(A) As used in this rule:
(1) "Acquisition" means a purchase, assignment,
transfer, pledge or other disposition of voting shares, or an increase in
percentage ownership of a state bank resulting from a redemption of voting
shares.
(2) "Acting in
concert" means knowing participation in a joint activity or parallel
action towards a common goal of acquiring control of a state bank, whether or
not pursuant to an express agreement.
(3) "Person" means an
individual, corporation, partnership, trust, association, joint venture, pool,
syndicate, sole proprietorship, unincorporated organization, and any other form
of entity; and a voting trust, voting agreement, and any group of persons
acting in concert.
(4) "Securities" means all
equity interests in a bank and includes rights, interests, and powers with
respect thereto.
(B) For the purpose of section 1115.06 of
the Revised Code, it is presumed, subject to rebuttal, that a person acquiring
ownership, control of, or the power to vote ten per cent or more of any class
of voting securities of a state bank constitutes the power to direct that
bank's management or policies requiring prior notice to the superintendent
if either of the following apply:
(1) The state bank has
registered securities under section 12 of the Securities Exchange Act of 1934
(15 U.S.C. 78); or
(2) No other person will
own, control, or hold the power to vote a greater percentage of that class of
voting securities immediately after the transaction. If two or more persons,
not acting in concert, each propose to acquire simultaneously equal percentages
of ten per cent or more of a class of voting securities of a state bank, each
such person shall file prior notice with the superintendent.
Transactions other than those set forth in this
paragraph resulting in a person's control of less than twenty-five per
cent of a class of voting securities of a state bank are deemed not to
constitute control requiring prior notice. A person may request an opportunity
to rebut any presumption established by this paragraph with respect to a
proposed transaction. In the event of such a request, the superintendent shall
afford the person the opportunity to present the person's views in writing
or where appropriate, orally before the superintendent or the
superintendent's designated representatives either at informal conference
discussions or at informal presentations of evidence.
(C) A notice required under division (B)
of section 1115.06 of the Revised Code shall contain the following
information:
(1) The identity,
personal history, and business background and experience of each person by whom
or on whose behalf the acquisition is to be made, including each person's
material business activities and affiliations during the past five years; a
description of any material pending legal or administrative proceedings in
which each person is a party; and any criminal indictment or conviction of each
person by a state or federal court;
(2) A statement of the
assets and liabilities of each person by whom or on whose behalf the
acquisition is to be made, as of the end of the fiscal year for each of the
five years immediately preceding the date of the notice, together with related
statements of income and source and application of funds for each of the fiscal
years then concluded, all prepared in accordance with generally accepted
accounting principles consistently applied; and an interim statement of the
assets and liabilities for each person, together with related statements of
income and source and application of funds, as of a date not more than ninety
days prior to the date of the filing of the notice;
(3) The terms and
conditions of the proposed acquisition and the manner in which the acquisition
is to be made;
(4) The identity, source,
and amount of the funds or other consideration used or to be used in making the
acquisition and, if any part of these funds or other consideration has been or
is to be borrowed or otherwise obtained for the purpose of making the
acquisition, a description of the transaction, the names of the parties, and
any arrangements, agreements, or understandings with the parties;
(5) Any plans or
proposals any acquiring person may have to liquidate the state bank, to sell
its assets or merge it with any company, or to make any other major change in
its business or corporate structure or management;
(6) The identification of
any person employed, retained, or to be compensated by an acquiring person, or
by any person on an acquiring person's behalf, to make solicitations or
recommendations to shareholders for the purpose of assisting in the
acquisition, and a brief description of the terms of the employment, retainer,
or arrangement for compensation;
(7) Copies of all
invitations or tenders or advertisements making a tender offer to stockholders
for purchase of their stock to be used in connection with the proposed
acquisition; and
(8) Any additional
information in the form the superintendent may require by specific request in
connection with any particular notice.
(D) To request the written consent of the
superintendent to a proposed acquisition of control of a state
bank:
(1) A person who is also
required to file a notice or application with the federal deposit insurance
corporation the federal reserve system in regard to the proposed transaction,
pursuant to the Change of Bank Control Act (12 U.S.C. 1817(j)) or section 3 of
the Bank Holding Company Act (12 U.S.C. 1842), shall file with the
superintendent an originally executed copy of the notice or
application.
(2) A person who is not
required to file a notice or application with the federal deposit insurance
corporation or the federal reserve system in regard to the proposed transaction
shall notify the superintendent by letter of the proposed transaction, which
letter shall include a summary of the proposed transaction and the reason the
person is not required to file a notice or application in regard to the
proposed transaction with the federal deposit insurance corporation or the
federal reserve system. A person filing notice under this section shall submit
the information set forth in division (C) of section 1115.06 of the Revised
Code and any other information the superintendent requires.
(E) The sixty-day notice period specified in division (B)
of section 1115.06 of the Revised Code shall not commence until the
superintendent has accepted the notice required in paragraph (D)(1) or (D)(2)
of this rule for processing.
(F) Any person filing notice under this
rule shall be required to publish, within ten days from receipt of the
superintendent's acceptance for processing of information required to be
filed under this rule, an announcement on the proposed acquisition in a
newspaper of general circulation in the county in which the state bank has its
principal place of business. In the case of information filed with the
superintendent in contemplation of a tender offer, publication of the
announcement required by this paragraph may be delayed until thirty days after
the superintendent's acceptance of the information for processing.
Whenever a person required to publish an announcement pursuant to this
paragraph is also required by federal law or regulation to publish an
announcement regarding the same transaction, the announcement published
pursuant to federal law or regulation shall satisfy the publication requirement
of this paragraph if the announcement includes all of the information required
by this paragraph. The newspaper announcement shall include:
(1) The name of the state
bank and the name of each person identified in the information as a proposed
acquiror and the proposed date of the acquisition of the
securities;
(2) A statement that
interested persons may submit comments on the proposed acquisition to the
superintendent at the superintendent's place of business for a period of
twenty days from the date of publication of the announcement, along with the
superintendent's address; and
(3) A statement that the
superintendent will consider all public comments received in writing within the
twenty days following the required publication.
(G) The superintendent may do either of
the following with respect to the newspaper publication
requirement:
(1) Permit delay of the
publication if the superintendent determines, for good cause, that it is in the
public interest to grant a delay; or
(2) Shorten the public
comment period, waive the public comment, waive the newspaper publication, or
act on a notice before the expiration of a public comment period, if the
superintendent determines that either an emergency exists or disclosure of a
proposed acquisition, solicitation of public comment, or delay of its action
until expiration of the public comment period would seriously threaten the
safety or soundness of a state bank.
(H) Any person who is required to file
information with the superintendent pursuant to paragraph (E)(1) of this rule
shall also file with the superintendent any additional information filed with
the federal deposit insurance corporation or the federal reserve system in
connection with a notice regarding the same proposed transaction together with
a copy of any request from the federal deposit insurance corporation or federal
reserve system in response to which such information was filed.
(I) A person acquiring control of a state bank is not
required to provide prior notice to the superintendent, but is required to
notify the superintendent within ninety days after control is acquired and to
provide to the superintendent with any information requested, if the person has
acquired control by any of the following means:
(1) Through testate or
intestate succession;
(2) Through a bona fide
gift;
(3) In satisfaction of a
debt previously contracted in good faith, except that the acquiror of a
defaulted loan secured by a controlling amount of bank voting shares shall file
a notice before the loan is acquired:
(4) Redemption of voting
shares by the issuing bank; or
(5) Sale of shares by any
shareholder that is not within the control of the person resulting in that
person becoming the largest shareholder.
(J) The following transactions do not require notice to the
superintendent:
(1) A customary one-time
proxy solicitation; and
(2) The receipt of voting
securities through a pro rata stock dividend.
