Missouri Single-Member LLC Operating Agreement

Introduction

Key Things to Know

1. 1

   Missouri's LLC Act (RSMo Section 347.015) lets a multi-member operating agreement be oral, but a sole member's operating agreement must be a written declaration to count as an operating agreement under the statute's own definition.

2. 2

   Absent a contrary operating agreement provision, Missouri allocates losses in proportion to each member's contributions and allocates profits first to offset previously allocated losses, then according to how members share in distributions (RSMo Section 347.111).

3. 3

   A charging order lets a judgment creditor collect a member's LLC distributions, but only as an assignee with no vote or management rights, and Missouri's statute does not contain the 'exclusive remedy' language some other states' statutes use (RSMo Section 347.119).

4. 4

   Missouri LLCs do not file an annual report with the Secretary of State and owe no state franchise tax; ongoing obligations mainly involve maintaining a registered agent and paying applicable income tax.

5. 5

   The Articles of Organization must state upfront whether the LLC is member-managed or manager-managed (RSMo Section 347.039); Missouri has no default that fills in this choice if it is left blank.

6. 6

   Fiduciary duties, including the duty of loyalty and care, may be expanded or restricted by the operating agreement (RSMo Section 347.088), though the statute does not spell out how far that restriction can go.

7. 7

   The LLC is formed by filing Articles of Organization (Form LLC-1) with the Missouri Secretary of State for a $105 paper fee or $50 online; the operating agreement itself is not filed with the state.

Missouri Requirements for LLC Operating Agreement

• Operating Agreement Authority (Missouri Revised Statutes Section 347.081)

  It is the stated policy of the Missouri Limited Liability Company Act "to give the maximum effect to the principle of freedom of contract and to the enforceability of operating agreements" (RSMo Section 347.081). Members adopt an operating agreement containing whatever provisions they consider appropriate, subject only to Chapter 347 itself and other applicable law.

• Articles of Organization Compliance (Missouri Revised Statutes Section 347.039)

  The Articles of Organization must state whether management of the LLC is vested in managers or in members (RSMo Section 347.039(4)) -- this election is mandatory content at formation, not a default that fills itself in if left blank. The Operating Agreement's management provisions should be consistent with whichever election the Articles make.

• Member-Managed vs. Manager-Managed Structure (Missouri Revised Statutes Section 347.079)

  If the Articles of Organization designate the LLC as manager-managed, managers are designated, appointed, or removed as the Operating Agreement provides. If the Operating Agreement does not address how managers are chosen or removed, the default under RSMo Section 347.079 is a majority vote by number of the members.

• Capital Contributions (Missouri Revised Statutes Section 347.097)

  A member's interest may be issued for a contribution already made, an enforceable promise to make one in the future, or both (RSMo Section 347.097). A promise to make a future contribution is not enforceable against the member unless it is set out in a writing signed by the member (RSMo Section 347.099) -- an unwritten promise to contribute later cannot be enforced by the LLC.

• Profit and Loss Allocation (Missouri Revised Statutes Section 347.111)

  If the Operating Agreement does not address allocation, RSMo Section 347.111 supplies the default: losses are allocated among members according to their respective contributions made and promised, and profits are allocated first to offset any losses previously allocated to a member and not yet offset by earlier profit allocations, then according to how members share in distributions exceeding the return of their contributions.

• Distributions (Missouri Revised Statutes Section 347.109)

  RSMo Section 347.109 bars an LLC from making a distribution if, after giving effect to it, the LLC could not pay its debts as they come due, or the LLC's total assets would fall below its total liabilities plus amounts needed to satisfy other members' superior distribution rights. A member who knowingly receives, or a person who knowingly authorizes, a distribution made in violation of this rule is personally liable to the LLC for the value of the wrongful distribution for three years afterward.

• Fiduciary Duties (Missouri Revised Statutes Section 347.088)

  A member's or manager's duties to the LLC or to other members, including fiduciary duties, may be expanded or restricted by provision in the Operating Agreement (RSMo Section 347.088). A member or manager who acts in good-faith reliance on the Operating Agreement's provisions is not liable to the LLC or to other members for that reliance.

• Transfer of Membership Interests (Missouri Revised Statutes Section 347.115)

  A member's LLC interest is personal property and may be assigned in whole or in part unless the Operating Agreement provides otherwise (RSMo Section 347.115). An assignee who has not become a member has no right to participate in management and receives only the assigned share of distributions and profits -- nothing more -- until admitted as a member under the terms the Operating Agreement or all members' consent allows.

• Withdrawal or Dissociation of Members (Missouri Revised Statutes Sections 347.121, 347.123)

  Unless the Operating Agreement specifies different terms or events, a member may withdraw from a Missouri LLC by giving 90 days' prior written notice to the other members (RSMo Section 347.121). Withdrawal in violation of a written Operating Agreement provision can expose the withdrawing member to damages for breach of the agreement. After withdrawal, the member has only the rights of an assignee of their own interest unless the Operating Agreement provides otherwise (RSMo Section 347.123).

• Dissolution and Winding Up (Missouri Revised Statutes Section 347.137)

  Absent a contrary Operating Agreement or Articles provision, a Missouri LLC dissolves upon: an event specified in the Operating Agreement or Articles; a member's withdrawal, if a majority of the remaining members agree within 90 days to dissolve; there being no members left; a court decree of dissolution; or the LLC not surviving a merger or consolidation (RSMo Section 347.137). As soon as possible after any dissolution event, the LLC must file a notice of winding up with the Secretary of State.

• Records and Accounting (Missouri Revised Statutes Section 347.091)

  A Missouri LLC must keep, at its principal place of business: a current and past list of each member's and manager's name and address; a copy of the Articles of Organization and all amendments; copies of the LLC's federal, state, and local tax returns for the three most recent years; and a copy of any operating agreement that exists in writing (RSMo Section 347.091). Members may inspect and copy these records during business hours at their own expense.

• Indemnification and Liability Limitations (Missouri Revised Statutes Section 347.088)

  Chapter 347 does not contain a standalone indemnification statute. Whether and how the LLC indemnifies a member or manager is a matter the Operating Agreement itself defines, under Chapter 347's general freedom-of-contract policy (RSMo Section 347.081). Separately, a member or manager who acts in good-faith reliance on the Operating Agreement's provisions is not liable to the LLC or to other members for that reliance (RSMo Section 347.088).

• Series LLC Provisions (if applicable) (Missouri Revised Statutes Section 347.186)

  If forming a Series LLC, the Operating Agreement must contain specific provisions establishing separate series with distinct assets and liabilities, as permitted under Missouri law.