In our most recent “Founders Series” post, we discussed what tax considerations founders should take into account when launching their startups. We now turn to the steps you will need to take once you are ready to officially form your corporation. Note that many of these tasks can be facilitated by using our online legal document generation tool, Document Driver®.
- File Certificate of Incorporation with the Delaware Secretary of State
- Confirm availability of the name chosen for your company (this can be done at no charge at the Delaware Secretary of State website). You should also check the name in any state in which you will be doing business.
- Contact and retain the Registered Agent you selected when answering the Document Driver®
- Review the Certificate of Incorporation generated from your completed Document Driver® Questionnaire and confirm the information.
- Cause the Incorporator to sign and date the Certificate of Incorporation.
- File the signed and dated Certificate of Incorporation with the Delaware Secretary of State. Filing may be accomplished directly with the Delaware Secretary of State (click here for more information) or through a registered agent service (such as The Corporation Trust Company or Corporate Service Company).
- You will receive evidence of filing and certification of formation once your Certificate of Incorporation has been accepted by the Delaware Secretary of State’s office.
- Complete, Sign and Date Remaining Formation Documents (other than Stock Certificates)
- Review the remaining Formation Documents generated from your completed Document Driver® Questionnaire and confirm the information (including full legal names, correct addresses, share amounts, etc.).
- Fill in all required dates and collect all signatures for each of these Formation Documents (other than the Stock Certificates which are addressed below).
- Issue Shares of Common Stock to Founders
- Obtain from the founders executed copies of their respective Subscription Letters and, to the extent applicable, Founder Stock Restriction Agreements.
- Collect the applicable purchase price for the shares from each founder (each founder’s aggregate purchase price is reflected in his or her respective Subscription Letter) and retain evidence of payment for the Company’s records.
- Print the first and second page of each Stock Certificate on both sides of a single sheet of paper to ensure that the second page (the “reverse side”) containing the applicable restrictive legends does not get detached from the front page of the certificate. You may wish to print the Stock Certificates on water-marked paper.
- Each Stock Certificate should be signed and dated by the President and the Secretary of the Company.
- Deliver vs. Retain Stock Certificates:
- If a founder is not entering into a Founder Stock Restriction Agreement and his or her shares are not subject to vesting, the Stock Certificate can be delivered to the founder. Be sure to retain a photocopy of the Stock Certificate (front and back) for the Company’s records.
- If, however, a founder is entering into a Founder Stock Restriction Agreement and his or her shares are subject to vesting, then the Company should retain such founder’s Stock Certificate to be held by the Company in escrow pursuant to Section 8 of the Founder Stock Restriction Agreement.
- Any founder who is entering into a Founder Stock Restriction Agreement and subjecting his or her shares to vesting, must decide whether or not to file an 83(b) election with the Internal Revenue Service (IRS). Such decision should be made in consultation with a tax advisor. To be effective, an 83(b) election must be filed with the IRS within 30 days of purchasing the shares. See the 83(b) election memorandum posted on the Founder’s Workbench for further information.
- Make Post-Formation Filings
- File to obtain a Federal Employer Identification Number, which is required of all corporations. Instructions regarding the filing of Form SS-4 are available on the IRS website. Filing can be completed online.
- File to obtain applicable state level identification numbers and other state level registrations, including workers’ compensation filings, depending upon the state in which your company’s office is located. Visit your state employment and tax agency’s websites for further information.
- Ensure Compliance with Applicable Securities Laws
- Federal and state securities laws may require governmental filings reflecting the issuance of stock to founders. Please consult your legal counsel regarding compliance.
- Consider foreign state qualifications. Corporations must qualify in states (other than the one in which they are incorporated) if they transact business in that state. The registered agent services, such as Corporation Trust Company or Corporate Service Company, can facilitate this process.
- Prepare a stock ledger (for example, using an excel spreadsheet) to record the issuance of each Stock Certificate (in order by certificate number (C-1)), including share amount, name of recipient and date of issuance. Record any subsequent transfers and cancellations.
- Set up and maintain the Company’s records, including a corporate minute book to hold important corporate documentation (including the Formation Documents).
See Goodwin Procter LLP’s Founder’s Workbench® for further instructions and guidance on launching your start-up company.
In upcoming posts in the Founders Series, we’ll provide more detailed discussions of post-formation considerations affecting your startup company