N.D. Cent. Code § 10-32.1-13

10-32.1-13. Operating agreement - Scope - Function - Limitations

1. Except as otherwise provided in subsections 2 and 3, the operating agreement

governs:

a. Relations among the members as members and between the members and the

limited liability company;

b. The rights and duties under this chapter of a person in the capacity of manager or

governor;

c. The activities of the company and the conduct of those activities; and

d. The means and conditions for amending the operating agreement.

2. To the extent the operating agreement does not otherwise provide for a matter

described in subsection 1, this chapter governs the matter.

3. An operating agreement may not:

a. Vary the capacity of a limited liability company under section 10-32.1-08 to sue

and be sued in its own name;

b. Vary the law applicable under section 10-32.1-09;

c. Vary the power of the court under section 10-32.1-22;

d. Subject to subsections 4 through 7, eliminate the duty of loyalty, the duty of care,

or any other fiduciary duty;

e. Subject to subsections 4 through 7, eliminate the contractual obligation of good

faith and fair dealing under subsection 4 of section 10-32.1-41;

f. Unreasonably restrict the duties and rights stated in section 10-32.1-42;

g. Vary the power of a court to decree dissolution in the circumstances specified in

subdivisions d and e of subsection 1 of section 10-32.1-50;

h. Vary the requirement to wind up the business of a limited liability company as

specified in subsection 1 and subdivision a of subsection 2 of section 10-32.1-51;

i. Unreasonably restrict the right of a member to maintain an action under sections

10-32.1-33 through 10-32.1-38;

j. Restrict the right to approve a merger, conversion, or domestication under section

10-32.1-71 to a member that will have personal liability with respect to a

surviving, converted, or domesticated organization; or

k. Except as otherwise provided in subsection 2 of section 10-32.1-15, restrict the

rights under this chapter of a person other than a member, manager, or governor.

4. If not manifestly unreasonable, and without limiting the terms that may be included in

an operating agreement, the operating agreement may:

a. Restrict or eliminate the duty:

(1) As required in subdivision a of subsection 2 and in subsections 7 and 8 of

section 10-32.1-41, to account to the limited liability company and to hold as

trustee for it any property, profit, or benefit derived by the member in the

conduct or winding up of the company's business, from a use by the

member of the company's property, or from the appropriation of a limited

liability company opportunity;

(2) As required in subdivision b of subsection 2 and in subsections 7 and 8 of

section 10-32.1-41, to refrain from dealing with the company in the conduct

or winding up of the company's business as or on behalf of a party having

an interest adverse to the company; and
ss, from a use by the

member of the company's property, or from the appropriation of a limited

liability company opportunity;

(2) As required in subdivision b of subsection 2 and in subsections 7 and 8 of

section 10-32.1-41, to refrain from dealing with the company in the conduct

or winding up of the company's business as or on behalf of a party having

an interest adverse to the company; and

(3) As required by subdivision c of subsection 2 and in subsections 7 and 8 of

section 10-32.1-41, to refrain from competing with the company in the

conduct of the business of the company before the dissolution of the

company;

b. Identify specific types or categories of activities that do not violate the duty of

loyalty;

c. Alter the duty of care, except to authorize intentional misconduct or knowing

violation of law;

d. Alter any other fiduciary duty, including eliminating particular aspects of that duty;

and

e. Prescribe the standards by which to measure the performance of the contractual

obligation of good faith and fair dealing under subsection 4 of section 10-32.1-41.

5. The operating agreement may specify the method by which a specific act or

transaction that would otherwise violate the duty of loyalty may be authorized or

ratified by one or more disinterested and independent persons after full disclosure of

all material facts.

6. 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 chapter 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.

7. The operating agreement may alter or eliminate the indemnification for a member,

manager, or governor provided by subsection 2 of section 10-32.1-40, and may

eliminate or limit the liability of a member, manager, or governor to the limited liability

company and members for money damages, except for:

a. Breach of the duty of loyalty;

b. A financial benefit received by the member or manager to which the member or

manager is not entitled;

c. A breach of a duty under section 10-32.1-32;

d. Intentional infliction of harm on the company or a member; or

e. An intentional violation of criminal law.

8. The court shall decide any claim under subsection 4 that a term of an operating

agreement is manifestly unreasonable. The court:

a. 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

b. 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; or

(2) The term is an unreasonable means to achieve the objective of the

provision.