Ultimate LLC Compliance Guide. Michael Spadaccini

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СКАЧАТЬ we’ll talk about throughout the book. Managers can easily be appointed immediately by the organizer after filing the articles of organization. So, if it’s optional, don’t name managers or members in the articles. Articles of organization are a public record and available for inspection. As a result, many business owners wish to reveal as little information as possible about their LLCs in the articles, relying instead on the operating agreement and LLC minutes to store this information. You should always strive to operate your LLC as discreetly as possible.

      It is virtually impossible to hide the identity of your LLC managers, however. Even if the articles do not name your managers, most annual reports to the secretary of state will require disclosure of this information. Annual reports are also public records.

       ▼ Online Resource

       You will find links to the web sites of the secretaries of state for all 50 states at www.learnaboutlaw.com.

       ▼ Expert Tip

       Never disclose the names of the owners of an LLC if it’s not required. Although it happens only rarely, sometimes aggressive lawyers suing a company will sue the company’s owners in order to harass and gain leverage—even if the owners have done nothing wrong.

HOW DO YOU AMEND YOUR ARTICLES?

      Most changes to the articles of organization require filing an amendment to the articles. The amendment process satisfies the requirements in your state’s statutes. Owners have no vested right resulting from any provision in the articles of organization, including provisions pertaining to the management, control, capital structure, dividend entitlement, purpose, or duration of the LLC. So long as you follow the proper procedures, you may amend your articles.

      For certain minor changes to the articles of organization, the organizer or appointed manager may sometimes amend the articles of organization on his or her own. These changes include the following:

       ▼ Good to Know: What Entity Is It?

      Two brothers decide to form an LLC in order to operate a pool cleaning business. One of the brothers mails the articles of organization to the secretary of state’s office, but the articles are lost in the mail and never filed. They discover the problem months later, after the business is going strong. What entity did they form? It’s not an LLC, because the papers were never filed. They entered into a joint enterprise for the purpose of pursuing profit. Thus, the entity they formed is a partnership.

      • Extending the duration of an LLC formed for a limited (not perpetual) duration

      • Deleting the names and addresses of the initial managers

      • Changing the address or name of the registered office or registered agent

      • Changing each issued and unissued authorized share of an outstanding class to a greater number of whole shares, if the LLC has only shares of that class outstanding

      • Changing the name to substitute the term “LLC,” “LC,” “Limited Liability Co.,” or other LLC indicator

      However, once an LLC has issued ownership interests to any persons, all changes to the articles of organization except the minor ones noted above require the approval of the managers (if the LLC is manager-managed) and the members. Unless a greater majority is required by the articles or operating agreement, a simple majority of any quorum is sufficient to authorize an amendment. (A quorum is the minimum number of managers or members who must be present to transact business.)

      Any amendment that would affect a particular class or series of ownership interests will generally require that owners of that class, the owners affected by that change, have the right to vote on the change. This is true even if the class or series of ownership interests is otherwise nonvoting. This situation would be rare, encountered by more sophisticated LLCs. This right would arise in the following situations, for example:

      • Reclassifying a class or series of ownership interest into a different class or series, as when an LLC seeks to extinguish a preferred class of ownership and convert the preferred holders into ordinary members

      • Changing the rights or preferences of any class of ownership, as when an LLC might seek to eliminate or change the dollar amount of a dividend preference enjoyed by a class of holders

      To be legally effective, articles of amendment must be filed with the secretary of state in the same manner as the articles of organization were filed. Articles of amendment should include the following:

      • The name of the LLC

      • The full text of each amendment adopted

      • The procedures to be followed to implement the change, if the amendment provides for the exchange, reclassification, or cancellation of issued shares

      • The date each proposed amendment was adopted

      • A statement that no owner action was required, if the managers were allowed by law to adopt the amendment without a vote by the members

      • A statement that the percentage of votes in favor was sufficient for approval, if approval of the amendment by the members was required

      Amendments to articles can also be made part of a reorganization plan. For example, articles of merger may indicate that the name of the surviving LLC shall be changed after the merger from “Aluminum and Bituminous Coal, LLC” to “TonoSilver, LLC.” This change would take effect on the date the articles of merger are filed.

      In addition, if you are qualified to do business in more than one state, you will likely be required to amend your application for certificate of authority in each state where you are qualified every time you amend your articles.

      The secretary of state’s office charges a fee for filing articles of amendment. Contact the office to learn the fee and any peculiar filing requirements in your state.

SHOULD YOU ORGANIZE BY YOURSELF OR HIRE AN ATTORNEY?

      At this stage in your organization, you must decide whether you will file and organize your LLC on your own, hire a discount organization service, or hire an attorney. Each approach has its advantages and disadvantages.

       Self-Organization

      Obviously, the greatest benefit of self-organization is initial savings. Self-organization costs the least initially. LLCs are easier to form than corporations because they are generally simpler entities. You must analyze your own needs. How complex will your entity be? Will you require multiple classes of ownership interest? Do you expect to have more than a few members? Will you operate in an industry with a formidable degree of potential liability? If your needs are not complex, you are a good candidate for organizing your LLC yourself.

      Of course, as with any legal matter, cutting costs can often cost more later. For example, if your LLC is not properly organized, ambitious creditors may later reach your personal assets by piercing the corporate (LLC) veil. See Part Five: LLC Lawsuits and Personal Liability Protection for more information on preserving your LLC’s full liability СКАЧАТЬ