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The HBS Blog offers insight on Delaware corporations and LLCs as well as information about entrepreneurship, start-ups and general business topics.

Delaware Certificate of Incorporation
By Brett Melson Tuesday, January 17, 2017

delaware certificate of incorporation

 

A Delaware Certificate of Incorporation is the foundation upon which a Delaware corporation is built.

 

Until you receive the approved Certificate of Incorporation back from the Delaware Division of Corporations, you do not yet have a valid Delaware company.

 

The state of Delaware requires very little information to be made public in order to form a corporation; the Certificate of Incorporation only requires a few pieces of information.

 

 

The Information You'll Need to File a Delaware Certificate of Incorporation:

 

  • The name of the Delaware company
  •  The address of the Delaware Registered Office and the name and address of the Delaware Registered Agent
  • The purpose of the company (typically this is drafted broadly and unspecifically to include any lawful activity)
  • The number of shares of stock and par value
  •  The name and mailing address of the incorporator

 

In Delaware, your officers/Directors and shareholders are not usually listed on the Certificate of Incorporation. The preparation, execution and filing of the Delaware Certificate of Incorporation is handled by an incorporator. 

 

An incorporator is an individual or company that forms a corporation on behalf of the corporation's Board of Directors by filing the Certificate of Incorporation with the Delaware Division of Corporations.

 

The incorporator then names the initial Directors of the corporation until the successors are elected (and qualified internally) within the company. The powers of the incorporator are then terminated, and the incorporator shall no longer be considered a part of the corporation.

 

Harvard Business Services, Inc. is the incorporator, on behalf of all our clients, for the companies we file. The Delaware Certificate of Incorporation is signed by Richard H. Bell, II, as president of Harvard Business Services, Inc. 

 

The powers of the incorporator are limited to executing the filing of the document with the Division of Corporations. Once the document is filed, the incorporator releases the company to the initial Directors.

 

No information about the officers or Directors is required to be filed publicly in Delaware in the formation process. It is a nice feature of Delaware; this way, should an officer or Director change, the company is not obliged to file amendments with the Division of Corporations to update that information. 

 

Instead, the change is recorded internally, which allows the business owners to focus on the operation of the corporation rather than tedious paperwork. All Delaware corporations are required to file an annual report each year on or before March 1, naming the Directors and officers.

 

Harvard Business Services, Inc. is here to assist you if you have any questions or concerns about the company formation process and/or the Delaware Certificate of Incorporation. 

 

To file a new company Delaware LLC or corporation now, visit our easy-to-use order form. You can also call us anytime between the hours of 9 AM and 5 PM, Monday through Friday, at 1-800-345-2677. 

 

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2017 Will Be the Year of the Entrepreneur
By Rick Bell Monday, January 16, 2017

2017 year of the entrepreneurIf you feel as if you should have started your company already, or regret not forming your own company in 2016, this can be your year.

 

It’s no secret that the most expeditious way to fulfill your professional dreams is to start a company and become your own boss.

 

There is no better way to achieve wealth. There is no better way to provide for your family.

 

There is no better way to gain freedom from a life of unfulfilling labor.

 

In fact, starting your own company is the best way to fulfill all the aspirations you possess.

 

I’m not saying it’s easy, but it’s easier now, in 2017, than it’s ever been before. It’s easier to form a company, easier to raise money to grow your company and easier to find qualified people to work for your startup. It’s also easier to create a winning idea for your startup.

 

Easier to form a company:

Never before have so many company formation services existed in order to help you set up your company, at a minimum cost. More than 50 companies can help you get started. The cost of starting a Delaware company, one that is completely drafted for you—including filing fees—can be less than $200.

 

Easier to raise money:

Never before have so many angel investor groups been looking for new companies in which to invest. These groups, starting with the New York Angels more than ten years ago, have sprouted up around the country and invested millions of dollars in startups.

 

Once you get beyond the angel stage, a huge pool of venture capital funds are ready to invest billions in young companies.

 

Crowdfunding is another new form of fundraising that has improved the chances of entrepreneurship, making it available to all.

 

Easier to find qualified people:

Millions of people out there are looking for jobs today. Whether you want service workers, high tech engineers, laborers, writers or healthcare professionals, the pool of available workers has never been larger.

 

how to come up with good startup idea

Easier to come up with a winning idea:

Disruption is the name of the game today. Take any product that already exists and make it better with the addition of a microchip, a long-lasting lithium battery and a connection to the internet.

 

That’s it. In the next ten years, every product sold today will be re-made, and will work differently, by improvements in technology, some of which are available at a minimal cost.

 

Pick your product, redesign it and go for it.

 

Get ready to become completely engrossed in your product. Get ready to research every aspect of your product until you achieve the breakthrough that will set you apart from the pack.

 

Get ready to analyze your vision 24/7/365 and refine it continually by finding the true path of least resistance.

 

But your new compny will be fun! It will be rewarding! And it will be fulfilling!

 

So give this some thought: where do you want to be next year at this time? Still wishing you’d already started your company? Or well on your way to fulfilling your dreams?

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We Can Help You Become an Authorized iOS App Developer
By Michael Bell Tuesday, January 10, 2017

how to become an authorized ios apps developer

More and more creative people--whether idea-generators or developers--are trying to sell their app ideas to Apple.

 

We fully encourage and support this entrepreneurial spirt, so we researched the necessary steps you'll need to take in order to become an authorized iOS app developer.

 

The first step required by Apple is that you enroll in their program for $99 a year. Once you have enrolled, you can submit your application.

 

Apple states that it will first review the application and, once it has reviewed your application, you will be informed as to what to provide in order for Apple to approve your company as an App Developer.

 

However, I wanted to know exactly what Apple requires so I asked an array of questions. Here is what I found out:

 

 

  • Apple requires a business license. Business licenses differ by state and type of company, so be sure to obtain the proper business license.

 

 

  • If you are applying as a company, Apple requires a DUNS Number (a nine-digit number that identifies businesses on a location-specific basis).
  • If you are applying as an individual, you will not need a DUNS Number.

 

  • The last and most important thing Apple requires (and for some people, this may be the hardest requirement) is a physical address for your business.

authorized ios app developer

 

Why Do So Many Startups Choose Delaware as the Home State for Their App Company?

 

As many business owners know, one of the major benefits of incorporating in Delaware is the ability to file a new company without listing director, officer or member information on the public record. 

 

Why does this matter? Often, many clients who form an app startup are looking to bring in Venture Capitalists or Angel Investors to help fund their business.

 

If your startup is looking to do that, or at least wants the option, then a Delaware company makes it very easy to distribute ownership percentages (in an LLC) and shares of stock (in a corporation) while still maintaining all confidentiality and liability protection.

 

The Delaware Court of Chancery has been voted number one for having the strongest corporate law structure for past 13 years. What does this mean for you?

 

It helps to put up the biggest wall between one’s business life and one’s personal life, so if a lawsuit were presented against your company, it would make it very hard for a litigant to come after you personally.

 

This, along with many other benefits, helps makes the state of Delaware the number one choice for over 65% of Fortune 500 companies.

 

Your Delaware company does have to actually operate in the state of Delaware. So how do you show the physical address for a business that is incorporated in Delaware but operates elsewhere?

 

Typically, business owners file for Foreign Qualification for corporations and LLCs, also known as Certificate of Authority.

 

Foreign Qualification can help show you are a domestic business entity to Delaware and a foreign entity to the state in which the business is physically conducting business.

 

foreign qualificaiton for an app company

We offer a unique Foreign Qualification service to assist you in preparing and filing for Certificate of Authority in the state in which you are physically conducting business.

 

This can help your business comply with all local and state compliance issues and often help illustrate the information Apple is looking for, such as a physical address to certify you as an Authorized App Developer.

 

Be sure to read all of Apple's relevant information and how it applies to your specific app idea.  

 

For any additional questions on how we can help you become an authorized iOS app developer, please email us at info@delawareinc.com or contact our Sales Department at 800-345-2677, Ext. 6900.

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The Problem with Marijuana Industry Startups
By Brett Melson Monday, January 9, 2017

marijuana industry startups

The cannabis industry is one of the nation's fastest growing industries and is generating enormous interest from entrepreneurs, investors and, of course, regulators and tax authorities. 

 

Twenty-eight states and the District of Columbia have legalized medical marijuana, with fourteen states authorizing the sale and use of medical marijuana just within the last five years. 

 

Eight states and the District of Columbia have gone further and passed laws permitting the recreational use of cannabis and cannabis products.

 

Despite the impediments the industry faces from practical and regulatory obstacles, the legal cannabis market is presently valued at $2.7 billion dollars annually; in Colorado alone, cannabis sales reached $1 billion within the first ten months of 2016.  

 

Since Delaware is known as the Incorporation Capital of the world, we have also seen a large number of startup companies that are operating in the medicinal or recreational marijuana industry.   

 

The easiest part of opening a business in the cannabis industry is the formation of the company. While Delaware allows the formation of companies in the marijuana industry, it will not allow the use of the word “marijuana” or any similar terms in a company’s formation documents.

 

Stocks associated with corporations in the industry that are listed on the publicly traded markets have seen tremendous gains in the last year. However, despite the growth and potential of the cannabis industry, there are a number of difficulties for those operating in the space, primarily due to the treatment of cannabis under federal law. 

 

Marijuana remains illegal under federal law. It is a Schedule 1 controlled substance. Even in the jurisdictions that have legalized medical and/or recreational use of marijuana at the state level, the cultivation, sale and possession of marijuana remains a violation of federal law.

medical marijuana industry

Per a Supreme Court precedent, federal law criminalizing the use of marijuana trumps any state laws that legalize its use.

 

The Obama administration has adopted a policy allowing states to implement marijuana legalization laws; under this administration, federal agencies have not sought to prosecute those operating in accordance with applicable state laws. 

 

Since marijuana remains illegal under federal law, most federally chartered banks and financial services companies will not open accounts for, or process transactions with, businesses operating in the cannabis industry. 

 

Proceeds from the production and sale of cannabis products are currently considered drug proceeds under federal law; as a result, banks that deal with cannabis companies risk potential seizures and/or enforcement activities by federal agencies. 

 

Although some smaller banks are willing to assume a greater risk in dealing with cannabis companies, most large banks simply find the emerging cannabis industry too risky from a regulatory perspective.  As a result, many cannabis companies cannot open or maintain bank accounts or process credit card transactions.

 

Due to these banking complications, cannabis companies cannot use traditional banks or other financial services, so they often operate as cash businesses and thus have difficulty documenting the source and movement of funds for tax filings.

 

Holding significant cash not only raises security issues (robberies of cannabis companies are a very real problem), but it also brings intense scrutiny from the IRS, state tax agencies and the Treasury Department, which polices money laundering.  

 

Cannabis companies are a frequent target of IRS audits, state tax agency investigations and Treasury Department inquiries.

 

In addition to the operational difficulties related to the inability to access banking and financial services, cannabis companies are often unable to obtain bank loans or even mortgages on properties that will be used in the operation of a cannabis business. 

cannabis startups

Other market participants, such as commercial landlords and insurers, are also hesitant to do business with cannabis companies. Many commercial leases contain provisions that prohibit use of a leased property for activities that are illegal under federal law. 

 

As a result of these issues, cannabis companies generally pay far higher rates of interest on lending from alternative capital providers; pay higher rents from landlords willing to lease these businesses space; and are forced to forego insurance that any business would otherwise obtain.

 

Even if the federal government were to soften its stance toward cannabis, it is likely that the Food and Drug Administration will move to regulate cannabis. Such FDA regulation, among many other potential sources of regulation, could prove to be highly burdensome. 

 

Thus legalization may not cure the marijuana industry's regulatory woes and may, in fact, increase them. However, there is a growing number of enterprising startups that are trying to solve these problems, such as Tokken, which aims to help marijuana dispensaries manage their huge influx of cash.

 

It is unclear how state and federal laws and policies will evolve, although many people feel complete legalization is inevitable.

 

Until then, participants may see the cannabis industry as a tremendous opportunity and a new gold rush (or green rush), but they will need to overcome a number of practical and regulatory obstacles and deal with significant operational headaches until cannabis has become more widely accepted by government agencies, traditional financial services institutions and the market as a whole.

 

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1099 Form: When and Why to Use It
By Meri Weiss Tuesday, January 3, 2017

what is a 1099 form

The 1099-MISC form reports total payments to the IRS, from either an individual or an entity, to an independent contractor that has provided services throughout the year that total more than $600.

 

Any person or company that makes payments throughout the year to an independent contractor is mandated by the IRS to report these payments on a 1099-MISC form to both the recipient and the IRS.

 

Examples of types of payments may include:

 

  • Rent
  • Freelance or work-for hire-payments to writers, artists, consultants, etc.
  • Home repair, carpentry, plumbing, electrical and fix-it services
  • Services such as babysitting, childcare, home cleaning and yard maintenance
  • Prize money, award money and winnings
  • Payments in lieu of corporate dividends, salary or bonuses

 

One common use of the 1099-MISC form is for freelancers to report the earnings from their independent contractor work. (Its function is similar to a W-2 for an employee). The 1099 should include the freelancer’s personal information, including name, address and Social Security number or EIN.

 

Equally common is utilizing a 1099-MISC for household help. This would include a person who cleans your home or office and is paid more than $600 during the course of the year to do so but is not on the payroll.

 

Even the person who mows your lawn or cleans your pool is supposed to receive a 1099-MISC form if you pay them more than $600 during the calendar year.

 

However, if your service payments are made by check to corporations, or entities with Employee Identification Numbers rather than individuals, you do not need to send a 1099-MISC.

100 form: when and how to use it

Companies that receive payments for their services are required to keep track of these payments and count them as income for tax purposes.

 

If you are in doubt as to whether or not to send a 1099 form, you should send the individual an IRS W-9 form, which is a request for an individual’s SSN or EIN number.

 

If they report their income as a corporation, you do not need to report payments to them on a 1099 form.

 

The 1099 form also classifies the type of payments received, based on the work completed. Employers should send the 1099 form out by January 31, to both the individual and the IRS.

 

The minimum amount for which a 1099 form must be sent from an employer is $600 annually; every employer or individual that has paid $600 or more during the course of a tax year to an independent contractor is obligated to send a 1099 form by January 31 after the year’s books are closed.

 

Recently, the IRS has been looking more closely at taxpayers’ responsibilities to send W-9 forms and 1099 forms to independent contractors, so make sure you comply. The penalties can add up and be expensive.

 

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