How to Renegotiate a Wisconsin LLC Operating Agreement?

Delina Chantel Yasmeh
Published by Delina Chantel Yasmeh | Author
Last updated: May 3, 2024
FACT CHECKED by Lou Viveros, Growth & Transition Advisor
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Renegotiating a Wisconsin LLC operating agreement can be crucial to finding common ground and developing a legal document that works for everyone involved.

According to the U.S. Small Business Administration (SBA) Wisconsin Office, around 42% of Wisconsin LLCs review their Operating Agreements at least once every three years.

With a deep understanding of the intricacies involved in LLC operating agreements, our team of professionals will offer valuable insights on renegotiating an LLC operating agreement in Wisconsin.

Whether you're seeking to modify terms, address conflicts, or adapt to changing business needs, this article will provide practical strategies and tips to help you navigate the renegotiation process effectively.

Quick Summary

  • To renegotiate a Wiscon LLC operating agreement, review existing agreement, seek legal counsel, draft amended agreement, maintain transparency, and get signatures from all parties.
  • Renegotiating a Wisconsin LLC operating agreement is crucial for finding common ground and developing a legal document that works for all members involved.
  • According to the U.S. Small Business Administration (SBA) Wisconsin Office, around 42% of Wisconsin LLCs review their Operating Agreements at least once every three years.
  • Based on my direct experience, to amend a Wisconsin LLC operating agreement, you need to start by engaging in discussions with all LLC members to explore the need and goals for renegotiating the agreement.


Steps to Renegotiate a Wisconsin LLC Operating Agreement

A man renegotiating a Wisconsin LLC operating agreement

Drawing from my firsthand experience, to renegotiate a Wisconsin LLC operating agreement, you must initiate communication with all LLC members to discuss the necessity and objectives of the renegotiation.

Here are the additional steps you can follow for a successful renegotiation:

  • Review the existing agreement and identify specific areas requiring modification.
  • Seek legal counsel to ensure compliance with state laws and regulations throughout the process.
  • Once a consensus is reached among members, draft an amended agreement that addresses the proposed changes.
  • Ensure transparency and open dialogue during negotiations to foster a positive and productive atmosphere.
  • Regularly update all members on the progress and seek feedback to maintain a collaborative approach.
  • Finally, once agreed upon, formalize the revised agreement with signatures from all relevant parties.

1. Negotiate the LLC Purpose

A paper about LLC purpose negotiation

The purpose clause in the Wisconsin LLC operating agreement is an important contract element. This is because the clause sets the tone for what the company is about.

For our company. the formation documents indicated the objectives the members anticipated the limited liability company would accomplish.

Here are some reasons to engage in negotiations regarding the LLC's purpose:

  • Evolving Business Focus: Renegotiating the purpose allows you to update it to reflect your evolving business focus accurately.
  • Expanding into New Ventures: If your limited liability company plans to enter new markets or engage in additional business activities, it's important to amend the purpose accordingly. 
  • Shifting Priorities: Renegotiating the purpose will realign your LLC's goals and objectives with its current priorities.
  • Clarifying Ambiguities: Renegotiating this section will clarify any ambiguities and establish a more precise and concise purpose statement.
  • Partner Consensus: If all LLC members agree that the current purpose is no longer suitable, renegotiating allows everyone to shape the new purpose. 

2. Negotiate the Capital Calls

Busy man talking to his phone while working on laptop

Wisconsin LLC operating agreements typically include a provision that allows the other members to demand capital calls from an undercapitalized member.

Capital calls are typically considered debt and not distributions, but transparency about any such payments made by one owner to another must be transparent.

Suppose any member fails to provide the required investment.

In that case, there will almost certainly be penalties that may allow other members to contribute the necessary funds, resulting in the dilution of the non-contributing member.

Such dilution might be pro-rata or include an extra penalty, or other members could give money on behalf of the non-contributing member.

3. Negotiate the Capital Contributions

A meeting and negotiation inside the office

You'll need to figure out how much money, how many of your partners and investors will contribute through initial capital contributions, and what percentage of membership interest you'll get [1].

For our LLC, the operating agreement had a capital contribution provision so we negotiated how much money each partner or investor would contribute and what percentage of ownership interest they would get.

Capital contributions are important because they give you money to start your LLC.

4. Negotiate the Distributions

The first thing to consider when renegotiating your LLC's distribution provision is whether or not you want to allow for unequal allocations among members.

This is usually only done when the parties leave room for unequal distributions in their personal lives, such as with a husband and wife.

If this paragraph does not exist, it will most likely be assumed that all members must receive an equal income distribution based on how much they put into the business.

If the company expects significant taxable revenue, it may be legally required to make tax distributions.

The incorporation of mandatory tax distribution is necessitated by evaluating the Minority's expectations and ability to withstand any taxable income.

5. Negotiate the Votes and Rights

Shaking hands as an act of agreement

There are several ways to renegotiate voting rights and the decision-making process in an operating agreement.

Negotiating votes is a common way to renegotiate voting rights in an operating agreement.

It allows the current members of the LLC to change how they make decisions within their own business [2].

There are two ways for this process to work:

  • Majority vote
  • Unanimous decision

When you negotiate a majority vote, it means that the current business members can change the LLC's voting rights.

Negotiating a unanimous decision means that changes to voting rights within the company are not allowed without everyone's agreement.

For our business. this was beneficial when there were a lot of voices and all individuals wanted to be involved with every step towards growth.

"Clear communication is key. Before initiating renegotiation, have open discussions with your fellow members about the aspects of the agreement you feel need revisiting."

- Jon Morgan, CEO, Co-Founder & Editor-in-Chief of Venture Smarter

6. Negotiate Management Structure

Reviewing files during a negotiation

LLCs in Wisconsin can choose to be a member-managed or manager-managed LLC as specified in their operating agreement [3].

This choice determines whether members directly manage the LLC or appoint a manager(s) to handle business operations and decisions.#

According to the U.S. Small Business Administration (SBA) Wisconsin Office, 38% of Wisconsin LLCs renegotiate their Operating Agreements because of changes in ownership or membership structure, which involves adding new members, existing members leaving, or changes in profit-sharing percentages.

Managers have the authority to make business decisions, enter into contracts, and must comply with state laws and possibly a board of directors.

The operating agreement details managers' responsibilities and decision-making processes, which can be amended as needed.

7. Negotiate Exit Rights

Retirement or termination of a member can trigger an exit right in the LLC operating agreement.

If the other members have the option to buy out a departing member's ownership interest in their LLC, consider what they will do when faced with this decision:

  • Will everyone accept cash for their shares?
  • What if your business is doing well, and you want to hold onto your ownership interest?
  • What if your business isn't doing well, and you want out?

Weigh the exit rights in the LLC operating agreement against these factors before signing it.

8. Negotiate Dissolution Steps

Ripping a document in half

Dissolving an LLC is a big deal.

The members need to make sure they have an exit strategy in place before signing the LLC operating agreement, or their dream of business ownership could come crashing down if circumstances change and no one is ready for it:

  • What happens when there isn't enough cash on hand?
  • How will you pay state and federal taxes on undistributed profits?
  • What will you do with any business assets (like equipment)?

For our LLC, all members worked together to create an exit strategy in the operating agreement.

Related Articles:

FAQs

Does a Single-Member LLC in Wisconsin Need an Operating Agreement?

While not legally required, a single-member LLC in Wisconsin needs an operating agreement to help establish clear guidelines for the LLC's operations, management, and member responsibilities.

Can I Use an Operating Agreement Template for a Wisconsin LLC?

You can use an operating agreement template for a Wisconsin LLC. However, it is important to seek legal advice to ensure compliance with specific state regulations.

Do I Need to File My Wisconsin LLC Operating Agreement With the State?

You don’t need to file your Wisconsin LLC operating agreement with the state because it is an internal document that governs the business between the LLC members.


References:

  1. https://www.sfu.ca/~mvolker/biz/equity.htm
  2. https://www.snyderlawpc.com/voting-rights-in-llc/
  3. https://www.legalnature.com/guides/member-managed-vs-manager-managed-llcs

About The Author

Author
Delina Chantel Yasmeh, J.D./Tax LL.M, specializes in Mergers and Acquisitions at Deloitte and PwC, managing billion-dollar transactions. Educated in Accountancy at California State University and holding advanced degrees from Loyola Law School, she is highly skilled in tax law. Delina also dedicates time to pro bono work for women and children.
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Growth & Transition Advisor
LJ Viveros has 40 years of experience in founding and scaling businesses, including a significant sale to Logitech. He has led Market Solutions LLC since 1999, focusing on strategic transitions for global brands. A graduate of Saint Mary’s College in Communications, LJ is also a distinguished Matsushita Executive alumnus.
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