If you've decided to structure your business as a limited liability company (LLC), then you’ll also need to create an LLC operating agreement. Although most states don’t require one, having an operating agreement can help you stay focused when business gets tough — and avoid conflicts with your business partners down the road.
This comprehensive guide will cover why it’s important to have an LLC operating agreement, what to include in your agreement and how to create one.
What should an LLC operating agreement include?
There are several issues you should cover in your LLC operating agreement, some of which might differ based on the industry your business is in and the specifics of your company’s needs.
Even if you’re a single-member LLC, of which you’re the owner, it’s still worth creating an operating agreement for your business. On the other hand, if you’re a multi-member LLC, your operating agreement will serve as a legal contract between the members.
Basic company information
To start, your LLC operating agreement should contain basic information about your business, including:
The legal name of the company.
Any fictitious business names or DBAs.
The company address.
Name and address of your registered agent (who accepts legal service of process on your behalf.) Every LLC must have a registered agent under state law.
Generally, any basic information that’s included in your articles of organization that you filed with the state will be included in this part of your LLC operating agreement.
Most LLC operating agreements include a line or two about the business’s industry and primary product or service. Usually, there’s also a line that permits the business to engage in any lawful purpose, giving the business freedom to pivot later.
Statement of intent
This statement specifies that the operating agreement conforms to the LLC laws of your state and that after all of the proper documents have been filed, then the business will come into existence.
Duration of the business
Unless your LLC is set up for a specific project or time frame, like a joint venture, for example, this section would include a brief statement that allows the LLC to continue in perpetuity.
By default, LLCs are taxed as disregarded entities. Instead of the LLC paying a business tax, each member reports their share of the business profits and losses on their personal tax return, which are taxed at the member’s personal income tax rate.
This being said, however, LLCs can elect to be taxed as S-corps or C-corps by filing forms with the IRS. You should indicate your LLC’s preferred tax treatment in the LLC operating agreement.
Member and manager information
Along with basic company information, your LLC operating agreement should also contain information about each member and manager, including their:
It’s possible to have a member-managed or manager-managed LLC. If member-managed, the members will collectively manage the day-to-day business operations. If managed-managed, the members will elect a manager (from among their ranks or an external manager) to manage the business.
The LLC operating agreement should specify whether the LLC is member-managed or manager-managed. If it is manager-managed, the agreement will likely also detail the manager’s responsibilities, salary and tenure of employment. The method for firing or electing a new manager should also be provided.
The LLC operating agreement should show what each owner has contributed to the business and the value of each contribution.
Some members might contribute money, while others contribute property, skills, labor, intellectual property or other resources.
In exchange for their contributions, LLC members receive an ownership interest (also called ownership percentage) in the business. This ownership interest might, but need not be, equal to the percentage of capital that the member has contributed.
LLCs aren’t legally required to hold meetings in the same way that corporations must do for their shareholders and directors.
However, most LLC operating agreements schedule periodic meetings to vote on important matters. The agreement should summarize the time, place and manner of the meetings (e.g. can members join by video call, or must they attend in person?), as well as the purpose of each meeting.
Voting and approval rights
Voting rights are closely related to meeting provisions because members usually take a vote on important decisions during meetings. Members in member-managed LLCs will have more opportunities for voting.
The voting provisions should clearly outline the voting share of each member — it is usually, but not always, equal to the ownership interest of the member. You also need to specify whether a simple majority is sufficient to finalize a vote.
In a manager-managed LLC, it should be clear when members must step in and approve manager actions.
Most business owners want the freedom to change their LLC operating agreement later if necessary. If you’d like this opportunity, you should specify the procedures for voting on changes to the operating agreement.
Member compensation depends on each member’s role within the business and how you elect to pay LLC taxes.
If the LLC is taxed as a corporation, members can receive a salary for their work in the business, along with distributions. If the LLC is taxed as a disregarded entity, members will only receive distributions based on their ownership interest in the company.
New members and exit rights
There needs to be a process for admitting new members into your LLC and handling the exit of existing members. In most cases, admitting new members will require a vote and a meeting.
You’ll also need to address what happens when a member wants to leave the business and sell their ownership interest. Must members sell to parties with specific qualifications? What if a member passes their ownership share to a family member who has no knowledge of business affairs?
Most LLC operating agreements grant a right of first refusal to existing owners to purchase outgoing owners’ interests so that members retain close control over the business.
Lastly, the LLC operating agreement must address the possibility that members might want to someday dissolve the business. Usually, members must vote to trigger dissolution proceedings.
Ending an LLC’s existence as a business entity can be a complex process that involves filing appropriate forms with the state, liquidating assets, paying creditors and more. Members share assets that remain after all creditors are paid. The agreement should outline the wind-down procedures.
Much of your LLC operating agreement will depend on your individual business and industry. This being said, in addition to the provisions reviewed above, there are a handful of other provisions you might see (or want to include) in your agreement.
Some of these common provisions include:
Liability statement: This language specifies that the LLC members have limited liability protection as members.
Death of a member: This provision would detail the procedure that takes place in the event that a member passes away.
Dispute resolution: What happens if there’s a dispute amongst members? This provision would outline the process to follow.
Communication: How are important notices about the business communicated? This provision details how information is transmitted amongst the members.
State law: This provision simply identifies the state law that governs the LLC.
Special agreements: Some LLCs may wish to include non-compete agreements, conflict of interest policies and other specialized agreements as part of their operating agreement.
LLC operating agreement example
Before explaining how to write an LLC operating agreement, let’s take a look at an example.
Your agreement will be unique to your business and industry, however, reviewing existing LLC operating agreement examples can be helpful to get a better understanding of what this document looks like and what the process of creating one will entail.
In the image below, you can see the beginning of an LLC operating agreement draft, which includes provisions like the ones discussed above, such as the state law governing the LLC, the business name and address and the registered agent.
Moreover, in the next image below, you can see additional examples of common provisions — these, however, are provisions specific to LLC members — including the member’s name, their contribution, their liability and the policy for adding new members.
As you can see just from these snippets in our LLC operating agreement example, this document is complex — and often lengthy — although these images represent just two pages of this draft, the total sample document is 16 pages long.
Nevertheless, consulting an example, like this one, gives you a sense of what creating your own LLC operating agreement will entail.
How to create an LLC operating agreement
Ultimately, unless you are a lawyer or have a legal background, we don’t recommend starting from scratch when drafting your LLC operating agreement. Your LLC operating agreement is legally binding on you and all other owners, so you’ll want to make sure that it fairly reflects all the owners’ intentions.
This being said, if you have more than two members or a more complicated-than-average situation, then we recommend hiring a business attorney to draft your LLC operating agreement. Complex situations might include foreign transactions, one of the members being a business entity or an LLC with a high volume of assets.
Many lawyers will help you file articles of organization and write up your operating agreement for a flat fee. They will make sure that all the clauses relevant to your business are included and that the agreement complies with any state-specific requirements.
For simpler situations, small-business owners might be able to put together an agreement on their own with the help of a template. Law libraries and legal help sites often have templates of operating agreements and other legal documents.
Additionally, you might use an online legal service, like LegalZoom or Rocket Lawyer to create your LLC operating agreement. These services will walk you through the creation of your LLC operating agreement with a step-by-step questionnaire and will ensure that the agreement is customized to your state’s requirements.
Is an LLC operating agreement required?
Before you get too involved in this process, you might be wondering whether you’re required to have an LLC operating agreement — especially if you’re a single-member LLC.
In short, the answer is that it depends.
As you’re may already know, in order to establish a limited liability company, you have to file articles of organization with the state. The articles contain basic information about your business and make it legal for you to operate in the state.
However, there are additional compliance requirements and depending on which state your business is located in, one of these might be the creation of an LLC operating agreement.
Five states — California, Delaware, Maine, Missouri and New York — require LLCs to have operating agreements before the owners can sell any products or services. In these states, the agreement can be written or oral (in a few, it can even be implied by the behavior of the LLC members). Most don’t give too much guidance on what should be included in the agreement.
This being said, however, we strongly recommend a written LLC operating agreement. A written agreement is the best way to document the business owners’ agreements and prevent misunderstandings down the line.
Even if your business isn’t located in one of these five states, it can be vital to your business’s success to have a written LLC operating agreement. The reasons for this will be explained in the next section.
Benefits of having an LLC operating agreement
When it comes down to it, an LLC operating agreement is similar to a founders’ agreement. The agreement contains information that the members think is helpful to clarify now so that the business runs smoothly later on. But there’s more to it than that. The existence of the agreement also helps to cement the company’s status as a limited liability company.
Deborah Sweeney, CEO of MyCorporation, says,
"Our company has an LLC operating agreement, and I believe it is extremely important in setting for our business ownership, roles and structure. We leverage this document for use as a basis from which we update and make changes each year. The operating agreement can serve the purpose of setting forth how the business is run, cash distributed, roles maintained, and ultimately, how the business assets may be transferred or sold."
Protect your LLC status
In order to preserve your LLC’s limited liability, you should document as many of your LLC’s processes as possible.
This being said, it’s particularly important for a single-member LLC to show that the business is a separate legal entity from the owner. This helps ensure that legal claimants and creditors can only come after your company’s assets, not your personal assets.
Customize the division of business profits
In an S-corp or C-corp, the shareholders’ division of profits must match their ownership shares, but the LLC operating agreement gives you more flexibility to choose the rights of each owner.
For example, let’s say Owner A contributes 70% of the money to the LLC but does only 30% of the work. Let’s say Owner B contributes only 30% of the money but does 70% of the work. You can set up your LLC operating agreement to give each owner a 50/50 split of the profits since they’re each bringing something different to the table.
Prevent conflicts among owners
An LLC operating agreement contains clear provisions about each owner’s contributions to the business, their share of profits and their responsibilities to the company and other members. That means the agreement is a good dispute resolution tool.
For instance, if marketing matters are entrusted to one member in the operating agreement, then that member gets the final say if any disagreement arises about a marketing strategy.
Customize your governing rules
In the absence of an LLC operating agreement, your state’s default rules will kick in. Every state has adopted default rules on LLC management, admitting new members, dissolution and other aspects of LLC governance.
You might not agree with how your state has addressed each of these issues, but you need an LLC operating agreement to override your state’s rules.
Clarify the business’s future
In most cases, entrepreneurs want their business to continue after they retire or pass away. An LLC operating agreement clearly specifies who will take over your business, and on what terms, if you can no longer be at the helm.
This can prevent inter-family squabbling and lengthy legal battles.
A version of this article was first published on Fundera, a subsidiary of NerdWallet.