All limited liability companies (LLCs), are typically governed by a contract that the investors sign amongst themselves. This contract is known as an LLC operating agreement. The agreement has fairly standard terms, and you can easily find a template by searching for one online.
When to Use an LLC Operating Agreement
You would use the LLC operating agreement when starting a new LLC to define its operations. If you already have an LLC set up, an operating agreement allows you to outline information about its operations.
When drawing up your LLC's operating agreement, you want to be sure to include all the important information.
LLC Ownership and Members
Specifically, you will want to list the percentage, or proportionate interest, of each member of the company. In an LLC, owners are referred to as members, not stockholders, since the equity consists of membership units, not common stock shares.
Breakdown of Profit and Loss Allocations
Unlike a traditional corporation, an LLC operating agreement doesn’t have to require that profits and losses are divided by ownership. Special arrangements can be made, such as letting one investor bear the burden of all the losses or having another get paid a performance incentive bonus based upon the company’s results. This provides tremendous flexibility, especially for the structuring of hedge funds and family investment companies or family limited partnerships.
Overview of Dividends and Distributions
An LLC operating agreement can call for regular, required dividend payouts, no dividends at all, or dividends sent solely at the discretion of the managers if it is a manager-run limited liability company. (If an LLC has opted for partnership taxation rather than corporate taxation, the LLC would pay distributions, not dividends. Distributions are taxed differently depending upon what funded them. Each year, the LLC is required to give members a form K-1 in such a situation, which the members will then file with their personal taxes.)
List Required Meetings
This can include an annual meeting, a quarterly review, internal audits, or almost anything else the parties involved want to work out between themselves during the establishment or modification of the agreement.
Restrictions Placed on the Business
The members of a limited liability company can set restrictions on the manager or managers' authority including limiting the industries in which a company can do business, requiring a certain dollar amount of working capital to reduce risk, forbidding specific types of investments such as publicly-traded common stock, or even requiring that the company never engage in the selling of certain types of products or services such as tobacco. Anything that is legal and can be put in a contract is fair game for an LLC operating agreement.
Dissolution Plans and Procedures
Some firms only need to be in business for a specific span of time. The limited liability company can explicitly acknowledge its termination date in the operating agreement. It can also include performance-based terminations such as calling for the end of the firm if it fails to meet required build-out dates or targets for sales, profits, or other financial ratios.
Other Items to Include
You can add much more information as it pertains to your individual situation, but the above should give you a general idea. LLC operating agreements often include processes for handling or forbidding shares of membership units without the prior approval of a certain percentage of other members; perhaps giving them the right of first refusal. It might include details about a guarantee payment, or salary, for certain managing members.
It could grant authority to the manager or managers allowing him, her, or them to issue certain allocations so only specific members participate in the acquisitions of specific assets. Short of something illegal or otherwise prohibited by law and regulation, you can have a great deal of control over your LLC with a well-crafted limited liability company operating agreement.
Work With a Good Attorney
Work with the best, most qualified lawyer you can find. Small details in the wording or structure of the firm can mean the difference between a peaceful, low-stress resolution and a multi-year extended battle that drains time, money, and goodwill. The more Machiavellian can even structure their LLC operating agreements to protect the family against unforeseen family strife by turning the firm into a weapon against outsiders.
Anticipate Possible Scenarios
As an example of a possible situation that you should plan for, consider a hypothetical financial advisor. A financial advisor once had a client who left his owned portion of the family holding company to his mistress and did so in a way that the other members, his children, couldn't block the transfer. Instead, as the controlling members, they removed the provision in the LLC operating agreement requiring annual tax distributions. Each of the kids was financially independent and could afford to pay any tax bills they received.
In case you're not familiar with partnership tax rules, for limited liability companies that opt to be taxed as a partnership, the IRS views the individual member as the economic unit. This means the member must pay taxes on his or her share of any income or gains even if the LLC does not distribute any cash to cover it.
So, for example, if your owned portion of an LLC generated $100,000 in operating profit and you're in the 25-percent bracket, all else equal, you'll have to pay $25,000 to the IRS even if the LLC doesn't distribute any of that $100,000 in earnings to you.
As a practical matter, most LLC operating agreements include a tax distribution clause to avoid a situation where the managers won't pay distribution and the members suddenly owe huge taxes they don't have the funds to cover.
In this example situation, the mistress was not in any financial condition to absorb the tax bill. Her sole asset consisted of the millions of dollars in membership equity she had been left in this firm. As the profits piled up, the tax bills grew larger, and she couldn't cover the federal, state, and local taxes that were going unpaid.
The financial stress of living as if she were bankrupt despite being rich on paper caused her to wash her hands of the family and sell out to the kids at a severely depressed price.
Right or wrong, fair or unfair, the LLC operating agreement's contents made that possible. Had a tax provision been in place, the mistress would have been protected. Had a right of first refusal on inherited shares been in place, the kids would have been able to buy her off and avoid her having any role in the family for the years during which she remained a stakeholder.