Articles of Incorporation - Delaware (Certificate of Incorporation)

CERTIFICATE OF INCORPORATION

OF [________________________________]

(A Delaware Corporation)

TABLE OF CONTENTS

1. Name
2. Registered Office and Agent
3. Purpose
4. Authorized Capital Stock
5. Board of Directors
6. Incorporator
7. Exculpation of Directors and Officers
8. Indemnification
9. Bylaws
10. Preemptive Rights
11. Optional Provisions
12. Delaware Division of Corporations Filing Procedures
13. Execution

DELAWARE DIVISION OF CORPORATIONS — FILING CHECKLIST

Before filing, prepare the following:

☐ Certificate of Incorporation (this document)
☐ Filing Fee — Minimum $89 for standard filing (calculated based on authorized shares under DGCL § 391; verify current fees at https://corp.delaware.gov/fee/)
☐ Registered Agent — Must be a Delaware resident or entity authorized to do business in Delaware
☐ Name Availability — Verify name availability at https://icis.corp.delaware.gov/ecorp/entitysearch/namesearch.aspx

Filing Methods:
☐ Online at https://corp.delaware.gov
☐ By mail to: Delaware Division of Corporations, John G. Townsend Building, 401 Federal Street, Suite 4, Dover, DE 19901
☐ Through a registered agent or incorporation service

Expedited Processing (DGCL § 391):
☐ Same-Day Service — $100 expedite fee (in addition to filing fee)
☐ 24-Hour Service — $50 expedite fee
☐ Standard Processing — varies by current workload

ARTICLE I — NAME

The name of the corporation is:

[________________________________]

(the "Corporation")

Delaware Name Requirements (DGCL § 102(a)(1)):

• The name must contain the word "Association," "Company," "Corporation," "Club," "Foundation," "Fund," "Incorporated," "Institute," "Society," "Union," "Syndicate," or "Limited," or an abbreviation thereof
• The name must be distinguishable from other entity names on file with the Delaware Division of Corporations

ARTICLE II — REGISTERED OFFICE AND AGENT

2.1 The address of the Corporation's registered office in the State of Delaware is:

[________________________________]
[________________________________], Delaware [________]

in the County of [________________________________].

2.2 The name of the Corporation's registered agent at such address is:

[________________________________]

Delaware Registered Agent Requirements (DGCL § 132):

• Every Delaware corporation must maintain a registered agent in Delaware
• The registered agent may be (i) an individual who is a resident of Delaware, (ii) a domestic corporation, or (iii) a foreign corporation authorized to transact business in Delaware
• The registered agent must maintain a business office at the registered office address
• The registered agent may be changed by filing a certificate of change of agent with the Delaware Secretary of State

ARTICLE III — PURPOSE

The Corporation is organized for the purpose of engaging in any lawful act or activity for which a corporation may be organized under the General Corporation Law of the State of Delaware ("DGCL").

ARTICLE IV — AUTHORIZED CAPITAL STOCK

4.1 Authorized Shares. The total number of shares of all classes of capital stock which the Corporation shall have authority to issue is [________________________________] shares, divided as follows:

☐ Option A: Single Class of Common Stock

☐ Option B: Common and Preferred Stock

4.2 Common Stock. Each share of Common Stock shall entitle the holder thereof to one (1) vote on each matter submitted to a vote of the stockholders. The holders of Common Stock shall be entitled to receive such dividends as may be declared by the Board of Directors from time to time out of funds legally available therefor, subject to the prior rights of any Preferred Stock.

4.3 Preferred Stock — Blank Check Authorization. The Board of Directors is hereby expressly authorized, by resolution or resolutions, to provide out of the unissued shares of Preferred Stock for one or more series of Preferred Stock and, with respect to each such series, to fix the number of shares constituting such series, the designation of such series, and the powers, preferences, and rights of the shares of such series, and the qualifications, limitations, and restrictions thereof, including without limitation:

(a) The rate of dividends and whether dividends shall be cumulative;
(b) The terms and conditions of redemption, including redemption price(s);
(c) The amount payable on liquidation;
(d) Sinking fund provisions for redemption or purchase;
(e) Conversion rights; and
(f) Voting rights, if any.

Such authority is granted pursuant to DGCL § 102(a)(4).

4.4 Filing Fee Calculation. The filing fee for the Certificate of Incorporation is calculated based on the number of authorized shares under DGCL § 391:

• Shares with par value: up to 20,000 shares — $0.02/share; 20,001 to 200,000 — $0.01/share; above 200,000 — $0.004/share
• Shares without par value: up to 20,000 — $0.01/share; 20,001 to 2,000,000 — $0.005/share; above 2,000,000 — $0.004/share
• Minimum filing fee: $15
• Base receiving/filing/indexing fee: $25, plus $9 per page

Practice Note: Many Delaware corporations authorize a large number of shares with a low par value (e.g., $0.0001) to minimize annual franchise taxes while providing flexibility. Consult with Delaware counsel regarding the optimal share structure for franchise tax purposes.

ARTICLE V — BOARD OF DIRECTORS

5.1 Management of Business. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, as provided in DGCL § 141.

5.2 Number of Directors. The number of directors shall be fixed from time to time exclusively by resolution of the Board of Directors. The initial Board of Directors shall consist of [____] director(s).

☐ 5.3 Classified Board (Optional). The directors shall be divided into three (3) classes, as nearly equal in number as possible, designated Class I, Class II, and Class III. The initial Class I directors shall serve for a term expiring at the first annual meeting of stockholders following the effectiveness of this Certificate. The initial Class II directors shall serve for a term expiring at the second annual meeting. The initial Class III directors shall serve for a term expiring at the third annual meeting. At each annual meeting thereafter, directors elected to succeed those whose terms expire shall serve for three-year terms.

☐ 5.4 Removal of Directors. Except as otherwise provided by statute:

☐ (a) Directors may be removed with or without cause by the stockholders.

☐ (b) [If classified board is elected] Directors may be removed only for cause by the stockholders.

5.5 Vacancies. Any vacancy on the Board of Directors, however occurring, and any newly created directorship, may be filled solely by the affirmative vote of a majority of the remaining directors, even if less than a quorum, or by a sole remaining director. A director elected to fill a vacancy shall hold office until the next election of the class for which such director has been chosen.

5.6 Written Consent. Unless otherwise restricted by this Certificate, any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if all members of the Board consent thereto in writing.

ARTICLE VI — INCORPORATOR

The name and mailing address of the sole incorporator is:

Name: [________________________________]
Address: [________________________________]
[________________________________]

ARTICLE VII — EXCULPATION OF DIRECTORS AND OFFICERS

7.1 Director Exculpation. A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability:

(a) For any breach of the director's duty of loyalty to the Corporation or its stockholders;

(b) For acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;

(c) Under Section 174 of the DGCL (unlawful payment of dividends or unlawful stock purchases or redemptions); or

(d) For any transaction from which the director derived an improper personal benefit.

7.2 Officer Exculpation (2022 Amendment). An officer of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as an officer, except for liability:

(a) For any breach of the officer's duty of loyalty to the Corporation or its stockholders;

(b) For acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;

(c) For any transaction from which the officer derived an improper personal benefit; or

(d) For any claim brought by or in the right of the Corporation (derivative claims).

Practice Note — DGCL § 102(b)(7) Amendment (Effective August 1, 2022). Delaware amended § 102(b)(7) to permit exculpation of certain officers in addition to directors. Unlike directors, officers may still be liable for breaches of the duty of care in derivative actions. The exculpation is limited to senior officers (president, chief executive officer, chief operating officer, chief financial officer, chief legal officer, controller, treasurer, chief accounting officer, and any other officer who has agreed to be identified as an officer for purposes of this provision). This provision should be reviewed with Delaware counsel.

ARTICLE VIII — INDEMNIFICATION

8.1 Right to Indemnification. The Corporation shall indemnify, to the fullest extent permitted by the DGCL, as it now exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment), any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (a "Proceeding"), by reason of the fact that such person is or was a director or officer of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee, or agent of another entity, against all expense, liability, and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) reasonably incurred or suffered by such person in connection with such Proceeding.

8.2 Advancement of Expenses. The Corporation shall, to the fullest extent not prohibited by applicable law, pay the expenses (including attorneys' fees) incurred by a director or officer in defending any Proceeding in advance of its final disposition; provided, however, that such payment shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision that such director or officer is not entitled to be indemnified under this Article or otherwise.

8.3 Non-Exclusivity. The right to indemnification and the advancement of expenses conferred by this Article shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, the Certificate of Incorporation, the Bylaws, any agreement, vote of stockholders or disinterested directors, or otherwise.

8.4 Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee, or agent of the Corporation against any liability asserted against and incurred by such person in such capacity, whether or not the Corporation would have the power to indemnify such person against such liability under the DGCL, as permitted by DGCL § 145(g).

8.5 Contractual Right. The rights conferred by this Article shall be contract rights that continue after a person has ceased to be a director or officer.

ARTICLE IX — BYLAWS

9.1 Adoption and Amendment. In furtherance and not in limitation of the powers conferred by the DGCL, the Board of Directors is expressly authorized to adopt, amend, or repeal the Bylaws of the Corporation, pursuant to DGCL § 109.

9.2 Stockholder Amendment. The stockholders shall also have the power to adopt, amend, or repeal the Bylaws; provided, however, that in addition to any vote of the holders of any class or series of stock required by law or by this Certificate, the affirmative vote of the holders of at least [a majority / sixty-six and two-thirds percent (66-2/3%)] of the voting power of all then-outstanding shares of stock entitled to vote generally in the election of directors, voting together as a single class, shall be required to adopt, amend, or repeal any Bylaw.

ARTICLE X — PREEMPTIVE RIGHTS

☐ Option A: No Preemptive Rights. No stockholder shall have any preemptive right to subscribe to an additional issue of stock or to any security convertible into such stock.

☐ Option B: Preemptive Rights Granted. Each stockholder shall have preemptive rights as provided in the Bylaws.

Practice Note: Under DGCL § 102(b)(3), preemptive rights do not exist unless expressly granted in the certificate of incorporation. Most Delaware corporations do not grant preemptive rights.

ARTICLE XI — OPTIONAL PROVISIONS

☐ 11.1 Exclusive Forum — Delaware Courts. Unless the Corporation consents in writing to the selection of an alternative forum, (a) the Court of Chancery of the State of Delaware (or, if the Court of Chancery does not have jurisdiction, the Superior Court of the State of Delaware, or, if the Superior Court of the State of Delaware does not have jurisdiction, the United States District Court for the District of Delaware) shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any current or former director, officer, or other employee of the Corporation to the Corporation or the Corporation's stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL or this Certificate or the Bylaws, or (iv) any action asserting a claim governed by the internal affairs doctrine; and (b) the federal district courts of the United States of America shall be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act of 1933, as amended.

☐ 11.2 Stockholder Action by Written Consent. Any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice, and without a vote, if a consent or consents in writing, setting forth the action so taken, are signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize such action at a meeting at which all shares entitled to vote thereon were present and voted.

☐ 11.3 No Action by Written Consent (Alternative). No action required or permitted to be taken by the stockholders may be effected by consent in writing in lieu of a meeting.

☐ 11.4 Special Meetings. Special meetings of the stockholders may be called only by the Board of Directors, the Chairman of the Board, or the Chief Executive Officer.

☐ 11.5 Opt-Out of DGCL § 203 (Business Combinations). The Corporation opts out of Section 203 of the DGCL.

☐ 11.6 Duration. The Corporation shall have perpetual existence.

ARTICLE XII — DELAWARE DIVISION OF CORPORATIONS FILING PROCEDURES

12.1 Filing. The Certificate of Incorporation shall be filed with the Delaware Secretary of State, Division of Corporations.

12.2 Effective Date. Under DGCL § 103, the Certificate becomes effective upon filing, unless a later effective date (not more than 90 days after the date of filing) is specified in the Certificate.

12.3 Filing Fee Structure (DGCL § 391). The minimum fee for filing a Certificate of Incorporation is $89 (subject to change). The fee is calculated based on the number of authorized shares and par value. For the current fee schedule and a fee calculator, visit: https://corp.delaware.gov/fee/

12.4 Annual Franchise Tax. Delaware corporations must file an annual franchise tax report and pay the franchise tax by March 1 of each year. Franchise tax may be calculated using either:

(a) Authorized Shares Method: Based on the number of authorized shares; or
(b) Assumed Par Value Capital Method: Based on total gross assets and authorized shares.

Minimum annual franchise tax: $175 for the Authorized Shares Method. Consult Delaware counsel for the optimal calculation method.

12.5 Annual Report. Delaware corporations must file an annual report with the Division of Corporations. The annual report is filed together with the franchise tax payment by March 1 each year.

ARTICLE XIII — EXECUTION

IN WITNESS WHEREOF, the undersigned Incorporator has executed this Certificate of Incorporation on [__/__/____].

[________________________________]
[________________________________]
Incorporator

PRACTICE NOTES — WHY DELAWARE?

Advantages of Delaware Incorporation:

1. Court of Chancery. Delaware has a specialized Court of Chancery staffed by expert judges who hear corporate disputes without juries. This results in a well-developed, predictable body of corporate law.

2. Flexible Corporate Statute. The DGCL provides maximum flexibility for structuring corporate governance, including broad authorization for blank check preferred stock, classified boards, and officer/director exculpation.

3. Business-Friendly Environment. Delaware's Division of Corporations is efficient and responsive, with expedited filing options.

4. Established Case Law. Over a century of corporate case law provides clarity and predictability for directors, officers, and their counsel.

5. Officer Exculpation. The 2022 amendment to DGCL § 102(b)(7) permits exculpation of certain officers, a significant expansion of liability protection.

Considerations:

• Delaware franchise taxes can be significant for companies with large authorized share amounts
• A company not physically located in Delaware must qualify as a foreign corporation in its home state (e.g., Arizona) and maintain a registered agent in Delaware
• An Arizona company incorporating in Delaware must also register with the ACC as a foreign corporation to do business in Arizona

POST-INCORPORATION CHECKLIST

After the Certificate of Incorporation is filed with the Delaware Division of Corporations:

☐ Adopt Bylaws — The incorporator or the initial Board of Directors should adopt corporate bylaws
☐ Hold Organizational Meeting — Hold the initial board meeting to:

• Appoint officers
• Adopt bylaws
• Authorize issuance of stock
• Approve banking resolutions
• Ratify pre-incorporation actions
• Approve any stock option plans
• Select fiscal year

• Designate the Corporation's principal office
  ☐ Issue Stock — Issue shares to initial stockholders with appropriate stock purchase agreements
  ☐ Obtain EIN — Apply for a federal Employer Identification Number (IRS Form SS-4)
  ☐ Open Bank Account — Open a corporate bank account
  ☐ File S Corporation Election (if applicable) — File IRS Form 2553 within 75 days
  ☐ Qualify as Foreign Corporation — If operating in Arizona, register with the ACC as a foreign corporation authorized to transact business in Arizona (A.R.S. § 10-1501); maintain a statutory agent in Arizona
  ☐ Annual Franchise Tax — Mark calendar for March 1 deadline for annual franchise tax and report
  ☐ Stock Legends — Include appropriate legends on stock certificates for:

• Securities law restrictions

• Transfer restrictions from shareholder agreements
• Legends required by the Certificate of Incorporation

DELAWARE FRANCHISE TAX PLANNING

Authorized Shares Method vs. Assumed Par Value Capital Method:

The Delaware franchise tax can be calculated using either of two methods. The Corporation should calculate using both methods and pay the lower amount.

Method 1: Authorized Shares Method
| Authorized Shares | Tax Rate |
|---|---|
| 5,000 or fewer | $175 minimum |
| 5,001 to 10,000 | $250 |
| Each additional 10,000 shares (or fraction) | $85 |

Method 2: Assumed Par Value Capital Method
This method considers the corporation's gross assets (as reported on the federal tax return) and the total number of authorized and issued shares. The tax rate is $400 per million dollars (or fraction thereof) of assumed par value capital. Minimum tax: $400.

Practice Note: For companies with a large number of authorized shares but relatively low total assets, the Assumed Par Value Capital Method often yields a significantly lower franchise tax. Consult with Delaware counsel or an accountant to optimize the share structure.

Maximum Annual Franchise Tax: $200,000 per year (effective for tax years beginning after December 31, 2023).

COMMON CERTIFICATE PROVISIONS FOR DIFFERENT ENTITY TYPES

Startup / Venture-Backed Corporation:

• Blank check preferred stock authorization (for future financing rounds)
• Classified board (to provide director continuity)
• No stockholder action by written consent (to prevent hostile action)
• Exclusive forum provisions
• Officer exculpation

Closely Held / Private Corporation:

• Single class of common stock
• Unclassified board
• Action by written consent permitted
• Transfer restrictions referenced in the Certificate
• Preemptive rights (optional)

Pre-IPO Corporation:

• Dual-class voting structure (optional; common for tech companies)
• Advance notice bylaw provisions
• No stockholder action by written consent
• Exclusive forum provision (both Court of Chancery and federal forum)
• Anti-takeover provisions (poison pill authorization, classified board)

KEY DGCL SECTIONS — QUICK REFERENCE

SOURCES AND REFERENCES

• DGCL § 102 (Certificate of Incorporation): https://delcode.delaware.gov/title8/c001/sc01/
• DGCL § 102(b)(7) (Exculpation): https://delcode.delaware.gov/title8/c001/sc01/
• DGCL § 145 (Indemnification): https://delcode.delaware.gov/title8/c001/sc04/
• Delaware Division of Corporations — Fee Schedule: https://corp.delaware.gov/fee/
• Delaware Corporate Code Online: https://delcode.delaware.gov/title8/title8.pdf

This template is provided by ezel.ai for informational purposes only. It does not constitute legal advice. Delaware corporate law is highly specialized. Engage experienced Delaware counsel before filing.