if the plaintiff shall prevail. Thesecretary of state shall maintain an alphabetical record of any process underthis paragraph setting forth the name of the plaintiff and defendant, thetitle, docket number and nature of the proceedings in which process has beenserved upon him, the return date thereof, and the day and hour when the servicewas made. The secretary of state shall not be required to retain theinformation for a period longer than five (5) years from his receipt of theservice of process.

 

(c) Unless a future effective date or time is provided in acertificate of merger or consolidation, in which event a merger orconsolidation shall be effective at the future effective date or time, a mergeror consolidation shall be effective upon the filing in the office of thesecretary of state of a certificate of merger or consolidation.

 

(d) A certificate of merger or consolidation shall act as acertificate of cancellation for a statutory trust which is not the surviving orresulting entity in the merger or consolidation.

 

(e) Notwithstanding anything to the contrary contained in thegoverning instrument, a governing instrument containing a specific reference tothis subsection may provide that an agreement of merger or consolidationapproved in accordance with subsection (a) of this section may:

 

(i) Effect any amendment to the governing instrument of thestatutory trust; or

 

(ii) Effect the adoption of a new governing instrument of thestatutory trust if it is the surviving or resulting statutory trust in themerger or consolidation.

 

(f) Any amendment to the governing instrument of a statutorytrust or adoption of a new governing instrument of the statutory trust madepursuant to subsection (e) of this section shall be effective at the effectivetime or date of the merger or consolidation. The provisions of subsection (e)of this section and this subsection shall not be construed to limit theaccomplishment of a merger or consolidation or of any of the matters referredto in this article by any other means provided for in the governing instrumentof a statutory trust or other agreement or as otherwise permitted by law,including that the governing instrument of any constituent statutory trust tothe merger or consolidation, including a statutory trust formed for the purposeof consummating a merger or consolidation, shall be the governing instrument ofthe surviving or resulting statutory trust.

 

(g) When any merger or consolidation shall have becomeeffective under this section, for all purposes of the laws of the state, all ofthe rights, privileges and powers of each of the statutory trusts and otherbusiness entities that have merged or consolidated, and all property, real,personal and mixed, and all debts due to any of those statutory trusts andother business entities, as well as all other things and causes of actionbelonging to each of such statutory trusts and other business entities, shallbe vested in the surviving or resulting statutory trust or other businessentity as they were of each of the statutory trusts and other business entitiesthat have merged or consolidated. The title to any real property vested bydeed or otherwise, under the laws of the state, in any of merging orconsolidating statutory trusts and other business entities, shall not revert orbe in any way impaired by reason of this chapter. All rights of creditors andall liens upon any property of any merging or consolidating statutory trustsand other business entities shall be preserved unimpaired, and all debts,liabilities and duties of each of the statutory trusts and other businessentities that have merged or consolidated shall attach to the surviving orresulting statutory trust or other business entity, and may be enforced againstit to the same extent as if the debts, liabilities and duties had been incurredor contracted by it.

 

17-23-202. Continuance of foreign statutory trusts.

 

(a) Subject to subsection (b) of this section, any statutorytrust 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 jurisdictionother than this state may, if the jurisdiction will acknowledge the statutorytrust's termination of domicile in the foreign jurisdiction, apply to the secretaryof state for registration under this chapter, thus continuing the statutorytrust in Wyoming as if it had been organized under the laws of this state. Thesecretary of state may issue a certificate of continuance upon receipt of anapplication for continuance as provided in subsection (c) of this section. Thecertificate of continuance may then be issued subject to any limitations andconditions and may contain any provisions as appear proper to the secretary ofstate.

 

(b) The secretary of state shall cause notice of issuance of acertificate of continuance to be given forthwith to the proper officer of thejurisdiction in which the statutory trust was previously organized.

 

(c) The application for continuance filed by a foreignstatutory trust with the secretary of state shall include:

 

(i) A certified copy of its original certificate of trust andall amendments thereto or its equivalent;

 

(ii) The name of the statutory trust and the jurisdiction underthe laws of which it is organized;

 

(iii) The date of organization and the period of duration of thestatutory trust;

 

(iv) The address of the principal office of the statutory trust;

 

(v) The street address of the proposed registered office of thestatutory trust in this state and the name of its proposed registered agent inthis state at the address;

 

(vi) The purpose or purposes of the statutory trust which itproposes to pursue in the transaction of business in this state;

 

(vii) Any information concerning capital structure or financialstatus the secretary of state deems necessary to establish fees and taxes underthe laws of this state;

 

(viii) Any additional information necessary or appropriate toenable the secretary of state to determine whether the statutory trust isentitled to a certificate of organization evidencing its existence andauthority to transact business in this state.

 

(d) The application shall be executed by the statutory trust byits trustees or a trustee who is authorized to execute the application onbehalf of the statutory trust and shall be verified by the trustee signing theapplication.

 

(e) The provisions of the application for continuance maywithout expressly so stating, vary from the provisions of the statutory trust'scertificate of trust or governing instrument or equivalent, if the variation isone which a statutory trust organized under the Wyoming Statutory Trust Actcould effect by way of amendment to its certificate of trust or governinginstrument. Upon issuance of a certificate of continuance by the secretary ofstate, the certificate of continuance shall be the certificate of trust of thecontinued statutory trust. The statutory trust may elect to incorporate byreference in and attachment to the application for continuance its original certificateof trust or other authorization which had been adopted by the statutory trustin the foreign jurisdiction, in order to permit the original to continue to actas the certificate of trust of the statutory trust provided, however, that theoriginal certificate of trust or other authorization shall be deemed amended tothe extent necessary to make it conform to the laws of this state.

 

(f) The existence of any statutory trust issued a certificateof continuance under this chapter shall be deemed to have commenced on the datethe statutory trust commenced its existence in the jurisdiction in which thestatutory trust was first formed, organized or otherwise came into being. Thelaws of this state shall apply to a statutory trust continuing under thischapter to the same extent as if the statutory trust had been organized underthe laws of this state from and after the issuance of a certificate ofcontinuance under this chapter by the secretary of state to the statutorytrust. When a foreign statutory trust is continued as a statutory trust underthis chapter, the continuance shall not affect the statutory trust's ownershipof 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 aspectsof the statutory trust and its existence.

 

(g) As used in this section, the term "statutorytrust" shall include any business trust, association or similar entitywhich appears to the secretary of state to possess characteristics sufficientlysimilar to those of a statutory trust organized under the Wyoming StatutoryTrust Act.

 

ARTICLE 3 - EFFECTIVENESS

 

17-23-301. Reserved power of state to amend or repeal chapter.

 

Allprovisions of this chapter may be altered from time to time or repealed and allrights of statutory trusts, trustees, beneficial owners and other persons aresubject to this reservation.

 

17-23-302. Construction and application of chapter and governinginstrument.

 

 

(a) The rule that statutes in derogation of the common law areto be strictly construed shall have no application to this chapter.

 

(b) It is the policy of this chapter to give maximum effect tothe principle of freedom of contract and to the enforceability of governinginstruments.

 


State Codes and Statutes

State Codes and Statutes

Statutes > Wyoming > Title17 > Chapter23

CHAPTER 23 - WYOMING STATUTORY TRUST ACT

 

ARTICLE 1 - GENERAL PROVISIONS

 

17-23-101. Short title.

 

Thischapter 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 abeneficial interest in a statutory trust. The fact of ownership shall bedetermined and evidenced, whether by means of registration, the issuance ofcertificates or otherwise, in conformity to the applicable provisions of thegoverning instrument of the statutory trust;

 

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

 

(A) Provide that a person shall become a beneficial owner andshall become bound by the governing instrument if the person, or a representativeauthorized by the person orally, in writing or by other action such as paymentfor a beneficial interest, complies with the conditions for becoming abeneficial owner set forth in the governing instrument or any other writing andacquires a beneficial interest; and

 

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

 

(iii) "Other business entity" means a corporation, apartnership, a limited partnership, a limited liability company, a common-lawtrust 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 orany representative capacity;

 

(v) "Statutory trust" means an unincorporatedassociation which:

 

(A) Is created by a trust instrument under which property is orwill be held, managed, administered, controlled, invested, reinvested oroperated, or business or professional activities for profit are carried on orwill be carried on, by a trustee or trustees for the benefit of a person who isor 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 qualifyingas a real estate investment trust under sections 856 through 859 of the UnitedStates Internal Revenue Code of 1986, as amended, or under any successorprovision, or a trust qualifying as a real estate mortgage investment conduitunder section 860D of the United States Internal Revenue Code of 1986, asamended, 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 organizedbefore or after the effective date of this chapter shall be a statutory trustand a separate legal entity.

 

(vi) "Trustee" means the person or persons appointedas 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.

 

Statutorytrusts may be organized under this chapter for any lawful purpose, exceptacting as an insurer as defined in W.S. 26-1-102(a)(xvi), or acting as afinancial institution as defined by W.S. 13-1-101(a)(ix) or its successorstatute, whether or not conducted for profit, or for any of the purposesreferred to in W.S. 17-23-102(a)(v)(A) including, without limitation, for thepurpose of holding or otherwise taking title to property, whether in an activeor custodial capacity.

 

17-23-104. Contributions by beneficial owners.

 

 

(a) A contribution of a beneficial owner to the statutory trustmay be in cash, property or services rendered, or a promissory note or otherobligation to contribute cash or property or to perform services. A person maybecome a beneficial owner of a statutory trust and may receive a beneficialinterest in a statutory trust without making a contribution or being obligatedto make a contribution to the statutory trust.

 

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

 

(c) A governing instrument may provide that the interest of anybeneficial owner who fails to make any contribution that he is obligated tomake 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'sproportionate interest in the statutory trust;

 

(ii) Subordinating his beneficial interest to that ofnondefaulting 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 amountnecessary to meet his commitment;

 

(vi) Fixing of the value of his beneficial interest by appraisalor 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 governinginstrument, the beneficial owner shall be entitled to any limitations ofpersonal liability extended to shareholders of private corporations for profitorganized under the Wyoming Business Corporation Act or extended to members oflimited liability companies organized under the Wyoming Limited LiabilityCompany Act.

 

(b) Except to the extent otherwise provided in the governinginstrument, a trustee, when acting in that capacity, shall not be personallyliable to any persons other than the statutory trust or a beneficial owner forany act, omission or obligation of the statutory trust or any trustee.Notwithstanding the provisions of W.S. 17-23-113, trustees of a statutory trustshall not be held to a more rigorous standard of care than that imposed upondirectors 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, andservice of process upon any one (1) of the trustees or upon the registeredagent shall be sufficient. A statutory trust may be sued for debts and otherobligations or liabilities contracted or incurred by the trustees, or by theduly authorized agents of the trustees, in the performance of their respectiveduties under the governing instrument of the statutory trust, and for anydamages to persons or property resulting from the negligence of the trustees oragents acting in the performance of their respective duties. The property of astatutory trust shall be subject to attachment and execution pursuant to theWyoming Code of Civil Procedure, as if it were a corporation.

 

(b) Notwithstanding the provisions of subsection (a) of thissection, in the event that the governing instrument of a statutory trust whichis a registered investment company under the Investment Company Act of 1940, asamended, 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 orotherwise existing with respect to a particular series shall be enforceableagainst the assets of that series only, and not against the assets of thestatutory trust generally if:

 

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

 

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

 

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

 

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

 

(d) Service of process shall be effected by serving a Wyomingtrustee 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 ofprocess.

 

(e) In the governing instrument or other writing, a trustee mayconsent to be subject to the nonexclusive jurisdiction of the courts of, orarbitration in, a specified jurisdiction, or the exclusive jurisdiction of thecourts of, or the exclusivity of arbitration in, this state, and to be servedwith legal process in the manner prescribed in the governing instrument orother writing.

 

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

 

(g) A partnership, limited partnership, corporation, limitedliability company or other nonnatural person formed or organized under the lawsof any foreign country or other foreign jurisdiction or the laws of any stateother than the state of Wyoming shall not be deemed to be doing business in thestate 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 governinginstrument, a beneficial owner shall have an undivided beneficial interest inthe property of the statutory trust and shall share in the profits or losses ofthe statutory trust in the proportion of the entire undivided beneficialinterest in the statutory trust he owns. The governing instrument of astatutory trust may provide that the statutory trust or the trustees, actingfor and on behalf of the statutory trust, shall be deemed to hold beneficialownership of any income earned on securities of the statutory trust issued byany 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 toobtain possession of, or otherwise exercise legal or equitable remedies withrespect to, the property of the statutory trust.

 

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

 

(d) Except to the extent otherwise provided in the governinginstrument, the transferee of a beneficial owner's beneficial interest in thestatutory trust shall only be entitled to receive the share of profits and thereturn of contributions to which the beneficial owner otherwise would beentitled. In the absence of the unanimous written consent of the owners of allother beneficial interests and of all trustees of the statutory trust, andexcept to the extent otherwise provided in the governing instrument, atransferee of a beneficial owner's beneficial interest shall have no right toparticipate in, be kept apprised of the affairs of the statutory trust or tobecome a beneficial owner of a beneficial interest in the statutory trust.

 

(e) Except to the extent otherwise provided in the governinginstrument, at the time a beneficial owner becomes entitled to receive adistribution, he has the status of, and is entitled to all remedies availableto, a creditor of the statutory trust with respect to the distribution. Agoverning instrument may provide for the establishment of record dates withrespect 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 bemanaged by or under the direction of its trustees. To the extent provided inthe governing instrument, any person, including a beneficial owner, shall beentitled to direct the trustees in the management of a statutory trust. Exceptto the extent otherwise provided in the governing instrument, neither the powerto 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 relatingto the management of the business and affairs of the statutory trust, and therights, duties and obligations of the trustees, beneficial owners and otherpersons, which is not contrary to any provision or requirement of this chapterand, without limitation may:

 

(i) Provide for classes, groups or series of trustees orbeneficial owners, or classes, groups or series of beneficial interests, havingthe relative rights, powers and duties as the governing instrument may provide,and may make provision for the future creation in the manner provided in thegoverning instrument of additional classes, groups or series of trustees,beneficial owners or beneficial interests, having such relative rights, powersand duties as may be established, including rights, powers and duties senior orsubordinate to existing classes, groups or series of trustees, beneficialowners or beneficial interests;

 

(ii) Establish or provide for the establishment of designatedseries of trustees, beneficial owners or beneficial interests having separaterights, powers or duties with respect to specified property or obligations ofthe statutory trust or profits and losses associated with specified property orobligations, and, to the extent provided in the governing instrument, anydesignated series may have a separate business purpose or investment objective;

 

(iii) Provide for the taking of any action, including theamendment of the governing instrument, the accomplishment of a merger orconsolidation, the appointment of one (1) or more trustees, the sale, lease,exchange, transfer, pledge or other disposition of all or any part of theassets of the statutory trust or the assets of any series, or the dissolutionof the statutory trust, or may provide for the taking of any action to createunder the provisions of the governing instrument a class, group or series ofbeneficial interests that was not previously outstanding, in any such casewithout 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 orbeneficial owners, or a specified class, group or series of trustees orbeneficial owners, the right to vote, separately or with any other classes,groups or series of the trustees or beneficial owners, on any matter, withvoting being on a per capita, number, financial interest, class, group seriesor any other basis;

 

(v) To the extent that voting rights are granted under thegoverning 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, waiverof any notice, action by consent without a meeting, the establishment of recorddates, 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 towhich all or any part of the assets, liabilities, profits or losses of anyexisting statutory trust will be transferred, and for the conversion ofbeneficial interests in an existing statutory trust, or series thereof, intobeneficial interests in the separate statutory trust, or series thereof.

 

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

 

(i) Any trustee acting under a governing instrument shall notbe liable to the statutory trust or to any beneficial owner for the trustee'sgood faith reliance on the provisions of the governing instrument; and

 

(ii) The trustee's duties and liabilities may be expanded orrestricted 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 maintainin this state:

 

(i) A registered office as provided in W.S. 17-28-101 through17-28-111; and

 

(ii) A registered agent as provided in W.S. 17-28-101 through17-28-111.

 

(b) The provisions of W.S. 17-28-101 through 17-28-111 shallapply 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 orpay annual fee.

 

Ifany statutory trust has failed to comply with the provisions of W.S. 17-28-101through 17-28-111 or has failed to pay the fee required by W.S. 17-23-117, itis transacting business within this state without authority and shall forfeitany franchises, rights or privileges acquired under the laws of this state. The forfeiture shall be made effective in the following manner. The secretaryof 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, thestatutory trust shall be deemed defunct and to have forfeited its certificateof organization acquired under the laws of this state. Any defunct statutorytrust may at any time within two (2) years after the forfeiture of itscertificate, be revived and reinstated, by filing the necessary statement underthis chapter and paying the prescribed fee, together with a penalty of onehundred dollars ($100.00). The statutory trust shall retain its registered nameduring the two (2) year reinstatement period.

 

17-23-112. Existence of statutory trust.

 

 

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

 

(b) Except to the extent otherwise provided in the governinginstrument, the death, incapacity, dissolution, termination or bankruptcy of abeneficial owner shall not result in the termination or dissolution of astatutory trust.

 

17-23-113. Applicability of trust law.

 

Exceptto the extent otherwise provided in the governing instrument or in thischapter, the laws of this state pertaining to trusts are hereby made applicableto statutory trusts. A statutory trust complying with the provisions of thischapter 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 inthe office of the secretary of state. The certificate of trust shall setforth:

 

(i) The name of the statutory trust, which shall not be thesame as, or deceptively similar to any trademark or service mark registered inthis state and shall be distinguishable upon the records of the secretary ofstate from other business names as required by W.S. 17-16-401;

 

(ii) The name and the business address of at least one (1) ofthe trustees authorized to manage the statutory trust;

 

(iii) The future effective date or time of the certificate if itis 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 acertificate of amendment in the office of the secretary of state. Thecertificate 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 itis not to be effective upon the filing of the certificate.

 

(c) A certificate of trust may be amended at any time for anypurpose as the trustees may determine. A trustee who becomes aware that anystatement in a certificate of trust was false when made or that any matterdescribed 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 thecompletion of winding up of the statutory trust and its termination. Acertificate of cancellation shall be filed in the office of the secretary ofstate 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 isnot 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 withthe 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 thetrustees or as otherwise provided in the governing instrument;

 

(iv) If a statutory trust is filing a certificate of merger orconsolidation, the certificate of merger or consolidation shall be signed byall of the trustees or as otherwise provided in the governing instrument. Ifthe certificate of merger or consolidation is being filed by another businessentity, the certificate of merger or consolidation shall be signed by a personauthorized to execute the instrument on behalf of the other business entity;and

 

(v) The certificate of trust shall be accompanied by a writtenconsent to appointment manually signed by the registered agent.

 

(b) The execution of a certificate by a trustee constitutes anoath 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 aretrue.

 

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 andany certificates of amendment or cancellation or any certificate of merger orconsolidation shall be delivered to the secretary of state. Unless thesecretary of state finds that any certificate does not conform to law, uponreceipt of all filing fees required he shall:

 

(i) Certify that the certificate of trust, the certificate ofamendment, the certificate of cancellation or the certificate of merger orconsolidation has been filed in his office by endorsing upon the original andduplicate copy of the certificate the word "Filed," and the date andhour of the filing. This endorsement is conclusive of the date and time of itsfiling 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 affixthe duplicate copy of the certificate of trust. In the case of the filing ofany certificate other than a certificate of trust, the secretary of state shallreturn the duplicate copy, similarly endorsed, to the person who filed it orhis representative.

 

(b) A certificate of trust, certificate of amendment,certificate of cancellation or certificate of merger or consolidation whichacts 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 thetime of the filing of a certificate of trust, a certificate of amendment, acertificate of cancellation or a certificate of merger or consolidation.

 

(d) Upon the issuance of the certificate of organization, thestatutory trust shall be considered organized. The certificate of organizationshall be conclusive evidence that all conditions precedent required to beperformed by the trustee and beneficial owners have been complied with and thatthe statutory trust has been legally organized under this chapter, except asagainst this state in a proceeding to cancel or revoke the certificate oforganization or for involuntary dissolution of the statutory trust.

 

(e) A statutory trust shall not transact business or incurindebtedness, except that which is incidental to its organization or until thesecretary of state has issued a certificate of organization.

 

17-23-117. Administration; filing, service and copying fees; annualfee.

 

 

(a) The secretary of state has the power reasonably necessaryto perform the duties required by this chapter. The secretary of state shallpromulgate reasonable rules and regulations necessary to carry out the purposesof this chapter.

 

(b) The secretary of state shall set and collect filing,service and copying fees to recover costs to administer this chapter. Feesshall not exceed the costs of providing these services.

 

(c) The secretary of state shall collect an annual tax of onehundred dollars ($100.00), due and payable January 2 of each year. This tax isdelinquent if not paid by February 1 and an addition to the tax shall then bedue 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, adocument accepted for filing is effective:

 

(i) At the time of filing on the date it is filed, as evidencedby 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 timeon 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 becomeseffective at the time and date specified. If a delayed effective date but notime is specified, the document is effective at the close of business on thatdate. 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 astatutory trust name by delivering an application to the secretary of state forfiling. The application shall set forth the name and address of the applicantand the name proposed to be reserved. If the secretary of state finds that thestatutory trust name applied for is available, the secretary shall file theapplication and reserve the name for the applicant's exclusive use for anonrenewable one hundred twenty (120) day period.

 

(b) The owner of a reserved statutory trust name may transferthe reservation to another person by delivering to the secretary of state amanually signed notice of the transfer that states the name and address of thetransferee.

 

17-23-120. Derivative actions.

 

 

(a) A beneficial owner may bring an action in the districtcourt in the right of a statutory trust to recover a judgment in its favor iftrustees with authority to do so have refused to bring the action or if aneffort to cause those trustees to bring the action is not likely to succeed.

 

(b) In a derivative action, the plaintiff must be a beneficialowner 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 byoperation of law or pursuant to the terms of the governing instrument of thestatutory trust from a person who was a beneficial owner at the time of thetransaction.

 

(c) In a derivative action, the complaint shall set forth withparticularity the effort, if any, of the plaintiff to secure initiation of theaction 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 theplaintiff reasonable expenses, including reasonable attorney's fees. Ifanything is so received by the plaintiff, the court shall make the award of theplaintiff's expenses payable out of those proceeds and direct the plaintiff toremit to the statutory trust the remainder of the proceeds. If those proceedsare insufficient to reimburse the plaintiff's reasonable expenses, the courtmay direct that any award of plaintiff's expenses or portion thereof be paid bythe statutory trust.

 

(e) A beneficial owner's right to bring a derivative action maybe subject to additional standards and restrictions, if any, as are set forthin the governing instrument, including, without limitation, the requirementthat beneficial owners owning a specified beneficial interest in the statutorytrust join in the bringing of the derivative action.

 

17-23-121. Indemnification.

 

 

(a) Subject to standards and restrictions, if any, as are setforth in the governing instrument, a statutory trust shall have the power toindemnify and hold harmless any trustee or beneficial owner or other personfrom and against any and all claims and demands whatsoever.

 

(b) The absence of a provision for indemnity in the governinginstrument shall not be construed to deprive any trustee or beneficial owner orother person of any right to indemnity which is otherwise available to theperson 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, astatutory trust may merge or consolidate with or into one (1) or more statutorytrusts or other business entities formed or organized or existing under thelaws of this state or any other state of the United States or any foreigncountry or other foreign jurisdiction, with the statutory trust or otherbusiness entity as the agreement provides being the surviving or resultingstatutory trust or other business entity. Unless otherwise provided in thegoverning instrument of a statutory trust, a merger or consolidation shall beapproved by all of the trustees and the beneficial owners of each statutorytrust which is to merge or consolidate. In connection with a merger orconsolidation, rights or securities of, or interests in, a statutory trust orother business entity which is a constituent party to the merger or consolidationmay be exchanged for or converted into cash, property, rights or securities of,or interests in, the surviving or resulting statutory trust or other businessentity or, in addition to or in lieu thereof, may be exchanged for or convertedinto cash, property, rights or securities of, or interests in, a statutorytrust or other business entity which is not the surviving or resultingstatutory trust or other business entity in the merger or consolidation. Notwithstanding prior approval, an agreement of merger or consolidation may beterminated or amended pursuant to a provision for termination or amendmentcontained in the agreement of merger or consolidation.

 

(b) If a statutory trust is merging or consolidating under thissection, the statutory trust or other business entity surviving or resultingfrom the merger or consolidation shall file a certificate of merger orconsolidation in the office of the secretary of state. The certificate ofmerger or consolidation shall state:

 

(i) The name and jurisdiction of formation or organization ofeach statutory trust or other business entity which is to merge or consolidate;

 

(ii) That an agreement of merger or consolidation has beenapproved and executed by each statutory trust or other business entity which isto merge or consolidate;

 

(iii) The name of the surviving or resulting statutory trust orother business entity;

 

(iv) The future effective date or time of the merger orconsolidation if it is not to be effective upon the filing of the certificateof merger or consolidation;

 

(v) That the executed agreement of merger or consolidation ison file at the principal place of business of the surviving or resultingstatutory trust or other business entity, and the address thereof;

 

(vi) That a copy of the agreement of merger or consolidationwill be furnished by the surviving or resulting statutory trust or otherbusiness entity, on request and without cost, to any beneficial owner of anystatutory trust or any person holding an interest in any other business entitywhich is to merge or consolidate; and

 

(vii) If the surviving or resulting entity is not a statutorytrust or other business entity formed or organized or existing under the lawsof this state, a statement that the surviving or resulting other businessentity 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 trustwhich is to merge or consolidate. The statement shall irrevocably appoint the secretaryof state as the agent to accept service of process in any such action, suit orproceeding and specify the address to which a copy of the process shall bemailed by the secretary of state. In the event of service under this paragraphupon the secretary of state, the plaintiff shall furnish the secretary of statewith the address specified in the certificate of merger or consolidationprovided for in this paragraph and any other address which the plaintiff mayelect to furnish, together with copies of the process required by the secretaryof state. The secretary of state shall notify the surviving or resulting otherbusiness entity at all addresses furnished by the plaintiff by letter,certified mail, return receipt requested. The letter shall enclose a copy ofthe process and any other papers served upon the secretary of state. It shallbe the duty of the plaintiff in the event of such service to serve process andany other papers in duplicate, to notify the secretary of state that service isbeing made pursuant to this paragraph, and to pay the secretary of state thesum of fifty dollars ($50.00) for use of the state, which shall be taxed aspart of the costs in the proceeding, if the plaintiff shall prevail. Thesecretary of state shall maintain an alphabetical record of any process underthis paragraph setting forth the name of the plaintiff and defendant, thetitle, docket number and nature of the proceedings in which process has beenserved upon him, the return date thereof, and the day and hour when the servicewas made. The secretary of state shall not be required to retain theinformation for a period longer than five (5) years from his receipt of theservice of process.

 

(c) Unless a future effective date or time is provided in acertificate of merger or consolidation, in which event a merger orconsolidation shall be effective at the future effective date or time, a mergeror consolidation shall be effective upon the filing in the office of thesecretary of state of a certificate of merger or consolidation.

 

(d) A certificate of merger or consolidation shall act as acertificate of cancellation for a statutory trust which is not the surviving orresulting entity in the merger or consolidation.

 

(e) Notwithstanding anything to the contrary contained in thegoverning instrument, a governing instrument containing a specific reference tothis subsection may provide that an agreement of merger or consolidationapproved in accordance with subsection (a) of this section may:

 

(i) Effect any amendment to the governing instrument of thestatutory trust; or

 

(ii) Effect the adoption of a new governing instrument of thestatutory trust if it is the surviving or resulting statutory trust in themerger or consolidation.

 

(f) Any amendment to the governing instrument of a statutorytrust or adoption of a new governing instrument of the statutory trust madepursuant to subsection (e) of this section shall be effective at the effectivetime or date of the merger or consolidation. The provisions of subsection (e)of this section and this subsection shall not be construed to limit theaccomplishment of a merger or consolidation or of any of the matters referredto in this article by any other means provided for in the governing instrumentof a statutory trust or other agreement or as otherwise permitted by law,including that the governing instrument of any constituent statutory trust tothe merger or consolidation, including a statutory trust formed for the purposeof consummating a merger or consolidation, shall be the governing instrument ofthe surviving or resulting statutory trust.

 

(g) When any merger or consolidation shall have becomeeffective under this section, for all purposes of the laws of the state, all ofthe rights, privileges and powers of each of the statutory trusts and otherbusiness entities that have merged or consolidated, and all property, real,personal and mixed, and all debts due to any of those statutory trusts andother business entities, as well as all other things and causes of actionbelonging to each of such statutory trusts and other business entities, shallbe vested in the surviving or resulting statutory trust or other businessentity as they were of each of the statutory trusts and other business entitiesthat have merged or consolidated. The title to any real property vested bydeed or otherwise, under the laws of the state, in any of merging orconsolidating statutory trusts and other business entities, shall not revert orbe in any way impaired by reason of this chapter. All rights of creditors andall liens upon any property of any merging or consolidating statutory trustsand other business entities shall be preserved unimpaired, and all debts,liabilities and duties of each of the statutory trusts and other businessentities that have merged or consolidated shall attach to the surviving orresulting statutory trust or other business entity, and may be enforced againstit to the same extent as if the debts, liabilities and duties had been incurredor contracted by it.

 

17-23-202. Continuance of foreign statutory trusts.

 

(a) Subject to subsection (b) of this section, any statutorytrust 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 jurisdictionother than this state may, if the jurisdiction will acknowledge the statutorytrust's termination of domicile in the foreign jurisdiction, apply to the secretaryof state for registration under this chapter, thus continuing the statutorytrust in Wyoming as if it had been organized under the laws of this state. Thesecretary of state may issue a certificate of continuance upon receipt of anapplication for continuance as provided in subsection (c) of this section. Thecertificate of continuance may then be issued subject to any limitations andconditions and may contain any provisions as appear proper to the secretary ofstate.

 

(b) The secretary of state shall cause notice of issuance of acertificate of continuance to be given forthwith to the proper officer of thejurisdiction in which the statutory trust was previously organized.

 

(c) The application for continuance filed by a foreignstatutory trust with the secretary of state shall include:

 

(i) A certified copy of its original certificate of trust andall amendments thereto or its equivalent;

 

(ii) The name of the statutory trust and the jurisdiction underthe laws of which it is organized;

 

(iii) The date of organization and the period of duration of thestatutory trust;

 

(iv) The address of the principal office of the statutory trust;

 

(v) The street address of the proposed registered office of thestatutory trust in this state and the name of its proposed registered agent inthis state at the address;

 

(vi) The purpose or purposes of the statutory trust which itproposes to pursue in the transaction of business in this state;

 

(vii) Any information concerning capital structure or financialstatus the secretary of state deems necessary to establish fees and taxes underthe laws of this state;

 

(viii) Any additional information necessary or appropriate toenable the secretary of state to determine whether the statutory trust isentitled to a certificate of organization evidencing its existence andauthority to transact business in this state.

 

(d) The application shall be executed by the statutory trust byits trustees or a trustee who is authorized to execute the application onbehalf of the statutory trust and shall be verified by the trustee signing theapplication.

 

(e) The provisions of the application for continuance maywithout expressly so stating, vary from the provisions of the statutory trust'scertificate of trust or governing instrument or equivalent, if the variation isone which a statutory trust organized under the Wyoming Statutory Trust Actcould effect by way of amendment to its certificate of trust or governinginstrument. Upon issuance of a certificate of continuance by the secretary ofstate, the certificate of continuance shall be the certificate of trust of thecontinued statutory trust. The statutory trust may elect to incorporate byreference in and attachment to the application for continuance its original certificateof trust or other authorization which had been adopted by the statutory trustin the foreign jurisdiction, in order to permit the original to continue to actas the certificate of trust of the statutory trust provided, however, that theoriginal certificate of trust or other authorization shall be deemed amended tothe extent necessary to make it conform to the laws of this state.

 

(f) The existence of any statutory trust issued a certificateof continuance under this chapter shall be deemed to have commenced on the datethe statutory trust commenced its existence in the jurisdiction in which thestatutory trust was first formed, organized or otherwise came into being. Thelaws of this state shall apply to a statutory trust continuing under thischapter to the same extent as if the statutory trust had been organized underthe laws of this state from and after the issuance of a certificate ofcontinuance under this chapter by the secretary of state to the statutorytrust. When a foreign statutory trust is continued as a statutory trust underthis chapter, the continuance shall not affect the statutory trust's ownershipof 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 aspectsof the statutory trust and its existence.

 

(g) As used in this section, the term "statutorytrust" shall include any business trust, association or similar entitywhich appears to the secretary of state to possess characteristics sufficientlysimilar to those of a statutory trust organized under the Wyoming StatutoryTrust Act.

 

ARTICLE 3 - EFFECTIVENESS

 

17-23-301. Reserved power of state to amend or repeal chapter.

 

Allprovisions of this chapter may be altered from time to time or repealed and allrights of statutory trusts, trustees, beneficial owners and other persons aresubject to this reservation.

 

17-23-302. Construction and application of chapter and governinginstrument.

 

 

(a) The rule that statutes in derogation of the common law areto be strictly construed shall have no application to this chapter.

 

(b) It is the policy of this chapter to give maximum effect tothe principle of freedom of contract and to the enforceability of governinginstruments.

 

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