101 on a LLC Agreement

The Delaware legislature created the LLC business form to give maximum effect to the members’ freedom to contract with one another upon whatever terms they deem best suited to their circumstances and goals. In a corporation, for example, Delaware law requires certain terms be included in the corporation’s constituent documents, mandates certain provisions related to corporate governance, and limits (to some extent) the ability of parties to modify certain terms relating to voting or fiduciary obligations, among other things. In an LLC, however, the members are free to organize the LLC in whatever manner they choose, with near-total freedom to define the relationship among the members and the terms governing the operation of the entity. The fundamental terms of an LLC’s ownership, operation and management are set forth in its LLC agreement.

An LLC agreement can be a written document or merely an oral understanding. A written agreement, however, is typically used because it memorializes the understanding and agreements of the members, which, in the event of a later dispute or misunderstanding (or the unfortunate possibility of litigation), is an invaluable protection in the interest of all parties involved. Although each LLC agreement is different, an LLC agreement will generally set forth certain fundamental terms such as:

• The ownership percentage of each member
• The manner in which profits, losses and expenses are allocated
• The authority of members to bind the LLC and participate in day-to-day management
• The voting rights of each member in making certain key decisions
• The circumstances under which a member may withdrawal from the LLC, and the way in which the member’s economic interest is calculated upon withdrawal
• The ability of a member to sell or pledge its interest to a third party
• Terms contemplating the death or disability of a member
• The circumstances and terms under which new members may be admitted
• The circumstances under which the LLC will be liquidated, and the priority of claims among the members upon liquidation
• Indemnification rights (if any) in the event the LLC or member is sued in connection with the business of the LLC

Delaware does not require that the LLC agreement be filed and made publicly available. A Delaware LLC is typically formed without the names of the members on the Certificate of Formation, which typically includes only the name of the LLC and the office of the registered agent (Harvard Business Services). That is it!!!

Harvard Business Services, Inc can assist you in forming an LLC, and has many types of LLC agreements that can either be used as-is or can serve as a starting point for you to develop your own terms and provisions. We can be reached at (800) 345-2677, and would be happy to provide you with more information.