2023 New York Laws › BNK - Banking › Article 16 - General Provisions Applicable to Banking Non-Stock Corporations › 9009 - Other Provisions Affecting Indemnification of Directors and Officers.

§ 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.