Amendment of Certificate of Incorporation | Brian JM Quinn | November 15, 2013

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Amendment of Certificate of Incorporation

Original Creator: Brian JM Quinn Current Version: Brian JM Quinn Show/Hide
  1. 1 Show/Hide More DGCL Sec. 242 - Amendments to Certificate
    Original Creator: Brian JM Quinn Current Version: Brian JM Quinn

    Like a constitution, a corporation's certificate of incorporation may be amended at any point in the future; it is not a “forever” contract.  A board of directors or stockholders can amend a certificate of incorporation.  Section 242 outlines the procedures for amending a certificate.

    There are two features of the amendment process that are worth pointing out. First, any amendment to a corporation's certificate of incorporation must be initiated by the corporation's board of directors and requires the board's assent. A certificate may not be amended against the will of the board of directors. Second, any amendments recommended by the board of directors must be approved by a vote of a majority of the outstanding shares of the corporation. A certificate may not be amended against the will of the majority of the stockholders.

    These dual requirements make the process of amending a certificate of incorporation difficult.  Thus, the limitations placed on a board or a corporation's stockholders by the certificate of incorporation are effective constraints.

    Although any portion of the certificate may be amended, the most common amendment to certificates of incorporation involves increases to the number of authorized shares. 

  2. 2 Show/Hide More DGCL Sec. 245 - Restating the Certificate
    Original Creator: Brian JM Quinn Current Version: Brian JM Quinn
    When certificates are amended, the amendments are simply “stapled” to the back of the orignial certificate. The result is often a document that is cumbersome to read. Rather than rely on a potentially confusing set of documents, a certificate may be restated in its entirety reading all the amendments into the certificate so that the document is easier to read and more understandable. Section 245 lays out the process by which a certificate may be restated. 
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