Ultimate LLC Compliance Guide. Michael Spadaccini
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operating agreement will become effective only after the articles are filed. Alternatively, the organizers of the LLC can file the articles of organization and enter into an operating agreement soon thereafter; this is more typical. So, either concurrently with the filing of the articles of organization or soon thereafter, the members of an LLC join to either prepare or review a proposed operating agreement. Once they agree to the operating agreement, they execute it just as they would execute a contract. In the manner of a contract, the operating agreement binds the parties to certain responsibilities to the LLC and to each other.
The operating agreement goes into effect when it is executed by the members. The operating agreement also serves to “admit” members to the LLC—much in the way that partnerships require additional owners to be admitted by the current owners. The sample LLC operating agreements that we have included in this chapter contain clauses that require the current members to approve new members by majority vote. The operating agreement should also serve to document both the amount of the capital contribution of each member and the percentage interest held by each member.
When a new member is admitted into the LLC, that person should execute a copy of the operating agreement (because he or she must necessarily agree to be bound by it), and the amount of his or her capital contribution and percentage interest should be recorded.
HOW DO YOU AMEND YOUR LLC’S OPERATING AGREEMENT?
Generally, under state law the board of managers retains the right to amend or repeal an LLC operating agreement. However, articles of organization or operating agreements can contain optional provisions that require approval by the members to amend all or certain portions of the operating agreement. The sample operating agreements at the end of this chapter require member approval to amend the agreement.
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