CHAPTER 56
HB 560 – FINAL VERSION
2013 SESSION
08/10
HOUSE BILL 560
AN ACT repealing the board of trust company incorporation.
COMMITTEE: Commerce and Consumer Affairs
This bill repeals the board of trust company incorporation and gives the duties to the banking commissioner.
This bill is a request of the banking department.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
13-0810
08/10
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Thirteen
AN ACT repealing the board of trust company incorporation.
Be it Enacted by the Senate and House of Representatives in General Court convened:
56:1 Branch Offices. Amend RSA 384-B:2, III to read as follows:
III. Written applications for branch offices shall be submitted by the bank, in the first instance, to the commissioner and shall be verified under oath and made upon forms which may be prescribed by the commissioner for the purpose with all the information required by such form fully set forth thereon, including the types of service to be offered at such branch office. Each application shall be accompanied by a fee of $1,500 in the case of a new branch and one single fee of $1,500 for the composite of all branches. The department shall investigate and examine each application. A notice stating the date before which objections may be filed shall then be published by the petitioner in such form as the commissioner may order. Any interested person or corporation may, within the time specified, file with the [board] commissioner a statement of objection to the granting of such application. The commissioner may, upon request of any interested person or corporation, or at the commissioner’s own discretion, order a public hearing, or may approve said application without a hearing. If a public hearing is to be held, the petitioners shall cause to be published such notices as the commissioner may order. Said hearing shall be held at the time and place fixed by the commissioner. The commissioner shall keep a permanent verbatim record of all such evidence. The commissioner may prescribe reasonable procedural rules to govern the proceedings. There shall be no refund allowed on any application fee once it has been filed. In addition to the application fee, each applicant for a branch office shall be obligated to pay the reasonable cost of processing, hearing and deciding each such application, as assessed by the commissioner, which cost may be collected by the commissioner in an action of debt unless paid within 30 days after demand. Sums collected under this section shall be payable to the state treasurer as restricted revenue and credited to the appropriation for the bank commissioner.
56:2 Exceptions. Amend RSA 384-B:2-e to read as follows:
384-B:2-e Exceptions. Notwithstanding any provision to the contrary in RSA 384-B:2, I, III, IV and V and RSA 384-B:2-c, II, a bank which is well-capitalized under applicable federal rules and regulations and has a composite CAMEL rating of at least 2 as a result of its most recent examination by either its federal regulatory authority or the bank commissioner, may open a new branch if the bank does not exceed 30 percent of the dollar volume of the total deposits, time and savings, and demand of all banks, national banks, and federal savings banks and loan associations in the state as determined by the [board] commissioner as provided in RSA 384-B:2, I, by giving written notice to the bank commissioner at least 30 days in advance of the opening of the new branch and by paying the fee required by RSA 384-B:2, III.
56:3 Bank Holding Company Affiliates. Amend RSA 384-B:3 to read as follows:
384-B:3 Bank Holding Company Affiliates. No bank holding company shall directly or indirectly acquire ownership or control of any voting stock of any bank or national bank, if upon such acquisition (1) the bank holding company would have more than 12 affiliates in this state; or (2) the dollar volume of the total deposits, time, savings, and demand in this state of the bank holding company and all its affiliates would exceed 30 percent of the dollar volume of total deposits, time, savings, and demand in this state of all banks, national banks, and federal savings and loan associations in this state as determined by the [board] commissioner on the basis of the most recent annual deposit reports of the Federal Deposit Insurance Corporation and available at the time of acquisition.
56:4 Penalty for Violation. Amend RSA 384-B:4 to read as follows:
384-B:4 Penalty for Violation. Whoever willfully violates any provision of this chapter or the conditions upon which any application was granted by the [board] commissioner, shall forfeit to the state $100 a day for every day or part thereof during which such willful violation continues. Any such violation shall be forthwith reported by the commissioner to the attorney general, and the forfeiture may be recovered by an information or other appropriate proceeding brought in the superior court in the name of the commissioner.
56:5 Injunction. Amend RSA 384-B:5 to read as follows:
384-B:5 Injunction. Upon an information or other proceeding the court may issue an injunction restraining such bank holding company or bank or its or their officers, directors, agents, and employees from further action in violation of any provision of this chapter or the conditions upon which any application was granted by the [board] commissioner during the pendency of such proceeding, or permanently, and may make such other order as justice may require.
56:6 Waiver of Deposit Limitation. Amend RSA 384-B:8 to read as follows:
384-B:8 Waiver of Deposit Limitation. In any transaction involving the merger, consolidation or acquisition of any bank, banks, or bank holding company, whenever one or more of such banks or bank holding companies is in such condition that the Federal Deposit Insurance Corporation or any other federal agency having supervisory authority over banks or bank holding companies in New Hampshire could take action which would result in a merger, acquisition, consolidation or other similar structural change, and in the absence of such federal action such a change would be prevented by the provisions of RSA 384-B:2 or RSA 384-B:3, the [board] commissioner may waive the 30 percent dollar volume of total deposit limitation in RSA 384-B:2 and RSA 384-B:3. Any such waiver shall be binding upon the [board] commissioner in any proceeding involving the merger, consolidation or acquisition of such bank, banks, or bank holding company.
56:7 Savings Banks; Dividends. Amend RSA 386:10, II to read as follows:
II.(a) Notwithstanding any other provision of law to the contrary, the [board of trust company incorporation] commissioner may adopt rules pursuant to RSA 541-A permitting any mutual savings bank to convert to stock form in the same manner, to the same extent and with comparable limitations as federal savings and loan associations operating within this state are permitted under rules of the Office of Thrift Supervision. However, no conversion under this paragraph shall be permitted which includes as part of the conversion transaction the issuance of securities of any bank or holding company other than securities of the converting savings bank or the securities of a holding company organized by the converting savings bank in order to acquire its capital stock, unless in addition to procedures required by the rules adopted under this paragraph, it is ratified by the depositors of the mutual savings bank seeking to convert. Ratification by depositors shall not be required if:
(1) The conversion is part of a reorganization into a mutual holding company pursuant to RSA 386-B; or
(2) The conversion is required by federal or state regulatory authorities[; or
(3) The conversion has been commenced by the filing with the board of trust company incorporation of an application to convert prior to the effective date of this paragraph].
(b) For purposes of effectuating the depositor ratification procedures required by this paragraph, the [board of trust company incorporation] commissioner is directed to adopt depositor voting procedures, applying to the same extent and with comparable limitations as federal savings and loan associations operating within this state are permitted under rules of the Office of Thrift Supervision, or any successor thereto. The rules adopted pursuant to this paragraph shall contain a provision allowing for the inclusion of comments on the conversion by individual corporators and groups of corporators with the voting materials submitted to the depositors. Such inclusion shall be at the expense of the converting bank.
56:8 Petition. Amend RSA 386-A:4, I to read as follows:
I. A petition requesting approval of the proposed incorporation shall be filed with the bank commissioner. The petition shall be upon such form as may be prescribed by the bank commissioner and shall contain all the information required by such form, signed and verified under oath by the incorporators, to which shall be annexed a signed duplicate of the articles of agreement. An examination fee of $1,500 shall be paid when the petition is filed. Sums collected under this section shall be payable to the state treasurer as restricted revenue and credited to the appropriation for the bank commissioner. The bank commissioner shall examine and investigate each petition [and if he finds that it is duly completed, he shall forthwith refer the petition to the board of trust company incorporation. The bank commissioner shall then make such investigation of each petition] as he or she considers expedient[, for the purpose of more fully informing the board]. [Said board] The commissioner may, upon request of any interested person or corporation or at [its] his or her own discretion, order a public hearing, or may approve said petition without a hearing. The petitioners shall cause to be published such notices relating to the petition as the [board] commissioner may order.
56:9 Notice. Amend RSA 386-A:5 to read as follows:
386-A:5 Notice. If a public hearing upon the petition is ordered by the [board] commissioner under the provisions of RSA 386-A:4, notice of such hearing shall be caused to be published by the petitioners at least once a week for 3 successive weeks, in one or more newspapers designated by the commissioner. The notice shall be in such form as may be prescribed by the commissioner, setting forth the place, date, and hour of the hearing, the names, addresses and occupations of the incorporators, and the name of the proposed corporation, and such other information as the form may require. One of the newspapers shall be a newspaper generally circulating in the city or town where such bank is to be located. The first publication of such notice shall be within 30 days after the [petition has been referred to the board by the commissioner] public hearing has been ordered. The petitioners shall also cause a copy of such notice to be mailed to every bank, trust company, or other corporation, described in RSA 384:1, located in the city or town where such bank is to be located, at least 14 days before such hearing date. The petitioners shall furnish the [board] commissioner with written proof of the publication and service of the notice under this section, on or before the commencement of the hearing.
56:10 Considerations. Amend the introductory paragraph of RSA 386-A:6 to read as follows:
Before acting on any petition, the [board] commissioner shall consider such evidence as may be presented by the petitioners and all other interested persons, firms and corporations, including members of the general public and shall keep a permanent record of such evidence. The petitioners shall submit to the [board] commissioner full information as to the identity and background of each person, firm, or corporation who has subscribed to 3 percent or more of the initial capital of the proposed bank, including information on whether such person, firm, or corporation held an equity interest of 3 percent or more in or served as a director or officer of a bank which has failed. In making [its] his or her decision on each petition, the [board] commissioner shall not take favorable action unless [it] he or she determines that the following are adequate:
56:11 Decision. Amend RSA 386-A:7 to read as follows:
386-A:7 Decision. The [board] commissioner shall [then decide the question whether the petition shall be granted or denied] grant or deny the petition and [it] shall make a record of [its] his or her decision. If the [decision is adverse to the petitioners] petition is denied, no further proceedings shall be had, but a new petition may be filed after one year from the date of the decision. If the petition is granted, the petitioners shall proceed as hereinafter provided in this chapter. The [board] commissioner may impose reasonable conditions, consistent with reasonable banking standards, to the commencement of business under any such grant.
56:12 Rejection of Proposals for Conversions. Amend RSA 386-A:7-a, I(b) to read as follows:
(b) The substantial alteration of a plan of conversion submitted for consideration [by the board of trust company incorporation pursuant to RSA 386:10, II, or] to the bank commissioner pursuant to RSA 394-A:10.
56:13 Approval. Amend RSA 386-A:14 to read as follows:
386-A:14 Approval of. Such certificate shall be submitted to the [board of trust company incorporation] commissioner, who shall examine [the certificate] it, and who may require such amendment thereof or such additional information as [they] he or she may consider necessary. If [they find] the commissioner finds that the public convenience and advantage will be served by the establishment of such corporation, that the proposed management of such corporation will be of satisfactory character, knowledge and experience in the field of banking, and that the proceedings in other respects conform to the provisions of this chapter, [they] he or she shall so certify and endorse [their] his or her approval upon the certificate.
56:14 Certificate of Incorporation. Amend RSA 386-A:16 to read as follows:
386-A:16 Certificate of Incorporation. The secretary of state shall thereupon issue a certificate of incorporation in the following form:
THE STATE OF NEW HAMPSHIRE
Be it known, that whereas (the names of the subscribers to the articles of agreement) have associated themselves with the intention of forming a corporation under the name of (the name of corporation), for the purpose (the purpose declared in the agreement of association), with capital debentures, capital funds, special deposit or capital stock of (the amount fixed in the agreement of association) and have complied with the provisions of the statutes of this state in such case made and provided, as appears from the certificate of a majority of the trustees or directors of said corporation, duly approved by the [board of trust company incorporation] bank commissioner and recorded in this office: Now, therefore, I (the name of the secretary), secretary of state, do hereby certify that said (the names of the subscribers to the agreement of association), their associates and successors, are legally organized and established as, and are hereby made, an existing corporation under the name of (name of corporation), with the powers, rights and privileges, and subject to the limitations, duties and restrictions, which by law appertain thereto.
Witness my official signature hereunto subscribed, and the seal of the state hereunto affixed, this ............ day of ............ in the year ..... (the date of the filing of the articles of agreement).
The secretary of state shall sign the certificate of incorporation and cause the seal of the state to be thereto affixed; and such certificates shall have the force and effect of a special charter.
56:15 When Incorporated; Beginning Business. Amend RSA 386-A:18 to read as follows:
386-A:18 When Incorporated; Beginning Business. Within 90 days after a favorable decision pursuant to RSA 386-A:7 petitioner shall file with the secretary of state the certificate required pursuant to RSA 386-A:13. The existence of such corporation shall begin upon the filing of the certificate of the trustees or directors in the office of the secretary of state. Any corporation organized under this chapter shall begin business within 2 years from the date of its incorporation; otherwise its charter shall be void, unless the [board of trust company incorporation] commissioner for good cause shown, shall grant one or more extensions of not more than one year each.
56:16 Commencement of Business. Amend RSA 386-A:19 to read as follows:
386-A:19 Commencement of Business. Such corporation shall not begin the transaction of business until it has furnished proof of its ability to satisfy any conditions imposed by the [board] commissioner under RSA 386-A:7 and until the initial amount of required capital [established by the board], represented by the issuance of capital debentures (in the case of a mutual savings bank) or by the issuance of special deposit or capital stock (in the case of a guaranty savings bank), shall have been actually paid in cash. Upon proof thereof to the bank commissioner, he or she shall issue to the corporation a certificate of authority to commence business. It shall be unlawful for any such corporation to commence business prior to the issuance of such certificate.
56:17 Minimum Capital Requirements. Amend RSA 386-A:21 to read as follows:
386-A:21 Minimum Capital Requirements. The initial capital required to organize a savings bank shall be not less than $250,000 in cash, or such greater sum as may be required by the [board] commissioner, except that the initial capital required to organize a savings bank for the sole purpose of acting as an interim or phantom bank in the anticipation of a merger transaction, shall be such sum as may be required by the [board] commissioner. Such initial capital shall be fixed by the [board] commissioner and shall be subdivided into capital stock and an initial surplus. All amounts advanced for such purpose shall be evidenced by transferable capital debentures, in the case of a mutual savings bank, and by capital stock in the case of a guaranty savings bank. The commissioner may require any such bank to increase its capital funds or regulate the amount of its deposits, from time to time, as may be necessary, to comply with reasonable banking standards, not inconsistent with law.
56:18 Amendment of Articles of Agreement or Charter. Amend RSA 386-A:26 to read as follows:
386-A:26 Amendment of Articles of Agreement or Charter. Any mutual savings bank or guaranty savings bank, whether organized under the provisions of this chapter or created by special act of the legislature, may, in accordance with the procedures prescribed in this subdivision and subject to the approval of the [board of trust company incorporation] commissioner, amend its articles of agreement or legislative charter; provided, however, that no such amendment shall contain (1) any provision which could not then be lawfully included in original articles of agreement filed under this chapter, or (2) any provision which is inconsistent with the general statutes of this state relating to savings banks.
56:19 Petition. Amend the introductory paragraph of RSA 386-A:28 to read as follows:
Such savings bank shall thereupon file with the [board of trust company incorporation] commissioner a petition for approval of the proposed amendment, setting forth:
56:20 Approval of Petition; Filing with the Secretary of State. Amend RSA 386-A:29 to read as follows:
386-A:29 Approval of Petition; Filing With Secretary of State.
I. The [board of trust company incorporation] commissioner may, upon the request of any interested person or corporation or upon [its] his or her own motion, order a public hearing, or may act upon the petition without a hearing. If a public hearing is to be held, the petitioning institution shall cause to be published such notices as the [board] commissioner may order.
II. If the [board of trust company incorporation] commissioner finds that the proposed amendment satisfies the requirements of RSA 386-A:26 and was adopted in accordance with RSA 386-A:27, and that the public convenience and advantage and the interest of the petitioning institution, its members, stockholders and depositors will be promoted by the proposed amendment, [it] the commissioner shall so certify, and shall endorse [its] his or her approval on one of the certified copies of the amended articles of agreement or amended charter. The petitioning savings bank shall thereupon file the same in the office of the secretary of state, accompanied by a fee equal to the fee charged by the secretary of state to business corporations under RSA 293-A. The secretary of state shall thereupon cause said amended articles of agreement or amended charter, with the endorsement thereon, to be recorded, and shall issue a certificate of amended incorporation, and thereafter such savings bank shall have all the powers and privileges provided for by said amended articles of agreement or amended charter. The fee for recording with the secretary of state any amended articles of agreement or amended charter, which does not embody any increase of the authorized capital debentures, capital stock or special deposits, shall be $35.
56:21 Mutual Savings Banks; Chartering of Subsidiary Guaranty Savings Bank. Amend RSA 386-B:9, IV to read as follows:
IV. If the [board of trust company incorporation] commissioner grants the petition under RSA 386-A:7, [it] the commissioner shall condition [its] his or her approval upon the transfer by the reorganizing mutual savings bank to the guaranty savings bank (in organization), before such transferee shall commence business, of assets having a value in excess of the amount of the transferred liabilities, as determined by the bank commissioner, such that the guaranty savings bank will at the time of such transfer meet all applicable net worth and capital adequacy requirements prescribed by federal statutes or regulations or state statutes or rules.
56:22 National Bank May Convert Into State Bank. Amend RSA 389:3 to read as follows:
389:3 National Bank May Convert Into State Bank. A national bank located in this state which follows the procedure prescribed by the laws of the United States to convert into a state bank, shall be granted a certificate of incorporation in this state if the [board of trust company incorporation] commissioner finds that the bank meets the standards as to location of office, capital structure and business experience of officers and directors for the incorporation of a state bank.
56:23 Application for State Charter. Amend the introductory paragraph of RSA 389:4 to read as follows:
The converting national bank may apply for such certificate of incorporation by filing with the [board of trust company incorporation] commissioner an application signed under oath by its president and cashier and by a majority of its entire board of directors setting forth:
56:24 Approval of Application. Amend RSA 389:5 to read as follows:
389:5 Approval of Application. The [board of trust company incorporation] commissioner upon being satisfied that such application conforms to law shall indorse [its] his or her approval thereon and thereupon said application shall be filed in the office of the secretary of state, who, upon payment of a fee equal to the fee charged by the secretary of state to business corporations under RSA 293-A, shall cause the same, with the approval indorsed thereon, to be recorded and shall issue a certificate of incorporation as prescribed in RSA 392:18.
56:25 Reserves. Amend RSA 390:6 to read as follows:
390:6 Reserves. Every such corporation shall at all times maintain as a reserve an amount equal to at least 12 percent of the aggregate amount of its demand deposits plus an amount equal to at least 5 percent of the aggregate amount of its time and savings deposits. Not less than 100 percent of the reserves on demand deposits shall consist of cash and due from banks, and/or federal funds advanced from one business day until the next. The form of the reserve for time and savings deposits may be in any of the following: cash and due from banks, and/or federal funds advanced from one business day until the next, and/or obligations of the United States of America, the maturity of which shall not exceed 5 years, and/or the obligations of agencies of the United States at par value, the maturity of which shall not exceed 5 years, and/or the obligations of any federal government sponsored enterprises (as are designated by written ruling of the bank commissioner) at par value the maturity of which shall not exceed 5 years. The [board of trust company incorporation created under RSA 392] commissioner may vary the amount of reserve required, provided, however, that [said board] the commissioner shall not increase the amount of reserves required for any bank to an amount in excess of that which is required by the Federal Reserve System of similar banks located in this state which are members of the Federal Reserve System. No new loan or investment shall be made by such corporation when its reserve is not in accordance with the requirements of this section. The required reserve must be maintained on a daily basis. The method of computation and the reserve computation period for determining compliance with this section shall be established by the commissioner. Any deficiency in the reserve established pursuant to this section may be subject to a penalty of up to $100 per day.
56:26 Definitions. Amend RSA 392:1-a, I to read as follows:
I. “Confidential information,” with respect to a trust company, includes the names of stockholders, members, or other owners; ownership information; capital contributions; addresses; business affiliations; findings of the commissioner [or the board of trust company incorporation] through any examination or investigation of the commissioner [or the board of trust company incorporation]; any information required to be reported or filed with the commissioner [or the board], any information that qualifies as any person’s “nonpublic personal financial information” under Chapter V of the Gramm-Leach-Bliley Act of 1999 and the regulations implementing it; any information or agreement relating to any merger, consolidation, or transfer; any agreements or information relating to any relationship with a contracting trustee; and any other nonpublic information that, in the judgment of the commissioner, could be useful in connection with an act of bribery, extortion, identity theft, or terrorism.
56:27 Petition. Amend RSA 392:5, I to read as follows:
I. A petition setting forth said organizational instrument or its terms, signed by the organizers and requesting that the [board of trust company incorporation] commissioner grant a charter shall be filed with the [bank] commissioner in the form prescribed by the commissioner. The commissioner shall designate in such form the questions, requests for information and certifications applicable only to deposit taking or lending institutions that need not be responded to by organizers of a nondepository trust company. An examination fee of $5,000 shall be paid when the petition is filed. Sums collected under this section shall be payable to the state treasurer as restricted revenue and credited to the appropriation for the bank commissioner.
56:28 Investigations. Amend RSA 392:5-a to read as follows:
392:5-a Investigations. For the purpose of any investigation under this chapter, [the board or] the commissioner shall have the power to subpoena witnesses and administer oaths in any adjudicative proceedings, and to compel, by subpoena duces tecum, the production of all books, records, files, and other documents and materials relevant to [its] his or her investigation.
56:29 Hearing. Amend RSA 392:6-a to read as follows:
392:6-a Hearing. The [board] commissioner may order within [its] his or her discretion a public hearing on the petition. The [board] commissioner may approve or deny the petition with or without a public hearing. Any required public hearing shall be held at the time and place fixed by the [board] commissioner and a notice shall be published in accordance with the provisions of RSA 392:6. The [board] commissioner may prescribe reasonable procedural rules to govern the proceedings, including rules for maintaining the confidentiality of the portions of the petition, the commissioner’s investigation, and the proceedings of the [board] commissioner that include confidential information or are determined by [the board or] the commissioner or otherwise determined by law to be confidential or to exempt a certain class of petitions from any public hearing requirement. The [board] commissioner shall keep a permanent verbatim record of all such evidence.
56:30 Decision. Amend RSA 392:8 to read as follows:
392:8 Decision.
I. In deciding whether or not to grant the petition, the [board] commissioner shall consider the factors set forth in RSA 392:5, II. Upon reaching its decision, the [board] commissioner shall make a record thereof. If the petition is denied, it shall be dismissed and no new petition concerning the same company may be filed within one year thereafter.
II. If in any case the [board] commissioner shall be of the opinion that the petition does not satisfy the factors in RSA 392:5, II by the exercise proposed by the trust company of all the powers and privileges which are included in the petition, but that the same would be satisfied by the exercise of a part thereof, [it] he or she shall so notify the petitioners; and in such case the petitioners may have leave to withdraw, and may at once file another petition setting forth new organizational documents, upon which the same procedure shall be had as upon the original petition.
56:31 Approval. Amend RSA 392:16 to read as follows:
392:16 Approval of. Such certificate shall be submitted to the commissioner, who shall examine the same, and who may require such amendment thereof or such additional information as he or she may consider necessary. If he or she finds that the certificate is consistent with the decision [of the board] pursuant to RSA 392:8 and that the proceedings in other respects conform to the provisions of this chapter, he or she shall so certify and indorse his or her approval upon said certificate and the organizational instrument.
56:32 Certificate of Organization. Amend RSA 392:18 to read as follows:
392:18 Certificate of Organization. The secretary shall thereupon issue a certificate of organization in the following form:
STATE OF NEW HAMPSHIRE
Be it known, that whereas (the names of the organizers of the trust company) have associated themselves with the intention of forming a trust company under the name of (the name of the trust company), for the purpose (the purpose declared in the organizational instrument,), with capital of (the amount fixed in the organizational instrument), and have complied with the provisions of the statutes of this state as duly approved by the [board of trust company incorporation] bank commissioner and recorded in this office: Now, therefore, I (the name of the secretary), secretary of state, do hereby certify that said (the names of the organizers of the trust company), and their successors, are legally organized and established as, and are hereby made, an existing trust company under the name of (name of trust company), with the powers, rights and privileges, and subject to the limitations, duties, and restrictions, which by law appertain thereto.
Witness my official signature hereunto subscribed, and the seal of the state hereunto affixed, this __________ day of __________ in the year __________ (the date of the filing of the organizational instrument).
The secretary of state shall sign the certificate of organization and cause the seal of the state to be thereto affixed, and such certificate shall have the force and effect of a special charter.
56:33 When Organized; Beginning Business. Amend RSA 392:20 to read as follows:
392:20 When Organized; Beginning Business. The existence of such trust company shall begin upon the filing of the organizational instrument with the secretary of state. Any trust company organized under this chapter shall begin business within 2 years from the date of its organization; otherwise its charter shall be void, unless the [board of trust company incorporation] commissioner, for good cause shown, shall grant one extension for not more than one year.
56:34 Minimum Capital Requirements; Investment of Capital. Amend RSA 392:25, I to read as follows:
I. The initial capital required to organize a trust company shall be not less than $500,000. The [board of trust company incorporation] commissioner may require, in the exercise of [its] his or her discretion based on safety and soundness factors, as set forth in paragraph IV, additional capital at such levels as [it] he or she determines is necessary to protect against the risks inherent in the business of the trust company. Once organized, a nondepository trust company shall maintain a minimum level of capital required by the commissioner to operate in a safe and sound manner based upon his or her examination of the company, provided that the level of capital shall not be less than $500,000.
56:35 Minimum Capital Requirements; Investment of Capital. Amend the introductory paragraph of RSA 392:25, IV to read as follows:
IV. The safety and soundness factors to be considered by [the board or] the commissioner in the exercise of [their] his or her discretion include:
56:36 Petition. Amend RSA 392:27 to read as follows:
392:27 Petition. Any trust company organized under this chapter or chartered prior to the passage thereof may file with [said board of incorporation] the commissioner a petition setting forth an amendment to its organizational instrument, within the provisions of this chapter, and praying for approval of the amended organizational instrument based on the considerations set forth in RSA 392:5, II.
56:37 Procedure; Effect. Amend RSA 392:28 to read as follows:
392:28 Procedure; Effect. If the decision is favorable to the petition a copy of the said amended organizational instrument, certified by the clerk or secretary of the trust company, with the approval of [said board] the commissioner indorsed thereon, shall be filed in the office of the secretary of state, accompanied by a fee equal to the fee charged by the secretary of state to business corporations under RSA 293-A if the trust company is a corporation, or the fee charged to limited liability companies under RSA 304-C if the trust company is a limited liability company, and thereupon the secretary of state shall cause the same, with the endorsement thereon, to be recorded as provided in RSA 392:17, and shall issue a certificate of such amended organizational instrument, which shall conform as nearly as may be to the form prescribed in RSA 392:18 and shall have the same force and effect, and thereafter such trust company shall have all the powers and privileges provided for by such amended certificate or charter and shall be subject to all the provisions of this chapter.
56:38 Redemption of Shares or Interests. Amend RSA 392:38-a to read as follows:
392:38-a Redemption of Shares or Interests. Notwithstanding the provisions of RSA 392:38, any such trust company which then has more than 500 holders of the shares or interests of its own capital stock shall be entitled, with the express written approval of the bank commissioner, to redeem any and all of such shares or interests from holders thereof who own in the aggregate 10 shares or less of such stock. Such redemption shall be pursuant to a tender offer, the form of which shall have been approved by the bank commissioner, and all shares or interests so redeemed shall be retired within 60 days of the expiration of the tender offer, thereby reducing the authorized capital stock of the trust company. Within said 60 day period the trust company shall file with the [board of trust company incorporation] commissioner, as required under RSA 392:27, an appropriate amendment reciting the change in outstanding shares or interests.
56:39 Definitions; Exemption From Certain Laws. Amend RSA 392:43 to read as follows:
392:43 Voluntary Dissolution of Nondepository Trust Company. A trust company organized as a nondepository institution under the provisions of RSA 392 or under the provisions of RSA 392-A may voluntarily dissolve in the manner provided in this chapter. Such dissolution may be accomplished by the liquidation of the trust company or by reorganizing the trust company into a domestic or foreign corporation, limited liability company, limited partnership, or limited liability partnership that does not have banking or trust powers, and in both instances surrendering its trust company charter to the [board of trust company incorporation] commissioner. A trust company that reorganizes into any other entity pursuant to this section shall not engage in any activity that is authorized only for a bank or a trust company.
56:40 Voluntary Dissolution by Liquidation. Amend RSA 392:44 to read as follows:
392:44 Voluntary Dissolution by Liquidation. A nondepository trust company, organized under the provisions of RSA 392 or under the provisions of RSA 392-A, which voluntarily dissolves by means of liquidation, shall do so by complying with the procedures for a voluntary dissolution set forth in the provisions of state law applicable to domestic business corporations, if organized as a banking corporation, or by complying with the procedures for a voluntary dissolution of a domestic limited liability company, limited partnership, or limited liability partnership, as applicable, if the dissolving trust company was organized as such other type of banking entity, provided, however, that any filing required to be made with the secretary of state shall be made instead with the [board of trust company incorporation] commissioner.
56:41 Voluntary Dissolution by Reorganization. Amend RSA 392:45 to read as follows:
392:45 Voluntary Dissolution by Reorganization. A nondepository trust company organized under the provisions of RSA 392 or under the provisions of RSA 392-A which voluntarily dissolves by means of a reorganization into a domestic or foreign corporation, limited liability company, limited partnership, or limited liability partnership which is not authorized to engage in banking or trust activities shall do so by compliance with the procedures for a reorganization into such type of business entity as set forth in the provisions of domestic and foreign law applicable to such business entities, provided, however, that any filing required to be made with the secretary of state shall be made instead with the [board of trust company incorporation] commissioner.
56:42 Approval of Voluntary Dissolution; Filing Fee. Amend RSA 392:46 to read as follows:
392:46 Approval of Voluntary Dissolution; Filing Fee.
I. A nondepository trust company seeking to dissolve its charter shall file an application for dissolution with the [board of trust company incorporation] commissioner accompanied by a filing fee of $1500 payable to the bank commissioner. The bank commissioner shall examine the application for completeness and compliance with the requirements of this section, the domestic business entity laws applicable to the requested type of liquidation or reorganization, and its rules. The application shall include a comprehensive plan of dissolution setting forth the disposition of all assets and liabilities, in reasonable detail to effect the liquidation or reorganization. Among other things, the plan of dissolution shall provide for the discharge or assumption of all of the nondepository trust company’s known or unknown claims and liabilities and the transfer of all of its responsibilities as a trustee to a successor trustee or trustees. Additionally, the filing shall include such other certifications, affidavits, documents or information with respect to the dissolution as the [board] commissioner may require to understand how such assets and liabilities will be disposed of, the timetable for effecting disposition of such assets and liabilities, and the applicant’s proposal for dealing with any claims that are asserted after the dissolution has been completed. The bank commissioner may conduct a special examination of the applicant for purposes of evaluating the application. Cost of the special examination shall be paid by the applicant.
II. If the bank commissioner finds that the application for dissolution is incomplete, the bank commissioner shall return it for completion not later than 60 days after it is filed. If the application is found to be complete by the bank commissioner, he or she shall [so notify the board in writing and shall report any information he or she has obtained from an examination of the applicant to the board. Not later than 30 days thereafter, the board shall hold a hearing for] examine the plan of dissolution for the purpose of determining whether the plan of dissolution disposes of the assets and liabilities in a lawful manner, is fair and equitable to all interested persons, has no adverse effect on the business of banking in the state and in general carries out the purposes and intentions of RSA 392:43-45. [Not later than 30 days thereafter, the board shall either approve or not approve the application. If the board approves the application, then] If the commissioner concludes that these considerations are satisfied, he or she shall approve the application. The applicant may then proceed with the dissolution under the plan, subject to such conditions that the [board] commissioner may prescribe. If the applicant subsequently determines that the plan of dissolution must be amended to complete the dissolution, it shall file an amended plan with the [board] commissioner and obtain [its] his or her approval to proceed under the amended plan. If the [board] commissioner does not approve the application or amended plan, if any, the applicant may appeal the decision pursuant to RSA 541.
III. Upon completion of all actions required under the plan of dissolution and conditions, if any, prescribed by the [board of incorporation] commissioner, necessary to liquidate the trust company or to effect the reorganization, the applicant shall submit a written report of its actions to the [board of incorporation] commissioner and the applicant’s board of directors shall certify, under oath, that it is true and correct. Following receipt of the report, the bank commissioner may examine the trust company to determine whether the commissioner is satisfied that all required actions have been taken to liquidate or reorganize the trust company in accordance with the plan of dissolution and any conditions prescribed [by the board]. Not later than 60 days after the filing of the report, the [board of incorporation shall examine the report and the bank commissioner’s findings, and, if it is satisfied] commissioner, if he or she is so satisfied, shall so notify the applicant in writing that the dissolution has been completed and is final. Thereupon, the applicant shall surrender its charter to the [board] commissioner, and the [board] commissioner shall issue a certificate of dissolution to be filed with the secretary of state pursuant to RSA 392:47. If the [board] commissioner is not satisfied that all required actions have been taken, [it] he or she shall notify the applicant in writing what additional actions shall be taken to be eligible for a certificate of dissolution. The [board] commissioner shall establish a deadline for the submission of evidence that the additional actions have been taken. The [board] commissioner may extend the deadline for good cause shown. If the applicant fails to file a supplemental report showing that the additional actions have been taken before the deadline, or submits a report that is found not to be satisfactory by the [board of incorporation] commissioner, the [board] commissioner shall notify the applicant in writing that its application is not approved, and the applicant may appeal the decision pursuant to RSA 541.
IV. The [board] commissioner may adopt rules, pursuant to RSA 541-A, relative to the procedures and requirements for a dissolution pursuant to RSA 392:43-47.
56:43 Procedure; Effect; Recording Fee. Amend RSA 392:47 to read as follows:
392:47 Procedure; Effect; Recording Fee. When the [board of trust company incorporation] commissioner approves a voluntary dissolution application, the applicant shall file the certificate of dissolution in the office of the secretary of state, accompanied by a fee of $35. In the case of a reorganization, the applicant shall also file the documents required by the secretary of state for domestic business entities to complete a statutory reorganization of the type approved by the [board] commissioner, including the organizational instruments for the reorganized entity. The secretary of state shall record the certificate and other documents, if any, and issue a certificate evidencing such liquidation or reorganization, as applicable. When the secretary of state has issued a certificate evidencing the liquidation or reorganization, as applicable, the dissolving banking corporation, limited liability company, limited liability partnership or limited partnership shall be deemed to have been voluntarily dissolved or reorganized, as applicable, with the same effect as if such voluntary dissolution or reorganization had been effected by a domestic business corporation, limited liability company, limited partnership, or limited liability partnership, by making the filings required of such domestic business entities under the provisions of state law applicable to such domestic business entities.
56:44 Organization. Amend RSA 392-A:2, IV to read as follows:
IV. Any New Hampshire financial institution may reorganize into a merchant bank by submitting an application to reorganize with the [board of trust company incorporation] commissioner and complying with the organization requirements of RSA 392, as applicable. The application of the New Hampshire financial institution shall be signed by a majority of the members of the board of directors. The reorganization shall be approved by a 2/3 majority of the members of the board of directors and a 2/3 majority of each class of shareholders. If the reorganization is approved by the [board of trust company incorporation] commissioner, notice of the reorganization shall be filed with the office of the secretary of state at the same time the charter of the merchant bank is filed pursuant to RSA 392:17. The certificate of incorporation issued by the secretary of state pursuant to RSA 392:18 shall make reference to the reorganization authorized by this chapter.
56:45 Capital; Other Funds. Amend RSA 392-A:3 to read as follows:
392-A:3 Capital; Other Funds. A merchant bank shall maintain capital at a level which is commensurate with the risk undertaken in connection with its loans, investments, and other activities, as determined annually by its board of directors, if it is a corporation, or its equivalent governing body if it is any other type of business entity, but in no event shall its capital be less than 6 percent of its assets. The initial capital of a merchant bank shall consist of common stock in the amount of at least $2,500,000 paid in the form of cash or its equivalent. The balance of any capital required by the [board of trust company incorporation] commissioner may consist of preferred stock or other equity capital, subordinated notes, or debentures, as approved by [said board] the commissioner. Notwithstanding the foregoing, the capital structure of a New Hampshire financial institution that reorganizes into a merchant bank may continue in the same form and amount as existed at the time of reorganization, provided that the capital is at least $2,500,000. A merchant bank may borrow funds to engage in the merchant banking business only from accredited investors. Following the organization or reorganization of a merchant bank, if the bank commissioner finds that the capital is inadequate based on the risk profile of its investments, the bank commissioner may require that the capital be increased by an amount necessary to protect the safety and soundness of the merchant bank. A merchant bank may voluntarily dissolve, either by liquidation or reorganization into another type of business entity, in accordance with the provisions of RSA 392.
56:46 New Section; Board of Trust Company Incorporation. Amend RSA 383 by inserting after section 24 the following new section:
383:25 Board of Trust Company Incorporation Decisions. Each decision or act of the board of trust company incorporation shall maintain the same force and effect as when such decision was issued or act was taken, except to the extent otherwise provided under this title. Any charter granted or amended by the board of trust company incorporation, with all rights, obligations, and interests vested or accrued thereunder shall remain in effect according to its terms, and shall continue to be subject to and governed by the provisions of this title.
56:47 Banking Commissioner; Definition. Amend RSA 383:1 to read as follows:
383:1 Commissioner and Deputy.
I. There shall be a bank commissioner who shall be appointed by the governor with the advice and consent of the council, and whose term shall be for 6 years. There shall be a deputy bank commissioner who shall be recommended by the bank commissioner and appointed by the governor with the advice and consent of the council, and whose term shall be 6 years. The deputy may exercise the powers and perform the duties of the commissioner during the commissioner’s absence whenever and to the extent that he or she may be so authorized by the commissioner. In case of the temporary disability of the commissioner, or of a vacancy in the office, the deputy shall have the powers and perform the duties of the commissioner until another commissioner is appointed and qualified.
II. The term “commissioner,” as used in this title, means the bank commissioner unless the context clearly indicates otherwise.
56:48 Repeal. The following are repealed:
I. RSA 384-B:1, VII-a, relative to the definition of “board.”
II. RSA 392:1, relative to the board for the incorporation of trust companies.
56:49 Effective Date. This act shall take effect 30 days after its passage.
Approved: June 4, 2013
Effective Date: July 4, 2013