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Drafting LLC/Partnership Operating Agreements - 2 CLE hours
For most LLCs and partnerships, the single most important document they will ever need is their operating agreement. These are complicated documents governing current and future contributions, management rights of members or the authority of managers, distribution rights and policies, and ultimately “exit” rights. These interlocking provisions also have substantial tax implications that do not always flow logically from the entity’s financial results. Operating agreements can also modify the very important (but often overlooked) fiduciary duties of LLC members. Careful planning and drafting is required to ensure the parties get the benefit of their bargain and there are no adverse tax consequences. This program will provide you with a drafter’s guide to the most important provisions of LLC and partnership operating agreements.
Day 1 – June 16, 2015:
• Framework of provisions – contributions/formation, management, distribution policy, and sales/liquidations
• Understanding the complicated relationship among financial, tax and IRC Section 704(b) books – and its practical importance
• Drafting cash/property distribution and separate tax allocation provisions of operating agreements
• Capital contributions – capital v. services, current contributions v. future capital calls, documenting and valuing contributions
• Drafting member-managed v. manger-managed LLCs – how closely do clients want to track corporate forms of authority?
• Fiduciary duties of members and imposition of contractual restrictions on seeking related opportunities
Day 2 – June 17, 2015:
• Restrictions on transfers – baseline restrictions imposed by law & those imposed by agreement
• Distributions – ordinary distributions, minimum tax distributions, waterfall distributions, liquidating distributions
• How “payments to member” (not distributions) are treated for financial v. tax purposes
• Drafting allocation provisions for maximum tax benefit and to secure the safe harbor
• Rights of first refusal, rights of first offer, buy-sell provisions – understanding the alphabet soup of exit alternatives
• Liquidations of the entity and sale of an individual member’s interests
Leon Andrew Immerman is a partner in the Atlanta office of Alston & Bird, LLP, where he concentrates on federal income tax matters, including domestic and international tax planning and transactional work for joint ventures, partnerships, limited liability companies and corporations. He formerly served as chair of the Committee on Taxation of the ABA Business Law Section and as chair of the Partnership and LLC Committee of the State Bar of Georgia Business Law Section. He is also co-author of “Georgia Limited Liability Company Forms and Practice Manual” (2d ed. 1999, and annual supplements). Mr. Immerman received his B.A., magna cum laude, from Carleton College, his M.A. from the University of Minnesota, and another M.A. and his Ph.D. from Princeton University, and his J.D. from Yale Law School.
Lee Lyman is a shareholder in the Atlanta office of Carlton Fields Jorden Burt, LLP and has more than 20 years’ experience in corporate and real estate transactions. She provides corporate and transactional advice, with an emphasis on advising clients engaged in ongoing business transactions, including joint ventures, mergers and acquisitions, and business restructurings. She has extensive experience in LLC and partnership law, organization, structure, and operations. She has extensive experience structuring equity and debt financing for the acquisition, development and sale of real estate and in general corporate transactions. Ms. Lyman received her B.S. from Florida State University, her M.A. from the University of Pittsburg, her J.D. from Duke University School of Law.