Last reviewed October 7, 2026 · By the NYBACS advisory team
Short answer
An incorporator statement is the written action in which the person who signed and filed a corporation's certificate or articles elects the first board of directors, often adopts the bylaws, and then resigns. It links the public filing to the people who actually run the company. Without it, there may be no record showing how the directors obtained the authority they later used to appoint officers and issue shares.
Key takeaways
- Under Delaware law, if the certificate does not name initial directors, the incorporator manages the corporation until directors are elected.
- Delaware allows incorporators to act by unanimous written consent instead of holding an organization meeting.
- If the certificate names the initial directors, the incorporator's powers end on filing and the directors complete the organization themselves.
- The incorporator is often a filing agent with no ownership, so a recorded handoff to the founders' board matters.
- Delaware provides a statutory procedure to ratify defective corporate acts, but a missing incorporator action is far easier to prevent than to repair.
Where it fits in the formation sequence
A clean corporate record usually builds in this order:
- Certificate of incorporation filed and signed by the incorporator.
- Incorporator statement electing the initial directors, often adopting the bylaws, and recording the incorporator's resignation.
- Initial board consent appointing officers, adopting bylaws if not already done, authorizing founder share issuances, setting the fiscal year, approving bank resolutions and authorizing the EIN application and any foreign qualification.
- Stock purchase agreements and stock ledger recording who received shares and for what consideration.
Each step depends on the authority created by the one before it. The incorporator statement is the hinge between the public filing and everything the founders do afterwards.
What an incorporator statement usually contains
- The corporation's exact name and the date and state of filing.
- The incorporator's name, confirming they signed the certificate.
- The number of directors and the names of the people elected to the initial board.
- Adoption of the bylaws, where the incorporator rather than the board adopts them.
- Any other organizational matters permitted at that stage.
- The incorporator's resignation, effective once the board is in place.
- The incorporator's signature and the date.
It is an internal record. It is not filed with the state, so a copy must be kept in the minute book.
Incorporator statement versus initial board consent
The two documents are often prepared together and confused with each other, but they are signed by different people and do different jobs:
| Incorporator statement | Initial board consent | |
|---|---|---|
| Signed by | The incorporator who filed the certificate | The directors the incorporator elected |
| Main purpose | Elect the first board, often adopt bylaws, resign | Appoint officers and run the company's first business |
| Typical actions | Fix the number of directors; name them | Issue founder shares, set the fiscal year, approve bank resolutions, authorize the EIN application and foreign qualification |
| Needed when | The certificate does not name initial directors | Always |
If the board consent exists but the incorporator statement does not, the directors' authority to sign that consent has no documented source — which is exactly the question a careful reviewer will ask.
Why it matters more for foreign-owned companies
Founders forming from abroad often use a formation provider as incorporator, so the only name on the public record belongs to a stranger. Every later reviewer has to bridge that gap:
- Banks want to see why the person signing the account application has authority.
- Certificates of incumbency and secretary's certificates prepared for overseas use rely on an unbroken chain from incorporator to board to officers.
- Parent-company auditors and investors in due diligence check that directors were validly elected before they approved share issuances.
- Immigration counsel preparing business-based petitions may request formation records that show who controls the company.
A one-page statement answers all of them.
If no incorporator action was ever signed
This surfaces most often during a financing or bank review, when someone asks for the minute book and it contains only the certificate. The fix is not to backdate a document. The usual approach is to prepare accurate, currently dated consents in which the appropriate parties confirm and ratify earlier actions — election of directors, officer appointments and share issuances — and, where shares may have been issued without valid authority, to use Delaware's statutory ratification procedure for defective corporate acts. That route is technical and should be handled with counsel.
The LLC equivalent
LLCs have no board, so there is no incorporator statement. The comparable step is an organizer's statement or resignation, in which the organizer who filed the articles confirms that the members named in the operating agreement now control the LLC. It is short, but banks reviewing a foreign-owned LLC formed by an agent often appreciate seeing it. Like the incorporator statement, it is not filed with the state; keep it with the certificate of formation, the operating agreement and the EIN letter so the whole chain can be produced in one pack.
Common mistakes to avoid
- Backdating an incorporator statement prepared months later instead of documenting the position accurately with ratifying consents.
- Founders signing board consents as "directors" before anyone elected them to the board.
- Issuing founder shares before the board that approves them exists.
- Naming initial directors in the certificate and then preparing an incorporator statement electing different people.
- Leaving out the incorporator's resignation, so it is unclear whether a filing agent retains any authority.
NYBACS 360° support
How NYBACS helps
- Prepares the incorporator statement and initial board consent immediately after your certificate is filed.
- Builds the minute book in the order banks and auditors expect to read it.
- Reviews existing records for gaps and coordinates ratifying consents with counsel where steps were missed.
- Prepares certificates of incumbency based on a verified chain of authority for overseas use.
Frequently Asked Questions
Who can act as incorporator?
Delaware allows any person, partnership, association or corporation to incorporate. In practice it is often the formation provider or a founder; the incorporator does not need to be an owner, director or US resident.
Does the incorporator own any shares?
No. Signing the certificate gives no ownership. Shares are issued later by the board to the founders or parent company under stock purchase agreements.
Do we need an incorporator statement if the certificate names our directors?
Not for electing directors. When initial directors are named in the certificate, the incorporator's powers end on filing and those directors adopt bylaws and complete the organization by their own meeting or written consent.
Is the incorporator statement filed with Delaware?
No. It is an internal corporate record kept in the minute book and produced when a bank, auditor or investor asks for it.
Can the founder be the incorporator?
Yes. A founder can sign the certificate as incorporator and then elect the board, including themself. It simplifies the record, though the founder's name and address then appear on the public filing.
