MISSISSIPPI LEGISLATURE

1998 Regular Session

To: Business and Financial Institutions

By: Senator(s) Woodfield

AN ACT TO CREATE THE "MULTISTATE TRUST INSTITUTIONS ACT," WHICH ALLOWS BANKS TO ENGAGE IN A TRUST BUSINESS ON AN INTERSTATE AND INTERNATIONAL BASIS; TO PROVIDE THAT THE ACT SHALL BE ADMINISTERED BY THE COMMISSIONER OF BANKING AND CONSUMER FINANCE; TO SPECIFY THE COMPANIES THAT ARE AUTHORIZED TO ACT AS A FIDUCIARY, AND TO SPECIFY THE ACTIVITIES THAT DO NOT REQUIRE A CHARTER UNDER THE ACT; TO AUTHORIZE THE ESTABLISHMENT OF STATE TRUST INSTITUTION OFFICES AND OUT-OF-STATE TRUST INSTITUTION OFFICES; TO CREATE THE "STATE TRUST INSTITUTION CHARTER MODERNIZATION ACT," WHICH STRENGTHENS AND MODERNIZES THE LAWS GOVERNING BANK TRUST DEPARTMENTS, TRUST COMPANIES AND OTHER CORPORATE FIDUCIARIES AND PROVIDES AUTHORITY FOR NEW TRUST COMPANIES; TO PRESCRIBE THE ORGANIZATION AND POWERS OF A STATE TRUST COMPANY; TO AUTHORIZE THE ESTABLISHMENT OF PRIVATE TRUST COMPANIES; TO PRESCRIBE THE TYPES OF INVESTMENTS THAT ARE ALLOWED FOR A STATE TRUST COMPANY; TO PRESCRIBE CERTAIN REQUIREMENTS REGARDING LOANS AND TRUST DEPOSITS BY A STATE TRUST COMPANY; TO PROVIDE THE CONDITIONS UNDER WHICH A TRUST COMPANY MAY TRANSFER OWNERSHIP; TO PROVIDE FOR CORPORATE GOVERNANCE OF A TRUST COMPANY; TO PROVIDE FOR TRUST COMPANY SUPERVISION, EXAMINATION, ENFORCEMENT ORDERS AND MANAGEMENT; TO PROVIDE PROCEDURES FOR VOLUNTARY LIQUIDATION AND INVOLUNTARY DISSOLUTION AND LIQUIDATION OF TRUST COMPANIES; TO BRING FORWARD FOR THE PURPOSES OF AMENDMENT SECTIONS 81-1-107, 81-3-1 THROUGH 81-3-7, 81-5-1, 81-5-11, 81-5-13, 81-5-15, 81-5-25, 81-5-33 THROUGH 81-5-43, 81-5-49, 81-5-79, 81-5-91 AND 91-13-1 THROUGH 91-13-11, MISSISSIPPI CODE OF 1972, WHICH RELATE TO TRUST COMPANIES AND FIDUCIARY INVESTMENTS; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. The following shall be codified as a new Chapter 27, in title 81, Mississippi Code of 1972:

ARTICLE 1. GENERAL PROVISIONS;

TRUST INSTITUTION AUTHORIZED ACTIVITIES

SUBARTICLE A. GENERAL

SECTION 1.001. Title and purposes.

(a) Articles 1 and 2 of this act may be cited as the Multistate Trust Institutions Act.

(b) It is the express intent of Articles 1 and 2 of this act to permit banks and other depository institutions, foreign banks and trust companies to engage in the trust business on a multistate and international basis to the extent consistent with the safety and soundness of the trust institutions engaged in a trust business in this state and the protection of consumers, clients and other customers of such trust institutions.

SECTION 1.002. Certain Definitions.

(a) In Articles 1 and 2 of this act:

(1) "Account" means the client relationship established with a trust company involving the transfer of funds or property to the trust company, including a relationship in which the trust company acts as trustee, executor, administrator, guardian, custodian, conservator, bailee, receiver, registrar, or agent, but excluding a relationship in which the trust company acts solely in an advisory capacity.

(2) "Act as a fiduciary" or "acting as a fiduciary" means to:

(A) Accept or execute trusts, including to (i) act as trustee under a written agreement; (ii) receive money or other property in its capacity as trustee for investment in real or personal property; (iii) act as trustee and perform the fiduciary duties committed or transferred to it by order of a court of competent jurisdiction; (iv) act as trustee of the estate of a deceased person; or (v) act as trustee for a minor or incapacitated person;

(B) Administer in any other fiduciary capacity real or tangible personal property; or

(C) Act pursuant to order of court of competent jurisdiction as executor or administrator of the estate of a deceased person or as a guardian or conservator for a minor or incapacitated person.

(3) "Administer" with respect to real or tangible personal property means, as an agent or in another representative capacity, to possess, purchase, sell, lease or insure, safekeep or otherwise manage the property.

(4) "Affiliate" means a company that directly or indirectly controls, is controlled by, or is under common control with a trust institution or other company.

(5) "Bank" has the meaning set forth in 12 USCS Section 1813(h); provided that the term "bank" shall not include any "foreign bank" as defined in 12 USCS Section 3101(7), except for any such foreign bank organized under the laws of a territory of the United States, Puerto Rico, Guam, American Samoa or the Virgin Islands, the deposits of which are insured by the Federal Deposit Insurance Corporation.

(6) "Bank supervisory agency" means:

(A) Any agency of another state with primary responsibility for chartering and supervising a trust institution; and

(B) The Office of the Comptroller of the Currency, the Federal Deposit Insurance Corporation, the Board of Governors of the Federal Reserve System, the Office of Thrift Supervision and any successor to these agencies.

(7) "Branch" with respect to a depository institution has the meaning set forth in Section 81-7-1 et seq.

(8) "Charter" means a charter, license or other authority issued by the commissioner or a bank supervisory agency authorizing a trust institution to act as a fiduciary in its home state.

(9) "Client" means a person to whom a trust institution owes a duty or obligation under a trust or other account administered by the trust institution or as an advisor or agent, regardless of whether the trust institution owes a fiduciary duty to the person. The term includes the noncontingent beneficiaries of an account.

(10) "Commissioner" means the Commissioner of Banking and Consumer Finance then in office and, where appropriate, all of his or her successors and predecessors in office.

(11) "Company" includes a bank, trust company, corporation, limited liability company, partnership, association, business trust, or another trust.

(12) "Department" means the Department of Banking and Consumer Finance.

(13) "Depository institution" means any company chartered to act as a fiduciary and included for any purpose within any of the definitions of "insured depository institution" as set forth in 12 USCS Section 1813(c)(2) and (3).

(14) "Fiduciary record" means a matter written, transcribed, recorded, received or otherwise in the possession or control of a trust company, whether in physical or electromagnetic form, that is necessary to preserve information concerning an act or event relevant to an account or a client of a trust company.

(15) "Foreign bank" means a foreign bank, as defined in Section 1(b)(7) of the International Banking Act of 1978, chartered to act as a fiduciary in a state other than this state.

(16) "Home state" means (A) with respect to a federally chartered trust institution and a foreign bank, the state in which such institution maintains its principal office and (B) with respect to any other trust institution, the state which chartered such institution.

(17) "Home state regulator" means the bank supervisory agency with primary responsibility for chartering and supervising an out-of-state trust institution.

(18) "Host state" means a state, other than the home state of a trust institution, or a foreign country in which the trust institution maintains or seeks to acquire or establish an office.

(19) "License" means the authority granted by the commissioner pursuant to this act to establish, acquire or maintain a trust office.

(20) "New trust office" means a trust office located in a host state which (i) is originally established by the trust institution as a trust office and (ii) does not become a trust office of the trust institution as a result of (A) the acquisition of another trust institution or trust office of another trust institution or (B) a merger, consolidation, or conversion involving any such trust institution or trust office.

(21) "Office" with respect to a trust institution means the principal office, a trust office or a representative trust office, but not a branch.

(22) "Out-of-state bank" means a bank chartered to act as a fiduciary in any state or states other than this state.

(23) "Out-of-state trust company" means either a trust company that is not a state trust company or a savings association whose principal office is not located in this state.

(24) "Out-of-state trust institution" means a trust institution that is not a state trust institution.

(25) "Person" means an individual, a company or any other legal entity.

(26) "Principal office" with respect to:

(A) A state trust company, means a location registered with the commissioner as the state trust company's home office at which:

(i) The state trust company does business;

(ii) The state trust company keeps its corporate books and a set of its material records, including material fiduciary records; and

(iii) At least one (1) executive officer of the state trust company maintains an office; or

(B) A trust institution other than a state trust company, means its principal place of business in the United States.

(27) "Registration" means the process by which a trust institution has been authorized by the commissioner to acquire, establish or maintain a representative trust office in this state.

(28) "Representative trust office" means an office at which a trust institution has been authorized by the commissioner to engage in a trust business other than acting as a fiduciary.

(29) "Savings association" means a depository institution that is neither a bank nor a foreign bank.

(30) "State" means any state of the United States, the District of Columbia, any territory of the United States, Puerto Rico, Guam, American Samoa, the Trust Territory of the Pacific Islands, the Virgin Islands, and the Northern Mariana Islands.

(31) "State bank" means (A) a bank chartered to act as a fiduciary by this state or (B) a foreign bank as defined in Section 1(b)(7) of the International Banking Act of 1978 chartered to act as a fiduciary in this state.

(32) "State trust company" means a corporation or a limited liability trust company organized or reorganized under this act, including a trust company organized under the laws of this state before the effective date of this act.

(33) "State trust institution" means a trust institution having its principal office in this state.

(34) "Trust business" means the holding out by a person to the public by advertising, solicitation or other means that the person is available to perform any service of a fiduciary in this or another state, including but not limited to:

(A) Acting as a fiduciary, or

(B) To the extent not acting as a fiduciary, any of the following: (i) receiving for safekeeping personal property of every description; (ii) acting as assignee, bailee, conservator, custodian, escrow agent, registrar, receiver or transfer agent; or (iii) acting as financial advisor, investment advisor or manager, agent or attorney-in-fact in any agreed upon capacity.

(35) "Trust company" means a state trust company or any other company chartered to act as a fiduciary that is neither a depository institution nor a foreign bank.

(36) "Trust institution" means a depository institution, foreign bank, state bank or trust company.

(37) "Trust office" means an office, other than the principal office, at which a trust institution is licensed by the commissioner to act as a fiduciary.

(38) "Unauthorized trust activity" means (A) a company, other than one identified in Section 1.101(a) of this act, acting as a fiduciary within this state, (B) a company engaging in a trust business in this state at any office of such company that is not its principal office, if it is a state trust institution, or that is not a trust office or a representative trust office of such company, or (C) an out-of-state trust institution engaging in a trust business in this state at any time an order issued by the commissioner pursuant to Section 2.302(b) of this act is in effect.

(b) These definitions shall be liberally construed to accomplish the purposes of the act. Additional definitions applicable to this act are contained in Section 6.001 of this act. The commissioner by rule or regulation may adopt other definitions to accomplish the purposes of this act.

SECTION 1.003. Regulations.

The commissioner may promulgate such rules and regulations as he or she determines to be necessary or appropriate in order to implement the provisions of this act.

SECTION 1.004. Severability.

If any provision of this act or the application of such provision is found by any court of competent jurisdiction in the United States to be invalid as to any trust institution or other person or circumstance, or to be superseded by federal law, the remaining provisions of this act shall not be affected and shall continue to apply to any trust institution or other person or circumstance.

SUBARTICLE B. COMPANIES AUTHORIZED TO ACT AS A FIDUCIARY

SECTION 1.101. Companies authorized to act as a fiduciary.

(a) No company shall act as a fiduciary in this state except:

(1) A state trust company;

(2) A state bank;

(3) A savings association organized under the laws of this state and authorized to act as a fiduciary pursuant to Section 81-12-1 et seq. or Section 81-14-1 et seq.;

(4) A national bank having its principal office in this state and authorized by the Comptroller of the Currency to act as a fiduciary pursuant to 12 USCS 92a;

(5) A federally chartered savings association having its principal office in this state and authorized by its federal chartering authority to act as a fiduciary;

(6) An out-of-state bank with a branch in this state established or maintained pursuant to Section 81-23-1 et seq. or a trust office licensed by the commissioner pursuant to this act.

(7) An out-of-state trust company with a trust office licensed by the commissioner pursuant to this act; or

(8) A foreign bank with a trust office licensed by the commissioner pursuant to this act.

(b) No company shall engage in an unauthorized trust activity.

SECTION 1.102. Activities not requiring a charter, etc.

Notwithstanding any other provision of this act, a company does not engage in the trust business or in any other business in a manner requiring a charter, license or registration under this act or in an unauthorized trust activity by:

(a) Acting in a manner authorized by law and in the scope of authority as an agent of a trust institution with respect to an activity which is not an unauthorized trust activity;

(b) Rendering a service customarily performed as an attorney or law firm in a manner approved and authorized by the Supreme Court of this state;

(c) Acting as trustee under a deed of trust delivered only as security for the payment of money or for the performance of another act;

(d) Receiving and distributing rents and proceeds of sale as a licensed real estate broker on behalf of a principal in a manner authorized by the Mississippi Real Estate Commission;

(e) Engaging in a securities transaction or providing an investment advisory service as a licensed and registered broker-dealer, investment advisor or registered representative thereof, provided the activity is regulated by the Secretary of State or the Securities and Exchange Commission;

(f) Engaging in the sale and administration of an insurance product by an insurance company or agent licensed by the Department of Insurance to the extent that the activity is regulated by the Department of Insurance;

(g) Engaging in the lawful sale of prepaid funeral benefits under a permit issued by the Insurance Commissioner under Section 83-37-1 et seq. or engaging in the lawful business of a perpetual care cemetery corporation under Sections 41-43-35 through 41-43-53;

(h) Acting as trustee under a voting trust as provided by Section 91-9-1 et seq.;

(i) Acting as trustee by a public, private, or independent institution of higher education or a university system, including its affiliated foundations or corporations, with respect to endowment funds or other funds owned, controlled, provided to or otherwise made available to such institution with respect to its educational or research purposes;

(j) Engaging in other activities expressly excluded from the application of this act by rule of the department;

(k) Rendering services customarily performed by a certified public accountant in a manner authorized by the State Board of Public Accountancy;

(l) Provided the company is a trust institution and is not barred by order of the commissioner from engaging in a trust business in this state pursuant to Section 2.302(b) of this act, (1) marketing or soliciting in this state through the mails, telephone, any electronic means or in person with respect to acting or proposing to act as a fiduciary outside of this state, (2) delivering money or other intangible assets and receiving the same from a client or other person in this state; or (3) accepting or executing outside of this state a trust of any client or otherwise acting as a fiduciary outside of this state for any client.

SECTION 1.103. Trust business of state trust institution.

(a) A state trust institution may act as a fiduciary or otherwise engage in a trust business in this or any other state or foreign country, subject to complying with applicable laws of such state or foreign country, at an office established and maintained pursuant to this act, at a branch or at any location other than an office or branch.

(b) In addition, a state trust institution may conduct any activities at any office outside this state that are permissible for a trust institution chartered by the host state where the office is located, except to the extent such activities are expressly prohibited by the laws of this state or by any regulation or order of the commissioner applicable to the state trust institution; however, the commissioner may waive any such prohibition if he or she determines, by order or regulation, that the involvement of out-of-state offices of state trust institutions in particular activities would not threaten the safety or soundness of such state trust institutions.

SECTION 1.104. Trust business of out-of-state trust institution.

An out-of-state trust institution which establishes or maintains one or more offices in this state under this act may conduct any activity at each such office which would be authorized under the laws of this state for a state trust institution to conduct at such an office.

SECTION 1.105. Name of trust institution.

A state trust company or out-of-state trust institution may register any name with the commissioner in connection with establishing a principal office, trust office or representative trust office in this state pursuant to this act, except that the commissioner may determine that a name proposed to be registered is potentially misleading to the public and require the registrant to select a name which is not potentially misleading.

ARTICLE 2. TRUST INSTITUTION OFFICES

SUBARTICLE A. STATE TRUST INSTITUTION OFFICES

SECTION 2.001. Trust business.

A state trust company or a state bank may:

(a) Perform any act as a fiduciary;

(b) Engage in any trust business;

(c) Exercise any incidental power that is reasonably necessary to enable it to fully exercise, according to commonly accepted fiduciary customs and usages, a power conferred in this act; and

(d) If a state trust company, exercise any other power authorized by Section 4.101 of this act.

SECTION 2.002. Branches and offices of state trust institutions.

(a) A state trust institution may act as a fiduciary and engage in a trust business at each trust office as permitted by this act and at a branch.

(b) A state trust institution may not act as a fiduciary but may otherwise engage in a trust business at a representative trust office as permitted by this act.

(c) Notwithstanding subsections (a) and (b) of this section, a state bank or a state trust company may not engage at an out-of-state office in any trust business not permitted for such an office by the host state where the office is located to trust institutions chartered by such state.

SECTION 2.003. State trust company principal office.

(a) Each state trust company must have and continuously maintain a principal office in this state.

(b) Each executive officer at the principal office is an agent of the state trust company for service of process.

(c) A state trust company may change its principal office to any location within this state by filing a written notice with the commissioner setting forth the name of the state trust company, the street address of its principal office before the change, the street address to which the principal office is to be changed, and a copy of the resolution adopted by the board authorizing the change.

(d) The change of principal office shall take effect on the thirty-first day after the date the commissioner receives the notice pursuant to paragraph (c) of this section, unless the commissioner establishes an earlier or later date or unless prior to such day the commissioner notifies the state trust company that it must establish to the satisfaction of the commissioner that the relocation is consistent with the original determination made under Section 4.003(b) of this act for the establishment of a state trust company at that location, in which event the change of principal office shall take effect when approved by the commissioner.

SECTION 2.004. Trust office; representative trust office.

(a) A state trust institution may establish or acquire and maintain trust offices or representative trust offices anywhere in this state. A state trust institution desiring to establish or acquire and maintain such an office shall file a written notice with the commissioner setting forth the name of the state trust institution, the location of the proposed additional office and whether the additional office will be a trust office or a representative trust office, furnish a copy of the resolution adopted by the board authorizing the additional office and pay the filing fee, if any, prescribed by the commissioner.

(b) The notificant may commence business at the additional office on the thirty-first day after the date the commissioner receives the notice, unless the commissioner specifies an earlier or later date.

(c) The thirty-day period of review may be extended by the commissioner on a determination that the written notice raises issues that require additional information or additional time for analysis. If the period of review is extended, the state trust institution may establish the additional office only on prior written approval by the commissioner.

(d) The commissioner may deny approval of the additional office if the commissioner finds that the notificant lacks sufficient financial resources to undertake the proposed expansion without adversely affecting its safety or soundness or that the proposed office would be contrary to the public interest.

SECTION 2.005. Out-of-state offices.

(a) A state bank, a state trust company or a savings association chartered under the laws of this state may establish and maintain a new trust office or a representative trust office or acquire and maintain an office in a state other than this state. Such a trust institution desiring to establish or acquire and maintain an office in another state under this section shall file a notice on a form prescribed by the commissioner, which shall set forth the name of the trust institution, the location of the proposed office, whether the office will be a trust office or a representative trust office, and whether the laws of the jurisdiction where the office will be located permit the office to be maintained by the trust institution, furnish a copy of the resolution adopted by the board authorizing the out-of-state office, and pay the filing fee, if any, prescribed by the commissioner.

(b) The notificant may commence business at the additional office on the thirty-first day after the date the commissioner receives the notice, unless the commissioner specifies an earlier or later date.

(c) The thirty-day period of review may be extended by the commissioner on a determination that the written notice raises issues that require additional information or additional time for analysis. If the period of review is extended, the trust institution may establish the additional office only on prior written approval by the commissioner.

(d) The commissioner may deny approval of the additional office if the commissioner finds that the notificant lacks sufficient financial resources to undertake the proposed expansion without adversely affecting its safety or soundness or that the proposed office would be contrary to the public interest. In acting on the notice, the commissioner shall consider the views of the appropriate bank supervisory agencies.

SUBARTICLE B. OUT-OF-STATE TRUST INSTITUTION TRUST OFFICE

SECTION 2.101. Trust business at a branch or trust office.

An out-of-state trust institution may act as a fiduciary in this state or engage in a trust business at an office in this state only if it maintains (i) a trust office in this state as permitted by this subarticle or (ii) a branch in this state.

SECTION 2.102. Establishing an interstate trust office.

(a) An out-of-state trust institution that does not operate a trust office in this state and that meets the requirements of this subarticle may establish and maintain a new trust office in this state.

(b) Until January 1, 1999, an out-of-state trust institution may not establish a new trust office in this state unless a similar institution chartered under the laws of this state to act as a fiduciary, is permitted to establish a new trust office that may engage in activities substantially similar to those permitted to trust offices of out-of-state trust institutions under Section 2.101 of this act, in the state where such out-of-state trust institution has its principal office.

SECTION 2.103. Acquiring an interstate trust office.

(a) An out-of-state trust institution that does not operate a trust office in this state and that meets the requirements of this subarticle may acquire and maintain a trust office in this state.

(b) Until January 1, 1999, no out-of-state trust institution may maintain a trust office in this state unless a similar institution chartered under the laws of this state to act as a fiduciary is permitted to acquire and maintain a trust office through an acquisition of a trust office in the state where such out-of-state trust institution has its principal office and may engage in activities substantially similar to those permitted to trust offices of out-of-state trust institutions under Section 2.101 of this act, in the state where such out-of-state trust institution has its principal office.

SECTION 2.104. Requirement of notice.

An out-of-state trust institution desiring to establish and maintain a new trust office or acquire and maintain a trust office in this state pursuant to this subarticle shall provide, or cause its home state regulator to provide, written notice of the proposed transaction to the commissioner on or after the date on which the out-of-state trust institution applies to the home state regulator for approval to establish and maintain or acquire the trust office. The filing of such notice shall be preceded or accompanied by a copy of the resolution adopted by the board authorizing the additional office and the filing fee, if any, prescribed by the commissioner.

SECTION 2.105. Conditions for approval.

(a) No trust office of an out-of-state trust institution may be acquired or established in this state under this subarticle unless:

(1) The out-of-state trust institution shall have confirmed in writing to the commissioner that for as long as it maintains a trust office in this state, it will comply with all applicable laws of this state.

(2) The notificant shall have provided satisfactory evidence to the commissioner of compliance with (i) any applicable requirements of Sections 79-4-15.01 through 79-4-15.10 and (ii) the applicable requirements of its home state regulator for acquiring or establishing and maintaining such office.

(3) The commissioner, acting within sixty (60) days after receiving notice under Section 2.104 of this act, shall have certified to the home state regulator that the requirements of this subarticle have been met and the notice has been approved or, if applicable, that any conditions imposed by the commissioner pursuant to paragraph (b) of this subsection have been satisfied.

(b) The out-of-state trust institution may commence business at the trust office on the sixty-first day after the date the commissioner receives the notice unless the commissioner specifies an earlier or later date, provided, with respect to an out-of-state trust institution that is not a depository institution and for which the commissioner shall have conditioned such approval on the satisfaction by the notificant of any requirement applicable to a state trust company pursuant to Section 4.103(b) or 4.107 of this act, such institution shall have satisfied such conditions and provided to the commissioner satisfactory evidence thereof.

(c) The sixty-day period of review may be extended by the commissioner on a determination that the written notice raises issues that require additional information or additional time for analysis. If the period of review is extended, the out-of-state trust institution may establish the office only on prior written approval by the commissioner.

(d) The commissioner may deny approval of the office if the commissioner finds that the notificant lacks sufficient financial resources to undertake the proposed expansion without adversely affecting its safety or soundness or that the proposed office is contrary to the public interest. In acting on the notice, the commissioner shall consider the views of the appropriate bank supervisory agencies.

SECTION 2.106. Additional trust offices.

An out-of-state trust institution that maintains a trust office in this state under this subarticle may establish or acquire additional trust offices or representative trust offices in this state to the same extent that a state trust institution may establish or acquire additional offices in this state pursuant to the procedures for establishing or acquiring such offices set forth in Section 2.004 of this act.

SUBARTICLE C. OUT-OF-STATE TRUST

INSTITUTION REPRESENTATIVE TRUST OFFICE

SECTION 2.201. Representative trust office business.

(a) An out-of-state trust institution may not act as a fiduciary, but may otherwise engage in a trust business, at a representative trust office as permitted by this subarticle.

(b) Subject to the requirements contained in this subarticle, an out-of-state trust institution may establish and maintain representative trust offices anywhere in this state.

SECTION 2.202. Registration of representative trust office.

(a) An out-of-state trust institution may establish or acquire and maintain a representative trust office in this state. An out-of-state trust institution not maintaining a trust office in this state and desiring to establish or acquire and maintain a representative trust office shall file a notice on a form prescribed by the commissioner which shall set forth the name of the out-of-state trust institution and the location of the proposed office and satisfactory evidence that the notificant is a trust institution, furnish a copy of the resolution adopted by the board authorizing the representative trust office, and pay the filing fee, if any, prescribed by the commissioner.

(b) The notificant may commence business at the representative trust office on the thirty-first day after the date the commissioner receives the notice, unless the commissioner specifies an earlier or later date.

(c) The thirty-day period of review may be extended by the commissioner on a determination that the written notice raises issues that require additional information or additional time for analysis. If the period of review is extended, the out-of-state trust institution may establish the representative trust office only on prior written approval by the commissioner.

(d) The commissioner may deny approval of the representative trust office if the commissioner finds that the notificant lacks sufficient financial resources to undertake the proposed expansion without adversely affecting its safety or soundness or that the proposed office would be contrary to the public interests. In acting on the notice, the commissioner shall consider the views of the appropriate bank supervisory agencies.

SUBARTICLE D. SUPERVISION OF OUT-OF-TATE TRUST INSTITUTION

SECTION 2.301. Examinations; periodic reports; cooperative agreements; assessment of fees.

(a) To the extent consistent with subsection (c) of this section, the commissioner may make such examinations of any office established and maintained in this state pursuant to this article by an out-of-state trust institution as the commissioner may deem necessary to determine whether the office is being operated in compliance with the laws of this state and in accordance with safe and sound banking practices. The provisions of Sections 81-1-81 and 81-1-83 shall apply to such examinations.

(b) The commissioner may require periodic reports regarding any out-of-state trust institution that has established and maintained an office in this state pursuant to this article. The required reports shall be provided by such trust institution or by the home state regulator. Any reporting requirements prescribed by the commissioner under this subsection (b) shall be (i) consistent with the reporting requirements applicable to state trust companies and (ii) appropriate for the purpose of enabling the commissioner to carry out his or her responsibilities under this article.

(c) The commissioner may enter into cooperative, coordinating and information-sharing agreements with any other bank supervisory agencies or any organization affiliated with or representing one or more bank supervisory agencies with respect to the periodic examination or other supervision of any office in this state of an out-of-state trust institution, or any office of a state trust institution in any host state, and the commissioner may accept such a party's report of examination and report of investigation in lieu of conducting his or her own examination or investigation.

(d) The commissioner may enter into contracts with any bank supervisory agency that has concurrent jurisdiction over a state trust institution or an out-of-state trust institution maintaining an office in this state to engage the services of such agency's examiners at a reasonable rate of compensation, or to provide the services of the commissioner's examiners to such agency at a reasonable rate of compensation.

(e) The commissioner may enter into joint examinations or joint enforcement actions with other bank supervisory agencies having concurrent jurisdiction over any office established and maintained in this state by an out-of-state trust institution or any office established and maintained by a state trust institution in any host state. However, the commissioner may at any time take such actions independently if the commissioner deems such actions to be necessary or appropriate to carry out his or her responsibilities under this subarticle or to ensure compliance with the laws of this state; but in the case of an out-of-state trust institution, the commissioner shall recognize the exclusive authority of the home state regulator over corporate governance matters and the primary responsibility of the home state regulator with respect to safety and soundness matters.

(f) Each out-of-state trust institution that maintains one or more offices in this state may be assessed and, if assessed, shall pay supervisory and examination fees in accordance with the laws of this state and regulations of the commissioner. Such fees may be shared with other bank supervisory agencies or any organization affiliated with or representing one or more bank supervisory agencies in accordance with agreements between such parties and the commissioner.

SECTION 2.302. Enforcement.

After notice and opportunity for hearing,

(a) The commissioner may determine:

(1) That an office maintained by an out-of-state trust institution in this state is being operated in violation of any provision of the laws of this state or in an unsafe and unsound manner; or

(2) That a company is engaged in an unauthorized trust activity. In either event, the commissioner shall have the authority to take all such enforcement actions as he or she would be empowered to take if the office or the company were a state trust company, including but not limited to issuing an order temporarily or permanently prohibiting the company from engaging in a trust business in this state;

(b) The commissioner may determine by order that an out-of-state trust institution engaging in or proposing to engage in a trust business in this state does not meet the requirements for establishing a representative trust office in this state pursuant to Section 2.202 of this act, which order shall be effective on the date of issuance or such other date as the commissioner shall determine;

(c) In cases involving extraordinary circumstances requiring immediate action, the commissioner may take any action permitted by Section 2.302 (a) or (b) of this act without notice or opportunity for hearing, but shall promptly afford a subsequent hearing upon an application to rescind the action taken. The commissioner shall promptly give notice to the home state regulator of each enforcement action taken against an out-of-state trust institution and, to the extent practicable, shall consult and cooperate with the home state regulator in pursuing and resolving said enforcement action.

SECTION 2.303. Notice of subsequent merger, closing, etc.

Each out-of-state trust institution that maintains an office in this state pursuant to this article, or the home state regulator of such trust institution, shall give at least thirty (30) days' prior written notice (or, in the case of an emergency transaction, such shorter notice as is consistent with applicable state or federal law) to the commissioner of (i) any merger, consolidation, or other transaction that would cause a change of control with respect to such out-of-state trust institution or any bank holding company that controls such trust institution, with the result that an application would be required to be filed pursuant to the federal Change in Bank Control Act of 1978, as amended, 12 USCS Section 1817(j), or the federal Bank Holding Company Act of 1956, as amended, 12 USCS Section 1841 et seq., or any successor statutes thereto, (ii) any transfer of all or substantially all of the trust accounts or trust assets of the out-of-state trust institution to another person or (iii) the closing or disposition of any office in this state.

ARTICLE 3. TRUSTS AND FIDUCIARIES

SUBARTICLE A. GENERAL

SECTION 3.001. Title and purposes.

(a) Articles 3, 4 and 5 of this act may be cited as the State Trust Institution Charter Modernization Act.

(b) The express purposes of Articles 3, 4 and 5 of this act are to:

(1) Provide for the chartering of trust companies and to permit trust companies to act as fiduciaries and otherwise engage in the trust business in this state, provided that they are adequately capitalized, competently managed by persons of integrity, and supervised by the commissioner, all in order to ensure that such trust companies are operated in compliance with law, in a safe and sound manner and in a manner which protects their clients and customers and other consumers in this state;

(2) Improve service and reduce costs for trust institution clients and customers and other consumers in this state by modernizing state laws to permit the delegation by trust institutions of fiduciary functions but not fiduciary responsibility, authorize clients to designate any trust institution to act for them and to choose an appropriate state's law to govern fiduciary instruments and investments, and protect consumers from excessive fees or undisclosed conflicts of interest of trust institutions and their affiliates; and

(3) Permit adequately capitalized and professionally managed trust companies serving only family members and their affiliated entities to operate as private trust companies which may not provide services to the general public.

SECTION 3.002. Definitions.

Definitions contained in Sections 1.002 and 6.001 of this act shall apply to Articles 3, 4 and 5 of this act unless the context otherwise requires.

SUBARTICLE B. DESIGNATION OF TRUSTEE AND GOVERNING LAW

SECTION 3.101. Designation of trustee.

Any person residing in this state may designate any trust institution to act as a fiduciary on behalf of such person.

SECTION 3.102. Choice of law governing trusts.

Any trust institution that maintains a trust office or representative trust office in this state and its affected clients may designate either (i) this state, (ii) a state where affected clients reside or (iii) the state where such trust institution has its principal office as the state whose laws shall govern any written agreement between such trust institution and its client or any instrument under which the trust institution acts for a client.

SECTION 3.103. Choice of law governing fiduciary investments.

Any trust institution that maintains a trust office or representative trust office in this state and its affected clients may designate either (i) this state, (ii) a state where affected clients reside or (iii) the state where such trust institution has its principal office as the state whose laws shall govern with respect to the fiduciary investment standards applicable to any written agreement between such trust institution or its client and any other instrument under which the trust institution acts for a client.

SUBARTICLE C. DELEGATION; AFFILIATES

SECTION 3.201. Delegation and fiduciary responsibility.

(a) Any person acting as a trustee or as any other fiduciary under the laws of this state may delegate any investment, management or administrative function if such person exercises reasonable care, judgment and caution in:

(1) Selecting the delegate, taking into account the delegate's financial standing and reputation;

(2) Establishing the scope and other terms of any delegation; and

(3) Reviewing periodically the delegate's actions in order to monitor overall performance and compliance with the scope and other terms of the delegation.

(b) Notwithstanding any delegation permitted by subsection (a) of this section, any person acting as a trustee or in any other fiduciary capacity under the laws of this state shall retain responsibility for the due performance of any delegated fiduciary function.

SECTION 3.202. Affiliates.

(a) Any person acting as a trustee or in any other fiduciary capacity under Section 3.201 of this act may hire and compensate, as a delegate, an affiliate of such person if:

(1) Authorized by a trust or fiduciary instrument;

(2) Authorized by court order;

(3) Authorized in writing by each affected client; or

(4) The standards of Section 3.201 are satisfied.

(b) Fees paid to an affiliate shall be competitive with fees charged by nonaffiliates that provide substantially similar services; however, if an affiliate is used pursuant to subsection (a)(4) of this section, the amount of fees paid to the affiliate shall also be consistent with best execution.

SUBARTICLE D. FEES

SECTION 3.301. Fee determination.

The compensation arrangement between a client and any person acting as a trustee or as any other fiduciary pursuant to this act shall be at arm's length and any compensation pursuant to such arrangement shall be a reasonable amount with respect to the services rendered.

SECTION 3.302. Disclosure of potential conflicts of interest.

(a) Any company, proposing to act as a trustee or in any other fiduciary capacity pursuant to a written agreement to be entered into with a prospective client after the effective date of this act, which company has any potential or actual conflict of interest which may reasonably be expected to have an impact on the independence or judgment of such trustee or fiduciary, shall deliver a disclosure statement to the prospective client (i) not less than forty-eight (48) hours prior to entering into any written or oral trust or fiduciary agreement with such client or prospective client, or (ii) at the time of entering into any such agreement if the client has a right to terminate the agreement without penalty within three (3) or more business days after entering into the agreement.

(b) The disclosure statement shall contain appropriate information concerning the actual or potential conflict of interest. If such trustee or other fiduciary proposes to delegate any fiduciary function to an affiliate, the nature of the affiliation and whether the trustee or other fiduciary may directly benefit from the delegation shall be disclosed in the disclosure statement.

SUBARTICLE E. ACQUISITION OF TRUST ASSETS

SECTION 3.401. Purchase of assets of another trust institution.

(a) Subject to the provisions of this section, a trust institution may purchase assets of a state trust company or trust-related assets of another trust institution, including the right to control accounts established with the trust institution. Except as otherwise expressly provided by this section or another statute, the purchase of all or part of the assets of the trust institution does not make the purchasing trust institution responsible for any liability or obligation of the selling trust institution that the purchasing trust institution does not expressly assume. Except as otherwise provided by this act, this subarticle does not govern or prohibit the purchase by a state trust institution of all or part of the assets of a corporation or other entity that is not a trust institution.

(b) If the acquiring institution is a state bank, a state trust company, an out-of-state trust institution which maintains neither a branch nor a trust office in this state, or a savings association chartered under the laws of this state, an application in the form required by the commissioner must be filed with the commissioner for any acquisition of all or substantially all of (i) the assets of a state trust company or (ii) the trust assets of another trust institution. The commissioner shall investigate the condition of the purchaser and seller and may require the submission of additional information as considered necessary to make an informed decision. The commissioner shall approve the purchase if:

(1) The acquiring trust institution will be solvent and have sufficient capitalization for its business and location;

(2) The acquiring trust institution has complied with all applicable statutes and rules including without limitation any applicable requirements of Article 3 of this act;

(3) All fiduciary obligations and liabilities of the parties have been properly discharged or otherwise assumed by the acquiring trust institution;

(4) All conditions imposed by the commissioner have been satisfied or otherwise resolved; and

(5) All fees and costs have been paid.

(c) A purchase requiring an application pursuant to Section 3.401(b) of this act is effective on the date of approval, unless the purchase agreement provides for, and the commissioner consents to, a different effective date.

(d) The acquiring trust institution shall succeed by operation of law to all of the rights, privileges and obligations of the selling trust institution under each account included in the assets acquired.

ARTICLE 4. STATE TRUST COMPANY

SUBARTICLE A. ORGANIZATION; GENERAL

SECTION 4.101. Organization and powers of state trust company.

(a) Subject to the other provisions of this article, one or more persons may organize and charter a state trust company. A state trust company may perform any act as a fiduciary or engage in any trust business within or without this state.

(b) Subject to Section 4.108 of this act, a state trust company may exercise the powers of a business corporation reasonably necessary or helpful to enable exercise of its specific powers under this act.

(c) A state trust company may contribute to community funds, or to charitable, philanthropic, or benevolent instrumentalities conducive to public welfare, amounts that its board considers appropriate and in the interests of the state trust company.

(d) Subject to Section 5.301 of this act, a state trust company may deposit trust funds with itself or an affiliate.

(e) Subject to obtaining any required insurance from the Federal Deposit Insurance Corporation, a state trust company may receive and pay deposits with or without interest, made by agencies of the United States Government or of a state, county, or municipality.

SECTION 4.102. Articles of association of state trust company.

The articles of association of a state trust company must be signed and acknowledged by each organizer and must contain:

(a) The name of the state trust company;

(b) The period of its duration, which may be perpetual;

(c) The powers of the state trust company, which may be stated as:

(1) All powers granted to a state trust company in this state; or

(2) A list of the specific powers that the state trust company chooses and is authorized to exercise;

(d) The aggregate number of shares, or participation shares in the case of a limited liability trust company, that the state trust company will be authorized to issue, the number of classes of shares or participation shares, which may be one or more, the number of shares or participation shares of each class if more than one (1) class, and a statement of the par value of the shares or participation shares of each class or that the shares or participation shares are to be without par value;

(e) If the shares or participation shares are to be divided into classes, the designation of each class and statement of the preferences, limitations, and relative rights of the shares or participation shares of each class, which in the case of a limited trust association may be more fully set forth in the participation agreement;

(f) Any provision limiting or denying to shareholders or participants the preemptive right to acquire additional or treasury shares or participation shares of the state trust company;

(g) Any provision granting the right of shareholders or participants to cumulative voting in the election of directors or managers;

(h) The aggregate amount of consideration to be received for all shares or participation shares initially issued by the state trust company, and a statement that all authorized shares or participation shares have been subscribed and that all subscriptions received provide for the consideration to be fully paid in cash before issuance of the charter;

(i) Any provision consistent with law that the organizers elect to set forth in the articles of association for the regulation of the internal affairs of the state trust company or that is otherwise required by this act to be set forth in the articles of association;

(j) The street address of the state trust company's principal office required to be maintained under Section 2.003 of this act; and

(k) The number of directors or managers constituting the initial board, which may not be fewer than five (5) or more than twenty-five (25), and the names and street addresses of the persons who are to serve as directors or managers until the first annual meeting of shareholders or participants or until successor directors or managers have been elected and qualified; or, at the option of the organizers of a limited liability trust company, that will have not fewer than five (5) or more than twenty-five (25) participants, a statement that management is vested in a board comprised of all participants, with management authority vested in each participant in proportion to the participant's contribution to capital as adjusted from time to time to properly reflect any additional contribution, and the names and street addresses of the persons who are to be the initial managing participants.

SECTION 4.103. Application for state trust company charter.

(a) An application for a state trust company charter must be made under oath and in the form required by the commissioner and must be supported by information, data, records, and opinions of counsel that the commissioner requires. The application must be accompanied by all charter fees and deposits required by statute or rule or regulation.

(b) The commissioner shall grant a state trust company charter only on proof that one or more viable markets exist within or outside of this state that may be served in a profitable manner by the establishment of the proposed state trust company. In making such a determination, the commissioner shall (i) examine the business plan which shall be submitted as part of the application for a state trust company charter and (ii) consider:

(1) The market or markets to be served;

(2) Whether the proposed organizational and capital structure and amount of initial capitalization is adequate for the proposed business and location;

(3) Whether the anticipated volume and nature of business indicates a reasonable probability of success and profitability based on the market sought to be served;

(4) Whether the proposed officers, directors, and managers, or managing participants, as a group, have sufficient fiduciary experience, ability, standing, competence, trustworthiness, and integrity to justify a belief that the proposed state trust company will operate in compliance with law and that success of the proposed state trust company is probable;

(5) Whether each principal shareholder or participant has sufficient experience, ability, standing, competence, trustworthiness, and integrity to justify a belief that the proposed state trust company will be free from improper or unlawful influence or interference with respect to the state trust company's operation in compliance with law; and

(6) Whether the organizers are acting in good faith.

(c) The failure of an applicant to furnish required information, data, opinions of counsel, other material or the required fee is considered an abandonment of the application.

SECTION 4.104. Notice and investigation of charter application.

(a) The commissioner shall notify the organizers when the application is complete and accepted for filing and all required fees and deposits have been paid. Promptly after this notification, the organizers shall publish notice of the application and solicit comments in form specified by the commissioner at locations reasonably necessary to solicit the views of potentially affected persons specified by the commissioner by rules or regulation.

(b) At the expense of the organizers, the commissioner shall investigate the application and inquire into the identity and character of each proposed director, manager, officer, managing participant, and principal shareholder or participant. The commissioner shall prepare a written report of the investigation, and any person may request a copy of the nonconfidential portions of the application and written report as provided by the Mississippi Public Records Act of 1983 (Section 25-61-1 et seq.). Rules and regulations adopted under this act may specify the confidential or nonconfidential character of information obtained by the commissioner under this section. Except as provided in rules and regulations regarding confidential information, the financial statement of a proposed officer, director, manager, or managing participant is confidential and not subject to public disclosure.

SECTION 4.105. Hearing and decision on charter application.

(a) Any person may file a protest to an application.

(b) On or after the fifteenth day after the last date the notice was published under Section 4.104 of this act, the commissioner shall determine whether the application meets the requirements of Section 4.103(b) of this act, based on the application and investigation, and approve the application for charter or set the charter application for hearing.

(c) If the commissioner sets a hearing, the commissioner shall conduct a public hearing and as many prehearing conferences and opportunities for discovery as the commissioner considers advisable and consistent with governing statutes and rules and regulations.

(d) Based on the record of any hearing set pursuant to subsection (c) of this section, the commissioner shall determine whether all of the necessary conditions set forth in Section 4.103(b) of this act have been established and shall enter an order granting or denying the charter. The commissioner may make approval of any application conditional and shall include any conditions in the order granting the charter.

SECTION 4.106. Issuance of charter.

(a) A state trust company may not engage in the trust business until it receives its charter from the commissioner. The commissioner may not deliver the charter until the state trust company has:

(1) Received cash or marketable securities in at least the full amount of required capital from subscriptions for the issuance of shares or participation shares;

(2) Elected or qualified the initial officers and directors or managers, as appropriate, named in the application for charter or other officers and directors or managers approved by the commissioner; and

(3) Complied with all other requirements of this act relative to the organization of a state trust company.

(b) If a state trust company does not open and engage in the trust business within six (6) months after the date it receives its charter or conditional approval of application for charter, or within such further period as such period may be extended, the commissioner shall revoke the charter or cancel the conditional approval of application for charter without judicial action.

SECTION 4.107. Required capital.

(a) The commissioner may not issue a charter to a state trust company having required capital of less than Two Million Dollars ($2,000,000.00) except as provided in subsection (b) of this section.

(b) The commissioner may require additional capital for a proposed or existing state trust company or, on application in the exercise of discretion consistent with protecting safety and soundness, reduce the amount of minimum capital required for a proposed or existing state trust company, if the commissioner finds the condition and operations of an existing state trust company or the proposed scope or type of operations of a proposed state trust company requires additional, or permits reduced, capital consistent with the safety and soundness of the state trust company. The safety and soundness factors to be considered by the commissioner in the exercise of such discretion include but are not limited to,

(1) The nature and type of business conducted;

(2) The nature and degree of liquidity in assets held in a corporate capacity;

(3) The amount of fiduciary assets under management;

(4) The type of fiduciary assets held and the depository of such assets;

(5) The complexity of fiduciary duties and degree of discretion undertaken;

(6) The competence and experience of management;

(7) The extent and adequacy of internal controls;

(8) The presence or absence of annual unqualified audits by an independent certified public accountant;

(9) The reasonableness of business plans for retaining or acquiring additional capital; and

(10) The existence and adequacy of insurance obtained or held by the trust company for the purpose of protecting its clients, beneficiaries and grantors.

(c) The proposed effective date of an order requiring an existing state trust company to increase its capital must be stated in the order as on or after the twenty-first day after the date the proposed order is mailed or delivered. Unless the state trust company requests a hearing before the commissioner in writing before the effective date of the proposed order, the order becomes effective and is final and nonappealable. This subsection does not prohibit an application to reduce capital requirements of a proposed or an existing state trust company under subsection (b) of this section.

(d) Subject to subsection (b) of this section and section 4.301 of this act, a state trust company to which the commissioner issues a charter shall at all times maintain capital in at least the amount required under subsection (a) of this section, plus any additional amount or less any reduction the commissioner directs under subsection (b) of this section.

SECTION 4.108. Application of laws relating to general business corporations.

(a) The Mississippi Business Corporation Act applies to a trust company to the extent not inconsistent with this act or the proper business of a trust company, except that:

(1) A reference to the Secretary of State means the commissioner unless the context requires otherwise; and

(2) The right of shareholders or participants to cumulative voting in the election of directors or managers exists only if granted by the state trust company's articles of association.

(b) Unless expressly authorized by this act or a rule or regulation of the commissioner, a trust company may not take an action authorized by the Mississippi Business Corporation Act regarding its corporate status, capital structure, or a matter of corporate governance, of the type for which the Mississippi Business Corporation Act would require a filing with the Secretary of State if the trust company were a business corporation, without first submitting the filing to the commissioner for the same purposes for which it otherwise would be required to be submitted to the Secretary of State.

(c) The commissioner may adopt rules or regulations to limit or refine the applicability of subsection (a) of this section to a trust company or to alter or supplement the procedures and requirements of the Mississippi Business Corporation Act applicable to an action taken under this article.

SECTION 4.109. Commissioner hearings; appeals.

(a) This section does not grant a right to hearing to a person that is not otherwise granted by governing law.

(b) The commissioner may convene a hearing to receive evidence and argument regarding any matter before the commissioner for decision or review under this act. The hearing shall be conducted in the same manner as other hearings conducted by the commissioner.

(c) A hearing before the commissioner that is required or authorized by law may be conducted by a hearing officer on behalf of the commissioner. A matter made confidential by law must be considered by the commissioner in a closed hearing.

(d) Except as expressly provided otherwise by this act, a person affected by a final decision or order of the commissioner made under this act after a hearing may appeal the final decision or order to the Chancery Court of the First Judicial District of Hinds County, Mississippi. A petition for appeal filed in the district court does not stay or vacate the appealed decision or order unless the court, after notice and hearing, expressly stays or vacates the decision or order.

SUBARTICLE B. AMENDMENT OF ARTICLES;

CHANGES IN CAPITAL AND SURPLUS

SECTION 4.201. Amendment of state trust company articles of association.

(a) A state trust company that has been granted a charter under Section 4.106 of this act or a predecessor statute may amend or restate its articles of association for any lawful purpose, including the creation of authorized but unissued shares or participation shares in one or more classes or series.

(b) An amendment authorizing the issuance of shares or participation shares in series must contain:

(1) The designation of each series and of any variations in the preferences, limitations, and relative rights among series to the extent that the preferences, limitations, and relative rights are to be established in the articles of association; and

(2) A statement of any authority to be vested in the board to establish series and determine the preferences, limitations, and relative rights of each series.

(c) A limited liability trust company may not amend its articles of association to extend its period of existence for a perpetual period or for any period of years, unless the period of existence is expressly contingent on those events resulting in dissolution of the limited liability trust company under subarticle B of Article 8 of this act.

(d) Amendment or restatement of the articles of association of a state trust company and approval of the board and shareholders or participants must be made or obtained in accordance with provisions of the Mississippi Business Corporation Act for the amendment or restatement of articles of incorporation except as otherwise provided by this act or rules or regulations adopted under this act. The original and one (1) copy of the articles of amendment or restated articles of association must be filed with the commissioner for approval. Unless the submission presents novel or unusual questions, the commissioner shall approve or reject the amendment or restatement not later than the thirty-first day after the date the commissioner considers the submission informationally complete and accepted for filing. The commissioner may require the submission of additional information as considered necessary to an informed decision to approve or reject any amendment or restatement or articles of association under this section.

(e) If the commissioner thinks that the amendment or restatement conforms to law and any conditions imposed by the commissioner, and any required filing fee has been paid, the commissioner shall:

(1) Endorse the face of the original and copy with the date of approval and the word "Approved";

(2) File the original in the department's records; and

(3) Deliver a certified copy to the amendment or restatement to the state trust company.

(f) An amendment or restatement, if approved, takes effect on the date of approval, unless the amendment or restatement provides for a different effective date.

SECTION 4.202. Establishing a series of shares or participation shares.

(a) If the articles of association expressly give the board authority to establish series and determine the preferences, limitations, and relative rights of each series, the board may do so only on compliance with this section and any rules adopted under this article.

(b) A series of shares or participation shares may be established in the manner provided by the provisions of the Mississippi Business Corporation Act as if the state trust company were a domestic corporation, but the shares or participation shares of the series may not be issued and sold except upon compliance with this section. The state trust company shall file the original and one (1) copy of the statement of action required by the Mississippi Business Corporation Act with the commissioner. Unless the submission presents novel or unusual questions, the commissioner shall approve or reject the series not later than the thirty-first day after the date the commissioner considers the submission informationally complete and accepted for filing. The commissioner may require the submission of additional information as considered necessary to an informed decision.

(c) If the commissioner finds that the interests of the clients and creditors of the state trust company will not be adversely affected by the series, that the series otherwise conforms to law and any conditions imposed by the commissioner, and that any required filing fee has been paid, the commissioner shall:

(1) Endorse the face of the original and copy of the statement with the date of approval and the word "Approved";

(2) File the original in the department's records; and

(3) Deliver a certified copy of the statement to the state trust company.

SECTION 4.203. Change in outstanding capital and surplus.

(a) A state trust company may not reduce or increase its outstanding capital through dividend, redemption, issuance of shares or participation shares, or otherwise, without the prior approval of the commissioner, except as permitted by this section or rules adopted under this article.

(b) Unless otherwise restricted by rules or regulations, prior approval is not required for an increase in capital accomplished through:

(1) Issuance of shares of common stock or their equivalent in participation shares for cash;

(2) Declaration and payment of pro rata share dividends as defined in the Mississippi Business Corporation Act; or

(3) Adoption by the board of a resolution directing that all or part of undivided profits be transferred to capital.

(c) Prior approval is not required for a decrease in surplus caused by incurred losses in excess of undivided profits.

SECTION 4.204. Capital notes or debentures.

(a) With the prior written approval of the commissioner, any state trust company may, at any time, through action of its board, and without requiring action of its shareholders or participants, issue and sell its capital notes or debentures, which must be subordinate to the claims or depositories and may be subordinate to other claims, including the claims of other creditors or classes of creditors or the shareholders or participants.

(b) Capital notes or debentures may be convertible into shares or participation shares of any class or series. The issuance and sale of convertible capital notes or debentures are subject to satisfaction of preemptive rights, if any, to the extent provided by law.

(c) Without the prior written approval of the commissioner, interest due or principal repayable on outstanding capital notes or debentures may not be paid by a state trust company when the state trust company is in hazardous condition or insolvent, as determined by the commissioner, or to the extent that payment will cause the state trust company to be in hazardous condition or insolvent.

(d) The amount of any outstanding capital notes or debentures that meet the requirements of this section and that are subordinated to unsecured creditors of the state trust company may be included in equity capital of the state trust company for purposes of determining hazardous condition or insolvency, and for such other purposes provided by rules or regulations adopted under this act.

SUBARTICLE C. PRIVATE TRUST COMPANY

SECTION 4.301. Private trust company.

(a) A private trust company engaging in the trust business in this state shall comply with each and every provision of this act applicable to a trust company unless expressly exempted therefrom in writing by the commissioner pursuant to this section, by rule or regulation adopted by the commissioner or under a predecessor statute.

(b) A private trust company or proposed private trust company may request in writing that it be exempted from specified provisions of Sections 2.105(b), 4.102(k), 4.103(b), 4.104(a) and (b), 4.107(a), 5.002, 5.101(b), (c) and (d), 5.105 and 5.201 of this act. The commissioner may grant the exemption in whole or in part if the commissioner finds that the private trust company does not and will not transact business with the general public. For purposes of this section:

(1) "Transact business with the general public" means any sales, solicitations, arrangements, agreements, or transactions to provide trust or other business services, whether or not for a fee, commission, or any other type of remuneration, with any client that is not a family member or a sole proprietorship, partnership, joint venture, association, trust, estate, business trust, or other company that is not one hundred percent (100%) owned by one or more family members;

(2) "Family member" means any individual who is related within the fourth degree of affinity or consanguinity to an individual or individuals who control a private trust company or which is controlled by one or more trusts or charitable organizations established by such individual or individuals; and

(3) All individuals who control a private trust company or establish trusts or charitable organizations controlling such private trust company must be related within the second degree of affinity or consanguinity.

(c) At the expense of the private trust company, the commissioner may examine or investigate the private trust company in connection with an application for exemption. Unless the application presents novel or unusual questions, the commissioner shall approve the application for exemption or set the application for hearing not later than the sixty-first day after the date the commissioner considers the application complete and accepted for filing. The commissioner may require the submission of additional information as considered necessary to an informed decision.

(d) Any exemption granted under this section may be made subject to conditions or limitations imposed by the commissioner consistent with this act.

(e) The commissioner may adopt rules and regulations defining other circumstances that do not constitute transaction of business with the public, specifying the provisions of this act that are subject to an exemption request, and establishing procedures and requirements for obtaining, maintaining, or revoking exempt status.

SECTION 4.302. Requirements to apply for and maintain status as a private trust company.

(a) Application.

(1) A private trust company requesting an exemption from the provisions of this act pursuant to Section 4.301 shall file an application with the commissioner containing the following:

(A) A nonrefundable application fee as set by the commissioner;

(B) A detailed statement under oath showing the private trust company's assets and liabilities as of the end of the month previous to the filing of the application;

(C) A statement under oath of the reason for requesting the exemption;

(D) A statement under oath that the private trust company is not currently transacting business with the public and that the company will not conduct business with the public without the prior written permission of the commissioner;

(E) The current street mailing address and telephone number of the physical location in this state at which the private trust company will maintain its books and records, together with a statement under oath that the address given is true and correct and is not a United States Postal Service post office box or a private mail box, postal box, or mail drop; and

(F) Listing of the specific provisions of the act for which the request for exemption is made.

(2) The commissioner shall not approve a private trust company exemption unless the application is completed as required in paragraph (1) of this subsection.

(b) Requirements.

(1) To maintain status as an exempt private trust company under this act, the private trust company shall comply with the following:

(A) An exempt private trust company shall not transact business with the public.

(B) An exempt private trust company shall file an annual certification that it is maintaining the conditions and limitations of its exempt status. This annual certification shall be filed on a form provided by the commissioner and be accompanied by a fee determined by the commissioner. The annual certification shall be filed on or before June 30 of each year. No annual certification shall be valid unless it bears an acknowledgment stamped by the department. The department shall have thirty (30) days from the date of receipt to return a copy of the acknowledged annual certification to the private trust company. The burden shall be on the exempt private trust company to notify the department of any failure to return an acknowledged copy of any annual certification within the thirty-day period. The commissioner may examine or investigate the private state trust company periodically as necessary to verify the certification.

(C) An exempt private trust company shall comply with the principal office provisions of Section 2.003 of this act and with the address and telephone requirements of subsection (a)(1)(E) of this section.

(D) The exempt private trust company shall pay the corporation franchise tax under Section 27-13-1 et seq.

(c) Change of control. Control of an exempt private trust company may not be transferred or sold with exempt status. In any change of control, the acquiring control person must comply with the provisions of this act and the exempt status of the private trust company shall automatically terminate upon the effective date of the transfer. A separate application for exempt status must be filed if the acquiring person wishes to obtain or continue an exemption pursuant to this section.

(d) Authority to revoke. The commissioner shall have authority to revoke the exempt status of a private trust company in the following circumstances:

(1) The exempt private trust company makes a false statement under oath on any document required to be filed by the act or by any rule or regulation promulgated by the commissioner; or

(2) The exempt private trust company fails to submit to an examination as required by Section 2.003 of this act; or

(3) The exempt private trust company withholds requested information from the commissioner; or

(4) The exempt private trust company violates any provision of this section applicable to exempt private trust companies.

(e) Notification of revocation of exemption. If the commissioner determines from examination or other credible evidence that an exempt private trust company has violated any of the requirements of this section, the commissioner may by personal delivery or registered or certified mail, return receipt requested, notify the exempt private trust company in writing that the private trust company's exempt status has been revoked. The notification must state grounds for the revocation with reasonable certainty. The notice must state its effective date, which may not be before the fifth day after the date the notification is mailed or delivered. The revocation takes effect for the private trust company if the private trust company does not request a hearing in writing before the effective date. After taking effect the revocation is final and nonappealable as to that private trust company, and the private trust company shall be subject to all of the requirements and provisions of the act applicable to nonexempt state trust companies.

(f) Compliance period. A private trust company shall have five (5) calendar days after the revocation is effective to comply with the provisions of this act from which it was formerly exempt. If, however, the commissioner determines, at the time of revocation, that the private trust company has been engaging in or attempting to engage in acts intended or designed to deceive or defraud the public, the commissioner may shorten or eliminate, in the commissioner's sole discretion, the five (5) calendar days compliance period.

(g) Remedies for failure to comply. If the private trust company does not comply with all of the provisions of this act, including such capitalization requirements as have been determined by the commissioner as necessary to assure the safety and soundness of the private trust company, within the prescribed time period, the commissioner may:

(1) Institute any action or remedy prescribed by this act, or any applicable rule or regulation, or

(2) Refer the private trust company to the Attorney General for institution of a quo warranto proceeding to revoke the charter.

(h) Private trust company under prior law. A private trust company that currently has a valid exemption under a predecessor statute is considered exempt under this act.

SECTION 4.303. Conversion to public trust company.

(a) A private trust company may terminate its status as a private trust company and commence transacting business with the general public. A private trust company desiring to commence transacting business with the general public shall file a notice on a form prescribed by the commissioner, which shall set forth the name of the private trust company and an acknowledgement that any exemption granted or otherwise applicable to the private trust company pursuant to Section 4.301 of this act shall cease to apply on the effective date of such notice, furnish a copy of the resolution adopted by the board authorizing the private trust company to commence transacting business with the general public, and pay the filing fee, if any, prescribed by the commissioner.

(b) The notificant may commence transacting business with the general public on the thirty-first day after the date the commissioner receives the notice, unless the commissioner specifies an earlier or later date.

(c) The thirty-day period of review may be extended by the commissioner on determination that the written notice raises issues that require additional information or additional time for analysis. If the period for review is extended, the notificant may commence transacting business with the public only on prior written approval by the commissioner.

(d) The commissioner may deny approval of the notice of the private trust company to commence transacting business with the general public if the commissioner finds that the notificant lacks sufficient financial resources to undertake the proposed expansion without adversely affecting its safety or soundness or that the proposed transacting of business of the general public would be contrary to the public interest or if the commissioner determines that the notificant will not within a reasonable period be in compliance with any provision of this act from which the notificant had been previously exempted pursuant to Section 4.301 of this act.

ARTICLE 5. INVESTMENTS, LOANS AND DEPOSITS

SUBARTICLE A. ACQUISITION AND OWNERSHIP OF

STATE TRUST COMPANY FACILITIES AND OTHER REAL ESTATE

SECTION 5.001. Investment in state trust company facilities.

(a) In this subarticle, "state trust company facility" means real estate, including an improvement, owned, or leased to the extent the lease or the leasehold improvements are capitalized, by a state trust company for the purpose of:

(1) Providing space for state trust company employees to perform their duties and space for parking by state trust company employees and customers;

(2) Conducting trust business, including meeting the reasonable needs and convenience of the state trust company's customers, computer operations, document and other item processing, maintenance and record retention and storage;

(3) Holding, improving, and occupying as an incident to future expansion of the state trust company's facilities; or

(4) Conducting another activity authorized by rules or regulations adopted under this act.

(b) Without the prior written approval of the commissioner, a state trust company may not directly or indirectly invest an amount in excess of its restricted capital in state trust company facilities, furniture, fixtures, and equipment. Except as otherwise provided by rules or regulations adopted under this act, in computing this limitation a state trust company:

(1) Shall include:

(A) Its direct investment in state trust company facilities;

(B) Any investment in equity or investment securities of a company holding title to a facility used by the state trust company for the purposes specified by subsection (a) of this section;

(C) Any loan made by the state trust company to or on the security of equity or investment securities issued by a company holding title to a facility used by the state trust company; and

(D) Any indebtedness incurred on state trust company facilities by a company:

(i) That holds title to the facility;

(ii) That is an affiliate of the state trust company; and

(iii) In which the state trust company is invested in the manner described by subparagraph (B) or (C) of this paragraph (1); and

(2) May exclude an amount included under paragraphs (1)(B) through (D) of this subsection to the extent any lease of a facility from the company holding title to the facility is capitalized on the books of the state trust company.

(c) Real estate acquired under subsection (a)(3) of this section and not improved and occupied by the state trust company ceases to be a state trust company facility on the third anniversary of the date of its acquisition, unless the commissioner on application grants written approval to further delay in the improvement and occupation of the property by the state trust company.

(d) A state trust company shall comply with generally accepted accounting principles, consistently applied, in accounting for its investment in and depreciation of state trust company facilities, furniture, fixtures, and equipment.

SECTION 5.002. Other real estate.

(a) A state trust company may not acquire real estate except:

(1) As permitted by Section 5.001 of this act or as otherwise provided by this act, including rules or regulations adopted under this act;

(2) If necessary to avoid or minimize a loss on a loan or investment previously made in good faith; or

(3) With the prior written approval of the commissioner.

(b) To the extent reasonably necessary to avoid or minimize loss on real estate acquired as permitted by subsection (a) of this section, a state trust company may exchange real estate for other real estate or personal property, invest additional funds in or improve real estate acquired under this subsection or subsection (a) of this section, or acquire additional real estate.

(c) A state trust company shall dispose of any real estate subject to subsection (a)(1) and (2) of this section not later than:

(1) The fifth anniversary of the date:

(A) It was acquired, except as otherwise provided by rules or regulations adopted under this act; or

(B) It ceases to be used as a state trust company facility; or

(2) The third anniversary of the date it ceases to be a state trust company facility as provided by Section 5.001(c) of this act.

(d) The commissioner on application may grant one or more extensions of time for disposing of real estate if the commissioner determines that:

(1) The state trust company has made a good faith effort to dispose of the real estate; or

(2) Disposal of the real estate would be detrimental to the state trust company.

SUBARTICLE B. STATE TRUST COMPANY INVESTMENTS

SECTION 5.101. Securities.

(a) A state trust company may invest its corporate funds in any type or character of equity or investment securities subject to the limitations provided by this section.

(b) Unless the commissioner approves maintenance of a lesser amount in writing, a state trust company must invest and maintain an amount equal to at least forty percent (40%) of the state trust company's capital under Section 4.107 of this act in unencumbered cash, cash equivalents, and readily marketable securities.

(c) Subject to subsection (d) of this section, the total investment in equity and investment securities of any one issuer, obligor, or maker, held by the state trust company for its own account, may not exceed an amount equal to fifteen percent (15%) of the state trust company's capital. The commissioner may authorize investments in excess of this limitation on written application if the commissioner concludes that:

(1) The excess investment is not prohibited by other applicable law; and

(2) The safety and soundness of the requesting state trust company is not adversely affected.

(d) Notwithstanding subsection (c) of this section, a state trust company may purchase for its own account, without limitation and subject only to the exercise of prudent judgment:

(1) Bonds and other legally created general obligations of a state, an agency or political subdivision of a state, the United States, or an agency or instrumentality of the United States;

(2) An investment security that this state, an agency or political subdivision of this state, the United States, or an agency or instrumentality of the United States has unconditionally agreed to purchase, insure, or guarantee;

(3) Securities that are offered and sold under 15 USCS Section 77d(5);

(4) Mortgage related securities as defined in 15 USCS Section 78c(a), except that notwithstanding Section 347 of the Riegle Community Development and Regulatory Improvement Act of 1994, a note or obligation that is secured by a first lien on one or more parcels of real estate on which is located one or more commercial structures is subject to the limitations of subsection (c) of this section;

(5) Investment securities issued or guaranteed by the Federal Home Loan Mortgage Corporation, the Federal National Mortgage Association, the Government National Mortgage Association, the Federal Agricultural Mortgage Association, or the Federal Farm Credit Banks Funding Corporation;

(6) Investment securities issued or guaranteed by the North American Development Bank; or

(7) Securities issued by a Federal Home Loan Bank.

(e) Notwithstanding 15 USCS Section 77r-1(c), subsection (c) of this section applies to investments in small business related securities as defined by 15 USCS Section 78c(a).

(f) The commissioner may adopt rules to establish limits, requirements, or exemptions other than those specified by this section for particular classes or categories of investment, or limit or expand investment authority for state trust companies for particular classes or categories of securities or other property.

SECTION 5.102. Transactions in state trust company shares or participation shares.

(a) A state trust company may acquire its own shares or participation shares if:

(1) The amount of its undivided profits is sufficient to fully absorb the acquisition of the shares or participation shares under regulatory accounting principles; or

(2) The state trust company obtains the prior written approval of the commissioner.

(b) A state trust company may acquire a lien upon its own shares or participation shares if:

(1) The aggregate amount of indebtedness so secured is less than the amount of the state trust company's undivided profits; or

(2) The state trust company obtains the prior written approval of the commissioner.

(c) Except with the prior written approval of the commissioner:

(1) The state trust company may not hold its own shares or participation shares as treasury stock for more than two (2) years; and

(2) A lien acquired under this section may not by its original terms extend for more than two (2) years.

SECTION 5.103. Subsidiaries.

(a) Except as otherwise provided by this article or rules or regulations adopted under this article, a state trust company may acquire or establish a subsidiary to conduct any activity that may lawfully be conducted through the form of organization chosen for the subsidiary.

(b) A state trust company may not invest more than an amount equal to fifteen percent (15%) of its capital in a single subsidiary and may not invest an amount in excess of its restricted capital in all subsidiaries. The amount of a state trust company's investment in a subsidiary is the total amount of the state trust company's investment in equity or investment securities issued by its subsidiary and any loans and extensions of credit from the state trust company to its subsidiary. The commissioner may authorize investments in excess of these limitations on written application if the commissioner concludes that:

(1) The excess investment is not prohibited by other applicable law; and

(2) The safety and soundness of the requesting state trust company is not adversely affected.

(c) A state trust company that intends to acquire, establish, or perform new activities through a subsidiary shall submit a letter to the commissioner describing in detail the proposed activities of the subsidiary.

(d) The state trust company may acquire or establish a subsidiary or begin performing new activities in an existing subsidiary on the thirty-first day after the date the commissioner receives the state trust company's letter, unless the commissioner specifies an earlier or later date. The commissioner may extend the thirty-day period of review on a determination that the state trust company's letter raises issues that require additional information or additional time for analysis. If the period of review is extended, the state trust company may acquire or establish the subsidiary, or perform new activities in an existing subsidiary, only on prior written approval of the commissioner.

(e) A subsidiary of a state trust company is subject to regulation by the commissioner to the extent provided by this article or rules or regulations adopted under this article. In the absence of limiting rules or regulations, the commissioner may regulate a subsidiary as if it were a state trust company.

SECTION 5.104. Mutual funds.

(a) A state trust company may invest for its own account in equity securities of an investment company registered under the Investment Company Act of 1940 (15 USCS Section 80a-1 et seq.) and the Securities Act of 1933 (15 USCS Section 77a et seq.) if the portfolio of the investment company consists wholly of investments in which the state trust company could invest directly for its own account.

(b) If the portfolio of an investment company described in subsection (a) of this section consists wholly of investments in which the state trust company could invest directly without limitation under Section 5.101(d) of this act, the state trust company may invest in the investment company without limitation.

(c) If the portfolio of an investment company described in subsection (a) of this section contains any investment that is subject to the limits of Section 5.101(c) of this act, the state trust company may invest in the investment company not more than an amount equal to fifteen percent (15%) of the state trust company's capital. This provision does not apply to a money market fund.

(d) In evaluating investment limits under this article, a state trust company may not be required to combine:

(1) The state trust company's pro rata share of the securities of an issuer in the portfolio of an investment company with the state trust company's pro rata share of the securities of that issuer held by another investment company in which the state trust company has invested; or

(2) The state trust company's own direct investment in the securities of an issuer with the state trust company's pro rata share of the securities of that issuer held by each investment company in which the state trust company has invested under this section.

SECTION 5.105. Engaging in commerce prohibited.

Except as otherwise provided by this act or rules adopted under this act, a state trust company may not invest its funds in trade or commerce by buying, selling, or otherwise dealing in goods or by owning or operating a business not part of the state trust business, except as necessary to fulfill a fiduciary obligation to a client.

SUBARTICLE C. LOANS

SECTION 5.201. Lending limits.

(a) A state trust company's total outstanding loans and extensions of credit to a person other than an insider may not exceed an amount equal to fifteen percent (15%) of the state trust company's capital.

(b) The aggregate loans and extensions of credit outstanding at any time to insiders of the state trust company may not exceed an amount equal to fifteen percent (15%) of the state trust company's capital. All covered transactions between an insider and a state trust company must be engaged in only on terms and under circumstances, including credit standards, that are substantially the same as those for comparable transactions with a noninsider.

(c) The commissioner may adopt rules or regulations to administer and carry out this section, including rules to establish limits, requirements, or exemptions other than those specified by this section for particular classes or categories of loans or extensions of credit, and establish collective lending and investment limits.

(d) The commissioner may determine whether a loan or extension of credit putatively made to a person will be attributed to another person for purposes of this section.

(e) A state trust company may not lend trust deposits, except that a trustee may make a loan to a beneficiary of the trust if the loan is expressly authorized or directed by the instrument or transaction establishing the trust.

(f) An officer, director, manager, managing participant, or employee of a state trust company who approves or participates in the approval of a loan with actual knowledge that the loan violates this section is jointly and severally liable to the state trust company for the lesser of the amount by which the loan exceeded applicable lending limits or the state trust company's actual loss and remains liable for that amount until the loan and all prior indebtedness of the borrower to the state trust company has been fully repaid. The state trust company may initiate a proceeding to collect an amount due under this subsection at any time before the date the borrower defaults on the subject loan or any prior indebtedness or before the fourth anniversary of that date. A person that is liable for and pays amounts to the state trust company under this subsection is entitled to an assignment of the state trust company's claim against the borrower to the extent of the payments. For purposes of this subsection, an officer, director, manager, managing participant, or employee of a state trust company is presumed to know the amount of the state trust company's lending limit under subsection (a) of this section and the amount of the borrower's aggregate outstanding indebtedness to the state trust company immediately before a new loan or extension of credit to that borrower.

SECTION 5.202. Lease financing transactions.

(a) Subject to rules or regulations adopted under this act, a state trust company may become the owner and lessor of tangible personal property for lease financing transactions on a net lease basis on the specific request and for the use of a client. Without the written approval of the commissioner to continue holding property acquired for leasing purposes under this subsection, the state trust company may not hold the property more than six (6) months after the date of expiration of the original or any extended or renewed lease period agreed to by the client for whom the property was acquired or by a subsequent lessee.

(b) Rental payments received by the trust company in a lease financing transaction under this section are considered to be rent and not interest or compensation for the use, forbearance, or detention of money. However, a lease financing transaction is considered to be a loan or extension of credit for purposes of Section 5.201 of this act.

SUBARTICLE D. TRUST DEPOSITS

SECTION 5.301. Trust deposits.

(a) A state trust company may deposit trust funds with itself as an investment if authorized by the settlor or the beneficiary provided:

(1) It maintains as security for the deposits a separate fund of securities, legal for trust investments, under control of a federal reserve bank or a clearing corporation, as defined by Section 75-8-102, either in this state or elsewhere;

(2) The total market value of the security is at all times at least equal to the amount of the deposit;

(3) The separate fund is designated as such; and

(4) The separate fund is maintained under the control of another trust institution, bank or government agency.

(b) A state trust company may make periodic withdrawals from or additions to the securities fund required by subsection (a) of this section as long as the required value is maintained. Income from the securities in the fund belongs to the state trust company.

(c) Security for a deposit under this section is not required for a deposit under subsection (a) of this section to the extent the deposit is insured by the Federal Deposit Insurance Corporation or its successor.

SECTION 5.302. Common investment funds.

(a) A state trust company may establish common trust funds to provide investment to itself as a fiduciary.

(b) The commissioner may adopt rules to administer and carry out this section, including but not limited to rules to establish investment and participation limitations, disclosure of fees, audit requirements, limit or expand investment authority for particular classes or categories of securities or other property, advertising, exemptions, and other requirements that may be necessary to carry out this section.

SUBARTICLE E. LIABILITIES AND PLEDGE OF ASSETS

SECTION 5.401. Borrowing limit.

Except with the prior written approval of the commissioner, a state trust company may not have liabilities outstanding exceeding an amount equal to five (5) times its capital.

SECTION 5.402. Pledge of asset.

A state trust company may not pledge or create a lien on any of its assets except to secure the repayment of money borrowed or as specifically authorized or required by Section 5.301 of this act, or by rules or regulations adopted under this article. An act, deed, conveyance, pledge, or contract in violation of this section is void.

ARTICLE 6. ADDITIONAL DEFINITIONS;

OWNERSHIP; GOVERNANCE; MERGERS

SUBARTICLE A. ADDITIONAL DEFINITIONS

SECTION 6.001. Additional definitions.

(a) In Articles 6, 7 and 8 of this act:

(1) "Capital" means:

(A) The sum of:

(i) The par value of all shares or participation shares of the state trust company having a par value that have been issued;

(ii) The consideration fixed by the board in the manner provided by the Mississippi Business Corporation Act for all shares or participation shares of the state trust company without par value that have been issued, except a part of that consideration that:

a. Has been actually received;

b. Is less than all of that consideration; and

c. The board, by resolution adopted not later than the sixtieth day after the date of issuance of those shares, has allocated to surplus with the prior approval of the commissioner; and

(iii) An amount not included in items (i) and (ii) that has been transferred to capital of the state trust company, on the payment of a share dividend or on adoption by the board of a resolution directing that all or part of surplus be transferred to capital, minus each reduction made as permitted by law; less

(B) All amounts otherwise included in subparagraphs (A)(i) and (ii) of this paragraph (1) that are attributable to the issuance of securities by the state trust company and that the commissioner determines, after notice and an opportunity for hearing, should be classified as debt rather than equity securities.

(2) "Conservator" means the commissioner or an agent of the commissioner exercising the powers and duties provided by subarticle B of Article 7 of this act.

(3) "Control" means:

(A) The ownership of or ability or power to vote, directly, acting through one or more other persons, or otherwise indirectly, more than twenty-five percent (25%) of the outstanding shares of a class of voting securities of a state trust company or other company;

(B) The ability to control the election of a majority of the board of a state trust company or other company;

(C) The power to exercise, directly or indirectly, a controlling influence over the management or policies of the state trust company or other company as determined by the commissioner after notice and an opportunity for hearing; or

(D) The conditioning of the transfer of more than twenty-five percent (25%) of the outstanding shares or participation shares of a class of voting securities of a state trust company or other company on the transfer of more than twenty-five percent (25%) of the outstanding shares of a class of voting securities of another state trust company or other company.

(4) "Equity capital" means the amount by which the total assets of a state trust company exceed the total liabilities of the state trust company.

(5) "Equity security" means:

(A) Stock, other than adjustable rate preferred stock and money market (auction rate) preferred stock;

(B) A certificate of interest or participation in a profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share or participation share, investment contract, voting-trust certificate, or partnership interest;

(C) A security immediately convertible at the option of the holder without payment of significant additional consideration into a security described by this paragraph (5);

(D) A security carrying a warrant or right to subscribe to or purchase a security described by this paragraph (5); and

(E) A certificate of interest or participation in, temporary or interim certificate for, or receipt for a security described by this paragraph (5) that evidences an existing or contingent equity ownership interest.

(6) "Hazardous condition" with respect to a trust company means:

(A) A refusal by the trust company to permit examination of its books, papers, accounts, records, or affairs by the commissioner;

(B) Violation by a trust company of a condition of its chartering or an agreement entered into between the trust company and the commissioner or the department; or

(C) A circumstance or condition in which an unreasonable risk of loss is threatened to clients or creditors of a trust company, excluding risk of loss to a client that arises as a result of the client's decisions or actions, but including a circumstance or condition in which a trust company:

(i) Is unable or lacks the means to meet its current obligations as they come due in the regular and ordinary course of business, even though the book or fair market value of its assets may exceed its liabilities;

(ii) Has equity capital less than the amount of restricted capital the trust company is required to maintain under Section 4.107 of this act, or the adequacy of its equity capital is threatened, as determined under regulatory accounting principles;

(iii) Has concentrated an excessive or unreasonable portion of its assets in a particular type or character of investment;

(iv) Violates or refuses to comply with this act, another statute or rule or regulation applicable to trust companies, or any final and enforceable order of the commissioner;

(v) Is in a condition that renders the continuation of a particular business practice hazardous to its clients and creditors; or

(vi) Conducts business in an unsafe or unsound manner, which includes, but is not limited to conducting business with,

a. Inexperienced or inattentive management;

b. Potentially dangerous operating practices;

c. Infrequent or inadequate audits;

d. Administration of assets that is notably deficient in relation to the volume and character or responsibility for asset holdings;

e. Failure to adhere to sound administrative practices;

f. Frequent occurrences of violations of laws, rules, regulations or terms of the governing instruments; or,

g. Engaging in self-dealing or evidencing a notable degree of potential or actual conflicts of interest.

(7) "Insider" means:

(A) Each director, manager, managing participant, officer, and principal shareholder or participant of the trust company;

(B) Any company controlled by a person described by subparagraph (A) of this paragraph (7); or

(C) Any person who participates or has authority to participate, other than in the capacity of a director, in major policy-making functions of the state trust company, whether or not the person has an official title or the officer is serving without salary or compensation.

(8) "Insolvent" means a circumstance or condition in which a state trust company:

(A) Is unable or lacks the means to meet its current obligations as they come due in the regular and ordinary course of business, even if the value of its assets exceeds its liabilities;

(B) Has equity capital less than Five Hundred Thousand Dollars ($500,000.00), as determined under regulatory accounting principles;

(C) Fails to maintain deposit insurance with the Federal Deposit Insurance Corporation or its successor if the commissioner determines that deposit insurance is necessary for the safe and sound operation of the state trust company, or maintains adequate security for its deposits in accordance with Section 5.301 of this act.

(D) Sells or attempts to sell substantially all of its assets or merges or attempts to merge substantially all of its assets or business with another entity other than as provided by Article 3 of this act; or

(E) Attempts to dissolve or liquidate other than as provided by Subarticle A of Article 8 of this act.

(9) "Investment security" means a marketable obligation evidencing indebtedness of a person in the form of a bond, note, debenture, or other debt instrument not otherwise classified as a loan or extension of credit.

(10) "Limited liability trust company" means an entity organized under the Mississippi Limited Liability Company Act (Section 79-29-101 et seq.) that is chartered as a trust company under this act.

(11) "Loans and extensions of credit" means direct or indirect advances of funds by a state trust company to a person that are conditioned on the obligation of the person to repay the funds or that are repayable from specific property pledged by or on behalf of the person.

(12) "Manager" means a person elected to the board of a limited liability trust company.

(13) "Officer" means the presiding officer of the board, the principal executive officer, or another officer appointed by the board of a state trust company or other company, or a person or group of persons acting in a comparable capacity for the state trust company or other company.

(14) "Operating subsidiary" means a company for which a state trust company has the ownership, ability, or power to vote, directly, acting through one or more other persons, or otherwise indirectly, more than fifty percent (50%) of the outstanding shares of each class of voting securities or its equivalent of the company.

(15) "Participant" means an owner of a participation share in a limited liability trust company.

(16) "Participation shares" means the units into which the proprietary interests of a limited liability trust company are divided or subdivided by means of classes, series, relative rights, or preferences.

(17) "Principal shareholder" means a person who owns or has the ability or power to vote, directly, acting through one or more other persons, or otherwise indirectly, ten percent (10%) or more of the outstanding shares or participation shares of any class of voting securities of a state trust company or other company.

(18) "Private trust company" means a trust company that does not engage in a trust business with the general public.

(19) "Shareholder" means an owner of a share in a state trust company.

(20) "Shares" means the units into which the proprietary interests of a state trust company are divided or subdivided by means of classes, series, relative rights, or preferences.

(21) "Subsidiary" means a company that is controlled by another person. The term includes a subsidiary of a subsidiary.

(22) "Surplus" means the amount by which the assets of a state trust company exceeds its liabilities, capital, and undivided profits.

(23) "Trust deposits" means the client funds held by a state trust company and authorized to be deposited with itself pending investment, distribution, or payment of debts on behalf of the client.

(24) "Undivided profits" means the part of equity capital of a state trust company equal to the balance of its net profits, income, gains, and losses since the date of its formation, minus subsequent distributions to shareholders or participants and transfers to surplus or capital under share dividends or appropriate board resolutions. The term includes amounts allocated to undivided profits as a result of a merger.

(25) "Voting security" means a share, participation share, or other evidence of proprietary interest in a state trust company or other company that has as an attribute the right to vote or participate in the election of the board of the state trust company or other company, regardless of whether the right is limited to the election of fewer than all of the board members. The term includes a security that is convertible or exchangeable into a voting security and a nonvoting participation share of a managing participant.

(b) The definitions shall be liberally construed to accomplish the purposes of Articles 6, 7 and 8 of this act. Additional definitions applicable to Articles 6, 7 and 8 of this act are contained in Section 1.002 of this act. The commissioner by rule or regulation may adopt other definitions to accomplish the purposes of Articles 6, 7 and 8 of this act.

SUBARTICLE B. TRANSFER OF OWNERSHIP INTEREST

IN STATE TRUST COMPANY

SECTION 6.101. Acquisition of control.

(a) Except as expressly otherwise permitted, a person may not without the prior written approval of the commissioner directly or indirectly acquire control of a state trust company through a change in a legal or beneficial interest in voting securities of a state trust company or a corporation or other entity owning voting securities of a state trust company.

(b) This subarticle does not prohibit a person from negotiating to acquire, but not acquiring, control of a state trust company or a person that controls a state trust company.

(c) This section does not apply to:

(1) The acquisition of securities in connection with the exercise of a security interest or otherwise in full or partial satisfaction of a debt previously contracted for in good faith if the acquiring person files written notice of acquisition with the commissioner before the person votes the securities acquired;

(2) The acquisition of voting securities in any class or series by a controlling person who has previously complied with and received approval under this subarticle or who was identified as a controlling person in a prior application filed with and approved by the commissioner;

(3) An acquisition or transfer by operation of law, will, or intestate succession if the acquiring person files written notice of acquisition with the commissioner before the person votes the securities acquired;

(4) A transaction exempted by the commissioner by rule, regulation or order because the transaction is not within the purposes of this subarticle or the regulation of which is not necessary or appropriate to achieve the objectives of this subarticle.

SECTION 6.102. Application regarding acquisition of control.

(a) The proposed transferee seeking approval to acquire control of a state trust company or a person that controls a state trust company must file with the commissioner:

(1) An application in the form prescribed by the commissioner;

(2) The filing fee required by statute, rule or regulation;

(3) All information required by rule or that the commissioner requires in a particular application as necessary to an informed decision to approve or reject the proposed acquisition.

(b) If the proposed transferee includes any group of individuals or entities acting in concert, the information required by the commissioner may be required of each member of the group.

(c) Information obtained by the commissioner under this section is confidential and may not be disclosed by the commissioner or any employee of the department except as provided by Subarticle B of Article 2 of this act.

(d) If the proposed transferee is not a Mississippi resident, a Mississippi corporation, or an out-of-state corporation qualified to do business in this state, a written consent to service of process on a resident of this state in any action or suit arising out of or connected with the proposed acquisition.

(e) The proposed transferee must publish notice of the application, its date of filing, and the identity of each participant, in the form specified by the commissioner, in a newspaper of general circulation in the county where the state trust company's home office is located, promptly after the commissioner accepts the application as complete. Publication of notice of an application filed in contemplation of a public tender offer subject to the requirements of 15 USCS Section 78n(d)(1) may be deferred for not more than thirty-four (34) days after the date the application is filed if:

(1) The proposed transferee requests confidential treatment and represents that a public announcement of the tender offer and the filing of appropriate forms with the Securities and Exchange Commission or the appropriate federal banking agency, as applicable, will occur within the period of deferral; and

(2) The commissioner determines that the public interest will not be harmed by the requested confidential treatment.

(f) The commissioner may waive the requirement that a notice be published or permit delayed publication on a determination that waiver or delay is in the public interest.

SECTION 6.103. Hearing and decision on acquisition of control.

(a) Not later than the sixtieth day after the date the notice is published, the commissioner shall approve the application or set the application for hearing. If the commissioner sets a hearing, the commissioner shall conduct a hearing and one or more prehearing conferences and opportunities for discovery as the commissioner considers advisable and consistent with governing statutes and rules. A hearing held under this section is confidential and closed to the public.

(b) Based on the record, the commissioner may issue an order denying an application if:

(1) The acquisition would substantially lessen competition, be in restraint of trade, result in a monopoly, or be in furtherance of a combination or conspiracy to monopolize or attempt to monopolize the trust industry in any part of this state, unless:

(A) The anticompetitive effects of the proposed acquisition are clearly outweighed in the public interest by the probable effect of acquisition in meeting the convenience and needs of the community to be served; and

(B) The proposed acquisition is not in violation of law of this state or the United States;

(2) The financial condition of the proposed transferee, or any member of a group composing the proposed transferee, might jeopardize the financial stability of the state trust company being acquired;

(3) Plans or proposals to operate, liquidate, or sell the state trust company or its assets are not in the best interests of the state trust company;

(4) The experience, ability, standing, competence, trustworthiness, and integrity of the proposed transferee, or any member of a group comprising the proposed transferee, are insufficient to justify a belief that the state trust company will be free from improper or unlawful influence or interference with respect to the state trust company's operation in compliance with law;

(5) The state trust company will not be solvent, have adequate capitalization, or be in compliance with the laws of this state after the acquisition;

(6) The proposed transferee has failed to furnish all information pertinent to the application reasonably required by the commissioner; or

(7) The proposed transferee is not acting in good faith.

(c) If an application filed under this section is approved by the commissioner, the transaction may be consummated. Any written commitment from the proposed transferee offered to and accepted by the commissioner as a condition that the application will be approved is enforceable against the state trust company and the transferee and is considered for all purposes an agreement under this act.

SECTION 6.104. Appeal from adverse decision.

(a) If a hearing has been held, the commissioner has entered an order denying the application, and the order has become final, the proposed transferee may appeal the final order to the Chancery Court of the First Judicial District of Hinds County, Mississippi.

(b) The filing of an appeal under this section does not stay the order of the commissioner.

SECTION 6.105. Objection to other transfer.

This subarticle may not be construed to prevent the commissioner from investigating, commenting on, or seeking to enjoin or set aside a transfer of voting securities that evidence a direct or indirect interest in a state trust company, regardless of whether the transfer is included within this subarticle, if the commissioner considers the transfer to be against the public interest.

SECTION 6.106. Civil enforcement; criminal penalties.

(a) The commissioner may bring any appropriate civil action against any person who the commissioner believes has committed or is about to commit a violation of this subarticle or a rule, regulation or order of the commissioner pertaining to this subarticle.

(b) A person who knowingly fails or refuses to file the application required by Section 6.102 of this act is guilty of a misdemeanor and, upon conviction hereof, shall be fined not more than One Thousand Dollars ($1,000.00).

SUBARTICLE C. BOARD AND OFFICERS

SECTION 6.201. Voting securities held by state trust company.

(a) Voting securities of a state trust company held by the state trust company in a fiduciary capacity under a will or trust, whether registered in its own name or in the name of its nominee, may not be voted in the election of directors or managers or on a matter affecting the compensation of directors, managers, officers, or employees of the state trust company in that capacity, unless:

(1) Under the terms of the will or trust, the manner in which the voting securities are to be voted may be determined by a donor or beneficiary of the will or trust and the donor or beneficiary actually makes the determination in the matter at issue;

(2) The terms of the will or trust expressly direct the manner in which the securities must be voted to the extent that no discretion is vested in the state trust company as fiduciary; or

(3) The securities are voted solely by a cofiduciary that is not an affiliate of the state trust company, as if the cofiduciary were the sole fiduciary.

(b) Voting securities of a state trust company that cannot be voted under this section are considered to be authorized but unissued for purposes of determining the procedures for and results of the affected vote.

SECTION 6.202. Bylaws.

(a) Each state trust company shall adopt bylaws and may amend its bylaws from time to time for the purposes and in accordance with the procedures set forth in the Mississippi Business Corporation Act.

(b) A limited liability trust company in which management is retained by the participants is not required to adopt bylaws if provisions required by law to be contained in the bylaws are contained in the articles of association or the participation agreement. If a limited liability trust company has adopted bylaws which designate each full liability participant, the limited liability trust company shall file with the commissioner a copy of the bylaws. Solely that portion of the bylaws designating each full liability participant shall be a public record.

SECTION 6.203. Board of directors, managers or managing participants.

(a) The board of a state trust company must consist of not fewer than five (5) or more than twenty-five (25) directors, managers, or managing participants, the majority of whom must be residents of this state. Except for a limited liability trust company in which management has been retained by its participants, the principal executive officer of the state trust company is a member of the board. The principal executive officer acting in the capacity of board member is the board's presiding officer unless the board elects a different presiding officer to perform the duties as designated by the board.

(b) Unless the commissioner consents otherwise in writing, a person may not serve as director, manager, or managing participant of a state trust company if:

(1) The state trust company incurs an unreimbursed loss attributable to a charged-off obligation of or holds a judgment against the person or an entity that was controlled by the person at the time of funding and at the time of default on the loan that gave rise to the judgment or charged-off obligation;

(2) The person has been convicted of a felony; or,

(3) The person has violated any provision of state law relating to loan of trust funds and purchase or sale of trust property by the trustee, and the violation has not been corrected.

(c) If a state trust company other than a limited liability trust company operated by managing participants does not elect directors or managers before the sixty-first day after the date of its regular annual meeting, the commissioner may appoint a conservator under Article 6 of this act to operate the state trust company and elect directors or managers, as appropriate. If the conservator is unable to locate or elect persons willing and able to serve as directors or managers, the commissioner may close the state trust company for liquidation.

(d) A vacancy on the board that reduces the number of directors, managers, or managing participants to fewer than five (5) must be filed not later than the thirtieth day after the date the vacancy occurs. A limited liability trust company with fewer than five (5) managing participants must add one or more new participants or elect a board of managers of not fewer than five (5) persons to resolve the vacancy. After thirty (30) days after the date the vacancy occurs, the commissioner may appoint a conservator under Article 6 of this act to operate the state trust company and elect a board of not fewer than five (5) persons to resolve the vacancy. If the conservator is unable to locate or elect five (5) persons willing and able to serve as directors or managers, the commissioner may close the state trust company for liquidation.

(e) Before each term to which a person is elected to serve as a director or manager of a state trust company, or annually for a person who is a managing participant, the person shall submit an affidavit for filing in the minutes of the state trust company stating that the person, to the extent applicable:

(1) Accepts the position and is not disqualified from serving in the position;

(2) Will not violate or knowingly permit an officer, director, manager, managing participant, or employee of the state trust company to violate any law applicable to the conduct of business of the state trust company; and

(3) Will diligently perform the duties of the position.

(f) An advisory director or manager is not considered a director if the advisory director or manager:

(1) Is not elected by the shareholders or participants of the state trust company;

(2) Does not vote on matters before the board or a committee of the board and is not counted for purposes of determining a quorum of the board or committee; and

(3) Provides solely general policy advice to the board.

SECTION 6.204. Required board meetings.

The board of a state trust company shall hold at least one (1) regular meeting each quarter. At each regular meeting the board shall review and approve the minutes of the prior meeting and review the operations, activities, and financial condition of the state trust company. The board may designate committees from among its members to perform these duties and approve or disapprove the committees' reports at each regular meeting. All actions of the board must be recorded in its minutes.

SECTION 6.205. Officers.

(a) The board shall annually appoint the officers of the state trust company, who serve at the pleasure of the board. The state trust company must have a principal executive officer primarily responsible for the execution of board policies and operation of the state trust company and an officer responsible for the maintenance and storage of all corporate books and records of the state trust company and for required attestation of signatures. These positions may not be held by the same person. The board may appoint other officers of the state trust company as the board considers necessary.

(b) Unless expressly authorized by a resolution of the board recorded in its minutes, an officer or employee may not create or dispose of a state trust company asset or create or incur a liability on behalf of the state trust company.

SECTION 6.206. Certain criminal offenses.

(a) An officer, director, manager, managing participant, employee, shareholder, or participant of a state trust company commits an offense if the person knowingly:

(1) Conceals information or a fact, or removes, destroys, or conceals a book or record of the state trust company for the purpose of concealing information or a fact from the commissioner or an agent of the commissioner; or

(2) For the purpose of concealing, removes or destroys any book or record of the state trust company that is material to a pending or anticipated legal or administrative proceeding.

(b) An officer, director, manager, managing participant, or employee of a state trust company commits an offense if the person knowingly makes a false entry in the books or records or in any report or statement of the state trust company.

(c) Any person committing an offense under this section is guilty of a felony and, upon conviction thereof, shall be fined not more than Ten Thousand Dollars ($10,000.000), or imprisoned in the State Penitentiary for not more than one (1) year, or both.

SECTION 6.207. Transactions with management and affiliates.

(a) Without the prior approval of a disinterested majority of the board recorded in the minutes, or if a disinterested majority cannot be obtained the prior written approval of the commissioner, a state trust company may not directly or indirectly:

(1) Sell or lease an asset of the state trust company to an officer, director, manager, managing participant, or principal shareholder or participant of the state trust company or an affiliate of the state trust company; or

(2) Purchase or lease an asset in which an officer, director, manager, managing participant, or principal shareholder or participant of the state trust company or an affiliate of the state trust company has an interest; or

(3) Subject to Section 5.201 of this act, extend credit to an officer, director, manager, managing participant, or principal shareholder or participant of the state trust company or an affiliate of the state trust company.

(b) Notwithstanding subsection (a) of this section, a lease transaction described in subsection (a)(2) of this section involving real property may not be consummated, renewed, or extended without the prior written approval of the commissioner. For purposes of this subsection only, an affiliate of the state trust company does not include a subsidiary of the state trust company.

(c) Subject to Section 5.201 of this act, a state trust company may not directly or indirectly extend credit to an employee, officer, director, manager, managing participant, or principal shareholder or participant of the state trust company or an affiliate of the state trust company, unless the extension of credit:

(1) Is made on substantially the same terms, including interest rates and collateral, as those prevailing at the time for comparable transactions by the state trust company with persons who are not employees, officers, directors, managers, managing participants, or principal shareholders, participants or affiliates of the state trust company; and

(2) Does not involve more than the normal risk of repayment or present other unfavorable features; and

(3) The state trust company follows credit underwriting procedures that are not less stringent than those applicable to comparable transactions by the state trust company with persons who are not employees, officers, directors, managers, managing participants, or principal shareholders, participants or affiliates of the state trust company.

(d) An officer, director, manager, or managing participant of the state trust company who knowingly participates in or permits a violation of this section is guilty of a felony and, upon conviction thereof, shall be fined not more than Ten Thousand Dollars ($10,000.00), or imprisoned in the State Penitentiary for not more than one (1) year, or both.

(e) The commissioner may adopt rules or regulations to administer and carry out this section, including rules or regulations to establish limits, requirements, or exemptions other than those specified by this section for particular categories of transactions.

SECTION 6.208. Fiduciary responsibility.

The board of a state trust company is responsible for the proper exercise of fiduciary powers by the state trust company and each matter pertinent to the exercise of fiduciary powers, including:

(1) The determination of policies;

(2) The investment and disposition of property held in a fiduciary capacity; and

(3) The direction and review of the actions of each officer, employee, and committee used by the state trust company in the exercise of its fiduciary powers.

SECTION 6.209. Record keeping.

A state trust company shall keep its fiduciary records separate and distinct from other records of the state trust company. The fiduciary records must contain all material information relative to each account as appropriate under the circumstances.

SECTION 6.210. Bonding requirements.

(a) The board of a state trust company shall require protection and indemnity for clients in reasonable amounts established by rules or regulations adopted under this article, against dishonesty, fraud, defalcation, forgery, theft, and other similar insurable losses, with corporate insurance or surety companies:

(1) Authorized to do business in this state; or

(2) Acceptable to the commissioner and otherwise lawfully permitted to issue the coverage against those losses in this state.

(b) Except as otherwise provided by rule or regulation, coverage required under subsection (a) of this section must include each director, manager, managing participant, officer, and employee of the state trust company without regard to whether the person receives salary or other compensation.

(c) A state trust company may apply to the commissioner for permission to eliminate the bonding requirement of this section for a particular individual. The commissioner shall approve the application if the commissioner finds that the bonding requirement is unnecessary or burdensome. Unless the application presents novel or unusual questions, the commissioner shall approve the application or set the application for hearing not later than the sixty-first day after the date the commissioner considers the application complete and accepted for filing.

SECTION 6.211. Reports of apparent crime.

A trust company that is the victim of a robbery, has a shortage of corporate or fiduciary funds in excess of Five Thousand Dollars ($5,000.00), or is the victim of an apparent or suspected misapplication of its corporate or fiduciary funds or property in any amount by a director, manager, managing participant, officer, or employee shall report such robbery, shortages or apparent or suspected misapplication to the commissioner within forty-eight (48) hours after the time it is discovered. The initial report may be oral if the report is promptly confirmed in writing. The trust company or a director, manager, managing participant, officer, employee, or agent is not subject to liability for defamation or another charge resulting from information supplied in the report.

SUBARTICLE D. SPECIAL PROVISIONS

FOR LIMITED LIABILITY TRUST COMPANIES

SECTION 6.301. Filing of notice of full liability.

(a) A limited liability trust company shall file with the commissioner a copy of any participation agreement by which a participant of the limited liability trust company agrees to become a full liability participant and the name and address of each full liability participant. Solely that portion of the filed copy containing the designation of each full liability participant shall be a public record.

(b) The commissioner may require a complete copy of the participation agreement to be filed with the department, regardless of whether the state trust company has a full liability participant, except that the provisions of the participation agreement other than those by which a participant of the limited liability trust company agrees to become a full liability participant are confidential and subject to release only as provided by Subarticle B of Article 2 of this act.

SECTION 6.302. Liability of participants and managers.

(a) Except as provided by subsection (b) of this section, the participants, participant-transferees, and managers of a limited liability trust company may not be held liable for a debt, obligation, or liability of the limited liability trust company, including a debt, obligation, or liability under a judgment, decree, or order of court. A participant, other than a full liability participant, or a manager of a limited liability trust company is not a proper party to proceedings by or against a limited liability trust company, unless the object of the proceeding is to enforce a participant's or manager's right against or liability to a limited liability trust company.

(b) A full liability participant of a limited liability trust company is liable under a judgment, decree, or order of court for a debt, obligation, or liability of the limited liability trust company that accrued during the participation of the full liability participant in the limited liability trust company and before the full liability participant or a successor in interest files a notice of withdrawal as a full liability participant from the limited liability trust company with the commissioner. The filed notice of withdrawal is a public record.

SECTION 6.303. Contracting debts and obligations.

Except as provided by this section or the articles of association of the limited liability trust company, debts, liabilities, and other obligations may be contracted for or incurred on behalf of a limited liability trust company by:

(1) A majority of the managers, if management of the limited liability trust company has been vested in a board of managers;

(2) A majority of the managing participants; or

(3) An officer or other agent vested with actual or apparent authority to contract for or incur the debt, liability, or other obligation.

SECTION 6.304. Management of limited liability trust company.

(a) Management of a limited liability trust company is vested in the participants in proportion to each participant's contribution to capital, as adjusted periodically to properly reflect any additional contribution. The articles of association may provide that management of a limited liability trust company is vested in a board of managers to be elected annually by the participants as prescribed by the bylaws.

(b) Participants of a limited liability trust company may not retain management and must elect a board of managers if:

(1) Any participant is disqualified from serving as a managing participant under Section 6.203 of this act;

(2) The limited liability trust company has fewer than five (5) or more than twenty-five (25) participants; or

(3) Any participant has been removed by the commissioner under Subarticle A of Article 6 of this act.

(c) The articles of association, bylaws, and participation agreement of a limited liability trust company may use the terms "director" and "board" instead of "manager" and "board of managers," respectively.

SECTION 6.305. Withdrawal or reduction of participant's contribution to capital.

(a) A participant may not receive from a limited liability trust company any part of the participant's contribution to capital until:

(1) All liabilities of the state trust company, except liabilities to participants on account of contribution to capital, have been paid or, if after the withdrawal or reduction, sufficient property of the state trust company will remain to pay all liabilities of the state trust company, except liabilities to participants on account of contribution to capital;

(2) All participants consent, unless the return of the contribution to capital may be demanded as provided by this article; or

(3) The articles of association are canceled or amended to set out the withdrawal or reduction.

(b) A participant may demand the return of the participant's contribution to capital on the dissolution of the limited liability trust company and the failure by the full liability participants to exercise the right for the business of the limited liability trust company to be carried on by the remaining participants as provided by Section 6.307 of this act.

(c) Unless allowed by the articles of association or by the unanimous consent of all participants of the limited liability trust company, a participant may demand the return of the participant's contribution to capital only in cash.

SECTION 6.306. Interest in limited liability trust company; transferability of interest.

(a) The interest of a participant or participant-transferee in a limited liability trust company is the personal estate of the participant or the participant-transferee and may be transferred as provided by the bylaws or the participation agreement. A transferee of a participant's interest has the status of a participant-transferee and does not by the transfer become a participant or obtain a right to participate in the management of the limited liability trust company. A participant-transferee is entitled to receive only a share of profits, return of contribution, or other distributive benefit in respect to the interest transferred to which the participant who transferred the interest would have been entitled. A participant-transferee may become a participant only as provided by the bylaws or the participation agreement.

(b) A limited liability trust company may add additional participants in the same manner as participant-transferees after payment in full of the capital contribution to the limited liability trust company payable for the issuance of additional participation interests.

SECTION 6.307. Dissolution.

(a) A limited liability trust company organized under this article is dissolved on:

(1) The expiration of the period fixed for the duration of the limited liability trust company;

(2) A vote to dissolve or the execution of a written consent to dissolve by all full liability participants, if any, and a sufficient number of other participants that combined with all full liability participants hold at least two-thirds (2/3) of the participation shares in each class in the association, or a greater fraction as provided by the articles of association;

(3) Except as provided by the articles of association, the death, insanity, expulsion, bankruptcy, retirement, or resignation of a participant unless a majority in interest of all remaining participants elect in writing not later than the ninetieth day after the date of the event to continue the business of the association; or

(4) The occurrence of an event of dissolution specified in the articles of association.

(b) A dissolution under this section is considered to be the initiation of a voluntary liquidation under Subarticle B of Article 7 of this act.

(c) An event of dissolution described by subsection (a)(3) of this section does not cancel or revoke a contract to which the state trust company is a party, including a trust indenture or agreement or voluntary dissolution under Subarticle B of Article 7 of this act, until the period for the remaining participants to continue the business of the state trust company has expired without the remaining participants having completed the necessary action to continue the business of the state trust company.

SECTION 6.308. Allocation of profits and losses.

The profits and losses of a limited liability trust company may be allocated among the participants and among classes of participants as provided by the participation agreement. Without the prior written approval of the commissioner, the profits and losses must be allocated based on the relative interests of the participants as reflected in the articles of association and related documents filed with and approved by the commissioner.

SECTION 6.309. Distributions.

Subject to Section 4.107 of this act, distributions of cash or other assets of a limited liability trust company may be made to the participants as provided by the participation agreement. Without the prior written approval of the commissioner, distributions must be made to the participants based on the relative interests of the participants as reflected in the articles of association and related documents filed with and approved by the commissioner.

SECTION 6.310. Other provisions related to a limited liability trust company.

For purposes of the provisions of this act other than this subarticle, as the context requires:

(1) A manager and the board of managers are considered to be a director and the board of directors, respectively;

(2) If there is not a board of managers, a participant is considered to be a director and all of the participants are considered to be the board of directors;

(3) A participant or participant-transferee is considered to be a shareholder;

(4) A participation share is considered to be a share of stock; and

(5) A distribution is considered to be a dividend.

SUBARTICLE E. MERGER, CONSOLIDATION, TRANSFER OF ASSETS

SECTION 6.401. Merger authority.

(a) With the prior written approval of the commissioner, a state trust company may merge or consolidate with another person to the same extent as a business corporation under the Mississippi Business Corporation Act, subject to this subarticle.

(b) Implementation of the plan of merger by the parties and approval of the board, shareholders, participants, or owners of the parties must be made or obtained as provided by the Mississippi Business Corporation Act as if the state trust company were a domestic corporation and all other parties to the merger were foreign corporations and other entities, except as otherwise provided by rules or regulations adopted under this article.

SECTION 6.402. Merger application.

(a) The original articles of merger, a number of copies of the articles of merger equal to the number of surviving, new, and acquiring entities, and an application in the form required by the commissioner must be filed with the commissioner. The commissioner shall investigate the condition of the merging parties. The commissioner may require the submission of additional information as considered necessary to an informed decision.

(b) The commissioner may approve the merger if:

(1) Each resulting state trust company will be solvent and have adequate capitalization for its business and location;

(2) Each resulting state trust company has in all respects complied with the statutes and rules relative to the organization of a state trust company;

(3) All fiduciary obligations and liabilities of each state trust company that is a party to the merger have been properly discharged or otherwise lawfully assumed or retained by a state trust company or other fiduciary;

(4) Each surviving, new, or acquiring person that is not authorized to engage in the trust business will not engage in the trust business and has in all respects complied with the laws of this state; and

(5) All conditions imposed by the commissioner have been satisfied or otherwise resolved.

SECTION 6.403. Approval of commissioner.

(a) If the commissioner approves the merger and finds that all required filing fees and investigative costs have been paid, the commissioner shall:

(1) Endorse the face of the original and each copy with the date of approval and the word "Approved";

(2) File the original in the department's records; and

(3) Deliver a certified copy of the articles of merger to each surviving, new, or acquiring entity.

(b) A merger is effective on the date of approval, unless the merger agreement provides and the commissioner consents to a different effective date.

SECTION 6.404. Rights of dissenters to mergers.

A shareholder, participant, or participant-transferee may dissent from the merger to the extent and by following the procedure provided by the Mississippi Business Corporation Act or rules or regulations adopted under this act.

SECTION 6.405. Authority to act as disbursing agent.

The purchasing trust institution may hold the purchase price and any additional funds delivered to it by the selling institution in trust for the selling institution and may act as agent of the selling institution in disbursing those funds in trust by paying the creditors of the selling institution. If the purchasing trust institution acts under written contract of agency approved by the commissioner that specifically names each creditor and the amount to be paid each, and if the agency as limited to the purely ministerial act of paying creditors the amounts due them as determined by the selling institution and reflected in the contract of agency and does not involve discretionary duties or authority other than the identification of the creditors named, the purchasing trust institution:

(1) May rely on the contract of agency and the instructions included in it; and

(2) Is not responsible for:

(A) Any error made by the selling institution in determining its liabilities, and creditors to whom the liabilities are due, or the amounts due the creditors; or

(B) Any preference that results from the payments made under the contract of agency and the instructions included in it.

SECTION 6.406. Liquidation of selling state trust company.

If the selling trust institution is at any time after the sale of assets voluntarily or involuntarily closed for liquidation by a state or federal regulatory agency, the purchasing trust company shall pay to the receiver of the selling institution the balance of the funds held by it in trust for the selling institution and not yet paid to the creditors of the selling institution. Without further action the purchasing trust institution is discharged of all responsibilities to the selling institution, its receiver, or its creditors, shareholders, or participants.

SECTION 6.407. Payment to creditors.

Payment to a creditor of the selling institution of the amount to be paid the person under the terms of the contract of agency may be made by the purchasing trust company by opening an agency account in the name of the creditor, crediting the account with the amount to be paid the creditor under the terms of the agency contract, and mailing or personally delivering a duplicate ticket evidencing the credit to the creditor at the person's address shown in the records of the selling institution. The relationship between the purchasing trust institution and the creditor is that of agent to creditor only to the extent of the credit reflected by the ticket.

SECTION 6.408. Sale of assets.

(a) The board of a state trust company, with the commissioner's approval, may cause a state trust company to sell all or substantially all of its assets, including the right to control accounts established with the trust company, without shareholder or participant approval if the commissioner finds:

(1) The interests of the state trust company's clients, depositors, and creditors are jeopardized because of insolvency or imminent insolvency of the state trust company; and

(2) The sale is in the best interest of the state trust company's clients and creditors; and

(3) The Federal Deposit Insurance Corporation or its successor approves the transaction unless the deposits of the state trust company are not insured.

(b) A sale under this section must include an assumption and promise by the buyer to pay or otherwise discharge:

(1) All of the state trust companies liabilities to clients and depositors;

(2) All of the state trust company's liabilities for salaries of the state trust company's employees incurred before the date of the sale;

(3) Obligations incurred by the commissioner arising out of the supervision or sale of the state trust company; and

(4) Fees and assessments due the department.

(c) This section does not limit the incidental power of a state trust company to buy and sell assets in the ordinary course of business.

(d) This section does not affect the commissioner's right to take action under another law. The sale by a trust company of all or substantially all of its assets with shareholder or participant approval is considered a voluntary dissolution and liquidation and is governed by Section 81-5-101.

ARTICLE 7. ENFORCEMENT ACTIONS

SUBARTICLE A. SUPERVISION AND EXAMINATION

SECTION 7.001. Commissioner shall have supervision over authorized trust institutions and shall examine.

(a) For the purposes of this article, the term "authorized trust institution" means any state trust company, trust office or representative trust office.

(b) Every authorized trust institution shall be under the supervision of the commissioner. The commissioner shall execute and enforce through the department and such other agents as are now or may hereafter be created or appointed, all laws which are now or may hereafter be enacted relating to authorized trust institutions. For the more complete and thorough enforcement of the provisions of this act, the commissioner may promulgate such rules or regulations not inconsistent with the provisions of the act, as may, in its opinion, be necessary to carry out the provisions of the laws relating to authorized trust institutions and as may be further necessary to insure safe and conservative management of an authorized trust institution under its supervision taking into consideration the appropriate interest of the creditors, stockholders, participants and the public in their relations with such authorized trust institutions. All authorized trust institutions doing business under the provisions of this act shall conduct their business in a manner consistent with all laws relating to authorized trust institutions, and all rules, regulations, and instructions that may be promulgated or issued by the commissioner.

SECTION 7.002. Fees for examination.

The fees for examination of authorized trust institutions shall be assessed and collected by the commissioner.

SECTION 7.003. Department to act under authority of the commissioner.

All the powers, duties and functions granted to or imposed upon the department under this act shall be exercised under the direction and supervision of the commissioner.

SUBARTICLE B. ENFORCEMENT ORDERS; TRUST COMPANY MANAGEMENT

SECTION 7.101. Administrative orders; penalties for violation.

(a) In addition to any other powers conferred by this act, the commissioner shall have the power to:

(1) Order any authorized trust institution, or subsidiary thereof; or any director, officer, or employee to cease and desist violating any provision of this act or any lawful rule or regulation issued under this act.

(2) Order any authorized trust institution, or subsidiary thereof, or any director, officer, or employee to cease and desist from a course of conduct that is unsafe or unsound and which is likely to cause insolvency or dissipation of assets or is likely to jeopardize or otherwise seriously prejudice the interests of the public in their relationship with the authorized trust institution.

(3) Order any company to cease engaging in an unauthorized trust activity.

(4) Enter any order pursuant to Section 2.302 of this act.

(b) The commissioner may impose a civil money penalty of not more than One Thousand Dollars ($1,000.00) for each violation by any authorized trust institution, or subsidiary thereof, or any director, officer, or employee of an order issued under paragraph (1) of subsection (a) of this section. In addition, the commissioner may impose a civil money penalty of not more than One Thousand Dollars ($1,000.00) per day for each day that an authorized trust institution, or subsidiary thereof, or any director, officer, or employee violates a cease and desist order issued under paragraph (2) or (3) of subsection (a) of this section. All civil money penalties collected under this section shall be deposited in the State General Fund.

SECTION 7.102. Notice and opportunity for hearing.

Notice and opportunity for a hearing shall be provided before any of the foregoing actions may be undertaken by the commissioner. However, in cases involving extraordinary circumstances requiring immediate action, the commissioner may take such action, but shall promptly afford a subsequent hearing upon application to rescind the action taken.

SECTION 7.103. Subpoena power and examination under oath.

The commissioner shall have the power to subpoena witnesses, compel their attendance, require the production of evidence, administer oaths, and examine any person under oath in connection with any subject related to a duty imposed or a power vested in the commissioner.

SECTION 7.104. Removal of directors, officers and employees.

Consistent with Section 7.102 of this act, the commissioner may require the immediate removal from office of any officer, director, or employee of any authorized trust institution, who is found to be dishonest, incompetent, or reckless in the management of the affairs of the authorized trust institution, or who persistently violates the laws of this state or the lawful orders, instructions, and regulations issued by the commissioner.

SECTION 7.105. Review by the court.

Administrative orders issued by the commissioner and civil money penalties imposed for violation of such orders shall be subject to review by the Chancery Court of the First Judicial District of Hinds County, Mississippi.

ARTICLE 8. DISSOLUTION AND RECEIVERSHIP; CONSERVATORSHIP

SUBARTICLE A. VOLUNTARY DISSOLUTION AND LIQUIDATION

SECTION 8.001. Required Vote of shareholders or participants.

A state trust company may go into voluntary liquidation and be closed, and may surrender its charter and franchise as a corporation of this state by the affirmative votes of its shareholders or participants owning two-thirds (2/3) of its stock or participation shares.

SECTION 8.002. Corporate procedure.

Shareholder or participant action to liquidate a state trust company shall be taken at a meeting of the shareholders or participants duly called by resolution of the board of directors or members, written notice of which, stating the purpose of the meeting, shall be mailed to each shareholder or participant, or in case of a shareholder's or participant's death, to such shareholder's or participant's legal representative or heirs at law, addressed to the shareholder's or participant's last known residence ten (10) days previous to the date of such meeting. If stockholders or participants shall, by the required vote, elect to liquidate a trust company, a certified copy of all proceedings of the meeting at which such action shall have been taken, verified by the oath of the president and secretary, shall be transmitted to the commissioner for approval.

SECTION 8.003. Authority to liquidate; publication.

If the commissioner shall approve the liquidation, the commissioner shall issue to the state trust company under the commissioner's seal, a permit for such purpose. No such permit shall be issued by the commissioner until the commissioner shall be satisfied that provision has been made by the state trust company to satisfy and pay off all creditors. If not so satisfied, the commissioner shall refuse to issue a permit, and shall be authorized to take possession of the state trust company and its assets and business, and hold the same and liquidate the state trust company in the manner provided in this act. When the commissioner shall approve the voluntary liquidation of a state trust company, the directors of the state trust company shall cause to be published in a newspaper in the county in which the same is located, or if no newspaper is published in such county, then in a newspaper having a general circulation in such county, a notice that the state trust company is closing down its affairs and going into liquidation, and notify its creditors to present their claims for payment. Such notice shall be published once a week for four (4) consecutive weeks.

SECTION 8.004. Examination and reports.

When any state trust company shall be in process of voluntary liquidation, it shall be subject to examination by the commissioner, and shall furnish such reports from time to time as may be called for by the commissioner.

SECTION 8.005. Unclaimed property.

All unclaimed property remaining in the hands of a liquidated state trust company shall be subject to the provisions of Uniform Disposition of Unclaimed Property Act (Section 89-12-1 et seq.).

SECTION 8.006. Sell or transfer of property.

Whenever the commissioner shall approve it, any state trust company may sell and transfer to any other trust institution, whether state or federally chartered, all of its assets of every kind upon such terms as may be agreed upon and approved by the commissioner and by two-thirds (2/3) vote of its board of directors or members. A certified copy of the minutes of any meeting at which such action is taken, under the oath of the president and secretary, together with a copy of the contract of sale and transfer, shall be filed with the commissioner. Whenever voluntary liquidation shall be approved by the commissioner or the sale and transfer of the assets of any state trust company shall be approved by the commissioner, a certified copy of such approval under seal of the commissioner, filed in the office of the Secretary of State, shall authorize the cancellation of the charter of such state trust company, subject, however, to its continued existence, as provided by this act and the general law relative to corporations.

SUBARTICLE B. INVOLUNTARY DISSOLUTION AND LIQUIDATION.

SECTION 8.101. When commissioner may take charge.

The commissioner may forthwith take possession of the business and property of any state trust company to which this act is applicable whenever it shall appear that such state trust company:

(1) Has violated its charter or any laws applicable thereto;

(2) Is conducting its business in an unauthorized or unsafe manner;

(3) Is in an unsafe or unsound condition to transact its business;

(4) Has an impairment of its capital;

(5) Has become otherwise insolvent;

(6) Has neglected or refused to comply with the terms of a duly issued lawful order of the commissioner;

(7) Has refused, upon proper demand, to submit its records, affairs, and concerns for inspection and examination of a duly appointed or authorized examiner of the commissioner;

(8) Its officers have refused to be examined upon oath regarding its affairs; or

(9) Has made a voluntary assignment of its assets to trustees.

SECTION 8.102. Directors may act.

Any state trust company may place its assets and business under the control of the commissioner for liquidation by a resolution of a majority of its directors or members upon notice to the commissioner, and, upon taking possession of the state trust company, the commissioner, or duly appointed agent, shall retain possession thereof until such state trust company shall be authorized by the commissioner to resume business or until the affairs of the state trust company shall he fully liquidated as provided in this article. No state trust company shall make any general assignment for the benefit of its creditors except by surrendering possession of its assets to the commissioner, as herein provided. Whenever any state trust company for any reason shall suspend operations for any length of time, the state trust company shall, immediately upon such suspension of operations, be deemed in the possession of the commissioner and subject to liquidation hereunder.

SECTION 8.103. Notice of seizure; bar to attachment.

When the commissioner, or duly appointed agent, shall take possession of any state trust company under Sections 8.101 or 8.102 of this act, the commissioner or agent shall within forty-eight (48) hours, file with the chancery clerk of the county where the state trust company is located, a notice of such action which shall state the reason therefor, and such notice shall be deemed the equivalent of a summons and complaint against the state trust company in an action in the chancery court except that it shall not be necessary to make service thereof. The taking possession of any state trust company shall be effective on the date when such authority was exercised and from and after such time all assets and property of such state trust company, of whatever nature, shall be deemed to be in possession of the commissioner, and the exercise of such authority shall operate as a bar to any attachment, or other legal proceeding against the state trust company or its assets. After the commissioner's exercise of authority, no lien shall be acquired, in any manner binding or affecting any of the assets of the state trust company and every transfer or assignment made thereafter by the state trust company, or by its authority, of the whole or any part of its assets, shall be null and void; and the commissioner, shall be substituted in place of the state trust company in all actions in the state or federal courts, pending at the time of the exercise of such authority.

SECTION 8.104. Notice to trust institutions, corporations and others holding assets; liens not to accrue.

Upon taking possession of the assets and business of any state trust company, the commissioner, or duly appointed agent, shall forthwith give notice, by mail or otherwise, of such action to all trust institutions or other persons or corporations holding, or having in possession, any assets of such state trust company. No trust company or other person or corporation shall have a lien or charge for any payment, advance or clearance made, or liability incurred against any of the assets of the state trust company after possession has been taken as provided under this section, except as hereinafter provided.

SECTION 8.105. Permission to resume business.

After the commissioner has taken possession of any state trust company, such state trust company may resume business as provided by law.

SECTION 8.106. Remedy for seizure; answer to notice, injunction; and appeal.

Whenever any state trust company, of whose assets and business the commissioner has taken possession as herein provided, except where possession is taken under Section 8.102 of this act, shall deem itself aggrieved thereby, and it may, at any time within ten (10) days after the filing of the notice with the chancery clerk, file an answer to the notice and may also upon notice to the commissioner, apply to the presiding chancellor of the district for an injunction to enjoin further proceedings by the commissioner. The chancellor may cite the commissioner to show cause within ten (10) days thereafter why further proceedings should not be enjoined, and after hearing the allegations and proof of the parties with respect to the condition of the state trust company, may dismiss such application for injunction or may enjoin further proceedings under this section by the commissioner. If the chancellor shall enjoin further action of the commissioner and permit the reopening of the state trust company, the chancellor shall have authority to require of such state trust company a surety bond as the chancellor deems necessary to insure its solvency, payable to the commissioner for the sole benefit of the general creditors of the state trust company, and upon such terms as the chancellor may deem proper. Either party shall have the right to appeal to the Supreme Court as in other actions.

SECTION 8.107. Collection of debts and claims; commissioner succeeds to all property of the state trust company.

(a) Upon taking possession of the assets and business of any state trust company by the commissioner, or a duly appointed agent, the commissioner or agent is authorized to collect all money due the state trust company, and to do such other acts as are necessary to conserve its assets and property, and shall proceed to liquidate the affairs thereof, as hereinafter provided. The commissioner, or a duly appointed agent, shall collect all debts due and claims belonging to the state trust company, by suit, if necessary; and, by motion in the pending action, and, upon authority of an order of the presiding chancellor of the district, may sell, compromise or compound any bad or doubtful debt or claim, and may upon such order, sell the real and personal property of the state trust company on such terms as the order may provide or direct, except that where the sale is made under power contained in any mortgage or lien bond or other paper wherein the title is retained for sale and the terms of sale set out, sale may be made under that authority.

(b) Upon taking possession of any state trust company under this section, the commissioner and/or the duly appointed agent, shall have the possession and the right to the possession of all the property, assets, choses in action, rights and privileges of the state trust company, including the right to resign the trust or exercise the power in all papers executed to secure the payment of money in any form in which the state trust company shall have been named as trustee and/or pledgee, and such property right and privileges shall vest in the commissioner and/or duly appointed liquidating agent absolutely, for the purpose of liquidating, and sales and conveyance of the same, together with any and all other incidental rights, privileges, and powers necessary and convenient for the enjoyment of the right of conveyance and sale and for the exercise of the same. Upon the motion made, the state trust company or any person interested, may be heard, but the chancellor hearing the motion shall enter an order as in the chancellor's discretion will best serve the parties interested.

(c) The officers and directors of any state trust company, or any state trust company that is in liquidation as provided by law, shall not hereafter exercise any powers herein declared to be vested in the commissioner, and/or the duly appointed liquidating agent.

SECTION 8.108. Bond of the commissioner; surety; condition; minimum penalty.

Upon taking possession of any state trust company, the commissioner, or a duly appointed agent shall execute and file a bond payable to this state, with some surety company as surety thereon, with the chancery clerk of the county where the state trust company is located, conditioned upon the faithful performance of all duties imposed by reason of the liquidation of such state trust company by the commissioner, or duly appointed agent assisting in the liquidation of a state trust company, the penal sum of the bond to be fixed by order of the commissioner, which in no case shall be less than Fifty Thousand Dollars ($50,000.00). Any person interested, by motion in the pending action, shall be heard by the presiding chancellor of the district as to the sufficiency of the bond; the chancellor hearing the motion may thereupon fix the bond.

SECTION 8.109. Inventory.

Within thirty (30) days after the filing of the notice of the taking possession of a state trust company in the office of the chancery clerk, the commissioner, or a duly appointed agent, shall file an inventory of the assets and liabilities of such state trust company. A copy of the inventory shall be filed with the chancery clerk in the pending action and a copy shall be kept on file in the state trust company. The inventory shall be open for inspection during the usual business hours, provided that nothing herein shall require the state trust company to remain open unnecessarily.

SECTION 8.110. Notice and time for filing claims.

Notice shall be given by advertisement once a week for four (4) consecutive weeks in a newspaper published in the county where the state trust company is located, or if no newspaper is published in the county, then in some newspaper having a general circulation in the county, calling on all persons who may have claims against the state trust company to present the same to the commissioner at the office of the state trust company, and within the time to be specified in the notice which time shall not be less than ninety (90) days from the date of the first publication. A copy of this notice shall be mailed to all persons whose names appear as creditors upon the books of the state trust company. Affidavit by the commissioner, or agent mailing the notice, to the effect that the notice was mailed shall be conclusive evidence thereof.

SECTION 8.111. Power to reject claims; notice; affidavit of service; action on claims.

If the commissioner, or a duly appointed agent, doubts the validity of any claim, the commissioner or agent may reject the same and serve notice of such rejection upon the claimant, either personally or by registered mail, and an affidavit of the service of such notice shall be filed in the office of the chancery clerk in the pending action, and shall be conclusive evidence of such notice. Any action or suit upon rejected claim must be brought by the claimant against the commissioner or agent, in the chancery court of the county in which the state trust company is located within ninety (90) days after such service, or the same shall be barred. Objections to any claim not rejected by the commissioner, or the duly appointed agent, may be made by any person interested by filing such objection in the pending action and by serving a copy thereof on the commissioner, or duly appointed agent, and the commissioner, or duly appointed agent, after investigation, shall either allow such objection and reject the claim, or disallow the objection. If the objection is not allowed and the claim not rejected, the commissioner, or the duly appointed agent, shall file a notice to this effect in the pending action; and within ten (10) days thereafter, the person filing objection by motion in the pending action, a copy of which notice shall be served upon the person whose claim or deposit is objected to, and present to the court the question of the validity of the claim; and the questions of law and issues of fact shall thereupon be determined as in other civil actions.

SECTION 8.112. List of claims presented and deposits; copies; proviso.

Upon the expiration of the time fixed for presentation of claims, the commissioner, or the duly appointed agent, shall make a full and complete list of the claims presented, including and specifying any claims which have been rejected. One (1) copy shall be filed in the office of the chancery clerk in the pending action, and one (1) copy shall be kept on file with the inventory in the office of the state trust company for examination. Any claim which may be presented after the expiration of the time fixed for the presentation of claims in the notice hereinbefore provided shall, if allowed, share pro rata in the distribution only of those assets of the state trust company in the hands of the commissioner, and undistributed at the time the claim is presented. However, when it is made to appear to the presiding chancellor in the district, that the claim could not have been filed within that period, the chancellor may permit those creditors or depositors who subsequently file their claim to share as other creditors.

SECTION 8.113. Declaration of dividends; order of preference in distribution.

At any time after the expiration of the date fixed by the commissioner, or the duly appointed agent, for the presentation of claims against the state trust company, and from time-to-time thereafter, the commissioner, out of the funds in the hands of the commissioner, after the payment of expenses and priorities, may declare and pay dividends to the shareholders or participants and other creditors of such state trust company in the order now or hereafter provided by law; and a dividend may be declared when and as often as the funds on hand subject to the payment of dividends shall be sufficient to pay ten percent (10%) of all claims entitled to share in such dividends. In paying dividends and calculating the same, all disputed claims shall be taken into account, but no dividend shall be paid upon such disputed claims until the same shall have been finally determined. The following shall be the order and preference in the distribution of the assets of any state trust company liquidated hereunder:

(1) Taxes and fees due the Commissioner for examination or other services;

(2) Wages and salaries due officers and employees of the state trust company, for a period of not more than four (4) months;

(3) Expenses of liquidation;

(4) Amounts due creditors other than stockholders or participants.

The word "asset" used herein shall not be deemed to include bailments or other property to which the state trust company has no title. A statement of all dividends paid shall be filed in the office of the chancery clerk in the pending action, and such statements shall show the expenses deducted and the disputed claims in determining the dividend.

SECTION 8.114. Deposit of funds collected.

All funds collected by the commissioner, in liquidating any state trust company, shall be deposited from time-to-time in a bank as may be selected by the commissioner, and shall be subject to the check of the commissioner.

SECTION 8.115. Employment of counsel; accountants; and other experts; compensation.

The commissioner, for the purpose of liquidating state trust companies as herein provided, shall employ such liquidating agents, competent local attorneys, accountants and clerks as may be necessary to properly liquidate and distribute the assets of a state trust company, and shall fix the compensation for all such agents, attorneys, accountants and clerks, and shall pay the same out of the funds derived from the liquidation of the assets of the state trust company. However, all expenditure for the purpose herein provided shall be approved by the presiding chancellor in the pending action at such time as the same may be reported, and such charges shall be a proper charge and lien on the assets of the state trust company until paid.

SECTION 8.116. Unclaimed dividends held in trust.

Any unclaimed dividends remaining in the hands of the commissioner for six (6) months after the order for final distributions shall be held in trust for the several creditors of the liquidated state trust company; and the money so held by the commissioner shall be paid over to the persons respectively entitled thereto as and when satisfactory evidence of their right to the same is furnished. In case of doubtful or conflicting claims the commissioner shall have authority to apply to the chancery court, by motion in the pending action, for an order from the chancellor of the district directing the payment of the moneys so claimed. When issues of fact are raised by motion, the same may, upon request of any claimant, be determined as in other civil actions. The interest earned on the unclaimed dividend so held shall be applied toward defraying the expenses incurred in the distribution of such unclaimed dividends. The balance of interest, if any, shall be deposited and held as other funds to the credit of the commissioner. After the commissioner has held the unclaimed dividends held in trust under the provisions of this statute for the creditors of the liquidated state trust company for a period of ten (10) years, the commissioner may pay the principal amount of such unclaimed dividends to the State Treasurer, to be held by the State Treasurer without liability for profit or interest until a just claim therefor shall be made by the parties entitled thereto. Upon payment of unclaimed dividends to the State Treasurer, the commissioner shall be fully discharged from all further liability therefor.

SECTION 8.117. Action by the commissioner following full settlement.

Whenever the commissioner shall have paid all the expenses of liquidation and shall have paid to each and every creditor of such state trust company, whose claims shall have been duly proven and allowed, the full amount of such claims, and shall have made proper provision for unclaimed and unpaid and disputed claims, and shall have in hand other assets of the state trust company, the commissioner shall call a meeting of the shareholders or participants of the state trust company by giving notice thereof by publication once a week for four (4) consecutive weeks in a newspaper published in the county, or if no newspaper is published in the county, then in a newspaper having general circulation in the county, and by mailing a copy of such notice to each shareholder's or participant's address as the same shall appear upon the books of the state trust company. Affidavit of the mailing of the notice herein required and of the printer as to the publication shall be conclusive evidence of notice hereunder. At such meeting any shareholders or participants may be represented by proxy and the shareholders or participants shall elect, by a majority vote of the stock present, an agent or agents who shall be authorized to receive from the commissioner all the assets of the state trust company then remaining in the commissioner's hands; and the commissioner shall cause to be transferred and delivered to the agent, or agents, all such assets of the state trust company. The commissioner shall thereupon cause to be filed in the office of the chancery clerk in the pending actions a full and complete report of all his transactions, showing the assets of the state trust company so transferred, together with the name of the agent or agents receipting for the same; and the filing of such report shall act as a full and complete discharge of the commissioner front all further liabilities by reason of the liquidation of the state trust company. Such agent, or agents, shall convert the assets coming into his or her hands, or their hands, into cash, and shall make distribution to the shareholders or participants of the state trust company as herein provided. The agent, or agents, shall file semiannually a report of all transactions with the chancery court of the county in which the state trust company is located, and with the commissioner, and shall be allowed for such services such fees not in excess of five percent (5%), as may be fixed by the court. In case of death, removal or refusal to act, of any agent or agents elected by the shareholders or participants, the commissioner shall, upon report of such action on the part of such agent or agents to the chancery court of the county in which the state trust company is located, turn over to the chancery court for the stockholders of the state trust company, all the remaining assets of the state trust company, file the required report and be discharged from any and all further liability to the shareholders or participants as herein provided. The assets, when turned over to the chancery court hereunder, shall remain in the hands of the court until such time as, by court order or by action of the shareholders or participants, distribution shall be provided for.

SECTION 8.118. Annual report of the commissioner; items included.

The commissioner shall file, as a part of an annual report to the Governor, a list of the names of the state trust companies of which possession was taken and liquidated; and the commissioner shall, from time-to-time compile and make available for public inspection, reports showing the condition of each and all such state trust companies; and the annual report of the commissioner shall show the sum of unclaimed assets, with respect to each state trust company, and shall show all depositories of all sums coming into the hands of the commissioner under the provisions of this section.

SECTION 8.119. Compensation of the commissioner.

The commissioner, for services rendered in connection with the liquidation of state trust companies hereunder, shall be entitled to actual expenses incurred in connection with the liquidation of each state trust company, including therein a reasonable sum for the time of the examiners and other agents of the commissioner, which expenses shall be a prior lien on the assets of such state trust company so liquidated until paid in full; and the commissioner shall have authority to prescribe reasonable rules and regulations for fixing such expenses.

SECTION 8.120. Exclusive method of liquidation.

No state trust company created before the effective date of this act shall be liquidated in any other way or manner than that provided in this act.

SECTION 8.121. Disposition of books and records.

All books, papers and records of a state trust company which has been finally liquidated shall be deposited by the receiver in the office of the chancery clerk for the county in which the office of such state trust company is located, or in such other place as in the receiver's judgment will provide for the proper safekeeping and protection of such books, papers, and records. The books, papers, and records herein referred to shall be held subject to the orders of the commissioner and the chancery clerk of the county in which such state trust company was located.

SECTION 8.122. Destruction of books and records.

After the expiration of five (5) years from the date of filing in the office of the chancery clerk of a final order approving the liquidation by the commissioner of any insolvent state trust company and the delivery to the clerk or into the clerk's custody of the records of such state trust company, the same may be destroyed by the chancery clerk.

After five (5) years from the filing by the commissioner of a final report of liquidation of any insolvent state trust company, the commissioner may destroy the records of any insolvent state trust company held in the office of the commissioner in connection with the liquidation of such state trust company. However, in connection with any unpaid dividends the commissioner shall preserve the records or other evidence of indebtedness of the trust company with reference to the unpaid dividend until the dividend shall have been paid.

SECTION 8.123. Trust terminated on insolvency of state trust company.

Whenever any state trust company created under the laws of this state, which has heretofore been, or shall hereafter be, appointed trustee in any indenture, deed of trust or other instrument of like character, executed to secure the payment of any bonds, notes or other evidences of indebtedness, has been or shall be by reason of insolvency, or for any other cause provided by law, taken over for liquidation by the commissioner or by any other legally reconstituted authority, the powers and duties of such state trust company as trustee in any such instrument shall, upon the entry of an order of the chancery clerk of the court appointing a successor trustee, upon a petition as hereinafter provided, immediately cease and terminate.

SECTION 8.124. Petition for new trustee.

In all cases of insolvency and liquidation provided in this article, the chancery clerk of any county in which such indenture, deed of trust or other instrument of like character is recorded, shall, upon the verified petition of any person interested in any such trust, either as trustee, beneficiary or otherwise, which interest shall be set out in the petition, enter an order directing service on all interested parties either personally or by the publication in some newspaper published in the county, or in some adjoining county if no newspaper is published in the county where such application is made, a notice directed to all persons concerned, commanding and requiring all persons having any interest in the trust, appear in the clerk's office at a day designated in the order and notice, not less than thirty (30) days from the date thereof, and show cause why a new trustee shall not be appointed.

SECTION 8.125. Publication and notice.

Such notice shall be published in the manner required by law for service of summons by publication, and shall set forth the names of the patties to the indenture deed of trust, or other such instrument, the date thereof, and the place or places where the same is recorded.

SECTION 8.126. Appointment where no objection made.

If, upon the day fixed in the notice, no person appears and objects to the appointment of a substitute trustee, the clerk shall, upon such terms the clerk deems advisable and in the best interest of all parties, appoint some competent person, or corporation authorized to act as, substitute trustee. The substitute trustee shall be vested with and shall exercise all the powers reconferred upon the trustee named in this instrument.

SECTION 8.127. Rearing upon objection.

If objections are made to the appointment of a new trustee, the clerk shall hear and determine the matter, and from the clerk's decision an appeal may be prosecuted as in the case of special proceedings generally.

SECTION 8.128. Registration of final order.

The final order of appointment of a new trustee shall be certified by the clerk in an order which shall be recorded in the office of the register of deeds in the county or counties in which the instrument under which the appointment has been made was recorded, and a notation of the same shall be entered by the register of deeds on the margin of the record where the original instrument was recorded.

SECTION 8.129. Petition and order applicable to all instruments.

The petition and the order appointing a new trustee may include, relate and apply to any number of indentures, deeds of trust or other instruments, wherein the same trustee is named.

SECTION 8.130. Additional remedy.

Sections 8.124 and 8.129 shall be in addition to and not in substitution for any other remedy provided by law.

SECTION 8.131. Report to the Secretary of State.

The commissioner shall on or before the first day of each year thereafter file with the Secretary of the State a report showing all state trust companies under liquidation in this state, and the names of any and all auditors together with the amounts paid to them for auditing each of the state trust companies, and the names of any and all attorneys employees in connection with the liquidation of the state trust companies together with the amount paid or contracted to be paid to each of the attorneys. If any attorney has been employed on a fee contingent upon recovery, the report must state in substance the contract.

Within five (5) days from the receipt of the report the Secretary of State shall cause the same to be published one (1) time in some newspaper published in each county in which a state trust company or state trust companies are under liquidation. If there is no newspaper published in the county, the Secretary of State shall cause a copy of the report to be posted at the courthouse door in the county.

SECTION 2. Section 81-1-107, Mississippi Code of 1972, is brought forward as follows:

81-1-107. Every bank organized under the laws of this state engaging in the business of a commercial bank, trust company or any combination thereof, is assessed for each year the sum of Seventy-five Dollars ($75.00) and every such corporation whose total assets exceed One Hundred Thousand Dollars ($100,000.00) shall further pay in addition to the minimum assessment of Seventy-five Dollars ($75.00), Fifty Cents (504) for each One Thousand Dollars ($1,000.00) or fraction thereof of assets in excess of One Hundred Thousand Dollars ($100,000.00). All money accruing from such assessment shall be used for the maintenance of the department.

The commissioner shall, during the month of January in each year, or as soon thereafter as practicable, prepare a statement of the assessments due under this section based upon the total assets of each such corporation, as shown by its last report, which shall be paid as called for by the commissioner. He shall send to each such corporation a statement of the amount due by it, which shall specify how the same shall be payable. The assessment shall be due and payable in accordance with the statement so furnished and the installments thereof shall be paid within ten (10) days after the date fixed for their payment. Such assessment shall constitute a lien on the assets of each bank until paid. Any such corporation failing to make payment within ten (10) days as herein provided shall be liable to a penalty of ten percent (10%) of the amount in default for each day thereafter. All assessments and penalties provided in this section shall be payable to the commissioner and when collected by him shall be delivered to the State Treasurer to be placed to the credit of the maintenance fund of the department. The commissioner shall give a receipt for all money received by him and shall take a receipt from the State Treasurer for all money delivered to him. In making any call for the assessment levied by this section the commissioner shall estimate the cost of maintaining the department for the current year, and if the assessments hereby levied shall appear to produce more than such estimate, he shall reduce accordingly the Fifty Cents (504) per One Thousand Dollars ($1,000.00) of assets assessment provided in this section. The cash balance remaining in the maintenance fund of the department at the end of any one (1) fiscal year shall be credited to and reduce the assessments of the following fiscal year on a pro rata basis.

SECTION 3. Section 81-3-1, Mississippi Code of 1972, is brought forward as follows:

81-3-1. Whenever the word "bank" is used in any statute, unless the context clearly shows that it is intended to be limited in its application to a particular character of bank, it shall include trust companies, savings banks, branches of banks and trust companies, and all other institutions subject to the provisions of this title. The term "corporation," when used in this title, or "trust company" when used in this title, shall be construed and held to embrace every character of bank, branch bank, trust company or any branch thereof, which is subject to the jurisdiction of the Department of Banking and Consumer Finance. The term "eligible banks," when used in this title, means an institution which is well capitalized as defined by regulations of the Federal Deposit Insurance Corporation, has examination ratings of two (2) or higher, has Community Reinvestment Act (CRA) ratings of satisfactory or higher, and has no supervisory enforcement actions pending.

SECTION 4. Section 81-3-3, Mississippi Code of 1972, is brought forward as follows:

81-3-3. Every banking corporation organized under the laws of this state shall include the word "bank" or "banking" in its name. No corporation hereafter organized shall include in its name the words "bank," "banker," "bankers," "banking" or "trust company," or any of them, or any combination thereof, or any words of similar import, unless such corporation shall, by the express provisions of its charter, be limited solely to the doing of a banking or trust business, or a combination of banking and trust business as contemplated in this chapter; and all such corporations shall be incorporated and organized under and pursuant to the terms of this chapter providing for the incorporation of banking corporations and not otherwise.

Every corporation organized under the laws of this state for the purpose of conducting or carrying on a commercial banking business, or the business of a savings bank, or trust company, or the exercise of trust powers as defined in this title, or any combination thereof, shall be subject to supervision by the Department of Bank Supervision and the State Comptroller, and to assessments for the maintenance of said department as provided by law.

SECTION 5. Section 81-3-5, Mississippi Code of 1972, is brought forward as follows:

81-3-5. Five (5) or more persons of full age and of good moral and sound business character may organize themselves into a banking corporation. Banking corporations may be created for the purpose of conducting and carrying on a bank and trust company business, such trust company business to be limited as herein provided, and to establish offices of loan and deposit to be known as savings banks, or to establish banks having departments for carrying on all of the above classes of business; and said banking corporations may, under the provisions of the banking laws of Mississippi, establish branch banks and branch offices within territorial limitations as hereinafter provided in Chapter 7 of this title. No private individual, or partnership, or association of persons other than a corporation shall be allowed to conduct any type of banking business within this state.

SECTION 6. Section 81-3-7, Mississippi Code of 1972, is brought forward as follows:

81-3-7. The articles of incorporation of every banking corporation shall be signed and acknowledged before an officer authorized by the laws of this state to take acknowledgments and shall specify:

(a) The name assumed by such corporation which shall be in no material respect similar to the name of any other corporation organized under the laws of this state.

(b) The county and city, town or village where such corporation will be domiciled and conduct its business.

(c) The nature of its business, whether that of a commercial bank, savings bank, trust company or any combination thereof.

(d) That the amount of capital stock shall be divided into shares of not less than One Dollar ($1.00) each.

(e) The names and places of residence of the stockholders and the number of shares held by each of them.

(f) The period for which the corporation is organized which shall not exceed ninety-nine (99) years, but which may be renewed for additional periods of ninety-nine (99) years each, as set out in Section 81-3-15.

(g) The articles of incorporation shall be executed in triplicate, and after the proper incorporation fee has been paid, and the articles approved by the Secretary of State, the State Comptroller, the Attorney General and the Governor, one (1) copy shall be filed in the office of the Secretary of State and recorded there as required by law; one (1) copy in the office of the Department of Bank Supervision and one (1) copy filed for record in the office of the chancery clerk of the county in which the banking corporation is domiciled, and then returned to said banking corporation and kept in its files.

Every banking corporation shall adopt appropriate bylaws to govern its operation, which shall harmonize with the provisions of its articles of incorporation and the laws of the state. Every banking corporation shall designate a person to serve as president and a person to serve as cashier.

When the period of existence of a banking corporation heretofore created for a period of fifty (50) years shall expire, if such banking corporation shall continue to do business thereafter for a period of ninety (90) days, the same shall operate as an acceptance of an extension of the life of such banking corporation to a full period of ninety-nine (99) years from the date of the original charter thereof, and such banking corporation shall continue in existence as a de jure corporation as fully and completely as if the charter thereof had been thus amended prior to the end of the original period of fifty (50) years.

SECTION 7. Section 81-5-1, Mississippi Code of 1972, is brought forward as follows:

81-5-1. (1) All banking corporations are prohibited, either through their officers or as a banking agency, from participating, directly or indirectly, in the operation of any underwriting syndicate which handles securities for resale. However, this inhibition shall not apply to bonds issued by federal, state, county or other governmental agencies.

(2) The executive officers of banking corporations now existing or hereafter organized under the laws of the State of Mississippi, are prohibited from owning stock in private banking houses or other agencies engaged in the business of underwriting securities for resale.

(3) The Commissioner of Banking and Consumer Finance is authorized, empowered and directed to promulgate rules and regulations, relative to withdrawals of deposits from savings banks, trust companies and other banking institutions, and the commissioner may, in cases of emergency, declare bank holidays and do any and all things necessary to insure, protect and conserve the resources of such banks.

(4) All state banking corporations are prohibited from making loans to state, county, municipal and district governmental agencies, unless such loans are made in strict compliance with legal enactments and regulations which govern, and such banking corporations are further prohibited from transferring funds from one state, county, municipal or district account to another unless authorized by warrant issued by proper authority, and such banking corporations are prohibited from discounting state, county, municipal, district or other public certificates and warrants, but such certificates and warrants may be used as collateral to guarantee the payment of notes or other obligations.

(5) The board of directors of any banking corporation created under the laws of this state may, at its option, require any or all employees of such to file with the board of directors a sworn financial statement semiannually or more often if it so desires.

(6) Any bank may, at its option, pay all checks drawn on it with currency or valid exchange drawn on a bank in a reserve city not more than five hundred (500) miles distant from such bank; but each depositor is entitled to have his checks paid each day in currency to the total extent of ten percent (10%) of his deposit if it exceeds One Thousand Dollars ($1,000.00) and at least One Hundred Dollars ($100.00) each day if his balance is over One Hundred Dollars ($100.00) and less than One Thousand Dollars ($1,000.00), and may demand his entire balance in currency at any time if One Hundred Dollars ($100.00) or less.

(7) No loan in excess of Twenty-five Thousand Dollars ($25,000.00) shall be made by any state banking corporation except on approval of a loan committee selected by a majority of the board of directors. Such committee shall require of all such prospective borrowers a financial statement in connection with all unsecured loans in excess of Twenty-five Thousand Dollars ($25,000.00).

(8) All state banking corporations may purchase for the account of their customers bonds, stocks and other securities, and such banking corporations may charge for their service in connection with the handling of such transactions only actual expenses plus the usual broker's fees allowed for similar service by national banks.

(9) Any state bank may purchase, lease or otherwise acquire automatic data processing computers and related machinery and equipment, and such bank may utilize and operate such computers, machinery and equipment in performing for itself, its customers or any other bank such services as may be desired including, but not limited to, check and deposit sorting and posting, computation and posting of interest and other credits and charges, preparation and mailing of checks, statements, notices and similar items, or any other clerical, bookkeeping, accounting, statistical or similar functions performed by and for a bank. Corporations may be organized under the laws of the State of Mississippi for the purpose of owning and operating, by purchase, lease or otherwise, such computers, related machinery and equipment as aforesaid, and such corporations may perform for any bank those services as above mentioned; and stock of such corporations shall be legal investments for state banks to the same extent that stock of bank service corporations is eligible for acquisition by national banks under the provisions of the Bank Service Corporation Act, Public Law 87-856, 76 Stat. 1132.

(10) In addition to other powers, a state-chartered bank shall have and possess such of the rights, powers, privileges, immunities, duties and obligations of a national bank having its principal place of business in this state as may be prescribed by the State Board of Banking Review by general regulation under the circumstances and conditions set out therein. In the event of a conflict between the provisions of this subsection (10) and the provisions of any other act or acts, directly or indirectly, governing or regulating the activities of state chartered banks, the provisions of this subsection (10) shall control, and insurance activities of all banks, their subsidiaries, affiliates, branches, officers and employees doing business in this state shall be governed by the provisions of Title 83, Mississippi Code of 1972, only to the extent that Title 83, Mississippi Code of 1972, applies to national banks in Mississippi. 

SECTION 8. Section 81-5-11, Mississippi Code of 1972, is brought forward as follows:

81-5-11. Any bank or trust company incorporated under the laws of Mississippi shall have power to subscribe to the capital stock and become a member of a Federal Reserve bank created and organized under the act of Congress of the United States approved December 23, 1913, and known as the Federal Reserve Act and its amendments.

SECTION 9. Section 81-5-13, Mississippi Code of 1972, is brought forward as follows:

81-5-13. Any bank or trust company, incorporated under the laws of Mississippi, which shall become a member of a Federal Reserve bank, shall comply with the reserve requirements of the Federal Reserve Act and its amendments, and the compliance of such bank or trust company therewith shall be in lieu of, and shall relieve such bank or trust company from, compliance with the provisions of the laws of this state relating to the maintenance of reserves.

SECTION 10. Section 81-5-15, Mississippi Code of 1972, is brought forward as follows:

81-5-15. Every active officer and employee of any bank or trust company in this state shall furnish a fidelity bond to the bank by which he is employed for the faithful performance of his duties, executed by some surety company authorized to do business in the State of Mississippi, as surety. The conditions of such bond, whether the instrument so describes the conditions or not, shall be that the principal shall protect the obligee against any loss or liability that the obligee may suffer or incur by reason of the acts of dishonesty of the principal or by reason of the violation of any of the provisions of the banking laws of Mississippi. The amount of such bond shall be fixed by the board of directors, subject, however, to approval of the State Comptroller and the same shall be inspected upon the examination of the bank or trust company.

Every banking corporation shall provide adequate insurance protection and indemnity against robbery and burglary and other similar insurable losses. Whenever any bank refuses or fails to comply with this requirement the State Comptroller may contract for such protection and indemnity and add the cost thereof to the assessment otherwise payable by such bank for the support of the department of bank supervision.

SECTION 11. Section 81-5-25, Mississippi Code of 1972, is brought forward as follows:

81-5-25. Shares of stock issued by small business investment companies, incorporated in this state and licensed under the provisions of the Small Business Investment Act of 1958, Public Law 699, 85th Congress, and any amendments thereto, shall be legal investments for state chartered banks and trust companies, to the same extent that shares of small business investment companies are eligible for purchase by national banks under the provisions of said Small Business Investment Act of 1958, and any amendments thereto.

SECTION 12. Section 81-5-33, Mississippi Code of 1972, is brought forward as follows:

81-5-33. Banks may accept and execute all such trusts and perform such duties of every description as may be committed to them by any person or corporation or that may be committed or transferred to them by order of any court of record. They may receive money in trust, take and accept by grant, assignment, transfer, devise or bequest, and hold any real or personal estate or trusts created according to the laws of this or any other state, or of the United States, and execute such legal trusts in regard to the same, on such terms as may be directed or agreed upon thereto. They may act as agent for the investment of money or the management of property for other persons, and as agent for persons and corporations for the purpose of issuing, registering, transferring or countersigning the certificates of stock, bonds or other evidences of debt of any corporation, association, municipality, state, county or public authority on such terms as may be agreed upon. They also may act as guardian for any minor or insane person under the appointment of any court of record having jurisdiction of the person or estate of such minor or insane person and may act as administrator or executor of the estate of any deceased person. They may act as agent or attorney in fact and as commissioner for the sale of property, both real and personal, and may act as assignee or receiver, or as trustee in mortgages or bond issues, or in any other fiduciary capacity authorized by law. They may accept trust funds or other property upon specially agreed terms and pay or deliver the same to the owners, beneficiaries or others, as the case may be, when and as the same should be paid or delivered according to the terms of the trust agreement under which it is held. Whenever under the laws of this or any other state, or under the rule or order of any court, the execution of a bond for the protection of a private or court trust shall be required, a trust company shall be authorized to execute such bond for the protection of any trust or trust estate being administered by it.

Banking corporations created, organized and doing business under the laws of the State of Mississippi may exercise, without amendment of their charters, and, under their charter authority to engage in the general business of banking, all or any of the foregoing powers, but before any bank, whose charter merely authorizes the exercise of general banking functions, shall exercise such powers the previous written consent of the Commissioner of Banking and Consumer Finance shall be obtained.

Banks exercising any or all of such powers shall segregate all assets held in any fiduciary capacity from the general assets of the bank and shall keep a separate set of books and records showing in proper detail all transactions engaged in under the authority of this section, or under the authority heretofore granted to them in their charter or otherwise. Such books and records shall be inspected and examined by the state bank examiners at each and every examination of the bank.

No bank shall receive in its trust department deposits of current funds subject to check or the deposit of checks, drafts, bills of exchange or other items for collection or exchange purposes. Funds deposited or held in trust by the bank awaiting investment or distribution shall be carried in a separate account and shall not be used by the bank in the conduct of its business, unless it shall first set aside in the trust department United States bonds or bonds of the State of Mississippi, or any subdivision thereof, the market value of which shall at all times be not less than ten percent (10%) in excess of the total funds so held, exclusive of the portion of funds insured by the Federal Deposit Insurance Corporation.

In the event of the failure or liquidation of such bank, the owners of the funds held in trust for investment or distribution shall have a prior lien on the bonds or other securities so set apart in addition to their claim against the assets of the bank.

In any case in which the laws of this state require that one acting as trustee, executor, administrator or in any fiduciary capacity, shall take an oath or make an affidavit, the president, vice president, cashier or trust officer of a bank may take the necessary oath or execute the necessary affidavit.

In making investments of trust funds it shall be unlawful for any bank to purchase securities from itself, or to purchase securities in which it may be interested, directly or indirectly. However, any bank, including a national bank, authorized to do business in this state in a fiduciary capacity may, unless prohibited or otherwise limited by the instrument governing the fiduciary relationship, in the exercise of its investment discretion or at the direction of another person authorized to direct the investment of funds held by the bank as fiduciary, invest and reinvest in the securities of, or other interests in, any open-end or closed-end management type investment company or investment trust registered under the Investment Company Act of 1940, 15 USCS Section 80a-1, et seq., as amended, notwithstanding that such banking institution or affiliate of such banking institution provides services to the investment company or investment trust, such as that of an investment advisor, custodian, transfer agent, registrar, sponsor, distributor, manager or otherwise, and receives reasonable remuneration for those services, so long as the total compensation paid by the trust or custodial estate as trustee's fees and mutual fund fees is reasonable, taking into account the nature and extent of the trustee's duties, the nature and extent of the services provided to the investment company or investment trust, and the total compensation, costs and fees that would otherwise be paid, directly or indirectly, by the trust or custodial estate if the investment were made in an investment company or investment trust for which the bank or its affiliates provided no services. With respect to any funds so invested, such banking institution shall make available by statement, prospectus or otherwise to all current income beneficiaries of an account the basis, expressed as a percentage of asset value or otherwise, upon which the remuneration is calculated. No bank shall lend to any officer, director or employee thereof any funds held in trust by it, and any officer, director or employee making such loan, or to whom such loan is made, shall be guilty of a felony and upon conviction may be fined not more than Five Thousand Dollars ($5,000.00) or imprisoned in the State Penitentiary for not more than five (5) years, or by both such fine and imprisonment, in the discretion of the court.

SECTION 13. Section 81-5-35, Mississippi Code of 1972, is brought forward as follows:

81-5-35. No state or national bank domiciled in this state and duly authorized by law to act in a fiduciary capacity shall be required to make or file any bond or other security for the faithful performance of its duty when acting as executor, administrator, guardian, conservator, trustee, or in any other fiduciary capacity, unless the instrument creating any such trust or the court having jurisdiction thereof shall specifically direct that such bond or other security shall be given for the performance of such trust and shall fix the amount thereof. The chancery court or chancellor in vacation, having jurisdiction over any such estate or trust existing at the time of the enactment of this statute may, in its discretion, cancel any such bond or release any such security and discharge the surety or sureties thereon. However, the retroactive effect of this section shall not apply to the release of any such bond or security or surety on any estate, guardianship, or trust on which a bond or security or surety was required as a result of the failure of a probated will to waive bond, security, or surety.

SECTION 14. Section 81-5-37, Mississippi Code of 1972, is brought forward as follows:

81-5-37. (1) Any bank or trust company qualified to act as a fiduciary in this state may establish common trust funds for the purpose of furnishing investments to itself as fiduciary, or to itself and others, as co-fiduciaries; and may, as such fiduciary or co-fiduciary, invest funds which it lawfully holds for investment in interests in such common trust funds, if such investment is not prohibited by the instrument, judgment, decree, or order creating such fiduciary relationship, and if, in the case of co-fiduciaries, the bank or trust company procures the consent of its co-fiduciary or co-fiduciaries to such investment.

(2) Unless ordered by a court of competent jurisdiction the bank or trust company operating such common trust funds is not required to render a court accounting with regard to such funds; but it may, by application to the chancery court, secure approval of such an accounting on such conditions as the court may establish.

(3) This section shall be so interpreted and construed as to effectuate the general purpose of making uniform the law of those states which enact the Uniform Common Trust Fund Act.

(4) This section may be cited as the Uniform Common Trust Fund Law.

SECTION 15. Section 81-5-39, Mississippi Code of 1972, is brought forward as follows:

81-5-39. Whenever any bank or trust company organized under the laws of this state or any national bank doing business in this state is acting as trustee, guardian, executor, administrator, or other fiduciary and has a nominee, whether an individual, a corporation or a partnership, in whose name stocks, bonds, debentures, or any other corporate securities in registered form, may be registered, it shall be lawful and any such fiduciary is hereby authorized to register any such securities in the name of such nominee without disclosure of the trust or other fiduciary relationship on the face of the instrument evidencing such securities or in the bond registry or on the books of the corporation issuing the same, provided that:

(a) The books and records kept by the fiduciary and the accounts rendered by it shall clearly reflect the ownership of such securities by the fiduciary,

(b) The securities registered in the name of the nominee shall at all times be retained in the possession of the fiduciary and the nominee shall have no access thereto except under the immediate supervision of the fiduciary, and

(c) The fiduciary shall be personally liable for any loss to the trust or estate resulting from any act or neglect of such nominee with respect to any securities registered in the name of the nominee.

Whenever any such bank or trust company is acting jointly with others as trustee or executor of a trust or estate it shall be lawful by agreement with such other fiduciary to register the securities of such trust or estate in the name of such bank or trust company's nominee; and in the event two (2) such banks or trust companies shall be acting as co-fiduciaries it shall be lawful to register the securities of the trust or estate in the name of the nominee of either fiduciary or by agreement to register a proportionate part thereof in the name of the nominee of each fiduciary.

SECTION 16. Section 81-5-41, Mississippi Code of 1972, is brought forward as follows:

81-5-41. (1) Without excluding other activities within this state, or activities outside this state involving taking security of real estate located in this state, which may not constitute transacting or engaging in business in this state, any of the following, not organized under the laws of the State of Mississippi and which has no place of business within this state: a mutual savings bank or mutual savings fund society, or any national banking association now or hereafter organized under the laws of the United States of America, or any bank or trust company now or hereafter incorporated or organized under the laws of any state of the United States of America (including the District of Columbia,) or any insurance company, or any corporation all the capital stock of which (except directors' qualifying shares) is owned by one or more such mutual savings banks, mutual savings fund societies, national banking associations, banks, trust companies or insurance companies, engaged in making or investing in loans secured by real estate or lending on the security of real estate, shall not be considered to be transacting or engaging in business in this state, by reason of carrying on in this state any one or more of the following activities:

(a) The acquisition or making of loans, or participation or interests therein, secured by deeds of trust, mortgages or mortgage notes on real property situated in Mississippi pursuant to commitment agreements or arrangements made prior to or following the origination or creation of said loans;

(b) The making directly or through or in participation with national or state banks having banking offices in this state or other Mississippi concerns engaged within this state in the business of making or servicing such loans, of loans secured by such mortgages or mortgage notes, or loans secured by assignments or pledges of obligations secured by such mortgages or mortgage notes;

(c) The ownership, modification, renewals, extensions, transfers or foreclosure of such loans, mortgages or mortgage notes, or the acceptance of substitute or additional obligators thereon;

(d) The maintenance of bank accounts in national or state banks having banking offices within this state in connection with the collection or servicing of such loans, mortgages or mortgage notes;

(e) The maintenance of depository or pledge-holder agreements or arrangements with national or state banks having banking offices within this state in connection with the taking of assignments or pledges of such loans, mortgages or mortgage notes;

(f) The making, collection and servicing of such loans, mortgages or mortgage notes directly or through a Mississippi concern engaged in the business within this state of servicing real estate loans;

(g) The taking of deeds to the mortgaged property for a reasonable period of time either in lieu of foreclosure or for the purpose of transferring title either to the Federal Housing Administration or to the Veterans Administration as the insurer or guarantor;

(h) The acquisition of title to real property for a reasonable period of time under foreclosure sale or from the owner in lieu of foreclosure;

(i) The management, rental, maintenance and sale, or the operating, maintaining, renting or otherwise dealing with, selling or disposing of real property acquired under foreclosure sale or by agreement in lieu thereof;

(j) The maintaining or defending of any actions or suits relating to such loans, deeds of trust, mortgages, mortgage notes, agreements or other arrangements or activities referred to herein or incidental thereto; and

(k) The physical inspection and appraisal of real property in Mississippi as security for mortgage notes or mortgages and negotiations for such loans.

(2) The acquisition or making of loans, or participations or interest therein, which are secured by mortgages or mortgage notes on real property located in this state and the doing of any or all the other acts or things with respect hereto enumerated in this section, by any such bank, trust company, or any other corporation when acting as fiduciary, trustee or agent of any trust, whether testamentary or inter vivos, including foundations and trusts established for the purpose of funding pension, profit-sharing or employee benefit plans, or by an endowed institution, foundation or eleemosynary corporation, or by any corporation chartered under the laws of another state as a group insurance and annuity association and engaged in the business of insurance, annuities, pensions and retirement plans for any group of persons, educational institutions and others, or by any corporation all the capital stock of which (except directors' qualifying shares) is owned by one or more of the entities referred to above, shall likewise not be considered to be transacting or engaging in business in this state; and any such corporation, when so acting as fiduciary, trustee or agent, and any such trust, endowed institution, foundation, eleemosynary corporation or group insurance and annuity association shall be entitled to all the rights, privileges and exceptions set forth in this section.

(3) Nothing in this section shall be construed as limiting the benefits and application of this act to loans insured or guaranteed by the Federal Housing Administration, the Veterans Administration, or any other governmental agency or department, and the benefits of this section shall extend to and include, all loans or participations or interests therein, secured by mortgages or mortgage notes on real property situated in Mississippi, whether or not insured or guaranteed.

(4) No such corporation, institution or entity coming under the provisions of this section, and confining its business operations in Mississippi within the limits herein provided, shall be required to qualify to do business in this state by filing its charter in the Office of the Secretary of State or to pay any tax or fee required to be paid by corporations under any law of this state. However, such exemption shall not include: (a) Ad valorem taxes assessed against any real or personal property which such corporation, institution or entity may own in the State of Mississippi; (b) Mississippi income, franchise and privilege tax which may result from the sale, ownership or control after acquisition of such property by foreclosure, or acquisition in lieu of foreclosure, either by virtue of the value of the specific piece of property so foreclosed or to which title is taken in lieu of foreclosure, or by virtue of the rental or other income realized from said property.

(5) Any bank, trust company, mutual savings bank, pension fund, mutual savings fund society, mutual banking association, insurance company or any other type of organization defined in this section and investing funds in Mississippi may sue or be sued within this state in relation to such mortgages or deeds of trust on real properties, securities or debts and service of process may be performed by service upon any custodian or agent appointed within the state. If no such custodian or agent has been appointed, the Secretary of State shall be and he is hereby appointed and shall remain as the duly authorized agent of such organization upon whom such service of process may be had. In cases where such organization is sued, the venue of such action shall be in the county of the residence of the plaintiffs, or any of them, except where land is involved, in which case, venue shall be in the county in which the land, or any part of it, is located.

The Secretary of State, upon the receipt of process by him on such organization, shall forthwith forward notice of the same by registered mail with return receipt requested to the post office address of such nonresident corporation, mutual savings bank or association and shall make a notation of said fact upon his process record to such effect.

(6) Nothing in this section shall be construed to permit any corporation to do business in violation of the Small Loan Law of the State of Mississippi nor of the laws of Mississippi governing the organization and operation of building and loan associations or societies, or savings and loan associations or societies, nor to limit the authority of corporations authorized to do unlimited business under the general laws of Mississippi, or to qualify to be so authorized.

SECTION 17. Section 81-5-43, Mississippi Code of 1972, is brought forward as follows:

81-5-43. (1) Any out-of-state banking corporation, or banking association, or out-of-state trust corporation, or association, which has its principal office in another state, authorized to act as executor or administrator of estates of decedents or trustees under wills and voluntary trust agreements, and as guardian of minors or incompetent persons, in the state where it has its principal office, may apply and act in such capacities in this state in ancillary or original proceedings, if similar domestic corporations or associations having their principal office in this state, which are authorized in this state to so act, are permitted to act in like capacity with no greater responsibilities or requirements in the state where such out-of-state corporation or association has its principal office.

(2) No such corporation or association shall act in any such capacities until it shall have appointed in writing the Secretary of State of Mississippi, and his successor, as its service agent, upon whom all process in any suit or proceeding against it may be served, and in such writing shall agree that any process against it which shall be served upon such Secretary of State shall be of the same legal force and validity as if served on such corporation or association. Such appointment shall continue so long as any liability shall remain outstanding against the corporation or banking association pertaining to any such matters.

(3) The court having jurisdiction shall require such corporation or association to give bond for the performance of such trust, unless otherwise provided in the trust agreement or will, in which case the provisions of the statutes in such cases made and provided shall apply. However, no such corporation or association shall be required to give any bond for the performance of such trust where such corporation or association is not required to give bond for the performance of such trust under or by virtue of the laws of the state in which such corporation or association has its principal office.

(4) This section shall not prevent out-of-state banking corporations or banking associations or out-of-state trust corporations or associations from qualifying and acting in a fiduciary capacity in the State of Mississippi under wills or trust agreements heretofore executed, designating such out-of-state corporation or association as a fiduciary thereunder, nor shall this section prevent any such out-of-state corporation or association that has heretofore qualified as a fiduciary in the State of Mississippi from continuing to serve as a fiduciary in matters in which they have heretofore qualified in this state. This section shall not apply to trust agreements executed for the purpose of securing loans or guaranties thereof.

(5) For the purposes of this section, "out-of-state" means having the charter of incorporation issued by a state other than the State of Mississippi, or having its main office in a state other than the State of Mississippi; provided, however, this section shall not apply to an out-of-state national or state bank or out-of-state federal or state thrift which maintains a branch in Mississippi.

SECTION 18. Section 81-5-49, Mississippi Code of 1972, is brought forward as follows:

81-5-49. No person shall be permitted to be a director in more than one (1) bank serving the same incorporated town or city doing business in this state. Any person holding a directorship in violation of this section shall be guilty of a misdemeanor, and upon conviction shall be fined not more than One Hundred Dollars ($100.00) and be ineligible to hold a directorship in any state bank within two (2) years therefrom. This section shall not apply to savings banks and trust companies operated in connection with commercial banks doing business in the same building.

SECTION 19. Section 81-5-79, Mississippi Code of 1972, is brought forward as follows:

81-5-79. Any bank or trust company heretofore or hereafter organized under any general or special law of this state and doing a banking business in this state and any national bank doing business in this state shall have power, in addition to such other powers as it may have, to make loans to any borrower or debtor in an amount not exceeding Five Thousand Dollars ($5,000.00) to be repaid in monthly installments and may charge interest thereon at not exceeding twelve percent (12%) per annum for the entire period of the loan, and aggregate the principal and interest for the entire period of the loan and divide same into monthly installments, and may take security therefor as for other loans.

A charge of Ten Dollars ($10.00) in lieu of interest may be made on any loan payable in a single payment, and a charge of Fifteen Dollars ($15.00) in lieu of interest may be made on any loan payable in monthly installments.

No further interest or discount or service charge, or other charge by way of compensation for the use of such money, shall be made directly or indirectly on any such loan or discount by any such bank, trust company or national bank, made under the provisions of this section, in addition to the charges herein expressly provided for.

However, this section shall in no way repeal any of the other present usury statutes.

SECTION 20. Section 81-5-91, Mississippi Code of 1972, is brought forward as follows:

81-5-91. Each state bank shall forthwith qualify for and secure a place on the "Federal Reserve Par List," and shall thereupon pay at par all checks (other than special collection items) drawn on said bank when presented by or directly through the Federal Reserve system, any provision contained below in this section to the contrary notwithstanding.

The established practice on the part of the banks of this state to charge a service fee (commonly called "exchange") for collecting and remitting, by exchange or otherwise, the proceeds of checks, drafts, bills, etc. (commonly known among banks as "cash items"), is hereby authorized, and said banks, both state and national, may continue to make such charge as fixed by custom when such "cash items" are presented other than by or directly through the Federal Reserve system to the payor bank for payment. The amount of such charge is hereby fixed at not more than one-tenth (1/10) of one percent (1%) of the total amount of such "cash items" so presented and paid at any one time and not less than Ten Cents (104) on any one such transaction. However, no such charge shall be made on checks or drafts given or drawn in settlement of obligations due the State of Mississippi, or any subdivision thereof, or of the United States. And no such charge can be made by banks for the collection of checks deposited with said banks, where the check is drawn on any other bank in the same municipality, city, town or village. Furthermore, nothing in this paragraph shall be deemed to be mandatory upon the bank to charge exchange on checks or drafts payable to a person in this state, but it shall be optional with such banks whether they shall charge exchange on checks or drafts payable to a person within this state, and drawn on a bank, trust company or person within or without this state. No officer in this state shall protest for nonpayment any "cash item," when such nonpayment is solely on account of the failure or refusal to pay exchange; and there shall be no right of action, either in law or equity, against any bank in this state for the refusal to pay any cash item, when such refusal is based on the ground of the nonpayment of exchange.

SECTION 21. Section 91-13-1, Mississippi Code of 1972, is brought forward as follows:

91-13-1. All trustees, guardians, and other fiduciaries in this state, unless prohibited by the will, deed, or trust instrument of the testator or other person establishing the trust, agency, or fiduciary relationship, or unless by any such instrument another mode of investment is prescribed, may, in addition to methods of investment now authorized by law, invest all funds held in trust or for investment as provided in this chapter.

SECTION 22. Section 91-13-3, Mississippi Code of 1972, is brought forward as follows:

91-13-3. In acquiring, investing, reinvesting, exchanging, retaining, selling, and managing property held in fiduciary capacity, the fiduciary shall exercise the judgment and care under the circumstances then prevailing which men of prudence, discretion, and intelligence exercise in the management of their own affairs, not in regard to speculation, but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital.

Within the limitations of the foregoing standard, a fiduciary is authorized to acquire and retain every kind of property, real, personal, or mixed, and every kind of investment, specifically including, but not by way of limitation, shares or interests in common trust funds, securities of any open-end or closed-end management type investment company or investment trust registered under the Federal Investment Company Act of 1940, as from time to time amended and, in addition, bonds, preferred stocks, or common stocks listed on a national securities exchange registered with the securities and exchange commission, which men of prudence, discretion, and intelligence acquire or retain for their own account. Within the limitations of the foregoing standard, a fiduciary may retain property properly acquired, without limitation as to time and without regard to its suitability for original purchase.

SECTION 23. Section 91-13-5, Mississippi Code of 1972, is brought forward as follows:

91-13-5. Whenever the express terms or limitations set forth in any will, agreement, court order, or other instrument use the terms "legal investment" or "authorized investment" or words of similar import, such words shall be conclusively presumed to mean any investment authorized or permitted by Section 91-13-3.

SECTION 24. Section 91-13-6, Mississippi Code of 1972, is brought forward as follows:

91-13-6. All trustees, guardians, administrators, executors and other fiduciaries may, without court order, if not prohibited by the instrument, judgment, decree or order establishing the fiduciary relationship, invest or deposit funds held in a fiduciary capacity in time certificates of deposit, savings accounts or other interest-bearing accounts of (a) any state or national bank (including itself, if such fiduciary be a bank) whose main office is located in the state and the deposits of which are insured by the Federal Deposit Insurance Corporation, or (b) any state or federal savings and loan association (including itself, if such fiduciary be a savings and loan association) whose main office is located in the state and the deposits of which are insured by the Federal Savings and Loan Insurance Corporation.

SECTION 25. Section 91-13-7, Mississippi Code of 1972, is brought forward as follows:

91-13-7. Nothing contained in this chapter shall be construed to limit the power of a court of competent jurisdiction to permit a fiduciary to take any action authorized, or to restrain a fiduciary from taking any action prohibited by a decree of such court, notwithstanding the permissions or restrictions contained in any written instrument under which such fiduciary is acting.

SECTION 26. Section 91-13-8, Mississippi Code of 1972, is brought forward as follows:

91-13-8. All trustees, guardians, administrators, executors and other fiduciaries, whenever a governing instrument or order directs, requires, authorizes or permits investment in direct obligations of the United States of America, may invest in such obligations either directly or in the form of securities of, or other interests in, any open-end or closed-end management type investment company or investment trust registered under the provisions of 15 USCS Section 80(a)-1 et seq., provided that the portfolio of such investment company or investment trust is limited to direct obligations of the United States of America and to repurchase agreements fully collateralized by direct obligations of the United States of America, and that such investment company or investment trust takes delivery of the collateral for any repurchase agreement, either directly or through an authorized custodian. This section shall not be construed to apply to the investment of any public funds; provided, however, that this section shall be construed to apply to the investment of public funds deposited with a bank trustee acting in a fiduciary capacity in connection with the sale and redemption of bonds, notes and other certificates of indebtedness, notwithstanding Section 31-19-5, Mississippi Code of 1972.

SECTION 27. Section 91-13-9, Mississippi Code of 1972, is brought forward as follows:

91-13-9. Fiduciaries acting under authority heretofore or hereafter granted shall be subject to the provisions of this chapter.

The powers granted by this chapter to trustees, guardians, and other fiduciaries shall be in addition to the powers existing by virtue of other laws heretofore enacted authorizing investments by fiduciaries.

SECTION 28. Section 91-13-11, Mississippi Code of 1972, is brought forward as follows:

91-13-11. All bonds and other obligations issued by the Tennessee Valley Authority under the provisions of the Tennessee Valley Authority Act of 1933, as heretofore or hereafter amended, shall be legal investments for trustees and other fiduciaries, for the Public Employees' Retirement System of Mississippi, and for banks, savings banks, trust companies, building and loan associations, and insurance companies organized under the laws of the State of Mississippi. Such bonds and obligations shall be legal securities which may be deposited with and shall be received by all public officers and bodies of this state and all municipalities and political subdivisions for the purpose of securing the deposit of public funds.

SECTION 29. This act shall take effect and be in force from and after July 1, 1998.