OPERATING AGREEMENT FOR
[LLC NAME]
A MEMBER-MANAGED LLC
I. PRELIMINARY PROVISIONS
(1) Effective Date: This operating agreement of [LLC NAME] effective [DATE OF AGREEMENT], is adopted by the members whose signatures appear at the end of this agreement (the “Agreement”).
(2) Formation: This limited liability company (LLC) was formed by filing Articles of Organization, a Certificate of Formation or a similar organizational document with the LLC filing office of the state of [STATE] on [ARTICLES OF ORGANIZATION DATE]. A copy of this organizational document has been placed in the LLC’s records book.
(3) Name: The formal name of this LLC is as stated above. However, this LLC may do business under a different name by complying with the state’s fictitious or assumed business name statutes and procedures.
(4) Registered Office and Agent: The registered office of this LLC and the registered agent at this address are as follows:
[AGENT NAME]
[AGENT ADDRESS]
The registered office and agent may be changed from time to time as the members may see fit, by filing a change of registered agent or office form with the state LLC filing office. It will not be necessary to amend this provision of the operating agreement if and when such a change is made.
(5) Business Purposes: The specific business purposes and activities contemplated by the founders of this LLC at the time of initial signing of this agreement consist of the following:
[BUSINESS PURPOSE]
It is understood that the foregoing statement of purposes shall not serve as a limitation on the powers or abilities of this LLC, which shall be permitted to engage in any and all lawful business activities. If this LLC intends to engage in business activities outside the state of its formation that require the qualification of the LLC in other states, it shall obtain such qualification before engaging in such out-of-state activities.
(6) Duration of LLC: The duration of this LLC shall be Perpetual. Further, this LLC shall terminate when a proposal to dissolve the LLC is adopted by the membership of this LLC or when this LLC is otherwise terminated in accordance with law.
II. MEMBERSHIP PROVISIONS
(1) Non-liability of Members: No member of this LLC shall be personally liable for the expenses, debts, obligations or liabilities of the LLC, or for claims made against it.
(2) Reimbursement for Organizational Costs: Members shall be reimbursed by the LLC for organizational expenses paid by the members. The LLC shall be authorized to elect to deduct organizational expenses and start-up expenditures ratably over a period of time as permitted by the Internal Revenue Code and as may be advised by the LLC’s tax advisor.
(3) Management: This LLC shall be managed exclusively by all of its members.
(4) Members’ Percentage Interests: A member’s percentage interest in this LLC shall be computed as a fraction, the numerator of which is the total of a member’s capital account and the denominator of which is the total of all capital accounts of all members. This fraction shall be expressed in this agreement as a percentage, which shall be called each member’s “percentage interest” in this LLC.
(5) Membership Voting: Except as otherwise may be required by the Articles of Organization, Certificate of Formation or a similar organizational document, other provisions of this operating agreement, or under the laws of this state, each member shall vote on any matter submitted to the membership for approval in proportion to the member’s percentage interest in this LLC. Further, unless defined otherwise for a particular provision of this operating agreement, the phrase “majority of members” means the vote of members whose combined votes equal more than 50% of the votes of all members in this LLC.
(6) Compensation: Members shall not be paid as members of the LLC for performing any duties associated with such membership, including management of the LLC. Members may be paid, however, for any services rendered in any other capacity for the LLC, whether as officers, employees, independent contractors or otherwise.
(7) Members’ Meetings: The LLC shall not provide for regular members’ meetings. However, any member may call a meeting by communicating his or her wish to schedule a meeting to all other members. Such notification may be in person or in writing, or by telephone, facsimile machine, or other form of electronic communication reasonably expected to be received by a member, and the other members shall then agree, either personally, in writing, or by telephone, facsimile machine or other form of electronic communication to the member calling the meeting, to meet at a mutually acceptable time and place. Notice of the business to be transacted at the meeting need not be given to members by the member calling the meeting, and any business may be discussed and conducted at the meeting. If all members cannot attend a meeting, it shall be postponed to a date and time when all members can attend, unless all members who do not attend have agreed in writing to the holding of the meeting without them. If a meeting is postponed, and the postponed meeting cannot be held either because all members do not attend the postponed meeting or the non-attending members have not signed a written consent to allow the postponed meeting to be held without them, a second postponed meeting may be held at a date and time announced at the first postponed meeting. The date and time of the second postponed meeting shall also be communicated to any members not attending the first postponed meeting. The second postponed meeting may be held without the attendance of all members as long as a majority of the percentage interests of the membership of this LLC is in attendance at the second postponed meeting. Written notice of the decisions or approvals made at this second postponed meeting shall be mailed or delivered to each non-attending member promptly after the holding of the second postponed meeting. Written minutes of the discussions and proposals presented at a members’ meeting, and the votes taken and matters approved at such meeting, shall be taken by one of the members or a person designated at the meeting. A copy of the minutes of the meeting shall be placed in the LLC’s records book after the meeting.
(8) Membership Certificates: This LLC shall be authorized to obtain and issue certificates representing or certifying membership interests in this LLC. Each certificate shall show the name of the LLC, the name of the member, and state that the person named is a member of the LLC and is entitled to all the rights granted members of the LLC under the Articles of Organization, Certificate of Formation or a similar organizational document, this operating agreement and provisions of law. Each membership certificate shall be consecutively numbered and signed by one or more officers of this LLC. The certificates shall include any additional information considered appropriate for inclusion by the members on membership certificates. In addition to the above information, all membership certificates shall bear a prominent legend on their face or reverse side stating, summarizing or referring to any transfer restrictions that apply to memberships in this LLC under the Articles of Organization, Certificate of Formation or a similar organizational document and/or this operating agreement, and the address where a member may obtain a copy of these restrictions upon request from this LLC. The records book of this LLC shall contain a list of the names and addresses of all persons to whom certificates have been issued, show the date of issuance of each certificate, and record the date of all cancellations or transfers of membership certificates.
(9) Other Business by Members: Each member shall agree not to own an interest in, manage or work for another business, enterprise or endeavor, if such ownership or activities would compete with this LLC’s business goals, mission, profitability or productivity, or would diminish or impair the member’s ability to provide maximum effort and performance in managing the business of this LLC.
III. TAX AND FINANCIAL PROVISIONS
(1) Tax Classification of LLC: For federal and, if applicable, state income tax purposes, this LLC will be taxed in its default tax classification, unless the members request an elective tax status from the IRS. The members also reserve the right to change the LLC’s tax classification at any time.
(2) Tax Year and Accounting Method: The tax year of this LLC shall be the calendar year. The LLC shall use the cash method of accounting. Both the tax year and the accounting period of the LLC may be changed with the consent of all members if the LLC qualifies for such change, and may be affected by the filing of appropriate forms with the IRS and state tax authorities.
(3) Tax Matters Partner: If this LLC is required under Internal Revenue Code provisions or regulations, it shall designate from among its members a “tax matters partner” in accordance with Internal Revenue Code Section 6231(a)(7) and corresponding regulations, who will fulfill this role by being the spokesperson for the LLC in dealings with the IRS as required under the Internal Revenue Code and Regulations, and who will report to the members on the progress and outcome of these dealings.
(4) Annual Income Tax Returns and Reports: Within 60 days after the end of each tax year of the LLC, a copy of the LLC’s state and federal income tax returns for the preceding tax year shall be mailed or otherwise provided to each member of the LLC, together with any additional information and forms necessary for each member to complete his or her individual state and federal income tax returns. If this LLC is classified as a partnership for income tax purposes, this additional information shall include a federal (and, if applicable, state) Form K-1 (Form 1065 - Partner’s Share of Income, Credits, Deductions) or equivalent income tax reporting form. This additional information shall also include a financial report, which shall include a balance sheet and profit and loss statement for the prior tax year of the LLC.
(5) Bank Accounts: The LLC shall designate one or more banks or other institutions for the deposit of the funds of the LLC, and shall establish savings, checking, investment and other such accounts as are reasonable and necessary for its business and investments. One or more members of the LLC shall be designated with the consent of all members to deposit and withdraw funds of the LLC, and to direct the investment of funds from, into and among such accounts. The funds of the LLC, however and wherever deposited or invested, shall not be commingled with the personal funds of any members of the LLC.
(6) Title to Assets: All personal and real property of this LLC shall be held in the name of the LLC, not in the names of individual members.
IV. CAPITAL PROVISIONS
(1) Capital Contributions by Members: Members shall make the following contributions of cash, property or services as shown next to each member’s name below. Unless otherwise noted, cash and property described below shall be paid or delivered to the LLC on or by [DATE OF AGREEMENT]. The fair market values of items of property or services as agreed between the LLC and the contributing member are also shown below. The percentage interest in the LLC that each member shall receive in return for his or her capital contribution is also indicated for each member.
| NAME & ADDRESS |
CONTRIBUTION |
% INTEREST IN LLC |
[MEMBER {n} NAME]
[MEMBER {n} ADDRESS] |
[MEMBER {n} CAPITAL] |
[MEMBER {n} OWNERSHIP PERCENTAGE] |
[MEMBER 1 NAME]
[MEMBER 1 ADDRESS] |
[MEMBER 1 CAPITAL] |
[MEMBER 1 OWNERSHIP PERCENTAGE] |
(2) Additional Contributions by Members: The members may agree, from time to time by unanimous vote, to require the payment of additional capital contributions by the members, on or by a mutually agreeable date.
(3) Failure to Make Contributions: If a member fails to make a required capital contribution within the time agreed for a member’s contribution, the remaining members may, by unanimous vote, agree to reschedule the time for payment of the capital contribution by the late-paying member, setting any additional repayment terms, such as a late payment penalty, rate of interest to be applied to the unpaid balance, or other monetary amount to be paid by the delinquent member, as the remaining members decide. Alternatively, the remaining members may, by unanimous vote, agree to cancel the membership of the delinquent member, provided any prior partial payments of capital made by the delinquent member are refunded promptly by the LLC to the member after the decision is made to terminate the membership of the delinquent member.
(4) No Interest on Capital Contributions: No interest shall be paid on funds or property contributed as capital to this LLC, or on funds reflected in the capital accounts of the members.
(5) Capital Account Bookkeeping: A capital account shall be set up and maintained on the books of the LLC for each member. It shall reflect each member’s capital contribution to the LLC, increased by each member’s share of profits in the LLC, decreased by each member’s share of losses and expenses of the LLC, and adjusted as required in accordance with applicable provisions of the Internal Revenue Code and corresponding income tax regulations.
(6) Consent to Capital Contribution Withdrawals and Distributions: Members shall not be allowed to withdraw any part of their capital contributions or to receive distributions, whether in property or cash, except as otherwise allowed by this agreement and, in any case, only if such withdrawal is made with the written consent of all members.
(7) Allocations of Profits and Losses: No member shall be given priority or preference with respect to other members in obtaining a return of capital contributions, distributions or allocations of the income, gains, losses, deductions, credits or other items of the LLC. The profits and losses of the LLC, and all items of its income, gain, loss, deduction and credit shall be allocated to members according to each member’s percentage interest in this LLC.
(8) Allocation and Distribution of Cash to Members: Cash from LLC business operations, as well as cash from a sale or other disposition of LLC capital assets, may be distributed from time to time to members in accordance with each member’s percentage interest in the LLC, as may be decided by all of the members.
(9) Allocation of Noncash Distributions: If proceeds consist of property other than cash, the members shall decide the value of the property and allocate such value among the members in accordance with each member’s percentage interest in the LLC. If such noncash proceeds are later reduced to cash, such cash may be distributed among the members as otherwise provided in this agreement.
(10) Allocation and Distribution of Liquidation Proceeds: Regardless of any other provision in this agreement, if there is a distribution in liquidation of this LLC, or when any member’s interest is liquidated, all items of income and loss shall be allocated to the members’ capital accounts, and all appropriate credits and deductions shall then be made to these capital accounts before any final distribution is made. A final distribution shall be made to members only to the extent of, and in proportion to, any positive balance in each member’s capital account.
V. MEMBERSHIP WITHDRAWAL AND TRANSFER PROVISIONS
(1) Withdrawal of Members: A member may withdraw from this LLC by giving written notice to all other members at least 60 days before the date the withdrawal is to be effective.
(2) Restrictions on the Transfer of Membership: A member shall not transfer his or her membership in the LLC unless all non-transferring members in the LLC first agree to approve the admission of the transferee into this LLC. Further, no member may encumber a part or all of his or her membership in the LLC by mortgage, pledge, granting of a security interest, lien or otherwise, unless the encumbrance has first been approved in writing by all other members of the LLC. Notwithstanding the above provision, any member shall be allowed to assign an economic interest in his or her membership to another person without the approval of the other members. Such an assignment shall not include a transfer of the member’s voting or management rights in this LLC, and the assignee shall not become a member of the LLC.
VI. DISSOLUTION PROVISIONS
(1) Events That Trigger Dissolution of the LLC: The following events shall trigger dissolution of the LLC, except as provided:
(a) the death, permanent incapacity, bankruptcy, retirement, resignation or expulsion of a member, except that within 60 days of the happening of any of these events, all remaining members of the LLC may vote to continue the legal existence of the LLC, in which case the LLC shall not dissolve;
(b) the expiration of the term of existence of the LLC if such term is specified in the Articles of Organization, Certificate of Formation or a similar organizational document, or this operating agreement;
(c) the written agreement of all members to dissolve the LLC;
(d) entry of a decree of dissolution of the LLC under state law.
VII. GENERAL PROVISIONS
(1) Officers: The LLC may designate one or more officers, such as a President, Vice President, Secretary and Treasurer. Persons who fill these positions need not be members of the LLC. Such positions may be compensated or non-compensated according to the nature and extent of the services rendered for the LLC as a part of the duties of each office. Ministerial services only as a part of any officer position will normally not be compensated, such as the performance of officer duties specified in this agreement, but any officer may be reimbursed by the LLC for out-of-pocket expenses paid by the officer in carrying out the duties of his or her office.
(2) Records: The LLC shall keep at its principal business address a copy of all proceedings of membership meetings, as well as books of account of the LLC’s financial transactions. A list of the names and addresses of the current membership of the LLC also shall be maintained at this address, with notations on any transfers of members’ interests to nonmembers or persons being admitted into membership in the LLC.
Copies of the LLC’s Articles of Organization, Certificate of Formation or a similar organizational document, a signed copy of this operating agreement, and the LLC’s tax returns for the preceding three tax years shall be kept at the principal business address of the LLC. A statement also shall be kept at this address containing any of the following information that is applicable to this LLC:
- the amount of cash or a description and value of property contributed or agreed to be contributed as capital to the LLC by each member;
- a schedule showing when any additional capital contributions are to be made by members to this LLC;
- a statement or schedule, if appropriate, showing the rights of members to receive distributions representing a return of part or all of members’ capital contributions; and
- a description of, or date when, the legal existence of the LLC will terminate under provisions in the LLC’s Articles of Organization, Certificate of Formation or a similar organizational document, or this operating agreement.
If one or more of the above items is included or listed in this operating agreement, it will be sufficient to keep a copy of this agreement at the principal business address of the LLC without having to prepare and keep a separate record of such item or items at this address. Any member may inspect any and all records maintained by the LLC upon reasonable notice to the LLC. Copying of the LLC’s records by members is allowed, but copying costs shall be paid for by the requesting member.
(3) All Necessary Acts: The members and officers of this LLC are authorized to perform all acts necessary to perfect the organization of this LLC and to carry out its business operations expeditiously and efficiently. The Secretary of the LLC, or other officers, or all members of the LLC, may certify to other businesses, financial institutions and individuals as to the authority of one or more members or officers of this LLC to transact specific items of business on behalf of the LLC.
(4) Indemnification: The LLC shall indemnify the Member and those authorized officers, agents, and employees of the LLC identified in writing by the Member as entitled to being indemnified under this section for all costs, losses, liabilities and damages paid or accrued by the Member (as the Member or officer, agent, or employee) or any such officer, agent, or employee in connection with the business of the LLC, except to the extent prohibited by the laws of the state that governs this Agreement. In addition, the LLC may advance costs of defense of any proceeding to the Member or any such officer, agent, or employee upon receipt by the LLC of an undertaking by or on behalf of such person to repay such amount if it shall ultimately be determined that the person is not entitled to be indemnified by the LLC.
(5) Mediation and Arbitration of Disputes Among Members: In any dispute over the provisions of this operating agreement and in other disputes among the members, if the members cannot resolve the dispute to their mutual satisfaction, the matter shall be submitted to mediation. The terms and procedure for mediation shall be arranged by the parties to the dispute. If good-faith mediation of a dispute proves impossible or if an agreed-upon mediation outcome cannot be obtained by the members who are parties to the dispute, the dispute may be submitted to arbitration in accordance with the rules of the American Arbitration Association. Any party may commence arbitration of the dispute by sending a written request for arbitration to all other parties to the dispute. The request shall state the nature of the dispute to be resolved by arbitration, and, if all parties to the dispute agree to arbitration, arbitration shall be commenced as soon as practical after such parties receive a copy of the written request. All parties shall initially share the cost of arbitration, but the prevailing party or parties may be awarded attorney fees, costs and other expenses of arbitration. All arbitration decisions shall be final, binding and conclusive on all the parties to arbitration, and legal judgment may be entered based upon such decision in accordance with applicable law in any court having jurisdiction to do so.
(6) Governing Law: This Agreement shall be governed by, and interpreted and enforced in accordance with, the substantive laws of the State in which the LLC was formed, without reference to the conflicts of law rules of that or any other jurisdiction.
(7) Entire Agreement: This operating agreement represents the entire agreement among the members of this LLC, and it shall not be amended, modified or replaced except by a written instrument executed by all the parties to this agreement who are current members of this LLC as well as any and all additional parties who became members of this LLC after the adoption of this agreement. This agreement replaces and supersedes all prior written and oral agreements among any and all members of this LLC.
(8) Severability: If any provision of this agreement is determined by a court or arbitrator to be invalid, unenforceable or otherwise ineffective, that provision shall be severed from the rest of this agreement, and the remaining provisions shall remain in effect and enforceable.
VIII. SIGNATURES OF MEMBERS
Execution of Agreement: In witness whereof, the members of this LLC sign and adopt this agreement as the operating agreement of this LLC.
| Date: |
[DATE OF AGREEMENT] |
| Signature: |
________________________________________ |
| Printed Name: |
[MEMBER {n} NAME], Member |
| Date: |
[DATE OF AGREEMENT] |
| Signature: |
________________________________________ |
| Printed Name: |
[MEMBER 1 NAME], Member |
OPERATING AGREEMENT FOR
[LLC NAME]
A MANAGER-MANAGED LLC
Article I
Company Formation
1.1 FORMATION. The Members have formed a Limited Liability Company (“Company”) subject to the laws of the state in which it was formed. This operating agreement is entered into and effective upon adoption by the Member(s).
1.2 REGISTERED AGENT. The name and location of the Company’s registered agent will be as stated in the formation documents.
1.3 TERM. The Company will continue perpetually unless, (a) Members unanimously vote for dissolution; or (b) An event occurs which causes the Company’s business to become unlawful; or (c) Any other event causing the Company’s dissolution under state laws.
1.4 CONTINUANCE OF COMPANY. In the event of an occurrence described in ARTICLE 1.3(c), if there is at least one remaining Member, the Member has the right to continue the Company’s business.
1.5 BUSINESS PURPOSE. The purpose of the Company is to conduct any and all lawful business activities appropriate in carrying out the company’s objectives.
1.6 PRINCIPAL PLACE OF BUSINESS. The location of the Company’s principal place of business will be as stated in the formation documents or as selected by the Managers.
1.7 THE MEMBERS. The name and address of each Member is contained in Exhibit 2, attached to this Agreement.
1.8 ADMISSION OF ADDITIONAL MEMBERS. Members may only be admitted to the Company through issuance of a new interest in the company with unanimous written consent of the Members or the sale of a Member’s current interest, except as otherwise expressly provided in the Agreement.
Article II
Capital Contributions
2.1 INITIAL CONTRIBUTIONS. The Members will contribute the Company’s initial capital as described in Exhibit 3 attached to this Agreement. The agreed total value of such property and cash is [SUM OF ALL MEMBERS CAPITAL].
2.2 ADDITIONAL CONTRIBUTIONS. Except as provided in ARTICLE 6.2, no Member is obligated to make any additional contribution to the Company’s capital.
Article III
Profits, Losses and Distributions
3.1 PROFITS/LOSSES. For financial accounting and tax purposes the Company’s net profits or net losses will be determined annually. Profits and losses will be allocated to the Members in proportion to each Member’s relative capital interest in the Company as set forth in Exhibit 2 as amended and in accordance with Treasury Regulation 1.704-1.
3.2 DISTRIBUTIONS. The Members may determine and distribute available funds annually or more frequently as the Members see fit. “Available funds” refers to the net cash of the Company available after expenses and liabilities, as determined by the Managers. Upon liquidation of the Company or of a Member’s interest, distributions must be made according to the positive capital or pursuant to Treasury Regulation 1.704-l(b)(2)(ii)(b)(2). To the extent a Member has a negative capital account balance, there must be a qualified income offset, as set forth in Treasury Regulation 1.704-l(b)(2)(ii)(d).
Article IV
Management
4.1 MANAGEMENT OF THE BUSINESS. The Company is managed by a Manager or Managers. The Manager(s) may be Members or Non-Members. The name and address of each Manager is attached as Exhibit 1 of this Agreement. The Manager(s) will be elected by a majority vote of the Members.
4.2 MEMBERS. The liability of the Members is limited pursuant to applicable state law. Members that are not Managers may not take any part in the control, management, direction, or operation of the Company’s affairs and have no power to bind the Company. The Members may advise the Managers, but Managers are not required to accept such advice. The Managers have the exclusive right to control and manage the Company. No Member will be an agent of any other Member of the Company solely by reason of being a Member.
4.3 POWERS OF MANAGERS. The Managers are authorized to make all decisions regarding the Company’s operations and legal affairs, including but not limited to:
(a) the sale, development, lease or other disposition of the Company’s assets;
(b) the purchase or other acquisition of other assets of all kinds;
(c) the management of all or any part of the Company’s assets;
(d) the borrowing of money and the granting of security interests in the Company’s assets;
(e) the pre-payment, refinancing or extension of any loan affecting the Company’s assets;
(f) the compromise or release of any of the Company’s claims or debts; and,
(g) the employment of persons, firms or corporations for the operation and management of the Company’s business. Managers are authorized to execute and deliver (1) all contracts, conveyances, assignments leases, sub-leases, franchise agreements, licensing agreements, management contracts and maintenance contracts covering or affecting the Company’s assets; (2) all checks, drafts and other orders for the payment of the Company’s funds; (3) all promissory notes, loans, security agreements and other similar documents; and, (4) all other instruments of any other kind relating to the Company’s business.
4.4 NOMINEE. Title to the Company’s assets will be held in the Company’s name or in the name of any nominee that the Managers may designate. The Managers will have power to enter into a nominee agreement with any person, and such agreement may contain provisions indemnifying the nominee, except for his or her willful misconduct.
4.5 COMPANY INFORMATION. Upon request, the Managers will supply to any member, information regarding the Company or its activities. Any Member or a member’s authorized representative may access, inspect, and copy all books, records and materials in the Manager’s possession regarding the Company or its activities. These rights may be exercised at the requesting Member’s expense.
4.6 EXCULPATION. Any act or omission of the Managers, the effect of which may cause or result in loss or damage to the Company or the Members, if done in good faith to promote the best interests of the Company, will not subject the Managers to any liability.
4.7 INDEMNIFICATION. The Company will indemnify any person who was or is a party defendant or is threatened to be made a party defendant, in a pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (other than an action by or in the right of the Company) by reason of the fact that the person is or was a Member of the Company, employee, or agent of the Company, or is or was serving at the request of the Company. The termination of any action, suit, or proceeding by judgment, order, settlement, conviction, or upon a plea of “no lo Contendere” does not imply that the party did or did not act in good faith and in a manner which he/she reasonably believed to be lawful and in the best interest of the Company.
4.8 RECORDS. The Managers must keep the following at the Company’s principal place of business:
(a) A copy of all formation documents, the operating agreement, and any amendments;
(b) A current list of the full name and the last known street address of each Member;
(c) Copies of the Company’s federal, state and local income tax returns and reports, if any, for the three most recent years;
(d) Copies of the Company’s financial statements for the three most recent years.
Article V
Compensation
5.1 MANAGEMENT FEE. Any Manager rendering services to the Company is entitled to compensation equal to the value of those services.
5.2 REIMBURSEMENT. The Company will reimburse the Managers or Members for all direct out-of-pocket expenses incurred in managing the Company.
Article VI
Bookkeeping
6.1 BOOKS. The Managers will keep complete and accurate accounting of the Company’s affairs at the Company’s principal place of business or other location agreed upon by the Managers. The Managers will choose the method of accounting and the Company’s accounting period will be the calendar year.
6.2 MEMBER’S ACCOUNTS. The Managers must maintain separate capital and distribution accounts for each Member. Each Member’s capital account must be determined and maintained in the manner set forth in Treasury Regulation 1.704-l(b)(2)(iv) and will consist of the Member’s initial capital contribution increased by:
(a) Any additional capital contribution made by the Member;
(b) Credit balances transferred from the member’s distribution account to the member’s capital account;
and decreased by:
(1) Distributions to the Member in reduction of Company capital;
(2) The Member’s share of Company losses if charged to the Member’s capital account.
6.3 REPORTS. When the Managers close the books at the close of each calendar year, the Managers will prepare and send to each Member, a statement of that Member’s distributive share of income and expense for income tax reporting purposes.
Article VII
Transfers
7.1 ASSIGNMENT. If a Member proposes to sell, assign or otherwise dispose of all or part of the Member’s interest in the Company, he or she must comply with the following procedures:
(a) First make a written offer, including the price, to sell such interest to the other Member(s). The exiting Member may only advertise the sale if the other Members decline or fail to elect such interest within 60 days after the offer.
(b) If the exiting member has a buyer of interest, the other current Member(s) have first right of refusal to purchase the exiting Member’s interest for the agreed purchase price. If there is more than one current remaining Member, the remaining Members may combine funds to purchase the exiting Members’ interest. The exiting Member must show that potential purchaser has full certified funds, or the ability to get full certified funds before the 60 day right of first refusal period ends.
(c) Current Members must unanimously approve the sale of exiting Members’ interests to grant full membership benefits and functionality to the new Member. If the current remaining Members do not unanimously approve the sale, the purchaser or assignee will have no management or voting rights. The purchaser or assignee is only entitled to receive the share of the profits or other compensation by way of income and the return of contributions to which that Member would otherwise be entitled. The exiting Member must disclose to the buyer or assignee if the current Members will not approve the sale.
7.2 VALUATION OF EXITING MEMBERS INTEREST. If a Member wants to exit the LLC, and does not have a buyer of its membership interest, exiting Member will assign its interest to current Members according to the following procedures:
(a) A value must be placed upon this membership interest before being assigned.
(b) If the exiting Member and the current Members do not agree on the value of the membership interest, the exiting Member must pay for a certified appraiser to assess the Company’s value. The appraiser will assign the exiting Members’ interest a value according to the exiting Members’ interest percentage.
(c) The current Members must approve the certified appraiser used by exiting Member. Current Members have 30 days to approve the exiting Members certified appraiser. If current Members disapprove the certified appraiser, they must show evidence to support their disapproval of the certified appraiser as a vendor qualified to appraise the company. Current Members may not stall the process by disapproving all certified appraisers.
(d) When a certified appraiser places a value on the Company, a value will be placed on the exiting Members’ interest according to exiting Members’ percentage of membership interest.
(e) If current Members disagree with the value placed on exiting Members’ interest, current Members must pay for a certified appraiser to value the company and the exiting Members’ interest according to the same terms.
(f) Current Members’ appraisal must be completed within 60 days or right of current Members to dispute the value of exiting Member’s interest expires.
(g) Upon completion of current Members’ appraisal, the exiting Member must approve the value placed on exiting Members’ interest. Exiting Member has 30 days to approve this value.
(h) If the exiting Member does not approve the current Members’ appraised value, then the value of the Company will be determined by adding both parties’ appraised values, then dividing that value in half, creating the value of the exiting Members’ interest.
7.3 DISTRIBUTION OF EXITING MEMBERS INTEREST. Upon determination of exiting Members’ interest value, the value will be a debt of the Company. The exiting Member will only be able to demand payment of this debt at dissolution of the Company or by the following method:
(a) The Company will make timely payments.
(b) The Company will only be required to make payments towards exiting Member’s debt if the Company is profitable and passes income to current Members.
(c) The Company must make a debt payment to the exiting Member if the Company’s income surpassed 50% of the total determined value of the exiting Members’ interest in one taxable year. (Example: If exiting Members’ value was $100,000 and current Member(s) received over $50,000 taxable income in the taxable year, the LLC would owe a debt payment to exiting Member. If current Member(s) only received $40,000 in passed income, there would be no payment due.)
(d) The debt payment must be at least 10% of the value of the passed income to current Members.
(e) The company must make payment to exiting Member within 60 days of the end of the company’s taxable year.
(f) The payment schedule will continue until the exiting Member’s debt is paid.
(g) If the Company dissolves, the exiting Member will be a regular debtor and payment will follow normal dissolution payment statutes.
(h) The exiting Member’s value of membership interest assigned current Members may NOT accrue interest.
(i) The Company may pay the amount owed to the exiting Member at any time.
Article VIII
Dissolution
8.1 DISSOLUTION. The Member(s) may dissolve the LLC at any time. The Member(s) may NOT dissolve the LLC for a loss of membership interests.
Upon dissolution the LLC must pay its debts first before distributing cash, assets, and/or initial capital to the Member or the Members interests. The dissolution may only be ordered by the Member(s), not by the owner of the Member’s interests.
Certification of Members
The undersigned hereby agree, acknowledge, and certify that the foregoing operating agreement is adopted and approved by each Member, the agreement consisting of [TOTAL PAGE COUNT] pages, constitutes, together with Exhibit 1, Exhibit 2, and Exhibit 3, the Operating Agreement of [LLC NAME], adopted by the Members as of [DATE OF AGREEMENT].
Members:
__________________________________________
[MEMBER {n} NAME]
Membership interest: [MEMBER {n} OWNERSHIP PERCENTAGE]
__________________________________________
[MEMBER 1 NAME]
Membership interest: [MEMBER 1 OWNERSHIP PERCENTAGE]
Exhibit 1
LIMITED LIABILITY COMPANY OPERATING AGREEMENT FOR
[LLC NAME]
Listing of Managers
By a majority vote of the Members the following Managers were elected to operate the Company pursuant to ARTICLE 4 of the Agreement:
_______________________________
[MANAGER {n} NAME], Manager
[MANAGER {n} FULL ADDRESS]
_______________________________
[MANAGER 1 NAME], Manager
[MANAGER 1 FULL ADDRESS]
The above listed Manager(s) will serve in their capacities until they are removed for any reason by a majority vote of the Members as defined by ARTICLE 4 or upon their voluntary resignation.
Signed and agreed on [DATE OF AGREEMENT].
__________________________________________
[MEMBER {n} NAME], Member
__________________________________________
[MEMBER 1 NAME], Member
Exhibit 2
LIMITED LIABILITY COMPANY OPERATING AGREEMENT FOR
[LLC NAME]
Listing of Members
As of [DATE OF AGREEMENT], the following is a list of Members of the Company:
| Name: |
[MEMBER {n} NAME] |
| Membership interest: |
[MEMBER {n} OWNERSHIP PERCENTAGE] |
| Address: |
[MEMBER {n} FULL ADDRESS] |
| Name: |
[MEMBER 1 NAME] |
| Membership interest: |
[MEMBER 1 OWNERSHIP PERCENTAGE] |
| Address: |
[MEMBER 1 FULL ADDRESS] |
Authorized by Member(s) to provide Member Listing as of [DATE OF AGREEMENT].
__________________________________________
[MEMBER {n} NAME], Member
__________________________________________
[MEMBER 1 NAME], Member
Exhibit 3
LIMITED LIABILITY COMPANY OPERATING AGREEMENT FOR
[LLC NAME]
Capital Contributions
Pursuant to ARTICLE 2, the Members’ initial contribution to the Company capital is stated to be [SUM OF ALL MEMBERS CAPITAL]. The description and each individual portion of this initial contribution is as follows:
| [MEMBER {n} NAME], by cash/check/money order: |
[MEMBER {n} CAPITAL] USD |
| [MEMBER 1 NAME], by cash/check/money order: |
[MEMBER 1 CAPITAL] USD |
SIGNED AND AGREED on [DATE OF AGREEMENT].
__________________________________________
[MEMBER {n} NAME], Member
__________________________________________
[MEMBER 1 NAME], Member
Matt,
Not sure if this will actually get to you but I just had a quick question, if I may…
Is the LLC Agreement, under the Word link above, good for all states, specifically Pennsylvania?
Thank you in advance for your time and consideration
Hi Anthony, yes, this Operating Agreement template is good for all states, including Pennsylvania. Hope that helps :)
I have had an LLC for rental properties for 10 years. However, being a sole member I never created nor incorporated a Single Member Operating Agreement. I have recently seen the importance of having one. My question is due to this start up of LLC business being 10 years ago, what do I put for capital contributions on new Si gle Operating Agreement? I know it will be 100% but unsure of exact contributions. Thank you in advance.
Hello, in that case, you can just put $100 or $1,000 and give yourself 100% membership interest. Hope that helps :)
I need an operating procedure for gifting my digital assets to my newly formed wyoming llc.
It’s a two member with me as member manager.
Help.
Hi Michael, do you still need assistance? We can email this over to you.
Good job matt. keep up the good work.
Paul
Will do 💪. Thank you Paul.
My name is Fekade. I’m a Registered Nurse, and my coworkers and I are planning to open an LLC nursing home in Colorado. We came across your sample operating agreement and were wondering if we could use it as a reference for our business.
Hi Fekade, yes, you can use our Operating Agreement template for your business. Hope that helps.
Love your content here, so helpful! Thank you
Thank you Crystal! You’re very welcome :)
That’s all I am going to say-Thank you Matt very much!!
Thanks so much Sediq! You’re very welcome :)
Hello, I would like to ask a question.
I have an LLC, which I formed because I want to open an account on TikTok Shop. Since I am not a U.S. resident, I need an LLC, which I already have.
Another requirement for non-U.S. residents on TikTok Shop is to have a legal representative who can provide their SSN and residential address.
Currently, my LLC is single-member, and I am the sole owner. I understand that I need to create an operating agreement including the person who will provide these details.
What type of operating agreement should I draft, considering that this is solely to meet TikTok Shop’s requirements and that I want to formalize this arrangement without granting ownership rights or administrative control over my LLC?
Hi Ana, I wasn’t aware that TikTok wants someone from your LLC to have an SSN and residential address in the US. That’s helpful to know. However, regarding an Operating Agreement with a Member (or Manager) that isn’t really a Member isn’t something we have, or can provide. Thank you for your understanding. Also, you might want to check out the comments on non-US resident LLC bank account. Currently, many non-US residents are having a very hard time opening up US LLC bank accounts.
Hi Matt,
I’m wondering what portion(s) or wording of the current LLC Operating Agreement template MUST be changed for it to function as a Single-Member LLC Operating Agreement. I’ve read elsewhere that the differences can be important as it relates to tax and legal issues. Just as an example, I’ve seen templates that specifically call the business a, ‘Single Member Limited Liability Company,” vs. “Limited Liability Company.” It also seems some of the wording for SMLLC avoids terminology referring to “members,” distributions according to “percentage ownership,” or other language that implies joint ownership and decision-making.
In short, is there a legal difference between an Operating Agreement that is clearly meant for an SMLLC vs a regular LLC that happens to have a single member?
Hi Steve, that isn’t necessary. The Operating Agreement template we have can serve both Single-Member LLCs and Multi-Member LLCs. If you’d like to change the title to “Single-Member LLC Operating Agreement”, you can. But it’s not required.
Appreciate the response above as I wondered the same thing on any verbiage changes for single-member LLC. I am currently moving from sole proprietor to single-member LLC. Thank you so much Matt for all this information on your site!
Hi Vickie, you’re very welcome! Congrats on the move to an LLC 💪. If you have any other questions, just let us know.
My wife and I formed an LLC that was supposed to be 50/50 and the paperwork that was sent back says 1. She is our registered agent, has us both listed as members however the IRS paperwork states only her name and says the EIN was issued to her. Was there some sort of mess up or are they addressing the IRS paperwork to her because she is the registered agent ?
Hi Zackery, no, they aren’t addressing the EIN Confirmation Letter to your wife because she is the Registered Agent. They are doing so because she is the EIN Responsible Party. And whether is says “SOLE MBR” or “MBR” is based on how many Members you told the IRS there was (or if you listed 2 Members and stated you were husband and wife, aka a Qualified Joint Venture) during the EIN application. If you’re not a Qualified Joint Venture, you can actually just go ahead and file a 1065 Partnership Return showing you both as Members/Partners. Simply filing the 1065 Partnership Return is all you need to do to “notify” the IRS that there are 2 Members (regardless of what was listed on the EIN application). Hope that helps.
I have formed an LLC but I have a question regarding percentage of ownership. We are supposed to be 3 partners, agreed to do what it takes to establish the business. During the process of licensing, (Dept of Health) its only me who is performing. I am researching, doing the leg work, and among other things. My partners are busy with their own lives and businesses. What can you advice me in dealing with this issue? It is not fair that they have an equal share when I was the only one that make this business from ground up. Thank you…
Hey JLC, that sounds frustrating. However, the current Operating Agreement rules, so they are still equal partners. Sounds like a good next step might be to have the uncomfortable conversation. You can share that you are doing more work and they are more passive. You could ask for compensation from the LLC. Or you could ask for them to transfer some of their LLC Membership Interest (aka ownership) to you. If they push back and over time you feel like you’re better without them, you could always form a new LLC. Just some loose ideas.
I’m a single member of ParentLLC, and ParentLLC is the single member of ChildLLC. I want to appoint myself as an officer (president, COO, etc.) in the ChildLLC so I can sign contracts on behalf of the company.
I understand how to add a clause to enable officers in the company, but I can’t find an example on how to actually appoint those officers by name in the operating agreement. Can you help me with this? Tnx!
Hi Tzvi, click on any state lesson on our website and take a look at the Manager-managed Operating Agreement template. That sounds like what you need… Your Child LLC to be a Manager-managed LLC (owned by the Parent LLC, but Managed by you). And here’s a document you can use to give yourself whatever titles you’d like: Addendum to Operating Agreement – LLC Officer Titles.
Yes! Exactly what I need. Thank you!
I realized a manager managed LLC is the more appropriate type.
Follow up question: can the cluase in the addendum be part of the operating agreement? Just to save papers and have everything in the same document.
Thanks again, Great website and service for LLC newbies:)
You’re very welcome :) Thank you very much! And definitely, you can just edit any Operating Agreement and add that – or similar – language to it.
Im looking for a LLC subscription agreement that talks about percentages. not stock/shares.
Im confused because online that is all I see. I thought you couldn’t have stock in an LLC.
Thanks
Hi Dawn, you’re correct. The Operating Agreement template we provide doesn’t mention stock/shares. It uses the term LLC Membership Interest percentages.
Since an LLC is not a corporation, am i correct in presuming articles of incorporation do not have to be filed? If so, does the LLC operating agreement need to be changed to include the update of the tax situation?
Truly appreciate the work you have put into this website. Excellent information.
Hi MJ, thank you! Yes, you are correct. The Articles of Incorporation is not the correct form for an LLC. That’s the form for a Corporation. Depending on the state where the LLC is formed, the form is call the Articles of Organization, Certificate of Organization, or Certificate of Formation. Yes, it’s best practice to keep the LLC Operating Agreement up to date with any changes in tax classification. Hope that helps :)
Hello Matt, i have a question, i have already a fictitious name and was publish for 2 weeks before i applied for my LLC, should i wait for the LLC to come out, before applying for business license and
Commercial insurance ?
Thank you again
Hi Darwin, if you want to run your business through your LLC, then yes, you’ll want to wait for your LLC to be approved and then apply for your business license and get commercial insurance. And before doing that, you’ll want to get an EIN Number for your LLC. The reason why is that you want the business license and the commercial insurance in the name of your LLC. Your existing Fictitious Name sounds like it’s attached to you as a Sole Proprietorship. If you want your LLC to do business under that Fictions Name (in addition to the full legal name of the LLC), you can transfer/assign your existing Fictitious Name from yourself to your LLC. I believe you’re in California. If so, you’ll need to get in contact with the county office (where your principal place of business is located) for the form and instructions on how to transfer/assign your Fictitious Name from yourself to your LLC. Having said all that, if you’d like to share the name of your LLC and your Fictitious Name, we can offer some more context. Fictitious Names and LLCs often lead to a lot of confusion and people doing the wrong things/using them the wrong way. Hope that helps.
Hi Matt, just want to thank you for giving us your free education at LLC university, it helps me to understand a lot of stuff when starting a business. I should have found this before I wasted some money ..pls keep educating us..
thank you!!! More power
Darwin! Thanks for the awesome comment man! We sure do appreciate it and we certainly will :)
Hello, could you answer the question:
Is LLC Operating Agreement has to be notarize?
Thank you very much.
Hi,
I would say yes. Because when I went to open my business bank account. They required that I have an operating agreement and they said that it needed to be notarized. In my case, the bank I work with was also able to notarize for me. I think many banks offer that service.
Also when I’m dealing with overseas contracts and things like opening a satellite office abroad. They always want a notarized organization agreement. So I would definitely assume that you should just go ahead and get it notarized. It doesn’t cost much and it doesn’t involve a lot of time and I think it would also protect you if you ever needed it for legal purposes.
But I am not proficient with these things and I can only share my experience. I hope it helps or that the professionals here can respond soon for you.
Hi Dana, thanks for sharing your experience. While we haven’t heard of a bank requesting a notarized LLC Operating Agreement, and most small business owners won’t need their Operating Agreement notarized, your experience has shown otherwise. This also shows that no two banks are exactly the same. Which bank did you open the account with? I’d say the takeaway for anyone reading this is to call the bank ahead of time and see what documents are required and ask if they need an LLC Operating Agreement (some banks don’t even need the Operating Agreement) and if so, whether or not it needs to be notarized. On a good note, if notarization is needed, most banks have a notary on staff. And we always recommend bringing all LLC paperwork to the bank anyway, just so you don’t have to make two trips. Thanks Dana!
Hi Galyna, as a general rule, an LLC Operating Agreement doesn’t need to be notarized to be effective and binding upon the LLC Members. Having said, Dana brought up a great point. So when in doubt, if you need to present your Operating Agreement somewhere, you can always ask them if it needs to be notarized… or you can always notarize it (since it’s relatively easy and affordable to get done) and it can’t hurt. Hope that helps.
Thank-you so much for all of your work and the knowledge you shared here for us. I was really in need of a detailed and easy explanation for this topic. I am part of a multi-member LLC and we needed this document to add to our application. And wow, you even had PDF available too !! you made things sooo easy for me. Thank-you !!
This has saved me hours of work. I will be sure to follow your other social media’s too.
Hi Dana, you’re very welcome! So glad to hear it was helpful and saved you a lot of time, too :)
Hello,
Thanks for sharing ! Learning alot !
Do you have an the Manager-Managed LLC Operating Agreement template ?
-J
My wife and I are about to file with the state of Oklahoma to have a LLC for s small transportation business. I am close to retiring from my current job and have done enough research to determine that after I retire I will be limited to about 1400 a month income to prevent reducing my social security supplement from my federal retirement. My first thought is to have the LLC in my wife’s name only and be an employee of the company but going that route will involve employer requirements on her part to include workmans comp insurance and quarterly reporting (taxes). We understand that this is necessary but are trying to figure out what is the best way to set this up not to exceed my income limits. what do you advise?
Hi David, this is an excellent question, but it falls outside of our wheelhouse. We’re not sure. You’ll want to seek some professional advice on this. Feel free to share any of your findings if you’d like. Thank you for your understanding.
Thank you for the prompt reply. Should the professional advice be with a CPA or a tax attorney?
You’re welcome David. I’d speak with both. I recommend speaking with a few people about the same scenario to make sure I get the best answer.
HI! What a wonderful site this is! Can I please have a template for the Manager-Managed Operating Agreement?
Also, for membership interest transfers (sale of member’s interest), do you think an LLC Bill of Sale is sufficient if it details the names of the members (old and new), the date of transfer, and the amount paid to transfer the interest to a new member?
Thanks so much!
Thank you Laima! We just emailed you the Manager-Managed LLC Operating Agreement. Regarding the second question, it’s best practice to speak with an attorney about how to properly sell/transfers LLC membership interest. Hope that helps and thanks for your understanding.
Hi Matt,
Thank you for what you are doing.
My question is: do you provide guidance for domesticating an LLC from Delaware to Florida?
You’re welcome Scott. At this point, we don’t have content written on domestication. It’s on our list, just not the top priority at this time. However, for domesticating a DE LLC into a FL LLC, you’ll file Articles of Conversion For “Other Business Entity” into Florida Limited Liability Company. The form includes the conversion as well as the Florida Articles of Organization. This can only be filed by mail. No online filing for this at this time. Approval time is currently 7 to 10 business days. After domestication is approved, you can dissolve Delaware LLC and wind up its affairs. Hope that helps.
Hi Matt,
Thank you for that information. But when I called the State of Florida to confirm, they told me to file Article of Conversion and Article of Organization and no Delaware Certificate of Status is required. They said that Domestication is only requierd if the LLC is from out of the country.
I wonder if this make sense to you?
Hi Scott, my first reply was incorrect. I’ve since edited it to help future readers. You were told correct. No Delaware Certificate of Status is needed and the correct form is called the “Articles of Conversion For ‘Other Business Entity’ into Florida Limited Liability Company”. Thanks for helping us square things up :)
Your website is fantastic and very informative. I’m planning to create a FL LLC and it has helped me understand the details and trade-offs. Do you have a template for a Manager-Managed LLC Operating Agreement? If not, what should I be thinking about changing in the Member-Managed Operating Agreement?
Thank you,
Scotty
Hey Scotty, thanks for the kind words! I just emailed you the Manager-Managed Operating Agreement. Hope that helps :)
Can I get the Manager-managed version as well? I’ll own 75% of the LLC with 2 other members splitting the other 25%. But I will be appointed as the sole, internal manager. Thanks
Hey Jeremy, I just emailed it over to you. Hope that helps.
Hey matt,
Your website has been super helpful. Have learned a lot (like that I might as well form in California if I am going to do business there). Sorry to bother, but could I get a copy of the managed member operating agreement as well.
Thanks so much. Really appreciate it.
Hey Will! Thanks so much! Glad to hear we could help. Check out our updated California LLC Operating Agreement page. We now have Member-managed and Manager-managed Operating Agreement templates for download. Hope that helps.
Hi, Matt!!! First off, I have to say that I’m really excited to have found LLC University and I look forward to really making the most out of all this knowledge.
My question is, considering that the OA is a living document, I thought about making the LLC member-managed, considering that I’m the only member at the moment, but I do plan on expanding the membership soon, regardless of any reason for such expansion.
Should I play it safe and be a managing member on the OA, or am I simply getting ahead of myself?
Thank you so much!
Emmanuel, what’s up!! Thanks so much. We’re glad you are finding it so helpful :) In a Member-Managed LLC, your title is actually Managing Member. It means you are a Member (owner) and that you have the authority to act on behalf of the LLC and bind the LLC in contracts and agreements.
Just a heads up: adding Members is not a straightforward process. You’ll fist need to transfer/sell some of your LLC membership interest to the new person(s). This can be done via an Assignment of LLC Membership Interest. Then you’ll need to amend the Operating Agreement. Depending on the state (if Members are publicly listed), you may need to amend your Articles of Organization, Certificate of Organization, or Certificate of Formation. Then you’ll need to file Form 8832 with the IRS and tell them to tax your LLC as a Partnership (your LLC will switch from an LLC taxed as a Sole Proprietorship to an LLC taxed as a Partnership once you add at lease one new Member). You’ll also need to update the Department of Revenue (or equivalent agency in your state) and your bank. Hope that helps!
Hello I’m forming, my LLC by myself is more than 120 day already to publish an add in the news paper, do you think i can still do it? I don’t know if the state will acept it,
Hi Antony, yes, you can still do it. It’s never too late. Essentially your New York LLC is “not in compliance”. Once you meet the New York LLC publication requirements, your LLC will then be compliant. Hope that helps.
Do you have an example of a Membership Certificate?
Hi Stephen, we don’t have LLC Membership Certificates available yet, but we will soon. I just emailed you a couple examples. Hope that helps.
Hi Matt- I am so happy I have found your site. I am the mom of a now, 22 yr. old actor. We used to have a CA corp. which I started for my son as a loan-out when he was a minor then shifted all to him (all officers and sole shareholder) when he turned 18 but I still ran the business and it was my signature and credit that got our banking/ credit cards etc. Two yrs. ago, due to little income, we dissolved the corp. NOW- he is starting an LLC but as his business manager I am the one doing all the books, staring LLC etc. I am just REALLY confused about member/manager. we want this to be a single member (him) and I do not want to be financially involved or a member at all but I will still be the ONE running all business matters. Do I need to be a “manager” or can we just spell this out in OA? I already have Power of Attorney for ALL of his business affairs. Thank you SO much for your great, clear info!
Hi Samantha, thank you for the kind words. And I’m glad that our website has been so helpful. Before getting into the Manager-managed vs. Member-managed topic, let me just add a note regarding being the LLC Organizer and keep your documentation in order. Because you are the one forming the LLC for your son, you will be the LLC’s Organizer and will sign the California Articles of Organization. Your son’s name will not be listed on the Articles of Organization, since California does not ask for the Member’s information on this form. So after you sign as Organizer and the LLC is approved, you can then sign a Statement of LLC Organizer in Lieu of Organization Meeting, stepping down as the LLC Organizer and appointing your son as the Member. Also, your son should sign an LLC Operating Agreement. As far as Manager-managed vs. Member-managed, I think you could go either way. You could elect to have the LLC be Manager-managed on the Articles of Organization. Then sign a Manager-managed Operating Agreement where your son appoints you as Manager. After that, you are the only one who has authority to bind the LLC into contracts and agreements. Said another way, you’ll be the only one who can act on behalf of the LLC. Your son, being the Member though, has the power to remove you as Manager, since he’s the only Member (and doesn’t need the consent of any other Members, since there aren’t any). I think an easier option though, is just form a Member-managed LLC where you son is known as the Managing Member. He has full authority and the right to bind the LLC into contracts and agreement. However, you can simply be a “consultant” or independent contractor and you do as you already are doing. Overseeing and managing until your son has enough experience and maturity to take things over himself. You could have an agreement like this in place verbally, but it’s better to spell it out in writing. And you could add that language to the LLC’s Operating Agreement. Hope that helps offer some more clarity.
Thanks again Matt!
I had to read your info over a few times but I think I get it. already sent in the Articles of Org. as organizer so if I like it or not, we are off and running. Will relinquish and follow-through as you suggest .
HAPPY NEW YEAR!
A lot of this stuff requires reading it a few times lol ;) Glad to hear you got everything going. Thank you and Happy 2018!!
Hello,
I recently started a Home Improvement Contracting business in Maryland. I registered the business as an LLC and I am currently the single owner/agent. This business was started with the idea of having my son who is 29 years old participate, initially as a sub-contractor (1099) and eventually as a named partner. I also will likely have my wife participating in some capacity (record keeping, etc.), but initially I don’t plan on having employees. I currently have a full time job, but will work this in the evenings and on weekends until I retire sometime over the next 3-5 years. My son has been doing this type of work with other companies and has always been a 1099 sub-contractor. The focus of the business is on storm damage repair of roofing, siding, gutters, etc. The majority of our work will be covered by insurance claims and we will work with the customer and insurance agent to maximize the claim and get the customer what they are entitled to. The actual work to replace the roofing, etc., will be done by our sub-contractors.
I would like to prepare an Operating Agreement, but I’m not sure how best to describe the working arrrangement. Is what I described above adequate or do you have other suggestions?
Thank you,
Pete
Hi Pete, thanks for writing in. Unfortunately, this kind of question requires legal advice and we do not provide those services. The inner workings of your business and the day-to-day operations is a “sit down” conversation that might take a little while. Apologies I could not be more specific, but do check out Avvo (https://www.avvo.com/) for local assistance. Hope that helps.