Fill - Free fillable Form 202General Information: (Certificate of Formation Nonprofit Corporation) (Texas Secretary of State) PDF form

Form 202—General Information

(Certificate of Formation – Nonprofit Corporation)

The attached form is drafted to meet minimal statutory filing requirements pursuant to the relevant code

provisions. This form and the information provided are not substitutes for the advice and services of an

attorney and tax specialist.

Commentary

A nonprofit corporation is governed by titles 1 and 2 of the Texas Business Organizations Code (BOC).

Title 1, chapter 3, subchapter A, of the BOC governs the formation of a nonprofit corporation and sets

forth the provisions required or permitted to be contained in the certificate of formation. Nonprofit

corporations may be incorporated for any lawful purpose. Corporations formed for the purpose of

operating a nonprofit institution, including an institution devoted to a charitable, benevolent, religious,

patriotic, civic, cultural, missionary, education, scientific, social, fraternal, athletic, or aesthetic purpose,

may be formed and governed only as a nonprofit corporation under the BOC and not as a for-profit

corporation. In a nonprofit corporation, no part of the income of the corporation may be distributed to a

member, director or officer of the corporation.

Please note that this form cannot be used to form a corporation authorized by or under a special state

statute, such as a water supply corporation, a cemetery corporation or an industrial development

corporation.

Taxes: Nonprofit corporations are subject to a state franchise tax and federal income taxes unless an

exemption from those taxes is granted. For franchise tax information visit the web site of the

Comptroller of Public Accounts at www.window.state.tx.us/taxinfo/franchise/index.html. For

information on state tax exemption, including applications and publications, visit the Comptroller’s

Exempt Organizations web site at www.window.state.tx.us/taxinfo/exempt/index.html or call (800) 252-

5555. For information relating to federal income tax filing requirements, exemptions, federal employer

identification numbers, tax publications and forms call (800) 829-3676 or visit the Internal Revenue

Service (IRS) web site at www.irs.gov.

This form does not include any additional statements or provisions that the Texas Comptroller of Public

Accounts or the IRS may require as a condition to granting a tax-exempt status. Please refer to IRS

publication 557, “Tax-Exempt Status for Your Organization,” and Comptroller publication 96-1045,

“Guidelines to Texas Tax Exemptions,” for further information before completing this form.

Instructions for Form



Article 1—Entity Name and Type: Provide a corporate name. An organizational designation may

be used, but is not required. Under section 5.053 of the BOC, if the name chosen is the same as,

deceptively similar to, or similar to the name of any existing domestic or foreign filing entity, or any

name reservation or registration filed with the secretary of state, the document cannot be filed. The

administrative rules adopted for determining entity name availability (Texas Administrative Code,

title 1, part 4, chapter 79, subchapter C) may be viewed at www.sos.state.tx.us/tac/index.shtml. If

you wish the secretary of state to provide a preliminary determination on name availability, you may

call (512) 463-5555, dial 7-1-1 for relay services, or e-mail your name inquiry to

corpinfo@sos.state.tx.us. A final determination cannot be made until the document is received and

processed by the secretary of state. Do not make financial expenditures or execute documents based

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on a preliminary clearance. Also note that the preclearance of a name or the issuance of a certificate

of formation under a name does not authorize the use of a name in violation of another person’s

rights to the name.

 Article 2—Registered Agent and Registered Office: The registered agent can be either (option A)

a domestic entity or a foreign entity that is registered to do business in Texas or (option B) an

individual resident of the state. The corporation cannot act as its own registered agent; do not enter

the corporate name as the name of the registered agent.

Consent: Effective January 1, 2010, a person designated as the registered agent of an entity must

have consented, either in a written or electronic form, to serve as the registered agent of the entity.

Although consent is required, a copy of the person’s written or electronic consent need not be

submitted with the certificate of formation. The liabilities and penalties imposed by sections 4.007

and 4.008 of the BOC apply with respect to a false statement in a filing instrument that names a

person as the registered agent of an entity without that person’s consent. (BOC § 5.207)

Office Address Requirements: The registered office address must be located at a street address

where service of process may be personally served on the entity’s registered agent during normal

business hours. Although the registered office is not required to be the entity’s principal place of

business, the registered office may not be solely a mailbox service or telephone answering service

(BOC § 5.201).

 Article 3—Management: Except as provided by section 22.202 of the BOC, the affairs of a

nonprofit corporation are governed by a board of directors.

Board of Directors: The board of directors may be designated by any name appropriate to the

customs, usages, or tenets of the corporation. If managed by a board of directors, three directors are

required. A director must be a natural person; there are no residency requirements for directors. Set

forth the name of the individual in the format specified. Do not use prefixes (e.g., Mr., Mrs., Ms.).

Use the suffix box only for titles of lineage (e.g., Jr., Sr., III) and not for other suffixes or titles (e.g.,

M.D., Ph.D.).

Please note that a document on file with the secretary of state is a public record that is subject to public

access and disclosure. When providing address information for directors, use a business or post office

box address rather than a residence address if privacy concerns are an issue.

Managed by Members: A nonprofit corporation is considered to have vested the management of the

corporation in the board of directors unless otherwise provided in the certificate of formation. This

certificate of formation also may be used to create a nonprofit corporation that is managed solely by

its members. If management of the corporation is to be vested in the nonprofit corporation’s

members, a statement to that effect must be included in the certificate. If the nonprofit corporation is

to be governed solely by its members, check the appropriate statement and proceed to Article 4 of

this form. The fact that the individuals named on the board of directors are also members of the

nonprofit entity does not mean that the corporation is governed by its members.

Article 4—Members: If the corporation will not have members, the certificate of formation must

include a statement to that effect. If management of the affairs of the corporation is vested in its

members, you also must check statement A in Article 4 of this form. Checking statement B in

Article 4 is inconsistent with a corporation that is managed by its members and will result in a

rejection of the instrument.

Form 202

 Article 5—Purpose: State the purpose of the corporation in the space provided. A nonprofit

corporation may be formed for any lawful purpose or purposes not expressly prohibited under title 1,

chapter 2, or title 2, chapter 22, of the BOC, which may be stated as “any or all lawful purposes” in

the space provided. While the BOC allows formation with a general purpose, please note that other

laws, including the Texas Tax Code and the Internal Revenue Code, may require that the certificate

of formation include a more specific purpose statement as a basis for granting a license or a tax-

exempt or tax-deductible status. An additional text area is provided to include any additional

language or additional provisions that may be needed. In addition, the “Supplemental

Provisions/Information” section may be used if the additional text area provided in this section is not

sufficient.

 Supplemental Provisions/Information: Additional space has been provided for additional text to

an article within this form or to provide for additional articles to contain optional provisions. This

space also may be used to provide for additional statements or provisions needed by the Texas Tax

Code or Internal Revenue Code as a basis for granting a tax-exempt or tax-deductible status.

Manner of Distribution: Section 22.304 of the BOC provides that after all liabilities and

obligations of the corporation in the process of winding up are paid, satisfied, and discharged in

accordance with chapter 11 of the BOC, the property of the corporation shall be applied and

distributed as follows:

 Property held by the corporation on a condition requiring return, transfer, or conveyance because

of the winding up or termination shall be returned, transferred, or conveyed in accordance with

that requirement; and

 The remaining property shall be distributed only for tax-exempt purposes to one or more

organizations that are exempt under Section 501(c)(3), or described by Section 170(c)(1) or (2)

of the Internal Revenue Code as provided in a plan of distribution adopted by the corporation

under the BOC unless the certificate of formation provides otherwise.

If the corporation is not applying and distributing its property in accordance with section 22.304,

the certificate of formation must include a statement describing the manner of distribution in the

Supplemental Provisions/Information section of this form. If the space provided is not sufficient, an

addendum may be included and attached to this form.

Duration: Pursuant to section 3.003 of the BOC, a Texas nonprofit corporation exists perpetually

unless provided otherwise in the certificate of formation. If formation of a corporation with a stated

period of duration is desired, use the “Supplemental Provisions/Information” section of this form to

provide for a limited duration.

 Organizer: Only one organizer is required for the formation of a nonprofit corporation. An

organizer may be any person having the capacity to contract for the person or for another; that is, a

natural person 18 years of age or older, or a corporation or other legal entity. There are no residency

requirements for an organizer.

 Effectiveness of Filing: A certificate of formation becomes effective when filed by the secretary of

state (option A). However, pursuant to sections 4.052 and 4.053 of the BOC the effectiveness of the

instrument may be delayed to a date not more than ninety (90) days from the date the instrument is

signed (option B). The effectiveness of the instrument also may be delayed on the occurrence of a

future event or fact, other than the passage of time (option C). If option C is selected, you must state

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the manner in which the event or fact will cause the instrument to take effect and the date of the 90

day after the date the instrument is signed. In order for the certificate to take effect under option C,

the entity must, within ninety (90) days of the filing of the certificate, file with the secretary of state

a statement regarding the event or fact pursuant to section 4.055 of the BOC.

On the filing of a document with a delayed effective date or condition, the computer records of the

secretary of state will be changed to show the filing of the document, the date of the filing, and the

future date on which the document will be effective or evidence that the effectiveness was

conditioned on the occurrence of a future event or fact. In addition, at the time of such filing, the

status of the entity will be shown as “in existence” on the records of the secretary of state.

 Execution: The organizer must sign the certificate of formation, but it does not need to be notarized.

However, before signing, please read the statements on this form carefully. The designation or

appointment of a person as registered agent by an organizer is an affirmation that the person named

in the certificate of formation has consented to serve in that capacity. (BOC § 5.2011, effective

January 1, 2010)

A person commits an offense under section 4.008 of the BOC if the person signs or directs the filing

of a filing instrument the person knows is materially false with the intent that the instrument be

delivered to the secretary of state for filing. The offense is a Class A misdemeanor unless the

person’s intent is to harm or defraud another, in which case the offense is a state jail felony.

 Payment and Delivery Instructions: The filing fee for a certificate of formation for a nonprofit

corporation is $25. Fees may be paid by personal checks, LegalEase debit cards, or American

Express, Discover, MasterCard, and Visa credit cards. Checks or money orders must be payable

through a U.S. bank or financial institution and made payable to the secretary of state. Fees paid by

credit card are subject to a statutorily authorized convenience fee of 2.7 percent of the total fees.

Submit the completed form in duplicate along with the filing fee. The form may be mailed to P.O.

Box 13697, Austin, Texas, 78711-3697; faxed to (512) 463-5709; or delivered to the James Earl

Rudder Office Building, 1019 Brazos, Austin, Texas 78701. If a document is transmitted by fax,

credit card information must accompany the transmission (Form 807). On filing the document, the

secretary of state will return the appropriate evidence of filing to the submitter together with a file-

stamped copy of the document, if a duplicate copy was provided as instructed.

 Registered Agent/Office: A corporation is required to maintain a registered agent and a registered

office address in Texas. If the registered agent or registered office address changes, it is important to

file a statement with the secretary of state to effect a change to the certificate of formation. Failure

to maintain a registered agent and registered office may result in the involuntary termination of the

corporation.

 Periodic Reports: Under section 22.357 of the BOC, the secretary of state may require a nonprofit

corporation to file a report not more often than once every four years. The secretary of state will

send notice to the corporation at its registered office as to the time the report is due. Failure to file

the report when requested to do so by the secretary will result in the involuntary termination of the

corporation.

 Information for Public Inspection: Records, books and annual reports of the corporation’s

financial activity are required to be maintained at the registered office or principal office for three

years after the close of a fiscal year. The corporation shall make those documents available to the

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public for inspection and copying during regular business hours and may charge a reasonable fee for

preparing a copy of those records. Failure to maintain those records, prepare an annual report or

make the record or report available to the public is a Class B misdemeanor. These provisions do not

apply to those corporations exempted under section 22.355 of the BOC. Also note that a nonprofit

corporation supported in whole or in part by public funds or that spends public funds is considered a

governmental body under chapter 552 of the Government Code (Public Information Act) and thus

subject to the provisions of that Act regarding access to public information. In addition, a property

owner’s association may also be subject to the Public Information Act pursuant to section 552.0035

of the Government Code.

Revised 05/11

Form 202

This space reserved for office use.

Certificate of Formation

Nonprofit Corporation

Form 202

(Revised 05/11)

Submit in duplicate to:

Secretary of State

P.O. Box 13697

Austin, TX 78711-3697

512 463-5555

FAX: 512/463-5709

Filing Fee: $25

Article 1 – Entity Name and Type

The filing entity being formed is a nonprofit corporation. The name of the entity is:

Article 2 – Registered Agent and Registered Office

(See instructions. Select and complete either A or B and complete C.)

A. The initial registered agent is an organization (cannot be entity named above) by the name of:

B. The initial registered agent is an individual resident of the state whose name is set forth below:

First Name M.I. Last Name Suffix

C. The business address of the registered agent and the registered office address is:

Street Address City State

Zip Code

Article 3 – Management

The management of the affairs of the corporation is vested in the board of directors. The number of

directors constituting the initial board of directors and the names and addresses of the persons who are

to serve as directors until the first annual meeting of members or until their successors are elected and

qualified are as follows:

A minimum of three directors is required.

Director 1

First Name M.I. Last Name Suffix

Street or Mailing Address City State Zip Code Country

Form 202

Director 2

First Name M.I. Last Name Suffix

Street or Mailing Address City State Zip Code Country

Director 3

First Name M.I. Last Name Suffix

Street or Mailing Address City State Zip Code Country

The management of the affairs of the corporation is to be vested in the nonprofit corporation’s

members.

Article 4 – Membership

(See instructions. Do not select statement B if the corporation is to be managed by its members.)

A. The nonprofit corporation shall have members.

B. The nonprofit corporation will have no members.

Article 5 – Purpose

(See instructions. This form does not contain language needed to obtain a tax-exempt status on the state or federal level.)

The nonprofit corporation is organized for the following purpose or purposes:

The following text area may be used to include any additional language or provisions that may be needed to obtain tax-exempt status.

Form 202

Supplemental Provisions/Information

(See instructions.)

Text Area: [The attached addendum, if any, is incorporated herein by reference.]

Organizer

The name and address of the organizer:

Name

Street or Mailing Address City State Zip Code

Effectiveness of Filing (Select either A, B, or C.)

A. This document becomes effective when the document is filed by the secretary of state.

B. This document becomes effective at a later date, which is not more than ninety (90) days from

the date of signing. The delayed effective date is:

C. This document takes effect upon the occurrence of a future event or fact, other than the

passage of time. The 90

day after the date of signing is:

The following event or fact will cause the document to take effect in the manner described below:

Execution

The undersigned affirms that the person designated as registered agent has consented to the

appointment. The undersigned signs this document subject to the penalties imposed by law for the

submission of a materially false or fraudulent instrument and certifies under penalty of perjury that the

undersigned is authorized to execute the filing instrument.

Date:

Signature of organizer

Printed or typed name of organizer

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