N.Y. Comp. Codes R. & Regs. tit. 3 § 105.3

Current through Register Vol. 46, No. 45, November 2, 2024

Section 105.3 - Exhibits and documents required

(a) Application for merger or acquisition of assets

(1) Draft copies of each of the following documents should be submitted to the Commercial Banks Division 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.

(2) 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 601-a

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.

(b) Application by bank holding companies for approval to vote the stock of a bank subsidiary (voting permit application)

(1) 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.

(2) 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.

(3) 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.

(c) Application for approval of the formation of a bank holding company

(1) 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.

(2) 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.

(3) 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.

(d) Application for the expansion of an existing bank holding company

(1) 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."

(2) 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.

(3) 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.

(e) Other exhibits and documents

(1) [FN*]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)

(2) *Copies of the income and expense reports of each party (as reported to the supervisory authorities) for each of the three preceding calendar years.

(3) A list of all stockholders who own more than 5% of the stock of each party.

(4) 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.

(5) 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.

(6) Copies of any agreements, in addition to the plan of merger, relating to the merger or acquisition.

(7) Copies of all approvals related to this application obtained pursuant to Federal law and regulations.

(8) 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.

[FN*] 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.

N.Y. Comp. Codes R. & Regs. Tit. 3 § 105.3