Title 12: Banks and Banking
PART 563—SAVINGS ASSOCIATIONS—OPERATIONS
Browse Previous |
Browse Next
Subpart E—Capital Distributions
Source: 64 FR 2809, Jan. 19, 1999, unless otherwise noted.
§ 563.140 What does this subpart cover?
This subpart applies to all capital distributions by a savings association (“you”).
§ 563.141 What is a capital distribution?
A capital distribution is:
(a) A distribution of cash or other property to your owners made on account of their ownership, but excludes:
(1) Any dividend consisting only of your shares or rights to purchase your shares; or
(2) If you are a mutual savings association, any payment that you are required to make under the terms of a deposit instrument and any other amount paid on deposits that the OTS determines is not a distribution for the purposes of this section;
(b) Your payment to repurchase, redeem, retire or otherwise acquire any of your shares or other ownership interests, any payment to repurchase, redeem, retire, or otherwise acquire debt instruments included in your total capital under §567.5 of this chapter, and any extension of credit to finance an affiliate's acquisition of your shares or interests;
(c) Any direct or indirect payment of cash or other property to owners or affiliates made in connection with a corporate restructuring. This includes your payment of cash or property to shareholders of another association or to shareholders of its holding company to acquire ownership in that association, other than by a distribution of shares;
(d) Any other distribution charged against your capital accounts if you would not be well capitalized, as set forth in §565.4(b)(1) of this chapter, following the distribution; and
(e) Any transaction that the OTS or the Corporation determines, by order or regulation, to be in substance a distribution of capital.
§ 563.142 What other definitions apply to this subpart?
The following definitions apply to this subpart:
Affiliate means an affiliate, as defined under §563.41(b) of this part.
Capital means total capital, as defined under §567.5(c) of this chapter.
Net income means your net income computed in accordance with generally accepted accounting principles.
Retained net income means your net income for a specified period less total capital distributions declared in that period.
Shares means common and preferred stock, and any options, warrants, or other rights for the acquisition of such stock. The term “share” also includes convertible securities upon their conversion into common or preferred stock. The term does not include convertible debt securities prior to their conversion into common or preferred stock or other securities that are not equity securities at the time of a capital distribution.
§ 563.143 Must I file with OTS?
Whether and what you must file with the OTS depends on whether you and your proposed capital distribution fall within certain criteria.
(a) Application required.
---------------------------------------------------------------------------------------------------------------- If: Then you:----------------------------------------------------------------------------------------------------------------(1) You are not eligible for expedited Must file an application with the OTS. treatment under § 516.5 of this chapter.----------------------------------------------------------------------------------------------------------------(2) The total amount of all of your Must file an application with the OTS. capital distributions (including the proposed capital distribution) for the applicable calendar year exceeds your net income for that year to date plus your retained net income for the preceding two years.----------------------------------------------------------------------------------------------------------------(3) You would not be at least Must file an application with the OTS. adequately capitalized, as set forth in § 565.4(b)(2) of this chapter, following the distribution.----------------------------------------------------------------------------------------------------------------(4) Your proposed capital distribution Must file an application with the OTS. would violate a prohibition contained in any applicable statute, regulation, or agreement between you and the OTS (or the Corporation), or violate a condition imposed on you in an OTS-approved application or notice.----------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------- If you are not required to file an application under paragraph (a) of Then you: this section, but:----------------------------------------------------------------------------------------------------------------(1) You would not be well capitalized, Must file a notice with the OTS. as set forth under § 565.4(b)(1), following the distribution.----------------------------------------------------------------------------------------------------------------(2) Your proposed capital distribution Must file a notice with the OTS. would reduce the amount of or retire any part of your common or preferred stock or retire any part of debt instruments such as notes or debentures included in capital under part 567 of this chapter (other than regular payments required under a debt instrument approved under § 563.81).----------------------------------------------------------------------------------------------------------------(3) You are a subsidiary of a savings Must file a notice with the OTS. and loan holding company.----------------------------------------------------------------------------------------------------------------
|
(c) No prior notice required.
|
---------------------------------------------------------------------------------------------------------------- ----------------------------------------------------------------------------------------------------------------If neither you nor your proposed Then you do not need to file a notice or an application with the OTS capital distribution meet any of the before making a capital distribution. criteria listed in paragraphs (a) and (b) of this section.----------------------------------------------------------------------------------------------------------------
|
[64 FR 2809, Jan. 19, 1999, as amended at 66 FR 13008, Mar. 2, 2001] § 563.144 How do I file with the OTS?
(a) Contents. Your notice or application must:
(1) Be in narrative form.
(2) Include all relevant information concerning the proposed capital distribution, including the amount, timing, and type of distribution.
(3) Demonstrate compliance with §563.146.
(b) Schedules. Your notice or application may include a schedule proposing capital distributions over a specified period, not to exceed 12 months.
(c) Timing. You must file your notice or application at least 30 days before the proposed declaration of dividend or approval of the proposed capital distribution by your board of directors. § 563.145 May I combine my notice or application with other notices or applications?
You may combine the notice or application required under §563.143 with any other notice or application, if the capital distribution is a part of, or is proposed in connection with, another transaction requiring a notice or application under this chapter. If you submit a combined filing, you must:
(a) State that the related notice or application is intended to serve as a notice or application under this subpart; and
(b) Submit the notice or application in a timely manner. § 563.146 Will the OTS permit my capital distribution?
The OTS will review your notice or application under the review procedures in 12 CFR part 516, subpart E. The OTS may disapprove your notice or deny your application filed under §563.143, in whole or in part, if the OTS makes any of the following determinations.
(a) You will be undercapitalized, significantly undercapitalized, or critically undercapitalized as set forth in §565.4(b) of this chapter, following the capital distribution. If so, the OTS will determine if your capital distribution is permitted under 12 U.S.C. 1831o(d)(1)(B).
(b) Your proposed capital distribution raises safety or soundness concerns.
(c) Your proposed capital distribution violates a prohibition contained in any statute, regulation, agreement between you and the OTS (or the Corporation), or a condition imposed on you in an OTS-approved application or notice. If so, the OTS will determine whether it may permit your capital distribution notwithstanding the prohibition or condition.
[64 FR 2809, Jan. 19, 1999, as amended at 67 FR 78152, Dec. 23, 2002]
Browse Previous |
Browse Next
|
