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The Delaware LLC operating agreement is a required legal document for all LLCs within the state. This document allows the member(s) to outline responsibilities, identify voting rights, protect individual assets from seizure, and perform other ownership responsibilities in an LLC that are required to do business effectively.

From 6 DE Code § 18-101 (2019):

(17) (9) “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.

Delaware Operating Agreement Law

Per Chapter 18 of the Delaware Limited Liability Company Act:

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.

Forming an LLC in Delaware

  1. Conduct a name search
  2. Choose a registered agent
  3. File formation articles
  4. Draft an operating agreement

To file formation articles, all Delaware LLCs need a legally registered business name.

The chosen title must include a designator that identifies the business as an LLC. This can be any of the following:

  • LLC
  • L.L.C.
  • Limited Liability Company

The name may not include “corp” or other designators, nor may it be too similar to government agencies and their abbreviations.

Professional LLCs that include titles such as “MD”, “CPA”, or “Attorney” may require additional verification and a licensed practitioner to be a part of the new formation.

To conduct the name search, use the Delaware Department of State Business Entity Search website.

Step 2: Choose Your Registered Agent

Each Delaware LLCs must appoint a registered agent that represents the company within the state. The agent is legally responsible as the point of contact for legal documentation like service of process, and can be held responsible if their duties aren’t performed.

The agent can be an individual or an agent service.

An individual agent must:

  • Be 18 years or older
  • Be a resident of the state
  • Have a physical (not a P.O. Box) address in Delaware, as well as a mailing address within the state

When using a registered agent service, the agent is required to be authorized to do business in Delaware.

Step 3: File Your Formation Articles

Domestic LLC formations (in-state) must complete Articles of Organization to be recognized as an LLC.

Online Filing is not currently available for any LLC formations, but will be updated soon. More information can be found at the E-Filing Portal (currently under construction)

All mailed filings that do not plan to use a credit card or ACH payment must also complete a Filing Memo, which collects information about the filing and the appropriate payment.

Mailed Filing (Domestic):

Delaware Division of Corporations
401 Federal Street
Suite 4
Dover, DE 19901

In-Person Filing (Domestic):

Delaware Division of Corporations
401 Federal Street
Suite 4
Dover, DE 19901

Foreign LLCs expanding to Delaware must complete a Certificate of Registration, and file a Certificate of Existence from the original formation of the business.

Mailed Filing (Foreign):

Delaware Division of Corporations
401 Federal Street
Suite 4
Dover, DE 19901

In-Person Filing (Foreign):

Delaware Division of Corporations
401 Federal Street
Suite 4
Dover, DE 19901

Step 4: Draft a Delaware Operating Agreement

It is recommended to create an operating agreement for LLCs with a single or multiple directors in Delaware. This legal documentation both protects individual liability from company litigation and sets the structure around which the business will run, including individual responsibilities and rights.

The operating agreement can be used to settle disputes between members of an LLC, and can be enforced in court when the document is signed by all parties.

The document does not need to be filed with the state to be enforceable.