What is an LLC?
A limited liability company (LLC) is a business structure in the United States that protects its owners from being personally liable for the company's debts or obligations. If you own a business and several assets, you may want to consider forming an LLC. Each state has different laws on creating an LLC. In New Jersey, you are not legally required to send in your operating agreement to the Division of Revenue. Nevertheless, it is still strongly recommended to have an operating agreement with your company records because it can provide critical information that may be helpful in times of disagreement regarding how to operate the LLC. Other key benefits to an operating agreement will be discussed further below.
What is an operating agreement?
An operating agreement is an important document that LLCs utilize because it provides information on the company’s financial and functional decisions. These include the rules, regulations, and provisions in your company. The operating agreement also helps to govern your company's internal operations in a way that aligns with the needs of the various business owners. After the members of the LLC sign this agreement, it is an official contract that binds the LLC members to its terms.
Why do I need an operating agreement?
There are many reasons why an operating agreement can benefit a business, especially one just starting. It may take additional time to draft it initially but can often prevent many conflicts and save you and LLC members time in the long run. Some of the key benefits of creating an operating agreement are listed below.
- This document can help protect your company’s limited liability status. Operating agreements help reinforce member protection from personal liability for the LLC. Without this additional documentation, the LLC you’ve worked hard to establish can resemble a sole proprietorship.
- The agreement can help clarify any disagreements. Oral agreements are not as solid or binding as written contracts like a completed operating agreement. Misunderstandings can naturally arise, especially with the business's stressors. Having this operating agreement on file with your LLC records is there for your business members to refer to in times of conflict.
- You can set your own rules if you draft your own operating agreement. Without an operating agreement, the default rules your LLC will need to go by are the states. So, each New Jersey state rule for running an LLC will apply to your company. New Jersey state rules on how to operate your LLC can often be too general and unclear, and it is strongly recommended you complete an operating agreement to address this.
What is included in an operating agreement?
Operating agreements tend to be between five to twenty pages long. It outlines the functional and financial decisions for how to run your business and includes the provisions, rules, and regulations. This includes but is not limited to the following:
- Member ownership percents
- The voting rights and responsibilities of members
- Member and manager powers and duties
- How profits and losses are distributed
- Meeting details
- Buy-sell and buyout rules or how to transfer ownership if a business owner were to pass away
- Details on the dissolution process
When should I write my operating agreement?
It’s a good idea to draft your operating agreement before submitting your Certificate of Formation with New Jersey’s Division of Revenue. You can also wait until the formation of your LLC is complete. However, some banks require you to submit an operating agreement before opening a bank account with their financial institution.
Where do I keep my operating agreement?
Operating agreements should be kept with the essential records of your business. You do not need to file it with New Jersey’s Division of Revenue. Note that you should keep the operating agreement details confidential in your company.
How do I write an operating agreement?
There are several free templates for operating agreements that you can use when you begin drafting yours. You can find templates for both single and multi-member businesses. The general steps for making an operating agreement are shown below.
- At the top of the agreement, list your company's name.
- List the dates business owners, and any involved parties entered into the operating agreement. Make sure to provide information on how the LLC is being managed. For example, is it managed by the business members or an appointed manager? If the LLC is a single-member company, write down the name and where the business is located in New Jersey. If the business is a multi-membered LLC, you will need to list out each name and address of all the members.
- List the LLC name and physical address, including the city and the LLC’s registered agent name and address. Also include all formation details such as the date your LLC was established, the LLC purpose, term, and capital contributions. You will need to specify whether the LLC is single or multi-membered.
- Review your company’s bank accounts and management information while checking the appropriate boxes.
- Every member needs to check the appropriate boxes and review any information related to the member meetings. Each member should also review the information about property ownership, new member admission, dissolution, notices, arbitration, and other information.
- Finally, provide the effective date for the operating agreement and the member signatures.
Once you have completed your operating agreement and the business members agree, each member should receive a copy of the operating agreement.
So, in summary,
An operating agreement is not required in New Jersey. Still, you should have one anyways because of many advantages, including what actions to take whenever there is a stalemate in the company. In other words, it can ensure that members are on the same page in times of conflict. In case of a significant event, such as adding or losing a member, reviewing your operating agreement is a great idea. It is also important to note that your operating agreement is a fluid document; you can update it even after it’s written as long as business members agree.
If you require additional assistance creating an operating agreement, it can be helpful to consult a business attorney for assistance.