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.

Where is the real value? In the Company or the Employees?

Often, when a company is looking to acquire another business, it looks at all of its gleaming equipment and its wonderful balance sheet as the reason to purchase the company, but in reality all of that success is probably more tied to the employees that work there then the systems or equipment associated with the business. Both Buyers and Sellers of businesses need to keep this in mind from the very outset of negotiations.

A business, as a buyer, needs to be aware of where the value lies and ensure that it is receiving that value when it purchases the company. This may be through opportunities to retain the current employees as well as non-compete agreements for after the sale commences.

For sellers it is extremely important to ensure that there is an agreement that the potential buyer will not simply hire away the sellers most valuable employees. When negotiations begin the potential buyer is given access to the inner workings of the sellers company, and thus may realize that the real value lies in a handful of employees. If there is not a Letter of Intent or other agreement prohibiting the hiring away of that top talent, the buyer may simply call the deal off and acquire the most valuable part of the seller’s business without paying the seller a dime. Courts in Wisconsin will generally up-hold Non-Solicitation agreements for up to 2 years.

From a buyer’s standpoint it is important to be diligent and ensure that the valuable part of the company comes with the deal, and conversely it is in the seller’s best interest to protect that valuable commodity until the deal is finished.

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