This document completes the organization of the Company by appointing the Officers and authorizing the issuance of shares to the Stockholders, among other things.
This document is part of the Start-Up Forms Library provided by Orrick's Emerging Companies Group, which can be found at: http://www.orrick.com/practices/corporate/emerg...
ACTION BY UNANIMOUS WRITTEN CONSENT
OF THE BOARD OF DIRECTORS OF
In accordance with Section 141(f) of the General Corporation Law of Delaware and the Bylaws of [COMPANY NAME], a Delaware corporation (the “Company”), the undersigned, constituting all of the directors of the Company, hereby take the following actions and adopt the following resolutions by unanimous written consent without a meeting:
RESOLVED: That the Incorporator of the Company is hereby discharged from any further liabilities or duties with respect to the Company and the Company further agrees to indemnify and hold harmless the Incorporator from any liability incurred in the past or the future with respect to organizing the Company.
- Certificate of Incorporation
RESOLVED: That a copy of the Certificate of Incorporation of the Company, as filed with the Secretary of State of Delaware on Date of Incorporation and bearing the file stamp and certification of the Secretary of State of Delaware, shall be inserted in the Minute Book of the Company.
- Minute Book [and Corporate Seal]
RESOLVED: That the Company shall maintain as part of its corporate records a book entitled “Minute Book” which shall include, but not be limited to, (i) a record of its Certificate of Incorporation and amendments thereto, (ii) its Bylaws and amendments thereto, and (iii) minutes of all meetings of its directors and of its stockholders with the time and place of holding, whether regular or special (and if special how authorized), the notice thereof given, the number of shares present or represented at stockholders’ meetings, and the proceedings of the meetings.
[RESOLVED FURTHER: That a corporate seal consisting of two concentric circles containing the words “[COMPANY NAME]” and “Delaware” in the outer circle, and in the inner circle the word “Incorporated” together with the date of incorporation of the Company, is adopted as the corporate seal of the Company.]
- Election of Officers
RESOLVED: That the following persons are elected as officers of the Company to the offices set forth opposite their respective names, to serve at the pleasure of the Board of Directors:
Name Title Officer 1 Officer 1 Title Officer 2 Officer 2 Title Officer 3 Officer 3 Title
RESOLVED: That the President, the Chief Executive Officer, the Chief Financial Officer, or any Vice President is authorized to sign and deliver any agreement in the name of the Company and to otherwise obligate the Company in any respect relating to matters of the business of the Company, and to delegate such authority in his or her discretion, within budgets approved by the Board of Directors of the Company.
- Stock Certificate
RESOLVED: That the stock certificate representing the Common Stock of the Company shall be in the form of the stock certificate attached hereto as Exhibit A, with such appropriate information entered thereon as to the capitalization of the Company at the time of issuance and otherwise as may be required by the General Corporation Law of Delaware.
- Issuance of Common Stock
RESOLVED: That the officers are authorized to sell and issue on behalf of the Company a total of 0 shares of Common Stock (the “Shares”) to the individuals or entities listed below (the “Purchasers”) in the amounts specified opposite each name, at a price of $Per Share per share for a total purchase price of $Total which the Board of Directors determines to be the fair value of such Shares, in exchange for cash, cancellation of indebtedness (including organizational costs incurred by the purchasers prior to the incorporation of the Company), promissory note, assets or any combination of the foregoing [Include for DE corp: (provided that each Purchaser shall pay in cash, personal property or cancellation of indebtedness at least the aggregate par value represented by such Purchaser’s shares)], pursuant to a Stock Purchase Agreement in substantially the form attached hereto as Exhibit B (such Shares shall be subject to the vesting provisions described in such Stock Purchase Agreement, if any):
Purchaser Name State of Residence Number of Shares [Purchaser Name] [State of Residence] [Number of Shares]
[RESOLVED FURTHER: The consideration paid by certain Purchasers for such shares shall include the assets described in the Assignment of Technology Agreement, Patent Assignment, Bill of Sale and Services Rendered attached to such Purchaser’s Common Stock Purchase Agreement with the Company dated on or about the date hereof, and the Board of Directors hereby determines that the value of the assets transferred by each such Purchaser is as follows:]
Purchaser Name Value of Assets [Purchaser Name 1] [Value of Assets 1]
RESOLVED FURTHER: That the stock sales authorized in the above resolution shall be conducted in such a manner as to qualify for the exemption from the state requirements regarding registration of the sale of securities, as provided in [State Securities Law Reference], as well as such other securities laws as may be applicable to Purchasers residing outside of Governing State Securities Law, if any.
RESOLVED FURTHER: That the Board of Directors has determined that each of the Purchasers has either a pre-existing personal or business relationship with the Company, its officers or directors, or sufficient business or financial experience so that the Company can reasonably assume that such Purchaser has the capacity to protect his own interests in connection with the proposed sale of the Shares.
RESOLVED FURTHER: That each Purchaser shall represent that such Purchaser is purchasing for his own account, and not with a view to or for sale in connection with, any distribution of the Shares.
RESOLVED FURTHER: That the offer and sale of the Shares will not be accompanied by the publication of any advertisement.
RESOLVED FURTHER: That the officers of the Company, in consultation with legal counsel, are authorized and directed to execute and file a form of notification advising the [State Securities Law Authority] of the issuance of the Shares pursuant to [State Securities Law Reference].
RESOLVED FURTHER: That, upon receipt of consideration and an executed stock purchase agreement, the Company is authorized and directed to issue share certificates representing the Shares.
- Employer Identification Number
RESOLVED: That the proper officers of the Company are directed to apply to the IRS District Director for an employer’s identification number on Form SS-4.
RESOLVED: That a duly certified public accounting firm to be chosen by the President shall be retained as independent auditors for the Company to set up, prepare, and maintain the financial records of the Company, and to prepare such financial statements and tax returns as may be required of the Company or requested by its officers and directors from time to time.
- Fiscal Year
RESOLVED: That the fiscal year of the Company shall end on December 31 of each year.
- Incorporation Expenses
RESOLVED: That the proper officers are authorized and directed to pay the expenses of incorporation and organization of the Company and the expenses incurred in the formation of the Company.
RESOLVED FURTHER: That the Company elects to treat its organizational expenses, as that term is defined by Section 248 of the Internal Revenue Code of 1986, as amended, as deferred expenses to be deducted ratably over a period of sixty (60) months beginning with the month in which the Company begins business; and that the officers are authorized and directed to take such action as necessary to effectuate this election.
- Withholding Taxes
RESOLVED: That the Chief Financial Officer is authorized and directed to consult with the bookkeeper, auditors and attorneys of the Company in order to be fully informed as to, and to collect and pay promptly when due, all withholding taxes for which the Company may now be (or hereafter become) liable.
- Qualification to Do Business
RESOLVED: That the officers of the Company are authorized to take any and all steps that they deem to be necessary to qualify the Company to do business as a foreign corporation in each state that the officers determine such qualification to be necessary or appropriate.
RESOLVED: That the Company shall enter into an Indemnification Agreement substantially in the form attached to these resolutions as Exhibit C with each of the Company’s present and future directors and officers. Management of Fiscal Affairs
- Managment of Fiscal Affairs
RESOLVED: That Bank Name (or such other bank as the officers of the Company shall, in their discretion, select) is selected and designated as a depository of funds of the Company, and that the proper officers are authorized to open and maintain, in the name of the Company, a checking, savings, safe deposit, payroll or other account or accounts with said depository.
RESOLVED FURTHER: That the standard form of corporate banking resolutions, as required by said bank, necessary to accomplish the foregoing resolution[, in the form attached hereto as Exhibit D and showing the persons authorized to draw on such account,] are approved and adopted as the resolutions of this Board of Directors, and the officers are authorized to execute, certify, and deliver a copy thereof to said bank as the resolutions of this Company.
- Omnibus Resolution
RESOLVED: That each of the officers of the Company is authorized and empowered to take such other actions and sign such other documents as may be necessary or advisable to carry out the intent and accomplish the purposes of the foregoing resolutions.
This action may be signed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.
FORM OF STOCK CERTIFICATE
An example of a Common Stock Certificate can be found here: https://www.docracy.com/5570/common-stock-certificate
FORM OF STOCK PURCHASE AGREEMENT
An example of a SPA can be found here: https://www.docracy.com/5346/common-stock-purchase-agreement-with-vesting-
FORM OF INDEMNIFICATION AGREEMENT
An example of an Indemnification Agreement can be found here: https://www.docracy.com/5473/indemnification-agreement-for-company-directors-and-officers-