Why do I need an Operating Agreement for my LLC?

There are two key documents with regards to forming an LLC in Wisconsin. The first is the Articles of Organization, which is filed with the Wisconsin Department of Financial Institutions (WDFI). The second is the Operating Agreement, which outlines the agreement between the members (which could be thought of as the “partners” in the business.)

What purpose does the Articles of Organization serve?

The Articles of Organization is what is needed to actually create and register your LLC with the State. It is in effect putting the world on notice that you have created a separate and distinct entity, and as long as you follow the rules to ensure liability protection (see “Are you actually getting the personal liability protection from your LLC or Corporation?“), if there is any dispute regarding the business, it is between that person and the LLC, not the members personally.

What purpose does the Operating Agreement serve?

This document is what I describe as the internal agreement between the members. It sets out all sorts of important things such as

  • who owns what percentage of the LLC?
  • What percentage vote is needed to make certain decisions? (ie- hiring and firing, borrowing money, signing contracts, etc.)
  • What happens if a member dies, or gets divorced, or files bankruptcy and a trustee is looking to take over their assets?
  • How is the sale price of the membership interests determined?
  • When can someone sell their interests? To whom?
  • Do the other members get the right of first refusal?

A well drafted operating agreement will address a myriad of other issues that are best to be resolved in advance and in writing.

As has been mentioned in many articles on this website, it is always best to make sure your agreements are in writing before a dispute arises (See “Anatomy of a Contract“). An operating agreement, if properly drafted, will serve two purposes. One, it will help avert any potential disputes because the parties will have addressed some of the stickier issues associated with business ownership in advance, and two, in the event of a dispute, it will aid the parties in resolving said dispute as hopefully it will address the very issue at hand.

While getting the LLC filed with the WDFI is great, and creates the liability protection between the members and the public, a well drafted Operating Agreement is equally as important as it protects the members from each other. Halling & Cayo S.C. offers flat rates for many business formation services, if you have any questions be sure to call and ask for Attorney Sean M. Sweeney.

The Benefits of a Joint Venture

There are many situations where two existing businesses, or two just starting entrepreneurs want to jointly take on an endeavor, but do not want to be so tied to each other as to be the same entity. This is where a joint venture can come in handy. It creates a legally binding relationship, and if done correctly all of the fiduciary duties of being in business together with out all of the red tape when it is time to go your separate ways.

Like any contract, it is important to ensure that it is well written and extremely explicit as to what each person’s duties and responsibilities are. Some more explanation of the importance of well drafted contracts can be seen in my “Anatomy of a Contract” series.

Probably the two most important things to ensure that are included, other than what the contract is about, are that each member has a fiduciary duty to the Joint Venture (this means they have a duty to put the best interests of the Joint Venture first) and that you properly indemnify all parties from each other’s potential wrong doings that occur outside of the Joint Venture. The whole point of the Joint Venture is that you are not tied, lock stock and barrel to the other party, not being properly indemnified ends up defeating that purpose.

Why Employee Stock Ownership Plans (ESOPs) Are Not Just for Big Companies in Wisconsin

What is an ESOP? An ESOP is exactly what it sounds like, an Employee Stock Ownership Plan, the employees literally hold the stock to the company. The better questions are how do you go about implementing an ESOP? and what are the benefits? While a small percentage of ESOPs (which get most of the news coverage) are large publicly held companies that utilize the vehicle to stop a take over or to buyout a failing company, an overwhelming majority of ESOPs are enacted by smaller, closely held companies as a contribution to its employees. This can serve to motivate and empower your employees, but it can also serve to help in the borrowing of money for acquiring new assets in pretax dollars. Read more

How will the bailout effect businesses in Milwaukee?

It really remains to be seen what the actual effects will be, but I am optimistic that things are moving in the right track. Regardless of your political leanings and whether you feel it was “deserved” or not, the bailout was necessary because the flow of money had seized up. You can think of the banking industry, and the flow of money through the economy as an engine, and cash is its fuel.

Lending money is not a zero-sum game, it is not simply a transfer of wealth from one to another, when banks lend money, money is actually created by making those dollars available in multiple places at the same time, Read more

Why choose an LLC? All of the benefits without a lot of the hassle

LLCs in Wisconsin have become the entity de-jour for new businesses in Milwaukee and the rest of the state. The real strength of the LLC is its ease to set up and maintain and its versatility. 

An LLC provides all of the liability protection of a Corporation. The same rules generally apply about piercing the corporate veil. In order to maintain the liability protection an LLC affords you have to be sure that you follow the requirements of maintaining your LLC as well as keeping all personal and business money separate. Read more

Business Valuation and Tax Ramifications

Buying a business can be more complicated and have greater tax ramifications then one may first realize. Generally speaking there are two different values to a company, the book value and the actual value. When you are buying a company with significant assets there will be significant research, perhaps by a business valuation company, into the value of the company and all of these ramifications will hopefully be taken into account.

Where the interesting situations arise is when there is purchase of a company that has limited assets or is not valued very high. Read more