The existence of a corporation begins when the Articles of
Organization become effective. The Articles of Organization consist of a form
provided by the Division which, when properly completed and filed with the
Division with the proper fee become evidence of incorporation.
(1) The clerks of the Division in their
examination of the Articles of Organization have been directed to check for the
following information:
(a) That the
incorporator(s) associate themselves with the intention of forming a
corporation. The names and post office address of each incorporator must be
included. If a corporation is an incorporator, state the jurisdiction of
organization and the post office address of the corporation. An officer of the
corporation must sign the Articles;
(b) The exact name of the corporation. The
name must include the word "Incorporated", "Corporation" or "Limited" either
abbreviated or spelled in full. It cannot be the same name or one so similar as
likely to be mistaken for the name or trade name of another domestic or foreign
corporation, person, firm, or association carrying on business in the
Commonwealth at the present time or within three years prior thereto, except
with the written consent of said corporation, firm, association or persons
previously filed with the Division. A written consent must bear the original
signature of the consenting party. A consent issued by a corporation must be
signed by an officer of the corporation;
(c) The purposes for which the corporation is
formed. The Articles must include at least one specific purpose;
(d) The total number of shares and the par
value, if any, of each class of stock which the corporation is authorized to
issue;
(e) If more than one class
of stock is authorized, a distinguishing designation for each class and, prior
to the issuance of any shares of a class, if shares of any other class are
outstanding, a description of the preferences, voting powers, qualifications,
special or relative rights or privileges as to each class thereof and any
series then established;
(f) The
street address of the initial principal office of the corporation in the
Commonwealth;
(g) The name,
residence, and post office address of each of the initial directors and the
president, treasurer, and clerk of the corporation;
(h) The date of the fiscal year of the
corporation initially adopted;
(i)
The name and business address of the resident agent, if any, of the
corporation.
In accordance with M.G.L. c. 156B, § 13, the information
listed in 950 CMR 104.03(1)(f) through 104.03(1)(i) shall not for any purpose
be treated as a permanent part of the Articles of Organization. For information
relative to changes in that part of the Articles, see
950 CMR
104.08.
(2) The Articles of Organization, in
addition, may include the following information:
(a) Any restrictions imposed upon the
transfer of shares of stock of any class;
(b) Any other lawful provisions for the
conduct and regulation of the business and affairs of the corporation, for its
voluntary dissolution, or for limiting, defining, or regulating the powers of
the corporation, or of its directors or stockholders, or of any class of
stockholders.
(c) A provision
eliminating or limiting the personal liability of a director to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as
director notwithstanding any provision of laws imposing such liability,
provided however that such provision shall not limit or eliminate the liability
of a director;
1. for any breach of the
director's duty of loyalty to the corporation or its stockholders;
2. for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law;
3. under section sixty-one or sixty-two;
or
4. for any transaction from
which the director derived an improper personal benefit.
Articles of Organization shall become effective upon the
endorsement of approval by the Division and payment of the proper fee. The fee
shall be deemed to have been paid when it is entered with the cashier. The
Articles of Organization may specify a later effective date not more than 30
days after the date of filing. Articles of Organization presented for filing in
proper form and accompanied by the appropriate fee before 4:00 pm may be
approved by the Division on the day of presentation, subject to the volume of
business handled on each particular day.
If space on the form on which the Article of Organization are
filed is not adequate for the writing required by the applicant then additional
information shall be inserted on separate sheets of paper of the size of
81/2 by 11 inches pursuant to
950 CMR
103.05.
The Division shall send a copy of the approved Articles of
Organization to the corporation within 60 days after filing. The name, address,
and telephone number of the person to whom the said copy is to be sent should
be listed on the back page of the Articles of Organization.
