STATE OF NEW YORK
________________________________________________________________________
4611
2011-2012 Regular Sessions
IN SENATE
April 13, 2011
___________
Introduced by Sen. RANZENHOFER -- read twice and ordered printed, and
when printed to be committed to the Committee on Corporations, Author-
ities and Commissions
AN ACT to amend the not-for-profit corporation law, in relation to its
recodification, reorganization, and overall operation of non-profit
entities in New York state; and to repeal certain provisions of such
law relating thereto
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Article 1 of the not-for-profit corporation law is REPEALED
2 and a new article 1 is added to read as follows:
3 ARTICLE 1
4 SHORT TITLE; DEFINITIONS; APPLICATION;
5 CERTIFICATES; MISCELLANEOUS
6 Section 101. Short title.
7 102. Definitions.
8 103. Application.
9 103-a. Relationship to other laws.
10 104. Certificates; requirements, signing, filing, effective-
11 ness.
12 104-a. Fees.
13 105. Certificates; corrections.
14 106. Certificates as evidence.
15 107. Corporate seal as evidence.
16 108. When notice or lapse of time unnecessary; notices
17 dispensed with when delivery is prohibited.
18 109. Reservation of power.
19 110. Effect of invalidity of part of chapter; severability.
20 111. References.
21 112. Actions or special proceedings by attorney-general.
22 114. Visitation of supreme court.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD09347-01-1
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1 § 101. Short title.
2 This chapter shall be known as the "Non-Profit Corporation Law" and
3 may be cited as "NPCL".
4 § 102. Definitions.
5 (a) As used in this chapter, unless the context otherwise requires,
6 the term:
7 (1) "Assets received for specific purposes" means funds or other real
8 or personal property of any kind, that may be given, granted, bequeathed
9 or devised to or otherwise vested in a corporation in trust for, or with
10 a direction to apply the same to, any particular purpose.
11 (2) "Authorized person" means a person, whether or not a member, offi-
12 cer, or director, who is authorized to act on behalf of a corporation or
13 foreign corporation.
14 (3) "Bonds" includes secured and unsecured bonds, debentures, and
15 notes.
16 (4) "By-laws" means the code or codes of rules adopted for the regu-
17 lation or management of the affairs of the corporation irrespective of
18 the name or names by which such rules are designated.
19 (5) "Certificate of incorporation" includes (i) the original certif-
20 icate of incorporation or any other instrument filed or issued under any
21 statute to form a domestic or foreign corporation, as amended, supple-
22 mented or restated by certificates of amendment, merger or consolidation
23 or other certificates or instruments filed or issued under any statute;
24 or (ii) a special act or charter creating a domestic or foreign corpo-
25 ration, as amended, supplemented or restated.
26 (6) "Charitable purposes" of a corporation means purposes contained in
27 the certificate of incorporation of the corporation that are charitable,
28 educational, religious, scientific, literary, cultural or for the
29 prevention of cruelty to children or animals.
30 (7) "Conducting of activities" of a corporation means the operations
31 for the conduct of which such corporation is formed and may constitute
32 "doing of business" or "transaction of business" as those terms are used
33 in the statutes of this state.
34 (8) "Corporation" or "domestic corporation" means a corporation (i)
35 formed under this chapter, or existing on its effective date and there-
36 tofore formed under any other general statute or by any special act of
37 this state, exclusively for a purpose or purposes, not for pecuniary
38 profit or financial gain, for which a corporation may be formed under
39 this chapter, and (ii) no part of the assets, income or profit of which
40 is distributable to, or inures to the benefit of, its members, directors
41 or officers except to the extent permitted under this statute.
42 (9) "Director" means any member of the governing board of a corpo-
43 ration, whether designated as director, trustee, manager, governor, or
44 by any other title. The term "board" means "board of directors".
45 (10) "Endowment fund" means an institutional fund, or any part there-
46 of, not wholly expendable by the corporation on a current basis under
47 the specific terms of all applicable gift instruments.
48 (11) "Foreign corporation" means a corporation formed under laws other
49 than the statutes of this state, which, if formed under the statutes of
50 this state, would be within the term "corporation or domestic corpo-
51 ration" as defined in this section. "Authorized", when used with
52 respect to a foreign corporation, means having authority under article
53 13 of this chapter to conduct activities of the corporation in this
54 state.
55 (12) "Gift instrument" means a will, deed, grant, conveyance, agree-
56 ment, memorandum, court order, writing or other governing document
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1 (including the terms of any institutional solicitations from which an
2 institutional fund resulted) under which property is transferred to or
3 acquired by a corporation as an institutional fund.
4 (13) "Governing board" means the body responsible for the management
5 of a corporation or of an institutional fund.
6 (14) "Historic dollar value" means the aggregate fair value in dollars
7 of (i) an endowment fund at the time it became an endowment fund, (ii)
8 each subsequent donation to the fund at the time it is made, and (iii)
9 each accumulation made pursuant to a direction in the applicable gift
10 instrument at the time the accumulation is added to the fund. The deter-
11 mination of historic dollar value made in good faith by the corporation
12 is conclusive.
13 (15) "Infant" or "minor" means any person who has not attained the age
14 of eighteen years.
15 (16) "Insolvent" means being unable to pay debts as they become due in
16 the usual course of the debtor's business.
17 (17) "Institutional fund" means a fund for the exclusive use, benefit
18 or purposes of a corporation, held either by the corporation itself or
19 on behalf of the corporation by a person or entity whose sole authority
20 with respect to the fund has been delegated by the corporation pursuant
21 to section 514 of this chapter, but does not include (i) a fund held for
22 a corporation by a trustee that is not a non-profit corporation (other
23 than a trustee whose sole authority with respect to the fund has been
24 delegated by the corporation pursuant to section 514 of this chapter),
25 or (ii) a fund in which a beneficiary that is not a non-profit corpo-
26 ration has an interest (other than possible rights that could arise upon
27 violation or failure of the purposes of the fund).
28 (18) "Member" means one having membership rights in a corporation in
29 accordance with the provisions of its certificate of incorporation or
30 by-laws.
31 (19) "Non-profit corporation" means a corporation as defined in
32 subparagraph (8) of this paragraph.
33 (20) "Office of a corporation" means the office the location of which
34 is stated in the certificate of incorporation of a domestic corporation,
35 or in the application for authority of a foreign corporation or an
36 amendment thereof. Such office need not be a place where activities are
37 conducted by such corporation.
38 (21) "Organized for charitable purposes" means that the corporation's
39 certificate of incorporation contains charitable purposes.
40 (22) "Process" means judicial process and all orders, demands, notices
41 or other papers required or permitted by law to be personally served on
42 a domestic or foreign corporation, for the purpose of acquiring juris-
43 diction of such corporation in any action or proceeding, civil or crimi-
44 nal, whether judicial, administrative, arbitrative or otherwise, in this
45 state or in the federal courts sitting in or for this state.
46 (23) "Person" means any association, corporation, joint stock company,
47 estate, general partnership (including any registered limited liability
48 partnership or foreign limited liability partnership), limited associ-
49 ation, limited liability company (including a professional service
50 limited liability company), foreign limited liability company (including
51 a foreign professional service limited liability company), joint
52 venture, limited partnership, natural person, real estate investment
53 trust, business trust or other trust, custodian, nominee or any other
54 individual or entity in its own or any representative capacity.
55 § 103. Application.
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1 (a) Except as otherwise provided in this section, this chapter applies
2 to every domestic corporation as defined in this article, and to every
3 foreign corporation as defined in this article which is authorized to
4 conduct or which conducts any activities in this state. This chapter
5 also applies to any other domestic corporation or foreign corporation of
6 any type or kind to the extent, if any, provided under this chapter or
7 any law governing such corporation and, if no such provision for appli-
8 cation is made, to the extent, if any, that the membership corporations
9 law applied to such corporation as of the effective date of this chap-
10 ter. A corporation formed by a special act of this state which has as
11 its principal purpose an education purpose and which is a member of the
12 university of the state of New York, is an "education corporation" under
13 section two hundred sixteen-a of the education law.
14 To the extent that the former membership corporations law or the
15 former general corporation law applied to it as of the effective date of
16 this chapter, the corresponding provisions of this chapter apply to a
17 corporation heretofore formed by or pursuant to a special act of this
18 state other than a religious corporation or an "education corporation"
19 under paragraph (b) of subdivision one of section two hundred sixteen-a
20 of the education law, if (1) its principal purpose is a religious, char-
21 itable or education purpose, and (2) it is operated, supervised or
22 controlled by or in connection with a religious organization.
23 This chapter also applies to any other corporation of any type or
24 kind, formed not for profit under any other chapter of the laws of this
25 state except a chapter of the consolidated laws, to the extent that
26 provisions of this chapter do not conflict with the provisions of such
27 unconsolidated law. If an applicable provision of such unconsolidated
28 law relates to a matter embraced in this chapter but is not in conflict
29 therewith, both provisions shall apply. Any corporation to which this
30 chapter is made applicable by this paragraph shall be treated as a
31 "corporation" or "domestic corporation" as such terms are used in this
32 chapter, except that the purposes of any such corporation formed or
33 formable under such unconsolidated law shall not thereby be extended.
34 For the purpose of this paragraph, the effective date of this chapter as
35 to corporations to which this chapter is made applicable by this para-
36 graph shall be September first, nineteen hundred seventy-three.
37 (b) The business corporation law does not apply to a corporation of
38 any type or kind to which this chapter applies. A reference in any stat-
39 ute of this state which makes a provision of the business corporation
40 law applicable to a corporation of any type or kind to which this chap-
41 ter is applicable or a reference in any statute of this state, other
42 than the former membership corporations law, which makes a provision of
43 the membership corporations law applicable to a corporation of any type
44 or kind shall be deemed and construed to refer to and make applicable
45 the corresponding provision, if any, of this chapter.
46 (c) If any provision in articles 1 to 13 inclusive of this chapter
47 conflicts with a provision of any subsequent articles or of any special
48 act under which a corporation to which this chapter applies is formed,
49 the provision in such subsequent article or special act prevails. A
50 provision of any such subsequent article or special act relating to a
51 matter referred to in articles 1 to 13 inclusive and not in conflict
52 therewith is supplemental and both shall apply. Whenever the board of a
53 corporation, formed under a special act, reasonably makes an interpreta-
54 tion as to whether a provision of the special act or this chapter
55 prevails, or both apply, such interpretation shall govern unless and
56 until a court determines otherwise, if such board has acted in good
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1 faith for a purpose which it reasonably believes to be in the best
2 interests of the corporation, provided however, that such interpretation
3 shall not bind any governmental body or officer.
4 (d) This chapter applies to commerce with foreign nations and among
5 the several states, and to corporations formed by or under any act of
6 congress, only to the extent permitted under the constitution and laws
7 of the United States.
8 (e) The enactment of this chapter shall not affect the duration of a
9 corporation which is existing on the effective date of this chapter. Any
10 such existing corporation, its members, directors and officers shall
11 have the same rights and be subject to the same limitations,
12 restrictions, liabilities and penalties as a corporation formed under
13 this chapter, its members, directors and officers.
14 (f) This chapter shall not affect any cause of action, liability,
15 penalty or action or special proceeding, which on the effective date of
16 this chapter, is accrued, existing, incurred or pending but the same may
17 be asserted, enforced, prosecuted or defended as if this chapter had not
18 been enacted.
19 § 103-a. Relationship to other laws.
20 (a) This chapter is not intended to authorize any entity to do any act
21 prohibited by any regulatory law.
22 (b) Except as expressly provided otherwise by or pursuant to a regula-
23 tory law:
24 (1) The filing by the department of state of any document under this
25 chapter shall not be effective to exempt an entity from any of the
26 requirements of any regulatory law.
27 (2) Failure to comply with a regulatory law in connection with an
28 action under this chapter shall not affect the valid existence following
29 the action of an entity that engaged in or was a party to the action.
30 (3) If an action under this chapter is enjoined or reversed because of
31 a violation of a regulatory law after the filing that effected the
32 action has become effective, the enjoining or reversal of the action
33 shall not affect the valid existence of an entity that was a party to
34 the action and the existence of any entity whose existence ceased in the
35 action shall be reinstated upon the filing with the department of state
36 by any interested party of a final order not subject to appeal enjoining
37 or reversing the action.
38 (c) Any document filed by the department of state or any action taken
39 by any person under the authority of this chapter in violation of any
40 regulatory law shall be ineffective as against New York state, including
41 the officers, departments, agencies, boards and commissions thereof,
42 unless and until the violation is cured.
43 (d) If and to the extent that a regulatory law sets forth provisions
44 relating to the government and regulation of the affairs of an entity
45 that are inconsistent with the provisions of this chapter on the same
46 subject, the provisions of the regulatory law shall control.
47 (e) As used in this section, the term "regulatory law" means any stat-
48 ute, other than an organic law, regulating the business of an entity and
49 any rule or regulation validly promulgated under such a statute by any
50 officer, department, agency, board or commission of New York state.
51 § 104. Certificates; requirements, signing, filing, effectiveness.
52 (a) Every certificate or other instrument relating to a domestic or
53 foreign corporation which is delivered to the department of state for
54 filing under this chapter, other than a certificate of existence under
55 section 1304 of this chapter, shall be in the English language, except
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1 that the corporate name may be in another language if written in English
2 letters or characters.
3 (b) Whenever such instrument is required to set forth the date of
4 incorporation or the date when a certificate of incorporation was filed,
5 the original certificate of incorporation is meant. This requirement
6 shall be satisfied, in the case of a corporation created by special act,
7 by setting forth the chapter number and year of passage of such act.
8 (c) Every such certificate required under this chapter to be signed
9 and delivered to the department of state shall, except as otherwise
10 specified in the section providing for such certificate, be signed
11 either by an officer, director, attorney-in-fact or duly authorized
12 person and include the name and the capacity in which such person signs
13 such certificate.
14 (d) If an instrument which is delivered to the department of state for
15 filing complies as to form with the requirements of law and the filing
16 fee and tax, if any, required by any statute of this state in connection
17 therewith have been paid, the instrument shall be filed and indexed by
18 the department of state. No certificate of authentication or conformity
19 or other proof shall be required with respect to any verification, oath
20 or acknowledgment of any instrument delivered to the department of state
21 under this chapter, if such verification, oath or acknowledgment
22 purports to have been made before a notary public, or person performing
23 the equivalent function, of one of the states, or any subdivision there-
24 of, of the United States or the District of Columbia. Without limiting
25 the effect of section 403 of this chapter, filing and indexing by the
26 department of state shall not be deemed a finding that a certificate
27 conforms to law, nor shall it be deemed to constitute an approval by the
28 department of state of the name of the corporation or the contents of
29 the certificate, nor shall it be deemed to prevent any person with
30 appropriate standing from contesting the legality thereof in an appro-
31 priate forum.
32 (e) Except as otherwise provided in this chapter, such instrument
33 shall become effective upon the filing thereof by the department of
34 state.
35 (f) The department of state shall make, certify and transmit a copy of
36 each such instrument to the clerk of the county in which the office of
37 the domestic or foreign corporation is or is to be located. The county
38 clerk shall file and index such copy.
39 § 104-a. Fees.
40 Except as otherwise provided, the department of state shall collect
41 the following fees pursuant to this chapter:
42 (a) For the reservation of a corporate name pursuant to section 303 of
43 this chapter, ten dollars.
44 (b) For the resignation of a registered agent for service of process
45 pursuant to section 305 of this chapter, thirty dollars.
46 (c) For service of process on the secretary of state pursuant to
47 section 306 or 307 of this chapter, forty dollars. If the service is in
48 an action brought solely to recover a sum of money not in excess of two
49 hundred dollars and the process is so endorsed, or the process is served
50 on behalf of a county, city, town or village or other subdivision of the
51 state, ten dollars.
52 (d) For filing a certificate of incorporation pursuant to section 402
53 of this chapter, seventy-five dollars.
54 (e) For filing a certificate of amendment pursuant to section 804 of
55 this chapter, thirty dollars.
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1 (f) For filing a certificate of change pursuant to section 805 of this
2 chapter, twenty dollars.
3 (g) For filing a restated certificate of incorporation pursuant to
4 section 807 of this chapter, thirty dollars.
5 (h) For filing a certificate of merger or consolidation pursuant to
6 section 904 of this chapter, thirty dollars.
7 (i) For filing a certificate of merger or consolidation of domestic
8 and foreign corporations pursuant to section 906 of this chapter, thirty
9 dollars.
10 (j) For filing a certified copy of an order of approval of the supreme
11 court pursuant to section 907 of this chapter, thirty dollars.
12 (k) For filing a certificate of dissolution pursuant to section 1003
13 of this chapter, thirty dollars.
14 (l) For filing a certificate of annulment of dissolution pursuant to
15 section 1012 of this chapter, thirty dollars.
16 (m) For filing an application by a foreign corporation for authority
17 to do business in New York state pursuant to section 1304 of this chap-
18 ter, one hundred thirty-five dollars.
19 (n) For filing a certificate of amendment of an application for
20 authority by a foreign corporation pursuant to section 1309 of this
21 chapter, thirty dollars.
22 (o) For filing a certificate of change of application for authority by
23 a foreign corporation pursuant to section 1310 of this chapter, twenty
24 dollars.
25 (p) For filing a certificate of surrender of authority pursuant to
26 section 1311 of this chapter, thirty dollars.
27 (q) For filing a statement of the termination of existence of a
28 foreign corporation pursuant to section 1312 of this chapter, thirty
29 dollars. There shall be no fee for the filing by an authorized officer
30 of the jurisdiction of incorporation of a foreign corporation of a
31 certificate that the foreign corporation has been dissolved or its
32 authority or existence has been otherwise terminated or cancelled in the
33 jurisdiction of its incorporation.
34 (r) For filing any other certificate or instrument, thirty dollars.
35 § 105. Certificates; corrections.
36 Any certificate or other instrument relating to a domestic or foreign
37 corporation filed by the department of state under this chapter may be
38 corrected with respect to any informality or error apparent on the face
39 or defect in the execution thereof including the deletion of any matter
40 not permitted to be stated therein. A certificate, entitled "Certificate
41 of correction of (correct title of certificate and name
42 of corporation)" shall be signed and delivered to the department of
43 state. It shall set forth the name of the corporation, the date the
44 certificate to be corrected was filed by the department of state, the
45 provision in the certificate as corrected or eliminated and if the
46 execution was defective, the proper execution. The filing of the certif-
47 icate by the department of state shall not alter the effective time of
48 the instrument being corrected, which shall remain as its original
49 effective time, and shall not affect any right or liability accrued or
50 incurred before such filing. A corporate name may not be changed or
51 corrected under this section.
52 § 106. Certificates as evidence.
53 (a) Any certificate or other instrument filed by the department of
54 state relating to a domestic or foreign corporation and containing
55 statements of fact required or permitted by law to be contained therein,
56 shall be received in all courts, public offices and official bodies as
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1 prima facie evidence of such facts and of the execution of such instru-
2 ment.
3 (b) Whenever by the laws of any jurisdiction other than this state,
4 any certificate by any officer in such jurisdiction or a copy of any
5 instrument certified or exemplified by any such officer may be received
6 as prima facie evidence of the incorporation, existence or capacity of
7 any foreign corporation incorporated in such jurisdiction, or claiming
8 so to be, such certificate when exemplified, or such copy of such
9 instrument when exemplified shall be received in all courts, public
10 offices and official bodies of this state, as prima facie evidence with
11 the same force as in such jurisdiction. Such certificate or certified
12 copy of such instrument shall be so received, without being exemplified,
13 if it is certified by the secretary of state, or official performing the
14 equivalent function as to corporate records, of such jurisdiction.
15 § 107. Corporate seal as evidence.
16 The presence of the corporate seal on a written instrument purporting
17 to be executed by authority of a domestic or foreign corporation shall
18 be prima facie evidence that the instrument was so executed.
19 § 108. When notice or lapse of time unnecessary; notices dispensed with
20 when delivery is prohibited.
21 (a) Whenever, under this chapter or the certificate of incorporation
22 or by-laws of any corporation or by the terms of any agreement or
23 instrument, a corporation or the board or any committee thereof is
24 authorized to take any action after notice to any person or persons or
25 after the lapse of a prescribed period of time, such action may be taken
26 without notice and without the lapse of such period of time, if at any
27 time before or after such action is completed the person or persons
28 entitled to such notice or entitled to participate in the action to be
29 taken or, in the case of a member, by his or her attorney-in-fact,
30 submit a signed waiver of notice of such requirements.
31 (b) Whenever any notice or communication is required to be given to
32 any person by this chapter, the certificate of incorporation or by-laws,
33 or by the terms of any agreement or instrument, or as a condition prece-
34 dent to taking any corporate action and communication with such person
35 is then unlawful under any statute of this state or of the United States
36 or any regulation, proclamation or order issued under said statutes,
37 then the giving of such notice or communication to such person shall not
38 be required and there shall be no duty to apply for license or other
39 permission to do so. Any affidavit, certificate or other instrument
40 which is required to be made or filed as proof of the giving of any
41 notice or communication required under this chapter shall, if such
42 notice or communication to any person is dispensed with under this para-
43 graph, include a statement that such notice or communication was not
44 given to any person with whom communication is unlawful. Such affida-
45 vit, certificate or other instrument shall be as effective for all
46 purposes as though such notice or communication had been personally
47 given to such person.
48 (c) Whenever any notice or communication is required or permitted by
49 this chapter to be given by mail, it shall, except as otherwise express-
50 ly provided in this chapter, be mailed to the person to whom it is
51 directed at the address designated by such person for that purpose or,
52 if none is designated, at such person's last known address. Such notice
53 or communication is given when deposited, with postage thereon prepaid,
54 in a post office or official depository under the exclusive care and
55 custody of the United States post office department. Such mailing shall
56 be by first class mail except where otherwise required by this chapter.
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1 § 109. Reservation of power.
2 The legislature reserves the right, at pleasure, to alter, amend,
3 suspend or repeal in whole or in part this chapter, or any certificate
4 of incorporation or any authority to do business in this state, of any
5 domestic or foreign corporation, whether or not existing or authorized
6 on the effective date of this chapter.
7 § 110. Effect of invalidity of part of chapter; severability.
8 If any provision of this chapter or application thereof to any person
9 or circumstances is held invalid, such invalidity shall not affect other
10 provisions or applications of this chapter which can be given effect
11 without the invalid provision or application, and to this end the
12 provisions of this chapter are declared severable.
13 § 111. References.
14 Unless otherwise stated, all references in this chapter to articles or
15 sections refer to the articles or sections of this chapter, and all
16 references in any section of this chapter to a lettered or numbered
17 paragraph or subparagraph refer to the paragraph or subparagraph so
18 lettered or numbered in such section.
19 § 112. Actions or special proceedings by attorney-general.
20 (a) The attorney-general may maintain an action or special proceeding:
21 (1) To annul the corporate existence or dissolve a corporation that
22 has acted beyond its capacity or power or to restrain it from carrying
23 on unauthorized activities;
24 (2) To annul the corporate existence or dissolve any corporation that
25 has not been duly formed;
26 (3) To restrain any person or persons from acting as a domestic or
27 foreign corporation within this state without being duly incorporated or
28 from exercising in this state any corporate rights, privileges or fran-
29 chises not granted to them by the law of the state;
30 (4) To procure a judgment removing a director of a corporation for
31 cause under section 706 of this chapter;
32 (5) To dissolve a corporation under article 11 of this chapter;
33 (6) To restrain a foreign corporation or to annul its authority to
34 carry on activities in this state under section 1303 of this chapter.
35 (7) To enforce any right given under this chapter to members, a direc-
36 tor or an officer of a corporation. The attorney-general shall have the
37 same status as the members.
38 (8) Upon application, ex parte, for an order to the supreme court at a
39 special term held within the judicial district where the office of the
40 corporation is located, and if the court so orders, to enforce any right
41 given under this chapter to members, a director or an officer of a
42 corporation. For such purpose, the attorney-general shall have the same
43 status as such members, director or officer.
44 (b) In an action or special proceeding brought by the attorney-general
45 under any of the provisions of this chapter:
46 (1) If an action, it is triable by jury as a matter of right.
47 (2) The court may confer immunity in accordance with the provisions of
48 article fifty of the criminal procedure law.
49 (3) A temporary restraining order to restrain the commission or
50 continuance of the unlawful acts which form the basis of the action or
51 special proceeding may be granted upon proof, by affidavit, that the
52 defendant or defendants have committed or are about to commit such acts.
53 Application for such restraining order may be made ex parte or upon such
54 notice as the court may direct.
55 (4) If the action or special proceeding is against a foreign corpo-
56 ration, the attorney-general may apply to the court at any stage thereof
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1 for the appointment of a temporary receiver of the assets in this state
2 of such foreign corporation, whenever it has assets or property of any
3 kind whatsoever, tangible or intangible, within this state.
4 (5) When final judgment in such action or special proceeding is
5 rendered against the defendant or defendants, the court may direct the
6 costs to be collected by execution against any or all of the defendants
7 or by order of attachment or other process against the person of any
8 director or officer of a corporate defendant.
9 (6) In connection with any such proposed action or special proceeding,
10 the attorney-general may take proof and issue subpoenas in accordance
11 with the civil practice law and rules.
12 (c) In any such action or special proceeding against a foreign corpo-
13 ration which has not designated the secretary of state as its agent for
14 service of process under section 304 of this chapter (Statutory desig-
15 nation of secretary of state as agent of domestic corporations formed
16 under article 4 of this chapter and authorized foreign corporations for
17 service of process), any of the following acts in this state by such
18 foreign corporation shall constitute the appointment by it of the secre-
19 tary of state as its agent upon whom process against such foreign corpo-
20 ration may be served.
21 (1) As used in this paragraph the term "resident" shall include indi-
22 viduals, domestic corporations of any type or kind and foreign corpo-
23 rations of any type or kind authorized to do business or carry on activ-
24 ities in the state.
25 (2) Any act done, or representation made as part of a course of the
26 solicitation of orders, or the issuance, or the delivery of contracts
27 for, or the sale of, property, or the performance of services to resi-
28 dents which involves or promotes a plan or scheme to defraud residents
29 in violation of the laws or the public policy of the state.
30 (3) Any act done as part of a course of conduct of business or activ-
31 ities in the solicitation of orders from residents for property, goods
32 or services, to be delivered or rendered within this state to, or on
33 their behalf, where the orders or contracts are executed by such resi-
34 dents within this state and where such orders or contracts are accompa-
35 nied or followed by an earnest money deposit or other down payment or
36 any installment payment thereon or any other form of payment, which
37 payment is either delivered in or transmitted from the state.
38 (4) Any act done as part of the conduct of a course of business or
39 activities with residents which defrauds such residents or otherwise
40 involves or promotes an attempt by such foreign corporation to circum-
41 vent the laws of this state.
42 (d) Paragraphs (b), (c), (d) and (e) of section 307 of this chapter
43 shall apply to process served under paragraph (c) of this section.
44 § 114. Visitation of supreme court.
45 Corporations, whether formed under general or special laws, with their
46 books and vouchers, shall be subject to the visitation and inspection of
47 a justice of the supreme court, or of any person appointed by the court
48 for that purpose. If it appears by the verified petition of a member or
49 creditor of any such corporation, that it, or its directors, officers or
50 agents, have misappropriated any of the funds or property of the corpo-
51 ration, or diverted them from the purpose of its incorporation, or that
52 the corporation has acquired property in excess of the amount which it
53 is authorized by law to hold, or has engaged in any business other than
54 that stated in its certificate of incorporation, the court may order
55 that notice of at least eight days, with a copy of the petition, be
56 served on the corporation and the persons charged with misconduct,
S. 4611 11
1 requiring them to show cause at a time and place specified, why they
2 should not be required to make and file an inventory and account of the
3 property, effects and liabilities of such corporation with a detailed
4 statement of its transactions during the twelve months next preceding
5 the granting of such order. On the hearing of such application, the
6 court may make an order requiring such inventory, account and statement
7 to be filed, and proceed to take and state an account of the property
8 and liabilities of the corporation, or may appoint a referee for that
9 purpose. When such account is taken and stated, after hearing all the
10 parties to the application, the court may enter a final order determin-
11 ing the amount of property so held by the corporation, its annual
12 income, whether any of the property or funds of the corporation have
13 been misappropriated or diverted to any other purpose than that for
14 which such corporation was incorporated, and whether such corporation
15 has been engaged in any activity not covered by its certificate of
16 incorporation. An appeal may be taken from the order by any party
17 aggrieved to the appellate division of the supreme court, and to the
18 court of appeals, as in a civil action. No corporation shall be required
19 to make and file more than one inventory and account in any one year,
20 nor to make a second account and inventory, while proceedings are pend-
21 ing for the statement of an account under this section.
22 § 2. Article 2 of the not-for-profit corporation law is REPEALED and a
23 new article 2 is added to read as follows:
24 ARTICLE 2
25 CORPORATE PURPOSES AND POWERS
26 Section 201. Purposes.
27 202. General and special powers.
28 203. Defense of ultra vires.
29 § 201. Purposes.
30 (a) A corporation, as defined in subparagraph (5), paragraph (a) of
31 section 102 of this chapter, may be formed under this chapter as
32 provided in paragraph (b) of this section unless it may be formed under
33 any other corporate law of this state in which event it may not be
34 formed under this chapter unless such other corporate law expressly so
35 provides.
36 (b) Notwithstanding any other provision of this chapter or any other
37 general law, a corporation of any type or kind to which this chapter
38 applies shall conduct no activities for pecuniary profit or financial
39 gain, whether or not in furtherance of its corporate purposes, except to
40 the extent that such activity supports or is incidental to its other
41 lawful activities then being conducted.
42 § 202. General and special powers.
43 (a) Each corporation, subject to any limitations provided in this
44 chapter or any other statute of this state or its certificate of incor-
45 poration, shall have power in furtherance of its corporate purposes:
46 (1) To have perpetual duration.
47 (2) To sue and be sued in all courts and to participate in actions and
48 proceedings, whether judicial, administrative, arbitrative or otherwise,
49 in like cases as natural persons.
50 (3) To have a corporate seal, and to alter such seal at pleasure, and
51 to use it by causing it or a facsimile to be affixed or impressed or
52 reproduced in any other manner.
53 (4) To purchase, receive, take by grant, gift, devise, bequest or
54 otherwise, lease, or otherwise acquire, own, hold, improve, employ, use
55 and otherwise deal in and with, real or personal property, or any inter-
56 est therein, wherever situated.
S. 4611 12
1 (5) To sell, convey, lease, exchange, transfer or otherwise dispose
2 of, or mortgage or pledge, or create a security interest in, all or any
3 of its property, or any interest therein, wherever situated.
4 (6) To purchase, take, receive, subscribe for, or otherwise acquire,
5 own, hold, vote, employ, sell, lend, lease, exchange, transfer, or
6 otherwise dispose of, mortgage, pledge, use and otherwise deal in and
7 with, bonds and other obligations, shares, or other securities or inter-
8 ests issued by others, whether engaged in similar or different business,
9 governmental, or other activities.
10 (7) To make capital contributions to other non-profit corporations.
11 (8) To make contracts, give guarantees and incur liabilities, borrow
12 money at such rates of interest as the corporation may determine, issue
13 its notes, bonds and other obligations, and secure any of its obli-
14 gations by mortgage or pledge of all or any of its property or any
15 interest therein, wherever situated.
16 (9) To lend money, invest and reinvest its funds, and take and hold
17 real and personal property as security for the payment of funds so
18 loaned or invested.
19 (10) To conduct the activities of the corporation and have offices and
20 exercise the powers granted by this chapter in any jurisdiction within
21 or without the United States.
22 (11) To elect or appoint officers, employees and other agents of the
23 corporation, define their duties, fix their reasonable compensation and
24 the reasonable compensation of directors, and to indemnify corporate
25 personnel. Such compensation shall be commensurate with services
26 performed.
27 (12) To adopt, amend or repeal by-laws, including emergency by-laws
28 made pursuant to subdivision seventeen of section twelve of the state
29 defense emergency act, relating to the activities of the corporation,
30 the conduct of its affairs, its rights or powers or the rights or powers
31 of its members, directors or officers.
32 (13) To make donations, irrespective of corporate benefit, for the
33 public welfare or for community fund, hospital, charitable, educational,
34 scientific, civic or similar purposes, and in time of war or other
35 national emergency in aid thereof.
36 (14) To be a member, associate or manager of other non-profit activ-
37 ities or to the extent permitted in any other jurisdiction to be an
38 incorporator of other corporations, and to be a partner in a redevelop-
39 ment company formed under the private housing finance law.
40 (15) To have and exercise all powers necessary to effect any or all of
41 the purposes for which the corporation is formed.
42 (16) To establish conditions and requirements for admission, mainte-
43 nance, and termination of members in the corporation.
44 (b) When any corporation shall have sold or conveyed any part of its
45 real property, the supreme court, notwithstanding a restriction in any
46 general or special law, may authorize it to purchase and hold from time
47 to time other real property, upon satisfactory proof that the value of
48 the property so purchased does not exceed the value of the property so
49 sold and conveyed within the three years next preceding the application.
50 (c) A corporation formed under general or special law to provide
51 parks, playgrounds or cemeteries, or buildings and grounds for camp or
52 grove meetings. Sunday school assemblies, cemetery purposes, temperance,
53 missionary, educational, scientific, musical and other meetings, subject
54 to the ordinances and police regulations of the county, city, town, or
55 village in which such parks, playgrounds, cemeteries, buildings and
56 grounds are situated, may appoint from time to time one or more special
S. 4611 13
1 police officers, with power to remove the same at pleasure. Such special
2 police officers shall preserve order in and about such parks, play-
3 grounds, cemeteries, buildings and grounds, and the approaches thereto,
4 and to protect the same from injury, and shall enforce the established
5 rules and regulations of the corporation. Every police officer so
6 appointed shall within fifteen days after his or her appointment and
7 before entering upon the duties of his or her office, take and subscribe
8 the oath of office prescribed in the thirteenth article of the constitu-
9 tion of the state of New York, which oath shall be filed in the office
10 of the county clerk of the county where such grounds are situated. A
11 police officer appointed under this section when on duty shall wear
12 conspicuously a metallic shield with the name of the corporation which
13 appointed him or her inscribed thereon. The compensation of police offi-
14 cers appointed under this section shall be paid by the corporation by
15 which such police officers are appointed.
16 (d) Any wilful trespass in or upon any of the parks, playgrounds,
17 buildings or grounds provided for the purposes mentioned in the preced-
18 ing paragraph, or upon the approaches thereto, and any wilful injury to
19 any of such parks, playgrounds, buildings or grounds, or to any trees,
20 shrubbery, fences, fixtures or other property thereon or pertaining
21 thereto, and any wilful disturbance of the peace thereon by intentional
22 breach of the rules and regulations of the corporation, is a misdemea-
23 nor.
24 (e) No corporation shall conduct activities in New York state under
25 any name, other than that appearing in its certificate of incorporation,
26 without compliance with the filing provisions of section one hundred
27 thirty of the general business law governing the conduct of business
28 under an assumed name.
29 § 203. Defense of ultra vires.
30 No act of a corporation and no transfer of real or personal property
31 to or by a corporation, otherwise lawful, shall be invalid by reason of
32 the fact that the corporation was without capacity or power to do such
33 act or to make or receive such transfer, but such lack of capacity or
34 power may be asserted:
35 (a) In an action by a member against the corporation to enjoin the
36 doing of any act or the transfer of real or personal property by or to
37 the corporation. If the unauthorized act or transfer sought to be
38 enjoined is being, or is to be, performed or made under any contract to
39 which the corporation is a party, the court may, if all of the parties
40 to the contract are parties to the action and if it deems the same to be
41 equitable, set aside and enjoin the performance of such contract, and in
42 so doing may allow to the corporation or to the other parties to the
43 contract, as the case may be, such compensation as may be equitable for
44 the loss or damage sustained by any of them from the action of the court
45 in setting aside and enjoining the performance of such contract;
46 provided that anticipated profits to be derived from the performance of
47 the contract shall not be awarded by the court as a loss or damage
48 sustained.
49 (b) In an action by or in the right of the corporation to procure a
50 judgment in its favor against an incumbent or former officer or director
51 of the corporation for loss or damage due to his or her unauthorized
52 act.
53 (c) In an action or special proceeding by the attorney-general to
54 annul or dissolve the corporation or to enjoin it from the carrying on
55 of unauthorized activities.
S. 4611 14
1 § 3. Article 3 of the not-for-profit corporation law is REPEALED and a
2 new article 3 is added to read as follows:
3 ARTICLE 3
4 CORPORATE NAME AND SERVICE OF PROCESS
5 Section 301. Corporate name; general.
6 302. Corporate name; exceptions.
7 303. Reservation of name.
8 304. Statutory designation of secretary of state as agent of
9 domestic corporations formed under article 4 of this
10 chapter and authorized foreign corporations for service
11 of process.
12 305. Registered agent for service of process.
13 306. Service of process.
14 307. Service of process on unauthorized foreign corporation.
15 308. Records and certificates of department of state.
16 § 301. Corporate name; general.
17 Except as otherwise provided in this chapter or otherwise provided by
18 law, the name of a domestic or foreign corporation:
19 (a) Shall, contain the word "corporation", "incorporated", "limited",
20 "association", "club", "foundation", "fund", "institute", "union", or
21 "society" or an abbreviation of one of such words; or, in the case of a
22 foreign corporation, it shall, for use in this state, add at the end of
23 its name one of such words or an abbreviation thereof.
24 (b) (1) Shall be such as to distinguish it from the names of corpo-
25 rations of any type or kind, or a fictitious name of an authorized
26 foreign corporation filed pursuant to article 13 of this chapter, as
27 such names appear on the index of names of existing domestic and author-
28 ized foreign corporations of any type or kind, including fictitious
29 names of authorized foreign corporations filed pursuant to article 13 of
30 this chapter, in the department of state, division of corporations, or a
31 name the right to which is reserved.
32 (2) Shall be such as to distinguish it from (i) the names of domestic
33 limited liability companies, (ii) the names of authorized foreign limit-
34 ed liability companies, (iii) the fictitious names of authorized foreign
35 limited liability companies, (iv) the names of domestic limited partner-
36 ships, (v) the names of authorized foreign limited partnerships, or (vi)
37 the fictitious names of authorized foreign limited partnerships, in each
38 case, as such names appear on the index of names of existing domestic
39 and authorized foreign limited liability companies, including fictitious
40 names of authorized foreign limited liability companies, in the depart-
41 ment of state, or on the index of names of existing domestic or author-
42 ized foreign limited partnerships, including fictitious names of author-
43 ized foreign limited partnerships, in the department of state, or names
44 the rights to which are reserved; provided, however, that no corporation
45 that was formed prior to the effective date of this clause and no
46 foreign corporation that was qualified to conduct activities in this
47 state prior to such effective date shall be required to change the name
48 or fictitious name it had on such effective date solely by reason of
49 such name or fictitious name being indistinguishable from the name or
50 fictitious name of any domestic or authorized foreign limited liability
51 company or limited partnership or from any name the right to which is
52 reserved by or on behalf of any domestic or foreign limited liability
53 company or limited partnership.
54 (c) Shall not contain any word or phrase, or any abbreviation or
55 derivative thereof, the use of which is prohibited or restricted by
S. 4611 15
1 section 404 of this chapter or any other statute of this state, unless
2 in the latter case the restrictions have been complied with.
3 (d) Shall not contain any word or phrase, or any abbreviation or
4 derivative thereof, in a context which indicates or implies that the
5 corporation, if domestic, is formed or, if foreign, is authorized for
6 any purpose or is possessed in this state of any power other than a
7 purpose for which, or a power with which, the domestic corporation may
8 be and is formed or the foreign corporation is authorized.
9 (e) (1) Shall not contain any of the following phrases, or any abbre-
10 viation or derivative thereof:
11 state police
12 state trooper
13 (2) Shall not contain any of the following words, or any abbreviation
14 or derivative thereof:
15 acceptance fidelity mortgage
16 annuity finance savings
17 assurance guaranty surety
18 bank indemnity title
19 bond insurance trust
20 casualty investment underwriter
21 doctor lawyer
22 endowment loan
23 unless the approval of the superintendent of banks or the superintendent
24 of insurance, as appropriate, has been obtained; or unless the word
25 "doctor", "lawyer", or the phrase "state police" or "state trooper" or
26 an abbreviation or derivation thereof, is used in the name of a corpo-
27 ration the membership of which is composed exclusively of doctors,
28 lawyers, state policemen or state troopers, respectively.
29 (f) Shall not contain any words or phrases, or any abbreviation or
30 derivative thereof in a context which will tend to mislead the public
31 into believing that the corporation is an agency or instrumentality of
32 the United States or the state of New York or a subdivision thereof or
33 is a public corporation.
34 (g) Shall not contain any word or phrase, or any abbreviation or
35 derivation thereof, which, separately, or in context, shall be indecent
36 or obscene or shall ridicule or degrade any person, group, belief, busi-
37 ness or agency of government or indicate or imply any unlawful activity.
38 (h) Notwithstanding any other provision of this chapter, may, in the
39 case of a foundation organized for the sole purpose of publishing the
40 literary works of a deceased person, include the word "doctor" or any
41 abbreviation or derivative thereof as part of its name if such word,
42 abbreviation or derivative is used to identify the person whose works
43 are to be published.
44 § 302. Corporate name; exceptions.
45 (a) Any reference to a corporation in this section except as otherwise
46 provided herein shall include both domestic and foreign corporations.
47 (b) The provisions of section 301 of this article:
48 (1) Shall not require any corporation, existing or authorized under
49 any statute on the effective date of this chapter, to add to, modify or
50 otherwise change its corporate name.
51 (2) Shall not prevent a corporation with which another corporation is
52 merged, or which is formed by the consolidation of one or more other
53 corporations from having the same name as any of such corporations if at
S. 4611 16
1 the time such other corporation was authorized or existing under any
2 statute of this state.
3 (3) Shall not prevent a foreign corporation from being authorized
4 under a name which is similar to the name of a corporation of any type
5 or kind existing or authorized under any statute, if the department of
6 state finds, upon proof by affidavit or otherwise as it may determine,
7 that a difference between such names exists in the terms or abbrevi-
8 ations indicating corporate character or otherwise, that the applicant
9 has conducted activities as a corporation under its said name for not
10 less than ten consecutive years immediately prior to the date of its
11 application, that the activities to be conducted in this state are not
12 the same or similar to the business or activities conducted by the
13 corporation with whose name it may conflict and that the public is not
14 likely to be confused or deceived, and if the applicant shall agree in
15 its application for authority to use with its corporate name, in this
16 state, to be placed immediately under or following such name, the words
17 "a ..... (name of jurisdiction of incorporation) corporation".
18 § 303. Reservation of name.
19 (a) A corporate name may be reserved by:
20 (1) Any person intending to form a domestic corporation.
21 (2) Any domestic corporation intending to change its name.
22 (3) Any foreign corporation intending to apply for authority to
23 conduct activities in this state.
24 (4) Any authorized foreign corporation intending to change its name.
25 (5) Any person intending to incorporate a foreign corporation and to
26 have it apply for authority to conduct activities in this state.
27 (6) Any domestic corporation intending to file the consent of the
28 attorney general to reinstate such corporation pursuant to section 1014
29 of this chapter.
30 (b) A fictitious name for use pursuant to section 1301 of this chapter
31 may be reserved by:
32 (1) Any foreign corporation intending to apply for authority to do
33 business in this state, pursuant to paragraph (d) of section 1301 of
34 this chapter.
35 (2) Any authorized foreign corporation intending to change its ficti-
36 tious name under which it conducts activities in this state.
37 (3) Any authorized foreign corporation which has changed its corporate
38 name in its jurisdiction, which new corporate name is not available in
39 this state.
40 (c) Application to reserve a corporate name shall be delivered to the
41 department of state. It shall set forth the name and address of the
42 applicant, the name to be reserved and a statement of the basis under
43 paragraph (a) or (b) of this section for the application. The secretary
44 of state may require the applicant to set forth in his or her applica-
45 tion the nature of the activities to be conducted by the corporation. If
46 the name is available for corporate use, the department of state shall
47 reserve the name for the use of the applicant for a period of sixty days
48 and issue a certificate of reservation. The prohibitions, restrictions
49 and qualifications set forth in section 301 of this article, section 302
50 of this article and section 404 of this chapter are not waived by the
51 issuance of a certificate of reservation. The certificate of reservation
52 shall include the name of the applicant, the name reserved and the date
53 of the reservation. The certificate of reservation (or in lieu thereof
54 an affidavit by the applicant or by his or her agent or attorney that
55 the certificate of reservation has been lost or destroyed) shall accom-
S. 4611 17
1 pany the certificate of incorporation or the application for authority
2 when either is delivered to the department of state.
3 (d) The secretary of state may extend the reservation for additional
4 periods of not more than sixty days each, upon the written request of
5 the applicant, his or her attorney or agent delivered to the department
6 of state, to be filed before the expiration of the reservation period
7 then in effect. Such request shall have attached to it the certificate
8 of reservation of name. Not more than two such extensions shall be
9 granted.
10 (e) Upon the request of the applicant, delivered to the department of
11 state before the expiration of the reserved period, together with the
12 certificate of reservation, the department shall cancel the reservation.
13 (f) Any application or request under this section shall be signed by
14 the applicant, his or her attorney or agent.
15 § 304. Statutory designation of secretary of state as agent of domestic
16 corporations formed under article 4 of this chapter and author-
17 ized foreign corporations for service of process.
18 (a) The secretary of state shall be the agent of every domestic corpo-
19 ration formed under article 4 of this chapter and every authorized
20 foreign corporation upon whom process against the corporation may be
21 served.
22 (b) Any designation by a domestic corporation formed under article 4
23 of this chapter or foreign corporation of the secretary of state as such
24 agent, which designation is in effect on the effective date of this
25 chapter, shall continue. Every domestic corporation formed under article
26 4 of this chapter or foreign corporation, existing or authorized on the
27 effective date of this chapter, which has not designated the secretary
28 of state as such agent, shall be deemed to have done so.
29 (c) Any designation by a domestic corporation formed under article 4
30 of this chapter or foreign corporation of an agent other than the secre-
31 tary of state which is in effect on the effective date of this chapter
32 shall continue in effect until changed or revoked as provided in this
33 chapter.
34 (d) Any designated post-office address to which the secretary of state
35 shall mail a copy of process served upon the secretary of state as agent
36 of a domestic corporation formed under article 4 of this chapter or
37 foreign corporation, shall continue until the filing of a certificate
38 under this chapter directing the mailing to a different post-office
39 address.
40 § 305. Registered agent for service of process.
41 (a) Every domestic corporation or authorized foreign corporation may
42 designate a registered agent in this state upon whom process against
43 such corporation may be served. The agent shall be a natural person who
44 is a resident of or has a business address in this state or a domestic
45 corporation or foreign corporation of any type or kind formed, or
46 authorized to do business in this state, under this chapter or under any
47 other statute of this state.
48 (b) Any such designation of a registered agent may be made, revoked or
49 changed as provided in this chapter.
50 (c) A registered agent may resign as such agent. A certificate, enti-
51 tled "Certificate of resignation of registered agent of ...........
52 (name of designating corporation) under section 305 of the Non-profit
53 Corporation Law", shall be signed by such registered agent and delivered
54 to the department of state. It shall set forth:
55 (1) That the registered agent resigns as registered agent for the
56 designating corporation.
S. 4611 18
1 (2) The date the certificate of incorporation or the application for
2 authority of the designating corporation was filed by the department of
3 state.
4 (3) That the registered agent has sent a copy of the certificate of
5 resignation by registered mail to the designating corporation at the
6 post-office address on file in the department of state specified for the
7 mailing of process or if such address is the address of the registered
8 agent, then to the office of the designating corporation in the juris-
9 diction of its formation or incorporation.
10 (d) The designation of a registered agent shall terminate thirty days
11 after the filing by the department of state of a certificate of resigna-
12 tion or a certificate containing a revocation or change of the desig-
13 nation, whichever is filed earlier. A certificate designating a new
14 registered agent may be delivered to the department of state by the
15 corporation within the thirty days or thereafter.
16 § 306. Service of process.
17 (a) Service of process on a registered agent may be made in the manner
18 provided by law for the service of a summons, as if the registered agent
19 was a defendant.
20 (b) Service of process on the secretary of state as agent of a domes-
21 tic corporation formed under article 4 of this chapter or an authorized
22 foreign corporation shall be made by personally delivering to and leav-
23 ing with the secretary of state or his or her deputy, or with any person
24 authorized by the secretary of state to receive such service, at the
25 office of the department of state in the city of Albany, duplicate
26 copies of such process together with the statutory fee, which fee shall
27 be a taxable disbursement. Service of process on such corporation shall
28 be complete when the secretary of state is so served. The secretary of
29 state shall promptly send one of such copies by certified mail, return
30 receipt requested, to such corporation, at the post office address, on
31 file in the department of state, specified for the purpose. If a domes-
32 tic corporation formed under article 4 of this chapter or an authorized
33 foreign corporation has no such address on file in the department of
34 state, the secretary of state shall so mail such copy to such corpo-
35 ration at the address of its office within this state on file in the
36 department.
37 (c) If an action or special proceeding is instituted in a court of
38 limited jurisdiction, service of process may be made in the manner
39 provided in this section if the office of the domestic corporation
40 formed under article 4 of this chapter or foreign corporation is within
41 the territorial jurisdiction of the court.
42 (d) Nothing in this section shall affect the right to serve process in
43 any other manner permitted by law.
44 § 307. Service of process on unauthorized foreign corporation.
45 (a) In any case in which a non-domiciliary would be subject to the
46 personal or other jurisdiction of the courts of this state under article
47 three of the civil practice law and rules, a foreign corporation not
48 authorized to conduct activities in this state is subject to a like
49 jurisdiction. In any such case, process against such foreign corporation
50 may be served upon the secretary of state as its agent. Such process may
51 issue in any court in this state having jurisdiction of the subject
52 matter.
53 (b) Service of such process upon the secretary of state shall be made
54 by personally delivering to and leaving with the secretary of state or
55 his or her deputy, or with any person authorized by the secretary of
56 state to receive such service, at the office of the department of state
S. 4611 19
1 in the city of Albany, a copy of such process together with the statuto-
2 ry fee, which fee shall be a taxable disbursement. Such service shall be
3 sufficient if notice thereof and a copy of the process are:
4 (1) Delivered personally without this state to such foreign corpo-
5 ration by a person and in the manner authorized to serve process by law
6 of the jurisdiction in which service is made, or
7 (2) Sent by or on behalf of the plaintiff to such foreign corporation
8 by registered mail with return receipt requested, to the post office
9 address specified for the purpose of mailing process, on file in the
10 department of state, or with any official or body performing the equiv-
11 alent function, in the jurisdiction of its incorporation, or if no such
12 address is there specified, to its registered or other office there
13 specified, or if no such office is there specified, to the last address
14 of such foreign corporation known to the plaintiff.
15 (c) (1) Where service of a copy of process was effected by personal
16 service, proof of service shall be by affidavit of compliance with this
17 section filed, together with the process, within thirty days after such
18 service, with the clerk of the court in which the action or special
19 proceeding is pending. Service of process shall be complete ten days
20 after such papers are filed with the clerk of the court.
21 (2) Where service of a copy of process was effected by mailing in
22 accordance with this section, proof of service shall be by affidavit of
23 compliance with this section filed, together with the process, within
24 thirty days after receipt of the return receipt signed by the foreign
25 corporation, or other official proof of delivery or of the original
26 envelope mailed. If a copy of the process is mailed in accordance with
27 this section, there shall be filed with the affidavit of compliance
28 either the return receipt signed by such foreign corporation or other
29 official proof of delivery or, if acceptance was refused by it, the
30 original envelope with a notation by the postal authorities that accept-
31 ance was refused. If acceptance was refused, a copy of the notice and
32 process together with the notice of the mailing by registered mail and
33 refusal to accept shall be promptly sent to such foreign corporation at
34 the same address by ordinary mail and the affidavit of compliance shall
35 so state. Service of process shall be complete ten days after such
36 papers are filed with the clerk of the court. The refusal to accept
37 delivery of the registered mail or to sign the return receipt shall not
38 affect the validity of the service and such foreign corporation refusing
39 to accept such registered mail shall be charged with knowledge of the
40 contents thereof.
41 (d) Service made as provided in this section shall have the same force
42 as personal service made within this state.
43 (e) Nothing in this section shall affect the right to serve process in
44 any other manner permitted by law.
45 § 308. Records and certificates of department of state.
46 The department of state shall keep a record of each process served
47 upon the secretary of state under this chapter, including the date of
48 service. It shall, upon request made within ten years of such service,
49 issue a certificate under its seal certifying as to the receipt of the
50 process by an authorized person, the date and place of such service and
51 the receipt of the statutory fee. Process served upon the secretary of
52 state under this chapter may be destroyed by the secretary of state
53 after a period of ten years from such service.
54 § 4. Article 4 of the not-for-profit corporation law is REPEALED and a
55 new article 4 is added to read as follows:
S. 4611 20
1 ARTICLE 4
2 FORMATION OF CORPORATIONS
3 Section 401.Incorporators.
4 402.Certificate of incorporation; contents.
5 403.Certificate of incorporation; effect.
6 404.Notices, approvals and consents.
7 405.Organization meeting.
8 406.Private foundation, as defined in the United States inter-
9 nal revenue code of 1986, as amended: provisions included
10 in the certificate of incorporation.
11 § 401. Incorporators.
12 One or more natural persons at least eighteen years of age may act as
13 incorporators of a corporation to be formed under this chapter.
14 § 402. Certificate of incorporation; contents.
15 (a) A certificate, entitled "Certificate of Incorporation of
16 .................... (name of corporation), under section 402 of the
17 Non-profit Corporation Law," shall be signed by each incorporator with
18 the name and address of such incorporator included in such certificate
19 and delivered to the department of state. It shall set forth:
20 (1) The name of the corporation.
21 (2) That the corporation is a corporation as defined in subparagraph
22 (8) of paragraph (a) of section 102 of this chapter and the purpose or
23 purposes for which it is formed.
24 (3) The county within the state in which the office of the corporation
25 is to be located. It may also set forth the post office address of an
26 office without the state, at which, pursuant to section 621 of this
27 chapter, the books and records of account of the corporation shall be
28 kept.
29 (4) The duration of the corporation if other than perpetual.
30 (5) A designation of the secretary of state as agent of the corpo-
31 ration upon whom process against it may be served and the post office
32 address within or without this state to which the secretary of state
33 shall mail a copy of any process against it served upon the secretary of
34 state.
35 (6) If the corporation is to have a registered agent, the name and
36 address within this state of such agent and a statement that the regis-
37 tered agent is to be the agent of the corporation upon whom process
38 against it may be served.
39 (7) The statements, if any, with respect to special non-profit corpo-
40 rations required under article 14 of this chapter.
41 (b) If the certificate is for the incorporation of an existing unin-
42 corporated association or group it shall have annexed thereto an affida-
43 vit of the subscribers of such certificate stating that they constitute
44 a majority of the members of a committee duly authorized to incorporate
45 such association or group.
46 (c) The certificate of incorporation may set forth any provision, not
47 inconsistent with this chapter or any other statute of the state, which
48 provision is (1) for the regulation of the internal affairs of the
49 corporation, including types or classes of membership and the distrib-
50 ution of assets on dissolution or final liquidation, (2) relating to
51 matters that are required or permitted to be set forth in the by-laws,
52 or (3) required by any governmental body or officer or other person or
53 body as a condition for incorporation.
54 (d) the certificate of incorporation may set forth a provision elimi-
55 nating or limiting the personal liability of directors to the corpo-
S. 4611 21
1 ration or its members for damages for any breach of duty in such capaci-
2 ty, provided that no such provision shall eliminate or limit:
3 (1) the liability of any director if a judgment or other final adjudi-
4 cation adverse to such director establishes that such director's acts or
5 omissions were in bad faith or involved intentional misconduct or a
6 knowing violation of law or that such director personally gained in fact
7 a financial profit or other advantage to which such director was not
8 legally entitled or that such director's acts violated section 719 of
9 this chapter, or
10 (2) the liability of any director for any act or omission prior to the
11 adoption of a provision authorized by this paragraph.
12 § 403. Certificate of incorporation; effect.
13 Upon the filing of the certificate of incorporation by the department
14 of state, the corporate existence shall begin, and such certificate
15 shall be conclusive evidence that all conditions precedent have been
16 fulfilled and that the corporation has been formed under this chapter,
17 except in an action or special proceeding brought by the attorney-gener-
18 al. Where the certificate is for the incorporation of an unincorporated
19 association or group, the members of such association or group shall be
20 members of the corporation so created, and all property owned by or held
21 for it shall belong to and vest in the corporation, subject to all
22 existing encumbrances and claims as if incorporation had not taken
23 place. Where the certificate is for the reincorporation of a corporation
24 created by special law for purposes for which a corporation may be
25 formed under this chapter, such reincorporation shall not effect a
26 dissolution of the corporation but shall be a continuation of its corpo-
27 rate existence, without affecting its then existing property rights or
28 liabilities, or the liabilities of its members or officers as such, but
29 thereafter it shall have only such rights, powers and privileges, and be
30 subject to such other duties and liabilities as a corporation formed for
31 the same purposes under this chapter. Notwithstanding the above, a
32 certificate of incorporation may set forth a date subsequent to filing,
33 not to exceed ninety days after filing, upon which date corporate exist-
34 ence shall begin.
35 § 404. Notices, approvals and consents.
36 (a) Every corporation the certificate of incorporation of which
37 includes among its purposes the formation of a trade or business associ-
38 ation shall provide a certified copy of such certificate, within thirty
39 days after the filing of such certificate, to the attorney general.
40 (b) (1) Every corporation certificate of incorporation of which
41 includes among its purposes the care of destitute, delinquent, aban-
42 doned, neglected or dependent children; the establishment or operation
43 of any adult care facility, or the establishment or operation of a resi-
44 dential program for victims of domestic violence as defined in subdivi-
45 sion four of section 459-a of the social services law, or the placing-
46 out or boarding-out of children or a home or shelter for unmarried
47 mothers, excepting the establishment or maintenance of a hospital or
48 facility providing health-related services as those terms are defined in
49 article twenty-eight of the public health law and a facility for which
50 an operating certificate is required by articles sixteen, nineteen,
51 twenty-two and thirty-one of the mental hygiene law; or the solicitation
52 of contributions for any such purpose or purposes, shall provide a
53 certified copy of the certificate of incorporation within thirty days
54 after the filing of such certificate, to the commissioner of the office
55 of children and family services or with respect to any adult care facil-
56 ity, the commissioner of health.
S. 4611 22
1 (2) A corporation whose statement of purposes specifically includes
2 the establishment or operation of a child day care center, as that term
3 is defined in section three hundred ninety of the social services law,
4 shall provide a certified copy of the certificate of incorporation, each
5 amendment thereto, and any certificate of merger, consolidation or
6 dissolution involving such corporation to the office of children and
7 family services within thirty days after the filing of such certificate,
8 amendment, merger, consolidation or dissolution with the department of
9 state. This requirement shall also apply to any foreign corporation
10 filing an application for authority under section 1304 of this chapter,
11 any amendments thereto, and any surrender of authority or termination of
12 authority in this state of such corporation.
13 (c) Every corporation the certificate of incorporation of which
14 includes among the purposes of the corporation, the establishment, main-
15 tenance and operation of a hospital service or a health service or a
16 medical expense indemnity plan or a dental expense indemnity plan as
17 permitted in article forty-three of the insurance law, shall provide a
18 certified copy of the certificate of incorporation, within thirty days
19 after the filing of such certificate, to the superintendent of insurance
20 and the commissioner of health.
21 (d) Every corporation the certificate of incorporation of which
22 includes a purpose for which a corporation might be chartered by the
23 regents of the university of the state of New York shall provide a
24 certified copy of the certificate of incorporation, within thirty days
25 after the filing of such certificate, to the commissioner of education.
26 (e) Every cemetery corporation, except those within the exclusionary
27 provisions of section 1503 of this chapter shall provide a certified
28 copy of the certificate of incorporation, within thirty days after the
29 filing of such certificate, to the cemetery board.
30 (f) Every certificate of incorporation of a fire corporation shall
31 have endorsed thereon or annexed thereto the approval, signed and
32 acknowledged, of the authorities of each city, village, town or fire
33 district in which the corporation proposes to act. Such authorities
34 shall be: in a city, the mayor; in a village, a majority of the trus-
35 tees; in a town, a majority of the members of the town board; in a fire
36 district, a majority of the fire commissioners. The members of the town
37 board of a town, or the trustees of a village, shall not consent to the
38 formation of a fire corporation as hereinbefore provided, until such
39 board shall have held a public hearing on the question of whether the
40 fire company should be incorporated. The notice shall be published at
41 least once in each week for two successive weeks in the official newspa-
42 per published in the county in which such fire corporation intends to
43 locate, prior to the regular meeting of such board designated by the
44 chairman of the board to consider the matter. Such notice shall contain
45 the name of the proposed company, the names of the persons signing the
46 certificate of incorporation, a brief description of the territory to be
47 protected by the fire company and that all persons interested shall be
48 heard. If no newspaper is published in the county the publication of the
49 notice shall be in a newspaper in an adjoining county selected by the
50 chairman of such board. All expenses in connection with such publication
51 shall be borne by the parties making the application and paid before the
52 hearing.
53 (g) Every corporation for prevention of cruelty to animals shall
54 provide a certified copy of the certificate of incorporation, within
55 thirty days after the filing of such certificate, to the approval of the
56 American Society for the Prevention of Cruelty to Animals.
S. 4611 23
1 (h) Every Young Men's Christian Association shall provide a certified
2 copy of the certificate of incorporation, within thirty days after the
3 filing of such certificate, to the chairman of the national board of
4 Young Men's Christian Associations.
5 (i) Every corporation the certificate of incorporation of which indi-
6 cates that the proposed corporation is to solicit funds for or otherwise
7 benefit the armed forces of the United States or of any foreign country,
8 or their auxiliaries, or of this or any other state or any territory,
9 shall provide a certified copy of the certificate of incorporation,
10 within thirty days after the filing of such certificate, to the chief of
11 staff.
12 (j) Every corporation the certificate of incorporation of which
13 includes among its purposes the organization of wage-earners for their
14 mutual betterment, protection and advancement; the regulation of hours
15 of labor, working conditions, or wages; or the performance, rendition or
16 sale of services as labor consultant, labor-management advisor, negotia-
17 tor, arbitrator, or specialist; and every certificate of incorporation
18 in which the name of the proposed corporation includes "union", "labor",
19 "council" or "industrial organization", or any abbreviation or deriva-
20 tive thereof in a context that indicates or implies that the corporation
21 is formed for any of the above purposes, shall provide a certified copy
22 of the certificate of incorporation, within thirty days after the filing
23 of such certificate to the industrial board of appeals.
24 (k) Every corporation the certificate of incorporation of which has as
25 its exclusive purpose the promotion of the interests of savings bank
26 life insurance or the promotion of the interests of member banks shall
27 provide a certified copy of the certificate of incorporation, within
28 thirty days after the filing of such certificate, to the superintendent
29 of banks.
30 (l) Every corporation the certificate of incorporation of which has as
31 its exclusive purpose the creation of an association of licensed insur-
32 ance agents, licensed insurance brokers, or licensed insurance under-
33 writers and every application for authority of a foreign corporation
34 which is an independent laboratory engaged in testing for public safety,
35 or which has as its purpose the advancement of corporate, governmental,
36 and institutional risk and insurance management, or which has as its
37 exclusive purpose the creation of an association of insurers, each of
38 which is duly licensed in this state or, if it does no business or is
39 not licensed in this state, is duly licensed in another state or foreign
40 jurisdiction shall provide a certified copy of the certificate of incor-
41 poration, within thirty days after the filing of such certificate, to
42 the superintendent of insurance.
43 (m) Every certificate of incorporation in which the name of the
44 proposed corporation includes the name of a political party shall have
45 endorsed thereon or annexed thereto the consent of the chairman of the
46 county committee of such political party of the county in which the
47 office of the corporation is to be located, except in cases where the
48 supreme court finds that the withholding of such consent of the county
49 chairman is unreasonable.
50 (n) Every corporation, the certificate of incorporation of which
51 includes in its name the words "American Legion," shall provide a certi-
52 fied copy of the certificate of incorporation, within thirty days after
53 the filing of such certificate, to the Department of New York, the Amer-
54 ican Legion.
55 (o) Every corporation the certificate of incorporation of which
56 includes among its corporate purposes or powers the establishment or
S. 4611 24
1 maintenance of any hospital, as defined in article twenty-eight of the
2 public health law, or the solicitation of contributions for any such
3 purpose, or purposes, shall provide a certified copy of the certificate
4 of incorporation within thirty days after the filing of such certif-
5 icate, to the public health council.
6 (p) Every medical corporation as defined in article forty-four of the
7 public health law and organized pursuant thereto and pursuant to this
8 chapter, shall provide a certified copy of the certificate of incorpo-
9 ration within thirty days after the filing of such certificate, to the
10 commissioner of health and the approval of the public health council.
11 (q) Every corporation the certificate of incorporation of which
12 includes among its corporate purposes or powers the establishment, or
13 operation of a facility for which an operating certificate from the
14 commissioner of mental health or mental retardation and developmental
15 disabilities is required by article thirty-one or sixteen of the mental
16 hygiene law, or the solicitation of contributions for any such purpose,
17 shall provide a certified copy of the certificate of incorporation with-
18 in thirty days after the filing of such certificate, to the commissioner
19 of mental health or mental retardation and developmental disabilities.
20 (r) Every health maintenance organization as defined in article
21 forty-four of the public health law and organized pursuant thereto and
22 pursuant to this chapter, shall provide a certified copy of the certif-
23 icate of incorporation within thirty days after the filing of such
24 certificate, to the commissioner of health.
25 (s) Every corporation the certificate of incorporation of which
26 includes among its purposes and powers the establishment or maintenance
27 of a hospital or facility providing health related services, as those
28 terms are defined in article twenty-eight of the public health law, or
29 the solicitation of contributions for any such purpose or two or more of
30 such purposes, shall provide a certified copy of the certificate of
31 incorporation, within thirty days after the filing of such certificate,
32 to the public health council.
33 (t) Every corporation the certificate of incorporation of which
34 includes among the purposes of the corporation, the establishment or
35 operation of a substance abuse, substance dependence, alcohol abuse,
36 alcoholism, or chemical abuse or dependence program, or the solicitation
37 of contributions for any such purpose, shall provide a certified copy of
38 the certificate of incorporation, within thirty days after the filing of
39 such certificate, to the commissioner of the office of alcoholism and
40 substance abuse services.
41 (u) Every corporation the certificate of incorporation of which
42 includes among the purposes of the corporation, the establishment, main-
43 tenance and operation of a non-profit property/casualty insurance compa-
44 ny, pursuant to article sixty-seven of the insurance law, shall provide
45 a certified copy of the certificate of incorporation, within thirty days
46 after the filing of such certificate, to the superintendent of insur-
47 ance.
48 (v) Every corporation the certificate of incorporation of which
49 includes in the name of the proposed corporation the terms: "school,"
50 "education," "elementary," "secondary," "kindergarten," "prekindergar-
51 ten," "preschool," "nursery school," "museum," "history," "historical,"
52 "historical society," "arboretum," "library," "college," "university" or
53 other term restricted by section two hundred twenty-four of the educa-
54 tion law; "conservatory," "academy," or "institute," or any abbreviation
55 or derivative of such terms, shall provide a certified copy of the
S. 4611 25
1 certificate of incorporation, within thirty days after the filing of
2 such certificate, to the commissioner of education.
3 § 405. Organization meeting.
4 (a) After the corporate existence has begun, an organization meeting
5 of the initial directors, or, if directors are not designated in the
6 certificate of incorporation, of the incorporator or incorporators,
7 shall be held within or without this state, for the purpose of adopting
8 by-laws, electing directors to hold office as provided in the certif-
9 icate of incorporation or the by-laws, and the transaction of such other
10 business as may come before the meeting. The meeting may be held at the
11 call of any director or, if directors are not designated in the certif-
12 icate of incorporation, any incorporator who shall give at least five
13 days' notice thereof by mail to each other director or incorporator,
14 which notice shall set forth the time and place of the meeting. Notice
15 need not be given to any director or incorporator who submits a signed
16 waiver of notice before or after the meeting, or who attends the meeting
17 without protesting, prior thereto or at its commencement, the lack of
18 notice. If there are more than two directors or incorporators, a majori-
19 ty shall constitute a quorum and the act of the majority of those pres-
20 ent at a meeting at which a quorum is present shall be the act of the
21 directors or incorporators. For the purposes of this section an incorpo-
22 rator or director may act in person or by proxy signed by such person or
23 his or her attorney in fact.
24 (b) Any action permitted to be taken at an organization meeting may be
25 taken without a meeting if each director or, if directors are not desig-
26 nated in the certificate of incorporation, each incorporator or his or
27 her attorney-in-fact signs an instrument setting forth the action so
28 taken.
29 (c) If a designated director or an incorporator dies or is for any
30 reason unable to act, the other or others may act. If there is no desig-
31 nated director or incorporator able to act, any person for whom an
32 incorporator is acting as agent may act in his or her stead, or if such
33 other person also dies or is for any reason unable to act, his or her
34 legal representative may act.
35 § 406. Private foundation, as defined in the United States internal
36 revenue code of 1986, as amended: provisions included in the certif-
37 icate of incorporation.
38 (a) The following provisions shall be included in the certificate of
39 incorporation of every domestic corporation, heretofore or hereafter
40 formed, to which this chapter applies in whole or in part, and which is
41 a "private foundation" as defined in section 509 of the United States
42 internal revenue code of 1986, as amended ("code"):
43 (1) The corporation shall distribute such amounts for each taxable
44 year at such time and in such manner as not to subject the corporation
45 to tax on undistributed income under section 4942 of the code.
46 (2) The corporation shall not engage in any act or self-dealing which
47 is subject to tax under section 4941 of the code.
48 (3) The corporation shall not retain any excess business holdings
49 which are subject to tax under section 4943 of the code.
50 (4) The corporation shall not make any investments in such manner as
51 to subject the corporation to tax under section 4944 of the code.
52 (5) The corporation shall not make any taxable expenditures which are
53 subject to tax under section 4945 of the code.
54 Except as provided in paragraph (b) of this section, this paragraph
55 applies notwithstanding any other provision of the certificate of incor-
S. 4611 26
1 poration or any direction in an instrument referred to in section 513 of
2 this chapter.
3 (b) Paragraph (a) of this section shall not apply to the extent that
4 it conflicts with any mandatory direction in an instrument by which
5 assets referred to in section 513 of this chapter were transferred to
6 the corporation prior to the effective date of this section unless such
7 conflicting direction is removed as impracticable under article eight of
8 the estates, powers and trusts law or in any other manner provided by
9 law. The absence of a specific provision in the section 513 instrument
10 for the current use of the principal of the fund, or the presence in
11 such an instrument of a provision, as to the principal of a fund, limit-
12 ed to the principal's being held, invested and reinvested, is not such a
13 conflicting mandatory direction.
14 (c) All references in this section to sections of the code shall be to
15 such sections as amended from time to time, or to corresponding
16 provisions of subsequent internal revenue laws.
17 (d) Nothing in this section shall impair the rights and powers of the
18 courts or the attorney general of this state.
19 § 5. Article 5 of the not-for-profit corporation law is REPEALED, and
20 a new article 5 is added to read as follows:
21 ARTICLE 5
22 CORPORATE FINANCE
23 Section 501.Stock and shares prohibited; membership certificates
24 authorized.
25 502.Members' capital contributions.
26 503.Capital certificates.
27 506.Bonds and security interests.
28 507.Fees, dues and assessments; fines and penalties.
29 508.Income from corporate activities.
30 509.Purchase, sale, mortgage and lease of real property.
31 510.Disposition of all or substantially all assets.
32 511.Petition for leave of court.
33 512.Investment authority.
34 513.Administration of assets received for specific purposes.
35 514.Delegation of investment management.
36 515.Dividends prohibited; certain distributions of cash or
37 property authorized.
38 516.Distributions to members upon termination of membership.
39 517.Liabilities of members.
40 519.Annual report of directors.
41 520.Reports of corporation.
42 521.Liability for failure to disclose required information.
43 522.Release of restrictions on use or investment.
44 § 501. Stock and shares prohibited; membership certificates authorized.
45 A corporation shall not have stock or shares or certificates for stock
46 or for shares, but may issue membership certificates or cards to
47 evidence membership, whether or not connected with any financial
48 contribution to the corporation, as provided in section 601 of this
49 chapter. The fact that the corporation is a non-profit corporation, and
50 whether the membership certificate or card is non-transferable or trans-
51 ferable, shall be noted conspicuously on the face or back of each such
52 certificate or card.
53 § 502. Members' capital contributions.
54 (a) The certificate of incorporation may provide that members, upon or
55 subsequent to admission, shall make capital contributions in the amount
S. 4611 27
1 specified therein. The requirement of a capital contribution may apply
2 to all members, or to the members of a single class, or to members of
3 different classes in different amounts or proportions in order of prior-
4 ity, if any. Except as otherwise provided in this chapter, the relative
5 rights, preferences and limitations of such certificates in the event of
6 dissolution may be fixed in the certificate of incorporation, subject to
7 the limitation that, unless the certificate of incorporation provides
8 otherwise, if the amounts payable on liquidation are not paid in full,
9 the capital certificates of the same class or preference shall share
10 ratably in repayment or redemption, in accordance with the sums which
11 would be payable on such certificates if all certificates were declared
12 and paid in full, and in any distribution of assets other than by way of
13 certificates in accordance with the sums which would be payable on such
14 distribution if all sums payable were discharged in full.
15 (b) A member's capital contribution shall consist of money or other
16 property, tangible or intangible, or labor or services actually received
17 by or performed for the corporation or for its benefit or in its forma-
18 tion or reorganization, a binding obligation to make the contribution in
19 cash or other property, a binding obligation to perform services having
20 an agreed value or a combination thereof. In the absence of fraud in the
21 transaction, the judgment of the board as to the value of the consider-
22 ation received by the corporation shall be conclusive.
23 (c) A member's capital contribution shall be evidenced by a capital
24 certificate. A capital certificate shall be non-transferable, except as
25 otherwise provided in the certificate of incorporation of a corporation
26 that is not organized for charitable purposes.
27 (d) A member's capital contribution shall not be repaid or redeemed by
28 the corporation except upon dissolution of the corporation or upon
29 redemption of the capital certificate as provided in this chapter. A
30 corporation may provide in its certificate of incorporation that its
31 capital certificates, or some of them, shall be redeemable, in whole or
32 in part, at the option of the corporation only, at such price or prices
33 (not to exceed the amount of the capital contribution), within such
34 period or periods, and on such terms and conditions, not inconsistent
35 with this chapter, as are stated in the certificate of incorporation.
36 (e) In the event of a default in payment or other performance under
37 the instrument evidencing a member's binding obligation under this
38 section, the corporation may pursue such remedies as are provided in
39 such instrument or a related agreement or under law.
40 § 503. Capital certificates.
41 (a) Each capital certificate shall be signed by the chairman or vice-
42 chairman of the board or the president or a vice-president and the
43 secretary or an assistant secretary or the treasurer or an assistant
44 treasurer of the corporation, and may be sealed with the seal of the
45 corporation or a facsimile thereof. The signatures of the officers upon
46 a certificate may be facsimiles if the certificate is countersigned by a
47 transfer agent or registered by a registrar other than the corporation
48 itself or its employee. In case any officer who has signed or whose
49 facsimile signature has been placed upon a certificate shall have ceased
50 to be such officer before such certificate is issued it may be issued by
51 the corporation with the same effect as if he were such officer at the
52 date of issue.
53 (b) Each capital certificate shall when issued state upon the face
54 thereof:
55 (1) The name of the member to whom issued.
S. 4611 28
1 (2) The amount of the member's capital contribution evidenced by such
2 certificate.
3 (3) If applicable, that the certificate of incorporation provides that
4 the capital certificate is transferable.
5 (c) The fact that the corporation is a non-profit corporation, and
6 that the capital certificate is non-transferable or is transferable
7 shall be noted conspicuously on the face or back of each such certif-
8 icate.
9 § 506. Bonds and security interests.
10 (a) No corporation shall issue bonds except for money or other proper-
11 ty, tangible or intangible, or labor or services actually received by or
12 performed for the corporation or for its benefit or in its formation or
13 reorganization, or a combination thereof. In the absence of fraud in the
14 transaction, the judgment of the board as to the value of the consider-
15 ation received by the corporation shall be conclusive.
16 (b) A corporation may pay reasonable interest on its bonds, may issue
17 its bonds at a reasonable discount and may pay a reasonable premium for
18 the redemption thereof prior to maturity, but the holders of its bonds
19 shall not be entitled at any time to receive any part of the income or
20 profit of the corporation nor at maturity to receive more than the prin-
21 cipal sum thereof plus interest due and accrued thereon. In the absence
22 of fraud in the transaction, the judgment of the board as to the reason-
23 ableness of any such interest, discount or premium shall be conclusive.
24 However, with respect to bonds not a part of a public offering, notwith-
25 standing the terms of the instrument, no member of a corporation shall
26 be entitled to receive, directly or indirectly, as a holder or benefici-
27 ary of such bond, prior to maturity or redemption, more than simple
28 interest thereon at a rate equal to the higher of (1) the maximum inter-
29 est authorized pursuant to section 5-501 of the general obligations law
30 or (2) one percent over the prime rate of interest generally prevailing
31 on the interest due date in the Federal Reserve District of New York,
32 nor at maturity or redemption, more than the principal sum thereof plus
33 any interest, not exceeding the maximum interest herein specified, due
34 and accrued thereon.
35 (c) A corporation may, in its certificate of incorporation or by-laws,
36 confer upon the holders of any bonds issued or to be issued by the
37 corporation, rights to inspect the corporate books and records and, upon
38 default of interest or principal, to vote in the election of directors.
39 The certificate of incorporation or the by-laws may apportion the number
40 of votes that may be cast with respect to bonds on the basis of the
41 amount of bonds held.
42 (d) The board may authorize any mortgage or pledge of, or the creation
43 of a security interest in, all or any part of the corporation's personal
44 property, or any interest therein. Unless the certificate of incorpo-
45 ration provides otherwise, no vote or consent of the members shall be
46 required to approve such action by the board.
47 (e) In the event of a default in payment or other performance under
48 the subscriber's binding obligation to pay the purchase price or perform
49 services, the corporation may pursue such remedies as are provided in
50 such instrument or a related agreement or under law.
51 (f) A corporation may place in escrow bonds to be issued for a binding
52 obligation to pay cash or other property or to perform future services,
53 or make other arrangements to restrict the transfer of such bonds.
54 § 507. Fees, dues and assessments; fines and penalties.
55 (a) If authorized by its certificate of incorporation or by-laws and
56 subject to any limitations stated therein a corporation may levy initi-
S. 4611 29
1 ation fees, dues and assessments on its members, whether or not they are
2 voting members, and may impose reasonable fines or other penalties upon
3 its members for violations of its rules and regulations.
4 (b) Initiation fees, dues or assessments may be levied on all classes
5 of members alike or in different amounts or proportions for different
6 classes of members, as the certificate of incorporation or the by-laws
7 may provide, but in all cases the fees, dues and assessments payable by
8 members of one class shall be determined upon the same basis.
9 (c) The certificate of incorporation or the by-laws may contain such
10 provisions as are deemed necessary to enforce the collection of fees,
11 dues, assessments, fines or other penalties, including provisions for
12 the termination of membership, upon reasonable notice, for non-payment
13 of such fees, dues, assessments, fines or other penalties, and
14 provisions for reinstatement of membership.
15 (d) Subject to the provisions of this chapter, the certificate of
16 incorporation may provide that members paying initiation fees, dues or
17 assessments shall, upon dissolution of the corporation, have distribu-
18 tive rights in its assets. The distributive rights may be different for
19 different classes of members, but in all cases the rights of members of
20 one class shall be the same.
21 § 508. Income from corporate activities.
22 A corporation whose lawful activities involve among other things the
23 charging of fees or prices for its services or products shall have the
24 right to receive such income and, in so doing, may make an incidental
25 profit. All such incidental profits shall be applied to the maintenance,
26 expansion or operation of the lawful activities of the corporation, and
27 in no case shall be divided or distributed in any manner whatsoever
28 among the members, directors, or officers of the corporation.
29 § 509. Purchase, sale, mortgage and lease of real property.
30 No purchase of real property shall be made by a corporation and no
31 corporation shall sell, mortgage or lease real property, unless author-
32 ized by the vote of two-thirds of the entire board, provided that if
33 there are twenty-one or more directors, the vote of a majority of the
34 entire board shall be sufficient.
35 § 510. Disposition of all or substantially all assets.
36 (a) A sale, lease, exchange or other disposition of all, or substan-
37 tially all, the assets of a corporation may be made upon such terms and
38 conditions and for such consideration, which may consist in whole or in
39 part of cash or other property, real or personal, including shares,
40 bonds or other securities of any other domestic or foreign corporation
41 or corporations of any type or kind, as may be authorized in accordance
42 with the following procedure:
43 (1) If there are members entitled to vote thereon, the board shall
44 adopt a resolution recommending such sale, lease, exchange or other
45 disposition. The resolution shall specify the terms and conditions of
46 the proposed transaction, including the consideration to be received by
47 the corporation and the eventual disposition to be made of such consid-
48 eration, together with a statement that the dissolution of the corpo-
49 ration is or is not contemplated thereafter. The resolution shall be
50 submitted to a vote at a meeting of members entitled to vote thereon,
51 which may be either an annual or a special meeting. Notice of the meet-
52 ing shall be given to each member and each holder of bonds of the corpo-
53 ration, whether or not entitled to vote. At such meeting by two-thirds
54 vote as provided in paragraph (c) of section 613 of this chapter the
55 members may approve the proposed transaction according to the terms of
56 the resolution of the board, or may approve such sale, lease, exchange
S. 4611 30
1 or other disposition and may authorize the board to modify the terms and
2 conditions thereof.
3 (2) If there are no members entitled to vote thereon, such sale,
4 lease, exchange or other disposition shall be authorized by the vote of
5 at least two-thirds of the entire board, provided that if there are
6 twenty-one or more directors, the vote of a majority of the entire board
7 shall be sufficient.
8 (3) If the corporation is, or would be if formed under this chapter,
9 organized for charitable purposes or holds assets received for specific
10 purposes such sale, lease, exchange or other disposition other than to
11 another corporation organized for charitable purposes and controlled by,
12 or under common control with, the corporation, shall in addition require
13 leave of the supreme court in the judicial district or of the county
14 court of the county in which the corporation has its office or principal
15 place of carrying out the purposes for which it was formed.
16 (b) After such authorization the board in its discretion may abandon
17 such sale, lease, exchange or other disposition of assets, subject to
18 the rights of third parties under any contract relating thereto, without
19 further action or approval.
20 § 511. Petition for leave of court.
21 (a) A corporation required by law to obtain leave of court to sell,
22 lease, exchange or otherwise dispose of all or substantially all its
23 assets, other than to another corporation organized for charitable
24 purposes and controlled by, or under common control with, the corpo-
25 ration, shall present a verified petition to the supreme court of the
26 judicial district, or the county court of the county, wherein the corpo-
27 ration has its office or principal place of carrying out the purposes
28 for which it was formed. The petition shall set forth:
29 (1) The name of the corporation, the law under or by which it was
30 incorporated.
31 (2) The names of its directors and principal officers, and their plac-
32 es of residence.
33 (3) The activities of the corporation.
34 (4) A description, with reasonable certainty, of the assets to be
35 sold, leased, exchanged, or otherwise disposed of, or a statement that
36 it is proposed to sell, lease, exchange or otherwise dispose of all or
37 substantially all the corporate assets more fully described in a sched-
38 ule attached to the petition; and a statement of the fair value of such
39 assets, and the amount of the corporation's debts and liabilities and
40 how secured.
41 (5) The consideration to be received by the corporation and the dispo-
42 sition proposed to be made thereof, together with a statement that the
43 dissolution of the corporation is or is not contemplated thereafter.
44 (6) That the consideration and the terms of the sale, lease, exchange
45 or other disposition of the assets of the corporation are fair and
46 reasonable to the corporation, and that the purposes of the corporation,
47 or the interests of its members will be promoted thereby, and a concise
48 statement of the reasons therefor.
49 (7) That such sale, lease, exchange or disposition of corporate
50 assets, has been recommended or authorized by vote of the directors in
51 accordance with law, at a meeting duly called and held, as shown in a
52 schedule annexed to the petition setting forth a copy of the resolution
53 granting such authority with a statement of the vote thereon.
54 (8) Where the consent of members of the corporation is required by
55 law, that such consent has been given, as shown in a schedule annexed to
56 the petition setting forth a copy of such consent, if in writing, or of
S. 4611 31
1 a resolution giving such consent, adopted at a meeting of members duly
2 called and held, with a statement of the vote thereon.
3 (9) A prayer for leave to sell, lease, exchange or otherwise dispose
4 of all or substantially all the assets of the corporation as set forth
5 in the petition.
6 (b) Upon presentation of the petition, the court shall direct that a
7 minimum of fifteen days notice be given by mail or in person to the
8 attorney general, and in its discretion may direct that notice of the
9 application be given, personally or by mail, to any person interested
10 therein, as member, officer or creditor of the corporation. The court
11 shall have authority to shorten the time for service on the attorney
12 general upon a showing of good cause. The notice shall specify the time
13 and place, fixed by the court, for a hearing upon the application. Any
14 person interested, whether or not formally notified, may appear at the
15 hearing and show cause why the application should not be granted.
16 (c) If the corporation be insolvent, or if its assets be insufficient
17 to liquidate its debts and liabilities in full, the application shall
18 not be granted unless all the creditors of the corporation shall have
19 been served, personally or by mail, with a notice of the time and place
20 of the hearing.
21 (d) If it shall appear, to the satisfaction of the court, that the
22 consideration and the terms of the transaction are fair and reasonable
23 to the corporation and that the purposes of the corporation or the
24 interests of the members will be promoted, it may authorize the sale,
25 lease, exchange or other disposition of all or substantially all the
26 assets of the corporation, as described in the petition, for such
27 consideration and upon such terms as the court may prescribe. The order
28 of the court shall direct the disposition of the consideration to be
29 received thereunder by the corporation.
30 § 512. Investment authority.
31 In addition to an investment otherwise authorized by law or by the
32 applicable gift instrument, and without restriction to investments a
33 fiduciary may make, the governing board, subject to any specific limita-
34 tions set forth in the applicable gift instrument or in the applicable
35 law other than law relating to investments by a fiduciary, and subject
36 to the provisions of section 717 of this chapter, may:
37 (a) invest and reinvest an institutional fund, in the name of the
38 corporation or in the name of a nominee of the corporation, in any real
39 or personal property deemed advisable by the governing board, whether or
40 not it produces a current return, including mortgages, stocks, bonds,
41 debentures, and other securities of profit or non-profit corporations,
42 shares in or obligations of associations, partnerships, or individuals,
43 and obligations of any government or subdivision or instrumentality
44 thereof;
45 (b) retain property contributed by a donor to an institutional fund
46 for as long as the governing board deems advisable, taking into account
47 any request by the donor to do so;
48 (c) include all or any part of an institutional fund in any pooled or
49 common fund available for investment which is maintained by the corpo-
50 ration; and
51 (d) invest all or any part of an institutional fund in any other
52 pooled or common fund available for investment, including shares or
53 interests in regulated investment companies, mutual funds, common trust
54 funds, investment partnerships, real estate investment trusts, or simi-
55 lar organizations in which funds are commingled and investment determi-
56 nations are made by persons other than the governing board.
S. 4611 32
1 § 513. Administration of assets received for specific purposes.
2 (a) A corporation shall hold full ownership rights in any assets
3 consisting of funds or other real or personal property of any kind, that
4 may be given, granted, bequeathed or devised to or otherwise vested in
5 such corporation in trust for, or with a direction to apply the same to,
6 any purpose specified in its certificate of incorporation, and shall not
7 be deemed a trustee of an express trust of such assets.
8 (b) Except as may be otherwise permitted under article eight of the
9 estates, powers and trusts law or section 522 of this article, the
10 governing board shall apply all assets thus received to the purposes
11 specified in the gift instrument and to the payment of the reasonable
12 and proper expenses of administration of such assets. The governing
13 board shall cause accurate accounts to be kept of such assets separate
14 and apart from the accounts of other assets of the corporation. Unless
15 the terms of the particular gift instrument provide otherwise, the trea-
16 surer shall make an annual report to the members (if there be members)
17 or to the governing board (if there be no members) concerning the assets
18 held under this section and the use made of such assets and of the
19 income thereof.
20 (c) The governing board may appropriate for expenditure for the uses
21 and purposes for which an endowment fund is established so much of the
22 net appreciation, realized (with respect to all assets) and unrealized
23 (with respect only to readily marketable assets), in the fair value of
24 the assets of an endowment fund over the historic dollar value of the
25 fund as is prudent under the standard established by section 717 of this
26 chapter. This section is not intended to restrict the authority of the
27 governing board to expend funds as permitted under other law, the terms
28 of the applicable gift instrument or the certificate of incorporation of
29 the corporation.
30 (d) Paragraph (c) of this section does not apply if the applicable
31 gift instrument indicates the donor's intention that net appreciation
32 shall not be expended. A restriction upon the expenditure of net appre-
33 ciation may not be implied from a designation of a gift as an endowment,
34 or from a direction or authorization in the applicable gift instrument
35 to use only "income," "interest," "dividends," or "rents, issues or
36 profits," or "to preserve the principal intact," or a direction which
37 contains other words of similar import. This rule of construction
38 applies to gift instruments executed or in effect before or after the
39 effective date of paragraph (c) of this section.
40 § 514. Delegation of investment management.
41 (a) Except as otherwise provided by the applicable gift instrument,
42 the governing board may (1) delegate to its committees, officers or
43 employees of the corporation or the fund, or agents, including invest-
44 ment counsel, the authority to act in place of the governing board in
45 investment and reinvestment of institutional funds, (2) contract with
46 independent investment advisors, investment counsel or managers, banks,
47 or trust companies, so to act, and (3) authorize the payment of compen-
48 sation for investment advisory or management services, advisors, invest-
49 ment counsel or managers, banks or trust companies, so to act. Each
50 contract pursuant to which authority is so delegated shall provide that
51 it may be terminated by the governing board at any time, without penal-
52 ty, upon not more than sixty days' notice.
53 (b) The governing board shall exercise the standard of care required
54 by section 717 of this chapter in the selection of persons to whom
55 authority is delegated or with whom contracts are made under paragraph
56 (a) of this section and in the continuation or termination of such
S. 4611 33
1 delegation or contracts. The governing board shall be relieved of all
2 liability for the investment and reinvestment of institutional funds by,
3 and for the other acts or omissions of, persons to whom authority is so
4 delegated or with whom contracts are so made.
5 § 515. Dividends prohibited; certain distributions of cash or property
6 authorized.
7 (a) A corporation shall not pay dividends or distribute any part of
8 its income or profit to its members, directors, or officers.
9 (b) A corporation may pay compensation in a reasonable amount to
10 members, directors, or officers for services rendered, and may make
11 distributions of cash or property to members upon dissolution or final
12 liquidation as permitted by this chapter.
13 (c) A corporation may confer benefits upon members or nonmembers in
14 conformity with its purposes, may redeem its capital certificates, and
15 may make other distributions of cash or property to its members or
16 former members, directors, or officers prior to dissolution or final
17 liquidation, as authorized by this article, except when the corporation
18 is currently insolvent or would thereby be made insolvent or rendered
19 unable to carry on its corporate purposes, or when the fair value of the
20 corporation's assets remaining after such conferring of benefits, or
21 redemption, or other distribution would be insufficient to meet its
22 liabilities.
23 § 516. Distributions to members upon termination of membership.
24 (a) Except as provided in this chapter or the certificate of incorpo-
25 ration or the by-laws, the interest of a member in the property of a
26 corporation shall terminate upon the termination of his membership,
27 whether by expiration of the term of membership, or by the death, volun-
28 tary withdrawal, or expulsion of the member, or otherwise. Such termi-
29 nation shall be without prejudice to his rights, if any, as holder of a
30 capital certificate.
31 (b) In the event of a termination of membership, whether voluntary or
32 involuntary, and subject to any restrictions contained in this chapter
33 or the certificate of incorporation or the by-laws, a corporation may at
34 its option thereafter call for redemption any capital certificate or
35 certificates held by such former member, and redeem the same upon
36 payment of a sum of money equal to the redemption price thereof if such
37 certificates are by their terms redeemable, or upon payment of a sum of
38 money equal to the amount of the capital contribution evidenced by such
39 certificates if they are not by their express terms redeemable.
40 (c) If a member who would upon dissolution of the corporation have
41 distributive rights in its assets under paragraph (d) of section 507 of
42 this article is expelled other than for cause pursuant to a provision of
43 the certificate of incorporation or by-laws authorizing such expulsion,
44 and the corporation is dissolved within a period of five years after the
45 date of such expulsion, the expelled member shall be entitled to share
46 in the distribution of assets in the same manner as other members of the
47 same class entitled to share at that time, except that his share shall
48 be charged with any arrearages and all dues and assessments which he
49 would have paid if he had remained a member, plus interest on all such
50 items.
51 (d) Nothing in this section shall authorize a corporation to make a
52 distribution of cash or property to a former member in contravention of
53 the provisions of section 515 of this article.
54 § 517. Liabilities of members.
55 (a) The members of a corporation shall not be personally liable for
56 the debts, liabilities or obligations of the corporation.
S. 4611 34
1 (b) A member shall be liable to the corporation only to the extent of
2 any unpaid portion of the initiation fees, membership dues or assess-
3 ments which the corporation may have lawfully imposed upon such member,
4 or for any other indebtedness owed by such member to the corporation. No
5 action shall be brought by any creditor of the corporation to reach and
6 apply any such liability to any debt of the corporation until after
7 final judgment shall have been rendered against the corporation in favor
8 of the creditor and execution thereon returned unsatisfied, or the
9 corporation shall have been adjudged bankrupt, or a receiver shall have
10 been appointed with power to collect debts, and which receiver, on
11 demand of a creditor to bring suit thereon, has refused to sue for such
12 unpaid amount, or the corporation shall have been dissolved or ceased
13 its activities leaving debts unpaid. No such action shall be brought
14 more than three years after the happening of any one of such events.
15 § 519. Annual report of directors.
16 (a) The board shall present at the annual meeting of members a report,
17 verified by the president and treasurer or by a majority of the direc-
18 tors, or certified by an independent public or certified public account-
19 ant or a firm of such accountants selected by the board, showing in
20 appropriate detail the following:
21 (1) The assets and liabilities, including the trust funds, of the
22 corporation as of the end of a twelve month fiscal period terminating
23 not more than six months prior to said meeting.
24 (2) The principal changes in assets and liabilities, including trust
25 funds, during said fiscal period.
26 (3) The revenue or receipts of the corporation, both unrestricted and
27 restricted to particular purposes during said fiscal period.
28 (4) The expenses or disbursements of the corporation, for both general
29 and restricted purposes, during said fiscal period.
30 (5) The number of members of the corporation as of the date of the
31 report, together with a statement of increase or decrease in such number
32 during said fiscal period, and a statement of the place where the names
33 and places of residence of the current members may be found.
34 (b) The annual report of directors shall be filed with the records of
35 the corporation and either a copy or an abstract thereof entered in the
36 minutes of the proceedings of the annual meeting of members.
37 (c) The board of a corporation having no members shall direct the
38 president and treasurer to present at the annual meeting of the board a
39 report in accordance with paragraph (a) of this section, but omitting
40 the requirement of subparagraph (5). This report shall be filed with the
41 minutes of the annual meeting of the board.
42 § 520. Reports of corporation.
43 Each domestic corporation, and each foreign corporation authorized to
44 conduct activities in this state, shall from time to time file such
45 reports on its activities as may be required by the laws of this state.
46 All registration and reporting requirements pursuant to section 8-1.4 of
47 the estates, powers and trusts law, or related successor provisions,
48 are, without limitation on the foregoing, expressly included as reports
49 required by the laws of this state to be filed within the meaning of
50 this section. Willful failure of a corporation to file a report as
51 required by law shall subject the corporation to an order of the attor-
52 ney general compelling such report or reports to be filed within sixty
53 days of the attorney general's order; and, in the event of continued
54 noncompliance thereafter, to an attorney general action for dissolution
55 under article 11 of this chapter in the case of a domestic corporation,
S. 4611 35
1 or under section 1303 of this chapter in the case of a foreign corpo-
2 ration.
3 § 521. Liability for failure to disclose required information.
4 Failure of the corporation to comply in good faith with the notice or
5 disclosure or reporting provisions of section 501 of this article, or
6 paragraph (c) of section 503 of this article, or paragraph (b) of
7 section 513 of this article, or section 519 of this article, or section
8 520 of this article, shall make the corporation liable for any damage
9 sustained by any person in consequence thereof.
10 § 522. Release of restrictions on use or investment.
11 (a) With the consent of the donor in a writing acknowledged by the
12 donor, the governing board may release, in whole or in part, a
13 restriction imposed by the applicable gift instrument on the use or
14 investment of an institutional fund.
15 (b) If written consent of the donor cannot be obtained by reason of
16 death, disability, unavailability, or impossibility of identification,
17 the governing board may apply in the name of the corporation (i) to the
18 supreme court of the judicial district wherein the corporation has its
19 office or principal place of carrying out the purposes for which it was
20 formed, or (ii) where the applicable gift instrument is a will, to the
21 surrogate's court in which such will is probated, for release of a
22 restriction imposed by the applicable gift instrument on the use or
23 investment of an institutional fund. The attorney general shall be noti-
24 fied of the application and shall be given an opportunity to be heard.
25 If the court finds that the restriction is obsolete, inappropriate, or
26 impracticable, it may by order release the restriction in whole or in
27 part. A release under this paragraph may not change an endowment fund to
28 a fund that is not an endowment fund.
29 (c) A release under this section may not allow a fund to be used for
30 purposes other than the purposes of the corporation.
31 (d) This section does not limit the application of the doctrine of cy
32 pres.
33 § 6. Article 6 of the not-for-profit corporation law is REPEALED and a
34 new article 6 is added to read as follows:
35 ARTICLE 6
36 MEMBERS
37 Section 601. Members.
38 602. By-laws.
39 603. Meetings of members.
40 604. Special meeting for election of directors.
41 605. Notice of meeting of members.
42 606. Waivers of notice.
43 607. List or record of members at meetings.
44 608. Quorum at meeting of members.
45 609. Proxies.
46 610. Selection of inspectors at meeting of members; duties.
47 611. Qualification of voters; fixing record date to determine
48 eligibility to vote; voting entitlement.
49 612. Limitations on right to vote.
50 613. Vote of members.
51 614. Action by members without a meeting.
52 615. Greater requirement as to quorum and vote of members.
53 616. Voting by class of members.
54 617. Cumulative voting.
55 618. Power of supreme court respecting elections.
56 619. Agreements by members as to voting.
S. 4611 36
1 620. Preemptive rights.
2 621. Books and records; right of inspection; prima facie
3 evidence.
4 622. Infant members.
5 623. Members' derivative action brought in the right of the
6 corporation to procure a judgment in its favor.
7 § 601. Members.
8 (a) A corporation may have one or more classes of members or no
9 members. A corporation that has one or more classes of members shall set
10 forth in the certificate of incorporation or the by-laws such provision
11 for classes of members. Corporations, joint-stock associations, unin-
12 corporated associations and partnerships, as well as any other person
13 without limitation, may be members.
14 (b) If the corporation has two or more classes of members, the desig-
15 nation and characteristics of each class and the qualifications and
16 rights of, and limitations upon, the members of each class may be set
17 forth in the certificate of incorporation, the by-laws or, if the
18 by-laws so provide, a resolution of the board.
19 (c) If the corporation has members, membership may be effected and
20 evidenced by:
21 (1) signature on the certificate of incorporation.
22 (2) designation in the certificate of incorporation or the by-laws.
23 (3) membership certificate or card or capital certificate.
24 (4) such method, including but not limited to the foregoing, as is
25 prescribed by the certificate of incorporation or the by-laws.
26 (d) Membership in a corporation shall not be transferable, except as
27 otherwise provided in the certificate of incorporation or by-laws.
28 (e) Membership certificates or cards shall not be transferable. If the
29 certificate of incorporation or by-laws permits transfer of membership,
30 upon each such transfer the certificate or card issued to a former
31 member shall be surrendered, and a new certificate or card shall be
32 issued to the new member.
33 (f) Except as otherwise provided in this chapter or the certificate of
34 incorporation or the by-laws, membership shall be terminated by death,
35 resignation, or expulsion, of a member; dissolution of a corporate
36 member; expiration of a term of membership or dissolution and liqui-
37 dation under articles 10 and 11 of this chapter.
38 § 602. By-laws.
39 (a) The initial by-laws of a corporation may be adopted by its incor-
40 porators at the organization meeting and, if not so adopted by the
41 incorporators, by its board. Any reference in this chapter to a "by-law
42 adopted by the members" includes a by-law adopted by the incorporators.
43 (b) Subject to section 612 of this article, the by-laws may be
44 adopted, amended or repealed by the members at the time entitled to vote
45 in the election of directors and, unless otherwise provided in the
46 certificate of incorporation or the by-laws adopted by the members, by
47 the board.
48 (c) By-laws may be amended or repealed by a majority of members at the
49 time entitled to vote in the election of any directors. When so provided
50 in the certificate of incorporation or a by-law adopted by the members,
51 by-laws may also be amended or repealed by the board by such vote as may
52 be therein specified, which may be greater than the vote otherwise
53 prescribed by this chapter, but any by-law adopted by the board may be
54 amended or repealed by the members entitled to vote thereon as herein
55 provided. Any reference in this chapter to a "by-law adopted by the
S. 4611 37
1 members" shall include a by-law adopted by the incorporator or incorpo-
2 rators.
3 (d) In the case of a corporation which is subject, under any other law
4 of this state, to regulation or control by a governmental body or offi-
5 cer, such body or officer may, to the extent provided in such other law,
6 in furtherance of its, his or her authority to regulate or control:
7 (1) adopt, amend or repeal by-laws.
8 (2) amend or repeal any by-law adopted by the members or the board.
9 (e) If any by-law regulating an impending election of directors is
10 adopted, amended or repealed by the board, there shall be set forth in
11 the notice of the next meeting of the members for the election of direc-
12 tors the by-law so adopted, amended or repealed, together with a concise
13 statement of the changes made.
14 (f) The by-laws may contain any provision relating to the business of
15 the corporation, the conduct of its affairs, its rights or powers or the
16 rights or powers of its members, directors or officers, not inconsistent
17 with this chapter or any other statute of this state or the certificate
18 of incorporation.
19 § 603. Meetings of members.
20 (a) Meetings of members may be held at such place, within or without
21 this state, as may be fixed by or under the by-laws or, if not so fixed,
22 at the office of the corporation in this state.
23 (b) A meeting of the members shall be held annually for the election
24 of directors and the transaction of other business on a date fixed by or
25 under the by-laws. Failure to hold the annual meeting on the date so
26 fixed or to elect a sufficient number of directors to conduct the busi-
27 ness of the corporation shall not work a forfeiture or give cause for
28 dissolution of the corporation, except as provided in paragraph (a) of
29 section 1102 of this chapter.
30 (c) Special meetings of the members may be called by the board and by
31 such person or persons as may be authorized by the certificate of incor-
32 poration or the by-laws. In any case, such meetings may be convened by
33 the members entitled to cast ten percent of the total number of votes
34 entitled to be cast at such meeting, who may, in writing, demand the
35 call of a special meeting specifying the date and month thereof, which
36 shall not be less than twenty (20) nor more than sixty (60) days from
37 the date of such written demand. The secretary of the corporation upon
38 receiving the written demand shall promptly give notice of such meeting,
39 or if the secretary fails to do so within five business days thereafter,
40 any member signing such demand may give such notice. The meeting shall
41 be held at the place fixed in the by-laws or, if not so fixed, at the
42 office of the corporation.
43 (d) A corporation may provide in its certificate of incorporation or
44 by-laws adopted by the members for the election of representatives or
45 delegates, who, when assembled within or without the state as directed
46 by the certificate of incorporation or the by-laws, shall have and may
47 exercise all of the powers, rights and privileges of members at an annu-
48 al meeting. When so exercising the powers, rights and privileges of
49 members, such representatives or delegates shall be subject in all
50 respects to the provisions of this chapter governing members.
51 (e) Except as otherwise required by this chapter, the by-laws may
52 designate reasonable procedures for the calling and conduct of a meeting
53 of members, included but not limited to specifying:
54 (1) who may call and who may conduct the meeting;
55 (2) the means by which the order of business to be conducted shall be
56 established;
S. 4611 38
1 (3) the procedures and requirements for the nomination of directors;
2 (4) the procedures with respect to the making of member proposals; and
3 (5) the procedures to be established for the adjournment of any meet-
4 ing of members.
5 § 604. Special meeting for election of directors.
6 (a) If, for a period of one month after the date fixed by or under the
7 by-laws for the annual meeting of members or, if no date has been so
8 fixed, for a period of thirteen months after the formation of the corpo-
9 ration or the last annual meeting, there is a failure to elect a suffi-
10 cient number of directors to conduct the business of the corporation,
11 the board shall call a special meeting for the election of directors. If
12 such special meeting is not called by the board within two weeks after
13 the expiration of such period or if it is so called but there is a fail-
14 ure to elect such directors for a period of two months after the expira-
15 tion of such period, members entitled to cast one hundred votes or ten
16 percent of the total number of votes entitled to be cast in an election
17 of directors, whichever is lesser, may, in writing, demand the call of a
18 special meeting for the election of directors specifying the date and
19 month thereof, which shall not be less than sixty (60) nor more than
20 ninety (90) days from the date of such written demand. The secretary of
21 the corporation upon receiving the written demand shall promptly give
22 notice of such meeting or, if the secretary fails to do so within five
23 business days thereafter, any member signing such demand may give such
24 notice. The meeting shall be held at the place fixed in the by-laws or,
25 if not so fixed, at the office of the corporation.
26 (b) At any such special meeting called on the demand of members,
27 notwithstanding section 608 of this article, the members attending, in
28 person or by proxy, and entitled to vote in an election of directors
29 shall constitute a quorum for the purpose of electing directors, but not
30 for the transaction of any other business.
31 § 605. Notice of meeting of members.
32 (a) Whenever under the provisions of this chapter members are required
33 or permitted to take any action at a meeting, written notice shall state
34 the place, date and hour of the meeting and, unless it is an annual
35 meeting, indicate that it is being issued by or at the direction of the
36 person or persons calling the meeting. Notice of a special meeting shall
37 also state the purpose or purposes for which the meeting is called.
38 Notice of any meeting of members may be written or electronic. Notice of
39 any meeting shall be given not fewer than ten (10) nor more than sixty
40 (60) days before the date of the meeting, provided, however, that such
41 notice may be given by third class mail not fewer than twenty-four (24)
42 nor more than sixty (60) days before the date of the meeting to each
43 member entitled to vote at such meeting. If mailed, such notice is given
44 when deposited in the United States mail, with postage thereon prepaid,
45 directed to the member at the address that appears on the record of
46 members, or, if the member shall have filed with the secretary of the
47 corporation a written request that notices be mailed to some other
48 address, then directed at such other address. If transmitted electron-
49 ically, such notice is given when directed to the member's electronic
50 mail address as supplied by the member to the secretary of the corpo-
51 ration or as otherwise directed pursuant to the member's authorization
52 or instructions. An affidavit of the secretary or other person giving
53 the notice or of a transfer agent of the corporation that the notice
54 required by this section has been given shall, in the absence of fraud,
55 be prima facie evidence of the facts therein stated. Whenever a corpo-
56 ration has more than five hundred members, the notice may be served by
S. 4611 39
1 publication, in lieu of mailing, in a newspaper published in the county
2 in the state in which the principal office of the corporation is
3 located, once a week for three successive weeks next preceding the date
4 of the meeting.
5 (b) When a meeting is adjourned to another time or place, it shall not
6 be necessary, unless the by-laws require otherwise, to give any notice
7 of the adjourned meeting if the time and place to which the meeting is
8 adjourned are announced at the meeting at which the adjournment is
9 taken, and at the adjourned meeting any business may be transacted that
10 might have been transacted on the original date of the meeting. Howev-
11 er, if after the adjournment the board fixes a new record date for the
12 adjourned meeting, a notice of the adjourned meeting shall be given to
13 each member of record on the new record date entitled to notice under
14 paragraph (a) of this section.
15 § 606. Waivers of notice.
16 Notice of meeting need not be given to any member who submits a signed
17 waiver of notice, whether before or after the meeting. Waiver of notice
18 may be written or electronic. If written, the waiver must be executed by
19 the member or the member's authorized officer, director, employee or
20 agent by signing such waiver or causing his or her signature to be
21 affixed to such waiver by any reasonable means, including, but not
22 limited to, facsimile signature. If electronic, the transmission of the
23 waiver must either set forth or be submitted with information from which
24 it can reasonably be determined that the transmission was authorized by
25 the member. The attendance of any member at a meeting, in person or by
26 proxy, without protesting prior to the conclusion of the meeting the
27 lack of notice of such meeting, shall constitute a waiver of notice.
28 § 607. List or record of members at meetings.
29 A list or record of members entitled to vote, certified by the corpo-
30 rate officer responsible for its preparation or by a transfer agent,
31 shall be produced at any meeting of members upon the request therefor of
32 any member who has given written notice to the corporation that such
33 request will be made at least ten days prior to such meeting. If the
34 right to vote at any meeting is challenged, the inspectors of election,
35 or the person presiding thereat, shall require such list or record of
36 members to be produced as evidence of the right of the persons chal-
37 lenged to vote at such meeting, and all persons who appear from such
38 list or record to be members entitled to vote thereat may vote at such
39 meeting.
40 § 608. Quorum at meeting of members.
41 (a) Members entitled to cast a majority of the total number of votes
42 entitled to be cast thereat shall constitute a quorum at a meeting of
43 members for the transaction of any business, provided that when a speci-
44 fied item of business is required to be voted on by a class of members,
45 voting as a class, members entitled to cast a majority of the total
46 number of votes entitled to be cast by such class shall constitute a
47 quorum for the transaction of such specified items of business.
48 (b) The certificate of incorporation or the by-laws may provide for
49 any lesser quorum not less than the members entitled to cast one hundred
50 votes or one-tenth of the total number of votes entitled to be cast,
51 whichever is lesser, and may, under section 615 of this article, provide
52 for a greater quorum.
53 (c) Action to amend the certificate of incorporation or by-laws to
54 conform to paragraph (b) of this section may be taken at a special meet-
55 ing of members at which the quorum requirements applicable to the corpo-
S. 4611 40
1 ration immediately prior to the effective date of this chapter are
2 fulfilled, but action may be taken only once under this paragraph.
3 (d) The members present may adjourn the meeting despite the absence of
4 a quorum.
5 (e) If for any reason it has proved to be impractical or impossible
6 for a corporation to obtain a quorum in order to conduct a meeting of
7 its members in the manner prescribed by its certificate or by-laws or by
8 statute, then upon the petition of a director, officer or member to the
9 supreme court in the judicial district where the office of the corpo-
10 ration is or was located on notice to the attorney general or by the
11 attorney general, the supreme court may in its discretion dispense with
12 the requirement as to quorums that would otherwise be imposed by the
13 corporation's certificate of incorporation or by-laws or by statute. The
14 petition shall set forth the reasonable efforts the corporation has made
15 to obtain a quorum, including the manner in which the corporation
16 provided notice to its members of prior meetings. The supreme court
17 shall, in an order issued pursuant to this section, provide for a method
18 of notice reasonably designed to give actual notice to all persons who
19 would be entitled to notice of a meeting held pursuant to the certif-
20 icate of incorporation or by-laws or the statute, whether or not the
21 method results in actual notice to all such persons or conforms to the
22 notice requirements that would otherwise apply. In a proceeding under
23 this section the court may determine who are the members of the corpo-
24 ration.
25 § 609. Proxies.
26 (a) Except as otherwise provided in the certificate of incorporation
27 or the by-laws:
28 (1) Every member entitled to vote at a meeting of members or to
29 express consent or dissent without a meeting may authorize another
30 person or persons to act by proxy.
31 (2) No proxy shall be valid after the expiration of eleven months from
32 the date thereof unless otherwise provided in the proxy. Every proxy
33 shall be revocable at the pleasure of the member executing it, except as
34 otherwise provided in this section.
35 (3) The authority of the holder of a proxy to act shall not be revoked
36 by the incompetence or death of the member who executed the proxy
37 unless, before the authority is exercised, written notice of an adjudi-
38 cation of such incompetence or of such death is received by the corpo-
39 rate officer responsible for maintaining the list or record of members.
40 (4) Except when other provision shall have been made by written agree-
41 ment between the parties, the record holder of capital certificates
42 which he or she holds as pledgee or otherwise as security or which
43 belong to another, shall issue to the pledgor or to such owner of such
44 capital certificates, upon demand therefor and payment of necessary
45 expenses thereof, a proxy to vote or take other action thereon.
46 (5) A member shall not sell his or her vote or issue a proxy to vote
47 to any person for any sum of money or anything of value, except as
48 authorized in this section and section 619 of this article.
49 (6) A proxy which is entitled "irrevocable proxy" and which states
50 that it is irrevocable is irrevocable when it is held by any of the
51 following or a nominee of any of the following:
52 (A) A pledgee.
53 (B) A person who has purchased or agreed to purchase the capital
54 certificates.
55 (C) A creditor or creditors of the corporation who extend or continue
56 credit to the corporation in consideration of the proxy if the proxy
S. 4611 41
1 states that it was given in consideration of such extension or continua-
2 tion of credit, the amount thereof, and the name of the person extending
3 or continuing credit.
4 (D) A person who has contracted to perform services as an officer of
5 the corporation, if a proxy is required by the contract of employment,
6 if the proxy states that it was given in consideration of such contract
7 of employment, the name of the employee and the period of employment
8 contracted for.
9 (E) A person designated by or under an agreement under section 619 of
10 this article.
11 (7) Notwithstanding a provision in a proxy, stating that it is irrev-
12 ocable, the proxy becomes revocable after the pledge is redeemed, or the
13 debt of the corporation is paid, or the period of employment provided
14 for in the contract of employment has terminated, or the agreement under
15 section 619 of this article has terminated; and, in a case provided for
16 in clause (C) or (D) of subparagraph (6) of this paragraph, becomes
17 revocable three years after the date of the proxy or the end of the
18 period, if any, specified therein, whichever period is less, unless the
19 period of irrevocability is renewed from time to time by the execution
20 of a new irrevocable proxy as provided in this section. This paragraph
21 does not affect the duration of a proxy under subparagraph (2) of this
22 paragraph.
23 (8) A proxy may be revoked, notwithstanding a provision making it
24 irrevocable, by a purchaser of capital certificates without knowledge of
25 the existence of the provision unless the existence of the proxy and its
26 irrevocability is noted conspicuously on the face or back of the capital
27 certificate.
28 (b) Without limiting the manner in which a member may authorize anoth-
29 er person or persons to act as proxy pursuant to paragraph (a) of this
30 section, the following shall constitute a valid means by which a member
31 may grant such authority:
32 (1) A member may execute a writing authorizing another person or
33 persons to act as proxy. Execution may be accomplished by the member or
34 the member's authorized officer, director, employee or agent signing
35 such writing or causing his or her signature to be affixed to such writ-
36 ing by any reasonable means including, but not limited to, by facsimile
37 signature.
38 (2) A member may authorize another person or persons to act for the
39 member as proxy by transmitting or authorizing the transmission of a
40 telegram, cablegram or other means of electronic transmission to the
41 person who will be the holder of the proxy or to a proxy solicitation
42 firm, proxy support service organization or like agent duly authorized
43 by the person who will be the holder of the proxy to receive such trans-
44 mission, provided that any such telegram, cablegram or other means of
45 electronic transmission shall either set forth or be submitted with
46 information from which it can be reasonably determined that the tele-
47 gram, cablegram or other electronic transmission was authorized by the
48 member. If it is determined that such telegrams, cablegrams or other
49 electronic transmissions are valid, the inspectors or, if there are no
50 inspectors, such other persons making that determination shall specify
51 the nature of the information upon which they relied.
52 (c) Any copy, facsimile telecommunication or other reliable reprod-
53 uction of the writing or transmission created pursuant to paragraph (b)
54 of this section may be substituted or used in lieu of the original writ-
55 ing or transmission for any and all purposes for which the original
56 writing or transmission could be used, provided that such copy, facsim-
S. 4611 42
1 ile telecommunication or other reproduction shall be a complete reprod-
2 uction of the entire original writing or transmission.
3 § 610. Selection of inspectors at meeting of members; duties.
4 (a) If the by-laws require inspectors at any meeting of members, such
5 requirement is waived unless compliance therewith is requested by a
6 member present in person or by proxy and entitled to vote at such meet-
7 ing. Unless otherwise provided in the by-laws, the board, in advance of
8 any meeting of members, may appoint one or more inspectors to act at the
9 meeting or any adjournment thereof. If inspectors are not so appointed,
10 the person presiding at a meeting of members may, and on the request of
11 any member entitled to vote thereat shall, appoint one or more inspec-
12 tors. In case any person appointed fails to appear or act, the vacancy
13 may be filled by appointment made by the board in advance of the meeting
14 or at the meeting by the person presiding thereat. Each inspector,
15 before entering upon the discharge of the duties of inspector, shall
16 take and sign an oath faithfully to execute the duties of inspector at
17 such meeting with strict impartiality and according to the best of such
18 inspector's ability. The term "inspector" as used herein includes a
19 person performing the function of an inspector, whether or not so denom-
20 inated by the corporation.
21 (b) The inspectors shall determine the number of membership certif-
22 icates or cards and capital certificates outstanding and the voting
23 power of each, the certificates and cards represented at the meeting,
24 the existence of a quorum, the validity and effect of proxies, and shall
25 receive votes, ballots or consents, hear and determine all challenges,
26 and questions arising in connection with the right to vote, count and
27 tabulate all votes, ballots or consents, determine the result, and do
28 such acts as are proper to conduct the election or vote with fairness to
29 all members. On request of the person presiding at the meeting or any
30 members entitled to vote thereat, the inspectors shall make a report in
31 writing of any challenge, question or matter determined by them and
32 execute a certificate of any fact found by them. Any report or certif-
33 icate made by them shall be prima facie evidence of the facts stated and
34 of the vote as certified by them.
35 (c) In determining the validity and counting of proxies, ballots and
36 consents, the inspectors, if any, shall be limited to an examination of
37 the proxies, any envelopes submitted with those proxies and consents,
38 any information provided in accordance with section 609 of this article
39 (Proxies), ballots and the regular books and records of the corporation,
40 except that the inspectors may consider other reliable information for
41 the limited purpose of reconciling proxies, ballots and consents. If the
42 inspectors consider other reliable information for the limited purpose
43 permitted herein, the inspectors at the time they make their certif-
44 ication pursuant to paragraph (a) of this section shall specify the
45 precise information considered by them including the person or persons
46 from whom they obtained the information, when the information was
47 obtained, the means by which the information was obtained and the basis
48 for the inspectors' belief that such information is reliable.
49 (d) The date and time (which need not be a particular time of day) of
50 the opening and the closing of the polls for each matter upon which the
51 members will vote at a meeting shall be announced by the person presid-
52 ing at the meeting at the beginning of the meeting and, if no date and
53 time is so announced, the polls shall close at the end of the meeting,
54 including any adjournment thereof. No ballot, proxy or consent, nor any
55 revocation thereof or changes thereto, shall be accepted by the inspec-
56 tors after the closing of polls in accordance with section 605 of this
S. 4611 43
1 article unless the supreme court at a special term held within the judi-
2 cial district where the office of the corporation is located upon appli-
3 cation by a member shall determine otherwise.
4 § 611. Qualification of voters; fixing record date to determine eligi-
5 bility to vote; voting entitlement.
6 (a) The by-laws may provide or, in the absence of such provision, the
7 board may fix, in advance, a date as the record date for the purpose of
8 determining the members entitled to notice of any meeting of members or
9 any adjournment thereof. Such record date shall not be more than fifty
10 nor less than ten days before the date of the meeting.
11 (b) Any member in good standing, otherwise eligible to vote, is enti-
12 tled to vote at any meeting of members, except that, if the certificate
13 of incorporation or the by-laws so provide, the by-laws may provide or,
14 in the absence of such provision, the board may fix a date as the record
15 date for the purpose of determining the members entitled to vote at any
16 meeting of members or any adjournment thereof, or to express consent to
17 or dissent from any proposal without a meeting, or for the purpose of
18 determining members entitled to receive any distribution or the allot-
19 ment of any rights, or for the purpose of any other action by the
20 members. Such record date shall not be more than fifty nor less than ten
21 days before the date of the meeting.
22 (c) If the certificate of incorporation or the by-laws provide for a
23 record date, as authorized by paragraph (b) of this section, and no
24 record date is fixed:
25 (1) The record date for the determination of members entitled to
26 notice of or to vote at a meeting of members shall be at the close of
27 business on the day next preceding the day on which notice is given, or,
28 if no notice is given, the day on which the meeting is held.
29 (2) The record date for determining members for any purpose other than
30 that specified in subparagraph (1) of this paragraph shall be at the
31 close of business on the day on which the resolution of the board relat-
32 ing thereto is adopted.
33 (d) When a determination of members of record entitled to notice of or
34 to vote at any meeting of members has been made as provided in this
35 section, such determination shall apply to any adjournment thereof,
36 unless the board fixes a new record date under this section for the
37 adjourned meeting.
38 (e) In any case in which a member is entitled to vote, the member
39 shall have no more than, nor less than, one vote; except as otherwise
40 provided in the certificate of incorporation of a corporation that is
41 not organized for charitable purposes; provided, however, that if a
42 corporation has an organization as a member, the certificate of incorpo-
43 ration may provide that such organization shall be entitled to votes
44 substantially proportionate to its membership. Any reference in this
45 chapter to corporate action by a majority or other percentage of members
46 shall be construed to mean that percentage of votes with respect to a
47 corporation the certificate of incorporation or by-laws of which
48 provides for more or less than one vote per member.
49 § 612. Limitations on right to vote.
50 The certificate of incorporation or the by-laws may provide, either
51 absolutely or contingently, that the members of any class shall not be
52 entitled to vote, or it may limit or define the matters on, and the
53 circumstances in, which a member or a class of members shall be entitled
54 to vote, and, except as otherwise provided in this chapter, such
55 provisions of the certificate of incorporation or the by-laws shall
56 prevail, according to their tenor, in all elections and in all
S. 4611 44
1 proceedings, over the provisions of this chapter which authorize any
2 action by the members, but no such denial, limitation or definition of
3 voting rights shall be effective unless at the time one or more classes
4 of members, singly or in the aggregate, are entitled to full voting
5 rights.
6 § 613. Vote of members.
7 (a) Except as otherwise required by this chapter or by the certificate
8 of incorporation or the by-laws as permitted by this chapter, directors
9 shall be elected by a plurality of the votes cast at a meeting of
10 members by the members entitled to vote in the election.
11 (b) Whenever any corporate action, other than the election of direc-
12 tors, is to be taken under this chapter by vote of the members, it
13 shall, except as otherwise required by this chapter or by the certif-
14 icate of incorporation or as permitted by this chapter or by the specif-
15 ic provisions of a by-law adopted by the members, be authorized by a
16 majority of the votes cast at a meeting of members by the members enti-
17 tled to vote thereon.
18 (c) Except as provided in paragraph (b) of this section, any reference
19 in this chapter to corporate action at a meeting of members by "majority
20 vote" or "two-thirds vote" shall require the action to be taken by such
21 proportion of the votes cast at such meeting, provided that the affirma-
22 tive votes cast in favor of any such action shall be at least equal to
23 the quorum. Blank votes or abstentions shall not be counted in the
24 number of votes cast.
25 § 614. Action by members without a meeting.
26 (a) Whenever, under this chapter, members are required or permitted to
27 take any action by vote, such action may be taken without a meeting on
28 written consent, setting forth the action so taken, signed by all of the
29 members entitled to vote thereon; or, if the certificate of incorpo-
30 ration so permits, signed by those members having not less than the
31 minimum number of votes that would be necessary to authorize or take
32 such action at a meeting at which all members entitled to vote thereon
33 were present and voted. This paragraph shall not be construed to alter
34 or modify any provision in a certificate of incorporation not inconsist-
35 ent with this chapter under which the written consent of less than all
36 of the members is sufficient for corporate action.
37 (b) Prompt notice of any corporate action without a meeting by less
38 than unanimous written consent shall be given to those members who have
39 not consented in writing.
40 (c) Written consent thus given by members provided in paragraph (a) of
41 this section shall have the same effect as a vote of members and any
42 certificate with respect to the authorization or taking of any such
43 action which is delivered to the department of state shall recite that
44 the authorization was by written consent.
45 (d) When there are no members, such action may be taken on the written
46 consent signed by a majority in interest of the subscribers for capital
47 certificates whose subscriptions have been accepted or their successors
48 in interest or, if no subscription has been accepted, on the written
49 consent signed by the directors or majority of directors or, if there
50 are no directors, by the incorporator or a majority of the incorpora-
51 tors. When there are two or more incorporators, if any dies or is for
52 any reason unable to act, the other or others may act. If there is no
53 incorporator able to act, any person for whom an incorporator was acting
54 as agent may act in his or her stead, or if such other person also dies
55 or is for any reason unable to act, his or her legal representative may
56 act.
S. 4611 45
1 § 615. Greater requirement as to quorum and vote of members.
2 (a) The certificate of incorporation or a by-law adopted by the
3 members may contain provisions specifying either or both of the follow-
4 ing:
5 (1) That the proportion of votes of members, or the proportion of the
6 votes of a class thereof, who shall be present in person or by proxy at
7 any meeting of members, including a special meeting for election of
8 directors under section 604 of this article, in order to constitute a
9 quorum for the transaction of any business or of any specified item of
10 business, including amendments to the certificate of incorporation,
11 shall be greater than the proportion prescribed by this chapter in the
12 absence of such provision.
13 (2) That the proportion of votes of the members, or the proportion of
14 the votes of a class thereof, that shall be necessary at any meeting of
15 members for the transaction of any business or of any specified item of
16 business, including amendments to the certificate of incorporation,
17 shall be greater than the proportion prescribed by this chapter in the
18 absence of such provision.
19 (b) An amendment of the certificate of incorporation or a by-law
20 adopted by the members which adds a provision permitted by this section
21 or which changes or strikes out such a provision, shall be authorized at
22 a meeting of members by vote of the members entitled to cast two-thirds
23 of the total number of votes entitled to be cast thereon, or of such
24 greater proportion of such total number of votes or the total number of
25 votes of a class, as may be provided specifically in the certificate of
26 incorporation or a by-law adopted by the members for adding, changing or
27 striking out a provision permitted by this section.
28 (c) If the certificate of incorporation or a by-law adopted by the
29 members contains a provision authorized by this section, the existence
30 of such provision shall be noted conspicuously on the face or back of
31 every membership certificate or card or capital certificate, if any,
32 issued by such corporation.
33 § 616. Voting by class of members.
34 (a) The certificate of incorporation or the by-laws may contain
35 provisions specifying that any class or classes of members shall vote as
36 a class in connection with the transaction of any business or of any
37 specified item of business at a meeting of members, including amendments
38 to the certificate of incorporation.
39 (b) Where voting as a class is provided in the certificate of incorpo-
40 ration or the by-laws, it shall be by the proportionate vote so provided
41 or, if no proportionate vote is provided, in the election of directors,
42 by a plurality of the votes cast at such meeting by the members of such
43 class entitled to vote in the election, or for any other corporate
44 action, by a majority of the votes cast at such meeting by the members
45 of such class entitled to vote thereon.
46 (c) Such voting by class shall be in addition to any other vote,
47 including vote by class, required by this chapter or by the certificate
48 of incorporation or the by-laws as permitted by this chapter.
49 § 617. Cumulative voting.
50 The certificate of incorporation or the by-laws of any corporation may
51 provide that in all elections of directors of such corporation each
52 member shall be entitled to as many votes as shall equal the number of
53 votes which, except for such provisions as to cumulative voting, such
54 member would be entitled to cast for the election of directors multi-
55 plied by the number of directors to be elected, and that such member may
56 cast all of such votes for a single director or may distribute them
S. 4611 46
1 among the number to be voted for, or for any two or more of them, as
2 such member may see fit, which right, when exercised, shall be termed
3 cumulative voting.
4 § 618. Power of supreme court respecting elections.
5 Upon the petition of any member aggrieved by an election and upon
6 notice to the persons declared elected thereat, the corporation and such
7 other persons as the court may direct, the supreme court at a special
8 term held within the judicial district where the office of the corpo-
9 ration is located shall forthwith hear the proofs and allegations of the
10 parties, and confirm the election, order a new election, or take such
11 other action as justice may require.
12 § 619. Agreements by members as to voting.
13 An agreement between two or more members, if in writing and signed by
14 the parties thereto, may provide that in exercising their voting rights
15 as members they shall vote as therein provided, or as they may agree, or
16 as determined in accordance with a procedure agreed upon by them.
17 § 620. Preemptive rights.
18 There shall be no preemptive rights in relation to membership certif-
19 icates or cards, capital certificates, or bonds. In the case of bonds
20 having lawful voting rights, this section shall not invalidate otherwise
21 valid contract provisions designed to protect such voting rights.
22 § 621. Books and records; right of inspection; prima facie evidence.
23 (a) Except as otherwise provided herein, every corporation shall keep,
24 at the office of the corporation, correct and complete books and records
25 of account and minutes of the proceedings of its members, board and
26 executive committee, if any, and shall keep at such office or at the
27 office of its transfer agent or registrar in this state, a list or
28 record containing the names and addresses of all members, the class or
29 classes of membership or capital certificates and the number of capital
30 certificates held by each and the dates when they respectively became
31 the holders of record thereof. A corporation may keep its books and
32 records of account in an office of the corporation without the state, as
33 specified in its certificate of incorporation. Any of the foregoing
34 books, minutes and records may be in written form or in any other form
35 capable of being converted into written form within a reasonable time.
36 (b) Any member, upon at least five days written demand shall have the
37 right to examine in person or by agent or attorney, during usual busi-
38 ness hours, its minutes of the proceedings of its members and list or
39 record of members and to make extracts therefrom. A corporation
40 requested to provide information pursuant to this paragraph shall make
41 available such information in written form and in any other format in
42 which such information is maintained by the corporation and shall not be
43 required to provide such information in any other format.
44 (c) An inspection authorized by paragraph (b) of this section may be
45 denied to such member upon his or her refusal to furnish to the corpo-
46 ration, its transfer agent or registrar an affidavit that such
47 inspection is not desired and will not be used for a purpose which is in
48 the interest of a business or object other than the business of the
49 corporation and that such member has not within five years given, sold
50 or offered for sale any list or record of members of any domestic or
51 foreign corporation or aided or abetted, or attempted or offered to aid
52 or abet, any person in procuring any such list or record of members for
53 any such purpose.
54 (d) Upon refusal by the corporation or by an officer or agent of the
55 corporation to permit an inspection of the minutes of the proceedings of
56 its members or of the list or record of members, as herein provided, the
S. 4611 47
1 person making the demand for inspection may apply to the supreme court
2 in the judicial district where the office of the corporation is located,
3 upon such notice as the court may direct, for an order directing the
4 corporation, its officer or agent to show cause why an order should not
5 be granted permitting such inspection by the applicant. Upon the return
6 day of the order to show cause, the court shall hear the parties summar-
7 ily, by affidavit or otherwise, and if it appears that the applicant is
8 qualified and entitled to such inspection, the court shall grant an
9 order compelling such inspection and awarding such further relief as to
10 the court may seem just and proper.
11 (e) Upon the written request of any member or of any person holding,
12 or thereunto authorized in writing by the holders of, at least five
13 percent of any class of the outstanding capital certificates, the corpo-
14 ration shall give or mail to such member an annual balance sheet and
15 profit and loss statement or a financial statement performing a similar
16 function for the preceding fiscal year, and, if any interim balance
17 sheet or profit and loss or similar financial statement has been
18 distributed to its members or otherwise made available to the public,
19 the most recent such interim balance sheet or profit and loss or similar
20 financial statement. The corporation shall be allowed a reasonable time
21 to prepare such annual balance sheet and profit and loss or similar
22 financial statement.
23 (f) Nothing herein contained shall impair the power of courts to
24 compel the production for examination of the books and records of a
25 corporation.
26 (g) The books and records specified in paragraph (a) of this section
27 shall be prima facie evidence of the facts therein stated in favor of
28 the plaintiff in any action or special proceeding against such corpo-
29 ration or any of its officers, directors or members.
30 (h) Nothing in this chapter shall require an employee organization
31 certified or recognized for any collective negotiating unit of an
32 employer pursuant to article fourteen of the civil service law to
33 disclose the home address of any member or former member of such organ-
34 ization.
35 § 622. Infant members.
36 If the certificate of incorporation or the by-laws provide that a
37 member shall be of full age:
38 (a) A corporation may treat an infant who holds a membership certif-
39 icate or card or capital certificate or a bond of such corporation as
40 having capacity to receive and to empower others to receive payments or
41 distributions, to vote or express consent or dissent, in person or by
42 proxy, and to make elections and exercise rights relating to such
43 certificates or bonds, unless, in the case of membership certificates or
44 cards or capital certificates, the corporate officer responsible for
45 maintaining the list or record of members or the transfer agent of the
46 corporation or, in the case of bonds, the treasurer or paying officer or
47 agent has received written notice that such holder is an infant.
48 (b) An infant holder of a membership certificate or card or capital
49 certificate or a bond of a corporation who has received or empowered
50 others to receive payments or distributions, voted or expressed consent
51 or dissent, or made an election or exercised a right relating thereto,
52 shall have no right thereafter to disaffirm or avoid, as against the
53 corporation, any such act on his or her part, unless prior to such
54 receipt, vote, consent, dissent, election or exercise, as to membership
55 certificates or cards or capital certificates, the corporate officer
56 responsible for maintaining the list or record of members or its trans-
S. 4611 48
1 fer agent or, in the case of bonds, the treasurer or paying officer or
2 agent had received written notice that such holder was an infant.
3 § 623. Members' derivative action brought in the right of the corpo-
4 ration to procure a judgment in its favor.
5 (a) An action may be brought in the right of a domestic or foreign
6 corporation to procure a judgment in its favor by five percent or more
7 of any class of members or by such percentage of the holders of capital
8 certificates or of the owners of a beneficial interest in the capital
9 certificates of such corporation.
10 (b) In any such action, it shall be made to appear that each plaintiff
11 is such a member, holder or owner at the time of bringing the action.
12 (c) In any such action, the complaint shall set forth with particular-
13 ity the efforts of the plaintiff or plaintiffs to secure the initiation
14 of such action by the board of the reason for not making such effort.
15 (d) Such action shall not be discontinued, compromised or settled
16 without the approval of the court having jurisdiction of the action. If
17 the court shall determine that the interests of the members or of any
18 class or classes thereof will be substantially affected by such discon-
19 tinuance, compromise or settlement, the court, in its discretion, may
20 direct that notice, by publication or otherwise, shall be given to the
21 members or class or classes thereof whose interests it determines will
22 be so affected; if notice is so directed to be given, the court may
23 determine which one or more of the parties to the action shall bear the
24 expense of giving the same, in such amount as the court shall determine
25 and find to be reasonable in the circumstances, and the amount of such
26 expense shall be awarded as special costs of the action and recoverable
27 in the same manner as statutory taxable costs.
28 (e) If the action on behalf of the corporation was successful, in
29 whole or in part, or if anything was received by the plaintiff or plain-
30 tiffs or a claimant or claimants as the result of a judgment, compromise
31 or settlement of an action or claim, the court may award the plaintiff
32 or plaintiffs, claimant or claimants, reasonable expenses, including
33 reasonable attorney's fees, and shall direct the plaintiff or plaintiffs
34 to account to the corporation for the remainder of the proceeds so
35 received by the plaintiff or plaintiffs. This paragraph shall not apply
36 to any judgment rendered for the benefit of injured members or non-re-
37 cord owners only and limited to a recovery of the loss or damage
38 sustained by them.
39 § 7. Article 7 of the not-for-profit corporation law is REPEALED and a
40 new article 7 is added to read as follows:
41 ARTICLE 7
42 DIRECTORS AND OFFICERS
43 Section 701. Board of directors.
44 702. Number of directors.
45 703. Election and term of office of directors; alternates.
46 704. Classification of directors.
47 705. Newly created directorships and vacancies.
48 706. Removal of directors.
49 707. Quorum of directors.
50 708. Action by the board.
51 709. Greater requirement as to quorum and vote of directors.
52 710. Place and time of meetings of the board.
53 711. Notice of meetings of the board.
54 712. Executive committee and other committees.
S. 4611 49
1 713. Officers.
2 714. Removal of officers.
3 715. Interested directors and officers.
4 716. Loans to directors and officers.
5 717. Duty of directors and officers.
6 718. List of directors and officers.
7 719. Liability of directors in certain cases.
8 720. Actions on behalf of the corporation.
9 720-a. Liability of directors, officers and trustees.
10 721. Nonexclusivity of statutory provisions for indemnifica-
11 tion of directors and officers.
12 722. Authorization for indemnification of directors and offi-
13 cers.
14 723. Payment of indemnification other than by court award.
15 724. Indemnification of directors and officers by a court.
16 725. Other provisions affecting indemnification of directors
17 and officers.
18 726. Insurance for indemnification of directors and officers.
19 § 701. Board of directors.
20 (a) Except as otherwise provided in the certificate of incorporation,
21 a corporation shall be managed by its board of directors. Each director
22 shall be at least eighteen years of age; provided, however, that a
23 member of the board of directors of any girl scout council chartered by
24 Girl Scouts of the United States of America, Inc., or any Camp Fire
25 Girls club member serving as a member of the board of directors on the
26 National Board and National Council of Camp Fire Girls, Inc. or on the
27 local board of the Camp Fire Girls, Inc. or any member of Aspira of
28 America Inc. or Aspira of New York Inc. serving on the board of direc-
29 tors, shall be at least sixteen years of age. Notwithstanding the
30 above, a corporation organized for educational purposes primarily for
31 the benefit of individuals below eighteen years of age may include one
32 director below eighteen years of age who is at least sixteen years of
33 age. Further, a corporation organized for recreational or youth develop-
34 ment and delinquency prevention purposes primarily for the benefit of
35 individuals below eighteen years of age may include one or more direc-
36 tors, the number of which shall not exceed one-half of the total number
37 of directors for a quorum for the transaction of business, who are at
38 least sixteen years of age but not over eighteen years of age. The
39 certificate of incorporation or the by-laws may prescribe other quali-
40 fications for directors, provided, however, any corporation organized
41 for recreation or youth development and delinquency prevention purposes,
42 when increasing the number of directors between the ages of sixteen and
43 eighteen years old to more than one, shall prescribe in its certificate
44 of incorporation the number of such directors not to exceed the limita-
45 tions of this paragraph.
46 (b) If the certificate of incorporation vests the management of the
47 corporation, in whole or in part, in one or more persons other than the
48 board, individually or collectively, such other person or persons shall
49 be subject to the same obligations and the same liabilities, and subject
50 to the same protections, for managerial acts or omissions as are imposed
51 upon or afforded to directors by this chapter.
52 § 702. Number of directors.
53 (a) The number of directors constituting the entire board shall be not
54 less than three. Subject to such limitation, such number may be fixed
55 by the by-laws or, in the case of a corporation having members, by
S. 4611 50
1 action of the members or of the board under the specific provisions of a
2 by-law adopted by the members. If not otherwise fixed under this para-
3 graph, the number shall be three. As used in this article, "entire
4 board" means the total number of directors entitled to vote which the
5 corporation would have if there were no vacancies.
6 (b) The number of directors may be increased or decreased by amendment
7 of the by-laws, by action of the board in a corporation without members,
8 or, in the case of a corporation having members, by action of the
9 members, or of the board under the specific provisions of a by-law
10 adopted by the members, subject to the following limitations:
11 (1) If the board is authorized by the by-laws to change the number of
12 directors, whether by amending the by-laws or by taking action under the
13 specific provisions of a by-law adopted by the members, such amendment
14 or action shall require the vote of a majority of the entire board.
15 (2) No decrease shall shorten the term of any incumbent director.
16 § 703. Election and term of office of directors; alternates.
17 (a) A corporation may provide in its certificate of incorporation or
18 by-laws for directors to be elected or appointed at large, or by special
19 districts or membership sections, or by virtue of their office or former
20 office in the corporation or other entity, public or private, or by
21 bondholders pursuant to paragraph (c) of section 506 of this chapter
22 voting as a class, or any combination thereof.
23 (b) Directors shall be elected or appointed in the manner and for the
24 term of office provided in the certificate of incorporation or the
25 by-laws. The term of office of directors, other than those elected or
26 appointed by virtue of their office or former office in the corporation
27 or other entity, public or private, shall not exceed five years; and, if
28 the board is classified under section 704 of this article, such term
29 shall not exceed a number of years equal to the number of classes into
30 which the board is classified. In the absence of a provision fixing the
31 term, it shall be one year.
32 (c) Each director shall hold office until the expiration of the term
33 for which he or she is elected or appointed, and until his or her
34 successor has been elected or appointed and qualified.
35 (d) If the certificate of incorporation or by-laws so provide, a
36 special district or membership section entitled to elect or appoint one
37 or more directors may elect or appoint an alternate for each such direc-
38 tor. In the absence of a director from a meeting of the board, his
39 alternate may, upon written notice to the secretary of the corporation,
40 attend such meeting and exercise therein the rights, powers, and privi-
41 leges of the absent director. When so exercising the rights, powers, and
42 privileges of the absent director, such alternate shall be subject in
43 all respects to the provisions of this chapter governing directors.
44 § 704. Classification of directors.
45 (a) The certificate of incorporation or a by-law adopted by the
46 members may provide that directors elected or appointed at large shall
47 be divided into either two, three, four or five classes for the purpose
48 of staggering their terms of office and that all or some of the direc-
49 tors elected or appointed otherwise than at large shall be divided into
50 the same or a different number of classes, not exceeding five, for the
51 same purpose. All classes of each type shall be as nearly equal in
52 number as possible.
53 (b) The terms of office of the directors initially classified shall be
54 as follows: that of the first class shall expire at the next annual
55 meeting of members if there be members, or of the board if there be no
56 members, the second class at the second succeeding annual meeting, the
S. 4611 51
1 third class, if any, at the third succeeding annual meeting, the fourth
2 class, if any, at the fourth succeeding annual meeting and the fifth
3 class, if any, at the fifth succeeding annual meeting. After such
4 initial classification, directors to replace those whose terms expire at
5 each annual meeting shall be elected or appointed at such meeting to
6 hold office for a full term in accordance with such classification.
7 (c) If directors are classified and the number of directors is there-
8 after changed by action of the board:
9 (1) Any newly created directorships or any decrease in directorships
10 shall be so apportioned among the classes as to make all classes as
11 nearly equal in number as possible.
12 (2) If newly created directorships are filled by the board in a corpo-
13 ration having members, there shall be no classification of the addi-
14 tional directors until the next annual meeting of members.
15 § 705. Newly created directorships and vacancies.
16 (a) Newly created directorships resulting from an increase in the
17 number of directors elected or appointed at large, and vacancies among
18 such directors for any reason, may be filled by vote of a majority of
19 the directors then in office, regardless of their number, unless the
20 certificate of incorporation or the by-laws provide that such newly
21 created directorships or vacancies shall be filled by vote of the
22 members.
23 (b) Vacancies among directors elected or appointed by special
24 districts or membership sections, or by bondholders voting as a class,
25 shall be filled by action of the persons entitled to vote thereon;
26 except that, if a vacancy remains unfilled for six months after it
27 occurs, and by reason of the absence, illness, or other inability of one
28 or more of the remaining directors a quorum of the board cannot be
29 obtained, the remaining directors, or a majority of them, may appoint a
30 director to fill such vacancy.
31 (c) A director elected or appointed to fill a vacancy shall hold
32 office until the next annual meeting at which the election of directors
33 is in the regular order of business, and until his or her successor is
34 elected or appointed and qualified.
35 (d) Unless otherwise provided in the certificate of incorporation or
36 by-laws, notwithstanding the provisions of paragraphs (a) and (b) of
37 this section, whenever the holders of any class or classes of members
38 are entitled to elect one or more directors by the certificate of incor-
39 poration, any vacancy that may be filled by the board or a majority of
40 the directors then in office, as the case may be, shall be filled by a
41 majority of the directors elected by such class or classes then in
42 office, or, if no such director is in office, then as provided in para-
43 graph (a) or (b) of this section, as the case may be.
44 § 706. Removal of directors.
45 (a) Except as limited in paragraph (c) of this section, any or all of
46 the directors may be removed for cause by vote of the members, or by
47 vote of the directors provided there is a quorum of not less than a
48 majority present at the meeting of directors at which such action is
49 taken.
50 (b) Except as limited in paragraph (c) of this section, if the certif-
51 icate of incorporation or the by-laws so provide, any or all of the
52 directors may be removed without cause by vote of the members.
53 (c) The removal of directors, with or without cause, as provided in
54 paragraphs (a) and (b) of this section is subject to the following:
55 (1) In the case of a corporation having cumulative voting, no director
56 may be removed when the director's removal would be sufficient to elect
S. 4611 52
1 him or her if voted cumulatively at an election at which the same total
2 number of votes were cast, were then being elected; and
3 (2) When by the provisions of the certificate of incorporation or the
4 by-laws the members of any class or group, or the holders of bonds,
5 voting as a class, are entitled to elect one or more directors, any
6 director so elected may be removed only by the applicable vote of the
7 members of that class or group, or the holders of such bonds, voting as
8 a class.
9 (d) An action to procure a judgment removing a director for cause may
10 be brought by the attorney-general or by ten percent of the members
11 whether or not entitled to vote. The court may bar from re-election any
12 director so removed for a period fixed by the court.
13 § 707. Quorum of directors.
14 Unless a greater proportion is required by this chapter or by the
15 certificate of incorporation or by a by-law adopted by the members, a
16 majority of the entire board shall constitute a quorum for the trans-
17 action of business or of any specified item of business, except that the
18 certificate of incorporation or the by-laws may fix the quorum at less
19 than a majority of the entire board, provided that in the case of a
20 board of fifteen members or less the quorum shall be at least one-third
21 of the entire number of members and in the case of a board of more than
22 fifteen members the quorum shall be at least five members plus one addi-
23 tional member for every ten members (or fraction thereof) in excess of
24 fifteen.
25 § 708. Action by the board.
26 (a) Except as otherwise provided in this chapter, any reference in
27 this chapter to corporate action to be taken by the board shall mean
28 such action at a meeting of the board.
29 (b) Unless otherwise restricted by the certificate of incorporation or
30 the by-laws, any action required or permitted to be taken by the board
31 or any committee thereof may be taken without a meeting if all members
32 of the board or the committee consent in writing to the adoption of a
33 resolution authorizing the action. The resolution and the written
34 consents thereto by the members of the board or committee shall be filed
35 with the minutes of the proceedings of the board or committee.
36 (c) Unless otherwise restricted by the certificate of incorporation or
37 the by-laws, any one or more directors or members of any committee of
38 the board may participate in a meeting of such board or committee by
39 means of a conference telephone or similar communications equipment
40 allowing all persons participating in the meeting to hear each other at
41 the same time. Participation by such means shall constitute presence in
42 person at a meeting.
43 (d) Except as otherwise provided in this chapter, the vote of a major-
44 ity of the directors present at the time of the vote, if a quorum is
45 present at such time, shall be the act of the board.
46 § 709. Greater requirement as to quorum and vote of directors.
47 (a) The certificate of incorporation or a by-law adopted by the
48 members may contain provisions specifying either or both of the follow-
49 ing:
50 (1) That the proportion of directors that shall constitute a quorum
51 for the transaction of business or of any specified item of business
52 shall be greater than the proportion prescribed by this chapter in the
53 absence of such provision.
54 (2) That the proportion of votes of directors that shall be necessary
55 for the transaction of business or of any specified item of business
S. 4611 53
1 shall be greater than the proportion prescribed by this chapter in the
2 absence of such provision.
3 (b) An amendment by the members of the certificate of incorporation or
4 of the by-laws which adds a provision permitted by this section or which
5 changes or strikes out such a provision, shall be authorized by vote of
6 two-thirds of the members entitled to vote or of such greater proportion
7 as may be provided specifically in the certificate of incorporation or
8 the by-law for adding, changing or striking out a provision permitted by
9 this section.
10 (c) If there are no members, an amendment by the board of directors of
11 the certificate of incorporation or the by-law which adds a provision
12 permitted by this section or which changes or strikes out such a
13 provision, shall be authorized at a meeting by vote of two-thirds of the
14 entire board, or of such greater proportion as may be provided specif-
15 ically in the certificate of incorporation or the by-law for adding,
16 changing or striking out a provision permitted by this section.
17 § 710. Place and time of meetings of the board.
18 (a) Meetings of the board, annual, regular or special, may be held at
19 any place within or without this state, unless otherwise provided by the
20 certificate of incorporation or the by-laws.
21 (b) The time and place for holding annual or regular meetings of the
22 board shall be fixed by or under the by-laws, or, if not so fixed, by
23 the board.
24 (c) A special meeting may be called at any time by the president or
25 other corporate officer as provided in the by-laws or as determined by
26 the board; and, in the case of a corporation without members, by any
27 director upon written demand of not less than one-fifth of the entire
28 board.
29 § 711. Notice of meetings of the board.
30 (a) Unless otherwise provided by the by-laws, regular meetings of the
31 board may be held without notice if the time and place of such meetings
32 are fixed by the by-laws or the board. Special meetings of the board
33 shall be held upon notice to the directors.
34 (b) The by-laws may prescribe what shall constitute notice of meeting
35 of the board. A notice, or waiver of notice, need not specify the
36 purpose of any regular or special meeting of the board, unless required
37 by the by-laws.
38 (c) Notice of a meeting need not be given to any alternate director,
39 nor to any director who submits a signed waiver of notice whether before
40 or after the meeting, or who attends the meeting without protesting,
41 prior thereto or at its commencement, the lack of notice to such direc-
42 tor.
43 (d) A majority of the directors present, whether or not a quorum is
44 present, may adjourn any meeting to another time and place. If the
45 by-laws so provide, notice of any adjournment of a meeting of the board
46 to another time or place shall be given to the directors who were not
47 present at the time of the adjournment and, unless such time and place
48 are announced at the meeting, to the other directors.
49 § 712. Executive committee and other committees.
50 (a) If the certificate of incorporation or the by-laws so provide, the
51 board, by resolution adopted by a majority of the entire board, may
52 designate from among its members an executive committee and other
53 committees, each consisting of three or more directors, and each of
54 which, to the extent provided in the resolution or in the certificate of
55 incorporation or by-laws, shall have all the authority of the board,
S. 4611 54
1 except that no such committee shall have authority as to the following
2 matters:
3 (1) The submission to members of any action requiring members'
4 approval under this chapter.
5 (2) The filling of vacancies in the board of directors or in any
6 committee.
7 (3) The fixing of compensation of the directors for serving on the
8 board or on any committee.
9 (4) The amendment or repeal of the by-laws or the adoption of new
10 by-laws.
11 (5) The amendment or repeal of any resolution of the board which by
12 its terms shall not be so amendable or repealable.
13 (b) The board may designate one or more directors as alternate members
14 of any committee, who may replace any absent member or members at any
15 meeting of such committee.
16 (c) Each committee of the board shall serve at the pleasure of the
17 board. The designation of any such committee and the delegation thereto
18 of authority shall not alone relieve any director of his or her duty to
19 the corporation under section 717 of this article.
20 (d) Committees, other than committees of the board, whether created by
21 the board or by the members, shall be committees of the corporation.
22 Such committees may be elected or appointed in the same manner as offi-
23 cers of the corporation. Provisions of this chapter applicable to offi-
24 cers generally shall apply to members of such committees.
25 § 713. Officers.
26 (a) The board may elect or appoint a president, one or more vice-pre-
27 sidents, a secretary and a treasurer, and such other officers as it may
28 determine, or as may be provided in the by-laws. These officers may be
29 designated by such alternate titles as may be provided in the certif-
30 icate of incorporation or the by-laws. Any two or more offices may be
31 held by the same person, except the offices of president and secretary,
32 or the offices corresponding thereto.
33 (b) The certificate of incorporation or a by-law adopted by the
34 members may provide that all officers or that specified officers shall
35 be elected by the members instead of by the board, or it may authorize
36 the president to appoint the other officers, or some of them, subject to
37 approval by the board.
38 (c) Each officer shall hold office for the term for which elected or
39 appointed, and until his or her successor has been elected or appointed
40 and qualified. Unless otherwise provided in the certificate of incorpo-
41 ration or the by-laws, all officers shall be elected or appointed annu-
42 ally.
43 (d) The certificate of incorporation or the by-laws may provide that
44 any one or more officers shall be ex-officio members of the board, with
45 voting rights unless specified otherwise.
46 (e) All officers as between themselves and the corporation shall have
47 such authority and perform such duties in the management of the corpo-
48 ration as may be provided in the by-laws or, to the extent not so
49 provided, by the board. The board may require any officer to give secu-
50 rity for the faithful performance of his or her duties.
51 § 714. Removal of officers.
52 (a) Any officer elected or appointed by the board may be removed by
53 the board with or without cause. An officer elected by the members or a
54 class of members may be removed, with or without cause, only by the vote
55 of the members or such class of members, but his or her authority to act
56 as an officer may be suspended by the board for cause.
S. 4611 55
1 (b) The removal of an officer without cause shall be without prejudice
2 to his or her contract rights, if any. The election or appointment of an
3 officer shall not of itself create contract rights.
4 (c) An action to procure a judgment removing an officer for cause may
5 be brought by the attorney-general, by any director, by ten percent of
6 the members, whether or not entitled to vote, or by the holders of ten
7 percent of the face value of the outstanding capital certificates or
8 bonds having voting rights. The court may bar from re-election or reap-
9 pointment any officer so removed for a period fixed by the court.
10 § 715. Interested directors and officers.
11 (a) No contract or other transaction between a corporation and one or
12 more of its directors or officers, or between a corporation and any
13 other corporation, firm, association or other entity in which one or
14 more of its directors or officers are directors or officers, or have a
15 substantial financial interest, shall be either void or voidable for
16 this reason alone or by reason alone that such director or directors or
17 officer or officers are present at the meeting of the board, or of a
18 committee thereof, which authorizes such contract or transaction, or
19 that his, her, or their votes are counted for such purpose:
20 (1) If the material facts as to such director's or officer's interest
21 in such contract or transaction and as to any such common directorship,
22 officership or financial interest are disclosed in good faith or known
23 to the board or committee, and the board or committee authorizes such
24 contract or transaction by a vote sufficient for such purpose without
25 counting the vote or votes of such interested director or officer; or
26 (2) If the material facts as to such director's or officer's interest
27 in such contract or transaction and as to any such common directorship,
28 officership or financial interest are disclosed in good faith or known
29 to the members entitled to vote thereon, if any, and such contract or
30 transaction is authorized by vote of such members.
31 (b) If a contract or other transaction between a corporation and one
32 or more of its directors, or between a corporation and any other corpo-
33 ration, firm, association or other entity in which one or more of its
34 directors are directors or officers, or have a substantial financial
35 interest, is not approved in accordance with this paragraph, the corpo-
36 ration may avoid the contract or transaction unless the party or parties
37 thereto shall establish affirmatively that the contract or transaction
38 was fair and reasonable as to the corporation at the time it was
39 approved by the board, a committee or the members.
40 (c) Common or interested directors may be counted in determining the
41 presence of a quorum at a meeting of the board or of a committee which
42 authorizes such contract or transaction.
43 (d) The certificate of incorporation may contain additional
44 restrictions on contracts or transactions between a corporation and its
45 directors or officers or other persons and may provide that contracts or
46 transactions in violation of such restrictions shall be void or voida-
47 ble.
48 (e) Unless otherwise provided in the certificate of incorporation or
49 the by-laws, the board shall have authority to fix the compensation of
50 directors for services in any capacity.
51 § 716. Loans to directors and officers.
52 No loans, other than through the purchase of bonds, debentures, or
53 similar obligations of the type customarily sold in public offerings, or
54 through ordinary deposit of funds in a bank, shall be made by a corpo-
55 ration to its directors or officers, or to any other corporation, firm,
56 association or other entity in which one or more of its directors or
S. 4611 56
1 officers are directors or officers or hold a substantial financial
2 interest, except a loan by one corporation organized for charitable
3 purposes to another corporation organized for charitable purposes. A
4 loan made in violation of this section shall be a violation of the duty
5 to the corporation of the directors or officers authorizing it or
6 participating in it, but the obligation of the borrower with respect to
7 the loan shall not be affected thereby.
8 § 717. Duty of directors and officers.
9 (a) Directors and officers shall discharge the duties of their respec-
10 tive positions in good faith and with that degree of diligence, care and
11 skill which ordinarily prudent persons would exercise under similar
12 circumstances in like positions. In the administration of the powers to
13 make and retain investments pursuant to section 512 of this chapter, to
14 appropriate appreciation pursuant to section 513 of this chapter, and to
15 delegate investment management of institutional funds pursuant to
16 section 514 of this chapter, a governing board shall consider among
17 other relevant considerations the long and short term needs of the
18 corporation in carrying out its purposes, its present and anticipated
19 financial requirements, expected total return on its investments, price
20 level trends, and general economic conditions.
21 (b) In discharging their duties, directors and officers, when acting
22 in good faith, may rely on information, opinions, reports or statements
23 including financial statements and other financial data, in each case
24 prepared or presented by: (1) one or more officers or employees of the
25 corporation, whom the director believes to be reliable and competent in
26 the matters presented, (2) counsel, public accountants or other persons
27 as to matters which the directors or officers believe to be within such
28 person's professional or expert competence or (3) a committee of the
29 board upon which they do not serve, duly designated in accordance with a
30 provision of the certificate of incorporation or the by-laws, as to
31 matters within its designated authority, which committee the directors
32 or officers believe to merit confidence, so long as in so relying they
33 shall be acting in good faith and with that degree of care specified in
34 paragraph (a) of this section, but the director or officer shall not be
35 considered to be acting in good faith if the director or officer has
36 knowledge concerning the matter in question that would cause such reli-
37 ance to be unwarranted. Persons shall not be considered to be acting in
38 good faith if they have knowledge concerning the matter in question that
39 would cause such reliance to be unwarranted. Persons who so perform
40 their duties shall have no liability by reason of being or having been
41 directors or officers of the corporation.
42 (c) In taking action, including, without limitation, action which may
43 involve or relate to a change or potential change in the control of the
44 corporation, a director shall be entitled to consider, without limita-
45 tion, (1) both the long-term and the short-term interests of the corpo-
46 ration and its members and (2) the effects that the corporation's
47 actions may have in the short-term or in the long-term upon any of the
48 following:
49 (A) the prospects for potential growth, development, productivity and
50 financial stability of the corporation;
51 (B) the corporation's current employees;
52 (C) the corporation's retired employees and other beneficiaries
53 receiving or entitled to receive retirement, welfare or similar benefits
54 from or pursuant to any plan sponsored, or agreement entered into, by
55 the corporation;
56 (D) the beneficiaries or recipients of the corporation's services;
S. 4611 57
1 (E) the corporation's creditors;
2 (F) the ability of the corporation to provide, as a going concern,
3 benefits, goods, services, employment opportunities and employment bene-
4 fits and otherwise to contribute to the communities in which it conducts
5 activities; and
6 (G) the accomplishment of the corporation's purposes as stated in the
7 certificate of incorporation.
8 Nothing in this paragraph shall create any duties owed by any director
9 to any person or entity to consider or afford any particular weight to
10 any of the foregoing or abrogate any duty of the directors, either stat-
11 utory or recognized by common law or court decisions.
12 For purposes of this paragraph, "control" shall mean the possession,
13 directly or indirectly, of the power to direct or cause the direction of
14 the management and policies of the corporation, whether through member-
15 ship or otherwise.
16 § 718. List of directors and officers.
17 (a) If a member of a corporation, in person or by his or her attorney
18 or agent, or a representative of the district attorney or of the secre-
19 tary of state, the attorney general, or other state official, makes a
20 written demand on a corporation to inspect a current list of its direc-
21 tors and officers and their addresses, the corporation shall, within two
22 business days after receipt of the demand and for a period of one week
23 thereafter, make the list available for such inspection at its office
24 during usual business hours. Any correspondence addressed to a director
25 or officer and received by the corporation shall be given by the corpo-
26 ration to the director or officer.
27 (b) Upon refusal by the corporation to make a current list of its
28 directors and officers and their addresses available, as provided in
29 paragraph (a) of this section, the person making a demand for such list
30 may apply, ex parte, to the supreme court at a special term held within
31 the judicial district where the office of the corporation is located for
32 an order directing the corporation to make such list available. The
33 court may grant such order or take such other action as it may deem just
34 and proper.
35 § 719. Liability of directors in certain cases.
36 (a) Directors of a corporation who vote for or concur in any of the
37 following corporate actions shall be jointly and severally liable to the
38 corporation for the benefit of its creditors or members or the ultimate
39 beneficiaries of its activities, to the extent of any injury suffered by
40 such persons, respectively, as a result of such action, or, if there be
41 no creditors or members or ultimate beneficiaries so injured, to the
42 corporation, to the extent of any injury suffered by the corporation as
43 a result of such action:
44 (1) The distribution of the corporation's cash or property to members,
45 directors or officers, other than a distribution permitted under section
46 515 of this chapter.
47 (2) The redemption of capital certificates or bonds, to the extent
48 such redemption is contrary to the provisions of section 502, 504, or
49 506 of this chapter.
50 (3) The payment of interest to the holders or beneficiaries of bonds
51 to the extent such payment is contrary to the provisions of section 504
52 or 506 of this chapter.
53 (4) The distribution of assets in violation of section 1002-a of this
54 chapter or without paying or adequately providing for all known liabil-
55 ities of the corporation, excluding any claims not filed by creditors
S. 4611 58
1 within the time limit set in a notice given to creditors under article
2 10 or 11 of this chapter.
3 (5) The making of any loan contrary to section 716 of this article.
4 (b) A director who is present at a meeting of the board, or any
5 committee thereof, at which action specified in paragraph (a) of this
6 section is taken shall be presumed to have concurred in the action
7 unless his or her dissent thereto shall be entered in the minutes of the
8 meeting, or unless he or she shall submit a written dissent to the
9 person acting as the secretary of the meeting before the adjournment
10 thereof, or shall deliver or send by registered mail such dissent to the
11 secretary of the corporation promptly after the adjournment of the meet-
12 ing. Such right to dissent shall not apply to a director who voted in
13 favor of such action. A director who is absent from a meeting of the
14 board, or any committee thereof, at which such action is taken shall be
15 presumed to have concurred in the action unless he or she shall deliver
16 or send by registered mail a dissent thereto to the secretary of the
17 corporation or shall cause such dissent to be filed with the minutes of
18 the proceedings of the board or committee within a reasonable time after
19 learning of such action.
20 (c) Any director against whom a claim is successfully asserted under
21 this section shall be entitled to contribution from the other directors
22 who voted for or concurred in the action upon which the claim is
23 asserted.
24 (d) Directors against whom a claim is successfully asserted under this
25 section shall be entitled, to the extent of the amounts paid by them to
26 the corporation as a result of such claims:
27 (1) Upon reimbursement to the corporation of any amount of an improper
28 distribution of the corporation's cash or property, to be subrogated to
29 the rights of the corporation against members, directors or officers who
30 received such distribution with knowledge of facts indicating that it
31 was not authorized by this chapter, in proportion to the amounts
32 received by them respectively.
33 (2) Upon reimbursement to the corporation of an amount representing an
34 improper redemption of a capital certificate or bond, to have the corpo-
35 ration rescind such improper redemption and recover the amount paid, for
36 their benefit but at their expense, from any member or holder who
37 received such payment with knowledge of facts indicating that such
38 redemption by the corporation was not authorized by this chapter.
39 (3) Upon reimbursement to the corporation of an amount representing
40 all or part of an improper payment of interest to the holder or benefi-
41 ciary of a bond, to have the corporation recover the amount so paid, for
42 their benefit but at their expense, from any holder or beneficiary who
43 received such payment with knowledge of facts indicating that such
44 payment by the corporation was not authorized by this chapter.
45 (4) Upon payment to the corporation of the claim of the attorney
46 general or of any creditor by reason of a violation of subparagraph (4)
47 of paragraph (a) of this section, to be subrogated to the rights of the
48 corporation against any person who received an improper distribution of
49 assets.
50 (5) Upon reimbursement to the corporation of the amount of any loan
51 made contrary to section 716 of this article, to be subrogated to the
52 rights of the corporation against a director or officer who received the
53 improper loan.
54 (e) A director or officer shall not be liable under this section if,
55 in the circumstances, the director discharged his or her duty to the
56 corporation under section 717 of this article.
S. 4611 59
1 (f) This section shall not affect any liability otherwise imposed by
2 law upon any director or officer.
3 § 720. Actions on behalf of the corporation.
4 (a) An action may be brought against one or more directors or officers
5 of a corporation to procure a judgment for the following relief:
6 (1) To compel the defendant to account for official conduct in the
7 following cases:
8 (A) The neglect of, or failure to perform, or other violation of
9 duties in the management and disposition of corporate assets committed
10 to the duties of such person.
11 (B) The acquisition by such person, transfer to others, loss or waste
12 of corporate assets due to any neglect of, or failure to perform, or
13 other violation of the duties of such person.
14 (2) To set aside an unlawful conveyance, assignment or transfer of
15 corporate assets, where the transferee knew of its unlawfulness.
16 (3) To enjoin a proposed unlawful conveyance, assignment or transfer
17 of corporate assets, where there are reasonable grounds for belief that
18 it will be made.
19 (b) An action may be brought for the relief provided in this section
20 and in paragraph (a) of section 719 of this article by the attorney
21 general, by the corporation, or, in the right of the corporation, by any
22 of the following:
23 (1) A director or officer of the corporation.
24 (2) A receiver, trustee in bankruptcy, or judgment creditor thereof.
25 (3) Under section 623 of this chapter, by one or more of the members
26 thereof.
27 (4) If the certificate of incorporation or the by-laws so provide, by
28 any contributor to the corporation of cash or property of the value of
29 one thousand dollars or more.
30 (c) In a corporation having no members, an action may be brought by a
31 director against third parties to obtain a judgment in favor of the
32 corporation. The complaint shall set forth with particularity the
33 efforts of the plaintiff to secure the initiation of such action by the
34 board or the reason for not making such efforts. The court in its
35 discretion shall determine whether it is in the interest of the corpo-
36 ration that the action be maintained, and if the action is successful in
37 whole or in part, what reimbursement if any should be made out of the
38 corporate treasury to the plaintiff for reasonable expenses including
39 attorney's fees, incurred in the prosecution of the action.
40 § 720-a. Liability of directors, officers and trustees.
41 Except as provided in sections 719 and 720 of this article, and except
42 any action or proceeding brought by the attorney general or, in the case
43 of a charitable trust, an action or proceeding against a trustee brought
44 by a beneficiary of such trust, no person serving without compensation
45 as a director, officer or trustee of a corporation, association, organ-
46 ization or trust described in section 501(c)(3) of the United States
47 internal revenue code shall be liable to any person other than such
48 corporation, association, organization or trust based solely on his or
49 her conduct in the execution of such office unless the conduct of such
50 director, officer or trustee with respect to the person asserting
51 liability constituted gross negligence or was intended to cause the
52 resulting harm to the person asserting such liability. For purposes of
53 this section, such a director, officer or trustee shall not be consid-
54 ered compensated solely by reason of payment of his or her actual
55 expenses incurred in attending meetings or otherwise in the execution of
56 such office.
S. 4611 60
1 § 721. Nonexclusivity of statutory provisions for indemnification of
2 directors and officers.
3 The indemnification and advancement of expenses granted pursuant to,
4 or provided by, this article shall not be deemed exclusive of any other
5 rights to which a director or officer seeking indemnification or
6 advancement of expenses may be entitled, whether contained in the
7 certificate of incorporation or the by-laws or, when authorized by such
8 certificate of incorporation or by-laws, (a) a resolution of members,
9 (b) a resolution of directors, or (c) an agreement providing for such
10 indemnification, provided that no indemnification may be made to or on
11 behalf of any director or officer if a judgment or other final adjudi-
12 cation adverse to the director or officer establishes that his or her
13 acts were committed in bad faith or were the result of active and delib-
14 erate dishonesty and were material to the cause of action so adjudi-
15 cated, or that he or she personally gained in fact a financial profit or
16 other advantage to which he or she was not legally entitled. Nothing
17 contained in this article shall affect any rights to indemnification to
18 which corporate personnel other than directors and officers may be enti-
19 tled by contract or otherwise under law.
20 § 722. Authorization for indemnification of directors and officers.
21 (a) A corporation may indemnify any person, made, or threatened to be
22 made, a party to an action or proceeding other than one by or in the
23 right of the corporation to procure a judgment in its favor, whether
24 civil or criminal, including an action by or in the right of any other
25 corporation of any type or kind, domestic or foreign, or any partner-
26 ship, joint venture, trust, employee benefit plan or other enterprise,
27 which any director or officer of the corporation served in any capacity
28 at the request of the corporation, by reason of the fact that he, his
29 testator or intestate, was a director or officer of the corporation, or
30 served such other corporation, partnership, joint venture, trust,
31 employee benefit plan or other enterprise in any capacity, against judg-
32 ments, fines, amounts paid in settlement and reasonable expenses,
33 including attorneys' fees actually and necessarily incurred as a result
34 of such action or proceeding, or any appeal therein, if such director or
35 officer acted, in good faith, for a purpose which he or she reasonably
36 believed to be in, or, in the case of service for any other corporation
37 or any partnership, joint venture, trust, employee benefit plan or other
38 enterprise, not opposed to, the best interests of the corporation and,
39 in criminal actions or proceedings, in addition, had no reasonable cause
40 to believe that his or her conduct was unlawful.
41 (b) The termination of any such civil or criminal action or proceeding
42 by judgment, settlement, conviction or upon a plea of nolo contendere,
43 or its equivalent, shall not in itself create a presumption that any
44 such director or officer did not act, in good faith, for a purpose which
45 he or she reasonably believed to be in, or, in the case of service for
46 any other corporation or any partnership, joint venture, trust, employee
47 benefit plan or other enterprise, not opposed to, the best interests of
48 the corporation or that he or she had reasonable cause to believe that
49 his or her conduct was unlawful.
50 (c) A corporation may indemnify any person made, or threatened to be
51 made, a party to an action by or in the right of the corporation to
52 procure a judgment in its favor by reason of the fact that he, his
53 testator or intestate, is or was a director or officer of the corpo-
54 ration, or is or was serving at the request of the corporation as a
55 director or officer of any other corporation of any type or kind, domes-
56 tic or foreign, of any partnership, joint venture, trust, employee bene-
S. 4611 61
1 fit plan or other enterprise, against amounts paid in settlement and
2 reasonable expenses, including attorneys' fees, actually and necessarily
3 incurred by him or her in connection with the defense or settlement of
4 such action, or in connection with an appeal therein, if such director
5 or officer acted, in good faith, for a purpose which he or she reason-
6 ably believed to be in, or, in the case of service for any other corpo-
7 ration or any partnership, joint venture, trust, employee benefit plan
8 or other enterprise, not opposed to, the best interests of the corpo-
9 ration, except that no indemnification under this paragraph shall be
10 made in respect of (1) a threatened action, or a pending action which is
11 settled or otherwise disposed of, or (2) any claim, issue or matter as
12 to which such person shall have been adjudged to be liable to the corpo-
13 ration, unless and only to the extent that the court in which the action
14 was brought, or, if no action was brought, any court of competent juris-
15 diction, determines upon application that, in view of all the circum-
16 stances of the case, the person is fairly and reasonably entitled to
17 indemnity for such portion of the settlement amount and expenses as the
18 court deems proper.
19 (d) For the purpose of this section, a corporation shall be deemed to
20 have requested a person to serve an employee benefit plan where the
21 performance by such person of his or her duties to the corporation also
22 imposes duties on, or otherwise involves services by, such person to the
23 plan or participants or beneficiaries of the plan; excise taxes assessed
24 on a person with respect to an employee benefit plan pursuant to appli-
25 cable law shall be considered fines; and action taken or omitted by a
26 person with respect to an employee benefit plan in the performance of
27 such person's duties for a purpose reasonably believed by such person to
28 be in the interest of the participants and beneficiaries of the plan
29 shall be deemed to be for a purpose which is not opposed to the best
30 interests of the corporation.
31 § 723. Payment of indemnification other than by court award.
32 (a) A person who has been successful, on the merits or otherwise, in
33 the defense of a civil or criminal action or proceeding of the character
34 described in section 722 of this article shall be entitled to indemnifi-
35 cation as authorized in such section.
36 (b) Except as provided in paragraph (a) of this section, any indemni-
37 fication under section 722 of this article or otherwise permitted by
38 section 721 of this article, unless ordered by a court under section 724
39 of this article, shall be made by the corporation, only if authorized in
40 the specific case:
41 (1) By the board acting by a quorum consisting of directors who are
42 not parties to such action or proceeding upon a finding that the direc-
43 tor or officer has met the standard of conduct set forth in section 722
44 of this article or established pursuant to section 721 of this article,
45 as the case may be, or,
46 (2) If a quorum under subparagraph (1) of this paragraph is not
47 obtainable or, even if obtainable, a quorum of disinterested directors
48 so directs:
49 (A) By the board upon the opinion in writing of independent legal
50 counsel that indemnification is proper in the circumstances because the
51 applicable standard of conduct set forth in such sections has been met
52 by such director or officer, or
53 (B) By the members upon a finding that the director or officer has met
54 the applicable standard of conduct set forth in such sections.
55 (c) Expenses incurred in defending a civil or criminal action or
56 proceeding may be paid by the corporation in advance of the final dispo-
S. 4611 62
1 sition of such action or proceeding upon receipt of an undertaking by or
2 on behalf of such director or officer to repay such amount as, and to
3 the extent, required by paragraph (a) of section 725 of this article.
4 § 724. Indemnification of directors and officers by a court.
5 (a) Notwithstanding the failure of a corporation to provide indemnifi-
6 cation, and despite any contrary resolution of the board or of the
7 members in the specific case under section 723 of this article, indemni-
8 fication shall be awarded by a court to the extent authorized under
9 section 722, and paragraph (a) of section 723 of this article. Applica-
10 tion therefor may be made, in every case, either:
11 (1) In the civil action or proceeding in which the expenses were
12 incurred or other amounts were paid, or
13 (2) To the supreme court in a separate proceeding, in which case the
14 application shall set forth the disposition of any previous application
15 made to any court for the same or similar relief and also reasonable
16 cause for the failure to make application for such relief in the action
17 or proceeding in which the expenses were incurred or other amounts were
18 paid.
19 (b) The application shall be made in such manner and form as may be
20 required by the applicable rules of court or, in the absence thereof, by
21 direction of a court to which it is made. Such application shall be upon
22 notice to the corporation. The court may also direct that notice be
23 given at the expense of the corporation to the members and such other
24 persons as it may designate in such manner as it may require.
25 (c) Where indemnification is sought by judicial action, the court may
26 allow a person such reasonable expenses, including attorneys' fees,
27 during the pendency of the litigation as are necessary in connection
28 with such person's defense therein, if the court shall find that the
29 defendant has by his or her pleadings or during the course of the liti-
30 gation raised genuine issues of fact or law.
31 § 725. Other provisions affecting indemnification of directors and offi-
32 cers.
33 (a) All expenses incurred in defending a civil or criminal action or
34 proceeding which are advanced by the corporation under paragraph (c) of
35 section 723 of this article or allowed by a court under paragraph (c) of
36 section 724 of this article shall be repaid in case the person receiving
37 such advancement or allowance is ultimately found, under the procedure
38 set forth in this article, not to be entitled to indemnification or,
39 where indemnification is granted, to the extent the expenses so advanced
40 by the corporation or allowed by the court exceed the indemnification to
41 which he or she is entitled.
42 (b) No indemnification, advancement or allowance shall be made under
43 this article in any circumstance where it appears:
44 (1) That the indemnification would be inconsistent with the law of the
45 jurisdiction of incorporation of a foreign corporation which prohibits
46 or otherwise limits such indemnification; or
47 (2) That the indemnification would be inconsistent with a provision of
48 the certificate of incorporation, a by-law, a resolution of the board or
49 of the members, an agreement or other proper corporate action, in effect
50 at the time of the accrual of the alleged cause of action asserted in
51 the threatened or pending action or proceeding in which the expenses
52 were incurred or other amounts were paid, which prohibits or otherwise
53 limits indemnification; or
54 (3) If there has been a settlement approved by the court, that the
55 indemnification would be inconsistent with any condition with respect to
S. 4611 63
1 indemnification expressly imposed by the court in approving the settle-
2 ment.
3 (c) If any expenses or other amounts are paid by way of indemnifica-
4 tion, otherwise than by court order or action by the members, the corpo-
5 ration shall prepare a statement specifying the persons paid, the
6 amounts paid, and the nature and status at the time of such payment of
7 the litigation or threatened litigation, and
8 (1) Not later than the next annual meeting of members, unless such
9 meeting is held within three months from the date of such payment, and,
10 in any event, within fifteen months of the date of such payment, shall
11 mail the statement to its members of record entitled at the time to vote
12 for the election of directors; or
13 (2) If the corporation has no members, shall include the statement in
14 the records of the corporation open to public inspection; or
15 (3) If the corporation is a cemetery corporation, as defined in para-
16 graph (a) of section 1502 of this chapter, which term, for the purposes
17 of this section, shall include a religious corporation having members,
18 (A) by including the statement required by this paragraph or paragraph
19 (d) of section 726 of this article, as the case may be in the records of
20 the corporation open to public inspection; (B) by including the informa-
21 tion required by the statement in any notice published pursuant to the
22 provisions of section 605 of this article, except as otherwise provided
23 by law; (C) by enclosing the statement with the notice of annual meeting
24 if such notice is in fact mailed to the members; and (D) by raising the
25 issue for approval at the next annual meeting of the members.
26 (d) If any action with respect to indemnification of directors and
27 officers is taken by way of amendment of the by-laws, resolution of
28 directors, or by agreement, then the corporation shall, not later than
29 the next annual meeting of members, unless such meeting is held within
30 three months from the date of such action, and, in any event, within
31 fifteen months from the date of such action, mail to its members of
32 record at the time entitled to vote for the election of directors a
33 statement specifying the action taken. If the corporation has no
34 members, the statement shall be included in the records of the corpo-
35 ration open to public inspection.
36 (e) The provisions of this article relating to indemnification of
37 directors and officers and insurance therefor shall apply to domestic
38 corporations and foreign corporations conducting activities in this
39 state, except as provided in section 1321 of this chapter.
40 § 726. Insurance for indemnification of directors and officers.
41 (a) Subject to paragraph (b) of this section, a corporation shall have
42 power to purchase and maintain insurance:
43 (1) To indemnify the corporation for any obligation which it incurs as
44 a result of the indemnification of directors and officers under the
45 provisions of this article, and
46 (2) To indemnify directors and officers in instances in which they may
47 be indemnified by the corporation under the provisions of this article,
48 and
49 (3) To indemnify directors and officers in instances in which they may
50 not otherwise be indemnified by the corporation under the provisions of
51 this article provided the contract of insurance covering such directors
52 and officers provides, in a manner acceptable to the superintendent of
53 insurance, for a retention amount and for co-insurance.
54 (b) No insurance under paragraph (a) of this section may provide for
55 any payment, other than cost of defense, to or on behalf of any director
56 or officer:
S. 4611 64
1 (1) if a judgment or other final adjudication adverse to the insured
2 director or officer establishes that his or her acts of active and
3 deliberate dishonesty were material to the cause of action so adjudi-
4 cated, or that he or she personally gained in fact a financial profit or
5 other advantage to which he or she was not legally entitled, or
6 (2) in relation to any risk the insurance of which is prohibited under
7 the insurance law of this state.
8 (c) Insurance under any or all subparagraphs of paragraph (a) of this
9 section may be included in a single contract or supplement thereto.
10 Retrospective rated contracts are prohibited.
11 (d) The corporation shall, within the time and to the persons provided
12 in paragraph (c) of section 725 of this article, mail a statement in
13 respect to any insurance it has purchased or renewed under this section,
14 specifying the insurance carrier, date of the contract, cost of the
15 insurance, corporate positions insured, and a statement explaining all
16 sums, not previously reported in a statement to members, paid under any
17 indemnification insurance contract. Notwithstanding any other provision
18 of law, a cemetery corporation or a religious corporation having members
19 which purchases or renews any insurance under this section after the
20 effective date of this paragraph, which corporation had two hundred
21 fifty or more interments in the calendar year preceding such purchase or
22 renewal, shall mail the statement required by this section to every
23 person to whom a care notice or solicitation for services has been sent
24 during such calendar year and to every person to whom a notice of annual
25 meeting was mailed during such calendar year, but in no event to less
26 than ten per centum of the lot owners of record during such calendar
27 year. Such corporation shall not be required to mail such statement
28 during any subsequent year, unless such corporation elects to mail
29 notices of annual meeting to its members in which event the statement
30 shall be enclosed as provided in clause (C) of subparagraph (3) of para-
31 graph (c) of section 725 of this article. A corporation having less
32 than two hundred fifty interments in the calendar year preceding such
33 purchase or renewal shall not be required to mail such statement unless
34 such corporation elects to mail notices of annual meeting to its members
35 in which event the statement shall be enclosed as provided in clause (C)
36 of subparagraph (3) of paragraph (c) of section 725 of this article.
37 § 8. Article 8 of the not-for-profit corporation law is REPEALED and a
38 new article 8 is added to read as follows:
39 ARTICLE 8
40 AMENDMENTS AND CHANGES
41 Section 801. Right to amend certificate of incorporation.
42 802. Authorization of amendment or change, class vote.
43 803. Class voting on amendment.
44 804. Certificate of amendment; contents.
45 805. Certificate of change; contents.
46 806. Approvals and effect.
47 807. Restated certificate of incorporation.
48 § 801. Right to amend certificate of incorporation.
49 (a) A corporation may amend its certificate of incorporation, from
50 time to time, in any and as many respects as may be desired, if such
51 amendment contains only such provisions as might be lawfully contained
52 in an original certificate of incorporation filed at the time of making
53 such amendment. No amendment to a certificate of incorporation shall be
54 adopted the effect of which would be to use any assets received for
55 specific purposes in a manner inconsistent with such purposes.
S. 4611 65
1 (b) In particular, and without limitation upon such general power of
2 amendment, a corporation may amend its certificate of incorporation,
3 from time to time, so as:
4 (1) To change its corporate name.
5 (2) To enlarge, limit or otherwise change its corporate purposes.
6 (3) To specify, change or revoke the voting rights of its directors or
7 members or of any class of members.
8 (4) To specify or change the location of the office of the corpo-
9 ration.
10 (5) To specify or change the post office address to which the secre-
11 tary of state shall mail a copy of any process against the corporation
12 served upon the secretary of state.
13 (6) To make, revoke or change the designation of a registered agent,
14 or to specify or change the address of its registered agent.
15 (7) To extend the duration of the corporation or, if the corporation
16 ceased to exist because of the expiration of the duration specified in
17 its certificate of incorporation, to revive its existence.
18 (8) To authorize the issuance of capital certificates and to fix the
19 face value and terms of such certificates and the rights and privileges
20 of their holders and the manner in which the terms, rights and privi-
21 leges may be amended and to confer upon the holders of such certificates
22 the right to vote in the election of directors and upon any other
23 matters as may be set forth.
24 (9) To strike out, change or add any provision not inconsistent with
25 this chapter or any other statute relating to the affairs of the corpo-
26 ration, its rights or powers or the rights or powers of its members,
27 directors or officers, including any provision which under this chapter
28 is required or permitted to be set forth in the by-laws, except that a
29 certificate of amendment may not be filed wherein the duration of the
30 corporation shall be reduced.
31 (c) A corporation created by special act may accomplish any or all
32 amendments permitted in this article, in the manner and subject to the
33 conditions provided in this article.
34 § 802. Authorization of amendment or change, class vote.
35 (a) Amendment or change of the certificate of incorporation shall be
36 authorized:
37 (1) if there are members entitled to vote thereon, by majority vote of
38 such members at a meeting as provided in paragraph (c) of section 613 of
39 this chapter;
40 (2) if there are no members entitled to vote thereon, by vote of a
41 majority of the entire board;
42 provided, however, that whenever the certificate of incorporation shall
43 require action by the board of directors or the members by a vote of a
44 greater number or percentage than is required by any section of this
45 article, the provision of the certificate of incorporation requiring
46 such greater vote shall not be altered, amended or repealed except by
47 such greater vote.
48 (b) Alternatively, any one or more of the following changes may be
49 authorized by or pursuant to authorization of the board:
50 (1) to specify or change the location of the corporation's office.
51 (2) to specify or change the post office address to which the secre-
52 tary of state shall mail a copy of any process against the corporation
53 served upon the secretary of state.
54 (3) to make, revoke or change the designation of a registered agent,
55 or to specify or change the address of its registered agent.
S. 4611 66
1 (c) This section shall not alter the vote required under any other
2 section for the authorization of an amendment referred to therein, nor
3 alter the authority of the board to authorize amendments under any other
4 section.
5 § 803. Class voting on amendment.
6 Notwithstanding any provision in the certificate of incorporation or
7 by-laws, members of a class shall be entitled to vote and to vote as a
8 class upon the authorization of an amendment and, in addition to the
9 authorization of the amendment by a majority of all members entitled to
10 vote thereon, the amendment shall be authorized by a majority of the
11 members of the class when a proposed amendment would exclude or limit
12 their right to vote on any matter, except as such right may be limited
13 by voting rights given to members of any existing or new class.
14 § 804. Certificate of amendment; contents.
15 (a) To accomplish any amendment, a certificate of amendment entitled
16 "Certificate of amendment of the certificate of incorporation of
17 ................................... (name of corporation) under section
18 804 of the Non-profit Corporation Law" shall be signed and delivered to
19 the department of state. It shall set forth:
20 (1) the name of the corporation and, if it has been changed, the name
21 under which it was formed.
22 (2) the date its certificate of incorporation was filed by the depart-
23 ment of state and the law under which it was formed.
24 (3) each amendment effected thereby, setting forth the subject matter
25 of each provision of the certificate of incorporation which is to be
26 amended or eliminated and the full text of the provision or provisions,
27 if any, which are to be substituted or added.
28 (4) the manner in which the amendment of the certificate of incorpo-
29 ration was authorized.
30 (b) Any number of amendments or changes may be included in one certif-
31 icate under this section. Such certificate may also include any amend-
32 ments or changes permitted by other sections and in that case the
33 certificate shall set forth any additional statement required by any
34 other section specifying the contents of a certificate to effect such
35 amendment or change.
36 § 805. Certificate of change; contents.
37 (a) Any one or more of the changes authorized by paragraph (b) of
38 section 802 of this article (Authorization of amendment or change, class
39 vote) may be accomplished by filing a certificate of change which shall
40 be entitled "Certificate of change of
41 ......................................... (name of corporation) under
42 section 805 of the Non-profit Corporation Law" and shall be signed and
43 delivered to the department of state. It shall set forth:
44 (1) the name of the corporation and if it has been changed, the name
45 under which it was formed.
46 (2) the date its certificate of incorporation was filed by the depart-
47 ment of state.
48 (3) each change effected thereby.
49 (4) the manner in which the change was authorized.
50 (b) A certificate of change which changes only the post office address
51 to which the secretary of state shall mail a copy of any process against
52 the corporation served upon the secretary of state or the address of the
53 registered agent, provided such address being changed is the address of
54 a person, partnership or other corporation whose address, as agent, is
55 the address to be changed or who has been designated as registered agent
56 for such corporation, may be signed and delivered to the department of
S. 4611 67
1 state by such agent. The certificate of change shall set forth the
2 statements required under subparagraphs (1), (2) and (3) of paragraph
3 (a) of this section; that a notice of the proposed change was mailed to
4 the corporation by the party signing the certificate not less than thir-
5 ty days prior to the date of delivery to the department and that such
6 corporation has not objected thereto; and that the party signing the
7 certificate is the agent of such corporation to whose address the secre-
8 tary of state is required to mail copies of process or the registered
9 agent, if such be the case. A certificate signed and delivered under
10 this paragraph shall not be deemed to effect a change of location of the
11 office of the corporation in whose behalf such certificate is filed.
12 § 806. Approvals and effect.
13 (a) A certificate of amendment shall be delivered to the department of
14 state. Upon the filing of a certificate of amendment by the department
15 of state, the corporation shall submit a certified copy of such certif-
16 icate within thirty days of the filing thereof to such other person or
17 governmental body as designated in section 404 of this chapter.
18 (b) The department of state shall not file a certificate of amendment
19 reviving the existence of a corporation if the name of the corporation
20 being revived is not available under section 301 of this chapter for use
21 by a corporation then being formed under this chapter, unless the
22 certificate of amendment shall change the name to one which is available
23 for such use.
24 (c) No amendment or change shall affect any existing cause of action
25 in favor of or against the corporation, or any pending suit to which it
26 shall be a party, or the existing rights of persons other than members;
27 and in the event the corporate name shall be changed, no suit brought by
28 or against the corporation under its former name shall abate for that
29 reason.
30 (d) Amendment of purposes shall not prevent the corporation from
31 applying assets acquired prior to such amendment to such amended
32 purposes, provided that the corporation shall abide by any gift instru-
33 ment for assets received for specific purposes prior to such amendment.
34 § 807. Restated certificate of incorporation.
35 (a) A corporation, when authorized by the board, may restate in a
36 single certificate the text of its certificate of incorporation without
37 making any amendment or change thereby, except that it may include any
38 one or more of the amendments or changes which may be authorized by the
39 board without a vote of members under this chapter. Alternatively, a
40 corporation may restate in a single certificate the text of its certif-
41 icate of incorporation as amended thereby to effect any one or more of
42 the amendments or changes authorized by this chapter, when authorized as
43 required by section 802 of this article.
44 (b) A restated certificate of incorporation, entitled "Restated
45 certificate of incorporation of ......................................
46 (name of corporation) under section 807 of the Non-profit Corporation
47 Law", shall be signed and delivered to the department of state. It shall
48 set forth:
49 (1) The name of the corporation and, if it has been changed, the name
50 under which it was formed.
51 (2) The date its certificate of incorporation was filed by the depart-
52 ment of state.
53 (3) If the restated certificate restates the text of the certificate
54 of incorporation without making any amendment or change, then a state-
55 ment that the text of the certificate of incorporation is thereby
S. 4611 68
1 restated without amendment or change to read as therein set forth in
2 full.
3 (4) If the restated certificate restates the text of the certificate
4 of incorporation as amended or changed thereby, then a statement that
5 the certificate of incorporation is amended or changed to effect one or
6 more of the amendments or changes authorized by this chapter, specifying
7 each such amendment or change and that the text of the certificate of
8 incorporation is thereby restated as amended or changed to read as ther-
9 ein set forth in full.
10 (5) The manner in which the restatement of the certificate of incorpo-
11 ration was authorized.
12 (c) A restated certificate need not include statements as to the
13 incorporator or incorporators, or the first directors.
14 (d) Any amendment or change under this section shall be subject to any
15 other section, not inconsistent with this section, which would be appli-
16 cable if a separate certificate were filed to effect such amendment or
17 change.
18 (e) Notwithstanding that the corporation would be required by any
19 statute to secure from any supreme court justice, governmental body or
20 officer, or other person or body, any consent or approval to the filing
21 of its certificate of incorporation or a certificate of amendment, such
22 consent or approval shall not be required with respect to a restated
23 certificate if such certificate makes no amendment and if any previously
24 required consent or approval had been secured.
25 (f) Upon filing by the department, the original certificate of incor-
26 poration shall be superseded and the restated certificate of incorpo-
27 ration, including any amendments and changes made thereby, shall be the
28 certificate of incorporation of the corporation.
29 § 9. Article 9 of the not-for-profit corporation law is REPEALED and a
30 new article 9 is added to read as follows:
31 ARTICLE 9
32 MERGER OR CONSOLIDATION
33 Section 901. Power of merger or consolidation.
34 902. Plan of merger or consolidation.
35 903. Approval of plan.
36 904. Certificate of merger or consolidation; contents.
37 905. Effect of merger or consolidation.
38 906. Merger or consolidation of domestic and foreign corpo-
39 rations.
40 907. Approval by the supreme court.
41 908. Merger or consolidation of business and non-profit corpo-
42 rations.
43 909. Filing notices, approvals or consents.
44 910. Merger or consolidation of corporations formed under the
45 religious corporations law and certain other corporations
46 formed for religious purposes.
47 § 901. Power of merger or consolidation.
48 (a) Two or more domestic corporations or one or more domestic corpo-
49 rations and one or more foreign corporations may, as provided in this
50 chapter:
51 (1) Merge into a single corporation which shall be one of the constit-
52 uent corporations; or
53 (2) Consolidate into a single corporation which shall be a new corpo-
54 ration to be formed pursuant to the consolidation.
55 (b) Whenever used in this article:
S. 4611 69
1 (1) "Merger" means a procedure of the character described in subpara-
2 graph (1) of paragraph (a) of this section.
3 (2) "Consolidation" means a procedure of the character described in
4 subparagraph (2) of paragraph (a) of this section.
5 (3) "Constituent corporation" means an existing domestic or foreign
6 corporation that is participating in the merger or consolidation with
7 one or more other corporations.
8 (4) "Surviving corporation" means the constituent corporation into
9 which one or more other constituent corporations are merged.
10 (5) "Consolidated corporation" means the new corporation into which
11 two or more constituent corporations are consolidated.
12 § 902. Plan of merger or consolidation.
13 (a) The board of each constituent corporation proposing to participate
14 in a merger or consolidation under section 901 of this article shall
15 adopt a plan of merger or consolidation, setting forth:
16 (1) The name of each constituent corporation and if the name of any of
17 them has been changed, the name under which it was formed, and the name
18 of the surviving corporation, or the name or the method of determining
19 it, of the consolidated corporation.
20 (2) As to each constituent corporation, a description of the member-
21 ship and holders of any certificates evidencing capital contributions,
22 including their number, classification, and voting rights, if any.
23 (3) The terms and conditions of the proposed merger or consolidation,
24 including the manner and basis of converting membership or other inter-
25 est in each constituent corporation into membership or other interest in
26 the surviving or consolidated corporation, or the cash or other consid-
27 eration to be paid or delivered in exchange for membership or other
28 interest in each constituent corporation, or a combination thereof.
29 (4) In case of merger, a statement of any amendments or changes in the
30 certificate of incorporation of the surviving corporation to be effected
31 by such merger; in case of consolidation, all statements required to be
32 included in a certificate of incorporation for a corporation formed
33 under this chapter, except statements as to facts not available at the
34 time the plan of consolidation is adopted by the board.
35 (5) In case of a merger or consolidation under section 906 of this
36 article, a statement of any agreements required by clause (D) of subpar-
37 agraph (2) of paragraph (d) of section 906 of this article.
38 (6) Such other provisions with respect to the proposed merger or
39 consolidation as the board considers necessary or desirable.
40 § 903. Approval of plan.
41 (a) The plan of merger or consolidation of each domestic constituent
42 corporation shall be approved in accordance with the following:
43 (1) If the merging or consolidating corporation has no members enti-
44 tled to vote thereon, upon adoption by the board of such corporation
45 pursuant to section 902 of this article.
46 (2) If the merging or consolidating corporation has members entitled
47 to vote thereon, after adoption by the board of such corporation, upon
48 adoption at a meeting of the members by two-thirds vote as provided in
49 paragraph (c) of section 613 of this chapter. Notice of meeting shall be
50 given to each member whether or not entitled to vote. A copy of the
51 plan of merger or consolidation or an outline of the material features
52 of the plan shall accompany such notice.
53 (b) Notwithstanding authorization as provided herein, at any time
54 prior to the filing of the certificate of merger or consolidation, the
55 plan of merger or consolidation may be abandoned pursuant to a provision
S. 4611 70
1 for such abandonment, if any, contained in the plan of merger or consol-
2 idation.
3 § 904. Certificate of merger or consolidation; contents.
4 (a) After adoption of the plan of merger or consolidation unless the
5 merger or consolidation is abandoned in accordance with paragraph (b) of
6 section 903 of this article a certificate of merger or consolidation,
7 entitled "Certificate of merger (or consolidation) of __________ and
8 ________ into (names of corporations) under section 904 of the Non-Pro-
9 fit Corporation Law," shall be executed on behalf of each constituent
10 corporation and delivered to the department of state. It shall set
11 forth:
12 (1) The statements required by subparagraphs (1), (2), (3) and (4) of
13 paragraph (a) of section 902 of this article.
14 (2) The effective date of the merger or consolidation if other than
15 the date of filing of the certificate of merger or consolidation by the
16 department of state.
17 (3) In the case of consolidation, any statement required to be
18 included in a certificate of incorporation formed under this chapter but
19 which was omitted under subparagraph (4) of paragraph (a) of section 902
20 of this article.
21 (4) The date when the certificate of incorporation of each constituent
22 corporation was filed by the department of state or, in the case of
23 constituent corporations created by special law, the chapter number and
24 year of passage of such law.
25 (5) The manner in which the merger or consolidation was authorized
26 with respect to each constituent corporation.
27 (b) The surviving or consolidated corporation shall thereafter cause a
28 copy of such certificate certified by the department of state, to be
29 filed in the office of the clerk of each county in which the office of a
30 constituent corporation, other than the surviving corporation, is
31 located, and in the office of the official who is the recording officer
32 of each county in this state in which real property of a constituent
33 corporation, other than the surviving corporation, is situated.
34 § 905. Effect of merger or consolidation.
35 (a) Upon the filing of the certificate of merger or consolidation by
36 the department of state or on such date subsequent thereto, not to
37 exceed thirty days, as shall be set forth in such certificate, the merg-
38 er or consolidation shall be effected.
39 (b) When such merger or consolidation has been effected:
40 (1) Such surviving or consolidated corporation shall thereafter,
41 consistently with its certificate of incorporation as altered or estab-
42 lished by the merger or consolidation, possess all the rights, privi-
43 leges, immunities, powers and purposes of each of the constituent corpo-
44 rations.
45 (2) All the property, real and personal, including causes of action
46 and every other asset of each of the constituent corporations, shall
47 vest in such surviving or consolidated corporation without further act
48 or deed, except as otherwise provided in paragraph (b) of section 907 of
49 this article. Except as the court may otherwise direct, any disposition
50 made in a will or in any other instrument executed under the laws of
51 this state, and taking effect after such merger or consolidation, to or
52 for the benefit of any of the constituent corporations shall inure to
53 the benefit of the surviving or consolidated corporation.
54 (3) The surviving or consolidated corporation shall assume and be
55 liable for all the liabilities, obligations and penalties of each of the
56 constituent corporations. No liability or obligation due or to become
S. 4611 71
1 due, claim or demand for any cause existing against any such corpo-
2 ration, or any member, officer or director thereof, shall be released or
3 impaired by such merger or consolidation. No action or proceeding,
4 whether civil or criminal, then pending by or against any such constitu-
5 ent corporation, or any member, officer or director thereof, shall abate
6 or be discontinued by such merger or consolidation, but may be enforced,
7 prosecuted, settled or compromised as if such merger or consolidation
8 had not occurred, or such surviving or consolidated corporation may be
9 substituted in such action or special proceeding in place of any
10 constituent corporation. Except as the court may otherwise direct, any
11 obligation with respect to any assets received for specific purposes
12 shall be deemed to continue in and through the surviving or consolidated
13 corporation.
14 (4) In the case of a merger, the certificate of incorporation of the
15 surviving corporation shall be automatically amended to the extent, if
16 any, that changes in its certificate of incorporation are set forth in
17 the plan of merger; and, in the case of a consolidation, the statements
18 set forth in the certificate of consolidation and which are required or
19 permitted to be set forth in a certificate of incorporation of a corpo-
20 ration formed under this chapter shall be its certificate of incorpo-
21 ration.
22 § 906. Merger or consolidation of domestic and foreign corporations.
23 (a) One or more foreign corporations and one or more domestic corpo-
24 rations may be merged or consolidated into a corporation of this state
25 or of another jurisdiction, if such merger or consolidation is permitted
26 by the laws of the jurisdiction under which each such foreign corpo-
27 ration is incorporated. With respect to such merger or consolidation,
28 any reference in paragraph (b) of section 901 of this article to a
29 corporation shall, unless the context otherwise requires, include both
30 domestic and foreign corporations.
31 (b) With respect to procedure, including any requirement of approval
32 by members, each domestic corporation shall comply with the provisions
33 of this chapter relating to merger or consolidation of domestic corpo-
34 rations, and each foreign corporation shall comply with the applicable
35 provisions of the law of the jurisdiction under which it is incorpo-
36 rated.
37 (c) If the surviving or consolidated corporation is, or is to be, a
38 domestic corporation, a certificate of merger or consolidation shall be
39 signed, verified and delivered to the department of state as provided in
40 section 904 of this article. In addition to the matters specified in
41 such section, the certificate shall set forth as to each constituent
42 foreign corporation the jurisdiction and date of its incorporation and
43 the date when its application for authority to conduct activities in
44 this state was filed by the department of state, and its fictitious name
45 used in this state pursuant to article 13 of this chapter, if applica-
46 ble, or, if no such application has been filed, a statement to such
47 effect.
48 (d) If the surviving or consolidated corporation is, or is to be,
49 formed under the law of any jurisdiction other than this state:
50 (1) It shall comply with the provisions of this chapter relating to
51 foreign corporations if it is to conduct activities in this state.
52 (2) It shall deliver to the department of state a certificate, enti-
53 tled "Certificate of merger (or consolidation) of ......... and
54 ......... into ......... (names of corporations) under section 906 of
55 the Non-Profit Corporation Law", which shall be signed on behalf of each
56 constituent domestic and foreign corporation. It shall set forth:
S. 4611 72
1 (A) The statements required by subparagraphs (1), (2), (3), (4) and
2 (5) of paragraph (a) of section 902 of this article.
3 (B) The jurisdiction and date of incorporation of the surviving or
4 consolidated foreign corporation, the date when its application for
5 authority to conduct activities in this state was filed by the depart-
6 ment of state, and its fictitious name used in this state pursuant to
7 article 13 of this chapter, if applicable, or, if no such application
8 has been filed, a statement to such effect and that it is not to conduct
9 activities in this state until an application for such authority shall
10 have been filed by such department.
11 (C) The date when the certificate of incorporation of each constituent
12 domestic corporation was filed by the department of state and the juris-
13 diction and date of incorporation of each constituent foreign corpo-
14 ration, other than the surviving or consolidated foreign corporation,
15 and; in the case of each such corporation authorized to conduct activ-
16 ities in this state, the date when its application for authority was
17 filed by the department of state.
18 (D) An agreement that the surviving or consolidated foreign corpo-
19 ration may be served with process in this state in any action or special
20 proceeding for the enforcement of any liability or obligation of any
21 domestic corporation or of any foreign corporation, previously amenable
22 to suit in this state, which is a constituent corporation in such merger
23 or consolidation, and an agreement that the surviving or consolidated
24 foreign corporation may be sued in this state in respect of any property
25 transferred or conveyed to it as provided in section 907 of this arti-
26 cle, or the use made of such property, or any transaction in connection
27 therewith.
28 (E) A designation of the secretary of state as its agent upon whom
29 process against it may be served in the manner set forth in paragraph
30 (b) of section 306 of this chapter, in any action or special proceeding
31 described in clause (D) of this subparagraph and a post office address,
32 within or without this state, to which the secretary of state shall mail
33 a copy of the process in such action.
34 (F) The manner in which the plan of merger or consolidation was
35 approved with respect to each constituent domestic corporation and that
36 the merger or consolidation is permitted by the laws of the jurisdiction
37 of each constituent foreign corporation and is in compliance therewith.
38 (G) The effective date of the merger or consolidation if other than
39 the date of filing of the certificate of merger or consolidation by the
40 department of state.
41 (e) Upon the filing of the certificate of merger or consolidation by
42 the department of state or on such date subsequent thereto, not to
43 exceed ninety days as shall be set forth in such certificate, the merger
44 or consolidation shall be effected.
45 (f) The surviving or consolidated domestic or foreign corporation
46 shall thereafter cause a copy of such certificate, certified by the
47 department of state, to be filed in the office of the clerk of each
48 county in which the office of a constituent corporation, other than the
49 surviving corporation, is located, and in the office of the official who
50 is the recording officer of each county in this state in which real
51 property of a constituent corporation, other than the surviving corpo-
52 ration, is situated.
53 (g) If the surviving or consolidated corporation is, or is to be,
54 formed under the law of this state, the effect of such merger or consol-
55 idation shall be the same as in the case of the merger or consolidation
56 of domestic corporations under section 905 of this article. If the
S. 4611 73
1 surviving or consolidated corporation is, or is to be, incorporated
2 under the law of any jurisdiction other than this state, the effect of
3 such merger or consolidation shall be the same as in the case of the
4 merger or consolidation of domestic corporations, except insofar as the
5 law of such other jurisdiction provides otherwise.
6 § 907. Approval by the supreme court.
7 (a) No certificate shall be filed pursuant to section 904 of this
8 article, section 906 of this article or section 908 of this article with
9 respect to a domestic constituent corporation that is organized for
10 charitable purposes and that holds assets received for specific purposes
11 until an order approving the plan of merger or consolidation and author-
12 izing the filing of the certificate has been made by the supreme court,
13 as provided in this section. A certified copy of such order shall be
14 annexed to the certificate of merger or consolidation. Application for
15 the order may be made in the judicial district in which the principal
16 office of the surviving or consolidated corporation is to be located, or
17 in which the office of one of the domestic constituent corporations is
18 located. The application shall be made by domestic constituent corpo-
19 ration and shall set forth by affidavit (1) the plan of merger or
20 consolidation, (2) the approval required by section 903 of this article
21 or paragraph (b) of section 906 of this article for each constituent
22 corporation, and the manner in which they are held.
23 (b) Upon the filing of the application the court shall fix a time for
24 hearing thereof and shall direct that notice thereof be given to such
25 persons as the court may deem interested, including the attorney gener-
26 al, any governmental body or officer and any other person or body whose
27 consent or approval is required by section 909 of this article, in such
28 form and manner as the court may prescribe, which persons may appear and
29 show cause why the application should not be granted.
30 (c) If the court shall find that any of the assets of a domestic
31 constituent corporation received for specific purposes will be adversely
32 affected by the merger or consolidation, it may approve the transfer or
33 conveyance of the subject assets to one or more other domestic or
34 foreign corporations or organizations engaged in substantially similar
35 activities.
36 § 908. Merger or consolidation of business and non-profit corporations.
37 (a) One or more domestic or foreign corporations which is, or would be
38 if formed under this chapter, a corporation organized and operated under
39 section 201 of this chapter may be merged or consolidated into a domes-
40 tic or foreign corporation which is, or would be if formed under the
41 laws of this state, a corporation formed under the business corporation
42 law of this state if such merger or consolidation is not contrary to the
43 law of the state of incorporation of any constituent corporation. With
44 respect to such merger or consolidation, any reference in paragraph (b)
45 of section 901 of this article or paragraph (b) of section 901 of the
46 business corporation law to a corporation shall, unless the context
47 otherwise requires, include both domestic and foreign corporations.
48 (b) With respect to procedure including authorization by shareholders
49 or approval by members, each domestic business corporation shall comply
50 with the business corporation law, each domestic non-profit corporation
51 shall comply with the provisions of this chapter and each foreign corpo-
52 ration shall comply with the applicable provisions of the law of the
53 jurisdiction under which it is incorporated.
54 (c) The plan of merger or consolidation shall set forth all matters
55 required by section 902 of the business corporation law or section 902
56 of this article and the terms and conditions of the proposed merger or
S. 4611 74
1 consolidation, including the manner and basis of converting shares,
2 membership or other interest in each constituent corporation into
3 shares, bonds or other securities of the surviving or consolidated
4 corporation, or the cash or other consideration to be paid or delivered
5 in exchange for shares, membership or other interest in each constituent
6 corporation, or a combination thereof.
7 (d) After adoption of the plan of merger or consolidation by the board
8 and members or shareholders of each constituent corporation, unless the
9 merger or consolidation is abandoned in accordance with paragraph (b) of
10 section 903 of this article and paragraph (b) of section 903 of the
11 business corporation law, a certificate of merger or consolidation,
12 entitled "Certificate of merger (or consolidation) of
13 ............................ and ............................. into
14 ......................... (names of corporations) under section 908 of
15 the Non-Profit Corporation Law", shall be signed on behalf of each
16 constituent corporation and delivered to the department of state.
17 (1) If the surviving or consolidated corporation is, or is to be, a
18 domestic corporation such certificate shall set forth the statements
19 required by paragraph (a) of section 904 of the business corporation law
20 or paragraph (a) of section 904 of this article and, as to each constit-
21 uent foreign corporation the jurisdiction and date of its incorporation
22 and the date when its application for authority to conduct activities
23 or do business in this state was filed by the department of state or, if
24 no such application has been filed, a statement to such effect.
25 (2) If the surviving or consolidated corporation is, or is to be
26 formed under the law of any jurisdiction other than this state such
27 certificate shall set forth:
28 (A) The statements required by subparagraphs (1) and (2) of paragraph
29 (a) of section 902 of the business corporation law or subparagraphs (1)
30 and (2) of paragraph (a) of section 902 of this article, and the manner
31 in which the merger or consolidation was authorized with respect to each
32 constituent domestic corporation.
33 (B) The jurisdiction and date of incorporation of the surviving or
34 consolidated foreign corporation, the date when its application for
35 authority to do business in this state was filed by the department of
36 state or, if no such application has been filed, a statement to such
37 effect and that it is not to do business in this state until an applica-
38 tion for such authority shall have been filed by such department.
39 (C) The date when the certificate of incorporation of each constituent
40 domestic corporation was filed by the department of state and the
41 jurisdiction and date of incorporation of each constituent foreign
42 corporation, other than the surviving or consolidated foreign corpo-
43 ration, and, in the case of each such corporation authorized to do busi-
44 ness or conduct activities in this state, the date when its application
45 for authority was filed by the department of state.
46 (D) An agreement that the surviving or consolidated foreign corpo-
47 ration may be served with process in this state in any action or special
48 proceeding for the enforcement of any liability or obligation of any
49 domestic corporation or of any foreign corporation, previously amenable
50 to suit in this state, which is a constituent corporation in such merger
51 or consolidation, and for the enforcement, as provided in the business
52 corporation law, of the rights of shareholders of any constituent domes-
53 tic business corporation to receive payment for their shares against the
54 surviving or consolidated corporation.
55 (E) An agreement that, subject to the provisions of section 623 of the
56 business corporation law, the surviving or consolidated foreign corpo-
S. 4611 75
1 ration will promptly pay to the shareholders of each constituent domes-
2 tic business corporation the amount, if any, to which they shall be
3 entitled under the provisions of the business corporation law relating
4 to the right of shareholders to receive payment for their shares.
5 (F) A designation of the secretary of state as his or her agent upon
6 whom process against it may be served in the manner set forth in para-
7 graph (b) of section 306 of this chapter, in any action or special
8 proceeding described in clause (D) of this subparagraph and a post
9 office address, within or without the state, to which the secretary of
10 state shall mail a copy of the process in such action or special
11 proceeding.
12 (e) The department of state shall not file a certificate delivered to
13 it under subparagraph (2) of paragraph (d) of this section unless the
14 consent of the department of taxation and finance to the merger or
15 consolidation is attached thereto.
16 (f) Upon the filing of the certificate of merger or consolidation by
17 the department of state or on such dates subsequent thereto, not to
18 exceed thirty days, as shall be set forth in such certificate, the merg-
19 er or consolidation shall be effected.
20 (g) The surviving or consolidated domestic or foreign corporation
21 shall thereafter cause a copy of such certificate, certified by the
22 department of state, to be filed in the office of the clerk of each
23 county in which the office of a constituent corporation, other than the
24 surviving corporation, is located, and in the office of the official who
25 is the recording officer of each county in this state in which real
26 property of a constituent corporation, other than the surviving corpo-
27 ration, is situated.
28 (h) When such merger or consolidation has been effected:
29 (1) If the surviving or consolidated corporation is, or is to be,
30 formed under the law of this state, it shall be subject to the business
31 corporation law and the effect of such merger or consolidation shall be
32 the same as in the case of the merger or consolidation of domestic
33 corporations under section 906 of the business corporation law, except
34 that in subparagraph (3) of paragraph (b) of such section the word
35 "shareholder" shall be read to include the word "member" as the latter
36 is defined in this chapter.
37 (2) If the surviving or consolidated corporation is, or is to be,
38 incorporated under the law of any jurisdiction other than this state,
39 the effect of such merger or consolidation shall be as provided in
40 subparagraph (1) of this paragraph, except insofar as the law of such
41 other jurisdiction provides otherwise.
42 § 909. Filing notices, approvals or consents.
43 If the purposes of any constituent or consolidated corporation would
44 require notice to, or the approval or consent of, any governmental body
45 or officer or any other person or body under section 404 of this chap-
46 ter, then (a) such corporation shall provide a certified copy of the
47 certificate of merger or consolidation, within thirty days after the
48 filing of such certificate, to each governmental body or officer or
49 other person or body to whom or to which any such notice is required and
50 (b) no certificate of merger or consolidation shall be filed pursuant to
51 this article unless any such approval or consent is endorsed thereon or
52 annexed thereto. A corporation whose statement of purposes specifically
53 includes the establishment or operation of a child day care center, as
54 that term is defined in section three hundred ninety of the social
55 services law, shall provide a certified copy of any certificate of merg-
56 er or consolidation involving such corporation to the office of children
S. 4611 76
1 and family services within thirty days after the filing of such merger
2 or consolidation with the department of state.
3 § 910. Merger or consolidation of corporations formed under the reli-
4 gious corporations law and certain other corporations formed
5 for religious purposes.
6 (a) One or more corporations formed under the religious corporations
7 law and one or more corporations formed for religious purposes to which
8 the non-profit corporation law applies by virtue of paragraph (a) of
9 section 103 of this chapter may be merged or consolidated pursuant to
10 section 901 of this article, with the effect provided in section 901 and
11 paragraph (b) of section 905 of this article.
12 (b) Each corporation which is a party to such merger or consolidation
13 shall comply with the provisions of this section and of sections 902,
14 903, 904 and 907 of this article and, if and to the extent applicable,
15 sections 906 and 909 of this article.
16 (c) If the surviving corporation or consolidated corporation is a
17 domestic or authorized foreign corporation not formed under the reli-
18 gious corporations law, then, a certificate of merger or consolidation
19 shall be filed with the department of state, and the surviving or
20 consolidated corporation shall thereafter cause a copy of such certif-
21 icate, certified by the department of state, to be filed in the office
22 of the clerk of the county in which each constituent corporation other
23 than the surviving corporation is located, the county in which the
24 certificate of incorporation of each constituent domestic corporation or
25 application for authority of each constituent authorized foreign corpo-
26 ration, other than the surviving corporation, is filed and the office of
27 the official who is the recording officer of such county in this state
28 in which real property of a constituent corporation other than the
29 surviving corporation, is located.
30 (d) If the surviving corporation or consolidated corporation is a
31 corporation formed under the religious corporations law, then, the
32 certificate of merger or consolidation shall be filed with the office of
33 the official in which the certificate of incorporation of the surviving
34 or consolidated corporation was filed, and the surviving or consolidated
35 corporation shall thereafter cause a copy of such certificate, certified
36 by such office, to be filed in the office in which the certificate of
37 incorporation of each constituent domestic corporation or application
38 for authority of each authorized foreign corporation other than the
39 surviving corporation was filed, and in the office of the official who
40 is the recording officer of each county in this state in which real
41 property of a constituent corporation, other than the surviving or
42 consolidated corporation, is located.
43 (e) Such merger or consolidation shall become effective with respect
44 to each constituent corporation upon the filing of a certificate of
45 merger or consolidation or certified copy thereof pursuant to paragraph
46 (c) or paragraph (d) of this section with the appropriate state or coun-
47 ty official therein specified. With respect to the surviving corpo-
48 ration, such merger may become effective on such date subsequent there-
49 to, not to exceed sixty days, as shall be set forth in such certificate.
50 The filing of a certified copy with the office of a recording officer
51 of a county in which real property is located shall not be a condition
52 precedent to such merger or consolidation becoming effective.
53 § 10. Article 10 of the not-for-profit corporation law is REPEALED and
54 a new article 10 is added to read as follows:
55 ARTICLE 10
S. 4611 77
1 NON-JUDICIAL DISSOLUTION
2 Section 1001. Plan of dissolution and distribution of assets.
3 1002. Authorization of plan.
4 1002-a. Carrying out the plan of dissolution and distribution of
5 assets.
6 1003. Certificate of dissolution; contents; approval.
7 1004. Certificate of dissolution; filing; effect.
8 1005. Procedure after dissolution.
9 1006. Corporate action and survival of remedies after dissol-
10 ution.
11 1007. Notice to creditors by corporations intending to
12 dissolve; filing or barring claims.
13 1008. Jurisdiction of supreme court to supervise dissolution
14 and liquidation.
15 1009. Applicability to dissolution under other provisions.
16 1010. Revocation of voluntary dissolution proceedings.
17 1012. Certificate of annulment of dissolution and rein-
18 statement of corporate existence.
19 1013. Dissolution of certain firemen's benevolent associ-
20 ations.
21 1014. Dissolution of domestic corporations by proclamation.
22 § 1001. Plan of dissolution and distribution of assets.
23 (a) The board shall adopt a plan for the dissolution of the corpo-
24 ration and the distribution of its assets. Such plan shall implement any
25 provision in the certificate of incorporation prescribing the distribu-
26 tive rights of members.
27 (b) If the corporation is organized for charitable purpose and holds
28 assets received for specific purposes, the plan of dissolution shall
29 include a statement to that effect.
30 (c) If the corporation is organized for charitable purposes and has no
31 assets to distribute, other than a reserve not to exceed twenty-five
32 thousand dollars for the purpose of paying ordinary and necessary
33 expenses of winding up its affairs including attorney and accountant
34 fees, and liabilities not in excess of ten thousand dollars at the time
35 of adoption of the plan of dissolution, the plan of dissolution shall
36 include a statement to that effect.
37 (d) If the corporation has assets to distribute or liabilities, the
38 plan of dissolution shall contain:
39 (1) a description with reasonable certainty of the assets of the
40 corporation and their fair value, and the total amount of debts and
41 other liabilities incurred or estimated by the corporation, including
42 the total amount of any accounting and legal fees incurred or estimated,
43 in connection with the dissolution procedure.
44 (2) a statement as to whether any gifts or other assets are legally
45 required to be used for a particular purpose.
46 (3) if there are assets received and held by the corporation for a
47 specific purpose, a statement that the assets owned by the corporation,
48 subject to any unpaid liabilities of the corporation, shall be distrib-
49 uted as required by any gift instrument or to a charitable organization
50 or organizations exempt from taxation pursuant to federal and state laws
51 and engaged in activities substantially similar to those of the
52 dissolved corporation. Each such recipient organization shall be iden-
53 tified and the governing instrument and amendments thereto of each of
54 the proposed recipient organizations shall be annexed to such statement,
55 along with the financial reports of each recipient organization for the
S. 4611 78
1 last three years and a sworn affidavit from a director and officer of
2 each recipient organization stating the purposes of the organization,
3 and that it is currently exempt from federal income taxation.
4 (4) if any of the assets of the corporation are to be distributed to a
5 recipient for a specific purpose, an agreement by the recipient to apply
6 the assets received only for such purpose shall be included.
7 § 1002. Authorization of plan.
8 (a) Upon adopting a plan of dissolution and distribution of assets,
9 the board shall submit it to a vote of the members, if any, and such
10 plan shall be approved at a meeting of members by two-thirds vote as
11 provided in paragraph (c) of section 613 of this chapter; provided,
12 however, that if the corporation is organized for charitable purposes,
13 other than a corporation incorporated pursuant to article 15 of this
14 chapter, and has no assets to distribute, other than a reserve not to
15 exceed twenty-five thousand dollars for the purpose of paying ordinary
16 and necessary expenses of winding up its affairs including attorney and
17 accountant fees, and liabilities not in excess of ten thousand dollars
18 at the time of adoption of the plan of dissolution, the vote required by
19 the corporation's board of directors for adoption of the plan of dissol-
20 ution of such a corporation or by the corporation's members for the
21 authorization thereof shall be:
22 (1) In the case of a vote by the board of directors:
23 (i) the number of directors required under the certificate of incorpo-
24 ration, by-laws, this chapter and any other applicable law; or
25 (ii) if the number of directors actually holding office as such at the
26 time of the vote to adopt the plan is less than the number required to
27 constitute a quorum of directors under the certificate of incorporation,
28 the by-laws, this chapter or any other applicable law, the remaining
29 directors unanimously;
30 (2) In the case of a vote by the members:
31 (i) the number of members required under the certificate of incorpo-
32 ration, by-laws, this chapter and any other applicable law; or
33 (ii) by the vote of members authorized by an order of the supreme
34 court pursuant to section 608 of this chapter permitting the corporation
35 to dispense with the applicable quorum requirement.
36 Notice of a special or regular meeting of the board of directors or of
37 the members entitled to vote on adoption and authorization or approval
38 of the plan of dissolution shall be sent to all the directors and
39 members of record entitled to vote. Unless otherwise directed by order
40 of the supreme court pursuant to section 608 of this chapter, the notice
41 shall be sent by certified mail, return receipt requested, to the last
42 known address of record of each director and member not fewer than thir-
43 ty, and not more than sixty days before the date of each meeting
44 provided, however, that if the last known address of record of any
45 director or member is not within the United States, the notice to such
46 director shall be sent by any other reasonable means.
47 (b) If there are no members entitled to vote on the dissolution of the
48 corporation, the plan of dissolution and distribution of assets shall be
49 deemed authorized upon its adoption by the board.
50 (c) Whenever a statute creating, or authorizing the formation of, a
51 corporation requires notice to or approval by a governmental body or
52 officer for the formation of such corporation, (i) such corporation
53 shall provide a certified copy of the certificate of merger or consol-
54 idation, within thirty days after the filing of such certificate, to
55 each governmental body or officer of other person or body to whom or to
56 which any such notice was required for the formation of such corporation
S. 4611 79
1 and (ii) dissolution shall not be authorized without the approval of
2 such body or officer from whom such approval was required for the forma-
3 tion of such corporation.
4 (d) The plan of dissolution and distribution of assets shall have
5 annexed thereto the approval of a justice of the supreme court in the
6 judicial district in which the office of the corporation is located in
7 the case of a corporation that holds assets received for specific
8 purposes, except that no such approval shall be required with respect to
9 the plan of dissolution of a corporation, other than a corporation
10 incorporated pursuant to article 15 of this chapter, which has no assets
11 to distribute at the time of dissolution, other than a reserve not to
12 exceed twenty-five thousand dollars for the purpose of paying ordinary
13 and necessary expenses of winding up its affairs including attorney and
14 accountant fees, and liabilities not in excess of ten thousand dollars,
15 and which has complied with the requirements of section 1001 of this
16 article and this section applicable to such a corporation. Application
17 to the supreme court for an order for such approval shall be by verified
18 petition, with the plan of dissolution and distribution of assets and
19 certified copies of the consents prescribed by this section annexed
20 thereto, and upon ten days written notice to the attorney general accom-
21 panied by copies of such petition, plan and consents. In such case where
22 approval of a justice of the supreme court is not required for a corpo-
23 ration, a copy of such plan certified under penalties of perjury shall
24 be filed with the attorney general within ten days after its authori-
25 zation.
26 (e) Notwithstanding authorization as provided in this section, at any
27 time prior to the filing of the certificate of dissolution, the plan of
28 dissolution and distribution of assets may be abandoned pursuant to a
29 provision for such abandonment, if any, contained in the plan of dissol-
30 ution and distribution of assets.
31 § 1002-a. Carrying out the plan of dissolution and distribution of
32 assets.
33 Prior to filing the certificate of dissolution with the department of
34 state, a corporation, as applicable, shall:
35 (a) Carry out the plan of dissolution and distribution of assets, pay
36 its liabilities and distribute its assets in accordance therewith within
37 two hundred seventy days from the date the plan of dissolution and
38 distribution of assets shall have been (1) authorized as provided in
39 section 1002 of this article, (2) approved by any governmental body or
40 officer whose approval is required pursuant to paragraph (c) of section
41 1002 of this article, and (3) approved by a justice of the supreme
42 court, if such approval is required pursuant to paragraph (d) of section
43 1002 of this article, or filed with the attorney general, if such filing
44 is required pursuant to paragraph (d) of section 1002 of this article.
45 Evidence of the disposition of its assets and payment of its liabilities
46 pursuant to the plan of dissolution and distribution of assets shall be
47 submitted by the corporation to the attorney general and any other
48 governmental body or officer, as required under applicable laws. If the
49 plan of dissolution and distribution of assets cannot be carried out
50 within the prescribed time, the attorney general may upon good cause
51 shown extend such time, or any extended period of time, by not fewer
52 than thirty days nor more than one year;
53 (b) Pursuant to the plan of dissolution and distribution of assets
54 fulfill or discharge its contracts, collect and sell its assets for cash
55 at public or private sale, discharge or pay its liabilities, and do all
56 other acts appropriate to liquidate its business;
S. 4611 80
1 (c) Distribute the assets of the corporation that remain after paying
2 or adequately providing for the payment of its liabilities, in the
3 following manner:
4 (1) assets received and held by the corporation for a specific
5 purpose, shall be distributed to one or more domestic or foreign corpo-
6 rations or other organizations engaged in activities substantially simi-
7 lar to those of the dissolved corporation pursuant to the plan of
8 dissolution and distribution or, if applicable, as ordered by the court
9 to which such plan is submitted for approval under section 1002 of this
10 article. Any disposition of assets contained in a will or other instru-
11 ment, in trust or otherwise, made before or after the dissolution, to or
12 for the benefit of any corporation so dissolved shall inure to or for
13 the benefit of the corporation or organization acquiring such assets of
14 the dissolved corporation as provided in this section, and so far as is
15 necessary for that purpose the corporation or organization acquiring
16 such assets of the dissolved corporation as provided in this section,
17 and so far as is necessary for that purpose the corporation or organiza-
18 tion acquiring such disposition shall be deemed a successor to the
19 dissolved corporation with respect to such assets; provided, however,
20 that such disposition shall be devoted by the acquiring corporation or
21 organization to the purposes intended by the testator, donor or grantor.
22 (2) assets other than those described by subparagraph one of this
23 paragraph, if any, shall be distributed in accordance with the specifi-
24 cations of the plan of dissolution and distribution of assets or, to the
25 extent that the certificate of incorporation prescribes the distributive
26 rights of members, or of any class or classes of members, as provided in
27 such certificate;
28 (d) Within six months from the date fixed for the payment of the final
29 liquidating distribution pursuant to paragraph (a) of this section, pay
30 any assets distributable to a creditor or member who is unknown or
31 cannot be found, to the state comptroller pursuant to the abandoned
32 property law;
33 (e) Distribute assets that are not subject to subparagraph one of
34 paragraph (c) of this section under a plan of distribution, in accord-
35 ance with the following order of priorities:
36 (1) holders of capital certificates.
37 (2) members, if permitted by law.
38 § 1003. Certificate of dissolution; contents; approval.
39 (a) After the plan of dissolution and distribution of assets has been
40 adopted, authorized, approved and carried out pursuant to the terms of
41 the plan within the time period set forth pursuant to section 1002-a of
42 this article, a certificate of dissolution, entitled "Certificate of
43 dissolution of ..... (name of corporation) under section 1003 of the
44 Non-profit Corporation Law" shall be signed and, if required pursuant to
45 subparagraph two of paragraph (b) of this section, after the attorney
46 general has affixed thereon his or her consent to the dissolution, such
47 certificate of dissolution shall be delivered to the department of
48 state. It shall set forth:
49 (1) The name of the corporation and, if its name has been changed, the
50 name under which it was formed.
51 (2) The date its certificate of incorporation was filed by the depart-
52 ment of state.
53 (3) The name and address of each of its officers and directors.
54 (4) A statement as to whether or not the corporation holds assets for
55 specific purposes at the time of authorization of its plan of dissol-
S. 4611 81
1 ution and distribution of assets as provided in section 1002 of this
2 article.
3 (5) That the corporation elects to dissolve.
4 (6) The manner in which the dissolution was authorized. If the dissol-
5 ution of the corporation is authorized by a vote of the directors and/or
6 members of the corporation that is less than that ordinarily required by
7 the certificate of incorporation, the by-laws, this chapter or any other
8 applicable law, as permitted by paragraph (a) of section 1002 of this
9 article, then the certificate of dissolution shall so state.
10 (b) Such certificate of dissolution shall have indorsed thereon or
11 annexed thereto the approval of the dissolution:
12 (1) By a governmental body or officer, if such approval is required. A
13 corporation whose statement of purposes specifically includes the estab-
14 lishment or operation of a child day care center, as that term is
15 defined in section three hundred ninety of the social services law,
16 shall provide a certified copy of any certificate of dissolution involv-
17 ing such corporation to the office of children and family services with-
18 in thirty days after the filing of such dissolution with the department
19 of state.
20 (2) By the attorney general in the case of a corporation that is
21 organized for charitable purposes and holds assets at the time of
22 dissolution received for specific purposes.
23 (c) The application to the attorney general for approval of the
24 certificate of dissolution pursuant to paragraph (b) of this section
25 shall be by verified petition and shall include a final financial report
26 showing disposition of all of the corporation's assets and liabilities,
27 the requisite governmental approvals and the appropriate fees, if any,
28 accompanied by the certificate of dissolution.
29 § 1004. Certificate of dissolution; filing; effect.
30 The department of state shall not file a certificate of dissolution
31 unless the consent of the department of taxation and finance to the
32 dissolution is attached thereto. Upon filing the certificate, the corpo-
33 ration is dissolved.
34 § 1005. Procedure after dissolution.
35 (a) After dissolution:
36 (1) The corporation shall carry on no activities except for the
37 purpose of winding up its affairs.
38 (2) The corporation shall proceed to wind up its affairs, with power
39 to fulfill or discharge its contracts, collect its assets, sell its
40 assets for cash at public or private sale, discharge or pay its liabil-
41 ities, and do all other acts appropriate to liquidate its business.
42 (3) After paying or adequately providing for the payment of its
43 liabilities, the remaining assets of the corporation shall be distrib-
44 uted in the following manner:
45 (A) Assets received and held by the corporation for a purpose speci-
46 fied as Type B in paragraph (b) of section 201 of this chapter or which
47 are legally required to be used for a particular purpose shall be
48 distributed to one or more domestic or foreign corporations or other
49 organizations engaged in activities substantially similar to those of
50 the dissolved corporation pursuant to a plan of distribution adopted as
51 provided in section 1001 of this article or as ordered by the court to
52 which such plan is submitted for approval under section 1002 of this
53 article. Any disposition contained in any will or other instrument, in
54 trust or otherwise, made before or after the dissolution, to or for the
55 benefit of any corporation so dissolved shall inure to or for the bene-
56 fit of the corporation or organization acquiring the assets of the
S. 4611 82
1 dissolved corporation as provided in this section, and so far as is
2 necessary for that purpose the corporation or organization acquiring
3 such disposition shall be deemed a successor to the dissolved corpo-
4 ration: provided, however, that such disposition shall be devoted by the
5 acquiring corporation or organization to the purposes intended by the
6 testator, donor or grantor.
7 (B) Other assets, if any, shall be distributed in accordance with the
8 specifications of the plan of distribution adopted as provided in
9 section 1001 of this article or, to the extent that the certificate of
10 incorporation prescribes the distributive rights of members, or of any
11 class or classes of members, as provided in such certificate.
12 (4) Any assets distributable to a creditor or member who is unknown or
13 cannot be found, or who is under a disability, shall be paid to the
14 state comptroller as abandoned property within six months from the date
15 fixed for the payment of the final liquidating distribution, and be
16 subject to the provisions of the abandoned property law.
17 (b) Assets shall be distributed under a plan of distribution in
18 accordance with the following order of priorities:
19 (1) Holders of capital certificates.
20 (2) Members.
21 § 1006. Corporate action and survival of remedies after dissolution.
22 (a) After dissolution, a corporation shall not commence any new activ-
23 ities. A dissolved corporation, its directors, officers and members may
24 continue to function for the purpose of winding up the affairs of the
25 corporation in the same manner as if the dissolution had not taken
26 place, except as otherwise provided in this chapter or by court order.
27 In particular and without limiting the generality of the foregoing:
28 (1) The directors of a dissolved corporation shall not be deemed to be
29 trustees of its assets; title to such assets shall not vest in them, but
30 shall remain in the corporation until transferred by it in its corporate
31 name.
32 (2) Dissolution shall not change quorum or voting requirements for the
33 board or members, or provisions regarding election, appointment, resig-
34 nation or removal of, or filling vacancies among, directors or officers,
35 or provisions regarding amendment or repeal of by-laws or adoption of
36 new by-laws.
37 (3) Capital certificates may be transferred and determination of
38 members for any purpose may be made without closing the record of
39 members until such time, if any, as such record may be closed, and
40 either the board or the members may close it.
41 (4) The corporation may sue or be sued in all courts and participate
42 in actions and proceedings, whether judicial, administrative, arbitra-
43 tive or otherwise, in its corporate name, and process may be served by
44 or upon it.
45 (b) The dissolution of a corporation shall not affect any remedy
46 available to or against such corporation, its directors, officers or
47 members, for any right or claim existing or any liability incurred
48 before such dissolution, except as provided in section 1007 or 1008 of
49 this article.
50 § 1007. Notice to creditors by corporations intending to dissolve;
51 filing or barring claims.
52 (a) At any time prior to filing the certificate of dissolution, the
53 corporation may give a notice requiring all creditors and claimants,
54 including any with unliquidated or contingent claims and any with whom
55 the corporation has unfulfilled contracts, to present their claims in
56 writing and in detail at a specified place and by a specified day, which
S. 4611 83
1 shall not be less than six months after the first publication of such
2 notice. Such notice shall be published at least once a week for two
3 successive weeks in a newspaper of general circulation in the county in
4 which the office of the corporation was located at the date of dissol-
5 ution. On or before the date of the first publication of such notice,
6 the corporation shall mail a copy thereof, postage prepaid, to each
7 person believed to be a creditor of or claimant against the corporation
8 whose current name and address are known to or can with due diligence be
9 ascertained by the corporation. The giving of such notice shall not
10 constitute a recognition that any person is a proper creditor or claim-
11 ant, and shall not revive or make valid, or operate as a recognition of
12 the validity of, or a waiver of any defense or counterclaim in respect
13 of any claim against the corporation, its assets, directors, officers or
14 members, which has been barred by any statute of limitations or become
15 invalid by any cause, or in respect of which the corporation, its direc-
16 tors, officers or members, has any defense or counterclaim.
17 (b) Any claims which shall have been filed as provided in such notice
18 and which shall be disputed by the corporation may be submitted for
19 determination to the supreme court under section 1008 of this article or
20 pursuant to article 11 of this chapter. A claim filed by the trustee or
21 paying agent for the holders of bonds or coupons shall have the same
22 effect as if filed by the holder of any such bonds or coupons. Any
23 person whose claim is, at the date of the first publication of such
24 notice, barred by any statute of limitations is not a creditor or claim-
25 ant entitled to any notice under this section or such section 1008 of
26 this article. The claim of any such person and all other claims which
27 are not timely filed as provided in such notice except claims which are
28 the subject of litigation on the date of the first publication of such
29 notice and all claims which are so filed but are disallowed by the court
30 under such section 1008 of this article, shall be forever barred as
31 against the corporation, its assets, directors, officers and members,
32 except to such extent, if any, as the court may allow them against any
33 remaining assets of the corporation in the case of a creditor who shows
34 satisfactory reason for failure to file a claim as so provided. If the
35 court requires a further notice under such section 1008 of this article,
36 any reference to a notice in this section shall, to the extent that the
37 court so orders, mean such further notice, except that a claim which has
38 been filed in accordance with a notice under this section need not be
39 refiled under such further notice.
40 (c) Notwithstanding this section and section 1008 of this article, tax
41 claims and other claims of this state and of the United States shall not
42 be required to be filed under those sections, and such claims shall not
43 be barred because not so filed, and distribution of the assets of the
44 corporation, or any part thereof, may be deferred until determination of
45 any such claims.
46 (d) Laborers' wages shall be preferred claims and entitled to payment
47 before any other creditors out of the assets of the corporation in
48 excess of valid prior liens or encumbrances.
49 § 1008. Jurisdiction of supreme court to supervise dissolution and
50 liquidation.
51 (a) At any time after the filing of a certificate of dissolution under
52 this article, the supreme court in the judicial district where the
53 office of the corporation was located at the date of its dissolution, in
54 a special proceeding instituted under this section, upon the petition of
55 the corporation or, in a situation approved by the court, upon the peti-
56 tion of a creditor, claimant, director, officer, member, subscriber for
S. 4611 84
1 capital certificates, incorporator or the attorney general, may suspend
2 or annul the dissolution or continue the liquidation of the corporation
3 under the supervision of the court and may make all such orders as it
4 may deem proper in all matters in connection with the dissolution or the
5 winding up of the affairs of the corporation, and in particular, and
6 without limiting the generality of the foregoing, in respect of the
7 following:
8 (1) The determination of the validity of the authorization of the
9 dissolution of the corporation and of the execution and delivery of the
10 certificate of dissolution under this article.
11 (2) The adequacy of the notice given to creditors and claimants and,
12 if it is determined to have been inadequate, the requirement of such
13 further notice as the court may deem proper.
14 (3) The determination of the validity and amount of invalidity of any
15 claims which have been presented to the corporation.
16 (4) The barring of all creditors and claimants who have not timely
17 filed claims as provided in any such notice, or whose claims have been
18 disallowed by the court, as against the corporation, its assets, direc-
19 tors, officers and members.
20 (5) The determination and enforcement of the liability of any direc-
21 tor, officer, member or subscriber for capital certificates, to the
22 corporation or for the liabilities of the corporation.
23 (6) The presentation and filing of intermediate and final accounts of
24 the directors, the hearing thereon, the allowance or disallowance there-
25 of, and the discharge of the directors, or any of them, from their
26 liabilities.
27 (7) The administration of any trust, or the disposition of any proper-
28 ty held in trust by or for the corporation.
29 (8) The payment, satisfaction or compromise of claims against the
30 corporation, the retention of assets for such purpose, and the determi-
31 nation of the adequacy of provisions made for payment of the liabilities
32 of the corporation.
33 (9) The disposition or destruction of records, documents and papers of
34 the corporation.
35 (10) The appointment and removal of a receiver under article 12 of
36 this chapter who may be a director, officer or member of the corpo-
37 ration.
38 (11) The issuance of injunctions for one or more of the purposes and
39 as provided in section 1113 of this chapter.
40 (12) The return of subscription payments to subscribers for capital
41 certificates, and the making of distributions, in cash or in kind or
42 partly in each, to the members.
43 (13) The payment to the state comptroller, as abandoned property, of
44 assets under paragraph (d) of section 1002-a of this article.
45 (14) Where assets held by the corporation were assets received for
46 specific purposes, the distribution of such assets to one or more domes-
47 tic or foreign corporations or other organizations engaged in activities
48 substantially similar to those of the dissolved corporation, on notice
49 to the attorney general and to such other persons, and in such manner,
50 as the court may deem proper.
51 (b) No order annulling a dissolution shall be made under this section
52 if the name of the corporation whose dissolution is to be annulled is no
53 longer available for use by such corporation, unless such corporation
54 submits with its petition for the annulment of the dissolution a certif-
55 icate of reservation of another available name.
S. 4611 85
1 (c) Orders under this section may be entered ex parte, except that if
2 such special proceeding was not instituted upon petition of the corpo-
3 ration, notice shall be given to the corporation in such manner as the
4 court may direct. Notice shall be given to other persons interested, and
5 in such manner, as the court may deem proper, of any hearings and of the
6 entry of any orders on such matters as the court shall deem proper. All
7 orders made by the court under this section shall be binding upon the
8 attorney-general, the corporation, its directors, officers, members,
9 subscribers for capital certificates, incorporators, creditors and
10 claimants.
11 § 1009. Applicability to dissolution under other provisions.
12 The provisions of paragraphs (c), (d) and (e) of section 1002-a, and
13 sections 1006, 1007 and 1008 of this article shall apply to a corpo-
14 ration dissolved by proclamation pursuant to section 1014 of this arti-
15 cle, by expiration of its period of duration or under section two
16 hundred three-a of the tax law, or to an incorporated firemen's benevo-
17 lent association created by act of the legislature if such act is subse-
18 quently repealed.
19 § 1010. Revocation of voluntary dissolution proceedings.
20 (a) At any time prior to the filing of a certificate of dissolution by
21 the department of state, a corporation may revoke the action taken to
22 dissolve the corporation in the following manner:
23 (1) If there are members entitled to vote thereon:
24 (A) Unless the certificate of incorporation dispenses with dissolution
25 action by the board, the board shall adopt a resolution recommending
26 that the voluntary dissolution proceedings be revoked and directing
27 submission of the proposed revocation to a vote of the members entitled
28 to vote thereon.
29 (B) Revocation of the voluntary dissolution proceedings shall be
30 authorized by two-thirds vote as provided in paragraph (c) of section
31 613 of this chapter.
32 (2) If there are no members entitled to vote thereon, revocation of
33 the voluntary dissolution proceedings shall be authorized by the vote of
34 a majority of the directors then in office.
35 (3) If approval of the dissolution of a corporation by a governmental
36 body or officer is required, as provided in paragraph (c) of section
37 1002 of this article, and such approval has been given, revocation of
38 the voluntary dissolution proceedings shall not be authorized without
39 approval thereof by such body or officer.
40 § 1012. Certification of annulment of dissolution and reinstatement of
41 corporate existence.
42 (a) Any corporation dissolved under former section 57 of the member-
43 ship corporations law may, at any time after the effective date of this
44 article, deliver to the department of state a signed certificate which
45 shall be entitled, "certificate of annulment of dissolution and rein-
46 statement of corporate existence of ..................................
47 (name of corporation) pursuant to section 1012 of the Non-profit Corpo-
48 ration Law" and shall set forth:
49 (1) The name of the corporation and, if it has been changed, the name
50 under which it was formed.
51 (2) The date of the filing of its certificate of incorporation by the
52 department of state.
53 (3) The law under which it was formed.
54 (4) That it failed to deliver to the department of state a certif-
55 icate, as required by subdivision one of former section 57 of the
56 membership corporations law.
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1 (5) That it elects to be reinstated and to continue its corporate
2 existence.
3 (6) That, under section 201 of this chapter, it is a non-profit corpo-
4 ration.
5 (b) Notwithstanding subparagraph (1) of paragraph (a) of section 1006
6 of this article, the directors of a corporation whose dissolution is
7 annulled under this section shall be deemed trustees of its assets,
8 unless such assets have been distributed pursuant to section 1002-a of
9 this article.
10 (c) The filing of such certificate by the department of state shall
11 have the effect of annulling all of the proceedings theretofore taken
12 for the dissolution of such corporation, and it shall thereafter have
13 such corporate powers, rights, privileges, immunities, duties and
14 liabilities as it had on the date of publication of the proclamation of
15 dissolution, as if such proclamation had not been made and published.
16 (d) The department of state shall not file a certificate of annulment
17 of dissolution and reinstatement of corporate existence if the name of
18 the corporation being reinstated is not available under section 301 of
19 this chapter for use by a corporation then being formed under this chap-
20 ter, unless such certificate shall change the name to one which is
21 available for such use.
22 (e) If, after the publication of the proclamation of dissolution, it
23 shall appear that the name of any corporation was erroneously included
24 therein, the secretary of state shall make an appropriate entry on the
25 records of the department of state, which entry shall have the effect
26 of annulling all of the proceedings theretofore taken for the dissol-
27 ution of the corporation under this section, and it shall have such
28 corporate powers, rights, privileges, immunities, duties and liabilities
29 as it had on the date of such publication of the proclamation, as if
30 such proclamation had not been made and published.
31 (f) Whenever a corporation has complied with paragraph (a) of this
32 section or the action specified in paragraph (e) of this section has
33 been taken, the secretary of state shall publish a notice thereof in the
34 state advertising bulletin and shall send a copy of such bulletin to the
35 clerk of the county in which the office of the corporation is located.
36 The county clerk shall file such copy and make appropriate entry on his
37 or her record without charge.
38 (g) Nothing in this section shall be deemed to extend the duration of
39 any corporation as stated in its certificate of incorporation.
40 (h) The fee of the secretary of state for filing a certificate under
41 this section shall be ten dollars.
42 § 1013. Dissolution of certain firemen's benevolent associations.
43 (a) An incorporated firemen's benevolent association created by act of
44 the legislature may dissolve in accordance with the provisions of this
45 article.
46 (b) Any such corporation authorized to have paid to it foreign fire
47 insurance premium taxes imposed under sections 9104 and 9105 of the
48 insurance law shall, in addition to any other requirements of this arti-
49 cle, file with the superintendent of insurance a copy of the certificate
50 of dissolution. Moneys then due and owing to the corporation under such
51 sections, and moneys thereafter otherwise payable to the corporation
52 pursuant to such authorization, shall be distributed as provided in such
53 sections.
54 § 1014. Dissolution of domestic corporations by proclamation.
55 Every corporation incorporated pursuant to this chapter, other than a
56 corporation incorporated pursuant to article 15 of this chapter, and
S. 4611 87
1 registered or required to be registered pursuant to article seven-A of
2 the executive law or article eight of the estates, powers and trusts
3 law shall be subject to dissolution for failure to register or to file
4 annual financial reports in accordance with the following procedures:
5 (a) On or before the last day of March, June, September and December
6 in each calendar year, the attorney general may certify and transmit to
7 the department of state a list containing the names of any or all corpo-
8 rations formed pursuant to this chapter and registered or required to
9 register pursuant to article seven-A of the executive law or article
10 eight of the estates, powers and trusts law that have not filed annual
11 financial reports for each of the five years immediately preceding the
12 date of such certification. This section shall not be applicable to
13 corporations that filed reports deemed by the attorney general to be
14 incomplete, erroneous or otherwise deficient.
15 (b) No corporation shall be included in any list prepared pursuant to
16 paragraph (a) of this section unless (1) in each of the last two years
17 during which such corporation failed to file its annual report, the
18 attorney general has sent to such corporation by certified mail return
19 receipt requested notice that the corporation has failed to file and has
20 three months from the date of such notice to file all delinquent reports
21 and complete all registration requirements, provided, however, that if
22 the last known address of record of the corporation is not within the
23 United States, the notice to such corporation shall be sent by any other
24 reasonable means, (2) the second such notice was sent at least six
25 months prior to the date of the certification required by paragraph (a)
26 of this section and (3) the attorney general used reasonable diligence
27 to identify a current address for the corporation.
28 (c) If the secretary of state, upon comparing the names so certified
29 with his or her records, shall discover error, he or she may return the
30 list to the attorney general for correction.
31 (d) The secretary of state shall make a proclamation under his or her
32 hand and seal of office as to each list received from the attorney
33 general declaring any corporations whose names are included in such list
34 to be dissolved and their certificates of incorporation to be forfeited.
35 The secretary shall file the original proclamation in his or her office
36 and shall publish a copy thereof in the state register no later than
37 three months following receipt of the list by him or her.
38 (e) Upon the publication of such proclamation in the manner proscribed
39 in paragraph (d) of this section, each corporation named therein shall
40 be deemed dissolved without further legal proceedings.
41 (f) The secretary of state shall mail a copy of the state register
42 containing such proclamation to the clerk of each county in the state.
43 The county clerk shall file the copy without charge but need not record
44 it.
45 (g) The names of all corporations so dissolved shall be reserved for a
46 period of one year immediately following the publication of the procla-
47 mation, and during such period no domestic business corporation, non-
48 profit corporation, limited liability company or limited partnership
49 shall be formed under a name the same as any name so reserved or which
50 may not be distinguished from any name so reserved, nor shall any
51 foreign business corporation, non-profit corporation, limited liability
52 company or limited partnership, within such period, be authorized to do
53 business or conduct activities in this state under a name the same as
54 any other name which may not be distinguished from such other name so
55 reserved.
S. 4611 88
1 (h) Any corporation so dissolved may file in the department of state a
2 written consent by the attorney general to the reinstatement of the
3 corporation. Such written consent shall be given if the attorney general
4 shall have received all annual financial reports and fees required by
5 article seven-A of the executive law and article eight of the estates,
6 powers and trusts law and penalties and interest charges related thereto
7 have been paid or waived. The filing of such consent shall have the
8 effect of annulling all of the proceedings theretofore taken under the
9 provisions of this section for the dissolution of such corporation with
10 the same force and effect as if such proclamation had not been made or
11 published. The fee of the secretary of state for filing such consent
12 shall be fifty dollars. No such consent shall be filed if the name of a
13 domestic non-profit corporation, business corporation, non-profit corpo-
14 ration, limited liability company or limited partnership formed later
15 than one year after the publication of the proclamation of dissolution,
16 or the name or fictitious name or of a foreign business corporation,
17 non-profit corporation, limited liability company or limited partnership
18 which has obtained authority to do business or conduct activities in the
19 state later than one year after such proclamation, or name which has
20 been reserved later than one year after such proclamation, is the same
21 as or may not be distinguished from the name of the corporation filing
22 such consent unless such corporation simultaneously files in the depart-
23 ment of state a certificate of amendment to change the name of such
24 corporation. Such certificate of amendment shall be executed in like
25 manner as if such corporation had not been dissolved.
26 (i) If, after the publication of such proclamation, it shall appear
27 that the name of any corporation was erroneously included therein, the
28 attorney general shall so certify to the secretary of state, and the
29 secretary of state shall make appropriate entry on the records of the
30 department of state, which entry shall have the effect of annulling all
31 of the proceedings theretofore taken under the provisions of this
32 section for the dissolution of such corporation with the same force and
33 effect as if such proclamation had not been made or published.
34 (j) Whenever a corporation shall have complied with paragraph (h) of
35 this section or whenever the procedures specified in paragraph (i) of
36 this section shall have been taken, the secretary of state shall publish
37 a notice thereof in the state register and shall send a copy of such
38 notice to the county clerk of the county in which, according to his or
39 her records, the office of the corporation is located. Such county clerk
40 shall file such copy and make appropriate entry on his or her records
41 without charge.
42 (k) If, after the dissolution of any corporation, assets of the corpo-
43 ration are located, the attorney general shall act with respect to such
44 assets in accordance with this article and article 11 of this chapter.
45 § 11. Sections 1203 and 1204 of the not-for-profit corporation law are
46 amended to read as follows:
47 § 1203. Temporary and permanent receiver.
48 (a) At any stage before final judgment or final order in an action or
49 special proceeding brought under this article, the court may appoint one
50 or more receivers of the property of the corporation or of the property
51 in this state of a foreign corporation against which an action has been
52 brought under subparagraph [(a)] (4) of paragraph (a) of section 1202
53 [(Appointment of a receiver of property of a domestic or foreign corpo-
54 ration)] of this article. Notice of an application shall be given to
55 the attorney-general, to each governmental body or officer whose consent
56 is required for the dissolution of such corporation, and to such other
S. 4611 89
1 persons and in such manner as the court directs. The determination by
2 the court of the necessity or advisability of appointing a receiver or
3 an attorney for a receiver, and the allowance of expenses, commissions
4 or compensation to the receiver or [his] such attorney, shall be subject
5 to review on appeal. This provision shall not affect any other right to
6 review on appeal.
7 (b) A receiver appointed by or under a final judgment or order in an
8 action or special proceeding, or a temporary receiver who is continued
9 by the final judgment or order, is a permanent receiver. The court may
10 confer upon a temporary receiver the powers, and subject [him] the
11 temporary receiver to the duties of a permanent receiver, or so much
12 thereof as it deems proper.
13 § 1204. Oath and security.
14 [(a)] A receiver, before entering upon his or her duties, shall: [(1)]
15 (a) Take and subscribe an oath that he or she will faithfully, honestly
16 and impartially discharge the trust committed to him or her, and the
17 oath shall be filed with the clerk of the court in which the action or
18 special proceeding is pending.
19 [(2)] (b) File with the clerk of such court a bond to the people, with
20 at least two sufficient sureties or a bond executed by any fidelity or
21 surety company authorized by the laws of this state to transact busi-
22 ness, in a penalty fixed by the court appointing him or her, conditioned
23 for the faithful discharge of his or her duties as receiver. The court
24 may at any time direct a receiver to give a new bond with new sureties
25 and with like condition.
26 § 12. Subparagraphs 2 and 3 of paragraph (b) of section 1206 of the
27 not-for-profit corporation law are amended to read as follows:
28 (2) To sell at public or private sale all the property vested in
29 [him] the permanent receiver, in such manner and on such terms and
30 conditions as the court shall direct, and to make necessary transfers
31 and conveyances thereof.
32 (3) To examine on oath, to be administered by [him] the permanent
33 receiver, any person concerning any matter pertaining to or affecting
34 the receivership.
35 § 13. Section 1207 of the not-for-profit corporation law, clause (C)
36 of subparagraph 1 of paragraph (a) as amended by chapter 847 of the laws
37 of 1970, is amended to read as follows:
38 § 1207. Duties of receiver upon appointment.
39 (a) Upon appointment and qualification, a receiver shall have the
40 following duties:
41 (1) To give immediate notice of his appointment by publication once a
42 week for two successive weeks in two newspapers of general circulation
43 in the county where the office of the corporation is located or, in the
44 case of a foreign corporation against which an action has been brought
45 under subparagraph [(a)] (4) of paragraph (a) of section 1202 [(Appoint-
46 ment of receiver of property of a domestic or foreign corporation)] of
47 this article, in a newspaper of general circulation as directed by the
48 court, requiring:
49 (A) All persons indebted to the corporation to render an account of
50 all debts owing by them to the corporation and to pay the same to the
51 receiver at a specified place and by a specified day.
52 (B) All persons having in their possession any property of the corpo-
53 ration to deliver the same to the receiver at the specified place and by
54 the specified day.
55 (C) All creditors and claimants, including any with unliquidated or
56 contingent claims and any with whom the corporation has unfulfilled
S. 4611 90
1 contracts, to present their claims to the receiver in writing and in
2 detail at a specified place and by a specified day, which shall not be
3 less than six months after the first publication of such notice. When-
4 ever a receiver is appointed in dissolution proceedings under article 10
5 [(Non-judicial dissolution)] or article 11 [(Judicial dissolution)] of
6 this chapter, section 1007 [(Notice to creditors; filing or barring
7 claims)] of this chapter shall apply and shall control the giving of
8 notice to creditors and claimants and the filing and barring of claims.
9 (2) To call a general meeting of the creditors of the corporation
10 within four months from the date of his appointment by a notice to be
11 published as directed in subparagraph [(a)] (1) of this paragraph,
12 setting forth the time and place of such meeting, which time shall be
13 not more than two months, nor less than one month after the first publi-
14 cation of such notice. At such meeting, or at an adjournment thereof,
15 the receiver shall present a statement of all accounts and demands for
16 and against the corporation, its subsisting contracts, and the money and
17 other assets in his or her hands.
18 (3) To keep true books of account of all moneys received and expended
19 by him or her as receiver, which books shall be open for inspection at
20 reasonable times by creditors or other persons interested therein. On
21 or before the first day of February in each year, for the preceding
22 calendar year, and at such other times as the court shall direct, the
23 receiver shall file with the clerk of the court by which he or she was
24 appointed a verified statement showing the assets received, the disposi-
25 tion thereof, the money on hand, all payments made, specifying the
26 persons to whom paid and the purpose of the payments, the amount neces-
27 sary to be retained to meet necessary expenses and claims against the
28 receiver, and the distributive share in the remainder of each person
29 interested therein. A copy of such statement shall be served by the
30 receiver upon the attorney-general within five days after the filing
31 thereof.
32 § 14. Paragraphs (a) and (e) of section 1209 of the not-for-profit
33 corporation law are amended to read as follows:
34 (a) Whenever a receiver, by verified petition to the supreme court at
35 a special term held in the judicial district in which [he] the receiver
36 was appointed, shall show that he or she has good reason to believe that
37 any person has in his or her possession or under his or her control, or
38 has wrongfully concealed, withheld or disposed of, any property of the
39 corporation, or that any person can testify concerning such facts, the
40 court, with or without notice, shall make an order requiring such person
41 to appear before the court or a referee, at a time and place designated,
42 and submit to an examination concerning such facts. In such order, or
43 at any time thereafter, in its discretion, the court may enjoin and
44 restrain such person from disposing of any property of the corporation
45 in his or her possession or under his or her control.
46 (e) The testimony taken under such order shall be signed and sworn to
47 by the person examined, and be filed in the office of the clerk of the
48 county where the action or proceeding is pending. If it shall appear
49 that any person is wrongfully concealing or withholding, or has in his
50 or her possession or under his or her control, any property of the
51 corporation, on notice to [him] such person, the court may make an order
52 requiring [him] such person forthwith to deliver it to the receiver,
53 subject to the further order of the court.
54 § 15. Section 1212 of the not-for-profit corporation law, paragraph
55 (b) as amended by chapter 726 of the laws of 2005, is amended to read as
56 follows:
S. 4611 91
1 § 1212. Disposition of moneys retained; surplus; unclaimed distrib-
2 utions.
3 (a) When any action pending at the time of final distribution shall be
4 terminated, the receiver shall apply the moneys retained by [him] the
5 receiver to the payment of the amount recovered, and [his] the receiv-
6 er's necessary charges and expenses incurred therein.
7 (b) After the final distribution to creditors and after deducting [his
8 or her] the receiver's charges and expenses, the receiver shall distrib-
9 ute any surplus in the manner prescribed in section 1002-a [(Carrying
10 out the plan of dissolution and distribution of assets)] of this chapter
11 or, if dissolution of the corporation is not involved, in such manner as
12 the court shall order.
13 § 16. Sections 1213, 1214 and 1215 of the not-for-profit corporation
14 law are amended to read as follows:
15 § 1213. Omission or default of receiver.
16 Upon notice to the attorney-general and upon such notice to creditors
17 or others interested as the court shall direct, the court may, in the
18 furtherance of justice, relieve a receiver from any omission or default,
19 on such conditions as may be imposed, and, on compliance therewith,
20 confirm [his] the receiver's action.
21 § 1214. Application by attorney-general for removal of receiver and to
22 close receivership.
23 (a) Whenever he or she deems it to be to the advantage of the
24 members, creditors or other persons interested in the assets of any
25 corporation for which a receiver has been appointed, the attorney-gener-
26 al may move:
27 (1) For an order removing the receiver and appointing another [in his
28 stead] receiver;
29 (2) To compel the receiver to account;
30 (3) For such other and additional orders as may facilitate the clos-
31 ing of the receivership.
32 § 1215. Resignation by receiver; filling any vacancy.
33 (a) A receiver may petition the [court] appointing [him] court for an
34 order to show cause why he or she should not be permitted to resign.
35 (b) The petition shall be accompanied by a verified account of all
36 the assets of the corporation received by [him] the receiver, of all
37 payments or other disposition thereof made by [him] the receiver, of the
38 remaining assets of the corporation in respect to which [he] the receiv-
39 er was appointed receiver and the situation of the same, and of all his
40 or her transactions as receiver. Thereupon, the court shall grant an
41 order directing notice to be given to the sureties on his or her offi-
42 cial bond and to all persons interested in the property of the corpo-
43 ration to show cause, at a time and place specified, why the receiver
44 should not be permitted to resign. Such notice shall be published once
45 in each week for six successive weeks in one or more newspapers as the
46 court shall direct. If it shall appear that the proceedings of the
47 receiver in the discharge of his or her trust have been fair and honest
48 and that there is no good cause to the contrary, the court shall make an
49 order permitting such receiver to resign. Thereupon [he] the receiver
50 shall be discharged and his or her powers as receiver shall cease, but
51 he or she shall remain subject to any liability incurred prior to the
52 making of such order. The court, in its discretion, may require the
53 expense of such proceeding to be paid by the receiver presenting the
54 petition.
55 (c) Any vacancy created by resignation, removal, death or otherwise,
56 may be filled by the court, and the property of the receivership shall
S. 4611 92
1 be delivered to the remaining receivers or, if there are none, to the
2 successor appointed by the court. The court may summarily enforce
3 delivery by order in the action or special proceeding in which the
4 receiver was appointed.
5 § 17. Section 1302 of the not-for-profit corporation law, as amended
6 by chapter 847 of the laws of 1970, is amended to read as follows:
7 § 1302. Application to existing authorized foreign corporations.
8 Every foreign corporation which on the effective date of this chapter
9 is authorized to conduct activities in this state under a certificate of
10 authority heretofore issued to it by the secretary of state shall
11 continue to have such authority. Such foreign corporation, its members,
12 directors, and officers shall have the same rights, franchises, and
13 privileges and shall be subject to the same limitations, restrictions,
14 liabilities, and penalties as a foreign corporation authorized under
15 this chapter, its members, directors, and officers respectively. [A
16 foreign corporation may by amendment to its certificate of authority set
17 forth the type of corporation it is under section 201 (Purposes); and in
18 the absence of such amendment an authorized foreign corporation shall be
19 a Type B corporation.] Reference in this chapter to an application for
20 authority shall, unless the context otherwise requires, include the
21 statement and designation and any amendment thereof required to be filed
22 by the secretary of state under prior statutes to obtain a certificate
23 of authority.
24 § 18. Section 1304 of the not-for-profit corporation law is REPEALED
25 and a new section 1304 is added to read as follows:
26 § 1304. Application for authority; contents.
27 (a) A foreign corporation may apply for authority to conduct activ-
28 ities in this state by filing an application entitled "Application for
29 authority of ......... (name of corporation) under section 1304 of the
30 Non-Profit Corporation Law." The application shall be signed and deliv-
31 ered to the department of state. It shall set forth:
32 (1) The name of the foreign corporation.
33 (2) The fictitious name the corporation agrees to use in this state
34 pursuant to section 1301 of this article, if applicable.
35 (3) The jurisdiction and date of its incorporation.
36 (4) That the corporation is a foreign corporation as defined in
37 subparagraph (7) of paragraph (a) of section 102 of this chapter; a
38 statement of its purposes to be pursued in this state and of the activ-
39 ities which it proposes to conduct in this state; a statement that it is
40 authorized to conduct those activities in the jurisdiction of its incor-
41 poration.
42 (5) The county within this state in which its office is to be located.
43 (6) A designation of the secretary of state as its agent upon whom
44 process against it may be served and the post office address within or
45 without this state to which the secretary of state shall mail a copy of
46 any process against it served upon him or her.
47 (7) If it is to have a registered agent, his or her name and address
48 within this state and a statement that the registered agent is to be its
49 agent upon whom process against it may be served.
50 (8) A statement that the foreign corporation has not, since its incor-
51 poration or since the date its authority to conduct activities in this
52 state was last surrendered, done any act in this state, except as set
53 forth in paragraph (b) of section 1301 of this article; or in lieu of
54 such statement the consent of the state tax commission to the filing of
55 the application shall be attached thereto.
S. 4611 93
1 (9) Any provision required by any governmental body or officer or
2 other person or body as a condition for giving the consent or approval
3 required for the filing of such application for authority, provided such
4 provision is not inconsistent with this chapter or any other statute of
5 this state. A corporation whose statement of purposes to be conducted in
6 this state specifically includes the establishment or operation of a
7 child day care center, as that term is defined in section three hundred
8 ninety of the social services law, shall provide a certified copy of any
9 application for authority and any amendment thereto involving such
10 corporation to the office of children and family services within thirty
11 days after the filing of such application or amendment with the depart-
12 ment of state.
13 (b) Attached to the application for authority shall be a certificate
14 by an authorized officer of the jurisdiction of its incorporation that
15 the foreign corporation is an existing corporation. If such certificate
16 is in a foreign language, a translation thereof under oath of the trans-
17 lator shall be attached thereto.
18 (c) If the application for authority sets forth any purposes or activ-
19 ity for which a domestic corporation could be formed only with the
20 consent or approval of any governmental body or officer, or other person
21 or body under section 404 of this chapter, or which, if it was contained
22 in the certificate of incorporation of a domestic corporation, would
23 subject the domestic corporation to the requirement under such section
24 404 of providing a certified copy of the certificate of incorporation to
25 a governmental body or officer or other person or body, then (i) any
26 such consent or approval shall be endorsed on or annexed to the appli-
27 cation for authority or (ii) a certified copy of the application for
28 authority shall be provided by the foreign corporation to such govern-
29 mental body or officer or other person or body within thirty days after
30 the filing of the application for authority.
31 § 19. Section 1309 of the not-for-profit corporation law is REPEALED
32 and a new section 1309 is added to read as follows:
33 § 1309. Certificate of amendment; contents, effect.
34 (a) To accomplish such amendment a certificate, entitled "Certificate
35 of amendment of application for authority of ................... (name
36 of corporation) under section 1309 of the Non-Profit Corporation Law,"
37 shall be signed and delivered to the department of state. It shall set
38 forth:
39 (1) The name of the foreign corporation as it appears on the index of
40 names of existing domestic and authorized foreign corporations of any
41 type or kind in the department of state and the fictitious name the
42 corporation has agreed to use in this state pursuant to paragraph (d) of
43 section 1301 of this article.
44 (2) The jurisdiction of its incorporation.
45 (3) The date it was authorized to conduct activities in this state.
46 (4) Each amendment effected thereby.
47 (5) If the true corporate name of the foreign corporation is to be
48 changed, a statement that the change of name has been effected under the
49 laws of the jurisdiction of its incorporation and the date the change
50 was so effected.
51 (6) If the activities it proposes to conduct in this state are to be
52 enlarged, limited or otherwise changed, a statement that it is author-
53 ized to conduct in the jurisdiction of its incorporation the activities
54 which it proposes to conduct in this state.
55 (b) If an authorized foreign corporation has changed its name in the
56 jurisdiction of its incorporation, it shall deliver to the department of
S. 4611 94
1 state within twenty days after the change became effective in that
2 jurisdiction a certificate of amendment under paragraph (a) of this
3 section. Upon its failure to deliver such certificate, its authority to
4 conduct activities in this state shall upon the expiration of said twen-
5 ty days be suspended. The filing by the department of state of a certif-
6 icate of amendment changing the corporation name within one hundred
7 twenty days after the effective date of the change of name in the juris-
8 diction of its incorporation shall annul the suspension and its authori-
9 ty to conduct activities in this state shall be restored and continue as
10 if no suspension had occurred. The secretary of state shall continue,
11 during such suspension, as agent of the foreign corporation upon whom
12 process against the foreign corporation may be served in the manner set
13 forth in paragraph (b) of section 306 of this chapter.
14 (c) If a certificate of amendment of application for authority adds,
15 changes or eliminates a purpose, power or provision the inclusion of
16 which in an application for authority requires consent or approval of,
17 or requires the corporation to provide a certified copy of the filed
18 document to, any governmental body or officer or other person or body
19 under sections 404 or 806 of this chapter, or if the amendment changes
20 the name of a corporation subject to either such requirement, then (i)
21 any such consent or approval shall be endorsed on or annexed to the
22 certificate of amendment of application for authority before it is filed
23 or (ii) the corporation shall provide a certified copy of such certif-
24 icate, within thirty days after it is filed, to each governmental body
25 or officer or other person or body required to receive such a copy. No
26 amendment to a certificate of authority shall be adopted the effect of
27 which would be to use corporate assets in a manner inconsistent with
28 specific purposes, if any, for which funds were given to a foreign
29 corporation.
30 § 20. Section 1310 of the not-for-profit corporation law, the opening
31 paragraph of paragraph (b) as amended by chapter 375 of the laws of
32 1998, subparagraph 1 of paragraph (b) as amended by chapter 186 of the
33 laws of 1983 and paragraph (c) as amended by chapter 172 of the laws of
34 1999, is amended to read as follows:
35 § 1310. Certificate of change; contents.
36 (a) In lieu of a certificate of amendment, an authorized foreign
37 corporation, upon compliance with this section, may make any or all of
38 the following changes in its application for authority:
39 (1) To change the location of its office in this state.
40 (2) To specify or change the post office address to which the secre-
41 tary of state shall mail a copy of any process against it served upon
42 him or her.
43 (3) To make, revoke or change the designation of a registered agent or
44 specify or change his or her address.
45 (b) To accomplish such change, a certificate entitled "Certificate of
46 change of application for authority of .......... (name of corporation)
47 under section 1310 of the [Not-for-Profit] Non-Profit Corporation Law"
48 shall be signed and delivered to the department of state. It shall set
49 forth:
50 (1) The name of the foreign corporation as it appears on the index of
51 names of existing domestic and authorized foreign corporations of any
52 type or kind in the department of state and the fictitious name the
53 corporation has agreed to use in this state pursuant to paragraph (d) of
54 section 1301 of this chapter.
55 (2) The jurisdiction of its incorporation.
56 (3) The date it was authorized to conduct activities in this state.
S. 4611 95
1 (4) Each change effected thereby.
2 (c) A certificate of change of application for authority which changes
3 only the post office address to which the secretary of state shall mail
4 a copy of any process against an authorized foreign corporation served
5 upon him or her or which changes the address of its registered agent,
6 provided such address is the address of a person, partnership or other
7 corporation whose address, as agent, is the address to be changed or who
8 has been designated as registered agent for such authorized foreign
9 corporation, may be signed and delivered to the department of state by
10 such agent. The certificate of change of application for authority shall
11 set forth the statements required under subparagraphs (1), (2), (3) and
12 (4) of paragraph (b) of this section; that a notice of the proposed
13 change was mailed by the party signing the certificate to the authorized
14 foreign corporation not less than thirty days prior to the date of
15 delivery to the department and that such corporation has not objected
16 thereto; and that the party signing the certificate is the agent of such
17 foreign corporation to whose address the secretary of state is required
18 to mail copies of process or the registered agent, if such be the case.
19 A certificate signed and delivered under this paragraph shall not be
20 deemed to effect a change of location of the office of the corporation
21 in whose behalf such certificate is filed.
22 § 21. Section 1311 of the not-for-profit corporation law, the opening
23 paragraph of paragraph (a) and the opening paragraph of paragraph (d) as
24 amended by chapter 375 of the laws of 1998 and subparagraph 1 of para-
25 graph (a) as amended by chapter 186 of the laws of 1983, is amended to
26 read as follows:
27 § 1311. Surrender of authority.
28 (a) An authorized foreign corporation desiring to surrender its
29 authority shall deliver to the department of state a certificate enti-
30 tled "Certificate of surrender of authority of ......... (name of corpo-
31 ration) under section 1311 of the [Not-for-Profit] Non-Profit Corpo-
32 ration Law." The certificate shall be signed. It shall set forth:
33 (1) The name of the foreign corporation as it appears on the index of
34 names of existing domestic and authorized foreign corporations of any
35 type or kind in the department of state and the fictitious name the
36 corporation has agreed to use in this state pursuant to paragraph (d) of
37 section 1301 of this chapter.
38 (2) The jurisdiction of its incorporation.
39 (3) The date it was authorized to conduct activities in this state.
40 (4) That it surrenders its authority to conduct activities in this
41 state.
42 (5) That it revokes the authority of its registered agent, if any,
43 previously designated and consents that process against it in any action
44 or special proceeding based upon any liability or obligation incurred by
45 it within this state before the filing of the certificate of surrender
46 may be served on the secretary of state after the filing thereof in the
47 manner set forth in paragraph (b) of section 306 [(Service of process)]
48 of this chapter.
49 (6) A post office address within or without this state to which the
50 secretary of state shall mail a copy of any process against it served
51 upon him or her.
52 (b) The department shall not file such certificate unless the consent
53 of the state tax commission to the surrender of authority is attached
54 thereto.
S. 4611 96
1 (c) The authority of the foreign corporation to conduct activities in
2 this state shall terminate on the filing by the department of state of
3 the certificate of surrender of authority.
4 (d) The post office address specified under subparagraph [(a)] (6) of
5 paragraph (a) of this section may be changed by delivering to the
6 department of state a certificate, entitled "Certificate of amendment of
7 certificate of surrender of authority of .......... (name of corpo-
8 ration) under section 1311 of the [Not-for-Profit] Non-Profit Corpo-
9 ration Law." The certificate shall be signed. It shall set forth:
10 (1) The name of the foreign corporation.
11 (2) The jurisdiction of its incorporation.
12 (3) The date its certificate of surrender of authority was filed by
13 the department of state.
14 (4) The changed post office address, within or without this state, to
15 which the secretary of state shall mail a copy of any process against it
16 served upon him or her.
17 § 22. Section 1316 of the not-for-profit corporation law, paragraph
18 (a) as amended by chapter 847 of the laws of 1970, is amended to read as
19 follows:
20 § 1316. Record of members.
21 (a) Any resident of this state who [shall have been] is a member [of
22 record, for at least six months immediately preceding his demand,] of a
23 foreign corporation conducting activities in this state, [or any resi-
24 dent of this state authorized in writing by at least five percent of the
25 members, entitled to vote, of the foreign corporation,] upon at least
26 five days' written demand may require such foreign corporation to
27 produce a record of its members setting forth the names and addresses of
28 all members, the number and class of capital certificates held by each
29 and the dates when they respectively became the owners of record there-
30 of, and shall have the right to examine in person or by agent or attor-
31 ney at the office of the foreign corporation in this state or at the
32 office of its transfer agent or registrar in this state or at such other
33 place in any county in this state in which the foreign corporation is
34 conducting activities as may be designated by the foreign corporation
35 during the usual business hours, a record of members or an exact copy of
36 the record of members certified as correct by the corporate officer or
37 agent responsible for keeping or producing such record and to make
38 extracts therefrom. In the case of a foreign corporation having shares,
39 a record of shareholders shall for the purpose of this section be
40 regarded as a record of members, and holders of voting trust certif-
41 icates representing such shares shall for the purpose of this section be
42 regarded as members. A corporation requested to provide information
43 pursuant to this paragraph shall make available such information in the
44 format in which such information is maintained by the corporation and
45 shall not be required to provide such information in any other format.
46 (b) An examination authorized by paragraph (a) of this section may be
47 denied to such member [or other person] upon his or her refusal to
48 furnish to the foreign corporation or its transfer agent or registrar an
49 affidavit that such inspection is not desired for a purpose which is in
50 the interests of a business or object other than the activities of the
51 foreign corporation and that such member or other person has not within
52 five years sold or offered for sale any list or record of members of any
53 corporation of any type or kind, whether or not formed under the laws of
54 this state, or aided or abetted any person in procuring any such list or
55 record of members for any such purpose.
S. 4611 97
1 (c) Upon refusal by the foreign corporation or by an officer or agent
2 of the foreign corporation to produce for examination or to permit an
3 examination of the record of members as herein provided, the person
4 making the demand for production and examination may apply to the
5 supreme court in the judicial district where the office of the foreign
6 corporation within this state is located, upon such notice as the court
7 may direct, for an order directing the foreign corporation, its officer
8 or agent, to show cause why an order should not be granted directing
9 such production and permitting such examination by the applicant. Upon
10 the return day of the order to show cause, the court shall hear the
11 parties summarily, by affidavit or otherwise, and if it appears that the
12 applicant is qualified and entitled to such examination, the court shall
13 grant an order compelling such production for examination and awarding
14 such further relief as to the court may seem just and proper.
15 (d) Nothing herein contained shall impair the power of courts to
16 compel the production for examination of the books of a foreign corpo-
17 ration. The record of members specified in paragraph (a) of this
18 section shall be prima facie evidence of the facts therein stated in
19 favor of the plaintiff in any action or special proceeding against such
20 foreign corporation or any of its officers, directors or members.
21 § 23. Section 1321 of the not-for-profit corporation law is REPEALED
22 and a new section 1321 is added to read as follows:
23 § 1321. Exemption from certain provisions.
24 (a) Notwithstanding any other provision of this chapter, a foreign
25 corporation conducting activities in this state which is authorized
26 under this article, its directors, officers and members, shall be exempt
27 from the provisions of paragraph (e) of section 1317, subparagraph (1)
28 of paragraph (a) of section 1318, and subparagraph (2) of paragraph (a)
29 of section 1320 of this article if, when such provision would otherwise
30 apply, the corporation's principal activities are conducted outside this
31 state; the greater part of its property is located outside this state;
32 and:
33 (1) less than one-third of its members are residents of this state; or
34 (2) less than ten percent of its annual revenues are derived from
35 solicitation of funds within this state; or
36 (3) less than one-half of its revenues for the preceding three fiscal
37 years, or such portion thereof as the foreign corporation was in exist-
38 ence, were derived from sources within this state.
39 § 24. Paragraph (d) of section 1401 of the not-for-profit corporation
40 law is REPEALED.
41 § 25. Paragraph (e) of section 1401 of the not-for-profit corporation
42 law, as added by chapter 560 of the laws of 1998, is relettered para-
43 graph (d) and amended to read as follows:
44 (d) Private and family cemetery corporations; prohibitions. (1) No
45 private or family cemetery corporation shall, directly or indirectly:
46 (i) sell, or have, enter into or perform a lease of any of its real
47 property to a funeral entity, or use any of its property for location of
48 a funeral entity;
49 (ii) commingle its funds with a funeral entity;
50 (iii) direct or carry on its business or affairs with a funeral enti-
51 ty;
52 (iv) authorize control of its business or affairs by a funeral entity;
53 (v) engage in any sale or cross-marketing of goods or services with a
54 funeral entity;
55 (vi) have, enter into or perform a management or service contract for
56 cemetery operations with a funeral entity; or
S. 4611 98
1 (vii) have, enter into or perform a management contract with any enti-
2 ty, other than a [not-for-profit] non-profit cemetery corporation.
3 (2) Only the provisions of subparagraphs (i) and (ii) of subdivision
4 one of this paragraph shall apply to cemetery corporations with thirty
5 acres or less of real property dedicated to cemetery purposes, and only
6 to the extent the sale or lease is of real property dedicated to ceme-
7 tery purposes, and such cemeteries shall not engage in the sale of
8 funeral home goods or services, except if such goods and services are
9 otherwise permitted to be sold by cemeteries.
10 (3) For the purposes of this paragraph, "funeral entity" means a
11 person, partnership, corporation, limited liability company or other
12 form of business organization providing funeral home services, or
13 owning, controlling, conducting or affiliated with a funeral home, any
14 subsidiary thereof or an officer, director or stockholder having a ten
15 per centum or greater proprietary, beneficial, equitable or credit
16 interest in a funeral home.
17 § 26. Paragraph (b) of section 1402 of the not-for-profit corporation
18 law is REPEALED and paragraphs (c), (d), (e), (f), (g), (h) and (i) are
19 relettered paragraphs (b), (c), (d), (e), (f), (g) and (h).
20 § 27. Paragraph (c) of section 1403 of the not-for-profit corporation
21 law is REPEALED.
22 § 28. Section 1404 of the not-for-profit corporation law, paragraph
23 (a) and subparagraph 1 of paragraph (c) as amended by chapter 702 of the
24 laws of 1977 and paragraphs (b), (d) and (e) as amended by chapter 1058
25 of the laws of 1971, is amended to read as follows:
26 § 1404. Christian associations.
27 (a) Certificate of incorporation; additional contents.
28 In addition to the requirements of section 402, the certificate of
29 incorporation of a Young Men's or a Young Women's Christian Association
30 shall state the qualifications of active membership; and may name, in
31 addition to the directors, six trustees and shall divide such trustees
32 into three classes to hold office for one, two and three years respec-
33 tively, or until their successors are elected by the board of directors.
34 (b) Type of corporation.
35 A [christian] Christian association is a Type B corporation under this
36 chapter.
37 (c) Directors and trustees.
38 (1) The trustees of a corporation organized for the purposes of a
39 young men's [christian] Christian association or a young women's [chris-
40 tian] Christian association, with the president of the corporation shall
41 be a board of trustees thereof, and hold and control the real property
42 of the corporation and all gifts and bequests of money to be held in
43 trust. They or the directors if there is no board of trustees shall pay
44 the income of such property to the treasurer of the corporation so long
45 as the income shall be expended by the directors thereof for the
46 purposes for which the corporation was formed. Such association may, by
47 amendment to its certificate of incorporation, in the manner provided by
48 law, eliminate its board of trustees, in which case the real property,
49 gifts, bequests and other grants held in trust by such trustee shall be
50 transferred to its board of directors which shall hold and control the
51 real property of the corporation and all gifts and bequests of money to
52 be held in trust.
53 (2) The real property of such corporation shall not be liable for any
54 debt or obligation contracted without the approval of the board of trus-
55 tees.
S. 4611 99
1 (3) In all proceedings for the purchase, sale, mortgage and lease of
2 real property, the board of trustees of such a corporation shall perform
3 the functions of the board of directors.
4 (4) The board of directors shall have the management and control of
5 the property and affairs of the corporation, except as such management
6 and control is vested by law in the board of trustees.
7 (5) A young men's [christian] Christian association incorporated
8 prior to eighteen hundred [and] eighty-seven may create a board of trus-
9 tees possessing the qualifications and divided into classes, and such
10 board shall have the powers set forth in this paragraph.
11 (6) A young men's [christian] Christian association incorporated
12 prior to nineteen hundred [and] eight may divide its trustees into
13 classes.
14 (d) Dissolution. Whenever any young men's [christian] Christian
15 association subject to this section shall cease to carry out the objects
16 set forth in its certificate of incorporation, according to the general
17 rules and regulations of the national board of young men's [christian]
18 Christian associations, or shall abandon or discontinue for one year the
19 use of any of its property for such objects, then upon the verified
20 petition of a majority of the directors of such association upon four-
21 teen days' notice to the national board by service thereof upon its
22 chairman and secretary or in the event of the failure of such directors
23 to act, upon the verified petition of the national board of young men's
24 [christian] Christian associations, upon fourteen days' notice to such
25 association by service thereof upon its president or any director there-
26 of, and upon one of the trustees thereof, and upon notice to the attor-
27 ney general, the supreme court, upon satisfactory proof by affidavit or
28 otherwise of such failure or abandonment, must make a final order
29 dissolving such corporation. Upon the entry of such order, the corpo-
30 ration shall be dissolved, and thereupon the national board of young
31 men's [christian] Christian associations may take possession of the
32 property of the corporation and manage the same, or if authorized by the
33 concurring vote of two-thirds of the members of the national board may
34 sell or lease the same and apply the proceeds thereof after the payment
35 of the debts, if any, of the corporation solely to such purposes as
36 those for which the corporation was organized.
37 (e) Incorporation of county committees.
38 (1) Five or more men resident in any county of this state, appointed
39 by the national board of Young Men's Christian Associations, to act as
40 the county committee of Young Men's Christian Associations for such
41 county, may form a corporation under the provisions of this chapter
42 under the name of "The County Committee of the Young Men's Christian
43 Association of ..................... County," (the blank space being
44 filled by the name of the county in which the incorporators reside.)
45 (2) The management and control of the property and affairs of such
46 corporation shall be vested in its members and their successors in
47 office, except that the powers and duties of the trustees thereof shall
48 be those specified in paragraph (a) of this section; and the successors
49 of such members shall be elected annually at a meeting of the Young
50 Men's Christian Associations of the county for which such committee has
51 been appointed, at which meeting each association may be represented by
52 one delegate for each ten active members of such association. A plural-
53 ity vote of the delegates present, and voting at such meeting, shall be
54 sufficient to elect. If any vacancy in the membership of such corpo-
55 ration shall occur during the interim between the regular elections, it
56 may be filled by the remaining members.
S. 4611 100
1 (3) The officers of the corporation shall consist of a chairman,
2 treasurer and secretary, and such other officers as the members may
3 decide; and shall be elected annually by such members from their own
4 number.
5 § 29. Paragraph (b) of section 1405 of the not-for-profit corporation
6 law is REPEALED and paragraphs (c), (d), (e) and (f) are relettered
7 paragraphs (b), (c), (d) and (e).
8 § 30. Paragraph (b) of section 1406 of the not-for-profit corporation
9 law is REPEALED and paragraphs (c), (d), (e) and (f) are relettered
10 paragraphs (b), (c), (d) and (e).
11 § 31. Paragraph (b) of section 1407 of the not-for-profit corporation
12 law is REPEALED and paragraphs (c) and (d) are relettered paragraphs (b)
13 and (c).
14 § 32. Paragraph (b) of section 1408 of the not-for-profit corporation
15 law is REPEALED and paragraph (c) is relettered paragraph (b).
16 § 33. Paragraph (b) of section 1409 of the not-for-profit corporation
17 law is REPEALED and paragraphs (c), (d), (e), (f), (g), (h), (i), (j)
18 and (k) are relettered paragraphs (b), (c), (d), (e), (f), (g), (h), (i)
19 and (j).
20 § 34. Paragraph (b) of section 1410 of the not-for-profit corporation
21 law is REPEALED and paragraph (c) is relettered paragraph (b).
22 § 35. Paragraph (a) of section 1411 of the not-for-profit corporation
23 law, as amended by chapter 847 of the laws of 1970, is amended to read
24 as follows:
25 (a) Purposes.
26 This section shall provide an additional and alternate method of
27 incorporation or reincorporation of [not-for-profit] non-profit corpo-
28 rations for any of the purposes set forth in this paragraph and shall
29 not be deemed to alter, impair or diminish the purposes, rights, powers
30 or privileges of any corporation heretofore or hereafter incorporated
31 under this section or under the stock or business corporation laws.
32 Corporations may be incorporated or reincorporated under this section as
33 [not-for-profit] non-profit local development corporations operated for
34 the exclusively charitable or public purposes of relieving and reducing
35 unemployment, promoting and providing for additional and maximum employ-
36 ment, bettering and maintaining job opportunities, instructing or train-
37 ing individuals to improve or develop their capabilities for such jobs,
38 carrying on scientific research for the purpose of aiding a community or
39 geographical area by attracting new industry to the community or area or
40 by encouraging the development of, or retention of, an industry in the
41 community or area, and lessening the burdens of government and acting in
42 the public interest, and any one or more counties, cities, towns or
43 villages of the state, or any combination thereof, or the New York job
44 development authority in exercising its power under the public authori-
45 ties law to encourage the organization of local development corpo-
46 rations, may cause such corporations to be incorporated by public offi-
47 cers or private individuals or reincorporated upon compliance with the
48 requirements of this section, and it is hereby found, determined and
49 declared that in carrying out said purposes and in exercising the powers
50 conferred by paragraph (b) such corporations will be performing an
51 essential governmental function.
52 § 36. Paragraph (b) of section 1411 of the not-for-profit corporation
53 law is REPEALED and paragraphs (c), (d), (e), (f), (g), (h) and (i) are
54 relettered paragraphs (b), (c), (d), (e), (f), (g) and (h).
55 § 37. Paragraph (d) of section 1412 of the not-for-profit corporation
56 law is REPEALED.
S. 4611 101
1 § 38. Paragraphs (e), (f) and (g) of section 1412 of the not-for-pro-
2 fit corporation law, paragraph (e) as amended by chapter 253 of the laws
3 of 1999, paragraph (f) as amended and paragraph (g) as added by chapter
4 555 of the laws of 1993 and subparagraph 2 of paragraph (f) as amended
5 by chapter 172 of the laws of 1999, are amended to read as follows:
6 [(e)] (d) Applicability of laws; members, directors and officers. This
7 chapter shall be applicable to a university faculty practice corporation
8 except to the extent that the provisions thereof conflict with this
9 section. A university faculty practice corporation may consolidate or
10 merge only with another university faculty practice corporation. The
11 following provisions of article fifteen of the business corporation law
12 shall be applicable to a university faculty practice corporation except
13 that each reference in such provisions to a "shareholder" shall be
14 deemed to be a reference to a "member" and each reference in such
15 provisions to "shareholders" shall be deemed a reference to "members":
16 paragraphs (a), (b), (c) and (e) of section fifteen hundred one; para-
17 graphs (b), (c) and (d) of section fifteen hundred three; paragraphs
18 (a), (c) and (g) of section fifteen hundred four; section fifteen
19 hundred five; section fifteen hundred nine except to the extent such
20 section refers to section fifteen hundred ten; paragraph (a) of section
21 fifteen hundred twelve; section fifteen hundred fourteen; and section
22 fifteen hundred fifteen. No individual may be a member, director or
23 officer of a university faculty practice corporation unless such indi-
24 vidual is authorized by law to practice in this state the profession
25 which such corporation is authorized to practice and is a member of the
26 faculty of the medical school, dental school, chiropractic college or
27 optometry college which such corporation is organized to support.
28 [(f)] (e) Corporations heretofore incorporated. Any corporation here-
29 tofore incorporated under article fifteen of the business corporation
30 law and operated in compliance with the requirements of section
31 501(c)(3) of the United States internal revenue code may amend its
32 certificate of incorporation and be reincorporated as a university
33 faculty practice corporation organized under this section by making and
34 filing in the office of the secretary of state a certificate entitled
35 "Certificate of Reincorporation of...(name of incorporation) under
36 section 1412 of the [Not-for-Profit] Non-Profit Corporation Law." (1)
37 Such reincorporation certificate shall contain the provisions required,
38 and any other provisions permitted, by section 402 of this chapter and
39 shall also set forth (A) a statement that such corporation is filing
40 such reincorporation certificate under this section, (B) if the name of
41 such corporation has been changed, the name under which such corporation
42 was originally incorporated, (C) the date of incorporation of such
43 corporation, (D) the names and post-office addresses of the holders of
44 record of all of the outstanding shares of such corporation entitled to
45 vote, (E) a statement that such corporation has elected to become and be
46 a university faculty practice corporation organized and operated under
47 by virtue of this section and (F) the statements required by paragraph
48 (c) of this section.
49 (2) Such reincorporation certificate shall be either (A) subscribed in
50 person or by proxy by all of the holders of record of all of the
51 outstanding shares of such corporation entitled to vote and shall have
52 annexed an affidavit of the secretary or an assistant secretary that the
53 persons who have executed the certificate, in person or by proxy,
54 constitute all of the holders of record of all of the outstanding shares
55 of the corporation entitled to vote or (B) subscribed by the president
56 or a vice president and the secretary or an assistant secretary and
S. 4611 102
1 shall have annexed an affidavit of such officers stating that they have
2 been authorized to execute and file such reincorporation certificate by
3 the votes, cast in person or by proxy, of all of the holders of record
4 of all of the outstanding shares of such corporation entitled to vote at
5 the meeting at which such votes were cast, and that such votes were cast
6 at a meeting of shareholders held on a date specified, upon notice
7 pursuant to section six hundred five of the business corporation law.
8 (3) A reincorporation pursuant to this paragraph shall not effect a
9 dissolution of such corporation, but shall be deemed a continuation of
10 its corporate existence, without affecting its then-existing property
11 rights or liabilities, or the liabilities of its shareholders, directors
12 or officers as such, but thereafter it shall have only such rights,
13 powers and privileges, and it and such shareholders, directors and offi-
14 cers shall be subject only to such other duties and liabilities, as a
15 university faculty practice corporation and members, directors and offi-
16 cers thereof.
17 (4) Upon the filing of a reincorporation certificate in the office of
18 the secretary of state, (A) any issued and outstanding shares of such
19 corporation shall be purchased by such corporation at a purchase price
20 equal to the price for which such shares were originally issued, or such
21 other price as such corporation shall agree to, such price to be paid
22 out of the surplus of the corporation, whereupon such shares shall be
23 deemed cancelled as of the date of such filing and (B) such reincorpora-
24 tion certificate shall be deemed to replace the certificate of incorpo-
25 ration of such corporation. The department of state shall not file such
26 certificate of reincorporation unless the consent of the commissioner of
27 taxation and finance is attached thereto. Such certificate of consent
28 shall only be given if the commissioner of taxation and finance ascer-
29 tains that all taxes imposed under article nine-A of the tax law, as
30 well as penalties and interest charges related thereto, accrued against
31 the corporation have been paid.
32 [(g)] (f) Effect of section. University faculty practice corporations
33 incorporated or reincorporated under this section shall be organized and
34 operated exclusively for the purposes set forth in paragraph (a) of this
35 section and shall be subject to the restrictions and limitations imposed
36 by or pursuant to paragraphs (a) and (e) of this section. Notwithstand-
37 ing anything to the contrary in article twenty-eight of the public
38 health law or the regulations adopted pursuant thereto, no corporation
39 organized under this section shall be deemed to be establishing or oper-
40 ating a hospital, diagnostic center and/or treatment center requiring
41 establishment or construction approval solely by reason of being organ-
42 ized as a [not-for-profit] non-profit corporation. Insofar as the
43 provisions of this section are inconsistent with the provisions of any
44 other law, general or special, the provisions of this section shall be
45 controlling as to the corporations incorporated or reincorporated here-
46 under.
47 § 39. Paragraph (c) of section 1505 of the not-for-profit corporation
48 law is REPEALED and paragraph (d) is relettered paragraph (c).
49 § 40. Subparagraph 7 of paragraph (a) of section 1506-a of the not-
50 for-profit corporation law, as added by chapter 560 of the laws of 1998,
51 is amended to read as follows:
52 (7) have, enter into or perform a management contract with any entity
53 other than a [not-for-profit] non-profit cemetery corporation.
54 § 41. (a) An act of the legislature of the year in which this act
55 shall have become a law which, in form, amends or repeals or purports to
56 amend or repeal any provision or provisions of the former not-for-profit
S. 4611 103
1 corporation law, as in force immediately prior to the date that this act
2 shall take effect, shall be legally effective notwithstanding the repeal
3 of such former law by this act and shall be construed as an amendment or
4 repeal, as the case may be, of the corresponding provision or provisions
5 of this act irrespective of whether such provision or provisions are
6 contained in this act in one or more article, section, subsection or
7 other part thereof and such corresponding provision or provisions shall
8 be deemed and construed to be amended or repealed as though the same had
9 been expressly and in terms so amended or repealed.
10 (b) An act of the legislature of the year in which this act shall have
11 become a law which adds or purports to add a new article, section,
12 subsection or other provision of law to the former not-for-profit corpo-
13 ration law, as in force and effect immediately prior to the date that
14 this act shall take effect, shall be legally effective notwithstanding
15 the repeal of such former law by this act and shall be construed as
16 having been added to this act and shall be given full effect according
17 to its context as if the same had been added expressly and in terms to
18 this act and shall be deemed and construed to have been inserted in this
19 act in juxtaposition to and as modifying the effect of the corresponding
20 provision or provisions of this act.
21 § 42. Nothing contained in this act or any act amendatory thereof
22 shall affect or impair the validity of any act done or right accruing,
23 accrued or acquired, or any order, judgment, or status established prior
24 to the enactment of this act or prior to the enactment of any act amen-
25 datory thereof.
26 § 43. If any part or provision of this act or the application thereof
27 to any person or circumstances be adjudged invalid by any court of
28 competent jurisdiction, such judgment shall be confined in its operation
29 to the part, provision or application or persons or circumstances
30 directly involved in the controversy in which such judgment shall have
31 been rendered and shall not affect or impair the validity of the remain-
32 der of this act or the application thereof to other persons or circum-
33 stances and the legislature hereby declares that it would have enacted
34 this act or the remainder thereof had the invalidity of such provision
35 or application thereof been apparent.
36 § 44. This act shall take effect immediately.
