What is a New Mexico LLC Operating Agreement?
An operating agreement is a regulatory document for a New Mexico LLC which outlines the governing structure and operating guidelines of the entity along with the responsibilities of the members.
An operating agreement may also be referred to as a membership agreement.
Why is an operating agreement important?
There are a number of reasons why the operating agreement is important. A few of which include:
– In the event of a legal dispute, an LLC without an operating agreement may have to follow generic state rules which may not negatively impact the member’s personal asset protection.
– The roles, responsibilities, and expectations of the members are in writing which will reduce future conflicts.
– As a single-member LLC, having an operating agreement may help to better protect the entity’s limited liability status.
– When applying for financing, a lender will often want to see one before opening a business bank account to ensure the members have the authority to borrow on behalf of the entity.
– Potential investors and partners will request one when evaluating a business.
Is an operating agreement required in New Mexico?
According to New Mexico Statute, § 53-19-19, every New Mexico LLC may adopt an operating agreement, but it isn’t required by the Secretary of State. Despite it not being required, there are several reasons it is recommended to have one.
Can I write my own operating agreement?
While using an attorney is the safest option as they will customize the document to fit the specific needs of your business, the free operating agreements from the providers above will be better than trying to create one from scratch.
What should be included in an operating agreement?
An operating agreement can be as structured or unstructured as the members deem necessary. Some elements to consider putting in an operating agreement include:
– Business information such as the LLC’s name, principal office address, the purpose of the business, duration of the LLC, etc.
– Name and address of the New Mexico registered agent
– Ownership structure
– Amount of each member’s share of capital contribution and the percentage of their ownership interest
– Management – member-managed vs member-managed
– Scope of the manager’s authority
– Entity tax election
– Roles of the members (including financial authority, signing contracts, etc)
– Bank account information for the LLC
– Fiscal year of the LLC
– Employer Identification Number (EIN) of the LLC
– Process for the amendment of the operating agreement
– Names of the members
– When and how members receive compensation and distributions
– Meeting information and voting rights
– Procedures for adding a new member, removing a current member, and the resignation of a member
– How any remaining assets of the LLC will be divided after the liquidation of the LLC
– Process regarding the dissolution or bankruptcy of the LLC
Where is an operating agreement filed?
The operating agreement isn’t filed with the state of New Mexico. A signed copy should be kept where the company records are stored in addition to each LLC member having one as well.
Does an operating agreement need to be notarized?
An operating agreement doesn’t have to be notarized in New Mexico, however, having the operating agreement notarized can be helpful as it proves the document existed on a certain date.
Instead of notarization, it is generally recommended that all members sign and date the operating agreement. This will help to acknowledge the agreement has been received and reviewed by the LLC member.
Is the operating agreement the same as the Articles of Organization?
No. The Articles of Organization are a formation document that is used to create the business entity with the Secretary of State. The operating agreement is an internal document that outlines the governing structure and operating guidelines of the entity along with the responsibilities of the members.
Related: How to Form an LLC in New Mexico
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