• September 2018
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List of Post Incorporation Documents and What They Mean

Documents pertaining to the post incorporation setup of company structure.

It is imperative to complete all the necessary steps after incorporation of a company before you start doing business. Not doing so could result in unnecessary and avoidable tax liability, civil liability for your company, and even personal liability for you. Let us guide you through a list of the most important post formation documents and what they mean. Each company’s situation is unique, of course, and the documents you require will depend on the state in which you do business as well. This list is therefore not exhaustive.

Documents pertaining to the post incorporation setup of company structure.

Unanimous Written Consent in Lieu of First Meeting of the Board of Directors.

This document formally sets out the actions taken by consent at the company formation meeting. It allows the Board of Directors to approve the sale of stock to the founders of the company, appoint officers of the company, and authorize the officers of the company to act on the company’s behalf (e.g. when opening corporate bank accounts, signing lease agreements, etc.)

Stock Certificates

These are issued to each of the stockholders in the company. It identifies the number of shares they own and contains any important ancillary provisions, such as restrictions on resale and transfer.

Shareholders Agreement

The Shareholders Agreement governs the relationship between shareholders, setting out their reciprocal rights and obligations. Especially in a startup context where initial shareholders are very familiar with each other and informal understandings fulfill the function of a shareholders agreement, this document is neglected. In light of a company’s expected growth and inevitable changes in shareholding, however, a shareholders’ agreement is essential.

Stock Purchase Agreement

Drafting this agreement is one of the most important steps after incorporation of a company. This document provides the definitive outline for the ownership and allocation of shares in the company. It can also contain vesting provisions, transfer restrictions, and establish the company’s right to repurchase unvested shares.

Documents that facilitate the internal operations of the business

Bylaws

The bylaws of a company set out how the company is operated day to day. It defines the rights and capacities of each of the company’s officers and managers. The bylaws also contain procedures for shareholder meetings and voting. It is therefore an essential element of the company formation process.

Intellectual Property Assignment Agreement

Especially in the case of startups, a company’s most valuable asset tends to be its intellectual property. A crucial component of business success is to ensure that the company retains ownership and control over its technology, inventions, and brand, therefore. Depending on the company structure, a company might want to have employees sign Invention Assignment Agreements, Technology Assignment Agreements, and/or Intellectual Property Assignment Agreements.

Section 83(B) Election Form

Completing a Form 83B and sending it to the IRS within 30 days of purchase of shares can result in significant tax savings for shareholders. Exercising this elective discretion allows shareholders to have their shares taxed on the fair market value of the shares at the time of acquisition, and not at the time of vesting. This allows for significant tax savings if one expects share values to increase over time. It also allows the advancement of capital gains tax calculations. Whether or not this will be beneficial of course depends on the extent to which one expects shares to increase in value, and is contingent upon the vesting of the shares.

Documents that Facilitate Outside Operations and Transactions

Consultant and Advisor Agreements

A company can be vulnerable to significant liability and unnecessary regulatory scrutiny if its consultants or advisors can be considered employees in a legal sense. It is always prudent to clearly and appropriately classify employees, and have agreements that distinguish them from consultants, contractors and advisors.

Privacy Agreement and Website Terms

Especially in light of the recent public scrutiny on privacy law, it is essential to have a clear privacy policy before accessing and possibly storing customers’ data.

Licensing, Distribution, and Subscription Agreements

Monetizing the value that your product offers the market depends, essentially, on the terms under which you bring it to market. Especially in the case of technology and SaaS companies, careful thought and strategic consideration should go into the manner in which you want customers to access your product/service, and how you want to structure the remuneration that you receive for that product/service.

Post Company Incorporation Lawyers

There’s a lot of steps after incorporation of a company. The laundry list of formation documents is not only extensive and time consuming – the stakes are also high. If you are assuming all the risk of starting a new company from scratch, it’s worth ensuring that you won’t run into civil or tax liability that could have been avoided. Let our legal experts help you get everything in order while you focus on what you do best: managing your business’s success and growth.

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