3598

(a) Subject to the restrictions contained in the certificate of incorporation, the directors of any corporation created pursuant to the provisions of this subtitle may declare and pay dividends upon the shares of capital stock, or to its members in the case of a nonstock for-profit corporation, either:\n(1) Charged to surplus, as defined and computed in accordance with §§ 3584 and 3684 of this title, or\n(2) in absence of such surplus, charged to the net profits of the fiscal year in which the dividend is declared, of the preceding fiscal year, or of both years.\nIf the capital of the corporation, computed pursuant to §§ 3584 and 3684 of this title, has diminished because of the depreciation in the value of its assets, or because of losses or otherwise, to an amount less than the aggregate amount of capital represented by the issued and outstanding shares of all classes having a preference upon the distribution of assets, the directors of such corporation shall not declare nor pay dividends out of such net assets on no class of shares of their corporate capital until the deficiency in the amount of capital represented by the issued and outstanding shares of all classes, having a

vidends out of such net assets on no class of shares of their corporate capital until the deficiency in the amount of capital represented by the issued and outstanding shares of all classes, having a preference with respect to the distribution of assets, have been corrected. None of the provisions of this section shall invalidate or affect a note, bond or obligation of the corporation paid by the same as a dividend to its shareholders, or any subsequent payment made according to the instrument paid as dividend, if at the time in which such note, bond or obligation was to be paid by the corporation, the latter had a surplus or net profit, as provided in clauses (1) and (2) of this subsection, from which the corporation could have been able to pay the dividend pursuant to the law.\n(b) Subject to the restrictions contained in its certificate of incorporation, the directors of any corporation engaged in the exploitation of depletable assets (including, but not limited to, corporations engaged in the exploitation of natural resources and other depletable resources, including patents, or engaged primarily in the liquidation of specific assets) may determine the net profits derived from

aged in the exploitation of natural resources and other depletable resources, including patents, or engaged primarily in the liquidation of specific assets) may determine the net profits derived from such liquidations without taking into consideration the depletion of such resources resulting from the lapse of time, the consumption, the liquidation, and the exploitation of such assets.\nHistory —Dec. 16, 2009, No. 164, § 5.18.