Does Your Operating Agreement Address How and When a Member May Sell or Transfer Their Interests to a Third Party?

Greetings to all our readers! We are glad you’re back for another installment of our series on operating agreements. Our conversation today pivots to an essential element that every comprehensive operating agreement should address: the scenario of a member deciding to sell or transfer their shares to a third party.

This circumstance, while not uncommon, can introduce complexities and disrupt the balance of power within an LLC. Therefore, having a clear roadmap for handling such transitions in your operating agreement is not a mere recommendation; it’s a necessity. So without further ado, let’s examine this important topic and explore how to effectively incorporate it into your operating agreement.

Why a Member Might Sell or Transfer Their Interests

The decision for a member to sell or transfer their interests in an LLC can be motivated by a variety of factors. On a personal level, circumstances such as retirement, a need for immediate liquidity, or a change in life priorities could lead a member to consider such a step. From a business standpoint, a member might decide to exit if they disagree with the company’s direction or if they receive an attractive offer for their ownership interest from an external party.

Regardless of the reason, the sale or transfer of a member’s interest is not a trivial event. It can create a significant shift in the dynamics of an LLC, particularly in terms of decision-making power and profit distribution. If a large share is sold to a third party, it could lead to a change in the company’s management style or strategic direction. Therefore, it’s vital that the operating agreement sets clear guidelines on how such transitions should be handled, to prevent disruptions and ensure continuity in the company’s operations.

The Right of First Refusal (ROFR)

In the sphere of limited liability companies, the Right of First Refusal (ROFR) is a vital provision within the operating agreement. This rule stipulates that when a member decides to sell their interest, they must first offer it to the existing members of the LLC or the company before opening up the sale to external parties. The purchasers usually have the option to purchase the interest on the same terms proposed by the third party. Sometimes, if the fair market value is known and it is more favorable to the purchaser, there may be a right to purchase the interest at that price point.

The ROFR serves a critical purpose in preserving the existing power structure within the LLC and keeping control of the company within the established group. By allowing existing members or the company the first opportunity to acquire the interest, it ensures that they can prevent a significant change in ownership structure and possible disruption to the status quo. Consequently, the ROFR is a powerful tool in maintaining the balance of control within an LLC, offering a safeguard against unexpected or undesirable shifts in ownership.

The Process of Buying Out Interests

When a member decides to sell their interest and the Right of First Refusal is exercised, the ensuing process of buying out these interests can be straightforward but requires precise execution. Generally, the selling member presents the offer they’ve received from an external party or the price they believe represents the fair market value. The existing members then decide whether they will buy these interests, usually by consensus or based on a pre-agreed voting mechanism.

The question of distributing these purchased interests among the remaining members is crucial for preserving the balance within the LLC. Ideally, the interests should be shared proportionately among the remaining members. This distribution safeguards the existing ownership structure and prevents any single member from gaining an unfair advantage or control. In essence, proportional distribution maintains fairness, ensures equal opportunity, and fosters a sense of solidarity among the members while supporting the smooth running of the LLC.


We hope this article has been informative and useful for your business. If you have any questions or comments, please contact us at We plan to answer general questions in an upcoming FAQ series. If you need legal advice specific to your situation, please ask to schedule a consultation with an attorney to discuss your company’s goals.

Join us in our next installment as we delve into the essentiality of members’ consent in making substantial company decisions. Don’t miss out on this crucial discussion that could reshape how you view decision-making in your LLC.

This article is for informational purposes only and should not be relied upon as tax or legal advice. Please consult professionals for advice tailored to your specific situation. The author and publisher assume no responsibility for any errors or omissions or for any actions taken based on the information presented.