2015 New Mexico Statutes
Chapter 53 - Corporations
Section 11 Business Corporations; Substantive Provisions
Section 53-11-44 Distributions to shareholders.
53-11-44. Distributions to shareholders.
A. Subject to any restrictions in the articles of incorporation, the board of directors may authorize and the corporation may make distributions, except that no distribution may be made if, after giving effect thereto, either:
(1) the corporation would be unable to pay its debts as they become due in the usual course of its business; or
(2) the corporation's total assets would be less than the sum of its total liabilities and (unless the articles of incorporation otherwise permit) the maximum amount that then would be payable, in any liquidation, in respect of all outstanding shares having preferential rights in liquidation.
B. Determinations under Paragraph (2) of Subsection A of this section may be based upon:
(1) financial statements prepared on the basis of accounting practices and principles that are reasonable in the circumstances; or
(2) a fair valuation or other method that is reasonable in the circumstances.
C. In the case of a purchase, redemption or other acquisition of a corporation's shares, the effect of a distribution shall be measured as of the date money or other property is transferred or debt is incurred by the corporation, or as of the date the shareholder ceases to be a shareholder of the corporation with respect to such shares, whichever is earlier. In all other cases, the effect of a distribution shall be measured as of the date of its authorization, or as of the date of payment if payment occurs more than one hundred twenty days following the date of authorization.
D. Indebtedness of a corporation incurred or issued to a shareholder in a distribution in accordance with this section shall be on a parity with the indebtedness of the corporation to its general unsecured creditors except to the extent subordinated by agreement.
E. In circumstances to which this section and related sections of the Business Corporation Act [Chapter 53, Articles 11 through 18 NMSA 1978] are applicable, such provisions supersede the applicability of any other statutes of this state with respect to the legality of distributions.
History: 1978 Comp., 53-11-44, enacted by Laws 1983, ch. 304, 39.
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