Business Formation Documents: A Complete Guide for Small Business Owners

Introduction

Key Things to Know

1. 1

   Your choice of business structure (sole proprietorship, partnership, LLC, corporation) determines which formation documents you need and affects taxation, liability, and operational requirements.

2. 2

   MWBEs should prepare additional documentation for certification programs that can provide access to special contracting opportunities and resources.

3. 3

   Formation documents should anticipate future growth and include provisions for adding investors, changing ownership, or expanding operations.

4. 4

   State requirements vary significantly, so research your specific state's filing procedures, fees, and ongoing compliance obligations.

5. 5

   Working with a business attorney to draft or review your formation documents is an investment that can prevent costly legal issues in the future.

6. 6

   Proper formation documents not only establish your business legally but also create the foundation for business relationships, financing opportunities, and eventual business sale or succession.

7. 7

   Keep your formation documents updated as your business grows and changes to ensure they continue to serve your needs and comply with current laws.

Louisiana Requirements for Business Formation Documents

• Articles of Organization/Incorporation (Louisiana Revised Statutes 12:1304 (LLC) or 12:24 (Corporations))

  The primary document filed with the Louisiana Secretary of State to legally establish a business entity. Must include the company name, registered agent, business purpose, management structure, and initial members/shareholders.

• Operating Agreement/Bylaws (Louisiana Revised Statutes 12:1301 et seq. (LLC) or 12:21 et seq. (Corporations))

  Internal governing document outlining ownership percentages, voting rights, management responsibilities, profit distribution, and procedures for adding/removing members or transferring ownership.

• Registered Agent Designation (Louisiana Revised Statutes 12:1308 (LLC) or 12:104 (Corporations))

  Designation of a person or entity authorized to receive legal documents on behalf of the business. Must maintain a physical address in Louisiana.

• Business Name Compliance (Louisiana Revised Statutes 12:1306 (LLC) or 12:23 (Corporations))

  Business name must be distinguishable from other registered entities and include appropriate designators (LLC, Inc., etc.). Name reservation may be required before filing formation documents.

• Federal Tax ID (EIN) Requirements (Internal Revenue Code § 6109)

  Obtaining an Employer Identification Number from the IRS for tax filing purposes, banking, and hiring employees.

• Business License Requirements (Louisiana Revised Statutes 47:341 et seq.)

  Compliance with state and local licensing requirements specific to the business type and location within Louisiana.

• Initial Report Filing (Louisiana Revised Statutes 12:1309 (LLC) or 12:101 (Corporations))

  Required filing with the Louisiana Secretary of State within 30 days of formation, providing updated information about the business.

• Securities Compliance (Securities Act of 1933; Louisiana Securities Law (R.S. 51:701 et seq.))

  For corporations issuing stock, compliance with federal and state securities laws regarding registration, exemptions, and disclosure requirements.

• Tax Election Provisions (Internal Revenue Code § 1362 (S-Corp); Louisiana Revised Statutes 47:287.701)

  Documentation of tax status elections (S-Corporation, partnership, etc.) affecting how the business is taxed at federal and state levels.

• Member/Shareholder Rights (Louisiana Revised Statutes 12:1319 (LLC) or 12:103 (Corporations))

  Clear delineation of rights regarding voting, inspection of records, participation in management, and other ownership privileges.

• Capital Contribution Requirements (Louisiana Revised Statutes 12:1321 (LLC) or 12:51-12:59 (Corporations))

  Documentation of initial and ongoing capital contributions, including valuation of non-cash contributions and consequences for failure to contribute.

• Dissolution Procedures (Louisiana Revised Statutes 12:1334-1340 (LLC) or 12:141-12:151 (Corporations))

  Procedures for voluntary or involuntary dissolution of the business, including required filings, asset distribution, and winding up of affairs.

• Foreign Business Registration (Louisiana Revised Statutes 12:1342 (LLC) or 12:301-12:316 (Corporations))

  If the business was formed in another state but operates in Louisiana, registration as a foreign entity is required.

• Annual Reporting Requirements (Louisiana Revised Statutes 12:1308.1 (LLC) or 12:102 (Corporations))

  Compliance with ongoing annual reporting and fee requirements to maintain good standing with the Louisiana Secretary of State.

• Anti-Fraud Provisions (Securities Exchange Act of 1934; Louisiana Unfair Trade Practices Act (R.S. 51:1401 et seq.))

  Compliance with federal and state laws prohibiting fraudulent practices in business formation and securities offerings.

• Employment Law Compliance (Fair Labor Standards Act; Louisiana Employment Laws (R.S. 23:1 et seq.))

  Documentation of compliance with federal and state employment laws if the business will have employees.

• Intellectual Property Protection (Lanham Act; Copyright Act; Louisiana Uniform Trade Secrets Act (R.S. 51:1431 et seq.))

  Provisions addressing ownership and protection of business intellectual property, including trademarks, copyrights, and trade secrets.

• Business Succession Planning (Louisiana Revised Statutes 12:1330-1333 (LLC) or 12:75 (Corporations))

  Provisions addressing what happens to ownership interests upon death, disability, or withdrawal of an owner.

• Indemnification Provisions (Louisiana Revised Statutes 12:1315 (LLC) or 12:83 (Corporations))

  Clauses outlining when and how the business will indemnify its officers, directors, managers, or members against legal claims.

• Benefit Corporation Provisions (Louisiana Benefit Corporations Act (R.S. 12:1801 et seq.))

  For businesses seeking benefit corporation status, provisions addressing public benefit purpose and reporting requirements.