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Adopted Regulations
Adoption of New Part 307 to the Superintendent's Regulations of Title 3 of NYCRR (Board of Director Actions by Written Consent).


Part 307

  Corporate Governance

ACTIONS PERMITTED TO BE TAKEN BY UNANIMOUS WRITTEN CONSENT
OF BOARD OF DIREFCTORS 

(Statutory authority: Banking Law §7008[3])

Sec.

307.1  Explanatory note regarding action permitted to be taken by unanimous written consent of a board of directors
307.2  Prerequisite requirements
307.3  Actions not permitted to be taken by unanimous written consent of a board of directors

§ 307.1 Explanatory note regarding action permitted to be taken by unanimous written consent of a board of directors.

  1. Subdivision 3 of section 7008 of the Banking Law authorizes the superintendent to adopt a regulation which establishes the circumstances under which any action, authorized by the organization certificate or the by-laws to be taken at a meeting of the board of directors of a bank, trust company, safe deposit company, investment company, mutual trust investment company, stock-form savings bank or stock-form savings and loan association may be taken without a meeting, provided that all members of the board consent thereto in writing and the resolution and written consents thereto are filed with the minutes of the proceedings of the board.  Subdivision 3 of section 7008 of the Banking Law does not govern meetings of committees of such board of directors. Pursuant to section 7012 of the Banking Law, the conduct of committees of such a board is governed by board resolution, organization certificate, or by-laws, except as specified by section 7012.  Action taken by unanimous written consent pursuant to section 307.2 shall not be considered a “meeting” for purposes of 3 NYCRR, Part 6 section 6.6.

  2. Title 12, Code of Federal Regulations referred to herein, may be viewed at the New York State Banking Department, located at 2 Rector Street, New York, NY 10006 and the Department of State located a 41 State Street, Albany, NY 12231.  The Code of Federal Regulations is published by the Office of the Federal Register; National Archives and Records Administration.  The Code of Federal Regulations is for sale by the U.S. Government Printing Office, Superintendent of Documents, Mail Stop SSOP, Washington, DC 20402-0001.

§ 307.2 Prerequisite Requirements

Unless the superintendent in his/her discretion provides otherwise, an institution described in section 307.1 of this Part shall be eligible to have its board of directors take actions authorized by its organization certificate or by-laws by unanimous written consent except as specified in section 307.3 of this Part, provided that the institution:

  1.  is well capitalized (within the meaning of title 12, Code of Federal Regulations §325.103(b)(1)); and

  2. is well managed (within the meaning of title 12, Code of Federal Regulations §362.17(e)).  Any non-depository institution will be considered well managed if it is in satisfactory condition as determined upon examination by the superintendent.  In the case of an institution that has not been examined by the superintendent, such institution will be considered well managed upon a finding by the superintendent of managerial resources that the superintendent determines satisfactory; and

  3. has been in existence for more than five years.

§ 307.3 Actions not permitted to be taken by unanimous written consent of a board of directors.

Although an institution may satisfy the prerequisite requirements specified in section 307.2 of this Part, it is prohibited from taking action by unanimous written consent of the board of directors in any of the following circumstances, unless the superintendent in his/her discretion provides otherwise:

  1. adopting or amending any policies required by any bank regulatory agency to be approved by the board of directors;

  2. submitting to the stockholders any action that requires stockholders’ authorization under the Banking Law;

  3. adopting, amending or repealing of the by-laws;

  4. removing any director or filling any vacancy in the board of directors, or removing any member of a committee thereof or filling any vacancy in such a committee; 

  5. fixing compensation of the directors for serving on the board or on any committee thereof;

  6. selecting or removing any of the following executive officers or the equivalent thereof: chairman of the board, chief executive officer, president, chief financial officer, chief operating officer, chief risk officer, or a member of the management committee;

  7. causing or permitting any change in the general character of the institution’s business or in the scope of its corporate powers;

  8. conveying any communication from the Banking Department that is required to be presented to the board of directors, pursuant to Banking Law section 11.4, or that is required to be presented to the board of directors by any other bank regulatory agency; or

  9. the taking of any action which is expressly required by any provision of the Banking Law to be taken at a meeting of the board of directors or by a specified proportion of the directors at a board meeting.   

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