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A BILL TO BE ENTITLED
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AN ACT
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relating to revising provisions in certain laws governing certain |
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banks and trust companies in this state to conform to changes in |
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terminology made by the Business Organizations Code. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. The heading to Section 32.002, Finance Code, is |
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amended to read as follows: |
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Sec. 32.002. CERTIFICATE OF FORMATION [ARTICLES OF
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ASSOCIATION] OF STATE BANK. |
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SECTION 2. Sections 32.002(a) and (c), Finance Code, are |
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amended to read as follows: |
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(a) The certificate of formation [articles of association] |
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of a state bank must be signed and acknowledged by each organizer |
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and must contain: |
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(1) the name of the bank, subject to Subsection (b); |
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(2) the period of the bank's duration, which may be |
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perpetual, subject to Subsection (c); |
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(3) the powers of the bank, which may be stated as: |
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(A) all powers granted by law to a state bank; or |
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(B) a list of the specific powers under Section |
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32.001 that the bank chooses to exercise; |
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(4) the aggregate number of shares that the bank will |
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be authorized to issue and the number of classes of shares, which |
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may be one or more; |
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(5) if the shares are to be divided into classes: |
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(A) the designation of each class and statement |
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of the preferences, limitations, and relative rights of the shares |
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of each class, which in the case of a limited banking association |
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may be more fully set forth in the participation agreement; |
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(B) the number of shares of each class; and |
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(C) a statement of the par value of the shares of |
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each class or that the shares are to be without par value; |
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(6) any provision limiting or denying to shareholders |
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the preemptive right to acquire additional or treasury shares of |
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the bank; |
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(7) any provision granting the right of shareholders |
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to cumulative voting in the election of directors; |
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(8) the aggregate amount of consideration to be |
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received for all shares initially issued by the bank and a statement |
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that: |
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(A) all authorized shares have been subscribed; |
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and |
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(B) all subscriptions received have been |
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irrevocably paid in cash; |
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(9) any provision that is otherwise required by this |
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subtitle to be set forth in the certificate of formation [articles
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of association]; |
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(10) the street address of the bank's initial home |
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office; |
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(11) the number of directors constituting the initial |
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board and the names and street addresses of the persons who are to |
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serve as directors until the first annual meeting of shareholders |
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or until successor directors have been elected and qualified; and |
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(12) subject to Section 32.008, any provision |
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consistent with law that the organizers elect to set forth in the |
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certificate of formation [articles of association] for the |
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regulation of the internal affairs of the bank, including |
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provisions permissible under the Business Organizations Code for: |
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(A) a for-profit corporation, in the case of a |
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proposed banking association; or |
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(B) a limited liability company, in the case of a |
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proposed limited banking association. |
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(c) A state bank, other than a private bank, organized |
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before August 31, 1993, is considered to have perpetual existence, |
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notwithstanding a contrary statement in its articles of |
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association, unless after September 1, 1995, the bank amends its |
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certificate of formation or articles of association to reaffirm its |
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limited duration. |
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SECTION 3. Section 32.008, Finance Code, is amended to read |
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as follows: |
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Sec. 32.008. APPLICATION OF GENERAL CORPORATE LAW. |
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(a) The Business Organizations Code applies to a banking |
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association as if it were a for-profit corporation, and to a limited |
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banking association as if it were a limited liability company, to |
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the extent not inconsistent with this subtitle or the proper |
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business of a state bank, except that: |
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(1) a reference in the Business Organizations Code to |
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the secretary of state means the banking commissioner unless the |
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context requires otherwise; and |
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(2) the right of shareholders to cumulative voting in |
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the election of directors exists only if granted by the bank's |
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certificate of formation [articles of association]. |
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(b) The finance commission may adopt rules to limit or |
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refine the applicability of the laws listed by Subsection (a) [or
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(d)] to a state bank or to alter or supplement the procedures and |
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requirements of those laws applicable to an action taken under this |
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chapter. |
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(c) Unless expressly authorized by this subtitle or a rule |
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adopted under this subtitle, a state bank may not take an action |
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authorized by a law listed by Subsection (a) [or (d)] regarding its |
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corporate status, its capital structure, or a matter of corporate |
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governance, of the type for which those laws would require a filing |
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with the secretary of state if the bank were a filing entity |
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[business corporation], without submitting the filing to the |
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banking commissioner and obtaining the banking commissioner's |
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prior written approval of the action. |
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(d) In this subtitle, a reference to a term or phrase listed |
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in a subdivision of Section 1.006, Business Organizations Code, |
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includes a synonymous term or phrase referenced by the same |
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subdivision in Section 1.006 of that code. |
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SECTION 4. The heading to Subchapter B, Chapter 32, Finance |
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Code, is amended to read as follows: |
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SUBCHAPTER B. AMENDMENT OF CERTIFICATE [ARTICLES]; CHANGES IN |
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CAPITAL AND SURPLUS |
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SECTION 5. The heading to Section 32.101, Finance Code, is |
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amended to read as follows: |
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Sec. 32.101. AMENDMENT OR RESTATEMENT OF STATE BANK |
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CERTIFICATE OF FORMATION [ARTICLES OF ASSOCIATION]. |
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SECTION 6. Sections 32.101(a), (b), and (c), Finance Code, |
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are amended to read as follows: |
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(a) A state bank that has been granted a certificate of |
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authority may amend or restate its certificate of formation |
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[articles of association] for any lawful purpose, including the |
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creation of authorized but unissued shares or participation shares |
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in one or more classes or series. |
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(b) An amendment authorizing the issuance of shares or |
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participation shares in series must contain: |
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(1) the designation of each series and a statement of |
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any variations in the preferences, limitations, and relative rights |
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among series to the extent that the preferences, limitations, and |
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relative rights are to be established in the certificate of |
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formation [articles of association]; and |
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(2) a statement of any authority to be vested in the |
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bank's board to establish series and determine the preferences, |
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limitations, and relative rights of each series. |
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(c) Amendment or restatement of the certificate of |
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formation [articles of association] of a state bank and approval of |
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the bank's board and shareholders must be made or obtained as |
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provided by the Business Organizations Code [for the amendment or
|
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restatement of a certificate of formation by a for-profit
|
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corporation] except as otherwise provided by this subtitle or rules |
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adopted under this subtitle. The original and one copy of the |
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certificate [articles] of amendment or restated certificate of |
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formation [articles of association] must be filed with the banking |
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commissioner for approval. Unless the submission presents novel or |
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unusual questions, the banking commissioner shall approve or reject |
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the amendment or restatement not later than the 31st day after the |
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date the banking commissioner considers the submission |
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informationally complete and accepted for filing. The banking |
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commissioner may require the submission of additional information |
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as considered necessary to an informed decision to approve or |
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reject any amendment or restatement of a certificate of formation |
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[articles of association] under this section. If the banking |
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commissioner finds that the amendment or restatement conforms to |
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law and any conditions imposed by the banking commissioner, and any |
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required filing fee has been paid, the banking commissioner shall: |
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(1) endorse the face of the original and copy of the |
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amendment or restatement with the date of approval and the word |
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"Approved"; |
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(2) file the original of the amendment or restatement |
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in the department's records; and |
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(3) deliver a certified copy of the amendment or |
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restatement to the bank. |
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SECTION 7. Sections 32.102(a) and (b), Finance Code, are |
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amended to read as follows: |
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(a) If the certificate of formation [articles of
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association] expressly gives [give] the board of a state bank |
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authority to establish shares in series and determine the |
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preferences, limitations, and relative rights of each series, the |
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board may do so only in compliance with this section and any rules |
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adopted under this subtitle. |
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(b) A series of shares may be established in the manner |
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provided by the Business Organizations Code [as if the state bank
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were a domestic entity], but the shares of the series may not be |
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issued and sold without the prior written approval of the banking |
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commissioner under Section 32.103. The bank shall file the |
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original and one copy of the statement of action required by the |
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Business Organizations Code with the banking commissioner. |
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SECTION 8. Section 32.301(b), Finance Code, is amended to |
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read as follows: |
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(b) Implementation of the merger by the parties and approval |
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of the board, shareholders, or owners of the parties must be made or |
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obtained in accordance with the Business Organizations Code as if |
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the state bank were a filing [domestic] entity and all other parties |
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to the merger were foreign entities, except as may be otherwise |
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provided by applicable rules. |
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SECTION 9. Sections 32.302(a) and (c), Finance Code, are |
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amended to read as follows: |
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(a) If the merger is subject to the prior written approval |
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of the banking commissioner, the original certificate [articles] of |
|
merger and a number of copies of the certificate [articles] equal to |
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the number of surviving, new, and acquiring entities must be filed |
|
with the banking commissioner. On this filing, the banking |
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commissioner shall investigate the condition of the merging |
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parties. The banking commissioner may require the submission of |
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additional information the banking commissioner determines |
|
necessary to an informed decision to approve or reject a merger |
|
under this subchapter. |
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(c) If the banking commissioner approves the merger and |
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finds that all required filing fees and investigative costs have |
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been paid, the banking commissioner shall: |
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(1) endorse the face of the original and each copy of |
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the certificate [articles] of merger with the date of approval and |
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the word "Approved"; |
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(2) file the original of the certificate [articles] of |
|
merger in the department's records; and |
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(3) deliver a certified copy of the certificate |
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[articles] of merger to each surviving, new, or acquiring entity. |
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SECTION 10. Section 32.501(b), Finance Code, is amended to |
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read as follows: |
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(b) The merger or conversion by the state bank must be made |
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and approval of its board and shareholders must be obtained in |
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accordance with the Business Organizations Code as if the state |
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bank were a filing [domestic] entity and all other parties to the |
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transaction, if any, were foreign entities, except as provided by |
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rule. For purposes of this subsection, a conversion is considered |
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a merger into the successor form of financial institution. |
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SECTION 11. Section 33.204(c), Finance Code, is amended to |
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read as follows: |
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(c) The certificate of formation [articles of association], |
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bylaws, and participation agreement of a limited banking |
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association may use "director" instead of "manager" and "board" |
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instead of "board of managers." |
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SECTION 12. Section 33.209, Finance Code, is amended to |
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read as follows: |
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Sec. 33.209. ALLOCATION OF PROFITS AND LOSSES. The profits |
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and losses of a limited banking association may be allocated among |
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the participants and among classes of participants as provided by |
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the participation agreement. Without the prior written approval of |
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the banking commissioner to use a different allocation method, the |
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profits and losses must be allocated according to the relative |
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interests of the participants as reflected in the certificate of |
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formation [articles of association] and related documents filed |
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with and approved by the banking commissioner. |
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SECTION 13. Section 33.210, Finance Code, is amended to |
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read as follows: |
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Sec. 33.210. DISTRIBUTIONS. Subject to Section 32.103, |
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distributions of cash or other assets of a limited banking |
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association may be made to the participants as provided by the |
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participation agreement. Without the prior written approval of the |
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banking commissioner to use a different distribution method, |
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distributions must be made to the participants according to the |
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relative interests of the participants as reflected in the |
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certificate of formation [articles of association] and related |
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documents filed with and approved by the banking commissioner. |
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SECTION 14. Section 36.312(a), Finance Code, is amended to |
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read as follows: |
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(a) The priority of distribution of assets from the estate |
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of a bank the deposits of which are not insured by the Federal |
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Deposit Insurance Corporation or its successor shall be in |
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accordance with the order of each class as provided by this section. |
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Every claim in each class shall be paid in full, or adequate money |
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shall be retained for that payment, before a member of the next |
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class receives any payment. A subclass may not be established |
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within a class, except for a preference or subordination within a |
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class expressly created by contract or other instrument or in the |
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certificate of formation [articles of association]. |
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SECTION 15. Section 36.313(c), Finance Code, is amended to |
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read as follows: |
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(c) At the meeting, the shareholders shall appoint one or |
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more agents to take over the affairs to continue the liquidation for |
|
the benefit of the shareholders. Voting privileges are governed by |
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the bank's bylaws and certificate of formation [articles of
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association]. If a quorum cannot be obtained at the meeting, the |
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banking commissioner shall appoint an agent. An agent appointed |
|
under this subsection shall execute and file with the court a bond |
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approved by the court, conditioned on the faithful performance of |
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all the duties of the trust. |
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SECTION 16. The heading to Section 182.002, Finance Code, |
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is amended to read as follows: |
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Sec. 182.002. CERTIFICATE OF FORMATION [ARTICLES OF
|
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ASSOCIATION] OF STATE TRUST COMPANY. |
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SECTION 17. Sections 182.002(a) and (c), Finance Code, are |
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amended to read as follows: |
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(a) The certificate of formation [articles of association] |
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of a state trust company must be signed and acknowledged by each |
|
organizer and must contain: |
|
(1) the name of the state trust company, subject to |
|
Subsection (b); |
|
(2) the period of the state trust company's duration, |
|
which may be perpetual; |
|
(3) the powers of the state trust company, which may be |
|
stated as: |
|
(A) all powers granted to a state trust company |
|
in this state; or |
|
(B) a list of the specific powers that the state |
|
trust company chooses and is authorized to exercise; |
|
(4) the aggregate number of shares, or participation |
|
shares in the case of a limited trust association, that the state |
|
trust company will be authorized to issue, and the number of classes |
|
of shares or participation shares, which may be one or more; |
|
(5) if the shares or participation shares are to be |
|
divided into classes: |
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(A) the designation of each class and statement |
|
of the preferences, limitations, and relative rights of the shares |
|
or participation shares of each class, which in the case of a |
|
limited trust association may be more fully set forth in the |
|
participation agreement; |
|
(B) the number of shares or participation shares |
|
of each class; and |
|
(C) a statement of the par value of the shares or |
|
participation shares of each class or that the shares or |
|
participation shares are to be without par value; |
|
(6) any provision limiting or denying to shareholders |
|
or participants the preemptive right to acquire additional or |
|
treasury shares or participation shares of the state trust company; |
|
(7) any provision granting the right of shareholders |
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or participants to cumulative voting in the election of directors |
|
or managers; |
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(8) the aggregate amount of consideration to be |
|
received for all shares or participation shares initially issued by |
|
the state trust company and a statement that: |
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(A) all authorized shares or participation |
|
shares have been subscribed; and |
|
(B) all subscriptions received have been |
|
irrevocably paid in cash; |
|
(9) any provision consistent with law that the |
|
organizers elect to set forth in the certificate of formation |
|
[articles of association] for the regulation of the internal |
|
affairs of the state trust company or that is otherwise required by |
|
this subtitle to be set forth in the certificate of formation |
|
[articles of association]; |
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(10) the street address of the state trust company's |
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home office; and |
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(11) either: |
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(A) the number of directors or managers |
|
constituting the initial board and the names and street addresses |
|
of the persons who are to serve as directors or managers until the |
|
first annual meeting of shareholders or participants or until |
|
successor directors or managers have been elected and qualified; or |
|
(B) the statement described by Subsection (c). |
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(c) The organizers of a limited trust association that will |
|
have not fewer than five or more than 25 participants may include in |
|
the certificate of formation [articles of association] a statement |
|
that management is vested in a board composed of all participants, |
|
with management authority vested in each participant in proportion |
|
to the participant's contribution to capital as adjusted from time |
|
to time to properly reflect any additional contribution, and the |
|
names and street addresses of the persons who are to be the initial |
|
managing participants. |
|
SECTION 18. Section 182.009, Finance Code, is amended to |
|
read as follows: |
|
Sec. 182.009. APPLICATION OF GENERAL CORPORATE LAW. |
|
(a) The Business Organizations Code applies to a trust association |
|
as if it were a for-profit corporation, and to a limited trust |
|
association as if it were a limited liability company, to the extent |
|
not inconsistent with this subtitle or the proper business of a |
|
state trust company, except that: |
|
(1) a reference to the secretary of state means the |
|
banking commissioner unless the context requires otherwise; and |
|
(2) the right of shareholders or participants to |
|
cumulative voting in the election of directors or managers exists |
|
only if granted by the state trust company's certificate of |
|
formation [articles of association]. |
|
(b) Unless expressly authorized by this subtitle or a rule |
|
of the finance commission, a state trust company may not take an |
|
action authorized by a law listed under Subsection (a) [or (d)] |
|
regarding its corporate status, capital structure, or a matter of |
|
corporate governance, of the type for which a law listed under |
|
Subsection (a) would require a filing with the secretary of state if |
|
the state trust company were a filing entity [business corporation
|
|
or a limited liability company], without submitting the filing to |
|
the banking commissioner for prior written approval of the action. |
|
(c) The finance commission may adopt rules to alter or |
|
supplement the procedures and requirements of the laws listed by |
|
Subsection (a) [or (d)] applicable to an action taken under this |
|
chapter by a state trust company. |
|
(d) In this subtitle, a reference to a term or phrase listed |
|
in a subdivision of Section 1.006, Business Organizations Code, |
|
includes a synonymous term or phrase referenced by the same |
|
subdivision in Section 1.006 of that code. |
|
SECTION 19. The heading to Subchapter B, Chapter 182, |
|
Finance Code, is amended to read as follows: |
|
SUBCHAPTER B. AMENDMENT OF CERTIFICATE [ARTICLES]; CHANGES IN |
|
CAPITAL AND SURPLUS |
|
SECTION 20. The heading to Section 182.101, Finance Code, |
|
is amended to read as follows: |
|
Sec. 182.101. AMENDMENT OR RESTATEMENT OF STATE TRUST |
|
COMPANY CERTIFICATE OF FORMATION [ARTICLES OF ASSOCIATION]. |
|
SECTION 21. Sections 182.101(a), (b), (c), and (d), Finance |
|
Code, are amended to read as follows: |
|
(a) A state trust company that has been granted a charter |
|
under Section 182.006 or a predecessor statute may amend or restate |
|
its certificate of formation [articles of association] for any |
|
lawful purpose, including the creation of authorized but unissued |
|
shares or participation shares in one or more classes or series. |
|
(b) An amendment authorizing the issuance of shares or |
|
participation shares in series must contain: |
|
(1) the designation of each series and a statement of |
|
any variations in the preferences, limitations, and relative rights |
|
among series to the extent that the preferences, limitations, and |
|
relative rights are to be established in the certificate of |
|
formation [articles of association]; and |
|
(2) a statement of any authority to be vested in the |
|
board to establish series and determine the preferences, |
|
limitations, and relative rights of each series. |
|
(c) A limited trust association may not amend its |
|
certificate of formation [articles of association] to extend its |
|
period of existence for a perpetual period or for any period of |
|
years, unless the period of existence is expressly contingent on |
|
those events resulting in dissolution of the trust association |
|
under Section 183.208. |
|
(d) Amendment or restatement of the certificate of |
|
formation [articles of association] of a state trust company and |
|
approval of the board and shareholders or participants must be made |
|
or obtained in accordance with the Business Organizations Code |
|
[for the amendment or restatement of a certificate of formation by a
|
|
for-profit corporation], except as otherwise provided by this |
|
subtitle or rules adopted under this subtitle. The original and one |
|
copy of the certificate [articles] of amendment or restated |
|
certificate of formation [articles of association] must be filed |
|
with the banking commissioner for approval. Unless the submission |
|
presents novel or unusual questions, the banking commissioner shall |
|
approve or reject the amendment or restatement not later than the |
|
31st day after the date the banking commissioner considers the |
|
submission informationally complete and accepted for filing. The |
|
banking commissioner may require the submission of additional |
|
information as considered necessary to an informed decision to |
|
approve or reject any amendment or restatement of a certificate of |
|
formation [articles of association] under this section. |
|
SECTION 22. Sections 182.102(a) and (b), Finance Code, are |
|
amended to read as follows: |
|
(a) If the certificate of formation [articles of
|
|
association] expressly gives [give] the board authority to |
|
establish series and determine the preferences, limitations, and |
|
relative rights of each series, the board may do so only on |
|
compliance with this section and any rules adopted under this |
|
chapter. |
|
(b) A series of shares or participation shares may be |
|
established in the manner provided by the Business Organizations |
|
Code [as if a state trust company were a domestic corporation], but |
|
the shares or participation shares of the series may not be issued |
|
and sold except on compliance with Section 182.103. The state trust |
|
company shall file the original and one copy of the statement of |
|
action required by the Business Organizations Code with the banking |
|
commissioner. |
|
SECTION 23. Section 182.301, Finance Code, is amended to |
|
read as follows: |
|
Sec. 182.301. MERGER AUTHORITY. (a) Two or more trust |
|
institutions, corporations, or other entities with the authority to |
|
participate in a merger, at least one of which is a state trust |
|
company, may adopt and implement a plan of merger in accordance with |
|
this section. The merger may not be made without the prior written |
|
approval of the banking commissioner if any surviving, new, or |
|
acquiring entity that is a party to the merger or created by the |
|
terms of the merger is a state trust company or is not a trust |
|
institution. [Subject to this subchapter and with the prior written
|
|
approval of the banking commissioner, a state trust company may
|
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merge with another person to the same extent as a for-profit
|
|
corporation under the Business Organizations Code.] |
|
(b) Implementation of the plan of merger by the parties and |
|
approval of the board, shareholders, participants, or owners of the |
|
parties must be made or obtained as provided by the Business |
|
Organizations Code as if the state trust company were a filing |
|
entity [domestic corporation] and all other parties to the merger |
|
were foreign [corporations and other] entities, except as otherwise |
|
provided by rules adopted under this chapter. |
|
SECTION 24. Section 182.302(a), Finance Code, is amended to |
|
read as follows: |
|
(a) To apply for approval of a merger, the parties must |
|
submit the original certificate [articles] of merger, a number of |
|
copies of the certificate [articles] of merger equal to the number |
|
of surviving, new, and acquiring entities, and an application in |
|
the form required by the banking commissioner. The banking |
|
commissioner may require the submission of additional information |
|
as considered necessary to an informed decision. |
|
SECTION 25. Section 182.303(a), Finance Code, is amended to |
|
read as follows: |
|
(a) If the banking commissioner approves the merger and |
|
finds that all required filing fees and investigative costs have |
|
been paid, the banking commissioner shall: |
|
(1) endorse the face of the original and each copy of |
|
the certificate [articles] of merger with the date of approval and |
|
the word "Approved"; |
|
(2) file the original in the department's records; and |
|
(3) deliver a certified copy of the certificate |
|
[articles] of merger to each surviving, new, or acquiring entity. |
|
SECTION 26. Section 182.501(b), Finance Code, is amended to |
|
read as follows: |
|
(b) The merger or conversion must be made and approval of |
|
the state trust company's board, shareholders, or participants must |
|
be obtained in accordance with the Business Organizations Code as |
|
if the state trust company were a filing entity [domestic
|
|
corporation] and all other parties to the transaction, if any, were |
|
foreign [corporations or other] entities, except as may be |
|
otherwise provided by rule. For purposes of this subsection, a |
|
conversion is considered a merger into the successor trust |
|
institution. |
|
SECTION 27. Section 183.203, Finance Code, is amended to |
|
read as follows: |
|
Sec. 183.203. CONTRACTING FOR DEBT OR OBLIGATION. Except |
|
as provided by this section or the certificate of formation |
|
[articles of association] of the limited trust association, a debt, |
|
liability, or other obligation may be contracted for or incurred on |
|
behalf of a limited trust association only by: |
|
(1) a majority of the managers, if management of the |
|
limited trust association has been vested in a board of managers; |
|
(2) a majority of the managing participants; or |
|
(3) an officer or other agent vested with actual or |
|
apparent authority to contract for or incur the debt, liability, or |
|
other obligation. |
|
SECTION 28. Sections 183.204(a) and (c), Finance Code, are |
|
amended to read as follows: |
|
(a) Management of a limited trust association is vested in |
|
the participants in proportion to each participant's contribution |
|
to capital, as adjusted periodically to properly reflect any |
|
additional contribution. The certificate of formation [articles of
|
|
association] may provide that management of a limited trust |
|
association is vested in a board of managers to be elected annually |
|
by the participants as prescribed by the bylaws or the |
|
participation agreement. |
|
(c) The certificate of formation [articles of association], |
|
bylaws, and participation agreement of a limited trust association |
|
may use the term "director" instead of "manager" and the term |
|
"board" instead of "board of managers." |
|
SECTION 29. Sections 183.205(a) and (c), Finance Code, are |
|
amended to read as follows: |
|
(a) Except as otherwise provided by this chapter, a |
|
participant may not receive from a limited trust association any |
|
part of the participant's contribution to capital unless: |
|
(1) all liabilities of the limited trust association, |
|
except liabilities to participants on account of contribution to |
|
capital, have been paid; |
|
(2) after the withdrawal or reduction, sufficient |
|
property of the limited trust association will remain to pay all |
|
liabilities of the limited trust association, except liabilities to |
|
participants on account of contribution to capital; |
|
(3) all participants consent; or |
|
(4) the certificate of formation is [articles of
|
|
association are] canceled or amended to set out the withdrawal or |
|
reduction. |
|
(c) A participant may demand the return of the participant's |
|
contribution to capital only in cash unless a different form of |
|
return of the contribution is allowed by the certificate of |
|
formation [articles of association] or by the unanimous consent of |
|
all participants. |
|
SECTION 30. Section 183.207(a), Finance Code, is amended to |
|
read as follows: |
|
(a) A limited trust association in which management is |
|
retained by the participants is not required to adopt bylaws if the |
|
provisions required by law to be contained in the bylaws are |
|
contained in the certificate of formation [articles of association] |
|
or the participation agreement. |
|
SECTION 31. Section 183.208(a), Finance Code, is amended to |
|
read as follows: |
|
(a) A limited trust association organized under this |
|
chapter is dissolved on: |
|
(1) the expiration of the period fixed for the |
|
duration of the limited trust association; |
|
(2) a vote to dissolve or the execution of a written |
|
consent to dissolve by all full liability participants, if any, and |
|
a sufficient number of other participants that, combined with all |
|
full liability participants, hold at least two-thirds of the |
|
participation shares in each class in the association, or a greater |
|
fraction as provided by the certificate of formation [articles of
|
|
association]; |
|
(3) except as provided by the certificate of formation |
|
[articles of association], the death, insanity, expulsion, |
|
bankruptcy, retirement, or resignation of a participant unless a |
|
majority in interest of all remaining participants elect in writing |
|
not later than the 90th day after the date of the event to continue |
|
the business of the association; or |
|
(4) the occurrence of an event of dissolution |
|
specified in the certificate of formation [articles of
|
|
association]. |
|
SECTION 32. Section 183.209, Finance Code, is amended to |
|
read as follows: |
|
Sec. 183.209. ALLOCATION OF PROFITS AND LOSSES. The |
|
profits and losses of a limited trust association may be allocated |
|
among the participants and among classes of participants as |
|
provided by the participation agreement. Without the prior written |
|
approval of the banking commissioner to use a different allocation |
|
method, the profits and losses must be allocated according to the |
|
relative interests of the participants as reflected in the |
|
certificate of formation [articles of association] and related |
|
documents filed with and approved by the banking commissioner. |
|
SECTION 33. Section 183.210, Finance Code, is amended to |
|
read as follows: |
|
Sec. 183.210. DISTRIBUTIONS. Subject to Section 182.103, |
|
distributions of cash or other assets of a limited trust |
|
association may be made to the participants as provided by the |
|
participation agreement. Without the prior written approval of the |
|
banking commissioner to use a different distribution method, |
|
distributions must be made to the participants according to the |
|
relative interests of the participants as reflected in the |
|
certificate of formation [articles of association] and related |
|
documents filed with and approved by the banking commissioner. |
|
SECTION 34. Section 186.312(a), Finance Code, is amended to |
|
read as follows: |
|
(a) The priority of distribution of assets from the estate |
|
of a state trust company the trust deposits of which are not insured |
|
by the Federal Deposit Insurance Corporation or its successor shall |
|
be in accordance with the order of each class as provided by this |
|
section. Every claim in each class shall be paid in full, or |
|
adequate money shall be retained for that payment, before a member |
|
of the next class may receive any payment. A subclass may not be |
|
established within a class, except for a preference or |
|
subordination within a class expressly created by contract or other |
|
instrument or in the certificate of formation [articles of
|
|
association]. |
|
SECTION 35. Section 186.313(c), Finance Code, is amended to |
|
read as follows: |
|
(c) At the meeting, the shareholders or participants shall |
|
appoint one or more agents to take over the affairs to continue the |
|
liquidation for the benefit of the shareholders or participants and |
|
participant-transferees. Voting privileges are governed by the |
|
state trust company's bylaws and certificate of formation [articles
|
|
of association]. If a quorum cannot be obtained at the meeting, the |
|
banking commissioner shall appoint an agent. An agent appointed |
|
under this subsection shall execute and file with the court a bond |
|
approved by the court, conditioned on the faithful performance of |
|
all the duties of the trust. |
|
SECTION 36. Section 204.101(a), Finance Code, is amended to |
|
read as follows: |
|
(a) A foreign bank that desires to establish and maintain a |
|
Texas state branch or agency shall submit an application to the |
|
commissioner. The application must: |
|
(1) be accompanied by all application fees and |
|
deposits required by applicable rules; |
|
(2) be in the form specified by the commissioner; |
|
(3) be subscribed and acknowledged by an officer of |
|
the foreign bank; |
|
(4) have attached: |
|
(A) a complete copy of the foreign bank's |
|
application to the Board of Governors of the Federal Reserve System |
|
under Section 7(d), International Banking Act (12 U.S.C. Section |
|
3105(d)); |
|
(B) an authenticated copy of the foreign bank's |
|
certificate of formation [articles of incorporation] and bylaws or |
|
other constitutive documents and, if the copy is in a language other |
|
than English, an English translation of the document, under the |
|
oath of the translator; and |
|
(C) evidence of compliance with Section 201.102; |
|
(5) be submitted when the federal application is |
|
submitted to the board of governors; and |
|
(6) include on its face or in accompanying documents: |
|
(A) the name of the foreign bank; |
|
(B) the street address where the principal office |
|
of the Texas state branch or agency is to be located and, if |
|
different, the Texas state branch or agency's mailing address; |
|
(C) the name and qualifications of each officer |
|
and director of the foreign bank who will have control of all or |
|
part of the business and affairs of the Texas state branch or |
|
agency; |
|
(D) a detailed statement of the foreign bank's |
|
financial condition as of a date not more than 360 days before the |
|
date of the application; and |
|
(E) other information that: |
|
(i) is necessary to enable the commissioner |
|
to make the findings listed in Section 204.103; |
|
(ii) is required by rules adopted under |
|
this subtitle; or |
|
(iii) the commissioner reasonably |
|
requests. |
|
SECTION 37. Section 204.107, Finance Code, is amended to |
|
read as follows: |
|
Sec. 204.107. FILING OF AMENDMENTS TO CERTIFICATE OF |
|
FORMATION [ARTICLES OF INCORPORATION]. If the certificate of |
|
formation [articles of incorporation] of a foreign bank licensed to |
|
maintain a Texas state branch or agency is [are] amended, the |
|
foreign bank shall promptly file with the commissioner a copy of the |
|
amendment, duly authenticated by the proper officer of the country |
|
of the foreign bank's organization. The filing does not enlarge or |
|
alter the business the foreign bank is authorized to pursue in this |
|
state, authorize the foreign bank to transact business in this |
|
state under a name other than the name set forth in its license, or |
|
extend the duration of its corporate existence. |
|
SECTION 38. Section 204.201(a), Finance Code, is amended to |
|
read as follows: |
|
(a) A foreign bank may establish a Texas representative |
|
office if the foreign bank files with the commissioner a verified |
|
statement of registration. A statement of registration must: |
|
(1) be accompanied by all registration fees and |
|
deposits required by rule; |
|
(2) be in the form specified by the commissioner; |
|
(3) be subscribed and acknowledged by an officer of |
|
the foreign bank; |
|
(4) contain as an exhibit or attachment: |
|
(A) a copy of the foreign bank's notice or |
|
application submitted to the Board of Governors of the Federal |
|
Reserve System under Section 10, International Banking Act (12 |
|
U.S.C. Section 3107), and, when issued, the order or notification |
|
from the board of governors indicating that the representative |
|
office has been approved; |
|
(B) an authenticated copy of the foreign bank's |
|
certificate of formation [articles of incorporation] and bylaws or |
|
other constitutive documents and, if the copy is in a language other |
|
than English, an English translation of the document, under the |
|
oath of the translator; and |
|
(C) evidence of compliance with Section 201.102; |
|
(5) be submitted when the federal notice or |
|
application is submitted to the board of governors; and |
|
(6) directly or in exhibits or attachments contain: |
|
(A) the name of the foreign bank; |
|
(B) the street address and post office address |
|
where each Texas representative office is to be located in this |
|
state; |
|
(C) the name and qualifications of each officer |
|
and director of the foreign bank who will have charge of any aspect |
|
of the business and affairs of the Texas representative office; |
|
(D) a complete and detailed statement of the |
|
financial condition of the foreign bank as of a date not more than |
|
360 days before the date of the filing; and |
|
(E) other information the commissioner requires. |
|
SECTION 39. This Act takes effect immediately if it |
|
receives a vote of two-thirds of all the members elected to each |
|
house, as provided by Section 39, Article III, Texas Constitution. |
|
If this Act does not receive the vote necessary for immediate |
|
effect, this Act takes effect September 1, 2013. |