Suppose you’re starting a business and forming a limited liability company (LLC) in Alaska. In that case, you’re not required to have an operating agreement, but it’s a good idea to have one in your records.
An operating agreement is particularly important if your LLC has more than one owner, or member, as it establishes ownership shares, profit and loss distributions, and member roles and responsibilities.
Why You Need an Operating Agreement
A smartly drafted operating agreement can help you in many situations, such as when your LLC merges with another business or a member is no longer capable of working.
The operating agreement establishes each member’s ownership share in the LLC, profit and loss distribution percentages, and how proceeds will be divided if the business is sold. An operating agreement also defines how decisions and member disputes will be resolved.
It also defines each member’s role and responsibilities and how the LLC is managed, clarifying who oversees which aspects of LLC operations.
Without an operating agreement, Alaska laws will apply by default, and disputes may have to be settled in court, which can have serious negative consequences for the business.
What Should the Alaska Operating Agreement Include?
Crafting a comprehensive Operating Agreement in Alaska is vital for LLCs to delineate roles, responsibilities, and procedures. This document is a foundational piece that ensures a harmonious business environment while adhering to state-specific guidelines.
- Each member’s rights and responsibilities: Define the particular roles, duties, and authorities each member has, ensuring alignment with Alaska LLC laws and any unique stipulations the state may have.
- Capital contribution requirements for each member: Detail the monetary or other asset values that each member should contribute to the LLC, including deadlines for these contributions.
- Procedures for adding and removing members: Describe the procedure, which might involve voting or unanimous decisions, for integrating a new member or ousting a current one, taking into consideration Alaska’s regulations on the matter.
- What happens when a member sells their interest, becomes disabled, or dies: Specify protocols, considering if the member’s interest can be transferred to a beneficiary or a third party, in line with Alaska LLC rules.
- Conditions under which a member might become bankrupt or insolvent: Define the LLC’s strategy in a situation where a member undergoes financial difficulties, while adhering to Alaska’s legal boundaries.
Management and Voting:
- Management structure and roles of members: Define if the LLC is member-managed or manager-managed in Alaska. Assign and describe distinct roles and duties.
- Voting rights of each member: Elaborate whether voting is contingent on membership stakes or if every member has equal voting power.
- Rules for meetings and voting: Specify any mandatory meeting intervals, how a quorum is decided, and voting procedures, keeping in mind Alaska’s guidelines on LLC meetings.
- Rules for managing potential conflicts of interest among members: Implement policies to ensure transparency and fairness among members.
- Allocation of profits, losses, and distributions: Explain how profits and losses are shared, possibly in relation to capital contributions or another agreed-upon method.
- Provision for periodic financial audits or reviews: Stipulate regular financial audits and describe the chosen process and responsible parties.
- Tax treatment of the LLC: Clarify the tax status of the LLC in Alaska, whether it’s treated as a partnership, sole proprietorship, or corporation.
Changes and Amendments:
- Process for amending the operating agreement: Lay out the method for proposing and ratifying changes to the agreement.
- Guidelines for company management during transition events: Determine how the LLC operates during significant changes, like member changes.
- Conditions under which the LLC might be sold or merged: Describe any specific Alaska guidelines and the conditions for selling or merging the LLC.
Disputes, Legalities, and Policies:
- Clauses for dispute resolution or mediation: Preferably include methods like arbitration to pre-emptively handle disagreements and bypass litigation, considering Alaska’s specific dispute resolution preferences for LLCs.
- Guidelines for non-compete and confidentiality agreements: Dictate the terms that restrict members from engaging in similar businesses and maintaining the confidentiality of company information.
- Provision for indemnification and limitation of liability: Describe the protections for members against personal liability in business operations, adhering to Alaska’s laws on the matter.
Record Keeping and Communication:
- Details about record keeping requirements: Highlight records that need preservation, according to Alaska’s LLC mandates.
- Guidelines for how company-related decisions will be documented or communicated: Outline modes of communication and documentation practices for the company.
Company Information and Dissolution:
- Description of the business’s purpose and activities: Clearly state the business’s primary aim and operations.
- Identification of the Alaska registered agent and office: Identify the appointed registered agent and main office, following Alaska’s requirements.
- Procedures for dissolving the LLC: Detail the steps for properly shutting down the LLC in line with Alaska’s dissolution procedures.
- Procedures for winding down or liquidating the company’s assets: Describe the process for liquidation and the distribution method for any remaining assets among members.
How to Draft an Alaska Operating Agreement
You can find operating agreement templates online from services like ZenBusiness, which will ensure the standard legal language and allow you to fill in the blanks. You’ll probably be able to find free templates online as well, but it’s advisable not to use those as they may include errors.
If your business has multiple members, you should consider having an attorney draw up your operating agreement. An attorney will ensure that all bases are covered, and all members’ rights are protected. They can also include language that is specific to Alaska laws.
This could cost anywhere from $500 to $2,500, but it could save you much more.
Articles of Organization vs. Operating Agreement
The operating agreement should not be confused with your LLC’s articles of organization. The articles of organization officially form your LLC with the state and include no information about member roles or financial interests.
Also, the articles of organization is filed with the state and part of the public record, while an operating agreement is kept in your LLC’s records and referred to as needed.
Keep Your Alaska Operating Agreement Up to Date
It’s a good idea to review your operating agreement periodically. Circumstances change, and the safest approach is to ensure your operating agreement is fully up to date. Generally, your operating agreement will state that members have to vote to approve amendments to the operating agreement.
Don’t Skip the Operating Agreement
You’re not required to have an operating agreement in Alaska, but the wise entrepreneur would never do business without one. It’s a document that could be critical to the future of your business. You may think a dispute will never arise, but times and people change. You don’t want to end up in a bitter court battle because you pushed off creating an operating agreement.
It’s a document that will protect the rights and interests of your LLC members and ensure smooth, continued operations in the event of any unexpected hurdles or pitfalls.
Does an LLC operating agreement need to be notarized in Alaska?
No, operating agreements do not have to be notarized. They are not filed with the state, just kept in your records.
What happens if an Alaska LLC does not have an operating agreement?
Alaska default rules for LLCs will apply, but in cases of dispute, the law may be vague, and your members could end up in court.