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Ideas/Section-2
Prepared by the
Office of the General Counsel
U.S. Small Business Administration
Summary
If you are the owner-manager of a small
business you may have been
wondering about the advisability of incorporating your business,
particularly if you are seeking equity capital.
This Management Aid does not discuss the
advantages and disadvantages
of the corporate form; its purpose is to acquaint you with some
of
the basic steps involved once you have decided to incorporate.
This Aid is not to be considered a substitute
for professional
advice. Legal guidance will insure that (a) the articles of incorporation
and the bylaws are tailored to the needs of your particular business
enterprise, (b) you understand the various aspects of the tax
obligations involved, and (c) you will be in compliance with the
State, local, and Federal laws affecting the corporation.
Laws governing the procedure for obtaining
a corporate charter
vary among States. Detailed information about the requirements of
your State can be obtained from the secretary or other official
designated to supervise the granting of corporate charters.
Choosing the Location
The majority of small and medium-sized
businesses, especially those
whose trade is local in nature, find it advisable to obtain their
charter from the State in which the greatest part of their business
is conducted.
Out-of-State, or "foreign," incorporation
often results in the
additional payments of taxes and fees in another jurisdiction.
Moreover, under the laws of many States the property of a foreign
corporation is subject to less favorable treatment, especially in
the area of attachment of corporate assets. This legal difference
could prove especially hazardous to a small business.
On the other hand, you should look into
possible benefits to be
gained from incorporation in another State. Such factors as State
taxes, restrictions on corporate powers and lines of business in
which a company may engage, capital requirements, restrictions
upon foreign corporations in your State, and so forth should be
taken into consideration in selecting the State of incorporation.
For example, you should be aware that some States require a foreign
corporation to obtain a certificate to do business in their State.
Without such certification the corporation may be deprived of the
right to sue in those States.
The fee or organization tax charged for
incorporation varies greatly
from State to State.
Certificate Of Incorporation
Generally, the first step in the required
procedure is preparation,
by the incorporators, of a "certificate of incorporation."
Most
States used to require that the certificate be prepared by three
or
more legally qualified persons, but the modern trend is to require
only one incorporator. An incorporator may, but not necessarily
must,
be an individual who will ultimately own stock in the corporation.
For purposes of expediting the filing of
articles, "dummy"
incorporators are often employed. These dummy incorporators are
usually associated with a company that performs this service or
with
an attorney for the organizers. They typically elect their
successors and resign at the meeting of the incorporators.
Many States have a standard certificate
of incorporation form which
may be used by small businesses. Copies of this form may be obtained
from the designated State official who grants charters and, in some
States, from local stationers as well. The following information
is
usually required:
1. The corporate name of the company. Legal
requirements generally
are (a) that the name chosen must not be so similar to the name
of
any other corporation authorized to do business in the State as
to
lead to confusion and (b) that the name chosen must not be deceptive
so as to mislead the public. In order to be sure that the name you
select is suitable, check out the availability of the name through
the designated State official in each State in which you intend
to
do business before drawing up a certificate of incorporation. This
check can be made through a service company. In some States, there
is a procedure for reserving a name.
2. Purposes for which corporation is formed.
Several States permit
very broad language, such as "the purpose of the corporation
is to
engage in any lawful act or activity for which corporations may
be
organized." However, most States require more specific language
in
setting forth the purposes of the corporation. Even where State
law
does not require it, the better practice is to employ a "specific
object" clause which spells out in broad descriptive terms
the
projected business enterprise. At the same time taking care to
allow for the possibility of territorial, market, or product expansion.
In other words, the language should be broad enough to allow for
expansion and yet specific enough to convey a clear idea of the
projected enterprise.
The use of a specific object clause, even
where not required by
State law, is advisable for several reasons. It will convey to
financial institutions a clearer picture of the corporate enterprise
and will prevent problems in qualifying the corporation to do business
in other jurisdictions. Reference books or certificates of existing
corporations can provide examples of such clauses.
3. Length of time for which the corporation
is being formed. This may
be a period of years or may be perpetual.
4. Names and addresses of incorporators.
In certain States one or
more of the incorporators is required to be a resident of the State
within which the corporation is being organized.
5. Location of the registered office of
the corporation in the State
of incorporation. If you decide to obtain your charter from another
State, you will be required to have an office there. However, instead
of establishing an office, you may appoint an agent in that State
to
act for you. The agent will be required only to represent the
corporation, to maintain a duplicate list of stockholders, and
to receive or reply to suits brought against the corporation in
the State of incorporation.
6. Maximum amount and type of capital stock
which the corporation
wishes authorization to issue. The proposed capital structure of
the corporation should be set forth, including the number and
classification of shares and the rights, preferences, and limitations
of each class of shares.
7. Capital required at time of incorporation.
Some States require
that a specified percentage of the par value of the capital stock
be
paid in cash and banked to the credit of the corporation before
the
certificate of incorporation is submitted to the designated State
official for approval.
8. Provisions for preemptive rights, if
any, to be granted to the
stockholders and restrictions, if any, on the transfer of shares.
9. Provisions for regulation of the internal
affairs of the
corporation.
10. Names and addresses of persons who
will serve as directors
until the first meeting of stockholders or until their successors
are elected and quality.
11. The right to amend, alter, or repeal
any provisions contained
in the certificate of incorporation. This right is generally
statutory, reserved to a majority or two-thirds of the stockholders.
Still, it is customary to make it clear in the certificate.
If the designated State official determines
that the name of the
proposed corporation is satisfactory, that the certificate contains
the necessary information and has been properly executed, and that
there is nothing in the certificate or the corporation's proposed
activities that violate State law or public policy, the charter
will be issued.
Officers and Stockholders
Next, the stockholders must meet to complete
the incorporation
process. This meeting is extremely important. It is usually
conducted by an attorney or someone familiar with corporate
organizational procedure.
In the meeting the corporate bylaws are
adopted and a board of
directors is elected. This board of directors in turn will elect
the officers who actually will have charge of the operations of
the corporation--for example, the president, secretary, and
treasurer. In small corporations, members of the board of
directors frequently are elected as officers of the corporation.
Bylaws
The bylaws of the corporation may repeat
some of the provisions
of the charter and State statute but usually cover such items
as the follows:
1. Location of the principal office and
other offices of
the corporation.
2. Time, place, and required notice of
annual and special
meetings of stockholders. Also the necessary quorum and
voting privileges of the stockholders.
3. Number of directors, their compensation,
their term of
office, the method of electing them, and the method of
creating or filling vacancies in the board of directors.
4. Time and place of the regular and special
director's meetings,
as well as the notice and quorum requirements.
5. Method of selecting officers, their
titles, duties, terms of
office, and salaries.
6. Issuance and form of stock certificates,
their transfers and
their control in the company books.
7. Dividends, when and by whom they may
be declared.
8. The fiscal year, the corporate seal,
the authority to sign
checks, and the preparation of annual statement.
9. Procedure for amending the bylaws.
Special Tax Laws
At the time of the first meeting of the
corporate board of directors
and prior to issuance of any shares, you might consider adoption
of
a plan under a section of the Internal Revenue Code (IRC 1244) that
grants ordinary rather than capital treatment of losses on certain
"small business stock." Among the requirements of qualification
as
"section 1224 stock" are (1) the stock must be common
stock, (2) the
stock must be issued by the corporation for money or other property
pursuant to a written plan containing several limitations, and
(3) the amount of contribution received for the stock and equity
capital of the corporation must not exceed maximum dollar limits.
You should be aware, also, of the possibility
of electing subchapter
S status (IRS 1371-1379). The purpose of subchapter S is to permit
a
"small business corporation" to elect to have its income
taxed to
the shareholders as if the corporation were a partnership. One
objective is to overcome the double-tax feature of the present
system of taxation of corporate income. Another purpose is to
permit the shareholders to have the benefit of offsetting business
losses by the corporation against the income of the shareholders.
Among the qualifying requirements for electing
and maintaining
"subchapter S" eligibility are that the corporation has
no more
than 10 shareholders, all of whom are individuals or estates;
that there be no nonresident alien shareholders; that there be
only one class of outstanding stock; that all shareholders
consent to the election; and that a specified portion of the
corporation's receipts be derived from actual business activity
rather than passive investments. No limit is placed on the size
of the corporation's income and assets.
If you plan to transfer property to a corporation
in exchange
for stock, you should realize that such a transfer is a taxable
transaction unless the transfer complies with the provisions of
IRC section 351.
Other Considerations
If your business is at present a sole proprietorship
or partnership,
you will need to secure a new taxpayer identification number
and unemployment insurance account. You should find out in advance
whether present licenses and leases will be transferable to the
new
corporate entity.
