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Drafting Limited Liability Company Operating Agreements, 5th Edition (1-year Online Subscription)

Drafting Limited Liability Company Operating Agreements, 5th Edition (1-year Online Subscription)

Author: John M. Cunningham
Publisher: Wolters Kluwer Legal & Regulatory U.S.
ISBN: 9781543817652
Published In: Subscription-type (Contents updated periodically)
Format: Loose-leaf , 1922 pages
Jurisdiction: U.S. ? Disclaimer:
Countri(es) stated herein are used as reference only

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Drafting Limited Liability Company Operating Agreements is the only limited liability company (“LLC”) formbook and practice manual that addresses in a comprehensive and sophisticated manner the entire process of planning, negotiating, and drafting LLC operating agreements and handling LLC formations. The book is written both for lawyers who are inexperienced in LLC formation practice and for those who are LLC experts.

The book contains 71 chapters on LLC formation issues and related issues, 29 general-purpose model operating agreements, four special-purpose model operating agreements (including, for example, model operating agreements for series LLCs), and dozens of “plug-in provisions” to tailor operating agreements to the unique legal and tax needs of specific LLC members and managers.

Changes in the Fifth Edition of Drafting Limited Liability Company include:
- Thoroughly updated content rewritten to suit modern trends and needs
- Complete reorganization to chapters making it easier to find the content you need
- Streamlined content for online purposes
- All forms previously available on the CD-ROM of this book have been updated and moved online for easy viewing and downloading

Preface to the Fifth Edition
VOLUME 1
PART I OPERATING AGREEMENT BASICS
LLC Formation Master Checklist
Main Types of General-Purpose Forms
Chapter 1	Twelve Statutory Characteristics of LLCs
§ 1.01	LLC Statutory Law Structure
§ 1.02	Twelve Statutory Characteristics of LLCs
§ 1.03	Series LLCs
§ 1.04	LLC Uses
§ 1.05	Self-Test on Chapter 1
Exhibit 1-1	Characteristics of LLCs
Chapter 2	Choosing the Right Model Operating Agreement
§ 2.01	Importance of General-Purpose Forms
§ 2.02	Number of General-Purpose Forms Needed
§ 2.03	Three Structures Critical to Classifying LLCs
§ 2.04	Ownership Structures LLCs
§ 2.05	Management for Single-Member LLCs With an Individual Member
§ 2.06	Management for Single-Member LLCs With an Entity Members
§ 2.07	Management for a General Partnership Structure
§ 2.08	Management for a Limited Partnership Structure
§ 2.09	LLC Corporate Management Structures
§ 2.10	Federal Tax Structures LLCs
§ 2.11	Best General-Purpose Form
§ 2.12	Self-Test on Chapter 2
Exhibit 2-1	Most Common Types of LLCs and the Model Operating Agreements Required
Exhibit 2-2	Main Types of General-Purpose Forms
Chapter 3	General Drafting Guidelines
§ 3.01	Drafting Operating Agreements
§ 3.02	Criteria for Evaluating Operating Agreements
§ 3.03	LLC Formation Master Checklist Tasks Relevant to Operating Agreements
§ 3.04	Operating Agreements Drafted by Other Lawyers
Exhibit 3-1	Criteria for Evaluating Operating Agreements
Exhibit 3-2	Guidelines for Good English Prose
Exhibit 3-3	Guidelines for Good Contract Format and Style
Exhibit 3-4	Specific Tasks in Drafting Operating Agreements
Exhibit 3-5	Evaluating a Draft Agreement by Another Lawyer
Chapter 4	Using Case Law for Guidance
§ 4.01	Using Case Law for Drafting Guidance
§ 4.02	Purpose Provisions in Operating Agreements of Multi-Member LLCs
§ 4.03	Expulsion Provisions in Agreements with Two Unequal Members
§ 4.04	Hidden Risks in Drafting Disability Provisions
Chapter 5	Single-Member LLCs with Individual Members
§ 5.01	Individuals as Single-Members
§ 5.02	Single-Member LLCs vs. Two-Member LLCs
§ 5.03	Choosing the Best LLC Act
§ 5.04	The LLC Members
§ 5.05	One Entity or Two?
§ 5.06	Sole Proprietorship vs. Single-Shareholder Corporation vs. Single-Member LLC
§ 5.07	Best Management Structure
§ 5.08	Best Federal Income Tax Regimen
§ 5.09	Best Tax Regimen for Social Security and Medicare
§ 5.10	Single-Member LLCs Need Written Operating Agreements
§ 5.11	Forms for LLCs With Individual Members
§ 5.12	Fiduciary Issues in Forms 1.1 Through 1.6
§ 5.13	Miscellaneous Legal Issues
Exhibit 5-1	Individuals as Both Members and Managers
Chapter 6	Single-Member LLCs with Entity Members
§ 6.01	Entities as Single-Members
§ 6.02	Choosing the Best LLC Act
§ 6.03	Business Entity Form of the Subsidiary
§ 6.04	Best Management Structure
§ 6.05	Best Federal Income Tax Regimen
§ 6.06	Single-Member LLCs Need Written Operating Agreements
§ 6.07	Forms for LLCs Whose Members Are Entities
§ 6.08	Miscellaneous Legal Issues
Exhibit 6-1	Considerations When Using a Subsidiary
Chapter 7	Business Organization Law Plug-In Provisions
§ 7.01	Replacement and Supplemental Provisions
§ 7.02	Other Sources for Plug-In Provisions
§ 7.03	Provisions Combining Sections 7 and 9
Exhibit 7-1	Replacement and Supplemental Provisions
Exhibit 7-2	Form 6.2—Cover Page and Tables of Contents
Chapter 8	Multi-Member LLCs
§ 8.01	Operating Agreements for Multi-Member LLCs
§ 8.02	Importance of Operating Agreements
§ 8.03	Expertly Drafting Operating Agreements
§ 8.04	Necessary Tasks in Drafting Operating Agreements
§ 8.05	Master the Drafting Process
Exhibit 8-1	Model Memorandum for Clients
Exhibit 8-2	Necessary Tasks in Drafting Operating Agreements
Chapter 9	Evaluating and Using Model Operating Agreements
§ 9.01	Introduction
§ 9.02	Evaluating Individual Model Operating Agreements (“Forms”)
§ 9.03	Evaluating Sets of Model Operating Agreements
§ 9.04	Forms in This Book vs. Forms from Other Sources
§ 9.05	Adapting the “Generic” Forms in this Book for Use Under Specific LLC Acts
§ 9.06	Guidelines for Using the Forms in this Book
Exhibit 9-1	Guidelines for Using the Forms in this Book
Chapter 10	Inter-Spousal LLCs
§ 10.01	Introduction
§ 10.02	Form 4.1 as the Basis for Form 1-S
§ 10.03	Management Structure
§ 10.04	Best Federal Income Tax Regimen
§ 10.05	Comments on Forms 1-K and 1-S
Chapter 11	Short-Form Operating Agreements—Form 3-K
§ 11.01	Importance of Comprehensive Operating Agreements
§ 11.02	Situations Appropriate for Short-Form Operating Agreements
§ 11.03	Form 3.1 as the Basis for Form 3-K
§ 11.04	Necessary Provisions
§ 11.05	Deletions from Form 3.1 Reflected in Form 3-K
§ 11.06	Specific Provisions Retained in Form 3-K
Chapter 12	Freedom of Contract
§ 12.01	Freedom of Contract
§ 12.02	Contractarianism and § 18-1101(b)
§ 12.03	Freedom-of-Contract and Enforceability Rule
§ 12.04	Limits of Contractual Freedom
§ 12.05	Section 18-1101(b) Interprets Other Provisions
§ 12.06	The Elf Atochem Case
§ 12.07	Rulings in Elf Atochem
§ 12.08	Conclusion
§ 12.09	Self-Test on Chapter 12
Chapter 13	Statutory “Pick-Your-Partner” Provisions
§ 13.01	Pick-Your-Partner Provisions
§ 13.02	Relevant Definitions
§ 13.03	Pick-Your-Partner and Related Provisions
§ 13.04	DLLC Act Pick-Your-Partner Provisions
§ 13.05	Unavailability to Single-Member LLCs
§ 13.06	Member Bankruptcies
§ 13.07	Divorce
§ 13.08	Statutory Conversions to Obtain Pick-Your-Partner Provisions
§ 13.09
Chapter 14	Statutory Charging Order Provisions
§ 14.01	Charging Orders
§ 14.02	Relevant Definitions
§ 14.03	Charging Order and Related Provisions
§ 14.04	DLLC Act Charging Order Provisions
§ 14.05	Unavailability to Single-Member LLCs
§ 14.06	Federal Income Tax Consequences; Consequences for Creditors
§ 14.07	Member Bankruptcies
§ 14.08	Creditor Foreclosure on Interests of Member-Debtors
§ 14.09	Miscellaneous Planning and Drafting Issues
§ 14.10	Statutory Conversions of Corporations
§ 14.11	Legal Grounds for Charging Order Provisions
§ 14.12	Multi-Jurisdictional Issues
§ 14.13	Bibliography
§ 14.14	Summary and Conclusions
PART II ESSENTIAL TASKS
Chapter 15	Initial Contacts with Clients
§ 15.01	Mary Jones, An LLC Formation Client
§ 15.02	Handling Client Questions
Exhibit 15-1	Matters to Address in Your Initial Contact
Exhibit 15-2	Tasks to Provide in Basic LLC Formation Services
Exhibit 15-3	Comprehensive, Intermediate, and Basic Services
Exhibit 15-4	Model Engagement Letter
Chapter 16	Issues of Professional Ethics
§ 16.01	Professional Ethics Issues
§ 16.02	The Attorney-Client Relationship
§ 16.03	Model Rule 1.1—Competence in Forming LLCs
§ 16.04	Model Rule 1.2—Scope of Representation
§ 16.05	Model Rule 1.3—Diligence
§ 16.06	Model Rule 1.4—Communication with Clients
§ 16.07	Model Rule 1.5—Fees
§ 16.08	Model Rule 1.6—Confidentiality
§ 16.09	Model Rule 1.7—“Concurrent Conflicts”
§ 16.10	Joint Representations—Detailed Discussion
§ 16.11	Model Rule 1.8(a)—Accepting Equity Interests
§ 16.12	Model Rule 5.5—Unauthorized Practice of Law
§ 16.13	Self-Test on Chapter 16
Exhibit 16-1	ABA Model Rules of Ethics
Exhibit 16-2	Joint Representation Agreement
Exhibit 16-3	Key Issues on Which You Agree
Chapter 17	ABA Rules of Professional Conduct and Malpractice
§ 17.01	Ethical and Malpractice Risks
§ 17.02	ABA Rules and the Civil Rules
§ 17.03	Rule 1.7(a)(2) “Current Client” and Malpractice
§ 17.04	Impact of Breaching Rule 1.7(a)(2)

John M. Cunningham

John M. Cunningham is a graduate of Fordham College (B.A., Classics 1964), Fordham University (M.A., History of Philosophy 1965), and the University of Pennsylvania Law School (J.D. 1971). He is licensed to practice law in New Hampshire and Massachusetts and works in the New Hampshire and Massachusetts offices of the law firm of McLane, Graf, Raulerson & Middleton, Professional Association. He was a member of the committee that drafted the original version of the New Hampshire Limited Liability Company Act (effective July 1, 1993) and the major amendments to that act that became effective August 1, 1997. Mr. Cunningham's practice is focused on the law and taxation of business start-ups and on business entity restructuring, with special emphasis on LLC formations. He has formed many hundreds of LLCs under the laws of Delaware, Massachusetts, New Hampshire, and other jurisdictions, with capitalizations ranging from a few hundred dollars to several hundred million and with memberships ranging from one to 100. Mr. Cunningham is a former chair of the Tax Section and former president of the Corporate Section of the New Hampshire Bar Association. He is a member of the American Bar Association and has been active in several ABA sections and committees, including the ABA Business Section Task Force to Draft a Prototype LLC Operating Agreement. He is the New England Editor of the Limited Liability Company Reporter and is the author of numerous articles on LLC law and taxation in journals such as Taxation for Lawyers, Taxation for Accountants, the Computer Lawyer, Business Law Today, the Journal of Asset Protection, and the Journal of Pass-thru Entities. He has taught seminars on LLC law and taxation to bar associations, CPA societies, legal and accounting firms and business groups in more than 30 states. With Vernon R. Proctor of the Delaware Bar, he is the co-author of Drafting Delaware LLC Agreements, a formbook and practice manual for use in forming LLCs under the Delaware Limited Liability Company Act. Mr. Cunningham was formerly a trial attorney in the Tax Division of the United States Department of Justice, a member of the Foreign Trade and Tax Department of the law firm of Baker & McKenzie, and European Counsel to Abbott Laboratories, North Chicago, Illinois. Before entering the law, Mr. Cunningham taught philosophy at Georgetown University, Washington, D.C. Mr. Cunningham maintains a general website on LLC formation practice at www.llcformations.com and an LLC formation practice blog at http://www.cunninghamonoperatingagreements.com.