23-48-315. Issuance and sale of capital notes and other subordinated indebtedness.

23-48-315. Issuance and sale of capital notes and other subordinated indebtedness. (a)(1) With the written consent of the Bank Commissioner, a state bank may, through action of its board of directors and without requiring any action by stockholders, issue and sell its capital notes or other subordinated indebtedness at: (A) Not less than par; or (B) Par, less a customary discount if sold through a broker-dealer registered under section 15 of the Securities Exchange Act of 1934, 15 U.S.C. § 78a et seq., as it existed on January 1, 2017, or exempt from such registration pursuant to the Gramm-Leach-Bliley Act, Pub. L. No. 106-102. (2) The capital notes or other subordinated indebtedness may be sold for cash or, with the written consent and approval of the commissioner, for property. (b)(1) The capital notes or other subordinated indebtedness shall be in such denominations, and the holders thereof shall be entitled to such annual return thereon, as the commissioner may approve. (2) The capital notes or other subordinated indebtedness shall provide that they may be retired at such time or times and in such manner as may be fixed by the board of directors of the state bank but in no event later than twenty (20) years, in the case of capital notes, or thirty (30) years, in the case of other subordinated indebtedness, after the date of their issuance. (3) The aggregate par value of the capital notes or other subordinated indebtedness shall not exceed one-half (½) of the capital base of the issuing state bank, or such lesser proportion of the capital base as may be determined by rule or order of the commissioner. (4)(A) The state bank, in connection with the issue, subscription, or sale of capital notes or other subordinated indebtedness, may confer upon the holder of each capital note or other subordinated indebtedness the right to convert the obligation into shares of the common stock of the state bank on such terms as are set forth in the instrument evidencing the conversion rights. The terms may include any agreements not repugnant to law for the protection of the conversion rights, including without limitation the generality of such authority: (i) Restrictions upon the authorization or issuance of additional shares; (ii) Provisions for the adjustment of the conversion price or ratio; (iii) Provisions concerning rights in the event of reorganization, merger, consolidation, or sale or other disposition of all, or substantially all, of the assets of the state bank; and (iv) Provisions for the reservation of authorized but unissued shares to satisfy the conversion rights. (B) If the shares into which the obligations are convertible would be subject to preemptive rights if issued for cash, the conferring of the conversion rights must be authorized at a stockholders' meeting on a vote of at least a majority of the shares of the issued and outstanding capital stock of the state bank. The vote shall release the preemptive rights to the shares required to satisfy such conversion rights. (c)(1) Capital notes or other subordinated indebtedness shall at the time of their issuance be, and shall at all times thereafter remain, subordinate in rank and subject to the prior payment of all types of deposits of the state bank. (2) The state bank may, for the security and protection of the holders of the capital notes or other subordinated indebtedness, agree upon such restrictions on the distribution or payment of dividends on its capital stock as the board of directors may decide. (d)(1) Capital notes or other subordinated indebtedness and accrued return thereon may be retired at any time, in whole or in part, with the written approval of the commissioner, unless otherwise provided in the capital notes or other subordinated indebtedness, as applicable. (2) In any case in which capital notes or other subordinated indebtedness issued under the provisions of this section are callable in a period less than thirty (30) years after their issuance, the state bank issuing the capital notes or other subordinated indebtedness may, by a provision inserted therein to that effect, reserve the right, from time to time, to extend the time for the retirement or redemption of the capital notes or other subordinated indebtedness. In that event, the state bank issuing the capital notes or subordinated indebtedness may, by vote of a majority of its board of directors, with the consent of the commissioner, make the extension.