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2000 - Rules and Regulations
Subpart DMerger Transactions
§ 303.60 Scope.
This subpart sets forth the application requirements and procedures
for transactions subject to FDIC approval under the Bank Merger Act,
section 18(c) of the FDI Act (12
U.S.C. 1828(c)). Additional guidance is contained in the FDIC
"Statement
of Policy on Bank Merger Transactions" (1 FDIC Law,
Regulations, Related Acts 5145; see
§ 309.4(a) and (b) of
this chapter for availability).
[Codified to 12 C.F.R. § 303.60]
§ 303.61 Definitions.
For purposes of this subpart:
(a) Merger transaction includes any transaction:
(1) In which an insured depository institution merges or
consolidates with any other insured depository institution or, either
directly or indirectly, acquires the assets of, or assumes liability to
pay any deposits made in, any other insured depository institution;
or
{{6-30-08 p.2058.01}}
(2) In which an insured depository institution merges or
consolidates with any noninsured bank or institution or assumes
liability to pay any deposits made in, or similar liabilities of, any
noninsured bank or institution, or in which an insured depository
institution transfers assets to any noninsured bank or institution in
consideration of the assumption of any portion of the deposits made in
the insured depository institution.
(b) Corporate reorganization means a merger transaction
that involves solely an insured depository institution and one or more
of its affiliates.
(c) Interim merger transaction means a merger
transaction (other than a purchase and assumption transaction) between
an operating depository institution and a newly-formed depository
institution or corporation that will not operate independently and that
exists solely for the purpose of facilitating a corporate
reorganization.
{{10-31-08 p.2059}}
(d) Resulting institution refers to the acquiring,
assuming or resulting institution in a merger transaction.
[Codified to 12 C.F.R. § 303.61]
[Section 303.61 amended at 71 Fed. Reg. 20526, April 21, 2006; 73
Fed. Reg. 2145, January 14, 2008; 73 Fed. Reg. 55434, September 25,
2008]
§ 303.62 Transactions requiring prior approval.
(a) Merger transactions. The following merger
transactions require the prior written approval of the FDIC under this
subpart:
(1) Any merger transaction, including any corporate
reorganization, interim merger transaction, or optional conversion, in
which the resulting institution is to be an insured state nonmember
bank; and
(2) Any merger transaction, including any corporate
reorganization or interim merger transaction, that involves an
uninsured bank or institution.
(b) Related provisions. Transactions covered by this
subpart also may be subject to other provisions or application
requirements, including the following:
(1) Interstate merger transactions. Merger
transactions between insured banks that are chartered in different
states are subject to the provisions of section 44 of the FDI Act
(12 U.S.C. 1831u). In the
case of a merger transaction that consists of the acquisition by an out
of state bank of a branch without acquisition of the bank, the branch
is treated for section 44 purposes as a bank whose home state is the
state in which the branch is located.
(2) Deposit insurance. An application for deposit
insurance will be required in connection with a merger transaction
between a state-chartered interim institution and an insured depository
institution if the related merger application is being acted upon by a
federal banking agency other than the FDIC. If the FDIC is the federal
banking agency responsible for acting on the related merger
application, a separate application for deposit insurance is not
necessary. Procedures for applying for deposit insurance are set forth
in subpart B of this part. An application for deposit insurance will
not be required in connection with a merger transaction (other than a
purchase and assumption transaction) of a federally-chartered interim
institution and an insured institution, even if the resulting
institution is to operate under the charter of the federal interim
institution.
(3) Branch closings. Branch closings in connection
with a merger transaction are subject to the notice requirements of
section 42 of the FDI Act (12 U.S.C. 1831r--1), including requirements
for notice to customers. These requirements are addressed in the
"Interagency
Policy Statement Concerning Branch Closings Notices and
Policies" (1 FDIC Law, Regulations, Related Acts (FDIC)
5391; see § 309.4(a) and (b) of this chapter for availability.)
(4) Undercapitalized institutions. Applications for a
merger transaction by applicants subject to section 38 of the FDI Act
(12 U.S.C. 1831o should also provide the information
required by § 303.204.
Applications pursuant to sections 38 and 18(c) of the FDI Act
(12 U.S.C. 1831o
and 1828(c)) may be filed
concurrently or as a single application.
(5) Certification of assumption of deposit liability.
An insured depository institution assuming deposit liabilities of
another insured institution must provide certification of assumption of
deposit liability to the FDIC in accordance with
12 CFR part 307.
[Codified to 12 C.F.R. § 303.62]
[Section 303.62 amended at 71 Fed. Reg. 20526, April 21,
2006]
§ 303.63 Filing procedures.
(a) General. Applications required under this subpart
shall be filed with the appropriate FDIC office. The appropriate forms
and instructions may be obtained upon request from any FDIC regional
director.
(b) Merger transactions. Applications for approval of
merger transactions shall be accompanied by copies of all agreements or
proposed agreements relating to the merger transaction and any other
information requested by the FDIC.
(c) Interim merger transactions. Applications for
approval of interim merger transactions and any related deposit
insurance applications shall be made by filing the forms and
other
{{10-31-08 p.2060}}documents required by
paragraphs (a) and (b) of this section and such other information as
may be required by the FDIC for consideration of the request for
deposit insurance.
[Codified to 12 C.F.R. § 303.63]
[Section 303.63 amended at 73 Fed. Reg. 2145, January 14, 2008; 73
Fed. Reg. 55434, September 25, 2008]
§ 303.64 Processing.
(a) Expedited processing for eligible depository
institutions--(1) General. An application filed under
this subpart by an eligible depository institution as defined in
§ 303.2(r) and which meets the additional criteria in paragraph
(a)(4) of this section will be acknowledged by the FDIC in writing and
will receive expedited processing, unless the applicant is notified in
writing to the contrary and provided with the basis for that decision.
The FDIC may remove an application from expedited processing for any of
the reasons set forth in
§ 303.11(c)(2).
(2) Under expedited processing, the FDIC will take action on an
application by the date that is the latest of:
(i) 45 days after the date of the FDIC's receipt of a
substantially complete merger application; or
(ii) 10 days after the date of the last notice publication
required under § 303.65 of this subpart; or
(iii) 5 days after receipt of the Attorney General's report on
the competitive factors involved in the proposed transaction; or
(iv) For an interstate merger transaction subject to the
provisions of section 44 of the FDI Act
(12 U.S.C. 1831u), 5 days
after the FDIC receives confirmation from the host state (as defined in
§ 303.41(e)) that the applicant has both complied with the filing
requirements of the host state and submitted a copy of the FDIC merger
application to the host state's bank supervisor.
(3) Notwithstanding paragraph (a)(1) of this section, if the FDIC
does not act within the expedited processing period, it does not
constitute an automatic or default approval.
(4) Criteria. The FDIC will process an application
using expedited procedures if:
(i) Immediately following the merger transaction, the resulting
institution will be "well-capitalized" pursuant to subpart B of
part 325 of this chapter (12 CFR part
325); and
(ii)(A) All parties to the merger transaction are eligible
depository institutions as defined in § 303.2(r); or
(B) The acquiring party is an eligible depository institution as
defined in § 303.2(r) and the amount of the total assets to be
transferred does not exceed an amount equal to 10 percent of the
acquiring institution's total assets as reported in its report of
condition for the quarter immediately preceding the filing of the
merger application.
(b) Standard processing. For those applications not
processed pursuant to the expedited procedures, the FDIC will provide
the applicant with written notification of the final action taken by
the FDIC on the application when the decision is rendered.
[Codified to 12 C.F.R. § 303.64]
§ 303.65 Public notice requirements.
(a) General. Except as provided in paragraph (b) of this
section, an applicant for approval of a merger transaction must publish
notice of the proposed transaction on at least three occasions at
approximately equal intervals in a newspaper of general circulation in
the community or communities where the main offices of the merging
institutions are located or, if there is no such newspaper in the
community, then in the newspaper of general circulation published
nearest thereto.
(1) First publication. The first publication of the
notice should be as close as practicable to the date on which the
application is filed with the FDIC, but no more than 5 days prior to
the filing date.
(2) Last publication. The last publication of the
notice shall be on the 25th day after the first publication or, if the
newspaper does not publish on the 25th day, on the newspaper's
publication date that is closest to the 25th day.
(b) Exceptions--(1) Emergency requiring
expeditious action. If the FDIC determines that an emergency
exists requiring expeditious action, notice shall be published twice.
The
{{8-29-03 p.2061}}first notice shall be published
as soon as possible after the FDIC notifies the applicant of such
determination. The second notice shall be published on the 7th day
after the first publication or, if the newspaper does not publish on
the 7th day, on the newspaper's publication date that is closest to
the 7th day.
(2) Probable failure. If the FDIC determines that it
must act immediately to prevent the probable failure of one of the
institutions involved in a proposed merger transaction, publication is
not required.
(c) Content of notice--(1) General. The
notice shall conform to the public notice requirements set forth in
§ 303.7.
(2) Branches. If it is contemplated that the resulting
institution will operate offices of the other institution(s) as
branches, the following statement shall be included in the notice
required in § 303.7(b):
It is contemplated that all offices of the above-named
institutions will continue to be operated (with the exception of
[insert identity and location of each office that will not be
operated]).
(3) Emergency requiring expeditious action. If
the FDIC determines that an emergency exists requiring expeditious
action, the notice shall specify as the closing date of the public
comment period the date that is the 10th day after the date of the
first publication.
(d) Public comments. Comments must be received by the
appropriate FDIC office within 30 days after the first publication of
the notice, unless the comment period has been extended or reopened in
accordance with § 303.9(b)(2). If the FDIC has determined that an
emergency exists requiring expeditious action, comments must be
received by the appropriate FDIC office within 10 days after the first
publication.
[Codified to 12 C.F.R. § 303.65]
§§ 303.66 303.79 [Reserved]
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