Chapter 711 — Merger;
Conversion; Share Exchange; Acquisition; Liquidation; Insolvency
2011 EDITION
MERGER; CONVERSION; EXCHANGE;
ACQUISITION
FINANCIAL INSTITUTIONS
MERGER; CONVERSION; SHARE EXCHANGE;
ACQUISITION
(Conversion)
711.065 Conversion
of Oregon stock bank into insured stock institution
711.070 Conversion
of financial institution into Oregon stock bank; application
711.075 Conversion
of Oregon nonstock bank into financial institution
711.080 Conversion
of financial institution into Oregon nonstock bank;
application
711.085 Approval
of conversion of Oregon bank by board or shareholders
711.090 Conversion
of Oregon bank or Oregon trust company to corporation or limited liability
company
711.095 Approval
of plan of conversion; fee
711.100 Articles
of conversion; effective date of conversion
711.104 Rights
of member of Oregon bank or Oregon trust company to dissent to conversion from
limited liability company to corporation; demand required; notice and offer to
pay for shares; cost of appraisal of shares
(Merger, Share Exchange and Acquisition)
711.125 Merger
of Oregon stock bank with insured stock institution; company acquiring shares
of Oregon stock bank through share exchange
711.130 Approval
of plan of merger or share exchange involving Oregon stock bank; contents of
plan; fee
711.135 Action
by director on plan of merger or share exchange involving Oregon stock bank;
appeal
711.140 Approval
of merger or share exchange involving Oregon stock bank by stockholders
711.145 Effective
date of merger or share exchange involving Oregon stock bank
711.150 Merger
of Oregon nonstock bank with insured nonstock institution
711.155 Approval
of merger involving Oregon nonstock bank; contents of
plan; fee
711.160 Action
by director on plan of merger involving Oregon nonstock
bank; appeal
711.165 Effective
date of merger involving Oregon nonstock bank
711.170 Sale
of assets and transfer of liabilities by Oregon bank; approval of director and
board of directors; fee; appeal
711.175 Stockholder’s
right to dissent to merger, share exchange, transfer of assets or liabilities
or conversion
711.180 Rights
of stockholder dissenting to merger, share exchange, transfer of assets or
liabilities or conversion; demand required; notice and offer to pay for shares;
costs of appraisal of shares; when rights not applicable
711.185 Stockholder
withdrawal of demand for payment for shares made under ORS 711.180
(General Provisions)
711.190 Effect
of merger or conversion of Oregon bank; rights, powers, duties and liabilities
of resulting financial institution
711.195 Merger,
conversion or acquisition of Oregon bank involving trust company
711.197 Conditions
for resulting Oregon bank to conform with state law
711.199 Valuation
of assets on books of resulting Oregon bank
VOLUNTARY LIQUIDATION; DISSOLUTION
711.215 Voluntary
liquidation on approval of stockholders and director; costs of special
examination
711.217 Transactions
exempt from ORS 711.220 to 711.235
711.220 Notice
of voluntary liquidation; presentation of claims
711.225 Report
and transfer of unclaimed deposits
711.230 Claims;
time within which presented; extension of time
711.235 Report
of liquidation to director; disposition of remaining assets
711.240 Supervision
and control by director
711.250 Engaging
in banking or trust business prohibited after liquidation, transfer of deposit
liabilities or ceasing to do business for one year; dissolution
INSOLVENCY; LIQUIDATION BY DIRECTOR
711.400 Supervision
of liquidation by circuit court; called “supervising court”
711.405 When
institution deemed insolvent; rules
711.410 Transfer
of assets after commission of act of insolvency or in contemplation of
insolvency; exceptions
711.415 Receiving
deposits in excess of insurance while insolvent
711.419 Taking
possession of Oregon stock bank by director
711.430 Placing
business in control of director; notice
711.435 Resumption
of business of institution placed in control of director
711.440 Receivers
and assignments for benefit of creditors; notice to and action by director
711.445 Notice
of taking possession of institution; prohibition against liens subsequent to
insolvency
711.450 Prohibition
against applying to enjoin director from continuing possession
711.465 Transfer
of liquidation functions to Federal Deposit Insurance Corporation
711.470 Subrogation
rights of Federal Deposit Insurance Corporation
711.475 Inventory
of assets; filing notice of taking possession
711.480 Sale
of assets
711.485 Borrowing
funds to pay closed institution expenditures
711.490 Capital
stock requirements of institution purchasing assets and assuming liabilities of
insolvent institution
711.495 Action
by director to collect balance due on stock or stock assessment
711.500 Liability
of transferor of stock made in contemplation of insolvency; proceedings to
relieve stockholder of liability prohibited
711.505 Liability
of fiduciary as stockholder; liability of estate and funds
711.510 Deposit
of money collected under ORS 711.495; security for deposit
711.515 “Depositor”
defined; preferences among depositors
711.520 Priority
of claimants against assets of Oregon stock bank that is insolvent or in
liquidation
711.525 Interest
on deposits after Oregon stock bank closes
711.530 Notice
to creditors to present claims
711.535 Verification
and filing of claims; demand for preference
711.540 Approval
or rejection of claims
711.545 Objection
to approval of claims
711.550 Objection
to rejection of claims
711.554 Procedure
for determination of claims
711.560 Costs
and disbursements in claim proceedings
711.565 Claims
presented after time expired
711.567 Supervising
court to bar claims to facilitate closing
711.570 Lists
of claims
711.572 Liability
of directors for distributing assets without payment of known debts
711.575 Dividends
to depositors
711.577 Death
of depositor; payment of claim
711.580 Safety
deposit boxes; removal of property
711.582 Disposition
of contents of safety deposit boxes
711.585 Selection
of agents to wind up affairs of institution; bond or letter of credit; duties
of agent
711.590 Disposition
of unclaimed deposits; interest
711.595 Destruction
of liquidation records in possession of director
711.600 Liquidation
expenses
711.605 Petitions
relating to insolvent institutions; ruling by director; court review
711.615 Court
filing fees
711.620 Suspending
or restricting payment of liabilities; duration
711.625 Taking
possession of Oregon stock bank by director; powers of director; expenses
711.630 Pro
rata withdrawals by depositors
711.635 Receiving
new deposits; segregation
711.640 Termination
of suspension or restriction on payment of liabilities
711.645 Notice
of termination of suspension or restriction on payment of liabilities
711.650 Segregation
of deposits until termination notice has been given
711.655 Use
of suspended deposits to pay indebtedness of depositor
711.660 Assignment
or transfer of capital stock while payment of liabilities suspended or
restricted
711.665 Suspension
or restriction of liability payment not evidence of insolvency
711.670 Compliance
with ORS 711.620 to 711.670 as defense to depositor’s action
PENALTIES
711.980 Civil
penalties
711.005
[Amended by 1973 c.797 §218; repealed by 1997 c.631 §567]
711.010
[Amended by 1973 c.797 §219; repealed by 1997 c.631 §567]
711.015
[Amended by 1973 c.797 §220; repealed by 1997 c.631 §567]
711.017 [1993
c.229 §9; 1995 c.6 §3; repealed by 1997 c.631 §567]
711.020
[Amended by 1973 c.797 §221; 1977 c.135 §24; 1981 c.192 §15; repealed by 1997
c.631 §567]
711.022 [1973
c.797 §222; 1975 c.544 §29a; 1981 c.192 §16; repealed by 1997 c.631 §567]
711.025
[Amended by 1973 c.797 §223; 1981 c.192 §17; 1987 c.197 §6; 1989 c.324 §53;
repealed by 1997 c.631 §567]
711.030
[Amended by 1973 c.797 §224; 1983 c.37 §21; repealed by 1997 c.631 §567]
711.032 [1973
c.797 §225; repealed by 1997 c.631 §567]
711.035
[Amended by 1973 c.797 §226; repealed by 1997 c.631 §567]
711.040
[Amended by 1973 c.797 §227; 1981 c.192 §18; 1997 c.631 §235; renumbered
711.190 in 1997]
711.042 [1973
c.797 §228; 1983 c.296 §6; repealed by 1997 c.631 §567]
711.045
[Amended by 1973 c.797 §229; 1975 c.544 §30; 1977 c.135 §25; 1981 c.192 §19;
1983 c.296 §7; 1997 c.631 §236; renumbered 711.180 in 1997]
711.047 [1981
c.192 §21; 1983 c.296 §8; repealed by 1997 c.631 §567]
711.050
[Amended by 1973 c.797 §230; repealed by 1997 c.631 §567]
711.055
[Amended by 1973 c.797 §231; 1997 c.631 §237; renumbered 711.197 in 1997]
711.060
[Amended by 1973 c.797 §232; 1997 c.631 §238; renumbered 711.199 in 1997]
MERGER; CONVERSION; SHARE EXCHANGE;
ACQUISITION
(Conversion)
711.065 Conversion of Oregon stock bank
into insured stock institution. (1) An Oregon
stock bank may convert into an insured stock institution subject to the prior
approval of the supervisory authority having jurisdiction over the proposed
resulting insured stock institution.
(2)
Upon completion of the conversion of an Oregon stock bank, its charter shall
terminate, except for the purposes specified in ORS 711.190. [1997 c.631 §265]
711.070 Conversion of financial
institution into Oregon stock bank; application.
(1) A financial institution with its head office or any branches located in
this state that follows the procedures prescribed by the supervisory authority
having jurisdiction over the converting financial institution shall be granted
a charter of an Oregon stock bank by the Director of the Department of Consumer
and Business Services if the director finds that the converting financial
institution meets the standards of the Bank Act for the organization of such an
Oregon stock bank.
(2)
A financial institution may apply to convert to an Oregon stock bank and obtain
a charter by filing with the director:
(a)
A certificate signed by the chief executive officer of the converting financial
institution certifying that all necessary corporate actions in compliance with
the provisions of the laws of the supervisory authority having jurisdiction
over the converting financial institution have been taken; and
(b)
The articles of incorporation for the operation of the financial institution as
an Oregon stock bank, in accordance with the requirements of ORS 707.120. [1997
c.631 §266]
711.075 Conversion of Oregon nonstock bank into financial institution.
(1) An Oregon nonstock bank may convert into a
financial institution subject to the prior approval of the supervisory
authority having jurisdiction over the proposed resulting financial
institution.
(2)
Upon completion of the conversion of an Oregon nonstock
bank, its charter shall terminate, except for the purposes specified in ORS
711.190. [1997 c.631 §267]
711.080 Conversion of financial
institution into Oregon nonstock bank; application.
(1) A financial institution with its head office or any branches located in
this state that follows the procedures prescribed by the supervisory authority
having jurisdiction over the converting financial institution shall be granted
a charter of an Oregon nonstock bank by the Director
of the Department of Consumer and Business Services if the director finds that
the converting financial institution meets the standards of the Bank Act for
the organization of such an Oregon nonstock bank.
(2)
An insured nonstock institution may apply to convert
to an Oregon nonstock bank and obtain a charter by
filing with the director:
(a)
A certificate signed by the chief executive officer of the converting financial
institution certifying that all necessary corporate actions in compliance with
the provisions of the laws of the supervisory authority having jurisdiction over
the converting financial institution have been taken; and
(b)
The articles of incorporation for the operation of the insured nonstock institution as an Oregon nonstock
bank, in accordance with the requirements of ORS 707.120. [1997 c.631 §268]
711.085 Approval of conversion of Oregon
bank by board or shareholders. If an Oregon
bank converts pursuant to ORS 711.065 to 711.080, the conversion shall be
approved by:
(1)
A majority of the full board of directors of the converting Oregon bank, unless
the articles or bylaws of the converting Oregon bank required a greater
percentage; and
(2)
If the converting bank is an Oregon stock bank, a vote of a majority of the
outstanding stock of each class of voting shares at a meeting called to
consider the conversion, unless the articles or bylaws of the converting Oregon
bank required a greater percentage. [1997 c.631 §269]
711.090 Conversion of Oregon bank or
Oregon trust company to corporation or limited liability company.
(1) An Oregon bank or Oregon trust company organized as a corporation under ORS
chapter 707 or 709 may be converted to a limited liability company. An Oregon
bank or Oregon trust company organized as a limited liability company may be
converted to a corporation. The conversion shall be accomplished by the
approval of a plan of conversion under ORS 711.095 and the filing of articles
of conversion under ORS 711.100.
(2)
The plan of conversion shall set forth:
(a)
The name of the Oregon bank or Oregon trust company prior to the conversion;
(b)
The name of the Oregon bank or Oregon trust company after the conversion;
(c)
A summary of the material terms and conditions of the conversion;
(d)
The manner and basis of converting the ownership interests of each owner into
the ownership interests or obligations of the converted Oregon bank or Oregon
trust company, or into cash or other property, in whole or in part; and
(e)
Any additional information required by the Director of the Department of
Consumer and Business Services.
(3)
The plan of conversion may set forth other provisions relating to the
conversion. [2005 c.134 §6]
711.095 Approval of plan of conversion;
fee. (1) A plan of conversion for an Oregon
bank or Oregon trust company shall be approved as follows:
(a)
In the case of the conversion of an Oregon bank or Oregon trust company that
was organized as a corporation under ORS chapter 707 or 709 to a limited
liability company, the conversion shall be approved by:
(A)
A simple majority of the full board of directors of the converting Oregon bank
or Oregon trust company, unless the articles of incorporation or bylaws of the
converting Oregon bank or Oregon trust company require a greater percentage;
and
(B)
A vote of a simple majority of the outstanding stock of each class of voting
shares at a meeting called to consider the conversion, unless the articles of
incorporation or bylaws of the converting Oregon bank or Oregon trust company
require a greater percentage.
(b)
In the case of the conversion of an Oregon bank or Oregon trust company that
was organized as a limited liability company under ORS 707.007 or 709.015 to a
corporation, the conversion shall be approved by:
(A)
A simple majority of the full board of managers of the converting Oregon bank
or Oregon trust company, unless the articles of organization or operating
agreement of the converting Oregon bank or Oregon trust company require a
greater percentage; and
(B)
A vote of the holders of a simple majority of outstanding membership interests
in the converting Oregon bank or Oregon trust company, at a meeting called to
consider the conversion, unless the articles of organization or operating
agreement of the converting Oregon bank or Oregon trust company require a
greater percentage.
(2)
Following approval of the plan of conversion by the board and the owners under
subsection (1) of this section, the converting Oregon bank or Oregon trust
company shall submit the plan of conversion to the Director of the Department
of Consumer and Business Services for approval. The converting Oregon bank or
Oregon trust company shall also submit a nonrefundable application fee of
$3,000 and certified copies of the resolutions adopted by the board and by the
owners of the Oregon bank or Oregon trust company showing approval of the plan
of conversion. The director shall approve the plan of conversion if the
director finds that the plan of conversion has been approved by the board and
the owners of the converting institution in accordance with subsection (1) of
this section and that:
(a)
In the case of the conversion of an Oregon bank or Oregon trust company from a
corporation to a limited liability company, the converting institution meets
the requirements of ORS 707.007 or 709.015 for the organization of an Oregon
bank or Oregon trust company as a limited liability company; or
(b)
In the case of the conversion of an Oregon bank or Oregon trust company from a
limited liability company to a corporation, the converting institution meets
the requirements of the Bank Act for the organization of an Oregon bank or
Oregon trust company as a corporation. [2005 c.134 §7]
711.100 Articles of conversion; effective
date of conversion. (1) After a plan of conversion
is approved under ORS 711.095, the converting Oregon bank or Oregon trust
company shall file articles of conversion with the Director of the Department
of Consumer and Business Services. The articles shall:
(a)
State the name and type of the business entity prior to conversion;
(b)
State the name and type of the business entity after conversion; and
(c)
Include the plan of conversion.
(2)
The conversion takes effect on the date the articles of conversion are filed
with the director, unless the articles of conversion state another effective
date. [2005 c.134 §8]
711.104 Rights of member of Oregon bank or
Oregon trust company to dissent to conversion from limited liability company to
corporation; demand required; notice and offer to pay for shares; cost of
appraisal of shares. (1) A member of an Oregon bank
or Oregon trust company that is organized as a limited liability company may
dissent to a plan of conversion under which the Oregon bank or Oregon trust
company is to be converted from a limited liability company to a corporation.
(2)
To perfect a member’s right to dissent to a plan of conversion described in
subsection (1) of this section, the member must send or deliver a notice of
dissent to the Oregon bank or Oregon trust company prior to or at the meeting
of the members at which the conversion is submitted to a vote, or the member
must vote against the conversion.
(3)
A member may not dissent as to less than all the membership interests held in
the name of the member, except a member holding, as a fiduciary or nominee,
membership interests held in the member’s name for the benefit of more than one
beneficiary, may dissent as to less than all of the membership interests held
in the fiduciary or nominee’s name if any dissent as to the membership
interests held for a beneficiary is made as to all the membership interests
held by the fiduciary for that beneficiary or nominee. The fiduciary’s rights
shall be determined as if the membership interests to which the fiduciary has
dissented and the other membership interests are held in the names of different
members.
(4)
Any member who dissented to a plan of conversion under this section and who
desires to receive the value in cash of the member’s membership interests,
shall make written demand upon the Oregon bank or Oregon trust company and
accompany the demand with the surrender of the member’s certificates of
membership interest, properly indorsed within 30 days after the meeting of the
members at which the vote to approve the plan of conversion was taken. Any
member failing to make written demand within the 30-day period shall be bound
by the terms of the proposed plan of conversion.
(5)
Within 30 days after the plan of conversion becomes effective, the Oregon bank
or Oregon trust company shall give written notice thereof to each dissenting
member who has made demand under this section at the address of the member on
the membership books of the Oregon bank or Oregon trust company, and shall make
a written offer to each such member to pay for the member’s membership
interests at a specified price in cash, determined by the Oregon bank or Oregon
trust company to be the fair value of the membership interests as of the
effective date of the conversion. The notice and offer shall be accompanied by
a statement of condition of the Oregon bank or Oregon trust company as of the
latest available date and not more than four months prior to the effective date
of the plan of conversion, and a statement of income of the Oregon bank or
Oregon trust company for the period ending on the date of the statement of
condition.
(6)
Any member who accepts the offer of the Oregon bank or Oregon trust company
within 30 days following the date on which notice of the offer was mailed or
delivered to dissenting members shall be paid the price per share offered in
cash, within 30 days following the date on which the member communicates
acceptance in writing to the Oregon bank or Oregon trust company. Upon payment,
the dissenting member shall cease to have any interest in the membership
interests previously held by the member.
(7)
If within 30 days after notice of the offer, one or more dissenting members do
not accept the offer of the Oregon bank or Oregon trust company or if no offer
is made, then the value of the membership interests of the dissenting members
who have not accepted the offer shall be ascertained, as of the effective date
of the conversion, by an independent, qualified appraiser chosen by the
Director of the Department of Consumer and Business Services. The valuation
determined by the appraiser shall govern and the appraiser’s valuation of the
membership interests is not appealable except for one or more of the reasons
set forth in ORS 36.705 (1)(a) to (d) for vacation of an arbitrator’s award,
and for one of the grounds for modification or correction of an arbitrator’s
award under ORS 36.710. Any appeal must be made within 30 days after the date
of the appraiser’s valuation and is subject to ORS 183.415 to 183.500. The
Oregon bank or Oregon trust company shall pay the dissenting members the
appraised value of the membership interests within 30 days after the date the appraiser
sends the Oregon bank or Oregon trust company written notice of the appraiser’s
valuation.
(8)
The director shall assess the reasonable costs and expenses of the appraisal
proceeding equally to the Oregon bank or Oregon trust company and to the dissenting
members, as a group, if the amount offered by the Oregon bank or Oregon trust
company is between 85 percent and 115 percent of the appraised value of the
membership interests. The director shall assess the reasonable costs and
expenses of the appraisal proceeding and the reasonable costs and expenses,
including attorney fees and costs, of the Oregon bank or Oregon trust company
to the dissenting members, as a group, if the amount offered by the Oregon bank
or Oregon trust company is 115 percent or more of the appraised value of the
membership interests. The director shall assess the reasonable costs and
expenses of the appraisal proceeding and the reasonable costs and expenses,
including attorney fees and costs, of the dissenting members, as a group, to
the Oregon bank or Oregon trust company if the amount offered by the Oregon
bank or Oregon trust company is 85 percent or less of the appraised value of
the membership interests. The director’s decision regarding assessment of fees
and costs may be appealed as provided in ORS 183.415 to 183.500.
(9)
Amounts required to be paid by the Oregon bank or Oregon trust company, or by
the dissenting members under this section shall be paid within 30 days after
the director’s assessment of any fees or costs becomes final, or, if the
director’s decision is appealed, within 30 days after a final determination of
the fees and costs is made.
(10)
The director may require, as a condition of approving a plan of conversion, the
replacement of all or a portion of the members’ equity of an Oregon bank or
Oregon trust company.
(11)
A dissenting member making a demand under subsection (4) of this section may
withdraw the demand if:
(a)
The Oregon bank or Oregon trust company consents to the withdrawal; or
(b)
The dissenting member pays the member’s pro rata share of the appraisal costs
and the Oregon bank’s or Oregon trust company’s reasonable costs and expenses,
including attorney fees and costs.
(12)
When a dissenting member withdraws the demand under subsection (11) of this
section, the member’s status as a member shall be restored, without prejudice
to any proceedings taking place in the interim. [2005 c.134 §13]
711.105
[Repealed by 1973 c.797 §428]
711.110
[Amended by 1973 c.797 §233; repealed by 1997 c.631 §567]
711.112 [1973
c.797 §234; repealed by 1997 c.631 §567]
711.115
[Amended by 1973 c.797 §235; repealed by 1997 c.631 §567]
711.120
[Repealed by 1973 c.797 §428]
(Merger, Share Exchange and Acquisition)
711.125 Merger of Oregon stock bank with
insured stock institution; company acquiring shares of Oregon stock bank
through share exchange. (1) Subject to the provisions
and requirements of ORS 711.130 to 711.145 and 713.270, any Oregon stock bank
may merge with any insured stock institution if the merger is permitted by the
supervisory authority having jurisdiction over the resulting insured stock
institution.
(2)
Subject to the provisions and requirements of ORS 711.130 to 711.145 and
713.270, ORS chapter 715 and applicable federal law, a company may acquire all
of the outstanding shares of one or more classes or series of stock of an
Oregon stock bank through a share exchange. [1997 c.631 §270]
711.130 Approval of plan of merger or
share exchange involving Oregon stock bank; contents of plan; fee.
(1) For each Oregon stock bank that is a party to a merger or that proposes to
have its stock acquired through a share exchange, the plan of merger or plan of
share exchange shall be approved by a majority of the entire board of directors
of each such Oregon stock bank. If an insured stock institution, other than an
Oregon stock bank, is a party to a merger with an Oregon stock bank, the plan
of merger shall be approved by such merging insured stock institution’s board
of directors to the extent required under the laws applicable to such insured
stock institution.
(2)
A plan of merger shall contain at least:
(a)
The name of each party to the merger and the name of the resulting insured
stock institution;
(b)
The terms and conditions of the proposed merger;
(c)
The manner and basis of converting the shares of each merging insured stock
institution into shares, obligations or other securities of the resulting
insured stock institution or a holding company of the resulting insured stock
institution or, in whole or part, into cash or other property;
(d)
A statement of any changes in the articles of incorporation of the resulting
insured stock institution to be put into effect by the plan of merger; and
(e)
Any other provisions with respect to the proposed merger that the Director of
the Department of Consumer and Business Services determines to be necessary.
(3)
A plan of share exchange shall contain at least:
(a)
The name of the Oregon stock bank whose shares will be acquired and the name of
the acquiring company;
(b)
The terms and conditions of the proposed share exchange;
(c)
The manner and basis of the exchange of shares of the Oregon stock bank for
shares, obligations or other securities of the acquiring company or of any
other company or for cash or for other property in full or in part;
(d)
A statement of any changes in the articles of incorporation of the acquired
Oregon stock bank to be put into effect by the plan of share exchange; and
(e)
Any other provision with respect to the proposed share exchange that the
director determines to be necessary.
(4)
After approval by the board of directors, the plan of merger or plan of share
exchange shall be submitted to the director for approval, with a nonrefundable
application fee of $3,000. Certified copies of the authorizing resolutions of
each board of directors, if any such resolutions are required under applicable
law, showing approval of the plan of merger or plan of share exchange in
accordance with subsection (1) of this section shall also be submitted. For
each Oregon stock bank that is a party to a merger or is to be acquired through
a share exchange, the certified copies of the board resolutions shall also show
that the resolutions were approved by a majority of the entire board. [1997
c.631 §271]
711.135 Action by director on plan of
merger or share exchange involving Oregon stock bank; appeal.
(1) Within 90 days after receiving the materials and fee specified in ORS
711.130, unless the time is extended by the Director of the Department of Consumer
and Business Services in concurrence with the applicants, the director shall
approve or disapprove the plan of merger or plan of share exchange. The
director shall approve the plan of merger or plan of share exchange if the
director finds that:
(a)
The transaction conforms with the provision of the Bank Act;
(b)
The transaction will not be detrimental to the safety and soundness of the
resulting Oregon stock bank or Oregon stock bank to be acquired through a share
exchange;
(c)
The transaction is not contrary to the public interest; and
(d)
The director is satisfied that the transaction is permitted by the state or
federal supervisory authority having jurisdiction over the resulting insured
stock institution or acquiring company.
(2)
If the director disapproves a plan of merger or plan of share exchange, the
director shall state any objections in writing and give the boards of the
parties to the transaction an opportunity to amend the plan of merger or plan
of share exchange to obviate the objections. The amended plan of merger or plan
of share exchange shall be submitted to the director for approval as if it were
the original plan of merger or plan of share exchange.
(3)
Any of the parties to the transaction may appeal the decision of the director
as provided in ORS 183.415 to 183.500. [1997 c.631 §272]
711.140 Approval of merger or share
exchange involving Oregon stock bank by stockholders.
(1) To be effective, a merger or share exchange involving an Oregon stock bank
shall be approved by the stockholders of each Oregon stock bank that is a party
to a merger or Oregon stock bank to be acquired through a share exchange by a
vote of two-thirds of the outstanding stock of each class of voting shares at a
meeting called to consider the merger or share exchange.
(2)
Approval of the merger or share exchange by the stockholders constitutes the
adoption of any amendments to the articles set forth in the plan of merger or
plan of share exchange.
(3)
If the plan of merger or plan of share exchange adopts any provision enumerated
in ORS 707.248 affecting the rights of nonvoting stockholders of an Oregon
stock bank, such nonvoting stockholders may vote as a class on the merger or
share exchange.
(4)
Each Oregon stock bank that is a party to a merger or is to be acquired through
a share exchange shall give notice of the meeting to vote on the proposed
merger or share exchange to each stockholder of record entitled to vote on the
plan of merger or plan of share exchange at the address of the stockholder in the
books of the Oregon stock bank at least 15 days before the date of the meeting
unless the notice is waived in writing by all the holders of shares entitled to
vote on the plan of merger or plan of share exchange. Unless, pursuant to ORS
711.170 (8) or other applicable law, the shareholders of the Oregon stock bank
are not entitled to receive fair value of their shares, the notice shall be
accompanied by a copy of ORS 711.175, 711.180 and 711.185, and shall explain
that the sections establish the rights of dissenting stockholders. The notice
shall also include any other information that the Director of the Department of
Consumer and Business Services may require. [1997 c.631 §273]
711.145 Effective date of merger or share
exchange involving Oregon stock bank. (1) In a
merger involving an Oregon stock bank:
(a)
If the resulting insured stock institution is an Oregon stock bank, the merger
shall, unless a later date is specified in the plan of merger, become effective
upon the filing with the Director of the Department of Consumer and Business
Services of the approved plan of merger, copies of the resolutions of the
stockholders of each party to the merger, if shareholder approval is required
under law applicable to such merging insured stock institution, and evidence
satisfactory to the director that all federal regulatory requirements, if any,
have been satisfied. The charters of each Oregon stock bank that is a party to
a merger, unless it is the resulting insured stock institution, shall terminate
when the merger becomes effective.
(b)
If the insured stock institution from a merger is an insured stock institution
other than an Oregon stock bank, the effective date and time of the merger
shall be determined under the laws governing the resulting insured stock
institution. The merger will be effective as to each Oregon stock bank that is
a party to the merger if copies of the resolutions of the directors and
shareholders of the Oregon stock bank approving the plan of merger and evidence
of the effective date and time of the merger are filed with the director.
(c)
If the resulting insured stock institution is an Oregon stock bank, the
director shall promptly issue to the Oregon stock bank a certificate of merger
specifying the names of the parties to the merger, the name of the resulting
Oregon stock bank and the date on which the merger became effective as
prescribed in this section. The certificate shall be prima facie evidence of
the merger and of the correctness of all proceedings and may be recorded in any
office for the recording of deeds to evidence the new name in which the
property of the merging insured stock institutions is held.
(2)
In a share exchange involving an Oregon stock bank:
(a)
If the stock of an Oregon stock bank is to be acquired by a company organized
under the laws of this state, the share exchange shall, unless a later date is
specified in the plan of share exchange, become effective upon the filing with
the director of the approved plan of share exchange, copies of the resolutions
of the stockholders of the acquired Oregon stock bank, and evidence
satisfactory to the director that all federal regulatory requirements, if any,
have been satisfied.
(b)
If the stock of the Oregon stock bank is to be acquired by a company organized
under the laws of a state other than Oregon, the effective date and time of the
share exchange shall be determined under the laws governing such company. The
share exchange will be effective as to the acquired Oregon stock bank if copies
of the resolutions of the directors and shareholders of the Oregon stock bank
approving the share exchange and evidence of the effective date and time of the
share exchange are filed with the director. [1997 c.631 §274; 2005 c.22 §484]
711.150 Merger of Oregon nonstock bank with insured nonstock
institution. Subject to the provisions and
requirements of ORS 711.155 to 711.165 and 713.270, an Oregon nonstock bank may merge with any insured nonstock institution if the merger is permitted by the laws
of the supervisory authority having jurisdiction over the resulting insured nonstock institution. [1997 c.631 §275]
711.155 Approval of merger involving
Oregon nonstock bank; contents of plan; fee.
(1) For each Oregon nonstock bank that is a party to
a merger, the plan of merger shall be approved by a majority of the entire
board of directors of each such Oregon nonstock bank.
If an insured nonstock institution, other than an
Oregon nonstock bank, is a party to a merger with an
Oregon nonstock bank, the plan of merger shall be
approved by such insured nonstock institution’s board
of directors to the extent required under the laws applicable to such insured nonstock institution.
(2)
The plan of merger shall contain:
(a)
The name of each party to the merger and the name of the resulting insured nonstock institution;
(b)
The terms and conditions of the proposed merger;
(c)
The manner and basis of converting the obligations or securities of each
merging insured nonstock institution into obligations
or other securities of the resulting insured nonstock
institution or, in whole or part, into cash or other property;
(d)
A statement of any changes in the articles of incorporation of the resulting
insured nonstock institution to be put into effect by
the plan of merger; and
(e)
Any other provisions with respect to the proposed merger that the Director of
the Department of Consumer and Business Services determines to be necessary.
(3)
After approval by the board of directors, the plan of merger shall be submitted
to the director for approval with a nonrefundable application fee of $3,000.
Certified copies of the authorizing resolutions of each board of directors, if
any such resolutions are required under applicable law, showing approval of the
plan of merger in accordance with subsection (1) of this section shall also be
submitted. For each Oregon nonstock bank that is a
party to a merger, the certified copies of the board resolutions shall also
show that the resolutions were approved by a majority of the entire board.
(4)
After approval by each board of directors of the plan of merger, notice of the
merger shall be delivered to the household of each depositor of each Oregon nonstock bank unless the Oregon nonstock
bank is the resulting insured nonstock institution.
Such notice shall include at least the name of the resulting insured nonstock institution and the location of its head office
and may be included in any account statement regularly delivered to such
depositors. [1997 c.631 §276]
711.160 Action by director on plan of
merger involving Oregon nonstock bank; appeal.
(1) Within 90 days after receiving the materials and fee specified in ORS
711.155, unless the time is extended by the Director of the Department of
Consumer and Business Services in concurrence with the applicants, the director
shall approve or disapprove the plan of merger. The director shall approve the
plan of merger if the director finds that:
(a)
The resulting insured nonstock institution meets the
requirements of the Bank Act;
(b)
The merger will not be detrimental to the safety and soundness of the resulting
insured nonstock institution;
(c)
The merger is not contrary to the public interest; and
(d)
The director is satisfied that the merger is permitted by the state or federal
supervisory authority having jurisdiction over the resulting insured nonstock institution.
(2)
If the director disapproves a plan of merger, the director shall state any
objections in writing and give the boards of the parties to the merger an
opportunity to amend the plan of merger to obviate the objections. The amended
plan of merger shall be submitted to the director for approval as if it were
the original plan of merger.
(3)
Any of the parties to the merger may appeal the decision of the director as
provided in ORS 183.415 to 183.500. [1997 c.631 §277]
711.165 Effective date of merger involving
Oregon nonstock bank.
(1) If the resulting insured nonstock institution is
an Oregon nonstock bank, the merger shall, unless a
later date is specified in the plan of merger, become effective upon the filing
with the Director of the Department of Consumer and Business Services the
approved plan of merger and evidence satisfactory to the director that all
federal regulatory requirements, if any, have been satisfied. The charters of
each Oregon nonstock bank that is a party to the
merger, other than the resulting insured nonstock
institution, shall terminate when the merger becomes effective.
(2)
If the resulting insured nonstock institution is an
insured nonstock institution, the effective date and time
of the merger shall be determined under the laws governing the resulting
insured nonstock institution. The merger will be
effective as to each Oregon nonstock bank that is a
party to the merger when copies of the resolutions of the directors of the Oregon
nonstock bank approving the plan of merger and
evidence of the effective date and time of the merger are filed with the
director.
(3)
If the resulting insured nonstock institution is an
Oregon nonstock bank, the director shall promptly
issue to the resulting insured nonstock institution a
certificate of merger specifying the names of the parties to the merger, the
name of the resulting insured nonstock institution,
and the date on which the merger became effective as prescribed in subsection
(1) of this section. The certificate shall be prima facie evidence of the
merger and of the correctness of all proceedings and may be recorded in any
office for the recording of deeds to evidence the new name in which the
property of the merging insured nonstock institutions
is held. [1997 c.631 §278]
711.170 Sale of assets and transfer of
liabilities by Oregon bank; approval of director and board of directors; fee;
appeal. (1) Subject to the provisions set forth
in this section and ORS 713.270, an Oregon bank may sell all or any portion of
its assets or transfer all or any portion of its liabilities, other than
deposit liabilities, to any person and may transfer all or any portion of its
deposit liabilities to any insured institution.
(2)
An Oregon bank may sell all or substantially all of its assets outside the
ordinary course of business, transfer all or substantially all the deposit
liabilities of any of its branches or principal place of business, or both,
only with the prior written approval of the Director of the Department of
Consumer and Business Services.
(3)
An acquisition transaction agreement shall be approved by a majority of the
entire board of directors of each Oregon bank that:
(a)
Is selling assets or transferring deposit liabilities, or both, requiring
approval of the director under subsection (2) of this section; or
(b)
Is acquiring all or substantially all of the assets outside the ordinary course
of business, all or substantially all of the deposit liabilities, or both, of
another insured institution.
(4)
After approval of the acquisition transaction agreement by the board of
directors of each Oregon bank that is subject to subsection (3) of this
section, the following shall be submitted to the director, if required under
subsection (2) of this section, for approval:
(a)
A copy of the acquisition transaction agreement, which shall contain the terms
of conditions of the acquisition transaction;
(b)
A nonrefundable application fee of $3,000;
(c)
Certified copies of the authorizing resolutions of the board of directors of
each such Oregon bank showing approval of the acquisition transaction agreement
in accordance with subsection (3) of this section; and
(d)
Such other information as the director may require.
(5)
If an Oregon stock bank proposes to transfer all or substantially all of its
assets outside the ordinary course of business, all or substantially all of its
deposit liabilities, or both, such Oregon stock bank shall send to each of its
stockholders, within 30 days after approval by its board of directors, notice
of the acquisition transaction and a copy of ORS 711.175, 711.180 and 711.185.
To be effective, each Oregon stock bank that proposes to transfer all or
substantially all of its assets outside the ordinary course of business, all or
substantially all of its deposit liabilities, or both, shall have such
acquisition transaction approved by a vote of two-thirds of the outstanding
stock of each class of voting shares at a meeting called to consider the
acquisition transaction.
(6)
Within 90 days after approval of the board of directors of each Oregon nonstock bank that proposes to transfer all or
substantially all of its assets outside the ordinary course of business, all or
substantially all of its deposit liabilities, or both, each such Oregon nonstock bank shall send notice of the acquisition
transaction to the household of each depositor of each such Oregon nonstock bank. Such notice shall include at least the name
of the acquiring person or insured institution, the address of the head office
of such person or insured institution, and a statement that all or
substantially all of the assets, deposit liabilities, or both, will be
acquired. Such notice may be included in any account statement sent to such
depositors.
(7)
The director shall approve an acquisition transaction that is subject to
subsection (2) of this section if the director finds that the acquisition
transaction:
(a)
Conforms with the provisions of the Bank Act;
(b)
Will not be detrimental to the safety and soundness of an Oregon bank that is a
party to such an acquisition transaction;
(c)
Is not contrary to the public interest; and
(d)
If the acquiring person or insured institution is not an Oregon bank, the
director is satisfied that the acquisition transaction is permitted by the
supervisory authority, if any, having jurisdiction over the acquiring person or
insured institution.
(8)
If the director disapproves an acquisition transaction that is subject to
subsection (2) of this section, the director shall state any objections in
writing and give the parties to the acquisition transaction an opportunity to
take actions to obviate the objections.
(9)
Any party to an acquisition transaction agreement may appeal the decision of
the director as provided in ORS 183.415 to 183.500. [1997 c.631 §279]
711.175 Stockholder’s right to dissent to
merger, share exchange, transfer of assets or liabilities or conversion.
(1) A stockholder of an Oregon stock bank or Oregon trust company may dissent
from the following:
(a)
A plan of merger pursuant to which the Oregon stock bank or Oregon trust
company is not the resulting insured institution;
(b)
A plan of merger pursuant to which the Oregon stock bank or Oregon trust
company is the resulting insured stock institution and the number of its voting
shares outstanding immediately after the merger, plus the number of shares
issuable as a result of the merger, either by the conversion of securities
issued pursuant to the merger or the exercise of rights and warrants issued
pursuant to the merger, will exceed by more than 20 percent the total number of
voting shares of the resulting insured stock institution outstanding
immediately before the merger;
(c)
A plan of share exchange pursuant to which the Oregon stock bank or Oregon
trust company in which the stockholder owns shares is acquired;
(d)
An acquisition transaction requiring the stockholder’s approval pursuant to ORS
711.170 (5); and
(e)
A plan of conversion pursuant to which the Oregon stock bank or Oregon trust
company is to be converted to a limited liability company.
(2)
To perfect a stockholder’s right to dissent to a transaction described in
subsection (1) of this section, the stockholder must send or deliver a notice
of dissent to the Oregon stock bank or Oregon trust company prior to or at the
meeting of the stockholders at which the transaction is submitted to a vote, or
the stockholder must vote against the transaction.
(3)
A stockholder may not dissent as to less than all the shares registered in the
name of the stockholder, except a stockholder holding, as a fiduciary or
nominee, shares registered in the stockholder’s name for the benefit of more
than one beneficiary, may dissent as to less than all of the shares registered
in the fiduciary or nominee’s name if any dissent as to the shares held for a
beneficiary is made as to all the shares held by the fiduciary for that
beneficiary or nominee. The fiduciary’s rights shall be determined as if the
shares to which the fiduciary has dissented and the other shares are registered
in the names of different stockholders. [1997 c.631 §280; 2005 c.134 §9]
711.180 Rights of stockholder dissenting
to merger, share exchange, transfer of assets or liabilities or conversion;
demand required; notice and offer to pay for shares; costs of appraisal of
shares; when rights not applicable. (1) Any
stockholder of an Oregon stock bank or Oregon trust company who dissented to a
transaction listed under ORS 711.175 (1) and who desires to receive the value
in cash of those shares, shall make written demand upon the Oregon stock bank,
Oregon trust company or its successor and accompany the demand with the
surrender of the share certificates, properly indorsed within 30 days after the
stockholders’ meeting at which a vote to approve the transaction involving an
Oregon stock bank or Oregon trust company was taken. Any stockholder failing to
make written demand within the 30-day period shall be bound by the terms of the
proposed plan of merger, plan of share exchange, plan of conversion or acquisition
transaction agreement.
(2)
Within 30 days after a transaction listed under ORS 711.175 (1) is effected,
the Oregon stock bank, Oregon trust company or its successor shall give written
notice thereof to each dissenting stockholder who has made demand under this
section at the address of the stockholder on the stock record books of the
Oregon stock bank or Oregon trust company, and shall make a written offer to
each such stockholder to pay for the shares at a specified price in cash
determined by the Oregon stock bank, Oregon trust company or its successor to
be the fair value of the shares as of the effective date of the transaction.
The notice and offer shall be accompanied by a statement of condition of the
Oregon stock bank or Oregon trust company, the shares of which the dissenting
stockholder held, as of the latest available date and not more than four months
prior to the consummation of the transaction, and a statement of income of the
Oregon stock bank or Oregon trust company for the period ending on the date of
the statement of condition.
(3)
Any stockholder who accepts the offer of the Oregon stock bank, Oregon trust
company or its successor within 30 days following the date on which notice of
the offer was mailed or delivered to dissenting stockholders shall be paid the
price per share offered, in cash, within 30 days following the date on which
the stockholder communicates acceptance in writing to the Oregon stock bank,
Oregon trust company or its successor. Upon payment, the dissenting stockholder
shall cease to have any interest in the shares previously held by the
stockholder.
(4)
If, within 30 days after notice of the offer, one or more dissenting
stockholders do not accept the offer of the Oregon stock bank, Oregon trust
company or its successor or if no offer is made, then the value of the shares
of the dissenting stockholders who have not accepted the offer shall be
ascertained, as of the effective date of the transaction, by an independent,
qualified appraiser chosen by the Director of the Department of Consumer and
Business Services. The valuation determined by the appraiser shall govern and
the appraiser’s valuation of the shares shall not be appealable except for one
or more of the reasons set forth in ORS 36.705 (1)(a) to (d) for vacation of an
arbitrator’s award, and for one of the grounds for modification or correction
of an arbitrator’s award under ORS 36.710. Any appeal must be made within 30
days after the date of the appraiser’s valuation and is subject to ORS 183.415
to 183.500. The Oregon stock bank, Oregon trust company or its successor shall
pay the dissenting shareholders the appraised value of the shares within 30
days after the date the appraiser sends the Oregon stock bank, Oregon trust
company or its successor written notice of the appraiser’s valuation.
(5)
The director shall assess the reasonable costs and expenses of the appraisal
proceeding equally to the Oregon stock bank, Oregon trust company or its
successor and to the dissenting shareholders, as a group, if the amount offered
by the Oregon stock bank, Oregon trust company or its successor is between 85
percent and 115 percent of the appraised value of the shares. The director
shall assess the reasonable costs and expenses of the appraisal proceeding and
the reasonable costs and expenses, including attorney fees and costs, of the
Oregon stock bank, Oregon trust company or its successor to the dissenting
stockholders, as a group, if the amount offered by the Oregon stock bank,
Oregon trust company or its successor is 115 percent or more of the appraised
value of the shares. The director shall assess the reasonable costs and
expenses of the appraisal proceeding and the reasonable costs and expenses,
including attorney fees and costs, of the dissenting shareholders, as a group,
to the Oregon stock bank, Oregon trust company or its successor if the amount
offered by the Oregon stock bank, Oregon trust company or its successor is 85
percent or less of the appraised value of the shares. The director’s decision
regarding assessment of fees and costs may be appealed as provided in ORS
183.415 to 183.500.
(6)
Amounts required to be paid by the Oregon stock bank, Oregon trust company or
its successors, or the dissenting shareholders under this section shall be paid
within 30 days after the director’s assessment of any fees or costs becomes
final or, if the director’s decision is appealed, within 30 days after a final
determination of the fees and costs is made.
(7)
The director may require, as a condition of approving a transaction listed in
ORS 711.175 (1), the replacement of all or a portion of the stockholders’
equity of an Oregon stock bank or Oregon trust company expended in payment to
dissenting stockholders under this section.
(8)
A stockholder may not receive the fair value of the stockholder’s shares under
this section:
(a)
If the plan of merger provides that all stockholders of the Oregon stock bank
receive common stock of a holding company pursuant to a merger with an interim
banking institution chartered under ORS 707.025, the stockholder’s Oregon stock
bank or Oregon trust company and the interim banking institution are the only
parties to the merger and the stockholders’ relative interests in the holding
company are in substantially the same proportions as the stockholders’ relative
interests in the Oregon stock bank or Oregon trust company, except for nominal
changes in the stockholders’ interests resulting from elimination of fractional
shares;
(b)
If the shares held by the dissenting stockholder immediately before the
effective date of a transaction listed in ORS 711.175 (1) are listed on any
national securities exchange or are listed for trading on the National
Association of Securities Dealers Automated Quotation stock market on either
the national market or smallcap market; or
(c)
If the plan of stock exchange provides that all stockholders of the Oregon
stock bank or Oregon trust company receive stock of a holding company pursuant
to the plan of stock exchange with the result that the stockholders’ relative
interests in the holding company are in substantially the same proportions as
the stockholders’ relative interests in the Oregon stock bank or Oregon trust
company, except for nominal changes in stockholders’ interests resulting from
elimination of fractional interests. [Formerly 711.045; 2003 c.598 §53; 2005
c.134 §10]
711.185 Stockholder withdrawal of demand
for payment for shares made under ORS 711.180.
(1) A dissenting stockholder making a demand under ORS 711.180 may withdraw the
demand if:
(a)
The Oregon stock bank, Oregon trust company or its successor consents to the
withdrawal; or
(b)
The dissenting stockholder pays the stockholder’s pro rata share of the
appraisal costs and the Oregon stock bank’s or Oregon trust company’s
reasonable costs and expenses, including attorney fees and costs.
(2)
When a dissenting stockholder withdraws the demand under subsection (1) of this
section, the stockholder’s status as a stockholder shall be restored, without
prejudice to any corporate proceedings taking place in the interim. [1997 c.631
§281; 2005 c.134 §11]
(General Provisions)
711.190 Effect of merger or conversion of
Oregon bank; rights, powers, duties and liabilities of resulting financial
institution. (1) When a merger or conversion of an
Oregon bank becomes effective:
(a)
The separate existence of each Oregon bank participating in the plan of merger
or conversion, except the existence of the resulting financial institution,
ends; and
(b)
The resulting financial institution is an entity with all the property, rights,
powers and duties of all parties to the merger or the converting financial
institution, except as affected by the laws applicable to the resulting
financial institution and by the charter, articles of incorporation and bylaws
of the resulting financial institution.
(2)
All property, debts, choses in action and every other
interest of each merging or converting financial institution are transferred to
and vested in the resulting financial institution without any further act or
deed of any party to the merger or conversion. The title to or any interest in
any real estate vested in any merging or converting financial institution may
not revert or be impaired because of the merger or conversion.
(3)
When a merger or conversion becomes effective, the resulting financial
institution shall be liable for all liabilities and obligations of each of the
merging or converting financial institutions. Any existing or pending claim,
action or proceeding by or against any merging or converting financial institution
may be prosecuted as if the merger or conversion had not taken place, or the
resulting financial institution may be substituted in its place. A merger or
conversion may not impair the rights of creditors or depositors of a merging or
converting financial institution or any liens upon the property of a merging or
converting financial institution.
(4)
Unless prohibited under applicable law, a resulting financial institution may
use the name of the merging financial institution or the converting financial
institution whenever it can do any act under the name more conveniently.
(5)
Any reference to a merging or converting financial institution in any writing,
whether executed or taking effect before or after the merger or conversion, is
a reference to the resulting financial institution if consistent with the other
provisions of the writing, and if the resulting financial institution is
authorized to exercise the powers conferred or required by the writing. [Formerly
711.040]
711.195 Merger, conversion or acquisition
of Oregon bank involving trust company. If a merger,
conversion or acquisition of an Oregon bank involves a trust company, the
Director of the Department of Consumer and Business Services shall not approve
the merger, conversion, or acquisition until satisfied that adequate provision
has been made for successor fiduciaries. [1997 c.631 §282]
711.197 Conditions for resulting Oregon
bank to conform with state law. If, pursuant
to a merger or conversion of a financial institution, the resulting or
converting financial institution is an Oregon bank and has assets or
liabilities in this state that do not conform to the requirements of applicable
law or carries on business activities that are not permitted for the resulting
or converting financial institution, the Director of the Department of Consumer
and Business Services may:
(1)
Permit the resulting or converting financial institution to retain the
nonconforming assets or liabilities or to continue the otherwise unpermitted
activities for such periods and subject to such conditions and limitations as
the director determines, by rule or order, will not be injurious to the safety
and soundness of the resulting or converting financial institution; or
(2)
Grant the resulting or converting financial institution a reasonable time to
conform with applicable law. [Formerly 711.055]
711.199 Valuation of assets on books of
resulting Oregon bank. Without approval by the Director
of the Department of Consumer and Business Services, an asset shall not be
carried on the books of a resulting or converting financial institution that is
an Oregon bank at a valuation higher than that on the books of the resulting or
converting financial institution at the time of its last examination prior to
the effective date of the merger or conversion. [Formerly 711.060]
711.205
[Amended by 1973 c.797 §236; 1993 c.229 §10; repealed by 1997 c.631 §567]
711.207 [1973
c.797 §237; repealed by 1997 c.631 §567]
711.210
[Repealed by 1973 c.797 §428]
711.211 [1993
c.229 §12; repealed by 1997 c.631 §567]
VOLUNTARY LIQUIDATION; DISSOLUTION
711.215 Voluntary liquidation on approval
of stockholders and director; costs of special examination.
An institution may go into voluntary liquidation by vote of its stockholders
owning at least two-thirds of its capital stock. The institution shall first
obtain the written consent of the Director of the Department of Consumer and
Business Services. Before consenting to the liquidation, the director may
require a special examination of the condition and affairs of the institution.
The institution shall pay the actual costs of the examination as provided in
ORS 706.544. [Amended by 1973 c.797 §238; 1985 c.762 §43; 1985 c.786 §40; 1999
c.59 §220]
711.217 Transactions exempt from ORS 711.220
to 711.235. In a transaction where a purchasing
insured institution assumes or agrees to pay all the liabilities of a
liquidating institution, ORS 711.220 to 711.235 do not apply. [1973 c.797 §239;
1997 c.631 §239]
711.220 Notice of voluntary liquidation;
presentation of claims. (1) If a vote is taken
authorizing the voluntary liquidation of an institution, the board of directors
shall cause to be published in a newspaper of general circulation in the city,
town or county in which the principal office of the institution is located, at
least once a week for four consecutive weeks, notice of the liquidation
notifying depositors, other creditors or claimants to present their claims for
payment.
(2)
Claims of depositors shall be paid upon the presentation of a check, passbook,
certificate of deposit or other instrument required for payment before the
institution went into voluntary liquidation. Disputed claims shall be presented
in writing for allowance or rejection in the manner provided in ORS 711.230 for
claims of other creditors.
(3)
Within 60 days after the last publication of the notice provided for in this
section, an institution in voluntary liquidation shall mail a written notice of
its intention to liquidate to the last-known address of all depositors and
other creditors who have not yet claimed the full amount shown to be due them
according to the records of the institution. [Amended by 1973 c.797 §240]
711.225 Report and transfer of unclaimed
deposits. (1) All deposits that remain unclaimed
after six months from the date of the written notice mentioned in ORS 711.220
(3), shall be reported and transferred by the Oregon stock bank to the
Department of State Lands as unclaimed property under ORS 98.302 to 98.436 and
98.992.
(2)
A copy of the report of unclaimed deposits filed with the Department of State
Lands shall be filed with the Director of the Department of Consumer and
Business Services. [Amended by 1957 c.670 §33; 1959 c.138 §1; 1973 c.797 §241;
1993 c.694 §36; 1997 c.631 §240]
711.230 Claims; time within which presented;
extension of time. (1) Claims of all persons, other
than depositors, against the institution shall be presented in writing to the
institution within one year after the date of first publication provided for in
ORS 711.220, unless barred by an earlier period of limitation. Claims arising
out of the expense of liquidation may be filed at any time prior to the closing
of the liquidation.
(2)
The board of directors shall, within 30 days after the presentment of a claim,
allow or reject the claim, in whole or in part, noting the same in their
minutes. The board shall notify the claimants in writing of its action, either
by personal service or by mail. Any claim rejected or disallowed is barred
unless action to adjudicate the claim is commenced within 60 days after the
date of service or mailing of notice of disallowance or rejection.
(3)
The board of directors may extend the time within which to receive claims and
continue the liquidation after the expiration of the time allowed in this
section for the filing of claims. Any new claims filed after the time shall be
allowed and paid or rejected in the same manner as provided for other claims.
If the liquidation is continued, the transfer of unclaimed deposits to the
Department of State Lands may be delayed to such time as designated by the
Director of the Department of Consumer and Business Services. [Amended by 1959
c.138 §2; 1973 c.797 §242]
711.235 Report of liquidation to director;
disposition of remaining assets. (1) After the
expiration of the time provided in ORS 711.230 for the filing of claims or if
the board of directors has extended the time of liquidation then after the time
set by them and after payment of unclaimed deposits to the Department of State
Lands, the board of directors shall make a complete report of the liquidation
to the Director of the Department of Consumer and Business Services and shall
certify to the director that all claims have been paid or finally determined.
(2)
Any claims received and approved after the report has been filed with the
director shall be paid if the remaining assets are sufficient.
(3)
When the report has been approved by the director the board of directors may
proceed to liquidate the remaining assets and distribute them to the stockholders
or other persons entitled to receive them according to their respective rights
and interests without further report to the director. [Amended by 1959 c.138 §3;
1973 c.797 §243]
711.240 Supervision and control by
director. The Director of the Department of
Consumer and Business Services shall supervise and control an institution in
voluntary liquidation until the final report is filed to the same extent the
director supervises and controls any other institution. [Amended by 1973 c.797 §244]
711.245
[Repealed by 1973 c.797 §428]
711.250 Engaging in banking or trust
business prohibited after liquidation, transfer of deposit liabilities or
ceasing to do business for one year; dissolution.
(1) An institution may not engage in banking business or transact trust
business if the institution:
(a)
Goes into voluntary liquidation;
(b)
Is closed because of insolvency;
(c)
Sells all or substantially all of its assets to another institution that takes
over and assumes all or substantially all of its deposit liabilities; or
(d)
Does not engage in banking business or transact trust business for a period of
one year.
(2)
An institution shall, within one year after it ceases to do a banking business
or trust business, amend its articles of incorporation by eliminating the power
to engage in a banking business or trust business or it is dissolved and shall
not be reinstated and shall surrender its charter. For the purpose of winding
up its affairs, the institution may continue as a body corporate for a period
of five years from the date it stops doing a banking business or trust
business, and as such:
(a)
The dissolution of the institution shall not take away or impair any remedy
available to or against such institution, its directors, officers or shareholders
for any right or claim existing or any liability incurred prior to such
dissolution if an action or other proceeding thereon is commenced within five
years after the date of issuance of a certificate of dissolution or filing of a
judgment of dissolution. Any other action or proceeding by or against the
institution may be prosecuted or defended by the institution in its corporate
name. The shareholders, directors and officers shall have power to take such
corporate or other action as shall be appropriate to protect such remedy, right
or claim. If such institution was dissolved by the expiration of its period of
duration, such institution may amend its articles of incorporation at any time
during such period of five years so as to extend its period of duration.
(b)
Whenever any such institution is the owner of real or personal property, or
claims any interest or lien whatsoever in any real or personal property, such
institution shall continue to exist during such five-year period for the
purpose of conveying, transferring and releasing such real or personal property
or interest or lien therein. Such institution shall continue, after the
expiration of such five-year period, to exist as a body corporate for the
purpose of being made a party to and being sued in any action, suit or
proceeding against it involving the title to any such real or personal property
or any interest therein, and not otherwise. Any such action, suit or proceeding
may be instituted and maintained against any such institution as might have
been had prior to the expiration of said five-year period. This section shall
not be construed as affecting or suspending any statute of limitations
applicable to any suit, action or proceeding instituted under this section.
(c)
For the purpose of service of any process, notice or demand within the
prescribed time following such dissolution, the Director of the Department of
Consumer and Business Services shall be an agent of the dissolved institution
upon whom service may be made. [Amended by 1959 c.54 §1; 1973 c.797 §245; 1987
c.197 §7; 1989 c.324 §54; 1997 c.631 §241; 2003 c.576 §549]
711.305
[Amended by 1973 c.797 §246; repealed by 1997 c.631 §567]
711.310
[Amended by 1973 c.797 §247; 1975 c.544 §31; repealed by 1997 c.631 §567]
711.315 [Amended
by 1973 c.797 §248; 1975 c.544 §32; 1991 c.249 §66; repealed by 1997 c.631 §567]
711.320
[Amended by 1973 c.797 §249; repealed by 1997 c.631 §567]
INSOLVENCY; LIQUIDATION BY DIRECTOR
711.400 Supervision of liquidation by
circuit court; called “supervising court.” The
circuit court of the county in which the principal office of an institution is
located:
(1)
Shall, as directed in ORS 711.400 to 711.615, supervise the liquidation of an
institution; and
(2)
Is referred to in ORS 711.400 to 711.615 as the supervising court. [1973 c.797 §250]
711.405 When institution deemed insolvent;
rules. An institution will be deemed insolvent
when any of the following occurs:
(1)
The fair market value of the assets of the institution is insufficient to pay
its liabilities, other than liability on account of capital debentures. In
determining the value of its assets, bonds held by the institution shall be
valued in accordance with rules promulgated by the Director of the Department
of Consumer and Business Services pursuant to ORS 183.310, 183.315, 183.330,
183.335 and 183.341 to 183.410.
(2)
An Oregon stock bank fails to make good its reserve requirements under
applicable law for a period of 30 days.
(3)
The institution cannot meet its obligations or the demands upon it as they
become due. [Amended by 1973 c.797 §251; 1975 c.544 §35; 1997 c.631 §242]
711.410 Transfer of assets after
commission of act of insolvency or in contemplation of insolvency; exceptions.
Except for transfers by a bank depository or the State Treasurer of public
funds or securities as required by ORS 295.001 to 295.108, all transfers of
assets made after the commission of an act of insolvency or in contemplation of
insolvency, to prevent the application of the assets in the manner prescribed
by the Bank Act or to the preference of one creditor to another are void. [Amended
by 1973 c.797 §252; 2007 c.871 §32]
Note: The
amendments to 711.410 by section 28, chapter 101, Oregon Laws 2010, become
operative January 1, 2013, and apply to public funds on deposit on or after
January 1, 2013. See section 29, chapter 101, Oregon Laws 2010, as amended by
section 2, chapter 667, Oregon Laws 2011, and see section 30, chapter 101,
Oregon Laws 2010. The text that is operative on and after January 1, 2013, is
set forth for the user’s convenience.
711.410. Except
for transfers of public funds or securities that a depository, as defined in
ORS 295.001, or the State Treasurer must make under ORS 295.001 to 295.108,
transfers of assets made after the commission of an act of insolvency or in
contemplation of insolvency to prevent the application of the assets in the
manner prescribed by the Bank Act or to the preference of one creditor to
another are void.
711.415 Receiving deposits in excess of insurance
while insolvent. A director, officer or employee
of an Oregon stock bank shall not receive or permit to be received any deposit
in excess of the insurance that the Oregon stock bank holds for its deposits
under ORS 708A.405, if the director, officer or employee knows that the Oregon
stock bank is insolvent. [Amended by 1973 c.797 §253; 1985 c.786 §41; 1997
c.631 §243]
711.419 Taking possession of Oregon stock
bank by director. After an Oregon stock bank
commits an act of insolvency or the insurance required for its deposits under
ORS 708A.405 is canceled by the insurer, the Director of the Department of
Consumer and Business Services may take possession of the property and affairs
of the Oregon stock bank and proceed to liquidate it as provided for an insolvent
Oregon stock bank under ORS 711.400 to 711.615. [1975 c.544 §34; 1985 c.786 §42;
1997 c.631 §244]
711.420
[Repealed by 1973 c.797 §428]
711.425
[Repealed by 1973 c.797 §428]
711.430 Placing business in control of
director; notice. (1) An institution may place its
property and affairs under the control of the Director of the Department of
Consumer and Business Services to be liquidated by notifying the director of
its proposed action and by posting a notice on its doors as follows: “This Bank
(or Trust Company) Is Under the Control of the Department of Consumer and
Business Services.”
(2)
The posting of the notice or the taking possession of an institution by the
director is sufficient to place all its property and affairs of whatever nature
in the possession of the director and operates as a bar and dissolution to any
attachment proceedings. [Amended by 1973 c.797 §254; 1975 c.544 §36; 1987 c.373
§54]
711.435 Resumption of business of
institution placed in control of director. (1) If
the Director of the Department of Consumer and Business Services determines
upon taking charge of an institution that it is only temporarily short of
available funds and that its assets are sufficient to pay its liabilities,
leaving its stockholders’ equity unimpaired, or the stockholders will arrange
to make good its stockholders’ equity, if impaired, the director may permit the
officers and directors of the institution to arrange with its depositors and
creditors for an extension of time for payment of the depositors and creditors.
(2)
When the director is satisfied that the stockholders’ equity of the institution
has been brought into conformance with the Bank Act, the institution is solvent
and has funds on hand with which to meet the demands made on it in the ordinary
course of business, and the institution has arranged with its depositors and
creditors for an extension of time to enable the institution to realize on its
assets to meet the obligations, the director may within 60 days after taking
charge of the institution permit it to resume business.
(3)
The institution shall pay, at the actual per diem cost, for the service of the
director and the employees of the director in taking charge of and looking
after the affairs of the institution during the time it was under control of
the director. The money so received shall be deposited with the State Treasurer
to be credited to the Consumer and Business Services Fund. [Amended by 1973
c.797 §255; 1997 c.631 §245]
711.440 Receivers and assignments for
benefit of creditors; notice to and action by director.
(1) Notice shall be given to the Director of the Department of Consumer and
Business Services before a receiver is appointed by any court or a deed of
assignment for the benefit of creditors is filed in any court for an
institution unless it is necessary so to do in order to preserve the assets of
the institution.
(2)
The director may, within five days after the service of the notice upon the
director, take possession of the institution, in which case no further proceedings
shall be had upon the application for the appointment of receiver or under the
deed of assignment. If a receiver has been appointed or the assignee has
entered upon the administration of the trust of the assignee, the appointment
shall be vacated or the assignee shall be removed upon application of the
director to the court.
(3)
The director shall proceed to administer the assets of the institution as
provided in ORS 711.475 to 711.510. [Amended by 1973 c.797 §256]
711.445 Notice of taking possession of
institution; prohibition against liens subsequent to insolvency.
(1) Upon taking possession of the property and business of an institution, the
Director of the Department of Consumer and Business Services shall give written
notice of the fact to all persons holding or in possession of any assets of the
institution.
(2)
A person knowing that the director has taken possession of an institution shall
not have a lien or charge for any payment advanced or any clearance thereafter
made, or liability thereafter incurred, against any of the assets of the
institution. [Amended by 1973 c.797 §257]
711.450 Prohibition against applying to
enjoin director from continuing possession. An
institution may not apply to the supervising court for an order requiring the
Director of the Department of Consumer and Business Services to show cause why
the director should not be enjoined from continuing possession pursuant to ORS
711.419. [Amended by 1973 c.797 §258; 1975 c.544 §37; 1985 c.786 §43]
711.455
[Repealed by 1973 c.797 §428]
711.460
[Repealed by 1973 c.797 §428]
711.465 Transfer of liquidation functions
to Federal Deposit Insurance Corporation. (1)
Upon taking possession of the business and property of an insolvent Oregon
stock bank, the deposits of which are to any extent insured by the Federal
Deposit Insurance Corporation, if the Federal Deposit Insurance Corporation
will accept the duty of liquidating the Oregon stock bank, the Director of the
Department of Consumer and Business Services may appoint without bond the
Federal Deposit Insurance Corporation to act as receiver for the Oregon stock
bank. When so appointed the Federal Deposit Insurance Corporation shall
exercise all the powers and perform all the duties of the director in
connection with the liquidation of Oregon stock banks.
(2)
Upon being notified in writing of the acceptance of the appointment, the
director shall file a certificate evidencing the appointment of the Federal
Deposit Insurance Corporation in the office of the director. Upon the filing of
the certificate the possession of all the assets, business and property of the
Oregon stock bank except those securities pledged under ORS 295.015 shall be
transferred from the Oregon stock bank and the director to the Federal Deposit
Insurance Corporation, and without the execution of any instruments of
conveyance, assignment, transfer or indorsement the
title to all such assets and property shall vest in the Federal Deposit
Insurance Corporation. The director shall be relieved from all responsibility
and liability in respect to the liquidation of the Oregon stock bank. [Amended
by 1973 c.797 §259; 1983 c.296 §11; 1993 c.98 §25; 1997 c.631 §246]
711.470 Subrogation rights of Federal Deposit
Insurance Corporation. If any Oregon stock bank in
which the deposits are to any extent insured by the Federal Deposit Insurance
Corporation is closed for the purpose of liquidation without adequate provision
being made for the payment of its depositors and if the Federal Deposit
Insurance Corporation pays or makes available for payment the insured deposit
liabilities of the closed insured Oregon stock bank, the Federal Deposit
Insurance Corporation is subrogated to all rights against the closed insured
Oregon stock bank of the owners of deposits to the extent of any payments made
by the corporation to the depositors. [Amended by 1973 c.797 §260; 1997 c.631 §247]
711.475 Inventory of assets; filing notice
of taking possession. Upon taking possession of the
property of an institution to liquidate its affairs, the Director of the
Department of Consumer and Business Services shall:
(1)
Inventory the assets of the institution. The inventory shall be prepared in
duplicate with one copy filed in the office of the director and one in the
office of the clerk of the county in which the principal office of the
institution is located.
(2)
Within a reasonable time, file with the clerk of the supervising court a notice
that the director has taken possession and the time of taking possession.
(3)
Proceed to liquidate the affairs of the institution, collect debts due the
institution and do what is necessary to preserve the assets and business of the
institution. [Amended by 1973 c.797 §261]
711.480 Sale of assets.
(1) Upon order of the supervising court, the Director of the Department of
Consumer and Business Services may:
(a)
Sell or compromise any bad or doubtful debts, including the individual
liability of any stockholder of the institution.
(b)
Sell all or any of the real estate and personal property of the institution on
terms directed by the supervising court.
(2)
The director, upon compliance with the terms of the sale of property, shall
execute and deliver to the purchaser of the property the necessary deeds or
instruments to evidence the passing of the title. If the real estate is
situated outside the county in which the principal office of the institution is
located, a certified copy of the order authorizing and ratifying the sale shall
be filed in the office of the clerk of the county in which the property is situated.
[Amended by 1973 c.797 §262]
711.485 Borrowing funds to pay closed
institution expenditures. The Director of the Department
of Consumer and Business Services may, after the director has obtained the
consent of the supervising court, borrow funds from any source available to be
used for distribution among depositors or other creditors of the institution in
the process of liquidation, or for expense of liquidation or preservation of
the assets of the institution. To secure the loan, the director may pledge, on
terms fixed by the lender and agreed to by the director, all or any portion of
the assets of the institution. The director is not personally obligated to pay
the loans. [Amended by 1973 c.797 §263]
711.490 Capital stock requirements of
institution purchasing assets and assuming liabilities of insolvent
institution. If the assets of an insolvent
institution are sold to a new institution and the new institution assumes any
or all of the deposit liabilities of the insolvent institution with the approval
of the Director of the Department of Consumer and Business Services and the
supervising court, the new institution may be organized with a capital stock
equal to the capital stock of the insolvent institution without regard to the
capital requirements of ORS 707.050. [Amended by 1973 c.797 §264]
711.495 Action by director to collect
balance due on stock or stock assessment. If an
institution becomes insolvent and is taken in charge by the Director of the
Department of Consumer and Business Services for liquidation, the director may
maintain an action against any stockholder, whose stock or assessment on the
stock has not been fully paid, for the collection of the unpaid balance. The
action may be prosecuted against one or more stockholders, singly or
collectively. [Amended by 1973 c.797 §265]
711.500 Liability of transferor of stock
made in contemplation of insolvency; proceedings to relieve stockholder of
liability prohibited. (1) Stockholders in an
institution who have transferred their stock or registered the transfer of
their stock within 60 days before the date of the closing of the institution or
with the knowledge of the impending closing or failure, are liable, as if the
transfer had not been made, to the extent that the subsequent transferee fails
to pay the unpaid balance on the stock. This subsection does not affect any
recourse which a former stockholder might otherwise have against those in whose
name the stock is registered at the time the institution closes.
(2)
An action may not be brought by the holder of any stock standing in the name of
the stockholder on the books of an institution at the time it closes which will
relieve the stockholder of liability as a stockholder. [Amended by 1973 c.797 §266]
711.505 Liability of fiduciary as
stockholder; liability of estate and funds. A
person holding stock of an institution as a fiduciary, as collateral security
or in pledge, is not personally subject to any liability as a stockholder. The
person pledging the stock is liable as a stockholder. The estate and funds in
the hands of the fiduciary are liable to the same extent as the testator,
intestate, protected person or person interested in the trust fund would be
liable if able to act and hold the stock in the name of that person. [Amended by
1973 c.797 §267; 1973 c.823 §146; 1974 c.36 §27]
711.510 Deposit of money collected under
ORS 711.495; security for deposit. (1) The
moneys collected by the Director of the Department of Consumer and Business
Services under ORS 711.495 shall be, from time to time, deposited in one or
more insured institutions, subject to the order of the director.
(2)
The director may require any bank in which the director deposits money under
this section to furnish security therefor
satisfactory to the director for the safekeeping and prompt payment of the
money deposited. [Amended by 1973 c.797 §268; 1997 c.631 §248]
711.515 “Depositor” defined; preferences
among depositors. (1) As used in ORS 711.515 to
711.525, “depositor” includes purchasers or holders in due course of
certificates of deposit, cashiers’ checks, certified checks, outstanding unpaid
drafts drawn or issued by an Oregon stock bank, unsecured letters of credit and
unsecured drafts accepted by the Oregon stock bank if the instruments
enumerated are issued pursuant to cash or credit actually received or realized
by the Oregon stock bank.
(2)
A depositor or deposit, including deposits of the State of Oregon or any
county, city or political subdivision thereof, shall not have a preference or
prior lien on any assets of an insolvent Oregon stock bank over the claims of
other depositors or deposits, unless the assets have been pledged as security
in compliance with the provisions of law. This subsection does not apply to any
claims or demands involving funds held by an Oregon stock bank under an express
oral or written trust agreement, where a preference to the trust funds may be
established by evidence satisfactory to the Director of the Department of
Consumer and Business Services and the supervising court. [Amended by 1973
c.797 §269; 1997 c.631 §249]
711.520 Priority of claimants against
assets of Oregon stock bank that is insolvent or in liquidation.
If an Oregon stock bank becomes insolvent or goes into voluntary or involuntary
liquidation, the assets of the Oregon stock bank shall be applied in the
following order of priority:
(1)
First, if collateral has been pledged under ORS 295.015 and assets have been
pledged under ORS 709.030, to the benefit of those for whom the collateral and
assets have been pledged;
(2)
Second, to pay the expenses of liquidation;
(3)
Third, to satisfy the amount due the depositors; and
(4)
Fourth, to satisfy the amount due sellers of federal funds. [Amended by 1973
c.797 §270; 1993 c.373 §1; 1997 c.631 §250; 1999 c.311 §5]
711.525 Interest on deposits after Oregon
stock bank closes. Interest on unsecured
interest-bearing deposits and on secured interest-bearing deposits other than
public funds shall stop on the date any Oregon stock bank is placed in the
hands of the Director of the Department of Consumer and Business Services for
liquidation. Interest on public funds that are secured as provided in ORS
chapter 295, shall continue at the rate being paid by the Oregon stock bank
prior to the time it closed. [Amended by 1973 c.797 §271; 1997 c.631 §251]
711.530 Notice to creditors to present
claims. The Director of the Department of
Consumer and Business Services shall cause notice to be given by advertisement,
in a newspaper of the choice of the director, weekly for four consecutive
weeks, notifying persons with claims against an institution which the director
has taken possession of for the purpose of liquidating its affairs, to present
the claim to the director, with legal proof of the claim, at a designated place
on or before the expiration of 60 days after the date of the first publication
of the notice. The notice shall state the date of the first publication. The
director shall mail a similar notice to all persons whose names appear as
creditors upon the books of the institution. Failure to mail the notice to any
creditor does not give the creditor any right or impose any liability on the
director. [Amended by 1973 c.797 §272]
711.535 Verification and filing of claims;
demand for preference. (1) All claims shall be verified
and filed with the Director of the Department of Consumer and Business
Services. If a claimant asserts a preference other than the preference given in
ORS 711.520 to depositors, the claim shall include a demand for preference and
a statement of the grounds upon which preference is claimed.
(2)
Any claim for preference shall be filed with the director and the supervising
court, before the expiration of the time fixed under ORS 711.530 in the notice
to creditors. If a claim for preference is not filed within the designated
time, it is barred. [Amended by 1973 c.797 §273]
711.540 Approval or rejection of claims.
(1) Within a reasonable time after the expiration of the time fixed in the
notice to creditors, the Director of the Department of Consumer and Business
Services shall approve or reject, in whole or in part, every claim filed.
(2)
Depositors’ claims that assert no priority or preference other than the
preference given under ORS 711.520 to depositors and that are filed after the
expiration of the time fixed in the notice to creditors for the filing of all
claims shall be approved or rejected, in whole or in part, within a reasonable
time after the claims are filed with the director.
(3)
The approval or rejection of any claim by the director shall be indorsed in
writing upon the claim and the director need not state the reasons for the
approval or rejection. The director may at any time alter or amend the previous
approval or rejection of any claim. [Amended by 1973 c.797 §274; 2003 c.14 §443]
711.545 Objection to approval of claims.
(1) If a creditor of the closed institution or any interested party objects to
the action of the Director of the Department of Consumer and Business Services
in allowing in whole or in part any claim filed with the director, the creditor
shall, within 10 days after the list of allowed claims has been filed with the
clerk of the supervising court, make and file with the clerk of the supervising
court a verified statement of the objections of the creditor. The statement
shall state the facts and reasons upon which the objections are based and
include a notice that the objecting party appeals to the supervising court.
Objections to the approval of any claim may be made at any time but, if not
filed within the 10-day period, the objections shall apply only to that portion
of the claim which has not yet been paid.
(2)
A copy of the objections and notice shall be served upon the director and upon
the creditor whose claim is challenged. Proof of the service shall be filed in the
supervising court with the statement of objections.
(3)
The statement of objection filed in the supervising court shall also have
attached to it a copy, certified as correct by the director, of the claim so
approved and the approval of the claim indorsed thereon by the director. [Amended
by 1973 c.797 §275]
711.550 Objection to rejection of claims.
(1) If the Director of the Department of Consumer and Business Services rejects
any claim in whole or in part, written notice of the rejection shall be given
to the claimant, either in person or by mail. If notice by mail is given, it is
sufficient that the notice be sent to the address indicated by the claimant on
the proof of claim filed with the director. If no address is given, then it is
sufficient if the notice is mailed to the last address of the claimant as shown
by the books and records of the closed institution. If notice of rejection is
given by mail, the notice is considered to have been given by the director on
the day when the notice of rejection is properly addressed and deposited in the
mail, postage prepaid. Proof of giving of notice of rejection by the director
shall be made by affidavit, and the affidavit shall be prima facie evidence of
the giving of notice. The affidavit shall be filed in the office of the
director.
(2)
Within 30 days after the giving of the notice of rejection, the claimant may
appeal the rejection by serving the director with notice of appeal and by
filing the notice with the clerk of the supervising court with proof of service
of the notice upon the director and a copy, certified as correct by the
director, of the rejected claim and the indorsement
made thereon by the director. [Amended by 1973 c.797 §276; 2007 c.71 §230]
711.554 Procedure for determination of
claims. (1) After the filing of objections
under ORS 711.545 or the filing of the notice and other papers under ORS
711.550 and upon the motion of any of the parties in interest, the supervising
court, upon notice to all the parties, shall set the matter for trial.
(2)
The trial shall be held in a summary manner upon the documents filed with the
court. The person filing the statement of objection or the claimant whose claim
was rejected has the burden of proof.
(3)
An appeal from the decision of the supervising court to the appellate court may
be taken by either party as from any other judgment of the supervising court. [1973
c.797 §277; 2003 c.576 §550]
711.555
[Repealed by 1973 c.797 §428]
711.560 Costs and disbursements in claim
proceedings. A party to the proceedings upon any
hearing provided for in ORS 711.554 shall not recover costs or disbursements
from any other party. [Amended by 1973 c.797 §278]
711.565 Claims presented after time
expired. Depositors’ claims presented and
allowed after the expiration of the time fixed in the notice to creditors may
be paid the amount of all prior dividends therein, if there are sufficient
funds, and share in the distribution of the remaining assets in the hands of
the Director of the Department of Consumer and Business Services equitably
applicable thereto. [Amended by 1973 c.797 §279]
711.567 Supervising court to bar claims to
facilitate closing. To facilitate the final closing
of the liquidation of the institution, the supervising court may, by order, bar
all claims at any time after one year from the date of the first publication of
notice to creditors under ORS 711.530. [1973 c.797 §280]
711.570 Lists of claims.
(1) Upon the expiration of the time fixed under ORS 711.530 for the
presentation of claims, the Director of the Department of Consumer and Business
Services shall make in duplicate a list of the claims presented specifying
whether the claims have been approved, rejected or neither approved nor
rejected pending further investigation. The list shall also note which claims
have been presented to the supervising court for appeal. One copy of the list
shall be filed in the office of the director and one in the office of the clerk
of the supervising court.
(2)
The director shall, in like manner, make and file supplemental lists showing
all claims presented subsequent to the filing of the first list.
(3)
The lists shall be filed in the supervising court at least 15 days before the
payment of any dividend on the claims or the payment of any preferred claims. [Amended
by 1973 c.797 §281]
711.572 Liability of directors for
distributing assets without payment of known debts.
The directors of an institution who vote for or assent to any distribution of
assets of the institution to its stockholders during the liquidation of the
institution without the payment and discharge of, or making adequate provision
for, all known liabilities of the institution shall be jointly and severally
liable to the institution for the value of the assets which are distributed, to
the extent that the liabilities of the institution are not thereafter paid and
discharged. [1973 c.797 §282]
711.575 Dividends to depositors.
At any time after the expiration of the date fixed for the presentation of
claims under ORS 711.530 the Director of the Department of Consumer and
Business Services may, out of the funds remaining in the hands of the director
after the payment of expenses, declare one or more dividends. After the
expiration of one year from the first publication of notice to creditors the
director may declare a final dividend. The dividends shall be paid to the
persons, in the amounts and upon the notice as may be directed by the
supervising court. [Amended by 1973 c.797 §283]
711.577 Death of depositor; payment of
claim. (1) Any person who would be entitled to
withdraw a deposit under ORS 708A.430 may claim the deposit and receive
dividends thereon, or if claim has been made it may be amended after the death
of the claimant so that future dividends are paid to the person entitled thereto
under ORS 708A.430.
(2)
If any claim is more than $500, dividends may be paid to the person entitled
thereto, as provided in ORS 708A.430, if the Director of the Department of
Consumer and Business Services is satisfied that the total dividends to be paid
after the death of the claimant are less than $100.
(3)
The director is under no obligation to determine the relationship of the
affiants to the deceased depositor and the payment of dividends made in good
faith to parties making the affidavit shall be a release of the director for
the amount of the dividends so paid. [1973 c.797 §284; 1997 c.631 §251a]
711.580 Safety deposit boxes; removal of
property. (1) If an institution, at the time the
Director of the Department of Consumer and Business Services takes possession
of its property and business, has in its possession, as bailee,
for safekeeping and storage, any valuable personal property, or has rented any
vaults, safes or safe deposit boxes or any portion thereof for the storage of
property of any kind, the director may mail a notice to the person claiming to
be or appearing upon the institution’s books to be the owner of the property,
or the person in whose name the safe, vault or box stands notifying them to
remove the property within a period fixed by the notice but not less than 90
days after the date the notice is mailed. The notice shall be in writing and
sent by registered mail or by certified mail with return receipt directed to
the person at the person’s post-office address as recorded upon the books of
the institution. The director shall allow a person access to the institution so
that the person may remove the person’s property stored or kept with the
institution as described in this subsection. The director may require that the
person show identification reasonably identifying the person as the person
whose name appears as owner of the property on the institution’s books or as
the person in whose name the safe, vault or box stands. The director may limit
access to normal business hours.
(2)
Upon the date fixed by the notice, the contract, if any, between a person and
the institution for the storage of the property or for the use of the safe,
vault or box is terminated, and the amount of the unearned rent or charges, if
any, paid by the person becomes a debt of the institution to the person.
(3)
After the date fixed in the notice the safe, vault or box may be opened in the
presence of the director, and a witness who is not an officer or employee of
the institution. A list and description of the property shall be made by the
person opening the safe, vault or box and shall be attached to the property.
The director shall keep the property in one of the general safes or boxes of
the institution until it is delivered to the person entitled to receive it or
is disposed of as provided in ORS 711.582. [Amended by 1973 c.797 §285; 1981
c.397 §1; 1991 c.249 §67]
711.582 Disposition of contents of safety
deposit boxes. (1) If property is not removed within
six months after the time fixed by the notice of the Director of the Department
of Consumer and Business Services under ORS 711.580, the director may sell the
property under the direction of the supervising court. The proceeds of the sale
shall be held for the benefit of the person entitled to the property. Any funds
which have not been claimed within two years after the final order closing the
liquidation of the institution may be disposed of in the manner prescribed in
ORS 711.590 for unclaimed dividends and deposits.
(2)
If papers or other articles which have no value and cannot be sold are not
removed within six months after the time fixed in the notice of the director,
the director shall store the papers and articles with the records of the
insolvent institution. One year after the final order closing the liquidation
of the institution the papers and articles may be destroyed in the manner
prescribed in ORS 711.595 for the records of an insolvent institution. [1973
c.797 §286]
711.585 Selection of agents to wind up
affairs of institution; bond or letter of credit; duties of agent.
(1) When the Director of the Department of Consumer and Business Services has
paid to each depositor and creditor of the institution whose claim as a
depositor or creditor has been proved and allowed, the full amount of the claim
and has made proper provision for unclaimed or unpaid deposits or dividends and
has paid all the expenses of the liquidation, the director shall call a meeting
of the stockholders of the institution by giving notice of the meeting for 30
days in one or more newspapers circulated in the county in which the principal
office of the institution is located. At the meeting the stockholders shall
select, by ballot, one or more agents to administer the assets and wind up the
affairs of the institution. A majority of the stock present and voting in
person or by proxy is necessary to select an agent.
(2)
The agent shall file with the director a bond or an irrevocable letter of
credit to the State of Oregon in an amount not less than 20 percent of the book
value of the assets to be surrendered to the agent, but in no case shall the
bond or letter of credit be less than $1,000. The bond or letter of credit
shall be executed by the agent as principal. The bond shall be executed by a
surety company authorized to do business in this state as surety, and any
letter of credit shall be issued by an insured institution. The bond or letter
of credit shall be conditioned for the faithful performance of all the duties
of the agent’s trust.
(3)
When the agent files the required bond or letter of credit, the director shall
transfer to the agent all the assets of the institution remaining in the hands
of the director. Upon the transfer and delivery the director is discharged from
all further liability to the institution and its creditors. The agent shall
complete the liquidation of the affairs of the institution, and, after paying
the expenses of the liquidation, shall distribute the proceeds among the
stockholders in proportion to the several holdings of stock.
(4)
If the stockholders fail to meet on the date advertised for the stockholders’
meeting or within 15 days after the advertised date or fail to appoint an
agent, or if the agent fails to qualify as required in this section within 30
days after the date of their selection, the director may appoint an agent. This
agent shall file a bond or letter of credit and liquidate the affairs of the
institution as though the agent had been selected by the stockholders. Upon the
transfer and delivery to the agent appointed by the director of all the
remaining assets in the hands of the director, the director is discharged from
all further liability to the institution and its creditors. [Amended by 1973
c.797 §287; 1991 c.331 §116; 1997 c.631 §252]
711.590 Disposition of unclaimed deposits;
interest. (1) Two years after the date of the
final order closing the liquidation of an institution, the Director of the
Department of Consumer and Business Services may withdraw any unclaimed
deposits or balances remaining to the credit of dividend accounts, representing
the aggregate of undelivered checks or unpaid dividend funds in the possession
of the Department of Consumer and Business Services, and pay the funds to the
Department of State Lands as unclaimed property to be disposed of as provided
in ORS 98.302 to 98.436 and 98.992.
(2)
The interest earned on the dividend accounts while they remain in the
possession of the director shall be paid to the State Treasurer to be credited
to the Consumer and Business Services Fund and the owner, the heirs or personal
representative of the owner have no claim to the interest. [Amended by 1959
c.138 §4; 1973 c.797 §288; 1993 c.694 §37]
711.595 Destruction of liquidation records
in possession of director. If any files, records,
documents, books of account or other papers have been taken over and are in the
possession of the Director of the Department of Consumer and Business Services
in connection with the liquidation of an insolvent institution, the director
may, after one year from the declaration of the final dividend or from the date
the liquidation has been closed by order of the supervising court, destroy any
of the files, records, documents, books of account or other papers which appear
to the director to be unnecessary for future reference as part of the
liquidation and files of the office of the director. [Amended by 1973 c.797 §289]
711.600 Liquidation expenses.
The expenses incurred by the Director of the Department of Consumer and
Business Services in the liquidation of an institution include the expenses of
all employees of the Department of Consumer and Business Services employed in
the liquidation, reasonable attorney fees for counsel employed by the director
in the course of the liquidation, and stationery, rent, postage, telephone, telegraph
and other office and traveling expense. The compensation of the employees and
the expense of supervision and liquidation shall be fixed by the director,
subject to the approval of the supervising court. The supervising court shall
not increase the compensation or expenses over the amount fixed by the
director. [Amended by 1973 c.797 §290; 1985 c.762 §44]
711.605 Petitions relating to insolvent
institutions; ruling by director; court review.
Any petition relating to an insolvent institution, except a petition by the
Director of the Department of Consumer and Business Services, shall be filed
with the supervising court and the director. The director shall, within a
reasonable time after the petition is filed, grant or refuse the petition and
notify the petitioner in writing of the decision. If a petitioner is
dissatisfied with the decision of the director the petitioner may, within 30
days after the decision of the director, present the petition, with the
decision of the director, to the supervising court. The supervising court shall
fix a date for the hearing of the petition, giving reasonable notice of the
date to the petitioner and to the director. The supervising court shall
determine the matter upon the evidence produced by all the parties, and the burden
of proof is upon the petitioner. [Amended by 1973 c.797 §291]
711.610
[Repealed by 1973 c.797 §428]
711.615 Court filing fees.
Fees shall not be charged for the filing in the supervising court by the
Director of the Department of Consumer and Business Services, the deputies of
the director or attorneys of any papers relating to the liquidation of an
institution or which are necessary or convenient in connection with the
collection of assets of an institution. [Amended by 1973 c.797 §292; 1999 c.803
§7]
711.620 Suspending or restricting payment
of liabilities; duration. (1) The Director of the
Department of Consumer and Business Services may order an Oregon stock bank to
suspend or restrict the payment of its liabilities to depositors and other creditors
except as provided in ORS 711.620 to 711.670, if the action is necessary for
the protection of the depositors and other creditors of the Oregon stock bank
and is in the public interest.
(2)
The order of the director is effective upon receipt by the Oregon stock bank of
written notice thereof signed by the director and shall continue in effect
until released or modified by the written order of the director. The suspension
and restriction shall not exceed a period of 90 days, but may be extended for
further periods not to exceed 90 days each upon the written order of the
director. [1973 c.797 §293; 1997 c.631 §253]
711.625 Taking possession of Oregon stock
bank by director; powers of director; expenses.
(1) When the order mentioned in ORS 711.620 takes effect, the Director of the
Department of Consumer and Business Services shall immediately take possession
of the property and affairs of the Oregon stock bank, and take whatever action
is necessary to conserve the assets of the Oregon stock bank pending further
disposition of its business.
(2)
While the director is in possession of an Oregon stock bank, the director shall
have all the powers given to the director in connection with insolvent Oregon
stock banks, and the rights of interested parties shall, subject to ORS 711.620
to 711.670, be the same as if the director had taken possession of the Oregon
stock bank because of insolvency.
(3)
All expenses of the director while in possession of the Oregon stock bank shall
be paid out of the assets of the Oregon stock bank and shall be a lien on the
assets prior to any other lien. [1973 c.797 §294; 1975 c.544 §38; 1997 c.631 §254]
711.630 Pro rata withdrawals by
depositors. While the Oregon stock bank is in the
possession of the Director of the Department of Consumer and Business Services
under ORS 711.625, the director may set aside and make available for withdrawal
by depositors on a ratable basis such amounts as in the opinion of the director
may safely be used for the purpose. [1973 c.797 §295; 1997 c.631 §255]
711.635 Receiving new deposits;
segregation. (1) While the Oregon stock bank is in
the possession of the Director of the Department of Consumer and Business
Services under ORS 711.625, the Oregon stock bank may accept deposits but the
deposits shall not be subject to any limitation as to payment or withdrawal.
(2)
Deposits received after the director takes possession and the amounts released
for payment to depositors under ORS 711.630, shall be segregated and held and
used solely to meet the deposit liability and the pro rata amount so released.
They shall not be used to liquidate any indebtedness of the Oregon stock bank
existing at the time the director took possession, or any subsequent
indebtedness incurred in liquidating any indebtedness of the Oregon stock bank
existing at the time the director took possession.
(3)
Deposits received while the Oregon stock bank is in the possession of the
director shall be kept on hand in cash, invested in direct obligations of the
United States or deposited with an approved reserve depository. [1973 c.797 §296;
1997 c.631 §256]
711.640 Termination of suspension or
restriction on payment of liabilities. (1) The
Director of the Department of Consumer and Business Services may, by order, on
a date fixed by the order and at least 10 days after the date of the order,
terminate the suspension or restriction on payment of liabilities of the Oregon
stock bank designated in the order.
(2)
Immediately upon the termination of the suspension or restriction on payment of
liabilities of the Oregon stock bank designated in the order, the director
shall surrender possession of the assets and properties of the Oregon stock
bank to the proper officers of the Oregon stock bank. The receipt of the
officers operates as a full release of the director. [1973 c.797 §297; 1997
c.631 §257]
711.645 Notice of termination of
suspension or restriction on payment of liabilities.
(1) At least 10 days before the date on which the suspension or restriction on
the payment of liabilities is terminated, the Director of the Department of
Consumer and Business Services shall cause a notice to be published in a
newspaper circulated in the city, town or county in which the principal office
of the Oregon stock bank is located. Only one publication of the notice is
required.
(2)
The notice shall specify:
(a)
The date on which the suspension or restriction on the payment of liabilities
will be removed;
(b)
That the provisions of ORS 711.635 pertaining to the segregation of deposits
will not be effective after that date; and
(c)
That the segregated deposits after the removal of the restriction or suspension
will be general deposits.
(3)
On or before the date of the publication of the notice, the director shall
mail, postage prepaid, to each depositor in the Oregon stock bank whose deposit
has been segregated as provided by ORS 711.635 a copy of the notice addressed
to the last-known address of each depositor as shown by the records of the
Oregon stock bank.
(4)
The director shall hand a copy of the notice to every depositor making a
deposit in the Oregon stock bank after the date of the newspaper publication
and up to the time the suspension or restriction on the payment of liabilities
of the Oregon stock bank is removed. [1973 c.797 §298; 1997 c.631 §258]
711.650 Segregation of deposits until
termination notice has been given. If the
Director of the Department of Consumer and Business Services removes the
restrictions or suspensions on the payment of liabilities of any Oregon stock
bank and surrenders possession of the assets and properties of the Oregon stock
bank to the proper officers of the Oregon stock bank, before the 10 days’
notice provided for by ORS 711.645 has been given, the Oregon stock bank shall
keep deposits segregated under ORS 711.635 separate and apart from its other
assets until the notice has been given by the Oregon stock bank in the manner
provided in ORS 711.645. After the notice has been given, the segregated
deposits shall become general deposits and may be mingled with the other assets
of the Oregon stock bank and the provisions of ORS 711.635 with respect to
segregation of deposits shall no longer apply. [1973 c.797 §299; 1997 c.631 §259]
711.655 Use of suspended deposits to pay indebtedness
of depositor. Nothing in ORS 711.620 to 711.670
prevents the assignment of a suspended deposit liability or the application of
all or a part of a suspended deposit to payment at maturity of any indebtedness
of the depositor to the Oregon stock bank that existed at the time the suspension
became effective, but a deposit liability subsequently assigned may not be so
applied. [1973 c.797 §300; 1997 c.631 §260]
711.660 Assignment or transfer of capital
stock while payment of liabilities suspended or restricted.
While the payment of the liabilities of any Oregon stock bank is suspended or
restricted under ORS 711.620, an assignment or transfer of the capital stock of
the Oregon stock bank is invalid. [1973 c.797 §301; 1997 c.631 §261]
711.665 Suspension or restriction of
liability payment not evidence of insolvency. An
order of the Director of the Department of Consumer and Business Services under
ORS 711.620 to 711.670 or the taking possession of the assets and properties of
an Oregon stock bank by the director under ORS 711.620 to 711.670 is not an act
of insolvency of the Oregon stock bank and does not raise any presumption of
insolvency. [1973 c.797 §302; 1997 c.631 §262]
711.670 Compliance with ORS 711.620 to
711.670 as defense to depositor’s action.
Compliance with the terms and conditions of ORS 711.620 to 711.670 and orders
and rules promulgated as a result of ORS 711.620 to 711.670 is a complete
defense to any suit or action brought by any depositor or creditor against an
Oregon stock bank with respect to any deposit or contract liability. [1973
c.797 §303; 1997 c.631 §263]
PENALTIES
711.980 Civil penalties.
Any person who violates ORS 711.415 shall forfeit and pay to the State
Treasurer to be deposited in the Consumer and Business Services Fund a civil
penalty in an amount determined by the Director of the Department of Consumer
and Business Services of not more than $2,500 for each offense. The civil
penalty may be recovered as provided in ORS 706.980. [1975 c.544 §40]
711.990
[Amended by 1973 c.797 §304; repealed by 1975 c.544 §62]
CHAPTER 712 [Reserved
for expansion]
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