When Must You Amend Your Entity's Formation Documents?
As your business grows and expands, you may find that you want to make changes that affect your formal entity structure. For example, you might want to authorize and issue non-voting stock as a prelude to passing the business on to your children. Or, you might want to move to a manager-managed LLC, rather than operating as a member-managed LLC.
Generally, any time you make a change to information reported in your initial formation documents, you will need to file an amendment to those documents. If the changes are only to provisions in the corporate by-laws or the LLC's operating agreement, then it is far less likely you will need to file amending documents with the state. A heavier compliance burden falls on corporations because most states require far more information in the articles of incorporation than is required in an LLC's formation documents.
Common changes that trigger filing:
- Changes to the entity's name
- Changes in the entity's purpose
- Changes in the number of authorized shares of a corporation
- Changes in the type/class/series of authorized shares of a corporation
- Changes in the number of directors of the corporation, if stated in articles of incorporation
- Change from member-managed to manager-managed (or vice versa)
Changes in names of directors, members, or managers of an entity may trigger the need to file amendments in certain states, such as Arizona. Other states do not require amendment to the formation document, but will require this information to be reported on the annual report.
Most states do not require that you file amended formation documents to designate a new registered agent. While registered agent changes must be reported to the state within a short period of time following the change, this is accomplished by filing a change of registered agent form.
If there are many changes that need to be made to the original information or if you need to include information that was not in the original document, then you should file a restatement of the articles of incorporation or articles of organization.
When you undertake such changes there are two sets of compliance responsibilities to face. First, you need to follow the organizational formalities necessary to authorize the change. Some states, such as Indiana, require that you provide detailed information regarding these votes. Then, once you have completed the corporation formalities, you must file the appropriate documents with the secretary of state in your home state.
The documents required (as well as the amount of the filing fee) will vary based upon the type of filing (amendment, restatement, change of registered agent) and the type of entity. Using the wrong forms will generally cause your filing to be rejected. In some states, publication is required for certain amendments. For example, Georgia requires publication of a "Notice of Change of Corporate Name."
If you are registered to do business in any states in addition to your home state, you will most likely be required to file similar documents in each of those states. And, you may need to file documents that reflect a change, even if such a filing is not requirement in your home state.