(a) Unless the superintendent, in his/her discretion provides otherwise, an institution described in section 306.1 of this Part is permitted to have vacancies of up to one-third of its entire board of directors left unfilled until the next annual election by the stockholders provided that the institution:

1. (1) is well capitalized (within the meaning of title 12, Code of Federal Regulations^* section 325.103[b][1]);
2. (2) is well managed (within the meaning of title 12, Code of Federal Regulations* section 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. (3) has been in existence for more than five years.

(b) Unless the superintendent, in his/her discretion provides otherwise, an institution described in section 306.1 of this Part is permitted to have vacancies of up to one-tenth of its entire board of directors left unfilled until the next annual election by the stockholders, or where a board of directors is comprised of less than ten members, no more than one vacancy on the board may be left unfilled until the next annual election by the stockholders provided that the institution:

1. (1) is adequately capitalized (within the meaning of title 12, Code of Federal Regulations* section 325.103[b][2]);
2. (2) is well managed (within the meaning of title 12, Code of Federal Regulations* section 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. (3) has been in existence for more than five years.