Application for the formation/expansion of a holding company; application for a merger, consolidation, or purchase of assets
Please refer to the Department's Application Fee Schedule to determine the proper fee for the application being filed.
Prior consultation with the Department is advised. If you have any questions concerning the application please call (212) 709-1540.
Part I - General Information
- A separate application shall be submitted with respect to each action or transaction for which approval is sought and six copies thereof together with all exhibits shall be submitted to the Superintendent of Financial Services, New York State Department of Financial Services, One State Street, New York, NY 10004). Each application shall be accompanied by a check (please refer to the Department's Application Fee Schedule) if filed pursuant to Banking Law, sections 136, 136-a, 601 or 601-a, or if filed pursuant to Banking Law, section 142 or 143-a, payable to the order of Superintendent of Financial Services of the State of New York. Inquiries concerning the preparation of an application should be addressed to the Department of Financial Services.
- The statutory period for approval or disapproval of an application submitted pursuant to this Procedure shall commence on the date that the Department shall acknowledge to the applicant that the contents of the application and the required documents and exhibits are acceptable in the form submitted.
- The corporate approvals required by the Banking Law and by applicable Federal law with respect to each action or transaction shall be obtained before the application for approval by the Superintendent, as the case may be, is submitted, except that an application by a bank holding company to vote the stock of a banking subsidiary in connection with a merger or an acquisition of assets must receive approval by the Superintendent prior to submission of the merger or acquisition of assets proposal to stockholders.
- The Superintendent reserves the right to require additional information in connection with the application. The applicants may, of course, submit any information in addition to that required which they deem pertinent to the application.
- Unless otherwise indicated, all statistical data required to be submitted in the application (e.g., as to deposits and loans) shall be furnished as of December 31st preceding the date of submission.
- The application may be filed in the form that such application is filed with the appropriate Federal supervisory authority, provided permission to so file has been requested in writing from the [Department] and such permission has been granted; and provided further that any information, documents or exhibits not required by the Federal form but required by this Procedure are included in the application or in a supplement or supplements to the application.
CB § 105.2 -- Information Required In The Application (1
- General information. Set forth the name and address of the applicants; the name and address of the officer to whom all communications from the Department should be addressed; the date or proposed date of submission of any required applications or other documents to the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation or the Comptroller of the Currency; and include a conformed copy of the plan of merger or acquisition of assets or acquisition of capital stock.
- Banking offices. List the name and address of the principal office of each party to the proposed merger or acquisition and of the surviving bank; the branch office locations of each party; the road distance between the nearest offices of each party and the offices, if any, which will be closed if the application is approved.
- Number and volume: List in tabular form the number of accounts and dollar amount of deposits of each party to the transaction, by type of account, as of December 31st for each of the preceding three years.
- Primary and secondary service areas: Indicate the deposits, by number of accounts and dollar amount, which originate in the primary service area and the secondary service area, respectively, of each party. This computation should also be made for any office if the service area thereof is reasonably close to or overlaps any service area of the other party or any of its offices. The term primary service area means the area from which is derived approximately 75 percent of the dollar amount of deposits based on the record addresses of the depositors thereof (2). The term secondary service area means the area contiguous to but outside of the primary service area from which is derived approximately an additional 15 percent of the dollar amount of the deposits based on the record address of the depositors thereof (3).
- Overlap: Indicate the deposits, by number of accounts and dollar amount that each party to the transaction draws from the primary and secondary service areas of the other, separately itemized for demand deposits, for savings and other time deposits, and for total deposits.
- Rates: For each party, describe the rates paid on savings and other time deposits and methods of computation. If any of the rates or the methods of computation differ between the parties, include a statement specifically indicating how the differences will be resolved if the application is approved.
- Service charges: For each party, provide a complete schedule of service charges on special checking accounts and on regular checking accounts for individuals and business firms. If any of these charges differ between the parties, include a statement specifically indicating how the differences will be resolved if the application is approved.
- Breakdown of loans: For each party, list in tabular form for each of the preceding three calendar years the breakdown of all major types of loans outstanding on each December 31st. The breakdown should be by number and dollar amount of loans based on call report classifications (commercial and industrial; real estate; loans to farmers; installment loans to individuals for household, family and other personal expenditures; single payment loans to individuals for household, family and other personal expenditures; etc.).
- Overlap: Indicate the outstanding loans, by number and dollar amount, of each party to borrowers located in the primary and secondary service areas of the other party, separately itemized for each major type of loan (4)
- Rates: For each party, list the typical loan rates charged for comparable types of loans (for example, unsecured small business loans, other types of business loans, direct automobile installment loans, one- and two-family conventional mortgage loans, etc.). The rates should be those at which the preponderance of loans of these types are currently being made by the parties. If these rates differ between the parties, include a statement specifically indicating how the differences will be resolved if the application is approved.
- Loan policies: For each party, indicate the policies with respect to the maximum maturities and maximum loan-value ratios granted to an "average credit risk" for such types of loans as on new and used cars, mortgage loans on one-and two-family new houses, etc. If any of the policies differ between the parties, include a statement specifically indicating how the differences will be resolved if the application is approved.
- Participations: List the loan participations, by number and dollar amount, which each party has originated or participated in during the three preceding calendar years, and the amount of each party's participation. List the participants in each such case.
- Loan limits: For each party, indicate the maximum legal loan limits for secured and for unsecured loans. Indicate the volume of loans (by number and dollar amount) which are currently 75 percent or more of each party's loan limit, as well as any unused credit lines exceeding 75 percent of those loan limits.
- Trust services.
- Breakdown: For each party, indicate the volume of business (measured by number of accounts and, wherever possible, dollar volume on a comparable basis) for each of the personal and corporate trust services provided, including voluntary and court trusts, agency and custody accounts, pension and welfare plans, corporate trusteeships, stock transfer agencies, bond and coupon paying agencies, dividend disbursing agencies, etc.
- Overlap: Indicate the number and dollar volume of trust business, subdivided by major type, obtained from the primary and secondary service areas of the other party.
- Fees: For each party, provide a schedule of fees or charges for trust services. if these differ between the parties, include a statement specifically indicating how the differences will be resolved if the application is approved.
- Service areas-economic characteristics. Describe the economic characteristics of each party's primary and secondary service areas and the population and average income, growth trend during the preceding 10-year period, and current economic outlook thereof.
- Management. List the names, addresses and titles of the principal officers of each party, including the composition of the board of trustees or board of directors and any advisory or similar committee, indicating the number of each class of shares of each party owned of record, segregated as to individual ownership and joint ownership with others. Provide similar information with respect to the proposed management of the surviving bank.
- Management succession problems. If management succession is a problem for any party, indicate specifically what attempts have been made in recent years to recruit management personnel, state how the merger or acquisition is expected to solve the management succession problem, and list the names, ages and salaries of the principal officers of the bank(s) for which management succession is indicated as a problem, together with a brief summary of the educational background and banking experience of each such officer.
- Inducements. State whether any consideration, monetary or otherwise, has been paid, given or offered to any shareholder, director, trustee or officer of any party, or to any other person, as compensation or inducement for assistance in consummating the proposed merger or acquisition, and the details thereof and reasons therefor.
- Reasons for approval. Include a separate statement setting forth in detail the reasons why the applicants believe the application should be approved, including a discussion as to
- whether the proposed merger or acquisition will meet specific needs for banking services in the designated service areas which are not now being met,
- the competitive consequences of the proposed merger or acquisition within the designated service areas, and
- the manner in which the proposed merger or acquisition will otherwise serve the public interest.
CB § 105.3 -- Exhibits And Documents Required
- Application for merger or acquisition of assets
- Draft copies of each of the following documents should be submitted to the Department as soon as practicable after the parties to the proposed merger or acquisition of assets have reached agreement in principle to the proposal:
- the plan of merger or acquisition of assets, together with resolutions of the board of directors of each party to the plan approving its terms and conditions. (Pursuant to Banking Law § 105-6, such plan should stipulate which offices of each merged or selling institution will be continued by the receiving or acquiring bank and should show the officially designated address of each such office.);
- notice of stockholders' meetings, form of proxy, and letter as to compliance with Banking Law § 6009(9) (relating to persons disqualified to act as proxies);
- letter to stockholders describing the proposal, or a proxy statement as may be required by Federal regulation;
- proposed stockholders' resolutions;
- oath of inspectors of stockholders' meetings;
- reports of inspectors of stockholders' meetings;
- certificate of compliance of each party to the plan, as shall be required by Banking Law §§ 136, 136-a, 601, or 601-a;
- Certificate of Amendment of Organization Certificate, if an amendment to the receiving or acquiring bank's charter is to be made.
- After the stockholders of the parties to the plan have acted, the following documents are to be submitted to the Superintendent, together with the application:
- five executed copies of the plan of merger or acquisition, together with one certified copy of the resolution of the board of directors of each party to the plan approving its terms and conditions;
- final copies of: notice of stockholders' meetings; form of proxy; and letter to stockholders or proxy statement;
- letter, signed by a duly authorized officer of each party to the plan, as to compliance with Banking Law § 6009(9) (relating to persons; disqualified to act as proxies);
- letter stating that the appropriate Federal supervisory authority has approved the proxy statement if a proxy statement is required;
- affidavit of each party to the plan that the required notice of stockholders' meeting, form of proxy, and letter to stockholders, or proxy statement, have been duly mailed to each stockholder; the affidavit should state the date or dates of mailing and that the notice, form of proxy, and letter or proxy statement were mailed to each stockholder at his address as it appears on the record of stockholders, or, if he shall have filed with the secretary of the corporation a written request that notices to him be mailed to some other address, then directed to him at such other address;
- affidavit of publication of notice of stockholders' meetings;
- certified copy of the resolution adopted by the stockholders of each party to the plan;
- copy of oath of inspectors of stockholders' meeting from each party to the plan;
- copy of report of inspectors of stockholders' meeting from each party to the plan;
- five executed copies of the certificate of compliance of each party to the plan, as shall be required by Banking Law §136, 136-a, 601 or 601a;
- five executed copies of the Certificate of Amendment of Organization Certificate of the receiving or acquiring bank, effected in accordance with Supervisory Procedure CB 102.
- Application by bank holding companies for approval to vote the stock of a bank subsidiary (voting permit application)
- Each copy of a voting permit application submitted to the Superintendent should be accompanied by a copy of the related proposed plan of merger or acquisition of assets.
- If the voting permit application involves a merger of a national banking association or a State-chartered bank into a State-chartered bank subsidiary, the procedures described in Section 105(3)(a) of this Part "Application for merger or acquisition of assets" should be followed after the Banking Board has approved the voting permit application.
- If the voting permit application involves the merger of a national banking association or a State-chartered bank into a national banking association subsidiary, no documents relative to the merger application are required inasmuch as such application will be submitted to the Comptroller of the Currency for approval after the Banking Board has approved the voting permit application.
- Application for approval of the formation of a bank holding company
- The documents required are the same as described in Section 105(3) of this Part "Application for merger or acquisition of assets" except that: the plan referred to shall be a plan of acquisition of capital stock; and the certificates of compliance, as required, shall be executed pursuant to Banking Law § 143-a.
- In the event one or more of the banks whose capital stock is to be acquired is a national banking association which will be converted to a State-chartered bank, Supervisory Procedure CB 101 should first be followed.
- Pursuant to Banking Law § 144 and Supervisory Procedure CB 118, a newly formed bank holding company shall register as a bank holding company within 180 days after consummation of the acquisition of subsidiary banks.
- Application for the expansion of an existing bank holding company
- In the event the bank holding company proposes to acquire a State-chartered bank, the requirements for presentation of documents are the same as described in Section 105(3)(c) of this Part "Application for approval of the formation of a bank holding company."
- In the event the bank holding company proposes to acquire a national banking association which will be converted to a State-chartered bank, Supervisory Procedure CB 101 should first be followed.
- In the event the bank holding company proposes to acquire the stock of a newly chartered national banking association (so-called "Phantom bank") for the purpose of merging into it an existing national banking association, a copy of the proposed plan of merger submitted to the Comptroller of the Currency should accompany each copy of the voting permit application of the bank holding company to vote the stock of the "phantom bank" in favor of the merger.
- Other exhibits and documents
- The latest statements available as of mid-year and December 31 of the assets and liabilities of each party to the plan of merger or acquisition, as reported to the supervisory authorities. (Call Reports). (5)
- Copies of the income and expense reports of each party (as reported to the supervisory authorities) for each of the three preceding calendar years. 6
- A list of all stockholders who own more than 5% of the stock of each party.
- Maps showing the primary and secondary service areas of each party; the location of the respective offices of each of the parties; and the location, except in the case of a service area wholly within New York City, of every commercial bank, savings bank and savings and loan association office located in or near such primary and secondary service areas. A key to office numbers, scale of miles and compass points should be provided.
- For bank holding companies only, a copy of the company's balance sheet and profit and loss statement certified by independent public accountants for the past three years, together with a balance sheet and profit and loss statement certified by the chief financial officer of the applicant as of the close of the calendar or fiscal quarter immediately preceding date of application.
- Copies of any agreements, in addition to the plan of merger, relating to the merger or acquisition.
- Copies of all approvals related to this application obtained pursuant to Federal law and regulations.
- Opinions of counsel for each party to the merger or acquisition as to compliance of that party with all requirements of Federal and State law in connection with the merger or acquisition as they become available.
CB § 105.4 -- Confidential Information.
Information as to the following items should be furnished on separate pages which can be detached from the rest of the application.
- Any computation of the deposits by number of accounts and dollar amount, according to primary and secondary service areas, for any office of each party to the merger, submitted under Section 105.2(c)(2).
- The typical compensating balance (as a percentage of the amount of the loan) expected to be maintained, the extent to which such maintenance is a requirement of the bank, and the statement specifically indicating how any policy differences between the parties on this subject will be received, submitted under Section 105.2(d)(6).
- Any listing of loan-participations and any listing of loan participants, submitted under Section 105.2(d)(8).
- Any information regarding management succession problems, submitted under Section 105.2(h).
- Estimate of major categories of assets, deposits and capital accounts and of gross income and expenses, and net earnings or loss for each of the first three years of operation of a proposed new bank, submitted under Section 105.3(e).
- The names of individual depositors, borrowers, and beneficiaries of trusts wherever listed.
- Names of banks maintaining balances at a subsidiary bank (due to) wherever listed.
- Any remarks of a derogatory nature or that might otherwise cause harm to a bank or an individual.
- Should the applicant desire to submit any additional information it deems to be of a confidential nature, such information should be properly identified, separately bound, and labeled "Confidential." The Superintendent will determine whether information submitted as confidential will be so regarded, and will advise the applicant of any decision to make public information furnished on a confidential basis. However, it shall be understood that, without prior notice to applicant, the Superintendent may disclose or comment on any of the contents of the application in his opinion or in his recommendation to the Banking Board issued in connection with his decision on the application.
Note: Please also refer to Supervisory Procedure G 108 to determine whether certification of compliance with Section 296-a of the Executive Law is required.
Please also refer to compliance with the Bank Secrecy Act Anti-Money Laundering Programs to determine if Part 115 is applicable to your application.
The Applicant must establish policies and procedures designed to ensure and monitor compliance with the Bank Secrecy Act (BSA) as amended by the USA PATRIOT Act and the anti-money laundering programs of Part 115 of the General Regulations. A compliance program must include, at a minimum, a system of internal controls to assure ongoing compliance, independent testing for compliance to be conducted by bank personnel or by an outside party, the designation of an individual or individuals responsible for coordinating and monitoring day-to-day compliance, and training for appropriate personnel.
1. If applicant is a bank holding company, the information required should be set forth with respect to any of its banking subsidiaries which might reasonably be considered to be in competition with any banking institution which is a party to, or the subject of, the proposed action or transaction.
2. The computation may be based on a fair sampling of accounts.
4. Purchased consumer paper from car, appliance, etc. dealers should be classified by location of dealer; direct consumer loans should be classified by location of consumer.
5. In the case of a proposed new bank, the following should be submitted in lieu of the information requested in items (1) and (2) above: a) Statement as to its proposed capitalization; (b) Estimates of major categories of assets, deposits and capital accounts projected for the new bank for each of its first three years of operations; (c) Estimates of gross income and expenses, by major class and not earnings or loss for each of the first three years of operations.