CA Corp Code Section 17701.10

(a)

Except as otherwise provided in this section, the operating agreement governs all of the following:

(1)

Relations among the members as members and between the members and the limited liability company.

(2)

The rights and duties under this title of a person in the capacity of manager.

(3)

The activities of the limited liability company and the conduct of those activities.

(4)

The means and conditions for amending the operating agreement.

(b)

To the extent the operating agreement does not otherwise provide for a matter described in subdivision (a), this title governs the matter.

(c)

In addition to the matters specified in paragraphs (1) to (4), inclusive, of subdivision (d), an operating agreement shall not do any of the following:

(1)

Vary a limited liability company’s capacity under Section 17701.05 to sue and be sued in its own name.

(2)

Vary the law applicable under Section 17701.06.

(3)

Vary the power of the court under Section 17702.04.

(4)

Subject to paragraphs (14) and (15) of this subdivision and subdivisions (d) to (g), inclusive, eliminate the duty of loyalty, the duty of care, or any other fiduciary duty.

(5)

Subject to subdivisions (d) to (g), inclusive, eliminate the contractual obligation of good faith and fair dealing under subdivision (d) of Section 17704.09, but the operating agreement may prescribe the standards by which the performance of the obligation is to be measured, if the standards are not manifestly unreasonable as determined at the time the standards are prescribed.

(6)

Vary the requirements of Section 17701.13 to 17701.16, inclusive, or any provision under Article 8 (commencing with Section 17708.01).

(7)

Vary the power of a court to decree dissolution in the circumstances specified in subdivision (a) of Section 17707.03 or the provisions for avoidance of dissolution in subdivision (c) of Section 17707.03.

(8)

Except as provided therein, vary the requirements of Article 2 (commencing with Section 17702.01) or Article 7 (commencing with Section 17707.01).

(9)

Unreasonably restrict the right of a member to maintain an action under Article 9 (commencing with Section 17709.01).

(10)

Restrict the right of a member that will have personal liability with respect to a surviving or converted organization to approve a merger or conversion under Article 10 (commencing with Section 17710.01).

(11)

Except as otherwise provided in subdivision (b) of Section 17701.12, restrict the rights under this title of a person other than a member or manager.

(12)

Except as provided therein, vary any provision under Article 10 (commencing with Section 17710.01).

(13)

Vary any provision under Article 11 (commencing with Section 17711.01), Article 12 (commencing with Section 17712.01), or Article 13 (commencing with Section 17713.01).

(14)

Eliminate the duty of loyalty under subdivision (b) of Section 17704.09, but the operating agreement may do any of the following:

(A)

Identify specific types or categories of activities that do not violate the duty of loyalty, if not manifestly unreasonable.

(B)

Specify the number or percentage of members that may authorize or ratify, after full disclosure to all members of all material facts, a specific act or transaction that otherwise would violate the duty of loyalty.

(15)

Unreasonably reduce the duty of care under subdivision (c) of Section 17704.09.

(d)

Except as provided in subdivision (c) and subdivisions (e) to (g), inclusive, the effects of the provisions of this title may be varied as among the members or as between the members and the limited liability company by the operating agreement; provided, however, that the provisions of Sections 17701.13, 17703.01, and 17704.08 and subdivisions (f) to (r), inclusive, and (u) to (w), inclusive, of Section 17704.07 shall only be varied by a written operating agreement. Notwithstanding the first sentence of this subdivision and in addition to the matters specified in subdivision (c), the operating agreement shall not do any of the following:

(1)

Vary the definitions of Section 17701.02, except as specifically provided therein.

(2)

Vary a member’s rights under Section 17704.10.

(3)

Vary any of the provisions of this section or Section 17701.12, except as provided therein.

(4)

Vary any of the provisions of subdivisions (s) and (t) of Section 17704.07.

(e)

The fiduciary duties of a manager to a manager-managed limited liability company and to the members of the limited liability company and of a member to a member-managed limited liability company and to the members of such limited liability company shall only be modified in a written operating agreement with the informed consent of the members. Assenting to the operating agreement pursuant to subdivision (b) of Section 17701.11 shall not constitute informed consent.

(f)

To the extent the operating agreement of a member-managed limited liability company expressly relieves a member of a responsibility that the member would otherwise have under this title and imposes the responsibility on one or more other members, the operating agreement may, to the benefit of the member that the operating agreement relieves of the responsibility, also eliminate or limit any fiduciary duty that would have pertained to the responsibility.

(g)

The operating agreement may alter or eliminate the indemnification for a member or manager provided by subdivision (a) of Section 17704.08 and may eliminate or limit a member or manager’s liability to the limited liability company and members for money damages, except for the following:

(1)

Breach of the duty of loyalty.

(2)

A financial benefit received by the member or manager to which the member or manager is not entitled.

(3)

A member’s liability for excess distributions under Section 17704.06.

(4)

Intentional infliction of harm on the limited liability company or a member.

(5)

An intentional violation of criminal law.