Correcting Delaware Corporate Documents

By: Teri Mayor, COGENCY GLOBAL on Thu, May 27, 2021

Delaware_Corporate_Documents-resized-600My daughter used to have a shirt that read: “Pobody’s Nerfect!”, which always made me smile. We all make mistakes sometimes. When you do so with a Delaware filing, there are two different ways to correct that error.

1. A Certificate of Correction is used to correct a portion of a previously filed document.

2. A Corrected Certificate will set forth the entire document in its corrected form.

Businesses can utilize these correction measures whenever a document they've filed is an inaccurate record of the action being referred to or was defectively or erroneously executed. In other words, this type of document should not be confused with an amendment. In both cases, the certificate must specify the inaccuracy or defect to be corrected. In both cases, the correction is effective as of the original file date of the filing to be corrected, except in the case where persons may be substantially and adversely affected. For anyone so affected, the effective date is the filing date of the Certificate of Correction or Corrected Certificate.

Generally, the fee paid is the same as the fee paid for the document to be corrected. However, certain documents have a higher correction fee, including the Certificate of Incorporation, ($179 rather than $89 for the minimum fee), domestication ($264 instead of $214) and change of agent ($214 instead of $50).

How do these Certificates Differ?
The Delaware Secretary of State provides a standard Certificate of Correction form on their website that requires you to provide the name of the entity, the name of the certificate to be corrected, the inaccuracy to be revised and the text of the corrected article.

A Corrected Certificate, on the other hand, does not have a standardized form but should be drafted in accordance with §103(f) of the DGCL or §18-211 of the LLC Act. In this case, the Corrected Certificate should be specifically designated as such in its heading and specify the inaccuracy that needs to be edited, in addition to setting forth the entire document in its corrected form. Corrected Certificates may be particularly useful when there is more than one correction to be made or when it is useful to have the full text of the document, as corrected, available.

Other Notable Points

• Be careful when drafting the correction for a corporation that has changed its name since the filing of the inaccurate document. The correction needs to be made under the new name with reference to the old name.

• Delaware will allow you to file a Corrected Certificate to a document that has already been corrected.

• A correction cannot be filed to put a missing document on file; however, you can file a correction to render a document null and void.

• A correction does not erase the record of the original erroneous document. When a copy of the charter is requested, both the original document and the correction are provided.

Certificates of Correction and Corrected Certificates can be useful tools when errors occur. When you’re unsure if you’ve drafted these certificates properly, keep in mind that Delaware offers a preclearance service to help you ensure your Correction is correct before you submit for filing!
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Topics: Delaware Corporate, UCC and Compliance