INSTRUCTIONS FOR FILING A CERTIFICATE OF AMENDMENT FOR A DOMESTIC FILING ENTITY—NAME CHANGE ONLY

(Form 424)

 

Commentary: Sections 3.051-3.054 of the Texas Business Organizations Code govern amendments to the certificate of formation of a domestic filing entity. 

 

A domestic filing entity may use the electronic amendment form only for the purpose of changing the entity’s legal name. An amendment that proposes to effect other changes to the filing entity’s certificate of formation cannot be processed through the web.  Please submit the certificate of amendment filing to the Secretary of State by mail, fax, or in person.

 

Procedural Information by Entity Type:  In general, amendments are adopted in the following manner:

 

·         For-profit or Professional Corporation

The board of directors adopts a resolution setting forth the proposed amendment and directing that it be submitted to a vote at a meeting of the shareholders. The proposed amendment is adopted upon receiving the affirmative vote of two-thirds of the outstanding shares entitled to vote. In the alternative, amendments may be adopted by unanimous written consent of the shareholders. When no shares have been issued the amendment is adopted by a resolution of the board of directors and the provisions for adoption by shareholders do not apply.

 

·         Professional Association

A professional association may amend its certificate of formation by following the procedures set forth in its certificate of formation.  If the certificate of formation does not provide a procedure for amending the certificate, the certificate of formation is amended by a two-thirds vote of its members.

 

·         Nonprofit Corporation

If the nonprofit corporation has members with voting rights, the board of directors adopts a resolution setting forth the proposed amendment and directing that it be submitted to a vote at a meeting of the members, which may be either an annual or special meeting. The proposed amendment is adopted on receiving two-thirds of the votes that members present, in person or by proxy, were entitled to cast.  Alternatively, the amendment may be adopted without a meeting if a written consent, setting forth the action to be taken, is signed by all the members entitled to vote. 

 

If the corporation has no members or no members with voting rights, the amendment is adopted by a majority vote of the board of directors.

 

·         Limited Liability Company or Professional Limited Liability Company

Unless otherwise provided in the company agreement, an amendment to the certificate of formation must be approved by the affirmative vote of all of the company’s members.  If the company has managers, but has yet to admit its initial member, the amendment would be approved by the affirmative vote of the majority of all the company’s managers.

 

·         Limited Partnership

A certificate of limited partnership may be amended at any time for any proper purpose determined by the general partners.  Unless another group or percentage of partners is specified in the partnership agreement, an amendment to the certificate of formation would be approved by all partners.

 

·         Web Form: 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 certificate of amendment.

 

Certain statutorily required provisions have been drafted with standard pre-printed statements. For example, a corporation must state that the amendment has been approved in the manner required by the applicable provisions of law governing the filing entity and by the entity’s governing documents. The web form contains a statement to this effect as a pre-printed statement. 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. Please review the document carefully for accuracy before submission.

 

·         Fee: The filing fee for a certificate of amendment is $150, unless the filing entity is a nonprofit corporation.  The filing fee for a certificate of amendment for a nonprofit corporation is $25Payments for web filings may be made by credit card or client accounts. Fees paid by credit card are subject to a statutorily authorized convenience fee of 2.7% of the total fees.

 

Client accounts must be funded a day in advance of the submission of a filing. It is recommended that you use credit card as a payment method unless you have funds in the client account prior to the date of submission of the filing.

 

·         To file an amendment using SOSDirect:

 

1.      Logon and select the Business Organizations Tab.

2.      In the Change Documents frame below Web Filings, input the filing number, if you know it, for the entity for which you need to file certificate of amendment and click on File Document.

3.      If you do not know the file number, click on Find Entity.

a.       On the Find Entity Name Search screen, input the name of the entity for which you need to file a certificate of amendment and click on Search.

b.      The search results will be returned showing the names of the entities that match or are very similar to your search parameter.

c.       Select the entity for which you need to file the name change amendment by clicking on the radio button in the column entitled “Mark .”

d.      If the entity for which you searched does not appear in the search results and you wish to conduct another search, click on New Search.

e.       When the appropriate entity is marked, click on Initiate Change Filing.

4.      After initiating the change filing, the next screen will include a drop down menu of the different types of change filings that may be filed on SOSDirect.  Select “Certificate of Amendment (Name Changes Only).” After selection of the appropriate document, click Continue.

 

·         Name Change Amendment Screen: The first field in Article 2 contains the name of the filing entity as it currently appears on the records of the secretary of state. Enter the new name of the corporation in the entry field that appears below the current entity name. The new entity name must contain an appropriate organizational identifier for the entity type.  For example, the following words of organization or an abbreviation thereof would be appropriate for a for-profit corporation:: “Company,” “Corporation,” “Incorporated,” or “Limited.” After entering the new name, you may wish to conduct a preliminary search of the name by clicking on the “Name Availability Search” button.

 

·         Name Availability Search Option: Under section 5.053 of the BOC and the administrative rules adopted by the secretary of state, if the name chosen is the same as, deceptively similar to, or similar to the name of any existing domestic or foreign filing entity, or any name reservation or registration filed with the secretary of state, the document cannot be filed. The administrative rules adopted for determining entity name availability (Texas Administrative Code, title 1, part 4, chapter 79, subchapter C) may be viewed at the secretary of state web site by clicking on the Texas Register icon.

 

Do not presume that the name searched is "available" and will be approved for filing. Even if you believe the results do not reveal the same or deceptively similar name in use, the Office of the Secretary of State must still perform its own search after receipt of the document. A final determination regarding the entity name is not made until an examiner's review and filing of the document. You are strongly urged not to make financial expenditures or regulatory filings based upon the results of your search.

 

If you wish our office to provide a preliminary determination on the availability of the proposed name before submission, you may do so by telephone at (512) 463-5555, by dialing 7-1-1 for relay services, or by e-mail to corpinfo@sos.state.tx.us. This is only a preliminary clearance. Also note that the preclearance of a name or the issuance of a certificate under a name does not authorize the use of a name in violation of another person's rights to the name.

 

After entry of the new name information, click on Continue.

 

·         Letter of Consent for Use of Entity Name Attachment Screen: If this office has advised you that a letter of consent for use of a similar name is required, the letter of consent may be sent as an attachment to the document being submitted. Attachments must be in TIF, TXT, or PDF file format to be accepted. If the document does not require an attachment, then click on the “Continue” button to proceed to the next screen.

 

·         Execution: In general, the following persons are authorized to sign a certificate of amendment under the provisions of the BOC. 

 

Corporations and Professional Associations:  An authorized officer of the corporation or association must sign the certificate of amendment.

 

Limited Liability Companies:  If the limited liability company has managers, an authorized manager must sign the certificate of amendment.  If the company does not have managers and is managed by its members, an authorized managing-member must sign the certificate of amendment.

 

Limited Partnerships:  A general partner must sign the certificate of amendment. 

 

·         A person signs an electronic document submitted through SOSDirect by typing the person’s name in the signature field found on the execution screen.  Before signing the instrument, 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.

 

·         Delayed Effective Date: The amendment document 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 new name will be shown as “in use” and the former name of the corporation will be given an inactive name status and shown as “prior” on the records of the secretary of state.

 

·         Document Display Screen: After entry of the signature and delayed effective date, if any, click Continue. An image of the electronic instrument will appear for your review.  The statutory filing fee will appear displayed at the top of the screen.  The displayed instrument will include all information entered on prior screens as well as any other statements required by law. Read the information carefully.  An electronic document cannot be altered or corrected by the staff person reviewing the document.  Make sure that: 1) you selected the correct entity for the name change amendment; 2) the new entity name is displayed and spelled correctly; and 3) the person signing the document has the capacity to do so.

 

·         If you need to make changes in the document, click the Edit Filing button at the top of the screen. Do not use the back button of your web browser for this purpose. You will be returned to all entry screens as well as the execution screen to correct the desired information.

 

·         When the document is correct in all respects, click the Submit Filing button at the top of the screen. If you wish to retain a copy of the displayed document image for your records, you may use the print function on your web browser.

 

·         The filing may be cancelled at any time prior to submitting, by clicking on Cancel Filing.

 

·         After clicking on the Submit Filing button, 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. This notice does not indicate that the filing has been approved by the secretary of state.