How do I form a new Delaware corporation?

Setting up a new Delaware corporation with Clerky involves three primary steps, which must be completed in the following sequence:

STEP 1. Incorporation.

Incorporation establishes the company as a legal entity with the Delaware Secretary of State.

  • Only one founder (called the Incorporator) signs the incorporation documents.
  • After you complete the Incorporation on Clerky, Clerky submits the signed incorporation documents for filing with the Delaware Secretary of State. Clerky typically gets the filed certificate of incorporation back from Delaware in 2-3 business days, at which time Clerky will email you the filed certificate of incorporation along with further instructions on:
    • STEP 2: Post-Incorporation Setup & Stock Plan Adoption
    • STEP 3: Foreign Qualification

STEP 2. Post-Incorporation Setup & Stock Plan Adoption.

In the Post-Incorporation Setup, the company adopts bylaws, appoints directors and officers, issues stock to the founders, enters into IP agreements with the founders, etc. A company stock plan is also typically adopted immediately after the Post-Incorporation Setup is complete so that the company has shares reserved for employees, consultants and advisors.

  • Do not complete the Post-Incorporation Setup until you receive an email from Clerky that includes:
    1. A copy of the certificate of incorporation stamped FILED by the Delaware Secretary of State.
    2. Instructions to proceed with the Post-Incorporation Setup, Stock Plan Adoption and Foreign Qualification.
  • The Post-Incorporation Setup must be completed before the Stock Plan Adoption.
  • Each founder must file an 83(b) Election with the IRS within 30 days of completing the Post-Incorporation Setup.

STEP 3. Foreign Qualification.

Foreign Qualification qualifies the new Delaware corporation to do business in its home state (More).

  • The email you receive from Clerky at the end of STEP 1 will include a link for completing the Foreign Qualification for your company's home state.
  • If your company is based outside of the United States, contact a local attorney to determine whether the Delaware corporation must register in its home jurisdiction.
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