CERTIFICATE OF INCORPORATION
OF [CORPORATION NAME], INC.
(A Delaware Corporation)
Effective Date: [EFFECTIVE DATE]
[// GUIDANCE: File this Certificate of Incorporation (“Certificate”) with the Delaware Secretary of State pursuant to 8 Del. C. § 103 on or before the Effective Date. Confirm availability of the corporate name with the Division of Corporations prior to filing.]
TABLE OF CONTENTS
- Definitions
- Name
- Registered Office and Registered Agent
- Purpose
- Capitalization
- Board of Directors
- Limitation of Liability
- Indemnification
- Election Regarding Section 203
- Exclusive Forum Selection; Jury Waiver
- Amendments
- Incorporator
- Miscellaneous
1. DEFINITIONS
For purposes of this Certificate, the following terms have the meanings set forth below; capitalized terms used but not defined herein have the meanings ascribed to them in the Delaware General Corporation Law (“DGCL”).
“Certificate” means this Certificate of Incorporation, as amended or restated from time to time.
“Corporation” means [CORPORATION NAME], Inc., a Delaware corporation.
“Court of Chancery” means the Court of Chancery of the State of Delaware.
2. NAME
The name of the corporation is [CORPORATION NAME], Inc. (the “Corporation”).
3. REGISTERED OFFICE AND REGISTERED AGENT
The address of the Corporation’s registered office in the State of Delaware is [REGISTERED OFFICE STREET ADDRESS, CITY, COUNTY, DELAWARE ZIP], and the name of its registered agent at such address is [REGISTERED AGENT NAME].
[// GUIDANCE: A P.O. Box is insufficient. The registered agent must have a physical street address in Delaware.]
4. PURPOSE
The Corporation is organized to engage in any lawful act or activity for which a corporation may be organized under the DGCL. 8 Del. C. § 102(a)(3).
5. CAPITALIZATION
5.1 Authorized Shares. The total number of shares of capital stock that the Corporation is authorized to issue is [TOTAL AUTHORIZED SHARES] shares, each with a par value of [$0.000[X] per share], all of which shall be designated as Common Stock.
[// GUIDANCE: Insert additional classes/series of Preferred Stock if desired, together with designations, powers, preferences, and rights, or reserve “blank-check” authority to the Board under 8 Del. C. § 102(a)(4).]
5.2 No Preemptive Rights. No holder of stock of the Corporation shall have any preemptive or preferential right to purchase or subscribe for any unissued stock or other securities of the Corporation, unless and except as any such right may be provided for by resolution of the Board of Directors (the “Board”) or in one or more agreements approved by the Board.
6. BOARD OF DIRECTORS
6.1 General Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board, except as otherwise provided by law or this Certificate.
6.2 Number. The number of directors shall be fixed from time to time by resolution of the Board in the manner provided in the Bylaws of the Corporation.
6.3 Election and Term. Directors shall be elected at each annual meeting of stockholders for a term expiring at the next annual meeting of stockholders and until their successors are duly elected and qualified, unless the Bylaws provide for a classified board consistent with 8 Del. C. § 141(d).
6.4 Vacancies. Vacancies and newly created directorships may be filled only by a majority of the directors then in office, although less than a quorum, or by a sole remaining director.
7. LIMITATION OF LIABILITY
To the fullest extent permitted by 8 Del. C. § 102(b)(7) (as it may be amended or replaced), no director or officer of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director or officer, except for:
a. Any breach of the director’s or officer’s duty of loyalty to the Corporation or its stockholders;
b. Acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
c. Under § 174 of the DGCL; or
d. For any transaction from which such director or officer derived an improper personal benefit.
If the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors or officers, then the liability of a director or officer of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.
8. INDEMNIFICATION
8.1 Right to Indemnification. The Corporation shall indemnify, to the fullest extent permitted by the DGCL, any person who was or is made or is threatened to be made a party to any proceeding by reason of the fact that such person is or was a director or officer of the Corporation, or while a director or officer is or was serving at the request of the Corporation in any capacity for another enterprise (“Indemnitee”), against all liabilities and expenses reasonably incurred by such Indemnitee in connection with such proceeding.
8.2 Advancement of Expenses. The Corporation shall, to the fullest extent permitted by applicable law, advance to any Indemnitee expenses (including attorneys’ fees) incurred in defending any proceeding in advance of its final disposition, upon receipt of an undertaking by or on behalf of such Indemnitee to repay all amounts so advanced if it shall ultimately be determined that such Indemnitee is not entitled to be indemnified.
8.3 Non-Exclusivity. The rights to indemnification and advancement of expenses provided by this Article 8 shall not be exclusive of any other rights that any person may have.
8.4 Insurance. The Corporation may purchase and maintain insurance on behalf of any Indemnitee whether or not the Corporation would have the power to indemnify such person under the DGCL.
[// GUIDANCE: Review any D&O insurance policy to confirm that indemnification and advancement obligations align with carrier requirements.]
9. ELECTION REGARDING SECTION 203
The Corporation hereby elects [IN/OUT] of the applicability of 8 Del. C. § 203.
[// GUIDANCE:
• “IN” retains the anti-takeover protections of Section 203.
• “OUT” opts out entirely, which may be preferred by venture-backed startups or private companies.
If “OUT” is selected, insert: “The Corporation expressly elects not to be governed by § 203 of the DGCL.”]
10. EXCLUSIVE FORUM SELECTION; JURY WAIVER
10.1 Exclusive Forum. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery (or, if the Court of Chancery lacks subject-matter jurisdiction, any state court of the State of Delaware or, if no state court has jurisdiction, the federal court for the District of Delaware) shall, to the fullest extent permitted by law, be the sole and exclusive forum for:
a. any derivative action or proceeding brought on behalf of the Corporation;
b. any action asserting a breach of fiduciary duty owed by any director, officer, employee, or agent of the Corporation;
c. any action asserting a claim arising under the DGCL, this Certificate, or the Bylaws; and
d. any action asserting a claim governed by the internal-affairs doctrine.
10.2 Personal Jurisdiction; Service of Process. Each person or entity purchasing or otherwise acquiring any interest in shares of the Corporation shall be deemed to have notice of, and consented to, the provisions of this Article 10.
10.3 Jury Trial Waiver. To the fullest extent permitted by applicable law, the stockholders of the Corporation waive any right to trial by jury in any action or proceeding brought in accordance with this Article 10.
[// GUIDANCE: Chancery Court proceedings are bench trials; the waiver reinforces stockholder consent to non-jury adjudication.]
11. AMENDMENTS
The Corporation reserves the right to amend, alter, change, or repeal any provision contained in this Certificate, in the manner now or hereafter prescribed by the DGCL, and all rights conferred on stockholders herein are granted subject to this reservation.
12. INCORPORATOR
The name and mailing address of the sole incorporator are:
Name: [INCORPORATOR NAME]
Address: [INCORPORATOR STREET ADDRESS, CITY, STATE ZIP]
13. MISCELLANEOUS
13.1 Severability. If any provision of this Certificate is held invalid under applicable law, such invalidity shall not affect any other provision, and this Certificate shall be construed as if such invalid provision were omitted.
13.2 Headings. Headings are for reference purposes only and shall not limit or otherwise affect the meaning hereof.
EXECUTION
IN WITNESS WHEREOF, the undersigned, being the incorporator hereinbefore named, has executed this Certificate of Incorporation on [DATE OF EXECUTION] and affirm(s) under penalty of perjury that the foregoing is true and correct.
[INCORPORATOR NAME]
Sole Incorporator
[// GUIDANCE:
1. The incorporator must sign the Certificate prior to submission.
2. Electronically file via the Delaware Division of Corporations’ e-Corp system or submit paper filing with cover sheet and fee.
3. After filing, hold an organizational meeting of the incorporator to adopt Bylaws, appoint the initial Board, and attend to other formation matters.]