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S08412 Summary:

S08412 Actions:

S08412 Committee Votes:

S08412 Floor Votes:

S08412 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          8412
 
                    IN SENATE
 
                                      May 24, 2020
                                       ___________
 
        Introduced  by Sen. BENJAMIN -- read twice and ordered printed, and when
          printed to be committed to the Committee on Corporations,  Authorities
          and Commissions
 
        AN  ACT to amend the business corporation law, the not-for-profit corpo-
          ration law, and the religious corporations law, in relation to provid-
          ing for the remote conduct of certain practices and procedures  relat-
          ing to board meetings; and providing for the repeal of such provisions
          upon the expiration thereof
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Paragraph (b) of section 708 of  the  business  corporation
     2  law,  as  amended by chapter 296 of the laws of 1977, is amended to read
     3  as follows:
     4    (b) Unless otherwise restricted by the certificate of incorporation or
     5  the by-laws, any action required or permitted to be taken by  the  board
     6  or  any  committee thereof may be taken without a meeting if all members
     7  of the board or the committee consent in writing to the  adoption  of  a
     8  resolution  authorizing  the  action.  The  resolution  and  the written
     9  consents thereto by the members of the board or committee shall be filed
    10  with the minutes of the proceedings of the board or committee.  For  the
    11  duration of the state disaster emergency declared by executive order two
    12  hundred  two  that began on March seventh, two thousand twenty, notwith-
    13  standing any provision of law to the contrary, the written consent of  a
    14  member  may  be made electronically, where such consent is submitted via
    15  electronic mail along with information from which it can  be  reasonably
    16  determined that the transmission was authorized by such member.
    17    §  2.  Paragraph (a) of section 602 of the business corporation law is
    18  amended to read as follows:
    19    (a) Meetings of shareholders may be held  at  such  place,  within  or
    20  without  this  state, as may be fixed by or under the by-laws, or if not
    21  so fixed, [at the office of the corporation in this state] as determined
    22  by the board of directors.  For the duration of the state disaster emer-
    23  gency declared by executive order two hundred two that  began  on  March
    24  seventh,  two  thousand  twenty,  if,  pursuant to this paragraph or the
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD16465-03-0
        S. 8412                             2
 
     1  by-laws of the corporation, the board  of  directors  is  authorized  to
     2  determine the place of a meeting of shareholders, the board of directors
     3  may,  in  its sole discretion, determine that the meeting be held solely
     4  by  means  of  electronic  communication,  the platform/service of which
     5  shall be the place of the meeting for purpose of this article.
     6    § 3. Paragraph (a) of section 603 of  the  not-for-profit  corporation
     7  law is amended to read as follows:
     8    (a)  Meetings  of members may be held at such place, within or without
     9  this state, as may be fixed by or under the by-laws or, if not so fixed,
    10  [at the office of the corporation in this state] as  determined  by  the
    11  board  of  directors.   For the duration of the state disaster emergency
    12  declared by executive order two hundred two that began on March seventh,
    13  two thousand twenty, the board of directors may, in its sole discretion,
    14  determine that meetings of members be held partially or solely by  means
    15  of  electronic  communication, the electronic service and/or platform by
    16  which the meeting is held shall be the place of the meeting for purposes
    17  of this article if a meeting is  held  solely  by  means  of  electronic
    18  communication.  Meetings conducted partially or solely by means of elec-
    19  tronic  communications  in reliance upon this paragraph and any member's
    20  electronic participation in such meetings  shall  be  subject  to  those
    21  guidelines  and procedures as the board adopts, provided the board shall
    22  implement reasonable measures to: (1) verify that  each  person  partic-
    23  ipating  electronically  is a member or a proxy of a member; (2) provide
    24  each member participating electronically with a  reasonable  opportunity
    25  to  participate  in  the  meeting,  including an opportunity to propose,
    26  object to, and vote upon a specific action to be taken by  the  members,
    27  and  to  see,  read or hear the proceedings of the meeting substantially
    28  concurrently with those proceedings;  and  (3)  record  and  maintain  a
    29  record  of  any votes or other actions taken by electronic communication
    30  at the meeting.
    31    § 4. Section 605 of the not-for-profit corporation law, paragraph  (a)
    32  as  amended  by  chapter  549 of the laws of 2013, is amended to read as
    33  follows:
    34  § 605. Notice of meeting of members.
    35    (a) Whenever under the provisions of this chapter members are required
    36  or permitted to take any action at a meeting, written notice shall state
    37  the place, date and hour of the meeting, for the duration of  the  state
    38  disaster  emergency  declared  by  executive  order two hundred two that
    39  began on March seventh, two thousand twenty,  the  means  of  electronic
    40  communication,   if  any,  by  which  members  may  participate  in  the
    41  proceedings of the meeting pursuant to  paragraph  (a)  of  section  six
    42  hundred three of this article and, unless it is an annual meeting, indi-
    43  cate  that  it  is  being issued by or at the direction of the person or
    44  persons calling the meeting. Notice of  a  special  meeting  shall  also
    45  state the purpose or purposes for which the meeting is called. A copy of
    46  the  notice  of  any  meeting shall be given, personally, by mail, or by
    47  facsimile telecommunications or by electronic mail, to each member enti-
    48  tled to vote at such meeting. If the  notice  is  given  personally,  by
    49  first  class  mail  or  by facsimile telecommunications or by electronic
    50  mail, it shall be given not less than  ten  nor  more  than  fifty  days
    51  before the date of the meeting; if mailed by any other class of mail, it
    52  shall be given not less than thirty nor more than sixty days before such
    53  date.  If  mailed,  such  notice  is  given when deposited in the United
    54  States mail, with postage thereon prepaid, directed to the member at his
    55  address as it appears on the record of members, or,  if  he  shall  have
    56  filed  with  the  secretary  of  the  corporation a written request that
        S. 8412                             3
 
     1  notices to him be mailed to some other address, then directed to him  at
     2  such  other  address.  If  sent by facsimile telecommunication or mailed
     3  electronically, such notice is given when directed to the  member's  fax
     4  number  or  electronic  mail  address  as  it  appears  on the record of
     5  members, or, to such fax number or  other  electronic  mail  address  as
     6  filed with the secretary of the corporation. Notwithstanding the forego-
     7  ing,  such  notice shall not be deemed to have been given electronically
     8  (1) if the corporation is unable to deliver two consecutive  notices  to
     9  the member by facsimile telecommunication or electronic mail; or (2) the
    10  corporation  otherwise  becomes aware that notice cannot be delivered to
    11  the member by facsimile telecommunication or electronic mail. An affida-
    12  vit of the secretary or other person giving the notice or of a  transfer
    13  agent  of  the  corporation that the notice required by this section has
    14  been given shall, in the absence of fraud, be prima  facie  evidence  of
    15  the  facts  therein  stated.  Whenever  a corporation has more than five
    16  hundred members, the notice may be served by publication in a  newspaper
    17  published  in  the  county in the state in which the principal office of
    18  the corporation is located, once a week for three successive weeks  next
    19  preceding  the  date of the meeting, provided that the corporation shall
    20  also prominently post notice of such meeting  on  the  homepage  of  any
    21  website  maintained  by  the  corporation  continuously from the date of
    22  publication through the date of the meeting. A  corporation  shall  send
    23  notice  of  meetings  by  first class mail to any member who requests in
    24  writing that such notices be delivered by such method.
    25    (b) When a meeting is adjourned to another time or place, it shall not
    26  be necessary, unless the by-laws require otherwise, to give  any  notice
    27  of  the  adjourned meeting if the time and place to which the meeting is
    28  adjourned and, for the duration of the state disaster emergency declared
    29  by executive order two hundred two that  began  on  March  seventh,  two
    30  thousand  twenty,  the  means  of  electronic communications, if any, by
    31  which members may participate in the proceedings of the meeting pursuant
    32  to paragraph (a) of section  six  hundred  three  of  this  article  are
    33  announced  at  the meeting at which the adjournment is taken, and at the
    34  adjourned meeting any business may be transacted that  might  have  been
    35  transacted  on  the  original date of the meeting. However, if after the
    36  adjournment the board fixes a new record date for the adjourned meeting,
    37  a notice of the adjourned meeting shall  be  given  to  each  member  of
    38  record  on the new record date entitled to notice under paragraph (a) of
    39  this section.
    40    (c) Nothing required in paragraphs (a) or (b) of  this  section  shall
    41  limit, restrict or supersede other forms of voting and participation.
    42    § 5. The religious corporations law is amended by adding a new section
    43  28 to read as follows:
    44    §  28.  Meetings  for  the  duration  of  the state disaster emergency
    45  declared by executive order two hundred two that began on March seventh,
    46  two thousand twenty; electronic communication.  For the duration of  the
    47  state  disaster  emergency  declared  by executive order two hundred two
    48  that began on March seventh, two thousand  twenty,  notwithstanding  any
    49  provision of law, certificate of incorporation or by-laws to the contra-
    50  ry, if the board of trustees of a religious corporation is authorized to
    51  determine the place of trustee meetings or corporate meetings, the board
    52  of  trustees  may,  in  its  sole discretion, determine that the meeting
    53  shall be held solely by means of electronic communication, the electron-
    54  ic service and/or platform through which the meeting is  held  shall  be
    55  the place of the meeting for purposes of this chapter.
        S. 8412                             4
 
     1    §  6.  This  act shall take effect immediately and shall expire and be
     2  deemed repealed December 31, 2021.