2023 New York Laws › BSC - Business Corporation › Article 9 - Merger or Consolidation; Guarantee; Disposition of Assets; Share Exchanges › 909 - Sale, Lease, Exchange or Other Disposition of Assets.

§ 909. Sale, lease, exchange or other disposition of assets.
(a) A   sale,   lease,   exchange  or  other  disposition  of  all  or
substantially all the assets of a corporation, if not made in the  usual
or   regular   course   of  the  business  actually  conducted  by  such
corporation, shall be authorized only in accordance with  the  following
procedure:
(1) The  board  shall  authorize the proposed sale, lease, exchange or
other disposition and direct its submission to a vote of shareholders.
(2) Notice of meeting shall be given to each  shareholder  of  record,
whether or not entitled to vote.
(3) The shareholders shall approve such sale, lease, exchange or other
disposition  and  may fix, or may authorize the board to fix, any of the
terms and conditions thereof and the consideration to be received by the
corporation therefor, which may consist in whole or in part of  cash  or
other  property,  real  or  personal,  including  shares, bonds or other
securities of any other domestic or foreign corporation or corporations,
by vote at  a  meeting  of  shareholders  of  (A)  for  corporations  in
existence  on  the  effective  date  of  this  clause the certificate of
incorporation  of  which  expressly  provides   such   or   corporations
incorporated  after the effective date of this clause, a majority of the
votes of all outstanding shares entitled to  vote  thereon  or  (B)  for
other  corporations  in  existence on the effective date of this clause,
two-thirds of the votes of  all  outstanding  shares  entitled  to  vote
thereon.
(b) A  recital  in  a  deed,  lease  or other instrument of conveyance
executed by a corporation to the  effect  that  the  property  described
therein  does  not  constitute all or substantially all of the assets of
the corporation, or that the disposition of  the  property  affected  by
said  instrument  was made in the usual or regular course of business of
the corporation, or that the  shareholders  have  duly  authorized  such
disposition, shall be presumptive evidence of the fact so recited.
(c) An  action  to  set  aside  a  deed,  lease or other instrument of
conveyance executed by a corporation affecting real property or real and
personal property may not be maintained for failure to comply  with  the
requirements  of  paragraph  (a)  unless  the  action is commenced and a
notice of pendency of  action  is  filed  within  one  year  after  such
conveyance,  lease or other instrumment is recorded or within six months
after this subdivision takes effect, whichever date occurs later.
(d) Whenever a transaction of the character described in paragraph (a)
involves a  sale,  lease,  exchange  or  other  disposition  of  all  or
substantially  all the assets of the corporation, including its name, to
a  new  corporation  formed  under  the  same  name  as   the   existing
corporation,  upon  the expiration of thirty days from the filing of the
certificate of incorporation of the new corporation, with the consent of
the state tax commission attached, the  existing  corporation  shall  be
automatically  dissolved,  unless,  before  the  end  of such thirty-day
period, such corporation  has  changed  its  name.  The  adjustment  and
winding up of the affairs of such dissolved corporation shall proceed in
accordance with the provisions of article 10 (Non-judicial dissolution).
(e) The certificate of incorporation of a corporation formed under the
authority  of  paragraph  (d)  shall  set forth the name of the existing
corporation, the date when its certificate of incorporation was filed by
the department of state, and that the shareholders of  such  corporation
have authorized the sale, lease, exchange or other disposition of all or
substantially all the assets of such corporation, including its name, to
the  new  corporation  to  be formed under the same name as the existing
corporation.
(f) Notwithstanding shareholder approval, the board  may  abandon  the
proposed  sale,  lease,  exchange  or  other disposition without further
action by the shareholders, subject to the  rights,  if  any,  of  third
parties under any contract relating thereto.