The formation of a de jure corporation occurs upon the acceptance of the articles for filing by the office of the secretary of state. However, at this stage, the corporation is not yet operational. Further organizational steps are required to establish the business fully. Generally, these tasks are managed by the corporation's legal counsel. For instance, the attorney will procure a corporate minute book and blank stock certificates, establish a corporate bank account, and secure taxpayer and employer identification numbers from the Internal Revenue Service and relevant state agencies.
Organizational Meeting
The attorney or incorporator of company may assist in convening the organizational meeting. In instances where the initial directors are specified in the articles of incorporation, those individuals will preside over the organizational meeting. Conversely, if the initial directors are not identified in the articles, the incorporators will be responsible for conducting the organizational meeting. In either scenario, actions may be executed through unanimous written consent as an alternative to a physical meeting. This provision is particularly useful when there is a sole director or incorporator within the corporation, as the formality of convening a meeting for a single individual may be deemed unnecessary.
According to the Model Business Corporation Act (MBCA), when a meeting is convened by the directors, this assembly is responsible for "completing the organization of the corporation." This process primarily entails two key activities: the adoption of bylaws and the appointment of officers. Additionally, the board may engage in other relevant business matters, such as approving the issuance of stock and authorizing the payment of incorporation expenses.
Conversely, when a meeting is conducted by the incorporators, the primary responsibility is to elect the initial directors. Following this election, the incorporators have the option to either "complete the organization of the corporation" by adopting bylaws and appointing officers themselves or to delegate these tasks to the newly elected board of directors.
Bylaw
The bylaws are internal regulations that govern the corporation's operations and are not submitted to the state, thus remaining confidential. In contrast to the registration document, the bylaws offer a more comprehensive framework, functioning as an operational manual that delineates essential rules governing company. These bylaws are sufficiently detailed to serve as a reliable reference for directors and officers in the management of the corporation's affairs. For instance, the bylaws may specify the duties of different officers and their respective authority to legally commit the corporation. Additionally, they commonly establish record dates for meetings and prescribe methods for giving notice of meetings.
Among other things, the bylaws established under the MBCA delineate the officers that a corporation may appoint. Generally, corporate statutes mandated the presence of a president, a secretary, and a treasurer. However, the legal framework in reality also allows companies the flexibility to provide for corporate officers in their bylaws.
Minutes or Written Consents
In a practical context, the attorney or accountant is responsible for the preparation of not only the articles of incorporation and bylaws but also the minutes or written consents necessary for the successful establishment of the corporation. Typically, these documents are drafted prior to the formal formation of the entity. The minutes may subsequently function as a guide for the meeting proceedings. Alternatively, in the absence of a meeting, decisions may be made through unanimous written consent from either the directors or the shareholders. Such consents, which may be signed by each party, should be duly recorded in the corporate records.
It is essential to recognize that the board of directors and shareholders function as collective entities. Individual directors and shareholders lack the authority to execute any corporate actions independently. As a result, the company law framework must make detailed provisions for meetings held by these organisations, and for notice, quorum and voting. Furthermore, it is imperative to maintain a documented record of the actions undertaken, typically referred to as the minutes book. The legal counsel representing the corporation is responsible for overseeing the management to ensure that they do things “by the book.”
Seals
While the use of a formal seal is not mandated, it is customary for most corporations to employ one. The seal is typically applied to various documents, including stock certificates, bonds, evidence of indebtedness, corporate conveyances of real property, certified excerpts from meeting minutes, and significant contracts. Its primary function is to distinguish corporate transactions from those of individuals.
Reference:
[1] Richard D. Freer. The law of corporations in a nutshell. West Pub. Co, 2020.
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