Q. A partner and I are planning to open a small publishing house, and we have five people who are willing to invest money for shares, so we are planning to open as a S Corp. I have several questions about having shareholders, including: Do we have to have a Board of Directors?
What kind of powers do directors actually have? What exactly should we cover in our bylaws if we incorporate? Should we just get stock bylaws we can order somewhere or should they be specific to our company? If we decide to have shareholders, do we need Buy-Sell Agreements? What should a Buy-Sell agreement cover? If we decide not to take shareholders and have a partnership, what type of Buy-Sell Agreement should we have and why? If we do this business as a S Corp, must we keep Corporate Book, and if so what must be included in the books and how, when, and why must the books be updated?
First, opening a small business is exciting; however, for the untrained and weary, it is very scary. Most owners just focus on making the widgets or providing the service and forget all the behind the scenes things that must be done or worse yet, listen to friends who are not qualified. In your question, you focus on an S Corporation like that is a separate entity recognized by the Texas Secretary of State. You are partly right.
An “S” corporation is not a matter of state corporate law but rather a federal tax election. A for-profit corporation elects to be taxed as an “S” corporation by filing an election with the Internal Revenue Service within a certain time period. In the eyes of the Texas Secretary of State all Texas corporations are the same. The IRS and/or competent tax counsel will be able to assist with the decision to be taxed as an “S” corporation and the requirements for filing the election. Setting up an S corporation is not a matter with which the Secretary of State will assist.
Do we have to have a Board of Directors?
No. As you know, a corporation is a legal person with limited liability, centralized management, perpetual duration and ease of ownership transferability. Owners of a corporation are called shareholders and those who manage the corporation are called directors. However, Texas state law does allow for shareholders to enter into a shareholder agreement to eliminate directors and manage the corporation. For a small business this may be advantageous; however, if you ever want to sell stock to a shareholder, it is likely that shareholder will not want to participate in the management of the corporation.
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