What to Know about an LLC Operating Agreement
Jonathan: Hello, my name is Jonathan Barlow. I’m a partner attorney at Clear Counsel Law Group. A question that I’m often asked by my business clients is, “What is an operating agreement and why is it important?” In short an operating agreement is the document in an LLC that regulates how the business is operated. It tells us how profits are distributed. It tells us the respective responsibilities of the owners of the business. It tells us who the managers are, it tells us what authorities the managers have in regard to the business. Do they have authorities to make major decisions? Does that require a higher level of decision making? It tells us what percentage the votes are taken at. Does it require a 75% vote to take the action? In other words, it regulates the internal affairs of the LLC.
Now, why is the operating agreement important? That’s a really good question and that goes to one of the main benefits of an LLC. Typically you want to set up an LLC to give yourself asset protection and that means that if the LLC incurs a debt or a liability and somebody sues the LLC they would not be able to come at you individually as an owner to get to your assets in order to pay that debt. It works the other way also. If you individually have a debt, say you hit somebody in the street, you owe somebody a whole bunch of money on a personal injury claim, and they come after you on payment on that. They cannot get to the assets that are held in the LLC in order to pay that debt. It creates a wall of separation or liability protection between those two.
Why is an operating agreement important in that light? The operating agreement shows, or is one of the ways to show that we treat the LLC as if it is separate from us. We respect it as a business entity, we’re not treating it as just a natural extension of ourselves. By showing the operating agreement, we show, “Hey, we have legal documents that say we are a separate entity. We operate the business according to the operating agreement. We should be treated as a separate entity and therefore, we should have that benefit of the asset protection between the LLC and the individual owner’s.” Brian has a good question here.
Brian: Hypothetically, if I was operating, let’s call it Drum Circle LLC, and me and my hippie partners just want to have an oral operating agreement because we trust each other would that have any legal value?
Jonathan: Okay. An oral operating agreement, I’ve never heard of that, but the concept makes sense. You can have an oral contract, just like any other contract. You can orally state this is how we’re going to operate the business. Yes, you can do that and you can have agreements amongst yourselves of what you’re going to do in certain circumstances with the business. Of course, that has dangers and risks, which are disputes about what the agreement was. If a dispute ever arose one person may say one thing and the other may say a different thing. It also becomes difficult as I was talking about when you need to prove that the LLC is separate from yourself. I would be difficult to prove the oral operating agreement. It’s much easier if you have a written paper copy of the operating agreement to show them and say, “Hey, here it is. Here’s our agreement, this is why we treat it as a separate entity.” Never the less, I suppose you could make arguments that no we did treat it as a separate entity and here’s evidence of our oral agreement about how we did that, but in any event I always advise clients to be as formal as possible in creating their LLC and operating the LLC.
If you want help to create your operating agreement or to review your operating agreement to make sure that it complies with good requirements and will give you that asset protection. I encourage to give me a call or any of our other attorney’s here at Clear Counsel Law Group and we’ll do the best we can to help you with that.