Code of Massachusetts Regulations
209 CMR - DIVISION OF BANKS AND LOAN AGENCIES
Title 209 CMR 33.00 - Conversion By Co-operative Banks And Savings Banks From Mutual To Stock Form
Section 33.04 - Procedural Requirements

Universal Citation: 209 MA Code of Regs 209.33

Current through Register 1531, September 27, 2024

(1) An applicant desiring to convert in accordance with 209 CMR 33.00 shall file an application for approval of the plan of conversion in the form required by the commissioner. Such application shall contain:

(a) A copy of the minutes of the board of trustees or directors meeting authorizing the conversion and approving the plan of conversion with the clerk's attestation. The affirmative vote must be by at least b of all trustees or directors of the applicant;

(b) A copy of the proposed plan of conversion;

(c) A copy of the materials to be forwarded to corporators or shareholders relative to voting on the plan of conversion;

(d) The proposed amended and restated articles of organization and/or charter of the converting bank;

(e) Any information concerning any proposed or actual benefit substantially changing the terms and conditions of compensation, office and employment of a director, trustee, corporator, or officer of an applicant bank which is directly attributable to such conversion or any potential merger, acquisition or purchase within three years subsequent to such conversion. In the case of any such actual benefit, the required information shall apply to all changes in terms and conditions occurring during the twelve months preceding the date of the board meeting authorizing the conversion.

(f) A written summary of all pending litigation to which the applicant is party.

(g) A copy of the confirmation of the continuation of deposit insurance from the state and, if applicable, from the federal deposit insurer.

(h) An estimated budget of conversion expenses including:
1. Legal;

2. Postage and Mailing;

3. Printing;

4. Underwriting;

5. Appraisal;

6. Transfer Agent;

7. Auditing and Accounting;

8. Advertising;

9. Other (specify). (The applicant shall exclude regular officer and employee salaries and wages but shall include overtime, consultant fees and other compensation to be paid exclusively as a result of the conversion).

(i) A copy of the applicant's request for a ruling from the U.S. Internal Revenue Service (and the ruling itself which shall be submitted immediately upon receipt by the applicant) or a written tax opinion from the applicant's counsel, with respect to the federal tax consequences of the conversion.

(j) A copy of the applicant's most recent Community Reinvestment Act Statement.

(k) Any other information which the commissioner may require.

(2)

(a) A bank which is considering converting pursuant to 209 CMR 33.00 and its directors, trustees, corporators, officers and employees shall keep such consideration in the strictest confidence and shall only discuss the potential conversion as would be consistent with the need to prepare information for filing an application for conversion. Should this confidence be breached the commissioner may require remedial measures including:
1. A public statement by the bank that its board is currently considering converting pursuant to 209 CMR 33.00;

2. Providing for an eligibility record date which shall be as of such a date prior to the adoption of the plan by the converting bank's board as to assure the equitability of the conversion;

3. Limitation of the subscription rights of any person violating or aiding the violation of 209 CMR 33.04 to an amount deemed appropriate by the commissioner; and

4. Any other actions the commissioner may deem appropriate and necessary to assure the fairness and equitability of the conversion.

(b) If it should become essential as a result of rumors prior to the adoption of a plan of conversion by the applicant bank's board, a public statement limited to that purpose may be made by the applicant.

(3) The commissioner shall notify the applicant upon a determination that the application is complete. The applicant shall thereafter publish a public announcement of its application to convert in a newspaper having general circulation in each community wherein an office of the applicant is located or such other locations as may be satisfactory to the commissioner. Three such announcements shall be published, the first being as close to the date of the determination of completion of the application pursuant to 209 CMR 33.04 as may be practical, the second during the next week, and the final notice during the third week. Such notice shall also be posted in each office of the applicant for at least 21 days.

(4) Upon the request of the applicant, the commissioner may designate one or more portions of the application as confidential pursuant to the provisions of 209 CMR 33.04. A statement shall be submitted by the applicant bank briefly setting forth the grounds on which information shall be treated as confidential. Only the information which the commissioner deems to be immaterial to the vote of the corporators or shareholders on a plan of conversion and the purchase of stock pursuant to the subscription, direct community or public offering may be withheld from public availability. The applicant will be advised of any decision by the commissioner to make public information designated as "confidential" by the bank. Even though sections of the application are considered "confidential" as far as public inspection is concerned, to the exten the deems necessary the commissioner may comment on such "confidential" submissions in any public statement in connection with his decision on the application without prior notice to the applicant bank.

(5) The commissioner shall review the application and approve the application and the plan of conversion if he finds the conversion fair to depositors, and that the bank's deposits will be adequately insured, that other banks will not be adversely affected and that the public's access to credit within the bank's community will not be adversely affected. The commissioner may require changes in information documents submitted to assure full and adequate disclosure.

(6) Following receipt of the commissioner's approval of the application for conversion, the plan of conversion and proposed amended and restated articles of organization and/or charter and any information pursuant to 209 CMR 33.04(1)(e) shall be submitted to the shareholders of a cooperative bank or to the corporators of a savings bank for approval at a special meeting called for that purpose or at the annual meeting.

(a) In the matter of a savings bank, notice of the meeting to consider the plan of conversion and amendments to corporate forms must be sent to each corporator, postage prepaid, and include all materials previously approved by the commissioner, including those materials listed in 209 CMR 33.04(6) not less than seven days prior to the meeting. Approval of b of all corporators present and voting will be required. Proxy voting is not allowed.

(b) In the matter of a co-operative bank, notice to all shareholders of the meeting to consider the plan of conversion and amendments to corporate forms must be in a form previously approved by the commissioner and include those materials listed in 209 CMR 33.04(6), which notice must be given not less than seven days prior to the date of the meeting, postage prepaid, at the last address shown on the books of the bank. Approval of more than b of shareholders present and voting is required. Proxy voting is not allowed.

(c) In the matter of a co-operative bank, a record date for determining the shareholders eligible to vote at meeting called to consider a plan of conversion shall not be more than 60 days nor less than ten days prior to the date of such meeting, without prior approval of the commissioner.

(7) An applicant whose plan of conversion has been approved by the corporators or shareholders shall file the following w ith the commissioner :

(a) A certified copy of the resolution and the total number of votes eligible to be cast.

(b) The number of shareholders or corporators present.

(c) The total number of votes cast in favor and against the plan of conversion.

(8) If the commissioner finds the record complete upon receipt of the information required by 209 CMR 33.04(7), the commissioner may authorize the sale of the stock of the converting bank.

(9) Upon receipt of notification from the applicant that it has received commitments for purchase of all shares of capital stock offered in the conversion, the commissioner shall endorse his approval on the changes in the amended and restated articles of organization and/or charter.

(10) Upon filing and acceptance of such amended and restated articles of organization and/or charter by the Secretary of the Commonwealth, the bank shall become a stock form bank.

(11) Subsequent to the conversion to stock form in accordance with 209 CMR 33.00, the stockholders of the converted bank shall be the entire and exclusive owners of the bank. Depositors shall thereupon have only a creditor relationship to the bank, both with respect to their deposits and with respect to their contingent interests, if any, in the liquidation account. The pro visions of M. G. L. c. 168, §§ 8 through 17, shall no longer apply to a savings bank that is a converted bank and the provisions of M.G.L. c. 170, §§ 8 through 10, shall no longer apply to a co-operative bank that is a converted bank. Instead, a converted bank shall be subject to the provisions of M.G.L. c. 172, §§ 1, 11 through 16, 19, 20, 22, 24 through 28, 30 and 31. Reference to corporators and trustees of savings banks in applicable statutes shall mean directors in a stock savings bank.

(12) The corporate existence of the converted bank shall be a continuation of the converting bank.

(13) A final accounting of all actual conversion expenses shall be filed with the commissioner no later than 90 days from the date the conversion is consummated. The commissioner may, on receipt of a written explanatory request, extend such period as he may deem appropriate.

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