How do I fix a mistake in my company's formation documents?
GovernanceComplianceEquity83(b)
Most problems with company paperwork are fixed with another document, not a lawsuit. The first thing to work out is which kind you have: one that can be corrected at any time, or one whose deadline has already run. A missing signature, a misspelled name, an officer named wrong, bylaws nobody adopted, stock issued without a board consent: these are all fixable, and the fix is a signed correction or a ratification dated the day you sign it.
Fixable at any time
A document that was never signed can be signed now, and the board can ratify anything the company already did on the strength of it. Stock issued without an approving consent is ratified by a board consent describing the issuance; Delaware has a statutory procedure for defective corporate acts when the gap is serious. A wrong name or address on a state filing is corrected by a certificate of amendment or a certificate of correction, with a filing fee. A typo in a founder's stock agreement is an amendment both sides sign.
The ones with a clock
An 83(b) election is due within 30 days of the stock transfer and cannot be filed late. Missing it does not undo the stock; it changes the tax as the stock vests, and a tax adviser should look at the options. A late S corporation election has a relief procedure. A missed annual report or franchise tax is paid with the penalty and good standing comes back.
What not to do
Do not backdate. A document signed today and dated last year is a false record, and it turns a small problem into one that ends financings. Sign the correction today, state the date it was meant to take effect, and say why. Do not file anything untrue with the state, and do not issue the same stock twice to paper over the first issuance.
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Written by the lawyers who built Arabella. This is legal information, not legal advice for your situation, and reading it does not make us your lawyers. For a real dispute or a high-stakes decision, talk to a licensed attorney. More questions.