I have often written about numerous provisions of the California Corporations Code that expressly apply to foreign corporations meeting specified tests.  The most famous, but not the only, statute of this breed is Section 2115.  Although Section 2115 entraps many foreign corporations, I continue to be surprised by corporations that mistakenly claim to be subject to it.  For example, I recently came across the following disclosure in a Form S-1 registration statement filed earlier this month:

We are a Delaware corporation, governed by the Delaware General Corporation Law; however, our headquarters, property and officers are located in California.  Section 2115 of the California Corporations Code (the “California Corporation Long-Arm Statute”) purports to impose on corporations like us certain portions of California’s laws governing corporations formed under the laws of the State of California. . . .

We believe it is likely that we meet the test for the application of the California Corporation Long-Arm Statute and do not anticipate a specific time in the future when we would not meet such test. . . .

While this corporation may now be subject to Section 2115, I can foresee a time when it will not be subject to Section 2115.  Why?  The registration statement also includes the following disclosure:

Upon the completion of this offering, our common stock will commence trading on the Nasdaq Capital Market . . . .

Section 2115(c) provides “This section does not apply to any corporation (1) with outstanding securities listed on the New York Stock Exchange, the NYSE Amex, the NASDAQ Global Market, or the NASDAQ Capital Market . . .”.

Oddly, the registration statement makes no mention of other provisions of the California General Corporation Law that apply to foreign corporations independent of Section 2115.