§ 334.2 Form of assurances.

Unless additional or different assurances are considered necessary by the Board of Directors in specific cases, the assurances referred to in § 334.1 may be submitted in the form of a letter (or separate letters) signed by a duly authorized officer of the insured State nonmember bank and by the party (or a duly authorized officer or representative of such party) that will perform the services for the bank, stating, in substance, that the bank and the party performing such services have entered into an agreement that the performance of the services will be subject to regulation and examination by the Board of Directors to the same extent as if such services were being performed by the bank itself on its own premises. All such letters of assurances shall be addressed to the Regional Director of the Federal Deposit Insurance Corporation Region in which the insured State nonmember bank has its main office.

[28 F.R. 3201, Apr. 3, 1963, as amended at 36 F.R. 1248, Jan. 27, 1971]

§ 334.3 Time for furnishing assurances.

As to any arrangement for the performance of bank services entered into or renewed after the effective date of this part, assurances complying with § 334.2 shall be furnished prior to the performance of any services for the bank under the bank service arrangement. With respect to any bank service arrangement entered into prior to the effective date of this part, such assurances shall be furnished within 30 days after the effective date of this part, unless a letter of assurance covering such bank service arrangement has been furnished previously pursuant to the Board of Directors' "Statement for State Nonmember insured Banks on the 'Bank Service Corporation Act' "issued October 24, 1962.

§ 334.4 Special situations.

It is the policy of the Corporation that assurances complying with § 334.2 need not be furnished in connection with arrangements for bank services which are immediately necessary because of emergency conditions or situations, or are required for short periods of time due to unusually heavy work demands, if the insured State nonmember bank promptly

advises the Regional Director of the Federal Deposit Insurance Corporation Region in which it has its main office of the circumstances involved and of the length of time during which any of the bank's books or records or any banking media will be removed from the bank's premises and of the location thereof, and unless the bank is advised by the Regional Director that such assurances must be furnished. Unless specifically requested by the Board of Directors, assurances complying with § 334.2 need not be furnished in connection with any arrangement by an insured State nonmember bank for the performance of legal, advisory, and administrative services, such as transportation or guard services. [28 F.R. 3201, Apr. 3, 1963, as amended at 32 F.R. 9638, July 4, 1967; 36 F.R. 1248, Jan. 27, 1971]

PART 335-SECURITIES OF INSURED STATE NONMEMBER BANKS REGULATIONS

Sec.

335.1

335.2

335.3

335.4 335.5

335.6

335.7

335.41

Scope of part. Definitions.

Inspection and publication of information filed under the Act. Registration statements and reports. Proxy statements and other solicitations under section 14 of the Act. "Insiders' " securities transactions and reports under section 16 of the Act.

Form and content of financial statements.

FORMS

Form for registration of securities of a bank pursuant to section 12(b) or section 12(g) of the Securities Exchange Act of 1934 (Form F-1). 335.42 Form for annual report of bank (Form F-2).

335.43 Form for current report of a bank (Form F-3).

335.44 Form for quarterly report of bank (Form F-4).

335.46 Form for registration of additional class of securities of a bank pursuant to section 12(b) or section 12(g) of the Securities Exchange Act of 1934 (Form F-10).

335.47 Form for statement to be filed pursuant to § 335.4(g) (2) or § 335.5(1) of Part 335 (Form F-11)

Sec. 835.53 Form for statement to be filled pursu

ant to § 335.5 (m) of Part 335 (Form F-12). 835.61 Form for initial statement of beneficial ownership of equity securities (Form F-7).

835.62 Form for statement of changes in beneficial ownership of equity securities (Form F-8).

835.71 Form for financial statements (Forms F-9, A, B, C, and D). AUTHORITY: The provisions of this Part 335 issued under 15 U.S.C. 781, 78m, 78n, 78p. SOURCE: The provisions of this Part 335 appear at 30 F.R. 396, Jan. 12, 1965, unless otherwise noted.

REGULATIONS

§ 335.1 Scope of part.

This part is issued by the Federal Deposit Insurance Corporation (the "Corporation") pursuant to section 12(i) of the Securities Exchange Act of 1934, as amended (15 U.S.C. 78) (the "Act") and applies to all securities of a bank which is organized under State law, is insured by the Federal Deposit Insurance Corporation and is not a member of the Federal Reserve System ("bank") that are subject to the registration requirements of section 12(b) or section 12(g) of the Act.

For the purposes of this part, including all forms and instructions promulgated for use in connection herewith, unless the context otherwise requires:

(a) The terms "exchange", "director", "person", "security" and "equity security" have the meanings given them in section 3(a) of the Act.

(b) The term "affiliate" (whether referred to as an "affiliate" of, or a person "affiliated with, a specified person) means a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the person specified.

(c) The term "amount", when used with respect to securities, means the principal amount if relating to evidences of indebtedness, the number of shares if relating to shares, and the number of units if relating to any other kind of security.

(d) The term "associate", when used to indicate a relationship with any per

son, means (1) any corporation or organization (other than the bank or a subsidiary of the bank) of which such person is an officer or partner or is, directly or indirectly, either alone or together with one or more members of his immediate family, the beneficial owner of 10 percent or more of any class of equity securities, (2) any trust or other estate in which such person has a substantial beneficial interest or as to which such person serves as a trustee or in a similar fiduciary capacity, and (3) any relative or spouse of such person, or any relative of such spouse, who has the same home as such person or who is a director or officer of the bank or any of its parents or subsidiaries.

(e) The term "charter" includes articles of incorporation, declarations of trust, articles of association or partnership, or any similar instrument, as amended, effecting (either with or without filing with any governmental agency) the organization or creation of an incorporated or unincorporated person.

(f) The term "control" (including the terms "controlling", "controlled by", and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.

(g) The term "employee" does not include a director, trustee, or officer.

(h) The term "equity capital accounts" means capital stock, surplus, undivided profits, and reserve for contingencies and other capital reserves.

(1) The term "fiscal year" means the annual accounting period or, if no closing date has been adopted, the calendar year ending on December 31.

(j) (1) For the purpose of determining whether the registration requirements of section 12(g) (1) of the Act are applicable, securities shall be deemed to be "held of record" by each person who is identified the owner of such securities or records of security holders maintained by or on behalf of the bank, subject to the following:

(1) In any case where the records of security holders have not been maintained in accordance with accepted prac

tice, any additional person who would be identified as such an owner on such records if they had been maintained in accordance with accepted practices shall De included as a holder of record.

(i) Securities identified as held of record by a corporation, a partnership, a trust whether or not the trustees are named, or other organization shall be included as so held by one person.

(iii) Securities identified as held of record by one or more persons as trustees, executors, guardians, custodians, or in other fiduciary capacities with respect to a single trust, estate, or account shall be included as held of record by one person.

(iv) Securities held by two or more persons as co-owners shall be included as held by one person.

(v) Each outstanding unregistered or bearer certificate shall be included as held of record by a separate person, except to the extent that the bank can establish that, if such securities were registered, they would be held of record, under the provisions of this paragraph by a lesser number of persons.

(vi) Securities registered in substantially similar names, where the bank has reason to believe because of the address or other indications that such names represent the same person, may be included as held of record by one person.

(2) Notwithstanding

(1) of this paragraph:

subparagraph

(i) Securities held subject to a voting trust, deposit agreement, or similar arrangement shall be included as held of record by the record holders of the voting trust certificates, certificates of deposit, receipts, or similar evidences of interest in such securities; provided, however, that the bank may rely in good faith on such information as is received in response to its request from a nonaffiliated issuer of the certificates or interests.

(ii) If the bank knows or has reason to know that the form of holding securities of record is used principally to circumvent the provisions of section 12(g) (1) of the Act, the beneficial owners of such securities shall be deemed to be record owners thereof.

(k) The term "immediate family" includes a person's father, mother, spouse, brothers, sisters, sons and daughters, stepparents and stepchildren, and lineal ascendents and descendents. For the

purpose of determining whether any of the foregoing relationships exist, a legally adopted child shall be considered a child by blood.

(1) The term "listed" means admitted to full trading privileges upon application by the bank and includes securities for which authority to add to the list on official notice of issuance has been granted.

(m) The term "majority-owned subsidiary" means a subsidiary more than 50 percent of whose outstanding securities representing the right, other than as affected by events of default, to vote for the election of directors, is owned by the subsidiary's parent and/or one or more of the parent's other majority-owned subsidiaries.

(n) The term "material", when used to qualify a requirement for furnishing of information as to any subject, limits the information required to those matters as to which an average prudent investor ought reasonably to be informed before buying or selling the security registered.

(0) The term "officer" means a Chairman of the Board of Directors, Vice Chairman of the Board, Chairman of the Executive Committee, President, Vice President (except as indicated in the next sentence), Cashier, Treasurer, Secretary, Comptroller, and any other person who participates in major policymaking functions of the bank. In some banks (particularly banks with officers bearing titles such as Executive Vice President, Senior Vice President, or First Vice President as well as a number of "Vice Presidents"), some or all "Vice Presidents" do not participate in major policy-making functions, and such persons are not officers for the purpose of this Part.

(p) The term "option" means any option, warrant, or right other than those issued to security holders on a pro rata basis.

(q) The term "parent" of a specified person is a person controlling such person directly, or indirectly through one or more intermediaries.

(r) The term "plan" includes all plans, contracts, authorizations, or arrangements, whether or not set forth in any formal document.

(s) The term "predecessor" means a person the major portion of the business and assets of which another person ac

quired in a single succession or in a series of related successions.

(t) The terms "previously filed" and "previously reported" mean previously filed with, or reported in, a registration statement under section 12, a report under section 13, or a definitive proxy statement or similar statement under section 14 of the Act, which statement or report has been filed with the Corporation provided that information contained in any such document shall be deemed to have been previously filled with or reported to an exchange only if such document is filed with such exchange.

(u) The term "principal underwriter" means an underwriter in privity of contract with the issuer of the securities as to which he is underwriter.

(v) The term "promoter" includes: (1) any person who, acting alone or in conjunction with one or more other persons, directly or indirectly takes initiative in founding and organizing the bank; (2) any person who, in connection with the founding and organizing of the bank, directly or indirectly receives in consideration of services or property or both services and property 10 percent or more of any class of securities of the bank or 10 percent or more of the proceeds from the sale of any class of such securities. A person who receives such securities or proceeds either solely as underwriting commissions or solely in consideration of property shall not, however, be deemed a promoter within the meaning of this paragraph if such person does not otherwise take part in founding and organizing the bank.

(w) The term "proxy" includes every proxy, consent, or authorization within the meaning of section 14(a) of the Act. The consent or authorization may take the form of failure to object or to dissent.

(x) The terms “qualified stock option", "restricted stock option", and "employee stock purchase plan" have the meanings given them in sections 422 through 424 of the Internal Revenue Code of 1954.

(y) The term "share" means a share of stock in a corporation or unit of interest in an unincorporated person.

(z) The term "significant subsidiary" means a subsidiary meeting either of the following conditions:

(1) The investments in the subsidiary by its parent plus the parent's proportion of the investments in such subsidiary by the parent's other subsidiaries, if any, exceed 5 percent of the equity capital ac

counts of the bank. "Investments" refers to the amount carried on the books of the parent and other subsidiaries or the amount equivalent to the parent's proportionate share in the equity capital accounts of the subsidiary, whichever is greater.

(2) The parent's proportion of the gross operating revenues of the subsidiary exceeds 5 percent of the gross operating revenues of the parent.

(aa) The terms "solicit" and "solicitation" mean (1) any request for a proxy whether or not accompanied by or included in a form of proxy; (2) any request to execute or not to execute, or to revoke, a proxy; or (3) the furnishing of a form of proxy or other communication to security holders under circumstances reasonably calculated to result in the procurement, withholding, or revocation of a proxy. The terms do not apply, however, to the furnishing of a form of proxy to a security holder upon the unsolicited request of such security holder, the performance by the bank of acts required by § 335.5 (h), or the performance by any person of ministerial acts on behalf of a person soliciting a proxy.

(bb) The term "subsidiary" means any corporation, business trust, association, or similar organization of which the bank, either directly or through one or more intermediaries, (1) owns beneficially a majority of the voting securities, (2) holds a majority of the voting securities as trustee for the benefit of the holders of a class of stock of the bank, pro rata, or (3) has the power to elect a majority of the directors, trustees, or other persons exercising similar functions except where such power (i) exists by reason of ownership or control of voting securities by the bank in a fiduclary capacity, or (ii) was obtained in the course of securing or collecting a debt previously contracted in good faith.

(cc) The term "succession" means the direct acquisition of the assets comprising a going business, whether by merger, consolidation, purchase, or other direct transfer. The term does not include the acquisition of control of a business unless followed by the direct acquisition of its assets. The terms "succeed" and "successor" have meanings correlative to the foregoing.

(dd) The term "verified, when used with respect to financial statements, means either (1) certified by an independent public accountant, or (2) signed

in accordance with § 335.7(b) (2) by the person principally responsible for the accounting records of the bank (the "principal accounting officer") and by the person principally responsible for the audit procedures of the bank (the "auditor"); except that the term "verifiled" shall mean certified by an independent public accountant in any case in which the Corporation so informs the bank concerned, in writing, at least 90 days prior to the end of the fiscal year to which the financial statements will relate.

(ee) The term "voting securities" means securities the holders of which are presently entitled to vote for the election of directors.

(ff) The terms "beneficial ownership," "benefically owned," and the like, when used with respect to the reporting of ownership of the bank's equity securities in any statement or report required by this regulation, shall include, in addition to direct and indirect beneficial ownership by the reporting person, ownership of such securities (1) by the spouse (except where legally separated) and minor children of such reporting person, and (2) by any other relative of the reporting person who has the same home as such person.

[30 F.R. 396, Jan. 12, 1965, as amended at 32 F.R. 17470, Dec. 6, 1967; 34 F.R. 20320, Dec. 30, 1969]

§ 335.3 Inspection and publication of information filed under the Act.

(a) Filing of material with the Corporation. All papers required to be filled with the Corporation pursuant to the Act or regulations thereunder shall be filed at its office in Washington, D.C. Material may be filed by delivery to the Corporation, through the mails, or otherwise. The date on which papers are actually received by the Corporation shall be the date of filing thereof if all of the requirements with respect to the filing have been complied with.

(b) Inspection. Except as provided in paragraph (c) of this section, all information filed regarding a security registered with the Corporation will be available for inspection at the Federal Deposit Insurance Corporation, 550 17th Street NW., Washington, D.C. In addition, copies of the registration statement and reports required by § 335.4 (exclusive of exhibits), the statements required by $335.5(a), and the annual reports to security holders required by § 335.5 (c) will be available for inspection at the New

York, Chicago, and San Francisco Federal Reserve Banks and at the Reserve bank of the district in which the bank filing the statements or reports is located.

(c) Nondisclosure of certain information filed. Any person filing any statement, report, or document under the Act may make written objection to the public disclosure of any information contained therein in accordance with the procedure set forth below:

(1) The person shall omit from the statement, report, or document, when it is filed, the portion thereof that it desires to keep undisclosed (hereinafter called the confidential portion). In lieu thereof, it shall indicate at the appropriate place in the statement, report, or document that the confidential portion has been so omitted and filed separately with the Corporation.

(2) The person shall file with the copies of the statement, report, or document filed with the Corporation:

(1) as many copies of the confidential portion, each clearly marked "Confidential Treatment", as there are copies of the statement, report, or document filled with the Corporation and with each exchange, if any. Each copy shall contain the complete text of the item and, notwithstanding that the confidential portion does not constitute the whole of the answer, the entire answer thereto; except that in case the confidential portion is part of a financial statement or schedule, only the particular financial statement or schedule need be included. All copies of the confidential portion shall be in the same form as the remainder of the statement, report, or document;

(ii) an application making objection to the disclosure of the confidential portion. Such application shall be on a sheet or sheets separate from the confidential portion, and shall contain (a) an identification of the portion of the statement, report, or document that has been omitted, (b) a statement of the grounds of objection, (c) consent that the Corporation may determine the question of public disclosure upon the basis of the application, subject to proper judicial reviews, (d) the name of each exchange, if any, with which the statement, report, or document is filled. The copies of the confidential portion and the application filed in accordance with this subparagraph shall be enclosed in a separate envelope marked "Confidential Treatment" and addressed to