The Florida Senate

608.423  Limited liability company operating agreement; nonwaivable provisions.--

(1)  Except as otherwise provided in subsection (2), 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 limited liability company and the conduct of its business, establish duties in addition to those set forth in this chapter, and to govern relations among the members, managers, and company. Any inconsistency between written and oral operating agreements shall be resolved in favor of the written agreement. The members of a limited liability company may enter into an operating agreement before, after, or at the time the articles of organization are filed, and the operating agreement takes effect on the date of the formation of the limited liability company or on any other date provided in the operating agreement. To the extent the operating agreement does not otherwise provide, this chapter governs relations among the members, managers, and limited liability company.

(2)  The operating agreement may not:

(a)  Unreasonably restrict a right to information or access to records under s. 608.4101;

(b)  Eliminate the duty of loyalty under s. 608.4225, but the agreement may:

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

2.  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;

(c)  Unreasonably reduce the duty of care under s. 608.4225;

(d)  Eliminate the obligation of good faith and fair dealing under s. 608.4225, 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;

(e)  Vary the requirement to wind up the limited liability company's business in a case specified in this chapter; or

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

(3)  The power to adopt, alter, amend, or repeal the operating agreement of a limited liability company shall be vested in the members of the limited liability company unless vested in the manager or managers of the limited liability company by the articles of organization or operating agreement, provided that any amendment to a written operating agreement shall be in writing. The operating agreement adopted by the members or by the manager or managers may be repealed or altered; a new operating agreement may be adopted by the members; and the members may prescribe in any operating agreement made by them that such operating agreement may not be altered, amended, or repealed by the manager or managers.

(4)  Unless the articles of organization or the operating agreement provides otherwise, if the management of the limited liability company is vested in a manager or managers, the managers may adopt an operating agreement to be effective only in an emergency as defined in subsection (7). The emergency operating agreement, which is subject to amendment or repeal by the members, may make all provisions necessary for managing the limited liability company during an emergency, including procedures for calling a meeting of the managers and designation of additional or substitute managers.

(5)  All provisions of the regular operating agreement consistent with the emergency regulations remain effective during the emergency. The emergency operating agreement is not effective after the emergency ends.

(6)  Actions taken by the limited liability company in good faith in accordance with the emergency operating agreement have the effect of binding the limited liability company and may not be used to impose liability on a manager, employee, or agent of the limited liability company.

(7)  An emergency exists for purposes of this section if the limited liability company's managers cannot readily be assembled because of some catastrophic event.

History.--s. 2, ch. 82-177; s. 61, ch. 83-216; s. 24, ch. 93-284; s. 1, ch. 99-315; s. 16, ch. 2002-272.