By: Flynn (Senate Sponsor - Carona) H.B. No. 1646
(In the Senate - Received from the House April 22, 2013;
May 7, 2013, read first time and referred to Committee on Business
and Commerce; May 16, 2013, reported favorably by the following
vote: Yeas 7, Nays 0; May 16, 2013, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to revising provisions in certain laws governing certain
banks and trust companies in this state to conform to changes in
terminology made by the Business Organizations Code.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading to Section 32.002, Finance Code, is
amended to read as follows:
Sec. 32.002. CERTIFICATE OF FORMATION [ARTICLES OF
ASSOCIATION] OF STATE BANK.
SECTION 2. Sections 32.002(a) and (c), Finance Code, are
amended to read as follows:
(a) The certificate of formation [articles of association]
of a state bank must be signed and acknowledged by each organizer
and must contain:
(1) the name of the bank, subject to Subsection (b);
(2) the period of the bank's duration, which may be
perpetual, subject to Subsection (c);
(3) the powers of the bank, which may be stated as:
(A) all powers granted by law to a state bank; or
(B) a list of the specific powers under Section
32.001 that the bank chooses to exercise;
(4) the aggregate number of shares that the bank will
be authorized to issue and the number of classes of shares, which
may be one or more;
(5) if the shares are to be divided into classes:
(A) the designation of each class and statement
of the preferences, limitations, and relative rights of the shares
of each class, which in the case of a limited banking association
may be more fully set forth in the participation agreement;
(B) the number of shares of each class; and
(C) a statement of the par value of the shares of
each class or that the shares are to be without par value;
(6) any provision limiting or denying to shareholders
the preemptive right to acquire additional or treasury shares of
the bank;
(7) any provision granting the right of shareholders
to cumulative voting in the election of directors;
(8) the aggregate amount of consideration to be
received for all shares initially issued by the bank and a statement
that:
(A) all authorized shares have been subscribed;
and
(B) all subscriptions received have been
irrevocably paid in cash;
(9) any provision that is otherwise required by this
subtitle to be set forth in the certificate of formation [articles
of association];
(10) the street address of the bank's initial home
office;
(11) the number of directors constituting the initial
board and the names and street addresses of the persons who are to
serve as directors until the first annual meeting of shareholders
or until successor directors have been elected and qualified; and
(12) subject to Section 32.008, 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 bank, including
provisions permissible under the Business Organizations Code for:
(A) a for-profit corporation, in the case of a
proposed banking association; or
(B) a limited liability company, in the case of a
proposed limited banking association.
(c) A state bank, other than a private bank, organized
before August 31, 1993, is considered to have perpetual existence,
notwithstanding a contrary statement in its articles of
association, unless after September 1, 1995, the bank amends its
certificate of formation or articles of association to reaffirm its
limited duration.
SECTION 3. Section 32.008, Finance Code, is amended to read
as follows:
Sec. 32.008. APPLICATION OF GENERAL CORPORATE LAW.
(a) The Business Organizations Code applies to a banking
association as if it were a for-profit corporation, and to a limited
banking association as if it were a limited liability company, to
the extent not inconsistent with this subtitle or the proper
business of a state bank, except that:
(1) a reference in the Business Organizations Code to
the secretary of state means the banking commissioner unless the
context requires otherwise; and
(2) the right of shareholders to cumulative voting in
the election of directors exists only if granted by the bank's
certificate of formation [articles of association].
(b) The finance commission may adopt rules to limit or
refine the applicability of the laws listed by Subsection (a) [or
(d)] to a state bank or to alter or supplement the procedures and
requirements of those laws applicable to an action taken under this
chapter.
(c) Unless expressly authorized by this subtitle or a rule
adopted under this subtitle, a state bank may not take an action
authorized by a law listed by Subsection (a) [or (d)] regarding its
corporate status, its capital structure, or a matter of corporate
governance, of the type for which those laws would require a filing
with the secretary of state if the bank were a filing entity
[business corporation], without submitting the filing to the
banking commissioner and obtaining the banking commissioner's
prior written approval of the action.
(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 4. The heading to Subchapter B, Chapter 32, Finance
Code, is amended to read as follows:
SUBCHAPTER B. AMENDMENT OF CERTIFICATE [ARTICLES]; CHANGES IN
CAPITAL AND SURPLUS
SECTION 5. The heading to Section 32.101, Finance Code, is
amended to read as follows:
Sec. 32.101. AMENDMENT OR RESTATEMENT OF STATE BANK
CERTIFICATE OF FORMATION [ARTICLES OF ASSOCIATION].
SECTION 6. Sections 32.101(a), (b), and (c), Finance Code,
are amended to read as follows:
(a) A state bank that has been granted a certificate of
authority 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
bank's board to establish series and determine the preferences,
limitations, and relative rights of each series.
(c) Amendment or restatement of the certificate of
formation [articles of association] of a state bank and approval of
the bank's board and shareholders must be made or obtained as
provided by 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. If the banking
commissioner finds that the amendment or restatement conforms to
law and any conditions imposed by the banking commissioner, and any
required filing fee has been paid, the banking commissioner shall:
(1) endorse the face of the original and copy of the
amendment or restatement with the date of approval and the word
"Approved";
(2) file the original of the amendment or restatement
in the department's records; and
(3) deliver a certified copy of the amendment or
restatement to the bank.
SECTION 7. Sections 32.102(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 of a state bank
authority to establish shares in series and determine the
preferences, limitations, and relative rights of each series, the
board may do so only in compliance with this section and any rules
adopted under this subtitle.
(b) A series of shares may be established in the manner
provided by the Business Organizations Code [as if the state bank
were a domestic entity], but the shares of the series may not be
issued and sold without the prior written approval of the banking
commissioner under Section 32.103. The bank shall file the
original and one copy of the statement of action required by the
Business Organizations Code with the banking commissioner.
SECTION 8. Section 32.301(b), Finance Code, is amended to
read as follows:
(b) Implementation of the merger by the parties and approval
of the board, shareholders, or owners of the parties must be made or
obtained in accordance with the Business Organizations Code as if
the state bank were a filing [domestic] entity and all other parties
to the merger were foreign entities, except as may be otherwise
provided by applicable rules.
SECTION 9. Sections 32.302(a) and (c), Finance Code, are
amended to read as follows:
(a) If the merger is subject to the prior written approval
of the banking commissioner, the original certificate [articles] of
merger and a number of copies of the certificate [articles] equal to
the number of surviving, new, and acquiring entities must be filed
with the banking commissioner. On this filing, the banking
commissioner shall investigate the condition of the merging
parties. The banking commissioner may require the submission of
additional information the banking commissioner determines
necessary to an informed decision to approve or reject a merger
under this subchapter.
(c) 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 of the certificate [articles] of
merger 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 10. Section 32.501(b), Finance Code, is amended to
read as follows:
(b) The merger or conversion by the state bank must be made
and approval of its board and shareholders must be obtained in
accordance with the Business Organizations Code as if the state
bank were a filing [domestic] entity and all other parties to the
transaction, if any, were foreign entities, except as provided by
rule. For purposes of this subsection, a conversion is considered
a merger into the successor form of financial institution.
SECTION 11. Section 33.204(c), Finance Code, is amended to
read as follows:
(c) The certificate of formation [articles of association],
bylaws, and participation agreement of a limited banking
association may use "director" instead of "manager" and "board"
instead of "board of managers."
SECTION 12. Section 33.209, Finance Code, is amended to
read as follows:
Sec. 33.209. ALLOCATION OF PROFITS AND LOSSES. The profits
and losses of a limited banking 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 13. Section 33.210, Finance Code, is amended to
read as follows:
Sec. 33.210. DISTRIBUTIONS. Subject to Section 32.103,
distributions of cash or other assets of a limited banking
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 14. Section 36.312(a), Finance Code, is amended to
read as follows:
(a) The priority of distribution of assets from the estate
of a bank the 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 receives 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 15. Section 36.313(c), Finance Code, is amended to
read as follows:
(c) At the meeting, the shareholders shall appoint one or
more agents to take over the affairs to continue the liquidation for
the benefit of the shareholders. Voting privileges are governed by
the bank'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 16. The heading to Section 182.002, Finance Code,
is amended to read as follows:
Sec. 182.002. CERTIFICATE OF FORMATION [ARTICLES OF
ASSOCIATION] OF STATE TRUST COMPANY.
SECTION 17. Sections 182.002(a) and (c), Finance Code, are
amended to read as follows:
(a) The certificate of formation [articles of association]
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:
(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
or participants to cumulative voting in the election of directors
or managers;
(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:
(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];
(10) the street address of the state trust company's
home office; and
(11) either:
(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).
(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
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.
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