An action by unanimous written consent lets a company’s board, shareholders, or LLC members approve a decision without holding a meeting: every person entitled to vote signs a single document (or matching counterparts), and the result carries the same legal force as a resolution adopted at a properly noticed meeting. It is the right tool when everyone already agrees on the outcome and the only work left is producing a document that will stand up to later scrutiny.
When You Can Use It
Two sources of authority have to line up: the state statute that governs the entity, and the entity’s own charter documents. If either one prohibits action by written consent for the matter at hand, a meeting is required.
For Delaware corporations, Section 141(f) of the General Corporation Law permits the board to take any action without a meeting if every director consents in writing or by electronic transmission, unless the certificate of incorporation or bylaws restrict that right.1Justia. Delaware Code Title 8 141 – Board of Directors; Powers; Number, Qualifications, Terms and Quorum; Committees; Classes of Directors; Nonstock Corporations; Reliance Upon Books; Action Without Meeting; Removal The word “every” is doing real work. If one director refuses or is simply unreachable, the consent fails.
For Delaware stockholders, Section 228 uses a different default. Unless the certificate of incorporation says otherwise, stockholders can act by written consent signed by holders of at least the minimum number of votes that would have been needed to approve the action at a meeting where all shares were present.2Justia. Delaware Code Title 8 228 – Consent of Stockholders or Members in Lieu of Meeting So stockholder consent under Delaware law does not always have to be unanimous, though many larger and publicly traded companies eliminate the option entirely in their charter and force all stockholder action to a meeting.
The Model Business Corporation Act, which forms the basis of corporate law in most states outside Delaware, is stricter. Under MBCA Section 7.04, shareholders can only act by written consent if every shareholder entitled to vote on the action signs. There is no majority-consent shortcut. If the company is incorporated in an MBCA state, unanimous consent is the only path.
For LLCs, the rules live in the operating agreement and the state’s LLC act. Most state LLC statutes permit members to act by written consent, and the operating agreement typically sets the approval threshold. Read the operating agreement first, because it controls.
Even where a lesser threshold is allowed, going unanimous has a practical advantage: it satisfies every possible vote count and eliminates procedural challenges based on tallies.
Who Has to Sign
The signers depend on the kind of action, and getting this wrong is one of the fastest ways to invalidate a resolution.
Directors (or managers, in an LLC) sign consents for decisions that fall within the board’s authority: approving contracts, appointing or removing officers, opening bank accounts, authorizing stock option grants, and setting compensation. These are the governance actions that keep the business running day to day.
Shareholders or members sign consents for fundamental changes to the entity itself. Amending the certificate of incorporation or articles of organization, approving a merger or dissolution, and authorizing the sale of substantially all company assets all require owner-level approval, because these actions directly affect the rights and value of the equity holders.
Some actions need both. A merger typically requires a board resolution recommending the transaction and then shareholder approval. That calls for two separate written consents: one signed by all directors, one signed by the required shareholders.
What the Document Must Contain
Three conditions have to be true for a written consent to hold up.
The right people must sign. For a board consent, every sitting director. For a shareholder consent, holders of at least the minimum votes needed to approve the action, or all of them if the governing law or charter demands unanimity.
The consent must be in writing. Delaware and the MBCA both require a written document or electronic transmission. Delaware’s Section 116 specifies that electronic transmissions count as written documents and that signatures may be manual, facsimile, or electronic.3Justia. Delaware Code Title 8 116 – Document Form, Signature and Delivery An oral agreement, no matter how emphatic, is legally nothing.
The document must describe the action with enough specificity to function as a formal resolution. Vague language like “the board approves the transaction,” without naming the transaction, the parties, the material terms, or the dollar amounts, produces a document that may not survive a challenge. If the consent authorizes someone to sign a contract, name the contract and the person. If it approves a loan, state the maximum amount and the lender. If it amends the bylaws, include or attach the exact text.
A well-drafted consent is short, specific, and self-contained. The header identifies the entity by its full legal name and state of formation and the group acting, for example, “Action by Unanimous Written Consent of the Board of Directors of [Company Name], a Delaware corporation.” A short statement of authority references the statute and the governing document provision that permits action by written consent.
Then come the resolutions. A “whereas” recital explains the reason. The “resolved” clause states the decision in concrete terms. For example: “Resolved, that the Corporation is authorized to enter into the Loan Agreement with First National Bank for a principal amount not to exceed $2,000,000, substantially in the form attached as Exhibit A, and that the Chief Financial Officer is authorized to execute and deliver the Loan Agreement and all related documents on behalf of the Corporation.” That single clause gives an auditor or bank everything it will look for: the transaction, the dollar limit, and the person authorized to sign. When the consent covers multiple related actions, use a separate “resolved” clause for each. Approving a lease and authorizing an officer to sign a related guaranty should be two distinct resolutions in the same document.
End with a signature block for every required signer. Each block should include printed name, capacity (Director, Member, Shareholder with number of shares held), and a line for the date.
Signatures, Counterparts, and Effective Date
The consent does not have to exist as one physical document bearing every signature on one page. Delaware and the MBCA both allow the action to be evidenced by one or more consents collectively signed by all required parties.1Justia. Delaware Code Title 8 141 – Board of Directors; Powers; Number, Qualifications, Terms and Quorum; Committees; Classes of Directors; Nonstock Corporations; Reliance Upon Books; Action Without Meeting; Removal Each signer can sign a separate counterpart of the same document, and once all counterparts are collected, the consent is complete. For companies with signers in different places, this is essential.
Each signer should date the signature. When the consent does not specify a future effective date, the action generally takes effect on the date the last required signature is obtained. For time-sensitive transactions, the final signature has to land before the external deadline.
Delaware and the MBCA both allow a consent to set a future effective date. Under Section 141(f), a director can instruct that the consent will take effect at a future time, including on the happening of a specified event, as long as the effective date is no more than 60 days after the instruction is given. Section 228(c) provides the same option for stockholder consents.2Justia. Delaware Code Title 8 228 – Consent of Stockholders or Members in Lieu of Meeting
Forward-dating is legitimate. Backdating is not. Writing an earlier date on a consent to create the appearance that an action was authorized before it actually was can constitute fraud, and at common law, executing a falsely dated document is a criminal offense in many jurisdictions. Even without prosecution, a backdated consent can be voided and will damage the company’s credibility in later litigation or due diligence. If the company discovers a past action that was never properly documented, the right fix is a ratification resolution: a new consent, dated accurately, that formally ratifies and approves the earlier action.
The 60-Day Window and Revocation
A signed consent is not final the moment ink hits paper. Under both Delaware law and the MBCA, a signer can revoke a consent before it becomes effective.
For Delaware directors, Section 141(f) provides that a consent is revocable prior to becoming effective. If you are collecting signatures over several days, an early signer can change their mind and withdraw before the last director signs. Once all consents are delivered and the action takes effect, revocation is no longer available. Under the MBCA, a director’s consent can be withdrawn by delivering a signed revocation to the corporation before the corporation receives all the unrevoked consents needed to take the action.
For Delaware stockholder consents under Section 228, the same revocation principle applies, plus a hard time limit: all required consents must be delivered to the corporation within 60 days of the date the first consent was delivered. Miss that window and the process starts over. The MBCA imposes the same 60-day rule for shareholder consents. The practical answer is to circulate the document and collect signatures quickly. A consent that lingers for weeks invites both revocations and deadline problems.
When stockholder action is taken by less-than-unanimous consent (available in Delaware and states with similar statutes), the corporation must promptly notify any stockholders who did not sign but would have been entitled to notice if the action had been taken at a meeting. Skipping the notice can expose the action to challenge. Unanimous consent eliminates the obligation, because there are no non-consenting holders to notify.
After Signing: Delivery, Filings, and Records
Signing is not the end. The signed counterparts have to reach the company, and several actions approved by written consent trigger external filings with real deadlines.
Under Delaware Section 228(d), delivery goes to the principal place of business or to the officer or agent who maintains the record of stockholder or member meeting proceedings. In practice, the corporate secretary handles this. Track the delivery with a timestamp, whether a certified mail receipt or an email trail.
Delaware Section 141(f) requires executed board consents to be filed with the minutes of the board proceedings, in the same format (paper or electronic) as the minutes themselves. The MBCA similarly requires delivery to the corporation for filing with the corporate records. A consent that sits in an email inbox instead of the minute book is a gap that surfaces at the worst time: during acquisition diligence, a financing round, or litigation. The safest practice is to treat executed consents as permanent records.
Several outside filings can be triggered by what the consent approves. If the consent appoints a new responsible party for the business (the person who controls, manages, or directs the entity and its funds), the IRS requires the company to file Form 8822-B within 60 days of the change.4Internal Revenue Service. Form 8822-B, Change of Address or Responsible Party – Business That applies to any entity with an EIN, whether or not it is actively conducting business.
Stock option grants and restricted stock awards authorized by written consent can trigger a Section 83(b) election deadline for the recipient. The election has to be filed with the IRS within 30 days of the date the property was transferred.5Internal Revenue Service. Instructions for Form 15620, Section 83(b) Election Missing that deadline is irrevocable and can mean significantly higher taxes for the employee or founder receiving the stock. If your consent authorizes an equity grant, tell the recipient about the 30-day clock immediately.
Consents that amend the certificate of incorporation or articles of organization require an amendment filing with the secretary of state in the state of formation, with state-specific fees and processing times. If the consent changes officers or directors, many states require an updated statement of information or annual report reflecting the new appointments. The consent authorizes the action internally; the state still needs its own filing.