Incorporation Questionnaire for Startups from Orrick, Herrington & Sutcliffe LLP

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This form should be filled out completely. Ask your Orrick contact about any questions you may have, but try not to leave any blanks. There are a number of choices to be made as a threshold matter, such as choice of entity (corporation, LLC, partnership, etc.) and choice of jurisdiction (Delaware, California, etc.). These are questions you should discuss with an attorney.Original source for this document is http://www.Paperwell.com.NOTE: Nothing in this document should be considered legal advice, and no attorney-client relationship is formed by your use of this document. This information may not be suited for your specific situation. Please consult an attorney to address your particular needs.

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INCORPORATION QUESTIONNAIRE (Delaware Corporation) 1. Contact Information: Address: (street address necessary) Contact Person: Email address: Telephone number: Fax number: 2. Name: a. Proposed name of corporation: Alternate names: b. Has name been reserved? If yes, when will reservation expire? c. d. Name must also be available for use in the following states: Will the business be conducted under a fictitious name?

If so, list the name: 3. Trademark: a. Should Orrick request a trademark search regarding the name? If yes, how should the search be performed? _____ On-line search ($100.00 for legal fees and database access costs) _____ Thomson & Thomson search ($390.00 per mark) b. c. Mark(s) or name(s) to search: If mark or name is clear, should Orrick carry out trademark prosecution?

4.

Purpose of corporation: a. Generally: any lawful act or activity _____ bank or trust company _____ professional corporation _____ nonprofit corporation _____ b. Brief description of proposed business activities (if it will be a nonprofit corporation, provide specific details):

5.

In which other states will the corporation do business or own property?

6.

Name and street address of initial agent for service of process: a. In Delaware: Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808 Other: b. In California, or other state in which Company will do business (preferably an individual): Corporation Service Company, which will do business in California as CSCLawyers Incorporating Service Other:

7.

Directors: a. Number: fixed at __________ OR flexible number of directors: i. minimum of__________

ii. iii. b.

maximum of__________ initially fixed at ________

Initial directors (the first director listed will be designated the Chairman of the Board):

Name/ Email Address / Fax Number/ Street Address (business or residence) ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ 8. Officers[1]:

Name/ Title/ Email Address / Street Address (business or residence) ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ [FOOTNOTE 1: The same person can hold more than one office. Delaware law does not require any particular number or type of officers. If qualified in California, it’s a good idea to have a CEO a CFO and a Secretary at a minimum.] 9. Capitalization: a. Number of each class of authorized shares: i. shares of common[2]: _______________ par value per share: ________________ ii. _____ shares of __________ (attach description) $_____ par value iii. _____ shares of __________ (attach description) $_____ par value b. c. Number of shares to be initially issued: Proposed initial stockholders and consideration:

Name and Address/ Number of Shares/ Class of Stock/ Amount and Form of Consideration ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ Describe Any Special Vesting Provisions: d. Will any of the funding be provided indirectly or directly by non-U.S. investors? __________ If yes, what percentage voting interest in the corporation will the non-U.S. investor(s) acquire? _______________ [3] e. Type of consideration: 1. _____ Cash or cancellation of indebtedness 2. _____ Promissory Note (note that at least the par value of the shares cannot be paid by the note) 3. _____ Assets (includes personal property and leases of real property) (Describe: ) 4. _____ Services actually rendered to the corporation (i.e., not future services) f. Will the shares be freely transferable (subject to requirements of federal and state law)? _____

[FOOTNOTE 2: Note that because Delaware corporate tax and annual franchise tax are based on the number of shares and the par value of the shares, it is advantageous for a corporation to have a relatively small number of shares and to assign a low par value to the shares (e.g., $0.0001). There are two methods for calculating annual franchise taxes: the Authorized Shares Method and the Assumed Par Value Capital Method. The method which results in the lesser tax may be used by the Company, but note that Delaware will initially send a report of taxes owed based on the Authorized Shares Method which is usually much higher than the alternative method for small thinly capitalized startup companies. Refer to Section 503 of the Delaware General Corporation Law for a more detailed explanation on how to calculate the annual franchise tax. The typical approach is to authorize a number of shares of common stock equal to the fully diluted pre-money valuation of the Company so that the Series A can be sold for $1.00 per share which has optical significance to VCs. This must be counterbalanced by the need to grant

options in relatively large share amounts which has optical significance to employees. For example, if the pre-money valuation is likely to be less than $10 million, the Company will probably want to authorize a number of common shares equal to 2X (or some other round multiple) of the pre-money valuation, even though this will mean the Series A shares will be sold for less than $1.00 per share.] [FOOTNOTE 3: If the percentage ownership of the non-U.S. investors is calculated as 10% or greater, the corporation will be required to make a filing (i.e., Form BE-13 or filing for exemption thereto) with the U.S. Department of Commerce to report the acquisition.] If not, attach rider describing transfer restrictions, including any: i. Vesting provisions. To assist in the completion of the 83(b) election forms, provide the social security number of each shareholder and shareholder’s spouse: Buy-sell arrangements. Co-sale agreements. Right of first refusal provisions.

ii. iii. iv. g.

Will the corporation initially have (if any, attach rider describing principal terms): 1. 2. 3. 4. 5. voting agreement or voting trust agreement irrevocable proxy stock option plan other executive compensation plans employment contracts

h.

Are there subscription or other preincorporation agreements? (If so, attach a rider describing the proposed principal terms)

i.

Will there be an initial debt financing? If yes, describe terms:

10.

Except as indicated below, a. All directors and officers will be given irrevocable mandatory indemnification to the fullest extent permitted by law under the Charter. All shares will have equal voting rights. Corporate existence will be unlimited in duration. All shares will be fully paid for. Shares will not be subject to assessment. Stockholders will not have preemptive rights. No limitations will be placed upon the business engaged in and powers exercised by the corporation. No supermajority will be required and no special quorum will be required for any action. There are no special qualifications for being a stockholder. The directors, and not the stockholders, will determine consideration to be received for future shares. Exceptions (state if there are none):

b. c. d. e. f. g.

h.

i. j.

11.

Additional Information: a. b. c. d. Fiscal year of corporation ends (generally suggest 12/31): Accountants (name, address and telephone): Bank (name and address): Information for Employer I.D. Number (required for corporation to open bank account and for tax purposes): 1. 2. Name and social security number of officer who will sign the form: First date corporation will pay wages:

3.

Peak number of employees expected in next twelve months in each of the following categories: a) b) c) nonagricultural agricultural household

4.

To whom will the corporation sell most of its products or services? _____ business (wholesale) _____ public (retail) _____ other (specify)

5.

Has principal officer of corporation filed for an Employer Identification Number before? __________ If yes: a) b) Name of previous corporation/applicant: When (month/day/year) and in which city was previous EIN obtained? Previous EIN:

c) e.

S corporation election? [4] If yes, provide social security number of each shareholder and shareholder’s spouse, if not previously provided in item 8.f(1) above:

[FOOTNOTE 4: Note that if a corporation elects to be treated as an S corporation, and if it wants the election to be effective for the first income year, the federal and state election forms must be filed with the IRS on or before the 15th day of the third month of the corporation’s first income year (which starts when it has stockholders, acquires assets or begins doing business, whichever occurs first).] f. Information for California Employment Development Department registration form (required only if new corporation will have employees): 1. Social Security numbers: CEO

V.P. Secty. Treas. 2. Driver’s license number: Pres. V.P. Secty. Treas. 3. Will payroll exceed $100.00 in any calendar quarter? If so, when? 4. First month that worker contributions for disability insurance will exceed $100.00 or personal income tax withheld exceeds $250.00. Nature of business - check one: _____ retail trade _____ wholesale trade _____ service _____ repairing _____ manufacturing _____ contracting _____ other Describe kind of product or type of service: 6. Name, title, residence address, business phone, residence phone, and driver’s license number of person who will be signing the registration form:

5.

g.

Should Orrick order a corporate seal? Should Orrick order a minute book?

Get A Lawyer To Review Your Changes. $40 Flat Fee. Go To: http://www.paperwell.com/verify

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