The Delaware Certificate of Incorporation and the Role of the Incorporator

Are you thinking about starting a new Delaware corporation? The State of Delaware is known for its sophisticated corporate law and courts and is undoubtedly the jurisdiction of choice for business formation. To form a Delaware corporation, one must file a Certificate of Incorporation with the State. The Certificate of Incorporation (the “Certificate”) is the foundation upon which a Delaware corporation is built. The State’s approval and return of an accepted copy of the Certificate signals the legal formation of the corporation.

In this blog post, we will discuss the content of the Certificate, which we assist you in filing in order to form your Delaware corporation, so that you can get started on building the foundation for your future success. We will also discuss the role of the incorporator, likely you or your representative or colleague, who signs the Certificate filed with the State and takes the first steps in launching the corporation after the State approves the Certificate.

What Information Must Be Listed on a Certificate of Incorporation?

Corporation name

Registered agent’s name (Harvard Business Services)

Registered agent's address (Harvard’s business address)

Classes and amount of stock authorized and par value

            Name and mailing address of the incorporator (discussed below)

Neither the directors nor officers’ names or addresses must be listed on the Delaware Certificate of Incorporation. This serves as an added level of privacy protection and removes the need to amend the Certificate if directors or officers change, as such an amendment requires stockholder consent and some administrative work. Nevertheless, some filing companies will, by default, list the directors’ names and addresses on the Certificate of Incorporation when filing it with the State.

In addition to giving up your right to privacy, there are additional disadvantages to listing the business address, directors’ names, and other unnecessary information on the Certificate. Among these is an administrative nuisance, as such information then has to be updated every time the listed addresses change. If listed, the information is typically kept accurate, and it is easy to forget that such extra information was listed on the Certificate during an office move or a change in officers. Some filing and business formation companies use this tactic to acquire additional money from their clients, as they can then typically charge between $350 to $500 each time the address or other unnecessary information needs to be updated. When using our filing service, we do not list the director’s name or address on the Certificate of Incorporation unless specifically requested.

The public can obtain any Delaware company's Certificate of Incorporation simply by contacting the state and paying a fee; however, whether or not the public can ascertain the person/people behind the company depends on how much information appears on the Certificate of Incorporation.

Certain other laws, including the upcoming federal Corporate Transparency Act, require disclosure of the names of officers, directors, and control persons, including certain beneficial owners, to the Department of Treasury, but this information is held as nonpublic by the agency. Further, some information on directors and at least one signing officer is required to be disclosed in a corporation’s annual report that is required by the Delaware Division of Corporations, but such disclosure is not required in the Certificate of Incorporation filed with Delaware to create the company.

Who is the Incorporator?

You or the person you name as incorporator handles the review and signing of the Certificate of Incorporation. The incorporator does not need to be a shareholder, officer or director of the corporation. For example, the incorporator could be an attorney, tax advisor or anyone else the company’s founders designate to complete the task. The incorporator’s name and mailing address will be listed on the Certificate of Incorporation. The State of Delaware does not require a physical office address for the address of the incorporator. The incorporator’s address can also be located anywhere in the world.

Once the corporation is formed, the incorporator will name the initial directors of the corporation until successors are elected and qualified internally within the company, along with approving the initial bylaws that will be held internally within the company. The powers of the incorporator are discontinued after naming the initial directors, and the incorporator is no longer considered a part of the company unless they serve as a director or officer.

The main responsibility of the incorporator is reviewing the Certificate of Incorporation and signing it, directing the filing with the State of Delaware. The Certificate of Incorporation continues to govern the corporation’s operations, activity, and internal governance, but the incorporator need not have any further role. Once the incorporation is completed by the State of Delaware, the name or address of the incorporator cannot be changed by filing a correction or amendment.

To form your new corporation now, visit www.delawareinc.com/order or for additional information on forming a Delaware corporation, contact Harvard Business Services, Inc. at 1-800-345-2677.