ARTICLE XVI General Provisions Applicable to Banking Non-Stock Corporations Section 9001. Definitions. 9001-a. Fingerprints. 9002. Application. 9003. Certificates; requirements, signing, filing, effectiveness. 9004. Certificates; corrections. 9005. Nonexclusivity of statutory provisions for indemnification of directors and officers. 9006. Authorization for indemnification of directors and officers. 9007. Payment of indemnification other than by court award. 9008. Indemnification of directors and officers by a court. 9009. Other provisions affecting indemnification of directors and officers. 9010-a. Insurance for indemnification of directors and officers. 9011. Certificates as evidence. 9012. Corporate seal as evidence. 9013. When notice or lapse of time unnecessary; notices dispensed with when delivery is prohibited. 9014. Corporate name; general. 9015. Corporate name; exceptions. 9016. Change of name. 9017. Place and time of meetings of the board; presence at. 9018. Effect of invalidity of part of article; severability. 9019. Certain provisions relating to the conversion of non-stock savings banks and savings and loan associations to stock form. S 9001. Definitions. In this article, unless the context otherwise requires: 1. "Corporation" means and includes all mutual savings banks, mutual savings and loan associations, mutual holding companies and credit unions. 2. "Director" means any member of the governing board of a corporation, whether designated as director, trustee, manager, governor or by any other title; the term "board" means "board of directors. " 3. "Organization certificate" includes (a) the original organization certificate or any other instrument filed or issued under any statute to form a corporation or foreign corporation, as amended, supplemented or restated by certificates of amendment, merger or consolidation or other certificates or instruments filed or issued under any statute; or (b) a special act or charter creating a corporation or foreign corporation, as amended, supplemented or restated by special acts or by certificates of amendment, merger or consolidation or other certificates or instruments filed or issued under any statute. 4. "Foreign corporation" means a non-stock corporation which is licensed by the superintendent under the provisions of article two of this chapter to do business in this state or is applying for such license and a non-stock corporation authorized to conduct business in this state pursuant to article five-C of this chapter or is applying for such authorization. S 9001-a. Fingerprints. (a) Notwithstanding any other provision of law, every incorporator of a corporation shall, in addition to any other requirements which may be imposed by the superintendent, submit simultaneously with an application, his or her fingerprints in such form and in such manner as specified by the division of criminal justice services, but in any event, no less than two digit imprints. The superintendent shall submit the fingerprints to the division of criminal justice services for the purpose of conducting a criminal history search and returning a report thereon in accordance with the procedures and requirements established by the division pursuant to the provisions of article thirty-five of the executive law, which shall include the payment of the prescribed processing fees. The superintendent shall request that the division submit such fingerprints to the federal bureau of investigation, together with the processing fees prescribed by such bureau, for the purpose of conducting a criminal history search and returning a report thereon. (b) The superintendent shall also, concurrent with an investigation of an incorporator of a corporation pertaining to a violation of this chapter, submit such fingerprints to the division of criminal justice services for the purpose of conducting a criminal history search and returning a report thereon and through the division to the federal bureau of investigation for the purpose of a fingerprint check of such incorporator. (c) For purposes of this section, "incorporator" shall include a natural person or such principal, officer, director, trustee or stockholder of any other entity as may be designated by the superintendent. Notwithstanding any other provision of this article, the superintendent shall not access criminal history data or information, unless any agency from which the superintendent receives directly criminal history data or information has entered into a use and dissemination agreement with the superintendent consistent with the provisions of this section. (d) An applicant shall not be required to submit his or her fingerprints as required by subdivision (a) of this section if such applicant (i) is already subject to regulation by the department and the applicant has submitted such fingerprints to the department, such fingerprints have been submitted to the division of criminal justice services for the purpose of conducting a criminal history search, and a report of such search has been received by the department from such division; or (ii) is subject to regulation by a federal bank regulatory agency and has submitted such fingerprints to such agency which has had a criminal history search conducted of such individual and has shared such information or its determination resulting from such search with the department; or (iii) is an officer or stockholder of a corporation whose common or preferred stock is registered on a national securities exchange, as provided in an act of congress of the United States entitled the "Securities Exchange Act of 1934", approved June sixth, nineteen hundred thirty-four, as amended, or such other exchange or market system as the superintendent shall approve by regulation, and has submitted such fingerprints to such exchange or market system which has had a criminal history search conducted of such individual and has shared such information or its determination resulting from such search with the department; provided, however, that the superintendent may subsequently require such applicant to submit such fingerprints if the superintendent has a reasonable basis for updating the information or determination resulting from the report of the criminal history search conducted at the request of such federal banking agency, exchange or market system. S 9002. Application. 1. To the extent not inconsistent with articles six, ten, ten-B and eleven, this article applies to every corporation and, to the extent herein provided, to every foreign corporation. 2. The business corporation law shall not apply to any corporation or foreign corporation as defined in section nine thousand one of this article. S 9003. Certificates; requirements, signing, filing, effectiveness. 1. Every certificate or other instrument relating to a corporation or a foreign corporation which is delivered to the superintendent for filing under this chapter shall be in the English language, except that the corporate name may be in another language if written in English letters or characters. 2. Whenever such instrument is required to set forth an address, it shall include the street and number, or other particular description instead of a street and number. This requirement does not apply where a post office address is specified to be set forth. 3. Whenever such instrument is required to set forth the date when an organization certificate was filed by the superintendent, the original organization certificate is meant. 4. Every such instrument required under this chapter to be signed and delivered to the superintendent, except as otherwise provided in the section providing for such instrument, shall be signed either (a) by the holders of all outstanding shares entitled to vote thereon, or (b) by the chairman of the board, the president or vice president and by the secretary or an assistant secretary or, in the case of a corporation which does not have a secretary or an assistant secretary, by the cashier or an assistant cashier, or (c) if there are no such officers, by a majority of the directors or such directors as are designated by the majority of the directors in office, or (d) if also there are no directors, by the holders, or such of them as are designated by the holders of record of a majority of all outstanding shares entitled to vote thereon, or (e) if also there is no shareholder of record, by a subscriber for shares whose subscription has been accepted or his successor in interest, or (f) if also no subscription for shares has been accepted, by an incorporator. His name and the capacity in which any person signs such instrument shall be stated beneath or opposite his signature. The person signing such instrument, or, if more than one person signs it, one of such persons shall verify or acknowledge the instrument if required by the section providing for such instrument. 5. No such instrument shall be filed unless it shall have endorsed thereon the approval of the superintendent. No certificate of authentication or conformity or other proof shall be required with respect to any verification, oath or acknowledgment of any instrument delivered to the superintendent under this chapter, if such verification, oath or acknowledgment purports to have been made before a notary public, or person performing the equivalent function, of one of the states, or any subdivision thereof, of the United States or the District of Columbia. 6. Except as otherwise provided in this chapter, such instrument shall become effective upon the filing thereof by the superintendent. S 9004. Certificates; corrections. Any certificate or other instrument relating to a corporation filed by the superintendent under this chapter may be corrected with respect to any informality or error apparent on the face or defect in the execution thereof, including the deletion of any material not permitted to be stated therein. A certificate, entitled " Certificate of correction of ........... (correct title of certificate and name of corporation) " shall be signed, verified or acknowledged as provided in this chapter with respect to the instrument being corrected and delivered to the superintendent. It shall set forth the name of the corporation or foreign corporation, the date the instrument to be corrected was filed by the superintendent, the provision in the instrument as corrected or eliminated and if the execution was defective, the proper execution. The filing of the certificate by the superintendent shall not alter the effective time of the instrument being corrected, which shall remain as its original effective date, and shall not affect any right or liability accrued or incurred before such filing. The name of the corporation or foreign corporation may not be changed or corrected under this section. S 9005. Nonexclusivity of statutory provisions for indemnification of directors and officers. The indemnification and advancement of expenses granted pursuant to, or provided by, this article shall not be deemed exclusive of any other rights to which a director or officer seeking indemnification or advancement of expenses may be entitled, whether contained in the organization certificate or the by-laws or, when authorized by such certificate of incorporation or by-laws, (i) a resolution of shareholders, (ii) a resolution of directors, or (iii) an agreement providing for such indemnification, provided that no indemnification may be made to or on behalf of any director or officer if a judgment or other final adjudication adverse to the director or officer establishes that his acts were committed in bad faith or were the result of active and deliberate dishonesty and were material to the cause of action so adjudicated, or that he personally gained in fact a financial profit or other advantage to which he was not legally entitled. Nothing contained in this article shall affect any rights to indemnification to which corporate personnel other than directors and officers may be entitled by contract or otherwise under law. S 9006. Authorization for indemnification of directors and officers. 1. A corporation may indemnify any person, made, or threatened to be made, a party to an action or proceeding (other than one by or in the right of the corporation to procure a judgment in its favor), whether civil or criminal, including an action by or in the right of any other corporation of any type or kind, whether or not formed under any law of this state, or any partnership, joint venture, trust, employee benefit plan or other enterprise, which any director or officer of the corporation served in any capacity at the request of the corporation, by reason of the fact that he, his testator or intestate, was a director or officer of the corporation, or served such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise in any capacity, against judgments, fines, amounts paid in settlement and reasonable expenses, including attorneys` fees actually and necessarily incurred as a result of such action or proceeding, or any appeal therein, if such director or officer acted, in good faith, for a purpose which he reasonably believed to be in, or, in the case of service for any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise, not opposed to, the best interests of the corporation and, in criminal actions or proceedings, in addition, had no reasonable cause to believe that his conduct was unlawful. 2. The termination of any such civil or criminal action or proceeding by judgment, settlement, conviction or upon a plea of nolo contendere, or its equivalent, shall not in itself create a presumption that any such director or officer did not act, in good faith, for a purpose which he reasonably believed to be in, or, in the case of service to any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise, not opposed to, the best interests of the corporation or that he had reasonable cause to believe that his conduct was unlawful. 3. A corporation may indemnify any person made, or threatened to be made, a party to an action by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he, his testator or intestate, is or was a director or officer of the corporation, or is or was serving at the request of the corporation as a director or officer of any other corporation of any type or kind, whether or not formed under any law of this state, of any partnership, joint venture, trust, employee benefit plan or other enterprise, against amounts paid in settlement and reasonable expenses, including attorneys` fees, actually and necessarily incurred by him in connection with the defense or settlement of such action, or in connection with an appeal therein, if such director or officer acted, in good faith, for a purpose which he reasonably believed to be in, or, in the case of service for any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise, not opposed to, the best interests of the corporation, except that no indemnification under this subdivision shall be made in respect of (a) a threatened action, or a pending action which is settled or otherwise disposed of, or (b) any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation, unless and only to the extent that the court in which the action was brought, or, if no action was brought, any court of competent jurisdiction, determines upon application that, in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such portion of the settlement amount and expenses as the court deems proper. 4. For the purpose of this section, a corporation shall be deemed to have requested a person to serve an employee benefit plan where the performance by such person of his duties to the corporation also imposes duties on, or otherwise involves services by, such person to the plan or participants or beneficiaries of the plan; excise taxes assessed on a person with respect to an employee benefit plan pursuant to applicable law shall be considered fines; and action taken or omitted by a person with respect to an employee benefit plan in the performance of such person`s duties for a purpose reasonably believed by such person to be in the interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is not opposed to the best interests of the corporation. S 9007. Payment of indemnification other than by court award. 1. A person who has been successful, on the merits or otherwise, in the defense of a civil or criminal action or proceeding of the character described in section nine thousand six shall be entitled to indemnification as authorized in such section.
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2. Except as provided in subdivision one, any indemnification under section nine thousand six or otherwise permitted by section nine thousand five, unless ordered by a court under section nine thousand eight, shall be made by the corporation, only if authorized in the specific case: (a) By the board acting by a quorum consisting of directors who are not parties to such action or proceeding upon a finding that the director or officer has met the standard of conduct set forth in section nine thousand six or established pursuant to section nine thousand five, as the case may be, or, (b) If a quorum under paragraph (a) is not obtainable or, even if obtainable, a quorum of disinterested directors so directs: (1) By the board upon the opinion in writing of independent legal counsel that indemnification is proper in the circumstances because the applicable standard of conduct set forth in such sections has been met by such director or officer, or (2) By the shareholders upon a finding that the director or officer has met the applicable standard of conduct set forth in such sections. 3. Expenses incurred in defending a civil or criminal action or proceeding may be paid by the corporation in advance of the final disposition of such action or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount as, and to the extent, required by subdivision one of section nine thousand nine. S 9008. Indemnification of directors and officers by a court. 1. Notwithstanding the failure of a corporation to provide indemnification, and despite any contrary resolution of the board or of the shareholders in the specific case under section nine thousand seven, indemnification shall be awarded by a court to the extent authorized under section nine thousand six and subdivision one of section nine thousand seven. Application therefor may be made, in every case, either: (a) In the civil action or proceeding in which the expenses were incurred or other amounts were paid, or (b) To the supreme court in a separate proceeding, in which case the application shall set forth the disposition of any previous application made to any court for the same or similar relief and also reasonable cause for the failure to make application for such relief in the action or proceeding in which the expenses were incurred or other amounts were paid. 2. The application shall be made in such manner and form as may be required by the applicable rules of court, or in the absence thereof, by direction of a court to which it is made. Such application shall be upon notice to the corporation. The court may also direct that notice be given at the expense of the corporation to the shareholders and such other persons as it may designate in such manner as it may require. 3. Where indemnification is sought by judicial action, the court may allow a person such reasonable expenses, including attorneys` fees, during the pendency of the litigation as are necessary in connection with his defense therein, if the court shall find that the defendant has by his pleadings or during the course of the litigation raised genuine issues of fact or law. S 9009. Other provisions affecting indemnification of directors and officers. 1. All expenses incurred in defending a civil or criminal action or proceeding which are advanced by the corporation under subdivision three of section nine thousand seven or allowed by a court under subdivision three of section nine thousand eight shall be repaid in case the person receiving such advancement or allowance is ultimately found, under the procedure set forth in this article, not to be entitled to indemnification or, where indemnification is granted, to the extent the expenses so advanced by the corporation or allowed by the court exceed the indemnification to which he is entitled. 2. No indemnification, advancement or allowance shall be made under this article in any circumstance where it appears: (a) That the indemnification would be inconsistent with a provision of the organization certificate, a by-law, a resolution of the board or of the shareholders, an agreement or other proper corporate action, in effect at the time of the accrual of the alleged cause of action asserted in the threatened or pending action or proceeding in which the expenses were incurred or other amounts were paid, which prohibits or otherwise limits indemnification; or (b) If there has been a settlement approved by the court, that the indemnification would be inconsistent with any condition with respect to indemnification expressly imposed by the court in approving the settlement. 3. If any expenses or other amounts are paid by way of indemnification, otherwise than by court order or action by the shareholders, the corporation shall, not later than the next annual meeting of shareholders unless such meeting is held within three months from the date of such payment, and, in any event, within fifteen months from the date of such payment, mail to its shareholders of record at the time entitled to vote for the election of directors a statement specifying the persons paid, the amounts paid, and the nature and status at the time of such payment of the litigation or threatened litigation. 4. If any action with respect to indemnification of directors and officers is taken by way of amendment of the by-laws, resolution of directors, or by agreement, then the corporation shall, not later than the next annual meeting of shareholders, unless such meeting is held within three months from the date of such action and, in any event within fifteen months from the date of such action, mail to its shareholders of record at the time entitled to vote for the election of directors a statement specifying the action taken. 5. No payment of indemnification, advancement or allowance under this article shall be made unless a notice has been filed with the superintendent, not less than thirty days prior to such payment, specifying the persons to be paid, the amounts to be paid, the manner in which such payment was authorized, and the nature and status at the time of the notice of the litigation or threatened litigation. S 9010-a. Insurance for indemnification of directors and officers. 1. Subject to the provisions of subdivision two of this section, a corporation shall have power to purchase and maintain insurance: (a) To indemnify the corporation for any obligation which it incurs as a result of the indemnification of directors and officers under the provisions of this article, and (b) To indemnify directors and officers in instances in which they may be indemnified by the corporation under the provisions of this article, and (c) To indemnify directors and officers in instances in which they may not otherwise be indemnified by the corporation under the provisions of this article provided the contract of insurance covering such directors and officers provides, in a manner acceptable to the superintendent of insurance, for a retention amount and for co-insurance. 2. No insurance under subdivision one of this section may provide for any payment, other than cost of defense, to or on behalf of any director or officer: (a) If a judgment or other final adjudication adverse to the insured director or officer establishes that his acts of active and deliberate dishonesty were material to the cause of action so adjudicated, or that he personally gained in fact a financial profit or other advantage to which he was not legally entitled, or (b) In relation to any risk the insurance of which is prohibited under the insurance law of this state. 3. Insurance under any or all paragraphs of subdivision one of this section may be included in a single contract or supplement thereto. Retrospective rated contracts are prohibited. 4. The corporation shall, within the time and to the persons provided in subdivision three of section nine thousand nine of this article, mail a statement in respect of any insurance it has purchased or renewed under this section, specifying the insurance carrier, date of the contract, cost of the insurance, corporate positions insured, and a statement explaining all sums, not previously reported in a statement to shareholders, paid under any indemnification insurance contract. 5. This section is the public policy of this state to spread the risk of corporate management, notwithstanding any other general or special law of this state or of any other jurisdiction including the federal government. S 9011. Certificates as evidence. 1. Any certificate or other instrument filed by the superintendent relating to a corporation or foreign corporation and containing statements of fact, required or permitted by law to be contained therein, shall be received in all courts, public offices and official bodies as prima facie evidence of such facts and of the execution of such instrument. 2. Whenever by the laws of any jurisdiction other than this state, any certificate by any officer in such jurisdiction or a copy of any instruments certified or exemplified by such officer, may be received as prima facie evidence of the incorporation, existence or capacity of any foreign corporation incorporated in such jurisdiction, or claiming so to be, such certificate when exemplified shall be received in all courts, public offices and official bodies of this state, as prima facie evidence with the same force as in such jurisdiction. Such certificate or certified copy of such instrument shall be so received, without being exemplified, if it is certified by the secretary of state, or officer performing the equivalent functions, as to corporate records of such jurisdiction. S 9012. Corporate seal as evidence. The presence of the corporate seal on a written instrument purporting to be executed by authority of a corporation or a foreign corporation shall be prima facie evidence that the instrument was so executed. S 9013. When notice or lapse of time unnecessary; notices dispensed with when delivery is prohibited. 1. Whenever, under articles six, ten, ten-B and eleven, the organization certificate and by-laws of any corporation or by the terms of any agreement or instrument, a corporation or the board or any committee thereof is authorized to take any action after notice to any person or persons or after the lapse of a prescribed period of time, such action may be taken without notice and without the lapse of such period of time, if at any time before or after such action is completed the person or persons entitled to such notice or entitled to participate in the action to be taken or, in the case of a shareholder, by his attorney-in-fact, submit a signed waiver of notice of such requirements. 2. Whenever any notice or communication is required to be given to any person or persons by articles six, ten, ten-B and eleven, the organization certificate and by-laws, or by the terms of any agreement or instrument, or as a condition precedent to taking any corporate action and communication with such person or persons is then unlawful under any statute of this state or of the United States or any regulation, proclamation or order issued under such statutes, then the giving of such notice or communication to such person or persons shall not be required and there shall be no duty to apply for a license or other permission to do so. Any affidavit, certificate or other instrument which is required to be made or filed as proof of giving of any notice or communication required under articles six, ten and eleven shall, if such notice or communication to any person is dispensed with under this subdivision, include a statement that such notice or communication was not given to any person with whom communication is unlawful. Such affidavit, certificate or other instrument shall be as effective for all purposes as though such notice or communication had been personally given to such person. S 9014. Corporate name; general. Except as otherwise provided in this chapter, the name of a corporation or a foreign corporation shall not be the same as the name of a corporation of any type or kind, as such name appears on the index of names of existing corporations of any type or kind in the banking department or a name so similar to such name as to tend to confuse or deceive. S 9015. Corporate name; exceptions. 1. Any reference to a corporation in this section shall include both corporations and foreign corporations. 2. The provisions of section nine thousand fourteen: (a) Shall not require any corporation existing or recognized under this chapter on the effective date of this article, to add to, modify or otherwise change its corporate name. (b) Shall not prevent a corporation with which another corporation is merged or which is formed by the reorganization or consolidation of one or more other corporations or upon a sale, lease, exchange or other disposition of all or substantially all of the assets of another corporation, including its name, from having the same name as any of such corporations if at the time such other corporation was licensed or existing under this chapter. S 9016. Change of name. By resolution adopted by a vote of two-thirds of all its directors, at a meeting held for the purpose, a corporation may change its corporate name, but such change shall not be effective unless it shall have been approved by the superintendent. If the superintendent shall approve, he shall issue, under his hand and the official seal of the department, in triplicate, a certificate authorizing such change of name to become effective, and stating the time at which such change shall become effective, which certificates shall be transmitted and filed in the same manner as authorization certificates. S 9017. Place and time of meetings of the board; presence at. 1. Meetings of the board, regular or special, may be held at any place within or without this state, unless otherwise provided in the organization certificate or the by-laws. 2. Subject to articles six, ten, ten-B and eleven of this chapter, the time and place for holding meetings of the board may be fixed by or under the by-laws, or, if not so fixed, by the board. 3. When authorized by the organization certificate of incorporation or the by-laws, any one or more members of the board or any committee thereof may participate in a meeting of such board or committee by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other at the same time. Participation by such means shall constitute presence in person at a meeting. S 9018. Effect of invalidity of part of article; severability. If any provision of this article or application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of this article which can be given effect without the invalid provision or application, and to this end the provisions of this article are declared severable. S 9019. Certain provisions relating to the conversion of non-stock savings banks and savings and loan associations to stock form. No mutual savings bank and no mutual savings and loan association shall convert to stock form unless all depositors (in the case of such savings banks) and all shareholders (in the case of such savings and loan associations) of any such converting institution whose aggregate deposit or share balance, as the case may be, (as shown on the books and records of the converting institution) equals at least one hundred dollars as of a record date to be established in accordance with general regulations of the banking board are provided with an opportunity to approve such conversion, either in person or by valid proxy, at a meeting duly convened in accordance with general regulations of the banking board for the purpose of approving or disapproving such conversion. At such meeting, each depositor or shareholder shall be entitled to cast one vote for each full one hundred dollars of deposits or shares of such depositor or shareholder shown on the books and records of the converting institution as of such record date. A depositor or shareholder shall not be entitled to cast any votes for any deposit or share balances in amounts of less than one hundred dollars. No such conversion shall be effective unless approved by the affirmative vote of at least seventy-five per centum of the aggregate dollar amount of the book value of deposits or shares, as the case may be, represented (either in person or by proxy) at such duly convened meeting and entitled to vote thereat.