§414-163  Shareholder agreements.  (a) An agreement among the shareholders of a corporation that complies with thissection is effective among the shareholders and the corporation even though itis inconsistent with one or more other provisions of this chapter in that it:

(1)  Eliminates the board of directors or restrictsthe discretion or powers of the board of directors;

(2)  Governs the authorization or making ofdistributions whether or not in proportion to ownership of shares, subject tolimitations in section 414-111, including without limitation the elimination,restriction, or expansion of dissenter's rights;

(3)  Establishes who shall be directors or officers ofthe corporation, or their terms of office or manner of selection or removal;

(4)  Governs, in general or in regard to specificmatters, the exercise or division of voting power by or between theshareholders and directors or by or among any of them, including withoutlimitation, the use of weighted voting rights or director proxies, or thevalidity and enforceability of actions that are approved by the directors orshareholders of a corporation, as applicable, in writing, without a meeting,and with the written consent of less than all the directors or shareholdersentitled to vote on any such action.  An agreement covered under this paragraphmay include an agreement to permit any action required or permitted by thischapter to be taken at a shareholders' meeting to be taken without a meeting;provided that consents in writing, setting forth the action so taken, shall besigned or given by electronic transmission by the holders of the outstandingshares entitled to vote on the action having not less than the minimum numberof votes that would be necessary to authorize or take such action at a meetingat which all shares entitled to vote thereon were present and voted,notwithstanding section 414-124;

(5)  Establishes the terms and conditions of anyagreement for the transfer or use of property or the provision of servicesbetween the corporation and any shareholder, director, officer, or employee ofthe corporation or among any of them;

(6)  Transfers to one or more shareholders or otherpersons all or part of the authority to exercise the corporate powers or tomanage the business and affairs of the corporation, including the resolution ofany issue about which there exists a deadlock among directors or shareholders;

(7)  Requires dissolution of the corporation at therequest of one or more of the shareholders or upon the occurrence of a specifiedevent or contingency; or

(8)  Otherwise governs the exercise of the corporatepowers or the management of the business and affairs of the corporation orthe relationship among the shareholders, the directors, and the corporation, oramong any of them, and is not contrary to public policy.

(b)  An agreement authorized by this sectionshall be:

(1)  Set forth:

(A)  In the articles of incorporation or bylawsand approved by all persons who are shareholders at the time of the agreement;or

(B)  In a written agreement that is signed byall persons who are shareholders at the time of the agreement and is made knownto the corporation;

(2)  Subject to amendment only by all persons who areshareholders at the time of the amendment, unless the agreement providesotherwise;

(3)  Valid for ten years; unless the agreementprovides otherwise, in which case the agreement may be valid for a longer orshorter term than ten years, or perpetually; and

(4)  Enforceable against the corporation and allpresent and future shareholders of the corporation, including persons whobecome shareholders subsequent to the approval or execution of the agreementand who did not approve or execute the agreement.

(c)  The existence of an agreement authorizedby this section shall be noted conspicuously in the corporation's articles ofincorporation, on the front or back of each certificate for outstanding shares,or on the information statement required by section 414-87(b).  If, at the timeof the agreement, the corporation has shares outstanding represented bycertificates and the existence of the agreement is not noted in thecorporation's articles of incorporation in compliance with this subsection, thecorporation shall recall the outstanding certificates and issue substitute certificatesthat comply with this subsection.  The failure to note the existence of theagreement in the articles of incorporation, on the certificate, or on theinformation statement shall not affect the validity of the agreement or anyaction taken pursuant to it.  Any purchaser of shares who, at the time ofpurchase, did not have knowledge of the existence of the agreement, shall beentitled to rescission of the purchase.  A purchaser shall not be entitled torescission as described in the preceding sentence if, at the time of purchase,the existence of the agreement is noted in the articles of incorporation, onthe certificate for the shares, or on the information statement for the shares,in compliance with this subsection and, if the shares are not represented by acertificate and the existence of the agreement is not noted in the articles ofincorporation in compliance with this subsection, the information statement isdelivered to the purchaser at or prior to the time of purchase of the shares. An action to enforce the right of rescission authorized by this subsection mustbe commenced within the earlier of ninety days after discovery of the existenceof the agreement or two years after the time of purchase of the shares.

(d)  An agreement authorized by this sectionshall cease to be effective when shares of the corporation are listed on anational securities exchange or regularly traded in a market maintained by oneor more members of a national or affiliated securities association.  If theagreement ceases to be effective for any reason, the board of directors, if theagreement is contained or referred to in the corporation's articles ofincorporation or bylaws, may adopt an amendment to the articles ofincorporation or bylaws, without shareholder action, to delete the agreementand any references to it.

(e)  An agreement authorized by this sectionthat limits the discretion or powers of the board of directors shall relievethe directors of, and impose upon the person or persons in whom the discretionor powers are vested, liability for acts or omissions imposed by law ondirectors to the extent that the discretion or powers of the directors arelimited by the agreement.

(f)  The existence or performance of anagreement authorized by this section shall not be a ground for imposingpersonal liability on any shareholder for the acts or debts of the corporationeven if the agreement or its performance treats the corporation as if it were apartnership or results in failure to observe the corporate formalitiesotherwise applicable to the matters governed by the agreement.

(g)  Incorporators or subscribers for sharesmay act as shareholders with respect to an agreement authorized by this sectionif no shares have been issued when the agreement is made. [L 2000, c 244, pt of§1; am L 2004, c 121, §6]