Corporate Filing Tips
Many documents cannot be filed because of name issues, errors, omissions or misstatements contained in the proposed filings submitted to this office.
The following filing tips are designed to help you meet the minimum filing requirements of the California Corporations Code. They are not intended to
provide legal or business advice. If you have specific legal questions or concerns, please consult a private attorney.
See Name Availability for general information about corporate name availability, reserving a name, and name style
requirements.
Filing Options: The completed form/document, along with the applicable filing fee, can be submitted to our
Sacramento office:(1) by mail; (2) dropped off at our public counter along with a separate
non–refundable $15 special handling fee; or (3) dropped off at our public counter using our preclearance and/or
expedited filing services. The preclearance and/or expedited filing of the document within a guaranteed time frame can be
requested for a specified non–refundable fee (in lieu of the special handling fee). See Service Options to determine
which service will meet your needs. Check(s) should be made payable to the Secretary of State.
Copies: The California Secretary of State will certify up to two copies of the filed document without charge, if you provide
the complete copies (with any required attachments) together with the document to be filed. Any additional copies submitted with $8 per copy will be certified.
Note: The filing tips on this webpage address the issues which most frequently cause the Secretary of State to return a proposed document. These filing
tips do not address all requirements. Please refer to the applicable document sample or form, available on our Forms, Samples and Fees
webpage, for complete filing instructions, fees and any additional requirements.
Two New Types of Corporations: Effective January 1,
2012, there are two new subtypes of stock corporations in California — a "flexible purpose corporation" and a "benefit corporation."
The new corporation subtypes allow entrepreneurs and investors to organize stock corporations that can pursue both economic and social objectives.
(pdf ~51KB)
To form a general stock, close or professional corporation in California, you must file Articles of Incorporation with the California Secretary of State.
You can either compose your own document or use Form ARTS–GS [to form a general stock corporation], Form ARTS–CL [to form a close corporation] or
Form ARTS–PC [to form a professional corporation]. While the forms meet the minimum statutory requirements, you should consult with a private
attorney for advice about your specific business needs and whether additional
provisions (pdf~25KB) are needed.
Legal Authority: General statutory filing requirements are found in the California Corporations Code sections listed
below. Other California and Federal statutes may apply to a particular filing. All statutory references below are to the California Corporations Code,
unless otherwise stated.
Complete the Articles of Incorporation (Form ARTS–GS, ARTS–CL or ARTS–PC) as
follows:
- Item 1 [Corporate Name]: List the proposed corporate name. See Name Availability for a complete list
of name regulations, requirements and restrictions in California.
- For close corporations only: The proposed name must include the word "corporation,"
"incorporated" or "limited" or an abbreviation of one of those words.
- For professional corporations only: The proposed name must meet the name–style requirements of the
law governing the profession for which the professional corporation is engaged. For more information, please contact the
California state board or agency that controls your profession.
Note: The legal name of the corporation in the State of California will be whatever you list in the Articles of Incorporation after the words "The name
of the corporation is," including any punctuation. Also, if you choose to compose your own document rather than using our form and you include the name
of the corporation in a document title, the name of the corporation in the title must exactly match the name listed in the articles (typically Article I).
If the name does not match, the Articles of Incorporation will be returned to you, unfiled.
- Item 2 [Corporate Purpose]: The statement of the corporate purpose is required and should not be altered. If you are using Form ARTS–PC, list
the profession under which the corporation is engaged.
- Item 3 [Service of Process]:
- Item 3a: List the name of the agent for service of process. The agent for service of process must be: (1) a person who resides in California
or (2) an active corporation in California that has filed a certificate pursuant to Section
1505. (Section
1502(b).)
- Item 3b: If the agent for service of process listed in Item 3a is a person (not a corporation), list the
agent’s street address in California. Do not list a P.O. Box address. (Section
1502(b).) Do not complete Item
3b if the agent for service of process is a corporation.
An "agent for service of process" is an individual (director, officer or any other person, whether or not affiliated with the corporation) who
resides in California or another corporation designated to accept service of process if the corporation is sued. Note: A corporation cannot act as
its own agent for service of process; only one agent can be listed; and the agent should agree to accept service of process on behalf of the
corporation prior to designation.
- Item 4 [Shares]: List the number of shares the corporation is authorized to issue. Do not list zero (0).
- Item 5 [Shareholders]: For close corporation only: List the number of shareholders the close corporation
is authorized to have. The number of shareholders must not exceed 35. Do not list zero (0).
- The Articles of Incorporation must be signed by each incorporator.
Filing Fee: The fee for filing Articles of Incorporation is $100. (California Government Code section
12186(c).)
Statement of Information: A Statement of Information (Form SI–200) must be filed
with the California Secretary of State within 90 days after filing the Articles of Incorporation and each year
thereafter during the applicable filing period. The applicable filing period is the calendar month in which the Articles of Incorporation
were filed and the immediately preceding five calendar months. (Section
1502.)
Minimum Tax Requirement: Most corporations must pay a minimum tax of $800 to the
California Franchise Tax Board each year. (California Revenue and Taxation Code section
23153.) For more information,
please refer to the California Franchise Tax Board’s Guide for Corporations Starting Business in California
(FTB Publication 1060) (pdf~119KB).
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- The legal name of the corporation in the State of California will be whatever you list in the Articles of Incorporation after the words "The name
of the corporation is," including any punctuation. Also, if you include the name of the corporation in a document title, the name of the corporation
in the title must exactly match the name listed in the articles (typically Article I). If the name does not match, the Articles of Incorporation will be
returned to you, unfiled.
- While not required to name initial directors in Articles of Incorporation, if initial directors are named, all initial directors must sign
and acknowledge the articles. (California Corporations Code sections
5120(b) [public benefit],
7120(b) [mutual benefit] or
9120(b) [religious].)
- When an acknowledgment is required, the articles may be formally acknowledged or acknowledged by written declaration as prescribed by
California Corporations Code section 5030.
A sample of an acceptable acknowledgment by written declaration is: "I declare that I am the person who executed the document, which execution
is my act and deed."
- If initial directors are not named in the Articles of Incorporation, the articles shall be signed by one or more persons who thereupon are
the incorporators of the corporation. California Corporations Code sections
5120(b) [public benefit],
7120(b) [mutual benefit] or
9120(b) [religious].)
- A mutual benefit corporation cannot do any of the following: (a) use the word "foundation" in the corporate name; (b) create the
impression that the corporate purpose is public, charitable, or religious; or (c) create the impression that it is a charitable foundation. (California
Corporations Code section 7122(b).)
- Generally, the purpose clause must state the exact language as prescribed by California Corporations Code sections
5130(b) [public benefit],
7130(b)(1) [mutual benefit] or
9130(b) [religious], as applicable.
Unless otherwise required by law, any deviation from the required purpose statement can be cause for rejection.
- If the corporation is a public benefit corporation and the purpose includes "public" purposes, the articles must include an additional
description of the corporation’s purposes. (California Corporations Code section
5130(b).)
- California Corporations Code sections
5130(c) [public benefit],
7130(c) [mutual benefit] or
9130(c) [religious], require the articles to
set forth the name of the initial agent for service of process in compliance with California Corporations Code sections
6210(b) [public benefit and religious] or
8210(b) [mutual benefit]. If the initial
agent for service of process is an individual, the articles must set forth the address for purposes of service of process. If the initial agent for
service of process is a corporation (which corporation must comply with California Corporations Code section
1505 prior to designation), no address is
to be stated. Please note, a corporation cannot act as its own agent.
- The Board of Directors cannot be given unlimited authority to make, alter, amend or repeal bylaws of the corporation. Once members have been
admitted, California Corporations Code sections
5151(b) [public benefit],
7151(b) [mutual benefit] and
9151(b) [religious], require member approval
for bylaw changes in the number or maximum and minimum number of directors.
- The articles may set forth the number of directors of the corporation in compliance with California Corporations Code sections
5151(a) [public benefit],
7151(a) [mutual benefit] and
9151(a) [religious]. If the number of
directors is set forth, the number must be either a specified number, or a range identifying an acceptable minimum and maximum number of directors
–– but not both.
- Indemnification provisions must match exactly the requirements of California Corporations Code sections
5238 [public benefit],
7237 [mutual benefit] or
9246 [religious]. The Code does not
provide for a shorthand phrase to encompass the indemnification provision or excess indemnification provision as with stock corporations.
- All memberships have exactly the same rights, preferences, privileges and restrictions unless the articles or bylaws provide specification as to
memberships with different rights, preferences, privileges, restrictions or conditions (e.g. classes of memberships). (California Corporations Code sections
5330,
5331 [public benefit];
7330,
7331 [mutual benefit];
9330,
9331 [religious].)
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- The name of the corporation, as stated on the Certificate of Amendment or Restated Articles of Incorporation, must match exactly the name of
the corporation as it appears on our records. Punctuation should match also.
- The amendment or restatement must be set forth in an Officers’ Certificate. If a corporation chooses a form of Officers’ Certificate whereby
the provisions of an amendment or amended and restated articles are contained in an attachment or exhibit, the Officers’ Certificate must include
language that the attachment or exhibit is "incorporated by reference as if fully set forth" in the officers’ certificate. (California
Corporations Code sections 905 and
910.)
- The certificate must be signed and verified by two appropriate corporate officers. (California Corporations Code sections
173,
193,
905,
907 and
910.) A sample of an acceptable
verification is: "We further declare under penalty of perjury under the laws of the State of California that the matters set forth in this
certificate are true and correct and of our own knowledge." The verification must be dated the actual date it is signed. The verification cannot
be postdated. (California Corporations Code section
193.)
- The certificate must be signed and verified by the appropriate individual(s), not by the corporation. (California Corporations Code sections
193.) Any indication of the corporation on,
above or near the signature line, other than the title(s) of the designated individual(s) signing the certificate, must be omitted.
- The Officers’ Certificate must set forth the number of outstanding shares of each class and series entitled to vote and specify for each the percentage
vote required by California Corporations Code sections 902
and 903 for passage of the amendment, as well
as any additional vote required by protective provisions in the prior articles.(California Corporations Code section
905(c).)
- The corporation has only one initial agent for service of process whose information is contained in the initial Articles of Incorporation. The
name and/or address of the initial agent for service of process cannot be changed by way of amendment, except to correct an error in the statement.
(California Corporations Code section 900(b).)
To change the agent for service of process, the corporation must file the statement required by California Corporations Code section
1502. After filing the statement required
by section 1502, the agent for service of
process provision must be omitted from restatements of the corporation’s articles. (California Corporations Code sections
1502 and
910(a).)
- If a corporation is authorized to issue more than one class of shares, or if any class of shares has two or more series, California Corporations
Code section 202(e) requires the articles to
designate: (a) the total number of shares of each class; (b) the total number of shares for each series; (c) the designation of each class or series; and
(d) the rights, preferences, privileges, and restrictions of the respective classes or series. The articles may also delegate to the board of directors
the power to designate: (a) the number of shares in a series; (b) the designation of a series; and (c) the rights, preferences, privileges, and restrictions
of any unissued class or series of shares.
- There is no legal authority for the Articles of Incorporation to grant greater authority or special powers over Board decisions to one or more specific
directors. As an alternative to a majority vote or special powers delegated to certain directors, approval of a supermajority (up to 100%) of directors
may be inserted as a provision in the articles for most corporate actions under California Corporations Code section
204(a)(5). Also, to ensure that a particular
class or series of shareholders are represented, a requirement can be added for approval of the particular class or series of shareholders as provided
in California Corporations Code section
204(a)(9).
- A corporation may provide in its Articles of Incorporation for one or more classes or series of shares to be redeemable in whole or in part upon
the vote of at least a majority of the outstanding shares of the class or series to be redeemed. (California Corporations Code section
402(a).)
- If a corporation does not redeem all the shares of a class or series at the same time, the articles must state for the partial redemption "
the method of selecting the shares to be redeemed, which may be pro rata, by lot, at the discretion of, or in a manner approved by, the board or upon
such terms as are specified in the articles." (California Corporations Code section
402(b).)
- California Corporations Code section 407
provides three options for dealing with fractional shares when a corporation chooses not to issue them: (a) pay the fair value in cash; (b) issue scrip
or warrants; or (c) arrange for the disposition of the fractional shares through a broker or agent to allow holders of fractional shares to buy or sell
their fractional shares to bring their holdings to a whole number. If the corporation chooses to pay in cash for the fractions of a share, the reference
in the articles should be to "fair value," rather than "conversion price" or some other stated price since the stated price of the
preferred share may not be "fair value" for the fractional share of common stock to which the shareholder is entitled at the time of conversion.
(California Corporations Code section
407.)
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Certificates of Determination – Domestic Stock Corporations
- The name of the corporation, as stated on the Certificate of Determination, must match exactly the name of the corporation as it appears on our
records, including punctuation.
- The rights, preferences, privileges, and restrictions of shares with terms fixed by the board of directors must be set forth in an Officers’
Certificate prior to the issuance of those shares. (California Corporations Code sections
173,
193 and
401.)
- If a corporation chooses a form of Officers’ Certificate whereby the rights, preferences, privileges, and restrictions of shares with terms fixed
by the board of directors are contained in an attachment or exhibit, the Officers’ Certificate must include language that the attachment or exhibit
is "incorporated by reference as if fully set forth" in the officers’ certificate. (California Corporations Code sections
193 and
401.)
- The contents of the certificate must be verified under penalty of perjury, dated and be of the personal knowledge of the officers signing the certificate.
(California Corporations Code sections 173 and
193.) A sample of an acceptable verification is:
"We further declare under penalty of perjury under the laws of the State of California that the matters set forth in this certificate are true and
correct and of our own knowledge." The verification must be dated the actual date it is signed and must be submitted to the Secretary of State for
filing close in time to the date it is signed. The verification cannot be postdated. (California Corporations Code section
193.)
- The certificate must be signed and verified by the appropriate officers, not by the corporation. (California Corporations Code sections
173 and
193.) Any indication of the corporation on,
above or near the signature line, other than the titles of the officer(s) signing the certificate, must be omitted.
- Although California Corporations Code section
401 allows the board of directors by way of resolution to designate and set forth the rights, preferences, privileges, and restrictions, this
action by the board must be first authorized in its articles. (California Corporations Code sections
202(e) and
401(a).) If the corporation has not provided
such authorization in its articles, the designation, number, rights, preferences, privileges and restrictions must be set forth in an amendment to the
articles, rather than a Certificate of Determination setting forth a board resolution. (See California Corporations Code sections
202(e) and
401(a).)
- California Corporations Code section 401(a)
requires the Officers’ Certificate to set forth separately: (1) a copy of the resolution; (2) the number of shares of the class or series; and (3) that
none of the shares of the class or series have been issued.
- Any increase or decrease in the number of shares in a series by way of resolution after any Certificate of Determination has been filed, and if
authorized in the articles, must meet the requirements of California Corporations Code section
401(c), and set forth separately: 1) a copy
of the resolution; 2) the number of shares of the series then outstanding; and 3) the increase or decrease in the number of shares constituting the
series.
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- The name of the corporation, as stated on the dissolution document(s), must match exactly the name of the corporation as it appears on our records,
including punctuation.
- If the election to wind up and dissolve was made by a vote of all of the issued and outstanding shares, dissolution of a domestic stock corporation
may be accomplished by filing a single document. The document, entitled Certificate of Dissolution, must include the statement: "The election to
wind up and dissolve was made by a vote of all of the shares." (California Corporations Code sections
1901(c) and
1905(a)(5).)
- If the election to dissolve was made by less than 100% shareholder approval, or if no shares are outstanding, both a Certificate of Election to
Wind Up and Dissolve and a Certificate of Dissolution must be filed. (California Corporations Code sections
1901 and
1905.)
- The Certificate of Election to Wind Up and Dissolve and/or the Certificate of Dissolution must be properly verified under penalty of perjury and
include the actual date of signing. (California Corporations Code sections
173,
193,
1901 and
1905.) A sample of an acceptable
verification is: "We further declare under penalty of perjury under the laws of the State of California that the matters set forth in this
certificate are true and correct and of our own knowledge." The verification cannot be postdated. (California Corporations Code section
193.)
- The certificate(s) must be signed and verified by the appropriate individual(s), not by the corporation. (California Corporations Code section
193.) Any indication of the corporation on,
above or near the signature line, other than the title(s) of the designated individual(s) signing the certificate(s), must be omitted.
- The Certificate of Dissolution must be signed and verified by a majority of directors (or the sole director, if there is only one). (California
Corporations Code sections 193 and
1905(a).)
- The Certificate of Dissolution must include a statement concerning the disposition of the corporation’s known debts and liabilities. The
certificate must state that the known debts and liabilities have been paid, or that the corporation never incurred any known debts or liabilities, or
that the known debts and liabilities have been adequately provided for. If there are known debts and liabilities for which adequate provision has been
made, the certificate must set forth what provision has been made, including the name and address of the corporation, person or governmental agency that
has assumed or guaranteed the payment, or the name and address of the depositary with which deposit has been made, or any other information necessary to
enable the creditor to claim payment of the debt or liability. (California Corporations Code section
1905(a)(2).)
- The Certificate of Dissolution must include the statement: "The corporation is dissolved." (California Corporations Code
section 1905(a)(4).)
- The Certificate of Dissolution must include a statement concerning the distribution of the corporation’s assets. The certificate must state
that the known assets have been distributed to the persons entitled thereto, or that the corporation never acquired any known assets, as applicable.
(California Corporations Code sections 1905(a)(3).)
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- The name of the corporation, as stated on the dissolution document(s), must match exactly the name of the corporation as it appears on our
records, including punctuation.
- If the election to wind up and dissolve was made by a vote of all of the members of a corporation with members or by all members of the board of
directors of a corporation without members, dissolution of a domestic nonprofit corporation may be accomplished by filing a single document. The
document, entitled Certificate of Dissolution, must include the statement: "The election to dissolve was made by a vote of all the members
of the corporation." or the statement: "The corporation has no members, the election was made by all the directors of the corporation."
(California Corporations Code sections
6611(c) and 8611(c).)
- If the election to dissolve was made by less than 100% approval of the members or less than 100% approval of the board of directors for a
corporation with no members, both a Certificate of Election to Wind Up and Dissolve and a Certificate of Dissolution must be filed. (California
Corporations Code sections 6611,
6615,
8611 and
8615.)
- The Certificate of Election to Wind Up and Dissolve and/or the Certificate of Dissolution must be properly verified under penalty of perjury and
include the actual date of signing. (California Corporations Code sections
5062,
5076,
6611,
6615,
8611 and
8615.) A sample of an acceptable verification
is: "We further declare under penalty of perjury under the laws of the State of California that the matters set forth in this certificate are
true and correct and of our own knowledge." The verification cannot be postdated. (California Corporations Code section
5076.)
- The certificate(s) must be signed and verified by the appropriate individuals, not by the corporation. (California Corporations Code section
5076.) Any indication of the corporation
on, above or near the signature line, other than the title(s) of the designated individual(s) signing the certificate(s), must be omitted.
- The Certificate of Dissolution must be signed and verified by a majority of directors (or the sole director, if there is only one). (California
Corporations Code sections 5076,
6615(a) and
8615(a).)
- The Certificate of Dissolution must include a statement concerning the disposition of the corporation’s known debts and liabilities. The
certificate must state that the known debts and liabilities have been paid, or that the corporation never incurred any known debts or liabilities, or
that the known debts and liabilities have been adequately provided for. If there are known debts and liabilities for which adequate provision has been
made, the certificate must set forth what provision has been made, including the name and address of the corporation, person or governmental agency that
has assumed or guaranteed the payment, or the name and address of the depositary with which deposit has been made, or any other information necessary to
enable the creditor to claim payment of the debt or liability. (California Corporations Code sections
6615(a)(2) and
8615(a)(2).)
- The Certificate of Dissolution must include the statement: "The corporation is dissolved." (California Corporations Code sections
6615(a)(3) and
8615(a)(4).)
- If the dissolving corporation is a mutual benefit corporation, the Certificate of Dissolution must include a statement concerning the
distribution of the corporation’s assets. The certificate must state that the known assets have been distributed to the persons entitled thereto,
or that the corporation never acquired any known assets, as applicable. (California Corporations Code section
8615(a)(3).)
- If the dissolving corporation is a public benefit or religious corporation, the Certificate of Dissolution must be
accompanied by a letter from the Attorney General that either waives objections to the distribution of the corporation’s assets pursuant to
California Corporations Code section
6716(c) or confirms that the corporation has no assets. (California Corporations Code sections
6615(b) and
9680(a).) Information regarding
the required letter can be obtained by calling the Office of the Attorney General – Registrar of Charitable Trusts at (916) 445–2021 or can be
downloaded from the Attorney General’s website under Charities at oag.ca.gov/charities. A written request
for the required letter can be mailed to the Office of the Attorney General – Registrar of Charitable Trusts at P.O. Box 903447, Sacramento,
California 94203–4470.
Note: A public benefit or religious corporation does not need the letter from the California Attorney General’s office if the corporation (1) is a
committee, as defined by California Government Code section
82013; (2) has filed any statement pursuant to the California Government Code, commencing with Section
84200; and (3) is exempt
from the supervisory authority of the Attorney General pursuant to California Government Code sections
12581 and
12583. If the corporation is a
committee, as described above, the Certificate of Dissolution must include a statement that confirms the corporation meets each of those
requirements.
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- A current original Certificate of Good Standing issued within the last six months by the appropriate public official of the state of
incorporation must be submitted with the Statement and Designation. (California Corporations Code section
2105.)
Note: To register as a nonprofit corporation, the Certificate of Good Standing must indicate the qualifying corporation is a nonprofit,
nonstock corporation.
- The name of the corporation stated in the Certificate of Good Standing must match exactly the name of the corporation on the Statement and
Designation, including punctuation. (California Corporations Code section
2105.)
- If an individual is designated as agent for service of process, the Statement and Designation must contain the complete business or
residence address of the agent. (California Corporations Code sections
2105 and
2117.)
- If a corporation is designated as agent for service of process, the Statement and Designation must reflect the corporate name, but cannot
reflect the address. (California Corporations Code sections
2105 and
2117.)
- If the designated corporate agent for service of process is not a California corporation, the Statement and Designation must reflect the
correct state of incorporation for the corporate agent for service of process. (California Corporations Code sections
2105 and
2117.)
- A designated corporate agent for service of process must comply with California Corporations Code section
1505 prior to being named as corporate
agent in the Statement and Designation. (California Corporations Code section
2105(c).)
- A designated corporate agent for service of process must be currently authorized to engage in business in this state and must be in good
standing on the records of the Secretary of State before it may be designated as the agent for service of process for another entity. (California
Corporations Code section
1505.)
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- The name of the foreign corporation must match exactly the name as shown on the records of the California Secretary of State and set forth the state
or place of incorporation for the foreign corporation. (California Corporations Code section
2112(a)(1).) This is important to ensure
the correct entity is being terminated.
- There is no statutory authority for a director or "authorized representative" to sign a Certificate of Surrender. The certificate must be
signed by a corporate officer. (California Corporations Code section
2112(a).)
- The certificate must provide a post office address to which the Secretary of State may mail a copy of any process against the corporation that
is served upon the Secretary of State. (California Corporations Code section
2112(a)(5).)
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- Entity names must match exactly the name of the entity as it appears on our records, including punctuation. (California Corporations Code sections
201 and
1101.) This is important to ensure
the correct entities are being merged.
- Two designated officers must sign the Agreement of Merger on behalf of each corporation. Attesting signatures are not acceptable. Two designated
officers means the chairman of the board, president or vice president and the secretary or assistant secretary.
(California Corporations Code sections 1102
or 1113(f).)
- Generally, all entities must have the following signatures on the Agreement of Merger: (a) a corporation requires two designated officers; (b)
a limited liability company requires all managers or members; and (c) a limited partnership requires all general partners. (California Corporations
Code sections 1102 and
1113.)
- If all of the outstanding shares of a disappearing California corporation are to be cancelled without consideration, the Agreement of Merger
must state that "the shares are being cancelled without consideration" and the Officers’ Certificate for that corporation must state that
100% shareholder approval was obtained. (California Corporations Code sections
1101(d) and
1202(a).)
- An Officers’ Certificate must have original signatures, be verified by two appropriate corporate officers and include the date of signing.
(California Corporations Code sections
173, 193 and
1103.) A sample of an acceptable
verification is: "We further declare under penalty of perjury under the laws of the State of California that the matters set forth in this
certificate are true and correct and of our own knowledge." The verification must be dated the actual date it is signed. It cannot be postdated.
(California Corporations Code section
193.)
- The Officers’ Certificate or Certificate of Ownership must be signed and verified by the individual officers of the corporation, not by the
corporation. (California Corporations Code sections
173 and 193.) Any indication of the
corporation on, above or near the signature line other than the titles of the officer(s) signing the certificate, must be omitted.
- An Officers’ Certificate for a corporation must be signed by the chairman of the board, the president or any vice president
and by the secretary, the chief financial officer, the treasurer or any assistant secretary or assistant treasurer. (California Corporations Code
sections 173, and
193.)
- Correctly and consistently reference the complete title of the documents setting forth the Agreement of Merger throughout the submitted
documents.
- Amendments/Restatements to the Articles of Incorporation of the surviving corporation must be set forth in full in the Agreement of Merger, or
referenced and attached thereto. Therefore, the Articles of Incorporation of the disappearing corporation cannot be converted automatically into the
Articles of Incorporation of the surviving corporation. To change the existing Articles of Incorporation of the surviving corporation, the Articles
of Incorporation must be amended and restated. (California Corporations Code sections
1103 and
1113.)
- The manner of converting shares must be specifically stated in the Agreement of Merger and each share of the same class or series must be treated
equally unless 100% of the vote of that class is obtained approving the inequality. (California Corporations Code section
1101.)
- References to documents which are not contained within the Agreement of Merger should clearly and expressly include the name of the document, the
date of the document, the parties signing the document, and the appropriate section(s) of the document. (California Corporations Code section
109.5.)
- Generally, approval of a majority (or more than 50%) is required of each class of shareholders. (California Corporations Code section
152.) There may be other voting requirements
contained within the respective Articles of Incorporation or operating agreement. A vote of 50% is not acceptable.
- For Interspecies Mergers, the Certificate of Merger form must state the NUMBER of outstanding interests or shares of each class entitled to vote for
both the surviving entity and the disappearing entity. (California Corporations Code sections
1103 and
1113.)
- A Certificate of Ownership must be in the form of an Officers’ Certificate and comply with California Corporations Code sections
173,
193 and
1110.
- If a corporation chooses a form of Officers’ Certificate whereby required provisions are contained in an attachment or exhibit, the
Officers’ Certificate must include language that the attachment or exhibit is "incorporated by reference as if fully set forth"
in the Officers’ Certificate. (California Corporations Code section
1110.)
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