Preview screen of the Terms.Law OA Generator for a single-member LLC

What are those documents for?

Bylaws, LLC Operating Agreement (OA), Shareholders Agreement (SHA), Founders Agreement, Joint Venture Agreement, Partnership Agreement – are all different titles for the same type of a legal document. It serves as the primary contract outlining the rights and obligations of business partners in a specific commercial arrangement. It is usually created by the partners at the time of business formation and sets forth the business purpose and how the relationship will be governed.

Why have it in the first place?

– Banks and investors could insist on it. Your bylaws or operating agreement might be requested as evidence that you are the owner of your company. The fact that you own your company may not be shown by your state registration certificate alone. It is therefore better to be prepared and have your operating agreement or bylaws available, even if you are the sole shareholder of your corporation or a single member of the LLC.

– Liability protection. To aid in separating your personal assets from those of the business. Even if it’s a single-member company.

Running your business without a required organizational document might compromise your company registration, even if one is not needed in your jurisdiction. Incorporation’s primary advantage is the liability protection it provides. It’s likely the main reason you established your company in the first place.

Let’s briefly go through the definition of liability protection in case you’re still unclear. Having a company shields your personal assets, including your house and bank accounts, from anyone suing your firm for various reasons (like damaging property or breaching a contract). You must maintain a clear separation between your personal and professional operations in order to maintain this liability protection. The phrase “commingling funds” refers to treating your corporate resources separately from your personal finances. Additionally, it entails adhering to conventions in business, such as recording meeting minutes. Your chance of someone “piercing the corporate veil” in court, or legally avoiding your liability defenses for failing to handle your corporation like a business, increases if you don’t adhere to corporate formalities and don’t keep your personal and professional affairs separate.

Without the bylaws or operating agreement, your state might not recognize you as a company, and without it, you might be sued and have your personal assets taken advantage of without any protection. You have already invested the time and work in forming your company. So, get an operating agreement or bylaws to ensure liability protection.

– To prevent unfavorable state laws from interfering. Your state’s default laws will be in effect if you don’t have an agreement in place. States establish default rules to fill in the gaps if an agreement does not mention particular provisions.

Default rules are created with the goal of permitting outcomes that individuals generally or typically desire. But because they’re designed to work in the most minimally viable scenarios, they may have unintended outcomes for firms.

E.g., in the case of your death or incapacitation, your state may have a default law that grants someone the right to inherit the assets of your company, such as a spouse or kid. However, the right to actually manage the inherited property is not necessarily included.

So, if you want a certain individual (such someone who is familiar with the company and has a lengthy history working there) to run your company in the event that something bad occurs to you, you must include it in your agreement.

What’s the difference between Bylaws and Articles of Incorporation?

The Articles of Incorporation are a short initial filing form for corporations. It’s what you get from the Secretary of State’s website, fill in and file with the state. It’s public record. Articles of Incorporation only contain minimum basic information about the corporation:

Name of the Corporation: This is the company’s legal name, which often ends with “Corp.” or “Inc.”

Address.

Registered agent: The person or firm that will accept legal paperwork on behalf of your company.

Directors and officers (some states): Certain states demand that you disclose the names and addresses of directors and officers. Directors are accountable for business planning and general strategy. They are chosen by shareholders and elect the executives. Officers, including the chief executive officer, treasurer, and chief financial officer, are accountable for the daily operations of the company.

Number of Shares: C corporations are able to issue an unlimited number of shares, whereas S corporations are restricted to 100 shares. The number of shares must be specified in the articles of incorporation, although not all of them must be issued. In order to grow and attract additional owners, companies often retain certain shares.

Classes of Shares: C corporations may issue several classes of stock (common and preferred), but S corporations can only issue one class of stock. Preferred stock in a C corporation is typically allocated for investors who have priority access to dividends and asset distributions.

The Incorporator: the person or legal services firm that signs and submits the Articles of Incorporation form. If that person doesn’t have anything to do with the corporation, he or she then signs a statement of incorporator that confirms that you are the real owner, even though incorporator’s name appears on the Articles of Incorporation.

Bylaws, on the other hand, are more detailed. The bylaws are a legal document containing rules and regulations on how to manage the internal affairs of a company, such as how officials are chosen, the roles and obligations of the board of directors, and how to address conflicts of interest, etc.

Bylaws is a document that describes how a corporation is to be governed and the other issues in the checklist in this blog. It’s not required to be filed with the state, so it’s not public record. While the articles of incorporation are used almost exclusively outside of the company, other documents such as bylaws, operating agreements, or business plans are more useful internally. Bylaws serve as a guidebook for the shareholders, directors, and executives of a company.

The bylaws are a legal document containing rules and regulations on how to manage the internal affairs of a company, such as how officials are chosen, the roles and obligations of the board of directors, and how to address conflicts of interest, etc. How the first board of directors forms and implements a corporation’s bylaws will determine its contents.

What’s the difference between Bylaws and Operating Agreement?

It’s essentially the same document under different titles. The main meaningful difference is that bylaws govern corporations, while operating agreements govern LLCs. Both address company governance, capital contributions, profit-loss distribution, exits, tax classification.

In contrast to corporations, just a few states require LLCs to establish an operating agreement. As of now, only five states (California, Delaware, Maine, Missouri, and New York) require LLCs to have an operating agreement, while 36 require corporations to have bylaws.

IV. TRANSFER OF INTEREST