Thank you, XXXXX XXXXX the additional information.
I am sorry to hear of your dilemma. I realize how frustrating this is for you and I hope to provide you information which is accurate and useful, even though it may not be the news you were hoping to get.
It is not really possible under Delaware law to remove a sitting director without notice to them.
Unlike many other jurisdictions
, Delaware does not have a separate code governing not-for-profit corporations
. Instead, not-for-profit corporations are governed by the same Delaware General Corporation
Law (the “DGCL”) that applies to for profit
corporations. Typically, although other entity options are available for forming a Delaware not-for-profit organization (such as a trust or a limited liability company), most Delaware not-for-profit entities choose to incorporate as a nonstock corporation (i.e.
, a corporation that is not authorized to issue capital
stock and that has “members” and a “governing body” rather than “shareholders
” and a “board of directors
Therefore, Delaware statutes provide:
§ 114. Application of chapter to nonstock corporations.
(a) Except as otherwise provided in subsections (b) and (c) of this section, the provisions of this chapter shall apply to nonstock corporations in the manner specified in the following paragraphs (a)(1)-(4) of this section:
(1) All references to stockholders of the corporation shall be deemed to refer to members of the corporation;
(2) All references to the board of directors of the corporation shall be deemed to refer to the governing body of the corporation;
(3) All references to directors or to members of the board of directors of the corporation shall be deemed to refer to members of the governing body of the corporation; and
(4) All references to stock, capital stock, or shares thereof of a corporation authorized to issue capital stock shall be deemed to refer to memberships of a nonprofit nonstock corporation and to membership interests of any other nonstock corporation.
In order to remove the ex as a director, you will need to call an annual meeting in accordance with the bylaws.
New director elections must be held by the members of the foundation.
Otherwise, assuming your ex is uncooperative and the foundation was not addressed in the decree of marital dissolution, you would need to either modify the divorce decree or get a separate order from the court to dissolve the foundation and reestablish it in form and substance acceptable to you.
I am sorry. I realize this is not the answer you were hoping for. As a professional, however, I am sometimes placed in the position of having to deliver news which is not favorable to a customer's position, but accurately reflects their position under the law. I hate it, but it happens and I ask that you not penalize me for having to deliver less than favorable news.
It is my privilege to assist you. Let me know if you need further information. I hope I have helped you beyond your expectations in the service I have provided to you. I am here for you.
Please remember to rate my answer when our communication is completed so I will be compensated for my time in providing you with the information you requested.
If you feel the need to provide a low rating, please stop and reply to me via the REPLY button with whatever issue or clarification you may need. I will happily answer your follow-up questions and assist you until I am able to explain the answer to your satisfaction. Please also remember that I cannot control whether the law is favorable to your situation, so please do not penalize me for having to deliver bad news.