INSTRUCTIONS FOR AN APPLICATION FOR REGISTRATION OF AN OUT-OF-STATE FINANCIAL INSTITUTION (SEC. 201.102, FINANCE CODE)

(Form 309)

 

·         Commentary: Section 201.102 of the Texas Finance Code requires an out-of-state financial institution to comply with the law of this state relating to foreign corporations doing business in the state before operating a branch or other office in this state. The applicable law is the Texas Business Organizations Code (BOC). In this regard, the out-of-state financial institution is required to register with the secretary of state and continuously maintain a registered agent and registered office address in Texas until the institution terminates or withdraws its registration to transact business. Should the out-of-state financial institution change its name as provided by the laws governing its formation, it will be required to file an amendment to its application for registration. (Form 411)

An out-of-state financial institution means a bank, savings bank, savings association, savings and loan association, credit union or trust company that is not chartered under the laws of this state and that has its main or principal office in another state or country. If the foreign financial institution is a state or federal credit union, the filing of the application for registration cannot be processed over the web due to the difference in filing fees for non-profit entities. A credit union registration should be made on Form 309, which is available from the Corporations index of forms page on our web site. The completed application form should be delivered to the Secretary of State by mail, fax, or in person.

The secretary of state does not provide legal opinions as to whether, given a particular set of circumstances, an out-of-state financial institution is or will be transacting business in the state and is required to obtain a registration under article 201.102 of the Finance Code.

·         Web Form and Content: The web form promulgated by the secretary of state is designed to meet minimum statutory filing requirements and no warranty is made regarding the suitability of this form for any particular purpose. This form and the information provided are not substitutes for the advice of an attorney and it is recommended that the services of an attorney be obtained before preparation of the application for registration.

During the web filing process, you will be directed from screen to screen to provide certain variable information with which to populate the form. After entry of the information, a document image will be displayed for your review. Certain statutorily required provisions have been drafted with standard pre-printed statements. For example, an out-of-state financial institution must exist as a valid entity in its jurisdiction of formation at the time of registration. A statement to that effect is included in the application document. The application also contains a statement that the foreign entity consents to the appointment of the secretary of state as an agent of the foreign entity for service of process under the circumstances described by section 5.251 of the BOC. Consequently, please review the document carefully for accuracy since the Texas Business Organizations Code provides that a person commits an offense if the person signs a document the person knows is false in any material respect with the intent that the document be delivered to the secretary of state for filing. The offense is a Class A misdemeanor unless the person’s intent is to harm or defraud another, in which case the offense is a state jail felony.

·         Fee: The filing fee for an application for registration is $750.00 (BOC § 4.152), for a financial institution, other than a credit union. The filing fee for a financial institution classified as a credit union is $25.00 (BOC § 4.153). Payments for web filings may be made by credit card or client account. Selection of the payment method is performed during the subscriber login process. Fees paid by credit card are subject to a statutorily authorized convenience fee of 2.7% of the total fees. To view the available balance in your client account, select the Account tab from the navigation bar and select "Client Account Statements" from the Account Maintenance Menu.

·         Filing Type and Entity Type Screen: On this screen, the type of filing and the type of financial institution submitting the filing are selected from drop down boxes.

·         Name of Financial Institution Screen: Provide the full legal name of the out-of-state financial institution as it appears in its organizational document. An out-of-state financial institution that regularly conducts business under a name that differs from the name in its formation document should file an assumed name certificate pursuant to Chapter 36 of the Texas Business & Commerce Code. (Form 503)

·         Jurisdictional Information Screen: You must provide certain information regarding the financial institution on this screen.

·         FEIN: If the financial institution has obtained a federal employer identification number [FEIN] from the Internal Revenue Service, enter the tax identification number in the field provided. Enter the nine (9) digit number without punctuation or spaces; for example, 123456789. If the financial institution has not obtained an FEIN at this time, then move your cursor or tab over to the next field.

·         State/Type of Institution: You must identify the type of financial institution you intend to register by clicking on the appropriate button. If the financial institution is organized under the laws of another state, please enter the two-letter abbreviation used by the postal service to identify the state of organization. If the financial institution is a federal institution, the country will show as the United States of America and the state field will be blank. If the financial institution is created or organized under the laws of a non-US jurisdiction for which there is no state or province, tab through the state field and select the name of the foreign jurisdiction from the drop down menu.

·         Formation Date: Enter the month, day, and year of organization of the financial institution in the jurisdiction of formation in the following format: mm/dd/yyyy (e.g., 05/15/2000).

·         Principal Office Address Screen: Provide the address of the financial institution's principal office in its jurisdiction of formation.  The United States of America is set as the default country of the jurisdiction of formation.  If the financial institution is created or organized under the laws of a non-US jurisdiction, please be sure to select the appropriate foreign jurisdiction from the drop down menu and tab through the state field when providing the institution's principal office address.

·         Registered Agent And Registered Office Screen: The registered agent can be either: (1) a Texas corporation or other entity such as a limited liability company, limited partnership, partnership, or other legal entity organized under the laws of this state, or a foreign corporation or other foreign entity authorized to transact business in this state; or (2) an individual resident of the state. The foreign entity cannot act as its own registered agent; do not enter the entity name as the name of the registered agent.

Registered Office Address Requirements:  The registered office address must be located at a street address where service of process may be personally served on the entity’s registered agent during normal business hours.  Although the registered office is not required to be the entity’s principal place of business in Texas, the registered office may not be solely a mailbox service or telephone answering service (BOC § 5.201).  The registered office address must be an address that is generally open during normal business hours so that the registered agent may accept service of process.

·         Consent of Registered Agent Option:  Effective January 1, 2010, a person designated as the registered agent of an entity must have consented, either in a written or electronic form, to serve as the registered agent of the entity.  The designation or appointment of a person as the registered agent by a managerial official is an affirmation by that official that the person named in the instrument has consented to serve as registered agent.  (BOC § 5.2011, effective January 1, 2010)

A copy of the agent’s written or electronic consent does not need to be submitted with the application for registration; however, the foreign entity is provided with the option of including a copy of the agent’s written or electronic consent as part of the application for registration filing.

  • The radio button on the screen is preset to an option that permits the user to continue with the filing without attaching a copy of the registered agent’s consent.  When this option is marked, the application for registration will show selection of a pre-printed statement that indicates that the entity has retained a copy of the consent of registered agent.
  • Select the radio button “Consent Attached” to include a copy of the person’s consent to serve as the entity’s registered agent.
  • If you selected the option “Consent Attached,” the next screen will be the Consent attachment screen.  The copy of the agent’s consent would be attached as an electronic file; the attachment must be in TIF, TXT, or PDF file format to be accepted.
  • If you decide not to include the consent of the registered agent and do not wish to provide an attachment, click Continue to proceed to the next screen. If you proceed to the next screen without providing an attachment, the application for registration will show selection of a pre-printed statement that indicates that the entity has retained a copy of the consent of registered agent.

·         Purpose Screen: The purpose or purposes that the financial institution proposes to pursue in Texas should be entered in the space provided. You may use general language, such as "transaction of all lawful business."  It is not acceptable however to use "transaction of all lawful business permitted under the laws of [another state]." Other state laws may permit financial institutions to pursue purposes not authorized by Texas law, and a foreign financial institution can have no greater rights or privileges than a domestic financial institution.

·         Director Screen: A minimum of one director is required. Click on "Add Director" to initiate the entry of director name and address information. After entering the information, click on "Update" to return to the Director Screen to continue. You may edit or delete the director information displayed in the grid by clicking on the appropriate button.

·         Execution Screen: An authorized officer of the financial institution must sign the application for registration. An officer signs the electronic document by typing the officer’s name and title in the field provided. For example, Jane Esquire, President of First National Bank.

·         Delayed Effective Date: An application for registration becomes effective when filed by the secretary of state. However, pursuant to sections 4.052 and 4.053 of the BOC the effectiveness of the instrument may be delayed to a date not more than ninety (90) days from the date the instrument is signed. Please note that on the filing of a document with a delayed effective date, the computer records of the secretary of state will be changed to show the filing of the document, the date of the filing, and the future date on which the document will be effective. In addition, at the time of such filing, the status of the entity’s registration will be shown as “in existence” on the records of the secretary of state.

·         Document Display Screen: After completing the entry screens, the system will display an image of the document for purposes of your review. Please review the document carefully for accuracy. Please note that a person commits an offense under section 4.008 of the BOC if the person signs or directs the filing of a filing instrument the person knows is materially false with the intent that the instrument be delivered to the secretary of state for filing. The offense is a Class A misdemeanor unless the person’s intent is to harm or defraud another, in which case the offense is a state jail felony.

·         Edit Filing: If the document must be corrected, click on the "Edit Filing" button to return to the entry screens. Do not use the back button to return to prior screens, as this will not update or revise the information contained in the filing. If you wish to retain a copy of the document you are submitting, use the printer function of your browser to print the screen.

·         Cancel Filing: Click on the “Cancel Filing” button to terminate the electronic filing process.

·         Submit Filing: You must click on the "Submit Filing" button to transmit the document. You will receive a message confirming receipt of the filing that contains the session ID and the document tracking number of the document transmitted. You may wish to attach this receipt notice to your retained copy.

·         Franchise Taxes: State franchise tax information may be obtained from the Comptroller of Public Accounts, Tax Assistance Section, Austin, Texas, 78774-0100, (512) 463-4600 or (800) 252-1381. The Corporations Section home page provides a link to the web site of the Texas Comptroller.