Board of Directors

The board of directors (often referred to as the board) is the governing body of a Delaware corporation. The board of directors has a specific number of seats. There is no minimum number of seats; solo founders are often the only director at company formation. Most startups are set up so that the size of the board can be easily adjusted at any time.1 The number of directors can never exceed the size of the board.

The board makes decisions either in board meetings or in writing (referred to as written consent). By default, the board can make decisions with a majority vote of the directors present in a meeting.2 Or if the board is making a decision by written consent, unanimous consent of all directors is required. In practice, most board decisions for early stage startups are made by written consent, due to simplicity.3

If a decision is made in a meeting, a quorum is also required. Quorum is the minimum number of directors that must be present at the meeting.4 This is usually a majority of the total number of directors. The board cannot make any decisions in a meeting if quorum is not met. Quorum is irrelevant for board decisions made by written consent, since written consents require the unanimous approval of all directors on the board.

As mentioned earlier, the initial board of directors is elected by the incorporator. Once a corporation issues stock, the stockholders control who is on the board of directors. For most startups, the board of directors consists solely of founders until the startup's Series A financing. Venture capitalists typically join the board of directors in connection with a Series A financing.

Terminology

There can be some confusion due to the fact that some job titles contain the word Director (for example, Director of Engineering). Despite appearances, giving someone such a job title does not put them on the board of directors.

1.
This requires a resolution by the board of directors. Any good startup attorney, or Clerky, can help you with the legal paperwork for this.
2.
Some attorneys recommend always having an odd number of directors, to avoid potential tie votes (also known as deadlocks).
3.
While making a decision in a meeting may sound easier than doing so through written consent, board meetings have many procedural requirements that must be met in order for decisions made during the meeting to be valid.
4.
What constitutes quorum is often defined in the bylaws of a corporation.

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