LLC Operating Agreement & Templates

What Is an LLC Operating Agreement?

A Delaware LLC Operating Agreement sets forth the terms governing the limited liability company, its interests, activities, management and provisions governing the rights and obligations of its members. It is the main governing document of the LLC, above all others. 

Do I Need an Operating Agreement for My LLC?

While the operating agreement is not mandatory in all states, it is recommended to draft them to set the guidelines for the LLC will run. Delaware is among the states where operating agreements are not mandatory.

The Delaware legal premise known as freedom of contract gives the organizers of the LLC, who set the LLC's terms and oversee the drafting of the Operating Agreement (among other powers and duties), enormous flexibility in defining the rights and responsibilities of the LLC members. This means the LLC Agreement will allow you to create an entity as well as define the relationship among its members as you see fit for your unique situation. The ability to draft your own rules and guidelines through the LLC Operating Agreement is one of the most significant advantages of a Delaware LLC, causing over 70% of entrepreneurs to create an LLC over any other business entity.

Since the LLC Operating Agreement is a contract, it must be agreed to by all participating parties. While Section 18-101 of the Delaware Limited Liability Company Act states that a limited liability company Operating Agreement may be "written, oral, or implied," typically people write out the Operating Agreement and have it signed before a notary public, with a copy of the notarized document provided for each signer. Having a hard copy of your LLC Operating Agreement will also allow you to refer back if there are any questions or disputes.

Oftentimes, business partners or investors in the first stages of an exciting business opportunity will not foresee (or do not consider) the possibility of a later disagreement and the potential need to assert their respective rights. However, putting the terms governing the operations of an LLC in writing clearly and explicitly at an early stage will protect the interests of everyone involved. Many difficult cases have been decided based on default rules or judicial interpretation of an ambiguous agreement which did not seemingly reflect the wishes and goals of the parties.

Do Corporations Have Operating Agreements?

No. Corporations do not have Operating Agreements. Instead, corporations have what is called corporate bylaws. Bylaws are more or less the equivalent of the Operating Agreement, as they outline the internal rules and procedures of the company. Bylaws typically cover matters such as the officer roles and responsibilities, shareholder rights, voting procedures, procedures for holding meetings, and more.

Can I Create My Own Operating Agreement for My LLC?

Yes. While there are multiple operating agreement templates available below, you can also choose to draft your own from scratch. Some of the things you may want to include are company roles, ownership structure, voting rules, and cancellation procedures. Be sure to review some of our templates below to get a better idea of how to fill in the agreement.

While there’s no universal formula, most of the talking points on a Delaware LLC Operating Agreement have some overlap from business to business. For example, including some language about the key members, their rights, and guidelines for joining and departing from the company. It’s also worthwhile to answer questions about the future of the company. How will assets be divided if the company gets dissolved? How can members change the Delaware LLC Operating Agreement in the future?

Once implemented, a Delaware LLC Operating Agreement will remain in force until amended or changed by the unanimous consent of the LLC members, unless the Agreement itself states an expiration date.

How to Amend an Operating Agreement

If any major changes comes up in your business, like adding or removing members. you'll probably need to make changes to your LLC Operating Agreement as well. To amend your Operating Agreement, the first step is to call a meeting, and cast a vote with your current members. If approved, changes to the Operating Agreement can be in the form of an additional document to include with the original Operating Agreement or as a full rewrite in replacement of the original. Once the changes have been drafted and approved by all members it goes into affect. Nothing has to be disclosed to the state of Delaware nor to Harvard Business Services.

Does an Operating Agreement Need to Be Notarized?

No, your Operating Agreement does not need to be notarized. Your Delaware LLC Operating Agreement is your company's personal property and is not required by us nor by the State of Delaware to be filed publicly.

Typically, the IRS also does not require that you publicly file your LLC Operating Agreement with your annual tax forms, or to obtain an Employer's Identification Number (EIN); however, a bank may require a copy of the LLC Operating Agreement and an EIN if you wish to open a bank account for your Delaware LLC.

You may form your Delaware LLC before you have established an Operating Agreement, or you may write an Operating Agreement and then form your Delaware LLC. Either is permissible.

Below, Harvard Business Services, Inc. has prepared a number of free LLC Operating Agreement templates for you to download and use at your discretion. Check out five of our LLC agreement outlines, including our multi-member LLC Operating Agreement templates and single-member LLC Operating Agreement template for free. Feel free to use as much or as little of this language if you'd prefer to draft your own Delaware LLC Operating Agreement.

Types of LLC Operating Agreements and When to Use Them
Single-Member LLC Operating Agreement

An Operating Agreement is not required in a single-member LLC, but most attorneys recommend you have one that is signed and dated by the primary member (owner), just as a formality. 

There are provisions you can build into a single-member LLC Operating Agreement that protect the member beyond the liability protection outlined in the Delaware code. A legally executed LLC Operating Agreement becomes very important if the sole member of an LLC dies.

In your Delaware LLC Operating Agreement, you may, but are not required to, include language that excludes others from ever becoming members. In the case that an LLC Operating Agreement mentions nothing about the number of members, then the law assumes there is at least one member and you are free to add as many other members as the LLC desires. This is because there is currently no limit on the number of members you may have in a Delaware LLC.

Download: Single Member LLC Operating Agreement template (.doc file)

Multi-Member LLC Operating Agreement

Multi-member Operating Agreements are applicable to manager-managed and member-managed LLCs. In the case of member-managed LLCs, the multi-member Operating Agreement typically puts the members themselves in charge of the operation of the LLC, with decisions made by a vote either per person or based on percentage interests.

The LLC owner (or owners) may customize this document to assign specific, unique responsibilities to each member, or to require members to accept certain rights and responsibilities. It may provide for any terms not deemed void as illegal or against public policy. This Agreement is often used in family businesses, joint ventures between companies and investment vehicles for groups of investors.

For example, some situations might call for one member to have ultimate authority over bank accounts, or the ultimate power to bind the company by contracting with others.

The Delaware LLC Operating Agreement may also provide for the establishment of committees or groups of members with specific rights or management responsibilities.

In manager-managed LLCs, the multi-member Operating Agreement establishes the operation of the company to be led by one or more third-party managers who are member-selected but not members themselves.

You may decide to elect, appoint or contract with a manager for these services. You may also set in the LLC Operating Agreement any limitations on the manager you deem appropriate

Download: 

• Member-Managed LLC Operating Agreement template (.doc file)
• Manager-Managed LLC Operating Agreement template (.doc file)

Multi-Member Delaware LLC Operating Agreement with Three Member Classes

One of the most sophisticated structures for an LLC in Delaware is the multi-class structure.

By dividing members into different classes, you can assign unequal rights and responsibilities to separate groups of members. Each of the classes can be structured with variable economic, reporting, voting, or other rights.

A multi-class Operating Agreement can be customized to include the names of the specific members in each class as well as their designated rights. The specific provisions that outline limits on power, responsibility and governance, and all other pertinent LLC details, can be devised by the founder(s) of the LLC according to the Delaware LLC freedom of contract precept.

In order to take advantage of this feature of the Delaware LLC, you must specify in the LLC Operating Agreement each class you wish to remain separate, and delineate each class' individual rights and privileges, including any denied rights and privileges.

With this Delaware LLC Operating Agreement, there are no limits on the number of classes of membership.

This type of Operating Agreement is often used in estate planning or succession planning.

Download: Three Member Class LLC Operating Agreement Template (.doc file)

Note: This template uses estate planning as the basis for creating the member classes.

Protected Series LLC Operating Agreement

Delaware series LLCs are used to manage multiple properties or assets under one LLC. Forming a series LLC in Delaware will separate each property as though each asset were a separate entity.

Delaware was the first state to adopt the Series LLC form and, recently, the state has adopted new, substantial rules governing this type of entity.

Provisions in Delaware law allow Delaware LLCs to be divided into separate and distinct series that may each

• own, control and manage separate assets;
• have separate financial records;
• have separate members or management;
• pursue different businesses; and
• be protected from the financial condition of any of the other series.

These series are divided into protected series and registered series. The choice between these types of series will have significant implications. Those interested in the series LLC should review this description and, potentially, consult an attorney.

There is no limit to the number of series a Delaware series LLC may contain.

Learn more about how to form a Delaware series LLC, including the language required in the Certificate of Formation in order to delineate an LLC as a series LLC and to make the required filing to create a registered series. 

Download: Series LLC Operating Agreement Template (.doc file)

All of our Delaware LLC Operating Agreement templates are completely free to download and edit to your liking. If you have any questions about forming an LLC, be sure to contact our team at Harvard Business Services, Inc. and we’ll help make the process quick and easy.

Start by Forming your Delaware LLC