Delaware LLC Operating Agreements (2)

Create a high quality document online now!

Updated June 07, 2022

A Delaware LLC operating agreement is required under State law that sets the rules and ownership of a company. The agreement can be written, oral, or implied, although it is highly recommended to be in writing. It should be signed by all members (owners) of the company and kept in a safe and accessible place. It is not filed with the Division of Corporations.

Is an Operating Agreement REQUIRED in Delaware?

Yes, an operating agreement is required and must be entered into “before, after or at the time of the filing of a certificate of formation.” (§ 18-201(d))

By Type (2)


Single-Member LLC Operating Agreement – This document would be for use by a sole proprietor, one who would self-manage their own company. This document provides all of the same benefits as would be provided to medium to large-sized companies.

Download: Adobe PDFMS Word (.docx)OpenDocument

 

 


Multi-Member LLC Operating Agreement – For use by any company/entity that will be a multi-member managed company. All members must agree to all aspects of the document in order that it might be effective.

Download: Adobe PDFMS Word (.docx)OpenDocument

 

 


Table of Contents

How to Form an LLC in Delaware

Each entity in the State must operate under a unique business name that is distinguishable from all others on file with the Delaware Division of Corporations. Consequently, it is recommended that you perform a General Information Name Search to ensure that your desired name is available and dissimilar to the name of any other registered entity.

Step 1 – Appoint a Registered Agent

The State of Delaware requires every business to nominate a Registered Agent who shall receive correspondence from the Division of Corporations on behalf of the business. A Registered Agent may be an individual residing in Delaware or an entity with the authorization to transact business in the State. The Division of Corporations has provided a list of Delaware Registered Agents that uphold the standards pursuant to 8 Del. C.§ 132(g).

Step 2 – Complete the Application

Choose the file below which matches your LLC type.

  • Domestic – Certificate of Formation
  • Foreign – Certificate of Registration of a Foreign Limited Liability Company

Step 3 – Filing Fee

Attach a check made payable to the ‘Delaware Division of Corporations’. The requisite fees are as follows:

  • Domestic – $90
  • Foreign – $200

You may expedite your filing for an additional fee (see Fee Schedule for more information).

Step 4 – Cover Sheet

A cover sheet containing your name or entity name, phone number, and return address must be included with your filings. A downloadable PDF cover sheet can be found on the Division of Corporation’s Website. If you have any questions on the subject, call the Division at (302) 739-3073.

Step 5 – Submit Application

Send your filing package by mail to the address below. Note that Foreign LLCs are required to include a Certificate of Existence from the LLC’s home state issued within six (6) months of filing with the Division of Corporations.

Division of Corporations, John G. Townsend Building, 401 Federal Street, Suite 4, Dover, DE 19901

Step 6 – Operating Agreement

Upon successfully filing your LLC in Delaware, it is recommended that an operating agreement be drafted to outline the method of operation and financial structure of the business. The form shall not be filed with the Division of Corporations but rather filed by each relevant party and kept for their own personal records.

Step 7 – Employer Identification Number (EIN)

The Employer Identification Number (EIN) is to a business what a Social Security Number is to an individual. The Internal Revenue Service (IRS) uses this identifier to oversee the financial activity of all registered entities. Once acquired, the LLC will be able to conduct legal, financial activity within the country. You may apply by mailing Form SS-4 or by submitting the Online Application.

Laws

“Limited Liability Company Agreement” Definition

“Limited liability company agreement” means any agreement (whether referred to as a limited liability company agreement, operating agreement or otherwise), written, oral or implied, of the member or members as to the affairs of a limited liability company and the conduct of its business. A member or manager of a limited liability company or an assignee of a limited liability company interest is bound by the limited liability company agreement whether or not the member or manager or assignee executes the limited liability company agreement. A limited liability company is not required to execute its limited liability company agreement. A limited liability company is bound by its limited liability company agreement whether or not the limited liability company executes the limited liability company agreement. A limited liability company agreement of a limited liability company having only 1 member shall not be unenforceable by reason of there being only 1 person who is a party to the limited liability company agreement. A limited liability company agreement is not subject to any statute of frauds (including § 2714 of this title). A limited liability company agreement may provide rights to any person, including a person who is not a party to the limited liability company agreement, to the extent set forth therein. A written limited liability company agreement or another written agreement or writing:

a. May provide that a person shall be admitted as a member of a limited liability company, or shall become an assignee of a limited liability company interest or other rights or powers of a member to the extent assigned:

  1. If such person (or a representative authorized by such person orally, in writing or by other action such as payment for a limited liability company interest) executes the limited liability company agreement or any other writing evidencing the intent of such person to become a member or assignee; or
  2. Without such execution, if such person (or a representative authorized by such person orally, in writing or by other action such as payment for a limited liability company interest) complies with the conditions for becoming a member or assignee as set forth in the limited liability company agreement or any other writing; and

b. Shall not be unenforceable by reason of its not having been signed by a person being admitted as a member or becoming an assignee as provided in paragraph (9)a. of this section, or by reason of its having been signed by a representative as provided in this chapter.”

Video