Legal Question in Business Law in California

LLC Formation w/Private offering

We have an LLC and would like to raise capital through a private offering and issue non voting shares of LLC to investor members. Is there a stardard form LLC agreement that covers this type of offering?

Asked on 5/13/08, 12:19 pm

1 Answer from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law
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Re: LLC Formation w/Private offering

There are at least two more-or-less standard "formula" agreements for use as LLC Operating Agreements, a short form and a long form, in the standard (CEB) practice manual on California LLC formation and operation. Either one could be modified for use by an LLC which had several classes of members.

I cannot say without a little research that an LLC may have a class of members that cannot vote at all. It is, however, possible to have both managing and non-managing members; further, although it is unusual to say the least, it is possible for an LLC to issue shares, just as a corporation can issue shares of stock. Care must be exercised in designing and drafting any agreements, securities, offering circulars, etc. to avoid using forms or language that is perhaps appropriate for a corporation but inappropriate for an LLC.

Further, I believe that what you're proposing to do will require at least TWO separate documents: the specially-modified operating agreement and a private-placement memorandum or similar disclosure document.

Preparing a private-placement memorandum is work for a real lawyer. A non-lawyer could possibly get a pretty good feel for how to write one by reading a dozen or so well-done memoranda from other companies' successful private placements, but the consequences of leaving something out or making inaccurate "disclosures" is too great for this to be a job for the promoters alone.

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5/13/08, 2:24 pm

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