Founder Separation Review Checklist

Confirm the company obtained a written resignation from the departing founder covering every officer and director position held, dated with an explicit effective date. A director's resignation is effective on delivery unless it names a later date, and an officer may resign at any time on written notice A.1 A.2. The effective date is load-bearing: it starts the contractual repurchase-option window in the founder's RSPA, so an informal or undated resignation can leave the termination date a triable question and forfeit the company's repurchase right. “A resignation is effective when the resignation is delivered unless the resignation specifies a later effective date or an effective date determined upon the happening of an event or events.”

Confirm the board memorialized the separation in a written consent, signed by all directors then in office and filed with the minutes. The consent should accept the resignation, authorize the company to exercise its repurchase right, and direct the stock-ledger and certificate updates. Because the board may act without a meeting only if all directors consent, the consent must be signed by every remaining director. A.3

Where the founder held officer titles that the resignation letter does not cleanly end, check that the board consent expressly removes the founder from those offices. The board (or an officer authorized by the bylaws) may remove an officer as provided in the bylaws or by board resolution — the DGCL does not itself impose a with-or-without-cause standard on officer removal, so check the bylaws and any officer or employment agreement — and recording the removal closes any ambiguity about residual authority, for example signing or banking authority. A.2 “Any officer may resign at any time upon written notice to the corporation.”

Check that the records address the seat the founder vacated — by reducing the authorized board size, by filling the vacancy, or by expressly leaving the seat open pending a later appointment or the next election (common where the seat is designated by a class of stock or a voting agreement). The branches are mutually exclusive, and exactly one should apply. A board vacancy may be filled by a majority of the directors then in office, even less than a quorum, and the parallel rule fills a vacated office as the bylaws provide A.4 A.5. If the certificate of incorporation fixes the number of directors, reducing the board requires a charter amendment rather than a bare board resolution. “Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise, shall be filled as the bylaws provide.”

When the company is exercising a pre-existing right to repurchase unvested shares, confirm a written repurchase-election notice went out within the exercise window set by the founder's RSPA. The DGCL supplies the corporation's power to acquire its own shares but not the window or price — those are private ordering, and the window varies by document (commonly 60, 90, or 120 days, sometimes longer) B.1. Check that the notice identifies the governing agreement, the termination date, the number of unvested shares, the per-share and aggregate price, and the closing date.

Confirm the repurchase closed in a manner consistent with the surplus limit: a corporation may not repurchase its own shares for cash or other property when its capital is impaired or when the repurchase would cause an impairment B.2. For unvested shares bought back at their nominal original price this is rarely a live constraint; for a cash buyback of vested shares it can be, and directors are jointly and severally liable for a wilful or negligent violation for up to six years B.3. Where the repurchase is a negotiated buyback, especially of vested shares, the parties should use the stock repurchase and cancellation agreement rather than the unilateral notice alone.

After the repurchase closes, confirm the company recorded it in its formal records: cancel or take possession of the repurchased certificates (or make the book-entry transfer for uncertificated shares), update the stock ledger, and reflect the change on the cap table. Shares are personal property transferable on the corporation's books C.1, and the stock ledger is a formal corporate record C.2. Because repurchased shares are not automatically retired, the instruction must state whether the shares are cancelled or held as treasury. “The shares of stock in every corporation shall be deemed personal property and transferable as provided in Article 8 of subtitle I of Title 6.”

Check that the executed consents, the repurchase notice, proof of payment, any non-consenting-stockholder notices, and the ledger and cap-table updates are assembled in the minute book. The board consent must be filed with the minutes, and the minute book is a formal corporate record C.3 C.2. The value is evidentiary cleanliness — a complete record answers a later Section 220 demand or diligence request without a scramble.

Check for a short confirmation that the founder's existing confidential-information-and-invention-assignment (CIIAA/PIIA) and confidentiality obligations remain in force after service ends, that all company property and repositories have been returned, and that no release is intended as to those continuing obligations. This is a matter of private ordering — the DGCL does not supply these covenants, and the underlying agreement usually already survives termination — but the confirmation is valuable records hygiene, and it belongs in the minute book alongside the other formal records D.1. It must not purport to create new post-separation restrictive covenants without counsel review.

Where a stockholder act is actually required, confirm the company obtained a stockholder written consent rather than relying on the board consent alone. Stockholders may act without a meeting by written consent signed by the holders of the minimum votes needed at a meeting E.1. The board cannot remove a non-resigning director — removal is a stockholder power E.2 — and stockholder action is likewise needed to amend a charter that fixes board size or to satisfy a voting agreement or protective provision. This module is conditional, not part of the default uncontested pack. If the consent is signed by less than all stockholders, prompt notice must go to those who did not consent E.3.

Where the separation is a negotiated buyback rather than a bare exercise of an existing repurchase right, the parties may include a mutual release of claims, with standard carve-outs for vested rights, indemnification, D&O coverage, and rights as a continuing equity holder. The release is contractual private ordering that rides on the repurchase itself — the DGCL supplies only the underlying power to acquire the shares E.4. A broad release shifts the character of the matter from records hygiene toward negotiated settlement, so it belongs in the repurchase agreement as a rider and is out of place in a routine unvested-share repurchase under a strong RSPA.