(1) Except as otherwise provided in subs. (3) and (4), the operating agreement governs all of the following: (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. (c) The activities and affairs of the company and the conduct of those activities and affairs. (d) The means and conditions for amending the operating agreement. (e) Mergers, interest exchanges, conversions, and domestications under subch. X. (2) To the extent the operating agreement does not provide for a matter described in sub. (1), this chapter governs the matter. (3) An operating agreement may not do any of the following: (a) Vary the law applicable under s. 183.0104 or 183.0110. (am) Vary the provisions of this section. (b) Vary a limited liability company’s capacity under s. 183.0109 to sue and be sued in its own name. (c) Vary any requirement, procedure, or other provision of this chapter pertaining to any of the following: 1. Registered agents, except to require some form of vote or consent of the members notwithstanding s. 183.0116 (2). 2. The department, including provisions pertaining to records authorized or required to be delivered to the department for filing under this chapter. (d) Vary the provisions of s. 183.0204. (e) Alter or eliminate, or restrict the remedies for breach of, the duty of loyalty or the duty of care, except as otherwise provided in sub. (4). (f) Eliminate, or restrict remedies for the breach of, the contractual obligation of good faith and fair dealing under s. 183.0409 (4), but a written operating agreement may prescribe the standards, if not manifestly unreasonable, by which the performance of the obligation is to be measured. (g) Relieve or exonerate a person from liability for conduct that constitutes any of the following: 1. A willful failure to deal fairly with the company or its members in connection with a matter in which the person has a material conflict of interest. 2. A violation of the criminal law, unless the person had reasonable cause to believe that the person’s conduct was lawful or no reasonable cause to believe that the person’s conduct was unlawful. 3. A transaction from which the person derived an improper personal profit. 4. Willful misconduct. (h) Vary the information required under s. 183.01075 or unreasonably restrict the duties and rights under s. 183.0410, but the operating agreement may impose reasonable restrictions on the availability and use of information obtained under that section and may define appropriate remedies, including liquidated damages and security for liquidated damages, for a breach of any reasonable restriction on use. (i) Vary the causes of dissolution specified in s. 183.0701 (1) (d). (j) Vary the requirement to wind up the company’s activities and affairs as specified in s. 183.0702 (1), (2) (a), and (5). (k) Unreasonably restrict the right of a member to maintain an action under subch. VIII. (m) Vary the right of a member to approve a merger, interest exchange, conversion, or domestication under s. 183.1023 (1) , 183.1033 (1), 183.1043 (1), or 183.1053 (1), except by provision in a written operating agreement that does not impair the rights of a member under s. 183.1061. (n) Vary the required contents of a plan of merger under s. 183.1022 (1) , plan of interest exchange under s. 183.1032 (1) , plan of conversion under s. 183.1042 (1), or plan of domestication under s. 183.1052 (1). (o) Except as otherwise provided in ss. 183.0106 and 183.0107 (2) , restrict the rights under this chapter of a person other than a member or manager. (4) Subject to sub. (3) (g), without limiting other terms that may be included in an operating agreement, the following rules apply: (a) The operating agreement may do any of the following: 1. 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. 2. Alter the prohibition in s. 183.0405 (1) (b) so that the prohibition requires only that the company’s total assets not be less than the sum of its total liabilities. (b) To the extent a written operating agreement of a membermanaged limited liability company expressly relieves a member of a responsibility that the member otherwise would have under this chapter and imposes the responsibility on one or more other members, the written operating agreement also may eliminate or limit any fiduciary duty of the member relieved of the responsibility which would have pertained to the responsibility. (c) Except as provided in sub. (3) (g) , a written operating agreement may do any of the following: 1. Alter or eliminate the aspects of, or restrict remedies with respect to, the duty of loyalty stated in s. 183.0409 (2) and (9). 2. Identify specific types or categories of activities that do not violate the duty of loyalty or the contractual obligation of good faith and fair dealing. 3. Alter the duty of care, but may not authorize conduct described in sub. (3) (g). 4. Alter or eliminate any other fiduciary duty. (5) The court shall decide as a matter of law whether a term of an operating agreement is manifestly unreasonable under sub. (3) (f). The court 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. The court may invalidate the term only if, in light of the purposes, activities, and affairs of the limited liability company, it is readily apparent that the objective of the term is unreasonable or that the term is an unreasonable means to achieve the term’s objective.
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