§412:3-613  Sale or acquisition ofassets and transfer or assumption of liabilities.  (a)  No Hawaii financialinstitution may sell, exchange, or otherwise dispose of all or substantiallyall of the financial institution's assets or business, or all or substantiallyall of the business of any of its branches, or, if not in the usual and regularcourse of business, all or substantially all of the assets or business of anyof its departments, or may cause or permit the assumption of all orsubstantially all its liabilities, or any of its deposits, or may acquire allor substantially all of the assets or assume all or substantially all of theliabilities or assume any deposits of another company, unless the commissionershall have given prior written approval to the acquisition or assumption, andonly if the acquisition or assumption complies with this part.

(b)  Whenever the transferring financialinstitution is a Hawaii financial institution, the sale or other disposition ofits assets or business or the transfer of its deposits or liabilities subjectto this section shall be effected pursuant to the procedures, conditions, andrequirements of chapter 414 applicable to the sale of assets other than in theregular course of business; provided that the sale or assumption shall beapproved by the shareholders or members of the transferring Hawaii financialinstitution at a meeting duly called and noticed and upon a vote whichsatisfies the requirements of section 412:3-604.  Notwithstanding theforegoing, the approval of the shareholders or members of the transferringinstitution shall not be required if the acquisition of all or substantiallyall of the assets or business, or the assumption of liabilities or deposits, ofany of the transferring financial institution's departments or branches doesnot constitute an acquisition of all or substantially all of the assets orbusiness, or assumption of all or substantially all of the liabilities ordeposits, of the transferring financial institution.

(c)  The participants in the transaction shalljointly file an application with the commissioner pursuant to section 412:3‑603for approval of the plan of acquisition or assumption.  The application shallcontain:

(1)  The plan of acquisition or assumption which shallinclude, but not be limited to, the names and types of participants involved,the material terms of the transaction, and the provisions as to the manner inwhich the participants in the transaction will comply with all applicablefederal and state law;

(2)  A certificate signed by two executive officers ofeach of the participants in the transaction verifying that the attached copy ofthe resolution approving the plan of acquisition or assumption adopted by theboard of directors of each of the participants in the transaction is true andcorrect; and

(3)  Any other information that the commissioner mayrequire.

(d)  The commissioner may require notice to begiven to the public as may seem appropriate.

(e)  The commissioner shall approve theacquisition or assumption if it appears that:

(1)  The depositors, beneficiaries, creditors,shareholders, or members, and other persons having any interest in thetransferring financial institution will be adequately protected under the planof acquisition or assumption;

(2)  The amount paid for the acquisition or assumptionwas determined at arm's length, and does not appear to be fraudulent;

(3)  The plan of acquisition or assumption does notadversely affect the stability of the acquiring or assuming participant if theparticipant is a Hawaii financial institution, and, if the sale is part of theliquidation of the transferring financial institution, provides for the orderlydissolution of the transferring institution in a manner consistent with law;

(4)  If one or more of the participants in thetransaction is subject to federal regulation, the participants will comply withall applicable federal laws;

(5)  The overall experience, moral character, orintegrity of the directors and executive officers of the acquiring or assumingparticipant is consistent with the interest of the depositors, beneficiaries,creditors, or shareholders of the acquiring or assuming participant, or in thepublic interest;

(6)  The acquisition or assumption will not jeopardizethe safety or soundness of any Hawaii financial institution which is aparticipant in the transaction, and is not otherwise contrary to the publicinterest;

(7)  The proposed acquisition or assumption will notsubstantially lessen competition or tend to create a monopoly or restraint oftrade in any section of the country that includes this State or a part thereof,or that any of these anti-competitive effects are clearly outweighed in thepublic interest by the probable effect of the acquisition or assumption inmeeting the convenience and needs of the community to be served; and

(8)  The plan of acquisition or assumption meets suchother criteria as the commissioner may deem appropriate.

(f)  Upon any required approval by theshareholders or members of the transferring financial institution, twoexecutive officers of the institution shall deliver to the commissioner acertificate that the sale or assumption was duly approved by the shareholdersor members of the transferring institution.  If the commissioner is satisfiedthat the participants in the transaction have complied with all applicablestate and federal law with regard to the adoption of the plan of acquisition orassumption, the commissioner shall give written approval to the participants inthe transaction to proceed with the plan to acquire or sell assets or to assumeliabilities. [L 1993, c 350, pt of §1; am L 1998, c 39, §§6 to 8; am L 2002, c40, §27]