Section 79-29-123 - General standards of conduct and construction and application of certificate of formation and operating agreement; scope, function, and limitations(1) An operating agreement must initially be agreed to by all of the members. Except as otherwise provided in subsections (2) and (3) of this section, the certificate of formation or operating agreement governs: (a) The affairs of a limited liability company, the conduct of its business and the relations of its members among the members as members and between the members and the limited liability company;(b) The rights, powers and duties under this chapter of a person in the capacity of member, manager, officer or other person who is a party to or is otherwise bound by the operating agreement;(c) The activities of the limited liability company and the conduct of those activities; and(d) The means and conditions for amending the operating agreement.(2) To the extent that: (a) the provisions of the operating agreement are not inconsistent with the certificate of formation, the operating agreement governs the matters described in paragraphs (a) through (d) of subsection (1) of this section; (b) the certificate of formation or operating agreement does not provide for the method by which an operating agreement may be amended, then all of the members must agree to any amendment of an operating agreement, except an amendment that occurs as the result of a merger with a domestic or foreign limited liability company must be approved by a majority of the members; and (c) the certificate of formation or operating agreement does not otherwise provide for a matter described in paragraphs (a) through (d) of subsection (1) of this section, this chapter governs the matter.(3) Except as provided in this subsection (3), the provisions of this chapter that relate to the matters described in paragraphs (a) through (d) of subsection (1) of this section may be waived, restricted, limited, eliminated or varied by the certificate of formation or operating agreement. In addition to the restrictions set forth in subsections (4) and (5) of this section, the certificate of formation or the operating agreement may not: (a) Vary the requirement set forth in subsection (1) of this section that the initial operating agreement must be agreed to by all of the members;(b) Vary a limited liability company's capacity to sue and be sued in its own name;(c) Vary the law applicable under Section 79-29-119;(d) Vary the power of the court under Section 79-29-209;(e) Restrict the right to approve a merger under Section 79-29-223(e) to a member who will have personal liability with respect to a survivor;(f) Restrict the right to approve a conversion under the Mississippi Entity Conversion and Domestication Act of a member that will have personal liability with respect to an entity following the conversion.(g) Restrict the right to approve an asset sale agreement under Section 79-29-233(e) to a member who will have personal liability with respect to any entity;(h) Eliminate the implied contractual covenant of good faith and fair dealing of a member, manager, officer or other person who is a party to the operating agreement or who is otherwise bound by the operating agreement;(i) Unreasonably restrict the duties and rights stated in Section 79-29-315;(j) Waive the requirement of Section 79-29-503(1) that a contribution obligation be in writing;(k) Vary the requirement to windup a limited liability company's business following the filing of a certificate of dissolution as specified in Section 79-29-801;(l) Vary the manner of the distribution of assets in connection with the winding-up of a limited liability company's business as required by Section 79-29-813(1)(a);(m) Vary the power of a court to decree dissolution in the circumstances specified in Section 79-29-803(1) or to appoint trustees or receivers as specified in Section 79-29-815;(n) Vary the requirements of Sections 79-29-817 and 79-29-819;(o) Vary or modify any provision of Article 9 of this chapter unless otherwise expressly provided in Article 9 that the certificate of formation or the operating agreement may vary or modify such provision;(p) Unreasonably restrict the right of a member to maintain an action under Article 11 of this chapter;(q) Vary any requirement set forth in this chapter that an agreement must be contained in either the certificate of formation or a written operating agreement to be enforceable; or(r) Vary any provision set forth in this chapter relating to filing, fees or any action with or by the Secretary of State's office.(4) The certificate of formation or an operating agreement may provide for the limitation or elimination of any and all liabilities of any manager, member, officer or other person who is a party to or is otherwise bound by the operating agreement for any action taken, or failure to take any action, as a manager or member or other person, including, for breach of contract and for breach of duties, including all or any fiduciary duties, of a member, manager, officer or other person to a limited liability company or to its members or to another member or manager or officer or to another person; provided, that the certificate of formation or an operating agreement may not limit or eliminate liability for:(a) The amount of a financial benefit by a member or manager to which the member or manager is not entitled;(b) An intentional infliction of harm on the limited liability company or the members;(c) An intentional violation of criminal law;(d) A violation of Section 79-29-611;(e) The amount of a distribution in violation of Section 79-29-813(1); or(f) Any act or omission that constitutes a bad faith violation of the implied contractual covenant of good faith and fair dealing.(5)Indemnification.(a) A limited liability company may, and shall have the power to, indemnify and hold harmless any member, manager, officer or other person from and against any and all claims and demands whatsoever, except a limited liability company and an operating agreement shall not indemnify any member, manager, officer or other person from and against any claims or demands in connection with a proceeding by or in the right of the limited liability company in which the member, manager or other person was: (i) Found to have engaged in acts or omissions that constitute fraudulent conduct and was adjudged liable for claims based on such conduct; or(ii) Was found to have engaged in any actions described in subsection (4) of this section and was adjudged liable for claims based on such actions.(b) A limited liability company shall indemnify a member, manager, officer or other person who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which the person was a party because the person is or was a member, manager, officer or agent of the limited liability company against reasonable expenses incurred by the member, manager, officer or agent in connection with the proceeding.(c) Each such indemnity may continue as to a person who has ceased to have the capacity referred to in subsection (5)(a) of this section and may inure to the benefit of the heirs, beneficiaries and personal representatives of such person.(6) General standards of conduct. Subject to the certificate of formation or the terms of a written operating agreement or other written agreement, which may expand, eliminate or restrict the following, except as provided in subsection (4)(f) of this section, (a) A manager: (i) Shall discharge the duties of a manager; 1. In good faith and with fair dealing;2. With the care an ordinarily prudent person in a like position would exercise under similar circumstances; and3. In a manner the manager reasonably believes to be in the best interests of the limited liability company.(ii) Shall not be liable to a limited liability company or to another member or manager or to another person who is a party to or is otherwise bound by an operating agreement for the following:1. For any action taken as a manager, or any failure to take any action, if such manager performed the duties of such manager in compliance with subsection (6)(a)(i) of this section.2. For breach of fiduciary duty for the manager's good-faith reliance on the provisions of the operating agreement.(b) An officer: (i) Shall discharge the duties of an officer; 1. In good faith and with fair dealing;2. With the care an ordinarily prudent person in a like position would exercise under similar circumstances; and3. In a manner the officer reasonably believes to be in the best interests of the limited liability company.(ii) Shall not be liable to a limited liability company or to another member or manager or to another person who is a party to or is otherwise bound by an operating agreement for the following:1. For any action taken as an officer, or any failure to take any action, if such officer performed the duties of such member in compliance with subsection (6)(b)(i) of this section; and2. For breach of fiduciary duty for the officer's good-faith reliance on the provisions of the operating agreement.(c) A member of a member-managed limited liability company:(i) Shall discharge the duties of a member of a member-managed limited liability company; 1. In good faith and with fair dealing;2. With the care an ordinarily prudent person in a like position would exercise under similar circumstances; and3. In a manner the person reasonably believes to be in the best interests of the limited liability company.(ii) Shall not be liable to a limited liability company or to another member or manager or to another person who is a party to or is otherwise bound by an operating agreement for the following:1. For any action taken as a member of a member-managed limited liability company, or any failure to take any action, if such member performed the duties of such member in compliance with subsection (6)(c)(i) of this section.2. For breach of fiduciary duty for the member's good faith reliance on the provisions of the operating agreement.(d) To the extent that, at law or in equity, a member of a manager-managed limited liability company or other person has duties, including fiduciary duties set forth in this chapter, to a limited liability company or to another member or manager or to another person who is a party to or is otherwise bound by an operating agreement, such member's or other person's fiduciary duties may be expanded, restricted or eliminated by provisions in the certificate of formation or the written operating agreement.(e) The operating agreement may:(i) Identify specific categories of activities that do not violate the duty of loyalty;(ii) Alter or eliminate any other fiduciary duty, including eliminating particular aspects of that duty; and(iii) If not manifestly unreasonable, prescribe the standards by which to measure the performance of the implied contractual covenant of good faith and fair dealing under Section 79-29-123(3)(g).(7) Any agreement relating to or governing any event, act, omission, duty, right, power or liability under or pursuant to the following sections of this chapter must be expressly contained in either the certificate of formation or a written operating agreement in order to be enforceable: (a) Section 79-29-123(4);(b) Section 79-29-123(6);(d) Section 79-29-301(6);(g) Section 79-29-313(1);(h) Section 79-29-801; and(8) A court of equity: (a) May enforce an operating agreement by injunction or by such other relief that the court in its discretion determines to be fair and appropriate in the circumstances or, when the provisions of Section 79-29-803 are applicable, the court may order dissolution of the limited liability company; and(b) Shall decide any claim under subsection (6)(e)(iii) of this section that such standard is manifestly unreasonable. The court:
(i) 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(ii) May invalidate the term only if, in light of the purposes and activities of the limited liability company, it is readily apparent that:1. The objective of the term is unreasonable; or2. The term is an unreasonable means to achieve the provision's objective. Laws, 2010, ch. 532, § 1, eff. 1/1/2011.Amended by Laws, 2014, ch. 399, SB 2322, 47, eff. 1/1/2015.