How do I form an entity?

Once you have gone through the exercise of selecting an entity type, a jurisdiction of formation, and consider how the new entity will be governed, the next step will be to officially form the new entity.

Key considerations:

  • What documents must be drafted to form a Water Fund?
  • What are certificates of formation and limited partnership?

The actions and items necessary to form an entity vary depending on the type of entity you are forming and the jurisdiction in which the entity is proposed to be formed. Generally speaking the following steps need to be taken:

  • Choose and reserve a name

    Choosing and reserving a name for the entity with the relevant government authority – typically the Secretary of State or a Division of Corporations or Corporations Commission for states in the United States.

  • Draft formation documents

    Drafting formation documents, which vary depending on the type of entity to be formed and the laws of the jurisdiction in which the entity is to be formed.

  • Regulatory documentation

    Filing necessary formation documents with the state.

  • Governance documentation

    Executing other governance documents for the company, such as a shareholders agreement, if any.

  • Make ancillary filings

    Making ancillary filings including filing to do business in a jurisdiction where the Water Fund has not been formed, applying for tax identification numbers such as an EIN, applying for licenses or permits that the water fund needs to do business.

  • Appoint initial directors, managers, and/or general partners

    Appointing initial directors (if a corporation), managers (for an LLC) or general partner(s) (for a limited partnership). The initial directors of a corporation are typically listed in the initial articles of incorporation or appointed by the sole incorporator of the corporation.

  • Hold organizational meeting of the Board of Directors

    Holding an organizational meeting of the board of directors (for a corporation), at which the directors will approve (by resolution or written consent): ○ Actions of the sole incorporator (ratifying them after the fact). ○ Adoption of bylaws. ○ Appointment of officers. ○ Establishment of the accounting and tax year. ○ Opening a bank account. ○ Issuing shares (to directors, officers, employees or investors, if for-profit and necessary).

  • Gain approval from directors in case of a non-profit corporation

    The directors of a non-profit corporation would also typically approve, at the organizational meeting: ○ Applications for federal and state tax-exempt status. ○ If the non-profit has members, issuance of memberships, and if applicable, setting and scheduling membership dues or other assessments.

What documents must be drafted to form a Water Fund?

If a water fund is structured as a limited liability company the following documents are generally sufficient:

● Certificate of Formation (in Delaware) or Articles of Organization (California) that must be filed with the state.

● Operating Agreement.

If a water fund is structured as a limited partnership there are fewer formalities and generally need a:

● Certificate of Limited Partnership that must be filed with the state.

● Partnership Agreement.

If forming a corporation, the following documents are generally sufficient:

● Certificate of Incorporation or Articles of Incorporation that must be filed with the state.

● Bylaws.

What are certificates of formation and limited partnership?

A certificate of formation and a certificate of limited partnership are formation documents for limited liability companies and limited partnerships, respectively, which are filed with the appropriate jurisdiction’s filing office in order to form the entity. Both certificates generally provide (1) the entity’s name, (2) the name and address of the entity, (3) the name and address of its registered agent for service of process, and (4) the name and address of the incorporator or general partner, as applicable. A limited liability company or limited partnership is not properly formed until a certificate has been filed with the appropriate filing office.

Forms of California articles of organization and Delaware Certificate of Incorporation for limited liability companies are provided below. A form of California Certificate of Limited Partnership is also provided below.