Keith Mack
In the state of Delaware, a corporation can amend its certificate of incorporation by filing a Certificate of Amendment with the Division of Corporations. This process is in accordance with the Delaware General Corporation Law (DGCL) and requires a fee. Amendments can be made to a corporation's name, business nature, or stock classifications. Before a corporation has received any payment for its stock, it may amend its certificate of incorporation at any time, as long as the amendments are lawful and proper. After a corporation has received payment for its stock, it may still amend its certificate of incorporation, but it must follow certain procedural requirements, including obtaining board resolutions and stockholder approval for certain amendments.
| Characteristics | Values |
|---|---|
| Who can amend a certificate of incorporation under Delaware law? | A corporation can amend its certificate of incorporation by filing a Certificate of Amendment with the Division of Corporations. |
| When can a corporation amend its certificate of incorporation? | A corporation can amend its certificate of incorporation before or after receiving payment for its capital stock. |
| What is required to amend a certificate of incorporation? | Board resolutions and stockholder approval are required for certain amendments. The specific requirements depend on the type of amendment and the structure of the corporation. |
| What can be amended in a certificate of incorporation? | Amendments can change corporate names, business nature, or stock classifications. |
| Are there any fees associated with amending a certificate of incorporation in Delaware? | Yes, the Delaware Division of Corporations charges a $194 filing fee for a Certificate of Amendment. There is an additional $9 fee for each additional page, and a certified copy of the filing can be obtained for $50. |
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What You'll Learn
Before payment for stock
Under Delaware law, before a corporation has received any payment for its stock, it can amend its certificate of incorporation at any time and in any manner, provided that the amended certificate contains only provisions that would be lawful and proper to include in the original certificate filed at the time of the amendment.
The amendment must be adopted by a majority of the incorporators if no directors were named in the original certificate or if directors have not yet been elected. If directors were named or have been elected and qualified, the amendment must be adopted by a majority of the directors.
The process of amending a certificate of incorporation involves filing a Certificate of Amendment with the Division of Corporations, in accordance with the Delaware General Corporation Law (DGCL). This typically incurs a $194 filing fee, with an additional $9 charge for each extra page. Obtaining a certified copy of the filing for record-keeping costs $50.
Amendments can change corporate names, business nature, or stock classifications. For instance, a corporation may amend its certificate of incorporation to increase or decrease the number of authorized shares of a specific class or classes of stock. However, the number of shares cannot be decreased below the number of shares outstanding.
It is important to note that certain amendments may require board resolutions and stockholder approval. For example, if the amendment increases or decreases the authorized number of shares of a class of capital stock, the votes cast for the amendment by the holders of such class must exceed the votes cast against it.
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After payment for stock
After a corporation has received payment for any of its capital stock, it may amend its certificate of incorporation at any time, as long as the amended certificate contains only such provisions as it would be lawful and proper to insert in an original certificate of incorporation filed at the time of the amendment. Amendments can be made to a Delaware corporation's original certificate of incorporation by filing a Certificate of Amendment with the Division of Corporations. This filing is in accordance with the General Corporation Law of the State of Delaware, and there is a fee involved.
The Delaware Division of Corporations charges a $194 filing fee to process a Certificate of Amendment. If the certificate is longer than one page, a $9 charge is added per additional page that needs to be printed. A certified copy of the filing can be obtained for $50 to keep in the records of the Delaware corporation. Delaware's state law allows for the amendment of nearly all articles found on the Certificate of Incorporation. Amendments can change corporate names, business nature, or stock classifications.
A corporation may amend its certificate of incorporation to increase or decrease the number of authorized shares of any class or classes of stock. This can be done by the affirmative vote of the holders of a majority of the stock of the corporation entitled to vote. If the corporation is a non-stock corporation, then its governing body shall adopt a resolution setting forth the proposed amendment and declaring its advisability.
If the certificate of incorporation prohibits the reissuance of shares, a certificate stating that the reissuance of the shares is prohibited shall be executed, acknowledged, and filed. When such a certificate becomes effective, it shall have the effect of amending the certificate of incorporation to reduce the number of authorized shares of the class or series to which such shares belong.
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Nonstock corporations
In Delaware, a nonstock corporation may amend its certificate of incorporation after it has members. The amendment may be made in any number of respects, as long as the amended certificate of incorporation contains only such provisions as it would be lawful and proper to insert in an original certificate of incorporation filed at the time of the amendment.
The certificate of incorporation of a nonstock corporation may contain a provision requiring any amendment to be approved by a specified number or percentage of members or a specified class of members. In such cases, the proposed amendment must be submitted to the members or specified class of members in the same manner as for an amendment to the certificate of incorporation of a stock corporation. If the amendment is adopted by the members, a certificate evidencing the amendment must be executed, acknowledged, and filed, and it will become effective in accordance with § 103 of the Delaware Code.
If the corporation is a nonstock corporation, the governing body must adopt a resolution setting forth the proposed amendment and declaring its advisability. If a majority of all the members of the governing body vote in favor of the amendment, a certificate must be executed, acknowledged, and filed, and it will become effective under § 103 of the Delaware Code.
The certificate of incorporation of a nonstock corporation must state that the corporation is not authorized to issue capital stock. It must also state the conditions of membership or other criteria for identifying members. Nonstock corporations may provide for classes or groups of members with relative rights, powers, and duties, and they may make provisions for the future creation of additional classes or groups of members with such relative rights, powers, and duties as may be established from time to time, including rights, powers, and duties senior to existing classes and groups of members. Nonstock corporations may also provide that any member or class or group of members shall have full, limited, or no voting rights or powers.
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Board resolutions
A Delaware corporation can amend its original Certificate of Incorporation by filing a Certificate of Amendment with the Division of Corporations. This process is in accordance with the Delaware General Corporation Law (DGCL). Amendments can change corporate names, business nature, or stock classifications.
The procedural requirements under Section 242 of the DGCL outline the need for board resolutions and stockholder approval for certain amendments. If directors are named in the original certificate of incorporation or have been elected and qualified, the amendment must be adopted by a majority of the directors.
In the case of a nonstock corporation, the governing body shall adopt a resolution setting forth the proposed amendment and declaring its advisability. This resolution can be adopted without a vote of the stockholders, as outlined in Section 241 or without a vote of members pursuant to 242(b)(3).
The execution and filing process under Section 103 of the DGCL is also important to consider. It requires setting out the amendment text and certifying its adoption. Amendments can be made to nearly all articles found on the Certificate of Incorporation, including changes to stock or the rights of stockholders, such as an exchange, reclassification, subdivision, combination, or cancellation.
It is important to note that there is a filing fee of $194 to process a Certificate of Amendment, with an additional $9 charge for each extra page. Obtaining a certified copy of the filing for record-keeping purposes incurs a further cost of $50.
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Stockholder approval
In Delaware, a corporation can amend its certificate of incorporation at any time before it has received payment for its stock. If directors have been named and elected, a majority of directors must approve the amendment. If no directors have been named or elected, a majority of incorporators must approve the amendment.
Once a corporation has received payment for its stock, it can still amend its certificate of incorporation, but it must comply with Delaware General Corporation Law (DGCL). This includes obtaining board resolutions and stockholder approval for certain amendments. Amendments can change corporate names, business nature, or stock classifications. However, stockholder approval may not be necessary in some cases, such as forward stock splits for corporations with a single class of stock.
The number of authorized shares of any class of stock can be increased or decreased by the affirmative vote of the holders of a majority of the stock entitled to vote. If the corporation is a non-stock corporation, its governing body shall adopt a resolution setting forth the proposed amendment and declaring its advisability.
To amend a Delaware corporation's certificate of incorporation, a Certificate of Amendment must be filed with the Division of Corporations, accompanied by a $194 filing fee. If the Certificate is longer than one page, a $9 charge is added per additional page. A certified copy of the filing can be obtained for $50 to keep in the records of the Delaware corporation.
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Frequently asked questions
Under Delaware law, a corporation can amend its certificate of incorporation at any time before it has received payment for its stock. Once payment has been received, the corporation can still amend its certificate of incorporation but with certain restrictions.
After receiving payment for its stock, a corporation can only amend its certificate of incorporation if the changes are lawful and proper and could have been included in the original certificate of incorporation.
Amendments to a certificate of incorporation must be approved by a majority of the incorporators or directors, and in some cases, by a vote of the stockholders.
Yes, there is a $194 filing fee to process a Certificate of Amendment in Delaware. If the Certificate is longer than one page, there is an additional $9 charge per extra page.
Amendments can include changes to the corporate name, business nature, or stock classifications.
