It is the policy of the Comptroller of the Currency to permit the issuance of preferred stock by national banking associations in accordance with normal business considerations. Subject to the provisions of 12 U.S.C. 51a, 51b, and 51b-1, the bank may, by vote of stockholders owning a majority of the stock of the bank, issue convertible or nonconvertible preferred stock of one or more classes, with such other provisions and in such amount and with such par value as shall be approved by the Comptroller, and make such amendments to its Articles of Association as may be necessary for this purpose.

§ 14.5 Capital debentures.

(a) It is the policy of the Comptroller of the Currency to permit the issuance of convertible or nonconvertible capital debentures by national banking associations in accordance with normal business considerations.

(b) Subject to the provisions of 12 U.S.C. 82, the bank may, with the approval of stockholders owning two-thirds of the stock of the bank, entitled to vote, or without such approval if authorized by its Articles of Association, issue convertible or nonconvertible capital debentures in such amounts and under such terms and conditions as shall be approved by the Comptroller: Provided, however, That the principal amount of capital debentures outstanding at any time, when added to all other outstanding indebtedness of the bank, except those forms of indebtedness exempt from the provisions of 12 U.S.C. 82, shall not exceed an amount equal to 100 percent of the bank's unimpaired paid-in capital stock plus 50 percent of the amount of its unimpaired surplus fund.

§ 14.6 Other increases of capital.

(a) Applications by a national banking association on Form 1904-B for the Comptroller's preliminary approval of proposed sales of additional common

capital stock, other than under an employee stock option or employee stock purchase plan which has previously been approved by the stockholders of the bank and by the Comptroller pursuant to Part 13 of this chapter, and other than pursuant to the preceding sections of this part, shall be filed with the appropriate Regional Administrator of National Banks, whose approval shall be deemed to be the preliminary approval of the Comptroller. Upon such approval, the bank may proceed to obtain the approval of stockholders pursuant to the provisions of 12 U.S.C. 57, if such approval has not been obtained previously under the procedures set forth in § 14.2.

(b) The Regional Administrator will communicate his written approval to the bank within 30 days after his receipt of the application. In cases where the Regional Administrator disapproves the proposed increase of capital, he shall forward the application to the Office of the Comptroller in Washington for final disposition, and shall advise the bank of such referral.

§ 14.7 Applications for approval.

Applications by a national banking association for the Comptroller's preliminary approval of a change in capital structure shall be filed with the principal office of the Comptroller in Washington, except as provided in §§ 14.3 and 14.6. § 14.8

Effectiveness of increase.

Pursuant to the provisions of 12 U.S.C. 57, no increase in the capital of a national banking association shall be valid until the whole amount of such increase is paid in or in the case of an increase by way of a stock dividend until such stock dividend has been duly declared by the stockholder, and notice thereof, duly acknowledged before a notary public by the president, vice president or cashier of the bank has been transmitted to the Comptroller of the Currency and his certificate obtained specifying the amount of such increase in capital and his final approval thereof.

99-127 O-69-9

§ 15.1

Scope and application.

(a) On and after October 1, 1964, each national bank shall promptly notify the Comptroller of the Currency whenever a change occurs in the ownership of its outstanding voting stock of sufficient magnitude to effect a change in control of the bank.

(b) Any loan or loans made by a national bank and secured or to be secured by 25 per centum or more of the outstanding voting stock of an insured bank shall be reported as specified in § 15.3. § 15.2 Change in control-own bank. (a) It shall be the duty of the president or other chief executive officer of a national bank to submit a report to the Comptroller of the Currency whenever he believes that a change in controlling ownership of his bank has taken place. If there is any doubt concerning whether a particular change in ownership is sufficient to effect a change in control, such doubt shall be resolved in favor of submitting a report to the Comptroller. The report shall be in letter form and shall contain the following information to the extent that it is known to the person

making the report: (1) The number of shares involved; (2) the identity of the sellers (or transferors); (3) the names of the purchasers (or transferees); (4) the names of the beneficial owners if the shares are registered in another name; (5) the purchase price; (6) the total number of shares owned by the sellers (or transferors), the purchasers (or transferees); and (7) beneficial owners both immediately prior to and after the transaction.

(b) The term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of the bank.

§ 15.3 Report of loans secured by stock of other insured banks.

(a) Whenever a national bank makes a loan or loans, secured, or to be secured, by 25 per centum or more of the outstanding voting stock of an insured bank, the president or other chief executive officer of the lending bank shall promptly report such fact to the Board of Governors of the Federal Reserve System where the shares of a member bank are pledged or to the Federal Deposit Insurance Corporation where the shares of a nonmember insured bank are pledged. No report need be made in those cases where the borrower has been the owner of record of the stock for a period of 1 year or more, or the stock is that of a newly organized bank prior to its opening.

(b) The reports required under this section shall contain, to the extent that it is known by the person making the report, the same information called for in § 15.2.

§ 16.1 Authority and scope of application.

(a) This part is issued under the general authority of the national banking laws, R.S. 324 et seq., as amended; 12 U.S.C. 1 et seq. and section 12, Securities Exchange Act of 1934, as amended, and contains all the rules applicable to national banks concerning the public offering of their securities.

(b) This part shall apply to any public offering of a security of an existing national bank, or a new national bank (one which has not yet received its charter), by, for, or on behalf of such bank unless specified herein to the contrary.

(c) This part shall not apply to an offering of a national bank's securities made pursuant to a stock option, bonus, deferred compensation, or similar plan, provided that such plan has been approved by the Comptroller of the Currency.

(d) This part shall not apply to an offering of a national bank's short term commercial paper if the Comptroller of the Currency determines in the public interest that the protection of this part is not required.

§ 16.2

EXISTING NATIONAL BANKS

Registration of securities of existing national banks.

No existing national bank shall publicly offer or sell any of its securities unless such securities shall have been made the subject of a registration statement filed in the Office of the Comptroller of the Currency (in the case of offers) and declared effective (in the case of sales), except that this section shall not apply in respect of a public offering where prior to such offering no class of the national bank's equity securities is held of record by more than 750 persons (after May 1, 1967, 500 or more persons) or the total public offering price of such offering is less than $1 million.

§ 16.3 Content of registration statement.

The registration statement and offering circular (which may be identical to the registration statement) filed pursuant to this part shall contain at a minimum the following information:

(a) Issuer. On the outside front cover page of the registration statement and offering circular: (1) The exact name and address of the issuing national bank; (2) that the issuance of these securities is subject to the approval of and the regulations of the Comptroller of the Currency of the United States; and (3) the date the registration statement or amendment is declared effective.

(b) Distribution. On the same page referred to in the preceding paragraph state: (1) The number of and dollar amount of securities being offered; (2) the per security and aggregate offering price and the per security and aggregate proceeds to be received by the national bank; (3) the proposed means of distribution; and (4) the expenses to be incurred in connection with the offering.

(c) Use of proceeds. A brief statement of the intended uses of the proceeds of the offering.

(d) Business of the bank. A brief statement as to the history and nature of the bank's present or proposed operations, including a description of its premises and facilities.

present or proposed directors and principal officers and their principal occupations during the past 10 years. (2) For such of the persons specified in the preceding paragraph who will receive in the current fiscal year or, who have received remuneration in the past fiscal year in excess of $25,000 per year from the national bank, the aggregate amount of remuneration received by all such persons. (3) A brief description of any present or contemplated bonus, retirement, pension, stock option or other similar plan or provisions and the class of persons covered. (4) Any present or proposed material interest or transaction between the bank and any director, or officer thereof, other than in the ordinary course of banking business. Describe any such interest or transaction that occurred within the preceding 3 years; if none, so state.

(g) Principal security holders. To the extent known: (1) The percentage of outstanding securities which will be held as a group, by directors and principal officers and the percentage of such securities which will be held by the public if all the securities offered are sold; and (2) the name, address and relationship to the national bank of any person who beneficially owns or will own 10 percent or more of the outstanding capital stock of the national bank.

(h) Capitalization and long-term debt. State in tabular form as of a date within 90 days of filing, the title of and amount in each category of capital and long-term debt account, the amount authorized or to be authorized, and the amount to be outstanding, assuming all the securities being registered are sold.

(i) Description of registered securities. (1) In the case of equity securities; briefly describe, if applicable, the dividend, voting, liquidation, preemptive, and conversion rights, redemptive and sinking fund provisions, and liability to further calls or assessment. (2) In the case of debt securities; briefly describe, if applicable, the provisions with respect to interest, conversion, maturity, redemption, amortization, sinking fund or retirement; the provisions with respect to the kind and priority of any lien securing the issue; the provisions restricting the declaration of dividends or requiring the maintenance of any ratio of assets, creation or maintenance of reserves or the maintenance of properties; the provisions permitting or restricting the issuance of additional securities,

withdrawal of cash deposited against such issuance, incurring of additional debt, release or substitution of assets securing the issue, modification of the terms of the security, and any other similar provisions.

(j) Legal proceedings. Any material pending or threatened legal proceedings to which the national bank is a party or of which any of its property is the subject.

§ 16.4 Filing of registration statement and use of offering circular.

(a) No person on behalf of or for an existing national bank shall offer to sell or solicit any offer to buy any security of a national bank being publicly offered by a national bank unless prior to, or at the time of such offer or solicitation, a copy of an offering circular which has been filed pursuant to this part is furnished to the potential purchaser by the person making the offer or solicitation.

(b) No securities of an existing national bank subject to this part shall be sold, or confirmation of sale relating thereto be delivered after sale, by, for, or on behalf of the bank unless at the time of sale or prior to such sale, the purchaser of such security has received an offering circular which forms part of a registration statement declared effective by the Comptroller of the Currency.

(c) The offering circular shall be used in accordance with this part until the completion of the distribution of the registered securities. If the distribution is not completed within 12 months from the effective date of the registration statement, an amended registration statement shall be filed and a revised offering circular shall be used in accordance with this part as for an original offering circular. In no event shall an offering circular be used which is false or misleading in light of the circumstances then existing. In cases of dispute, the final determination of whether any statement is false or misleading shall be made only by the Comptroller of the Currency after such investigation and proceedings as he shall deem necessary in the circumstances.

(d) Filings shall be made in quadruplicate and may be printed, lithographed, typewritten or prepared by similar process resulting in clearly legible permanent copies. One copy of all filings made pursuant to this part shall be manually subscribed by the national bank's Chief Executive Officer and Cashier.

Any written advertisement (or other written communication, if not accompanied by an offering circular) or any film, radio, or television broadcast, which refers to a present or proposed public offering of securities by an existing national bank may be published, distributed, or broadcast only after the filing of a registration statement covering such securities, and provided that it contains no more than the following information: (a) The name and address of the issuer of the security; (b) the title of the security, the dollar amount and number of securities being offered, and the perunit offering price to the public; and (c) where a copy of the offering circular may be obtained.

NEW NATIONAL BANKS

§ 16.6 Registration of securities of new national banks.

No new national bank shall sell any of its securities unless such securities shall have been made the subject of a registration statement filed in the Office of the Comptroller of the Currency which has been declared effective by the Comptroller.

[33 F.R. 2381, Jan. 31, 1968]

§ 16.7 Content of registration statement.

The registration statement and offering circular (which may be identical to the registration statement) filed pursuant to this part shall contain at a minimum the following information:

(a) Issuer. On the outside front cover page of the registration statement and offering circular: (1) The proposed name and the address of the issuing national bank; (2) that the issuance of these securities is subject to the approval of and the regulations of the Comptroller of the Currency of the United States; (3) that the designated officers and directors are subject to change upon order of the Comptroller of the Currency and (4) the date the registration statement or amendment is declared effective.

(b) Distribution. On the same page referred to in the preceding paragraph state: (1) The number of and dollar amount of securities being offered; (2) the per security and aggregate offering

price and the per security and aggregate proceeds to be received by the national bank; (3) the proposed means of distribution; and (4) the expenses to be incurred in connection with the offering.

(c) Use of proceeds. A brief statement of the intended uses of the proceeds of the offering.

(d) Business of the bank. A brief statement as to the nature of the bank's proposed operations, including a description of its premises and facilities.

(e) Financial statements. As of the date it is contemplated business will be commenced, a pro forma statement of capital and surplus and balance sheet.

(f) Management. (1) The full names and complete residence addresses of all organizers, present or proposed directors, and principal officers and their principal occupations during the past 10 years. (2) For such of the persons specified in the preceding sentence who will receive in the current fiscal year in excess of $25,000 per year from the national bank, the aggregate amount or remuneration received by all such persons. (3) A brief description of any present or contemplated bonus, retirement, pension, stock option, or other similar plan or provisions and the class of persons covered. (4) Any existing or proposed material interest or transaction between the bank and any organizer, director, or officer thereof, other than in the ordinary course of banking business.

(g) Principal security_holders. To the extent known: (1) The percentage of outstanding securities which will be held as a group, by directors, principal officers, and organizers and the percentage of such securities which will be held by the public if all the securities offered are sold; and (2) the name, address, and relationship to the national bank of any person who beneficially owns or will own 10 percent or more of the outstanding capital stock of the national bank.

(h) Description of registered securities. In the case of equity securities; briefly describe, if applicable, the dividend, voting, liquidation, preemptive, and conversion rights, redemptive and sinking fund provisions, and liability to further calls or assessment.

(i) Legal proceedings. Any material pending or threatened legal proceedings to which the national bank is a party or of which any of its property is the subject.