Every certificate of formation for a nonprofit corporation formed and governed by the BOC must contain the information required under sections 3.005 and 3.009, namely:
The name of the filing entity to be formed.
A statement that the entity to be formed is a nonprofit corporation.
Each Secretary of State form (hereinafter “SOS form”) promulgated for the formation of a domestic entity specifically identifies the type of filing entity as a preprinted statement within the form.
When drafting a certificate of formation for a corporation remember to specifically identify the type of corporation being formed. The term “corporation” includes a for-profit corporation, professional corporation, and a nonprofit corporation; it is not sufficient to simply identify the filing entity as a “corporation.”
The purpose of the entity, which may be stated as “any lawful purpose for which a nonprofit corporation may be formed under the BOC.”
If the corporation is to have no members, a statement to that effect.
If management of the affairs of the corporation is to be vested in the nonprofit corporation’s members, a statement to that effect.
The names and addresses of the initial board of directors of the corporation, which must be at least three (3) individuals. Alternatively, if the management of the corporation is to be vested solely in its members, a statement to that effect.
The period of duration of the entity, if not perpetual. Pursuant to section 3.003 of the BOC, a domestic filing entity exists perpetually unless otherwise provided in its certificate of formation. An SOS form for the formation of an entity does not contain a provision for the limitation of duration of the entity. If you wish to limit the duration of the filing entity, you may provide for a limited duration in the “Supplemental Provisions/Information” section of the SOS form.
The registered office street address and the name of the registered agent at such office address.
If the nonprofit corporation is to be authorized on its winding up to distribute the corporation’s assets in a manner other than as provided by section 22.304, a statement describing the manner of distribution.
The name and address of each organizer. Generally, only one organizer is required for a nonprofit corporation that is created and governed by the BOC.
Section 3.004 of the BOC sets forth the general requirements for organizers. An organizer may be a natural person 18 years of age or older, or a corporation or other legal entity.
Although there are no residency requirements for an organizer under the BOC, other state or federal law may require an organizer, owner, or governing person to meet additional or more restrictive requirements.
Any supplemental information required to be included in the certificate of formation for the entity type. (See item 2 below.)
Any other information or provisions not inconsistent with the law governing the entity relating to the organization, ownership, governance, business, or affairs of the entity.
The minimum requirements for a certificate of formation for a nonprofit corporation are included in SOS form 202. The form however does not include language that would be required by the Internal Revenue Service for purposes of obtaining a tax-exempt status. For further information on how to obtain a tax-exempt status for your organization, please refer to the IRS publication 557, which is available from the IRS web site at http://www.irs.gov/pub/irspdf/p557.pdf. It is recommended that this publication be consulted before drafting and submitting the certificate of formation.
Do not use SOS form 202 if forming a special purpose nonprofit corporation, such as a local government corporation, water supply corporation, or cemetery corporation. The statutes authorizing creation of a special purpose corporation generally impose additional or different requirements for formation than the requirements found in chapter 3 of the BOC; review the statute authorizing the formation of the special purpose corporation for specific requirements.