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When authorizing additional shares for a Delaware corporation:

• Is unanimous consent or majority consent required for the Board vote?
• Is unanimous consent or majority consent required for the Shareholder vote?

Hi Patricia,

Quick disclaimer: this is not legal advice, and you should not refrain from acting or act based on the below. You're encouraged to speak to legal counsel to ensure there are no missteps. With that as a backdrop, here are a few things to consider. 

It should first be analyzed if there are any agreements (e.g. a voting agreement, investor protective provisions in your certificate of incorporation, etc) to ensure you are not contractually committed to follow any procedures that modify delaware law. 

Big picture, the board may act in one of two ways: (i) a properly called meeting in which a quorum of directors is present, or (ii) via written consent (you've likely seen these before, and the resolutions say things like WHEREAS....RESOLVED). If it's a properly called meeting, and a quorum is present, then you only need majority consent to approve an amendment to the Certificate of Incorporation. If you're seeking approval via written consent under (ii) above, then ALL directors must sign and approve the written resolution.

For stockholders, the same applies in that the consent can be captured via a properly called meeting, or via written consent. However, unlike the board, DE law permits collecting written consent by a simple majority of the shares entitled to vote. If the action is approved in writing by less than unanimous consent, the corporation must "promptly" send out a 228(e) notice to all shareholders who were not given an opportunity to vote, or were unwilling to sign the written consent. Note that the stockholder approval, whether at a properly called meeting or via written consent, should come after board approval.

There are a lot of other moving parts here, including-but not limited to-harming your annual franchise taxes by authorizing the wrong number of shares, so once again, I would encourage you to speak to legal counsel who can assist with the amendment. If you're looking for a law firm to assist, feel free to reach me at alex@archetypelegal.com, and we can talk about what the next steps and costs might look like.