Startup companies just got new tools to make the formation process a little easier. With the help of the law firm Wilson Sonsini Goodrich and Rosati (if you are a California startup, you have undoubtedly heard of them), TheFunded.com offered up this week its contribution to the recent and growing trend of publishing early stage documents for startups and emerging companies with publication of the following form documents:
- Certificate of Incorporation
- Initial Stockholder Consent
- Invention Assignment Agreement
- Restricted Stock Purchase Agreement
- Indemnification Agreement
- Initial Board Consent
- Action by Incorporator
- Plain Preferred Term Sheet
These are the basic documents used by startup companies to get their ventures off the ground. The Certificate of Incorporation is the only document that is filed publicly with the state, the others govern internal matters within the company.
This is not the first set of legal documents to be released, but most of the other forms have been in the early stage equity investment area. Wilson Sonsini itself published a term sheet generator for each stage venture investment deals, TechStars published a set of model early stage investment documents earlier this year, and of course, there are also the National Venture Capital Association forms for early stage venture investments that have been out for several years. In fact, other firms and organizations have released form documents in an effort to make the process of formation early stage financing easier, cheaper, and more efficient. Wait, did someone accuse lawyers of being inefficient?
So startup lawyers are now expendable?
Don't jump to conclusions too soon. These documents can give you a sense of what is involved in formation and also provide a baseline for your final agreements. However, there are still many things here that you should discuss with your attorney. There is no such thing as a one-size-fits-all set of formation documents. Each company will have individual needs based on the structure of the organization, the people involved, etc. For example, you should at least consider the following:
- These documents assume that your startup is incorporating in Delaware and is located in California. State laws of formation differ and your state may have different requirements that will have an impact on the documents.
- These documents are founder-friendly in that they give a lot of control to the entrepreneurs who form the company. That is great for the entrepreneurs but may become problematic if you have other investors or third parties involved who want to share in that control.
- You may need to consider an additional agreement for the founders to cover other contingencies that affect their relationship. Remember that everyone is happy to be in business together at the beginning. But a little planning up front will help to resolve disputes later.
- If you sign a restricted stock agreement, you will likely (in almost all circumstance) file an 83(b) election. This must be filed at the time you sign or within 30 days in order to enjoy the benefit of recognizing tax on the value of the shares of the fair market value (which should be $0.00 at the time of grant because they are given at fair market value). The alternative is that you will be taxed at each stage of vesting - if the company increases in value, you could be stuck with a tax bill each time without any liquidity (i.e. no cash is paid to you at vesting from the stock).
The bottom line is that forms like these give some more power to entrepreneurs in taking control over the formation process. And because they come from reputable organizations, you can have a piece of mind that you might not find with other online sources. But with this new control comes the responsibility to make sure that you understand what you are getting into. A good startup attorney can walk you through the pros and cons of these documents so that you can feel confident that you are setting up a strong organization.