47-34A-103. Operating agreement--Scope--Limitations. (a) Except as otherwise provided in subsection (b), all members of a limited liability company may enter into an operating agreement, which need not be in writing, to regulate the affairs of the company and the conduct of its business, and to govern relations among the members, managers, and company. A person that becomes a member of a limited liability company is deemed to assent to the operating agreement. To the extent the operating agreement does not otherwise provide, this chapter governs relations among the members, managers, and company.

(b) The operating agreement may not:

(1) Eliminate the duty of loyalty under § 47-34A-409(b) or § 47-34A-603(b)(3), but the agreement may, if not manifestly unreasonable:

(i) Identify specific types or categories of activities that do not violate the duty of loyalty; and

(ii) Specify the number or percentage of members or disinterested managers 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;

(2) Eliminate the obligation of good faith and fair dealing under § 47-34A-409(d), but the operating agreement may determine the standards by which the performance of the obligation is to be measured, if the standards are not manifestly unreasonable;

(3) Vary the right to expel a member in an event specified in § 47-34A-601(6);

(4) Vary the requirement to wind up the limited liability company's business in a case specified in § 47-34A-801(a)(3) or (4); or

(5) Restrict rights of a person, other than a manager, member, and transferee of a member's distributional interest, under this chapter.

(c) If not manifestly unreasonable, the operating agreement may:

(1) Restrict a right to information or access to records under § 47-34A-408;

(2) Reduce the duty of care under § 47-34A-409(c) or § 47-34A-603(b)(3);

(3) Alter any other fiduciary duty, including eliminating particular aspects of that duty.

(d) The court shall decide any claim under this section that a term of an operating agreement is manifestly unreasonable. The court:

(1) Shall make its determination as of the time the challenged term became part of the operating agreement and by considering only circumstances existing at that time; and

(2) May invalidate the term only if, in light of the purposes and activities of the limited liability company, it is readily apparent that:

(i) The objective of the term is unreasonable; or

(ii) The term is an unreasonable means to achieve the provision's objective.Source: SL 1998, ch 272, § 103; SL 2013, ch 233, § 2.