Extreme bootstrappers sometimes decide to put off incorporating until they have a service or product to release, an investor to bring in, or employees to hire.
Delaying the decision to incorporate (or to form an LLC) can save costs and can also save distraction while the viability of the project is tested.
But if there is more than one founder, to delay is almost always to put the fledgling venture at risk. This is because if one of the presumptive founders bails before there is a company from which to leave, she probably takes her contributions with her (or demoralizes those left with her expectations). But some founders insist that they trust one another implicitly, and embrace this risk. (I've even seen putative founders, pre-incorporation, re-work their original understanding gracefully when one of them decides to bow out.)
The "distraction" of organizing a business into a company is necessary business, vital to the potential value of the company. Eventually, it will be confronted, if not always when optimum.
Here are times when it is almost too late:
- The service or product is out there and it is a hit. It is now going to be an almost impossible task to have every contributor sign assignments of invention and restricted stock agreements. Even if the key founders do so, more likely than not there is a contractor or other contributor who has a different view about his contributions or about his freedom to reuse or replicate them for someone else.
- An investor is ready to write a check, but she insists on putting a valuation to the company that is yet to be formed, and in taking equity. Unless you can afford to send her away, it is now going to be tougher to utilize 83(b) elections to avoid draconian tax consequences down the road when increments of founder vesting lapse.
- The service or product is out there and it is a hit. You've promised options to programmers who've spent nights and weekends helping, but you didn't set up an option plan or price the grants.
Notice that in each of these three scenarios, whether the founders trust one another or not is irrelevant. These are situations where success catches up to the decision to put off organizing a company, and passes it on the left. And to the person looking at that decision from her rearview mirror, it appears the success of your project has caught you by surprise!
Here are the things you won't go wrong in attending to, weeks or months before you release anything:
- Form an entity. Don't do it yourself unless you are really into learning the intricacies of the corporate code in the jurisdiction in which you incorporate. If you are going to do it yourself, borrow a charter from a law firm or lawyer or serial entrepreneur. If you do it yourself and you don't first make yourself an expert, then you're going to end up with cumulative voting or preemptive rights by default or other things you are not going to want, and you are going to miss out on flipping some switches that ought to be flipped in order to opt in to certain things that you do want. I'm not saying you have to pay much attention to your charter, just that if you're going to do it yourself, you're actually going to have to pay a ton of attention to your charter.
- Assign to the company all inventions that are related to the venture. Make sure you know whether you and your fellow founders are legally able to do this (check agreements with prior employers and ventures). You can use a good form to do this but check with a lawyer friend as to: exactly when to do this and what consideration to recite; notices that may be required by the state you live in: and how to handle catching IP that both pre-dates and post-dates the assignment document.
- Figure out the reverse vesting schedule for yourself and your fellow founders. Issue stock to the founders, and file your 83(b) elections immediately thereafter. If you can do this months before generating revenue or taking any investment, so much the better.
- About a month prior to granting any options, set up a written option plan and have a lawyer make any necessary blue sky filings. This should be do-able for a flat fee.
Your bank might want some resolutions, and the state is going to want to know the names of officers and directors, but that's pretty much it for legal stuff to start. You can even skip the bylaws till someone asks to see them.