A New Board of Governors Does Not Require Amending Your LLC Articles

Board of Governors Meeting

Today a Minnesota LLC owner asked about the requirements of filing with the Minnesota Secretary of State after electing a new board of governors:

When we formed our Minnesota LLC, we named each person who was part of the original board of governors on our LLC’s Articles of Organization. However, now we want to change some of the members of the Board of Governors. Do we need to file an amendment to our LLC Articles of Organization to since we have changed who is serving on our LLC’s Board of Governors?

In short, the answer is “no.” The first board of governors may be named in the articles of organization, but no amendment must be filed to change the board of governors later.

The answer to this question is found in the Minnesota Limited Liability Company Act, Minnesota Statutes chapter 322B. Under Minnesota Statutes section 322B.606, the “first board of governors may be named in the articles of organization.”

Minnesota Statutes section 322B.616 explains that the articles of organization may designate the original board of governors, but that designation is not permanent:

Unless fixed terms are provided for in the articles, a member control agreement, or bylaws, a governor serves for an indefinite term that expires at the next regular meeting of the members. A fixed term of a governor must not exceed five years. A governor holds office for the term for which the governor was elected and until a successor is elected and has qualified, or until the earlier death, resignation, removal, or disqualification of the governor.

Minnesota Statutes section 322B.636 explains how people are removed from the board of governors in a Minnesota LLC:

Subd. 2. Removal of governors.

A governor may be removed at any time, with or without cause, if:

  1. the governor was named by the board of governors to fill a vacancy;
  2. the members have not elected governors in the interval between the time of the appointment to fill a vacancy and the time of the removal; and
  3. a majority of the remaining governors present affirmatively vote to remove the governor.

Subd. 3. Removal by members.

Except as provided in subdivision 4, any one or all of the governors may be removed at any time, with or without cause, by the affirmative vote of the owners of a majority of the voting power of all membership interests entitled to vote at an election of governors; provided that if a governor has been elected solely by the holders of a class or series of membership interests, as stated in the articles, any member control agreement, or bylaws, then that governor may be removed only by the affirmative vote of the holders of a majority of the voting power of all membership interests of that class or series entitled to vote at an election of that governor.

Subd. 4. Exception for limited liability companies with cumulative voting.

In a limited liability company having cumulative voting, unless the entire board of governors is removed simultaneously, a governor is not removed from the board of governors if there are cast against removal of the governor the votes of a proportion of the voting power sufficient to elect the governor at an election of the entire board of governors under cumulative voting.

Subd. 5. Election of replacements.

New governors may be elected at a meeting at which governors are removed. If the limited liability company allows cumulative voting and a member notifies the presiding manager at any time before the election of new governors of intent to cumulate the votes of the member, the presiding manager shall announce before the election that cumulative voting is in effect, and members shall cumulate their votes as provided in section 322B.63, subdivision 1, clause (2).

Thus, governors may be named in the Articles of Organization, but the statute contemplates that the board will change over time and subsequent filings for new persons serving on a board of governors is not required by the Minnesota Limited Liability Company Act.