Understanding the essential reasons to amend your Certificate of Organization or Certificate of Incorporation in Delaware is crucial for maintaining business compliance and adaptability. Explore our guide below to navigate the amendment process effectively and help ensure your business’s ongoing success.
Owning a business is an exciting venture. Over time, though, you may find that your business grows and its information changes. If you want to make changes to your business’s legal structure, you’ll need to file an amendment to your Delaware limited liability company (LLC) or corporation. Not sure how to file an amendment to your Delaware Certificate of Formation or Certificate of Incorporation? Read on to learn more about the process and how we can help.
If you need to make changes to your Delaware LLC with the state, we’ll show you how in this section. If you instead need to make changes to your Delaware corporation, scroll down to “Amending a Delaware Corporation Certificate of Incorporation.”
In order to legally form an LLC, a business needs to file a Certificate of Formation with the Delaware Secretary of State. A Delaware Certificate of Formation includes:
Filing a Certificate of Formation entitles the business to the legal and state benefits of an LLC. This can help your organization obtain business licenses, sign contracts, and gain funding. If all goes well, your business will grow over time. This also likely means that some of its information will change. Should you need to change, update, or add any information relating to your original Certificate of Formation, you’ll need to inform the state by filing a Delaware Certificate of Amendment.
One exception to this is changing your registered agent. While you can change your agent with a Certificate of Amendment, it’s less expensive to do so with a Change of Registered Agent/Office form. As of this writing, the filing fee for a Delaware Certificate of Amendment is $220, while the form for changing your registered agent is only $50.
Need help forming your LLC first? Check out our Delaware LLC formation service.
You can file a Certificate of Amendment with the Delaware Division of Corporations. Any of the following changes can be reported:
Keeping your business compliant with state business regulations helps it maintain its entitlement to all of its legal benefits. When you file your entity as a legal LLC in Delaware, all information included in your filing becomes public knowledge. If your information changes but you don’t update it, the public may not have accurate contact information. Any changes in your registered agent should be reported as well since they are responsible for receiving service of process and other important communications on behalf of your business.
If your Certificate of Formation isn’t accurately updated, then you may not be able to access a Certificate of Good Standing (CGS), known in Delaware as a Certificate of Status. This is a legal document from the state that proves that your business is in compliance with state regulations. It’s often necessary for important business functions that require proof of your business’s legal status, such as fundraising from investors and lenders. States usually require a recent CGS or its equivalent if you want to do business there as a foreign (out-of-state) entity. Keep your business compliant so that you don’t miss out on any opportunities for growth.
Once you’ve determined what changes you need to make to your LLC’s Certificate of Amendment, gather the needed information to file with the Delaware Division of Corporations. This could be with the name of your business, the name of your registered agent, and/or your registered office address.
The form you need is called a Certificate of Amendment, and you can request one by mail or online. After you pay the appropriate fee ($220 as of this writing), you’ll receive a stamped “filed” copy of your filing. You may request a certified copy for an additional fee, as well. Checks can be made out to “Delaware Secretary of State.”
In order to file a Certificate of Amendment, you’ll need to provide a few details about the organization. This includes:
When describing the requested amendments, be sure to be as specific as possible. Your filing may be rejected if it has any discrepancies or errors, which means that you’ll have to pay for additional amendment filings. ZenBusiness can help ensure the accuracy of your filing with our Worry-Free Compliance service.
If you need to make changes to your Delaware corporation with the state, we’ll show you how in this section.
Businesses regularly grow and expand. Corporations are no different. You may find that your original Certificate of Incorporation served as a good initial baseline for the business you were trying to create, but some things have changed. New ideas from directors, shareholders, or business advisors may change some of your initial decisions. Your amendment to a corporation in Delaware, known as a Certificate of Amendment, accounts for these changes.
A Certificate of Incorporation is the guiding document upon which your Delaware corporation is founded. If the information on the Certificate of Incorporation differs from the information you’re using to conduct the business, this could cause meaningful inconsistencies. Shareholders are entitled to know the information stated in your Certificate of Incorporation. If this information changes, there is a legal obligation to amend the document. Inconsistencies may also prevent your business from being able to acquire a Certificate of Good Standing. This document certifies that you have met all state requirements to conduct business as a Delaware corporation.
Your Delaware Certificate of Incorporation must be amended any time there are changes to any of the fundamental pieces of your business. These changes may include:
The State of Delaware must be informed any time there are changes to these areas for your business to maintain corporate entity benefits. Note that you can’t change your registered agent or registered office with the Certificate of Amendment for a corporation. You’ll instead need to file a separate form.
Any changes made to the Certificate of Incorporation are ratified by the majority of shareholders owning voting stock. Your Delaware Certificate of Amendment will include:
You will need to pay a fee to file your Certificate of Amendment with the Delaware Division of Corporations. You will also need to pay for any certified copies. As of this writing, the fee to file the Certificate is $214.00. However, the fee may increase if the corporation is changing its stock.
Whether you have an LLC or a corporation, should your original Certificate of Formation be filed with mistakes in it, you have the option to instead file a Certificate of Correction. Filing a Certificate of Amendment is intended to inform the state of changes, while the Certificate of Correction is intended to inform and correct any errors in the original filing of the Certificate of Formation. The Delaware Division of Corporations provides separate forms for this for LLCs and corporations, but they both require the same basic information:
The filing fee for the Certificate of Correction is $220 for both LLCs and corporations (as of this writing).
Amending your Delaware Certificate of Incorporation or Formation is an easy way to make changes to your official document. However, you may choose to restate your entire Certificate of Incorporation or Formation so that all changes are in one place in the complete document.
There is no restatement form, so you must draft your own. This can be accomplished by preparing a document titled “Restated Certificate of Incorporation” for a corporation or “Restated Certificate of Formation” for an LLC. This document will follow the original format of your Certificate of Incorporation or Formation. Include an introductory paragraph stating that the new certificate was duly adopted according to Delaware Code Title 8, Corporations § 245 (for corporations) or Delaware Code Title 6, Commerce and Trade § 18-208 (for LLCs) and that it only restates and integrates but doesn’t further amend the provisions of the corporation’s certificate of incorporation.
Restating the Certificate of Incorporation or Formation is a very complex process, and the Delaware Division of Corporations provides little guidance. We highly recommend seeking guidance from a business attorney.
Making sure your Certificate of Formation or Incorporation is updated is a big part of keeping your business compliant with Delaware state law. If this sounds overwhelming, we’re here to help. We can help you stay state-compliant by amending your Certificate of Formation as needed. Consider using our amendment service for your business needs. You can also take advantage of our Worry-Free Compliance service, which includes two amendments annually, as well as many other tools and services to help keep your Delaware business running smoothly.
