Forms: Certificates, Consents, Assignments and Resolutions

The forms. This appendix collects twenty-nine forms used in forming, operating, transferring and ending a limited liability company. They fall into eight groups: filings with the Delaware Secretary of State (¶ D10); articles of organization for a Wyoming DAO LLC and an outline of a foreign registration (¶ D20); organizational and governance consents (¶ D30); approvals of related-party transactions, the designation of a partnership representative and classification elections (¶ D40); assignments, admissions, spousal consents and the Article 8 opt-in (¶ D50); forms used when a creditor or a member brings the company into litigation (¶ D60); dissolution forms (¶ D70); and an officer's certificate and a request for beneficial ownership information (¶ D80). The forms are original to the treatise and illustrate the practice described in the chapters cited with each of them. They must be adapted to the governing statute, the operating agreement and the facts of each matter.

Conventions. Unless a form states otherwise, it assumes a Delaware LLC governed by the Delaware Limited Liability Company Act, Del. Code Ann. tit. 6, ch. 18, and a written operating agreement called the "LLC Agreement." Matters to be completed or chosen appear in square brackets, such as [name of company], [date] or [number]. Alternatives are separated by a slash inside the brackets, such as [manager/managers]. Optional provisions are enclosed in brackets and introduced by "Optional:". Defined terms follow the LLC Agreement and should be conformed to it. Where a form recites a statutory requirement, the recital tracks the statute as quoted in the chapter cited, and the drafter should confirm the current text before filing, because the Delaware act is amended almost every year (see supra ¶ 201).

Filings and private instruments. The forms in ¶ D10 and ¶ D20 are filed in a public office and become part of the public record. Their content should be limited to what the statute requires and what the members wish to make public. The Delaware certificate of formation, for example, need state only the company's name and its registered office and agent. Del. Code Ann. tit. 6, § 18-201(a). Everything else belongs in the LLC Agreement, which is not filed (see supra ¶ 610.02). The remaining forms are private instruments kept with the company's records. They are evidence of what the company did, when and with whose approval. Banks, buyers, auditors and, if a dispute arises, a court will read them (see supra ¶ 2030.06).

Execution and electronic signatures. A Delaware certificate is executed by one or more authorized persons and filed under §§ 18-204 and 18-206. A consent, resolution or other document may be signed and delivered by electronic transmission where the LLC Agreement and the act permit, and the Delaware act treats a consent given by electronic transmission as written and signed (see supra ¶¶ 2040.02, 2090.02). Each private form ends with a signature block suited to the signer: a member, a manager, an officer or, where the signer is an entity, the entity by its authorized signatory. A form signed for an entity should state the capacity of the individual who signs it.

Table of forms. Table D-1 lists the forms with the provision they serve and the chapter in which the subject is examined.

Table D-1. The forms in this appendix

Relation to the model agreements. The forms assume an operating agreement of the kind set out in Appendix C and examined clause by clause in Chapter 56. Where a form refers to a section of the LLC Agreement by number, the number is illustrative and should be conformed.