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Data is current as of January 28, 2008

Title 12:
Banks and Banking

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PART 552—FEDERAL STOCK ASSOCIATIONS—INCORPORATION, ORGANIZATION, AND
CONVERSION

Section Contents
§ 552.2-1   Procedure
for organization of Federal stock association.
§ 552.2-2   Procedures
for organization of interim Federal stock association.
§ 552.2-3   Federal
stock association created in connection with an association in default or
in danger of default.
§ 552.2-6   Conversion
from stock form depository institution to Federal stock
association.
§ 552.2-7   Conversion
to National banking association or State bank.
§ 552.3   Charters
for Federal stock associations.
§ 552.4   Charter
amendments.
§ 552.5   Bylaws.
§ 552.6   Shareholders.
§ 552.6-1   Board
of directors.
§ 552.6-2   Officers.
§ 552.6-3   Certificates
for shares and their transfer.
§ 552.6-4   [Reserved]
§ 552.9   [Reserved]
§ 552.10   Annual
reports to stockholders.
§ 552.11   Books
and records.
§ 552.12   [Reserved]
§ 552.13   Combinations
involving Federal stock associations.
§ 552.14   Dissenter
and appraisal rights.
§ 552.15   Supervisory
combinations.
§ 552.16   Effect
of subsequent charter or bylaw change.

Authority:   12 U.S.C. 1462, 1462a,
1463, 1464, 1467a.

Source:   54 FR 49523, Nov. 30, 1989,
unless otherwise noted.

§ 552.2-1   Procedure for organization of Federal
stock association.

top

(a) Application for permission to organize. Applications for
permission to organize a Federal stock association are subject to this
section and to §543.3 of this chapter. Recommendations by employees of the
OTS regarding applications for permission to organize are privileged,
confidential, and subject to §510.5 (b) and (c) of this chapter. The
processing of an application under this section shall be subject to the
following procedures:

(1) Publication. (i) The applicant shall publish a public notice
of the application to organize in accordance with the procedures specified
in subpart B of part 516 of this chapter.

(ii) Promptly after publication of the public notice, the applicant
shall transmit copies of the public notice and publisher's affidavit of
publication to the OTS in the same manner as the original filing.

(iii) Any person may inspect the application and all related
communications at the Regional Office during regular business hours,
unless such information is exempt from public disclosure.

(2) Notification to interested parties. The OTS shall give
notice of the application to the State official who supervises savings
associations in the State in which the new association is to be
located.

(3) Submission of comments. Commenters may submit comments on
the application in accordance with the procedures specified in subpart C
of part 516 of this chapter.

(4) Meetings. OTS may arrange a meeting in accordance with the
procedures in subpart D of part 516 of this chapter.

(b) Conditions of approval. The OTS will decide all applications
for permission to organize a Federal stock association.

(1) Factors that will be considered on all applications for permission
to organize a Federal stock association are:

(i) Whether the applicants are persons of good character and
responsibility;

(ii) Whether a necessity exists for such association in the community
to be served;

(iii) Whether there is a reasonable probability of the association's
usefulness and success;

(iv) Whether the association can be established without undue injury to
properly conducted existing local thrift and home financing institutions;
and

(v) Whether the association will perform a role of providing credit for
housing consistent with safe and sound operation of a Federal savings
association.

(2) [Reserved]

(3) Approvals of applications will be conditioned on the following:

(i) Receipt by the Office of written confirmation from the Federal
Deposit Insurance Corporation that the accounts of the association will be
insured by the Federal Deposit Insurance Corporation;

(ii) The sale of a minimum amount of fully-paid capital stock of the
association prior to commencing business;

(iii) The submission of a statement that:

(A) The applicants have incurred no expense in organization which is
chargeable to the association, and that no such expense will be incurred,
and

(B) No funds will be accepted for deposit by the association until
organization has been completed;

(iv) Compliance with all applicable laws, rules, and regulations;
and

(v) The satisfaction of any other requirement or condition the Director
or his or her designee may impose.

(c) Issuance of charter. Upon approval of an application, the
Office shall issue to the association a charter for a Federal stock
savings association or for a Federal stock savings bank, as requested by
the applicants, which shall be in the form provided in this part. Issuance
of the charter shall be subject to the condition subsequent that the
organization of the association is completed pursuant to this section.

(d) Interim board of directors and officers. Upon approval of
the application and the issuance of the charter, the applicants shall
constitute the interim board of directors of the association until the
board of directors of the association are elected by its stockholders at
the organizational meeting required by paragraph (g) of this section, and
the interim officers of the association shall be those persons set forth
in the application for permission to organize.

(e) Sale of capital stock. Upon the issuance of the charter, the
association shall proceed to offer and sell its capital stock pursuant to
the requirements of part 563g of this chapter.

(f) Bank membership and insurance of accounts. Promptly upon the
issuance of the charter, a Federal stock association must qualify as a
member of the appropriate Federal Home Loan Bank and meet all requirements
necessary to obtain insurance of accounts by the Federal Deposit Insurance
Corporation.

(g) Organizational meeting. Promptly upon the completion of the
sale of its capital stock, the association shall provide notice, pursuant
to §552.6(b), of a meeting of its stockholders to elect a board of
directors. Immediately following such election, the directors shall meet
to elect the officers of the association and to undertake any other action
necessary under the charter or bylaws to complete corporate
organization.

(h) Completion of organization. Organization of a Federal stock
association shall be deemed complete for the purposes of this part
when:

(1) The association has obtained Federal Home Loan Bank membership and
insurance of its accounts from the Federal Deposit Insurance
Corporation;

(2) It has completed the sale of and received full payment for its
capital stock;

(3) It has complied with all requirements of part 563g of this
chapter;

(4) It has held its organizational meeting for the election of
directors and all directors have been elected;

(5) Its officers have been elected and bonded; and

(6) It has met the requirements and conditions imposed by the Office in
connection with approval of the application.

(i) Failure of completion. If organization of a Federal stock
association is not completed within six months after the OTS approves the
application, or within such additional period as the OTS for good cause
may grant, the charter shall become null and void and all subscriptions to
capital stock shall be returned.

[54 FR 49523, Nov. 30, 1989, as amended at 57 FR 14342, Apr. 20, 1992;
62 FR 27181, May 19, 1997; 62 FR 64146, Dec. 4, 1997; 69 FR 68249, Nov.
24, 2004]

§ 552.2-2   Procedures for organization of interim
Federal stock association.

top

(a) Applications for permission to organize an interim Federal savings
association are not subject to subparts B, C and D of part 516 of this
chapter or §552.2–1(b)(3) of this part.

(b) Approval of an application for permission to organize an interim
Federal stock association shall be conditioned upon approval by the Office
of an application to merge the interim Federal stock association, or upon
approval by the Office of other transaction which the interim was
chartered to facilitate. Applications for permission to organize an
interim Federal stock association shall be submitted in the same manner as
the related filing(s). In evaluating the application, the Office will
consider the purpose for which the association will be organized, the form
of any proposed transactions involving the association, the effect of the
transactions on existing associations involved in the transactions, and
the factors specified in §552.1(b)(1) to the extent relevant.

(c) If a merger or other transaction facilitated by the existence of
the interim Federal stock association has not been approved within six
months of the approval of the application for permission to organize,
unless extended by OTS for good cause shown, the charter shall be void and
all subscriptions for capital stock shall be returned.

[54 FR 49523, Nov. 30, 1989, as amended at 55 FR 13513, Apr. 11, 1990;
57 FR 14342, Apr. 20, 1992; 62 FR 64146, Dec. 4, 1997]

§ 552.2-3   Federal stock association created in
connection with an association in default or in danger of
default.

top

Sections 552.2–1 and 552.2–2 of this part do not apply to a Federal
stock association which is proposed by the Federal Deposit Insurance
Corporation, or the Resolution Trust Corporation under section 5(p) of the
Home Owner's Loan Act of 1933, section 11(c) of the Federal Deposit
Insurance Act, or section 21A of the Federal Home Loan Bank Act, or is
otherwise chartered by the Office in connection with an association in
default or in danger of default. Incorporation and organization of such
associations are complete when and under such conditions as the Director
or his or her designee so determines.

§ 552.2-6   Conversion from stock form depository
institution to Federal stock association.

top

(a) With the approval of the Office, any stock depository institution
that is, or is eligible to become, a member of a Federal Home Loan Bank,
may convert to a Federal stock association, provided that the depository
institution, at the time of the conversion, has deposits insured by the
Federal Deposit Insurance Corporation, and provided further, that the
depository institution, in accomplishing the conversion, complies with all
applicable statutes and regulations, including, without limitation,
section 5(d) of the Federal Deposit Insurance Act. The resulting Federal
stock association must conform within the time prescribed by the OTS to
the requirements of section 5(c) of the Home Owners' Loan Act. For
purposes of this section, the term “depository institution” shall have the
meaning set forth at 12 CFR 552.13(b). An application for conversion filed
under this section is subject to the procedures for organization of a
federal stock organization at §552.2–1.

(b) Any and all of the assets and other property (whether real,
personal, mixed, tangible or intangible, including choses in action,
rights, and credits) of the former stock form depository institution
become assets and property of the Federal stock association when the
conversion occurs. Similarly, any and all of the obligations and debts of
or claims against the former stock form depository institution become
obligations and debts of and claims against the Federal stock association
when the conversion occurs. In effect, the Federal stock association is
the same as the former stock form depository institution with respect to
any and all assets, property, claims and debts of or claims against the
former stock form depository institution.

[59 FR 44623, Aug. 30, 1994, as amended at 66 FR 13006, Mar. 2, 2001;
66 FR 23154, May 8, 2001]

§ 552.2-7   Conversion to National banking
association or State bank.

top

A Federal stock association may convert to a National banking
association or a State bank after filing a notification or application, as
appropriate, with the Office in accordance with the applicable provisions
of §563.22(b) of this chapter.

[59 FR 44623, Aug. 30, 1994]

§ 552.3   Charters for Federal stock
associations.

top

The charter of a Federal stock association shall be in the following
form, except that an association that has converted from the mutual form
pursuant to part 563b of this chapter shall include in its charter a
section establishing a liquidation account as required by §563b.3(c)(13)
of this chapter. A charter for a Federal stock savings bank shall
substitute the term “savings bank” for “association.” Charters may also
include any preapproved optional provision contained in §552.4 of this
part.

Federal Stock Charter

Section 1. Corporate title. The full corporate title of the
association is ___.

Section 2. Office. The home office shall be located in ___
[city, state].

Section 3. Duration. The duration of the association is
perpetual.

Section 4. Purpose and powers. The purpose of the association is
to pursue any or all of the lawful objectives of a Federal savings
association chartered under section 5 of the Home Owners' Loan Act and to
exercise all of the express, implied, and incidental powers conferred
thereby and by all acts amendatory thereof and supplemental thereto,
subject to the Constitution and laws of the United States as they are now
in effect, or as they may hereafter be amended, and subject to all lawful
and applicable rules, regulations, and orders of the Office of Thrift
Supervision (“Office”).

Section 5. Capital stock. The total number of shares of all
classes of the capital stock that the association has the authority to
issue is ___, all of which shall be common stock of par [or if no par is
specified then shares shall have a stated] value of ___ per share. The
shares may be issued from time to time as authorized by the board of
directors without the approval of its shareholders, except as otherwise
provided in this Section 5 or to the extent that such approval is required
by governing law, rule, or regulation. The consideration for the issuance
of the shares shall be paid in full before their issuance and shall not be
less than the par [or stated] value. Neither promissory notes nor future
services shall constitute payment or part payment for the issuance of
shares of the association. The consideration for the shares shall be cash,
tangible or intangible property (to the extent direct investment in such
property would be permitted to the association), labor, or services
actually performed for the association, or any combination of the
foregoing. In the absence of actual fraud in the transaction, the value of
such property, labor, or services, as determined by the board of directors
of the association, shall be conclusive. Upon payment of such
consideration, such shares shall be deemed to be fully paid and
nonassessable. In the case of a stock dividend, that part of the retained
earnings of the association that is transferred to common stock or paid-in
capital accounts upon the issuance of shares as a stock dividend shall be
deemed to be the consideration for their issuance.

Except for shares issued in the initial organization of the association
or in connection with the conversion of the association from the mutual to
stock form of capitalization, no shares of capital stock (including shares
issuable upon conversion, exchange, or exercise of other securities) shall
be issued, directly or indirectly, to officers, directors, or controlling
persons of the association other than as part of a general public offering
or as qualifying shares to a director, unless the issuance or the plan
under which they would be issued has been approved by a majority of the
total votes eligible to be cast at a legal meeting.

The holders of the common stock shall exclusively possess all voting
power. Each holder of shares of common stock shall be entitled to one vote
for each share held by such holder, except as to the cumulation of votes
for the election of directors, unless the charter provides that there
shall be no such cumulative voting. Subject to any provision for a
liquidation account, in the event of any liquidation, dissolution, or
winding up of the association, the holders of the common stock shall be
entitled, after payment or provision for payment of all debts and
liabilities of the association, to receive the remaining assets of the
association available for distribution, in cash or in kind. Each share of
common stock shall have the same relative rights as and be identical in
all respects with all the other shares of common stock.

Section 6. Preemptive rights. Holders of the capital stock of
the association shall not be entitled to preemptive rights with respect to
any shares of the association which may be issued.

Section 7. Directors. The association shall be under the
direction of a board of directors. The authorized number of directors, as
stated in the association's bylaws, shall not be fewer than five nor more
than fifteen except when a greater or lesser number is approved by the
Director of the Office, or his or her delegate.

Section 8. Amendment of charter. Except as provided in Section
5, no amendment, addition, alteration, change or repeal of this charter
shall be made, unless such is proposed by the board of directors of the
association, approved by the shareholders by a majority of the votes
eligible to be cast at a legal meeting, unless a higher vote is otherwise
required, and approved or preapproved by the
Office.
Attest:____________________

Secretary of the
Association
By:____________________

President or Chief Executive
Officer of the Association
Attest:____________________

Secretary of the Office of Thrift
Supervision
By:____________________

Director of the Office of Thrift
Supervision
Effective Date:____________________

[54 FR 49523, Nov. 30, 1989, as amended at 59 FR 53571, Oct. 25, 1994;
61 FR 64018, Dec. 3, 1996]

§ 552.4   Charter amendments.

top

(a) General. In order to adopt a charter amendment, a Federal
stock association must comply with the following requirements:

(1) Board of directors approval. The board of directors of the
association must adopt a resolution proposing the charter amendment that
states the text of such amendment.

(2) Form of filing —(i) Application requirement. If the
proposed charter amendment would render more difficult or discourage a
merger, tender offer, or proxy contest, the assumption of control by a
holder of a block of the association's stock, the removal of incumbent
management, or involve a significant issue of law or policy, the
association shall file the proposed amendment and shall obtain the prior
approval of the OTS; and

(ii) Notice requirement. If the proposed charter amendment does
not involve a provision that would be covered by paragraph (a)(2)(i) of
this section and such amendment is permissible under all applicable laws,
rules or regulations, then the association shall submit the proposed
amendments to the OTS, at least 30 days prior to the date the proposed
charter amendment is to be mailed for consideration by the association's
shareholders.

(b) Approval. Any charter amendment filed pursuant to paragraph
(a)(2)(ii) of this section shall automatically be approved 30 days from
the date of filing of such amendment, provided that the association
follows the requirements of its charter in adopting such amendment, unless
prior to the expiration of such 30-day period the OTS notifies the
association that such amendment is rejected or that such amendment is
deemed to be filed under the provisions of paragraph (a)(2)(i) of this
section. In addition, the following charter amendments, including the
adoption of the Federal stock charter as set forth in §552.3 of this part,
shall be approved at the time of adoption, if adopted without change and
filed with OTS within 30 days after adoption, provided the association
follows the requirements of its charter in adopting such amendments:

(1) Title change. A Federal stock association that has complied
with §543.1(b) of this chapter may amend its charter by substituting a new
corporate title in section 1.

(2) Home office. A Federal savings association may amend its
charter by substituting a new home office in section 2, if it has complied
with applicable requirements of §545.95 of this chapter.

(3) Number of shares of stock and par value. A Federal stock
association may amend Section 5 of its charter to change the number of
authorized shares of stock, the number of shares within each class of
stock, and the par or stated value of such shares.

(4) Capital stock. A Federal stock association may amend its
charter by revising Section 5 to read as follows:

Section 5. Capital stock. The total number of shares of all
classes of capital stock that the association has the authority to issue
is ___, of which ___ shall be common stock of par [or if no par value is
specified the stated] value of ___ per share and of which [list the number
of each class of preferred and the par or if no par value is specified the
stated value per share of each such class]. The shares may be issued from
time to time as authorized by the board of directors without further
approval of shareholders, except as otherwise provided in this Section 5
or to the extent that such approval is required by governing law, rule, or
regulation. The consideration for the issuance of the shares shall be paid
in full before their issuance and shall not be less than the par [or
stated] value. Neither promissory notes nor future services shall
constitute payment or part payment for the issuance of shares of the
association. The consideration for the shares shall be cash, tangible or
intangible property (to the extent direct investment in such property
would be permitted), labor, or services actually performed for the
association, or any combination of the foregoing. In the absence of actual
fraud in the transaction, the value of such property, labor, or services,
as determined by the board of directors of the association, shall be
conclusive. Upon payment of such consideration, such shares shall be
deemed to be fully paid and nonassessable. In the case of a stock
dividend, that part of the retained earnings of the association that is
transferred to common stock or paid-in capital accounts upon the issuance
of shares as a stock dividend shall be deemed to be the consideration for
their issuance.

Except for shares issued in the initial organization of the association
or in connection with the conversion of the association from the mutual to
the stock form of capitalization, no shares of capital stock (including
shares issuable upon conversion, exchange, or exercise of other
securities) shall be issued, directly or indirectly, to officers,
directors, or controlling persons of the association other than as part of
a general public offering or as qualifying shares to a director, unless
their issuance or the plan under which they would be issued has been
approved by a majority of the total votes eligible to be cast at a legal
meeting.

Nothing contained in this Section 5 (or in any supplementary sections
hereto) shall entitle the holders of any class of a series of capital
stock to vote as a separate class or series or to more than one vote per
share, except as to the cumulation of votes for the election of directors,
unless the charter otherwise provides that there shall be no such
cumulative voting: Provided, That this restriction on voting
separately by class or series shall not apply:

(i) To any provision which would authorize the holders of preferred
stock, voting as a class or series, to elect some members of the board of
directors, less than a majority thereof, in the event of default in the
payment of dividends on any class or series of preferred stock;

(ii) To any provision that would require the holders of preferred
stock, voting as a class or series, to approve the merger or consolidation
of the association with another corporation or the sale, lease, or
conveyance (other than by mortgage or pledge) of properties or business in
exchange for securities of a corporation other than the association if the
preferred stock is exchanged for securities of such other corporation:
Provided, That no provision may require such approval for
transactions undertaken with the assistance or pursuant to the direction
of the Office or the Federal Deposit Insurance Corporation;

(iii) To any amendment which would adversely change the specific terms
of any class or series of capital stock as set forth in this Section 5 (or
in any supplementary sections hereto), including any amendment which would
create or enlarge any class or series ranking prior thereto in rights and
preferences. An amendment which increases the number of authorized shares
of any class or series of capital stock, or substitutes the surviving
association in a merger or consolidation for the association, shall not be
considered to be such an adverse change.

A description of the different classes and series (if any) of the
association's capital stock and a statement of the designations, and the
relative rights, preferences, and limitations of the shares of each class
of and series (if any) of capital stock are as follows:

A. Common stock. Except as provided in this Section 5 (or in any
supplementary sections thereto) the holders of the common stock shall
exclusively possess all voting power. Each holder of shares of the common
stock shall be entitled to one vote for each share held by each holder,
except as to the cumulation of votes for the election of directors, unless
the charter otherwise provides that there shall be no such cumulative
voting.

Whenever there shall have been paid, or declared and set aside for
payment, to the holders of the outstanding shares of any class of stock
having preference over the common stock as to the payment of dividends,
the full amount of dividends and of sinking fund, retirement fund, or
other retirement payments, if any, to which such holders are respectively
entitled in preference to the common stock, then dividends may be paid on
the common stock and on any class or series of stock entitled to
participate therewith as to dividends out of any assets legally available
for the payment of dividends.

In the event of any liquidation, dissolution, or winding up of the
association, the holders of the common stock (and the holders of any class
or series of stock entitled to participate with the common stock in the
distribution of assets) shall be entitled to receive, in cash or in kind,
the assets of the association available for distribution remaining after:
(i) Payment or provision for payment of the association's debts and
liabilities; (ii) distributions or provision for distributions in
settlement of its liquidation account; and (iii) distributions or
provision for distributions to holders of any class or series of stock
having preference over the common stock in the liquidation, dissolution,
or winding up of the association. Each share of common stock shall have
the same relative rights as and be identical in all respects with all the
other shares of common stock.

B. Preferred stock. The association may provide in supplementary
sections to its charter for one or more classes of preferred stock, which
shall be separately identified. The shares of any class may be divided
into and issued in series, with each series separately designated so as to
distinguish the shares thereof from the shares of all other series and
classes. The terms of each series shall be set forth in a supplementary
section to the charter. All shares of the same class shall be identical
except as to the following relative rights and preferences, as to which
there may be variations between different series:

(a) The distinctive serial designation and the number of shares
constituting such series;

(b) The dividend rate or the amount of dividends to be paid on the
shares of such series, whether dividends shall be cumulative and, if so,
from which date(s), the payment date(s) for dividends, and the
participating or other special rights, if any, with respect to
dividends;

(c) The voting powers, full or limited, if any, of shares of such
series;

(d) Whether the shares of such series shall be redeemable and, if so,
the price(s) at which, and the terms and conditions on which, such shares
may be redeemed;

(e) The amount(s) payable upon the shares of such series in the event
of voluntary or involuntary liquidation, dissolution, or winding up of the
association;

(f) Whether the shares of such series shall be entitled to the benefit
of a sinking or retirement fund to be applied to the purchase or
redemption of such shares, and if so entitled, the amount of such fund and
the manner of its application, including the price(s) at which such shares
may be redeemed or purchased through the application of such fund;

(g) Whether the shares of such series shall be convertible into, or
exchangeable for, shares of any other class or classes of stock of the
association and, if so, the conversion price(s) or the rate(s) of
exchange, and the adjustments thereof, if any, at which such conversion or
exchange may be made, and any other terms and conditions of such
conversion or exchange.

(h) The price or other consideration for which the shares of such
series shall be issued; and

(i) Whether the shares of such series which are redeemed or converted
shall have the status of authorized but unissued shares of serial
preferred stock and whether such shares may be reissued as shares of the
same or any other series of serial preferred stock.

Each share of each series of serial preferred stock shall have the same
relative rights as and be identical in all respects with all the other
shares of the same series.

The board of directors shall have authority to divide, by the adoption
of supplementary charter sections, any authorized class of preferred stock
into series, and, within the limitations set forth in this section and the
remainder of this charter, fix and determine the relative rights and
preferences of the shares of any series so established.

Prior to the issuance of any preferred shares of a series established
by a supplementary charter section adopted by the board of directors, the
association shall file with the Secretary to the Office a dated copy of
that supplementary section of this charter established and designating the
series and fixing and determining the relative rights and preferences
thereof.

(5) Limitations on subsequent issuances. A Federal stock
association may amend its charter to require shareholder approval of the
issuance or reservation of common stock or securities convertible into
common stock under circumstances which would require shareholder approval
under the rules of the New York or American Stock Exchange if the shares
were then listed on the New York or American Stock Exchange.

(6) Cumulative voting. A Federal stock association may amend its
charter by substituting the following sentence for the second sentence in
the third paragraph of Section 5: “Each holder of shares of common stock
shall be entitled to one vote for each share held by such holder and there
shall be no right to cumulate votes in an election of directors.”

(7) [Reserved]

(8) Anti-takeover provisions following mutual to stock conversion.
Notwithstanding the law of the state in which the association is
located, a Federal stock association may amend its charter by renumbering
existing sections as appropriate and adding a new section 8 as
follows:

Section 8. Certain Provisions Applicable for Five Years.
Notwithstanding anything contained in the Association's charter or
bylaws to the contrary, for a period of [specify number of years up to
five] years from the date of completion of the conversion of the
Association from mutual to stock form, the following provisions shall
apply:

A. Beneficial Ownership Limitation. No person shall directly or
indirectly offer to acquire or acquire the beneficial ownership of more
than 10 percent of any class of an equity security of the association.
This limitation shall not apply to a transaction in which the association
forms a holding company without change in the respective beneficial
ownership interests of its stockholders other than pursuant to the
exercise of any dissenter and appraisal rights, the purchase of shares by
underwriters in connection with a public offering, or the purchase of
shares by a tax-qualified employee stock benefit plan which is exempt from
the approval requirements under §574.3(c)(1)(vi) of the Office's
regulations.

In the event shares are acquired in violation of this section 8, all
shares beneficially owned by any person in excess of 10% shall be
considered “excess shares” and shall not be counted as shares entitled to
vote and shall not be voted by any person or counted as voting shares in
connection with any matters submitted to the stockholders for a vote.

For purposes of this section 8, the following definitions apply:

(1) The term “person” includes an individual, a group acting in
concert, a corporation, a partnership, an association, a joint stock
company, a trust, an unincorporated organization or similar company, a
syndicate or any other group formed for the purpose of acquiring, holding
or disposing of the equity securities of the association.

(2) The term “offer” includes every offer to buy or otherwise acquire,
solicitation of an offer to sell, tender offer for, or request or
invitation for tenders of, a security or interest in a security for
value.

(3) The term “acquire” includes every type of acquisition, whether
effected by purchase, exchange, operation of law or otherwise.

(4) The term “acting in concert” means (a) knowing participation in a
joint activity or conscious parallel action towards a common goal whether
or not pursuant to an express agreement, or (b) a combination or pooling
of voting or other interests in the securities of an issuer for a common
purpose pursuant to any contract, understanding, relationship, agreement
or other arrangements, whether written or otherwise.

B. Cumulative Voting Limitation. Stockholders shall not be
permitted to cumulate their votes for election of directors.

C. Call for Special Meetings. Special meetings of stockholders
relating to changes in control of the association or amendments to its
charter shall be called only upon direction of the board of
directors.

(c) Anti-takeover provisions. The Office may grant approval to a
charter amendment not listed in paragraph (b) of this section regarding
the acquisition by any person or persons of its equity securities provided
that the association shall file as part of its application for approval an
opinion, acceptable to the OTS, of counsel independent from the
association that the proposed charter provision would be permitted to be
adopted by a corporation chartered by the state in which the principal
office of the association is located. Any such provision must be
consistent with applicable statutes, regulations, and OTS policies.
Further, any such provision that would have the effect of rendering more
difficult a change in control of the association and would require for any
corporate action (other than the removal of directors) the affirmative
vote of a larger percentage of shareholders than is required by this Part,
shall not be effective unless adopted by a percentage of shareholder vote
at least equal to the highest percentage that would be required to take
any action under such provision.

(d) Reissuance of charter. A Federal stock association that has
amended its charter may apply to have its charter, including the
amendments, reissued by the Office. Such requests for reissuance should be
filed with the Corporate Secretary at Washington Headquarters Office at
the address listed in §516.40(b) of this chapter, and contain signatures
required under §552.3 of this part, together with such supporting
documents as needed to demonstrate that the amendments were properly
adopted.

[54 FR 49523, Nov. 30, 1989, as amended at 55 FR 13513, Apr. 11, 1990;
57 FR 14343, Apr. 20, 1992; 59 FR 18476, Apr. 19, 1994; 61 FR 64018, Dec.
3, 1996; 62 FR 66262, Dec. 18, 1997; 66 FR 13006, Mar. 2, 2001; 69 FR
68249, Nov. 24, 2004]

§ 552.5   Bylaws.

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(a) General. At its first organizational meeting, the board of
directors of a Federal stock association shall adopt a set of bylaws for
the administration and regulation of its affairs. Bylaws may be adopted,
amended or repealed by either a majority of the votes cast by the
shareholders at a legal meeting or a majority of the board of directors.
The bylaws shall contain sufficient provisions to govern the association
in accordance with the requirements of §§552.6, 552.6–1, 552.6–2, and
552.6–3 of this part and shall not contain any provision that is
inconsistent with those sections or with applicable laws, rules,
regulations or the association's charter, except that a bylaw provision
inconsistent with §§552.6, 552.6–1, 552.6–3, and 552.6–4 of this part may
be adopted with the approval of the OTS.

(b) Form of Filing —(1) Application requirement. (i) Any
bylaw amendment shall be submitted to the OTS for approval if it
would:

(A) Render more difficult or discourage a merger, tender offer, or
proxy contest, the assumption of control by a holder of a large block of
the association's stock, or the removal of incumbent management; or

(B) Be inconsistent with §§552.6, 552.6–1, 552.6–2, and 552.6–3 of this
part, with applicable laws, rules, regulations or the association's
charter or involve a significant issue of law or policy, including
indemnification, conflicts of interest, and limitations on director or
officer liability.

(ii) Applications submitted under paragraph (b)(1)(i) of this section
are subject to standard treatment processing procedures at part 516,
subparts A and E of this chapter.

(iii) Bylaw provisions that adopt the language of the model or optional
bylaws in OTS's Application Processing Handbook, if adopted without
change, and filed with OTS within 30 days after adoption, are effective
upon adoption.

(2) Filing requirement. If the proposed bylaw amendment does not
involve a provision that would be covered by paragraph (b)(1) or (b)(3) of
this section and is permissible under all applicable laws, rules, or
regulations, then the association shall submit the amendment to the OTS at
least 30 days prior to the date the bylaw amendment is to be adopted by
the association.

(3) Corporate governance procedures. A Federal stock association
may elect to follow the corporate governance procedures of: The laws of
the state where the main office of the association is located; the laws of
the state where the association's holding company, if any, is incorporated
or chartered; Delaware General Corporation law; or The Model Business
Corporation Act, provided that such procedures may be elected to the
extent not inconsistent with applicable Federal statutes and regulations
and safety and soundness, and such procedures are not of the type
described in paragraph (b)(1) of this section. If this election is
selected, a Federal stock association shall designate in its bylaws the
provision or provisions from the body or bodies of law selected for its
corporate governance procedures, and shall file a copy of such bylaws,
which are effective upon adoption, within 30 days after adoption. The
submission shall indicate, where not obvious, why the bylaw provisions
meet the requirements stated in paragraph (b)(1) of this section.

(c) Effectiveness. Any bylaw amendment filed pursuant to
paragraph (b)(2) of this section shall automatically be effective 30 days
from the date of filing of such amendment, provided that the association
follows the requirements of its charter and bylaws in adopting such
amendment, unless prior to the expiration of such 30-day period the OTS
notifies the association that such amendment is rejected or that such
amendment requires an application to be filed pursuant to paragraph (b)(1)
of this section.

(d) Effect of subsequent charter or bylaw change.
Notwithstanding any subsequent change to its charter or bylaws, the
authority of a Federal stock association to engage in any transaction
shall be determined only by the association's charter or bylaws then in
effect, unless otherwise provided by Federal law or regulation.

[57 FR 14343, Apr. 20, 1992, as amended at 60 FR 66718, Dec. 26, 1995;
61 FR 64019, Dec. 3, 1996; 66 FR 13006, Mar. 2, 2001; 66 FR 15020, Mar.
15, 2001]

§ 552.6   Shareholders.

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(a) Shareholder meetings. An annual meeting of the shareholders
of the association for the election of directors and for the transaction
of any other business of the association shall be held annually within 150
days after the end of the association's fiscal year. Unless otherwise
provided in the association's charter, special meetings of the
shareholders may be called by the board of directors or on the request of
the holders of 10 percent or more of the shares entitled to vote at the
meeting, or by such other persons as may be specified in the bylaws of the
association. All annual and special meetings of shareholders shall be held
at such place as the board of directors may determine in the state in
which the association has its principal place of business, or at any other
convenient place the board of directors may designate.

(b) Notice of shareholder meetings. Written notice stating the
place, day, and hour of the meeting and the purpose or purposes for which
the meeting is called shall be delivered not fewer than 20 nor more than
50 days before the date of the meeting, either personally or by mail, by
or at the direction of the chairman of the board, the president, the
secretary, or the directors, or other persons calling the meeting, to each
shareholder of record entitled to vote at such meeting. If mailed, such
notice shall be deemed to be delivered when deposited in the mail,
addressed to the shareholder at the address appearing on the stock
transfer books or records of the association as of the record date
prescribed in paragraph (c) of this section, with postage thereon prepaid.
When any shareholders' meeting, either annual or special, is adjourned for
30 days or more, notice of the adjourned meeting shall be given as in the
case of an original meeting. Notwithstanding anything in this section,
however, a Federal stock association that is wholly owned shall not be
subject to the shareholder notice requirement.

(c) Fixing of record date. For the purpose of determining
shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or shareholders entitled to
receive payment of any dividend, or in order to make a determination of
shareholders for any other proper purpose, the board of directors shall
fix in advance a date as the record date for any such determination of
shareholders. Such date in any case shall be not more than 60 days and, in
case of a meeting of shareholders, not less than 10 days prior to the date
on which the particular action, requiring such determination of
shareholders, is to be taken. When a determination of shareholders
entitled to vote at any meeting of shareholders has been made as provided
in this section, such determination shall apply to any adjournment
thereof.

(d) Voting lists. (1) At least 20 days before each meeting of
the shareholders, the officer or agent having charge of the stock transfer
books for the shares of the association shall make a complete list of the
stockholders of record entitled to vote at such meeting, or any
adjournments thereof, arranged in alphabetical order, with the address and
the number of shares held by each. This list of shareholders shall be kept
on file at the home office of the association and shall be subject to
inspection by any shareholder of record or the stockholder's agent during
the entire time of the meeting. The original stock transfer book shall
constitute prima facie evidence of the stockholders entitled to
examine such list or transfer books or to vote at any meeting of
stockholders. Notwithstanding anything in this section, however, a Federal
stock association that is wholly owned shall not be subject to the voting
list requirements.

(2) In lieu of making the shareholders list available for inspection by
any shareholders as provided in paragraph (d)(1) of this section, the
board of directors may perform such acts as required by paragraphs (a) and
(b) of Rule 14a–7 of the General Rules and Regulations under the
Securities and Exchange Act of 1934 (17 CFR 240.14a–7) as may be duly
requested in writing, with respect to any matter which may be properly
considered at a meeting of shareholders, by any shareholder who is
entitled to vote on such matter and who shall defray the reasonable
expenses to be incurred by the association in performance of the act or
acts required.

(e) Shareholder quorum. A majority of the outstanding shares of
the association entitled to vote, represented in person or by proxy, shall
constitute a quorum at a meeting of shareholders. The shareholders present
at a duly organized meeting may continue to transact business until
adjournment, notwithstanding the withdrawal of enough shareholders to
leave less than a quorum. If a quorum is present, the affirmative vote of
the majority of the shares represented at the meeting and entitled to vote
on the subject matter shall be the act of the stockholders, unless the
vote of a greater number of stockholders voting together or voting by
classes is required by law or the charter. Directors, however, are elected
by a plurality of the votes cast at an election of directors.

(f) Shareholder voting— (1) Proxies. Unless otherwise
provided in the association's charter, at all meetings of shareholders, a
shareholder may vote in person or by proxy executed in writing by the
shareholder or by a duly authorized attorney in fact. Proxies may be given
telephonically or electronically as long as the holder uses a procedure
for verifying the identity of the shareholder. A proxy may designate as
holder a corporation, partnership or company as defined in Part 574 of
this chapter, or other person. Proxies solicited on behalf of the
management shall be voted as directed by the shareholder or, in the
absence of such direction, as determined by a majority of the board of
directors. No proxy shall be valid more than eleven months from the date
of its execution except for a proxy coupled with an interest.

(2) Shares controlled by association. Neither treasury shares of
its own stock held by the association nor shares held by another
corporation, if a majority of the shares entitled to vote for the election
of directors of such other corporation are held by the association, shall
be voted at any meeting or counted in determining the total number of
outstanding shares at any given time for purposes of any meeting.

(g) Nominations and new business submitted by shareholders.
Nominations for directors and new business submitted by shareholders
shall be voted upon at the annual meeting if such nominations or new
business are submitted in writing and delivered to the secretary of the
association at least five days prior to the date of the annual meeting.
Ballots bearing the names of all the persons nominated shall be provided
for use at the annual meeting.

(h) Informal action by stockholders. If the bylaws of the
association so provide, any action required to be taken at a meeting of
the stockholders, or any other action that may be taken at a meeting of
the stockholders, may be taken without a meeting if consent in writing has
been given by all the stockholders entitled to vote with respect to the
subject matter.

[54 FR 49523, Nov. 30, 1989, as amended at 59 FR 18476, Apr. 19, 1994;
61 FR 64019, Dec. 3, 1996]

§ 552.6-1   Board of directors.

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(a) General powers and duties. The business and affairs of the
association shall be under the direction of its board of directors. The
board of directors shall annually elect a chairman of the board from among
its members and shall designate the chairman of the board, when present,
to preside at its meeting. Directors need not be stockholders unless the
bylaws so require.

(b) Number and term. The bylaws shall set forth a specific
number of directors, not a range. The number of directors shall be not
fewer than five nor more than fifteen, unless a higher or lower number has
been authorized by the Director of the Office or his or her delegate.
Directors shall be elected for a term of one to three years and until
their successors are elected and qualified. If a staggered board is
chosen, the directors shall be divided into two or three classes as nearly
equal in number as possible and one class shall be elected by ballot
annually. In the case of a converting or newly chartered association where
all directors shall be elected at the first election of directors, if a
staggered board is chosen, the terms shall be staggered in length from one
to three years.

(c) Regular meetings. A regular meeting of the board of
directors shall be held immediately after, and at the same place as, the
annual meeting of shareholders. The board of directors shall determine the
place, frequency, time and procedure for notice of regular meetings.

(d) Quorum. A majority of the number of directors shall
constitute a quorum for the transaction of business at any meeting of the
board of directors. The act of the majority of the directors present at a
meeting at which a quorum is present shall be the act of the board of
directors, unless a greater number is prescribed by regulation of the
Office.

(e) Vacancies. Any vacancy occurring in the board of directors
may be filled by the affirmative vote of a majority of the remaining
directors although less than a quorum of the board of directors. A
director elected to fill a vacancy shall be elected to serve only until
the next election of directors by the shareholders. Any directorship to be
filled by reason of an increase in the number of directors may be filled
by election by the board of directors for a term of office continuing only
until the next election of directors by the shareholders.

(f) Removal or resignation of directors. (1) At a meeting of
shareholders called expressly for that purpose, any director may be
removed only for cause, as defined in §563.39 of this chapter, by a vote
of the holders of a majority of the shares then entitled to vote at an
election of directors. Associations may provide for procedures regarding
resignations in the bylaws.

(2) If less than the entire board is to be removed, no one of the
directors may be removed if the votes cast against the removal would be
sufficient to elect a director if then cumulatively voted at an election
of the class of directors of which such director is a part.

(3) Whenever the holders of the shares of any class are entitled to
elect one or more directors by the provisions of the charter or
supplemental sections thereto, the provisions of this section shall apply,
in respect to the removal of a director or directors so elected, to the
vote of the holders of the outstanding shares of that class and not to the
vote of the outstanding shares as a whole.

(g) Executive and other committees. The board of directors, by
resolution adopted by a majority of the full board, may designate from
among its members an executive committee and one or more other committees
each of which, to the extent provided in the resolution or bylaws of the
association, shall have and may exercise all of the authority of the board
of directors, except no committee shall have the authority of the board of
directors with reference to: the declaration of dividends; the amendment
of the charter or bylaws of the association; recommending to the
stockholders a plan of merger, consolidation, or conversion; the sale,
lease, or other disposition of all, or substantially all, of the property
and assets of the association otherwise than in the usual and regular
course of its business; a voluntary dissolution of the association; a
revocation of any of the foregoing; or the approval of a transaction in
which any member of the executive committee, directly or indirectly, has
any material beneficial interest. The designation of any committee and the
delegation of authority thereto shall not operate to relieve the board of
directors, or any director, of any responsibility imposed by law or
regulation.

(h) Notice of special meetings. Written notice of at least 24
hours regarding any special meeting of the board of directors or of any
committee designated thereby shall be given to each director in accordance
with the bylaws, although such notice may be waived by the director. The
attendance of a director at a meeting shall constitute a waiver of notice
of such meeting, except where a director attends a meeting for the express
purpose of objecting to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any meeting need be specified in the
notice or waiver of notice of such meeting. The bylaws may provide for
telephonic participation at a meeting.

(i) Action without a meeting. Any action required or permitted
to be taken by the board of directors at a meeting may be taken without a
meeting if a consent in writing, setting forth the actions so taken, shall
be signed by all of the directors.

(j) Presumption of assent. A director of the association who is
present at a meeting of the board of directors at which action on any
association matter is taken shall be presumed to have assented to the
action taken unless his or her dissent or abstention shall be entered in
the minutes of the meeting or unless a written dissent to such action
shall be filed with the person acting as the secretary of the meeting
before the adjournment thereof or shall be forwarded by registered mail to
the secretary of the association within five days after the date on which
a copy of the minutes of the meeting is received. Such right to dissent
shall not apply to a director who voted in favor of such action.

(k) Age limitation on directors. A Federal association may
provide a bylaw on age limitation for directors. Bylaws on age limitations
must comply with all Federal laws, rules and regulations.

[54 FR 49523, Nov. 30, 1989, as amended at 58 FR 4312, Jan. 14, 1993;
61 FR 64020, Dec. 3, 1996; 62 FR 66262, Dec. 18, 1997]

§ 552.6-2   Officers.

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(a) Positions. The officers of the association shall be a
president, one or more vice presidents, a secretary, and a treasurer or
comptroller, each of whom shall be elected by the board of directors. The
board of directors may also designate the chairman of the board as an
officer. The offices of the secretary and treasurer or comptroller may be
held by the same person and the vice president may also be either the
secretary or the treasurer or comptroller. The board of directors may
designate one or more vice presidents as executive vice president or
senior vice president. The board of directors may also elect or authorize
the appointment of such other officers as the business of the association
may require. The officers shall have such authority and perform such
duties as the board of directors may from time to time authorize or
determine. In the absence of action by the board of directors, the
officers shall have such powers and duties as generally pertain to their
respective offices.

(b) Removal. Any officer may be removed by the board of
directors whenever in its judgment the best interests of the association
will be served thereby; but such removal, other than for cause, shall be
without prejudice to the contractual rights, if any, of the person so
removed. Employment contracts shall conform with §563.39 of this
chapter.

(c) Age limitation on officers. A Federal association may
provide a bylaw on age limitation for officers. Bylaws on age limitations
must comply with all Federal laws, rules, and regulations.

[54 FR 49523, Nov. 30, 1989, as amended at 56 FR 59866, Nov. 26, 1991;
60 FR 66869, Dec. 27, 1995; 61 FR 64020, Dec. 3, 1996]

§ 552.6-3   Certificates for shares and their
transfer.

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(a) Certificates for shares. Certificates representing shares of
capital stock of the association shall be in such form as shall be
determined by the board of directors and approved by the OTS. The
certificates shall be signed by the chief executive officer or by any
other officer of the association authorized by the board of directors,
attested by the secretary or an assistant secretary, and sealed with the
corporate seal or a facsimile thereof. The signatures of such officers
upon a certificate may be facsimiles if the certificate is manually signed
on behalf of a transfer agent or a registrar other than the association
itself or one of its employees. Each certificate for shares of capital
stock shall be consecutively numbered or otherwise identified. The name
and address of the person to whom the shares are issued, with the number
of shares and date of issue, shall be entered on the stock transfer books
of the association. All certificates surrendered to the association for
transfer shall be cancelled and no new certificate shall be issued until
the former certificate for a like number of shares shall have been
surrendered and cancelled, except that in the case of a lost or destroyed
certificate a new certificate may be issued upon such terms and indemnity
to the association as the board of directors may prescribe.

(b) Transfer of shares. Transfer of shares of capital stock of
the association shall be made only on its stock transfer books. Authority
for such transfer shall be given only by the holder of record or by a
legal representative, who shall furnish proper evidence of such authority,
or by an attorney authorized by a duly executed power of attorney and
filed with the association. The transfer shall be made only on surrender
for cancellation of the certificate for the shares. The person in whose
name shares of capital stock stand on the books of the association shall
be deemed by the association to be the owner for all purposes.

[54 FR 49523, Nov. 30, 1989, as amended at 55 FR 13514, Apr. 11, 1990;
57 FR 14343, Apr. 20, 1992]

§ 552.6-4   [Reserved]

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§ 552.9   [Reserved]

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§ 552.10   Annual reports to
stockholders.

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A Federal stock association not wholly-owned by a holding company
shall, within 130 days after the end of its fiscal year, mail to each of
its stockholders entitled to vote at its annual meeting an annual report
containing financial statements that satisfy the requirements of rule
14a–3 under the Securities Exchange Act of 1934. (17 CFR 240.14a–3).
Concurrently with such mailing a certification of such mailing signed by
the chairman of the board, the president or a vice president of the
association, together with copies of the report, shall be transmitted by
the association to the OTS.

[57 FR 14343, Apr. 20, 1992, as amended at 62 FR 66262, Dec. 18,
1997]

§ 552.11   Books and records.

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(a) Each Federal stock association shall keep correct and complete
books and records of account; shall keep minutes of the proceedings of its
stockholders, board of directors, and committees of directors; and shall
keep at its home office or at the office of its transfer agent or
registrar, a record of its stockholders, giving the names and addresses of
all stockholders, and the number, class and series, if any, of the shares
held by each.

(b) Any stockholder or group of stockholders of a Federal stock
association, holding of record the number of voting shares of such
association specified below, upon making written demand stating a proper
purpose, shall have the right to examine, in person or by agent or
attorney, at any reasonable time or times, nonconfidential portions of its
books and records of account, minutes and record of stockholders and to
make extracts therefrom. Such right of examination is limited to a
stockholder or group of stockholders holding of record:

(1) Voting shares having a cost of not less than $100,000 or
constituting not less than one percent of the total outstanding voting
shares, provided in either case such stockholder or group of stockholders
have held of record such voting shares for a period of at least six months
before making such written demand, or

(2) Not less than five percent of the total outstanding voting
shares.

No stockholder or group of stockholders of a Federal stock association
shall have any other right under this section or common law to examine its
books and records of account, minutes and record of stockholders, except
as provided in its bylaws with respect to inspection of a list of
stockholders.

(c) The right to examination authorized by paragraph (b) of this
section and the right to inspect the list of stockholders provided by a
Federal stock association's bylaws may be denied to any stockholder or
group of stockholders upon the refusal of any such stockholder or group of
stockholders to furnish such association, its transfer agent or registrar
an affidavit that such examination or inspection is not desired for any
purpose which is in the interest of a business or object other than the
business of the association, that such stockholder has not within the five
years preceding the date of the affidavit sold or offered for sale, and
does not now intend to sell or offer for sale, any list of stockholders of
the association or of any other corporation, and that such stockholder has
not within said five-year period aided or abetted any other person in
procuring any list of stockholders for purposes of selling or offering for
sale such list.

(d) Notwithstanding any provision of this section or common law, no
stockholder or group of stockholders shall have the right to obtain,
inspect or copy any portion of any books or records of a Federal stock
association containing:

(1) A list of depositors in or borrowers from such association;

(2) Their addresses;

(3) Individual deposit or loan balances or records; or

(4) Any data from which such information could be reasonably
constructed.

[54 FR 49523, Nov. 30, 1989, as amended at 61 FR 64020, Dec. 3,
1996]

§ 552.12   [Reserved]

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§ 552.13   Combinations involving Federal stock
associations.

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(a) Scope and authority. Federal stock associations may enter
into combinations only in accordance with the provisions of this section,
section 18(c) of the Federal Deposit Insurance Act, sections 5(d)(3)(A)
and 10(s) of the Home Owners' Loan Act, and §563.22 of this part.

(b) Definitions. The following definitions apply to §§552.13 and
552.14 of this part:

(1) Combination. A merger or consolidation with another
depository institution, or an acquisition of all or substantially all of
the assets or assumption of all or substantially all of the liabilities of
a depository institution by another depository institution. Combine
means to be a constituent institution in a combination.

(2) Consolidation. Fusion of two or more depository institutions
into a newly-created depository institution.

(3) Constituent institution. Resulting, disappearing, acquiring,
or transferring depository institution in a combination.

(4) Depository institution means any commercial bank (including
a private bank), a savings bank, a trust company, a savings and loan
association, a building and loan association, a homestead association, a
cooperative bank, an industrial bank or a credit union, chartered in the
United States and having its principal office located in the United
States.

(5) Disappearing institution. A depository institution whose
corporate existence does not continue after a combination.

(6) Merger. Uniting two or more depository institutions by the
transfer of all property rights and franchises to the resulting depository
institution, which retains its corporate identity.

(7) Mutual savings association. Any savings association
organized in a form not requiring non-withdrawable stock under Federal or
State law.

(8) Resulting institution. The depository institution whose
corporate existence continues after a combination.

(9) Savings association has the same meaning as defined in
§561.43 of this chapter.

(10) State. Includes the District of Columbia, Commonwealth of
Puerto Rico, and States, territories, and possessions of the United
States.

(11) Stock association. Any savings association organized in a
form requiring non-withdrawable stock.

(c) Forms of combination. A Federal stock association may
combine with any depository institution, provided that:

(1) The combination is in compliance with, and receives all approvals
required under, any applicable statutes and regulations;

(2) Any resulting Federal savings association meets the requirements
for Federal Home Loan Bank membership and insurance of accounts;

(3) Any resulting Federal savings association conforms within the time
prescribed by the OTS to the requirements of sections 5(c) and 10(m) of
the Home Owners' Loan Act; and

(4) If any constituent savings association is a mutual savings
association, the resulting institution shall be mutually held, unless:

(i) The transaction involves a supervisory merger;

(ii) The transaction is approved under part 563b of this chapter;

(iii) The transaction involves an interim Federal stock association or
an interim State stock savings association; or

(iv) The transaction involves a transfer in the context of a mutual
holding company reorganization under section 10(o) of the Home Owners'
Loan Act.

(d) Combinations. Prior written notification to, notice to, or
prior written approval of, the Office pursuant to §563.22 of this chapter
is required for every combination. In the case of applications and notices
pursuant to §563.22 (a) or (c), the Office shall apply the criteria set
out in §563.22 of this chapter and shall impose any conditions it deems
necessary or appropriate to ensure compliance with those criteria and the
requirements of this chapter.

(e) Approval of the board of directors. Before filing a notice
or application for any combination involving a Federal stock association,
the combination shall be approved:

(1) By a two-thirds vote of the entire board of each constituent
Federal savings association; and

(2) As required by other applicable Federal or state law, for other
constituent institutions.

(f) Combination agreement. All terms, conditions, agreements or
understandings, or other provisions with respect to a combination
involving a Federal savings association shall be set forth fully in a
written combination agreement. The combination agreement shall state:

(1) That the combination shall not be effective unless and until:

(i) The combination receives any necessary approval from the Office
pursuant to §563.22 (a) or (c);

(ii) In the case of a transaction requiring a notification pursuant to
§563.22(b), notification has been provided to the OTS; or

(iii) In the case of a transaction requiring a notice pursuant to
§563.22(c), the notice has been filed, and the appropriate period of time
has passed or the OTS has advised the parties that it will not disapprove
the transaction;

(2) Which constituent institution is to be the resulting
institution;

(3) The name of the resulting institution;

(4) The location of the home office and any other offices of the
resulting institution;

(5) The terms and conditions of the combination and the method of
effectuation;

(6) Any charter amendments, or the new charter in the combination;

(7) The basis upon which the savings accounts of the resulting
institution shall be issued;

(8) If a Federal association is the resulting institution, the number,
names, residence addresses, and terms of directors;

(9) The effect upon and assumption of any liquidation account of a
disappearing institution by the resulting institution; and

(10) Such other provisions, agreements, or understandings as relate to
the combination.

(g) [Reserved]

(h) Approval by stockholders —(1) General rule. Except as
otherwise provided in this section, an affirmative vote of two-thirds of
the outstanding voting stock of any constituent Federal savings
association shall be required for approval of the combination agreement.
If any class of shares is entitled to vote as a class pursuant to §552.4
of this part, an affirmative vote of a majority of the shares of each
voting class and two-thirds of the total voting shares shall be required.
The required vote shall be taken at a meeting of the savings
association.

(2) General exception. Stockholders of the resulting Federal
stock association need not authorize a combination agreement if:

(i) It does not involve an interim Federal savings association or an
interim state savings association;

(ii) The association's charter is not changed;

(iii) Each share of stock outstanding immediately prior to the
effective date of the combination is to be an identical outstanding share
or a treasury share of the resulting Federal stock association after such
effective date; and

(iv) Either:

(A) No shares of voting stock of the resulting Federal stock
association and no securities convertible into such stock are to be issued
or delivered under the plan of combination, or

(B) The authorized unissued shares or the treasury shares of voting
stock of the resulting Federal stock association to be issued or delivered
under the plan of combination, plus those initially issuable upon
conversion of any securities to be issued or delivered under such plan, do
not exceed 15% of the total shares of voting stock of such association
outstanding immediately prior to the effective date of the
combination.

(3) Exceptions for certain combinations involving an interim
association. Stockholders of a Federal stock association need not
authorize by a two-thirds affirmative vote combinations involving an
interim Federal savings association or interim state savings association
when the resulting Federal stock association is acquired pursuant to
§574.7(a)(2) of this chapter. In those cases, an affirmative vote of 50
percent of the shares of the outstanding voting stock of the Federal stock
association plus one affirmative vote shall be required. If any class of
shares is entitled to vote as a class pursuant to §552.4 of this part, an
affirmative vote of 50 percent of the shares of each voting class plus one
affirmative vote shall be required. The required votes shall be taken at a
meeting of the association.

(i) Disclosure. The OTS may require, in connection with a
combination under this section, such disclosure of information as the OTS
deems necessary or desirable for the protection of investors in any of the
constituent associations.

(j) Articles of combination. (1) Following stockholder approval
of any combination in which a Federal savings association is the resulting
institution, articles of combination shall be executed in duplicate by
each constituent institution, by its chief executive officer or executive
vice president and by its secretary or an assistant secretary, and
verified by one of the officers of each institution signing such articles,
and shall set forth:

(i) The plan of combination;

(ii) The number of shares outstanding in each depository institution;
and

(iii) The number of shares in each depository institution voted for and
against such plan.

(2) Both sets of articles of combination shall be filed with the
Office. If the Office determines that such articles conform to the
requirements of this section, the Office shall endorse the articles and
return one set to the resulting institution.

(k) Effective date. No combination under this section shall be
effective until receipt of any approvals required by the Office. The
effective date of a combination in which the resulting institution is a
Federal stock association shall be the date of consummation of the
transaction or such other later date specified on the endorsement of the
articles of combination by the Office. If a disappearing institution
combining under this section is a Federal stock association, its charter
shall be deemed to be cancelled as of the effective date of the
combination and such charter must be surrendered to the Office as soon as
practicable after the effective date.

(l) Mergers and consolidations: transfer of assets and liabilities
to the resulting institution. Upon the effective date of a merger or
consolidation under this section, if the resulting institution is a
Federal savings association, all assets and property (real, personal and
mixed, tangible and intangible, choses in action, rights, and credits)
then owned by each constituent institution or which would inure to any of
them, shall, immediately by operation of law and without any conveyance,
transfer, or further action, become the property of the resulting Federal
savings association. The resulting Federal savings association shall be
deemed to be a continuation of the entity of each constituent institution,
the rights and obligations of which shall succeed to such rights and
obligations and the duties and liabilities connected therewith, subject to
the Home Owners' Loan Act and other applicable statutes.

[54 FR 49523, Nov. 30, 1989, as amended at 57 FR 14343, Apr. 20, 1992;
59 FR 44623, Aug. 30, 1994; 71 FR 19811, Apr. 18, 2006]

§ 552.14   Dissenter and appraisal
rights.

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(a) Right to demand payment of fair or appraised value. Except
as provided in paragraph (b) of this section, any stockholder of a Federal
stock association combining in accordance with §552.13 of this part shall
have the right to demand payment of the fair or appraised value of his
stock: Provided, That such stockholder has not voted in favor of
the combination and complies with the provisions of paragraph (c) of this
section.

(b) Exceptions. No stockholder required to accept only qualified
consideration for his or her stock shall have the right under this section
to demand payment of the stock's fair or appraised value, if such stock
was listed on a national securities exchange or quoted on the National
Association of Securities Dealers' Automated Quotation System (“NASDAQ”)
on the date of the meeting at which the combination was acted upon or
stockholder action is not required for a combination made pursuant to
§552.13(h)(2) of this part. “Qualified consideration” means cash, shares
of stock of any association or corporation which at the effective date of
the combination will be listed on a national securities exchange or quoted
on NASDAQ, or any combination of such shares of stock and cash.

(c) Procedure —(1) Notice. Each constituent Federal stock
association shall notify all stockholders entitled to rights under this
section, not less than twenty days prior to the meeting at which the
combination agreement is to be submitted for stockholder approval, of the
right to demand payment of appraised value of shares, and shall include in
such notice a copy of this section. Such written notice shall be mailed to
stockholders of record and may be part of management's proxy solicitation
for such meeting.

(2) Demand for appraisal and payment. Each stockholder electing
to make a demand under this section shall deliver to the Federal stock
association, before voting on the combination, a writing identifying
himself or herself and stating his or her intention thereby to demand
appraisal of and payment for his or her shares. Such demand must be in
addition to and separate from any proxy or vote against the combination by
the stockholder.

(3) Notification of effective date and written offer. Within ten
days after the effective date of the combination, the resulting
association shall:

(i) Give written notice by mail to stockholders of constituent Federal
stock associations who have complied with the provisions of paragraph
(c)(2) of this section and have not voted in favor of the combination, of
the effective date of the combination;

(ii) Make a written offer to each stockholder to pay for dissenting
shares at a specified price deemed by the resulting association to be the
fair value thereof; and

(iii) Inform them that, within sixty days of such date, the respective
requirements of paragraphs (c)(5) and (c)(6) of this section (set out in
the notice) must be satisfied.

The notice and offer shall be accompanied by a balance sheet and
statement of income of the association the shares of which the dissenting
stockholder holds, for a fiscal year ending not more than sixteen months
before the date of notice and offer, together with the latest available
interim financial statements.

(4) Acceptance of offer. If within sixty days of the effective
date of the combination the fair value is agreed upon between the
resulting association and any stockholder who has complied with the
provisions of paragraph (c)(2) of this section, payment therefor shall be
made within ninety days of the effective date of the combination.

(5) Petition to be filed if offer not accepted. If within sixty
days of the effective date of the combination the resulting association
and any stockholder who has complied with the provisions of paragraph
(c)(2) of this section do not agree as to the fair value, then any such
stockholder may file a petition with the Office, with a copy by registered
or certified mail to the resulting association, demanding a determination
of the fair market value of the stock of all such stockholders. A
stockholder entitled to file a petition under this section who fails to
file such petition within sixty days of the effective date of the
combination shall be deemed to have accepted the terms offered under the
combination.

(6) Stock certificates to be noted. Within sixty days of the
effective date of the combination, each stockholder demanding appraisal
and payment under this section shall submit to the transfer agent his
certificates of stock for notation thereon that an appraisal and payment
have been demanded with respect to such stock and that appraisal
proceedings are pending. Any stockholder who fails to submit his or her
stock certificates for such notation shall no longer be entitled to
appraisal rights under this section and shall be deemed to have accepted
the terms offered under the combination.

(7) Withdrawal of demand. Notwithstanding the foregoing, at any
time within sixty days after the effective date of the combination, any
stockholder shall have the right to withdraw his or her demand for
appraisal and to accept the terms offered upon the combination.

(8) Valuation and payment. The Director shall, as he or she may
elect, either appoint one or more independent persons or direct
appropriate staff of the Office to appraise the shares to determine their
fair market value, as of the effective date of the combination, exclusive
of any element of value arising from the accomplishment or expectation of
the combination. Appropriate staff of the Office shall review and provide
an opinion on appraisals prepared by independent persons as to the
suitability of the appraisal methodology and the adequacy of the analysis
and supportive data. The Director after consideration of the appraisal
report and the advice of the appropriate staff shall, if he or she concurs
in the valuation of the shares, direct payment by the resulting
association of the appraised fair market value of the shares, upon
surrender of the certificates representing such stock. Payment shall be
made, together with interest from the effective date of the combination,
at a rate deemed equitable by the Director.

(9) Costs and expenses. The costs and expenses of any proceeding
under this section may be apportioned and assessed by the Director as he
or she may deem equitable against all or some of the parties. In making
this determination the Director shall consider whether any party has acted
arbitrarily, vexatiously, or not in good faith in respect to the rights
provided by this section.

(10) Voting and distribution. Any stockholder who has demanded
appraisal rights as provided in paragraph (c)(2) of this section shall
thereafter neither be entitled to vote such stock for any purpose nor be
entitled to the payment of dividends or other distributions on the stock
(except dividends or other distribution payable to, or a vote to be taken
by stockholders of record at a date which is on or prior to, the effective
date of the combination): Provided, That if any stockholder becomes
unentitled to appraisal and payment of appraised value with respect to
such stock and accepts or is deemed to have accepted the terms offered
upon the combination, such stockholder shall thereupon be entitled to vote
and receive the distributions described above.

(11) Status. Shares of the resulting association into which
shares of the stockholders demanding appraisal rights would have been
converted or exchanged, had they assented to the combination, shall have
the status of authorized and unissued shares of the resulting
association.

§ 552.15   Supervisory combinations.

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Notwithstanding the foregoing provisions of this part, the Director of
the Office may waive or deem inapplicable any provision of §552.13 or
§552.14 of this part if he or she determines that grounds exist, or may
imminently exist, for appointment of a conservator or receiver for an
association under subsection 5(d) of the Home Owners' Loan Act.

§ 552.16   Effect of subsequent charter or bylaw
change.

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Notwithstanding any subsequent change to its charter or bylaws, the
authority of a Federal stock association to engage in any transaction
shall be determined only by the association's charter or bylaws then in
effect.

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