AB872: Bill Text

AB872,118,11 221.0710 Dissenters' notice. (1) When required. If a proposed corporate action creating dissenters' rights under s. 221.0706 is authorized at a shareholders' meeting, the bank shall deliver a written dissenters' notice to all shareholders and beneficial shareholders who satisfied s. 221.0709 (1).

AB872,118,16 (2) Timing and content of notice. The dissenters' notice shall be sent no later than 10 days after the corporate action is authorized at a shareholders' meeting or without a vote of shareholders, whichever is applicable, and all necessary regulatory approvals are obtained. The dissenters' notice shall comply with s. 221.0103 and shall include or have attached all of the following:

AB872,118,19 (a) A statement indicating where the shareholder or beneficial shareholder must send the payment demand and where and when certificates for certificated shares must be deposited.

AB872,118,21 (b) For holders of uncertificated shares, an explanation of the extent to which transfer of the shares will be restricted after the payment demand is received.

AB872,119,2 (c) A form for demanding payment that includes the date of the first announcement to news media or to shareholders of the terms of the proposed corporate action and that requires the shareholder or beneficial shareholder asserting dissenters' rights to certify whether he or she acquired beneficial ownership of the shares before that date.

AB872,119,5 (d) A date by which the bank must receive the payment demand, which may not be fewer than 30 days nor more than 60 days after the date on which the dissenters' notice is delivered.

AB872,119,6 (e) A copy of ss. 221.0701 to 221.0718.

AB872,119,14 221.0711 Duty to demand payment. (1) Manner of demanding payment. A shareholder or beneficial shareholder who is sent a dissenters' notice described in s. 221.0710, or a beneficial shareholder whose shares are held by a nominee who is sent a dissenters' notice described in s. 221.0710, must demand payment in writing and certify whether he or she acquired beneficial ownership of the shares before the date specified in the dissenters' notice under s. 221.0710 (2) (c). A shareholder or beneficial shareholder with certificated shares must also deposit his or her certificates in accordance with the terms of the notice.

AB872,119,19 (2) Effect of demand on holders of certificated shares. A shareholder or beneficial shareholder with certificated shares who demands payment and deposits his or her share certificates under sub. (1) retains all other rights of a shareholder or beneficial shareholder until these rights are canceled or modified by the effectuation of the corporate action.

AB872,119,25 (3) Effect of failure to demand. A shareholder or beneficial shareholder with certificated or uncertificated shares who does not demand payment by the date set in the dissenters' notice, or a shareholder or beneficial shareholder with certificated shares who does not deposit his or her share certificates where required and by the date set in the dissenters' notice, is not entitled to payment for his or her shares under ss. 221.0701 to 221.0718.

AB872,120,4 221.0712 Restriction on uncertificated shares. (1) When transfer restrictions permitted. The issuer bank may restrict the transfer of uncertificated shares from the date that the demand for payment for those shares is received until the corporate action is effectuated or the restrictions released under s. 221.0714.

AB872,120,9 (2) Effect of demand on holders of uncertificated shares. The shareholder or beneficial shareholder who asserts dissenters' rights as to uncertificated shares retains all of the rights of a shareholder or beneficial shareholder, other than those restricted under sub. (1), until these rights are canceled or modified by the effectuation of the corporate action.

AB872,120,14 221.0713 Payment. (1) When payment made. Except as provided in s. 221.0715, as soon as the corporate action is effectuated or upon receipt of a payment demand, whichever is later, the bank shall pay each shareholder or beneficial shareholder who has complied with s. 221.0711 the amount that the bank estimates to be the fair value of his or her shares, plus accrued interest.

AB872,120,16 (2) Material to accompany payment. The payment shall be accompanied by all of the following:

AB872,120,20 (a) The bank's latest available financial statements, including a balance sheet as of the end of a fiscal year ending not more than 16 months before the date of payment, an income statement for that year, a statement of changes in shareholders' equity for that year and the latest available interim financial statements, if any.

AB872,120,21 (b) A statement of the bank's estimate of the fair value of the shares.

AB872,120,22 (c) An explanation of how the interest was calculated.

AB872,120,24 (d) A statement of the dissenter's right to demand payment under s. 221.0716 if the dissenter is dissatisfied with the payment.

AB872,120,25 (e) A copy of ss. 221.0701 to 221.0718.

AB872,121,4 221.0714 Failure to take action. (1) Action not taken. If an issuer bank does not effectuate the corporate action within 60 days after the date set under s. 221.0710 for demanding payment, the issuer bank shall return the deposited certificates and release the transfer restrictions imposed on uncertificated shares.

AB872,121,8 (2) Action taken at a later date. If, after returning deposited certificates and releasing transfer restrictions, the issuer bank effectuates the corporate action, the bank shall deliver a new dissenters' notice under s. 221.0710 and repeat the payment demand procedure.

AB872,121,14 221.0715 After-acquired shares. (1) Withholding for after-acquired shares. A bank may elect to withhold payment required by s. 221.0713 from a dissenter unless the dissenter was the beneficial owner of the shares before the date specified in the dissenters' notice under s. 221.0710 (2) (c) as the date of the first announcement to news media or to shareholders of the terms of the proposed corporate action.

AB872,121,21 (2) Payment. To the extent that the bank elects to withhold payment under sub. (1) after effectuating the corporate action, the bank shall estimate the fair value of the shares, plus accrued interest, and shall pay this amount to each dissenter who agrees to accept it in full satisfaction of his or her demand. The bank shall send with its offer a statement of its estimate of the fair value of the shares, an explanation of how the interest was calculated, and a statement of the dissenter's right to demand payment under s. 221.0716 if the dissenter is dissatisfied with the offer.

AB872,122,3 221.0716 Procedure if dissenter is dissatisfied with payment or offer. (1) Rights of dissenter. A dissenter may, in the manner provided in sub. (2), notify the bank of the dissenter's estimate of the fair value of his or her shares and the amount of interest due, and demand payment of his or her estimate, less any payment received under s. 221.0713, or reject the offer under s. 221.0715 and demand payment of the fair value of his or her shares and interest due, if any of the following applies:

AB872,122,6 (a) The dissenter believes that the amount paid under s. 221.0713 or offered under s. 221.0715 is less than the fair value of his or her shares or that the interest due is incorrectly calculated.

AB872,122,8 (b) The bank fails to make payment under s. 221.0715 within 60 days after the date set under s. 221.0710 for demanding payment.

AB872,122,12 (c) The issuer bank, having failed to effectuate the corporate action, does not return the deposited certificates or release the transfer restrictions imposed on uncertificated shares within 60 days after the date set under s. 221.0710 for demanding payment.

AB872,122,16 (2) Waiver of rights. A dissenter waives his or her right to demand payment under this section unless the dissenter notifies the bank of his or her demand under sub. (1) in writing within 30 days after the bank makes or offers payment for his or her shares. The notice shall comply with s. 221.0103.

AB872,122,22 221.0717 Court action. (1) When special proceeding required. If a demand for payment under s. 221.0716 remains unsettled, the bank shall bring a special proceeding within 60 days after receiving the payment demand under s. 221.0716 and petition the court to determine the fair value of the shares and accrued interest. If the bank does not bring the special proceeding within the 60-day period, it shall pay each dissenter whose demand remains unsettled the amount demanded.

AB872,123,3 (2) Where proceeding to be brought. The bank shall bring the special proceeding in the circuit court for the county where its principal office or, if none in this state, its registered office is located. If the bank is a foreign bank without a registered office in this state, it shall bring the special proceeding in the county in this state in which was located the registered office of the issuer bank that merged with or whose shares were acquired by the foreign bank.

AB872,123,7 (3) Parties to the proceeding. The bank shall make all dissenters, whether or not residents of this state, whose demands remain unsettled parties to the special proceeding. Each party to the special proceeding shall be served with a copy of the petition as provided in s. 801.14.

AB872,123,13 (4) Jurisdiction. The jurisdiction of the court in which the special proceeding is brought under sub. (2) is plenary and exclusive. The court may appoint one or more persons as appraisers to receive evidence and recommend a decision on the question of fair value. An appraiser has the power described in the order appointing him or her or in any amendment to the order. The dissenters are entitled to the same discovery rights as parties in other civil proceedings.

AB872,123,15 (5) Judgements. Each dissenter made a party to the special proceeding is entitled to judgment for any of the following:

AB872,123,17 (a) The amount, if any, by which the court finds the fair value of his or her shares, plus interest, exceeds the amount paid by the bank.

AB872,123,20 (b) The fair value, plus accrued interest, of his or her shares acquired on or after the date specified in the dissenters' notice under s. 221.0710 (2) (c), for which the bank elected to withhold payment under s. 221.0715.

AB872,123,25 221.0718 Court costs and counsel fees. (1) Assessment of and liability for costs. (a) Notwithstanding ss. 814.01 to 814.04, the court in a special proceeding brought under s. 221.0717 shall determine all costs of the proceeding, including the reasonable compensation and expenses of appraisers appointed by the court and shall assess the costs against the bank, except as provided in par. (b).

AB872,124,4 (b) Notwithstanding ss. 814.01 and 814.04, the court may assess costs against all or some of the dissenters, in amounts that the court finds to be equitable, to the extent that the court finds the dissenters acted arbitrarily, vexatiously or not in good faith in demanding payment under s. 221.0716.

AB872,124,8 (2) When liable for fees and costs. The parties shall bear their own expenses of the proceeding, except that, notwithstanding ss. 814.01 to 814.04, the court may also assess the fees and expenses of counsel and experts for the respective parties, in amounts that the court finds to be equitable, as follows:

AB872,124,10 (a) Against the bank and in favor of any dissenter if the court finds that the bank did not substantially comply with ss. 221.0708 to 221.0716.

AB872,124,14 (b) Against the bank or against a dissenter, in favor of any other party, if the court finds that the party against whom the fees and expenses are assessed acted arbitrarily, vexatiously or not in good faith with respect to the rights provided by this chapter.

AB872,124,19 (3) Payment of counsel and experts from recovery. Notwithstanding ss. 814.01 to 814.04, if the court finds that the services of counsel and experts for any dissenter were of substantial benefit to other dissenters similarly situated, the court may award to these counsel and experts reasonable fees to be paid out of the amounts awarded the dissenters who were benefited.

AB872,124,20 SUBCHAPTER VIII

AB872,124,21 DISSOLUTION AND LIQUIDATION

AB872,125,3 221.0801 Liquidation. (1) When authorized. A bank organized or doing business under this chapter may go into liquidation by a vote of its shareholders owning a majority of the capital stock outstanding or such greater percentage required under the articles of incorporation or bylaws. If a vote is taken to go into liquidation, the board of directors shall give notice of this fact to the division, and the notice shall be certified by an officer of the bank. A liquidating bank may not transfer assets or liabilities to another bank until the transfer is approved by the division.

AB872,125,7 (2) Notice. The board of directors shall also give notice of this fact by certified mail to all persons whose names appear as creditors upon the books of the bank and by publication as a class 3 notice, under ch. 985. The notice shall direct all persons who may have claims against the bank to file the claims.

AB872,125,19 221.0802 Banks may be placed in hands of division. A bank doing business under this chapter may place its affairs and assets under the control of the division by posting a notice on its front door, as follows: "This bank is in the hands of the Division of Banking of the Department of Financial Institutions". Immediately upon posting such notice, the bank shall notify the division of this action. The posting of the notice, or the taking possession of a bank by the division, places the bank's assets and property in the possession of the division, and bars any attachment proceedings. For each day the division is placed in possession of the bank, and until such time as a special deputy is appointed under s. 220.08 (4), the bank shall pay to the division the actual cost of such liquidation proceedings. The division shall pay the amounts to the state treasurer and the percentage specified in s. 20.124 (1) (g) shall be credited to the appropriation account under s. 20.124 (1) (g).

AB872,126,3 221.0803 Charter, how forfeited. If the board of directors or a quorum thereof or any committee of the board of any bank knowingly violates or knowingly permits any of the officers, agents or employes of the bank to violate this chapter, the directors are jointly and severally liable for the amount of the loss sustained by the bank. If, after a warning from the division, the directors shall fail to make good any loss or damage resulting from the violations, or continue such conduct, it shall constitute a ground for the forfeiture of the charter of the bank, and the division shall institute proceedings to enforce the forfeiture and to secure a dissolution and a winding up of the affairs of the bank.

AB872,126,4 SUBCHAPTER IX

AB872,126,6 INTERSTATE BANKING AND FOREIGN BANKS

AB872,126,9 221.0901 Acquisitions of banks and bank holding companies. (1) Applicability. This section applies to acquisitions of an in-state bank or an in-state bank holding company by any company.

AB872,126,10 (2) Definitions. In this section:

AB872,126,11 (a) "Affiliate" has the meaning set forth in 12 USC 1841 (k).

AB872,126,12 (b) "Bank" has the meaning set forth in 12 USC 1841 (c).

AB872,126,15 (c) "Bank holding company" has the meaning set forth in 12 USC 1841 (a), and unless the context otherwise requires, includes an in-state bank holding company, an out-of-state bank holding company and a foreign bank holding company.

AB872,126,19 (d) "Bank supervisory agency" means the U.S. office of the comptroller of the currency, the federal deposit insurance corporation, the board of governors of the federal reserve system, or any successor to these agencies, or any agency of another state with primary responsibility for chartering and supervising banks.

AB872,126,21 (f) "Company" has the meaning set forth in 12 USC 1841 (b) and includes a bank holding company.

AB872,126,22 (g) "Control" shall be interpreted consistently with 12 USC 1841 (a).

AB872,126,23 (h) "Deposit" has the meaning set forth in 12 USC 1813 (1).

AB872,126,25 (i) "Depository institution" means any insured depository institution under 12 USC 1813 (c) (2) and (3).

AB872,127,3 (j) "Foreign bank holding company" means a bank holding company that is organized under the laws of a country other than the United States or any territory or possession of the United States.

AB872,127,6 (k) "In-state bank" means a bank that is organized under this chapter, a trust company bank organized under ch. 223 or a bank organized under federal law and having its principal place of business in this state.

AB872,127,10 (L) "In-state bank holding company" means a bank holding company that has its principal place of business in this state or a company that has control of a trust company organized under ch. 223 and is not controlled by a bank holding company other than an in-state bank holding company.

AB872,127,13 (m) "Out-of-state bank holding company" means a bank holding company that is not an in-state bank holding company and, unless the context requires otherwise, includes a foreign bank holding company.

AB872,127,15 (n) "Principal place of business" of a bank holding company means the state in which the total deposits of its bank subsidiaries are the greatest.

AB872,127,17 (p) "State" means any state, territory or other possession of the United States, including the District of Columbia.

AB872,127,18 (q) "Subsidiary" has the meaning set forth in 12 USC 1841 (d).

AB872,127,21 (3) Approval requirements. (a) Except as otherwise expressly permitted by federal law or par. (b), no company may do any of the following without the prior approval of the division:

AB872,127,22 1. Merge or consolidate with an in-state bank holding company.

AB872,127,23 2. Assume direct or indirect ownership or control of:

AB872,128,3 a. More than 25% of any class of voting shares of an in-state bank holding company or an in-state bank, if the acquiring company is not a bank holding company prior to the acquisition.

AB872,128,6 b. More than 5% of any class of voting shares of an in-state bank holding company or an in-state bank, if the acquiring company is a bank holding company prior to the acquisition.

AB872,128,8 c. All or substantially all of the assets of an in-state bank holding company or an in-state bank.

AB872,128,10 3. Take other action that results in the direct or indirect acquisition of control of an in-state bank holding company or an in-state bank.

AB872,128,12 (b) The approval of the division is not needed under par. (a) in any of the following transactions:

AB872,128,14 1. A transaction arranged by the division or a bank supervisory agency to prevent the insolvency or closing of the acquired bank.

AB872,128,17 2. A transaction in which a bank forms its own bank holding company, if the ownership rights of the former bank shareholders are substantially similar to those of the shareholders of the new bank holding company.

AB872,128,21 (c) In a transaction under par. (b) in which the division's approval is not required, the parties shall give written notice to the division at least 15 days before the effective date of the acquisition, unless a shorter period of notice is required under applicable federal law.

AB872,128,23 (4) Required application. A company that requires the division's approval under sub. (3) (a) shall do all of the following:

AB872,128,24 (a) File with the division an application in the form that the division requires.

AB872,128,25 (b) Pay to the division an application fee determined by the division.

AB872,129,3 (c) Reimburse the division for all actual costs incurred by the division in making an investigation related to the application under par. (a) and in holding any hearing on the application.

AB872,129,9 (d) Cause to be published a class 3 notice, under ch. 985, in the form prescribed by the division, in the official state newspaper, of the application under par. (a) and of the opportunity for a hearing under sub. (5). If the application is to acquire an in-state bank, the notice also shall be published in a newspaper of general circulation in the city, village or town where the home office of the in-state bank is located.

AB872,129,11 (e) File with the division proof of publication of the notice under par. (d), upon completion of the publication of the notice.

AB872,129,14 (f) If the applicant is an out-of-state bank holding company, submit to the division with the application, proof that the applicant has complied with, or is exempt from, the requirements of subch. XV of ch. 180.

AB872,129,21 (5) Hearing. (a) Except as provided in par. (b), the division shall hold a hearing on the application under sub. (4) (a) if at least 25 residents of this state petition for a hearing within 30 days after the notice under sub. (4) (d) or if the division, on its own motion, calls for a hearing within 30 days after the notice under sub. (4) (d). Except as provided in par. (b), the division may not approve any transaction under sub. (3) (a) until the later of 30 days after the notice under sub. (4) (d) or 30 days after any hearing required under this paragraph.

AB872,129,24 (b) Paragraph (a) does not apply to a proposed transaction if the division finds that an emergency exists and that the proposed transaction is necessary and appropriate to prevent the probable failure of an in-state bank.

AB872,130,2 (6) Standards for disapproval. The division may disapprove a transaction under sub. (3) (a) if the division finds any of the following:

AB872,130,6 (a) Considering the financial and managerial resources and future prospects of the applicant and of the in-state bank or in-state bank holding company, the transaction would be contrary to the best interests of the shareholders or customers of the in-state bank or in-state bank holding company.

AB872,130,10 (b) The action would be detrimental to the safety and soundness of the applicant or of the in-state bank or in-state bank holding company, or to the safety and soundness of a subsidiary or affiliate of the applicant, the in-state bank or the in-state bank holding company.