New York LLC Operating Agreement | A Comprehensive Guide

Steve Bennett
Business Formation Expert  |   Fact Checked by Editorial Team
Last updated: 
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New York Operating Agreement

When forming a Limited Liability Company (LLC) in New York, one of the most critical steps is creating and executing an LLC Operating Agreement. This legally binding document outlines your LLC’s ownership, management, and operational procedures, ensuring that your business runs smoothly and is protected from potential disputes and legal issues. Although only sometimes required by state law, having a well-drafted operating agreement is essential for an LLC. This article will explore the content and importance of an Operating Agreement in New York and discuss its key components.

Webinarcare Editorial Team will help you understand the process of having an operating agreement for your New York business. You must be guided by all the factors gathered in this article.

What is an Operating Agreement?

An operating agreement is a legally binding document that outlines a limited liability company‘s ownership structure, management, and operational procedures (LLC). It governs the internal workings of the LLC and establishes the rights, responsibilities, and obligations of its members (owners) and managers.

This includes details such as rules, regulations, and provisions related to the operation of the LLC. The Operating Agreement serves as a guide for dealing with disagreements, bringing in new members, and managing various situations that may arise while doing business. It delivers clarity and ensures smooth functioning while providing legal protection to businesses.

Although not always required by state law, having a well-drafted operating agreement is essential for an LLC. It helps prevent potential disputes among members, ensures smoother business operations, and provides a clear framework for making decisions and resolving issues. It also helps to establish limited liability protection for the members by demonstrating that the LLC is a separate legal entity with its own rules and procedures.

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New York LLC Operating Agreement Content

An operating agreement is a legal document detailing the LLC’s organizational structure and operational procedures. It includes forming the LLC, members and ownership, distribution of profit and losses, management structure, meetings and voting procedure, limitation of liability and indemnification, dissolving New York business, dispute resolution, and amendments and modification.

Article I: Formation of the LLC

The first step in creating an LLC Operating Agreement is to outline the basic information about your LLC, such as:

  • Name of the LLC: Your LLC’s name must include the words “Limited Liability Company” or the abbreviation “LLC” or “L.L.C.” and comply with the New York LLC naming requirements.
  • Principal Office Address: This is where your LLC’s primary business activities will be conducted.
  • Purpose of the LLC: This section should describe the primary purpose of your LLC and the types of business activities it will engage in.
  • Resident Agent Information: Your Resident Agent is a person or entity designated to receive legal documents on behalf of your LLC. The Resident Agent must have a physical street address in New York. It’s essential to choose a reliable and responsible New York Resident Agent, as failure to receive and respond to legal documents can have serious consequences for you to start a business in New York

You can serve as your Resident Agent, appoint a friend or family member, or hire the Best New York Resident Agent Services. We reviewed some of the services for you to check out if you still don’t have one.

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Article II: Members and Ownership

This section deals with identifying all the members of the LLC and their ownership percentages. It includes details like names, addresses, and contributions of each member. Details about how increases and decreases in membership are also covered in this section.

  • Initial Members: The names and addresses of each initial member should be listed, along with their respective ownership interests.
  • Ownership Interests: This section should detail each member’s ownership interest percentage.
  • Capital Contributions: Each member’s initial capital contribution to the LLC should be documented, along with any additional contributions that may be required.
  • Additional Members: The agreement should outline the process for admitting new members to the LLC and the rights and responsibilities of these new members.
  • Transfer of Membership Interests: The operating agreement should contain provisions governing the transfer of membership interests, including transfer restrictions and the right of first refusal for existing members.
  • Withdrawal of Members: The process and consequences for members who wish to withdraw from the LLC should be clearly defined. In New York, there is a definite guideline on How to Remove a Member from your New York LLC. 

Article III: Distribution of Profits and Losses

This article explains how the LLC profits and losses will be distributed among the members. It can be based on the ownership percentages or a different agreement stipulated by the members. It lays out the process for distribution and any restrictions on those distributions.

  • Allocation of Profits and Losses: The agreement should detail how profits and losses will be allocated among the members, typically based on their own interests.
  • Distributions to Members: The process for distributing profits to members should be outlined, including the timing and manner of distributions.

Article IV: Management Structure

Your LLC Operating Agreement should outline the management structure of your business. This includes

Member-Managed vs. Manager-Managed: You must decide whether your LLC will be managed by its members or appointed managers. This decision will impact the roles and responsibilities of each party.

A Member-Managed LLC is a type of limited liability company (LLC) where the management and day-to-day operations of the business are handled by its members (owners) directly. In a Member-Managed LLC, each member has the authority to make decisions and take actions on behalf of the company, such as entering into contracts, hiring employees, and managing the finances.

This management structure contrasts with a Manager-Managed LLC, where the members appoint one or more managers to oversee the business operations. In a Manager-Managed LLC, the appointed managers have the authority to make decisions and act on behalf of the company. In contrast, the members typically have a more passive role, focusing on high-level decision-making and strategic planning.

Roles and Responsibilities of Members/Managers: The agreement should define the roles and responsibilities of each member or manager, including their duties, decision-making authority, and any limitations on their powers.

Article V: Meetings and Voting Procedures

This article outlines the rules for conducting meetings and voting procedures. It specifies the quorum required for decision-making, how votes are counted, and how members are notified about meetings. It also includes information about special meetings and emergency decisions.

  • Voting Rights and Decision-Making Process: The agreement should outline each member or manager’s voting rights and decision-making for various business matters.
  • Meetings and Notice Requirements: The operating agreement should specify the frequency of meetings, the process for calling special meetings, and the notice requirements for each type of meeting.

Article VI: Limitation of Liability and Indemnification

To protect the personal assets of your LLC’s members and managers, your operating agreement in New York should address the following:

  • Liability of Members/Managers: The agreement should limit the liability of members and managers for the debts and obligations of the LLC, following New York law.
  • Indemnification Provisions: The operating agreement should include provisions for indemnifying members and managers for actions taken on behalf of the LLC, as long as those actions are within the scope of their duties and do not involve gross negligence or willful misconduct.
  • Insurance Requirements: The agreement should specify any insurance requirements for your LLC, such as liability or property insurance. Small business insurance helps safeguard your business from financial losses, legal claims, and other unforeseen events. This protection allows entrepreneurs to focus on growing and sustaining their businesses within the New York economy.

You may check out the Best Small Business Insurance in New York to learn more about business insurance.

Article VII: Record Keeping and Financial Reporting

This article provides details about the record-keeping and financial auditing procedures. It outlines the importance of keeping accurate and comprehensive records of an LLC’s financial transactions. It also specifies the frequency of financial reporting and distribution to the members.

  • Accounting and Recordkeeping: The operating agreement should outline your New York LLC’s accounting methods and recordkeeping requirements. Effective financial management is important for the success of your New York LLC. Establish a reliable accounting system to track income, expenses, and tax obligations. You can manage your finances using spreadsheets, accounting software, or becoming a CPA in New York.
  • Fiscal Year: The agreement should specify the fiscal year for your LLC, which may be either a calendar year or any 12-month period.
  • Tax Treatment and Filing Requirements: The agreement should specify your LLC’s tax treatment and any required filings with the New York tax authorities. You should include the filing of the New York Articles of Organization, annual fees, and other associated fees that need to be filed.

For the initial and final cost for forming your New York LLC, look up the LLC Cost in New York for additional information. 

Article VIII: Dissolution and Winding Up

This section outlines the circumstances under which the LLC may be dissolved, such as a unanimous decision by members, legal issues, bankruptcy, or achieving its purpose. It also includes information about how the LLC’s assets will be liquidated and debts paid upon dissolution.

Events Triggering Dissolution: The agreement should list the events that will trigger the dissolution of your LLC, such as the death or withdrawal of a member, a unanimous vote of the members, or a court order. 

Some common events include:

  • A unanimous vote of the members to dissolve the business.
  • The death, resignation, or withdrawal of a member unless the remaining members agree to continue the business.
  • The expiration of a specified period or the completion of a specific purpose, as outlined in the operating agreement.
  • A court order mandating the dissolution of the LLC.

Winding Up Process: The operating agreement should outline the process for winding up the affairs of the LLC, which typically involves:

  • Settling the company’s outstanding debts and obligations.
  • Liquidating the company’s assets.
  • Resolving any pending legal disputes.
  • Preparing and filing final tax returns.

Distribution of Assets: The operating agreement should specify how the LLC’s remaining assets will be distributed among the members upon dissolution, typically in proportion to their ownership interests.

Certificate of Cancellation: After the winding-up process is completed, the LLC may be required to file a certificate of cancellation or articles of dissolution with the New York Secretary of State to dissolve the company and remove it from its records formally. 

Article IX: Dispute Resolution

This article provides the protocol for handling any disputes arising between LLC members. It can include stipulations for mediation or arbitration in case of any conflicts. The agreement should include a process for resolving member disputes, such as mediation or arbitration.

Article X: Amendments and Modifications

Your LLC Operating Agreement in New York should include a process for making amendments and modifications, such as:

  • Process for Amending the Operating Agreement: The agreement should outline the process for proposing, considering, and approving amendments to the operating agreement.
  • Required Approval for Amendments: The agreement should specify the percentage of member approval required to amend the operating agreement.

Once your LLC Operating Agreement has been drafted, it should be executed by the initial members or managers and adopted by any additional members who join the LLC.

Role of Resident Agent in LLC Operating Agreement

A Resident Agent is a person or entity designated to receive legal documents and official correspondence on behalf of an LLC. While the primary role of a Resident Agent is to maintain a reliable point of contact for legal matters, some registered agent service providers also offer additional services, such as creating an operating agreement for your LLC. Below are some advantages of having a Resident Agent create an operating agreement for your business:

  • Expertise: A Resident Agent specializing in LLC Formation Services often has extensive knowledge and experience drafting operating agreements. They are familiar with the requirements and best practices for creating a comprehensive and legally compliant operating agreement, which can help protect your business interests and minimize potential disputes among members.
  • State-Specific Requirements: A Resident Agent offering operating agreement services is well-versed in state-specific laws and regulations governing LLCs. They can ensure that your operating agreement complies with the specific requirements of the state in which your LLC is formed, including mandatory provisions and filing requirements.
  • Time-Saving: Drafting an operating agreement in New York can be complex and time-consuming, especially for business owners unfamiliar with legal terminology and procedures. By delegating this task to a Resident Agent, you can save time and focus on other crucial aspects of your business.
  • Customization: A Resident Agent with experience creating operating agreements can tailor the document to meet your business’s unique needs and circumstances. They can help you address specific management structures, financial arrangements, and other critical aspects of your LLC that may not be covered in a generic operating agreement template.
  • Ongoing Support: The Resident Agent services provide ongoing support and guidance in maintaining and updating your operating agreement as your business grows and evolves. This can help ensure that your operating agreement remains relevant and compliant with changing laws and regulations.

While there are advantages to having a Resident Agent create an operating agreement for your LLC, it is essential to carefully review and understand the terms of the agreement before signing. Additionally, it is a good idea to consult with legal and tax professionals to ensure that the operating agreement aligns with your business goals and complies with all applicable laws and regulations.

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FAQs

What is a New York LLC operating agreement?
A New York LLC operating agreement is a legal document that outlines the ownership and operating procedures of a limited liability company in New York.
Is an LLC operating agreement required in New York?
New York law does not require LLCs to have an operating agreement, but it is highly recommended to have one in place.
Who needs to sign a New York LLC operating agreement?
All members of the LLC should sign the operating agreement.
What should be included in a New York LLC operating agreement?
A New York LLC operating agreement should include provisions outlining the company’s management structure, ownership percentage, profit distribution, and dissolution procedures, among other things.
Can the operating agreement of a New York LLC be amended?
Yes, the operating agreement of a New York LLC can be amended, but the procedure for doing so needs to be outlined in the original agreement.
What happens if a New York LLC does not have an operating agreement?
Without an operating agreement, the LLC will be governed by the default rules set out by New York state law, which may not suit the needs of the members.
How much does it cost to create a New York LLC operating agreement?
The cost of creating a New York LLC operating agreement varies depending on the complexity of the agreement and the lawyer or service used.
Where can I find a sample New York LLC operating agreement?
There are many online resources that offer sample New York LLC operating agreements, but it is important to have it reviewed by a lawyer before using it for your own LLC.
If I have a single-member LLC in New York, do I still need a operating agreement?
Yes, even if you have a single-member LLC in New York, it is still recommended to have an operating agreement in place.
How is a New York LLC taxed?
New York LLCs are taxed as pass-through entities, where the profits and losses are passed through to the individual owners’ personal tax returns.
Can a New York LLC have a different tax classification?
Yes, a New York LLC can choose to be taxed as a corporation by filing Form 8832 with the Internal Revenue Service.
Can a New York LLC have a foreign owner?
Yes, a New York LLC can have foreign owners, as long as they are legally able to own property and conduct business in the United States.
How can I register my New York LLC?
To register as a New York LLC, you need to file Articles of Organization with the New York Department of State and pay a fee.
How long does it take to register a New York LLC?
It typically takes about two weeks for the New York Department of State to process the filing and issue a Certificate of Formation.
Do I need an attorney to register my New York LLC?
You are not required to hire an attorney to register your New York LLC, but it is recommended to seek the assistance of a lawyer and/or a business formation service.
Can I operate a business without a licensed New York LLC?
Yes, a licensed LLC is not required to operate a business in New York, but it is still recommended to have one for asset protection and tax purposes.
Can I form an LLC with just one person in New York?
Yes, New York allows for one person to form a single-member LLC.
Can an LLC be taxed as an S-corporation in New York?
Yes, a New York LLC can choose to be taxed as an S-corporation by filing Form 2553 with the Internal Revenue Service.
Can non-US citizens start an LLC in New York?
Yes, non-US citizens can start an LLC in New York, as long as they are legally able to own property and conduct business in the United States.
How can I dissolve my New York LLC?
To dissolve a New York LLC, you need to file Articles of Dissolution with the New York Department of State.
If I am a member of a New York LLC, can I be sued personally?
Generally, members of a New York LLC are not personally liable for the debts and liabilities of the company.
Can a New York LLC have more than one manager?
Yes, a New York LLC can have multiple managers, as long as it is outlined in a provision of the operating agreement.
Can I change the members of my New York LLC?
The members of a New York LLC can be changed through a buyout, resignation, or addition of new members as outlined in the operating agreement.
Do I need to file an annual report for my New York LLC?
Yes, New York LLCs are required to file biennial reports every two years.
How much is the biennial report fee for a New York LLC?
The biennial report filing fee for a New York LLC is $9.
Can a New York LLC have an unlimited number of members?
Yes, there is no limit to the number of members a New York LLC can have.
Can a New York LLC use an online operating agreement template?
Yes, but it is highly recommended to have the operating agreement reviewed by a lawyer to ensure it conforms to New York state laws and regulations.
Can an LLC member also be an employee of the LLC in New York?
Yes, an LLC member can also be an employee of the same LLC in New York.
What is an LLC operating agreement in New York?
An LLC operating agreement in New York is a legal document that outlines how your LLC will operate, including financial, managerial, and operational decisions.
Is an LLC operating agreement mandatory in New York?
No, it is not mandatory as per the New York state law. However, it is highly recommended to have an operating agreement for an LLC in New York.
Can I create my LLC operating agreement in New York by myself?
Yes, you can create your own LLC operating agreement in New York, but we recommend seeking legal advice to ensure that all necessary details are included.
Do all LLC members need to sign the operating agreement in New York?
Yes, all LLC members need to sign the operating agreement in New York.
What happens if we don’t have an LLC operating agreement in New York?
In the absence of an LLC operating agreement in New York, the default provisions of the New York Limited Liability Company Law shall apply.
Can two or more LLCs share one operating agreement in New York?
No, LLCs cannot share an operating agreement because each operating agreement is specific to a specific LLC.
Can we update an operating agreement for an LLC in New York?
Yes, LLC operating agreements in New York can be updated as needed. It should be reviewed annually to ensure it still reflects the LLC’s current situation.
Can non-members sign an operating agreement for an LLC in New York?
No, only members of the LLC can sign the operating agreement.
What is the difference between a single-member LLC operating agreement and a multi-member LLC operating agreement in New York?
A single-member operating agreement is only for the LLC with one registered agent and one sole-member, while a multi-member operating agreement is for the LLC with two or more members.
Can a member refuse to sign an LLC operating agreement in New York?
Yes, a member can refuse to sign an LLC operating agreement in New York.
Do only the majority members have control over LLC operations in New York?
Not necessarily, you can distribute the control among the members as per the agreed proportion in the LLC operating agreement in New York.
Can an LLC operating agreement in New York be changed without the consent of all members?
No, the operating agreement can only be changed with the unanimous consent of all members.
Are there any restrictions to who can be an LLC member in New York?
There are no restrictions about who can be an LLC member in New York.
Do LLC members have to reside in New York to form an LLC operating agreement there?
No, members can be from anywhere in the world, and the operating agreement can still be formed in New York.
Can an LLC operating agreement in New York limit the power of the collective LLC members?
Yes, the operating agreement can limit or extent member powers, if agreed on by the members.
Can I be personally liable for involvement in the LLC in New York outside of the LLC operating agreement?
Yes, as an LLC member in New York, one can be personally liable for involvement in LLC outside of the operating agreement.
If my LLC is located in another state, but I conduct business in New York, do I still need to abide by the New York LLC operating agreement laws?
Yes, if you transact any LLC activity inside New York, according to the law, you have to abide by the New York LLC operating agreement laws.
What happens in the case of one member’s death or resignation, as per the New York LLC operating agreement?
In the case of the death of an LLC member in New York, the LLC is dissolved unless state permitted arrangements in place, specifically in the operating agreement for death or resignation.
Do all New York LLCs need a registered agent to operate according to their operating agreement?
Yes, all LLCs listed in New York require one or more registered agents to operate according to that LLC’s operating agreement.
What happens if a member violates the LLC operating agreement in New York?
If a member breaches the LLC operating agreement in New York, depending on the gravity of violation, the consequences might include expulsion from the LLC.
Are there any state fees involved with the creation of an LLC in New York and its operating agreement?
Yes, there are certain fee criteria components’ involvement like publish any legal notice requirement.
Can an LLC operating in New York have unlimited members?
Yes, there are no restrictions on the number of members for New York LLC notwithstanding other aforementioned provision.
Can a separation benefit/salary be included as part of my LLC operating agreement compensation in New York?
Yes, it can be included in essence relations among members illustrate the separation benefits/salary in LLC operating agreement in New York.
Is the information between LLC members confidential as per the operating agreement in New York?
Yes, as specified restrictions illustrated in the LLC operating agreement in New York, it defines when members can share LLC-specific data of non-public nature.
In which instances can an LLC dispute or dissolve be resolved under New York law?
The operating agreement in New York specifies under certain obligations- LLC’s disputes resolution including those pertaining to dissolution, transfer of ownership interest and much more.
How is profit distribution done as per an LLC operating agreement in New York?
As per the agreement signed between members or member-liabilities via operating agreement carry on/inherit or absorbed wholly or partly according to aggregate shares owned by them.
Is an LLC in New York a flexible business with authorized differentiation between marital property versus nonmarital property of single member LLC?
Not in the legal sense, subject to specifics indicated in the agreement or statute provisions applicable but no such firms operated or exist; hence no practical elaboration.
Can LLC members vote anonymously in New York?
Yes, they can as per information stipulated in the LLC operating agreement in New York. Specific term publication waiver consents sets direction here.

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Conclusion

Having a well-drafted LLC Operating Agreement in place is crucial for the success and protection of your New York LLC. It provides a clear framework for the ownership, management, and operation of your business, helping to prevent disputes and ensure compliance with state law. It is highly recommended to consult with legal and tax professionals when drafting and executing your operating agreement to ensure it meets your specific needs and complies with all applicable laws and regulations.

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