2010 New York Code
BNK - Banking
Article 13 - (600 - 634) MERGER; VOLUNTARY DISSOLUTION; SUPERINTENDENT'S TAKING POSSESSION; REORGANIZATION; LIQUIDATION
605 - Voluntary liquidation; sale of assets; forfeiture of charter by non-user.

§ 605. Voluntary liquidation; sale of assets; forfeiture of charter by
  non-user.  1.  Any  corporate  banking organization, the assets of which
  have a value at  least  equal  to  its  liabilities,  exclusive  of  any
  liability to shareholders or stockholders, as such, may voluntarily wind
  up  its affairs; but no banking organization of which the superintendent
  has taken possession in accordance with the provisions  of  section  six
  hundred  six  of  this  chapter  shall take any steps for such voluntary
  dissolution  until  it  has  received  the  written  approval   of   the
  superintendent.
    2.  To effect a voluntary dissolution of any corporation, a meeting of
  the stockholders or shareholders of such corporation having full  voting
  rights,  and  if  applicable  any  other  stockholders  or  shareholders
  authorized  by  the  organization  certificate  or   by-laws   of   such
  corporation  to  vote on a resolution to effect a voluntary dissolution,
  shall be held upon not less than twenty days'  written  notice  to  each
  such  stockholder  or shareholder, either served personally or mailed to
  the stockholder or shareholder at the address appearing upon  the  books
  of  the corporation, and containing a statement of the purpose for which
  such meeting is called. Proof by affidavit of due service of such notice
  shall be filed in the office of the corporation before or at the time of
  such meeting.
    In the case of a mutual savings  bank,  a  meeting  of  its  board  of
  trustees  shall  be  held  upon  like  notice. Proof by affidavit of due
  service of such notice shall be filed in the office of the savings  bank
  before or at the time of such meeting.
    3.  At  such  a  meeting  of stockholders or mutual shareholders, such
  stockholders or mutual shareholders may, by a vote of the owners  of  at
  least  two-thirds  in  amount  of  such stock, or of the capital of such
  mutual corporation, direct  that  the  corporation  be  closed  and  its
  business  wound  up. The proceedings of such meeting shall be entered in
  the minutes of such corporation.
    At such a meeting of the board of trustees  of  a  savings  bank,  the
  trustees  may by vote of not less than two-thirds of their whole number,
  direct by resolution that the savings bank be closed  and  its  business
  wound  up.  The  vote  on  such  resolution  shall  be recorded with the
  resolution in the minutes of the board of trustees.
    A copy of the minutes  of  such  meeting  of  stockholders  or  mutual
  shareholders or board of trustees, verified by the presiding officer and
  by  the  secretary  of such meeting, shall be filed in the office of the
  superintendent within five days after the date of such meeting.
    4. Within three months after the date of any such meeting, application
  may  be  made  to  the  supreme  court,  after   due   notice   to   the
  superintendent,  for an order declaring the business of such corporation
  closed. In a proper case, the court shall make such  order  which  shall
  prescribe  the notice to be given to creditors and depositors to present
  their claims to the corporation for payment. In the closing  order,  the
  court  shall set a date certain by which claims must be presented to the
  corporation for payment. The corporation need not  consider  any  claims
  submitted  after  that  date.  Within five days after the making of such
  order, a certified copy thereof shall be filed  in  the  office  of  the
  superintendent.  Upon  the  entry  of  such order such corporation shall
  cease to do business and shall wind up its affairs,  pay  its  creditors
  and  depositors,  if  any,  and,  except in the case of a mutual savings
  bank,  distribute  any  remaining  assets  among  its  shareholders   or
  stockholders  according  to  their  respective rights and interests. The
  corporation or any creditor or depositor thereof, upon due  notice,  may
  apply  to the court that issued the closing order for a determination as
  to any disputed claim or for any other relief  necessary  to  effectuate

the  liquidation  and  dissolution  of  the  corporation.  Any petition,
  application, or motion to vacate, set aside, modify or amend such  order
  so   as  to  permit  the  corporation  to  resume  business  shall  have
  incorporated therein a certificate of the superintendent certifying that
  after  investigation the superintendent has found, and the banking board
  by a three-fifths vote of all its members has  found,  that  the  public
  convenience  and  advantage  will  be  promoted  by the granting of said
  petition, application or motion.
    4-a. (a) Such corporation may, at any time after entry  of  the  order
  described  in  subdivision  four  of this section, cause to be mailed to
  each person claiming  to  be,  or  appearing  upon  the  books  of  such
  corporation to be
    (1) the owner of any personal property in the custody or possession of
  such  corporation  as  bailee  or  depositary  for  hire  or  otherwise,
  including the contents of any safe, vault or box theretofore opened  for
  non-payment of rental in accordance with the provisions of this chapter,
  or
    (2) the lessee of any safe, vault or box, a notice in writing directed
  by  registered  mail  to  such  person  at  his last address as the same
  appears on the books of such corporation or at his last known address if
  no address appears on such books, notifying such person  to  remove  all
  such  property  or the contents of any such safe, vault or box, within a
  period stated in said notice, which period shall be not less than  sixty
  days  from the date of such notice, and further notifying such person of
  the terms and provisions of this subdivision. The contract  of  bailment
  or  of deposit for hire, or lease of safe, vault or box, if any, between
  the person to whom such notice is  mailed  and  such  corporation  shall
  cease and determine upon the date for removal fixed in such notice. Such
  person shall have a claim against such corporation for the amount of the
  unearned  rent  or  charges,  if  any, paid by such person from the date
  fixed in such notice, if the property  or  contents  is  removed  on  or
  before such date, or from the date of actual removal, if the property or
  contents is removed after such date.
    (b) If such property or contents shall not be removed, and all rent or
  storage  and  other  charges  theretofore  accrued, if any, shall not be
  paid, within the time fixed by  such  notice,  such  corporation  shall,
  within thirty days thereafter, cause such property to be inventoried, or
  such  safe,  vault  or  box, or any package, parcel or receptacle in the
  custody or possession of such corporation as bailee  or  depositary  for
  hire  or otherwise, to be opened and the contents, if any, to be removed
  and inventoried, in the presence of an officer of such  corporation  and
  of a notary public, not an officer or employee thereof. Such property or
  contents shall thereupon be sealed up by such notary public in a package
  distinctly  marked by him with the name of the person in whose name such
  property or such safe, vault, box, package, parcel or receptacle  stands
  upon  the  books of such corporation, and a copy of the inventory of the
  property therein shall be certified and attached thereto by such  notary
  public.  Such package may be kept in such place as the corporation, with
  the approval of the superintendent, may determine, at  the  expense  and
  risk  of  the  person  in  whose  name it stands until delivered to such
  person or until sold, destroyed or otherwise disposed of as  hereinafter
  provided. Such package may, from time to time, pending final disposition
  of  its  contents,  be  opened  in  the  presence  of an officer of such
  corporation and of a notary public, not an officer or employee  thereof,
  for  inspection  or appraisal, or to enable such corporation to exercise
  any of the powers conferred or duties imposed by this article.  Whenever
  such  package is opened, the notary shall endorse on the outside thereof
  the date of opening and re-sealing, and shall certify and attach thereto

a list of the articles, if any, removed therefrom, or placed or replaced
  therein, and an affidavit of the officer in whose presence it was opened
  showing the reason for opening the same.
    (c) At any time prior to the sale, destruction or other disposition of
  the  contents  thereof, the person in whose name such package stands may
  require the delivery thereof upon  payment  of  all  rental  or  storage
  charges  accrued,  and all other charges or expenses paid or incurred to
  the date of delivery with  respect  to  such  package  or  the  contents
  thereof,   including   the  cost  of  inventorying  or  of  opening  and
  inventorying, the fees of the notary public, the cost of  preparing  and
  mailing  the  notice,  and  advertising, if any. If the principal of, or
  interest,  income,  or  dividends  on  any  bonds,  stock  certificates,
  promissory notes, choses in action or other securities contained in such
  package,  is or becomes due and payable while it is in the possession of
  such corporation,  it  may  at  its  election  collect  such  principal,
  interest,  income or dividends, and from the proceeds thereof may deduct
  all such sums due for rental and other charges, until the time  of  such
  collection.  The  balance, if any, of the amount or amounts so collected
  shall be disposed of as hereafter in paragraph (e) of  this  subdivision
  and in subdivision five hereof provided.
    (d)  After  the  expiration  of  one year from the time of mailing the
  notice in paragraph (a) of this subdivision described, such  corporation
  may apply to the supreme court for an order authorizing such corporation
  to  sell,  destroy or otherwise dispose of the contents of such package.
  In a proper case, the court shall make such order upon  such  terms  and
  conditions  as  justice may require. The application for an order of the
  supreme court pursuant to this paragraph shall be made upon an order  to
  show  cause,  which  shall  provide that notice thereof to the person in
  whose name such package stands and  to  any  other  person  claiming  or
  appearing  to  have  an  interest therein, shall be published, mailed or
  given in such  other  manner  as  the  court  may  prescribe.  Whenever,
  pursuant to the provisions of this paragraph, a corporation is given the
  power  to  sell the contents of any package, such power to sell shall be
  deemed a power to sell in satisfaction of  a  lien  for  non-payment  of
  rental  or  storage  charges accrued, and all other charges and expenses
  paid or incurred to the date of sale with respect to  such  package  and
  the  contents  thereof,  including the charges and expenses described in
  paragraph (c) hereof. Such power to sell, or the  power  to  destroy  or
  otherwise dispose of, when authorized pursuant to the provisions of this
  paragraph,  shall  be  deemed  to  include the power to sell, destroy or
  otherwise dispose of, as the case may be, any bonds, stock certificates,
  promissory notes, choses in action, or other securities, and  any  other
  tangible  or intangible property contained in any package, regardless of
  whether or not it shall appear from such securities or  properties  that
  the  person  in  whose  name  the  package stands, possesses title to or
  interest in such securities or other properties, or  power  to  transfer
  such  title  or interest, and any sale of such securities or properties,
  pursuant to this  paragraph,  shall  vest  good  title  thereto  in  the
  purchaser thereof.
    (e)  From  the proceeds of any sale, such corporation shall deduct all
  rental or storage charges accrued, and all other  charges  and  expenses
  paid or incurred to the date of sale, including the charges and expenses
  described in paragraph (c) hereof, and the expenses of sale. The balance
  of  such proceeds, if any, shall be credited to the person in whose name
  such package stood and, unless sooner paid over  to  the  superintendent
  pursuant  to subdivision five hereof, shall be paid over to such person,
  his  assignee  or  legal  representative  on  satisfactory  evidence  of
  identity.

(f)  The  provisions of this subdivision do not affect or preclude any
  other remedy by action or otherwise for the enforcement of the claims or
  rights of  such  corporation  against  the  person  in  whose  name  any
  property, or any safe, vault, box, package, parcel or receptacle stands,
  nor  affect,  nor  bar  the right of such corporation to recover, before
  sale, any debt or claim due it or, after sale, so much of  the  debt  or
  claim as shall not be paid by the proceeds of the sale.
    (g)  The  procedure  prescribed in this subdivision may be followed by
  any corporation winding up its affairs in accordance with the provisions
  of this section, notwithstanding the fact that such corporation may have
  commenced proceedings to open, or may have opened, any  safe,  vault  or
  box  for  non-payment  of  rental in accordance with other provisions of
  this chapter and notwithstanding the contents of  any  notice  that  may
  have  been  given by such corporation in accordance with any requirement
  of this section.
    5. When such corporation shall have given the notice to creditors  and
  depositors to present their claims as prescribed in the order entered in
  accordance  with  the  provisions  of subdivision four hereof, and shall
  have paid all its debts and obligations for which a legal  claimant  has
  been  found,  and shall have complied with the provisions of subdivision
  four-a hereof, it shall, before applying to court  for  a  release  upon
  final  accounting  or  for a final order of dissolution, make a verified
  transcript or statement from its books of the names of  all  depositors,
  creditors,  stockholders,  shareholders,  owners of personal property in
  the custody or possession of such corporation as bailee, depositary  for
  hire  or  otherwise,  or lessees of any safe, vault or box, who have not
  claimed or have not received the deposits,  debts,  dividends,  interest
  balances  or  other  amounts due them, and shall file such transcript or
  statement  with  the  superintendent  together  with   all   identifying
  information,  including,  in  the case of unclaimed proceeds of any sale
  pursuant  to  subdivision  four-a  hereof,  a  certified  copy  of   the
  inventory,  and  an  affidavit showing compliance with the provisions of
  said subdivision, a list of the  articles  sold,  the  price  or  prices
  obtained  therefor, and the amount or amounts deducted and retained from
  the  proceeds  and  such  corporation  shall  thereupon  pay  over  such
  unclaimed  amounts  to  the  superintendent  as  trustee for the persons
  entitled to receive them, as provided in article two of this chapter.
    6. Upon the petition of such corporation showing
    (a) that all its debts and obligations  have  been  discharged  except
  those for which no legal claimant has been found,
    (b) that notice was given to creditors and depositors to present their
  claims  as prescribed by the court and that any period prescribed by the
  court for the presentation of such claims has expired,
    (c) that the provisions of subdivision four-a hereof,  if  applicable,
  have been complied with and
    (d)  that all unclaimed amounts referred to in subdivision five hereof
  have been paid  over  to  the  superintendent,  and  on  notice  to  the
  comptroller  and the superintendent and such further notice as the court
  may prescribe, the court may, on such terms as justice requires, make an
  order affirming such disposition of such unclaimed amounts and declaring
  such corporation dissolved and its corporate existence terminated.
    7. On filing with the superintendent a certified copy of the order  of
  dissolution described in the last preceding subdivision of this section,
  the corporation shall cease to exist.
    8.  Unless the banking board by a three-fifths vote of all its members
  shall  otherwise  provide,  any  corporate  banking  organization  that,
  pursuant to an agreement, sells or conveys more than fifty per centum of
  its assets without the written approval of the superintendent shall take

the  proceedings for voluntary dissolution herein prescribed and, within
  six months from the date of such sale or conveyance, shall file with the
  superintendent a certified  copy  of  the  closing  order  in  the  form
  prescribed  by  subdivision  four of this section. The corporate banking
  organization, upon making written application to the superintendent  for
  approval  of the sale or conveyance of more than fifty per centum of its
  assets, shall pay an investigation fee as prescribed pursuant to section
  eighteen-a of this chapter. If a closing order is required to  be  filed
  pursuant to this subdivision and such order is not filed within the time
  prescribed,  the  superintendent  shall  have  the  power, in his or her
  discretion, to take possession of the  business  and  property  of  such
  corporation   and   proceed  with  the  liquidation  thereof  under  the
  provisions of this article.
    9. If the superintendent shall  certify  that  any  corporate  banking
  organization  is  deemed  by  him  to  have  abandoned and forfeited its
  charter by non-user and to be virtually in process of liquidation,  such
  corporation,  if  its  assets  have  a  value  at  least  equal  to  its
  liabilities, exclusive of any liability to shareholders or stockholders,
  as such, shall take the  proceeding  for  voluntary  dissolution  herein
  prescribed  and,  within  six  months from the date of such certificate,
  shall file with the superintendent a certified copy of the closing order
  in the form prescribed by subdivision four  of  this  section.  If  such
  order  is not filed within the time prescribed, the superintendent shall
  have the power, in his discretion, to take possession  of  the  business
  and  property  of  such  corporation  and  proceed  with the liquidation
  thereof under the provisions of this article.
    10. (a) Upon the petition of the superintendent showing
    (1) that any corporate banking organization  has  ceased  to  transact
  business,  or  has  commenced but failed to complete proceedings for its
  voluntary dissolution in accordance with the banking  law,  or  for  any
  other  reason  is  deemed  by  the  superintendent to have abandoned and
  forfeited its charter by non-user, and
    (2) that all  of  its  assets  have  been  distributed,  or  that  the
  superintendent  has no knowledge as to the existence of any such assets,
  the  supreme  court  in  the  judicial  district  where   such   banking
  organization  maintained  its  principal  place  of business may make an
  order declaring such corporation dissolved and the  corporate  existence
  thereof terminated. Upon the filing of a certified copy of such order in
  the office of the superintendent the existence of such corporation shall
  cease and determine.
    (b)  If  the petition of the superintendent shall show, in addition to
  the allegations required  by  the  provisions  of  subparagraph  (1)  of
  paragraph (a) of this subdivision, that such banking organization
    (1) has undistributed assets and it appears that in the opinion of the
  superintendent  the  cost  of  taking possession of and liquidating such
  assets in accordance with the provisions of this article will exceed the
  fair value of such assets, and
    (2) has failed, for a period of two years after  ceasing  to  transact
  business  or  commencing  proceedings  for its voluntary dissolution, to
  complete such proceedings  or  to  produce  proof  satisfactory  to  the
  superintendent  that  it  has  complied  with  or  is  in the process of
  complying with the provisions of the banking law, the  court  may,  upon
  such   notice  as  it  may  prescribe,  make  an  order  declaring  such
  corporation dissolved and the corporate  existence  thereof  terminated,
  and further declaring that such assets have been abandoned and providing
  for  the  payment, delivery or transfer thereof to the superintendent in
  such manner and at such time as the court may direct. Upon the filing of
  a certified copy of such order in the office of the  superintendent  the

existence  of  such  corporation  shall cease and determine. At any time
  within six months after the entry of such order, the court may upon good
  cause shown and upon such terms as justice may require, vacate or modify
  such  order.  At the expiration of such six-month period or such further
  period as the court may prescribe, the superintendent shall sell, redeem
  or otherwise dispose of such assets and from the  proceeds  thereof  may
  retain  and  pay  all costs, disbursements and legal fees allowed by the
  court and any assessments, penalties or  forfeitures  incurred  by  such
  banking  organization  under  the banking law. The remaining proceeds if
  any shall forthwith be paid into the state  treasury  for  the  use  and
  benefit of the state.
    11.  (a)  Any  foreign  banking  corporation  which  has been licensed
  pursuant to article two of this chapter to engage in  business  in  this
  state, including any such corporation whose license has been surrendered
  or  revoked,  may,  if it so desires, take proceedings for the voluntary
  liquidation of its business and property in  this  state  in  accordance
  with  the  provisions  of paragraph (b) of this subdivision; but no such
  liquidation shall be commenced while the superintendent is in possession
  of such business and property unless such corporation shall  have  first
  received  the  written  approval  of  the  superintendent.  In  any such
  liquidation the claims of creditors of such corporation arising  out  of
  transactions  had by them with its New York agency or agencies or branch
  or branches shall be accorded the same preference  accorded  to  similar
  claims  in  a  liquidation under subdivision four of section six hundred
  six of this article.
    (b) To effect such a  voluntary  liquidation,  a  foreign  corporation
  shall  subscribe,  acknowledge  and  file with the superintendent at his
  office a written notice of its intention so to liquidate,  which  notice
  shall specify the date of commencement of the liquidation, and upon such
  date,  such  corporation  shall  forthwith cease to transact business in
  this state if it has not already done so, and shall proceed to  wind  up
  its  affairs  in  this  state.  Within thirty days after such date, such
  corporation shall make application  to  the  supreme  court,  after  due
  notice  to the superintendent, for an order prescribing the notice to be
  given to the preferred creditors hereinabove described to present  their
  claims  for payment. Every such corporation shall, in the course of such
  liquidation, comply with the provisions of subdivisions four-a, five and
  six  of  this  section,  except  that  an  order  entered  pursuant   to
  subdivision  six  of  this  section  shall affirm the disposition of the
  unclaimed amounts therein referred to and shall authorize the  turn-over
  of  all of the assets remaining after payment of the preferred creditors
  to the principal office of such corporation. Within five days after  the
  making of any order described in this paragraph a certified copy thereof
  shall be filed in the office of the superintendent.
    (c)  Any  foreign banking corporation which has been licensed pursuant
  to article two of this chapter to engage  in  business  in  this  state,
  which  shall  liquidate  its business and property in this state without
  electing to comply with the provisions of paragraphs (a) and (b) of this
  subdivision, shall, upon completion of the liquidation, make a  verified
  transcript  or  statement  from  its books of the names of all creditors
  whose claims arise out of transactions had by them  with  its  New  York
  agency or agencies, or its New York branch or branches and of all owners
  of  personal  property  in  the  custody or possession of such agency or
  agencies or branch  or  branches  as  bailee,  depositary  for  hire  or
  otherwise,  who have not claimed or have not received the debts or other
  amounts due them, and shall file such transcript or statement  with  the
  superintendent  together with all identifying information, including, in
  the case of unclaimed proceeds of any sale of personal property, a  list

of  the  articles  sold,  the price or prices obtained therefor, and the
  amount or amounts deducted and retained  from  the  proceeds,  and  such
  corporation  shall  thereupon  pay  over  such  unclaimed amounts to the
  superintendent  as  trustee for the persons entitled to receive them, as
  provided in article  two  of  this  chapter.  Any  such  corporation  so
  liquidating  its  business  and  property  in  this  state may, if it so
  desires, follow the procedures for the disposition of personal  property
  in  the  custody  or  possession  of,  and  exercise the same powers and
  privileges with respect thereto accorded to,  banking  organizations  in
  subdivision  four-a  of this section. To effectuate the purposes of this
  chapter, the  superintendent  may  impose  additional  requirements  and
  procedures for the foreign banking corporation to follow with respect to
  the dissolution of the licensed office.
    (d)   For  the  purposes  of  this  subdivision,  the  words  "debts",
  "obligations" and "deposits", as used in subdivisions four-a,  five  and
  six  of  this  section, shall be deemed to refer to the preferred claims
  hereinabove described, the words "creditors" and "depositors"  shall  be
  deemed  to  refer to the owners of such preferred claims, the references
  in subdivisions four-a and five of this section to the order entered  in
  accordance  with  subdivision  four  of  this section shall be deemed to
  refer to the like order entered in accordance  with  the  provisions  of
  this  subdivision, and, except when the context shall otherwise require,
  the word "corporation" shall be deemed to refer to the New  York  agency
  or  agencies, or branch or branches and the word "officer" shall include
  the agent or other person in charge of such agency or agencies  and  any
  person  in  charge of or who is an officer of such branch or branches or
  of the liquidation.
    12. If the superintendent shall at any  time  find  that  any  of  the
  reasons  enumerated  in  section  six  hundred  six  of this article for
  takeover of the business and property of a banking  organization  or  of
  the business and property in this state of a foreign banking corporation
  shall  exist,  he  may,  in his discretion, forthwith take possession of
  such business and property in accordance with  the  provisions  of  such
  section  notwithstanding  that  such banking organization or corporation
  may have theretofore commenced proceedings for the voluntary liquidation
  of such business and property in accordance with this section.