How to Amend and Restate a Certificate of Incorporation in Delaware

By Terry Masters

Many states now use the Internet to provide resources to business owners, making it easier for them to complete government filings. In Delaware, the Corporations Division of the Secretary of State's office provides corporations with instructions and a downloadable form that can be used to amend any provision in the certificate of incorporation other than the name and address of the registered agent. The certificate of amendment is attached as an addendum to the original filing. If a business wants to restate its certificate of incorporation so that it is a single document including all amendments and the most current version of each provision, it must refer to the state's corporation statute and draft the amended and restated articles from scratch.

Many states now use the Internet to provide resources to business owners, making it easier for them to complete government filings. In Delaware, the Corporations Division of the Secretary of State's office provides corporations with instructions and a downloadable form that can be used to amend any provision in the certificate of incorporation other than the name and address of the registered agent. The certificate of amendment is attached as an addendum to the original filing. If a business wants to restate its certificate of incorporation so that it is a single document including all amendments and the most current version of each provision, it must refer to the state's corporation statute and draft the amended and restated articles from scratch.

Step 1

Adopt a corporate resolution to amend the certificate of incorporation. Delaware law requires that changes to the certificate must be supported by a majority vote of the shareholders. Call a meeting of the board of directors and present the proposed change for discussion. Vote on the change. Record the vote in the meeting minutes. Have the board secretary prepare a corporate resolution that references the vote and proposes to bring the issue to the shareholders for a vote. Have the board president sign the resolution and file it, along with the meeting minutes, in the corporate records.

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Step 2

Call a general meeting of the shareholders owning voting stock in the corporation to consider the amendment. Have the shareholders vote on the issue and record the results of the vote in the meeting minutes. A majority of the shareholders must vote in favor of the amendment to proceed.

Step 3

File a certificate of amendment with Delaware's Division of Corporations. Download a certificate of amendment form from the corporate forms section of the Delaware Secretary of State's website and fill in the blanks, indicating that the amendment was duly adopted and including the new or revised provision. If you are amending more than one provision, use additional copies of the certificate of amendment. You have the option of skipping this step and simply preparing an original filing from scratch, titled "Amended and Restated Certificate of Incorporation"; however, filing a certificate of amendment first is an easy way to comply with the law's requirement that the corporation prove that the amendment was authorized by the shareholders. Filing the amendment separately from the restatement will require a filing fee that must be included when you send in the amendment.

Step 4

Prepare a document titled "Amended and Restated Certificate of Incorporation." Refer to Section 245 of Subchapter VIII of Delaware's General Corporation Law, which can be accessed from the Division of Corporations website. If all of the corporation's amendments have been previously filed through a certificate of amendment, simply copy the formatting of your original certificate of incorporation to present the amended provisions that are currently in effect. The two important changes to the format are the new title of the document and the inclusion of an introductory paragraph affirming that the restated certificate was duly adopted in accordance with Section 245 and that it only restates and integrates but does not further amend the provisions of the corporation's certificate of incorporation. If you want to further amend the certificate of incorporation through the restatement, the introductory paragraph must state that further amendment was duly adopted and authorized by the board of directors and a majority of shareholders in accordance with Section 242.

Step 5

File the amended and restated certificate of incorporation with the Delaware Division of Corporations. Include the applicable filing fee and an additional fee of $9 for every page after the first page. If your restated certificate also increases the number of authorized shares of stock, an additional fee may apply. Refer to the corporate fee schedule published on the Division of Corporations website. Include a cover letter with your filing that provides your contact information and phone number. Once the restated certificate is accepted by the state, it supersedes the original certificate of incorporation. Further amendments will refer back to the restated certificate, but the corporation's date of incorporation will not change.

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