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2000 - Rules and Regulations
Subpart E—Change in Bank Control
§ 303.80 Scope.
This subpart sets forth the procedures for submitting a notice to
acquire control of an insured state nonmember bank or a parent company
of an insured state nonmember bank pursuant to the Change in Bank
Control Act of 1978, section 7(j) of the FDI Act (12 U.S.C. 1817(j)).
[Codified to 12 C.F.R. § 303.80]
[Section 303.80 amended at 68 Fed. Reg. 50459, August 21, 2003,
effective September 22, 2003]
§ 303.81 Definitions.
For purposes of this subpart:
(a) Acquisition includes a purchase, assignment,
transfer, pledge or other disposition of voting shares, or an increase
in percentage ownership resulting from a redemption of voting shares of
an insured state nonmember bank or a parent company.
(b) Acting in concert means knowing participation in a
joint activity or parallel action towards a common goal of acquiring
control of an insured state nonmember bank or a parent company, whether
or not pursuant to an express agreement.
(c) Control means the power, directly or indirectly, to
direct the management or policies of an insured bank or a parent
company or to vote 25 percent or more of any class of voting shares of
an insured bank or a parent company.
(d) Parent Company means any company that controls,
directly or indirectly, an insured state nonmember bank.
(e) Person means an individual, corporation,
partnership, trust, association, joint venture, pool, syndicate, sole
proprietorship, unincorporated organization, and any other form of
entity; and a voting trust, voting agreement, and any group of persons
acting in concert.
[Codified to 12 C.F.R. § 303.81]
[Section 303.81 revised at 68 Fed. Reg. 50459, August 21, 2003,
effective September 22, 2003]
{{8-29-03 p.2062}}
§ 303.82 Transactions requiring prior notice.
(a) Prior notice requirement. Any person acting directly
or indirectly, or through or in concert with one or more persons, shall
give the FDIC 60 days prior written notice, as specified in § 303.84,
before acquiring control of an insured state nonmember bank or any
parent company, unless the acquisition is exempt under § 303.83.
(b) Acquisitions requiring prior notice--(1)
Acquisition of control. The acquisition of control, unless
exempted, requires prior notice to the FDIC.
(2) Rebuttable presumption of control. The FDIC
presumes that an acquisition of voting shares of an insured state
nonmember bank or a parent company constitutes the acquisition of the
power to direct the management or policies of an insured bank or a
parent company requiring prior notice to the FDIC, if, immediately
after the transaction, the acquiring person (or persons acting in
concert) will own, control, or hold with power to vote 10 percent or
more of any class of voting shares of the institution, and if:
(i) The institution has registered shares under section 12 of the
Securities Exchange Act of 1934 (15
U.S.C. 78l); or
(ii) No other person will own, control or hold the power to vote
a greater percentage of that class of voting shares immediately after
the transaction. If two or more persons, not acting in concert, each
propose to acquire simultaneously equal percentages of 10 percent or
more of a class of voting shares of an insured state nonmember bank or
a parent company, each such person shall file prior notice with the
FDIC.
(c) Acquisition of loans in default. The FDIC presumes
an acquisition of a loan in default that is secured by voting shares of
an insured state nonmember bank or a parent company to be an
acquisition of the underlying shares for purposes of this section.
(d) Other transactions. Acquisitions other than those
set forth in paragraph (b)(2) of this section resulting in a person's
control of less than 25 percent of a class of voting shares of an
insured state nonmember bank or a parent company are not deemed by the
FDIC to constitute control for purposes of the Change in Bank Control
Act.
(e) Rebuttal of presumptions. Prior notice to the FDIC
is not required for any acquisition of voting shares under the
presumption of control set forth in this section, if the FDIC finds
that the acquisition will not result in control. The FDIC will afford
any person seeking to rebut a presumption in this section an
opportunity to present views in writing or, if appropriate, orally
before its designated representatives at an informal meeting.
[Codified to 12 C.F.R. § 303.82]
[Section 303.82 amended at 68 Fed. Reg. 50460, August 21,
2003, effective September 22, 2003]
§ 303.83 Transactions not requiring prior notice.
(a) Exempt transactions. The following transactions do
not require notice to the FDIC under this subpart:
(1) The acquisition of additional voting shares of an insured state
nonmember bank or a parent company by a person who:
(i) Held the power to vote 25 percent or more of any class of
voting shares of the institution continuously since the later of March
9, 1979, or the date that the institution commenced business as an
insured state nonmember bank or a parent company; or
(ii) Is presumed, under § 303.82(b)(2), to have controlled the
institution continuously since March 9, 1979, if the aggregate amount
of voting shares held does not exceed 25 percent or more of any class
of voting shares of the institution or, in other cases, where the FDIC
determines that the person has controlled the institution continuously
since March 9, 1979;
(2) The acquisition of additional shares of a class of voting
shares of an insured state nonmember bank or a parent company by any
person (or persons acting in concert) who has lawfully acquired and
maintained control of the institution (for purposes of § 303.82)
after complying with the procedures of the Change in Bank Control Act
to acquire voting shares of the institution under this subpart;
(3) Acquisitions of voting shares subject to approval under
section 3 of the Bank Holding Company Act (12 U.S.C. 1842(a)), section
18(c) of the FDI Act (12 U.S.C. 1828(c)), or section 10 of the Home
Owners' Loan Act (12 U.S.C. 1467a);
(4) Transactions exempt under the Bank Holding Company Act:
foreclosures by
{{8-29-03 p.2063}}institutional lenders,
fiduciary acquisitions by banks, and increases of majority holdings by
bank holding companies described in sections 2(a)(5), 3(a)(A), or
3(a)(B) respectively of the Bank Holding Company Act
(12 U.S.C. 1841(a)(5),
1842(a)(A), and 1842(a)(B));
(5) A customary one-time proxy solicitation;
(6) The receipt of voting shares of an insured state nonmember
bank or a parent company through a pro rata stock dividend;
(7) The acquisition of voting shares in a foreign bank, which has
an insured branch or branches in the United States. (This exemption
does not extend to the reports andinformation required under paragraphs
9, 10, and 12 of the Change in Bank Control Act of 1978
(12 U.S.C. 1817(j)(9), (10),
and (12)) and;
(8) The acquisition of voting shares of a depository institution
holding company that either the Board of Governors of the Federal
Reserve System or the Office of Thrift Supervision reviews pursuant to
the Change in Bank Control Act (12 U.S.C. 1817(j)).
(b) Prior notice exemption. (1) The following
acquisitions of voting shares of an insured state nonmember bank or a
parent company, which otherwise would require prior notice under this
subpart, are not subject to the prior notice requirements if the
acquiring person notifies the appropriate FDIC office within 90
calendar days after the acquisition and provides any relevant
information requested by the FDIC:
(i) The acquisition of voting shares through inheritance;
(ii) The acquisition of voting shares as a bona fide gift; or
(iii) The acquisition of voting shares in satisfaction of a debt
previously contracted in good faith, except that the acquirer of a
defaulted loan secured by a controlling amount of a state nonmember
bank's voting securities or a parent company's voting securities
shall file a notice before the loan is acquired.
(2) The following acquisitions of voting shares of an insured
state nonmember bank or a parent company, which otherwise would require
prior notice under this subpart, are not subject to the prior notice
requirements if the acquiring person notifies the appropriate FDIC
office within 90 calendar days after receiving notice of the
acquisition and provides any relevant information requested by the
FDIC.
(i) A percentage increase in ownership of voting shares resulting
from a redemption of voting shares by the issuing bank or a parent
company; or
(ii) The sale of shares by any shareholder that is not within the
control of a person resulting in that person becoming the largest
shareholder.
(3) Nothing in paragraph (b)(1) of this section limits the
authority of the FDIC to disapprove a notice pursuant to § 303.85(c).
[Codified to 12 C.F.R. § 303.83]
[Section 303.83 amended at 68 Fed. Reg. 50460, August 21, 2003,
effective September 22,
2003]
§ 303.84 Filing procedures.
(a) Filing notice. (1) A notice required under this
subpart shall be filed with the appropriate FDIC office and shall
contain all the information required by paragraph 6 of the Change in
Bank Control Act, section 7(j) of the FDI Act,
(12 U.S.C. 1817(j)(6)), or
prescribed in the designated interagency form which may be obtained
from any FDIC regional director.
(2) The FDIC may waive any of the informational requirements of
the notice if the FDIC determines that it is in the public interest.
(3) A notificant shall notify the appropriate FDIC office
immediately of any material changes in a notice submitted to the FDIC,
including changes in financial or other conditions.
(4) When the acquiring person is an individual, or group of
individuals acting in concert, the requirement to provide personal
financial data may be satisfied by a current statement of assets and
liabilities and an income summary, as required in the designated
interagency form, together with a statement of any material changes
since the date of the statement or summary. The FDIC may require
additional information if appropriate.
(b) Other laws. Nothing in this subpart shall affect any
obligation which the acquiring person(s) may have to comply with the
federal securities laws or other laws.
[Codified to 12 C.F.R. § 303.84]
{{8-29-03 p.2064}}
§ 303.85 Processing.
(a) Acceptance of notice, additional information. The
FDIC shall notify the person or persons submitting a notice under this
subpart in writing of the date the notice is accepted as substantially
complete. The FDIC may request additional information at any time.
(b) Commencement of the 60-day notice period: consummation of
acquisition. (1) The 60-day notice period specified in § 303.82
shall commerce on the day after the date of acceptance of a
substantially complete notice by the appropriate regional director. The
notificant(s) may consummate the proposed acquisition after the
expiration of the 60-day notice period, unless the FDIC disapproves the
proposed acquisition or extends the notice period.
(2) The notificant(s) may consummate the proposed transaction
before the expiration of the 60-day period if the FDIC notifies the
notificant(s) in writing of its intention not to disapprove the
acquisition.
(c) Disapproval of acquisition of control.
Subpart D of 12 CFR part
308 sets forth the rules of practice and procedure for a notice
of disapproval.
[Codified to 12 C.F.R. § 303.85]
[Section 303.85 amended at 68 Fed. Reg. 50460, August 21, 2003,
effective September 22, 2003]
§ 303.86 Public notice requirements.
(a) Publication--(1) Newspaper announcement. Any
person(s) filing a notice under this subpart shall publish an
announcement soliciting public comment on the proposed acquisition. The
announcement shall be published in a newspaper of general circulation
in the community in which the home office of the state nonmember bank
to be acquired is located. The announcement shall be published as close
as is practicable to the date the notice is filed with the appropriate
FDIC office, but in no event more than 10 calendar days before or after
the filing date.
(2) Contents of newspaper announcement. The newspaper
announcement shall conform to the public notice requirements set forth
in § 303.7.
(b) Delay of publication. The FDIC may permit delay in
the publication required by this section if the FDIC determines, for
good cause, that it is in the public interest to grant such a delay.
Requests for delay of publication may be submitted to the appropriate
FDIC office.
(c) Shortening or waiving public comment period, waiving
publications; acting before close of public comment period. The
FDIC may shorten the public comment period to a period of not less than
10 days, or waive the public comment or newspaper publication
requirements of paragraph (a) of this section, or act on a notice
before the expiration of a public comment period, it if determines in
writing either that an emergency exists or that disclosure of the
notice, solicitation of public comment, or delay until expiration of
the public comment period would seriously threaten the safety and
soundness of the bank to be acquired.
(d) Consideration of public comments. In acting upon a
notice filed under this subpart, the FDIC shall consider all public
comments received in writing within 20 days following the required
newspaper publication or, if the FDIC has shortened the public comment
period pursuant to paragraph (c) of this section, within such shorter
period.
(e) Publication if filing is subsequent to acquisition of
control. (1) Whenever a notice of a proposed acquisition of
control is not filed in accordance with the Change in Bank Control Act
and these regulations, the acquiring person(s) shall, within 10 days of
being so directed by the FDIC, publish an announcement of the
acquisition of control in a newspaper of general circulation in the
community in which the home office of the state nonmember bank to be
acquired is located.
(2) The newspaper announcement shall contain the name(s) of the
acquiror(s), the name of the depository institution involved, and the
date of the acquisition of the stock. The announcement shall also
contain a statement indicating that the FDIC is currently reviewing the
acquisition of control. The announcement also shall state that any
person wishing to comment on the change in control may do so by
submitting written comments
{{8-29-03 p.2064.01}}to the appropriate regional
director of the FDIC (give address of appropriate FDIC office) within
20 days following the required newspaper publication.
[Codified to 12 C.F.R. § 303.86]
[Section 303.86 amended at 68 Fed. Reg. 50461, August 21, 2003,
effective September 22, 2003]
§§ 303.87--303.99 [Reserved]
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