If you are considering starting a business, you’ve probably heard that it is a good idea to incorporate. While the process can be detailed and state-specific, this article outlines the general steps and considerations for incorporation.
Choosing a Name
When you go about choosing a name for your corporation, you should be aware of the rules that your state follows when it comes to corporate names. Contact your state’s office that deals with corporations to find out these rules if you are not already familiar with them. However, the following rules are found in many states (1) the name of your corporation cannot be the same as any other corporation that is on file. (2) The name must end with some designation that shows the corporate status of your business, such as “Corporation,” “Incorporated,” or “Limited.” In addition, many states allow abbreviations of these words (such as Corp., Inc., or Ltd.); and (3) the name cannot include any words that imply an association with the federal government or restricted types of businesses. Such restricted words include “Bank,” “Cooperative,” “Federal,” “National,” “United States,” or “Reserve.”
Generally, you can submit a proposed name to your state’s corporation office to see if the name would be an appropriate and allowable one. However, keep in mind that if you plan on operating your business under a name that is not the name of your corporation, you must file a “fictitious” or “assumed” name statement with the state or county in which your business is headquartered.
Directors are generally responsible for making major financial and policy decisions for the corporation, such as authorizing the sale of stock for the corporation. Although many owners simply appoint themselves as directors of the company, there is nothing that requires directors to be owners of the corporation. A majority of states allow a corporation to have one director no matter how many owners there are of the corporation. However, there are other states that require the number of directors to equal or exceed the number of owners.
The articles of incorporation are sometimes referred to as the “certificate of incorporation” or a “charter” depending upon the state that you are in.
In many situations, getting your articles of incorporation prepared is just a matter of filing out a form that is provided by the secretary of state’s office. However, most articles of incorporation require that you provide the name and contact information for at least one person. This person will serve as the “registered agent” for the corporation. This is the person that the members of the public will contact if they want to sue the corporation or involve the corporation in an ongoing lawsuit.
Many people that have gone through the steps spelled out above often overlook and miss this very important step. The bylaws of a corporation spell out how the corporation will be run with respect to important decisions and voting rights. Corporate bylaws need to address when and how often shareholder meetings will be held as well as spell out various other important rules. The bylaws will generally be adopted for the corporation at the first meeting of the directors.
Another important document that is often overlooked is a shareholder’s agreement. This agreement should be agreed upon by all shareholders and will spell out various issues related to shareholders, such as how ownership will be transferred in the event that a shareholder dies, becomes disabled or wishes to leave the corporation.
After all the above steps have been followed, it is time for the board of directors to hold their first meeting. At this first meeting, a number of corporate formalities must be taken care of, including:
• Setting the corporation’s fiscal accounting year,
• Choosing and appointing corporate officers,
• Setting and adopting the corporate bylaws,
• Authorizing and issuing the shares of stock, and
• Settling on the official stock certificate form and adopting the corporate seal. In addition, if the corporation is to be an S-type corporation, the directors should vote on and approve the election of an S-type corporation.
A corporation should not open its doors for business until the shares of stock have been issued. When shares of stock are issued, the ownership of the corporation is formally divided among all the owners. In addition, issuing stock is a requirement that must be met before the corporation can do business.
When you issue stock, you are entering the world of securities laws. Generally speaking, large corporations that issue stock must register all of their stock offerings with the SEC (Securities Exchange Commission) and any state securities agencies. This can take time and cost a bit of money.
Most small corporations that do not make a private offering of stock to more than 35 people may be exempt from having to register their stock offerings with the SEC. In addition, if a corporation only makes a private offering to those who can reasonably be expected to take care of themselves because of their personal financial situation, that private offering may also be exempt from the SEC registration rules. Additionally, many states have adopted exemption rules that mirror or are very similar to the SEC rules.
When your corporation is ready to issue the actual shares, you will have to keep detailed documents of:
• The names of all of the initial shareholders,
• The numbers of shares that each shareholder will buy, and
• How each shareholder is going to pay for his or her shares.
You will then issue the stock certificates to each shareholder that bought into the corporation. You may also have to file a “notice of stock transaction” if your state’s laws require it.
If you plan on your corporation entering into a business that requires a license or a permit, be sure to get those soon. In addition, you will most likely need a tax registration certificate for both federal and state taxes. Keep in mind other licenses and permits as well, such as an employer ID from the IRS, a seller’s permit, a liquor license (if needed), a zoning permit, etc.
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If you are here, you probably have a business law issue you need help with, call Ascent Law for your free business law consultation (801) 676-5506. We want to help you.
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West Jordan, Utah
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