(205 ILCS 5/2) (from Ch. 17, par. 302)
Sec. 2. General definitions. In this Act, unless the context otherwise requires, the following words and phrases shall have the following meanings:
"Accommodation party" shall have the meaning ascribed to that term in Section 3‑419 of the Uniform Commercial Code.
"Action" in the sense of a judicial proceeding includes recoupments, counterclaims, set‑off, and any other proceeding in which rights are determined.
"Affiliate facility" of a bank means a main banking premises or branch of another commonly owned bank. The main banking premises or any branch of a bank may be an "affiliate facility" with respect to one or more other commonly owned banks.
"Appropriate federal banking agency" means the Federal Deposit Insurance Corporation, the Federal Reserve Bank of Chicago, or the Federal Reserve Bank of St. Louis, as determined by federal law.
"Bank" means any person doing a banking business whether subject to the laws of this or any other jurisdiction.
A "banking house", "branch", "branch bank" or "branch office" shall mean any place of business of a bank at which deposits are received, checks paid, or loans made, but shall not include any place at which only records thereof are made, posted, or kept. A place of business at which deposits are received, checks paid, or loans made shall not be deemed to be a branch, branch bank, or branch office if the place of business is adjacent to and connected with the main banking premises, or if it is separated from the main banking premises by not more than an alley; provided always that (i) if the place of business is separated by an alley from the main banking premises there is a connection between the two by public or private way or by subterranean or overhead passage, and (ii) if the place of business is in a building not wholly occupied by the bank, the place of business shall not be within any office or room in which any other business or service of any kind or nature other than the business of the bank is conducted or carried on. A place of business at which deposits are received, checks paid, or loans made shall not be deemed to be a branch, branch bank, or branch office (i) of any bank if the place is a terminal established and maintained in accordance with paragraph (17) of Section 5 of this Act, or (ii) of a commonly owned bank by virtue of transactions conducted at that place on behalf of the other commonly owned bank under paragraph (23) of Section 5 of this Act if the place is an affiliate facility with respect to the other bank.
"Branch of an out‑of‑state bank" means a branch established or maintained in Illinois by an out‑of‑state bank as a result of a merger between an Illinois bank and the out‑of‑state bank that occurs on or after May 31, 1997, or any branch established by the out‑of‑state bank following the merger.
"Bylaws" means the bylaws of a bank that are adopted by the bank's board of directors or shareholders for the regulation and management of the bank's affairs. If the bank operates as a limited liability company, however, "bylaws" means the operating agreement of the bank.
"Call report fee" means the fee to be paid to the Commissioner by each State bank pursuant to paragraph (a) of subsection (3) of Section 48 of this Act.
"Capital" includes the aggregate of outstanding capital stock and preferred stock.
"Cash flow reserve account" means the account within the books and records of the Commissioner of Banks and Real Estate used to record funds designated to maintain a reasonable Bank and Trust Company Fund operating balance to meet agency obligations on a timely basis.
"Charter" includes the original charter and all amendments thereto and articles of merger or consolidation.
"Commissioner" means the Commissioner of Banks and Real Estate, except that beginning on April 6, 2009 (the effective date of Public Act 95‑1047), all references in this Act to the Commissioner of Banks and Real Estate are deemed, in appropriate contexts, to be references to the Secretary of Financial and Professional Regulation.
"Commonly owned banks" means 2 or more banks that each qualify as a bank subsidiary of the same bank holding company pursuant to Section 18 of the Federal Deposit Insurance Act; "commonly owned bank" refers to one of a group of commonly owned banks but only with respect to one or more of the other banks in the same group.
"Community" means a city, village, or incorporated town and also includes the area served by the banking offices of a bank, but need not be limited or expanded to conform to the geographic boundaries of units of local government.
"Company" means a corporation, limited liability company, partnership, business trust, association, or similar organization and, unless specifically excluded, includes a "State bank" and a "bank".
"Consolidating bank" means a party to a consolidation.
"Consolidation" takes place when 2 or more banks, or a trust company and a bank, are extinguished and by the same process a new bank is created, taking over the assets and assuming the liabilities of the banks or trust company passing out of existence.
"Continuing bank" means a merging bank, the charter of which becomes the charter of the resulting bank.
"Converting bank" means a State bank converting to become a national bank, or a national bank converting to become a State bank.
"Converting trust company" means a trust company converting to become a State bank.
"Court" means a court of competent jurisdiction.
"Director" means a member of the board of directors of a bank. In the case of a manager‑managed limited liability company, however, "director" means a manager of the bank and, in the case of a member‑managed limited liability company, "director" means a member of the bank. The term "director" does not include an advisory director, honorary director, director emeritus, or similar person, unless the person is otherwise performing functions similar to those of a member of the board of directors.
"Director of Banking" means the Director of the Division of Banking of the Department of Financial and Professional Regulation.
"Eligible depository institution" means an insured savings association that is in default, an insured savings association that is in danger of default, a State or national bank that is in default or a State or national bank that is in danger of default, as those terms are defined in this Section, or a new bank as that term defined in Section 11(m) of the Federal Deposit Insurance Act or a bridge bank as that term is defined in Section 11(n) of the Federal Deposit Insurance Act or a new federal savings association authorized under Section 11(d)(2)(f) of the Federal Deposit Insurance Act.
"Fiduciary" means trustee, agent, executor, administrator, committee, guardian for a minor or for a person under legal disability, receiver, trustee in bankruptcy, assignee for creditors, or any holder of similar position of trust.
"Financial institution" means a bank, savings bank, savings and loan association, credit union, or any licensee under the Consumer Installment Loan Act or the Sales Finance Agency Act and, for purposes of Section 48.3, any proprietary network, funds transfer corporation, or other entity providing electronic funds transfer services, or any corporate fiduciary, its subsidiaries, affiliates, parent company, or contractual service provider that is examined by the Commissioner. For purposes of Section 5c and subsection (b) of Section 13 of this Act, "financial institution" includes any proprietary network, funds transfer corporation, or other entity providing electronic funds transfer services, and any corporate fiduciary.
"Foundation" means the Illinois Bank Examiners' Education Foundation.
"General obligation" means a bond, note, debenture, security, or other instrument evidencing an obligation of the government entity that is the issuer that is supported by the full available resources of the issuer, the principal and interest of which is payable in whole or in part by taxation.
"Guarantee" means an undertaking or promise to answer for payment of another's debt or performance of another's duty, liability, or obligation whether "payment guaranteed" or "collection guaranteed".
"In danger of default" means a State or national bank, a federally chartered insured savings association or an Illinois state chartered insured savings association with respect to which the Commissioner or the appropriate federal banking agency has advised the Federal Deposit Insurance Corporation that:
(1) in the opinion of the Commissioner or the |
| appropriate federal banking agency, |
|
(A) the State or national bank or insured savings |
| association is not likely to be able to meet the demands of the State or national bank's or savings association's obligations in the normal course of business; and |
|
(B) there is no reasonable prospect that the |
| State or national bank or insured savings association will be able to meet those demands or pay those obligations without federal assistance; or |
|
(2) in the opinion of the Commissioner or the |
| appropriate federal banking agency, |
|
(A) the State or national bank or insured savings |
| association has incurred or is likely to incur losses that will deplete all or substantially all of its capital; and |
|
(B) there is no reasonable prospect that the |
| capital of the State or national bank or insured savings association will be replenished without federal assistance. |
|
"In default" means, with respect to a State or national bank or an insured savings association, any adjudication or other official determination by any court of competent jurisdiction, the Commissioner, the appropriate federal banking agency, or other public authority pursuant to which a conservator, receiver, or other legal custodian is appointed for a State or national bank or an insured savings association.
"Insured savings association" means any federal savings association chartered under Section 5 of the federal Home Owners' Loan Act and any State savings association chartered under the Illinois Savings and Loan Act of 1985 or a predecessor Illinois statute, the deposits of which are insured by the Federal Deposit Insurance Corporation. The term also includes a savings bank organized or operating under the Savings Bank Act.
"Insured savings association in recovery" means an insured savings association that is not an eligible depository institution and that does not meet the minimum capital requirements applicable with respect to the insured savings association.
"Issuer" means for purposes of Section 33 every person who shall have issued or proposed to issue any security; except that (1) with respect to certificates of deposit, voting trust certificates, collateral‑trust certificates, and certificates of interest or shares in an unincorporated investment trust not having a board of directors (or persons performing similar functions), "issuer" means the person or persons performing the acts and assuming the duties of depositor or manager pursuant to the provisions of the trust, agreement, or instrument under which the securities are issued; (2) with respect to trusts other than those specified in clause (1) above, where the trustee is a corporation authorized to accept and execute trusts, "issuer" means the entrusters, depositors, or creators of the trust and any manager or committee charged with the general direction of the affairs of the trust pursuant to the provisions of the agreement or instrument creating the trust; and (3) with respect to equipment trust certificates or like securities, "issuer" means the person to whom the equipment or property is or is to be leased or conditionally sold.
"Letter of credit" and "customer" shall have the meanings ascribed to those terms in Section 5‑102 of the Uniform Commercial Code.
"Main banking premises" means the location that is designated in a bank's charter as its main office.
"Maker or obligor" means for purposes of Section 33 the issuer of a security, the promisor in a debenture or other debt security, or the mortgagor or grantor of a trust deed or similar conveyance of a security interest in real or personal property.
"Merged bank" means a merging bank that is not the continuing, resulting, or surviving bank in a consolidation or merger.
"Merger" includes consolidation.
"Merging bank" means a party to a bank merger.
"Merging trust company" means a trust company party to a merger with a State bank.
"Mid‑tier bank holding company" means a corporation that (a) owns 100% of the issued and outstanding shares of each class of stock of a State bank, (b) has no other subsidiaries, and (c) 100% of the issued and outstanding shares of the corporation are owned by a parent bank holding company.
"Municipality" means any municipality, political subdivision, school district, taxing district, or agency.
"National bank" means a national banking association located in this State and after May 31, 1997, means a national banking association without regard to its location.
"Out‑of‑state bank" means a bank chartered under the laws of a state other than Illinois, a territory of the United States, or the District of Columbia.
"Parent bank holding company" means a corporation that is a bank holding company as that term is defined in the Illinois Bank Holding Company Act of 1957 and owns 100% of the issued and outstanding shares of a mid‑tier bank holding company.
"Person" means an individual, corporation, limited liability company, partnership, joint venture, trust, estate, or unincorporated association.
"Public agency" means the State of Illinois, the various counties, townships, cities, towns, villages, school districts, educational service regions, special road districts, public water supply districts, fire protection districts, drainage districts, levee districts, sewer districts, housing authorities, the Illinois Bank Examiners' Education Foundation, the Chicago Park District, and all other political corporations or subdivisions of the State of Illinois, whether now or hereafter created, whether herein specifically mentioned or not, and shall also include any other state or any political corporation or subdivision of another state.
"Public funds" or "public money" means current operating funds, special funds, interest and sinking funds, and funds of any kind or character belonging to, in the custody of, or subject to the control or regulation of the United States or a public agency. "Public funds" or "public money" shall include funds held by any of the officers, agents, or employees of the United States or of a public agency in the course of their official duties and, with respect to public money of the United States, shall include Postal Savings funds.
"Published" means, unless the context requires otherwise, the publishing of the notice or instrument referred to in some newspaper of general circulation in the community in which the bank is located at least once each week for 3 successive weeks. Publishing shall be accomplished by, and at the expense of, the bank required to publish. Where publishing is required, the bank shall submit to the Commissioner that evidence of the publication as the Commissioner shall deem appropriate.
"Qualified financial contract" means any security contract, commodity contract, forward contract, including spot and forward foreign exchange contracts, repurchase agreement, swap agreement, and any similar agreement, any option to enter into any such agreement, including any combination of the foregoing, and any master agreement for such agreements. A master agreement, together with all supplements thereto, shall be treated as one qualified financial contract. The contract, option, agreement, or combination of contracts, options, or agreements shall be reflected upon the books, accounts, or records of the bank, or a party to the contract shall provide documentary evidence of such agreement.
"Recorded" means the filing or recording of the notice or instrument referred to in the office of the Recorder of the county wherein the bank is located.
"Resulting bank" means the bank resulting from a merger or conversion.
"Secretary" means the Secretary of Financial and Professional Regulation, or a person authorized by the Secretary or by this Act to act in the Secretary's stead.
"Securities" means stocks, bonds, debentures, notes, or other similar obligations.
"Stand‑by letter of credit" means a letter of credit under which drafts are payable upon the condition the customer has defaulted in performance of a duty, liability, or obligation.
"State bank" means any banking corporation that has a banking charter issued by the Commissioner under this Act.
"State Banking Board" means the State Banking Board of Illinois.
"Subsidiary" with respect to a specified company means a company that is controlled by the specified company. For purposes of paragraphs (8) and (12) of Section 5 of this Act, "control" means the exercise of operational or managerial control of a corporation by the bank, either alone or together with other affiliates of the bank.
"Surplus" means the aggregate of (i) amounts paid in excess of the par value of capital stock and preferred stock; (ii) amounts contributed other than for capital stock and preferred stock and allocated to the surplus account; and (iii) amounts transferred from undivided profits.
"Tier 1 Capital" and "Tier 2 Capital" have the meanings assigned to those terms in regulations promulgated for the appropriate federal banking agency of a state bank, as those regulations are now or hereafter amended.
"Trust company" means a limited liability company or corporation incorporated in this State for the purpose of accepting and executing trusts.
"Undivided profits" means undistributed earnings less discretionary transfers to surplus.
"Unimpaired capital and unimpaired surplus", for the purposes of paragraph (21) of Section 5 and Sections 32, 33, 34, 35.1, 35.2, and 47 of this Act means the sum of the state bank's Tier 1 Capital and Tier 2 Capital plus such other shareholder equity as may be included by regulation of the Commissioner. Unimpaired capital and unimpaired surplus shall be calculated on the basis of the date of the last quarterly call report filed with the Commissioner preceding the date of the transaction for which the calculation is made, provided that: (i) when a material event occurs after the date of the last quarterly call report filed with the Commissioner that reduces or increases the bank's unimpaired capital and unimpaired surplus by 10% or more, then the unimpaired capital and unimpaired surplus shall be calculated from the date of the material event for a transaction conducted after the date of the material event; and (ii) if the Commissioner determines for safety and soundness reasons that a state bank should calculate unimpaired capital and unimpaired surplus more frequently than provided by this paragraph, the Commissioner may by written notice direct the bank to calculate unimpaired capital and unimpaired surplus at a more frequent interval. In the case of a state bank newly chartered under Section 13 or a state bank resulting from a merger, consolidation, or conversion under Sections 21 through 26 for which no preceding quarterly call report has been filed with the Commissioner, unimpaired capital and unimpaired surplus shall be calculated for the first calendar quarter on the basis of the effective date of the charter, merger, consolidation, or conversion.
(Source: P.A. 95‑924, eff. 8‑26‑08; 95‑1047, eff. 4‑6‑09; 96‑1000, eff. 7‑2‑10; 96‑1163, eff. 1‑1‑11.) |
(205 ILCS 5/5) (from Ch. 17, par. 311)
Sec. 5. General corporate powers. A bank organized under this Act or subject hereto shall be a body corporate and politic and shall, without specific mention thereof in the charter, have all the powers conferred by this Act and the following additional general corporate powers:
(1) To sue and be sued, complain, and defend in its corporate name.
(2) To have a corporate seal, which may be altered at pleasure, and to use the same by causing it or a facsimile thereof to be impressed or affixed or in any manner reproduced, provided that the affixing of a corporate seal to an instrument shall not give the instrument additional force or effect, or change the construction thereof, and the use of a corporate seal is not mandatory.
(3) To make, alter, amend, and repeal bylaws, not inconsistent with its charter or with law, for the administration of the affairs of the bank. If this Act does not provide specific guidance in matters of corporate governance, the provisions of the Business Corporation Act of 1983 may be used if so provided in the bylaws, and if the bank is a limited liability company, the provisions of the Limited Liability Company Act shall be used.
(4) To elect or appoint and remove officers and agents of the bank and define their duties and fix their compensation.
(5) To adopt and operate reasonable bonus plans, profit‑sharing plans, stock‑bonus plans, stock‑option plans, pension plans and similar incentive plans for its directors, officers and employees.
(5.1) To manage, operate and administer a fund for the investment of funds by a public agency or agencies, including any unit of local government or school district, or any person. The fund for a public agency shall invest in the same type of investments and be subject to the same limitations provided for the investment of public funds. The fund for public agencies shall maintain a separate ledger showing the amount of investment for each public agency in the fund. "Public funds" and "public agency" as used in this Section shall have the meanings ascribed to them in Section 1 of the Public Funds Investment Act.
(6) To make reasonable donations for the public welfare or for charitable, scientific, religious or educational purposes.
(7) To borrow or incur an obligation; and to pledge its assets:
(a) to secure its borrowings, its lease of personal |
| or real property or its other nondeposit obligations; | |
(b) to enable it to act as agent for the sale of |
| obligations of the United States; | |
(c) to secure deposits of public money of the United |
| States, whenever required by the laws of the United States, including without being limited to, revenues and funds the deposit of which is subject to the control or regulation of the United States or any of its officers, agents, or employees and Postal Savings funds; | |
(d) to secure deposits of public money of any state |
| or of any political corporation or subdivision thereof including, without being limited to, revenues and funds the deposit of which is subject to the control or regulation of any state or of any political corporation or subdivisions thereof or of any of their officers, agents, or employees; | |
(e) to secure deposits of money whenever required by |
| the National Bankruptcy Act; | |
(f) (blank); and
(g) to secure trust funds commingled with the bank's |
| funds, whether deposited by the bank or an affiliate of the bank, pursuant to Section 2‑8 of the Corporate Fiduciary Act. | |
(8) To own, possess, and carry as assets all or part of the real estate necessary in or with which to do its banking business, either directly or indirectly through the ownership of all or part of the capital stock, shares or interests in any corporation, association, trust engaged in holding any part or parts or all of the bank premises, engaged in such business and in conducting a safe deposit business in the premises or part of them, or engaged in any activity that the bank is permitted to conduct in a subsidiary pursuant to paragraph (12) of this Section 5.
(9) To own, possess, and carry as assets other real estate to which it may obtain title in the collection of its debts or that was formerly used as a part of the bank premises, but title to any real estate except as herein permitted shall not be retained by the bank, either directly or by or through a subsidiary, as permitted by subsection (12) of this Section for a total period of more than 10 years after acquiring title, either directly or indirectly.
(10) To do any act, including the acquisition of stock, necessary to obtain insurance of its deposits, or part thereof, and any act necessary to obtain a guaranty, in whole or in part, of any of its loans or investments by the United States or any agency thereof, and any act necessary to sell or otherwise dispose of any of its loans or investments to the United States or any agency thereof, and to acquire and hold membership in the Federal Reserve System.
(11) Notwithstanding any other provisions of this Act or any other law, to do any act and to own, possess, and carry as assets property of the character, including stock, that is at the time authorized or permitted to national banks by an Act of Congress, but subject always to the same limitations and restrictions as are applicable to national banks by the pertinent federal law and subject to applicable provisions of the Financial Institutions Insurance Sales Law.
(12) To own, possess, and carry as assets stock of one or more corporations that is, or are, engaged in one or more of the following businesses:
(a) holding title to and administering assets |
| acquired as a result of the collection or liquidating of loans, investments, or discounts; or | |
(b) holding title to and administering personal |
| property acquired by the bank, directly or indirectly through a subsidiary, for the purpose of leasing to others, provided the lease or leases and the investment of the bank, directly or through a subsidiary, in that personal property otherwise comply with Section 35.1 of this Act; or | |
(c) carrying on or administering any of the |
| activities excepting the receipt of deposits or the payment of checks or other orders for the payment of money in which a bank may engage in carrying on its general banking business; provided, however, that nothing contained in this paragraph (c) shall be deemed to permit a bank organized under this Act or subject hereto to do, either directly or indirectly through any subsidiary, any act, including the making of any loan or investment, or to own, possess, or carry as assets any property that if done by or owned, possessed, or carried by the State bank would be in violation of or prohibited by any provision of this Act. | |
The provisions of this subsection (12) shall not apply to and shall not be deemed to limit the powers of a State bank with respect to the ownership, possession, and carrying of stock that a State bank is permitted to own, possess, or carry under this Act.
Any bank intending to establish a subsidiary under this subsection (12) shall give written notice to the Commissioner 60 days prior to the subsidiary's commencing of business or, as the case may be, prior to acquiring stock in a corporation that has already commenced business. After receiving the notice, the Commissioner may waive or reduce the balance of the 60 day notice period. The Commissioner may specify the form of the notice and may promulgate rules and regulations to administer this subsection (12).
(13) To accept for payment at a future date not exceeding one year from the date of acceptance, drafts drawn upon it by its customers; and to issue, advise, or confirm letters of credit authorizing the holders thereof to draw drafts upon it or its correspondents.
(14) To own and lease personal property acquired by the bank at the request of a prospective lessee and upon the agreement of that person to lease the personal property provided that the lease, the agreement with respect thereto, and the amount of the investment of the bank in the property comply with Section 35.1 of this Act.
(15) (a) To establish and maintain, in addition to the |
| main banking premises, branches offering any banking services permitted at the main banking premises of a State bank. | |
(b) To establish and maintain, after May 31, 1997, |
| branches in another state that may conduct any activity in that state that is authorized or permitted for any bank that has a banking charter issued by that state, subject to the same limitations and restrictions that are applicable to banks chartered by that state. | |
(16) (Blank).
(17) To establish and maintain terminals, as authorized by the Electronic Fund Transfer Act.
(18) To establish and maintain temporary service booths at any International Fair held in this State which is approved by the United States Department of Commerce, for the duration of the international fair for the sole purpose of providing a convenient place for foreign trade customers at the fair to exchange their home countries' currency into United States currency or the converse. This power shall not be construed as establishing a new place or change of location for the bank providing the service booth.
(19) To indemnify its officers, directors, employees, and agents, as authorized for corporations under Section 8.75 of the Business Corporation Act of 1983.
(20) To own, possess, and carry as assets stock of, or be or become a member of, any corporation, mutual company, association, trust, or other entity formed exclusively for the purpose of providing directors' and officers' liability and bankers' blanket bond insurance or reinsurance to and for the benefit of the stockholders, members, or beneficiaries, or their assets or businesses, or their officers, directors, employees, or agents, and not to or for the benefit of any other person or entity or the public generally.
(21) To make debt or equity investments in corporations or projects, whether for profit or not for profit, designed to promote the development of the community and its welfare, provided that the aggregate investment in all of these corporations and in all of these projects does not exceed 10% of the unimpaired capital and unimpaired surplus of the bank and provided that this limitation shall not apply to creditworthy loans by the bank to those corporations or projects. Upon written application to the Commissioner, a bank may make an investment that would, when aggregated with all other such investments, exceed 10% of the unimpaired capital and unimpaired surplus of the bank. The Commissioner may approve the investment if he is of the opinion and finds that the proposed investment will not have a material adverse effect on the safety and soundness of the bank.
(22) To own, possess, and carry as assets the stock of a corporation engaged in the ownership or operation of a travel agency or to operate a travel agency as a part of its business.
(23) With respect to affiliate facilities:
(a) to conduct at affiliate facilities for and on |
| behalf of another commonly owned bank, if so authorized by the other bank, all transactions that the other bank is authorized or permitted to perform; and | |
(b) to authorize a commonly owned bank to conduct |
| for and on behalf of it any of the transactions it is authorized or permitted to perform at one or more affiliate facilities. | |
Any bank intending to conduct or to authorize a commonly owned bank to conduct at an affiliate facility any of the transactions specified in this paragraph (23) shall give written notice to the Commissioner at least 30 days before any such transaction is conducted at the affiliate facility.
(24) To act as the agent for any fire, life, or other insurance company authorized by the State of Illinois, by soliciting and selling insurance and collecting premiums on policies issued by such company; and to receive for services so rendered such fees or commissions as may be agreed upon between the bank and the insurance company for which it may act as agent; provided, however, that no such bank shall in any case assume or guarantee the payment of any premium on insurance policies issued through its agency by its principal; and provided further, that the bank shall not guarantee the truth of any statement made by an assured in filing his application for insurance.
(25) Notwithstanding any other provisions of this Act or any other law, to offer any product or service that is at the time authorized or permitted to any insured savings association or out‑of‑state bank by applicable law, provided that powers conferred only by this subsection (25):
(a) shall always be subject to the same limitations |
| and restrictions that are applicable to the insured savings association or out‑of‑state bank for the product or service by such applicable law; | |
(b) shall be subject to applicable provisions of the |
| Financial Institutions Insurance Sales Law; | |
(c) shall not include the right to own or conduct a |
| real estate brokerage business for which a license would be required under the laws of this State; and | |
(d) shall not be construed to include the |
| establishment or maintenance of a branch, nor shall they be construed to limit the establishment or maintenance of a branch pursuant to subsection (11). | |
Not less than 30 days before engaging in any activity under the authority of this subsection, a bank shall provide written notice to the Commissioner of its intent to engage in the activity. The notice shall indicate the specific federal or state law, rule, regulation, or interpretation the bank intends to use as authority to engage in the activity.
(Source: P.A. 92‑483, eff. 8‑23‑01; 92‑811, eff. 8‑21‑02; 93‑561; eff.1‑1‑04.) |
(205 ILCS 5/14) (from Ch. 17, par. 321)
Sec. 14. Stock. Unless otherwise provided for in this Act provisions of general application to stock of a state bank shall be as follows:
(1) All banks shall have their capital divided into shares of a par value of not less than $1 each and not more than $100 each, however, the par value of shares of a bank effecting a reverse stock split pursuant to item (8) of subsection (a) of Section 17 may temporarily exceed this limit provided it conforms to the limits immediately after the reverse stock split is completed. No issue of capital stock or preferred stock shall be valid until not less than the par value of all such stock so issued shall be paid in and notice thereof by the president, a vice‑president or cashier of the bank has been transmitted to the Commissioner. In the case of an increase in capital stock by the declaration of a stock dividend, the capitalization of retained earnings effected by such stock dividend shall constitute the payment for such shares required by the preceding sentence, provided that the surplus of said bank after such stock dividend shall be at least equal to fifty per cent of the capital as increased. The charter shall not limit or deny the voting power of the shares of any class of stock except as provided in Section 15(3) of this Act.
(2) Pursuant to action taken in accordance with the requirements of Section 17, a bank may issue preferred stock of one or more classes as shall be approved by the Commissioner as hereinafter provided, and make such amendment to its charter as may be necessary for this purpose; but in the case of any newly organized bank which has not yet issued capital stock the requirements of Section 17 shall not apply.
(3) Without limiting the authority herein contained a bank, when so provided in its charter and when approved by the Commissioner, may issue shares of preferred stock:
(a) Subject to the right of the bank to redeem any |
| of such shares at not exceeding the price fixed by the charter for the redemption thereof; | |
(b) Subject to the provisions of subsection (8) of |
| this Section 14 entitling the holders thereof to cumulative or noncumulative dividends; | |
(c) Having preference over any other class or |
| classes of shares as to the payment of dividends; | |
(d) Having preference as to the assets of the bank |
| over any other class or classes of shares upon the voluntary or involuntary liquidation of the bank; | |
(e) Convertible into shares of any other class of |
| stock, provided that preferred shares shall not be converted into shares of a different par value unless that part of the capital of the bank represented by such preferred shares is at the time of the conversion equal to the aggregate par value of the shares into which the preferred shares are to be converted. | |
(4) If any part of the capital of a bank consists of preferred stock, the determination of whether or not the capital of such bank is impaired and the amount of such impairment shall be based upon the par value of its stock even though the amount which the holders of such preferred stock shall be entitled to receive in the event of retirement or liquidation shall be in excess of the par value of such preferred stock.
(5) Pursuant to action taken in accordance with the requirements of Section 17 of this Act, a state bank may provide for a specified number of authorized but unissued shares of capital stock for one or more of the following purposes:
(a) Reserved for issuance under stock option plan or |
| plans to directors, officers or employees; | |
(b) Reserved for issuance upon conversion of |
| convertible preferred stock issued pursuant to and in compliance with the provisions of subsections (2) and (3) of this Section 14. | |
(c) Reserved for issuance upon conversion of |
| convertible debentures or other convertible evidences of indebtedness issued by a state bank, provided always that the terms of such conversion have been approved by the Commissioner; | |
(d) Reserved for issuance by the declaration of a |
| stock dividend. If and when any shares of capital stock are proposed to be authorized and reserved for any of the purposes set forth in subparagraphs (a), (b) or (c) above, the notice of the meeting, whether special or annual, of stockholders at which such proposition is to be considered shall be accompanied by a statement setting forth or summarizing the terms upon which the shares of capital stock so reserved are to be issued, and the extent to which any preemptive rights of stockholders are inapplicable to the issuance of the shares so reserved or to the convertible preferred stock or convertible debentures or other convertible evidences of indebtedness, and the approving vote of the holders of at least two‑thirds of the outstanding shares of stock entitled to vote at such meeting of the terms of such issuance shall be requisite for the adoption of any amendment providing for the reservation of authorized but unissued shares for any of said purposes. Nothing in this subsection (5) contained shall be deemed to authorize the issuance of any capital stock for a consideration less than the par value thereof. | |
(6) Upon written application to the Commissioner 60 days prior to the proposed purchase and receipt of the written approval of the Commissioner, a state bank may purchase and hold as treasury stock such amounts of the total number of issued and outstanding shares of its capital and preferred stock outstanding as the Commissioner determines is consistent with safety and soundness of the bank. The Commissioner may specify the manner of accounting for the treasury stock and the form of notice prior to ultimate disposition of the shares. Except as authorized in this subsection, it shall not be lawful for a state bank to purchase or hold any additional such shares or securities described in subsection (2) of Section 37 unless necessary to prevent loss upon a debt previously contracted in good faith, in which event such shares or securities so purchased or acquired shall, within 6 months from the time of purchase or acquisition, be sold or disposed of at public or private sale. Any state bank which intends to purchase and hold treasury stock as authorized in this subsection (6) shall file a written application with the Commissioner 60 days prior to any such proposed purchase. The application shall state the number of shares to be purchased, the consideration for the shares, the name and address of the person from whom the shares are to be purchased, if known, and the total percentage of its issued and outstanding shares to be held by the bank after the purchase. The total consideration paid by a state bank for treasury stock shall reduce capital and surplus of the bank for purposes of Sections of this Act relating to lending and investment limits which require computation of capital and surplus. After considering and approving an application to purchase and hold treasury stock under this subsection, the Commissioner may waive or reduce the balance of the 60 day application period. The Commissioner may specify the form of the application for approval to acquire treasury stock and promulgate rules and regulations for the administration of this subsection (6). A state bank may acquire or resell its own shares as treasury stock pursuant to this subsection (6) without a change in its charter pursuant to Section 17. Such stock may be held for any purpose permitted in subsection (5) of this Section 14 or may be resold upon such reasonable terms as the board of directors may determine provided notice is given to the Commissioner prior to the resale of such stock.
(7) During the time that a state bank shall continue its banking business, it shall not withdraw or permit to be withdrawn, either in the form of dividends or otherwise, any portion of its capital, but nothing in this subsection shall prevent a reduction or change of the capital stock or the preferred stock under the provisions of Sections 17 through 30 of this Act, a purchase of treasury stock under the provisions of subsection (6) of this Section 14 or a redemption of preferred stock pursuant to charter provisions therefor.
(8) (a) Subject to the provisions of this Act, the board |
| of directors of a state bank from time to time may declare a dividend of so much of the net profits of such bank as it shall judge expedient, but each bank before the declaration of a dividend shall carry at least one‑tenth of its net profits since the date of the declaration of the last preceding dividend, or since the issuance of its charter in the case of its first dividend, to its surplus until the same shall be equal to its capital. | |
(b) No dividends shall be paid by a state bank while |
| it continues its banking business to an amount greater than its net profits then on hand, deducting first therefrom its losses and bad debts. All debts due to a state bank on which interest is past due and unpaid for a period of 6 months or more, unless the same are well secured and in the process of collection, shall be considered bad debts. | |
(9) A State bank may, but shall not be obliged to, issue a certificate for a fractional share, and, by action of its board of directors, may in lieu thereof, pay cash equal to the value of the fractional share. A certificate for a fractional share shall entitle the holder to exercise fractional voting rights, to receive dividends, and to participate in any of the assets of the bank in the event of liquidation.
(Source: P.A. 92‑483, eff. 8‑23‑01; 92‑651, eff. 7‑11‑02.) |
(205 ILCS 5/16) (from Ch. 17, par. 323)
Sec. 16. Directors. The business and affairs of a State bank shall be managed by its board of directors that shall exercise its powers as follows:
(1) Directors shall be elected as provided in this Act. Any omission to elect a director or directors shall not impair any of the rights and privileges of the bank or of any person in any way interested. The existing directors shall hold office until their successors are elected and qualify.
(2) (a) Notwithstanding the provisions of any charter |
| heretofore or hereafter issued, the number of directors, not fewer than 5 nor more than 25, may be fixed from time to time by the stockholders at any meeting of the stockholders called for the purpose of electing directors or changing the number thereof by the affirmative vote of at least two‑thirds of the outstanding stock entitled to vote at the meeting, and the number so fixed shall be the board regardless of vacancies until the number of directors is thereafter changed by similar action. | |
(b) Notwithstanding the minimum number of directors |
| specified in paragraph (a) of this subsection, a State bank that has been in existence for 10 years or more and has less than $20,000,000 in assets, as of the December 31 immediately preceding the annual meeting of shareholders at which directors are elected, may, subject to the approval of the Commissioner, have a minimum of 3 directors; provided that if a State bank has fewer than 5 directors, at least one director shall not be an officer or employee of the bank. The Commissioner shall annually review the appropriateness of the grant of authority to have a reduced minimum number of directors pursuant to this paragraph (b). | |
(3) Except as otherwise provided in this paragraph (3), directors shall hold office until the next annual meeting of the stockholders succeeding their election or until their successors are elected and qualify. If the board of directors consists of 6 or more members, in lieu of electing the membership of the whole board of directors annually, the charter or by‑laws of a State bank may provide that the directors shall be divided into either 2 or 3 classes, each class to be as nearly equal in number as is possible. The term of office of directors of the first class shall expire at the first annual meeting of the stockholders after their election, that of the second class shall expire at the second annual meeting after their election, and that of the third class, if any, shall expire at the third annual meeting after their election. At each annual meeting after classification, the number of directors equal to the number of the class whose terms expire at the time of the meeting shall be elected to hold office until the second succeeding annual meeting, if there be 2 classes, or until the third succeeding annual meeting, if there be 3 classes. Vacancies may be filled by stockholders at a special meeting called for the purpose.
If authorized by the bank's by‑laws or an amendment thereto, the directors of a State bank may properly fill a vacancy or vacancies arising between shareholders' meetings, but at no time may the number of directors selected to fill a vacancy in this manner during any interim period between shareholders' meetings exceed 33 1/3% of the total membership of the board of directors.
(4) The board of directors shall hold regular meetings at least once each month, provided that, upon prior written approval by the Commissioner, the board of directors may hold regular meetings less frequently than once each month but at least once each calendar quarter. A special meeting of the board of directors may be held as provided by the by‑laws. A special meeting of the board of directors may also be held upon call by the Commissioner or a bank examiner appointed under the provisions of this Act upon not less than 12 hours notice of the meeting by personal service of the notice or by mailing the notice to each of the directors at his residence as shown by the books of the bank. A majority of the board of directors shall constitute a quorum for the transaction of business unless a greater number is required by the charter or the by‑laws. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the board of directors unless the act of a greater number is required by the charter or by the by‑laws.
(5) A member of the board of directors shall be elected president. The board of directors may appoint other officers, as the by‑laws may provide, and fix their salaries to carry on the business of the bank. The board of directors may make and amend by‑laws (not inconsistent with this Act) for the government of the bank and may, by the affirmative vote of a majority of the board of directors, establish reasonable compensation of all directors for services to the corporation as directors, officers, or otherwise. An officer, whether elected or appointed by the board of directors or appointed pursuant to the by‑laws, may be removed by the board of directors at any time.
(6) The board of directors shall cause suitable books and records of all the bank's transactions to be kept.
(7) (a) In discharging the duties of their respective |
| positions, the board of directors, committees of the board, and individual directors may, in considering the best long term and short term interests of the bank, consider the effects of any action (including, without limitation, action that may involve or relate to a merger or potential merger or to a change or potential change in control of the bank) upon employees, depositors, suppliers, and customers of the corporation or its subsidiaries, communities in which the main banking premises, branches, offices, or other establishments of the bank or its subsidiaries are located, and all pertinent factors. | |
(b) In discharging the duties of their respective |
| positions, the board of directors, committees of the board, and individual directors shall be entitled to rely on advice, information, opinions, reports or statements, including financial statements and financial data, prepared or presented by: (i) one or more officers or employees of the bank whom the director believes to be reliable and competent in the matter presented; (ii) one or more counsels, accountants, or other consultants as to matters that the director believes to be within that person's professional or expert competence; or (iii) a committee of the board upon which the director does not serve, as to matters within that committee's designated authority; provided that the director's reliance under this paragraph (b) is placed in good faith, after reasonable inquiry if the need for such inquiry is apparent under the circumstances and without knowledge that would cause such reliance to be unreasonable. | |
(Source: P.A. 91‑452, eff. 1‑1‑00; 92‑476, eff. 8‑23‑01.) |
(205 ILCS 5/17) (from Ch. 17, par. 324)
Sec. 17. Changes in charter.
(a) By compliance with the provisions of this Act a State bank may:
(1) (blank);
(2) increase, decrease or change its capital stock, |
| whether issued or unissued, provided that in no case shall the capital be diminished to the prejudice of its creditors; | |
(3) provide for authorized but unissued capital |
| stock reserved for issuance for one or more of the purposes provided for in subsection (5) of Section 14 hereof; | |
(4) authorize preferred stock, or increase, decrease |
| or change the preferences, qualifications, limitations, restrictions or special or relative rights of its preferred stock, whether issued or unissued, or delegate authority to its board of directors as provided in subsection (d), provided that in no case shall the capital be diminished to the prejudice of its creditors; | |
(5) increase, decrease or change the par value of |
| its shares of its capital stock or preferred stock, whether issued or unissued, or delegate authority to its board of directors as provided in subsection (d); | |
(6) (blank);
(7) eliminate cumulative voting rights under all or |
| specified circumstances, or eliminate voting rights entirely, as to any class or classes or series of stock of the bank pursuant to paragraph (3) of Section 15, provided that one class of shares or series thereof shall always have voting in respect to all matters in the bank, and provided further that the proposal to eliminate such voting rights receives the approval of the holders of 70% of the outstanding shares of stock entitled to vote as provided in paragraph (7) of subsection (b) of this Section 17; | |
(8) increase, decrease, or change its capital stock |
| or preferred stock, whether issued or unissued, for the purpose of eliminating fractional shares or avoiding the issuance of fractional shares, provided that in no case shall the capital be diminished to the prejudice of its creditors; or | |
(9) make such other change in its charter as may be |
| |
(b) To effect a change or changes in a State bank's charter as provided for in this Section 17:
(1) The board of directors shall adopt a resolution |
| setting forth the proposed amendment and directing that it be submitted to a vote at a meeting of stockholders, which may be either an annual or special meeting. | |
(2) If the meeting is a special meeting, written or |
| printed notice setting forth the proposed amendment or summary thereof shall be given to each stockholder of record entitled to vote at such meeting at least 30 days before such meeting and in the manner provided in this Act for the giving of notice of meetings of stockholders. | |
(3) At such special meeting, a vote of the |
| stockholders entitled to vote shall be taken on the proposed amendment. Except as provided in paragraph (7) of this subsection (b), the proposed amendment shall be adopted upon receiving the affirmative vote of the holders of at least two‑thirds of the outstanding shares of stock entitled to vote at such meeting, unless holders of preferred stock are entitled to vote as a class in respect thereof, in which event the proposed amendment shall be adopted upon receiving the affirmative vote of the holders of at least two‑thirds of the outstanding shares of each class of shares entitled to vote as a class in respect thereof and of the total outstanding shares entitled to vote at such meeting. Any number of amendments may be submitted to the stockholders and voted upon by them at one meeting. A certificate of the amendment, or amendments, verified by the president, or a vice‑president, or the cashier, shall be filed immediately in the office of the Commissioner. | |
(4) At any annual meeting without a resolution of |
| the board of directors and without a notice and prior publication, as hereinabove provided, a proposition for a change in the bank's charter as provided for in this Section 17 may be submitted to a vote of the stockholders entitled to vote at the annual meeting, except that no proposition for authorized but unissued capital stock reserved for issuance for one or more of the purposes provided for in subsection (5) of Section 14 hereof shall be submitted without complying with the provisions of said subsection. The proposed amendment shall be adopted upon receiving the affirmative vote of the holders of at least two‑thirds of the outstanding shares of stock entitled to vote at such meeting, unless holders of preferred stock are entitled to vote as a class in respect thereof, in which event the proposed amendment shall be adopted upon receiving the affirmative vote of the holders of at least two‑thirds of the outstanding shares of each class of shares entitled to vote as a class in respect thereof and the total outstanding shares entitled to vote at such meeting. A certificate of the amendment, or amendments, verified by the president, or a vice‑president or cashier, shall be filed immediately in the office of the Commissioner. | |
(5) If an amendment or amendments shall be approved |
| in writing by the Commissioner, the amendment or amendments so adopted and so approved shall be accomplished in accordance with the vote of the stockholders. The Commissioner may impose such terms and conditions on the approval of the amendment or amendments as he deems necessary or appropriate. The Commissioner shall revoke such approval in the event such amendment or amendments are not effected within one year from the date of the issuance of the Commissioner's certificate and written approval except for transactions permitted under subsection (5) of Section 14 of this Act. | |
(6) No amendment or amendments shall affect suits in |
| which the bank is a party, nor affect causes of action, nor affect rights of persons in any particular, nor shall actions brought against such bank by its former name be abated by a change of name. | |
(7) A proposal to amend the charter to eliminate |
| cumulative voting rights under all or specified circumstances, or to eliminate voting rights entirely, as to any class or classes or series or stock of a bank, pursuant to paragraph (3) of Section 15 and paragraph (7) of subsection (a) of this Section 17, shall be adopted only upon such proposal receiving the approval of the holders of 70% of the outstanding shares of stock entitled to vote at the meeting where the proposal is presented for approval, unless holders of preferred stock are entitled to vote as a class in respect thereof, in which event the proposed amendment shall be adopted upon receiving the approval of the holders of 70% of the outstanding shares of each class of shares entitled to vote as a class in respect thereof and of the total outstanding shares entitled to vote at the meeting where the proposal is presented for approval. The proposal to amend the charter pursuant to this paragraph (7) may be voted upon at the annual meeting or a special meeting. | |
(8) Written or printed notice of a stockholders' |
| meeting to vote on a proposal to increase, decrease or change the capital stock or preferred stock pursuant to paragraph (8) of subsection (a) of this Section 17 and to eliminate fractional shares or avoid the issuance of fractional shares shall be given to each stockholder of record entitled to vote at the meeting at least 30 days before the meeting and in the manner provided in this Act for the giving of notice of meetings of stockholders, and shall include all of the following information: | |
(A) A statement of the purpose of the proposed |
| |
(B) A statement of the amount of consideration |
| being offered for the bank's stock. | |
(C) A statement that the bank considers the |
| transaction fair to the stockholders, and a statement of the material facts upon which this belief is based. | |
(D) A statement that the bank has secured an |
| opinion from a third party with respect to the fairness, from a financial point of view, of the consideration to be paid, the identity and qualifications of the third party, how the third party was selected, and any material relationship between the third party and the bank. | |
(E) A summary of the opinion including the basis |
| for and the methods of arriving at the findings and any limitation imposed by the bank in arriving at fair value and a statement making the opinion available for reviewing or copying by any stockholder. | |
(F) A statement that objecting stockholders will |
| be entitled to the fair value of those shares that are voted against the charter amendment, if a proper demand is made on the bank and the requirements are satisfied as specified in this Section. | |
If a stockholder shall file with the bank, prior to or at the meeting of stockholders at which the proposed charter amendment is submitted to a vote, a written objection to the proposed charter amendment and shall not vote in favor thereof, and if the stockholder, within 20 days after receiving written notice of the date the charter amendment was accomplished pursuant to paragraph (5) of subsection (a) of this Section 17, shall make written demand on the bank for payment of the fair value of the stockholder's shares as of the day prior to the date on which the vote was taken approving the charter amendment, the bank shall pay to the stockholder, upon surrender of the certificate or certificates representing the stock, the fair value thereof. The demand shall state the number of shares owned by the objecting stockholder. The bank shall provide written notice of the date on which the charter amendment was accomplished to all stockholders who have filed written objections in order that the objecting stockholders may know when they must file written demand if they choose to do so. Any stockholder failing to make demand within the 20‑day period shall be conclusively presumed to have consented to the charter amendment and shall be bound by the terms thereof. If within 30 days after the date on which a charter amendment was accomplished the value of the shares is agreed upon between the objecting stockholders and the bank, payment therefor shall be made within 90 days after the date on which the charter amendment was accomplished, upon the surrender of the stockholder's certificate or certificates representing the shares. Upon payment of the agreed value the objecting stockholder shall cease to have any interest in the shares or in the bank. If within such period of 30 days the stockholder and the bank do not so agree, then the objecting stockholder may, within 60 days after the expiration of the 30‑day period, file a complaint in the circuit court asking for a finding and determination of the fair value of the shares, and shall be entitled to judgment against the bank for the amount of the fair value as of the day prior to the date on which the vote was taken approving the charter amendment with interest thereon to the date of the judgment. The practice, procedure and judgment shall be governed by the Civil Practice Law. The judgment shall be payable only upon and simultaneously with the surrender to the bank of the certificate or certificates representing the shares. Upon payment of the judgment, the objecting stockholder shall cease to have any interest in the shares or the bank. The shares may be held and disposed of by the bank. Unless the objecting stockholder shall file such complaint within the time herein limited, the stockholder and all persons claiming under the stockholder shall be conclusively presumed to have approved and ratified the charter amendment, and shall be bound by the terms thereof. The right of an objecting stockholder to be paid the fair value of the stockholder's shares of stock as herein provided shall cease if and when the bank shall abandon the charter amendment.
(c) The purchase and holding and later resale of treasury stock of a state bank pursuant to the provisions of subsection (6) of Section 14 may be accomplished without a change in its charter reflecting any decrease or increase in capital stock.
(d) A State bank may amend its charter for the purpose of authorizing its board of directors to issue preferred stock; to increase, decrease, or change the par value of shares of its preferred stock, whether issued or unissued; or to increase, decrease, or change the preferences, qualifications, limitations, restrictions, or special or relative rights of its preferred stock, whether issued or unissued; provided that in no case shall the capital be diminished to the prejudice of the bank's creditors. An amendment to the bank's charter granting such authority shall establish ranges, limits, or restrictions that must be observed when the board exercises the discretion authorized by the amendment.
Once such an amendment is adopted and approved as provided in this subsection, and without further action by the bank's stockholders, the board may exercise its delegated authority by adopting a resolution specifying the actions that it is taking with respect to the preferred stock. The board may fully exercise its delegated authority through one resolution or it may exercise its delegated authority through a series of resolutions, provided that the board's actions remain at all times within the ranges, limitations, and restrictions specified in the amendment to the bank's charter.
A resolution adopted by the board under this authority shall be submitted to the Commissioner for approval. The Commissioner shall approve the resolution, or state any objections to the resolution, within 30 days after the receipt of the resolution adopted by the board. If no objections are specified by the Commissioner within that time frame, the resolution will be deemed to be approved by the Commissioner. Once approved, the resolution shall be incorporated as an addendum to the bank's charter and the board may proceed to effect the changes set forth in the resolution.
(Source: P.A. 92‑483, eff. 8‑23‑01; 93‑561, eff. 1‑1‑04.) |
(205 ILCS 5/18) (from Ch. 17, par. 325)
Sec. 18. Change in control.
(a) Before a change may occur in the ownership of outstanding stock of any State bank, whether by sale and purchase, gift, bequest or inheritance, or any other means, including the acquisition of stock of the State bank by any bank holding company, which will result in control or a change in the control of the bank or before a change in the control of a holding company having control of the outstanding stock of a State bank whether by sale and purchase, gift, bequest or inheritance, or any other means, including the acquisition of stock of such holding company by any other bank holding company, which will result in control or a change in control of the bank or holding company, or before a transfer of substantially all the assets or liabilities of the State bank, the Commissioner shall be of the opinion and find:
(1) that the general character of proposed |
| management or of the person desiring to purchase substantially all the assets or to assume substantially all the liabilities of the State bank, after the change in control, is such as to assure reasonable promise of successful, safe and sound operation; | |
(1.1) that depositors' interests will not be |
| jeopardized by the purchase or assumption and that adequate provision has been made for all liabilities as required for a voluntary liquidation under Section 68 of this Act; | |
(2) that the future earnings prospects of the person |
| desiring to purchase substantially all assets or to assume substantially all the liabilities of the State bank, after the proposed change in control, are favorable; | |
(3) that any prior involvement by the persons |
| proposing to obtain control, to purchase substantially all the assets, or to assume substantially all the liabilities of the State bank or by the proposed management personnel with any other financial institution, whether as stockholder, director, officer or customer, was conducted in a safe and sound manner; and | |
(4) that if the acquisition is being made by a bank |
| holding company, the acquisition is authorized under the Illinois Bank Holding Company Act of 1957. | |
(b) Persons desiring to purchase control of an existing state bank, to purchase substantially all the assets, or to assume substantially all the liabilities of the State bank shall, prior to that purchase, submit to the Commissioner:
(1) a statement of financial worth;
(2) satisfactory evidence that any prior involvement |
| by the persons and the proposed management personnel with any other financial institution, whether as stockholder, director, officer or customer, was conducted in a safe and sound manner; and | |
(3) such other relevant information as the |
| Commissioner may request to substantiate the findings under subsection (a) of this Section. | |
A person who has submitted information to the Commissioner pursuant to this subsection (b) is under a continuing obligation until the Commissioner takes action on the application to immediately supplement that information if there are any material changes in the information previously furnished or if there are any material changes in any circumstances that may affect the Commissioner's opinion and findings. In addition, a person submitting information under this subsection shall notify the Commissioner of the date when the change in control is finally effected.
The Commissioner may impose such terms and conditions on the approval of the change in control application as he deems necessary or appropriate.
If an applicant, whose application for a change in control has been approved pursuant to subsection (a) of this Section, fails to effect the change in control within 180 days after the date of the Commissioner's approval, the Commissioner shall revoke that approval unless a request has been submitted, in writing, to the Commissioner for an extension and the request has been approved.
(b‑1) Any person who obtains ownership of stock of an existing State bank or stock of a holding company that controls the State bank by gift, bequest, or inheritance such that ownership of the stock would constitute control of the State bank or holding company may obtain title and ownership of the stock, but may not exercise management or control of the business and affairs of the bank or vote his or her shares so as to exercise management or control unless and until the Commissioner approves an application for the change of control as provided in subsection (b) of this Section.
(c) Whenever a state bank makes a loan or loans, secured, or to be secured, by 25% or more of the outstanding stock of a state bank, the president or other chief executive officer of the lending bank shall promptly report such fact to the Commissioner upon obtaining knowledge of such loan or loans, except that no report need be made in those cases where the borrower has been the owner of record of the stock for a period of one year or more, or the stock is that of a newly organized bank prior to its opening.
(d) The reports required by subsections (b) and (c) of this Section 18, other than those relating to a transfer of assets or assumption of liabilities, shall contain the following information to the extent that it is known by the person making the report: (1) the number of shares involved; (2) the names of the sellers (or transferors); (3) the names of the purchasers (or transferees); (4) the names of the beneficial owners if the shares are registered in another name: (5) the purchase price, if applicable; (6) the total number of shares owned by the sellers (or transferors), the purchasers (or transferees) and the beneficial owners both immediately before and after the transaction; and, (7) in the case of a loan, the name of the borrower, the amount of the loan, the name of the bank issuing the stock securing the loan and the number of shares securing the loan. In addition to the foregoing, such reports shall contain such other information which is requested by the Commissioner to inform the Commissioner of the effect of the transaction upon control of the bank whose stock is involved.
(d‑1) The reports required by subsection (b) of this Section 18 that relate to purchase of assets and assumption of liabilities shall contain the following information to the extent that it is known by the person making the report: (1) the value, amount, and description of the assets transferred; (2) the amount, type, and to whom each type of liabilities are owed; (3) the names of the purchasers (or transferees); (4) the names of the beneficial owners if the shares of a purchaser or transferee are registered in another name; (5) the purchase price, if applicable; and, (6) in the case of a loan obtained to effect a purchase, the name of the borrower, the amount and terms of the loan, and the description of the assets securing the loan. In addition to the foregoing, these reports shall contain any other information that is requested by the Commissioner to inform the Commissioner of the effect of the transaction upon the bank from which assets are purchased or liabilities are transferred.
(e) Whenever such a change as described in subsection (a) of this Section 18 occurs, each state bank shall report promptly to the Commissioner any changes or replacement of its chief executive officer or of any director occurring in the next 12 month period, including in its report a statement of the past and current business and professional affiliations of the new chief executive officer or directors.
(f) (Blank).
(g) (1) Except as otherwise expressly provided in this |
| subsection (g), the Commissioners shall not approve an application for a change in control if upon consummation of the change in control the persons applying for the change in control, including any affiliates of the persons applying, would control 30% or more of the total amount of deposits which are located in this State at insured depository institutions. For purposes of this subsection (g), the words "insured depository institution" shall mean State banks, national banks, and insured savings associations. For purposes of this subsection (g), the word "deposits" shall have the meaning ascribed to that word in Section 3(1) of the Federal Deposit Insurance Act. For purposes of this subsection (g), the total amount of deposits which are considered to be located in this State at insured depository institutions shall equal the sum of all deposits held at the main banking premises and branches in the State of Illinois of State banks, national banks, or insured savings associations. For purposes of this subsection (g), the word "affiliates" shall have the meaning ascribed to that word in Section 35.2 of this Act. | |
(2) Notwithstanding the provisions of subsection |
| (g)(1) of this Section, the Commissioner may approve an application for a change in control for a bank that is in default or in danger of default. Except in those instances in which an application for a change in control is for a bank that is in default or in danger of default, the Commissioner may not approve a change in control which does not meet the requirements of subsection (g)(1) of this Section. The Commissioner may not waive the provisions of subsection (g)(1) of this Section, whether pursuant to Section 3(d) of the federal Bank Holding Company Act of 1956 or Section 44(d) of the Federal Deposit Insurance Act, except as expressly provided in this subsection (g)(2). | |
(h) As used in this Section, the term "control" means the power, directly or indirectly, to direct the management or policies of the bank or to vote 25% or more of the outstanding stock of the bank. If there is any question as to whether a change in control application should be filed, the question shall be resolved in favor of filing the application with the Commissioner.
As used in this Section, "substantially all" the assets or liabilities of a State bank means that portion of the assets or liabilities of a State bank such that their purchase or transfer will materially impair the ability of the State bank to continue successful, safe, and sound operations or to continue as a going concern or would cause the bank to lose its federal deposit insurance.
As used in this Section, "purchase" includes a transfer by gift, bequest, inheritance, or any other means.
(Source: P.A. 92‑483, eff. 8‑23‑01; 92‑811, eff. 8‑21‑02.) |
(205 ILCS 5/30) (from Ch. 17, par. 337)
Sec. 30. Conversion; merger with trust company. Upon approval by the Commissioner a trust company having power so to do under the law under which it is organized may convert into a state bank or may merge into a state bank as prescribed by this Act; except that the action by a trust company shall be taken in the manner prescribed by and shall be subject to limitations and requirements imposed by the law under which it is organized which law shall also govern the rights of its dissenting stockholders. The rights of dissenting stockholders of a state bank shall be governed by Section 29 of this Act. The conversion or merger procedure shall be:
(1) In the case of a merger, the board of directors of both the merging trust company and the merging bank by a majority of the entire board in each case shall approve a merger agreement which shall contain:
(a) The name and location of the merging bank and of |
| the merging trust company and a list of the stockholders of each as of the date of the merger agreement; | |
(b) With respect to the resulting bank (i) its name |
| and place of business; (ii) the amount of capital, surplus and reserve for operating expenses; (iii) the classes and the number of shares of stock and the par value of each share; (iv) the charter which is to be the charter of the resulting bank, together with the amendments to the continuing charter and to the continuing by‑laws; and (v) a detailed financial statement showing the assets and liabilities after the proposed merger; | |
(c) Provisions governing the manner of converting |
| the shares of the merging bank and of the merging trust company into shares of the resulting bank; | |
(d) A statement that the merger agreement is subject |
| to approval by the Commissioner and by the stockholders of the merging bank and the merging trust company, and that whether approved or disapproved, the parties thereto will pay the Commissioner's expenses of examination; | |
(e) Provisions governing the manner of disposing of |
| the shares of the resulting bank not taken by the dissenting stockholders of the merging trust company; and | |
(f) Such other provisions as the Commissioner may |
| reasonably require to enable him to discharge his duties with respect to the merger. | |
(2) After approval by the board of directors of the merging bank and of the merging trust company, the merger agreement shall be submitted to the Commissioner for approval together with the certified copies of the authorizing resolution of each board of directors showing approval by a majority of each board.
(3) After receipt by the Commissioner of the papers specified in subsection (2), he shall approve or disapprove the merger agreement. The Commissioner shall not approve the agreement unless he shall be of the opinion and finds:
(a) That the resulting bank meets the requirements |
| of this Act for the formation of a new bank at the proposed place of business of the resulting bank; | |
(b) That the same matters exist in respect of the |
| resulting bank which would have been required under Section 10 of this Act for the organization of a new bank; and | |
(c) That the merger agreement is fair to all persons |
| affected. If the Commissioner disapproves the merger agreement, he shall state his objections in writing and give an opportunity to the merging bank and the merging trust company to obviate such objections. | |
(4) To be effective, if approved by the Commissioner, a merger of a bank and a trust company where there is to be a resulting bank must be approved by the affirmative vote of the holders of at least two‑thirds of the outstanding shares of stock of the merging bank entitled to vote at a meeting called to consider such action, unless holders of preferred stock are entitled to vote as a class in respect thereof, in which event the proposed merger shall be adopted upon receiving the affirmative vote of the holders of at least two‑thirds of the outstanding shares of each class of shares entitled to vote as a class in respect thereof and of the total outstanding shares entitled to vote at such meeting and must be approved by the stockholders of the merging trust company as provided by the Act under which it is organized. The prescribed vote by the merging bank and the merging trust company shall constitute the adoption of the charter and by‑laws of the continuing bank, including the amendments in the merger agreement, as the charter and by‑laws of the resulting bank. Written or printed notice of the meeting of the stockholders of the merging bank shall be given to each stockholder of record entitled to vote at such meeting at least thirty days before such meeting and in the manner provided in this Act for the giving of notice of meetings of stockholders. The notice shall state that dissenting stockholders of the merging trust company will be entitled to payment of the value of those shares which are voted against approval of the merger, if a proper demand is made on the resulting bank and the requirements of the Act under which the merging trust company is organized are satisfied.
(5) Unless a later date is specified in the merger agreement, the merger shall become effective upon the filing with the Commissioner of the executed merger agreement, together with copies of the resolutions of the stockholders of the merging bank and the merging trust company approving it, certified by the president or a vice‑president or, the cashier and also by the secretary or other officer charged with keeping the records. The charter of the merging trust company shall thereupon automatically terminate. The Commissioner shall thereupon issue to the continuing bank a certificate of merger which shall specify the name of the merging trust company, the name of the continuing bank and the amendments to the charter of the continuing bank provided for by the merger agreement. Such certificate shall be conclusive evidence of the merger and of the correctness of all proceedings therefor in all courts and places including the office of the Secretary of State, and said certificate shall be recorded.
(6) In the case of a conversion, a trust company shall apply for a charter by filing with the Commissioner:
(a) A certificate signed by its president, or a |
| vice‑president, and by a majority of the entire board of directors setting forth the corporate action taken in compliance with the provisions of the Act under which it is organized governing the conversion of a trust company to a bank or governing the merger of a trust company into another corporation; | |
(b) The plan of conversion and the proposed charter |
| approved by the stockholders for the operation of the trust company as a bank. The plan of conversion shall contain (i) the name and location proposed for the converting trust company; (ii) a list of its stockholders as of the date of the stockholders' approval of the plan of conversion; (iii) the amount of its capital, surplus and reserve for operating expenses; (iv) the classes and the number of shares of stock and the par value of each share; (v) the charter which is to be the charter of the resulting bank; and (vi) a detailed financial statement showing the assets and liabilities of the converting trust company; | |
(c) A statement that the plan of conversion is |
| subject to approval by the Commissioner and that, whether approved or disapproved, the converting trust company will pay the Commissioner's expenses of examination; and | |
(d) Such other instruments as the Commissioner may |
| reasonably require to enable him to discharge his duties with respect to the conversion. | |
(7) After receipt by the Commissioner of the papers specified in subsection (6), he shall approve or disapprove the plan of conversion. The Commissioner shall not approve the plan of conversion unless he shall be of the opinion and finds:
(a) That the resulting bank meets the requirements |
| of this Act for the formation of a new bank at the proposed place of business of the resulting bank; | |
(b) That the same matters exist in respect of the |
| resulting bank which would have been required under Section 10 of this Act for the organization of a new bank; and | |
(c) That the plan of conversion is fair to all |
| |
If the commissioner disapproves the plan of conversion, he shall state his objections in writing and give an opportunity to the converting trust company to obviate such objections.
(8) Unless a later date is specified in the plan of conversion, the conversion shall become effective upon the Commissioner's approval, and the charter proposed in the plan of conversion shall constitute the charter of the resulting bank. The Commissioner shall issue a certificate of conversion which shall specify the name of the converting trust company, the name of the resulting bank and the charter provided for by said plan of conversion. Such certificate shall be conclusive evidence of the conversion and of the correctness of all proceedings therefor in all courts and places including the office of the Secretary of State, and such certificate shall be recorded.
(9) In the case of either a merger or a conversion under this Section 30, the resulting bank shall be considered the same business and corporate entity as each merging bank and merging trust company or as the converting trust company with all the property, rights, powers, duties and obligations of each as specified in Section 28 of this Act.
(Source: P.A. 91‑357, eff. 7‑29‑99.) |
(205 ILCS 5/35.2) (from Ch. 17, par. 345)
Sec. 35.2. Limitations on investments in and loans to affiliates.
(a) Restrictions on transactions with affiliates.
(1) A state bank and its subsidiaries may engage in
| a covered transaction with an affiliate, as expressly provided in this Section 35.2, only if: | |
(A) in the case of any one affiliate, the |
| aggregate amount of covered transactions of the state bank and its subsidiaries will not exceed 10% of the unimpaired capital and unimpaired surplus of the state bank; and | |
(B) in the case of all affiliates, the aggregate |
| amount of covered transactions of the state bank and its subsidiaries will not exceed 20% of the unimpaired capital and unimpaired surplus of the state bank. | |
(2) For the purpose of this Section, any |
| transactions by a state bank with any person shall be deemed to be a transaction with an affiliate to the extent that the proceeds of the transaction are used for the benefit of, or transferred to, that affiliate. | |
(3) A state bank and its subsidiaries may not |
| purchase a low‑quality asset from an affiliate unless the bank or such subsidiary, pursuant to an independent credit evaluation, committed itself to purchase such asset prior to the time such asset was acquired by the affiliate. | |
(4) Any covered transactions and any transactions |
| exempt under subsection (d) between a state bank and an affiliate shall be on terms and conditions that are consistent with safe and sound banking practices. | |
(b) Definitions. For the purpose of this Section, the following rules and definitions apply:
(1) "Affiliate" with respect to a state bank means
(A) any company that controls the state bank and |
| any other company that is controlled by the company that controls the state bank; | |
(B) a bank subsidiary of the state bank;
(C) any company
(i) controlled directly or indirectly, by a |
| trust or otherwise, by or for the benefit of shareholders who beneficially or otherwise control, directly or indirectly, by trust or otherwise, the state bank or any company that controls the state bank; or | |
(ii) a majority of the directors or trustees |
| of which constitute a majority of the persons holding any such office with the state bank or any company that controls the state bank; | |
(D) (i) any company, including a real estate |
| investment trust, that is sponsored and advised on a contractual basis by the state bank or any subsidiary or affiliate of the state bank; or | |
(ii) any investment company with respect to |
| which a state bank or any affiliate thereof is an investment advisor. An investment advisor is defined as "any person (other than a bona fide officer, director, trustee, member of an advisory board, or employee of such company, as such) who pursuant to contract with such company regularly furnishes advice to such company, with respect to the desirability or investing in, purchasing, or selling securities or other property shall be purchased or sold by such company, and any other who pursuant to contract with a person as described above regularly performs substantially all of the duties undertaken by such person described above; but does not include a person whose advice is furnished solely through uniform publications to subscribers thereto or a person who furnishes only statistical and other factual information, advice regarding economic factors and trends, or advice as to occasional transactions in specific securities, but without generally furnishing advice or making recommendations regarding the purchase or sale of securities, or a company furnishing such services at cost to one or more investment companies, insurance companies or other financial institutions, or any person the character and amount of whose compensation for such services must be approved by a court. | |
(E) any company the Commissioner determines as |
| having a relationship with the state bank or any subsidiary or affiliate of the state bank, such that covered transactions by the state bank or its subsidiary with the company may be affected by the relationship to the detriment of the state bank or its subsidiary. | |
(2) None of the following are considered to be an |
| |
(A) any company, other than a bank, that is a |
| subsidiary of a state bank, unless a determination is made under subparagraph (E) of paragraph (1) not to exclude such subsidiary company from the definition of affiliate; | |
(B) any company engaged solely in holding the |
| premises of the state bank; | |
(C) any company engaged solely in conducting a |
| |
(D) any company engaged solely in holding |
| obligations of the United States or its agencies or obligations fully guaranteed by the United States or its agencies as to principal and interest; and | |
(E) any company where control results from the |
| exercise of rights arising out of a bona fide debt previously contracted, but only for the period of time specifically authorized under applicable State and federal law or regulations or, in the absence of such law or regulation, for a period of 2 years from the date of the exercise of such rights or the effective date of this Act, whichever date is later, subject, upon application, to authorization by the Commissioner for good cause shown of extensions of time for not more than one year at a time, with such extensions not to exceed an aggregate of 3 years. | |
(3) (A) A company or shareholder has control over |
| |
(i) such company or shareholder, directly or |
| indirectly, or acting through one or more other persons, owns, controls, or has power to vote 25% or more of any class of voting securities of the other company; | |
(ii) such company or shareholder controls in |
| any manner the election of a majority of the directors or trustees of the other company; or | |
(iii) the Commissioner determines, after |
| notice and opportunity for hearing, that such company or shareholder, directly or indirectly, exercises a controlling influence over the management or policies of the other company. | |
(B) Notwithstanding any other provisions of this |
| Section, no company shall be deemed to own or control another company by virtue of its ownership or control of shares in a fiduciary capacity, except as provided in subparagraph (C) of paragraph (1) or because of its ownership or control of such shares in a business trust. | |
(4) "Subsidiary" with respect to a specified company |
| means a company that is controlled by such specified company. | |
(5) "Bank" means any bank now or hereafter organized |
| under the laws of any State or territory of the United States including the District of Columbia, any national bank, and any trust company. | |
(6) "Company" means a corporation, partnership, |
| business trust, association, or similar organization and, unless specifically excluded, includes a "state bank" and a "bank". | |
(7) "Covered transaction" means, with respect to an |
| affiliate of a state bank, | |
(A) a loan or extension of credit to the |
| |
(B) a purchase of or an investment in securities |
| |
(C) a purchase of assets, including assets |
| subject to an agreement to repurchase, from the affiliate, except such purchases of real and personal property as may be specifically exempted by the Commissioner; | |
(D) the acceptance of securities issued by the |
| affiliate as collateral security for a loan or extension of credit to any person or company; or | |
(E) the issuance of a guarantee, acceptance, or |
| letter of credit, including an endorsement or standby letter of credit, on behalf of an affiliate. | |
(8) "Aggregate amount of covered transactions" means |
| the amount of covered transactions about to be engaged in added to the current amount of all outstanding covered transactions. | |
(9) "Securities" means stocks, bonds, debentures, |
| notes or other similar obligations. | |
(10) "Low‑quality asset" means an asset that falls |
| into any one or more of the following categories: | |
(A) an asset classified as "substandard", |
| "doubtful", or "loss" or treated as "other loans especially mentioned" in the most recent report of examination of an affiliate; | |
(B) an asset in a nonaccrual status;
(C) an asset on which principal or interest |
| payments are more than 30 days past due; or | |
(D) an asset whose terms have been renegotiated |
| or compromised due to the deteriorating financial condition of the obligor. | |
(c) Collateral for certain transactions with affiliates.
(1) Each loan or extension of credit to, or |
| guarantee, acceptance or letter of credit issued on behalf of, an affiliate by a state bank or its subsidiary shall be secured at the time of the transaction by collateral having a market value equal to | |
(A) 100% of the amount of such loan or extension |
| of credit, guarantee, acceptance, or letter of credit, if the collateral is composed of | |
(i) obligations of the United States or its |
| |
(ii) obligations fully guaranteed by the |
| United States or its agencies as to principal and interest; | |
(iii) notes, drafts, bills of exchange or |
| bankers' acceptances that are eligible for rediscount or purchase by a Federal Reserve Bank; or | |
(iv) a segregated, earmarked deposit account |
| |
(B) 110% of the amount of such loan or extension |
| of credit, guarantee, acceptance or letter of credit if the collateral is composed of obligations of any state or political subdivision of any State; | |
(C) 120% of the amount of such loan or extension |
| of credit, guarantee, acceptance, or letter of credit if the collateral is composed of other debt instruments, including receivables; and | |
(D) 130% of the amount of such loan or extension |
| of credit, guarantee, acceptance or letter of credit if the collateral is composed of stock, leases, or other real or personal property. | |
(2) Any such collateral that is subsequently retired |
| or amortized shall be replaced by additional eligible collateral where needed to keep the percentage of the collateral value relative to the amount of the outstanding loan or extension of credit, guarantee, acceptance, or letter of credit equal to the minimum percentage required at the inception of the transaction. | |
(3) A low‑quality asset shall not be acceptable as |
| collateral for a loan or extension of credit to, or guarantee, acceptance, or letter of credit issued on behalf of, an affiliate. | |
(4) The securities issued by an affiliate of the |
| state bank shall not be acceptable as collateral for a loan or extension of credit to, or guarantee, acceptance or letter of credit issued on behalf of, that affiliate or any other affiliate of the state bank. | |
(5) The collateral requirements of this paragraph do |
| not apply to an acceptance that is already fully secured either by attached documents or by other property having an ascertainable market value that is involved in the transaction. | |
(d) Exemptions. The provisions of this Section, except paragraph (4) of subsection (a), shall not be applicable to the following as to which there shall be no limitation:
(1) any transaction, subject to the prohibition |
| contained in paragraph (3) of subsection (a), with a bank | |
(A) which controls 80% or more of the voting |
| shares of the state bank; | |
(B) in which the state bank controls 80% or more |
| |
(C) in which 80% or more of the voting shares |
| are controlled by the company that controls 80% or more of the voting shares of the state bank; | |
(2) making deposits in an affiliated bank or |
| affiliated foreign bank in the ordinary course of correspondent business, subject to any restrictions that the Commissioner may prescribe; | |
(3) giving immediate credit to an affiliate for |
| uncollected items received in the ordinary course of business; | |
(4) making a loan or extension of credit to, or |
| issuing a guarantee, acceptance, or letter of credit on behalf of, an affiliate that is fully secured by | |
(A) obligations of the United States or its |
| |
(B) obligations fully guaranteed by the United |
| States or its agencies as to principal and interest; or | |
(C) a segregated, earmarked deposit account with |
| |
(5) purchasing securities issued by any company of |
| the kinds described as follows: | |
Shares of any company engaged or to be engaged |
| solely in one or more of the following activities: holding or operating properties used wholly or substantially by any banking subsidiary of such bank holding company in the operations of such banking subsidiary or acquired for such future use; or conducting a safe deposit business; or furnishing services to or performing services for such bank holding company or its banking subsidiaries; or liquidating assets acquired from such bank holding company or its banking subsidiaries or acquired from any other source prior to May 9, 1956, or the date on which such company became a bank holding company, whichever is later; | |
(6) purchasing assets having a readily identifiable |
| and publicly available market quotation and purchased at the market quotation or, subject to the prohibition contained in paragraph (3) of subsection (a), purchasing loans on a nonrecourse basis from affiliated banks; and | |
(7) purchasing from an affiliate a loan or extension |
| of credit that was originated by the state bank and sold to the affiliate subject to a repurchase agreement or with recourse. | |
(e) Notwithstanding the provisions of this Section, a state bank and its subsidiaries in compliance with the provisions of Regulation W [12 C.F.R. Part 223] promulgated by the Board of Governors of the Federal Reserve, as amended from time to time, shall be deemed to be in compliance with this Section.
This Section shall apply to any transaction entered into after January 1, 1984, except for transactions which are the subject of a binding written contract or commitment entered into on or before July 28, 1982, and except that any renewal of a participation in a loan outstanding on July 28, 1982, to a company that becomes an affiliate as a result of the enactment of this Act, or any participation in a loan to such an affiliate emanating from the renewal of a binding written contract or commitment outstanding on July 28, 1982, shall not be subject to the collateral requirements of this Act.
(Source: P.A. 95‑77, eff. 8‑13‑07.) |
(205 ILCS 5/46) (from Ch. 17, par. 357)
Sec. 46. Misleading practices and names prohibited; penalty.
(a) No person, firm, partnership, or corporation that is not a bank shall transact business in this State in a manner which has a substantial likelihood of misleading the public by implying that the business is a bank, or shall use the word "bank", "banker", or "banking" in connection with the business. Any person, firm, partnership or corporation violating this Section shall be deemed guilty of a Class A misdemeanor, and the Attorney General or State's Attorney of the county in which any such violation occurs may restrain such violation by a complaint for injunctive relief.
(b) If the Commissioner is of the opinion and finds that a person, firm, partnership, or corporation that is not a bank has transacted or intends to transact business in this State in a manner which has a substantial likelihood of misleading the public by implying that the business is a bank, or has used or intends to use the word "bank", "banker", or "banking" in connection with the business, then the Commissioner may direct that person, firm, partnership, or corporation to cease and desist from transacting the business or using the word "bank", "banker", or "banking". If that person, firm, partnership, or corporation persists in transacting the business or using the word "bank", "banker", or "banking", then the Commissioner may impose a civil penalty of up to $10,000 for each violation. Each day that the person, firm, partnership, or corporation continues transacting the business or using the word "bank", "banker", or "banking" in connection with the business shall constitute a separate violation of these provisions.
(c) A person, firm, partnership, or corporation that is not a bank, and is not transacting or intending to transact business in this State in a manner that has a substantial likelihood of misleading the public by implying that such business is a bank, may apply to the Commissioner for permission to use the word "bank", "banker", or "banking" in connection with the business. If the Commissioner determines that there is no substantial likelihood of misleading the public, and upon such conditions as the Commissioner may impose to prevent the person, firm, partnership, or corporation from holding itself out in a misleading manner, then such person, firm, partnership, or corporation may use the word "bank", "banker", or "banking".
(d) (1) Unless otherwise expressly permitted by law, |
| no person, firm, partnership, or corporation may use the name of an existing bank when marketing to or soliciting business from customers or prospective customers if the reference to the existing bank is made without the consent of the existing bank. | |
(1.5) Unless otherwise expressly permitted by law, |
| no person, firm, partnership, or corporation may use a name similar to that of an existing bank when marketing to or soliciting business from customers or prospective customers if the similar name is used in a manner that could cause a reasonable person to believe that the marketing material or solicitation originated from or is endorsed by the existing bank or that the existing bank is in any other way responsible for the marketing material or solicitation. | |
(2) An existing bank may, in addition to any other |
| remedies available under the law, report an alleged violation of this subsection (d) to the Commissioner. If the Commissioner finds the marketing material or solicitation in question to be in violation of this subsection, the Commissioner may direct the person, firm, partnership, or corporation to cease and desist from using that marketing material or solicitation in Illinois. If that person, firm, partnership, or corporation persists in the use of the marketing material or solicitation, then the Commissioner may impose a civil penalty of up to $10,000 for each violation. Each instance in which the marketing material or solicitation is sent to a customer or prospective customer shall constitute a separate violation of these provisions. The Commissioner is authorized to promulgate rules to administer these provisions. | |
(3) (Blank).
(Source: P.A. 92‑476, eff. 8‑23‑01; 92‑811, eff. 8‑21‑02.) |
(205 ILCS 5/48) (from Ch. 17, par. 359)
Sec. 48. Secretary's powers; duties. The Secretary shall have the powers and authority, and is charged with the duties and responsibilities designated in this Act, and a State bank shall not be subject to any other visitorial power other than as authorized by this Act, except those vested in the courts, or upon prior consultation with the Secretary, a foreign bank regulator with an appropriate supervisory interest in the parent or affiliate of a state bank. In the performance of the Secretary's duties:
(1) The Commissioner shall call for statements from all State banks as provided in Section 47 at least one time during each calendar quarter.
(2) (a) The Commissioner, as often as the Commissioner shall deem necessary or proper, and no less frequently than 18 months following the preceding examination, shall appoint a suitable person or persons to make an examination of the affairs of every State bank, except that for every eligible State bank, as defined by regulation, the Commissioner in lieu of the examination may accept on an alternating basis the examination made by the eligible State bank's appropriate federal banking agency pursuant to Section 111 of the Federal Deposit Insurance Corporation Improvement Act of 1991, provided the appropriate federal banking agency has made such an examination. A person so appointed shall not be a stockholder or officer or employee of any bank which that person may be directed to examine, and shall have powers to make a thorough examination into all the affairs of the bank and in so doing to examine any of the officers or agents or employees thereof on oath and shall make a full and detailed report of the condition of the bank to the Commissioner. In making the examination the examiners shall include an examination of the affairs of all the affiliates of the bank, as defined in subsection (b) of Section 35.2 of this Act, or subsidiaries of the bank as shall be necessary to disclose fully the conditions of the subsidiaries or affiliates, the relations between the bank and the subsidiaries or affiliates and the effect of those relations upon the affairs of the bank, and in connection therewith shall have power to examine any of the officers, directors, agents, or employees of the subsidiaries or affiliates on oath. After May 31, 1997, the Commissioner may enter into cooperative agreements with state regulatory authorities of other states to provide for examination of State bank branches in those states, and the Commissioner may accept reports of examinations of State bank branches from those state regulatory authorities. These cooperative agreements may set forth the manner in which the other state regulatory authorities may be compensated for examinations prepared for and submitted to the Commissioner.
(b) After May 31, 1997, the Commissioner is authorized to examine, as often as the Commissioner shall deem necessary or proper, branches of out‑of‑state banks. The Commissioner may establish and may assess fees to be paid to the Commissioner for examinations under this subsection (b). The fees shall be borne by the out‑of‑state bank, unless the fees are borne by the state regulatory authority that chartered the out‑of‑state bank, as determined by a cooperative agreement between the Commissioner and the state regulatory authority that chartered the out‑of‑state bank.
(2.5) Whenever any State bank, any subsidiary or affiliate of a State bank, or after May 31, 1997, any branch of an out‑of‑state bank causes to be performed, by contract or otherwise, any bank services for itself, whether on or off its premises:
(a) that performance shall be subject to examination
| by the Commissioner to the same extent as if services were being performed by the bank or, after May 31, 1997, branch of the out‑of‑state bank itself on its own premises; and | |
(b) the bank or, after May 31, 1997, branch of the |
| out‑of‑state bank shall notify the Commissioner of the existence of a service relationship. The notification shall be submitted with the first statement of condition (as required by Section 47 of this Act) due after the making of the service contract or the performance of the service, whichever occurs first. The Commissioner shall be notified of each subsequent contract in the same manner. | |
For purposes of this subsection (2.5), the term "bank services" means services such as sorting and posting of checks and deposits, computation and posting of interest and other credits and charges, preparation and mailing of checks, statements, notices, and similar items, or any other clerical, bookkeeping, accounting, statistical, or similar functions performed for a State bank, including but not limited to electronic data processing related to those bank services.
(3) The expense of administering this Act, including the expense of the examinations of State banks as provided in this Act, shall to the extent of the amounts resulting from the fees provided for in paragraphs (a), (a‑2), and (b) of this subsection (3) be assessed against and borne by the State banks:
(a) Each bank shall pay to the Secretary a Call |
| Report Fee which shall be paid in quarterly installments equal to one‑fourth of the sum of the annual fixed fee of $800, plus a variable fee based on the assets shown on the quarterly statement of condition delivered to the Secretary in accordance with Section 47 for the preceding quarter according to the following schedule: 16� per $1,000 of the first $5,000,000 of total assets, 15� per $1,000 of the next $20,000,000 of total assets, 13� per $1,000 of the next $75,000,000 of total assets, 9� per $1,000 of the next $400,000,000 of total assets, 7� per $1,000 of the next $500,000,000 of total assets, and 5� per $1,000 of all assets in excess of $1,000,000,000, of the State bank. The Call Report Fee shall be calculated by the Secretary and billed to the banks for remittance at the time of the quarterly statements of condition provided for in Section 47. The Secretary may require payment of the fees provided in this Section by an electronic transfer of funds or an automatic debit of an account of each of the State banks. In case more than one examination of any bank is deemed by the Secretary to be necessary in any examination frequency cycle specified in subsection 2(a) of this Section, and is performed at his direction, the Secretary may assess a reasonable additional fee to recover the cost of the additional examination; provided, however, that an examination conducted at the request of the State Treasurer pursuant to the Uniform Disposition of Unclaimed Property Act shall not be deemed to be an additional examination under this Section. In lieu of the method and amounts set forth in this paragraph (a) for the calculation of the Call Report Fee, the Secretary may specify by rule that the Call Report Fees provided by this Section may be assessed semiannually or some other period and may provide in the rule the formula to be used for calculating and assessing the periodic Call Report Fees to be paid by State banks. | |
(a‑1) If in the opinion of the Commissioner an |
| emergency exists or appears likely, the Commissioner may assign an examiner or examiners to monitor the affairs of a State bank with whatever frequency he deems appropriate, including but not limited to a daily basis. The reasonable and necessary expenses of the Commissioner during the period of the monitoring shall be borne by the subject bank. The Commissioner shall furnish the State bank a statement of time and expenses if requested to do so within 30 days of the conclusion of the monitoring period. | |
(a‑2) On and after January 1, 1990, the reasonable |
| and necessary expenses of the Commissioner during examination of the performance of electronic data processing services under subsection (2.5) shall be borne by the banks for which the services are provided. An amount, based upon a fee structure prescribed by the Commissioner, shall be paid by the banks or, after May 31, 1997, branches of out‑of‑state banks receiving the electronic data processing services along with the Call Report Fee assessed under paragraph (a) of this subsection (3). | |
(a‑3) After May 31, 1997, the reasonable and |
| necessary expenses of the Commissioner during examination of the performance of electronic data processing services under subsection (2.5) at or on behalf of branches of out‑of‑state banks shall be borne by the out‑of‑state banks, unless those expenses are borne by the state regulatory authorities that chartered the out‑of‑state banks, as determined by cooperative agreements between the Commissioner and the state regulatory authorities that chartered the out‑of‑state banks. | |
(b) "Fiscal year" for purposes of this Section 48 is |
| defined as a period beginning July 1 of any year and ending June 30 of the next year. The Commissioner shall receive for each fiscal year, commencing with the fiscal year ending June 30, 1987, a contingent fee equal to the lesser of the aggregate of the fees paid by all State banks under paragraph (a) of subsection (3) for that year, or the amount, if any, whereby the aggregate of the administration expenses, as defined in paragraph (c), for that fiscal year exceeds the sum of the aggregate of the fees payable by all State banks for that year under paragraph (a) of subsection (3), plus any amounts transferred into the Bank and Trust Company Fund from the State Pensions Fund for that year, plus all other amounts collected by the Commissioner for that year under any other provision of this Act, plus the aggregate of all fees collected for that year by the Commissioner under the Corporate Fiduciary Act, excluding the receivership fees provided for in Section 5‑10 of the Corporate Fiduciary Act, and the Foreign Banking Office Act. The aggregate amount of the contingent fee thus arrived at for any fiscal year shall be apportioned amongst, assessed upon, and paid by the State banks and foreign banking corporations, respectively, in the same proportion that the fee of each under paragraph (a) of subsection (3), respectively, for that year bears to the aggregate for that year of the fees collected under paragraph (a) of subsection (3). The aggregate amount of the contingent fee, and the portion thereof to be assessed upon each State bank and foreign banking corporation, respectively, shall be determined by the Commissioner and shall be paid by each, respectively, within 120 days of the close of the period for which the contingent fee is computed and is payable, and the Commissioner shall give 20 days advance notice of the amount of the contingent fee payable by the State bank and of the date fixed by the Commissioner for payment of the fee. | |
(c) The "administration expenses" for any fiscal |
| year shall mean the ordinary and contingent expenses for that year incident to making the examinations provided for by, and for otherwise administering, this Act, the Corporate Fiduciary Act, excluding the expenses paid from the Corporate Fiduciary Receivership account in the Bank and Trust Company Fund, the Foreign Banking Office Act, the Electronic Fund Transfer Act, and the Illinois Bank Examiners' Education Foundation Act, including all salaries and other compensation paid for personal services rendered for the State by officers or employees of the State, including the Commissioner and the Deputy Commissioners, all expenditures for telephone and telegraph charges, postage and postal charges, office stationery, supplies and services, and office furniture and equipment, including typewriters and copying and duplicating machines and filing equipment, surety bond premiums, and travel expenses of those officers and employees, employees, expenditures or charges for the acquisition, enlargement or improvement of, or for the use of, any office space, building, or structure, or expenditures for the maintenance thereof or for furnishing heat, light, or power with respect thereto, all to the extent that those expenditures are directly incidental to such examinations or administration. The Commissioner shall not be required by paragraphs (c) or (d‑1) of this subsection (3) to maintain in any fiscal year's budget appropriated reserves for accrued vacation and accrued sick leave that is required to be paid to employees of the Commissioner upon termination of their service with the Commissioner in an amount that is more than is reasonably anticipated to be necessary for any anticipated turnover in employees, whether due to normal attrition or due to layoffs, terminations, or resignations. | |
(d) The aggregate of all fees collected by the |
| Secretary under this Act, the Corporate Fiduciary Act, or the Foreign Banking Office Act on and after July 1, 1979, shall be paid promptly after receipt of the same, accompanied by a detailed statement thereof, into the State treasury and shall be set apart in a special fund to be known as the "Bank and Trust Company Fund", except as provided in paragraph (c) of subsection (11) of this Section. All earnings received from investments of funds in the Bank and Trust Company Fund shall be deposited in the Bank and Trust Company Fund and may be used for the same purposes as fees deposited in that Fund. The amount from time to time deposited into the Bank and Trust Company Fund shall be used: (i) to offset the ordinary administrative expenses of the Secretary as defined in this Section or (ii) as a credit against fees under paragraph (d‑1) of this subsection (3). Nothing in this amendatory Act of 1979 shall prevent continuing the practice of paying expenses involving salaries, retirement, social security, and State‑paid insurance premiums of State officers by appropriations from the General Revenue Fund. However, the General Revenue Fund shall be reimbursed for those payments made on and after July 1, 1979, by an annual transfer of funds from the Bank and Trust Company Fund. Moneys in the Bank and Trust Company Fund may be transferred to the Professions Indirect Cost Fund, as authorized under Section 2105‑300 of the Department of Professional Regulation Law of the Civil Administrative Code of Illinois. | |
Notwithstanding provisions in the State Finance Act, |
| as now or hereafter amended, or any other law to the contrary, the sum of $18,788,847 shall be transferred from the Bank and Trust Company Fund to the Financial Institutions Settlement of 2008 Fund on the effective date of this amendatory Act of the 95th General Assembly, or as soon thereafter as practical. | |
Notwithstanding provisions in the State Finance Act, |
| as now or hereafter amended, or any other law to the contrary, the Governor may, during any fiscal year through January 10, 2011, from time to time direct the State Treasurer and Comptroller to transfer a specified sum not exceeding 10% of the revenues to be deposited into the Bank and Trust Company Fund during that fiscal year from that Fund to the General Revenue Fund in order to help defray the State's operating costs for the fiscal year. Notwithstanding provisions in the State Finance Act, as now or hereafter amended, or any other law to the contrary, the total sum transferred during any fiscal year through January 10, 2011, from the Bank and Trust Company Fund to the General Revenue Fund pursuant to this provision shall not exceed during any fiscal year 10% of the revenues to be deposited into the Bank and Trust Company Fund during that fiscal year. The State Treasurer and Comptroller shall transfer the amounts designated under this Section as soon as may be practicable after receiving the direction to transfer from the Governor. | |
(d‑1) Adequate funds shall be available in the Bank |
| and Trust Company Fund to permit the timely payment of administration expenses. In each fiscal year the total administration expenses shall be deducted from the total fees collected by the Commissioner and the remainder transferred into the Cash Flow Reserve Account, unless the balance of the Cash Flow Reserve Account prior to the transfer equals or exceeds one‑fourth of the total initial appropriations from the Bank and Trust Company Fund for the subsequent year, in which case the remainder shall be credited to State banks and foreign banking corporations and applied against their fees for the subsequent year. The amount credited to each State bank and foreign banking corporation shall be in the same proportion as the Call Report Fees paid by each for the year bear to the total Call Report Fees collected for the year. If, after a transfer to the Cash Flow Reserve Account is made or if no remainder is available for transfer, the balance of the Cash Flow Reserve Account is less than one‑fourth of the total initial appropriations for the subsequent year and the amount transferred is less than 5% of the total Call Report Fees for the year, additional amounts needed to make the transfer equal to 5% of the total Call Report Fees for the year shall be apportioned amongst, assessed upon, and paid by the State banks and foreign banking corporations in the same proportion that the Call Report Fees of each, respectively, for the year bear to the total Call Report Fees collected for the year. The additional amounts assessed shall be transferred into the Cash Flow Reserve Account. For purposes of this paragraph (d‑1), the calculation of the fees collected by the Commissioner shall exclude the receivership fees provided for in Section 5‑10 of the Corporate Fiduciary Act. | |
(e) The Commissioner may upon request certify to any |
| public record in his keeping and shall have authority to levy a reasonable charge for issuing certifications of any public record in his keeping. | |
(f) In addition to fees authorized elsewhere in this |
| Act, the Commissioner may, in connection with a review, approval, or provision of a service, levy a reasonable charge to recover the cost of the review, approval, or service. | |
(4) Nothing contained in this Act shall be construed to limit the obligation relative to examinations and reports of any State bank, deposits in which are to any extent insured by the United States or any agency thereof, nor to limit in any way the powers of the Commissioner with reference to examinations and reports of that bank.
(5) The nature and condition of the assets in or investment of any bonus, pension, or profit sharing plan for officers or employees of every State bank or, after May 31, 1997, branch of an out‑of‑state bank shall be deemed to be included in the affairs of that State bank or branch of an out‑of‑state bank subject to examination by the Commissioner under the provisions of subsection (2) of this Section, and if the Commissioner shall find from an examination that the condition of or operation of the investments or assets of the plan is unlawful, fraudulent, or unsafe, or that any trustee has abused his trust, the Commissioner shall, if the situation so found by the Commissioner shall not be corrected to his satisfaction within 60 days after the Commissioner has given notice to the board of directors of the State bank or out‑of‑state bank of his findings, report the facts to the Attorney General who shall thereupon institute proceedings against the State bank or out‑of‑state bank, the board of directors thereof, or the trustees under such plan as the nature of the case may require.
(6) The Commissioner shall have the power:
(a) To promulgate reasonable rules for the purpose |
| of administering the provisions of this Act. | |
(a‑5) To impose conditions on any approval issued by |
| the Commissioner if he determines that the conditions are necessary or appropriate. These conditions shall be imposed in writing and shall continue in effect for the period prescribed by the Commissioner. | |
(b) To issue orders against any person, if the |
| Commissioner has reasonable cause to believe that an unsafe or unsound banking practice has occurred, is occurring, or is about to occur, if any person has violated, is violating, or is about to violate any law, rule, or written agreement with the Commissioner, or for the purpose of administering the provisions of this Act and any rule promulgated in accordance with this Act. | |
(b‑1) To enter into agreements with a bank |
| establishing a program to correct the condition of the bank or its practices. | |
(c) To appoint hearing officers to execute any of |
| the powers granted to the Commissioner under this Section for the purpose of administering this Act and any rule promulgated in accordance with this Act and otherwise to authorize, in writing, an officer or employee of the Office of Banks and Real Estate to exercise his powers under this Act. | |
(d) To subpoena witnesses, to compel their |
| attendance, to administer an oath, to examine any person under oath, and to require the production of any relevant books, papers, accounts, and documents in the course of and pursuant to any investigation being conducted, or any action being taken, by the Commissioner in respect of any matter relating to the duties imposed upon, or the powers vested in, the Commissioner under the provisions of this Act or any rule promulgated in accordance with this Act. | |
(e) To conduct hearings.
(7) Whenever, in the opinion of the Commissioner, any director, officer, employee, or agent of a State bank or any subsidiary or bank holding company of the bank or, after May 31, 1997, of any branch of an out‑of‑state bank or any subsidiary or bank holding company of the bank shall have violated any law, rule, or order relating to that bank or any subsidiary or bank holding company of the bank, shall have obstructed or impeded any examination or investigation by the Commissioner, shall have engaged in an unsafe or unsound practice in conducting the business of that bank or any subsidiary or bank holding company of the bank, or shall have violated any law or engaged or participated in any unsafe or unsound practice in connection with any financial institution or other business entity such that the character and fitness of the director, officer, employee, or agent does not assure reasonable promise of safe and sound operation of the State bank, the Commissioner may issue an order of removal. If, in the opinion of the Commissioner, any former director, officer, employee, or agent of a State bank or any subsidiary or bank holding company of the bank, prior to the termination of his or her service with that bank or any subsidiary or bank holding company of the bank, violated any law, rule, or order relating to that State bank or any subsidiary or bank holding company of the bank, obstructed or impeded any examination or investigation by the Commissioner, engaged in an unsafe or unsound practice in conducting the business of that bank or any subsidiary or bank holding company of the bank, or violated any law or engaged or participated in any unsafe or unsound practice in connection with any financial institution or other business entity such that the character and fitness of the director, officer, employee, or agent would not have assured reasonable promise of safe and sound operation of the State bank, the Commissioner may issue an order prohibiting that person from further service with a bank or any subsidiary or bank holding company of the bank as a director, officer, employee, or agent. An order issued pursuant to this subsection shall be served upon the director, officer, employee, or agent. A copy of the order shall be sent to each director of the bank affected by registered mail. The person affected by the action may request a hearing before the State Banking Board within 10 days after receipt of the order. The hearing shall be held by the Board within 30 days after the request has been received by the Board. The Board shall make a determination approving, modifying, or disapproving the order of the Commissioner as its final administrative decision. If a hearing is held by the Board, the Board shall make its determination within 60 days from the conclusion of the hearing. Any person affected by a decision of the Board under this subsection (7) of Section 48 of this Act may have the decision reviewed only under and in accordance with the Administrative Review Law and the rules adopted pursuant thereto. A copy of the order shall also be served upon the bank of which he is a director, officer, employee, or agent, whereupon he shall cease to be a director, officer, employee, or agent of that bank. The Commissioner may institute a civil action against the director, officer, or agent of the State bank or, after May 31, 1997, of the branch of the out‑of‑state bank against whom any order provided for by this subsection (7) of this Section 48 has been issued, and against the State bank or, after May 31, 1997, out‑of‑state bank, to enforce compliance with or to enjoin any violation of the terms of the order. Any person who has been the subject of an order of removal or an order of prohibition issued by the Commissioner under this subsection or Section 5‑6 of the Corporate Fiduciary Act may not thereafter serve as director, officer, employee, or agent of any State bank or of any branch of any out‑of‑state bank, or of any corporate fiduciary, as defined in Section 1‑5.05 of the Corporate Fiduciary Act, or of any other entity that is subject to licensure or regulation by the Commissioner or the Office of Banks and Real Estate unless the Commissioner has granted prior approval in writing.
For purposes of this paragraph (7), "bank holding company" has the meaning prescribed in Section 2 of the Illinois Bank Holding Company Act of 1957.
(8) The Commissioner may impose civil penalties of up to $10,000 against any person for each violation of any provision of this Act, any rule promulgated in accordance with this Act, any order of the Commissioner, or any other action which in the Commissioner's discretion is an unsafe or unsound banking practice.
(9) The Commissioner may impose civil penalties of up to $100 against any person for the first failure to comply with reporting requirements set forth in the report of examination of the bank and up to $200 for the second and subsequent failures to comply with those reporting requirements.
(10) All final administrative decisions of the Commissioner hereunder shall be subject to judicial review pursuant to the provisions of the Administrative Review Law. For matters involving administrative review, venue shall be in either Sangamon County or Cook County.
(11) The endowment fund for the Illinois Bank Examiners' Education Foundation shall be administered as follows:
(a) (Blank).
(b) The Foundation is empowered to receive voluntary |
| contributions, gifts, grants, bequests, and donations on behalf of the Illinois Bank Examiners' Education Foundation from national banks and other persons for the purpose of funding the endowment of the Illinois Bank Examiners' Education Foundation. | |
(c) The aggregate of all special educational fees |
| collected by the Commissioner and property received by the Commissioner on behalf of the Illinois Bank Examiners' Education Foundation under this subsection (11) on or after June 30, 1986, shall be either (i) promptly paid after receipt of the same, accompanied by a detailed statement thereof, into the State Treasury and shall be set apart in a special fund to be known as "The Illinois Bank Examiners' Education Fund" to be invested by either the Treasurer of the State of Illinois in the Public Treasurers' Investment Pool or in any other investment he is authorized to make or by the Illinois State Board of Investment as the board of trustees of the Illinois Bank Examiners' Education Foundation may direct or (ii) deposited into an account maintained in a commercial bank or corporate fiduciary in the name of the Illinois Bank Examiners' Education Foundation pursuant to the order and direction of the Board of Trustees of the Illinois Bank Examiners' Education Foundation. | |
(12) (Blank).
(Source: P.A. 94‑91, eff. 7‑1‑05; 95‑1047, eff. 4‑6‑09.) |
(205 ILCS 5/48.1) (from Ch. 17, par. 360)
Sec. 48.1. Customer financial records; confidentiality.
(a) For the purpose of this Section, the term "financial records" means any original, any copy, or any summary of:
(1) a document granting signature authority over a
| |
(2) a statement, ledger card or other record on any |
| deposit or account, which shows each transaction in or with respect to that account; | |
(3) a check, draft or money order drawn on a bank or |
| issued and payable by a bank; or | |
(4) any other item containing information pertaining |
| to any relationship established in the ordinary course of a bank's business between a bank and its customer, including financial statements or other financial information provided by the customer. | |
(b) This Section does not prohibit:
(1) The preparation, examination, handling or |
| maintenance of any financial records by any officer, employee or agent of a bank having custody of the records, or the examination of the records by a certified public accountant engaged by the bank to perform an independent audit. | |
(2) The examination of any financial records by, or |
| the furnishing of financial records by a bank to, any officer, employee or agent of (i) the Commissioner of Banks and Real Estate, (ii) after May 31, 1997, a state regulatory authority authorized to examine a branch of a State bank located in another state, (iii) the Comptroller of the Currency, (iv) the Federal Reserve Board, or (v) the Federal Deposit Insurance Corporation for use solely in the exercise of his duties as an officer, employee, or agent. | |
(3) The publication of data furnished from financial |
| records relating to customers where the data cannot be identified to any particular customer or account. | |
(4) The making of reports or returns required under |
| Chapter 61 of the Internal Revenue Code of 1986. | |
(5) Furnishing information concerning the dishonor |
| of any negotiable instrument permitted to be disclosed under the Uniform Commercial Code. | |
(6) The exchange in the regular course of business |
| of (i) credit information between a bank and other banks or financial institutions or commercial enterprises, directly or through a consumer reporting agency or (ii) financial records or information derived from financial records between a bank and other banks or financial institutions or commercial enterprises for the purpose of conducting due diligence pursuant to a purchase or sale involving the bank or assets or liabilities of the bank. | |
(7) The furnishing of information to the appropriate |
| law enforcement authorities where the bank reasonably believes it has been the victim of a crime. | |
(8) The furnishing of information under the Uniform |
| Disposition of Unclaimed Property Act. | |
(9) The furnishing of information under the Illinois |
| Income Tax Act and the Illinois Estate and Generation‑Skipping Transfer Tax Act. | |
(10) The furnishing of information under the federal |
| Currency and Foreign Transactions Reporting Act Title 31, United States Code, Section 1051 et seq. | |
(11) The furnishing of information under any other |
| statute that by its terms or by regulations promulgated thereunder requires the disclosure of financial records other than by subpoena, summons, warrant, or court order. | |
(12) The furnishing of information about the |
| existence of an account of a person to a judgment creditor of that person who has made a written request for that information. | |
(13) The exchange in the regular course of business |
| of information between commonly owned banks in connection with a transaction authorized under paragraph (23) of Section 5 and conducted at an affiliate facility. | |
(14) The furnishing of information in accordance |
| with the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996. Any bank governed by this Act shall enter into an agreement for data exchanges with a State agency provided the State agency pays to the bank a reasonable fee not to exceed its actual cost incurred. A bank providing information in accordance with this item shall not be liable to any account holder or other person for any disclosure of information to a State agency, for encumbering or surrendering any assets held by the bank in response to a lien or order to withhold and deliver issued by a State agency, or for any other action taken pursuant to this item, including individual or mechanical errors, provided the action does not constitute gross negligence or willful misconduct. A bank shall have no obligation to hold, encumber, or surrender assets until it has been served with a subpoena, summons, warrant, court or administrative order, lien, or levy. | |
(15) The exchange in the regular course of business |
| of information between a bank and any commonly owned affiliate of the bank, subject to the provisions of the Financial Institutions Insurance Sales Law. | |
(16) The furnishing of information to law |
| enforcement authorities, the Illinois Department on Aging and its regional administrative and provider agencies, the Department of Human Services Office of Inspector General, or public guardians: (i) upon subpoena by the investigatory entity or the guardian, or (ii) if there is suspicion by the bank that a customer who is an elderly or disabled person has been or may become the victim of financial exploitation. For the purposes of this item (16), the term: (i) "elderly person" means a person who is 60 or more years of age, (ii) "disabled person" means a person who has or reasonably appears to the bank to have a physical or mental disability that impairs his or her ability to seek or obtain protection from or prevent financial exploitation, and (iii) "financial exploitation" means tortious or illegal use of the assets or resources of an elderly or disabled person, and includes, without limitation, misappropriation of the elderly or disabled person's assets or resources by undue influence, breach of fiduciary relationship, intimidation, fraud, deception, extortion, or the use of assets or resources in any manner contrary to law. A bank or person furnishing information pursuant to this item (16) shall be entitled to the same rights and protections as a person furnishing information under the Elder Abuse and Neglect Act, the Illinois Domestic Violence Act of 1986, and the Abuse of Adults with Disabilities Intervention Act. | |
(17) The disclosure of financial records or |
| information as necessary to effect, administer, or enforce a transaction requested or authorized by the customer, or in connection with: | |
(A) servicing or processing a financial product |
| or service requested or authorized by the customer; | |
(B) maintaining or servicing a customer's |
| account with the bank; or | |
(C) a proposed or actual securitization or |
| secondary market sale (including sales of servicing rights) related to a transaction of a customer. | |
Nothing in this item (17), however, authorizes the |
| sale of the financial records or information of a customer without the consent of the customer. | |
(18) The disclosure of financial records or |
| information as necessary to protect against actual or potential fraud, unauthorized transactions, claims, or other liability. | |
(19)(a) The disclosure of financial records or |
| information related to a private label credit program between a financial institution and a private label party in connection with that private label credit program. Such information is limited to outstanding balance, available credit, payment and performance and account history, product references, purchase information, and information related to the identity of the customer. | |
(b)(l) For purposes of this paragraph (19) of |
| subsection (b) of Section 48.1, a "private label credit program" means a credit program involving a financial institution and a private label party that is used by a customer of the financial institution and the private label party primarily for payment for goods or services sold, manufactured, or distributed by a private label party. | |
(2) For purposes of this paragraph (19) of |
| subsection (b) of Section 48.l, a "private label party" means, with respect to a private label credit program, any of the following: a retailer, a merchant, a manufacturer, a trade group, or any such person's affiliate, subsidiary, member, agent, or service provider. | |
(c) Except as otherwise provided by this Act, a bank may not disclose to any person, except to the customer or his duly authorized agent, any financial records or financial information obtained from financial records relating to that customer of that bank unless:
(1) the customer has authorized disclosure to the |
| |
(2) the financial records are disclosed in response |
| to a lawful subpoena, summons, warrant, citation to discover assets, or court order which meets the requirements of subsection (d) of this Section; or | |
(3) the bank is attempting to collect an obligation |
| owed to the bank and the bank complies with the provisions of Section 2I of the Consumer Fraud and Deceptive Business Practices Act. | |
(d) A bank shall disclose financial records under paragraph (2) of subsection (c) of this Section under a lawful subpoena, summons, warrant, citation to discover assets, or court order only after the bank mails a copy of the subpoena, summons, warrant, citation to discover assets, or court order to the person establishing the relationship with the bank, if living, and, otherwise his personal representative, if known, at his last known address by first class mail, postage prepaid, unless the bank is specifically prohibited from notifying the person by order of court or by applicable State or federal law. A bank shall not mail a copy of a subpoena to any person pursuant to this subsection if the subpoena was issued by a grand jury under the Statewide Grand Jury Act.
(e) Any officer or employee of a bank who knowingly and willfully furnishes financial records in violation of this Section is guilty of a business offense and, upon conviction, shall be fined not more than $1,000.
(f) Any person who knowingly and willfully induces or attempts to induce any officer or employee of a bank to disclose financial records in violation of this Section is guilty of a business offense and, upon conviction, shall be fined not more than $1,000.
(g) A bank shall be reimbursed for costs that are reasonably necessary and that have been directly incurred in searching for, reproducing, or transporting books, papers, records, or other data of a customer required or requested to be produced pursuant to a lawful subpoena, summons, warrant, citation to discover assets, or court order. The Commissioner shall determine the rates and conditions under which payment may be made.
(Source: P.A. 94‑495, eff. 8‑8‑05; 94‑851, eff. 6‑13‑06; 95‑661, eff. 1‑1‑08.) |
(205 ILCS 5/48.2) (from Ch. 17, par. 360.1)
Sec. 48.2. Prohibition against certain activities.
(a) Any bank, subsidiary, affiliate, officer or employee of such bank subject to this Act shall not:
(1) grant any loan on the prior condition, agreement |
| or understanding that the borrower contract with any specific person or organization for the following: | |
(A) insurance services of an agent or broker;
(B) legal services rendered to the borrower;
(C) services of a real estate agent or broker; or
(D) real estate or property management services;
(2) require that insurance services, legal services, |
| real estate services or property management services be placed with any subsidiary, affiliate, officer or employee of any bank. | |
(b) Any bank or subsidiary, affiliate, employee, officer, banking house, branch bank, branch office, additional office or agency of such bank that is transacting an insurance business in this State shall comply with Article XLIV of the Illinois Insurance Code.
(c) Any officer or employee of a bank or its affiliates or subsidiaries who violates this Section is guilty of a business offense, and upon conviction shall be fined not more than $1,000. This Section does not create a private cause of action for civil damages.
(d) In any contract or loan which is secured by a mortgage, deed of trust, or conveyance in the nature of a mortgage, on residential real estate, the interest which is computed, calculated, charged, or collected pursuant to such contract or loan, or pursuant to any regulation or rule promulgated pursuant to this Act, may not be computed, calculated, charged or collected for any period of time occurring after the date on which the total indebtedness, with the exception of late payment penalties, is paid in full. For purposes of this subsection (d) of this Section 48.2, a prepayment shall mean the payment of the total indebtedness, with the exception of late payment penalties if incurred or charged, on any date before the date specified in the contract or loan agreement on which the total indebtedness shall be paid in full, or before the date on which all payments, if timely made, shall have been made. In the event of a prepayment of the indebtedness which is made on a date after the date on which interest on the indebtedness was last computed, calculated, charged, or collected but before the next date on which interest on the indebtedness was to be calculated, computed, charged, or collected, the lender may calculate, charge and collect interest on the indebtedness for the period which elapsed between the date on which the prepayment is made and the date on which interest on the indebtedness was last computed, calculated, charged or collected at a rate equal to 1/360 of the annual rate for each day which so elapsed, which rate shall be applied to the indebtedness outstanding as of the date of prepayment. The lender shall refund to the borrower any interest charged or collected which exceeds that which the lender may charge or collect pursuant to the preceding sentence. The provisions of this amendatory Act of 1985 shall apply only to contracts or loans entered into on or after January 1, 1986.
(e) Any bank, affiliate or subsidiary of such bank which shall engage in making residential mortgage financing transactions, shall with respect to each such transaction, provide the following:
(1) if a contractual obligation is intended to a |
| borrower, a mortgage commitment which shall set forth the material terms, conditions and contingencies of such commitment; | |
(2) if the servicing of a residential mortgage shall |
| be transferred from the original mortgagee, within 45 days of such transfer, written notice sent by certified mail, return receipt requested, to the mortgagor at the address of the property, unless the mortgagor shall have directed correspondence from the mortgagee shall be sent to another address, which notice shall set forth: the name and address of the transferee; the name, address and telephone number to which inquiries by the residential mortgagor should be addressed; and the name and address to which the next 3 monthly installments are to be submitted to the transferee and the amount of each of such monthly installment; and | |
(3) if the servicing of a residential mortgage shall |
| be transferred again or if the information in paragraph (2) above shall change, the notice with the corrected information shall be provided within 45 days of such subsequent transfer or change in information by the transferee of the servicing of the mortgage at that time. | |
(Source: P.A. 90‑41, eff. 10‑1‑97.) |
(205 ILCS 5/48.3) (from Ch. 17, par. 360.2)
Sec. 48.3. Disclosure of reports of examinations and confidential supervisory information; limitations.
(a) Any report of examination, visitation, or investigation prepared by the Commissioner under this Act, the Electronic Fund Transfer Act, the Corporate Fiduciary Act, the Illinois Bank Holding Company Act of 1957, and the Foreign Banking Office Act, any report of examination, visitation, or investigation prepared by the state regulatory authority of another state that examines a branch of an Illinois State bank in that state, any document or record prepared or obtained in connection with or relating to any examination, visitation, or investigation, and any record prepared or obtained by the Commissioner to the extent that the record summarizes or contains information derived from any report, document, or record described in this subsection shall be deemed "confidential supervisory information". Confidential supervisory information shall not include any information or record routinely prepared by a bank or other financial institution and maintained in the ordinary course of business or any information or record that is required to be made publicly available pursuant to State or federal law or rule. Confidential supervisory information shall be the property of the Commissioner and shall only be disclosed under the circumstances and for the purposes set forth in this Section.
The Commissioner may disclose confidential supervisory information only under the following circumstances:
(1) The Commissioner may furnish confidential |
| supervisory information to the Board of Governors of the Federal Reserve System, the federal reserve bank of the federal reserve district in which the State bank is located or in which the parent or other affiliate of the State bank is located, any official or examiner thereof duly accredited for the purpose, or any other state regulator, federal regulator, or in the case of a foreign bank possessing a certificate of authority pursuant to the Foreign Banking Office Act or a license pursuant to the Foreign Bank Representative Office Act, the bank regulator in the country where the foreign bank is chartered, that the Commissioner determines to have an appropriate regulatory interest. Nothing contained in this Act shall be construed to limit the obligation of any member State bank to comply with the requirements relative to examinations and reports of the Federal Reserve Act and of the Board of Governors of the Federal Reserve System or the federal reserve bank of the federal reserve district in which the bank is located, nor to limit in any way the powers of the Commissioner with reference to examinations and reports. | |
(2) The Commissioner may furnish confidential |
| supervisory information to the United States, any agency thereof that has insured a bank's deposits in whole or in part, or any official or examiner thereof duly accredited for the purpose. Nothing contained in this Act shall be construed to limit the obligation relative to examinations and reports of any State bank, deposits in which are to any extent insured by the United States, any agency thereof, nor to limit in any way the powers of the Commissioner with reference to examination and reports of such bank. | |
(3) The Commissioner may furnish confidential |
| supervisory information to the appropriate law enforcement authorities when the Commissioner reasonably believes a bank, which the Commissioner has caused to be examined, has been a victim of a crime. | |
(4) The Commissioner may furnish confidential |
| supervisory information relating to a bank or other financial institution, which the Commissioner has caused to be examined, to be sent to the administrator of the Uniform Disposition of Unclaimed Property Act. | |
(5) The Commissioner may furnish confidential |
| supervisory information relating to a bank or other financial institution, which the Commissioner has caused to be examined, relating to its performance of obligations under the Illinois Income Tax Act and the Illinois Estate and Generation‑Skipping Transfer Tax Act to the Illinois Department of Revenue. | |
(6) The Commissioner may furnish confidential |
| supervisory information relating to a bank or other financial institution, which the Commissioner has caused to be examined, under the federal Currency and Foreign Transactions Reporting Act, Title 31, United States Code, Section 1051 et seq. | |
(6.5) The Commissioner may furnish confidential |
| supervisory information to any other agency or entity that the Commissioner determines to have a legitimate regulatory interest. | |
(7) The Commissioner may furnish confidential |
| supervisory information under any other statute that by its terms or by regulations promulgated thereunder requires the disclosure of financial records other than by subpoena, summons, warrant, or court order. | |
(8) At the request of the affected bank or other |
| financial institution, the Commissioner may furnish confidential supervisory information relating to a bank or other financial institution, which the Commissioner has caused to be examined, in connection with the obtaining of insurance coverage or the pursuit of an insurance claim for or on behalf of the bank or other financial institution; provided that, when possible, the Commissioner shall disclose only relevant information while maintaining the confidentiality of financial records not relevant to such insurance coverage or claim and, when appropriate, may delete identifying data relating to any person or individual. | |
(9) The Commissioner may furnish a copy of a report |
| of any examination performed by the Commissioner of the condition and affairs of any electronic data processing entity to the banks serviced by the electronic data processing entity. | |
(10) In addition to the foregoing circumstances, the |
| Commissioner may, but is not required to, furnish confidential supervisory information under the same circumstances authorized for the bank or financial institution pursuant to subsection (b) of this Section, except that the Commissioner shall provide confidential supervisory information under circumstances described in paragraph (3) of subsection (b) of this Section only upon the request of the bank or other financial institution. | |
(b) A bank or other financial institution or its officers, agents, and employees may disclose confidential supervisory information only under the following circumstances:
(1) to the board of directors of the bank or other |
| financial institution, as well as the president, vice‑president, cashier, and other officers of the bank or other financial institution to whom the board of directors may delegate duties with respect to compliance with recommendations for action, and to the board of directors of a bank holding company that owns at least 80% of the outstanding stock of the bank or other financial institution; | |
(2) to attorneys for the bank or other financial |
| institution and to a certified public accountant engaged by the State bank or financial institution to perform an independent audit provided that the attorney or certified public accountant shall not permit the confidential supervisory information to be further disseminated; | |
(3) to any person who seeks to acquire a controlling |
| interest in, or who seeks to merge with, the bank or financial institution, provided that all attorneys, certified public accountants, officers, agents, or employees of that person shall agree to be bound to respect the confidentiality of the confidential supervisory information and to not further disseminate the information therein contained; | |
(4) (blank); or
(5) to the bank's insurance company in relation to |
| an insurance claim or the effort by the bank to procure insurance coverage, provided that, when possible, the bank shall disclose only information that is relevant to the insurance claim or that is necessary to procure the insurance coverage, while maintaining the confidentiality of financial information pertaining to customers. When appropriate, the bank may delete identifying data relating to any person. | |
The disclosure of confidential supervisory information by a bank or other financial institution pursuant to this subsection (b) and the disclosure of information to the Commissioner or other regulatory agency in connection with any examination, visitation, or investigation shall not constitute a waiver of any legal privilege otherwise available to the bank or other financial institution with respect to the information.
(c) (1) Notwithstanding any other provision of this Act or any other law, confidential supervisory information shall be the property of the Commissioner and shall be privileged from disclosure to any person except as provided in this Section. No person in possession of confidential supervisory information may disclose that information for any reason or under any circumstances not specified in this Section without the prior authorization of the Commissioner. Any person upon whom a demand for production of confidential supervisory information is made, whether by subpoena, order, or other judicial or administrative process, must withhold production of the confidential supervisory information and must notify the Commissioner of the demand, at which time the Commissioner is authorized to intervene for the purpose of enforcing the limitations of this Section or seeking the withdrawal or termination of the attempt to compel production of the confidential supervisory information.
(2) Any request for discovery or disclosure of confidential supervisory information, whether by subpoena, order, or other judicial or administrative process, shall be made to the Commissioner, and the Commissioner shall determine within 15 days whether to disclose the information pursuant to procedures and standards that the Commissioner shall establish by rule. If the Commissioner determines that such information will not be disclosed, the Commissioner's decision shall be subject to judicial review under the provisions of the Administrative Review Law, and venue shall be in either Sangamon County or Cook County.
(3) Any court order that compels disclosure of confidential supervisory information may be immediately appealed by the Commissioner, and the order shall be automatically stayed pending the outcome of the appeal.
(d) If any officer, agent, attorney, or employee of a bank or financial institution knowingly and willfully furnishes confidential supervisory information in violation of this Section, the Commissioner may impose a civil monetary penalty up to $1,000 for the violation against the officer, agent, attorney, or employee.
(Source: P.A. 90‑301, eff. 8‑1‑97; 91‑201, eff. 1‑1‑00.) |
(205 ILCS 5/53) (from Ch. 17, par. 365)
Sec. 53. Commissioner's possession; power. The Commissioner may take possession and control of a state bank and its assets, by posting upon the premises a notice reciting that he is assuming possession pursuant to this Act, and the time when his possession shall be deemed to commence, which time shall not pre‑date the posting of the notice. Promptly after taking possession and control of a bank, if the Federal Deposit Insurance Corporation is not appointed as receiver, the Commissioner shall file a copy of the notice posted upon the premises in the circuit court in the county in which the bank is located, and thereupon the clerk of such court shall note the filing thereof upon the records of the court, and shall enter such cause as a court action upon the dockets of such court under the name and style of "In the matter of the possession and control of the Commissioner of Banks and Real Estate of ...." (inserting the name of such bank), and thereupon the court wherein such cause is docketed shall be vested with jurisdiction to hear and determine all issues and matters pertaining to or connected with the Commissioner's possession and control of such bank as provided in this Act, and such further issues and matters pertaining to or connected with the Commissioner's possession and control as may be submitted to such court for its adjudication by the Commissioner. When the Commissioner has taken possession and control of a bank and its assets, he shall be vested with the full powers of management and control, including without limiting the generality thereof, the following:
(1) the power to continue or to discontinue the |
| |
(2) the power to stop or to limit the payment of its |
| obligations, provided, however with respect to a qualified financial contract between any party and a bank or banking office, the branch or agency of which the Commissioner has taken possession and control, which party has a perfected security interest in collateral or other valid lien or security interest in collateral enforceable against third parties pursuant to a security arrangement related to that qualified financial contract, the party may retain all of the collateral and upon repudiation or termination of that qualified financial contract in accordance with its terms apply the collateral in satisfaction of any claims secured by the collateral; in no event shall the total amount so applied exceed the global net payment obligation, if any; | |
(3) the power to collect and to use its assets and |
| to give valid receipts and acquittances therefor; | |
(4) the power to employ and to pay any necessary |
| |
(5) the power to execute any instrument in the name |
| |
(6) the power to commence, defend and conduct in its |
| name any action or proceeding in which it may be a party; | |
(7) the power, upon the order of the court, to sell |
| and convey its assets in whole or in part, and to sell or compound bad or doubtful debts upon such terms and conditions as may be fixed in such order; | |
(8) the power, upon the order of the court, to make |
| and to carry out agreements with other banks or with the United States or any agency thereof which shall have insured the bank's deposits, in whole or in part, for the payment or assumption of the bank's liabilities, in whole or in part, and to transfer assets and to make guaranties, in whole or in part, and to transfer assets and to make guaranties in connection therewith; | |
(9) the power, upon the order of the court, to |
| borrow money in the name of the bank and to pledge its assets as security for the loan; | |
(10) the power to terminate his possession and |
| control by restoring the bank to its board of directors; | |
(11) the power to reorganize the bank as provided in |
| |
(12) the power to appoint a receiver and to order |
| liquidation of the bank as provided in this Act; and | |
(13) the power, upon the order of the court and |
| without the appointment of a receiver, to determine that the bank has been closed for the purpose of liquidation without adequate provision being made for payment of its depositors, and thereupon the bank shall be deemed to have been closed on account of inability to meet the demands of its depositors. | |
As soon as practical after taking possession, the Commissioner shall make his examination of the condition of the bank and an inventory of the assets. Unless the time shall be extended by order of the court and, unless the Commissioner shall have otherwise settled the affairs of a bank pursuant to the provisions of this Act, at the termination of thirty days from the time of taking possession and control of a bank for the purpose of examination, reorganization or liquidation through receivership, the Commissioner shall either terminate his possession and control by restoring the bank to its board of directors or appoint a receiver and order the liquidation of the bank as provided in this Act. All necessary and reasonable expenses of the Commissioner's possession and control and of its reorganization shall be borne by the bank and may be paid by the Commissioner from its assets. If the Federal Deposit Insurance Corporation is appointed by the Commissioner as receiver of a State bank, or the Federal Deposit Insurance Corporation takes possession of such State bank, the receivership proceedings and the powers and duties of the Federal Deposit Insurance Corporation shall be governed by the Federal Deposit Insurance Act and regulations promulgated thereunder rather than the provisions of this Act.
(Source: P.A. 92‑483, eff. 8‑23‑01.) |
(205 ILCS 5/68) (from Ch. 17, par. 380)
Sec. 68. Voluntary dissolution. A state bank may elect to dissolve voluntarily and wind up its affairs by the act of the bank in the following manner:
(1) The board of directors shall adopt a resolution recommending that the bank be dissolved voluntarily and directing that the question of such dissolution be submitted to a vote at a meeting of stockholders which may be either an annual or special meeting.
(2) Written or printed notice stating that the purpose, or one of the purposes, of such meeting is to consider the advisability of voluntarily dissolving the bank shall be given to each stockholder of record entitled to vote at such meeting within the time and in the manner provided in this Act for the giving of notice of meetings of stockholders. If such meeting be an annual meeting, such purpose may be included in the notice of such annual meeting.
(3) At such meeting a vote of the stockholders entitled to vote thereat shall be taken on a resolution to dissolve voluntarily the bank, which shall require for its adoption the affirmative vote of the holders of at least two‑thirds of the outstanding shares entitled to vote at such meeting, unless any class of shares is entitled to vote as a class in respect thereof, in which event the resolution shall require for its adoption the affirmative vote of the holders of at least two‑thirds of the outstanding shares of each class of shares entitled to vote as a class in respect thereof, and of the total outstanding shares entitled to vote at such meeting.
(4) Upon the adoption of such resolution, a statement of intent to dissolve shall be executed in duplicate by the bank by its president or a vice‑president, and verified by him, and the corporate seal shall be thereto affixed, attested by its secretary or cashier which shall set forth:
(a) The name of the bank.
(b) The names and respective addresses, including |
| street and number, if any, of its officers. | |
(c) The names and respective addresses, including |
| street and number, if any, of its directors. | |
(d) A copy of the resolution of the stockholders |
| authorizing the voluntary dissolution of the bank. | |
(e) The number of shares outstanding, and, if the |
| shares of any class are entitled to vote as a class, the number of shares of each such class. | |
(f) The number of shares voted for and against the |
| voluntary dissolution of the bank, respectively, and, if the shares of any class are entitled to vote as a class, the number of shares of each such class voted for and against the voluntary dissolution of the bank, respectively. | |
(g) A statement of all of the liabilities of the |
| bank, as shown by its records. | |
(h) An executed copy of the contract, if any there |
| be, with another state or national bank, or with the Federal Deposit Insurance Corporation or with both by which another state or national bank assumes all the liabilities of the dissolving state bank. | |
(i) If there be no contract, as provided for in |
| subsection (h) of this subsection (4) a statement that the dissolving bank proposes to deposit in cash with the Commissioner the whole amount of all the liabilities of the dissolving bank as shown by its records, other than the liabilities of the dissolving bank to its stockholders as such. | |
(j) The name of an agent for the bank in voluntary |
| dissolution who is appointed to receive service of process and any communications relating to the bank during the pendency of the dissolution and until the Commissioner shall revoke the charter pursuant to Section 69 of this Act. | |
(5) A bank may elect to dissolve voluntarily and wind up its affairs by the written consent of the holders of record of all of its outstanding shares without compliance with the provisions of subsections (1), (2), and (3) of this Section 68 in which a statement as required in subsection (4) setting forth the matter in subsections (4)(a), (4)(b), (4)(c), (4)(g), (4)(h), and (4)(i) shall be executed in duplicate and signed by the holders of record of all of its outstanding shares.
(6) Duplicate originals of the statement of intent to dissolve whether pursuant to subsection (4) or pursuant to subsection (5), as the case may be, shall be delivered to the Commissioner for his approval. If the Commissioner disapproves the dissolution, he shall state his objections and give an opportunity to the dissolving bank to amend its statement of intent to dissolve to obviate such objections.
(7) If the Commissioner finds that the statement of intent to dissolve conforms to the provisions of this Act when all fees and charges have been paid as in this Act prescribed, and when the deposit required in subsection (4)(i) shall have been made with the Commissioner or, if there is a contract pursuant to subsection (4)(h), when the Commissioner has approved such contract as being in compliance with the provisions of this Act and not prejudicial to creditors, the Commissioner shall indorse upon each of such duplicate originals the word "Approved" and the month, day and year of his approval thereof. Thereupon the Commissioner shall file and record one of such duplicate originals in the office for the recording of deeds in the county where the dissolving bank is organized, and the original or a certified copy thereof shall be evidence in all courts of the dissolution of such bank.
(8) The Commissioner shall publish notice that the statement of intent to dissolve has been approved and that the liabilities of the dissolving bank as shown by its records will be redeemed by the Commissioner or by the bank which has assumed the liabilities of the dissolving bank as shown by its records, other than the liabilities of the dissolving bank to its stockholders as such.
(Source: P.A. 89‑364, eff. 8‑18‑95.) |
