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7500 - FRB Regulations


Subpart D—Control and Divestiture Proceedings

§ 225.31  Control proceedings.

(a)  Preliminary determination of control.   (1) The Board may issue a preliminary determination of control under the procedures set forth in this section in any case in which:

(i)  Any of the presumptions of control set forth in paragraph (d) of this section is present; or

(ii)  It otherwise appears that a company has the power to exercise a controlling influence over the management or policies of a bank or other company.

(2)  If the Board makes a preliminary determination of control under this section, the Board shall send notice to the controlling company containing a statement of the facts upon which the preliminary determination is based.

(b)  Response to preliminary determination of control.  Within 30 calendar days of issuance by the Board of a preliminary determination of control or such longer period permitted by the Board, the company against whom the determination has been made shall:

(1)  Submit for the Board's approval a specific plan for the prompt termination of the control relationship;

(2)  File an application under subpart B or C of this regulation to retain the control relationship; or

(3)  Contest the preliminary determination by filing a response, setting forth the facts and circumstances in support of its position that no control exists, and if desired, requesting a hearing or other proceeding.

(c)  Hearing and final determination.  (1) The Board shall order a formal hearing or other appropriate proceeding upon the request of a company that contests a preliminary determination that the company has the power to exercise a controlling influence over the management or policies of a bank or other company, if the Board finds that material facts are in dispute. The Board may also in its discretion order a formal hearing or other proceeding with respect to a preliminary determination that the company controls voting securities of the bank or other company under the presumptions in paragraph (d)(1) of this section.

(2)  At a hearing or other proceeding, any applicable presumptions established by paragraph (d) of this section shall be considered in accordance with the Federal Rules of Evidence and the Board's Rules of Practice for Formal Hearings (12 CFR Part 263).

(3)  After considering the submissions of the company and other evidence, including the record of any hearing or other proceeding, the Board shall issue a final order determining whether the company controls voting securities, or has the power to exercise a controlling influence over the management or policies, of the bank or other company. If a control relationship is found, the Board may direct the company to terminate the control relationship or to file an application for the Board's approval to retain the control relationship under subpart B or C of this regulation.

(d)  Rebuttable presumptions of control.  The following rebuttable presumptions shall be used in any proceeding under this section:

(1)  Control of voting securities.--(i) Securities convertible into voting securities.  A company that owns, controls, or holds securities that are immediately convertible, at the option of the holder or owner, into voting securities of a bank or other company, controls the voting securities.

(ii)  Option or restriction on voting securities.  A company that enters into an agreement or understanding under which the rights of a holder of voting securities of a bank or other company are restricted in any manner controls the securities. This presumption does not apply where the agreement or understanding:

(A)  is a mutual agreement among shareholders granting to each other a right of first refusal with respect to their shares;

(B)  Is incident to a bona fide loan transaction; or

(C)  Relates to restrictions on transferability and continues only for the time necessary to obtain approval from the appropriate federal supervisory authority with respect to acquisition by the company of the securities.

(2)  Control over company.--(i) Management agreement.  A company that enters into any agreement or understanding with a bank or other company (other than an investment advisory agreement), such as a management contract, under which the first company or any of its subsidiaries directs or exercises significant influence over the general management or overall operations of the bank or other company controls the bank or other company.

(ii)  Shares controlled by company and associated individuals.  A company that, together with its management officials or principal shareholders (including members of the immediate families of either, owns, controls, or holds with power to vote 25 percent or more of the outstanding shares of any class of voting securities of a bank or other company controls the bank or other company, if the first company owns, controls, or holds with power to vote more than 5 percent of the outstanding shares of any class of voting securities of the bank or other company.

(iii)  Common management officials.  A company that has one or more management officials in common with a bank or other company controls the bank or other company, if the first company owns, controls or holds with power to vote more than 5 percent of the outstanding shares of any class of voting securities of the bank or other company, and no other person controls as much as 5 percent of the outstanding shares of any class of voting securities of the bank or other company.

(iv)  Shares held as fiduciary. The presumptions in paragraphs (d)(2)(ii) and (iii) of this section do not apply if the securities are held by the company in a fidicuary capacity without sole discretionary authority to exercise the voting rights.

(e)  Presumption of non-control. (1)  In any proceeding under this section, there is a presumption that any company that directly or indirectly owns, controls, or has power to vote less than 5 percent of the outstanding shares of any class of voting securities of a bank or other company does not have control over that bank or other company.

(2)  In any proceeding under this section, or judicial proceeding under the BHC Act, other than a proceeding in which the Board has made a preliminary determination that a company has the power to exercise a controlling influence over the management or policies of the bank or other company, a company may not be held to have had control over the bank or other company at any given time, unless that company, at the time in question, directly or indirectly owned, controlled, or had power to vote 5 percent or more of the outstanding shares of any class of voting securities of the bank or other company, or had already been found to have control on the basis of the existence of a controlling influence relationship.

[Codified to 12 C.F.R. § 225.31]

[Section 225.31 amended at 58 Fed. Reg. 474, January 6, 1993, effective February 4, 1993; 62 Fed. Reg. 9338, February 28, 1997, effective April 21, 1997]


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Last updated February 28, 2014 regs@fdic.gov