Fill - Free fillable Form 414General Information: (Restated Certificate of Formation with (Texas Secretary of State) PDF form

Form 414—General Information

(Restated Certificate of Formation with New Amendments)

The attached form is drafted to meet minimal statutory filing requirements pursuant to the relevant code

provisions. This form and the information provided are not substitutes for the advice and services of an

attorney and tax specialist.

Commentary

Sections 3.057 to 3.063 of the Texas Business Organizations Code (BOC) govern a restated certificate

of formation of a Texas filing entity. A filing entity may restate its certificate of formation to:

(1) state the text of the certificate of formation (as amended, corrected, or restated) to include all

previous amendments carried forward; or

(2) state the text of the certificate of formation to include all previous amendments and each new

amendment to the certificate being restated.

An amendment effected by a restated certificate of formation must comply with the provisions and

procedures governing certificates of amendment in title 1, chapter 3 of the BOC and in the title

governing the specific entity.

This form is designed to accompany the restated certificate of formation described in statement 2 shown

above. If the restated certificate of formation does not effect any new amendments to the certificate of

formation, use Form 415 rather than this form.

The text of the restated certificate of formation, which is to be attached as an exhibit, may omit the name

and address of each organizer. In the case of a limited partnership the restated certificate must include

the name and address of each general partner. The restated certificate of formation may also omit any

other information that may be omitted under the provisions of the BOC applicable to the filing entity.

Procedural Information by Entity Type

Please note that a document on file with the secretary of state is a public record that is subject to public

access and disclosure. Do not include confidential information, such as social security numbers. If

updating information for directors or governing persons, use a business or post office box address rather

than a residence address if privacy concerns are an issue.

For-profit or Professional Corporation

Sections 21.052 to 21.055 of the BOC set forth the procedures for amending the certificate of formation

for a for-profit corporation 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. Written or printed notice setting forth the proposed amendment is given to each

shareholder of record entitled to vote not later than the 10

day and not earlier than the 60

day before

the date of the meeting, either personally, by electronic transmission, or by mail. (Please refer to

chapters 6 and 21 of the BOC for further information.)

Pursuant to section 21.364, the proposed amendment is adopted on receiving the affirmative vote of

two-thirds of the outstanding shares entitled to vote. If any class or series of shares is entitled to vote as

a class, the amendment must also receive the affirmative vote of two-thirds of the shares within each

class or series that is entitled to vote as a class. Any number of amendments may be submitted to the

Form 414

shareholders and voted on at one meeting. Alternatively, amendments may be adopted by unanimous

written consent of the shareholders.

If 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.

In addition to the provisions authorized or required by section 3.059 of the BOC, a restated certificate of

formation may update the current number of directors and the names and addresses of the persons

serving as directors.

An officer must sign the restated certificate of formation. If no shares have been issued and the

amendment was adopted by the board of directors, a majority of the directors may sign the restated

certificate of formation.

Professional Association

The provisions of chapters 20 and 21 of the BOC apply to a professional association, unless there is a

conflict with a specific provision in title 7. 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.

In addition to the provisions authorized or required by section 3.059 of the BOC, a restated certificate of

formation may update the current number of directors or executive committee members and the names

and addresses of each person serving on the board or committee.

An officer must sign the restated certificate of formation.

Nonprofit Corporation

Sections 22.105 to 22.108 of the BOC set forth the procedures for amending the certificate of formation

for a nonprofit corporation. If the 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 (BOC § 22.164). Any number of amendments may be submitted to the members and voted on at

one meeting. 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. (Please refer to

chapters 6 and 22 of the BOC for further information.)

In addition to the provisions authorized or required by section 3.059, a restated certificate of formation

may update the current number of directors and the names and addresses of the persons serving as

directors. A nonprofit corporation that is a church in which management is vested in its members under

section 22.202 of the BOC must contain a statement to that effect in any restated certificate of formation

if the original certificate of formation was not required to contain such statement.

If the corporation has no members or no members with voting rights, an amendment is adopted by a

majority vote of the board of directors (BOC § 22.107).

An officer of the nonprofit corporation must sign the restated certificate of formation.

Form 414

Cooperative Association

Section 251.052 of the BOC sets forth the procedure for amending the certificate of formation of a

cooperative association. The board of directors may propose an amendment to the certificate of

formation by a two-thirds vote of the board members. Notice of the meeting to consider the proposed

amendment must be provided to the members no later than the 31

day before the date of the meeting.

To be approved, an amendment must be adopted by the affirmative vote of two-thirds of the members

voting on the amendment. The cooperative association must file a certificate of amendment with the

secretary of state within thirty (30) days after its adoption by the members.

An officer of the cooperative association must sign the restated certificate of formation.

Limited Liability Company or Professional Limited Liability Company

Chapter 101 of the BOC governs limited liability companies. Pursuant to section 101.356(d), 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 as

permitted by section 101.356(e).

If the limited liability company has managers, an authorized manager must sign the restated certificate

of formation. If the company does not have managers and is managed by its members, an authorized

managing-member must sign the restated certificate of formation.

Limited Partnership

Chapter 153 of the BOC governs limited partnerships. A certificate of limited partnership may be

amended at any time for any proper purpose determined by the general partners. However, section 153.051

requires a certificate of amendment when there is:

(1) a change of name of the partnership;

(2) an admission of a new general partner; or

(3) the withdrawal of a general partner.

A restated certificate of formation would be approved in the same manner as an amendment to the

certificate of formation. The name and address of each general partner must be included in the restated

certificate of formation.

Pursuant to section 153.553, at least one general partner must sign the restated certificate of formation.

In addition, each general partner designated as a new general partner also must sign the restated

certificate of formation. A withdrawing general partner need not sign. The execution of a certificate by

a general partner is an oath or affirmation, under a penalty of perjury, that to the best of the executing

party’s knowledge and belief, the facts contained in the certificate are true and correct (BOC §

153.553(c)).

Instructions for Form

 Entity Information: The restated certificate of formation must contain the legal name of the entity.

If the restated certificate of formation effects further amendments that change the name of the entity,

the name as it currently appears on the records of the secretary of state should be stated. It is

recommended that the entity type, date of formation and file number assigned by the secretary of

state be provided to facilitate processing of the document.

Form 414

 Amendments to Certificate of Formation: A filing entity may amend its certificate of formation

in as many respects as may be desired, as long as the certificate as amended contains only such

provisions as could have been included in the original certificate of formation. The full text of the

provisions as added or altered need not be stated on Form 414. The full text of the amended and

altered provisions will be contained in the Restated Certificate of Formation attached to this form as

an exhibit.

Amendment to Entity Name: If the restated certificate of formation changes the name of the entity,

the new entity name will be checked for availability upon submission. If the new name of the entity

is the same as, deceptively similar to, or similar to the name of an existing domestic or foreign filing

entity, or any name reservation or name 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

www.sos.state.tx.us/tac/index.shtml. If you wish the secretary of state to provide a preliminary

determination on name availability, you may call (512) 463-5555, dial 7-1-1 for relay services, or e-

mail your name inquiry to corpinfo@sos.texas.gov. A final determination cannot be made until the

document is received and processed by the secretary of state. Do not make financial expenditures or

execute documents based on 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.

Amendment to Registered Agent: 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.

Although the consent of the person designated as registered agent is required, a copy of the written

or electronic consent need not be submitted with a restated certificate of formation that changes the

name of the registered agent. The liabilities and penalties imposed by sections 4.007 and 4.008 of the

BOC apply with respect to a false statement in a filing instrument that names a person as the

registered agent of an entity without that person’s consent. (BOC § 5.207)

Amendment to Registered Office: 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, the registered office may not be solely a mailbox service or telephone answering service

(BOC § 5.201).

 Statement of Approval: As required by section 3.059 of the BOC, the form includes a statement

regarding the approval of the amendments made to the certificate of formation. In general,

amendments are adopted and approved in the manner set forth in the title of the BOC governing the

entity. General procedural information relevant to each filing entity that may use this form precedes

the instructions for completing the form.

 Required Statements: This form is designed to provide the statements that are to accompany a

restated certificate of formation that makes new amendments to the certificate of formation (BOC §

3.059(d)). The text of the restated certificate of formation, which should be attached as an exhibit to

this form, should be identified as “Restated Certificate of Formation of [Name of Entity].”

 Effectiveness of Filing: A restated certificate of formation becomes effective when filed by the

secretary of state (option A). 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

Form 414

date the instrument is signed (option B). The effectiveness of the instrument also may be delayed on

the occurrence of a future event or fact, other than the passage of time (option C). If option C is

selected, you must state the manner in which the event or fact will cause the instrument to take effect

and the date of the 90

day after the date the instrument is signed. In order for the certificate to take

effect under option C, the entity must, within ninety (90) days of the filing of the certificate, file a

statement with the secretary of state regarding the event or fact pursuant to section 4.055 of the

BOC.

On the filing of a document with a delayed effective date or condition, 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 or evidence that the effectiveness was

conditioned on the occurrence of a future event or fact.

 Execution: Pursuant to section 4.001 of the BOC, the restated certificate of formation must be

signed by a person authorized by the BOC to act on behalf of the entity in regard to the filing

instrument. Generally, a governing person or managerial official of the entity signs a filing

instrument. Please refer to the procedural information relating to the specific entity type for further

information on execution requirements.

The name of the entity that is restating its certificate of formation should appear on the “name of

entity” line unless the governing person or managerial official signing the document is organized as

an entity. In this case, the name of the legal entity that is the authorized person should appear on the

“name of entity” line.

The restated certificate of formation need not be notarized. However, before signing, please read the

statements on this form carefully. 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)

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.

 Payment and Delivery Instructions: The filing fee for a restated certificate of formation is $300,

unless the filing entity is a nonprofit corporation or a cooperative association. The filing fee for a

restated certificate of formation for a nonprofit corporation or a cooperative association is $50. Fees

may be paid by personal checks, money orders, LegalEase debit cards, or American Express,

Discover, MasterCard, and Visa credit cards. Checks or money orders must be payable through a

U.S. bank or financial institution and made payable to the secretary of state. Fees paid by credit card

are subject to a statutorily authorized convenience fee of 2.7 percent of the total fees.

Submit the completed form in duplicate along with the filing fee. The form may be mailed to P.O.

Box 13697, Austin, Texas 78711-3697; faxed to (512) 463-5709; or delivered to the James Earl

Rudder Office Building, 1019 Brazos, Austin, Texas 78701. If a document is transmitted by fax,

credit card information must accompany the transmission (Form 807). On filing the document, the

secretary of state will return the appropriate evidence of filing to the submitter together with a file-

stamped copy of the document, if a duplicate copy was provided as instructed.

Revised 09/13

Form 414

(Revised 09/13)

Submit in duplicate to:

Secretary of State

P.O. Box 13697

Austin, TX 78711-3697

512 463-5555

FAX: 512/463-5709

Filing Fee: See instructions

This space reserved for office use.

Restated Certificate of

Formation

With New Amendments

Entity Information

The name of the filing entity is:

State the name of the entity as currently shown in the records of the secretary of state. If the amendment changes the name

of the entity, state the old name and not the new name.

The filing entity is a: (Select the appropriate entity type below.)

For-profit Corporation Professional Corporation

Nonprofit Corporation Professional Limited Liability Company

Cooperative Association Professional Association

Limited Liability Company Limited Partnership

The file number issued to the filing entity by the secretary of state is:

The date of formation of the filing entity is:

Statement of Approval

Each new amendment has been made in accordance with the provisions of the Texas Business

Organizations Code. The amendments to the certificate of formation and the restated certificate of

formation have been approved in the manner required by the Code and by the governing documents of

the entity.

Required Statements

The restated certificate of formation, which is attached to this form, accurately states the text of the

certificate of formation being restated and each amendment to the certificate of formation being

restated that is in effect, and as further amended by the restated certificate of formation. The attached

restated certificate of formation does not contain any other change in the certificate of formation being

restated except for the information permitted to be omitted by the provisions of the Texas Business

Organizations Code applicable to the filing entity.

Form 414

Effectiveness of Filing (Select either A, B, or C.)

A. This document becomes effective when the document is filed by the secretary of state.

B. This document becomes effective at a later date, which is not more than ninety (90) days from

the date of signing. The delayed effective date is:

C. This document takes effect upon the occurrence of the future event or fact, other than the

passage of time. The 90

day after the date of signing is:

The following event or fact will cause the document to take effect in the manner described below:

Execution

The undersigned affirms that the person designated as registered agent in the restated certificate of

formation has consented to the appointment. The undersigned signs this document subject to the

penalties imposed by law for the submission of a materially false or fraudulent instrument and

certifies under penalty of perjury that the undersigned is authorized under the provisions of law

governing the entity to execute the filing instrument.

Date:

Name of entity (see Execution instructions)

Signature of authorized individual (see instructions)

Printed or typed name of authorized individual

Attach the text of the amended and restated certificate of formation to the completed statement form.

Identify the attachment as “Restated Certificate of Formation of [Name of Entity].”

Form 414

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