CHAPTER 16 - Wyoming Business Corporation Act - General Provisions

Wyoming Business Corporation Act

Wyoming Business Corporation Act Wyoming Business Corporation Act

ARTICLE 1 - GENERAL PROVISIONS

17-16-101. Short title

This act shall be known and may be cited as the "Wyoming Business Corporation Act."

17-16-102. Reservation of power to amend or repeal

The legislature has power to amend or repeal all or part of this act at any time and all domestic and foreign corporations subject to this act are governed by the amendment or repeal.

17-16-120. Requirements for documents

(a) A document shall satisfy the requirements of this section, and of any other section that adds to or varies from these requirements, to be entitled to filing by the secretary of state.

(b) This act shall require or permit filing the document in the office of the secretary of state.

(c) The document shall contain the information required by this act. It may contain other information as well.

(d) The document shall be typewritten or printed or, if electronically transmitted, it shall be in a format that can be retrieved or reproduced in typewritten or printed form.

(e) The document shall be in the English language. A corporate name need not be in English if written in English letters or Arabic or Roman numerals, and the certificate of existence required of foreign corporations need not be in English if accompanied by an English translation acceptable to the secretary of state.

(f) The document shall be executed:

(i) By the chairman of the board of directors of a domestic or foreign corporation, by its president, or by another of its officers;

(ii) If directors have not been selected or the corporation has not been formed, by an incorporator; or

(iii) If the corporation is in the hands of a receiver, trustee, or other court-appointed fiduciary, by that fiduciary.

(g) The person executing the document shall sign it and shall state beneath or opposite his signature his name and the capacity in which he signs. The document may but need not contain:

(i) The corporate seal;

(ii) An attestation by the secretary or an assistant secretary;

(iii) An acknowledgment, verification or proof.

(h) If the secretary of state has prescribed a mandatory form for the document under W.S. 17-16-121, the document shall be in or on the prescribed form.

(i) The document shall be delivered to the office of the secretary of state for filing. Delivery may be made by electronic transmission if and to the extent permitted by the secretary of state. If it is filed in typewritten or printed form and not transmitted electronically, the secretary of state may require one (1) exact copy to be delivered with the document, except as provided in W.S. 17-28-103.

(j) When the document is delivered to the office of the secretary of state for filing, the correct filing fee, and any franchise tax, licence fee or penalty required to be paid therewith by this act or other law shall be paid or provision for payment made in a manner provided by the secretary of state.

(k) Reserved.

17-16-121. Forms

(a) If the secretary of state so requires, use of forms provided by the secretary of state pursuant to this subsection is mandatory.? The secretary of state may prescribe and furnish on request forms for:

(i) An application for a certificate of existence;

(ii) A foreign corporation's application for a certificate of authority to transact business in this state;

(iii) A foreign corporation's application for a certificate of withdrawal;

(iv) The annual report;

(v) A foreign corporation's application for a certificate of continuance;

(vi) An application for a certificate of transfer;

(vii) A foreign corporation's application for certificate of domestication; and

(viii) A consent of registered agent to appointment.

(b) The secretary of state may prescribe and furnish on request forms for other documents required or permitted to be filed by this act but their use is not mandatory.

17-16-122. Filing, service and copying fees

The secretary of state shall set and collect filing, service and copying fees to recover his costs to administer this act. Fees shall not exceed the costs of providing these services.

17-16-123. Effective time and date of document

(a) Except as provided in subsection (b) of this section and W.S. 17-16-124(c), a document accepted for filing pursuant to W.S. 17-16-120 is effective:

(i) As of the time received for filing, as evidenced by such means as the secretary of state may use for the purpose of recording the date and time of filing; or

(ii) At the time specified in the document as its effective time on the date it is filed.

(b) A document may specify a delayed effective time and date, and if it does so the document becomes effective at the time and date specified. If a delayed effective date but no time is specified, the document is effective at the close of business on that date. A delayed effective date for a document may not be later than the ninetieth (90th) day after the date it is filed.

17-16-124. Correcting filed document

(a) A domestic or foreign corporation may correct a document filed with the secretary of state if the document:

(i) Contains an inaccuracy;

(ii) Was defectively executed, attested, sealed, verified, or acknowledged; or

(iii) The electronic transmission was defective.

(b) A document is corrected:

(i) By preparing articles of correction that:

(A) Describe the document, including its filing date, or attach a copy of the document to the articles of correction;

(B) Specify the inaccuracy or defect to be corrected; and

(C) Correct the inaccuracy or defect.

(ii) By delivering the articles of correction to the secretary of state for filing.

(c) Articles of correction are effective on the effective date of the document they correct except as to persons relying on the uncorrected document and adversely affected by the correction. As to those persons, articles of correction are effective when filed.

17-16-125. Filing duty of secretary of state

(a) If a document delivered to the office of the secretary of state for filing satisfies the requirements of W.S. 17-16-120, the secretary of state shall file the document.

(b) The secretary of state files a document by stamping or otherwise endorsing "Filed," together with his official title and the date and time of filing, on both the original and the document copy and on the receipt for the filing fee. The secretary of state may prescribe rules for filing of electronic transmissions. After filing a document, except as provided in W.S. 17-28-103, the secretary of state shall deliver the document copy, with the filing fee receipt (or acknowledgement of receipt if no fee is required) attached, to the domestic or foreign corporation or its representative. The secretary of state, in his discretion, may issue a certificate evidencing the filing of a document upon the payment of the requisite fee.

(c) If the secretary of state refuses to file a document, he shall return it to the domestic or foreign corporation or its representative within five (5) days after the document was delivered, together with a brief, written explanation of the reason for his refusal.

(d) The secretary of state's duty to file documents under this section is ministerial. His filing or refusing to file a document does not:

(i) Affect the validity or invalidity of the document in whole or part;

(ii) Relate to the correctness or incorrectness of information contained in the document; or

(iii) Create a presumption that the document is valid or invalid or that information contained in the document is correct or incorrect.

17-16-126. Appeal from secretary of state's refusal to file document

(a) If the secretary of state refuses to file a document delivered to his office for filing, the domestic or foreign corporation may, within thirty (30) days after the return of the document, appeal the refusal to the district court of the county where the corporation's principal office is located in the state or, if the corporation does not have a principal office in the state, the district court of the county where its registered office is or will be located, or the district court of the county of residence of an incorporator for a domestic corporation, or in the district court of Laramie county. The appeal is commenced by petitioning the court to compel filing the document and by attaching to the petition the document and the secretary of state's explanation of his refusal to file.

(b) The court may summarily order the secretary of state to file the document or take other action the court considers appropriate.

(c) The court's final decision may be appealed as in other civil proceedings.

17-16-127. Evidentiary effect of copy of filed document

A certificate from the secretary of state delivered with a copy of a document filed by the secretary of state is conclusive evidence that the original document is on file with the secretary of state.

17-16-128. Certificate of existence

(a) Anyone may apply to the secretary of state to furnish a certificate of existence for a domestic corporation or a certificate of authorization for a foreign corporation.

(b) A certificate of existence or authorization sets forth:

(i) The domestic corporation's corporate name or the foreign corporation's corporate name used in this state;

(ii) That:

(A) The domestic corporation is duly incorporated under the law of this state, the date of its incorporation, and the period of its duration if less than perpetual; or

(B) The foreign corporation is authorized to transact business in this state.

(iii) That all fees, taxes, and penalties owed to this state have been paid, if:

(A) Payment is reflected in the records of the secretary of state; and

(B) Nonpayment affects the existence or authorization of the domestic or foreign corporation.

(iv) That its most recent annual report required by W.S. 17-16-1630 has been filed by the secretary of state;

(v) That articles of dissolution have not been filed; and

(vi) Other facts of record in the office of the secretary of state that may be requested by the applicant.

(c) Subject to any qualification stated in the certificate, a certificate of existence or authorization issued by the secretary of state may be relied upon as conclusive evidence that the domestic or foreign corporation is in existence or is authorized to transact business in this state.

17-16-129. Repealed by Laws 2008, Ch. 91, 3

17-16-130. Powers

The secretary of state has the power reasonably necessary to perform the duties required of him by this act. The secretary of state shall promulgate reasonable forms, rules and regulations necessary to carry out the purposes of this act.

17-16-140. Definitions

(a) In this act:

(i) "Articles of incorporation" means the original articles of incorporation, all amendments thereof and any other documents permitted or required to be filed by a domestic business corporation with the secretary of state under any provision of this act. If an amendment of the articles or any other document filed under this act restates the articles in their entirety thenceforth the articles shall not include any prior documents;

(ii) "Authorized shares" means the shares of all classes a domestic or foreign corporation is authorized to issue;

(iii) "Conspicuous" means so written that a reasonable person against whom the writing is to operate should have noticed it. For example, printing in italics or boldface or contrasting color, or typing in capitals or underlined, is conspicuous;

(iv) "Corporation" or "domestic corporation" means a corporation for profit, which is not a foreign corporation, incorporated under or subject to the provisions of this act;

(v) "Deliver" or "delivery" means any method of delivery used in conventional commercial practice, including delivery by hand, mail, commercial delivery and electronic transmission;

(vi) "Distribution" means a direct or indirect transfer of money or other property, except the corporation's own shares, or incurrence of indebtedness by a corporation to or for the benefit of its shareholders in respect of any of its shares. A distribution may be in the form of a declaration or payment of a dividend, a purchase, redemption, or other acquisition of shares, a distribution of indebtedness, or otherwise;

(vii) "Domestic unincorporated entity" means an unincorporated entity whose internal affairs are governed by the laws of this state;

(viii) "Effective date of notice" is defined in W.S. 17-16-141;

(ix) "Electronic transmission" or "transmitted electronically" means any process of communication not directly involving the physical transfer of paper that is suitable for the retention, retrieval and reproduction of information by the recipient;

(x) "Eligible entity" means a domestic or foreign unincorporated entity or a domestic or foreign nonprofit corporation;

(xi) "Eligible interests" means interests;

(xii) "Employee" includes an officer but not a director. A director may accept duties that make him also an employee;

(xiii) "Entity" includes domestic corporation and foreign corporation, domestic nonprofit corporation and foreign nonprofit corporation, domestic and foreign profit and not-for-profit unincorporated association, business trust, statutory trust, estate, partnership, trust, or two (2) or more persons having a joint or common economic interest, and state, United States or foreign government;

(xiv) "Expenses" means reasonable expenses of any kind that are incurred in connection with a matter, including but not limited to attorney and expert witness fees;

(xv) "Foreign corporation" means a corporation for profit incorporated under a law other than the law of this state;

(xvi) "Governmental subdivision" includes authority, county, district, municipality, and any other political subdivision;

(xvii) "Includes" denotes a partial definition;

(xviii) "Individual" means a natural person and includes the estate of an incompetent or deceased individual;

(xix) "Interest" means either or both of the following rights under the organic law of an unincorporated entity:

(A) The right to receive distributions from the entity either in the ordinary course or upon liquidation; or

(B) The right to receive notice or vote on issues involving its internal affairs, other than as an agent, assignee, proxy or person responsible for managing its business and affairs.

(xx) "Interest holder" means a person who holds of record an interest;

(xxi) "Means" denotes an exhaustive definition;

(xxii) "Net assets" means the amount by which the total assets of a corporation exceed the total debts of the corporation;

(xxiii) "Notice" is defined in W.S. 17-16-141;

(xxiv) "Organic document" means a public organic document or a private organic document;

(xxv) "Organic law" means the statute governing the internal affairs of a domestic or foreign business or nonprofit corporation or unincorporated entity;

(xxvi) "Owner liability" means personal liability for a debt, obligation or liability of a domestic or foreign business or nonprofit corporation or unincorporated entity that is imposed on a person:

(A) Solely by reason of the person's status as a shareholder or interest holder; or

(B) By the articles of incorporation, bylaws or an organic document under a provision of the organic law of an entity authorizing the articles of incorporation, bylaws or an organic document to make one (1) or more specified shareholders or interest holders liable in their capacity as shareholders or interest holders for all or specified debts, obligations or liabilities of the entity.

(xxvii) "Person" includes an individual, partnership, joint venture, corporation, joint stock company, limited liability company or any other association or entity, public or private;

(xxviii) "Principal office" means the office within or outside of this state, so designated in the annual report;

(xxix) "Private organic document" means any document other than the public organic document, if any, that determines the internal governance of an unincorporated entity. Where a private organic document has been amended or restated, the term means the private organic document as last amended or restated;

(xxx) "Proceeding" includes civil suit and criminal, administrative, and investigatory action;

(xxxi) "Public corporation" means a corporation that has shares listed on a national securities exchange or regularly traded in a market maintained by one (1) or more members of a national securities association;

(xxxii) "Public organic document" means the document, if any, that is filed of public record to create an unincorporated entity. Where a public organic document has been amended or restated, the term means the public organic document as last amended or restated;

(xxxiii) "Qualified director" is defined in W.S. 17-16-143;

(xxxiv) "Record date" means the date established under article 6 or 7 on which a corporation determines the identity of its shareholders and their shareholdings for purposes of this act. The determinations shall be made as of the close of business on the record date unless another time for doing so is specified when the record date is fixed;

(xxxv) "Registered agent" means as provided in W.S. 17-28-101 through 17-28-111;

(xxxvi) "Secretary" means the corporate officer to whom the board of directors has delegated responsibility under W.S. 17-16-840(c) for custody of the minutes of the meetings of the board of directors and of the shareholders and for authenticating records of the corporation;

(xxxvii) "Shareholder" means the person in whose name shares are registered in the records of a corporation or the beneficial owner of shares to the extent of the rights granted by a nominee certificate on file with a corporation;

(xxxviii) "Shares" means the units into which the proprietary interests in a corporation are divided;

(xxxix) "Sign" or "signature" includes any manual, facsimile, conformed or electronic signature;

(xl) "State," when referring to a part of the United States, includes a state and commonwealth, and their agencies and governmental subdivisions, and a territory and insular possession, and their agencies and governmental subdivisions, of the United States;

(xli) "Subscriber" means a person who subscribes for shares in a corporation, whether before or after incorporation;

(xlii) "Unincorporated entity" means an organization or artificial legal person that either has a separate legal existence or has the power to acquire an estate in real property in its own name and that is not any of the following: a domestic or foreign business or nonprofit corporation, an estate, a trust, a state, the United States or a foreign government. The term includes, but is not limited to, a general partnership, limited liability company, limited partnership, limited liability limited partnership, registered limited liability partnership, business trust, statutory trust, cooperative, joint stock association, joint venture and unincorporated nonprofit association;

(xliii) "United States" includes district, authority, bureau, commission, department, and any other agency of the United States;

(xliv) "Voting group" means all shares of one (1) or more classes or series that under the articles of incorporation or this act are entitled to vote and be counted together collectively on a matter at a meeting of shareholders. All shares entitled by the articles of incorporation or this act to vote generally on the matter are for that purpose a single voting group;

(xlv) "Voting power" means the current power to vote in the election of directors;

(xlvi) "This act" means W.S. 17-16-101 through 17-16-1820.

17-16-141. Notice

(a) Notice under this act shall be in writing unless oral notice is reasonable under the circumstances. Notice by electronic transmission is written notice.

(b) Notice may be communicated in person; by telephone, telegraph, teletype, or other form of wire or wireless communication; or by mail or private carrier. If these forms of personal notice are impracticable, notice may be communicated by a newspaper of general circulation in the area where published; or by radio, television, or other form of public broadcast communication.

(c) Written notice by a domestic or foreign corporation to its shareholder, if in a comprehensible form, is effective:

(i) Upon deposit in the United States mail, if mailed postpaid and correctly addressed to the shareholder's address shown in the corporation's current record of the shareholders; or

(ii) When electronically transmitted to the shareholder in a manner authorized by the shareholder.

(d) Written notice to a domestic or foreign corporation authorized to transact business in this state may be addressed to its registered agent at its registered office or to the corporation or its secretary at its principal office shown in its most recent annual report or, in the case of a foreign corporation that has not yet delivered an annual report, in its application for a certificate of authority.

(e) Except as provided in subsection (c) of this section, written notice, if in a comprehensible form, is effective at the earliest of the following:

(i) When received;

(ii) Five (5) days after its deposit in the United States mail, as evidenced by the postmark, if mailed postpaid and correctly addressed; or

(iii) On the date shown on the return receipt, if sent by registered or certified mail, or comparable private carrier, return receipt requested, and the receipt is signed, either manually or in facsimile, by or on behalf of the addressee.

(f) Oral notice is effective when communicated if communicated in a comprehensible manner.

(g) If this act prescribes notice requirements for particular circumstances, those requirements govern. If articles of incorporation or bylaws prescribe notice requirements, not inconsistent with this section or other provisions of this act, those requirements govern.

17-16-142. Number of shareholders

(a) For purposes of this act, the following identified as a shareholder in a corporation's current record of shareholders constitutes one (1) shareholder:

(i) Three (3) or fewer coowners;

(ii) A corporation, partnership, trust, estate, or other entity; or

(iii) The trustees, guardians, custodians, or other fiduciaries of a single trust, estate, or account.

(b) For purposes of this act, shareholdings registered in substantially similar names constitute one (1) shareholder if it is reasonable to believe that the names represent the same person.

17-16-143. Qualified director

(a) A "qualified director" is a director who, at the time action is to be taken under:

(i) W.S. 17-16-744, does not have:

(A) A material interest in the outcome of the proceeding; or

(B) A material relationship with a person who has such an interest.

(ii) W.S. 17-16-853 or 17-16-855:

(A) Is not a party to the proceeding;

(B) Is not a director as to whom a transaction is a director's conflicting interest transaction or who sought a disclaimer of the corporation's interest in a business opportunity under W.S. 17-16-870, which transaction or disclaimer is challenged in the proceeding; and

(C) Does not have a material relationship with a director described in either subparagraph (A) or (B) of this paragraph.

(iii) W.S. 17-16-862, is not a director as to whom the transaction is a director's conflicting interest transaction, or a director who has a material relationship with another director as to whom the transaction is a director's conflicting interest transaction; or

(iv) W.S. 17-16-870, would be a qualified director under paragraph (iii) of this subsection if the business opportunity were a director's conflicting interest transaction.

(b) For purposes of this section:

(i) "Material interest" means an actual or potential benefit or detriment, other than one which would devolve on the corporation or the shareholders generally, that would reasonably be expected to impair the objectivity of the director's judgment when participating in the action to be taken;

(ii) "Material relationship" means a familial, financial, professional, employment or other relationship that would reasonably be expected to impair the objectivity of the director's judgment when participating in the action to be taken.

(c) The presence of one (1) or more of the following circumstances shall not automatically prevent a director from being a qualified director:

(i) Nomination or election of the director to the current board by any director who is not a qualified director with respect to the matter, or by any person that has a material relationship with that director, acting alone or participating with others;

(ii) Service as a director of another corporation of which a director who is not a qualified director with respect to the matter, or any individual who has a material relationship with that director, is or was also a director; or

(iii) With respect to action to be taken under W.S. 17-16-744, status as a named defendant, as a director against whom action is demanded or as a director who approved the conduct being challenged.

17-16-144. Reserved

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