Bank Holding Companies - Lawful and Unlawful Acquisitions, Formations, and Mergers; Waivers

  1. Law
  2. Georgia Code
  3. Banking and Finance
  4. Financial Institutions
  5. Banks and Trust Companies
  6. Bank Branches, Offices, Facilities, and Holding Companies
  7. Bank Holding Companies - Lawful and Unlawful Acquisitions, Formations, and Mergers; Waivers

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  1. It shall be unlawful for a bank holding company to acquire direct or indirect ownership or control of any voting shares of any bank, including any federal savings and loan association or federal savings bank, if, after such acquisition, such bank holding company will directly or indirectly own or control 5 percent or more of the voting shares of such bank, or for any company to become a bank holding company as a result of the acquisition of control of such bank, unless:
    1. The bank being acquired is either a "bank" for the purposes of the federal Bank Holding Company Act of 1956, as amended (12 U.S.C. Section 1841), or a "savings and loan," a "state savings and loan," a "savings bank," or a "federal savings bank" whose deposits are insured under a federal deposit insurance program; and
    2. Such bank of the type described in paragraph (1) of this subsection has been in existence and continuously operating or incorporated as a bank for a period of three years or more prior to the date of acquisition.
  2. Notwithstanding the provisions of this Code section, the following activities are permitted. These activities regarding acquisitions by purchase and by formation are to be considered exceptions to the three-year age requirement contained in paragraph (2) of subsection (a) of this Code section:
    1. A bank holding company may acquire all or substantially all of the shares of a bank or trust company organized solely for the purpose of facilitating the acquisition of a federal or state chartered bank, savings and loan association, savings bank, or other corporation doing a banking business in this state or the trust department of such institutions, which has been in existence and continuously operating or incorporated as such an institution or exercising trust powers for the minimum period prescribed in subsection (a) of this Code section;
    2. A company may become a bank holding company by virtue of acquiring control of a bank if neither the company nor any other company controlled by or controlling such company controls any other bank domiciled in this state or elsewhere;
    3. A bank holding company may acquire control through formation of a de novo bank in Georgia, provided that departmental approval and any required federal approvals are obtained; and
    4. A de novo bank established or formed pursuant to paragraph (3) of this subsection shall be subject to the three-year age requirement contained in paragraph (2) of subsection (a) of this Code section. A bank holding company may, however, merge or consolidate a de novo bank which may be less than three years old and that is established pursuant to paragraph (3) of this subsection into another bank owned by that holding company.
  3. The department may waive the application of the three-year age requirement in the case of a bank that has been found by federal or state regulators to be:
    1. Insolvent or in an unsafe or unsound condition to transact its business;
    2. In a condition where it has generally suspended payment of its obligations without authority of law; or
    3. Under any plan, order, or agreement of any kind with the FDIC under Section 12, 13, or 38 of the Federal Deposit Insurance Act, 12 U.S.C. Section 1811, et seq., as amended.
  4. The commissioner may waive the three-year age requirement contained in paragraph (2) of subsection (a) of this Code section if the commissioner determines that the proposed acquisition will result in material improvement of the safety and soundness of an institution that is in less than satisfactory condition at the time of the proposed acquisition. No such waiver will be authorized unless the commissioner determines that the proposed acquisition will not present undue safety and soundness risks to the financial institutions involved. In making such determination, the commissioner shall consider the financial condition and regulatory safety and soundness ratings of the institutions affected and the ability of management to administer and supervise the resulting institution.

(Code 1933, § 13-207.3, enacted by Ga. L. 1976, p. 168, § 5; Ga. L. 1980, p. 1081, § 1; Ga. L. 1981, p. 1008, § 1; Ga. L. 1983, p. 602, § 15; Ga. L. 1985, p. 246, § 2; Ga. L. 1987, p. 1586, § 10; Ga. L. 1993, p. 917, § 5; Ga. L. 1996, p. 848, § 11; Ga. L. 1997, p. 143, § 7; Ga. L. 1999, p. 674, § 17; Ga. L. 2000, p. 174, § 14; Ga. L. 2002, p. 670, § 1; Ga. L. 2007, p. 502, § 15/SB 70; Ga. L. 2015, p. 344, § 14/HB 184; Ga. L. 2016, p. 390, § 7-4/HB 811; Ga. L. 2019, p. 828, § 17/HB 185.)

The 2019 amendment, effective July 1, 2019, substituted the present provisions of paragraph (b)(3) for the former provisions, which read: "A bank holding company registered with the department and lawfully owning a bank or a branch of a bank which was formed by the acquisition and subsequent merger of or share exchange with a Georgia bank, which bank or branch does a lawful banking business in this state, may acquire control through formation of a de novo bank in Georgia, provided that departmental approval and any required federal approvals are obtained. No out-of-state bank holding company may enter Georgia to do a banking business by formation of a de novo bank; and".

Law reviews.

- For article discussing compliance with Federal Securities Act of 1933 in bank acquisitions and the issuance of securities of bank holding companies, see 14 Ga. St. B.J. 114 (1978).

OPINIONS OF THE ATTORNEY GENERAL

Scope of application.

- Prohibition of former Code 1933, § 13-207.3 applies equally to out-of-state banks and bank holding companies and to those organized in Georgia, or, in the case of national banks, located in Georgia. 1980 Op. Att'y Gen. No. 80-156.

Former Code 1933, § 13-207.3 was not designed to prohibit "phantom bank reorganizations." 1980 Op. Att'y Gen. No. 80-156.

Former Code 1933, § 13-207.3 prohibits transactions whereby a bank's trust department becomes a separate corporation wholly owned by the bank or the bank's parent. 1980 Op. Att'y Gen. No. 80-156.

RESEARCH REFERENCES

Am. Jur. 2d.

- 10 Am. Jur. 2d, Banks and Financial Institutions, §§ 518, 613.


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