Formation, Articles of Organization and Operating Agreement

Tenn. Code Ann. tit. 48, ch. 249, pt. 2

in effect

Tenn. Code Ann. § 48-249-201 Formation.

48-249-201. Formation. (a) Formation. One (1) or more persons acting as organizers may form an LLC by filing articles for the LLC with the secretary of state that contain the information required by § 48-249-202. Unless a delayed effective date, or an occurrence of a future event, is specified in the articles, the LLC is formed and its existence begins when the articles are filed with the secretary of state. Subject to subsection (c), if a delayed effective date, or an occurrence of a future event, is specified in the manner permitted by § 48-249-202(a)(7), the LLC is formed and its existence begins at the future date specified in the articles, or on the occurrence of the future event specified in the articles, neither of which may be or may occur more than ninety (90) days from the initial filing of the articles. (b) Conclusive proof of formation. If the date of formation is the date of filing of the articles, or a later date specified in the articles at the time of filing, filing of the articles with the secretary of state is conclusive proof that the organizers satisfied all conditions precedent to formation as of the date of filing, or the specified later date, except in a proceeding by the state to cancel or revoke the formation or existence of the LLC, or to dissolve the LLC involuntarily. (c) Certificate of formation. If the date of formation of the LLC is to be the date of a future event specified in the articles, the organizers or any member may, within thirty (30) days after the date the future event occurs, file a certificate of formation that states that the LLC was formed and that sets forth the date of formation. The filing of the certificate of formation with the secretary of state is conclusive proof that the organizers satisfied all conditions precedent to formation, except in a proceeding by the state to cancel or revoke the formation or existence of the LLC, or to dissolve the LLC involuntarily. If a certificate of formation is not filed within one hundred twenty (120) days from the date of initial filing of the articles, the effective date of the formation, and the conclusive effect of the filing, pursuant to this subsection (c), shall be presumed to have occurred on the ninetieth day following the date of filing of the articles. Such presumption, however, may be rebutted. Acts 2005, ch. 286, § 1.

Tenn. Code Ann. § 48-249-202 Articles of organization.

48-249-202. Articles of organization. (a) Mandatory contents. The articles shall set forth: (1) A name for the LLC that satisfies the requirements of § 48-249-106; (2) The street address and zip code of the initial registered office of the LLC, the county in which the office is located, and the name of its initial registered agent at that office; (3) The street address and zip code of the principal executive office of the LLC (and a mailing address such as a post office box if the United States postal service does not deliver to the principal executive office), and the county in which the office is located; (4) A statement as to whether the LLC will be member-managed, manager-managed, or director-managed; (5) If the LLC will have more than six (6) members at the date of filing of the articles, a statement of the number of members at the date of the filing of the articles; (6) If, under § 48-249-114(f), one (1) or more members are personally liable for all of the debts, obligations and liabilities of the LLC, the information required in § 48-249-114(f); (7) If the existence of the LLC is to begin upon a future date, or the occurrence of a specific event, the future date or a description of the specific event; except that, in no event may the future date, or the actual occurrence of the specific event, be more than ninety (90) days after the filing of the articles in compliance with § 48-249-201; (8) If the LLC, while being formed under Tennessee law, is not to engage in business in Tennessee, a statement that the LLC is prohibited from engaging in business in Tennessee; (9) If the duration of the LLC is to be limited to a specific period of time or term of years, such limitation and the future date on which dissolution is to occur or the term of years shall be stated in the articles; and (10) Any additional information as required by the secretary of state. (b) Optional contents. (1) The articles may set forth: (A) Provisions permitted to be set forth in an operating agreement; (B) Other provisions not inconsistent with law, relating to the management of the business or the regulation of the affairs of the LLC; (C) If the LLC is director-managed, a provision eliminating or limiting the personal liability of a director to the LLC or its members for monetary damages for breach of fiduciary duty as a director; provided, that such provision shall not eliminate or limit the liability of a director: (i) For any breach of the director's duty of loyalty to the LLC or its members; (ii) For acts or omissions not in good faith, or that involve intentional misconduct or a knowing violation of law; or (iii) Under § 48-249-307; and (D) A statement to the effect that § 48-249-503(b)(2) shall not apply to the LLC, regardless of whether the LLC falls within the definition of a “family LLC” under § 48-249-102(10). (2) No provision included in the articles under subdivision (b)(1)(C) shall eliminate or limit the liability of a director for any act or omission occurring prior to the date when such provision becomes effective. All references in subdivision (b)(1)(C) to a “director” are also deemed to refer to a member who, under the operating agreement, has been delegated some or all of the rights of a director in the management and conduct of the LLC's business, as set forth in § 48-249-403(i)(2). If the secretary of state prescribes a form for articles, such form shall contain substantially the following statement: “If the LLC desires that § 48-249-503(b)(2), which restricts withdrawals from a ‘family LLC’, NOT apply to the LLC, regardless of whether the LLC falls within the definition of a ‘family LLC’, place an ‘x’ in the following space: .” (c) Statement of powers not necessary. It is not necessary to set forth in the articles any of the LLC powers granted by this chapter. (d) Nonwaivable provisions; conflict with operating agreement. The articles may not contain any provisions prohibited by § 48-249-205(b). As to all other matters, if the articles are inconsistent with any provision of an operating agreement, the articles shall control. Acts 2005, ch. 286, § 1; 2014, ch. 783, § 14; 2020, ch. 719, § 18.

Tenn. Code Ann. § 48-249-203 Operating agreement.

48-249-203. Operating agreement. (a) General. Except as otherwise provided in § 48-249-205, all members of an LLC may enter into an operating agreement to regulate the affairs of the LLC and the conduct of its business, and to govern relations between or among the members, holders, managers, directors, officers and the LLC, as applicable. Persons other than members, including holders of financial rights, may, but need not, also enter into the operating agreement. The LLC also may be a party to the operating agreement. An operating agreement may be entered into either before, after or at the time of filing of articles of organization, and, whether entered into before, after or at the time of such filing, may be made effective as of the formation of the LLC, or at a later time or date provided in the operating agreement. Except to the extent the articles of organization or a written provision of an operating agreement specifically require otherwise, an operating agreement need not be in writing. The written provisions of an operating agreement need not be set out in a single integrated document. (b) Judicial remedy. A court of equity may enforce an operating agreement by injunction, or by other equitable relief determined by the court, in its discretion, to be fair and appropriate in the circumstances. As an alternative to injunctive or other equitable relief, when § 48-249-601 is applicable, a court of equity may conduct or continue the dissolution, winding up and termination of the LLC. (c) Single-member LLC. An LLC with a single member may adopt, and, if so, shall be bound by, an operating agreement between the member and the LLC. (d) LLC bound. An LLC is bound by an operating agreement, even if the LLC is not a signatory to the agreement. (e) Binding on subsequent members and holders. The articles or the written provisions of an operating agreement of an LLC adopted under subsection (a) may provide that the written provisions of the LLC's operating agreement shall be binding upon a person who thereafter becomes a member or holder, without executing an existing operating agreement, if the new member or holder otherwise complies with the conditions for becoming a member or holder, as set forth in the LLC documents of such LLC. Acts 2005, ch. 286, § 1.

Tenn. Code Ann. § 48-249-204 Amendment or restatement of articles of organization — Amendment of operating agreement.

48-249-204. Amendment or restatement of articles of organization — Amendment of operating agreement. (a) Amendment procedure. Articles of organization of an LLC may be amended at any time, by filing articles of amendment with the secretary of state. The articles of amendment shall set forth the: (1) Name of the LLC; (2) Date of each amendment's adoption; and (3) Text of each amendment to the articles. (b) Restatement. An LLC may restate its articles of organization at any time. Restated articles of organization shall be designated as such in the heading; provided, that, if the restatement also contains one (1) or more amendments to the articles, the restatement shall be designated in the heading as “Amended and Restated Articles of Organization.” An LLC restating its articles shall file the restated articles with the secretary of state, together with a certificate setting forth the name of the LLC and the date of approval by the LLC of the restatement. If the restatement contains any amendments to the articles, such certificate shall also set forth the text of each amendment and the date of its adoption. The restated articles shall contain all the requirements of articles as set out in § 48-249-202. Duly adopted and restated articles supersede the original articles and all prior amendments to the articles. The secretary of state may certify restated articles as the articles currently in effect, without including the certificate information required by this subsection (b). (c) Approval. Any amendment to an LLC's articles shall be approved by all of the members; provided, however, that amendment of any of the matters set forth in the articles under any of § 48-249-202(a)(1), (a)(2), (a)(3) or (a)(5) only need be approved by a majority vote of the members. A restatement of the articles, to the extent not also involving an amendment of the articles, may be approved by action under § 48-249-401(a)(2), (b)(2) or (c)(2), as applicable. Any amendment to an LLC's operating agreement shall be approved by the method provided in its LLC documents. If the LLC documents do not provide for the method by which an operating agreement may be amended, all of the members shall approve any amendment to the operating agreement. Acts 2005, ch. 286, § 1.

Tenn. Code Ann. § 48-249-205 Waivable and nonwaivable provisions.

48-249-205. Waivable and nonwaivable provisions. (a) Provisions generally waivable. To the extent the LLC documents do not otherwise provide, this chapter governs relations among the members, holders of financial rights, managers, directors, officers and the LLC, as applicable. It is the express intent of the legislature of this state that members of an LLC may modify, alter or waive any provisions of this chapter in the LLC documents, except as otherwise set forth in subsection (b). (b) Nonwaivable provisions. The LLC documents may not: (1) Vary the requirement under § 48-249-102(6) that a director be an individual or vary the requirement under § 48-249-102(23) that an officer be an individual; (2) Vary the notice requirements under § 48-249-103, or under the other provisions of this chapter, in a manner that is manifestly unreasonable; (3) Vary the requirements with respect to the LLC's name under § 48-249-106; (4) Vary the requirements under § 48-249-112(c), regarding the Workers' Compensation Law, compiled in title 50, chapter 6; (5) Eliminate or vary the potential for personal liability under § 48-249-114(a)(2) or (d); (6) Eliminate or vary the restrictions on indemnification in § 48-249-115(i)(1)(A), (i)(1)(B) or (i)(1)(C); (7) Eliminate or vary any restrictions in § 48-249-202(b)(1)(C)(i), (b)(1)(C)(ii) or (b)(1)(C)(iii), on the elimination or limitation of the personal liability of a director under § 48-249-202(b)(1)(C); (8) Eliminate or vary this section; (9) Eliminate or vary the restrictions on distributions in § 48-249-306; (10) Eliminate or vary the liability for unlawful distributions in § 48-249-307; (11) Authorize a director to appoint a proxy; (12) Unreasonably restrict a right to information or access to records under § 48-249-308; (13) Eliminate the duty of loyalty under § 48-249-403(b)(1) or (b)(2), but the LLC documents may: (A) Identify specific types or categories of activities that do not violate the duty of loyalty under § 48-249-403(b)(1) or (b)(2), if not manifestly unreasonable; and (B) Specify the number or percentage of members, disinterested managers or disinterested directors, which may be greater or lesser than the number or percentage required under § 48-249-404, if applicable, that may authorize or ratify, after full disclosure of all material facts, a specific act or transaction that otherwise would violate the duty of loyalty; (14) Unreasonably reduce the duty of care under § 48-249-403(c), (h)(2), (i)(4)(B), (i)(4)(C), (j)(2) or (j)(3); (15) Eliminate the obligation of good faith and fair dealing under § 48-249-403(d), but the LLC documents may determine the standards by which performance of the obligation is to be measured, if the standards are not manifestly unreasonable; (16) Eliminate the obligation of good faith under § 48-249-403(i)(4)(A) or (j)(1), but the LLC documents may determine standards by which the performance of the obligation is to be measured, if the standards are not manifestly unreasonable; (17) Vary the right to expel a member in an event specified in § 48-249-503(a)(6); (18) Vary the requirement to wind up the LLC's business in an event specified in § 48-249-601(a)(5); (19) Eliminate or vary § 48-249-401(f)(7), part 10 or part 11 of this chapter; (20) Vary any requirements relating to documents required to be filed with the secretary of state or any register of deeds, or otherwise vary or restrict any other rights of the secretary of state or any register of deeds; or (21) Otherwise vary or restrict any rights of any other person under this chapter, other than rights of a manager, director, officer, employee, agent, member or holder of financial rights. Acts 2005, ch. 286, § 1; 2006, ch. 620, §§ 20-22.

Source: Tennessee Code (state release 76 via Public.Resource.Org) + public chapters (Tennessee Secretary of State)URL: https://archive.org/download/gov.tn.tca/release76.2021.05.21/gov.tn.tca.title.48.htmlFetched: 10/24/2026