412:3-613 Sale or acquisition of assets and transfer or assumption of liabilities. (a) No Hawaii financial institution may sell, exchange, or otherwise dispose of all or substantially all of the financial institution's assets or business, or all or substantially all of the business of any of its branches, or, if not in the usual and regular course of business, all or substantially all of the assets or business of any of its departments, or may cause or permit the assumption of all or substantially all its liabilities, or any of its deposits, or may acquire all or substantially all of the assets or assume all or substantially all of the liabilities or assume any deposits of another company, unless the commissioner shall have given prior written approval to the acquisition or assumption, and only if the acquisition or assumption complies with this part.

(b) Whenever the transferring financial institution is a Hawaii financial institution, the sale or other disposition of its assets or business or the transfer of its deposits or liabilities subject to this section shall be effected pursuant to the procedures, conditions, and requirements of chapter 414 applicable to the sale of assets other than in the regular course of business; provided that the sale or assumption shall be approved by the shareholders or members of the transferring Hawaii financial institution at a meeting duly called and noticed and upon a vote which satisfies the requirements of section 412:3-604. Notwithstanding the foregoing, the approval of the shareholders or members of the transferring institution shall not be required if the acquisition of all or substantially all of the assets or business, or the assumption of liabilities or deposits, of any of the transferring financial institution's departments or branches does not constitute an acquisition of all or substantially all of the assets or business, or assumption of all or substantially all of the liabilities or deposits, of the transferring financial institution.

(c) The participants in the transaction shall jointly file an application with the commissioner pursuant to section 412:3‑603 for approval of the plan of acquisition or assumption. The application shall contain:

(1) The plan of acquisition or assumption which shall include, but not be limited to, the names and types of participants involved, the material terms of the transaction, and the provisions as to the manner in which the participants in the transaction will comply with all applicable federal and state law;

(2) A certificate signed by two executive officers of each of the participants in the transaction verifying that the attached copy of the resolution approving the plan of acquisition or assumption adopted by the board of directors of each of the participants in the transaction is true and correct; and

(3) Any other information that the commissioner may require.

(d) The commissioner may require notice to be given to the public as may seem appropriate.

(e) The commissioner shall approve the acquisition or assumption if it appears that:

(1) The depositors, beneficiaries, creditors, shareholders, or members, and other persons having any interest in the transferring financial institution will be adequately protected under the plan of acquisition or assumption;

(2) The amount paid for the acquisition or assumption was determined at arm's length, and does not appear to be fraudulent;

(3) The plan of acquisition or assumption does not adversely affect the stability of the acquiring or assuming participant if the participant is a Hawaii financial institution, and, if the sale is part of the liquidation of the transferring financial institution, provides for the orderly dissolution of the transferring institution in a manner consistent with law;

(4) If one or more of the participants in the transaction is subject to federal regulation, the participants will comply with all applicable federal laws;

(5) The overall experience, moral character, or integrity of the directors and executive officers of the acquiring or assuming participant is consistent with the interest of the depositors, beneficiaries, creditors, or shareholders of the acquiring or assuming participant, or in the public interest;

(6) The acquisition or assumption will not jeopardize the safety or soundness of any Hawaii financial institution which is a participant in the transaction, and is not otherwise contrary to the public interest;

(7) The proposed acquisition or assumption will not substantially lessen competition or tend to create a monopoly or restraint of trade in any section of the country that includes this State or a part thereof, or that any of these anti-competitive effects are clearly outweighed in the public interest by the probable effect of the acquisition or assumption in meeting the convenience and needs of the community to be served; and

(8) The plan of acquisition or assumption meets such other criteria as the commissioner may deem appropriate.

(f) Upon any required approval by the shareholders or members of the transferring financial institution, two executive officers of the institution shall deliver to the commissioner a certificate that the sale or assumption was duly approved by the shareholders or members of the transferring institution. If the commissioner is satisfied that the participants in the transaction have complied with all applicable state and federal law with regard to the adoption of the plan of acquisition or assumption, the commissioner shall give written approval to the participants in the transaction to proceed with the plan to acquire or sell assets or to assume liabilities. [L 1993, c 350, pt of 1; am L 1998, c 39, 6 to 8; am L 2002, c 40, 27]

 

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