Are bylaws required to incorporate in Delaware?

No, Delaware does not require bylaws to file the certificate of incorporation, but the Board must adopt bylaws to govern day-to-day corporate affairs. Adopt bylaws at the same organizational board meeting where the first officers are elected — waiting creates a governance gap that surfaces in later diligence.

What is the company right of first refusal on common stock?

Article XI of a standard bylaws template requires common stockholders who receive a bona fide third-party offer to give the company 15 days to buy the shares at the same price and terms. Preferred stock and shares issued on preferred conversion are exempt, which is why VC shares can trade freely while common cannot without company sign-off.

Should the number of directors be fixed in the bylaws or the certificate of incorporation?

The certificate of incorporation. A fixed number in the bylaws can be amended by a simple Board vote, while a charter provision requires stockholder approval — the latter is the founder-protective default because it prevents an investor-controlled board from unilaterally expanding to dilute founder influence.

Do we need to hold an annual stockholder meeting or can we use written consent?

Delaware permits stockholder action by written consent in lieu of a meeting, which is how most private startups discharge the annual election of directors. The written consent must be signed by holders of the same voting power that would have been required to approve the action at a meeting — typically a majority of outstanding voting shares.

Are bylaws required to incorporate in Delaware?

No, Delaware does not require bylaws to file the certificate of incorporation, but the Board must adopt bylaws to govern day-to-day corporate affairs. Adopt bylaws at the same organizational board meeting where the first officers are elected — waiting creates a governance gap that surfaces in later diligence.

What is the company right of first refusal on common stock?

Article XI of a standard bylaws template requires common stockholders who receive a bona fide third-party offer to give the company 15 days to buy the shares at the same price and terms. Preferred stock and shares issued on preferred conversion are exempt, which is why VC shares can trade freely while common cannot without company sign-off.

Should the number of directors be fixed in the bylaws or the certificate of incorporation?

The certificate of incorporation. A fixed number in the bylaws can be amended by a simple Board vote, while a charter provision requires stockholder approval — the latter is the founder-protective default because it prevents an investor-controlled board from unilaterally expanding to dilute founder influence.

Do we need to hold an annual stockholder meeting or can we use written consent?

Delaware permits stockholder action by written consent in lieu of a meeting, which is how most private startups discharge the annual election of directors. The written consent must be signed by holders of the same voting power that would have been required to approve the action at a meeting — typically a majority of outstanding voting shares.

The Startup Bylaws Template: A Founder's Article-by-Article

A walkthrough of a Delaware C-Corp bylaws template: stockholder meetings, board composition, officer authority, indemnification, the common-stock right.

Related fundraising guides (23)

Browse by topic (1)

Post-Raise guides

Fundraising library · Pitch deck examples · Investor directory · Founder database

The Startup Bylaws Template: A Founder's Article-by-Article Guide

A walkthrough of a Delaware C-Corp bylaws template: stockholder meetings, board composition, officer authority, indemnification, the common-stock right of first refusal, and 6 mistakes founders make.

TL;DR: Bylaws are the operating manual for your Delaware C-Corp. Most founders adopt a template and never look at it again — until an issue surfaces in diligence, a director resigns mid-round, or a founder tries to sell common stock in a secondary. This guide walks through a standard bylaws template one article at a time, flags the defaults that matter, and lists the six mistakes founders make most often.

Key takeaways

Adopt bylaws at the first organizational board meeting — Delaware doesn't require them for incorporation, but their absence creates a governance gap that surfaces in later diligence.
Fix the number of directors in the certificate of incorporation, not the bylaws — a charter provision requires stockholder approval to change; a bylaw provision can be amended by a simple board vote.
Match the 10% special-meeting threshold to whatever your investors negotiate — a document conflict between bylaws and term sheet is a red flag in the next round.
Article XI (company right of first refusal on common) governs every common-stock transfer with narrow exemptions — respect it in every secondary sale, even friendly ones.
Indemnification lives in Article X, but is only worth what the company can pay — buy D&O insurance at Series A minimum, and add tail coverage before every material transaction.
Hold an annual stockholder meeting (or sign a written consent) every year — skipping director elections technically voids them and creates a diligence issue at M&A.

Why bylaws matter more than founders think

Bylaws are the operating manual for a Delaware C-Corp. They govern who can call a meeting, how directors are elected and replaced, which officers can sign what, when the company can buy back common stock, and how the corporation indemnifies the people who run it. Most founders adopt a standard template and never look at it again — until an issue surfaces in due diligence, a director resigns in the middle of a round, or a founder tries to sell common stock in a secondary. This is a walkthrough of a standard bylaws template one article at a time, with the defaults that matter and the edits worth making.

Article I — Registered office and other offices

Names the registered office (state, city, county) and the registered agent — the person or service that receives legal process. Founders skip this and then can't be served properly, which lets counterparties get default judgments. Two rules: if you incorporated in Delaware but operate in California, your registered office is Delaware and you need a Delaware registered agent (CT Corporation, Cogency, Registered Agents Inc). And update the registered agent immediately when you move — a stale agent means you'll miss lawsuits until the sheriff shows up at your old apartment. Keep the language that lets the Board authorize additional offices anywhere — it's what enables opening a New York or London office without a bylaw amendment.

Article II — Stockholder meetings

Requires an annual stockholder meeting to elect directors and transact business. Many startups skip this and later discover their director elections are technically void. Fix: pass a written consent in lieu of a physical meeting every year (Delaware allows this).

The template lists who can call a special meeting — Chairman, CEO, President, the Board, or stockholders owning 10% or more of the voting shares. That 10% threshold is the founder-protective default. If you accept a term sheet that drops it to 5% (or worse, "any stockholder"), a disgruntled small holder can force meetings that consume weeks of legal time. Match your bylaws to your charter and Investor Rights Agreement — many VC term sheets set 25% or require preferred-majority consent.

Continue reading the full guide