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2000 - Rules and Regulations
{{2-28-06 p.2415}}
PART 335SECURITIES OF NONMEMBER INSURED BANKS (REVISED
Sec. 335.101
Scope of part, authority and OMB control number.
335.111
Forms and schedules.
335.121
Listing standards related to audit committees.
335.201
Securities exempted from registration.
335.211
Registration and reporting.
335.221
Forms for registration of securities; optional forms for small business
issuers; and incorporation of Regulation FD (Fair Disclosure).
335.231
Certification, suspension of trading, and removal from listing by
exchanges.
335.241
Unlisted trading.
335.251
Forms for notification of action taken by national securities
exchanges.
335.261
Exemptions; terminations; and definitions.
335.301
Reports of issuers of securities registered pursuant to section 12.
335.311
Forms for annual, quarterly, current, and other reports of issuers.
335.321
Maintenance of records and issuer's representations in connection with
required reports.
335.331
Acquisition statements, acquisitions of securities by issuers, and
other matters.
335.401
Solicitations of proxies.
335.501
Tender offers.
335.601
Requirements of section 16 of the Securities Exchange Act of 1934.
335.611
Initial statement of beneficial ownership of securities (Form 3).
335.612
Statement of changes in beneficial ownership of securities (Form 4).
335.613
Annual statement of beneficial ownership of securities (Form 5).
335.701
Filing requirements, public reference, and confidentiality.
335.801
Inapplicable SEC regulations; FDIC substituted regulations; additional
information.
335.901
Delegation of authority to act on matters with respect to disclosure
laws and regulations.
Authority: 12 U.S.C. 1819; 15 U.S.C. 78l(i), 78m, 78n,
78p, 78w, 7241, 7242, 7243, 7244, 7261, 7262, 7264, and 7265.
Source: The provisions of this part 335 appear at 62 Fed. Reg.
6856, February 14, 1997, effective January 1, 1998, except as otherwise
noted.
§ 335.101 Scope of part, authority and OMB control number.
(a) This part is issued by the Federal Deposit Insurance
Corporation (the FDIC) under section 12(i) of the Securities Exchange
Act of 1934, as amended (15 U.S.C. 78) (the Exchange Act) and applies
to all securities of FDIC insured banks (including foreign banks having
an insured branch) which are neither a member of the Federal Reserve
System nor a District bank (collectively referred to as nonmember
banks) that are subject to the registration requirements of section
12(b) or section 12(g) of the Exchange Act (registered nonmember
banks). The FDIC is vested with the powers, functions, and duties
vested in the Securities and Exchange Commission (the Commission or
SEC) to administer and enforce the provisions of sections 10A(m), 12,
13, 14(a), 14(c), 14(d), 14(f), and 16 of the Securities Exchange Act
of 1934, as amended (the Exchange Act) (15 U.S.C. 78l, 78m, 78n(a),
78n(c), 78n(d), 78n(f), and 78(p)), and sections 302, 303, 304, 306,
401(b), 404, 406, and 407 of the Sarbanes--Oxley Act of 2002 (15 U.S.C.
7241, 7242, 7243, 7244, 7261, 7262, 7264, and 7265) regarding nonmember
banks with one or more classes of securities subject to the
registration provisions of sections 12(b) and 12(g) of the Exchange
Act.
(b) Part 335 generally incorporates through cross reference the
regulations of the SEC as these regulations are issued, revised, or
updated from time to time under sections 10A(m), 12, 13, 14(a), 14(c),
14(d), 14(f), and 16 of the Exchange Act and sections 302, 303, 304,
306, 401(b), 404, 406, and 407 of the Sarbanes-Oxley Act of 2002
(Sarbanes-Oxley Act), except as provided at §335.801 of this part.
References to the Commission in the regulations of the SEC are deemed
to refer to the FDIC unless the context otherwise requires.
{{2-28-06 p.2416}}
(c) The Office of Management and Budget has reviewed and approved
the recordkeeping and reporting required by this part (OMB control
number 3064--0030).
[Codified to 12 C.F.R. § 335.101]
[Section 335.101 amended at 69 Fed. Reg. 19088, April 12, 2004,
effective June 11, 2004; 70 Fed. Reg. 16400, March 31, 2005, effective
May 31, 2005]
§ 335.111 Forms and schedules.
The Exchange Act regulations of the SEC, which are incorporated by
cross reference under this part, require the filing of forms and
schedules as applicable. Reference is made to SEC Exchange Act
regulation 17 CFR 249.0--1 regarding the availability of all applicable
SEC Exchange Act forms. Required schedules are codified and are found
within the context of the SEC's regulations. The filings of all
applicable SEC forms and schedules shall be made with the FDIC at the
address in this section. They shall be titled with the name of the FDIC
in substitution for the name of the SEC. Forms 3 (§ 335.611), 4
(§ 335.612), and 5 (§ 335.613) are FDIC forms which are issued
under section 16 of the Exchange Act and can be obtained from the
Accounting and Securities Disclosure Section, Division of Supervision
and Consumer Protection, Federal Deposit Insurance Corporation, 550
17th Street NW., Washington, DC 20429.
[Codified to 12 C.F.R. § 335.111]
[Section 335.111 amended at 69 Fed. Reg. 19088, April 12,
2004, effective June 11,
2004]
§ 335.121 Listing standards related to audit committees.
The provisions of the applicable SEC regulation under secttion
10(A)(m) of the Exchange Act shall be followed as codified at 17 CFR
240.10A--3.
[Codified to 12 C.F.R. § 335.121]
[Section 335.121 added at 60 Fed. Reg. 16400, March 31,
2005, effective May 31, 2005; 70 Fed. Reg. 44272, August 2,
2005]
§ 335.201 Securities exempted from registration.
Persons generally subject to registration requirements under
Exchange Act section 12 and subject to this part shall follow the
applicable and currently effective SEC regulations relative to
exemptions from registration issued under sections 3 and 12 of the
Exchange Act as codified at 17 CFR 240.3a12--1 through 240.3a12--11,
240.12a--4 through 240.12a--9, and 240.12g--1 through 240.12h--5.
[Codified to 12 C.F.R. § 335.201]
[Section 335.201 amended at 70 Fed. Reg. 16400, March 31, 2005,
effective May 31, 2005; 70 Fed. Reg. 44272, August 2,
2005]
§ 335.211 Registration and reporting.
Persons with securities subject to registration under Exchange Act
sections 12(b) and 12(g), required to report under Exchange Act section
13, and subject to this part shall follow the applicable and currently
effective SEC regulations issued under section 12(b) of the Exchange
Act as codified at 17 CFR 240.12b--1 through 240.12b--37.
[Codified to 12 C.F.R. § 335.211]
[Section 335.211 amended at 70 Fed. Reg. 16400, March 31, 2005,
effective May 31, 2005; 70 Fed. Reg. 44272, August 2,
2005]
§ 335.221 Forms for registration of securities; optional forms
for small business issuers; and incorporation of Regulation FD (Fair
Disclosure).
(a) The applicable forms for registration of securities and similar
matters are codified in subpart C of 17 CFR part 249. All forms shall
be filed with the FDIC as appropriate and shall be titled with the name
of the FDIC instead of the SEC.
{{8-31-05 p.2417}}
(b) The requirements for Financial Statements can generally be
found in Regulation S--X (17 CFR part 210). Banks may also refer to the
instructions for FFIEC Reports of Income and Reports of Condition when
preparing unaudited interim statements. The requirements for
Management's Discussion and Analysis of Financial Condition and Results
of Operations can be found in at 17 CFR 229.300. Industry Guide 3,
Statistical Disclosure by Bank Holding Companies, is codified at 17 CFR
229.802.
(c) A "small business issuer," as defined under 17 CFR
240.12b--2, has the option of filing Small Business (SB) Forms (as
codified in 17 CFR part 249) in lieu of the Exchange Act forms
otherwise required to be filed, which provide for financial and other
item disclosures in conformance with Regulation S--B of the Securities
and Exchange Commission (17 CFR part 228). The definition of "small
business issuer," generally includes banks with annual revenues of
less than $25 million, whose voting stock does not have a public float
of $25 million or more.
(d) The provisions of the applicable and currrently effective SEC
regulation FD shall be followed as codified at 17 CFR 243.100 through
243.103.
[Codified to 12 C.F.R. § 335.221]
[Section 335.221 amended at 70 Fed. Reg. 16400, March 31, 2005,
effective May 31, 2005; 70 Fed. Reg. 44272, August 2,
2005]
§ 335.231 Certification, suspension of trading, and removal from
listing by exchanges.
The provisions of the applicable and currently effective SEC
regulations under section 12(d) of the Exchange Act shall be followed
as codified at 17 CFR 240.12d1--1 through 240.12d2--2.
[Codified to 12 C.F.R.
§ 335.231]
§ 335.241 Unlisted trading.
The provisions of the applicable and currently effective SEC
regulations under section 12(f) of the Exchange Act shall be followed
as codified at 17 CFR 240.12f--1 through 240.12f--6.
[Codified to 12 C.F.R.
§ 335.241]
§ 335.251 Forms for notification of action taken by national
securities exchanges.
The applicable forms for notification of action taken by national
securities exchanges are codified in subpart A of 17 CFR part 249. All
forms shall be filed with the FDIC as appropriate and shall be titled
with the name of the FDIC instead of the SEC.
[Codified to 12 C.F.R.
§ 335.251]
§ 335.261 Exemptions; terminations; and definitions.
The provisions of the applicable and currently effective SEC
regulations under sections 12(g) and 12(h) of the Exchange Act shall be
followed as codified at 17 CFR 240.12g--1 through 240.12h--5.
[Codified to 12 C.F.R. § 335.261]
[Section 335.261 amended at 70 Fed. Reg. 16400, March 31, 2005,
effective May 31, 2005; 70 Fed. Reg. 44272, August 2,
2005]
§ 335.301 Reports of issuers of securities registered pursuant
to section 12.
The provisions of the applicable and currently effective SEC
regulations under section 13(a) of the Exchange Act shall be followed
as codified at 17 CFR 240.13a--1 through 240.13a--17.
[Codified to 12 C.F.R. § 335.301]
{{8-31-05 p.2418}}
§ 335.311 Forms for annual, quarterly, current, and other
reports of issuers.
(a) The applicable forms for annual, quarterly, current, and other
reports are codified in subpart D of 17 CFR part 249. All forms shall
be filed with the FDIC as appropriate and shall be titled with the name
of the FDIC instead of the SEC.
(b) The requirements for Financial Statements can generally be
found in Regulation S--X (17 CFR part 210). Banks may also refer to the
instructions for FFIEC Reports of Income and Reports of Condition when
preparing unaudited interim reports. The requirements for Management's
Discussion and Analysis of Financial Condition and Results of
Operations can be found at 17 CFR 229.300. Industry Guide 3,
Statistical Disclosure by Bank Holding Companies, is codified at 17 CFR
229.802.
(c) A "small business issuer," as defined under 17 CFR
240.12b--2, has the option of filing Small Business (SB) Forms (as
codified in 17 CFR part 249) in lieu of the Exchange Act forms
otherwise required to be filed, which provide for financial and other
item disclosures in conformance with Regulation S--B of the Securities
and Exchange Commission (17 CFR part 228). The definition of "small
business issuer," generally includes banks with annual revenues of
less than $25 million, whose voting stock does not have a public float
of $25 million or more.
[Codified to 12 C.F.R.
§ 335.311]
§ 335.321 Maintenance of records and issuer's representations in
connection with required reports.
The provisions of the applicable and currently effective SEC
regulations under section 13(b) of the Exchange Act shall be followed
as codified at 17 CFR 240.13b2--1 through 240.13b2--2.
[Codified to 12 C.F.R.
§ 335.321]
§ 335.331 Acquisition statements, acquisition of securities by
issuers, and other matters.
The provisions of the applicable and currently effective SEC
regulations under sections 13(d) and 13(e) of the Exchange Act shall be
followed as codified at 17 CFR 240.13d--1 through 240.13e--102 and
240.13k--1.
[Codified to 12 C.F.R. § 335.331]
[Section 335.331 amended at 70 Fed. Reg. 16400, March 31, 2005,
effective May 31, 2005; 70 Fed. Reg. 44272, August 2,
2005]
§ 335.401 Solicitations of proxies.
The provisions of the applicable and currently effective SEC
regulations under section 14(a) and 14(c) of the Exchange Act shall be
followed as codified at 17 CFR 240.14a--1 through 240.14a--103 and
240.14c--1 through 240.14c--101.
[Codified to 12 C.F.R.
§ 335.401]
§ 335.501 Tender offers.
The provisions of the applicable and currently effective SEC
regulations under section 14(d), 14(e), and 14(f) of the Exchange Act
shall be followed as codified at 17 CFR 240.14d--1 through 240.14f--1.
[Codified to 12 C.F.R.
§ 335.501]
§ 335.601 Requirements of section 16 of the Securities Exchange
Act of 1934.
Persons subject to section 16 of the Act with respect to securities
registered under this part shall follow the applicable and currently
effective SEC regulations issued under section 16 of the Act (17 CFR
240.16a-1 through 240.16e-1(1), except that the forms described in
§ 335.611 (FDIC Form 3), § 335.612 (FDIC Form 4), and § 335.613
(FDIC Form 5) shall be used in lieu of SEC Form 3 (17 CFR 249.103),
Form 4 (17 CFR 249.104), and Form 5 (17 CFR 249.105), respectively.
Copies of FDIC Forms 3, 4, 5 and the instructions thereto can be
obtained from the Accounting and Securities Disclosure Section,
Division of
{{4-29-05 p.2419}}Supervision and Consumer
Protection, Federal Deposit Insurance Corporation, 550 17th Street NW.,
Washington, DC 20429.
[Codified to 12 C.F.R. § 335.601]
[Section 335.601 amended at 69 Fed. Reg. 19088, April 12, 2004,
effective June 11, 2004]
§ 335.611 Initial statement of beneficial ownership of
securities (Form 3).
This form shall be filed in lieu of SEC Form 3 pursuant to SEC rule
16a--3 (17 CFR 240.16a--3) for initial statements of beneficial
ownership of securities. The FDIC is authorized to solicit the
information required by this form pursuant to sections 16(a) and 23(a)
of the Securities Exchange Act of 1934
(15 U.S.C. 78p and
78w) and the rules and
regulations thereunder. SEC regulations referenced in this form are
codified at 17 CFR
240.16a--1 through 240.16e--1.
[Codified to 12 C.F.R. § 335.611]
[Section 335.611 amended at 69 Fed. Reg. 19088, April 12,
2004, effective June 11,
2004]
§ 335.612 Statement of changes in beneficial ownership of
securities (Form 4).
This form shall be filed pursuant to SEC rule 16a--3 (17 CFR
240.16a--3) for statements of changes in beneficial ownership of
securities. The FDIC is authorized to solicit the information required
by this form pursuant to sections 16(a) and 23(a) of the Securities
Exchange Act of 1934 (15 U.S.C. 78p and 78w) and the rules and
regulations thereunder. SEC regulations referenced in this form are
codified at 17 CFR 240.16a--1 through 240.16e--1.
[Codified to 12 C.F.R. § 335.612]
[Section 335.612 amended at 69 Fed. Reg. 19088, April 12, 2004,
effective June 11, 2004]
§ 335.613 Annual statement of beneficial ownership of securities
(Form 5).
This form shall be filed pursuant to SEC rule 16a--3 (17 CFR
240.16a--3) for annual statements of beneficial ownership of
securities. The FDIC is authorized to solicit the information required
by this form pursuant to sections 16(a) and 23(a) of the Securities
Exchange Act of 1934 (15 U.S.C. 78p and 78w), and the rules and
regulations thereunder. SEC regulations referenced in this form are
codified at 17 CFR 240.16a--1 through 240.16e--1.
[Codified to 12 C.F.R. § 335.613]
[Section 335.613 amended at 69 Fed. Reg. 19088, April 12, 2004,
effective June 11, 2004]
§ 335.701 Filing requirements, public reference, and
confidentiality.
(a) Filing requirements. Unless otherwise indicated in
this part, one original and four conformed copies of all papers
required to be filed with the FDIC under the Exchange Act or
regulations thereunder shall be filed at its office in Washington, DC.
Official filings made at the FDIC's office in Washington, DC should be
addressed as follows: Attention: Accounting and Securities Disclosure
Section, Division of Supervision and Consumer Protection, Federal
Deposit Insurance Corporation, 550 17th Street NW., Washington, DC
20429. Material may be filed by delivery to the FDIC through the mails
or otherwise. The date on which papers are actually received by the
designated FDIC office 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 FDIC will be available for inspection at the Federal Deposit
Insurance Corporation, Accounting and Securities Disclosure Section,
Division of Supervision and Consumer Protection, 550 17th Street, NW.,
Washington, DC. Beneficial ownership report forms that are
electronically submitted to the FDIC through the
{{4-29-05 p.2420}}interagency Beneficial
Ownership Filings system will be made available on the FDIC's Web site
(http://www.fdic.gov).
(c) Nondisclosure of certain information filed. Any
person filing any statement, report, or document under the Act may make
a written objection to the public disclosure of any information
contained therein in accordance with the procedure set forth in this
paragraph (c).
(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 FDIC.
(2) The person shall file with the copies of the statement,
report, or document filed with the FDIC:
(i) As many copies of the confidential portion, each clearly
marked "Confidential Treatment," as there are copies of the
statement, report, or document filed with the FDIC 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 the
case where 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 FDIC 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 filed;
(iii) The copies of the confidential portion and the application
filed in accordance with this paragraph shall be enclosed in a separate
envelope marked "Confidential Treatment" and addressed to
Executive Secretary, Federal Deposit Insurance Corporation, Washington,
D.C. 20429.
(3) Pending the determination by the FDIC as to the objection
filed in accordance with paragraph (c)(2)(ii) of this section, the
confidential portion will not be disclosed by FDIC.
(4) If the FDIC determines that the objection shall be sustained,
a notation to that effect will be made at the appropriate place in the
statement, report, or document.
(5) If the FDIC shall have determined that disclosure of the
confidential portion is in the public interest, a finding and
determination to that effect will be entered and notice of the finding
and determination will be sent by registered or certified mail to the
person.
(6) The confidential portion shall be made available to the
public:
(i) Upon the lapse of 15 days after the dispatch of notice by
registered or certified mail of the finding and determination of the
FDIC described in paragraph (c)(5) of this section, if prior to the
lapse of such 15 days the person shall not have filed a written
statement that he intends in good faith to seek judicial review of the
finding and determination;
(ii) Upon the lapse of 60 days after the dispatch of notice by
registered or certified mail of the finding and determination of the
FDIC, if the statement described in paragraph (c)(6)(i) of this section
shall have been filed and if a petition for judicial review shall not
have been filed within such 60 days; or
(iii) If such petition for judicial review shall have been filed
within such 60 days upon final disposition, adverse to the person, of
the judicial proceedings.
{{8-31-05 p.2421}}
(7) If the confidential portion is made available to the public,
a copy thereof shall be attached to each copy of the statement, report,
or document filed with the FDIC and with each exchange concerned.
[Codified to 12 C.F.R. § 335.701]
[Section 335.701 amended at 69 Fed. Reg. 19088, April 12,
2004, effective June 11, 2004]
§ 335.801 Inapplicable SEC regulations; FDIC substituted
regulations; additional information.
(a) Filing fees. Filing fees will not be charged
relative to any filings or submissions of materials made with the FDIC
pursuant to the cross reference to regulations of the SEC issued under
sections 10A(m), 12, 13, 14, and 16 of the Securities Exchange Act of
1934 (15 U.S.C. 78), sections 302, 303, 304, 306, 401(b), 404, 406, and
407 of the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7241, 7242, 7243,
7244, 7261, 7262, 7264, and 7265), and this part.
(b) Electronic filings. (1) The FDIC does not
participate in the SEC's EDGAR (Electronic Data Gathering Analysis and
Retrieval) electronic filing program (17 CFR part 232). The FDIC does
not permit electronically transmitted filings or submissions of
materials in electronic format to the FDIC, with the exception of
beneficial ownership report filings on FDIC Forms 3, 4 and 5.
(2) All reporting persons must file beneficial ownership report
Forms 3, 4 and 5, including amendments and exhibits thereto, in
electronic format using the Internet based, interagency Beneficial
Ownership Filings system, which is accessible through the
FDICconnect Business Center, except that a reporting person
that has obtained a continuing hardship exemption under these rules may
file the forms with the FDIC in paper format. For information and
answers to questions regarding beneficial ownership and the completion
and filing of the forms, please contact the FDIC Accounting and
Securities Disclosure Section in Washington DC. For information and
answers to technical questions or problems relating to the use of
FDICconnect, contact the FDICconnect Project Team
toll-free at 877-275-3342 or by mail at 3501 North Fairfax Drive,
Arlington, VA 22226.
(3) Electronic filings of FDIC beneficial ownership report Forms
3, 4, and 5 must be submitted to the FDIC through the interagency
Beneficial Ownership Filings system. Beneficial ownership reports and
any amendments are deemed filed with the FDIC upon electronic receipt
on business days from 8 a.m. through 10 p.m., Eastern Standard Time or
Eastern Daylight Saving Time, whichever is currently in effect (Eastern
Time). Business days include each day, except Saturdays, Sundays and
Federal holidays. All filings submitted electronically to the FDIC
commencing after 10 p.m. Eastern Time on business day shall be deemed
filed as of 8 a.m. on the following business day. All filings submitted
electronically to the FDIC on non-business days shall be deemed filed
as of 8 a.m. on the following business day.
(4) Adjustment of the filing date. If an electronic filer in good
faith attempts to file a beneficial ownership report with the FDIC in a
timely manner but the filing is delayed due to technical difficulties
beyond the electronic filer's control, the electronic filer may
request an adjustment of the filing date of such submission. The FDIC
may grant the request if it appears that such adjustment is appropriate
and consistent with the pubic interest and the protection of investors.
(5) Exhibits. (i) Exhibits to an electronic filing
that have not previously been filed with the FDIC shall be filed in
electronic format, absent a hardship exemption.
(ii) Previously filed exhibits, whether in paper or electronic
format, may be incorporated by reference into an electronic filing to
the extent permitted by applicable SEC rules under the Exchange Act. An
electronic filer may, at its option, restate in electronic format an
exhibit incorporated by reference that originally was filed in paper
format.
(iii) Any document filed in paper format in violation of mandated
electronic filing requirements shall not be incorporated by reference
into an electronic filing.
{{8-31-05 p.2422}}
(6) Continuing Hardship Exemption. The FDIC will not
accept in paper format any beneficial ownership report filing required
to be submitted electronically under this part unless the filer
satisfies the requirements for a continuing hardship exemption:
(i) A filer may apply in writing for a continuing hardship
exemption if all or part of a filing or group of filings otherwise to
be filed in electronic format cannot be so filed without undue burden
or expense. Such written application shall be made at least ten
business days prior to the required due date of the filing(s) or the
proposed filing date, as appropriate, or within such shorter period as
may be permitted. The written application shall be sent to the
Accounting and Securities Disclosure Section, Division of Supervision
and Consumer Protection, Federal Deposit Insurance Corporation, 550
17th Street NW., Washington, DC 20429, and shall contain the
information set forth in paragraph (6)(ii) of this subsection.
(A) The application shall not be deemed granted until the
applicant is notified by the FDIC.
(B) If the FDIC denies the application for a continuing hardship
exemption, the filer shall file the required document in electronic
format on the required due date or the proposed filing date or such
other date as may be permitted.
(C) If the FDIC determines that the grant of the exemption is
appropriate and consistent with the public interest and the protection
of investors and so notifies the applicant, the filer shall follow the
procedures set forth in paragraph (6)(iii) of this subsection.
(ii) The request for the continuing hardship exemption shall
include, but not be limited to, the following:
(A) The reason(s) that the necessary hardware and software are
not available without unreasonable burden and expense;
(B) The burden and expense involved to employ alternative means
to make the electronic submission; and/or
(C) The reasons for not submitting electronically the document or
group of documents, as well as justification for the requested time
period for the exemption.
(iii) If the request for a continuing hardship exemption is
granted, the electronic filer shall submit the document or group of
documents for which the exemption is granted in paper format on the
required due date specified in the applicable form, rule or regulation,
or the proposed filing date, as appropriate. The paper format
document(s) shall have placed at the top of page 1, or at the top of an
attached cover page, a legend in capital letters:
IN ACCORDANCE WITH 12 CFR 335.801(b), THIS (SPECIFY DOCUMENT) IS
BEING FILED IN PAPER PURSUANT TO A CONTINUING HARDSHIP EXEMPTION.
(iv) Where a continuing hardship exemption is granted with
respect to an exhibit only, the paper format exhibit shall be filed
with the FDIC under cover of SEC Form SE (17 CFR 249.444). Form SE
shall be filed as a paper cover sheet to all exhibits to beneficial
ownership reports submitted to the FDIC in paper form pursuant to a
hardship exemption.
(v) Form SE shall be submitted along with all exhibits filed in
paper form pursuant to a hardship exemption. Form SE may be filed up to
six business days prior to, or on the date of filing of, the electronic
form to which it relates but shall not be filed after such filing date.
If a paper exhibit is submitted in this manner, requirements that the
exhibit be filed with, provided with, or accompany the electronic
filing shall be satisfied.
Any requirements as to delivery or furnishing the information to
persons other than the FDIC shall not be affected by this section.
(7) Signatures. (i) Required signatures to, or within,
any electronic submission must be in typed form. When used in
connection with an electronic filing, the term "signature" means
an electronic entry or other form of computer data compilation of any
letters or series of letters or characters comprising a name, executed,
adopted or authorized as a signature.
(ii) Each signatory to an electronic filing shall manually sign a
signature page or other document authenticating, acknowledging or
otherwise adopting his or her signature
{{8-31-05 p.2423}}that appears in typed form
within the electronic filing. Such document shall be executed before or
at the time the electronic filing is made and shall be retained by the
filer for a period of five years. Upon request, an electronic filer
shall furnish to the FDIC a copy of any or all documents retained
pursuant to this section.
(iii) Where the FDIC's rules require a filer to furnish to a
national securities exchange, a national securities association, or a
bank, paper copies of a document filed with the FDIC in electronic
format, signatures to such paper copies may be in typed form.
(c) Legal proceedings. Whenever this part or cross
referenced provisions of the SEC regulations require disclosure of
legal proceedings, administrative or judicial proceedings arising under
section 8 of the Federal Deposit Insurance Act shall be deemed material
and shall be described.
(d) Indebtedness of management. Whenever this part or
cross referenced provisions of the SEC regulations require disclosure
of indebtedness of management, extensions of credit to specified
persons in excess of ten (10) percent of the equity capital accounts of
the bank or $5 million, whichever is less, shall be deemed material and
shall be disclosed in addition to any other required disclosure. The
disclosure of this material indebtedness shall include the largest
aggregate amount of indebtedness (in dollar amounts, and as a
percentage of total equity capital accounts at the time), including
extensions of credit or overdrafts, endorsements and guarantees
outstanding at any time since the beginning of the bank's last fiscal
year, and as of the latest practicable date.
(1) If aggregate extensions of credit to all specified persons as
a group exceeded 20 percent of the equity capital accounts of the bank
at any time since the beginning of the last fiscal year, the aggregate
amount of such extensions of credit shall also be disclosed.
(2) Other loans are deemed material and shall be disclosed where:
(i) The extension(s) of credit was not made on substantially the
same terms, including interest rates, collateral and repayment terms as
those prevailing at the time for comparable transactions with other
than the specified persons;
(ii) The extension(s) of credit was not made in the ordinary
course of business; or
(iii) The extension(s) of credit has involved or presently
involves more than a normal risk of collectibility or other unfavorable
features including the restructuring of an extension of credit, or a
delinquency as to payment of interest or principal.
(e) Proxy material required to be filed. (1) Three
preliminary copies of each information statement, proxy statement, form
of proxy, and other item of soliciting material to be furnished to
security holders concurrently therewith, shall be filed with the FDIC
by the bank or any other person making a solicitation subject to 12 CFR
335.401 at least ten calendar days (or 15 calendar days in the case of
other than routine meetings, as defined in paragraph (e)(2) of this
section) prior to the date such item is first sent or given to any
security holders, or such shorter date as may be authorized.
(2) For the purposes of this paragraph (e), a routine meeting
means:
(i) A meeting with respect to which no one is soliciting proxies
subject to § 335.401 other than on behalf of the bank, and at which
the bank intends to present no matters other than:
(A) The election of directors;
(B) The election, approval or ratification of accountants;
(C) A Security holder proposal included pursuant to SEC Rule
14(a)--8 (17 CFR 240.14a--8); and
(D) The approval or ratification of a plan as defined in
paragraph (a)(7)(ii) of Item 402 of SEC Regulation S--K (17 CFR
229.402(a)(7)(ii)) or amendments to such a plan; and
(ii) The bank does not comment upon or refer to a solicitation in
opposition (as defined in 17 CFR 240.14a--6) in connection with the
meeting in its proxy material.
(3) Where preliminary copies of material are filed with the FDIC
under this section, the printing of definitive copies for distribution
to security holders should be deferred until the comments of the FDIC's
staff have been received and considered.
{{8-31-05 p.2424}}
(f) Additional information; filing of other statements in
certain cases. (1) In addition to the information expressly
required to be included in a statement, form, schedule or report, there
shall be added such further material information, if any, as may be
necessary to make the required statements, in light of the
circumstances under which they are made, not misleading.
(2) The FDIC may, upon the written request of the bank, and where
consistent with the protection of investors, permit the omission of one
or more of the statements or disclosures herein required, or the filing
in substitution therefor of appropriate statements or disclosures of
comparable character.
(3) The FDIC may also require the filing of other statements or
disclosures in addition to, or in substitution for those herein
required in any case where such statements are necessary or appropriate
for an adequate presentation of the financial condition of any person
whose financial statements are required, or disclosure about which is
otherwise necessary for the protection of investors.
[Codified to 12 C.F.R. § 335.801]
[Section 335.801 amended at 69 Fed. Reg. 19088, April 12,
2004, effective June 11, 2004; 70 Fed. Reg. 16400, March 31, 2005,
effective May 31, 2005; Fed. Reg. 44273, August 2,
2005]
§ 335.901 Delegation of authority to act on matters with
respect to disclosure laws and regulations.
(a) Except as provided in paragraph (b) of this section, authority
is delegated to the Director, Division of Supervision and Consumer
Protection (DSC), and where confirmed in writing by the director, to a
deputy director or an associate director, or to the appropriate
regional director or deputy regional director or area director, to act
on disclosure matters under and pursuant to sections 10A(m), 12, 13,
14(a), 14(c), 14(d), 14(f) and 16 of the Securities Exchange Act of
1934 (15 U.S.C. 78), sections 302, 303, 304, 306, 401(b), 404, 406, and
407 of the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7241, 7242, 7243,
7244, 7261, 7262, 7264, and 7265), and this part.
(b) Authority to act on disclosure matters is retained by the FDIC
Board of Directors when such matters involve:
(1) Exemption from disclosure requirements pursuant to section
12(h) of the Securities Exchange Act of 1934 (15 U.S.C. 78(h)); or
(2) Exemption from tender offer requirements pursuant to section
14(d)(8) of the Securities Exchange Act of 1934 (15 U.S.C. 78n(d)(8)).
[Codified to 12 C.F.R. § 335.901]
[Section 335.901 amended at 70 Fed. Reg. 16400, March 31, 2005,
effective May 31, 2005; 70 Fed. Reg. 44273, August 2, 2005, effective
August 2, 2005]
[The page following this is 2607.]
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