§412:1-109 Definitions. As used in this chapter, except as otherwise specifically provided herein:
"Affiliate" with respect to an existing or proposed financial institution or a financial institution holding company, means any company that controls the financial institution or the financial institution holding company and any other company that is under common control with the financial institution or the financial institution holding company. The following shall not be considered to be an affiliate:
(1) Any company, other than a financial institution, that is a subsidiary of a financial institution;
(2) Any company engaged solely in holding or leasing the premises of a financial institution;
(3) Any company engaged solely in conducting a safe deposit business;
(4) Any company engaged solely in holding obligations of the United States or its agencies or obligations fully guaranteed by the United States or its agencies as to principal and interest; and
(5) Any company where control results from the exercise of rights arising out of a bona fide debt previously contracted, but only for the period of time specifically authorized under applicable state or federal law or regulation.
"Aggregate net contribution to capital" of a company means the sum of amounts employed to purchase capital stock of a company and to make contributions to the company's capital and surplus, less amounts received upon the sale or redemption of capital stock of the company or received in distributions with respect to the company's capital stock other than amounts received in distributions from the accumulated net earnings of the company.
"Aggregate outstanding investment" in a company means the sum of amounts employed to purchase capital stock of a company, to make contributions to the company's capital and surplus and to invest in obligations of the company, less amounts received upon the sale or redemption of capital stock of the company, amounts received in distributions with respect to the company's capital stock other than distributions from the accumulated net earnings of the company, and amounts received to retire obligations of the company.
"Appropriate federal regulatory agency" means, with respect to a financial institution or financial institution holding company, any one or more regulatory agencies of the federal government referred to in the following sentence which either (1) insures the deposits of the financial institution or financial institution holding company, or (2) has the power and duty to conduct periodic general examinations of the affairs of the financial institution or financial institution holding company by virtue of the legal characterization of the financial institution or financial institution holding company under federal law, and not by virtue of the fact of affiliation of the financial institution or financial institution holding company with any other person or an alleged violation of a specific law. Subject to the preceding sentence, an appropriate federal regulatory agency may include the Federal Deposit Insurance Corporation, the Comptroller of the Currency, the Federal Reserve Board, the National Credit Union Administration, the Consumer Financial Protection Bureau, or any regulatory agency of the federal government which shall succeed to the insurance or supervisory duties of one of the foregoing.
(1) The aggregate par value or other amount received and allocated to the issued and outstanding capital stock of a financial institution; or
(2) The total amount of a credit union's outstanding and unimpaired membership shares or share accounts.
"Capital stock" means the units of interest, whether or not having a par value, common or preferred, legally issued by a financial institution or other corporation, which represents a fractional ownership interest in the institution or corporation. The term does not include shares or membership in a credit union.
"Circuit court" means the court established in each of the judicial circuits of this State pursuant to chapter 603 and which has jurisdiction under section 412:1-108 over a matter.
"Commissioner" means the commissioner of financial institutions of this State.
"Common stock" means all capital stock of a financial institution or other corporation that is not preferred stock.
"Company" means any corporation, partnership, trust (business or otherwise), association, joint venture, pool syndicate, unincorporated organization, or any form of business entity not specifically listed herein and, unless specifically excluded, a financial institution; provided that "company" does not mean any trust existing on July 1, 1993, which under its terms must terminate within twenty-five years, or not later than twenty-one years and ten months after the death of individuals living on the effective date of the trust.
"Comparable financial institution" means:
(1) In the case of a bank that is a Hawaii financial institution, a national banking association, and vice versa;
(2) In the case of a savings and loan association or savings bank that is a Hawaii financial institution, a federal savings and loan association or federal savings bank, and vice versa; and
(3) In the case of a credit union that is a Hawaii financial institution, a federal credit union, and vice versa.
"Conservator" means a person appointed by the commissioner to take possession and control of a Hawaii financial institution for a temporary period in order to preserve and protect the assets of the institution for the benefit of its depositors, beneficiaries, creditors, and shareholders or members.
"Control" means, unless the context clearly requires otherwise, directly or indirectly, solely or through another person or transaction, or in concert with another:
(1) Owning or having the power to vote twenty-five per cent or more of any class of voting securities;
(2) Owning or having the power to exercise twenty-five per cent or more of the votes of a mutual association, credit union, or other entity whose voting rights are not determined by voting securities;
(3) Owning or having the power to vote ten per cent or more of any class of voting securities if: (A) the issuer of that class of securities has issued any class of securities under section 12 of the Securities Exchange Act of 1934, as amended; or (B) immediately after the acquisition, no other person will own a greater percentage of that class of voting securities;
(4) Having the power to elect by any means a majority of the directors; or
(5) Having the power to exercise a dominant influence over management, if so determined by the commissioner after notice and a hearing.
No depository institution or trust company shall be deemed to own or control a company by virtue of its ownership or control of shares in a fiduciary capacity, unless that depository institution or trust company has sole voting power over a sufficient number of voting securities of the company to constitute control hereunder.
"Deposit" or "deposits" means money or its equivalent received or held by a person in the usual course of business and for which it has given or is obligated to give credit, either conditionally or unconditionally, to a demand, checking, savings, time, passbook, negotiable order of withdrawal, thrift, or share account, or which is evidenced by its passbook, certificate of deposit, thrift certificate, investment certificate, certificate of indebtedness, or other similar instrument, or a check, draft, or share draft drawn against a deposit account and certified by a person, on which the person is primarily liable. A deposit includes all funds underlying prepaid access cards or stored value cards and other nontraditional access mechanisms to the extent that the funds have been placed in a depository institution.
"Depository institution" means a financial institution that is authorized to accept deposits under its chartering or licensing authority and includes a bank, savings bank, savings and loan association, depository financial services loan company, credit union, or intra-Pacific bank.
"Director" means any member of the board of directors of a financial institution, whether or not receiving compensation. An advisory director is not considered a director if the advisory director (1) is not elected by the shareholders of the financial institution, (2) is not authorized to vote on matters before the board of directors, and (3) provides solely general policy advice to the board of directors.
"Division" means the division of financial institutions of the department of commerce and consumer affairs of this State.
"Executive officer" of a financial institution means a person who participates or has authority to participate (other than in the capacity of a director) in major policymaking functions of the financial institution, whether or not: (1) the officer has an official title, (2) the title designates the officer as an assistant, or (3) the officer is serving without salary or other compensation. The chairperson of the board, the president, every vice president, the secretary, and the treasurer of a financial institution are considered executive officers, unless (1) the officer is excluded, by resolution of the board of directors or by the bylaws of the financial institution, from participation (other than in the capacity of a director) in major policymaking functions of the financial institution, and (2) the officer does not actually participate in such major policymaking functions. An executive officer of a financial institution includes an executive officer of any subsidiary of the financial institution, unless the executive officer of the subsidiary (1) is excluded (by name or by title) from participation in major policymaking functions of the financial institution by resolutions of the boards of directors of both the subsidiary and the financial institution, and (2) does not actually participate in such major policymaking functions.
"Federal" means belonging to, part of, or related to the government of the United States of America.
"Federal financial institution" means a national banking association, federal savings bank, federal savings and loan association or federal credit union.
"Federal Home Loan Bank" means a federal home loan bank created and organized under the authority of the Federal Home Loan Bank Act.
"Federal Reserve Bank" means a federal reserve bank created and organized under the authority of the Federal Reserve Act.
"Federal Reserve Board" means the Board of Governors of the Federal Reserve System created and described in the Federal Reserve Act.
"Financial institution" means a Hawaii financial institution, and unless the context indicates otherwise, a federal financial institution or foreign financial institution.
"Financial institution holding company" means a holding company which controls a Hawaii financial institution or which controls another financial institution holding company. The following persons shall not be deemed to come within the definition of a financial institution holding company:
(1) A registered dealer who acts as an underwriter or member of a selling group in a public offering of the voting securities of a financial institution or of a financial institution holding company;
(2) A person who acts as proxy for the sole purpose of voting at a designated meeting of the security holders of a financial institution or of a financial institution holding company;
(3) A person who acquires control of a financial institution or of a financial institution holding company by devise or descent; or
(4) A pledgee of a voting security of a financial institution or of a financial institution holding company who does not have the right, as pledgee, to vote such voting security.
"Financial institution subsidiary" means: (1) a financial institution that is controlled by a financial institution holding company, or (2) a financial institution holding company that is controlled by another holding company.
"Foreign financial institution" means a person, other than a Hawaii financial institution or a federal financial institution whose operations are principally conducted in this State, which is authorized to engage under the laws of its jurisdiction of organization, or does engage, in the business of accepting deposits or making loans or engaging in the trust business.
"Hawaii financial institution" means:
(1) A corporation or credit union that holds a charter or license under this chapter or under prior Hawaii law, authorizing it to accept deposits, to make loans in excess of the rates permitted in chapter 478, or to engage in the business of a trust company; or
(2) A resulting bank as defined in article 12,
and includes a corporation or credit union existing and chartered as a Hawaii financial institution or licensed to transact business in this State on July 1, 1993. A Hawaii financial institution may be a bank, resulting bank as defined in article 12, savings bank, savings and loan association, depository financial services loan company, nondepository financial services loan company, trust company, credit union, or intra-Pacific bank.
"Holding company" means any company which controls another company.
"Impaired capital and surplus" or similar language relating to impairment of capital or surplus, means that a financial institution has less than the minimum amount of capital and surplus required under this chapter for that type of financial institution.
"In concert with another" means (1) knowing participation in a joint activity or interdependent conscious parallel action towards a common goal whether or not pursuant to an express agreement; or (2) a combination or pooling of voting or other interests in the securities of an issuer for a common purpose pursuant to any contract, understanding, relationship, agreement, or other arrangement, whether written or otherwise.
"Insolvency" means, with respect to a financial institution, that the value of its assets is insufficient to pay its depositors and its creditors.
"Institution-affiliated party" means any of the following:
(1) Any director, officer, employee or controlling shareholder of, or agent for, or other person that controls a financial institution;
(2) Any person who has filed or is required to file an application to become a financial institution with the commissioner or an application to acquire control of a Hawaii financial institution or financial institution holding company with the commissioner;
(3) Any shareholder, consultant, joint venture partner, and any other person as determined by the commissioner (by rule or case-by-case) who participates in the conduct of the affairs of a financial institution; or
(4) Any independent contractor (including any attorney, appraiser, or accountant) who knowingly or recklessly participates in any of the following which caused or is likely to cause more than a minimal financial loss to, or a significant adverse effect on, the financial institution:
(A) Any violation of law or rule,
(B) Any breach of fiduciary duty, or
(C) Any unsafe or unsound practice.
"Loans and extensions of credit" by a financial institution means any direct or indirect advance of funds (including obligations of makers and endorsers arising from the discounting of commercial paper) to or for the benefit of a person made on the basis of any obligation of that person to repay the funds. "Loans and extensions of credit" includes a contractual commitment to advance funds. "Contractual commitment to advance funds" means (1) an obligation to make payments, directly or indirectly, to a third party contingent upon default by the financial institution's customer in the performance of an obligation under the terms of that customer's contract with the third party or upon some other stated condition, or (2) an obligation to guarantee or stand as surety for the benefit of a third party. The term includes, but is not limited to, standby letters of credit, guarantees, puts or other similar arrangements; but does not include commercial letters of credit and similar instruments where the issuer expects the beneficiary, to draw upon the issuer, which do not guaranty payment of a money obligation, and which do not provide for payment in the event of default of the account party.
"Obligation" means any bond, debt, debenture, loan, note or similar undertaking.
"Obligor" means a person owing an obligation.
"Open to the public" means accessible or available to the general public during regular business hours without special permission.
"Operations are principally conducted" where total deposits placed with a person together with deposits placed with its subsidiaries are largest.
"Paid-in capital" means the amount of capital actually received by the financial institution for its capital stock, membership shares or share accounts, as the case may be.
"Passbook" means any book, statement of account, or other record used by a financial institution to record deposits, withdrawals, interest, dividends and changes.
"Person" means a natural person, entity or organization, including without limitation an individual, corporation, joint venture, partnership, sole proprietorship, association, cooperative, estate, trust, or governmental unit.
"Preferred stock" means capital stock in a financial institution or other corporation which entitles its holders to some preference or priority over the owners of common stock, usually with respect to dividends or asset distributions in liquidation.
"Principal shareholder" means a person other than a financial institution, that, directly or indirectly, or acting through or in concert with another, owns, controls, or has the power to vote more than ten per cent of any class of voting securities of a financial institution. Shares owned or controlled by a member of an individual's immediate family are considered to be held by the individual. As used in this definition "immediate family" means the spouse of an individual, the individual's minor children, and any of the individual's children (including adults) residing in the individual's home.
"Receiver" means a person appointed by the commissioner to take possession and control of a Hawaii financial institution for the purpose of liquidating and winding up the affairs of the institution.
"Related interest" means (1) a company that is controlled by a person or (2) a political or campaign committee that is controlled by a person or the funds or services of which will benefit a person.
"Retained earnings" means the net income of a financial institution earned since its inception which has not been distributed to its shareholders or transferred or allocated to capital stock or surplus or, as the case may be, the accumulated deficits of the financial institution. The term "retained earnings" is interchangeable with the term "undivided profits".
"State" or "this State" means the State of Hawaii, its political subdivisions, agencies, and departments.
"Stock financial institution" means a financial institution that issues shares of capital stock as evidence of fractional ownership in the institution. The term does not include credit unions.
"Subsidiary" means a corporation, joint venture, partnership, or other company that is controlled by another corporation.
"Surplus" means an amount received by a financial institution for its capital stock, membership shares, or share accounts, as the case may be: (1) in excess of the par value of any shares having par value; or (2) in excess of the amount allocated to shares without par value, membership shares or share accounts. "Surplus" also means an amount transferred or allocated to the financial institution's surplus from retained earnings, and, unless the context otherwise clearly requires, "surplus" includes retained earnings, whether or not transferred or allocated to surplus. [L 1993, c 350, pt of §1; gen ch 1993; am L 1995, c 51, §1; am L 1999, c 245, §1; am L 2001, c 170, §2; am L 2006, c 228, §4; am L 2013, c 172, §2]
In definitions of "company" and "Hawaii financial institution", "July 1, 1993" substituted for "the effective date of this chapter".