12 U.S.C. § 1841 — Definitions

Page 1216 TITLE 12—BANKS AND BANKING § 1841 Sec. 1842. Acquisition of bank shares or assets. 1843. Interests in nonbanking organizations. 1844. Administration. 1845. Repealed. 1846. Reservation of rights to States. 1847. Penalties. 1848. Judicial review. 1848a. Repealed. 1849. Saving provision. 1850. Acquisition of subsidiary and tying arrange- ment: Federal Reserve Board proceedings; application for authorization; competitor as party in interest and person aggrieved; judi- cial review. 1850a. Securities holding companies. 1851. Prohibitions on proprietary trading and cer- tain relationships with hedge funds and pri- vate equity funds. 1852. Concentration limits on large financial firms. § 1841. Definitions (a)(1) Except as provided in paragraph (5) of this subsection, ‘‘bank holding company’’ means any company which has control over any bank or over any company that is or becomes a bank holding company by virtue of this chapter. (2) Any company has control over a bank or over any company if— (A) the company directly or indirectly or acting through one or more other persons owns, controls, or has power to vote 25 per centum or more of any class of voting securi- ties of the bank or company; (B) the company controls in any manner the election of a majority of the directors or trustees of the bank or company; or (C) the Board determines, after notice and opportunity for hearing, that the company di- rectly or indirectly exercises a controlling in- fluence over the management or policies of the bank or company. (3) For the purposes of any proceeding under paragraph (2)(C) of this subsection, there is a presumption that any company which directly or indirectly owns, controls, or has power to vote less than 5 per centum of any class of vot- ing securities of a given bank or company does not have control over that bank or company. (4) In any administrative or judicial pro- ceeding under this chapter, other than a pro- ceeding under paragraph (2)(C) of this sub- section, a company may not be held to have had control over any given bank or company at any given time unless that company, at the time in question, directly or indirectly owned, con- trolled, or had power to vote 5 per centum or more of any class of voting securities of the bank or company, or had already been found to have control in a proceeding under paragraph (2)(C). (5) Notwithstanding any other provision of this subsection— (A) No bank and no company owning or con- trolling voting shares of a bank is a bank holding company by virtue of its ownership or control of shares in a fiduciary capacity, ex- cept as provided in paragraphs (2) and (3) of subsection (g) of this section. For the purpose of the preceding sentence, bank shares shall not be deemed to have been acquired in a fidu- ciary capacity if the acquiring bank or com- pany has sole discretionary authority to exer- cise voting rights with respect thereto; except that this limitation is applicable in the case of a bank or company acquiring such shares prior to December 31, 1970, only if the bank or com- pany has the right consistent with its obliga- tions under the instrument, agreement, or other arrangement establishing the fiduciary relationship to divest itself of such voting rights and fails to exercise that right to divest within a reasonable period not to exceed one year after December 31, 1970. (B) No company is a bank holding company by virtue of its ownership or control of shares acquired by it in connection with its under- writing of securities if such shares are held only for such period of time as will permit the sale thereof on a reasonable basis. (C) No company formed for the sole purpose of participating in a proxy solicitation is a bank holding company by virtue of its control of voting rights of shares acquired in the course of such solicitation. (D) No company is a bank holding company by virtue of its ownership or control of shares acquired in securing or collecting a debt pre- viously contracted in good faith, until two years after the date of acquisition. The Board is authorized upon application by a company to extend, from time to time for not more than one year at a time, the two-year period referred to herein for disposing of any shares acquired by a company in the regular course of securing or collecting a debt previously con- tracted in good faith, if, in the Board’s judg- ment, such an extension would not be detri- mental to the public interest, but no such ex- tension shall in the aggregate exceed three years. (E) No company is a bank holding company by virtue of its ownership or control of any State-chartered bank or trust company which— (i) is wholly owned by 1 or more thrift in- stitutions or savings banks; and (ii) is restricted to accepting— (I) deposits from thrift institutions or savings banks; (II) deposits arising out of the corporate business of the thrift institutions or sav- ings banks that own the bank or trust company; or (III) deposits of public moneys. (F) No trust company or mutual savings bank which is an insured bank under the Fed- eral Deposit Insurance Act [12 U.S.C. 1811 et seq.] is a bank holding company by virtue of its direct or indirect ownership or control of one bank located in the same State, if (i) such ownership or control existed on December 31, 1970, and is specifically authorized by applica- ble State law, and (ii) the trust company or mutual savings bank does not after that date acquire an interest in any company that, to- gether with any other interest it holds in that company, will exceed 5 per centum of any class of the voting shares of that company, ex- cept that this limitation shall not be applica- ble to investments of the trust company or mutual savings bank, direct and indirect, which are otherwise in accordance with the limitations applicable to national banks under section 24 of this title. Page 1217 TITLE 12—BANKS AND BANKING § 1841 1 See References in Text note below. (6) For the purposes of this chapter, any suc- cessor to a bank holding company shall be deemed to be a bank holding company from the date on which the predecessor company became a bank holding company. (b) ‘‘Company’’ means any corporation, part- nership, business trust, association, or similar organization, or any other trust unless by its terms it must terminate within twenty-five years or not later than twenty-one years and ten months after the death of individuals living on the effective date of the trust but shall not in- clude any corporation the majority of the shares of which are owned by the United States or by any State, and shall not include a qualified fam- ily partnership. ‘‘Company covered in 1970’’ means a company which becomes a bank holding company as a result of the enactment of the Bank Holding Company Act Amendments of 1970 and which would have been a bank holding com- pany on June 30, 1968, if those amendments had been enacted on that date. (c) BANK DEFINED.—For purposes of this chap- ter— (1) IN GENERAL.—Except as provided in para- graph (2), the term ‘‘bank’’ means any of the following: (A) An insured bank as defined in section 3(h) of the Federal Deposit Insurance Act [12 U.S.C. 1813(h)]. (B) An institution organized under the laws of the United States, any State of the United States, the District of Columbia, any territory of the United States, Puerto Rico, Guam, American Samoa, or the Virgin Is- lands which both— (i) accepts demand deposits or deposits that the depositor may withdraw by check or similar means for payment to third par- ties or others; and (ii) is engaged in the business of making commercial loans. (2) EXCEPTIONS.—The term ‘‘bank’’ does not include any of the following: (A) A foreign bank which would be a bank within the meaning of paragraph (1) solely because such bank has an insured or unin- sured branch in the United States. (B) An insured institution (as defined in subsection (j)). (C) An organization that does not do busi- ness in the United States except as an inci- dent to its activities outside the United States. (D) An institution that functions solely in a trust or fiduciary capacity, if— (i) all or substantially all of the deposits of such institution are in trust funds and are received in a bona fide fiduciary capac- ity; (ii) no deposits of such institution which are insured by the Federal Deposit Insur- ance Corporation are offered or marketed by or through an affiliate of such institu- tion; (iii) such institution does not accept de- mand deposits or deposits that the deposi- tor may withdraw by check or similar means for payment to third parties or oth- ers or make commercial loans; and (iv) such institution does not— (I) obtain payment or payment related services from any Federal Reserve bank, including any service referred to in sec- tion 11A of the Federal Reserve Act [12 U.S.C. 248a]; or (II) exercise discount or borrowing privileges pursuant to section 19(b)(7) of the Federal Reserve Act [12 U.S.C. 461(b)(7)]. (E) A credit union (as described in section 19(b)(1)(A)(iv) of the Federal Reserve Act [12 U.S.C. 461(b)(1)(A)(iv)]). (F) An institution, including an institu- tion that accepts collateral for extensions of credit by holding deposits under $100,000, and by other means which— (i) engages only in credit card oper- ations; (ii) does not accept demand deposits or deposits that the depositor may withdraw by check or similar means for payment to third parties or others; (iii) does not accept any savings or time deposit of less than $100,000; (iv) maintains only one office that ac- cepts deposits; and (v) does not engage in the business of making commercial loans, other than credit card loans that are made to busi- nesses that meet the criteria for a small business concern to be eligible for business loans under regulations established by the Small Business Administration under part 121 of title 13, Code of Federal Regulations. (G) An organization operating under sec- tion 25 or section 25(a) 1 of the Federal Re- serve Act. (H) An industrial loan company, industrial bank, or other similar institution which is— (i) an institution organized under the laws of a State which, on March 5, 1987, had in effect or had under consideration in such State’s legislature a statute which re- quired or would require such institution to obtain insurance under the Federal De- posit Insurance Act [12 U.S.C. 1811 et seq.]— (I) which does not accept demand de- posits that the depositor may withdraw by check or similar means for payment to third parties; (II) which has total assets of less than $100,000,000; or (III) the control of which is not ac- quired by any company after August 10, 1987; or (ii) an institution which does not, di- rectly, indirectly, or through an affiliate, engage in any activity in which it was not lawfully engaged as of March 5, 1987, except that this subparagraph shall cease to apply to any institution which permits any overdraft (including any intraday overdraft), or which incurs any such overdraft in such institution’s account at a Federal Reserve bank, on behalf of an affiliate if such over- draft is not the result of an inadvertent com- Page 1218 TITLE 12—BANKS AND BANKING § 1841 puter or accounting error that is beyond the control of both the institution and the affil- iate, or that is otherwise permissible for a bank controlled by a company described in section 1843(f)(1) of this title. (d) ‘‘Subsidiary’’, with respect to a specified bank holding company, means (1) any company 25 per centum or more of whose voting shares (excluding shares owned by the United States or by any company wholly owned by the United States) is directly or indirectly owned or con- trolled by such bank holding company, or is held by it with power to vote; (2) any company the election of a majority of whose directors is con- trolled in any manner by such bank holding company; or (3) any company with respect to the management of policies of which such bank holding company has the power, directly or indi- rectly, to exercise a controlling influence, as de- termined by the Board, after notice and oppor- tunity for hearing. (e) The term ‘‘successor’’ shall include any company which acquires directly or indirectly from a bank holding company shares of any bank, when and if the relationship between such company and the bank holding company is such that the transaction effects no substantial change in the control of the bank or beneficial ownership of such shares of such bank. The Board may, by regulation, further define the term ‘‘successor’’ to the extent necessary to pre- vent evasion of the purposes of this chapter. (f) ‘‘Board’’ means the Board of Governors of the Federal Reserve System. (g) For the purposes of this chapter— (1) shares owned or controlled by any sub- sidiary of a bank holding company shall be deemed to be indirectly owned or controlled by such bank holding company; and (2) shares held or controlled directly or indi- rectly by trustees for the benefit of (A) a com- pany, (B) the shareholders or members of a company, or (C) the employees (whether exclu- sively or not) of a company, shall be deemed to be controlled by such company, unless the Board determines that such treatment is not appropriate in light of the facts and cir- cumstances of the case and the purposes of this chapter. (h)(1) Except as provided by paragraph (2), the application of this chapter and of section 371c of this title shall not be affected by the fact that a transaction takes place wholly or partly out- side the United States or that a company is or- ganized or operates outside the United States. (2) Except as provided in paragraph (3), the prohibitions of section 1843 of this title shall not apply to shares of any company organized under the laws of a foreign country (or to shares held by such company in any company engaged in the same general line of business as the investor company or in a business related to the business of the investor company) that is principally en- gaged in business outside the United States if such shares are held or acquired by a bank hold- ing company organized under the laws of a for- eign country that is principally engaged in the banking business outside the United States. For the purpose of this subsection, the term ‘‘sec- tion 2(h)(2) company’’ means any company whose shares are held pursuant to this para- graph. (3) Nothing in paragraph (2) authorizes a sec- tion 2(h)(2) company to engage in (or acquire or hold more than 5 percent of the outstanding shares of any class of voting securities of a com- pany engaged in) any banking, securities, insur- ance, or other financial activities, as defined by the Board, in the United States. This paragraph does not prohibit a section 2(h)(2) company from holding shares that were lawfully acquired be- fore August 10, 1987. (4) No domestic office or subsidiary of a bank holding company or subsidiary thereof holding shares of a section 2(h)(2) company may extend credit to a domestic office or subsidiary of such section 2(h)(2) company on terms more favorable than those afforded similar borrowers in the United States. (5) No domestic banking office or bank sub- sidiary of a bank holding company that controls a section 2(h)(2) company may offer or market products or services of such section 2(h)(2) com- pany, or permit its products or services to be of- fered or marketed by or through such section 2(h)(2) company, unless such products or serv- ices were being so offered or marketed as of March 5, 1987, and then only in the same manner in which they were being offered or marketed as of that date. (i) THRIFT INSTITUTION.—For purposes of this chapter, the term ‘‘thrift institution’’ means— (1) any domestic building and loan or sav- ings and loan association; (2) any cooperative bank without capital stock organized and operated for mutual pur- poses and without profit; (3) any Federal savings bank; and (4) any State-chartered savings bank the holding company of which is registered pursu- ant to section 1730a 1 of this title. (j) DEFINITION OF SAVINGS ASSOCIATIONS AND RELATED TERM.—The term ‘‘savings associa- tion’’ or ‘‘insured institution’’ means— (1) any Federal savings association or Fed- eral savings bank; (2) any building and loan association, sav- ings and loan association, homestead associa- tion, or cooperative bank if such association or cooperative bank is a member of the De- posit Insurance Fund; and (3) any savings bank or cooperative bank which is deemed by the appropriate Federal banking agency to be a savings association under section 1467a(l) of this title. (k) AFFILIATE.—For purposes of this chapter, the term ‘‘affiliate’’ means any company that controls, is controlled by, or is under common control with another company. (l) SAVINGS BANK HOLDING COMPANY.—For pur- poses of this chapter, the term ‘‘savings bank holding company’’ means any company which controls one or more qualified savings banks if the aggregate total assets of such savings banks constitute, upon formation of the holding com- pany and at all times thereafter, at least 70 per- cent of the total assets of such company. (m) [Repealed] (n) INCORPORATED DEFINITIONS.—For purposes of this chapter, the terms ‘‘depository institu- Page 1219 TITLE 12—BANKS AND BANKING § 1841 tion’’, ‘‘insured depository institution’’, ‘‘appro- priate Federal banking agency’’, ‘‘default’’, ‘‘in danger of default’’, and ‘‘State bank supervisor’’ have the same meanings as in section 3 of the Federal Deposit Insurance Act [12 U.S.C. 1813]. (o) OTHER DEFINITIONS.—For purposes of this chapter, the following definitions shall apply: (1) CAPITAL TERMS.— (A) INSURED DEPOSITORY INSTITUTIONS.— With respect to insured depository institu- tions, the terms ‘‘well capitalized’’, ‘‘ade- quately capitalized’’, and ‘‘undercapitalized’’ have the same meanings as in section 38 of the Federal Deposit Insurance Act [12 U.S.C. 1831o]. (B) BANK HOLDING COMPANY.— (i) ADEQUATELY CAPITALIZED.—With re- spect to a bank holding company, the term ‘‘adequately capitalized’’ means a level of capitalization which meets or exceeds all applicable Federal regulatory capital standards. (ii) WELL CAPITALIZED.—A bank holding company is ‘‘well capitalized’’ if it meets the required capital levels for well capital- ized bank holding companies established by the Board. (C) OTHER CAPITAL TERMS.—The terms ‘‘Tier 1’’ and ‘‘risk-weighted assets’’ have the meanings given those terms in the cap- ital guidelines or regulations established by the Board for bank holding companies. (2) ANTITRUST LAWS.—Except as provided in section 1849 of this title, the term ‘‘antitrust laws’’— (A) has the same meaning as in subsection (a) of section 12 of title 15; and (B) includes section 45 of title 15 to the ex- tent that such section 45 relates to unfair methods of competition. (3) BRANCH.—The term ‘‘branch’’ means a do- mestic branch (as defined in section 3 of the Federal Deposit Insurance Act [12 U.S.C. 1813]). (4) HOME STATE.—The term ‘‘home State’’ means— (A) with respect to a national bank, the State in which the main office of the bank is located; (B) with respect to a State bank, the State by which the bank is chartered; (C) with respect to a bank holding com- pany, the State in which the total deposits of all banking subsidiaries of such company are the largest on the later of— (i) July 1, 1966; or (ii) the date on which the company be- comes a bank holding company under this chapter; (D) with respect to a State savings associa- tion, the State by which the savings associa- tion is chartered; and (E) with respect to a Federal savings asso- ciation, the State in which the home office (as defined by the regulations of the Direc- tor of the Office of Thrift Supervision, or, on and after the transfer date,1 the Comptroller of the Currency) of the Federal savings asso- ciation is located. (5) HOST STATE.—The term ‘‘host State’’ means— (A) with respect to a bank, a State, other than the home State of the bank, in which the bank maintains, or seeks to establish and maintain, a branch; and (B) with respect to a bank holding com- pany, a State, other than the home State of the company, in which the company con- trols, or seeks to control, a bank subsidiary. (6) OUT-OF-STATE BANK.—The term ‘‘out-of- State bank’’ means, with respect to any State, a bank whose home State is another State. (7) OUT-OF-STATE BANK HOLDING COMPANY.— The term ‘‘out-of-State bank holding com- pany’’ means, with respect to any State, a bank holding company whose home State is another State. (8) LEAD INSURED DEPOSITORY INSTITUTIONS.— (A) IN GENERAL.—The term ‘‘lead insured depository institution’’ means the largest insured depository institution controlled by the subject bank holding company at any time, based on a comparison of the average total risk-weighted assets controlled by each insured depository institution during the previous 12-month period. (B) BRANCH OR AGENCY.—For purposes of this paragraph and section 1843(j)(4) of this title, the term ‘‘insured depository institu- tion’’ includes any branch or agency oper- ated in the United States by a foreign bank. (9) WELL MANAGED.—The term ‘‘well man- aged’’ means— (A) in the case of any company or deposi- tory institution which receives examina- tions, the achievement of— (i) a CAMEL composite rating of 1 or 2 (or an equivalent rating under an equiva- lent rating system) in connection with the most recent examination or subsequent re- view of such company or institution; and (ii) at least a satisfactory rating for management, if such rating is given; or (B) in the case of a company or depository institution that has not received an exam- ination rating, the existence and use of man- agerial resources which the Board deter- mines are satisfactory. (10) QUALIFIED FAMILY PARTNERSHIP.—The term ‘‘qualified family partnership’’ means a general or limited partnership that the Board determines— (A) does not directly control any bank, ex- cept through a registered bank holding com- pany; (B) does not control more than 1 registered bank holding company; (C) does not engage in any business activ- ity, except indirectly through ownership of other business entities; (D) has no investments other than those permitted for a bank holding company pur- suant to section 1843(c) of this title; (E) is not obligated on any debt, either di- rectly or as a guarantor; (F) has partners, all of whom are either— (i) individuals related to each other by blood, marriage (including former mar- riage), or adoption; or Page 1220 TITLE 12—BANKS AND BANKING § 1841 (ii) trusts for the primary benefit of indi- viduals related as described in clause (i); and (G) has filed with the Board a statement that includes— (i) the basis for the eligibility of the partnership under subparagraph (F); (ii) a list of the existing activities and investments of the partnership; (iii) a commitment to comply with this paragraph; (iv) a commitment to comply with sec- tion 7 of the Federal Deposit Insurance Act [12 U.S.C. 1817] with respect to any acquisi- tion of control of an insured depository in- stitution occurring after September 30, 1996; and (v) a commitment to be subject, to the same extent as if the qualified family part- nership were a bank holding company— (I) to examination by the Board to as- sure compliance with this paragraph; and (II) to section 8 of the Federal Deposit Insurance Act [12 U.S.C. 1818]. (p) FINANCIAL HOLDING COMPANY.—For pur- poses of this chapter, the term ‘‘financial hold- ing company’’ means a bank holding company that meets the requirements of section 1843(l)(1) of this title. (q) INSURANCE COMPANY.—For purposes of sec- tions 1843 and 1844 of this title, the term ‘‘insur- ance company’’ includes any person engaged in the business of insurance to the extent of such activities. (May 9, 1956, ch. 240, § 2, 70 Stat. 133; Pub. L. 89–485, §§ 1–6, July 1, 1966, 80 Stat. 236, 237; Pub. L. 91–607, title I, § 101, Dec. 31, 1970, 84 Stat. 1760; Pub. L. 95–188, title III, § 301(b), Nov. 16, 1977, 91 Stat. 1389; Pub. L. 95–369, § 8(e), Sept. 17, 1978, 92 Stat. 623; Pub. L. 97–320, title I, § 118(b), title III, § 333, title IV, § 404(d)(1), Oct. 15, 1982, 96 Stat. 1479, 1504, 1512; Pub. L. 100–86, title I, § 101(a), (e), title II, § 205(a), Aug. 10, 1987, 101 Stat. 554, 562, 584; Pub. L. 101–73, title VI, § 602(a), Aug. 9, 1989, 103 Stat. 409; Pub. L. 103–328, title I, § 101(c), Sept. 29, 1994, 108 Stat. 2341; Pub. L. 104–208, div. A, title II, §§ 2207, 2208(b), 2304(b), 2610, 2704(d)(17), Sept. 30, 1996, 110 Stat. 3009–406, 3009–408, 3009–425, 3009–475, 3009–495; Pub. L. 106–102, title I, §§ 103(c)(1), 107(c), 119, title VII, § 724, Nov. 12, 1999, 113 Stat. 1351, 1359, 1373, 1471; Pub. L. 108–386, § 8(c)(1), Oct. 30, 2004, 118 Stat. 2231; Pub. L. 109–171, title II, § 2102(b), Feb. 8, 2006, 120 Stat. 9; Pub. L. 109–173, § 9(h)(1), Feb. 15, 2006, 119 Stat. 3618; Pub. L. 109–351, title VII, §§ 706, 727(a), Oct. 13, 2006, 120 Stat. 1987, 2003; Pub. L. 111–203, title III, § 354(1), title VI, §§ 623(b)(2), 628, July 21, 2010, 124 Stat. 1546, 1635, 1640.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a)(1), (4), (c), and (g) to (p), was in the original ‘‘this Act’’, meaning act May 9, 1956, ch. 240, 70 Stat. 133, known as the Bank Holding Company Act of 1956, which enacted this chap- ter and sections 1101 to 1103 of Title 26, Internal Rev- enue Code, and enacted provisions set out as notes under this section. For complete classification of this Act to the Code, see Short Title note set out below and Tables. The Federal Deposit Insurance Act, referred to in subsecs. (a)(5)(F) and (c)(2)(H)(i), is act Sept. 21, 1950, ch. 967, § 2, 64 Stat. 873, which is classified generally to chapter 16 (§ 1811 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 1811 of this title and Tables. Enactment of the Bank Holding Company Act Amendments of 1970, referred to in subsec. (b), means enactment of Pub. L. 91–607, on Dec. 31, 1970. For classi- fication of Pub. L. 91–607, see Short Title of 1970 Amendment note below. Section 25 of the Federal Reserve Act, referred to in subsec. (c)(2)(G), is classified to subchapter I (§ 601 et seq.) of chapter 6 of this title. Section 25(a) of the Fed- eral Reserve Act, which is classified to subchapter II (§ 611 et seq.) of chapter 6 of this title, was renumbered section 25A of that act by Pub. L. 102–242, title I, § 142(e)(2), Dec. 19, 1991, 105 Stat. 2281. Sections 1727 and 1730a of this title, referred to in subsec. (i)(4), were repealed by Pub. L. 101–73, title IV, § 407, Aug. 9, 1989, 103 Stat. 363. A section 2(h)(2) company, referred to in subsec. (h)(3) to (5), is defined in subsec. (h)(2) of this section. The transfer date, referred to in subsec. (o)(4)(E), probably means the transfer date defined in section 5301 of this title. AMENDMENTS 2010—Subsec. (c)(2)(F)(v). Pub. L. 111–203, § 628, in- serted ‘‘, other than credit card loans that are made to businesses that meet the criteria for a small business concern to be eligible for business loans under regula- tions established by the Small Business Administration under part 121 of title 13, Code of Federal Regulations’’ before the period. Subsec. (j)(3). Pub. L. 111–203, § 354(1), substituted ‘‘ap- propriate Federal banking agency’’ for ‘‘Director of the Office of Thrift Supervision’’. Subsec. (o)(4)(D), (E). Pub. L. 111–203, § 623(b)(2), added subpars. (D) and (E). 2006—Subsec. (c)(2)(I), (J). Pub. L. 109–351, § 727(a)(1), struck out subpars. (I) and (J), which related to the In- vestors Fiduciary Trust Company, located in Kansas City, Missouri, and certain savings banks as defined by section 1831(g) of this title, respectively. Subsec. (g)(2). Pub. L. 109–351, § 706, inserted before pe- riod at end ‘‘, unless the Board determines that such treatment is not appropriate in light of the facts and circumstances of the case and the purposes of this chapter’’. Subsec. (j)(2). Pub. L. 109–173 substituted ‘‘Deposit In- surance Fund’’ for ‘‘Savings Association Insurance Fund’’. Pub. L. 109–171 repealed Pub. L. 104–208, § 2704(d)(17). See 1996 Amendment note below. Subsec. (m). Pub. L. 109–351, § 727(a)(2), substituted ‘‘(m) [Repealed]’’ for subsec. (m), which defined ‘‘quali- fied savings bank’’. 2004—Subsec. (c)(3). Pub. L. 108–386 struck out head- ing and text of par. (3). Text read as follows: ‘‘The term ‘District bank’ means any bank operating under the Code of Law for the District of Columbia’’. 1999—Subsec. (a)(5)(E)(i). Pub. L. 106–102, § 724, in- serted ‘‘1 or more’’ before ‘‘thrift institutions’’. Subsec. (c)(2)(H). Pub. L. 106–102, § 107(c), inserted ‘‘, or that is otherwise permissible for a bank con- trolled by a company described in section 1843(f)(1) of this title’’ before period at end of concluding provi- sions. Subsec. (n). Pub. L. 106–102, § 103(c)(1)(A), inserted ‘‘ ‘depository institution’,’’ after ‘‘the terms’’. Subsec. (o)(1)(A). Pub. L. 106–102, § 119, substituted ‘‘section 38’’ for ‘‘section 38(b)’’. Subsecs. (p), (q). Pub. L. 106–102, § 103(c)(1)(B), added subsecs. (p) and (q). 1996—Subsec. (b). Pub. L. 104–208, § 2610(1), inserted ‘‘, and shall not include a qualified family partnership’’ after ‘‘by any State’’. Page 1221 TITLE 12—BANKS AND BANKING § 1841 Subsec. (c)(2)(F). Pub. L. 104–208, § 2304(b), inserted ‘‘, including an institution that accepts collateral for extensions of credit by holding deposits under $100,000, and by other means’’ after ‘‘An institution’’ in intro- ductory provisions. Subsec. (g)(3). Pub. L. 104–208, § 2207, struck out par. (3) which read as follows: ‘‘shares transferred after Jan- uary 1, 1966, by any bank holding company (or by any company which, but for such transfer, would be a bank holding company) directly or indirectly to any trans- feree that is indebted to the transferor, or has one or more officers, directors, trustees, or beneficiaries in common with or subject to control by the transferor, shall be deemed to be indirectly owned or controlled by the transferor unless the Board, after opportunity for hearing, determines that the transferor is not in fact capable of controlling the transferee.’’ Subsec. (j)(2). Pub. L. 104–208, § 2704(d)(17), which di- rected substitution of ‘‘Deposit Insurance Fund’’ for ‘‘Savings Association Insurance Fund’’, was repealed by Pub. L. 109–171. See Effective Date of 1996 Amendment note below and 2006 Amendment note above. Subsec. (o)(1). Pub. L. 104–208, § 2208(b)(1), added head- ing and text of par. (1) and struck out heading and text of former par. (1). Text read as follows: ‘‘The term ‘ade- quately capitalized’ means a level of capitalization which meets or exceeds all applicable Federal regu- latory capital standards.’’ Subsec. (o)(8), (9). Pub. L. 104–208, § 2208(b)(2), added pars. (8) and (9). Subsec. (o)(10). Pub. L. 104–208, § 2610(2), added par. (10). 1994—Subsecs. (n), (o). Pub. L. 103–328 added subsecs. (n) and (o). 1989—Subsec. (j). Pub. L. 101–73 amended subsec. (j) generally, substituting provisions defining ‘‘saving as- sociation’’ or ‘‘insured institution’’ for provisions de- fining ‘‘insured institution’’. 1987—Subsec. (a)(5)(E). Pub. L. 100–86, § 101(e), amend- ed subpar. (E) generally. Prior to amendment, subpar. (E) read as follows: ‘‘No company is a bank holding company by virtue of its ownership or control of any State chartered bank or trust company which is wholly owned by thrift institutions and which restricts itself to the acceptance of deposits from thrift institutions, deposits arising out of the corporate business of its owners, and deposits of public moneys.’’ Subsec. (c). Pub. L. 100–86, § 101(a)(1), amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: ‘‘ ‘Bank’ means any institution organized under the laws of the United States, any State of the United States, the District of Columbia, any territory of the United States, Puerto Rico, Guam, American Samoa, or the Virgin Islands, except an institution the ac- counts of which are insured by the Federal Savings and Loan Insurance Corporation or an institution chartered by the Federal Home Loan Bank Board, which (1) ac- cepts deposits that the depositor has a legal right to withdraw on demand, and (2) engages in the business of making commercial loans. Such term does not include any organization operating under section 25 or section 25 (a) of the Federal Reserve Act, or any organization which does not do business within the United States ex- cept as an incident to its activities outside the United States. ‘District bank’ means any bank organized or operating under the Code of Law for the District of Co- lumbia. The term ‘bank’ also includes a State char- tered bank or a national banking association which is owned exclusively (except to the extent directors’ qualifying shares are required by law) by other deposi- tory institutions or by a bank holding company which is owned exclusively by other depository institutions and is organized to engage exclusively in providing services for other depository institutions and their offi- cers, directors, and employees.’’ Subsec. (h)(2). Pub. L. 100–86, § 205(a), added par. (2) and struck out former par. (2) which read as follows: ‘‘The prohibitions of section 1843 of this title shall not apply to shares of any company organized under the laws of a foreign country (or to shares held by such company in any company engaged in the same general line of business as the investor company or in a busi- ness related to the business of the investor company) that is principally engaged in business outside the United States if such shares are held or acquired by a bank holding company organized under the laws of a foreign country that is principally engaged in the banking business outside the United States, except that (1) such exempt foreign company (A) may engage in or hold shares of a company engaged in the business of underwriting, selling or distributing securities in the United States only to the extent that a bank holding company may do so under this chapter and under regu- lations or orders issued by the Board under this chap- ter, and (B) may engage in the United States in any banking or financial operations or types of activities permitted under section 1843(c)(8) of this title or in any order or regulation issued by the Board under such sec- tion only with the Board’s prior approval under that section, and (2) no domestic office or subsidiary of a bank holding company or subsidiary thereof holding shares of such company may extend credit to a domes- tic office or subsidiary of such exempt company on terms more favorable than those afforded similar bor- rowers in the United States.’’ Subsec. (h)(3) to (5). Pub. L. 100–86, § 205(a), added pars. (3) to (5). Subsec. (i). Pub. L. 100–86, § 101(a)(2), amended subsec. (i) generally. Prior to amendment, subsec. (i) read as follows: ‘‘The term ‘thrift institution’ means (1) a do- mestic building and loan or savings and loan associa- tion, (2) a cooperative bank without capital stock orga- nized and operated for mutual purposes and without profit, (3) a mutual savings bank not having capital stock represented by shares or (4) a Federal savings bank.’’ Subsecs. (j) to (m). Pub. L. 100–86, § 101(a)(3), added subsecs. (j) to (m). 1982—Subsec. (c). Pub. L. 97–320, § 404(d)(1), inserted references to State chartered banks and national bank- ing associations as being included in definition of ‘‘bank’’. Pub. L. 97–320, § 333, excepted from term ‘‘bank’’ an institution the accounts of which are insured by the Federal Savings and Loan Insurance Corporation or an institution chartered by the Federal Home Loan Bank Board. Subsec. (i)(4). Pub. L. 97–320, § 118(b), added cl. (4). 1978—Subsec. (h). Pub. L. 95–369 designated existing provisions as par. (1), substituted ‘‘Except as provided by paragraph (2), the application’’ for ‘‘The applica- tion’’; struck out a proviso holding the prohibitions of section 1843 not applicable to shares of any company organized under the laws of a foreign country not doing business within the United States, if such shares are held or acquired by a bank holding company prin- cipally engaged in banking business outside the United States; and added par. (2). 1977—Subsec. (a)(5)(D). Pub. L. 95–188 authorized the Board to extend the time for disposition of acquired shares for not more than one year at a time and three years in the aggregate. 1970—Subsec. (a). Pub. L. 91–607, § 101(a), in revising the provisions, added par. (1) definition of bank holding company; incorporated provisions of former cl. (1) in provisions designated as par. (2)(A), inserting text re- specting company acting through one or more other persons, substituting ‘‘power to vote’’ for ‘‘holds with power to vote’’ and provision for voting of any class of voting securities of the bank or company for prior pro- vision for voting of voting shares of each of two or more banks; incorporated former provisions of former cl. (2) in provisions designated as par. (2)(B), providing for election of trustees and substituting bank or com- pany for directors of each of two or more banks des- ignated cl. (A) as par. (5)(A), inserting provision that acquisition of shares shall not be deemed acquisition of shares in a fiduciary capacity if the banks or company has sole discretionary authority to exercise voting rights with respect thereto, and making such limita- Page 1222 TITLE 12—BANKS AND BANKING § 1841 tion applicable to bank or company acquiring the shares prior to Dec. 31, 1970, where there is right of di- vestiture of voting rights and there is a failure to exer- cise that right within reasonable time not exceeding one year after Dec. 31, 1970; incorporated former cls. (B) and (C) in provisions designated as pars. (5)(B) and (C); added par. (5)(D) to (F); and designated concluding part of first sentence as par. (6), substituting ‘‘from the date on which’’ for ‘‘from the date as of which’’. Subsec. (b). Pub. L. 91–607, § 101(b), redefined term ‘‘company’’ to include ‘‘partnership’’, which has been expressly excluded, and inserted definition of ‘‘com- pany covered in 1970’’. Subsec. (c). Pub. L. 91–607, § 101(c), redefined term ‘‘bank’’ to mean any institution organized under Fed- eral, State, District of Columbia, etc., laws, designated existing provisions as cl. (1), added cl. (2), and excepted from exclusion from such term an organization which does business within the United States as an incident to its activities outside the United States. Subsec. (d)(3). Pub. L. 91–607, § 101(d), added cl. (3). Subsec. (i). Pub. L. 91–607, § 101(e), added subsec. (i). 1966—Subsec. (a). Pub. L. 89–485, § 1, struck out provi- sion placing within the classification of bank holding company any company for the benefit of whose share- holders or members 25 per centum or more of the vot- ing shares of each of two or more banks or a bank hold- ing company is held by trustees, struck out provision exempting from classification as bank holding compa- nies any companies that are registered under the In- vestment Company Act of 1940, and were so registered prior to May 15, 1955 (or which is affiliated with any such company in such manner as to constitute an affili- ated company within the meaning of that Act), unless that company (or affiliated company), as the case may be, directly owns 25 per centum or more of the voting shares of each of two or more banks, struck out provi- sion exempting from classification as bank holding companies any companies having 80 per centum or more of their total assets composed of holdings in the field of agriculture, substituted voting shares for shares in the description of the securities the owner- ship or control of which, in a fiduciary capacity, would be exempted from causing the formation of a bank holding company, added ‘‘company’’ to ‘‘bank’’ as the business entities eligible for the fiduciary ownership exemption, and inserted reference in the fiduciary own- ership exemption to pars. (2) and (3) of subsec. (g) of this section. Subsec. (b). Pub. L. 89–485, § 2, exempted from defini- tion of ‘‘company’’ any trust which by its terms must terminate within twenty-five years or not later than twenty-one years and ten months after the death of in- dividuals living on the effective date of the trust, and struck out the exemption formerly granted to non- profit religious, charitable, and educational organiza- tions. Subsec. (c). Pub. L. 89–485, § 3, substituted ‘‘any insti- tution that accepts deposits that the depositor has a legal right to withdraw on demand’’ for ‘‘any national banking institution or any state bank, savings bank, or trust company’’ in the definition of ‘‘bank’’ and ex- tended the exemption for foreign banking corporations to include ‘‘agreement’’ foreign banking corporations under section 25 of the Federal Reserve Act. Subsec. (d). Pub. L. 89–485, § 4, inserted provision re- lating to indirect ownership or control and the holding of power to vote to direct ownership or control as the methods by which the holding of 25 per centum or more of voting shares in a company will qualify that com- pany as a subsidiary, and struck out provisions under which any company 25 per centum or more of whose voting shares are held by trustees for the benefit of the shareholders or members of a bank holding company qualifies as a subsidiary. Subsec. (g). Pub. L. 89–485, §§ 5, 6, substituted provi- sions setting out treatment to be accorded shares owned or controlled by subsidiaries of bank holding companies, shares held or controlled by trustees for the benefit of companies, shareholders or members of com- panies, and employees of companies, and shares trans- ferred after January 1, 1966, by bank holding companies to transferees that are indebted to the transferor or have one or more officers, directors, trustees, or bene- ficiaries in common with the transferor for provisions defining ‘‘agriculture’’. Subsec. (h). Pub. L. 89–485, § 6, added subsec. (h). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2010 AMENDMENT Amendment by section 354(1) of Pub. L. 111–203 effec- tive on the transfer date, see section 351 of Pub. L. 111–203, set out as a note under section 906 of Title 2, The Congress. Amendment by sections 623(b)(2) and 628 of Pub. L. 111–203 effective 1 day after July 21, 2010, except as oth- erwise provided, see section 4 of Pub. L. 111–203, set out as an Effective Date note under section 5301 of this title. EFFECTIVE DATE OF 2006 AMENDMENT Amendment by Pub. L. 109–173 effective Mar. 31, 2006, see section 9(j) of Pub. L. 109–173, set out as a note under section 24 of this title. Amendment by Pub. L. 109–171 effective no later than the first day of the first calendar quarter that begins after the end of the 90-day period beginning Feb. 8, 2006, see section 2102(c) of Pub. L. 109–171, set out as a Merger of BIF and SAIF note under section 1821 of this title. EFFECTIVE DATE OF 2004 AMENDMENT Amendment by Pub. L. 108–386 effective Oct. 30, 2004, and, except as otherwise provided, applicable with re- spect to fiscal year 2005 and each succeeding fiscal year, see sections 8(i) and 9 of Pub. L. 108–386, set out as notes under section 321 of this title. EFFECTIVE DATE OF 1999 AMENDMENT Amendment by sections 103(c)(1), 107(c), and 119 of Pub. L. 106–102 effective 120 days after Nov. 12, 1999, see section 161 of Pub. L. 106–102, set out as a note under section 24 of this title. EFFECTIVE DATE OF 1996 AMENDMENT Amendment by section 2704(d)(17) of Pub. L. 104–208 effective Jan. 1, 1999, if no insured depository institu- tion is a savings association on that date, see section 2704(c) of Pub. L. 104–208, formerly set out as a note under section 1821 of this title. EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–328 effective at end of 1- year period beginning on Sept. 29, 1994, see section 101(e) of Pub. L. 103–328, set out as a note under section 1828 of this title. SHORT TITLE OF 1988 AMENDMENT Pub. L. 100–418, title III, § 3401, Aug. 23, 1988, 102 Stat. 1384, provided that: ‘‘This subtitle [subtitle E (§§ 3401, 3402) of title III of Pub. L. 100–418, amending section 1843 of this title] may be cited as the ‘Export Trading Company Act Amendments of 1988’.’’ SHORT TITLE OF 1982 AMENDMENT Pub. L. 97–290, title II, § 201, Oct. 8, 1982, 96 Stat. 1235, provided that: ‘‘This title [enacting section 635a–4 of this title, amending sections 372 and 1843 of this title, and enacting provisions set out as notes under section 1843 of this title] may be cited as the ‘Bank Export Services Act’.’’ SHORT TITLE OF 1970 AMENDMENT Pub. L. 91–607, § 1, Dec. 31, 1970, 84 Stat. 1760, provided: ‘‘That this Act [enacting chapter 22 (§ 1971 et seq.) and section 1850 of this title and sections 324b and 324c of former Title 31, Money and Finance, amending sections Page 1223 TITLE 12—BANKS AND BANKING § 1842 1841 to 1843 and 1849 of this title and sections 324, 391 of former Title 31, repealing sections 316 and 458 of former Title 31, enacting provisions set out as notes under sec- tions 317e and 391 of former Title 31, and amending pro- visions set out as a note under section 405a–1 of former Title 31] may be cited as the ‘Bank Holding Company Act Amendments of 1970’.’’ SHORT TITLE Act May 9, 1956, ch. 240, § 1, 70 Stat. 133, provided: ‘‘That this Act [enacting this chapter and sections 1101 to 1103 of Title 26, Internal Revenue Code] may be cited as the ‘Bank Holding Company Act of 1956’.’’ SEPARABILITY Act May 9, 1956, ch. 240, § 12, 70 Stat. 146, provided that: ‘‘If any provision of this Act [enacting this chap- ter and sections 1101 to 1103 of Title 26, Internal Rev- enue Code], or the application of such provision to any person or circumstance, shall be held invalid, the re- mainder of the Act, and the application of such provi- sion to persons or circumstances other than those to which it is held invalid, shall not be affected thereby.’’ TRANSFER OF FUNCTIONS Federal Savings and Loan Insurance Corporation abolished and functions transferred, see sections 401 to 406 of Pub. L. 101–73, set out as a note under section 1437 of this title. TRANSITIONAL RULE FOR 1987 AMENDMENT Pub. L. 100–86, title I, § 101(h), Aug. 10, 1987, 101 Stat. 563, provided that: ‘‘(1) DELAY IN APPLICATION OF AMENDMENT TO CERTAIN INSTITUTIONS.—If— ‘‘(A) on March 5, 1987, an institution was not a bank (as defined in section 2(c) of the Bank Holding Com- pany Act of 1956 [12 U.S.C. 1841(c)]), as in effect on such date; and ‘‘(B) any person which had a controlling interest in such institution on March 5, 1987, made a public an- nouncement before such date that the transfer or other disposition of such person’s controlling interest in such institution was being considered, the institution shall not become a bank (for purposes of the Bank Holding Company Act of 1956 [12 U.S.C. 1841 et seq.]) due to the amendment made to such section 2(c) by this section before the date on which such insti- tution fails to meet any requirement of paragraph (2). ‘‘(2) REQUIREMENTS FOR APPLICATION OF SUBSECTION.— This subsection shall not apply with respect to any in- stitution described in paragraph (1) unless— ‘‘(A) the transfer or other disposition of the con- trolling interest referred to in such paragraph is com- pleted, or an agreement to make such transfer or other disposition is in effect (or is subject only to final approval by the appropriate Federal and State regulatory agencies), before the end of the 180-day pe- riod beginning on the date of the enactment of this title [Aug. 10, 1987]; ‘‘(B) a written notice by the person acquiring a con- trolling interest in such institution (pursuant to the transfer or other disposition described in subpara- graph (A)) of such person’s intention to operate such institution as an institution described in section 2(c)(2)(F) of the Bank Holding Company Act of 1956, as in effect after the enactment of this title is filed with the Board before the end of the 7-day period be- ginning on the later of the date of such transfer (or other disposition) or the date of the enactment of this title; and ‘‘(C) the operation of such institution as an institu- tion described in such section 2(c)(2)(F) begins before the end of the 180-day period beginning on the date the transfer (or other disposition) described in sub- paragraph (A) is completed. ‘‘(3) CONTROLLING INTEREST.—For purposes of this subsection, a person has a controlling interest in any institution if such person controls— ‘‘(A) such institution; or ‘‘(B) any company which controls such institution, as determined in accordance with the provisions of sub- sections (b) and (g) of section 2 of the Bank Holding Company Act of 1956.’’ MORATORIUM ON CERTAIN NONBANKING ACTIVITIES Pub. L. 100–86, title II, §§ 201–203, Aug. 10, 1987, 101 Stat. 581–584, provided for the period of Mar. 6, 1987, to Mar. 1, 1988, a moratorium on certain nonbanking ac- tivities, including expansion of activities of foreign banks and authority of Federal banking agencies to au- thorize or allow certain security, insurance, or real es- tate activities. § 1842. Acquisition of bank shares or assets (a) Prior approval of Board as necessary; excep- tions; disposition, time extension; subsequent approval or disposition upon disapproval It shall be unlawful, except with the prior ap- proval of the Board, (1) for any action to be taken that causes any company to become a bank holding company; (2) for any action to be taken that causes a bank to become a subsidiary of a bank holding company; (3) for any bank holding company to acquire direct or indirect ownership or control of any voting shares of any bank if, after such acquisition, such company will directly or indirectly own or control more than 5 per centum of the voting shares of such bank; (4) for any bank holding company or sub- sidiary thereof, other than a bank, to acquire all or substantially all of the assets of a bank; or (5) for any bank holding company to merge or con- solidate with any other bank holding company. Notwithstanding the foregoing this prohibition shall not apply to (A) shares acquired by a bank, (i) in good faith in a fiduciary capacity, except where such shares are held under a trust that constitutes a company as defined in section 1841(b) of this title and except as provided in paragraphs (2) and (3) of section 1841(g) of this title, or (ii) in the regular course of securing or collecting a debt previously contracted in good faith, but any shares acquired after May 9, 1956, in securing or collecting any such previously contracted debt shall be disposed of within a pe- riod of two years from the date on which they were acquired; (B) additional shares acquired by a bank holding company in a bank in which such bank holding company owned or controlled a majority of the voting shares prior to such ac- quisition; or (C) the acquisition, by a company, of control of a bank in a reorganization in which a person or group of persons exchanges their shares of the bank for shares of a newly formed bank holding company and receives after the re- organization substantially the same propor- tional share interest in the holding company as they held in the bank except for changes in shareholders’ interests resulting from the exer- cise of dissenting shareholders’ rights under State or Federal law if— (i) immediately following the acquisition— (I) the bank holding company meets the capital and other financial standards pre- scribed by the Board by regulation for such a bank holding company; and (II) the bank is adequately capitalized (as defined in section 1831o of this title); (ii) the holding company does not engage in any activities other than those of managing