In a recent blog post, Delaware Corporate Filing Tips Even Experienced Filers May Not Know, we explored some interesting corporate filing requirements in Delaware that can trip up even the most experienced filer.
Today, we’ll share some from a few more states that have key financial and business centers: California, Illinois and New York.
Knowing about these quirky requirements can help you avoid the delays, fees and loss of face caused by having a document rejected.
California
Future Effective Dates and Future File Dates
Most states allow a future effective date to be placed on a filing. Future effective dates allow a document to be filed without putting its provisions into immediate effect. This can be useful in certain situations like merger filings, or other filings where it is important to ensure the filing is only effective as of a certain date.
California also allows corporations and limited liability companies (LLCs) to set a future file date, a request that the filing be held and only filed upon the listed file date. This is frequently used at the end of the year, to ensure a company doesn’t come into existence prior to the start of a new year and incur any tax liabilities for the current year.
Please note that California does not offer future effective dates or future file dates for limited partnerships.
Signature Block
Like Delaware, California is also particular about how a signer’s name is listed in the signature block. California’s rule requires that the individual who is actually signing the form be listed first, followed by an indication of the relationship to the entity listed in the filing
For example, let’s say ABC LP is filing an amendment and the general partner is a corporation. The signature block needs to be formatted as follows:
By: Summer Lilly
Summer Lilly, Secretary,
ABC Capital Investment, Inc.
General Partner of ABC LP
Illinois
Determining the Fees to Form or Register as a Foreign Corporation
In addition to a $150 filing fee for Articles of Incorporation or an Application for Authority, Illinois requires that initial franchise taxes be calculated and paid. The franchise tax rate is 0.15 percent ($1.50 for each $1,000) of capital represented in Illinois, minimum tax of $25.
Articles of Incorporation must list the number of shares issued along with the consideration received for those shares, and the consideration received must be at least the par value of the shares.
New York
Address for Service of Process
When forming or registering an entity to do business in New York, the filing must designate the Secretary of State (SOS) as the agent to receive service of process and provide a forwarding address for the SOS to mail copies of any process received. This is different from appointing a registered agent, which is optional in New York.
If you wish to appoint a registered agent in New York, make sure that the service of process address provided is that of the agent, as the state will use the forwarding address and not the registered agent address.
Note that the service of process address can be changed on an annual report, but not the registered agent address. This can sometimes lead to unintended discrepancies between the two addresses.
Wording of Amendments
New York is very particular about how Certificates of Amendment are worded. They will not accept an amendment that simply states what is to be amended and instead require that the full text of the article being amended be included.
It is not enough to say, for example, that the Certificate of Incorporation is amended to change the name of the corporation to ABC Company, Inc. The amendment must be formatted as follows:
Paragraph One of Certificate of Incorporation, which sets forth the name of the corporation is amended to read as follows:
The name for the corporation is: ABC Company, Inc.
To Each (State) Their Own
Each state has its own requirements and quirks when it comes to what they will accept in a submitted document. It may be tempting to assume that what is acceptable in one state will work in another but doing so could mean your document is rejected, and rejection often means the loss of expediting fees paid and costly delays.
Familiarizing yourself with the requirements up front (or relying on the experience of a service company) can help you avoid these problems.
This article is provided for informational purposes only and should not be considered, or relied upon, as legal advice.
