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Capitalization Matters

Capitalization Matters

Capitalization is the funding of the business venture. A startup will be capitalized by contributions from founders. In exchange for contributed value (funds or assets) the founders will receive shares of the corporation. The corporation should follow the following steps regarding capitalization:

  • Subscription Agreements: A subscription agreement (or stock-purchase agreement) is the agreement entered into by founders of the corporation to purchase shares of the corporation in exchange for a given amount of value. The subscription agreement will lay out the specific types of shares purchased and the rights of the holder of those shares. It may also place additional restrictions on the shares and establish a period of time over which ownership of the shares vest in the purchaser.
  • Stock Certificates: The board generally issue Stock Certificates and Receipts for the purchasers of shares. The stock certificates represent a share of stock of the corporation. Some corporations do not issue stock certificates; instead, these corporations send out notices of Issuance of Uncertified Common Stock.
  • 83(b) Elections: The board may prepare of Memorandum regarding the 83(b) Elections by the founding shareholders. The 83(b) election must be made at the time of issuance. This election locks in the tax basis of the stock at the time of issues. This is important for equity that vests over a period of time and may significantly increase in value by the time it vests. It will avoid an unfortunate tax situation.
  • Securities Filings: Prepare and File Federal and State securities filings for stock issuances to shareholders (Founders)
    • Note: See our Securities law lecture series for more information on the federal and state requirements for securities filings.
  • Stock Issuance & Option Plans: Prepare Stock Option/Stock Issuance Plan & Agreement & Stock Option Agreement or Early Exercise Stock Option Agreement
  • Sample Stock Plan: https://www.orrick.com/Events-and-Publications/Documents/1965.pdf
  • Buy-Sell Agreements: The corporation will want to ensure that the companies shares are not transferred to third parties except under the circumstances approved by the corporation. The buy-sell agreement may provide any number of rights to the corporation, such as the right of first refusal to purchase shares.
    • Note: A well-drafted buy-sell agreement is incredibly important. It can, however, by complex. It is a good idea to seek professional assistance from an attorney skilled in drafting buy-sell agreements.
  • Consents to Service: Prepare and file Form U-2 Uniform Consent to Service of Process (in connection with securities filings).

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