Cayenne Consulting

LLC Operating Agreement Issues for Startups

Many startups elect to form as limited liability companies, often without detailed consideration of the many possible ramifications. One way of describing frequently-encountered problems by entrepreneurs who formed LLCs can be: “A rash of unintended consequences.”

Having been involved in the formation of, been a member of, and having had hundreds of clients who have used LLCs, I do find them very useful but am constantly reminded of myriad issues that arise in connection with operating agreements. One question I typically ask clients as they arrive with an LLC or corporation in place is: “Why did you choose that type of entity?”

Once the decision has been made to use a liability-limiting entity, it is well worth thinking through whether the new business is best served by forming an LLC, an S corporation, or a C corporation. Each brings different benefits and consequences.

The plusses of LLCs include flexibility (an LLC is a creature of contract, and the specific agreements in that contract govern the rights of the parties), ease of formation, simple basic structure, ease of management, and apparent simplicity of tax issues since they would typically (unless selecting other tax treatment) be either disregarded entities for tax purposes (single-member LLCs) or taxed as partnerships (multiple-member LLCs) with pass-through treatment of profits and losses. However, there, simplicity can end.

For this and many other reasons, it is essential to consult quality corporate-securities-tax counsel and your CPA for an assessment of and advice on the issues arising from your LLC and your operating agreement.

The operating agreement is the controlling organizational agreement among the members. The operating agreement, generally, and generally in concert with the LLC Act in the local jurisdiction, is the ultimate arbiter of all issues affecting the LLC, its members, the company’s business, and taxation.

It is possible to form an LLC without having an operating agreement, but that could prove rash. It is often prudent to hash out all the issues in the operating agreement before forming the LLC. One could also consider providing a window in the operating agreement that, for a selected period of time after formation, the manager has the right to consult tax attorneys or CPAs and amend the operating agreement based on any advice the manager receives.

Important issues to consider when drafting your operating agreement

In conclusion, one of the most important things a startup management team can embark on in forming an LLC is to engage in a careful, in-depth, and well-informed assessment of what the company’s operating agreement really needs to contain.

Disclaimer: Cayenne Consulting is not a law firm and does not offer legal advice. This article is for informational purposes only. Entrepreneurs should seek qualified counsel when selecting and forming a legal entity.

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