A series LLC can be established in the company agreement. See Tex. Bus. Orgs. Code § 101.601. However, the notice of limitations set forth by Tex. Bus. Orgs. Code § 101.602 must be included in the certificate of formation in order for such limitations to apply (the notice may be placed in the “Supplemental Provisions/Information” box if using SOS Form 205, form 5-1 in this chapter). See Tex. Bus. Orgs. Code § 101.602(b)(3). As a practical matter, it is likely that in most situations the series LLC will benefit from the liability limitations afforded by section 101.602. Therefore, the following is suggested language for the practitioner to use to establish a series and comply with these notice requirements.
Additional Certificate of Formation Provisions for Establishing Series LLCs
Series Authorized: Pursuant to the provisions of the Texas Business Organizations Code, subchapter M of chapter 101, sections 101.601 through 101.622, the Company has the power and is authorized to establish one or more designated series of members, managers, membership interests, or assets that—
1.have separate rights, powers, or duties with respect to specified property or obligations of the Company or profits and losses associated with specified property or obligations or
2. have separate business purposes or investment objectives.
Notice of Limitation on Liability: Pursuant to the provisions of the Texas Business Organizations Code, section 101.602, notice is hereby given that—
1. the debts, liabilities, obligations, and expenses incurred, contracted for, or otherwise existing with respect to a particular series shall be enforceable against the assets of that series only and shall not be enforceable against the assets of the Company generally or any other series, and
2. none of the debts, liabilities, obligations, and expenses incurred, contracted for, or otherwise existing with respect to the Company generally or any other series shall be enforced against the assets of a particular series.