INCORPORATING IN USA
ARTICLES OF INCORPORATION
FOR A NON-PROFIT CORPORATION
The secretary of state has promulgated a form designed to meet the minimal filing requirements of the relevant statutory provisions; use of this form is permissive. This form may not meet the particular requirements of a specific transaction. This form does not contain certain provisions or statements required by the IRS when determining tax-exempt status. If you plan to seek a federal tax exemption, you may wish to obtain further information from the IRS before use of any standardized form. The form and the information provided is not intended to provide legal or business advice and is not a substitute for the services of an attorney or tax specialist. If you have concerns or legal questions regarding a specific transaction, you should consult a private attorney.
GUIDELINES FOR THE PREPARATION AND FILING
OF ARTICLES OF INCORPORATION FOR
A NON-PROFIT CORPORATION
1. CORPORATE NAME
a. The NPCA provides that the name of a non-profit corporation cannot be the same as, deceptively similar to, or similar to that of an existing domestic corporation (profit or non-profit), foreign corporation authorized to transact business in Delaware (profit or non-profit), a name reservation, or name registration. The Delaware Business Corporation Act, Delaware Limited Liability Company Act, and the Delaware Revised Limited Partnership Act each provide that the names of limited liability companies, corporations and limited partnerships cannot be the same, deceptively similar or similar.
b. A corporate name may be similar if a letter consenting to use of a similar name is obtained from the entity deemed to have the similar name. The letter of consent must be an unrestricted authorization for use of the name. The letter should be signed by a corporate officer, a limited liability company manager or member, or a general partner of a limited partnership and sent to the secretary of state with the articles of incorporation. The consenting entity should not send the letter of consent directly to the secretary of state as a separate transmission or mailing.
c. Please note that a letter of consent is an option with similar names only. If a name is the same as, or deceptively similar to that of an existing entity, the name will not be filed under any circumstances.
d. Unlike a business corporation, it is not necessary for a non-profit corporation to use one of the corporate endings (Corporation, Company, or Incorporated).
e. The secretary of state determines whether a proposed corporate name is available in accordance with the rules on entity names adopted and filed under the Administrative Procedure Act.
f. A corporate name may not include any word or phrase that implies a purpose not included in the articles of incorporation.
(1) Words appearing in a name that might imply an unlawful purpose are words that imply the rendition of an activity or profession that requires as a condition precedent the obtaining of a license when such license cannot lawfully be granted to a corporation. (E.g., "legal clinic" or the like.)
(2) A corporate name shall not include the word "lottery."
(3) Under the provisions of the Delaware Miscellaneous Corporation Laws Act, a corporation may not use any of the following words or any abbreviation of such word or words or words of the same or similar meanings in its corporate name without written approval of a Congressionally recognized Veterans organization: "Veteran," "Legion," Foreign," "Spanish," "Disabled," "War," and "World War."
(4) The words "Bank," "Banking," and the like, may not be used in a context which implies the purpose to exercise the powers of a bank. Further, the Delaware Department of Banking must pre-approve use of the term "banc" as a word or part of a word. The Department of Banking can advise you on use of "bank" or "banc" and their derivatives.
(5) The word "Trust" may not be used without the prior approval of the State Department of Banking.
(6) The Delaware Education Code prohibits the use of the terms, "college," "university," "seminary," "school of medicine," "medical school," "health science center," "school of law," "law school," and "law center." If a proposed name includes these terms, or terms of similar meaning, whether in English or another language, the entity must obtain the prior approval of the Delaware Higher Education Coordinating Board.
(7) State and federal laws generally preclude the use of the words "Olympic," "olympiad," or "olympian" unless authorized by the United States Olympic Committee.
2. NON-PROFIT STATUS
The articles must state that the corporation is a non-profit corporation. It is not sufficient to indicate that the corporation is organized for non-profit purposes or for the preamble to simply make reference to incorporation under NPCA.
The duration of the non-profit corporation may be perpetual, a term of years, or a date certain.
a. The NPCA allows a non-profit corporation to be organized for any lawful purposes, which purposes must be fully stated in the articles of incorporation. Consequently, it is not sufficient to use the general language commonly included in the articles for a business corporation, that is, "any or all lawful purposes." The secretary of state will accept the statement of purposes suggested by the Internal Revenue Service.
b. Permissible purposes for a non-profit corporation include: charitable, benevolent, religious, eleemosynary, patriotic, civic, missionary, educational, scientific, social, fraternal, athletic, aesthetic, agricultural and horticultural; and the conduct of professional, commercial, industrial or trade associations; and animal husbandry.
c. A non-profit corporation may not be organized for the following purposes: hospital service, rural credit unions, agricultural and livestock pools, mutual loan corporations, co-operative credit associations, farmers' co-operative societies, co-operative marketing corporations, rural electric co-operatives, telephone co-operatives, lodges, banks, insurance companies, or water supply corporations.
d. Doctors of medicine and osteopathy licensed by the Delaware State Board of Medical Examiners and podiatrists licensed by the Delaware State Board of Podiatric Medical Examiners may form a non-profit corporation that is jointly owned, managed, and controlled by those practitioners to perform a professional service that falls within the scope of the practice of those practitioners and consists of:
(1) carrying out research in the public interest in medical science, medical economics, public health, sociology, or a related field;
(2) supporting medical education in medical schools through grants or scholarships;
developing the capabilities of individuals or institutions studying, teaching, or practicing medicine, including podiatric medicine;
(3) delivering health care to the public; or
(4) instructing the public regarding medical science, public health, hygiene, or a related matter.
5. REGISTERED OFFICE/AGENT
a. A non-profit corporation is required to continuously maintain a registered agent and office for the purpose of service of process. The articles of incorporation must include a street or building address of the registered office and the name of the registered agent at that address.
b. The registered agent may be an individual resident of the state, a Delaware corporation, or a foreign corporation that is qualified to do business in Delaware. A corporation may not serve as its own registered agent. Only one registered agent may be named in the articles of incorporation.
c. The business office of the registered agent must be identical with the registered office. The address of a commercial business which provides "private mail box" services is not sufficient as a registered office address, unless the commercial enterprise is the business of the designated registered agent.
d. A post office box alone is not a sufficient address for the registered office. However, if the registered office is in a city with a population of less than 5,000, the secretary of state will accept an address other than a street address for the registered office.
a. The articles of incorporation must state the number of initial directors and their names and addresses. Directors must be natural persons. Directors need not be residents of the state or members of the corporation unless the articles of incorporation or the bylaws so require. If the corporation is to engage in an activity that is regulated or licensed, you may wish to verify prior to submission whether the regulatory/licensing authority has additional or specific requirements for directors or officers other than those established by the NPCA.
b. "Board of directors" means the of persons managing the corporate affairs, irrespective of the name by which the is designated, which may be any name appropriate to the customs, usages, or tenets of the corporation. If a non-profit corporation uses a designation other than directors, the articles should clearly identify that as the vested with management authority.
c. At least three directors are required for a non-profit corporation.
d. Provide the mailing or street address of each director. If privacy issues are a concern you should provide a business address or post office box address rather than a personal residence address.
e. A corporation shall be deemed to have vested the management of the affairs of the corporation in its board of directors in the absence of an express provision to the contrary in its articles of incorporation or by-laws. If the management of the affairs of the corporation will be vested in its members, a statement to that effect must be included in its articles of incorporation.
a. The articles should state the name and street or post office address of each incorporator. Only one incorporator is necessary for a non-profit corporation, but each incorporator listed must sign the articles.
b. Any existing religious society, charitable, benevolent, literary, or social association, or church may incorporate with the consent of a majority of its members, who shall authorize the incorporators to sign the articles of incorporation
c. Incorporators must be natural persons 18 years or older.
d. There are no residency requirements for incorporators.
e. The function of an incorporator is to sign the articles of incorporation and deliver the documents to the secretary of state. The NPCA provides a criminal penalty for the submission of a false or fraudulent document.
1. If the corporation will not have members, the articles of incorporation must include a statement to that effect.
2. If the management of the affairs of the corporation is to be vested in its members, the articles must include a statement to that effect.
3. If the corporation is to be authorized on its dissolution to distribute its assets other than to one or more organizations that are exempt under Section 501(c)(3) of the Internal Revenue Code, a statement describing the manner of distribution of the corporation's assets must be included.
EXAMPLE FOR ANALYSIS
ARTICLES OF INCORPORATION
of “YOUR FOUNDATION OR NON-PROFIT CORPORATION”
STATE CORPORATION COMMISSION
The undersigned natural person of the age of twenty-one years or more, acting as incorporator, adopts the following Articles of Incorporation pursuant to the State Non stock Corporations Act:
FIRST: The name of the corporation is “NAME” FOUNDATION
SECOND: The period of duration is perpetual.
THIRD: The Corporation is organized and will be operated exclusively for charitable and educational purposes within the meaning of 501(c)(3) of the Internal Revenue Code. (All references to sections in these Articles refer to the Internal Revenue Code of 1986 as amended or to comparable sections of subsequent internal revenue laws.) Specifically, the corporation is organized to XXXXXXXXX. In pursuance of these purposes it shall have the powers to carry on any business or other activity which may be lawfully conducted by a corporation organized under the Non stock Corporations Act, whether or not related to the foregoing purposes, and to do all things necessary, proper and consistent with maintaining tax exempt status under section 501(c)(3).
FOURTH: The Corporation may have one or more classes of members, the qualifications and rights, including voting rights, of which shall be designated in the bylaws.
FIFTH: The registered agent is NAME, who is a resident of the state of STATE and a director of the corporation, and the address of its initial registered office is ADDRESS, which is physically located in the county of COUNTY.
SIXTH: The number of directors constituting the initial Board of Directors is NUMBER, and the names and addresses, including street number, of the persons who are to serve as the initial directors until the first annual meeting, or until their successors are elected and qualified, are NAMES AND ADDRESSES OF INITIAL BOARD MEMBERS. The members of the Board of Directors shall be those individuals elected, from time to time, in accordance with the Bylaws. Directors shall elect their successors.
SEVENTH: The internal affairs of the corporation shall be regulated by its Board of Directors as described in the Bylaws. Upon dissolution of the corporation, its assets shall be disposed of exclusively for the purposes of the corporation or distributed to such organizations organized and operated exclusively for charitable purposes which shall, at the time, qualify as exempt organizations under section 501(c)(3).
EIGHTH: No part of the net earnings of the corporation shall inure to the benefit of or be distributed to any director, employee or other individual, partnership, estate, trust or corporation having a personal or private interest in the corporation. Compensation for services actually rendered and reimbursement for expenses actually incurred in attending to the affairs of this corporation shall be limited to reasonable amounts. No substantial amount of the activities of the corporation shall be the carrying on of propaganda, or otherwise attempting to influence legislation and this corporation shall not intervene in (including the publishing or distributing of statements) any political campaign on behalf of or in opposition to any candidate for public office. Notwithstanding any other provision of these Articles or of any Bylaws adopted there under, this corporation shall not take any action not permitted by the laws which then apply to this corporation.
NINTH: The name and address, including street and number, of the incorporator is:
IN WITNESS THEREOF, I have hereunto set my hand and seal
on this ........ day of ..................... 200X.
By: NAME, Incorporator
OFFSHORE INCORPORATION SERVICES
COMPANY FORMATION & MANAGEMENT SERVICES
TAX PLANNING AND ASSET PROTECTION SOLUTIONS
INTERNATIONAL BUSINESS COMPANIES
PRIVATE LIMITED COMPANIES
LIMITED LIABILITY COMPANIES
LIMITED LIABILITY PARTNERSHIPS
PRIVATE & FAMILY FOUNDATIONS
PANAMANIAN LICENSED FINANCIAL CORPORATIONS
NEW ZEALAND OFFSHORE FINANCIAL INSTITUTIONS
SECURE & CONFIDENTIAL NOMINEE STRUCTURES
INCORPORATION IN EUROPE AND
MAJOR INTERNATIONAL OFFSHORE CENTRES
WORLDWIDE FULL SERVICED VIRTUAL OFFICES