How to File a Delaware LLC or Corporation Amendment

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.

Amending a Delaware LLC Certificate of Formation

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.”

Step 1:  Determine if you need to amend your Delaware Certificate of Formation

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:

• The name of the organization
• Type of business entity (LLC)
• The name and address of the registered agent
• The organization’s registered office
• Authorized representative signature
• A cover letter with your name, address, and telephone or fax number

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.

Step 2: Identify what to change in your Delaware Certificate of Formation

You can file a Certificate of Amendment with the Delaware Division of Corporations. Any of the following changes can be reported:

• Entity name change
• The name of your registered agent
• The address of your registered agent
• Change in registered office

Why should I update my Certificate of Formation?

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.

Are there penalties if I don’t?

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.

Step 3: Gather information for filing your Delaware amendment 

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.

Step 4: File your Delaware LLC amendment

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:

• The name of the LLC
• The requested amendment
• A witness signature and date of witness
• The signature of an authorized person (usually a member of the LLC)

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.

Amending a Delaware Corporation Certificate of Incorporation

If you need to make changes to your Delaware corporation with the state, we’ll show you how in this section.

Step 1: Determine if you need to change your Delaware Certificate of Incorporation

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. 

Step 2: Review the requirements for your Delaware amendment 

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:

• Corporate powers
• Purpose of the corporation
• Stock authorization (including qualifications, par value, or preferences)
• Dividend rights and allocations
• Adding new classes of stock
• Period of duration
• Original shareholders

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.

Step 3: Gather what you need for your Delaware amendment

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:

• Date of the board of directors meeting when the amendment was voted on
• The article number that was changed
• New text of that article to be included in place of the original text in the Certificate of Incorporation
• Witness signature and date
• Name, signature, and date from the authorized officer submitting the Delaware Certificate of Amendment

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.

Delaware Certificate of Amendment vs. Certificate of Correction

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 name of the business
• The certificate type and date of the original filing
• Description of inaccuracy or defect of the original filing
• The corrections to the original filing
• Witness signature and date
• Authorized person signature

The filing fee for the Certificate of Correction is $220 for both LLCs and corporations (as of this writing).

Delaware Certificate of Amendment vs. Restatement of Certificate of Incorporation/Formation

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.

Let us help you form and maintain your Delaware business

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.