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This entry was published on 2021-08-06
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SECTION 1002
Authorization of plan
Not-for-Profit Corporation (NPC) CHAPTER 35, ARTICLE 10
§ 1002. Authorization of plan.

(a) Upon adopting a plan of dissolution and distribution of assets,
the board shall submit it to a vote of the members, if any, and such
plan shall be approved at a meeting of members by two-thirds vote as
provided in paragraph (c) of section 613 (Vote of members) of this
chapter; provided, however, that if the corporation is a charitable
corporation, other than a corporation incorporated pursuant to article
15 (Public cemetery corporations) of this chapter, the vote required by
the corporation's board of directors for adoption of the plan of
dissolution of such a corporation or by the corporation's members for
the authorization thereof shall be:

* (1) In the case of a vote by the board of directors: (i) the number
of directors required under the certificate of incorporation, by-laws,
this chapter and any other applicable law; or

(ii) if the number of directors actually holding office as such at the
time of the vote to adopt the plan is less than the number required to
constitute a quorum of directors under the certificate of incorporation,
the by-laws, this chapter or any other applicable law, the remaining
directors unanimously;

* NB Effective until October 31, 2021

* (1) In the case of a vote by the board of directors: (i) the number
of directors required under the certificate of incorporation, by-laws,
this chapter and any other applicable law;

(ii) two-thirds of the directors present at the time of the vote, if a
quorum is present at that time; or

(iii) if the number of directors actually holding office as such at
the time of the vote to adopt the plan is less than the number required
to constitute a quorum of directors under the certificate of
incorporation, the by-laws, this chapter or any other applicable law,
the remaining directors unanimously;

* NB Effective October 31, 2021

(2) In the case of a vote by the members, (i) the number of members
required under the certificate of incorporation, by-laws, this chapter
and any other applicable law; or (ii) by the vote of members authorized
by an order of the supreme court pursuant to section 608 (Quorum at
meeting of members) of this chapter permitting the corporation to
dispense with the applicable quorum requirement.

Notice of a special or regular meeting of the board of directors or of
the members entitled to vote on adoption and authorization or approval
of the plan of dissolution shall be sent to all the directors and
members of record entitled to vote. Unless otherwise directed by order
of the supreme court pursuant to section 608 (Quorum at meeting of
members) of this chapter, the notice shall be sent by certified mail,
return receipt requested, to the last known address of record of each
director and member not fewer than thirty, and not more than sixty days
before the date of each meeting provided, however, that if the last
known address of record of any director or member is not within the
United States, the notice to such director shall be sent by any other
reasonable means.

(b) If there are no members entitled to vote on the dissolution of the
corporation, the plan of dissolution and distribution of assets shall be
deemed authorized upon its adoption by the board.

(c) Whenever a statute creating, or authorizing the formation of, a
corporation requires approval by a governmental body or officer for the
formation of such corporation, dissolution shall not be authorized
without the approval of such body or officer.

(d) (1) The plan of dissolution and distribution of assets shall have
annexed thereto the approval of the attorney general in the case of a
charitable corporation, and in the case of any non-charitable
corporation which at the time of dissolution holds assets legally
required to be used for a particular purpose.

(2) Application to the attorney general for such approval shall be by
verified petition, with the plan of dissolution and distribution of
assets and certified copies of the consents prescribed by this section
annexed thereto.

(3) The attorney general may approve the petition if the corporation
has adopted a plan in accordance with the requirements of section 1001
(Plan of dissolution and distribution of assets) of this article, and
any other requirements imposed by law or rule. At any time, including if
the attorney general does not approve the petition, or the attorney
general concludes, in his or her discretion, that court review of the
petition is appropriate, the corporation may apply for approval to the
supreme court in the judicial district in which the principal office of
the corporation is located, or in which the office of one of the
domestic constituent corporations is located, for an order dissolving
the corporation. Application to the supreme court for an order for such
approval shall be by verified petition upon ten days written notice to
the attorney general, and shall include all information required to be
included in the application to the attorney general pursuant to this
section.