North Carolina LLC members need to make absolutely certain that their operating agreements have been carefully negotiated, planned, and drafted. When North Carolina General Statutes § 57C-10-03 was enacted in 2010, the legislature made that much abundantly clear. That section provides that the terms of an operating agreement, once signed by the members of the LLC, are the beginning and end of each member's rights. Quite simply, if it isn't in the operating agreement, it does not exist. That section provides: “Except as otherwise provided in this Chapter, it is the policy of [the North Carolina Limited Liability Company Act] to give the maximum effect to the principle of freedom of contract and to the enforceability of operating agreements. ”
This mirrors similar language in the Delaware LLC Act, which provides: “It is the policy of this chapter to give the maximum effect to the principle of freedom of contract and to the enforceability of limited liability company agreements. ” Del. Code §18-1101(b).
Delaware, for those who may not already know, is a “thought leader” among the nation's court systems and legislatures with regard to its approach to corporate and LLC law. Delaware is home to a great number of large US corporations who take advantage of its favorable corporate and tax laws. Many states, including North Carolina, have patterned their corporate and LLC laws after Delaware's laws. It is no surprise then that North Carolina would ultimately adopt the same principle, which guides the courts of Delaware when it comes to interpreting LLC operating agreements and determining the rights and responsibilities of LLC members.
Unfortunately, few North Carolina LLC owners bother to customize the forms they buy online or copy from books they buy at office supply stores. In an effort to save a few hundred dollars consulting a business law attorney during the formation process (because they listen to companies offering cheap business law paperwork and who scare them into thinking they'll have to pay “tens of thousands of dollars” to a bunch of “high priced lawyers”) they end up getting stuck with tens of thousands of dollars in liabilities and attorneys' fees when they find themselves in a dispute with their business partners.
North Carolina law makes it perfectly clear that while you can use whatever sort of “agreement” you want to serve as your company's operating agreement, you will also be bound by those agreements to the very last letter if and when something goes wrong.