Section 10A-1-3.05 shall not apply to this chapter. Instead:
(a)The certificate of incorporation must set forth:
(1)a corporate name for the corporation that satisfies the requirements of Article 5 of Chapter 1;
(2)the number of shares of stock the corporation is authorized to issue;
(3)the street and mailing addresses of the corporation’s initial registered office, the county within this state in which the street and mailing address is located, and the name of the corporation’s initial registered agent at that office as required by Article 5 of Chapter 1; and
(4)the name and address of each incorporator.
(b)The certificate of incorporation may set forth:
(1)the names and addresses of the individuals who are to serve as the initial directors;
(2)provisions not inconsistent with law
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Section 10A-1-3.05 shall not apply to this chapter. Instead:
(a) The certificate of incorporation must set forth:
(1) a corporate name for the corporation that satisfies the requirements of Article 5 of Chapter 1;
(2) the number of shares of stock the corporation is authorized to issue;
(3) the street and mailing addresses of the corporation’s initial registered office, the county within this state in which the street and mailing address is located, and the name of the corporation’s initial registered agent at that office as required by Article 5 of Chapter 1; and
(4) the name and address of each incorporator.
(b) The certificate of incorporation may set forth:
(1) the names and addresses of the individuals who are to serve as the initial directors;
(2) provisions not inconsistent with law regarding:
(i) the purpose or purposes for which the corporation is organized;
(ii) managing the business and regulating the affairs of the corporation;
(iii) defining, limiting, and regulating the powers of the corporation, its board of directors, and stockholders;
(iv) a par value for authorized stock or classes of stock; or
(v) subject to subsection (f), a provision imposing personal liability for the debts of the corporation on its stockholders to a specified extent and upon specified conditions; otherwise, the stockholders of a corporation shall not be personally liable for the payment of the corporation’s debts, except as they may be liable by reason of their own conduct or acts;
(3) any provision that under this chapter is permitted to be set forth in the certificate of incorporation or required or permitted to be set forth in the bylaws;
(4) a provision eliminating or limiting the liability of a director
or officer
to the corporation or its
stockholders
for money damages for any action taken, or any failure to take any action, as a director
or officer
, except liability for (i) the amount of a financial benefit received by a director
or officer
to which the director
or officer
is not entitled; (ii) an intentional infliction of harm on the corporation or the stockholders; (iii)
in the case of a director,
a violation of Section 10A-2A-8.32;
(iv) an intentional violation of criminal law;
or (v) in the case of an officer, any claim by or in the right of the corporation;
(5) a provision permitting or making obligatory indemnification of a director for liability as defined in Section 10A-2A-8.50 to any person for any action taken, or any failure to take any action, as a director, except liability for (i) receipt of a financial benefit to which the director is not entitled, (ii) an intentional infliction of harm on the corporation or its stockholders, (iii) a violation of Section 10A-2A-8.32, or (iv) an intentional violation of criminal law; and
(6) a provision limiting or eliminating any duty of a director or any other person to offer the corporation the right to have or participate in any, or one or more classes or categories of, business opportunities, before the pursuit or taking of the opportunity by the director or other person; provided that any application of that provision to an officer or a related person of that officer (i) also requires approval of that application by the board of directors, subsequent to the effective date of the provision, by action of qualified directors taken in compliance with the same procedures as are set forth in Section 10A-2A-8.60
;
and (ii) may be limited by the authorizing action of the board of directors.
(c) The certificate of incorporation need not set forth any of the corporate powers enumerated in Sections 10A-1-2.11, 10A-1-2.12, and 10A-1-2.13.
(d) Provisions of the certificate of incorporation may be made dependent upon facts objectively ascertainable outside the certificate of incorporation in accordance with Section 10A-2A-1.20(c).
(e) As used in this section, “related person” means:
(i) the individual’s spouse;
(ii) a child, stepchild, grandchild, parent, stepparent, grandparent, sibling, stepsibling, half sibling, aunt, uncle, niece, or nephew (or spouse of any such person) of the individual or of the individual’s spouse;
(iii) a natural person living in the same home as the individual;
(iv) an entity (other than the corporation or an entity controlled by the corporation) controlled by the individual or any person specified above in this definition;
(v) a domestic or foreign:
(A) business or nonprofit corporation (other than the corporation or an entity controlled by the corporation) of which the individual is a director
,
(B) unincorporated entity of which the individual is a general partner or a member of the governing authority
,
or
(C) individual, trust or estate for whom or of which the individual is a trustee, guardian, personal representative, or like fiduciary
,
or
(vi) a person that is, or an entity that is, controlled by an employer of the individual.
(f) The certificate of incorporation may not contain any provision that would impose liability on a stockholder for the attorney’s fees or expenses of the corporation or any other party in connection with an internal corporate claim, as defined in Section 10A-2A-2.07(d).
(g) The certificate of incorporation is part of a binding contract between the corporation and the stockholders, subject to the provisions of this chapter.
(h) For purposes of subsection (b)(4) only, unless the certificate of incorporation otherwise provides, “officer” means an individual appointed or elected in accordance with Section 10A-2A-8.40 as (i) president, chief executive officer, chief operating officer, chief financial officer, chief legal officer, secretary, controller, treasurer, or chief accounting officer of the corporation; and (ii) any officer of the corporation designated by resolution of the board of directors as an “officer” for purposes of subsection (b)(4). The board of directors may, from time to time, by resolution determine that one or more of the officers designated in accordance with subsection (h)(ii) shall no longer be an officer for purposes of subsection (b)(4), but no such resolution shall be effective as to any such officer, or any act or omission of any such officer, prior to the adoption of the resolution.
(i) No provision in the certificate of incorporation pursuant to subsection (b)(4) shall eliminate or limit the liability of a director or officer for any act or omission occurring prior to the date when the provision in the certificate of incorporation becomes effective. Any amendment, repeal, or elimination of a provision in the certificate of incorporation pursuant to subsection (b)(4) shall not affect its application with respect to an act or omission by a director or officer occurring before the amendment, repeal, or elimination unless the provision in the certificate of incorporation provides otherwise at the time of the act or omission.