To file a Delaware Certificate of Amendment, a corporation adopts a board resolution proposing the change, obtains shareholder approval if stock has already been issued, then submits the signed certificate to the Delaware Division of Corporations with a base filing fee of $214. The full path is set by the Delaware General Corporation Law (DGCL), and the specifics shift depending on whether stock is outstanding, whether the amendment touches a particular class of shares, and whether the change increases authorized stock.
Get the Right Approval First
The certificate cannot be filed until the amendment has been properly adopted inside the corporation. Which approval rules apply depends on whether the corporation has received any payment for its stock.
After Stock Has Been Issued
For a corporation with outstanding shares, the process has two steps. The board of directors first adopts a resolution proposing the amendment and declaring it advisable. Shareholders then vote, and approval requires a majority of the outstanding shares entitled to vote.1Justia. Delaware Code Title 8 – Section 242
A separate class vote is triggered whenever the amendment would increase or decrease the authorized shares of a class, change that class’s par value, or change the rights or preferences of that class in a way that harms those shareholders. Each affected class must approve the amendment by a majority of its outstanding shares, even if those shares do not otherwise carry voting rights.2Delaware Code Online. Delaware Code Title 8 – Amendment of Certificate of Incorporation Amendments often stall here: a corporation may have the overall votes to pass the change but lack the class vote from preferred holders whose rights would be diluted. Sort this out before the board resolution, not after.
If the certificate of incorporation requires a supermajority to approve amendments, that threshold governs, and it locks itself in. A corporation whose certificate demands a two-thirds vote to amend cannot lower that threshold without first getting a two-thirds vote.2Delaware Code Online. Delaware Code Title 8 – Amendment of Certificate of Incorporation
Shareholders do not necessarily need a formal meeting. Unless the certificate says otherwise, they can act by written consent signed by holders of at least the number of shares that would be required to approve the action at a meeting where every share was present and voting.3Delaware Code Online. Delaware Code Title 8 – Meetings, Elections, Voting and Notice Written consent can shave weeks off the timeline, though bylaw notice provisions and federal securities rules for public companies still apply.
Before Any Stock Has Been Issued
A corporation that has not yet received payment for any stock uses a simpler path under ยง 241. No shareholder vote is required because there are no shareholders. The amendment is adopted by a majority of the incorporators (if directors have not been named or elected) or by a majority of the directors.4Justia. Delaware Code Title 8 – Section 241
The filed certificate must state that the corporation has not received any payment for its stock and that the amendment was properly adopted. A pre-stock amendment is treated as effective on the date the original certificate of incorporation became effective, rather than the filing date, with one exception: for anyone substantially and adversely affected by the change, the amendment takes effect on the actual filing date.4Justia. Delaware Code Title 8 – Section 241
What the Certificate Must Contain
The Certificate of Amendment identifies the corporation by name, sets forth the text of the amendment (or the amended provision in its new form), and certifies that the amendment was duly adopted under the applicable section of the DGCL. An authorized officer of the corporation signs the document.5Justia. Delaware Code Title 8 – Section 103
Multiple changes can be combined into a single Certificate of Amendment. A corporation updating its name and its authorized share count at the same time files once.1Justia. Delaware Code Title 8 – Section 242 The DGCL allows any change that would be lawful in an original certificate filed today, including the corporate name, business purpose or powers, authorized stock (increases, decreases, par value changes, reclassifications, and stock splits or combinations), accrued but undeclared dividend rights, the corporation’s period of existence, and obsolete provisions such as the names of original incorporators or initial directors.
Where and How to File
The signed certificate goes to the Delaware Division of Corporations. Filings can be submitted online through the Division’s eCorp portal or by mail.
The base state filing fee is $214, which can rise for amendments that increase authorized stock.6Delaware Division of Corporations. Division of Corporations Fee Schedule The statute sets a minimum fee of $30 for amendments that do not involve a stock increase; for those that do, an additional fee is calculated based on the increase in authorized shares.7Justia. Delaware Code Title 8 – Section 391
Expedited review is available for a premium: $500 for two-hour turnaround and $1,000 for one-hour turnaround.6Delaware Division of Corporations. Division of Corporations Fee Schedule Standard processing times move with the Division’s volume. Incorrect payment or incomplete documents cause rejection, which resets the clock.
Setting an Effective Date
An amendment takes effect the moment the Division accepts the filing, unless the certificate names a future effective date. A corporation can delay effectiveness for up to 90 days after filing, which helps when the amendment needs to line up with a closing, a regulatory approval, or another transaction. If plans change before that delayed date arrives, the corporation can file a certificate of termination or amendment to cancel or modify it.5Justia. Delaware Code Title 8 – Section 103
Fixing an Error After Filing
Mistakes in a filed Certificate of Amendment can be corrected. If the document contains an inaccuracy or was defectively executed, the corporation files a Certificate of Correction identifying the specific error and setting forth the corrected text, or files a corrected version of the entire instrument. The correction relates back to the original filing date, except that for anyone substantially and adversely affected by the change, the correction takes effect on the correction date.5Justia. Delaware Code Title 8 – Section 103
The filing fee for a correction is $214, the same as the base amendment fee.6Delaware Division of Corporations. Division of Corporations Fee Schedule
Run the Franchise Tax Numbers Before Increasing Shares
Amendments that increase authorized shares can push up the corporation’s annual Delaware franchise tax, sometimes dramatically. Delaware calculates the tax using whichever of two methods produces the lower amount, subject to a minimum of $175 and a maximum of $200,000.
Under the Authorized Shares Method, a corporation with 5,000 shares or fewer pays $175. From 5,001 to 10,000 shares the tax is $250, and each additional 10,000 shares (or any portion) adds $85. Under the Assumed Par Value Capital Method, the rate is $400 per million dollars of assumed par value capital, based on issued shares and total gross assets from the federal tax return, with a $400 minimum.
When an amendment changes authorized stock or par value during the year, the corporation must report issued shares and total gross assets within 30 days of the amendment. The tax is then prorated, with the pre-amendment and post-amendment authorized amounts each generating a separate calculation.8Delaware Division of Corporations. How to Calculate Franchise Taxes A jump from 5,000 to 10 million authorized shares can move the Authorized Shares Method tax from $175 into the tens of thousands. Running both methods before filing avoids surprises the following March.
Tell the IRS if You Changed the Name
A Delaware filing updates only the state record. When the amendment changes the corporation’s legal name, the IRS needs separate notice. A C corporation checks the “Name change” box on its next Form 1120 and enters the new name; an S corporation does the same on Form 1120S. As an alternative, the corporation can send the IRS a letter signed by an officer that includes the EIN, the old name, and the new name, along with a copy of the Certificate of Amendment.
A name change alone does not require a new Employer Identification Number. A new EIN is needed only when the name change comes with a fundamental change in entity structure, such as a merger that creates a new corporate identity or a conversion from a corporation to a partnership.