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| [ Introduced ] | [ Engrossed ] | [ Senate Amendment 001 ] |
92_HB1030enr HB1030 Enrolled LRB9206827JSpc 1 AN ACT concerning banking. 2 Be it enacted by the People of the State of Illinois, 3 represented in the General Assembly: 4 Section 5. The Illinois Banking Act is amended by 5 changing Sections 16 and 46 as follows: 6 (205 ILCS 5/16) (from Ch. 17, par. 323) 7 Sec. 16. Directors. The business and affairs of a State 8 bank shall be managed by its board of directors that shall 9 exercise its powers as follows: 10 (1) Directors shall be elected as provided in this Act. 11 Any omission to elect a director or directors shall not 12 impair any of the rights and privileges of the bank or of any 13 person in any way interested. The existing directors shall 14 hold office until their successors are elected and qualify. 15 (2) (a) Notwithstanding the provisions of any charter 16 heretofore or hereafter issued, the number of directors, 17 not fewer than 5 nor more than 25, may be fixed from time 18 to time by the stockholders at any meeting of the 19 stockholders called for the purpose of electing directors 20 or changing the number thereof by the affirmative vote of 21 at least two-thirds of the outstanding stock entitled to 22 vote at the meeting, and the number so fixed shall be the 23 board regardless of vacancies until the number of 24 directors is thereafter changed by similar action. 25 (b) Notwithstanding the minimum number of directors 26 specified in paragraph (a) of this subsection, a State 27 bank that has been in existence for 10 years or more and 28 has less than $20,000,000 in assets, as of the December 29 31 immediately preceding the annual meeting of 30 shareholders at which directors are elected, may, subject 31 to the approval of the Commissioner, have a minimum of 3 HB1030 Enrolled -2- LRB9206827JSpc 1 directors; provided that if a State bank has fewer than 5 2 directors, at least one director shall not be an officer 3 or employee of the bank. The Commissioner shall annually 4 review the appropriateness of the grant of authority to 5 have a reduced minimum number of directors pursuant to 6 this paragraph (b). 7 (3) Except as otherwise provided in this paragraph (3), 8 directors shall hold office until the next annual meeting of 9 the stockholders succeeding their election or until their 10 successors are elected and qualify. If the board of directors 11 consists of 6 or more members, in lieu of electing the 12 membership of the whole board of directors annually, the 13 charter or by-laws of a State bank may provide that the 14 directors shall be divided into either 2 or 3 classes, each 15 class to be as nearly equal in number as is possible. The 16 term of office of directors of the first class shall expire 17 at the first annual meeting of the stockholders after their 18 election, that of the second class shall expire at the second 19 annual meeting after their election, and that of the third 20 class, if any, shall expire at the third annual meeting after 21 their election. At each annual meeting after classification, 22 the number of directors equal to the number of the class 23 whose terms expire at the time of the meeting shall be 24 elected to hold office until the second succeeding annual 25 meeting, if there be 2 classes, or until the third succeeding 26 annual meeting, if there be 3 classes. Vacancies may be 27 filled by stockholders at a special meeting called for the 28 purpose. 29 If authorized by the bank's by-laws or an amendment 30 thereto, the directors of a State bank may properly fill a 31 vacancy or vacancies arising between shareholders' meetings, 32 but at no time may the number of directors selected to fill a 33 vacancy in this manner during any interim period between 34 shareholders' meetings exceed 33 1/3% of the total membership HB1030 Enrolled -3- LRB9206827JSpc 1 of the board of directors. 2 (4) The board of directors shall hold regular meetings 3 at least once each month, provided that, upon prior written 4 approval by the Commissioner, the board of directors may hold 5 regular meetings less frequently than once each month but at 6 least once each calendar quarter. A special meeting of the 7 board of directors may be held as provided by the by-laws. A 8 special meeting of the board of directors may also be held 9 upon call by the Commissioner or a bank examiner appointed 10 under the provisions of this Act upon not less than 12 hours 11 notice of the meeting by personal service of the notice or by 12 mailing the notice to each of the directors at his residence 13 as shown by the books of the bank. A majority of the board 14 of directors shall constitute a quorum for the transaction of 15 business unless a greater number is required by the charter 16 or the by-laws. The act of the majority of the directors 17 present at a meeting at which a quorum is present shall be 18 the act of the board of directors unless the act of a greater 19 number is required by the charter or by the by-laws. 20 (5) A member of the board of directors shall be elected 21 president. The board of directors may appoint other officers, 22 as the by-laws may provide, and fix their salaries to carry 23 on the business of the bank. The board of directors may make 24 and amend by-laws (not inconsistent with this Act) for the 25 government of the bank and may, by the affirmative vote of a 26 majority of the board of directors, establish reasonable 27 compensation of all directors for services to the corporation 28 as directors, officers, or otherwise. An officer, whether 29 elected or appointed by the board of directors or appointed 30 pursuant to the by-laws, may be removed by the board of 31 directors at any time. 32 (6) The board of directors shall cause suitable books 33 and records of all the bank's transactions to be kept. 34 (7) (a) In discharging the duties of their respective HB1030 Enrolled -4- LRB9206827JSpc 1 positions, the board of directors, committees of the 2 board, and individual directors may, in considering the 3 best long term and short term interests of the bank, 4 consider the effects of any action (including, without 5 limitation, action that may involve or relate to a merger 6 or potential merger or to a change or potential change in 7 control of the bank) upon employees, depositors, 8 suppliers, and customers of the corporation or its 9 subsidiaries, communities in which the main banking 10 premises, branches, offices, or other establishments of 11 the bank or its subsidiaries are located, and all 12 pertinent factors. 13 (b) In discharging the duties of their respective 14 positions, the board of directors, committees of the 15 board, and individual directors shall be entitled to rely 16 on advice, information, opinions, reports or statements, 17 including financial statements and financial data, 18 prepared or presented by: (i) one or more officers or 19 employees of the bank whom the director believes to be 20 reliable and competent in the matter presented; (ii) one 21 or more counsels, accountants, or other consultants as to 22 matters that the director believes to be within that 23 person's professional or expert competence; or (iii) a 24 committee of the board upon which the director does not 25 serve, as to matters within that committee's designated 26 authority; provided that the director's reliance under 27 this paragraph (b) is placed in good faith, after 28 reasonable inquiry if the need for such inquiry is 29 apparent under the circumstances and without knowledge 30 that would cause such reliance to be unreasonable. 31 (Source: P.A. 90-301, eff. 8-1-97; 91-452, eff. 1-1-00.) 32 (205 ILCS 5/46) (from Ch. 17, par. 357) 33 Sec. 46. Misleading practices and names prohibited; HB1030 Enrolled -5- LRB9206827JSpc 1 penalty. 2 (a) No person, firm, partnership, or corporation that is 3 not a bank shall transact business in this State in a manner 4 which has a substantial likelihood of misleading the public 5 by implying that the business is a bank, or shall use the 6 word "bank", "banker", or "banking" in connection with the 7 business. Any person, firm, partnership or corporation 8 violating this Section shall be deemed guilty of a Class A 9 misdemeanor, and the Attorney General or State's Attorney of 10 the county in which any such violation occurs may restrain 11 such violation by a complaint for injunctive relief. 12 (b) If the Commissioner is of the opinion and finds that 13 a person, firm, partnership, or corporation that is not a 14 bank has transacted or intends to transact business in this 15 State in a manner which has a substantial likelihood of 16 misleading the public by implying that the business is a 17 bank, or has used or intends to use the word "bank", 18 "banker", or "banking" in connection with the business, then 19 the Commissioner may direct that person, firm, partnership, 20 or corporation to cease and desist from transacting the 21 business or using the word "bank", "banker", or "banking". 22 If that person, firm, partnership, or corporation persists in 23 transacting the business or using the word "bank", "banker", 24 or "banking", then the Commissioner may impose a civil 25 penalty of up to $10,000 for each violation. Each day that 26 the person, firm, partnership, or corporation continues 27 transacting the business or using the word "bank", "banker", 28 or "banking" in connection with the business shall constitute 29 a separate violation of these provisions. 30 (c) A person, firm, partnership, or corporation that is 31 not a bank, and is not transacting or intending to transact 32 business in this State in a manner that has a substantial 33 likelihood of misleading the public by implying that such 34 business is a bank, may apply to the Commissioner for HB1030 Enrolled -6- LRB9206827JSpc 1 permission to use the word "bank", "banker", or "banking" in 2 connection with the business. If the Commissioner determines 3 that there is no substantial likelihood of misleading the 4 public, and upon such conditions as the Commissioner may 5 impose to prevent the person, firm, partnership, or 6 corporation from holding itself out in a misleading manner, 7 then such person, firm, partnership, or corporation may use 8 the word "bank", "banker", or "banking". 9 (d) (1) No person, firm, partnership, or 10 corporation may use the name of an existing bank, or a 11 name deceptively similar to that of an existing bank, 12 when marketing to or soliciting business from customers 13 or prospective customers if the reference to the existing 14 bank is made (i) without the consent of the existing bank 15 and (ii) in a manner that could cause a reasonable person 16 to believe that the marketing material or solicitation 17 originated from or is endorsed by the existing bank or 18 that the existing bank is in any other way responsible 19 for the marketing material or solicitation. 20 (2) An existing bank may, in addition to any other 21 remedies available under the law, report an alleged 22 violation of this subsection (d) to the Commissioner. If 23 the Commissioner finds the marketing material or 24 solicitation in question to be in violation of this 25 subsection, the Commissioner may direct the person, firm, 26 partnership, or corporation to cease and desist from 27 using that marketing material or solicitation in 28 Illinois. If that person, firm, partnership, or 29 corporation persists in the use of the marketing material 30 or solicitation, then the Commissioner may impose a civil 31 penalty of up to $10,000 for each violation. Each 32 instance in which the marketing material or solicitation 33 is sent to a customer or prospective customer shall 34 constitute a separate violation of these provisions. HB1030 Enrolled -7- LRB9206827JSpc 1 (3) Nothing in this subsection (d) prohibits the 2 use of or reference to the name of an existing bank in 3 marketing materials or solicitations, provided that the 4 use or reference would not deceive or confuse a 5 reasonable person regarding whether the marketing 6 material or solicitation originated from or was endorsed 7 by the existing bank or whether the existing bank was in 8 any other way responsible for the marketing material or 9 solicitation. The Commissioner is authorized to 10 promulgate rules to administer these provisions. 11 (Source: P.A. 89-567, eff. 7-26-96.) 12 Section 99. Effective date. This Act takes effect upon 13 becoming law.