State Codes and Statutes

State Codes and Statutes

Statutes > Nebraska > Chapter21 > 21-110

21-110. Operating agreement; scope, function,and limitations.(ULLCA110) (a) To the extent the operating agreement does not otherwise providefor a matter, the Nebraska Uniform Limited Liability Company Act governs thematter.(b) An operating agreementmay not:(1)vary a limited liability company's capacity under section 21-105 to sue andbe sued in its own name;(2)vary the law applicable under section 21-106;(3) vary the power of the courtunder section 21-120;(4)subject to subsections (c) through (f) of this section, eliminate the dutyof loyalty or the duty of care;(5) subject to subsections (c) through (f) of thissection, eliminate the contractual obligation of good faith and fair dealingunder subsection (d) of section 21-138;(6) unreasonably restrict the duties and rights statedin section 21-139;(7)vary the power of a court to decree dissolution in the circumstances specifiedin subdivisions (a)(4) and (5) of section 21-147;(8) vary the requirement to windup a limited liability company's business as specified in subsection (a) andsubdivision (b)(1)(A) of section 21-148;(9) unreasonably restrict the right of a member tomaintain an action under sections 21-164 to 21-169;(10) except as otherwise providedin section 21-183, restrict the right to approve a merger, conversion, ordomestication of a member that will have personal liability with respect toa surviving, converted, or domesticated organization; or(11) except as otherwiseprovided in subsection (b) of section 21-112, restrict the rights under theact of a person other than a member or manager.(c) If not manifestly unreasonable,the operating agreement may:(1) restrict or eliminate the duty:(A) as required in subdivision(b)(1) and subsection (g) of section 21-138, to account to the limited liabilitycompany and to hold as trustee for it any property, profit, or benefit derivedby the member in the conduct or winding up of the company's business, froma use by the member of the company's property, or from the appropriation ofa limited liability company opportunity;(B) as required in subdivision (b)(2) and subsection(g) of section 21-138, to refrain from dealing with the company in the conductor winding up of the company's business as or on behalf of a party havingan interest adverse to the company; and(C) as required by subdivision (b)(3) and subsection(g) of section 21-138, to refrain from competing with the company in the conductof the company's business before the dissolution of the company;(2) identify specifictypes or categories of activities that do not violate the duty of loyalty;(3) alter the duty ofcare, except to authorize intentional misconduct or knowing violation of law;(4) alter any other fiduciaryduty, including eliminating particular aspects of that duty; and(5) prescribe the standardsby which to measure the performance of the contractual obligation of goodfaith and fair dealing under subsection (d) of section 21-138.(d) The operating agreementmay specify the method by which a specific act or transaction that would otherwiseviolate the duty of loyalty may be authorized or ratified by one or more disinterestedand independent persons after full disclosure of all material facts.(e) To the extent theoperating agreement of a member-managed limited liability company expresslyrelieves a member of a responsibility that the member would otherwise haveunder the Nebraska Uniform Limited Liability Company Act and imposes the responsibilityon one or more other members, the operating agreement may, to the benefitof the member that the operating agreement relieves of the responsibility,also eliminate or limit any fiduciary duty that would have pertained to theresponsibility.(f)The operating agreement may alter or eliminate the indemnification for a memberor manager provided by subsection (a) of section 21-137 and may eliminateor limit a member's or manager's liability to the limited liability companyand members for money damages, except for:(1) breach of the duty of loyalty;(2) a financial benefitreceived by the member or manager to which the member or manager is not entitled;(3) a breach of a dutyunder section 21-135;(4)intentional infliction of harm on the company or a member; or(5) an intentional violationof criminal law.(g)The court shall decide any claim under subsection (c) of this section thata term of an operating agreement is manifestly unreasonable. The court:(1) shall make its determinationas of the time the challenged term became part of the operating agreementand by considering only circumstances existing at that time; and(2) may invalidate theterm only if, in light of the purposes and activities of the limited liabilitycompany, it is readily apparent that:(A) the objective of the term is unreasonable; or(B) the term is an unreasonablemeans to achieve the provision's objective. SourceLaws 2010, LB888, § 10.Operative Date: January 1, 2011