Legal Documents for Entrepreneurs

INCORPORATION QUESTIONNAIRE

(Delaware Corporation)

Contact Information:

Address: (street address necessary)

Contact Person:

Email address:

Telephone number:

Fax number:

Name:

Proposed name of corporation

Alternate names:

Has name been reserved?

If yes, when will reservation expire?

Name must also be available for use in the following states:

Will the business be conducted under a fictitious name?

If so, list the name

Trademark:

Should Orrick request a trademark search regarding the name?

If yes, how should the search be performed?

_____ On-line search ($100.00 for legal fees and database access costs)

_____ Thomson & Thomson search ($390.00 per mark)

Mark(s) or name(s) to search:

If mark or name is clear, should Orrick carry out trademark prosecution?

Purpose of corporation:

Generally:

any lawful act or activity _____

bank or trust company _____

professional corporation _____

nonprofit corporation _____

Brief description of proposed business activities (if it will be a nonprofit corporation, provide specific details):

In which other states will the corporation do business or own property?

Name and street address of initial agent for service of process:

In Delaware:

Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808

Other:

In California, or other state in which Company will do business (preferably an individual):

Corporation Service Company, which will do business in California as CSC-Lawyers Incorporating Service

Other:

Directors:

Number: fixed at __________

OR

flexible number of directors:

minimum of__________

maximum of__________

initially fixed at ________

Initial directors (the first director listed will be designated the Chairman of the Board):

Name/ Email Address / Fax Number/ Street Address (business or residence)

__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Officers[1]:

Name/ Title/ Email Address / Street Address (business or residence)

__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

[FOOTNOTE 1: The same person can hold more than one office. Delaware law does not require any particular number or type of officers. If qualified in California, it’s a good idea to have a CEO a CFO and a Secretary at a minimum.]

Capitalization:

Number of each class of authorized shares:

shares of common[2]: _______________

par value per share: ________________

_____ shares of __________ (attach description)

$_____ par value

_____ shares of __________ (attach description)

$_____ par value

Number of shares to be initially issued:

Proposed initial stockholders and consideration:

Name and Address/ Number of Shares/ Class of Stock/ Amount and Form of Consideration

__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Describe Any Special Vesting Provisions:

Will any of the funding be provided indirectly or directly by non-U.S. investors?

__________

If yes, what percentage voting interest in the corporation will the non-U.S. investor(s) acquire? _______________ [3]

Type of consideration:

1. _____ Cash or cancellation of indebtedness

2. _____ Promissory Note (note that at least the par value of the shares cannot be paid by the note)

3. _____ Assets (includes personal property and leases of real property)

(Describe: )

4. _____ Services actually rendered to the corporation (i.e., not future services)

Will the shares be freely transferable (subject to requirements of federal and state law)? _____

[FOOTNOTE 2: Note that because Delaware corporate tax and annual franchise tax are based on the number of shares and the par value of the shares, it is advantageous for a corporation to have a relatively small number of shares and to assign a low par value to the shares (e.g., $0.0001). There are two methods for calculating annual franchise taxes: the Authorized Shares Method and the Assumed Par Value Capital Method. The method which results in the lesser tax may be used by the Company, but note that Delaware will initially send a report of taxes owed based on the Authorized Shares Method which is usually much higher than the alternative method for small thinly capitalized startup companies. Refer to Section 503 of the Delaware General Corporation Law for a more detailed explanation on how to calculate the annual franchise tax. The typical approach is to authorize a number of shares of common stock equal to the fully diluted pre-money valuation of the Company so that the Series A can be sold for $1.00 per share which has optical significance to VCs. This must be counterbalanced by the need to grant options in relatively large share amounts which has optical significance to employees. For example, if the pre-money valuation is likely to be less than $10 million, the Company will probably want to authorize a number of common shares equal to 2X (or some other round multiple) of the pre-money valuation, even though this will mean the Series A shares will be sold for less than $1.00 per share.]

[FOOTNOTE 3: If the percentage ownership of the non-U.S. investors is calculated as 10% or greater, the corporation will be required to make a filing (i.e., Form BE-13 or filing for exemption thereto) with the U.S. Department of Commerce to report the acquisition.]

If not, attach rider describing transfer restrictions, including any:

Vesting provisions. To assist in the completion of the 83(b) election forms, provide the social security number of each shareholder and shareholder’s spouse:

Buy-sell arrangements.

Co-sale agreements.

Right of first refusal provisions.

Will the corporation initially have (if any, attach rider describing principal terms):

voting agreement or voting trust agreement

irrevocable proxy

stock option plan

other executive compensation plans

employment contracts

Are there subscription or other preincorporation agreements?

(If so, attach a rider describing the proposed principal terms)

Will there be an initial debt financing?

If yes, describe terms:

Except as indicated below,

All directors and officers will be given irrevocable mandatory indemnification to the fullest extent permitted by law under the Charter.

All shares will have equal voting rights.

Corporate existence will be unlimited in duration.

All shares will be fully paid for.

Shares will not be subject to assessment.

Stockholders will not have preemptive rights.

No limitations will be placed upon the business engaged in and powers exercised by the corporation.

No supermajority will be required and no special quorum will be required for any action.

There are no special qualifications for being a stockholder.

The directors, and not the stockholders, will determine consideration to be received for future shares.

Exceptions (state if there are none):

Additional Information:

Fiscal year of corporation ends (generally suggest 12/31):

Accountants (name, address and telephone):

Bank (name and address):

Information for Employer I.D. Number (required for corporation to open bank account and for tax purposes):

Name and social security number of officer who will sign the form:

First date corporation will pay wages:

Peak number of employees expected in next twelve months in each of the following categories:

nonagricultural

agricultural

household

To whom will the corporation sell most of its products or services?

_____ business (wholesale)

_____ public (retail)

_____ other (specify)

Has principal officer of corporation filed for an Employer Identification Number before? __________

If yes:

Name of previous corporation/applicant:

When (month/day/year) and in which city was previous EIN obtained?

Previous EIN:

S corporation election? [4]

If yes, provide social security number of each shareholder and shareholder’s spouse, if not previously provided in item 8.f(1) above:

[FOOTNOTE 4: Note that if a corporation elects to be treated as an S corporation, and if it wants the election to be effective for the first income year, the federal and state election forms must be filed with the IRS on or before the 15th day of the third month of the corporation’s first income year (which starts when it has stockholders, acquires assets or begins doing business, whichever occurs first).]

Information for California Employment Development Department registration form (required only if new corporation will have employees):

Social Security numbers:

CEO

V.P.

Secty.

Treas.

Driver’s license number:

Pres.

V.P.

Secty.

Treas.

Will payroll exceed $100.00 in any calendar quarter?

If so, when?

First month that worker contributions for disability insurance will exceed $100.00 or personal income tax withheld exceeds $250.00.

Nature of business - check one:

_____ retail trade

_____ wholesale trade

_____ service

_____ repairing

_____ manufacturing

_____ contracting

_____ other

Describe kind of product or type of service:

Name, title, residence address, business phone, residence phone, and driver’s license number of person who will be signing the registration form:

Should Orrick order a corporate seal? Should Orrick order a minute book?

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CERTIFICATE OF INCORPORATION

OF

[COMPANY NAME]

ARTICLE I

The name of the corporation is [Company Name] (the Corporation).

ARTICLE II

The address of the Corporation’s registered office in the State of Delaware is ____________________, in the City of ____________________, County of ____________________, Zip Code __________. The name of its registered agent at such address is [Registered Agent Name].

ARTICLE III

The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.

ARTICLE IV

The aggregate number of shares which the Corporation shall have authority to issue is ____________________ (__________) shares of capital stock all of which shall be designated Common Stock and have a par value of $[0.00001] per share.

ARTICLE V

In furtherance of and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors of the Corporation is expressly authorized to make, amend or repeal Bylaws of the Corporation.

ARTICLE VI

The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. Elections of directors need not be by written ballot unless otherwise provided in the Bylaws of the Corporation.

ARTICLE VII

(A) To the fullest extent permitted by the General Corporation Law of Delaware, as the same exists or as may hereafter be amended, a director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director.

(B) The Corporation shall indemnify to the fullest extent permitted by law any person made or threatened to be made a party to an action or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that he, his testator or intestate was a director or officer of the Corporation or any predecessor of the Corporation, or serves or served at any other enterprise as a director or officer at the request of the Corporation or any predecessor to the Corporation.

(C) Neither any amendment nor repeal of this Article VII, nor the adoption of any provision of the Corporation’s Certificate of Incorporation inconsistent with this Article VII, shall eliminate or reduce the effect of this Article VII in respect of any matter occurring, or any action or proceeding accruing or arising or that, but for this Article VII, would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision.

ARTICLE VIII

The name and mailing address of the incorporator are as follows:

[Incorporator Name]

c/o Orrick, Herrington & Sutcliffe LLP

[Address Line 1]

[City], [State] [Zip Code]

Executed on ____________________.

/s/ [Incorporator Name]___________

[Incorporator Name], Incorporator

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BYLAWS

ARTICLE I CORPORATE OFFICES

1.1 Registered Office

1.2 Other Offices

ARTICLE II MEETINGS OF STOCKHOLDERS

2.1 Place Of Meetings

2.2 Annual Meeting

2.3 Special Meeting

2.4 Notice Of Stockholders’ Meetings

2.5 Manner Of Giving Notice; Affidavit Of Notice

2.6 Quorum

2.7 Adjourned Meeting; Notice

2.8 Organization; Conduct of Business

2.9 Voting

2.10 Waiver Of Notice

2.11 Stockholder Action By Written Consent Without A Meeting

2.12 Record Date For Stockholder Notice; Voting; Giving Consents

2.13 Proxies

ARTICLE III DIRECTORS

3.1 Powers

3.2 Number Of Directors

3.3 Election, Qualification And Term Of Office Of Directors

3.4 Resignation And Vacancies

3.5 Place Of Meetings; Meetings By Telephone

3.6 Regular Meetings

3.7 Special Meetings; Notice

3.8 Quorum

3.9 Waiver Of Notice

3.10 Board Action By Written Consent Without A Meeting

3.11 Fees And Compensation Of Directors

3.12 Approval Of Loans To Officers

3.13 Removal Of Directors

3.14 Chairman Of The Board Of Directors

ARTICLE IV COMMITTEES

4.1 Committees Of Directors

4.2 Committee Minutes

4.3 Meetings And Action Of Committees

ARTICLE V OFFICERS

5.1 Officers

5.2 Appointment Of Officers

5.3 Subordinate Officers

5.4 Removal And Resignation Of Officers

5.5 Vacancies In Offices

5.6 Chief Executive Officer

5.7 President

5.8 Vice Presidents

5.9 Secretary

5.10 Chief Financial Officer

5.11 Representation Of Shares Of Other Corporations

5.12 Authority And Duties Of Officers

ARTICLE VI INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES, AND OTHER AGENTS

6.1 Indemnification Of Directors And Officers

6.2 Indemnification Of Others

6.3 Payment Of Expenses In Advance

6.4 Indemnity Not Exclusive

6.5 Insurance

6.6 Conflicts

ARTICLE VII RECORDS AND REPORTS

7.1 Maintenance And Inspection Of Records

7.2 Inspection By Directors

ARTICLE VIII GENERAL MATTERS

8.1 Checks

8.2 Execution Of Corporate Contracts And Instruments

8.3 Stock Certificates; Partly Paid Shares

8.4 Special Designation On Certificates

8.5 Lost Certificates

8.6 Construction; Definitions

8.7 Dividends

8.8 Fiscal Year

8.9 Seal

8.10 Transfer Of Stock

8.11 Stock Transfer Agreements

8.12 Registered Stockholders

8.13 Facsimile Signature

ARTICLE IX AMENDMENTS

BYLAWS

OF

[COMPANY NAME]

ARTICLE I

CORPORATE OFFICES

1.1 Registered Office.

The registered office of the corporation shall be in the City of ____________________, County of ____________________, State of Delaware. The name of the registered agent of the corporation at such location is [Registered Agent Name].

1.2 Other Offices.

The Board of Directors may at any time establish other offices at any place or places where the corporation is qualified to do business.

ARTICLE II

MEETINGS OF STOCKHOLDERS

2.1 Place Of Meetings.

Meetings of stockholders shall be held at any place, within or outside the State of Delaware, designated by the Board of Directors. In the absence of any such designation, stockholders’ meetings shall be held at the registered office of the corporation.

2.2 Annual Meeting.

The annual meeting of stockholders shall be held on such date, time and place, either within or without the State of Delaware, as may be designated by resolution of the Board of Directors each year. At the meeting, directors shall be elected and any other proper business may be transacted.

2.3 Special Meeting.

A special meeting of the stockholders may be called at any time by the Board of Directors, the chairman of the board, the president or by one or more stockholders holding shares in the aggregate entitled to cast not less than ten percent of the votes at that meeting.

If a special meeting is called by any person or persons other than the Board of Directors, the president or the chairman of the board, the request shall be in writing, specifying the time of such meeting and the general nature of the business proposed to be transacted, and shall be delivered personally or sent by registered mail or by telegraphic or other facsimile transmission to the chairman of the board, the president, any vice president, or the secretary of the corporation. No business may be transacted at such special meeting otherwise than specified in such notice. The officer receiving the request shall cause notice to be promptly given to the stockholders entitled to vote, in accordance with the provisions of Sections 2.4 and 2.5 of this Article II, that a meeting will be held at the time requested by the person or persons calling the meeting, not less than thirty-five (35) nor more than sixty (60) days after the receipt of the request. If the notice is not given within twenty (20) days after the receipt of the request, the person or persons requesting the meeting may give the notice. Nothing contained in this paragraph of this Section 2.3 shall be construed as limiting, fixing, or affecting the time when a meeting of stockholders called by action of the Board of Directors may be held.

2.4 Notice Of Stockholders’ Meetings.

All notices of meetings with stockholders shall be in writing and shall be sent or otherwise given in accordance with Section 2.5 of these Bylaws not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. The notice shall specify the place (if any), date and hour of the meeting, and in the case of a special meeting, the purpose or purposes for which the meeting is called.

2.5 Manner Of Giving Notice; Affidavit Of Notice.

Written notice of any meeting of stockholders, if mailed, is given when deposited in the United States mail, postage prepaid, directed to the stockholder at his address as it appears on the records of the corporation. Without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders may be given by electronic mail or other electronic transmission, in the manner provided in Section 232 of the Delaware General Corporation Law. An affidavit of the secretary or an assistant secretary or of the transfer agent of the corporation that the notice has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein.

2.6 Quorum.

The holders of a majority of the shares of stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum is not present or represented at any meeting of the stockholders, then either (a) the chairman of the meeting or (b) holders of a majority of the shares of stock entitled to vote who are present, in person or by proxy, shall have power