Not all states require limited liability companies to draft an operating agreement, but all LLC owners, known as members, should create one to explicitly state the powers, expectations and responsibilities of each of the members. LLCs are among the simplest business structures to manage and an LLC operating agreement need not take any special form. Modifying one through amendments may be done with an attorney, but a member/members of the LLC may also draft an amendment without the assistance of an attorney.
No states have any laws that govern how an LLC’s operating agreement may be modified, and an amendment may take almost any form. Nevertheless, it may be a good idea to consult a lawyer when it is time to make the amendment. An experienced business attorney will be able to catch any accidental loopholes that sloppy legal drafting may cause; you are less likely to experience disagreements in interpretation if you hire a lawyer.
Many operating agreements will contain a provision describing how amendments must be made. Although state laws will not limit how and what you may amend, your operating agreement may have restrictions. These restrictions may describe how many members must consent to the amendment and how the proposed amendment must be ratified. Comply with all the requirements your operating agreement sets for making amendments, as you may be subject to a lawsuit from another member if you do not.
How to Draft
Though oral amendments are permitted, a written amendment is preferable because it is much easier to prove what a written agreement states than an oral agreement. Begin your document amendment with a clear indication that it is intended to modify the existing operating agreement of your LLC. Write the entire amendment, referring specifically to sections of the operating agreement if you are modifying any provisions of the original agreement. Propose the amendment at your next member meeting. Comply with the voting requirements of your operating agreement. Absent any language specifying how many members must affirm the amendment, your state laws may require that all members consent to the change. Take a vote and have each member sign the amendment.
Where to Keep
Store the amendment with the original operating agreement attached permanently with staples if possible. If you have made several amendments or if your amendment modifies a key part of the original agreement, you may wish to draft a new operating agreement to incorporate the amendment.
Operating agreements and any amendments thereto are generally maintained by the LLC and are not filed with the secretary of state.