§412:1-109  Definitions.  As used
in this chapter, except as otherwise specifically provided herein:



"Affiliate" with respect to an
existing or proposed financial institution or a financial institution holding
company, means any company that controls the financial institution or the
financial institution holding company and any other company that is under
common control with the financial institution or the financial institution
holding company.  The following shall not be considered to be an affiliate:



(1)  Any company, other than a financial institution,
that is a subsidiary of a financial institution;



(2)  Any company engaged solely in holding or leasing
the premises of a financial institution;



(3)  Any company engaged solely in conducting a safe
deposit business;



(4)  Any company engaged solely in holding obligations
of the United States or its agencies or obligations fully guaranteed by the
United States or its agencies as to principal and interest; and



(5)  Any company where control results from the exercise
of rights arising out of a bona fide debt previously contracted, but only for
the period of time specifically authorized under applicable state or federal
law or regulation.



"Aggregate net contribution to
capital" of a company means the sum of amounts employed to purchase
capital stock of a company and to make contributions to the company's capital
and surplus, less amounts received upon the sale or redemption of capital stock
of the company or received in distributions with respect to the company's
capital stock other than amounts received in distributions from the accumulated
net earnings of the company.



"Aggregate outstanding investment" in
a company means the sum of amounts employed to purchase capital stock of a
company, to make contributions to the company's capital and surplus and to
invest in obligations of the company, less amounts received upon the sale or
redemption of capital stock of the company, amounts received in distributions
with respect to the company's capital stock other than distributions from the
accumulated net earnings of the company, and amounts received to retire
obligations of the company.



"Appropriate federal regulatory
agency" means, with respect to a financial institution or financial
institution holding company, any one or more regulatory agencies of the federal
government referred to in the following sentence which either (1) insures the
deposits of the financial institution or financial institution holding company,
or (2) has the power and duty to conduct periodic general examinations of the
affairs of the financial institution or financial institution holding company
by virtue of the legal characterization of the financial institution or
financial institution holding company under federal law, and not by virtue of the
fact of affiliation of the financial institution or financial institution
holding company with any other person or an alleged violation of a specific
law.  Subject to the preceding sentence, an appropriate federal regulatory
agency may be the Federal Deposit Insurance Corporation, the Comptroller of the
Currency, the Federal Reserve Board, the Office of Thrift Supervision, the
National Credit Union Administration or any regulatory agency of the federal
government which shall succeed to the insurance or supervisory duties of one of
the foregoing.



"Capital" means:



(1)  The aggregate par value or other amount received
and allocated to the issued and outstanding capital stock of a financial
institution; or



(2)  The total amount of a credit union's outstanding
and unimpaired membership shares or share accounts.



"Capital stock" means the units of
interest, whether or not having a par value, common or preferred, legally
issued by a financial institution or other corporation, which represents a
fractional ownership interest in the institution or corporation. The term does
not include shares or membership in a credit union.



"Circuit court" means the court
established in each of the judicial circuits of this State pursuant to chapter
603 and which has jurisdiction under section 412:1-108 over a matter.



"Commissioner" means the commissioner
of financial institutions of this State.



"Common stock" means all capital
stock of a financial institution or other corporation that is not preferred
stock.



"Company" means any corporation,
partnership, trust (business or otherwise), association, joint venture, pool
syndicate, unincorporated organization, or any form of business entity not
specifically listed herein and, unless specifically excluded, a financial
institution; provided that "company" does not mean any trust existing
on July 1, 1993, which under its terms must terminate within twenty-five
years, or not later than twenty-one years and ten months after the death of
individuals living on the effective date of the trust.



"Comparable financial institution"
means:



(1)  In the case of a bank that is a Hawaii financial
institution, a national banking association, and vice versa;



(2)  In the case of a savings and loan association or
savings bank that is a Hawaii financial institution, a federal savings and loan
association or federal savings bank, and vice versa; and



(3)  In the case of a credit union that is a Hawaii financial institution, a federal credit union, and vice versa.



"Conservator" means a person
appointed by the commissioner to take possession and control of a Hawaii financial institution for a temporary period in order to preserve and protect the
assets of the institution for the benefit of its depositors, beneficiaries,
creditors, and shareholders or members.



"Control" means, unless the context
clearly requires otherwise, directly or indirectly, solely or through another
person or transaction, or in concert with another:



(1)  Owning or having the power to vote twenty-five
per cent or more of any class of voting securities;



(2)  Owning or having the power to exercise
twenty-five per cent or more of the votes of a mutual association, credit
union, or other entity whose voting rights are not determined by voting
securities;



(3)  Owning or having the power to vote ten per cent
or more of any class of voting securities if:  (A) the issuer of that class of
securities has issued any class of securities under section 12 of the
Securities Exchange Act of 1934, as amended; or (B) immediately after the
acquisition, no other person will own a greater percentage of that class of
voting securities;



(4)  Having the power to elect by any means a majority
of the directors; or



(5)  Having the power to exercise a dominant influence
over management, if so determined by the commissioner after notice and a
hearing.



No depository institution or trust company
shall be deemed to own or control a company by virtue of its ownership or
control of shares in a fiduciary capacity, unless that depository institution
or trust company has sole voting power over a sufficient number of voting
securities of the company to constitute control hereunder.



"Deposit" or "deposits"
means money or its equivalent received or held by a person in the usual course
of business and for which it has given or is obligated to give credit, either
conditionally or unconditionally, to a demand, checking, savings, time,
passbook, negotiable order of withdrawal, thrift or share account, or which is
evidenced by its passbook, certificate of deposit, thrift certificate, investment
certificate, certificate of indebtedness, or other similar instrument, or a
check, draft or share draft drawn against a deposit account and certified by a
person, on which the person is primarily liable.



"Depository institution" means a
financial institution that is authorized to accept deposits under its
chartering or licensing authority and includes a bank, savings bank, savings
and loan association, depository financial services loan company, credit union,
or intra-Pacific bank.



"Director" means any member of the
board of directors of a financial institution, whether or not receiving
compensation.  An advisory director is not considered a director if the
advisory director (1) is not elected by the shareholders of the financial
institution, (2) is not authorized to vote on matters before the board of
directors, and (3) provides solely general policy advice to the board of
directors.



"Division" means the division of
financial institutions of the department of commerce and consumer affairs of
this State.



"Executive officer" of a financial
institution means a person who participates or has authority to participate
(other than in the capacity of a director) in major policymaking functions of
the financial institution, whether or not:  (1) the officer has an official
title, (2) the title designates the officer as an assistant, or (3) the officer
is serving without salary or other compensation.  The chairperson of the board,
the president, every vice president, the secretary, and the treasurer of a financial
institution are considered executive officers, unless (1) the officer is
excluded, by resolution of the board of directors or by the bylaws of the
financial institution, from participation (other than in the capacity of a
director) in major policymaking functions of the financial institution, and (2)
the officer does not actually participate in such major policymaking
functions.  An executive officer of a financial institution includes an
executive officer of any subsidiary of the financial institution, unless the
executive officer of the subsidiary (1) is excluded (by name or by title) from
participation in major policymaking functions of the financial institution by
resolutions of the boards of directors of both the subsidiary and the financial
institution, and (2) does not actually participate in such major policymaking
functions.



"Federal" means belonging to, part
of, or related to the government of the United States of America.



"Federal financial institution" means
a national banking association, federal savings bank, federal savings and loan
association or federal credit union.



"Federal Home Loan Bank" means a
federal home loan bank created and organized under the authority of the Federal
Home Loan Bank Act.



"Federal Reserve Bank" means a federal
reserve bank created and organized under the authority of the Federal Reserve
Act.



"Federal Reserve Board" means the
Board of Governors of the Federal Reserve System created and described in the
Federal Reserve Act.



"Financial institution" means a Hawaii financial institution, and unless the context indicates otherwise, a federal
financial institution or foreign financial institution.



"Financial institution holding
company" means a holding company which controls a Hawaii financial
institution or which controls another financial institution holding company. 
The following persons shall not be deemed to come within the definition of a
financial institution holding company:



(1)  A registered dealer who acts as an underwriter or
member of a selling group in a public offering of the voting securities of a
financial institution or of a financial institution holding company;



(2)  A person who acts as proxy for the sole purpose
of voting at a designated meeting of the security holders of a financial
institution or of a financial institution holding company;



(3)  A person who acquires control of a financial
institution or of a financial institution holding company by devise or descent;
or



(4)  A pledgee of a voting security of a financial
institution or of a financial institution holding company who does not have the
right, as pledgee, to vote such voting security.



"Financial institution subsidiary"
means:  (1) a financial institution that is controlled by a financial
institution holding company, or (2) a financial institution holding company
that is controlled by another holding company.



"Foreign financial institution" means
a person, other than a Hawaii financial institution or a federal financial
institution whose operations are principally conducted in this State, which is
authorized to engage under the laws of its jurisdiction of organization, or
does engage, in the business of accepting deposits or making loans or engaging
in the trust business.



"Hawaii financial institution" means:



(1)  A corporation or credit union that holds a
charter or license under this chapter or under prior Hawaii law, authorizing it
to accept deposits, to make loans in excess of the rates permitted in chapter
478, or to engage in the business of a trust company; or



(2)  A resulting bank as defined in article 12,



and includes a corporation or credit union existing
and chartered as a Hawaii financial institution or licensed to transact
business in this State on July 1, 1993.  A Hawaii financial institution may be
a bank, resulting bank as defined in article 12, savings bank, savings and loan
association, depository financial services loan company, nondepository
financial services loan company, trust company, credit union, or intra-Pacific
bank.



"Holding company" means any company
which controls another company.



"Impaired capital and surplus" or
similar language relating to impairment of capital or surplus, means that a
financial institution has less than the minimum amount of capital and surplus
required under this chapter for that type of financial institution.



"In concert with another" means (1)
knowing participation in a joint activity or interdependent conscious parallel
action towards a common goal whether or not pursuant to an express agreement;
or (2) a combination or pooling of voting or other interests in the securities
of an issuer for a common purpose pursuant to any contract, understanding,
relationship, agreement, or other arrangement, whether written or otherwise.



"Insolvency" means, with respect to a
financial institution, that the value of its assets is insufficient to pay its
depositors and its creditors.



"Institution-affiliated party" means
any of the following:



(1)  Any director, officer, employee or controlling
shareholder of, or agent for, or other person that controls a financial
institution;



(2)  Any person who has filed or is required to file
an application to become a financial institution with the commissioner or an
application to acquire control of a Hawaii financial institution or financial
institution holding company with the commissioner;



(3)  Any shareholder, consultant, joint venture
partner, and any other person as determined by the commissioner (by rule or
case-by-case) who participates in the conduct of the affairs of a financial
institution; or



(4)  Any independent contractor (including any
attorney, appraiser, or accountant) who knowingly or recklessly participates in
any of the following which caused or is likely to cause more than a minimal
financial loss to, or a significant adverse effect on, the financial
institution:



(A)  Any violation of law or rule,



(B)  Any breach of fiduciary duty, or



(C)  Any unsafe or unsound practice.



"Loans and extensions of credit" by a
financial institution means any direct or indirect advance of funds (including
obligations of makers and endorsers arising from the discounting of commercial
paper) to or for the benefit of a person made on the basis of any obligation of
that person to repay the funds.  "Loans and extensions of credit"
includes a contractual commitment to advance funds.  "Contractual
commitment to advance funds" means (1) an obligation to make payments,
directly or indirectly, to a third party contingent upon default by the
financial institution's customer in the performance of an obligation under the
terms of that customer's contract with the third party or upon some other
stated condition, or (2) an obligation to guarantee or stand as surety for the
benefit of a third party.  The term includes, but is not limited to, standby
letters of credit, guarantees, puts or other similar arrangements; but does not
include commercial letters of credit and similar instruments where the issuer
expects the beneficiary, to draw upon the issuer, which do not guaranty payment
of a money obligation, and which do not provide for payment in the event of
default of the account party.



"Obligation" means any bond, debt,
debenture, loan, note or similar undertaking.



"Obligor" means a person owing an
obligation.



"Open to the public" means accessible
or available to the general public during regular business hours without
special permission.



"Operations are principally
conducted" where total deposits placed with a person together with
deposits placed with its subsidiaries are largest.



"Paid-in capital" means the amount of
capital actually received by the financial institution for its capital stock,
membership shares or share accounts, as the case may be.



"Passbook" means any book, statement
of account, or other record used by a financial institution to record deposits,
withdrawals, interest, dividends and changes.



"Person" means a natural person,
entity or organization, including without limitation an individual,
corporation, joint venture, partnership, sole proprietorship, association,
cooperative, estate, trust, or governmental unit.



"Preferred stock" means capital stock
in a financial institution or other corporation which entitles its holders to
some preference or priority over the owners of common stock, usually with
respect to dividends or asset distributions in liquidation.



"Principal shareholder" means a
person other than a financial institution, that, directly or indirectly, or
acting through or in concert with another, owns, controls, or has the power to
vote more than ten per cent of any class of voting securities of a financial
institution.  Shares owned or controlled by a member of an individual's
immediate family are considered to be held by the individual.  As used in this
definition "immediate family" means the spouse of an individual, the
individual's minor children, and any of the individual's children (including
adults) residing in the individual's home.



"Receiver" means a person appointed
by the commissioner to take possession and control of a Hawaii financial
institution for the purpose of liquidating and winding up the affairs of the
institution.



"Related interest" means (1) a
company that is controlled by a person or (2) a political or campaign committee
that is controlled by a person or the funds or services of which will benefit a
person.



"Retained earnings" means the net
income of a financial institution earned since its inception which has not been
distributed to its shareholders or transferred or allocated to capital stock or
surplus or, as the case may be, the accumulated deficits of the financial institution. 
The term "retained earnings" is interchangeable with the term
"undivided profits".



"State" or "this State"
means the State of Hawaii, its political subdivisions, agencies, and
departments.



"Stock financial institution" means a
financial institution that issues shares of capital stock as evidence of
fractional ownership in the institution.  The term does not include credit
unions.



"Subsidiary" means a corporation,
joint venture, partnership, or other company that is controlled by another
corporation.



"Surplus" means an amount received by
a financial institution for its capital stock, membership shares, or share
accounts, as the case may be:  (1) in excess of the par value of any shares
having par value; or (2) in excess of the amount allocated to shares without
par value, membership shares or share accounts.  "Surplus" also means
an amount transferred or allocated to the financial institution's surplus from
retained earnings, and, unless the context otherwise clearly requires, "surplus"
includes retained earnings, whether or not transferred or allocated to surplus.
[L 1993, c 350, pt of §1; gen ch 1993; am L 1995, c 51, §1; am L 1999, c 245,
§1; am L 2001, c 170, §2; am L 2006, c 228, §4]



 



Revision Note



 



  In definitions of "company" and "Hawaii financial institution", "July 1, 1993" substituted for "the
effective date of this chapter".