Draft Action By Incorporator

---
name: action-by-incorporator-delaware
task_id: corporate-governance/draft-action-by-incorporator
description: Drafting an action by written consent of the sole incorporator for a Delaware corporation formation, separating incorporator-authority actions from initial board actions and producing a cover memo identifying cross-document discrepancies.
activates_for: [planner, solver, checker]
---

# Skill: Delaware Corporation Formation — Action by Incorporator

## 2. Failure modes the skill is correcting

- Collapsing incorporator-authority steps and board-authority steps into one consent, which obscures who had power to act at each stage
- Putting substantive governance, financing, or issuance decisions into the incorporator consent instead of reserving them for the initial board
- Failing to preserve the legal sequence: incorporator action first, board appointment next, then board action
- Missing inconsistencies across the formation packet on capitalization, par value, board composition, registered office/agent, or other core formation terms
- Drafting a memo that summarizes the packet without flagging concrete conflicts, ambiguities, or follow-up items that must be reconciled before execution
- Using the wrong controlling Delaware corporation-law authorities for the division of authority between incorporator and directors

## 3. Legal frameworks / domain conventions that apply

- Delaware General Corporation Law governs the formation workflow; use the DGCL provisions on incorporators, directors, bylaws, and organizational authority as the baseline authority
- The incorporator’s role is limited to organizational acts authorized by Delaware law and the formation documents; once the initial board is appointed, incorporator authority ends
- The initial board, not the incorporator, handles substantive post-formation governance and operational actions permitted by the DGCL and the certificate/bylaws
- The document set should reflect a clean handoff from incorporator to board, with recitals that track the order of events
- Formation documents must be read together for consistency on authorized capital, par value, board size or identity, principal office, and registered agent
- If the source packet is internally inconsistent or incomplete, the drafting should preserve the discrepancy in the memo rather than silently harmonizing it
- Any legal proposition stated in the drafting or memo should be tied to the governing authority by name and section where practicable, including the DGCL and any source-documented authority references

## 4. Analytical scaffolds

- Separate-authority scaffold: identify which requested actions belong to the incorporator, which belong to the initial board, and which must not appear in the incorporator consent
- Chronology scaffold: draft the recitals so they show formation, incorporator action, board appointment, and subsequent board action in the correct sequence
- Consistency-check scaffold: compare the certificate of incorporation, bylaws, financing materials, and organizational instructions for differences in capital structure, par value, governance terms, and registered office details
- Discrepancy-triage scaffold: for each conflict or ambiguity, state what document(s) conflict, what term differs, and whether the issue is a drafting correction, an interpretive ambiguity, or a substantive follow-up item
- Authority-citation scaffold: when stating why a step belongs in one document rather than the other, name the statutory or source-document authority supporting that allocation
- Drafting-scope scaffold: keep the incorporator consent ministerial and organizational; do not import board resolutions unless the task materials clearly require a companion board action and the output format allows a separate section for it

## 5. Vertical / structural / temporal relationships

- The incorporator acts before the initial board exists; the board cannot validly act until after appointment
- The appointment of directors is the endpoint of incorporator authority and the starting point for board authority
- Formation terms in the certificate control over inconsistent later recitations unless the source package expressly indicates a correction or amendment
- Recitals and operative clauses should mirror the transaction timeline, not merely the order in which the source documents were provided
- If the packet contains both formation and financing documents, verify that financing-related references do not improperly appear in the incorporator action when they are board-level or post-formation matters
- Where the source materials are ambiguous about sequencing or authority, the memo should flag the ambiguity and avoid overcommitting to a disputed reading

## 6. Output structure conventions

- Produce the primary document first: the action by written consent of the sole incorporator, written as a standalone corporate record in conventional Delaware style
- If a companion board action is necessary or expressly requested by the source materials, keep it separate from the incorporator consent and label it distinctly
- Include a concise cover memo that follows the draft and identifies:
  - the authority split between incorporator and board,
  - any cross-document discrepancies,
  - any ambiguities needing confirmation before execution,
  - any follow-up drafting points required to complete the formation record
- Use standard corporate drafting conventions: caption, recitals, operative resolutions, and execution block where appropriate
- Keep the memo practical and issue-focused; do not restate the entire packet
- Ensure the final file delivered is the requested `action-by-incorporator.docx`, with operative drafting content rather than a description of the drafting process