COLORADO SECRETARY OF STATE
FILING MANUAL
FOR:
CORPORATIONS
LIMITED LIABILITY COMPANIES
LIMITED PARTNERSHIPS
LIMITED LIABILITY PARTNERSHIPS
LIMITED LIABILITY LIMITED PARTNERSHIPS
TRADE NAMES
TRADEMARKS
Revised 7/97
TABLE OF CONTENTS
I / GENERAL INFORMATION PAGE / 1Transmitting Instruments / 1
Expedited Service / 1
Payment of Filing Fees / 2
Filing Dates / 2
Receipt of Documents / 2
Returning Rejected Documents / 3
Inspection of Records / 3
Copies of Documents/Certificates / 4
Fax Machine / 4
Optical Image Equipment / 4
Copy Machine / 4
Telephone Information / 5
Name Availability / 6
900 Number Fax Services / 6
Pre-Clearance of Documents / 6
Microfiche/Microfilm / 7
Service on Secretary of State not Permitted / 7
Forms / 7
Penalty of Signing False Document / 7
II / BUSINESS (FOR PROFIT) CORPORATIONS / 8
Execution of Documents / 8
Guidelines for Preparation Filing of Articles of Incorporation / 9
What Articles May Include / 13
Common Errors / 14
Optional Provisions / 16
Procedures Prior to Filing / 16
Reports / 16
III / CHANGES TO ARTICLES OF INCORPORATION OF BUSINESS
CORPORATIONS / 18
Articles of Amendment / 18
Amendment of Bylaws / 20
Change of Registered Office/Agent / 20
Resignation of Registered Agent / 21
Resignation of Officer/Director / 21
Articles of Correction / 21
Restated Articles / 22
Domestic Mergers / 22
Merger of Domestic Corporation and Foreign Corporation / 24
Changes to Articles of Surviving Corporation / 24
Articles of Merger of a Parent and One or More Subsidiary Corporations / 24
Articles of Share Exchange / 25
Consolidation / 26
Redomestication of a Foreign Insurance Company / 26
Redomestication of a Domestic Insurance Company / 27
IV / DISSOLUTIONS / 28
Voluntary Dissolution / 28
Voluntary Dissolution after Issuance of Shares / 28
Statement of Intent to Dissolve / 28
Articles of Dissolution / 28
Revocation of Dissolution / 29
Effect of Dissolution / 30
Administrative Dissolution and Reinstatement / 30
Delinquency, Suspension and Administrative Dissolution / 30
Corporate Reports / 31
Name of Administratively Dissolved Corporation / 31
Reinstatement After Administrative Dissolution / 31
V / FOREIGN CORPORATIONS / 33
Filing Requirements / 33
Guidelines for the Application of Authority / 34
Amended Authority to do Business / 35
Withdrawal of Foreign Corporations / 35
Application for Withdrawal of Foreign Corporations / 35
VI / PROFESSIONAL SERVICE CORPORATIONS / 37
Preparing and Filing Articles of Incorporation of a Professional Service Corporation / 37
Professional Service Limited Liability Company / 40
VII / NONPROFIT CORPORATIONS / 42
Service on Secretary of State not Permitted / 42
Tax Exemption / 43
Guidelines for Preparation and Filing of Articles of Incorporation for a Nonprofit Corporation / 43
Other Provisions / 46
Execution / 46
Articles of Organization / 46
Organizational Test / 46
Dedication and Distribution of Assets / 48
Sample Provisions for Articles of Incorporation / 48
Common Errors Causing Rejection of a Proposed Filing / 49
Articles of Amendment for a Nonprofit Corporation / 50
Restated Articles of Incorporation for a Nonprofit Corporation / 50
Instructions for Preparing Restated Articles Without Amendments / 50
Instructions for Preparing Restated Articles With Amendments / 51
Merger and Consolidation of Nonprofit Corporations / 51
Plan of Merger or Consolidation / 51
Procedure for Approval / 52
Articles of Merger or Consolidation / 52
Voluntary Dissolution / 52
Statement of Intent to Dissolve / 53
Articles of Dissolution for a Nonprofit Corporation / 54
Revocation of Voluntary Dissolution / 55
Administrative Dissolution of Nonprofit Corporations / 55
Preparation and Filing of Application for Certificate of Authority / 56
Withdrawal of Foreign Nonprofit Corporation / 57
Revocation / 57
VIII / REGISTRATION OF NAME / 59
IX / LIMITED PARTNERSHIPS / 60
Names of Limited Partnerships / 60
Filing a Certificate of Limited Partnership / 60
Foreign Limited Partnership / 61
Filings Under the Limited Partnership Act of 1981 / 62
Name Reservations / 62
Amendment to Limited Partnerships / 62
Amendment to a Registration Statement by a Foreign Limited Partnership / 63
Filings by a Person Erroneously Believing Himself to be a Limited Partner / 63
Merger of Limited Partnerships / 63
Consolidation of Limited Partnership / 64
Certificate of Cancellation of a Limited Partnership / 64
Cancellation of Registration for a Limited Partnership / 64
X / LIMITED LIABILITY COMPANIES / 65
Preparing and Filing Articles of Organization / 65
Formation of a Limited Liability Company / 66
Articles of Organization / 66
Name Reservation / 66
Amendment of Articles of Organization / 67
Registered Agent / 67
Merger or Conversion / 67
Conversion of Partnership or Limited Partnership to Limited Liability / 67
Merger of Limited Liability Companies with LLC Partnerships and
Limited Partnerships / 68
Approval of the Plan of Merger / 68
Statement of Merger / 69
Preparation and Filing of Articles of Dissolution / 69
Articles of Dissolution / 70
Foreign Limited Liability Companies / 70
Name / 70
Certificate of Authority / 70
Amended Application for Certificate of Authority / 71
Certificate of Withdrawal / 71
Reports / 72
Amendment to Accept 1994 Amendments to the Act / 73
XI / LIMITED LIABILITY PARTNERSHIP, LIMITED LIABILITY LIMITED PARTNERSHIP, LIMITED PARTNERSHIPS ASSOCIATION / 74
XII / TRADE NAMES / 76
XIII / TRADEMARKS / 77
XIV / AVAILABILITY OF BUSINESS NAMES / 78
Significant Words / 78
"Same As" Names / 79
Deceptively Similar Names / 79
Similar Names / 80
Exceptions / 80
Not Similar Names / 80
Use of the Words, "Cooperative", "Bank" and "Trust" / 80
Examples of Deceptively Similar Names / 81
Customs Alert / 81
Work Flow of Filed Documents / 81
Mailed Documents / 82
XV / APPENDIX A - DIRECT ACCESS / 84
XVI / APPENDIX B - FILING FEES / 86
Business "For Profit" Corporation Filing Fees / 86
Miscellaneous Fees / 87
Penalties / 88
Nonprofit Corporations Fees / 89
XVII / APPENDIX C - FORMS INDEX / 91
I. GENERAL INFORMATION
TRANSMITTING INSTRUMENTS TO THE SECRETARY OF STATE
If an instrument is to be delivered to the Secretary of State by mail or in a manner other than through the U.S. Post Office, the envelope may be addressed or delivered to the following address:
CORPORATIONS SECTION
OFFICE OF THE SECRETARY OF STATE
1560 BROADWAY SUITE 200
DENVER CO 80202
Any correspondence and payments should be addressed to the above address. It is recommended that documents or requests be accompanied by a self-addressed, stamped envelope for speedier return of the documents to the filer.
SPECIAL HANDLING/EXPEDITED SERVICE
Expedited service is available for the following documents:
*Articles of Incorporation, Articles of Organization, Certificate of Limited Partnership and Certificate of Authority for any foreign business entity where a name has been previously reserved in the office of the Secretary of State.
*Amendments to any articles.
*Corporate reports and reinstatements for dissolved corporations within 120 days of dissolution.
*Mergers.
*Dissolutions.
Expedited service is only available for over-the-counter documents and requests or for faxed documents or requests where prepaid accounts have been established.
Expedited service provides for immediate attention to your document. However, expedited requests for UCC searches and for certified copies of corporate or other business entity documents may require from twenty-four (24) to forty-eight (48) hours to process.
The fee for expedited service is $15.00 per request or per document.
PAYMENT OF FILING FEES
Filing fees may be paid by cash, personal check, law firm check, your client's check, cashier's check, money order or by prepaid account. Please do not send cash through the mail! If you do not use a prepaid account it is preferred by the Secretary of State that you pay all filing fees by check, even if you choose to hand carry a document into the office. Filing fees and special handling fees for a single document may be included in one check made payable to the Secretary of State.
Do not combine the filing fees for several documents in one check. If one document is rejected while the others are filed, a refund, which needs to be requested in writing by the customer pursuant to Colorado Revised Statutes 24-30-203 (1), will be issued on the unused portion of the check. This may result in a delay in your receiving a refund for the rejected document.
FILING DATES
With the exception of corporate reports, all documents are filed as of the date of receipt by this office. The date of the postmark is not taken into account. If a document is found deficient and returned, the filing date upon resubmission will be the date the corrected document is received.
Colorado law provides for a delayed effective date for corporate documents. A document is filed to be effective on a future filing date not to exceed ninety (90) days if the delayed effective date provision is in the text of the document. It is helpful to notify the office that the document has a delayed effective date. A yellow "sticky" is very noticeable.
RECEIPT OF DOCUMENTS
In order to increase filing efficiency, the Secretary of State started accepting documents by fax in 1993. This program requires that the filer establish a prepaid account with the Secretary of State.
As with all new technology there are problems. A critical problem is that when faxes are sent, the intended receiver of the fax may not get the transmission, for any number of reasons. In order to alleviate this particular problem, the Secretary of State has added a provision to the Colorado Business Corporation Act as part of HB 94-1131. C.R.S. 7-101-210 provides an appeals process for those documents which were faxed to the Secretary of State pursuant to a prepaid account but which for some reason were not received by the Secretary of State.
The practical application of this language is that, within sixty (60) days of a filer's sending a document by fax, accompanied by the appropriate prepaid account information, the filer may present documentation to the Secretary of State that the appropriate number of pages were sent, and the prepaid account information was sent.
This can be accomplished by a copy of the facsimile machine transmittal record indicating the date and time of transmission and the telephone number that the transmission was sent to.
Since February 11, the Secretary of State has been retaining, and will continue to retain the facsimile transaction report which indicates the date and time of transmission and the telephone number the transmission was received from. Such transaction reports will be retained for a period of sixty (60) days.
By cross referencing both the filer's documentation and the Secretary of State's documentation, the Secretary of State may elect to treat the lost document as having been received by the Secretary of State on the date indicated by the facsimile machine documentation.
CAUTION!!
The Secretary of State cautions filers not to rely on the above language as the sole method of ensuring that a document gets filed. For any document, whether it is sent by mail or by fax, if a copy of the filed document has not been received by the filer within seven to ten days of the date of mailing or faxing, further inquiry to the Secretary of State is necessary.
It has been brought to the attention of the Secretary of State that the term "receipt" is not defined in the Colorado Business Corporation Act. Also, the statutory provision only amended the corporations law and not the statutes pertaining to nonprofit corporations, limited liability companies, etc.
However, the Secretary of State willon sense" and will allow the above language to apply to any document faxed to the Secretary of State for filing. It is anticipated that conforming amendments will be made in the statutes during the 1995 legislative session.
RETURNING REJECTED DOCUMENTS
When a document does not conform to law, the document and the check submitted for payment of the filing fee will be returned to the remitter with a letter stating the reason(s) for rejection. Due to the large number of rejected documents, deficient documents or fees are not held pending receipt of corrections or additional fees. There is a penalty fee for the resubmission of rejected corporate documents. Please check the filing fee amounts with the fee schedule section, Appendix B, of this manual.
INSPECTION OF RECORDS
All of the records of the Secretary of State are public records and may be inspected and duplicated. The files are indexed by the name of the entity or by file number. Generally, you cannot access records by the names of individuals involved with the entity such as officers or directors. Active corporate records are available on optical image equipment. Corporate reports are available on microfilm. UCC records are available on microfilm. Colorado corporations are not required to list their shareholders in any publicly filed document.
COPIES OF DOCUMENTS/CERTIFICATES
You may obtain certificates concerning any corporation or copies of any record by submitting a written or facsimile request to the Corporations Section or by requesting copies in person at the corporations counter in Suite 200 of the Denver Post Building, 1560 Broadway. Please check the filing fee amounts with the fee schedule section, Appendix B, of this manual for certified copies, certificates of good standing and other certificates of fact.
Since copy costs are based on a per page charge, the amount due cannot be determined until the file is retrieved and the copies made. All copies picked up at the reception desk must be paid for at the time of receipt.
FAX MACHINE
Copies of documents or certificates may also be ordered or sent via facsimile transmission. The charge for facsimile transmission from the Secretary of State can be found in the fee schedule section, Appendix B, of this manual. The telephone number for the facsimile machine is (303) 894-2242.
OPTICAL IMAGE EQUIPMENT AVAILABLE FOR PUBLIC USE
New high resolution monitors have been installed in the public area of the Secretary of State's office. This equipment allows the user to access corporate filings all at once rather than looking through both microfiche and microfilm. Copies of any document or page of a document are available.
COPY MACHINE
A new self-service copy machine has been installed in the public area. The cost is ten cents per copy.
A microfiche reader/printer has been installed in the public area. This allows users to make bond paper copies of documents contained on microfiche at $1.00 per page. Also, a microfilm reader/printer has been installed to respond to the demand to make immediate copies of UCC documents, corporate reports and some corporate documents at $1.00 per page.
THE SECRETARY OF STATE DIRECT ACCESS SYSTEM
The Office of the Secretary of State has implemented a new service called Direct Access. The Secretary of State Direct Access System offers direct computer link-up to the Secretary of State's mainframe, allowing access to information regarding corporations, limited partnerships, corporate trade names, and UCC financing statements filed with the Secretary of State. The Direct Access System was created to meet the increasing public demand for information available from the Secretary of State's Office. Any individual or business wanting to access the system may use a PC, modem, and a communications software package to dial into the Secretary of State's computer.
The Direct Access System will provide you the same information that would be retrieved from a facsimile or written inquiry to the Secretary of State's Office. Searching the system will provide you with accurate and timely information. Access is sold by yearly subscriptions. For more information, please call (303) 894-2227 or see Appendix B in the back of this manual.
TELEPHONE INFORMATION
Information can be provided over the telephone. Generally, information not readily accessible on the customer service representative's computer terminal is available by requesting copies in person or via facsimile or letter.
Please direct your calls to the following numbers:
Phone (303) 894-2251 or Facsimile (303) 894-2242
NAME AVAILABILITY
Prior to submitting a document for filing, you may check the availability of the proposed name by facsimile (303) 894-2242. The proposed name is searched in the data base and a preliminary opinion is given. A final decision is never made on a name until a document using the name is submitted for filing. Do not use a proposed name until you have received a copy of the document evidencing filing of that name. Do not advise your client to spend money or enter into contracts based on preliminary clearance of a name. For further name availability information see Section 10. There is a $3.00 fee for the first three names searched and a $1.00 fee for each additional name thereafter.
1-900 FAX SERVICES FOR NAME AVAILABILITY
On April 15, 1993, the Secretary of State introduced a new service for name availability. The office was awarded an AT&T 900 number for use with name availability faxes. When using the 894-2242 fax number, the client is billed $3.00 for the first three (3) names and $1.00 per name thereafter. However, the office was aware that businesses incur a substantial financial cost when they are required to generate numerous checks in small amounts of $3.00 to $5.00. It is estimated that it costs a business $25.00 in administrative costs to generate a check. Additionally, the creation of numerous bills and the processing of large numbers of checks is burdensome to the Secretary of State.
The new service is designed to allow the user to pay for name availability services once a month through their AT&T bill. Any number of names will be searched for a charge of $5.00. Since the Secretary of State does not have to generate a bill, the processing of the request is speedier. Since the inception of the service, name availabilities using the 900 number have been handled 30% faster than those name availabilities using 894-2242.
Some businesses have their outgoing line blocked against 900 number calls. A check with the company telecommunications manager can allow for calls made to business only 900 number applications. 900 numbers which use a 555 extension are only allowed for business to business applications.
The number is 1-900-555-1515. Please print your return fax number in bold print on the document which you fax to us. Fax numbers printed in the letterhead are often transmitted as unreadable characters.
PRE-CLEARANCE OF DOCUMENTS
A document proposed to be filed with this office may be reviewed upon request. An opinion regarding the probable filing disposition will be provided at no charge. Documents may be faxed to the office for pre-clearance.
MICROFICHE/MICROFILM
The Secretary of State's computer records are periodically reduced to microfiche and microfilm. Microfiche containing corporation, assumed name, limited partnership and limited liability company records are available for purchase. Microfilm rolls containing corporate reports are also available. Please contact our office about details and prices at (303) 894-2200 extension 300.
Microfiche is available which lists corporations by the registered agent.
SERVICE ON SECRETARY OF STATE - NOT PERMITTED
The Colorado Business Corporation Act and HB1131 makes service of process on a corporation much simpler. The Secretary of State is no longer the registered agent for service of process on a domestic or foreign profit or nonprofit corporation when the registered agent cannot be found through reasonable diligence.
Service of process on a corporation may now be accomplished by registered or certified mail, return receipt requested, addressed to the corporation at its principal office. Service is perfected on the earliest of:
(1.)The date the corporation receives the process, notice, or demand;