When a corporation wishes to change its name, there are many factors and details that must be considered, over and above ordering new company letterhead. This article will highlight many of these considerations. However, it is not intended to be an exhaustive guide. It is recommended that a corporation intending to change its name engage an experienced attorney to guide it through the process.
Choosing and reserving the name
The first step is choosing a name that is in compliance with the relevant statute of the business corporation law of the state of incorporation. Once chosen, the name should be reserved with the state secretary of state.
Next, the corporation’s articles of incorporation and bylaws should be reviewed for any unusual provisions concerning changing the name of the corporation. Normally both documents will need to be amended, for often the very first sentence of each will state the corporation’s name (e.g. “The name of the corporation is…”). Remember, if “(the ‘Company’)” appears after the corporation’s name, it must be included in the amendment as well.
Next, assuming there is no specific provision in the articles or bylaws relating to name changes, a corporation should review the website of the state secretary of state, which will likely list the requirements for a corporation to amend its charter. Many states require the filing of a name-changing Certificate of Amendment (“Certificate”) before any change will be effective.
Keep in mind that if the articles provide for a vote of a greater proportion of shareholders than is required under state law, then that greater proportion will override the statutory provision. Note that if the corporation is qualified in other states, a separate notice may be required for those states.
Securities agencies and SROs
If the corporation is a public company, it must file a preliminary proxy statement prior to an upcoming shareholders’ meeting giving notice that it will propose that its shareholders approve a name change. Once the shareholder vote has been held and the Certificate has been filed, the corporation should change its name on the SEC Electronic Data Gathering, Analysis, and Retrieval (EDGAR) system. After the corporation has entered the name change, the EDGAR Filer Support staff will review the change and confirm to the corporation when the change is effective. Note that despite this conformation, the change will not show up on EDGAR until a filing has been made.
Stock exchanges and other self-regulatory organizations
Each stock exchange and other self-regulatory organization has its own procedure regarding notification of name changes. Most stock exchanges wish to be notified as soon as the record date and the date of the shareholders’ meeting at which the change will be voted upon have been set. SROs such as Nasdaq and FINRA have their notification forms that must be submitted, and Nasdaq in particular requires the payment of a $2,500 fee. Corporations should contact all relevant SROs well in advance of the Certificate filing, to ensure a timely name and (if applicable) symbol transition.
CUSIP Service Bureau
The CUSIP Service Bureau should be notified of a corporation’s intent to change its name as soon as possible as in some cases, a new CUSIP number may be required. Once the Certificate or similar document has been filed, the CUSIP Service Bureau should be notified via email that the name change has taken place, with a filed copy of the Certificate attached, and a request made that the CUSIP Service Bureau inform as soon as possible as to whether a new CUSIP is necessary.
Note that any stock transfer agent should be contacted regarding a name change as soon as a new CUSIP number is assigned, if not before.
Given the high frequency of trademark litigation, it is important that when a corporation chooses a name, it runs a search using the trademark search tool on the website of the U.S. Patent and Trademark Office (USPTO). If the corporation’s logo is being updated, a recordation form should be filed with the USPTO for any new trademarks or service marks. The corporation may also wish to register a new domain name for its website in order to reflect its name change.
A corporation should notify the IRS of an upcoming name change on its current corporate income tax return (Form 1120). After the Certificate has been filed, a letter signed by an authorized person should be sent to the IRS notifying the agency of the name change, with a filed copy of the Certificate attached. State and local tax authorities should be notified as well.
Customers and suppliers
A simple email should be sufficient to notify customers and suppliers of the name change.
In addition to the above, corporations should also consider the following:
- issuing a press release announcing the name change, and posting the press release on the corporate website;
- whether to re-issue stock certificates or have them overprinted, the latter of which entails the covering over of the previous name and CUSIP number with the new name and CUSIP number (if applicable);
- notifying current shareholders that, assuming there is no mandatory exchange of stock certificates (which would be unusual for a larger company), it is not necessary for shareholders to surrender or exchange any stock certificates currently held as a result of the corporate name change; and
- notifying any other relevant entities, such as financial printers, rating agencies, Dun & Bradstreet, and any trade or community associations to which the corporation belongs, most of which can be notified via email.
After all of these steps have been completed, it’s time to order new letterhead.