§ 6-1024. Acquisition of control of trust company - Notice - Approval - Review - Penalties.

A.  For purposes of this section:

1.  "Control" means the power, directly or indirectly, to direct the management or policies of a trust company or to vote twenty-five percent (25%) or more of any class of voting securities of a trust company;

2.  "Person" means an individual, corporation, partnership, limited liability company, trust, association, joint venture, pool, syndicate, sole proprietorship, unincorporated association, and any other legal entity; and

3.  "Trust company" shall not include any trust department of banks authorized to engage in the trust company business.

B.  No person, acting directly or indirectly or through or in concert with one or more other persons, shall acquire control of any trust company through a purchase, assignment, transfer, pledge, or other disposition of voting stock of a trust company unless the Commissioner has been given sixty (60) days' prior written notice of the proposed acquisition and, within that time period, the Commissioner has not issued a notice disapproving the proposed acquisition or extending for up to another thirty (30) days the period during which the disapproval may be issued.  The period for disapproval may be further extended if the Commissioner determines that any acquiring party has not furnished all the information required under subsection F of this section or that in the judgment of the Commissioner any material information submitted is substantially inaccurate.  An acquisition may be made prior to expiration of the disapproval period if the Commissioner issues written notice of the intent of the Commissioner not to disapprove the action.

C.  Upon receiving any notice under this section, the Commissioner shall forward a copy thereof to interested persons unless the Commissioner determines that the Commissioner must act immediately upon the notice in order to prevent the probable failure of the trust company involved in the proposed acquisition.

D.  Within ten (10) days after the decision of the Commissioner to disapprove any proposed acquisition, the Commissioner shall notify the acquiring party in writing of the disapproval.

E.  Within ten (10) days of receipt of a notice of disapproval, the acquiring party may request a hearing before the Board on the proposed acquisition.  At the conclusion thereof, the Board shall by order approve or disapprove the proposed acquisition on the basis of the record made at the hearing.

F.  Any person whose proposed acquisition is disapproved after agency hearings under this section may obtain review by the Supreme Court by filing a petition in error with the clerk of the court within thirty (30) days from the date the order is filed, and simultaneously sending a copy of the petition by registered or certified mail to the Board.  The form for the petition in error, and all other procedures governing the appeal, including the time and manner for designation and completion of the record of the proceedings to be reviewed, shall be in accordance with the rules of the Supreme Court.  The findings of the Board shall be set aside if found to be arbitrary or capricious.

G.  Except as otherwise provided by regulation of the Board, a notice filed pursuant to this section shall contain the following information:

1.  The name, address, personal history, business background, and experience of each person by whom or on whose behalf the acquisition is to be made, including the material business activities and affiliations of each person during the past five (5) years, and a description of any material pending legal or administrative proceedings in which each person is a party and any criminal indictment or conviction of each person by a state or federal court;

2.  A statement of the assets and liabilities of each person by whom or on whose behalf the acquisition is to be made, as of the end of the fiscal year for each of the five (5) fiscal years immediately preceding the date of the notice, together with related statements of income and source and application of funds for each of the fiscal years then concluded, all prepared in accordance with generally accepted accounting principles consistently applied, and an interim statement of the assets and liabilities for each person, together with related statements of income and source and application of funds, as of a date not more than ninety (90) days prior to the date of the filing of the notice;

3.  The terms and conditions of the proposed acquisition and the manner in which the acquisition is to be made;

4.  The identity, source and amount of the funds or other consideration used or to be used in making the acquisition, and if any part of these funds or other consideration has been or is to be borrowed or otherwise obtained for the purpose of making the acquisition, a description of the transaction, the names of the parties, and any arrangements, agreements, or understandings with each person;

5.  Any plans or proposals which any acquiring party making the acquisition may have to liquidate the trust company, to sell its assets or merge it with any company or to make any other major change in its business, corporate structure, or management;

6.  The identification of any person employed, retained, or to be compensated by the acquiring party, or by any person on behalf of the person, to make solicitations or recommendations to stockholders for the purpose of assisting in the acquisition, and a brief description of the terms of employment, retainer, or arrangement for compensation;

7.  Copies of all invitations or tenders or advertisements making a tender offer to stockholders for purchase of their stock to be used in connection with the proposed acquisition; and

8.  Any additional relevant information in such form as the Board may require by regulation or by specific request in connection with any particular notice.

H.  The Commissioner may disapprove any proposed acquisition upon finding that:

1.  The proposed acquisition of control would result in a monopoly or would be in furtherance of any combination or conspiracy to monopolize or to attempt to monopolize in any part of the United States;

2.  The effect of the proposed acquisition of control in any section of the country may be substantially to lessen competition or to tend to create a monopoly or the proposed acquisition of control would in any other manner be in restraint of trade, and the anticompetitive effects of the proposed acquisition of control are not clearly outweighed in the public interest by the probable effect of the transaction in meeting the convenience and needs of the community to be served;

3.  The financial condition of any acquiring person might jeopardize the financial stability of the trust company or prejudice the interests of any depositors of the trust company;

4.  The competence, experience, or integrity of any acquiring person or of any of the proposed management personnel indicates that it would not be in the interest of the depositors of the trust company, or in the interest of the public, to permit such person to control the trust company; or

5.  Any acquiring person neglects, fails, or refuses to furnish to the Commissioner all the information required by the Commissioner.

I.  Any person who willfully violates any provision of this section, or any regulation or order of the Commissioner or Board pursuant thereto, shall forfeit and pay a civil penalty of not more than Ten Thousand Dollars ($10,000.00) per day for each day during which a violation continues.  The Board shall have authority to assess a civil penalty, after giving notice and an opportunity to the person to submit data, views, and arguments, and after giving due consideration to the appropriateness of the penalty with respect to the size of financial resources and good faith of the person charged, the gravity of the violation, and any data, views, and arguments submitted.  The Commissioner may collect a civil penalty by agreement with the person or by bringing an action in the appropriate district court, except that in a civil action, the person against whom the penalty has been assessed shall have a right to trial de novo.

Added by Laws 1986, c. 316, § 8, emerg. eff. June 24, 1986.  Amended by Laws 1997, c. 111, § 87, eff. July 1, 1997; Laws 1999, c. 293, § 1, eff. Nov. 1, 1999.