S 5160: Relates to the indemnification of directors, officers and key persons; ensures the survival of indemnification in case of a merger or consolidation of a corporation; provides that once a right to indemnification arises, it continues to benefit a former director, officer or key person's and their heirs and estate; makes related provisions.

  
  STATE OF NEW YORK ________________________________________________________________________ 5160 2025-2026 Regular Sessions  IN SENATE February 19, 2025 ___________ Introduced by Sen. COMRIE -- read twice and ordered printed, and when printed to be committed to the Committee on Corporations, Authorities and Commissions AN ACT to amend the not-for-profit corporation law, in relation to the indemnification of directors, officers and key persons; and to repeal sections 721, 722 and 723 of the not-for-profit corporation law relat- ing thereto The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Sections 721, 722 and 723 of the not-for-profit corporation 2 law are REPEALED. 3 § 2. The not-for-profit corporation law is amended by adding a new 4 section 721 to read as follows: 5 § 721. Authorization for indemnification of directors, officers or key 6 persons; insurance. 7 (a) A corporation may indemnify any director, officer or key person 8 against expenses, including judgments, fines, excise taxes, amounts paid 9 in settlement, attorneys' fees, court costs and disbursements actually 10 and necessarily incurred as a result of action or proceeding, or any 11 appeal thereof, arising out of service as a director, officer or key 12 person (1) who was or is a party or is threatened to be made a party to 13 any threatened, pending or contemplated action or proceeding, or any 14 appeal thereof, whether civil, criminal, administrative or investigative 15 (including an action by or in the right of the corporation and/or by its 16 members, if any, or in the right of any other corporation of any kind, 17 domestic or foreign and/or by its members, if any), or by any partner- 18 ship, joint venture, trust, employee benefit plan or other enterprise; 19 and (2) who has met the standards of conduct set forth in section 717 20 (duty of directors and officers and key persons) and elsewhere in this 21 article and who is entitled to the protection of section 720-a of this 22 article (liability of directors, officers, key persons and trustees) to EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD06016-01-5 
 S. 5160 2 1 the extent applicable, and (3) with respect to any criminal action or 2 proceeding, who had reasonable cause to believe that their conduct was 3 lawful. A director, officer or key person who may be indemnified under 4 this section shall include a person (i) whose testator or intestate is 5 or was a director, officer or key person of the corporation, or (ii) who 6 is or was serving in any capacity at the request of the corporation as a 7 director, officer or key person of another corporation, partnership, 8 joint venture, trust, estate, employee benefit plan or other enterprise. 9 (b) The termination of any action or proceeding, including an action 10 by or in the right of the corporation and/or by its members, by judg- 11 ment, order, settlement, adjudging liability to the director, officer or 12 key person, conviction or upon a plea of nolo contendere or its equiv- 13 alent shall not necessarily create a presumption that the (1) director, 14 officer or key person did not act in accordance with the standards of 15 care set forth in paragraph (a) of this section, and (2) with respect to 16 any criminal action or proceeding, did not have reasonable cause to 17 believe that the director's, officer's or key person's conduct was 18 unlawful. 19 (c) No indemnification shall be made by the corporation if such direc- 20 tor, officer or key person shall have been adjudged to be liable, 21 including liability to the corporation, unless and only to the extent 22 that the court, in which such action or proceeding was brought, shall 23 determine, upon application, that, despite the adjudication of liability 24 but in view of all the circumstances of the case, such director, officer 25 or key person is fairly and reasonably entitled to indemnification with 26 respect to all or any of the judgments, fines, excise taxes, amounts 27 paid in settlement, attorneys' fees, court costs and disbursements actu- 28 ally and necessarily incurred, because the director, officer or key 29 person had made a good faith effort to meet the standards of conduct set 30 forth in this article. 31 (d) Expenses, including attorneys' fees, court costs and disburse- 32 ments, incurred by a director, officer or key person of the corporation 33 or by persons serving at the request of the corporation as directors, 34 officers or key persons of another corporation, partnership, joint 35 venture, trust or other enterprise, in defending any civil, criminal, 36 administrative or investigative action or proceeding, arising out of 37 such service, may be paid, if authorized in accordance with paragraph 38 (e) of this section, in advance of the final disposition of such action 39 or proceeding, upon receipt by the corporation of an undertaking in 40 accordance with article 25 of the civil practice law and rules by or on 41 behalf of such director, officer or key person to repay such amount if 42 they shall ultimately be determined not to be entitled to be indemnified 43 as authorized in this section. 44 (e) Any indemnification or advancement under this section, except for 45 one ordered by a court, shall be made only in the specific action or 46 proceeding upon a determination that indemnification of the present or 47 former director, officer or key person is proper in the circumstances 48 because the person has met or in the case of an advance can be reason- 49 ably expected to meet the applicable standard of conduct set forth in 50 paragraph (a) of this section: 51 (1) by a majority vote of the directors of the corporation who are not 52 parties to such action or proceeding, even though less than a quorum; 53 (2) by a committee of such directors designated by majority vote of 54 such directors, even though less than a quorum; 55 (3) if there are no such directors, or if such directors so direct, by 56 independent legal counsel in a reasoned written opinion; or 
 S. 5160 3 1 (4) by the members, if any. 2 (f) A right to indemnification or to advancement of expenses arising 3 under a provision of the certificate of incorporation, a bylaw or a 4 resolution of the board or of a committee thereof shall not be elimi- 5 nated or impaired by an amendment to the certificate of incorporation to 6 the bylaws or to the resolution after the occurrence of the act or omis- 7 sion that is the subject of the civil, criminal, administrative or 8 investigative action or proceeding for which indemnification or advance- 9 ment of expenses is sought, unless the provision in effect at the time 10 of such act or omission explicitly authorizes such elimination or 11 impairment after such action or omission has occurred. 12 (g) A corporation may purchase and maintain insurance on behalf of any 13 person who is or was a director, officer or key person of the corpo- 14 ration, or is or was serving at the request of the corporation as a 15 director, officer or key person of another corporation, partnership, 16 joint venture, trust, estate, employee benefit or other enterprise, 17 against any liability asserted against such person and incurred by such 18 person in any such capacity, or arising out of such person's status as 19 such, whether or not the corporation would have the power to indemnify 20 such person against such liability under this section. 21 (h) For purposes of this section, references to "the corporation" 22 shall include, in addition to a consolidated or surviving corporation, 23 any constituent corporation, including any constituent of a constituent, 24 absorbed in a consolidation or merger which, if its separate existence 25 had continued, would have had power and authority to indemnify its 26 directors, officers or key persons that any person who is or was a 27 director, officer or key person of such constituent corporation, or is 28 or was serving at the request of such constituent corporation as a 29 director, officer or key person of another corporation, partnership, 30 joint venture, trust, estate, employee benefit plan or other enterprise, 31 shall stand in the same position under this section with respect to the 32 resulting or surviving corporation as such person would have with 33 respect to such constituent corporation if its separate existence had 34 continued. 35 (i) The indemnification and advancement of expenses provided by, or 36 granted pursuant to, this section shall continue as to a person who has 37 ceased to be a director, officer or key person and shall inure to the 38 benefit of their heirs, executors and administrators if that person was 39 a director, officer or key person at the time the cause of action or 40 claim arose or prosecution was threatened or information or indictment 41 was filed. 42 (j) For the purpose of this section, a corporation shall be deemed to 43 have requested a person to serve an employee benefit plan where the 44 performance by such person of their duties to the corporation also 45 imposes duties on, or otherwise involves services by, such person to the 46 plan or participants or beneficiaries of the plan; excise taxes assessed 47 on a person with respect to an employee benefit plan pursuant to appli- 48 cable law shall be considered fines; and action taken or omitted by a 49 person with respect to an employee benefit plan in the performance of 50 such person's duties for a purpose reasonably believed by such person to 51 be in the interest of the participants and beneficiaries of the plan 52 shall be deemed to be for a purpose which is not opposed to the best 53 interests of the corporation. 54 § 3. Section 724 of the not-for-profit corporation law, as amended by 55 chapter 368 of the laws of 1987, paragraph (a) as amended by chapter 549 
 S. 5160 4 1 of the laws of 2013, is renumbered section 722 and amended to read as 2 follows: 3 § 722. Indemnification of directors [and], officers or key persons by a 4 court. 5 (a) Notwithstanding the failure of a corporation to provide indemnifi- 6 cation, and despite any contrary resolution of the board, of a committee 7 thereof or of the members in the specific case under section [723] 721 8 [(Payment of indemnification other than by court award)] (Authorization 9 for indemnification of directors, officers or key persons; insurance), 10 indemnification [shall] may be awarded by a court to the extent author- 11 ized under section [722 (Authorization for indemnification of directors 12 and officers), and paragraph (a) of section 723 (Payment of indemnifica- 13 tion other than by court award)] 721 (Authorization for indemnification 14 of directors, officers or key persons; insurance). Application therefor 15 shall be made on notice to the attorney general and may be made, in 16 every case, either: 17 (1) In the civil action or proceeding in which the expenses were 18 incurred or other amounts were paid, or 19 (2) To the supreme court in a separate proceeding, in which case the 20 application shall set forth the disposition of any previous application 21 made to any court for the same or similar relief and also reasonable 22 cause for the failure to make application for such relief in the action 23 or proceeding in which the expenses were incurred or other amounts were 24 paid. 25 (b) The application shall be made in such manner and form as may be 26 required by the applicable rules of court or, in the absence thereof, by 27 direction of a court to which it is made. Such application shall be upon 28 notice to the corporation. The court may also direct that notice be 29 given at the expense of the corporation to the members and such other 30 persons as it may designate in such manner as it may require. 31 (c) Where indemnification is sought by judicial action, the court may 32 allow a person such reasonable expenses, including attorneys' fees, 33 during the pendency of the litigation as are necessary in connection 34 with [his] their defense therein, if the court shall find that the 35 defendant has by [his] their pleadings or during the course of the liti- 36 gation raised genuine issues of fact or law. 37 § 4. Section 725 of the not-for-profit corporation law is renumbered 38 section 723. 39 § 5. The section heading and subdivision (a) of section 723 of the 40 not-for-profit corporation law, as amended by chapter 368 of the laws of 41 1987 and such section as renumbered by section 4 of this act, are 42 amended to read as follows: 43 Other provisions affecting indemnification of directors [and], offi- 44 cers and key persons. 45 (a) All expenses incurred in defending a civil or criminal action or 46 proceeding which are advanced by the corporation under paragraph [(c)] 47 (d) of section [723] 721 [(Payment of indemnification other than by 48 court award)] (Authorization for indemnification of directors, officers 49 or key persons; insurance) or allowed by a court under paragraph (c) of 50 section [724 (Indemnification of directors and officers by a court)] 722 51 (Indemnification of directors, officers or key persons by a court) shall 52 be repaid in case the person receiving such advancement or allowance is 53 ultimately found, under the procedure set forth in this article, not to 54 be entitled to indemnification or, where indemnification is granted, to 55 the extent the expenses so advanced by the corporation or allowed by the 56 court exceed the indemnification to which [he is] they are entitled. 
 S. 5160 5 1 § 6. Section 720-a of the not-for-profit corporation law, as amended 2 by chapter 445 of the laws of 2019, is amended to read as follows: 3 § 720-a. Liability of directors, officers, trustees and key persons. 4 Except as provided in sections [seven hundred nineteen] 719 and [seven 5 hundred twenty] 720 of this chapter, and except any action or proceeding 6 brought by the attorney general or, in the case of a charitable trust, 7 an action or proceeding against a trustee brought by a beneficiary of 8 such trust, no person serving without salary or other compensation as a 9 director, officer, key person or trustee of a corporation, association, 10 organization or trust described in section 501 (c) (3) of the United 11 States internal revenue code shall be liable to any person other than 12 such corporation, association, organization or trust based solely on 13 [his or her] their conduct in the execution of such office unless the 14 conduct of such director, officer, key person or trustee with respect to 15 the person asserting liability constituted gross negligence or was 16 intended to cause the resulting harm to the person asserting such 17 liability. For purposes of this section, such a director, officer, key 18 person or trustee shall not be considered compensated solely by reason 19 of payment of [his or her] their actual expenses incurred in attending 20 meetings or otherwise in the execution of such office. 21 § 7. The rights to indemnification that accrued prior to the effective 22 date of this act shall be determined by the not-for-profit corporation 23 law as then in effect, unless the director, officer or key person 24 elects to have those rights or obligations determined by the not-for- 25 profit corporation law as amended by this act. 26 § 8. This act shall take effect on the first of January next succeed- 27 ing the date on which it shall have become a law.