Incorporation Agreement Draft

INCORPORATION AGREEMENT DRAFT

This Incorporation Agreement (the "Agreement") is entered into as of Effective Date: by and among Incorporator Name: with address: , and Co-Incorporator Name: with address: (collectively, the "Incorporators"), for the purpose of forming a corporation to be known as Corporation Name: under the laws of State of Incorporation: .

RECITALS

WHEREAS, the Incorporators desire to organize a business corporation pursuant to the applicable statutes of the State of Incorporation for the purpose of conducting lawful business and to set forth the initial terms governing its corporate existence; and

WHEREAS, the Incorporators have agreed to make initial capital contributions and to adopt initial organizational actions necessary to effectuate incorporation on the terms and conditions set forth in this Agreement; and

WHEREAS, the parties wish to establish certain restrictions, representations and covenants relating to the issuance, transfer and ownership of the corporation's capital stock.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. NAME AND FORMATION

1.1 Formation. The Incorporators shall cause articles of incorporation (or certificate of incorporation) to be filed with the appropriate filing office of the State of Incorporation in form and substance reasonably satisfactory to the Incorporators. The corporation shall be known as Corporation Name: . The date of incorporation shall be the date of filing with the State of Incorporation.

2. PURPOSE

2.1 Purpose. The corporation is organized for the following lawful business purposes and any other activities incidental thereto:

3. PRINCIPAL OFFICE AND REGISTERED AGENT

3.1 Principal Office. The initial principal office of the corporation shall be located at:

3.2 Registered Agent. The initial registered agent and registered office for service of process in the State of Incorporation shall be:

4. AUTHORIZED CAPITAL STOCK

4.1 Authorized Shares. The corporation's total authorized capital stock shall consist of:

4.2 Classes. The form and rights of each class of stock, if any, shall be as set forth in the articles of incorporation. Any designation of rights, preferences and limitations shall be evidenced in the articles and in any agreement executed by the corporation.

5. INITIAL CAPITAL CONTRIBUTIONS; STOCK ISSUANCE

5.1 Contributions. The Incorporators shall make the initial capital contributions described below in consideration for the issuance of shares of the corporation's capital stock subject to the representations, warranties and restrictions set forth herein.

5.2 Stock Certificates; Restrictions. Stock certificates shall be issued only upon full payment of the consideration stated therefor. Unless otherwise provided in this Agreement, any transfer of shares shall be subject to the restrictions set forth in Section 12 below and in any shareholder agreement adopted by the corporation.

6. BOARD OF DIRECTORS; OFFICERS

6.1 Initial Board. The initial board of directors shall consist of Number of Directors: and the initial directors are:

6.2 Officers. The initial officers of the corporation and their respective titles shall be:

7. BYLAWS AND CORPORATE ACTION

7.1 Adoption of Bylaws. The initial bylaws of the corporation shall be adopted by the incorporators or by the board of directors at the first organizational meeting. The bylaws shall govern the internal management of the corporation consistent with the articles of incorporation and applicable law.

7.2 Initial Organizational Acts. The Incorporators shall cause the initial organizational actions, including the appointment of initial directors and officers, opening of bank accounts, and execution of necessary agreements, to be completed promptly after formation.

8. REPRESENTATIONS AND WARRANTIES

8.1 Each Incorporator represents and warrants to the corporation and to the other Incorporators that such party has full power and authority to enter into this Agreement, that the execution and delivery hereof has been duly authorized, and that this Agreement constitutes a legal, valid and binding obligation enforceable in accordance with its terms.

8.2 No Litigation. To the knowledge of each Incorporator, there is no action, suit or proceeding pending or threatened against such Incorporator that would impair its ability to perform its obligations under this Agreement.

9. COVENANTS

9.1 Good Standing. The parties covenant to take all actions necessary to maintain the corporation in good standing with the applicable filing authorities and to comply with all statutory requirements applicable to corporations of the State of Incorporation.

9.2 Confidentiality. Each Incorporator shall hold in confidence all proprietary information and trade secrets of the corporation and shall not disclose such information except as required by law or with the corporation's prior written consent.

10. INDEMNIFICATION

10.1 Indemnification. The corporation shall indemnify and hold harmless each director, officer and incorporator to the fullest extent permitted by law against liabilities and expenses reasonably incurred in connection with any claim, action or proceeding arising out of the performance of duties on behalf of the corporation.

11. TAX ELECTION

11.1 Tax Classification. The parties may elect the corporation's federal and state tax classification as appropriate. Check if an S corporation election is desired at the time of incorporation:

If selected, the parties shall cooperate to prepare and file any necessary election within the time limits prescribed by applicable tax authorities.

12. TRANSFER RESTRICTIONS

12.1 Right of First Refusal; Transfer Approval. Except as expressly permitted by this Agreement, any proposed transfer of shares by a shareholder shall be subject to a right of first refusal in favor of the corporation and/or the remaining shareholders and shall require approval in accordance with the bylaws.

13. NOTICES

13.1 Notices. Any notice required or permitted under this Agreement shall be in writing and shall be deemed given when delivered personally, sent by certified mail, or sent by nationally recognized overnight courier to the addresses set forth below or to such other address as a party may designate in writing.

14. AMENDMENT; WAIVER

14.1 Amendment. This Agreement may be amended only by a written instrument signed by all parties hereto.

14.2 Waiver. No failure or delay by any party in exercising any right or remedy under this Agreement shall operate as a waiver thereof, and no waiver shall be effective unless in writing signed by the party granting the waiver.

15. COUNTERPARTS

15.1 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original and all of which together shall constitute one and the same instrument. Signatures delivered by electronic means or as facsimile copies shall be binding for all purposes.

16. GOVERNING LAW; ENTIRE AGREEMENT; SEVERABILITY

16.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Incorporation without regard to principles of conflicts of law.

16.2 Entire Agreement. This Agreement, together with the articles of incorporation and the initial bylaws, constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, whether written or oral.

16.3 Severability. If any provision of this Agreement is held to be invalid or unenforceable under applicable law, such invalidity or unenforceability shall not affect the other provisions of this Agreement, which shall remain in full force and effect.

17. MISCELLANEOUS

17.1 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.

17.2 Further Assurances. Each party shall execute and deliver such additional documents and take such further actions as may be reasonably necessary to carry out the purposes and intent of this Agreement.

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