(1) As used in this section, the word "association" shall include federal savings and loan associations incorporated under the "Home Owners' Loan Act of 1933". (1.5) (a) A domestic association may merge with a foreign association and, subject to the limitations specified in this subsection (1.5), notwithstanding any other provision of articles 40 to 46 of this title to the contrary, if the association proposing to merge with a domestic association is a foreign association, the foreign association shall, in addition to submitting all information pertinent to the evaluation of the application under this section that the commissioner may require together with all applicable fees, meet the following criteria: (I) The foreign association seeking the merger shall have deposits that it may hold insured by the federal deposit insurance corporation or its successor in accordance with the provisions of section 11-41-117; and (II) The foreign association shall be in compliance with the capital requirements specified in this subparagraph (II) as follows: (A) and (B) (Deleted by amendment, L. 2004, p. 149, § 56, effective July 1, 2004.) (C) On and after January 1, 1993, the foreign association shall have a ratio of total capital to total assets of not less than six percent or the prevailing regulatory capital requirements established by the federal deposit insurance corporation or its successor, whichever is greater; and (II.5) Once a capital threshold is established in accordance with the provisions of subparagraph (II) of this paragraph (a) it shall be the prevailing standard for purposes of this section to be applied by the commissioner regardless of any reduction below the prevailing regulatory capital threshold requirement unless the general assembly authorizes the application of a lower standard; and (III) The commissioner shall not approve any proposed merger under the provisions of this subsection (1.5) if the merger would result in the foreign association controlling at the time of the merger more than twenty-five percent of the aggregate of all deposits in all banks, savings and loan associations, federal savings banks, and other financial institutions located in Colorado, which are federally insured. For the purposes of this subsection (1.5), deposits shall be determined based upon the public reports most recently filed with the appropriate federal regulatory agency; and (IV) Except as otherwise provided in paragraph (b) of this subsection (1.5), the foreign association shall be domiciled or conduct its principal operations in a state which is both contiguous to Colorado and which also has laws that allow a domestic association to establish business operations in that state under conditions which are determined by the commissioner to be not more restrictive than those provided in articles 40 to 46 of this title. For the purpose of this subparagraph (IV), the place where an association "conducts its principal operations" means the place where the largest percentage of the aggregate deposits of the foreign association and all of its subsidiaries are held. (b) On or after January 1, 1991, a foreign association seeking to merge with a domestic association may be domiciled or have its principal offices in any state without regard to its proximity to this state and without regard to the statutory conditions required by subparagraph (IV) of paragraph (a) of this subsection (1.5). (c) Whenever a foreign association that meets the criteria established by this subsection (1.5) proposes to merge with a domestic association, the foreign association shall make an application for prior approval to the commissioner in the form and with the information that the commissioner may require, and the application must be accompanied by a nonrefundable filing fee in an amount determined by the commissioner. Upon receipt of a properly submitted application for merger, the commissioner shall proceed to investigate the application in accordance with this section. The commissioner shall not grant approval of the merger until the commissioner is satisfied that the criteria imposed by this section have been met and that the merger is not contrary to the public interest. (d) No foreign association may merge with a domestic association except in accordance with the provisions of this section, and no such merger may be completed without the approval of the commissioner. (e) Any officer of a foreign association that merges with a domestic association pursuant to this section whose primary duty is managing the day-to-day operations of the Colorado offices of such foreign association shall be a resident of Colorado. (f) Nothing in this section shall be construed to limit or otherwise curtail the powers of the commissioner with respect to supervisory mergers as established in section 11-44-110.5. (2) Any two or more associations are authorized to merge and become incorporated in one body by transfer of all their assets and obligations upon such terms as set forth in an agreement of merger. The respective boards of directors of such associations, by a majority vote of each board, shall make or authorize to be made between such associations an agreement of merger. (3) Copies of the proposed agreement of merger, signed by the president or vice president of the association and verified by the president's or vice president's affidavit and attested by the secretary or assistant secretary of the association, with the seal of the association affixed, shall be submitted together with a fee in the amount established by the commissioner to the commissioner for the commissioner's approval or disapproval, and the commissioner shall cause a certificate of approval or disapproval to be attached to the copies of the proposed agreement, one copy to be filed in the division and one returned to each of the associations. (4) If the commissioner approves an agreement of merger, the agreement shall be presented to the members of each of the merging associations at special meetings called for the purpose of considering and voting upon the agreement; but, in the case of associations having permanent stock, only the holders of the permanent stock are entitled to any notice other than the published notice of the special meeting or to vote upon the agreement of merger. The complete agreement of merger, as adopted by the boards of directors and approved by the commissioner, shall be furnished to each member entitled to vote on the merger at the time that notice of the meetings, as required by section 11-41-123, is given. If at a meeting two-thirds of all votes of the members present in person or by proxy and entitled to vote on the merger are in favor of the approved agreement, the associations may proceed to merge. The proceedings of the meetings shall be submitted to the commissioner for the commissioner's approval in the same manner as required for the submission of the agreement by the boards of directors. Unless the agreement of merger fixes a later effective date, the effective date of the merger is the date upon which the commissioner accepts for filing the certified copies of the proceedings of the meetings of members adopting the approved agreement of merger. (5) Repealed. (6) (a) A transfer does not: (I) Prejudice the right of any creditor of any association to have payment of the creditor's debt out of the assets and property of the association; or (II) Deprive any creditor of, or create any prejudice against any creditor in, any right of action then existing against the officers or directors of an association for any neglect or misconduct. (b) A reorganized association is liable for all obligations to members of the associations existing prior to a consolidation. (7) Upon the effective date of the merger, all of the assets and property of every kind and character, real, personal, and mixed and tangible and intangible, choses in action, rights and credits then owned by the merging associations or which inure to any of them, immediately by operation of law, and without any conveyance or transfer, and without any further act or deed, shall be vested in and become the property of the association into which the other associations are absorbed, which shall have, hold, and enjoy the same in its own right as fully and to the same extent as if the same were possessed, held, and enjoyed by the merging associations prior to such merger. Such association shall be a continuation of the entity and identity of the association into which the other associations are absorbed, and all of the rights and obligations of the merging associations shall remain unimpaired, and the association, at the time of the taking effect of such merger, shall succeed to all of the rights and obligations and duties and liabilities of the merging associations. All rights and remedies of creditors and all liens upon the property of the merging associations shall be preserved, and all debts, liabilities, and duties of the respective merging associations shall thenceforth attach to the association and may be enforced against it to the same extent as if such debts, liabilities, and duties had been incurred or contracted by it. (8) All pending actions or other judicial proceedings to which any of the associations is a party shall not be deemed to have abated or to have discontinued by reason of such merger but may be pressed to final judgment, order, or decree in the same manner as if a merger had not been made; or the association resulting from such merger may be substituted as a party to such action or proceedings, and any judgment, order, or decree may be rendered for or against it which might have been rendered for or against any of the merging associations theretofore involved in such action or other judicial proceedings.
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