Title 10 – Corporations and Associations

Chapter 30 – Members’ Meetings and Voting-nonprofit Corporations

Article 3 – Voting Agreement and Trusts

• A. An agreement among the members of a corporation that complies with this section is effective among the members and the corporation even though it is inconsistent with one or more other provisions of chapters 24 through 40 of this title if it meets any of the following conditions:
• 1. Restricts the discretion or powers of the board of directors.
• 2. Governs the authorization or making of distributions whether or not in proportion to ownership of memberships, subject to the limitations in sections 10-11301 and 10-11302.
• 3. Establishes who shall be directors or officers of the corporation, their terms and conditions of office or employment or their manner of selection or removal.
• 4. Governs, in general or in regard to specific matters, the exercise or division of voting power by or between the members and directors or by or among any of them, including use of weighted voting rights or director proxies.
• 5. Establishes the terms and conditions of any agreement for the transfer or use of property or the provision of services between the corporation and any member, director, officer or employee of the corporation or among any of them.
• 6. Transfers to one or more members or other persons all or part of the authority to exercise the corporate powers or to manage the affairs of the corporation, including the resolution of any issue about which there exists a deadlock among directors or members.
• 7. Requires dissolution of the corporation at the request of one or more of the members or on the occurrence of a specified event or contingency.
• 8. Establishes the terms and conditions of employment of members.
• 9. Addresses the use of arbitration or other forms of dispute resolution to resolve disputes among members.
• 10. Restricts the transfer of memberships.
• 11. Otherwise governs the exercise of the corporate powers or the management of the affairs of the corporation, its liquidation and dissolution or the relationship among the members, the directors and the corporation, or among any of them.
• B. An agreement authorized by this section shall be:
• 1. Set forth either:
• (a) In the articles of incorporation or bylaws and approved by all persons who are members at the time of the agreement.
• (b) In a written agreement that is signed by all persons who are members at the time of the agreement and that is filed with the corporation.
• 2. Subject to amendment or termination only by all persons who are members at the time of the amendment, unless the agreement provides otherwise.
• 3. Valid for the duration of the corporation’s existence, unless the agreement provides otherwise.
• C. An agreement authorized by this section is enforceable by any party to the agreement against any other party to the agreement. The existence of an agreement authorized by this section shall be noted conspicuously in an information statement provided to any person who becomes a member and who was not a signatory of the agreement. The failure to note the existence of the agreement in the information statement does not affect the validity of the agreement or any action taken pursuant to it. Any transferee of a membership who at the time of transfer did not have knowledge of the existence of the agreement is entitled to rescission of the membership. A transferee shall be deemed to have knowledge of the existence of the agreement if its existence is noted in the information statement in compliance with this subsection and the information is delivered to the transferee at or before the time of transfer of the membership or the transferee has actual notice of the existence of the agreement at the time of transfer. An action to enforce the right of rescission authorized by this subsection must be commenced within the earlier of ninety days after discovery of the existence of the agreement or two years after the time of the transfer of the membership.
• D. If the agreement ceases to be effective for any reason, the board of directors, if the agreement is contained or referred to in the corporation’s articles of incorporation or bylaws, may adopt an amendment to the articles of incorporation or bylaws, without shareholder action, to delete the agreement and any references to it.
• E. An agreement that is authorized by this section and that limits the discretion or powers of the board of directors relieves the directors of and imposes on the person or persons in whom such discretion or powers are vested liability for acts or omissions imposed by law on directors to the extent that the discretion or powers of the directors are limited by the agreement.
• F. The existence or performance of an agreement authorized by this section is not a ground for imposing personal liability on any member for the acts or debts of the corporation even if the agreement or its performance treats the corporation as if it were an unincorporated association or results in failure to observe the corporate formalities otherwise applicable to the matters governed by the agreement.
• G. Incorporators may act as members with respect to an agreement authorized by this section if no members have been admitted when the agreement is made.
• H. This section does not apply to, limit or invalidate agreements that are otherwise valid or authorized without regard to this section, including without limitation member agreements between or among some or all of the members or agreements between or among the corporation and one or more members. The procedure set forth in this section is not the exclusive method of agreement among members or among members and the corporation with respect to any of the matters described in this section.