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Is it too late to adopt by-laws and have meeting of directors?

Edison, NJ |

Dear experts,

In May, 2010, I retained a lawyer to set up a corporation in NJ. On the filing notification, we have three directors for the first board. We only receive blank by-laws from the lawyer. We never have any by-laws, minutes, and resolutions adopted or signed. Thus, we never had any stocks issued. Can we have the first meeting of directors now and adopt by-laws and appoint company officers? Is it too late because it is incorporated last year?

Thanks a lot.

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Attorney answers 3


No, it is not too late. What I recommend is you convene a meeting now, and appoint the officers and adopt the by-laws. If the company has been operations since May, 2010, have the directors ratify all of the past actions by the officers.



Mr. Smith's recommended course of action in the answer above is very sensible. At the same time, there may be other issues at play here. You mentioned that you did not receive completed documents for the corporation. Of particular concern with a corporation would be whether it has elected to be an "S" Corporation for federal income tax purposes or whether you intended to keep your default "C" Corp classification. The "S" election is a time-sensitive filing and, while it may be possible to apply late, it is a much more time consuming process than making the election on time.

I strongly suggest you sit down with a good business attorney in NJ and make sure both your company books and your tax classification are correct and current.

Best of luck in getting these issues resolved!

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One final point to reiterate. The mistake you seem to have made is treating forming an entity as a transaction and not as a team or advisors. As mentioned by others, you have legal and tax matters. You need to have your team of advisors ALL on board and up to speed. Each one then looks after the other. That also includes your outside team of financial advisors, accountants, bankers, etc. Your job is to make sure the pertinent communication flows to all team members so that they can make intelligent and informed decisions for you in 2012. That also goes for your inside team of directors and officers. Eighteen months is a long time to discover that your legal entity was not completed and, if anything had happened, it could have caused serious risk exposure. And tell your first lawyer good riddance [unless you somehow caused the problem which is hard for me to imagine]. Best of Luck.

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