INSTRUCTIONS FOR FILING A CERTIFICATE OF WITHDRAWAL

INSTRUCTIONS FOR FILING A CERTIFICATE OF WITHDRAWAL

(Form 608)

� Commentary: When a foreign filing entity has ceased to transact business or conduct affairs in this state, the entity may voluntarily withdraw its registration to transact business by filing a certificate of withdrawal. This form has been drafted to comply with section 9.011 of the Texas Business Organizations Code (BOC).

The certificate of withdrawal revokes the authority of the registered agent for the entity in this state to accept service of process. By filing the certificate, the entity consents that service of process in any action, suit, or proceeding based on any cause of action arising in this state during the time the entity was authorized to transact business in this state may be made on such entity by service thereof on the Secretary of State.

When the existence of a foreign entity terminates in its jurisdiction of organization because of dissolution, merger, conversion or otherwise, the entity should not file a withdrawal. Rather, the entity should file a certificate from the proper officer in the jurisdiction of organization evidencing the termination of the existence of the entity. A termination of registration cannot be filed online through SOSDirect and must be submitted by mail, fax, or in person.

A registered foreign entity that has filed a merger or conversion in its jurisdiction of organization also may transfer its registration to a successor foreign entity that is to transact business in Texas rather than file a termination. In this case, the successor entity would use Form 422 to amend the registration held by the merged or converting entity. This amendment form cannot be filed online through SOSDirect and must be submitted by mail, fax, or in person.

When a registered foreign entity files a certificate of conversion in Texas that converts the foreign entity to a Texas filing entity, the converting foreign entity does not need to file a certificate of withdrawal before filing the certificate of conversion. The registration of the foreign filing entity will be automatically withdrawn on the filing of the certificate of conversion.

� Web Form: 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.

As set forth below, certain statutorily required provisions have been drafted into the electronic document as pre-printed statements. Consequently, please review the document carefully for accuracy since the BOC 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.

� Money Due to the State: The certificate of withdrawal states that any money due or accrued to the state has been paid or that adequate provision has been made for the payment of the money.

� Execution: The certificate of withdrawal must be executed by a person authorized to act on behalf of the entity with respect to the filing 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.

� Fee: The filing fee for a certificate of withdrawal is $15, unless the foreign entity is a nonprofit corporation or cooperative association. The filing fee for a nonprofit corporation or cooperative association is $5.

� Certificate of Account Status: Please note that additional documentation is required in order to complete this filing, unless the foreign entity is a nonprofit corporation. Unless the entity is a foreign nonprofit corporation, you must attach certificate #05-305 from the Comptroller of Public Accounts indicating that all taxes under Title 2 of the Tax Code have been paid and that the entity is in good standing for the purpose of withdrawal. A certificate of account status obtained from the Comptroller�s web site or a printout of the Comptroller�s web page does not satisfy the statutory filing requirements and cannot be used to file the certificate of withdrawal. The appropriate tax certificate must be obtained directly from the Comptroller of Public Accounts.

Requests for certificates or questions on tax status should be directed to the Tax Assistance Section, Comptroller of Public Accounts, Austin, Texas 78774-0100; (512) 463-4600 or toll-free (800) 252-1381. You also may contact [email protected].

� To file a withdrawal 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 the withdrawal 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 the withdrawal 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 certificate of withdrawal 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 Withdrawal" and click Continue.

� Principal Office Address Screen: This screen will be pre-populated with the principal office address shown in the records of the secretary of state. In order to change the information, type the street or mailing address of the entity's principal office in the appropriate fields. After completion of your entry, press Continue to proceed.

� Service of Process Address Screen: On this screen, you must input the address to which the Secretary of State should forward any service of process. If service of process should be directed to the attention of an individual at the forwarding address, you should enter the name of the individual in the first address field. After completion of your entry, press Continue to proceed.

� Attachment Screen�Certificate of Account Status: Please note that additional documentation is required for a foreign filing entity other than a nonprofit corporation in order to complete this filing. Attach certificate #05-305 from the Comptroller of Public Accounts indicating that all taxes under Title 2 of the Tax Code have been paid and that the entity is in good standing for the purpose of withdrawal. Please note that the Comptroller issues many different types of certificates of account status. Do not attach a certificate or printout obtained from the Comptroller�s web site as this does not meet statutory requirements. You need to attach form #05-305, which is obtained directly from a Comptroller of Public Accounts representative.

Use the browse button to locate the image of the certificate you have stored on your computer. Attachments must be in TIF, TXT, or PDF file format to be accepted.

A certificate of withdrawal submitted by a foreign nonprofit corporation is not required to include a certificate of account status. Consequently, the attachment screen is not displayed for this entity type.

� Execution Screen: In the case of a corporation, an authorized officer of the corporation must sign. In the case of a limited liability company, an authorized manager or member of the limited liability company must sign. In the case of a limited partnership, a general partner must sign. Typing the authorized person�s name in the execution field satisfies the signature requirement.

If the person authorized to sign the document is a corporation or other legal entity, the document must be signed by an officer or authorized representative of such entity. Please provide the name of the person signing, the person�s title, and, if applicable, the person�s capacity. For example, John Doe, President of ABC Company, General Partner.

� Delayed Effective Date: The withdrawal becomes effective when filed by the Secretary of State unless the entity specifies a delayed effective date on the Execution Screen. If a delayed effective date is desired, enter the delayed effective date in the box provided in the format specified. The date may not be more than ninety (90) days from the date you are submitting the document.

If a delayed effective date is selected, please ensure that any tax certificate attached is valid through the delayed effective date.

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 will be shown as �withdrawn� on the records of the secretary of state and the entity name will be shown in an inactive status.

� 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. This instrument will include all information entered on prior screens as well as any other statements required by law. Read the information carefully. Make sure that you selected the correct entity for the withdrawal and that the person signing has the capacity to sign the document.

� 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. The notice of receipt does not indicate that the filing has been approved by the secretary of state.

� Processed Filings: The certificate of withdrawal must be reviewed for compliance with statutory filing requirements. After review of the document and any attachments provided, an email will be sent to the address provided. Do not assume from your receipt of an email that the document was accepted and filed by the secretary of state. The email will be sent with either: (a) a certificate of filing, letter of acknowledgement, and electronically file-stamped instrument; or (b) a letter of rejection that lists the corrections required together with a copy of the rejected document.