Delaware’s LLC statutes lay out the procedures for forming and operating a Delaware limited liability corporation (LLC).
In this article, we provide straightforward explanations of Delaware LLC rules concerning:
Requirements for forming an LLC
Duties of a Registered Agent and Appointment Operating Agreements
Table of Contents
Requirements for forming an LLC
The prerequisites for founding an LLC are outlined in Delaware LLC legislation. To make the procedure easier, the State of Delaware established the Delaware One Stop company registration site and PDF Certificate of Formation form.
Delaware LLC Formation Regulations
The Delaware Limited Liability Company Act contains the following LLC creation statutes:
Section 18-201 of the Delaware LLC Act. Formation certificate
(a) A certificate of formation must be signed by one or more authorized people in order to create a limited liability company. The certificate of formation must be submitted with the Secretary of State’s office and must include the following information:
(1) The limited liability company’s name;
(2) The registered office address, as well as the name and address of the registered agent for service of process, as required by Section 18-104 of this chapter; and
(3) Any additional topics that the members decide to include.
(b) A limited liability corporation is created at the moment the original certificate of formation is filed in the office of the Secretary of State, or at any later date or time stated in the certificate of formation, provided the criteria of this section have been substantially met in either instance. A limited liability company constituted under this chapter is a distinct legal entity, and its existence as such must continue until the limited liability company’s certificate of formation is cancelled.
(c) The filing of the certificate of formation with the Secretary of State’s office eliminates the need to submit any additional documentation required by Chapter 31 of this chapter.
(d) A limited liability company agreement may be entered into or otherwise exist either before, after, or at the time of the filing of a certificate of formation, and may be made effective as of the effective time of such filing or at such other time or date as provided in or reflected by the limited liability company agreement, whether entered into or otherwise existing before, after, or at the time of such filing.
(e) A certificate of formation substantially complies with this title’s 18-201(a)(2) if it contains the name of the registered agent and the address of the registered office, even if the certificate of formation does not expressly designate such person as the registered agent or such address as the registered office or the registered agent’s address.
What This Means: Key Takeaways* 68 Del. Laws, c. 434, 1; 69 Del. Laws, c. 260, 7; 70 Del. Laws, c. 75, 5; 76 Del. Laws, c. 105, 9; 78 Del. Laws, c. 270, 2; 81 Del. Laws, c. 89, 6;
The Delaware LLC laws specifies the procedures for establishing (or creating) an LLC. To satisfy these criteria, the State of Delaware provides online and mail-in LLC filing options.
The following information is required for the creation of a Delaware LLC:
The name of LLC (Must meet Delaware LLC naming requirements)
The street and postal addresses of the LLC’s primary office
Name and Delaware address of the registered agent
Optional Information for the Formation of a Delaware LLC:
LLC organizers may include their own terms as long as they do not clash with the LLC legislation.
Visit our Delaware LLC Certificate of Formation tutorial for assistance with completing the LLC formation paperwork.
Duties of a Registered Agent and Appointment
The responsibilities and appointment of the LLC registered agent are defined under Delaware LLC legislation.
Statute of Delaware LLC Registered Agent
The Delaware Limited Liability Company Act contains the following registered agent statutes:
Section 18-104 of the Delaware LLC Act. Registered address; registered agent
(a) Each limited liability corporation must have and keep the following in the state of Delaware:
(1) A registered office in the state of Delaware, which may or may not be a place of business; and
(2) A registered agent for service of process on the limited liability company with a business address similar to the registration address, such agent may be any of the following:
a. The name of the limited liability corporation,
b. A person residing in the state of Delaware,
c. A domestic limited liability company (other than the limited liability company itself), a domestic corporation, a domestic partnership (whether general (including a limited liability partnership) or limited (including a limited liability limited partnership), or a domestic statutory trust, or a domestic statutory trust, or a domestic statutory trust, or
d. A foreign corporation, a foreign limited partnership (including a foreign limited liability limited partnership), a foreign limited liability company, or a foreign statutory trust.
(b) A registered agent may change the address of the registered office of the limited liability company(ies) for which it is registered agent to another address in the State of Delaware by paying the fee specified in 18-1105(a)(2) of this title and filing with the Secretary of State a certificate signed by such registered agent that specifies the address at which such registered agent has maintained the registered office for each of the limited liability companies. The registered office in the State of Delaware of each of the limited liability companies for which the agent is a registered agent shall be located at the new address of the registered agent thereof as given in the certificate upon the filing of such certificate, until further change of address as authorized by law. In the event that a person acting as a registered agent of a limited liability company changes his or her name, such registered agent shall file with the Secretary of State a certificate signed by such registered agent stating the new name of such registered agent, the name of such registered agent before it was changed, and the address at which such registered agent has maintained the registered office for each of the limited liability companies for which it is a resale agent. A change in the name of any person acting as a registered agent of a limited liability company as a result of I a merger or consolidation of the registered agent with or into another person that succeeds to its assets and liabilities by operation of law, (ii) the conversion of the registered agent into another person, or (iii) a division of the registered agent in which an identified resulting person succeeds to all of the registered agent’s assets and liabilities. Filing a certificate under this section is assumed to constitute an amendment of the certificate of formation of each limited liability company concerned, and such limited liability company is not needed to take any additional action to alter its certificate of formation under this title’s 18-202. Any registered agent who files a certificate under this section must quickly transmit a copy of the certificate to each limited liability company impacted by it.
(c) The registered agent of one or more limited liability companies may resign and appoint a successor registered agent by paying the fee specified in 18-1105(a)(2) of this title and filing a certificate with the Secretary of State stating the reason for the resignation and the name and address of the successor registered agent. A declaration from each affected limited liability company ratifying and approving the change of registered agent should be attached to such certificate. The successor registered agent’s address, as provided in such certificate, shall become the address of each such limited liability company’s registered office in the State of Delaware upon such filing. The filing of such certificate of resignation shall be deemed to be an amendment of the certificate of formation of each limited liability company affected thereby, and such limited liability company shall not be required to take any further action to amend its certificate of formation under this title’s 18-202.
(d) The registered agent of a limited liability company, including a limited liability company whose certificate of formation has been cancelled pursuant to section 18-1108 of this title, may resign without appointing a successor registered agent by paying the fee specified in section 18-1105(a)(2) of this title and filing a certificate of resignation with the Secretary of State, but such resignation shall not become effective until 30 days after the certificate is filed. The certificate must include a statement stating that written notice of resignation was given to the limited liability company at least 30 days prior to the filing of the certificate by mailing or delivering such notice to the limited liability company at its last known address to the registered agent, as well as the date of such notice. The certificate must contain the information last submitted to the registered agent as a communications contact for the limited liability corporation under subsection (g) of this section of this chapter. Such communications contact information must not be considered public. A certificate submitted in accordance with this paragraph must be in the form approved by the Secretary of State. After receiving notification of the resignation of its registered agent, the limited liability company for which such registered agent was working should seek and appoint a new registered agent to replace the departing registered agent. If such limited liability company fails to secure and designate a new registered agent as aforesaid within 30 days after the registered agent’s submission of the certificate of resignation, the certificate of formation of such limited liability company will be invalidated. After the resigned registered agent’s resignation has become effective as provided in this section, and if no new registered agent has been obtained and designated in the time and manner aforesaid, service of legal process against each limited liability company (and each protected series and each registered series thereof) for which the resigned registered agent had been acting shall thereafter be upon the Secretary of State in accordance with Section 18-105 of this title.
(f) Each registered agent must:
(1) Maintain a business office in the State of Delaware that is typically open, or if a person, be generally present at a specified location in the State of Delaware at sufficient frequent times to receive service of process and otherwise execute the responsibilities of a registered agent;
(2) If a foreign entity, be allowed to do business in Delaware;
(3) Accept service of process and other communications addressed to the limited liability companies (and any protected or registered series thereof) and foreign limited liability companies for which it serves as registered agent and forward them to the limited liability company or foreign limited liability company to which the service or communication is addressed.
(4) Forward the statement for the annual tax for such limited liability company (and each registered series thereof) or such foreign limited liability company, as applicable, as described in 18-1107 of this title, or an electronic notification of same in a form satisfactory to the Secretary of State; and
(5) Comply with and adhere to the Secretary’s requirements governing the verification of the identity of the entity’s contacts and people for whom the registered agent keeps a record in order to reduce the danger of illicit business goals.
(f) Any registered agent, whether domestic or foreign, who acts as registered agent for more than 50 companies at any time (a “commercial registered agent”) must meet and comply with the following qualifications:
(1) A natural person acting as a business registered agent must do the following:
a. Keep a primary home or place of business in the state of Delaware;
b. Keep your Delaware business license current.
c. Be typically present during regular business hours at a designated location within the State of Delaware to receive service of process and otherwise execute the responsibilities of a registered agent as stated in subsection (e) of this section;
d. Upon request, provide the Secretary of State with information identifying and allowing contact with such commercial registered agent as the Secretary of State may demand; and
e. Comply with and adhere to the Secretary’s rules for the verification of both the identity of the entity’s contacts and people for whom the natural person keeps a record in order to reduce the danger of illicit business goals.
(2) As a commercial registered agent, a domestic or foreign corporation, a domestic partnership (whether general (including a limited liability partnership) or limited (including a limited liability limited partnership), a foreign limited liability partnership, a domestic or foreign limited liability company, or a domestic or foreign statutory trust shall:
a. Maintain a business office in Delaware that is normally available during regular business hours to receive service of process and otherwise execute the responsibilities of a registered agent as stated in subsection (e) of this section.
b. Keep your Delaware business license current.
c. Have a natural person officer, director, or managing agent present at such office during regular business hours;
d. Upon request, provide the Secretary of State with information identifying and allowing contact with such commercial registered agent as the Secretary of State may demand; and
a. Comply with and adhere to the Secretary’s rules for the verification of the identity of the entity’s contacts and people for whom it keeps a record in order to reduce the risk of illicit business objectives.
(3) For the purposes of this subsection and paragraph (i)(2)a. of this section, a commercial registered agent is any registered agent that shares an officer, director, or managing agent with another registered agent or agents, if such registered agents collectively served as registered agents for more than 50 entities, whether domestic or foreign, at any time during such common service as officer, director, or managing agent.
(g) Every domestic limited liability company and every foreign limited liability company qualified to do business in the State of Delaware shall provide its registered agent with the name, business address, and business telephone number of a natural person who is a member, manager, officer, employee, or designated agent of the domestic or foreign limited liability company and who is then authorized to receive communications from the registered agent, and shall update this information as needed. This individual is considered the domestic or international limited liability company’s communications contact. Upon receipt of a written or electronic request from the communications contact, a domestic limited liability company shall provide the communications contact with the name, business address, and business telephone number of a natural person who has access to the record required to be maintained under section 18-305(h) of this title. Every registered agent must keep the aforementioned information about the current communications contact for each domestic limited liability company and each international limited liability company for whom the registered agent acts as registered agent (in paper or electronic form). If the domestic or foreign limited liability company fails to provide the registered agent with a current communications contact, the registered agent may resign as the registered agent for such domestic or foreign limited liability company in accordance with the provisions of this section.
(h) The Secretary of State has full authority to issue such regulations as may be necessary or appropriate to carry out the enforcement of subsections (e), (f), and (g) of this section, as well as to take reasonable and necessary actions to ensure registered agents’ compliance with subsections (e), (f), and (g). Such actions may include refusing to file paperwork supplied by a registered agent, as well as refusing to file any documents related to the establishment of a company.
I On the Secretary of State’s application, the Court of Chancery may prohibit any person or organization from acting as a registered agent or as an officer, director, or managing agent of a registered agency.
(1) Upon the filing of a complaint by the Secretary of State under this section, the court may make such orders about the action as it considers appropriate, as well as enter such orders affording interim or ultimate relief as it deems appropriate under the circumstances.
(2) Any one or more of the following reasons shall suffice to obtain an injunction under this section:
a. Failure to comply with the qualifications set forth in subsection (e) of this section and/or the requirements of subsections (f) or (g) of this section above after notice and warning in the case of any registered agent who is a commercial registered agent at any time within one year prior to the filing of the Secretary of State’s complaint;
b. The individual operating as a registered agent, or any officer, director, or managing agent of an entity registered agent, has been convicted of a felony or other offense involving dishonesty, fraud, or moral turpitude; or
c. The registered agent has engaged in behavior related to serving as a registered agent that is designed to mislead or defraud the public.
(3) Any order entered by the court pursuant to this section with regard to an entity that has functioned as a registered agent may also be directed to any person who has served as an officer, director, or managing agent of such registered agency. Any person who serves as an officer, director, or managing agent of an entity acting as a registered agent in the State of Delaware on or after January 1, 2007, shall be deemed to have consented to the appointment of such registered agent as agent upon whom service of process may be made in any action brought pursuant to this section, and service as an officer, director, or managing agent of an entity acting as a registered agent in the State of Delaware shall be considered service in the State of Delaware.
(4) If the Court issues an order prohibiting any person or organization from functioning as a registered agent, the Secretary of State must send or deliver notice of such order to each affected domestic or international limited liability company:
a. That has indicated the address of a place of business in a Secretary of State record, to the stated address, or
a. An address received by the Secretary of State from the former registered agent of the domestic or foreign limited liability company, to the address obtained
If such a domestic limited liability company fails to acquire and appoint a new registered agent within 30 days of receiving such notification, its certificate of incorporation will be revoked. If such a foreign limited liability corporation fails to acquire and appoint a new registered agent within 30 days of receiving such notification, it will be barred from doing business in Delaware and its registration would be revoked. If any other affected domestic limited liability company fails to obtain and designate a new registered agent within 60 days of the Court’s entry of an order enjoining such limited liability company’s registered agent from acting as a registered agent, the limited liability company’s certificate of formation will be canceled. If any other affected foreign limited liability company fails to obtain and designate a new registered agent within 60 days of the Court’s entry of an order enjoining such foreign limited liability company’s registered agent from acting as a registered agent, such foreign limited liability company’s registration will be canceled. If the Court enjoins a person or entity from acting as a registered agent as provided in this section and no new registered agent is obtained and designated within the time and manner specified, service of legal process against the domestic or foreign limited liability company for which the registered agent had been acting shall thereafter be served on the Secretary of State in accordance with sections 18-105 or 18-911 of this title. The Court of Chancery may, upon the Secretary of State’s application and notice to the former registered agent, enter such orders as it deems appropriate to grant the Secretary of State access to information in the former registered agent’s possession in order to facilitate communication with the domestic and foreign limited liability companies served.
(j) The Secretary of State is allowed to make public a list of registered agents, as well as to establish such criteria and issue such rules and regulations regarding such listing as the Secretary of State considers necessary or appropriate.
(k) The address of a registered agent or registered office shall include the street, number, city, and postal code as specified in any certificate of formation, application for registration as a foreign limited liability company, or other document filed in the office of the Secretary of State under this chapter.
What This Means: Key Takeaways*
The role of a registered agent is to accept service of process (legal summons to a lawsuit).
A registered agent in Delaware must:
Keep a registered office in Delaware (i.e., no P.O. boxes)
Be a person, a Delaware company or LLC, or a foreign corporation or LLC with the same business address as the registered office.
The State of Delaware keeps registered agent information on file. You must complete a change of registered agent form if you change your registered agent or if your registered agent resigns.
Operating Contracts
Delaware LLC statutes specify how to create and manage an LLC operating agreement.
The Delaware Limited Liability Company Act contains the following operating agreement statutes:
Definitions in Section 18-101 of the Delaware LLC Act.
(9) “Limited liability company agreement” means any agreement (whether referred to as a limited liability company agreement, operating agreement, or otherwise) of the member or members regarding the affairs of a limited liability company and the conduct of its business, whether written, oral, or implied. The limited liability company agreement binds a member or management of a limited liability company or an assignee of a limited liability company interest whether or not the member, manager, or assignee signs the limited liability company agreement. It is not necessary for a limited liability company to implement its limited liability company agreement. Whether or whether the limited liability company executes the limited liability company agreement, the limited liability company is bound by it. A limited liability company agreement of a limited liability company with just one member is not unenforceable since only one individual is a party to the limited liability company agreement. A limited liability corporation agreement is exempt from any statute of frauds (including Title 2714). To the extent specified in the limited liability company agreement, any person, even a person who is not a party to the limited liability company agreement, may be granted rights. A written limited liability corporation agreement or another kind of written agreement:
a. A person may be admitted as a member of a limited liability company or 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 through other action such as payment for a limited liability company interest) executes the limited liability company agreement or any other writing indicating such person’s intent to become a member or assignee; or
2. 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. Is not unenforceable because it was not signed by a person admitted as a member or becoming an assignee as given in paragraph (9)a. of this section, or because it was signed by a representative as provided in this chapter.
What This Means: Key Points*
An LLC operating agreement enables LLC members to establish ground rules for how their particular LLC will run. These regulations are often referred to as “terms” or “provisions.”
Operating agreements are governed by state law. If the legislation states that LLC members cannot dissolve an LLC unless all members agree, LLC members cannot amend or override the statute by an operating agreement.
It is simpler to negotiate difficulties regarding the running of the LLC when an operating agreement is in place. In the event of a litigation or disagreement, LLC members (or the courts) will have something to refer to.
If an LLC member cannot settle a disagreement and there is no operating agreement, the courts will apply LLC legislation to determine the matter.
Making an Operating Contract
Some LLCs, such as professional or real estate LLCs, may need special terms, but others may merely require basic provisions:
Responsibilities of each member
How will new members be admitted?
How may current members transfer or cancel their membership?
How will earnings and dividends be distributed?
The procedure for making changes to the operating agreement