Delaware LLC Operating Agreement
The Delaware LLC Operating Agreement is the core document that is referred to when issues concerning a Delaware limited liability company (“LLC”) need to be resolved.
The LLC Operating Agreement is the most important document for your Delaware LLC.
In the case of a single member LLC, without the formality of an LLC Operating Agreement, the LLC can closely resemble a sole proprietorship, which does not limit your personal liability for business debts of the LLC.
With respect to a multi-member LLC, the LLC Operating Agreement reflects the agreement among the members with respect to the affairs and management of the LLC and governs the relationship amongst the members of the LLC. By having an LLC Operating Agreement, the members will be provided with a clear set of rules that all members have agreed upon greatly reducing the likelihood of disagreement between them in the future. A LLC Operating Agreement will also greatly reduce financial and management misunderstandings, and make sure your business is governed by your own rules -- not default rules created by the state of Delaware.
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The LLC operating agreement does not have to be filed with any state agency. All states, including the state of Delaware will enforce valid operating agreements entered into among LLC members. The operating agreement will only be enforced against the persons who are parties to the agreement. Therefore, it is extremely important that all members of an LLC sign the operating agreement.
Your Delaware Limited Liability Company
In general, the state of Delaware is the most commonly selected state for LLC formation largely because it has favorable LLC laws and has a considerable amount of case law regarding LLCs.
LLC Filing Office
Entity or Franchise Level Tax
Delaware does not require partnerships, LLCs taxable as partnerships, or disregarded single-member LLCs to pay a general net worth tax or a tax based on net income.
State LLC Act
Delaware LLC Act is contained in Title 6, Chapter 18 of
the Delaware Statutes
The Delaware LLC Act
Important Statutory Rules
An LLC is managed by its members unless the Articles of Organization states that the LLC is to be managed by one or more managers.
Admission of Members
Unless the Operating Agreement states otherwise, new membership must be issued with the written consent of all members.
Amending the Operating Agreement
No statutory requirements exist for amending the Operating Agreement. The members may set their own rules for amending the LLC Operating Agreement,
Manager as Agent
The Delaware LLC Act states that unless otherwise provided in the Operating Agreement, both members and managers are agents of the LLC and both have the authority to bind the LLC.
Dissolution of the LLC
Unless otherwise provided in the Operating Agreement, a vote to dissolve the LLC must be approved by members who own more than two-thirds of the current economic interests in the LLC. Though, within 90 days after the termination of a member, remaining members who own more than 50% of the current economic interests in the LLC can approve the dissolution of the LLC.
The Operating Agreement can prohibit a member from assigning her membership interest prior to dissolution.
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