What is the Action by Sole Incorporator?

After the Certificate of Incorporation and Bylaws, the next step in the formation of your technology startup involves getting all the players situated. There are two documents to get this done:

  1. Action by Sole Incorporator
  2. Written Consent of Board in Lieu of First Meeting

When forming a corporation, the Action by Sole Incorporator starts the process by adopting the bylaws and appointing the initial directors. The incorporator is a purely administrative role just to get the board and bylaws in place. After the directors are appointed, the incorporator is never heard from again. There really isn’t much to this document. The only important item is the list of initial directors. You can have as few as one board member.

SPEEDBUMP: Keep the initial structure of the startup as simple as possible. Be careful about adding advisors or other non-founder individuals as board members from the point of formation unless it really makes sense. I think it is important to keep the board, officers and stockholders to the founders, at least initially, to allow for quick execution of documents and efficient decision making. As the startup grows, you will definitely want to bring in knowledgeable third party advisors but it is not usually necessary at the time of incorporation.

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