BEFORE THE STATE BANKING BOARD
OF THE STATE OF MONTANA
In the matter of the adoption of New Rules I through VII pertaining to applications for shell banks
NOTICE OF PROPOSED ADOPTION
NO PUBLIC HEARING CONTEMPLATED
TO: All Concerned Persons
1. On September 9, 2013, the Department of Administration proposes to adopt the above-stated rules.
2. The Department of Administration will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the Department of Administration no later than 5:00 p.m. on August 29, 2013, to advise us of the nature of the accommodation that you need. Please contact Wayne Johnston, Division of Banking and Financial Institutions, P.O. Box 200546, Helena, Montana 59620-0546; telephone (406) 841-2918; TDD (406) 444-1421; facsimile (406) 841-2930; or e-mail to firstname.lastname@example.org.
3. The rules proposed to be adopted provide as follows:
NEW RULE I STATE BANK ORGANIZED FOR PURPOSE OF BEING A SHELL BANK (1) If a shell bank is being organized for the purpose of acquiring control of or acquiring all or substantially all of the assets of an existing bank or savings association, the organizers shall comply with 32-1-202 through 32-1-206 and 32-1-301 through 32-1-307, MCA, and the rules adopted thereunder.
(2) An application for a shell bank organized solely for the purpose of merging with an existing bank or savings association is governed by this subchapter.
(3) A shell bank organized solely for the purpose of merging with an existing bank or savings association is referred to as an interim bank in this subchapter. An interim bank has no authority to conduct a banking business until merged with an existing bank or savings association.
(4) The provisions of this subchapter do not apply to a state bank organized for the purpose of assuming deposit liabilities of any closed bank governed by ARM 2.60.501.
AUTH: 32-1-218, MCA
IMP: 32-1-109, 32-1-204, 32-1-218, MCA
STATEMENT OF REASONABLE NECESSITY: Section 32-1-218, MCA, allows the department to adopt rules regarding shell banks. That has not been done before this time because there were not very many mergers of banks. However, our current economic climate has led to an environment in which banks are merging more frequently. This is expected to continue in the near future. The department decided that rules are necessary to provide an expedited procedure to create an interim bank to facilitate a merger with an existing institution.
The department has proposed (1) because if a shell bank is being organized to acquire control of or to acquire all or substantially all of the assets of an existing bank or savings association, that means the persons seeking to organize the shell bank do not currently own, work in, or manage an existing bank or savings association. In light of that fact, it is necessary for them to go through the full process of chartering a de novo bank, so that the State Banking Board may determine whether they meet the requirements set forth in state law to charter a new bank.
However, in the case of a shell bank being organized for the purpose of merging with an existing state bank or a savings association, there is already a state bank or savings association in existence that has already been chartered. This means that the chartering authority has already investigated and determined that the criteria to charter a bank or savings association have been met. In some cases, the financial institution in question has been in existence for decades.
Given the fact that a financial institution already exists, there is no need to reinvestigate the people involved in the bank and determine whether adequate capital exists to authorize an institution since that has already been done. Instead, the department seeks by these proposed rules to provide a summary process by which an interim bank can be granted a certificate of authority. This process is separate and apart from the merger process that will proceed under 32-1-370 or 32-1-371, MCA, and the rules adopted under the relevant statute in question.
However, if the institution to be merged is considered to have deficient capital, the State Banking Board may require that the proposed interim bank be capitalized in a specific manner in order to address that issue. And, if the proposed interim bank will involve changes to personnel on the bank board or executive officers of the merging bank, the State Banking Board may review those changes and determine if they are acceptable. The department proposes this requirement because it is necessary for the State Banking Board to determine that a new bank will meet the criteria set forth in 32-1-203, MCA, which include that the bank will be owned and managed by persons of good moral character and financial integrity and will be safely and soundly operated.
A procedure for establishing an interim bank already exists in many other states. In addition, the Interagency Bank Merger Application form that was developed and adopted by the Federal Deposit Insurance Corporation, Federal Reserve Board, and the Office of the Comptroller of the Currency (OCC) recognizes that an interim state or federal charter may be used to facilitate a merger. The department has adopted the Interagency Bank Merger Application as its form for mergers in Montana. These proposed rules are designed to create a procedure for authorizing interim banks in Montana that is consistent with other states and the federal process for interim banks used in mergers. These procedures are well-designed and will address the issues arising in Montana.
New Rules I through VII are not intended to govern a state bank being organized for the purpose of assuming the deposit liabilities of any closed bank. That instance is governed by a specific rule adopted by the State Banking Board, ARM 2.60.501, which allows a summary process to facilitate the transfer of the deposit liabilities of any closed bank. Section (4) makes clear that these rules are not intended to apply to transactions under ARM 2.60.501.
NEW RULE II APPLICATION PROCEDURES (1) An application to form an interim bank must be on the form in [New Rule III].
(2) The application to form an interim bank must be filed with the department.
(3) The applicant shall publish a notice in a newspaper of general circulation in the community in which the main office of the proposed interim bank is to be located. If there is no such newspaper in the community, then in a newspaper of general circulation published nearest the community will suffice. The notice must run once a week for two consecutive weeks. The public notice must include:
(a) the name of the proposed interim bank;
(b) a brief summary of the purpose of the interim bank;
(c) a reference to [New Rule III], under which the proposed interim bank is to be formed; and
(d) notice that interested persons are invited to comment on the application before the State Banking Board.
(4) The applicant shall provide the affidavit of publication to the department after it is received.
AUTH: 32-1-218, MCA
IMP: 32-1-109, 32-1-218, MCA
STATEMENT OF REASONABLE NECESSITY: The application must be sent to the department to begin the approval process. The department must review the application for completeness. The department must also set the time of the meeting of the State Banking Board, notify the public of the time and place of the State Banking Board meeting, and ensure that the State Banking Board members have the application and all exhibits in time to review them before the meeting. Therefore, it is necessary for the department to receive an application in order to begin the approval process.
Traditionally, all de novo banks in Montana must provide public notice of the proposal in a newspaper of general circulation in the community in which the bank seeks a certificate of authorization. The department has set forth a like process in this rule in order to be consistent with the process for de novo banks in Montana. While Ralph Waldo Emerson wrote in his essay "Self-Reliance," "A foolish consistency is the hobgoblin of little minds," at the department, we generally strive to make our procedures consistent over various types of applications in order to simplify them for bankers and the agency staff alike.
The affidavit of publication is required as part of the application process. However, since it is an affidavit of publication, it cannot be made and sworn to until after the publication has been made and it is not available at the time the initial application is made. So the department requires that the affidavit of publication be delivered after it is received.
NEW RULE III APPLICATION TO FORM AN INTERIM BANK (1) The application to form an interim bank must be in the following form:
INTERIM BANK CHARTER APPLICATION
Any individual or entity desiring confidential treatment of specific portions of the application shall specifically identify the information for which they request confidentiality, separately bind it, and label it "Confidential." The individual or entity shall follow the same procedure for a request for confidential treatment for the subsequent filing of supplemental information to the application. Inquiries concerning the preparation and filing of this or any other application with the department should be directed to the Montana Division of Banking and Financial Institutions, P.O. Box 200546, Helena, MT 59620-0546.
1. State the name, address, and phone number of the person(s) who will represent the applicant.
2. State the purpose for forming the proposed interim bank.
3. State the name and location of the proposed interim bank.
4. State the names and addresses of the organizer(s) and first board of directors of the proposed interim bank. See 32-1-322, MCA.
5. State the positions and names of the officers of the proposed interim bank.
6. Provide full details of the capital structure of the proposed interim bank including number and types of authorized shares, par value, total capital stock, surplus, and any other components of capital. Also, state the initial amount of reserves to be established, if any.
7. Describe in detail the entire transaction in which the interim charter is proposed to be used and identify the resulting bank after completion of the transaction.
We, the undersigned Board of Directors of the proposed interim bank, do solemnly swear or affirm that the statement and representations made herein are true and correct to the best of our knowledge and belief, and that the personal data and financial statements submitted with this application are true and correct and that this application is made in good faith, with the purpose and intent that the affairs and business of the proposed interim bank shall be honestly conducted upon good and sound business principles.
State of _____________________________________
County of _____________________________________
Signed and sworn to before me this _______ day of __________________, ________
Notary Public for the State of Montana
Residing at _____________________, Montana
My commission expires ___________________
In order for the interim bank application to be considered complete, the following exhibits must be furnished:
1. Attach brief resumes of past business and banking or related experience of the principal shareholders, directors, and executive officers of the proposed interim bank. "Principal shareholder" means a person who directly or indirectly owns, controls, or holds (either individually or as a member of a group) the power to vote 10% or more of any class of voting securities or other voting equity interest of the entity.
If the proposed principal shareholders, directors, and executive officers are not currently serving as principal shareholders, directors, or executive officers of an insured depository institution, attach an Interagency Biographical and Financial Report for each person not currently so serving. The Interagency Biographical and Financial Report is available at the Division of Banking and Financial Institutions, P.O. Box 200546, Helena, Montana 59620-0546, or on the division web site located at www.banking.mt.gov.
2. Attach a summary of the facts in support of the applicant's contention that the conditions for incorporation set forth in 32-1-203, MCA, are met.
3. Attach the proposed articles of incorporation and by-laws of the proposed interim bank.
4. Attach a copy of all agreements or plans which detail how the interim bank will be used in a merger or consolidation.
AUTH: 32-1-218, MCA
IMP: 32-1-109, 32-1-218, MCA
STATEMENT OF REASONABLE NECESSITY: The form set forth above is designed to be similar to the existing process to request authorization for de novo banks. The application may contain two types of confidential information: information that is a trade secret or other confidential information of the entity and information that is subject to an individual's reasonable expectation of privacy. The applicant must initially identify the information that is confidential and set it apart from the rest of the application that will be made publicly available. The department will exercise its judgment in what is or is not confidential; however, the applicant must first identify the information for which they claim confidentiality. The department will advise the applicant before it publicly releases any information marked confidential.
Since a bank is a corporate entity, the applicant must identify a person who has the authority to speak for the proposed corporate entity. At the hearing before the State Banking Board, the State Banking Board members must be able to address concerns and comments to an individual who has the authority to speak for the nascent corporation. This proposed rule requires the proposed corporation to nominate an individual to speak for it.
The purpose of the interim bank is necessary to ensure it meets the requirements of 32-1-109(17), MCA, which provides the definition of "shell bank."
The name of the proposed interim bank is to ensure the name complies with 32-1-301, MCA, which provides, in part, that a banking corporation may not adopt or use the name of any other banking corporation or association. The location of the proposed interim bank is to allow the applicant to determine the area in which to publish the notice and to allow the State Banking Board to determine compliance with 32-1-203(1), MCA, which requires the State Banking Board to determine there is a persuasive showing of reasonable public necessity and demand for a new bank at the proposed location.
The names of the initial incorporators are necessary to comply with 32-1-321 and 35-1-216, MCA, which address calling of the first meeting by the incorporators and the information to be included in the articles of incorporation, respectively. The board of directors of the bank is necessary to ensure compliance with 32-1-322, MCA, which requires that the bank's affairs be managed by a board consisting of not fewer than three persons and prohibits any person who has been convicted of a crime against the banking laws of the United States or of any state from being a bank director.
The positions and names of the officers of the proposed interim bank are necessary to ensure compliance with 32-1-203(2), MCA, which requires the State Banking Board to find that a new bank organized under Montana law be owned and managed by persons of good moral character and financial integrity and safely and soundly operated.
The capital structure of the bank is necessary for the State Banking Board to determine the safety and soundness of the proposed institution. Section 32-1-307, MCA, gives the department and the State Banking Board the authority to set the appropriate level of capitalization for the proposed interim bank.
The last item is necessary so that the State Banking Board can understand how the proposed interim bank is planned to be used and the transaction at hand and what the resulting institution after the merger will be. This is necessary for the State Banking Board to determine that there is a persuasive showing of reasonable public necessity and demand for a new bank at the proposed location.
The oath of the directors of the proposed interim bank is designed to be consistent with OCC certification in the Interagency Charter and Federal Deposit Insurance Application. The State Banking Board has adopted the Interagency Charter and Federal Deposit Insurance Application as its application for a de novo charter. See ARM 2.60.303. The department seeks to be consistent with the de novo application by adopting this oath of directors.
The resumes of principal shareholders, directors, and executive officers are necessary to ensure compliance with 32-1-203, MCA. If the principal shareholders, directors, and executive officers are already serving in these positions with an existing financial institution, this has already been done by the chartering agency and there is no need for the individual to fill out another Interagency Biographical and Financial Report. However, if the individuals are not currently serving as a principal shareholder, director, or executive officer of a financial institution, then they will need to fill out an Interagency Biographical and Financial Report so that the State Banking Board members can review it and determine compliance with 32-1-203(2), MCA.
The summary of the facts in support of the applicant's contention that the conditions for incorporation are met is necessary to allow the members of the State Banking Board to determine whether the requirements of 32-1-203, MCA, are met by the proposed interim bank.
The articles of incorporation and by-laws are necessary to allow the department and the members of the State Banking Board to determine if the requirements of 32-1-301 and 32-1-302, MCA, have been met. The articles of incorporation and by-laws are kept on file by the department if the institution is granted a certificate of authorization.
A copy of the agreements or plans that detail how the interim bank will be used in a merger allows the department and the members of the State Banking Board to review and understand the agreement that requires an interim bank to be in place in order for a merger to proceed. This is important because the State Banking Board must charter the interim bank and in order to do so, it must be confident that it has all the information needed and available on which to base its decision. And if it believes additional information is extant, it must be able to request that information. Were it not so, the applicants for an interim bank charter could withhold relevant information from the State Banking Board.
NEW RULE IV DECISION OF STATE BANKING BOARD; INCORPORATION (1) Approval of an application for an interim bank certificate of authority under this rule will be accomplished through a telephone conference call with a quorum of the board participating.
(2) The provisions of ARM 2.60.202 and 2.60.204(1) and (2) apply to an application for an interim bank certificate of authority.
(3) Within two weeks after the conclusion of the hearing before the State Banking Board, the State Banking Board shall issue a decision as to whether to approve the application for the interim bank. This two-week period may be extended by two additional weeks if the State Banking Board or the department requires more time or information.
(4) The receipt and approval of the information in [New Rules II and III] constitute sufficient authority for the State Banking Board to approve the issuance of a certificate of authorization to the interim bank.
(5) The State Banking Board may require additional information as it sees fit from an applicant before approving the application.
(6) The State Banking Board's approval shall be specifically conditioned on the approval of the subsequent merger.
(7) Upon the State Banking Board's approval of the interim bank application, the incorporator shall take the necessary steps to conform the articles of incorporation and by-laws to the requirements of the State Banking Board. The commissioner shall approve the articles and the department shall then file the necessary documents with the Secretary of State.
AUTH: 32-1-218, MCA
IMP: 32-1-109, 32-1-202, 32-1-204, 32-1-205, 32-1-218, 32-1-302, MCA
STATEMENT OF REASONABLE NECESSITY: Section 32-1-204, MCA, requires that a hearing be conducted on all applications for a new bank certificate of authorization. However, in the case of a state bank organized for the purpose of assuming the deposit liability of a closed bank, the hearing before the State Banking Board is conducted by telephone conference call with a quorum of the board participating. The department decided to adopt a like process for interim banks because it will be less difficult for the members of the State Banking Board to conduct a telephone conference call than for all the members of the State Banking Board to coordinate a time to drive to Helena to attend an in-person board meeting.
The State Banking Board has no way to investigate an application so this rule makes the provisions of ARM 2.60.202, which require the department to investigate and report to the State Banking Board, applicable to interim bank applications. The State Banking Board uses the Attorney General's model rules and Robert's Rules of Order to conduct its meetings. The provisions are proposed to be made applicable to proceedings involving interim banks as well since they are the general rules the State Banking Board operate under. The State Banking Board could adopt a whole new set of rules of order and procedure that would apply only to a proceeding involving a request for a charter for an interim bank. But since there are already established rules in existence that have proven over time to be efficacious in other various settings in which rules are required, it behooves the State Banking Board to adopt rules that have been litigated previously and on which there is a general agreement as to what the terms mean rather than drafting all new rules of order and procedure.
Because this process is designed to be a summary process, the rule proposes a two-week timeframe for a final decision unless the time is extended by the State Banking Board or the department if additional time is needed to make the final decision regarding approval or denial of the application. Two weeks was chosen because this is a summary process and time is of the essence.
Section (4) is designed to make clear that the State Banking Board may authorize a new interim bank if it approves the information set forth in New Rules II and III because the rules are designed to provide the State Banking Board with the information that it needs to determine if the statutory criteria for chartering a new bank have been met. The other statutes and rules that apply in the case of de novo banks do not apply here.
Section (5) provides that the State Banking Board members are not limited to only the information before them. The State Banking Board may ask for any additional information it deems necessary. The department proposes this flexibility because the State Banking Board is responsible for chartering a shell bank. It must be able to satisfy itself that it has investigated and determined that the requirements for the approval of a shell bank have been met.
Since the definition of an interim bank is a bank organized solely for the purpose of merging with an existing state bank or savings association, the approval of the State Banking Board must be conditioned on the approval of the merger. If that merger is not approved, there is no reason for the interim bank to exist.
The last section of this rule sets forth the procedure for the applicant and the department to follow after the State Banking Board approves the application for an interim charter. The department proposes this particular procedure because Montana law requires the process to be followed in order to organize and charter a new bank.
NEW RULE V POWERS OF INTERIM BANK BEFORE MERGER (1) An interim bank may take only those corporate and fiduciary steps and actions reasonably incidental and necessary to facilitate and complete the merger. Such limitation does not preclude the State Banking Board from ordering the department to grant a certificate of authorization, and to otherwise facilitate and authorize the formation and incorporation of the interim bank.
AUTH: 32-1-218, MCA
IMP: 32-1-109, 32-1-218, MCA
STATEMENT OF REASONABLE NECESSITY: Section 32-1-109(17), MCA, provides that an interim bank cannot conduct any banking business before merging with an existing state bank or savings association. This rule is designed to make clear that the bank can take the steps necessary to form and organize itself and merge without violating 32-1-109(17), MCA. If this were not the case, it would be impossible to form and organize an interim charter and merge it. The law never requires impossibilities. Section 1-3-222, MCA.
NEW RULE VI PROOF OF MERGER: REVOCATION OF CERTIFICATE OF AUTHORIZATION (1) From the date an interim bank is authorized according to this rule, the parties to the interim bank agreement have six months in which to effect the merger with the existing bank or savings association. The merger must proceed under 32-1-370 or 32-1-371, MCA.
(2) The department may grant extensions if the parties to the interim bank agreement show good cause as to why an extension is needed to complete the merger.
(3) The department may cancel or revoke the certificate of authorization of the interim bank (and may take such other steps as are appropriate at any time) if:
(a) proof of the merger between the interim bank and the existing bank or savings association has not been provided to the department at the end of the authorized time;
(b) the interim bank actually conducts any banking business prior to its proposed merger; or
(c) any related merger or consolidation application is denied or withdrawn.
AUTH: 32-1-218, MCA
IMP: 32-1-218, 32-1-502, MCA
STATEMENT OF REASONABLE NECESSITY: Since the entire purpose of an interim charter is to fulfill a merger, if after the interim bank is chartered, the merger does not occur for some reason, the department must be able to cancel the certificate of authority of the interim bank. Otherwise, there will be unused interim bank charters in existence with no way to use them or get rid of them. The department also needs the ability to revoke a certificate of authorization if any banking business is conducted by the interim charter before the merger or consolidation. The interim bank charter is, by definition, not a de novo bank and it cannot do business as a bank until after the merger or consolidation is complete.
NEW RULE VII FEES (1) A nonrefundable fee of $1,000 to offset the administrative expense of the department must be included with the application, provided, however, the fee is considered a part of and not in addition to any fee being paid at the same time to the department in connection with a contemporaneous application for a merger.
(2) Depending on the structure of the transaction, other fees may be required in accordance with applicable statutes or rules.
AUTH: 32-1-218, MCA
IMP: 32-1-109, 32-1-218, MCA
STATEMENT OF REASONABLE NECESSITY: The department is charged by ARM 2.60.202 with conducting investigations of an applicant at the State Banking Board's direction. The department is a proprietary agency, which is self-funded through the fees it charges its licensees. In order to cover the cost of investigation of an applicant and the costs associated with an application for an interim bank, the department must charge an amount that will cover its staff time and expenses in processing and investigating the application. The cost of an application for a de novo bank is $10,000. However, since this is a simpler and shorter process, the fee for an interim bank can be much less. In this case, the department estimates that the staff time and expenses, including the stipend for the members of the State Banking Board, can be covered by a fee of $1,000.
The cumulative amount for all persons of the proposed fee above cannot be estimated. It depends on the number of mergers that will occur in the future that will require a shell bank to be organized. At this time, the department does not know the number of persons that will be affected by this fee. It also depends on the number of mergers in which the parties will choose to use a shell bank. The department cannot estimate the number of mergers in which this process may be used, but wants to make it available to merging institutions in case it may be beneficial for them.
Since the interim bank cannot be used or exist outside of a merger process and there is already a fee for a merger, the department has chosen to make the interim bank fee apply toward the merger fee, not in addition to the merger fee. This is because some of the documents (articles of incorporation and resumes of principal shareholders, officers, and directors) are the same and once they are reviewed, there is no need to review them again. So the cost to apply for the interim bank should go toward the fee for a merger.
4. Concerned persons may present their data, views, or arguments, either orally or in writing, at the hearing. Written data, views, or arguments may also be submitted to Kelly O'Sullivan, Legal Counsel, Division of Banking and Financial Institutions, P.O. Box 200546, Helena, Montana 59620-0546; faxed to the office at (406) 841-2930; or e-mailed to email@example.com, and must be received no later than 5:00 p.m., September 6, 2013.
5. If persons who are directly affected by the proposed action wish to express their data, views, or arguments orally or in writing at a public hearing, they must make written request for a hearing and submit this request along with any written comments to Kelly O'Sullivan at the above address no later than 5:00 p.m., September 6, 2013.
6. If the department receives requests for a public hearing on the proposed action from either 10% or 25, whichever is less, of the persons directly affected by the proposed action; from the appropriate administrative rule review committee of the Legislature; from a governmental subdivision or agency; or from an association having not less than 25 members who will be directly affected, a hearing will be held at a later date. Notice of the hearing will be published in the Montana Administrative Register. Ten percent of those affected has been determined to be six persons based on the number of existing state-chartered banks which is 57.
7. The Division of Banking and Financial Institutions maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this division. Persons who wish to have their name added to the mailing list shall make a written request that includes the name and mailing address and e-mail address of the person to receive notices and specifies that the person wishes to receive notices regarding division rulemaking actions. Notices will be sent by e-mail unless a mailing preference is noted in the request. Written requests may be mailed or delivered to Wayne Johnston, Division of Banking and Financial Institutions, 301 S. Park, Ste. 316, P.O. Box 200546, Helena, Montana 59620-0546; faxed to the office at (406) 841-2930; e-mailed to firstname.lastname@example.org; or may be made by completing a request form at any rules hearing held by the department.
8. An electronic copy of this proposal notice is available through the department's web site at http://doa.mt.gov/administrativerules.mcpx. The department strives to make the electronic copy of the notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that if a discrepancy exists between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered. In addition, although the department works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.
9. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.
10. The department has determined that these proposed rule amendments will not significantly and directly affect small businesses.
By: /s/ Sheila Hogan By: /s/ Michael P. Manion
Sheila Hogan, Director Michael P. Manion, Rule Reviewer
Department of Administration Department of Administration
Certified to the Secretary of State July 29, 2013