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2017 Mississippi Code
Title 79 - Corporations, Associations, and Partnerships
Chapter 14 - Mississippi Uniform Limited Partnership Act
Article 1 - General Provisions
§ 79-14-105. Partnership agreement; scope, function, and limitations
Universal Citation: MS Code § 79-14-105 (2017)
- (a) Except as otherwise provided in subsections (c) and (d), the partnership agreement governs:
- (1) Relations among the partners as partners and between the partners and the limited partnership;
- (2) The activities and affairs of the partnership and the conduct of those activities and affairs; and
- (3) The means and conditions for amending the partnership agreement.
- (b) To the extent the partnership agreement does not provide for a matter described in subsection (a), this chapter governs the matter.
- (c) A partnership agreement may not:
- (1) Vary the law applicable under Section 79-14-104;
- (2) Vary a limited partnership's capacity under Section 79-14-111 to sue and be sued in its own name;
- (3) Vary any requirement, procedure, or other provision of this chapter pertaining to:
- (A) Registered agents; or
- (B) The Secretary of State, including provisions pertaining to records authorized or required to be delivered to the Secretary of State for filing under this chapter;
- (4) Vary the provisions of Section 79-14-204;
- (5) Vary the right of a general partner under Section 79-14-406(b)(2) to vote on or consent to an amendment to the certificate of limited partnership which deletes a statement that the limited partnership is a limited liability limited partnership;
- (6) Alter or eliminate the duty of loyalty or the duty of care except as otherwise provided in subsection (d);
- (7) Eliminate the contractual obligation of good faith and fair dealing under Sections 79-14-305(a) and 79-14-409(d), but the partnership agreement may prescribe the standards, if not manifestly unreasonable, by which the performance of the obligation is to be measured;
- (8) Relieve or exonerate a person from liability for conduct involving bad faith, willful or intentional misconduct, or knowing violation of law;
- (9) Vary the information required under Section 79-14-108 or unreasonably restrict the duties and rights under Section 79-14-304 or 79-14-407, but the partnership agreement may impose reasonable restrictions on the availability and use of information obtained under those sections and may define appropriate remedies, including liquidated damages, for a breach of any reasonable restriction on use;
- (10) Vary the grounds for expulsion stated in Section 79-14-603(5)(B);
- (11) Vary the power of a person to dissociate as a general partner under Section 79-14-604(a), except to require that the notice under Section 79-14-603(1) be in a record;
- (12) Vary the causes of dissolution specified in Section 79-14-801(a)(6);
- (13) Vary the requirement to wind up the partnership's activities and affairs as specified in Section 79-14-802(a), (b)(1), and (d);
- (14) Unreasonably restrict the right of a partner to maintain an action under Article 9;
- (15) Vary the provisions of Section 79-14-905, but the partnership agreement may provide that the partnership may not have a special litigation committee;
- (16) Vary the right of a partner to approve a conversion or domestication under the Mississippi Entity Conversion and Domestication Act;
- (17) Vary the required contents of a plan of merger under Article 11 or plan of conversion or plan of domestication under the Mississippi Entity Conversion and Domestication Act; or
- (18) Except as otherwise provided in Sections 79-14-106 and 79-14-107(b), restrict the rights under this chapter of a person other than a partner.
- (d) Subject to subsection (c)(8), without limiting other terms that may be included in a partnership agreement, the following rules apply:
- (1) The partnership agreement may:
- (A) 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; and
- (B) Alter the prohibition in Section 79-14-504(a)(2) so that the prohibition requires only that the partnership's total assets not be less than the sum of its total liabilities.
- (2) If not manifestly unreasonable, the partnership agreement may:
- (A) Alter or eliminate the aspects of the duty of loyalty stated in Section 79-14-409(b);
- (B) Identify specific types or categories of activities that do not violate the duty of loyalty;
- (C) Alter the duty of care, but may not authorize conduct involving bad faith, willful or intentional misconduct, or knowing violation of law; and
- (D) Alter or eliminate any other fiduciary duty.
- (1) The partnership agreement may:
- (e) The court shall decide as a matter of law whether a term of a partnership agreement is manifestly unreasonable under subsection (c)(7) or (d)(2). The court:
- (1) Shall make its determination as of the time the challenged term became part of the partnership agreement and by considering only circumstances existing at that time; and
- (2) May invalidate the term only if, in light of the purposes, activities, and affairs of the limited partnership, it is readily apparent that:
- (A) The objective of the term is unreasonable; or
- (B) The term is an unreasonable means to achieve its objective.
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