12 Cfr 750

National Credit Union Administration

Pt. 750

PART 750—GOLDEN PARACHUTE
AND INDEMNIFICATION PAYMENTS
Sec.
750.0 Scope.
750.1 Definitions.
750.2 Golden parachute payments prohibited.
750.3 Prohibited indemnification payments.
750.4 Permissible golden parachute payments.
750.5 Permissible
indemnification
payments.
750.6 Filing instructions; appeal.
750.7 Applicability in the event of liquidation or conservatorship.

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AUTHORITY: 12 U.S.C. 1786(t).
CFR 749.3 concerning the location of a
FICU’s vital records center to avoid the simultaneous loss of both sets of records in the
event of disaster.

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§ 750.0

12 CFR Ch. VII (1–1–18 Edition)

SOURCE: 76 FR 30517, May 26, 2011, unless
otherwise noted.

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§ 750.0

Scope.

(a) This part limits and prohibits, in
certain circumstances, the ability of
Federally insured credit unions, including Federally and state chartered natural person credit unions and Federally
and state chartered corporate credit
unions, to enter into contracts to pay
and to make golden parachute and indemnification payments to institutionaffiliated parties (IAPs).
(b) The limitations on golden parachute payments apply to troubled Federally insured credit unions that seek
to enter into contracts to pay or to
make golden parachute payments to
their IAPs. A ‘‘golden parachute payment’’ is generally considered to be
any payment to an IAP which is contingent on the termination of that person’s employment and is received when
the Federally insured credit union
making the payment is troubled. The
definition of golden parachute payment
does not include payments pursuant to
qualified
retirement
plans,
nonqualified bona fide deferred compensation plans, nondiscriminatory severance pay plans, other types of common
benefits plans, state statutes and death
benefits. Certain limited exceptions to
the golden parachute payment prohibition are provided for in cases involving
unassisted mergers and the hiring of
new management to help improve a
troubled Federally insured credit
union’s financial condition. A procedure is also set forth to permit a Federally insured credit union to request
permission to make what would otherwise be a prohibited golden parachute
payment.
(c) The limitations on indemnification payments apply to all Federally
insured credit unions, including state
chartered credit unions, regardless of
their financial health. Generally, this
part prohibits Federally insured credit
unions from indemnifying an IAP for
that portion of the costs sustained
with regard to an administrative proceeding or civil action commenced by
NCUA or a state regulatory authority
that results in a final order or settlement pursuant to which the IAP is assessed a civil money penalty, removed

from office, prohibited from participating in the affairs of a Federally insured credit union or required to cease
and desist from an action or take an affirmative action described in section
206 of the Federal Credit Union Act, 12
U.S.C. 1786. There are exceptions to
this general prohibition. First, a Federally insured credit union may purchase
commercial insurance to cover these
expenses, except judgments and penalties. Second, the credit union may
advance legal and other professional
expenses to an IAP directly (except for
judgments and penalties) if its board of
directors makes certain specific findings and the IAP provides a written affirmation and agrees in writing to reimburse the credit union if it is ultimately determined that the IAP violated a law or regulation or has engaged in certain unsafe or unsound
practices or breaches of fiduciary duty.
For Federal credit unions, fiduciary
duty is defined in 701.4 of this chapter.
State chartered credit unions should
look to applicable state law.
§ 750.1 Definitions.
As used in this part:
(a) Benefit plan means any employee
benefit plan, contract, agreement or
other arrangement subject to the requirements in § 701.19 of this chapter;
provided, however, that to the extent
the plan exhibits characteristics of a
deferred compensation plan or arrangement, or severance plan, it meets the
criteria set forth in paragraph (b) or
(h), respectively, of this section.
(b) Bona fide deferred compensation
plan or arrangement means any plan,
contract, agreement or other arrangement where:
(1) An IAP voluntarily elects to defer
all or a portion of the reasonable compensation, wages or fees paid for services rendered that otherwise would
have been paid to the IAP at the time
the services were rendered, including a
plan providing for crediting a reasonable investment return on the elective
deferrals, and the Federally insured
credit union either:
(i) Recognizes compensation expense
and accrues a liability for the benefit
payments according to generally accepted accounting principles (GAAP);
or

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National Credit Union Administration

§ 750.1

(ii) Segregates or otherwise sets aside
assets in a trust that may only be used
to pay plan and other benefits, except
that the assets of the trust may be
available to satisfy claims of the Federally insured credit union’s creditors
in the case of insolvency; or
(2) A Federally insured credit union
establishes a nonqualified deferred
compensation or supplemental retirement plan, other than an elective deferral plan described in paragraph (b)(1)
of this section:
(i) Primarily for the purpose of providing benefits for certain IAPs in excess of the limitations on contributions
and benefits imposed by sections 415,
401(a)(17), 402(g) or any other applicable
provision of the Internal Revenue Code
of 1986 (26 U.S.C. 415, 401(a)(17), 402(g));
or
(ii) Primarily for the purpose of providing supplemental retirement benefits or other deferred compensation for
a select group of directors, management or highly compensated employees, excluding severance payments described in paragraph (d)(2)(v) of this
section and permissible golden parachute payments described in § 750.4; and
(3) In the case of any nonqualified deferred compensation or supplemental
retirement plans as described in paragraphs (b)(1) and (2) of this section, the
following requirements apply:
(i) The plan was in effect at least one
year before any of the events described
in paragraph (d)(1)(ii) of this section;
(ii) Any payment made pursuant to
the plan is made in accordance with
the terms of the plan as in effect no
later than one year before any of the
events described in paragraph (d)(1)(ii)
of this section and in accordance with
any amendments to the plan during
that one year period that do not increase the benefits payable under the
plan;
(iii) The IAP has a vested right, as
defined under the applicable plan document, at the time of termination of
employment to payments under the
plan;
(iv) Benefits under the plan are accrued each period only for current or
prior service rendered to the employer,
except that an allowance may be made
for service with a predecessor employer;

(v) Any payment made pursuant to
the plan is not based on any discretionary acceleration of vesting or accrual of benefits that occurs at any
time later than one year before any of
the events described in paragraph
(d)(1)(ii) of this section;
(vi) The Federally insured credit
union has previously recognized compensation expense and accrued a liability for the benefit payments according
to GAAP or segregated or otherwise set
aside assets in a trust that may only be
used to pay plan benefits, except that
the assets of the trust may be available
to satisfy claims of the credit union’s
creditors in the case of insolvency; and
(vii) Payments pursuant to the plans
must not exceed the accrued liability
computed in accordance with GAAP.
(c) Federally insured credit union
means a Federal credit union, state
chartered credit union, or corporate
credit union the member accounts of
which are insured under the Act.
(d) Golden parachute payment. (1) The
term golden parachute payment means
any payment or any agreement to
make any payment in the nature of
compensation by any Federally insured
credit union for the benefit of any current or former IAP pursuant to an obligation of the credit union that:
(i) Is contingent on, or by its terms is
payable on or after, the termination of
the party’s primary employment or affiliation with the credit union; and
(ii) Is received on or after, or is made
in contemplation of, any of the following events:
(A) The insolvency of the Federally
insured credit union that is making the
payment; or
(B) The appointment of any conservator or liquidating agent for the Federally insured credit union; or
(C) The federally insured credit union
is in troubled condition as defined in
§ 700.2 of this chapter; or
(D) In the case of a corporate credit
union, the federally insured credit
union is undercapitalized as defined in
§ 704.4 of this chapter; or
(E) The federally insured credit union
is subject to a proceeding to terminate
or suspend its share insurance; and

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§ 750.1

12 CFR Ch. VII (1–1–18 Edition)

(iii) Is payable to an IAP whose employment by or affiliation with a Federally insured credit union is terminated at a time when the Federally insured credit union by which the IAP is
employed or with which the IAP is affiliated satisfies any of the conditions
enumerated in paragraphs (d)(1)(ii)(A)
through (E) of this section, or in contemplation of any of these conditions.
(2) Exceptions. The term golden parachute payment does not include:
(i) Any payment made pursuant to a
deferred compensation plan under section 457(b) of the Internal Revenue
Code of 1986, 26 U.S.C. 457(b), or a pension or retirement plan that is qualified or is intended within a reasonable
period of time to be qualified under
section 401 of the Internal Revenue
Code of 1986, 26 U.S.C. 401; or
(ii) Any payment made pursuant to a
benefit plan as that term is defined in
paragraph (a) of this section; or
(iii) Any payment made pursuant to
a bona fide deferred compensation plan or
arrangement as defined in paragraph (b)
of this section; or
(iv) Any payment made by reason of
death or by reason of termination
caused by the disability of an IAP; or
(v) Any payment made pursuant to a
nondiscriminatory severance pay plan
or arrangement that provides for payment of severance benefits to all eligible employees upon involuntary termination other than for cause, voluntary
resignation, or early retirement; provided, however, that no employee will
receive any payment that exceeds the
base compensation paid to the employee during the twelve months, or a
longer period or greater benefit as the
NCUA will consent to, immediately
preceding termination of employment,
resignation or early retirement, and
the severance pay plan or arrangement
must not or cannot have been adopted
or modified to increase the amount or
scope of severance benefits at a time
when the Federally insured credit
union was in a condition specified in
paragraph (d)(1)(ii) of this section or in
contemplation of that condition without the prior written consent of NCUA;
or
(vi) Any severance or similar payment required to be made pursuant to
a state statute applicable to all em-

ployers within the appropriate jurisdiction, with the exception of employers
that may be exempt due to their small
number of employees or other similar
criteria; or
(vii) Any other payment NCUA determines to be permissible in accordance
with § 750.4.
(e) Institution-affiliated party (IAP)
means any individual meeting the criteria in section 206(r) of the Act, 12
U.S.C. 1786(r).
(f) Liability or legal expense means:
(1) Any legal or other professional
fees and expenses incurred in connection with any claim, proceeding, or action;
(2) The amount of, and any cost incurred in connection with, any settlement of any claim, proceeding, or action; and
(3) The amount of, and any cost incurred in connection with, any judgment or penalty imposed with respect
to any claim, proceeding, or action.
(g) NCUA means the National Credit
Union Administration.
(h) Nondiscriminatory means that the
plan, contract or arrangement applies
to all employees of a Federally insured
credit union who meet reasonable and
customary eligibility requirements applicable to all employees, such as minimum length of service requirements.
A nondiscriminatory plan, contract or
arrangement may provide different
benefits based only on objective criteria, such as salary, total compensation, length of service, job grade or
classification, applied on a proportionate basis (with a variance in severance benefits relating to any criterion
of plus or minus ten percent) to groups
of employees consisting of not less
than 33% of all employees.
(i) Payment means:
(1) Any direct or indirect transfer of
any funds or any asset;
(2) Any forgiveness of any debt or
other obligation;
(3) The conferring of any benefit; or
(4) Any segregation of any funds or
assets, the establishment or funding of
any trust or the purchase of or arrangement for any letter of credit or
other instrument, for the purpose of
making, or pursuant to any agreement
to make, any payment on or after the
date on which the funds or assets are

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National Credit Union Administration

§ 750.4

segregated, or at the time of or after
such trust is established or letter of
credit or other instrument is made
available, without regard to whether
the obligation to make such payment
is contingent on:
(i) The determination, after such
date, of the liability for the payment of
such amount; or
(ii) The liquidation, after such date,
of the amount of such payment.
(j) Prohibited indemnification payment.
(1) Prohibited indemnification payment
means any payment or any agreement
or arrangement to make any payment
by any Federally insured credit union
for the benefit of any person who is or
was an IAP of the Federally insured
credit union, to pay or reimburse such
person for any civil money penalty,
judgment, or other liability or legal expense resulting from any administrative or civil action instituted by NCUA
or any appropriate state regulatory authority, in the case of a credit union or
corporate credit union chartered by a
state, that results in a final order or
settlement pursuant to which such person:
(i) Is assessed a civil money penalty;
(ii) Is removed from office or prohibited from participating in the conduct
of the affairs of the Federally insured
credit union; or
(iii) Is required to cease and desist
from an action or take any affirmative
action described in section 206 of the
Act (12 U.S.C.1786) with respect to the
credit union.
(2) Exceptions. Prohibited indemnification payment does not include any reasonable payment that:
(i) Is used to purchase a commercial
insurance policy or fidelity bond, provided that the insurance policy or bond
must not be used to pay or reimburse
an IAP for the cost of any judgment or
civil money penalty assessed against
the IAP in an administrative proceeding or civil action commenced by
NCUA or the appropriate state supervisory authority, in the case of a credit
union or corporate credit union chartered by a state, but may pay any legal
or professional expenses incurred in
connection with a proceeding or action
or the amount of any restitution, to
the Federally insured credit union or
its conservator or liquidating agent; or

(ii) Represents partial indemnification for legal or professional expenses
specifically attributable to particular
charges for which there has been a formal and final adjudication or finding in
connection with a settlement that the
IAP has not violated certain laws or
regulations or has not engaged in certain unsafe or unsound practices or
breaches of fiduciary duty, unless the
administrative action or civil proceeding has resulted in a final prohibition order against the IAP.
[76 FR 30517, May 26, 2011, as amended at 76
FR 36980, June 24, 2011; 78 FR 4029, Jan. 18,
2013; 78 FR 32545, May 31, 2013; 79 FR 12658,
Mar. 6, 2014]

§ 750.2 Golden
prohibited.

parachute

A Federally insured credit union
must not make or agree to make any
golden parachute payment, except as
permitted by this part.
§ 750.3 Prohibited
payments.

indemnification

A Federally insured credit union
must not make or agree to make any
prohibited indemnification payment,
except as permitted by this chapter.1
§ 750.4 Permissible golden parachute
payments.
(a) A Federally insured credit union
may agree to make or may make a
golden parachute payment if:
(1) NCUA, with written concurrence
of the appropriate state supervisory
authority in the case of a state chartered credit union or corporate credit
union, determines the payment or
agreement is permissible; or
(2) An agreement is made in order to
hire a person to become an IAP at a
time when the Federally insured credit
union satisfies or in an effort to prevent it from imminently satisfying any
of the criteria in § 750.1(d)(1)(ii), and
NCUA, with written concurrence of the
appropriate state supervisory authority in the case of a state chartered
credit union or corporate credit union,
consents in writing to the amount and
1 The provisions in this part 750 control to
the extent of any inconsistency with § 701.33
of this chapter.

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§ 750.5

12 CFR Ch. VII (1–1–18 Edition)

terms of the golden parachute payment. NCUA’s consent will not improve
the IAP’s position in the event of the
insolvency of the credit union since
NCUA’s consent cannot bind a liquidating agent or affect the provability
of claims in liquidation. In the event
the credit union is placed into conservatorship or liquidation, the conservator or the liquidating agent will not
be obligated to pay the promised golden parachute and the IAP will not be
accorded preferential treatment on the
basis of any prior approval; or
(3) A payment is made pursuant to an
agreement that provides for a reasonable severance payment, not to exceed
twelve months’ salary, to an IAP in the
event of a merger of the Federally insured credit union; provided, however,
that a Federally insured credit union
must obtain the consent of NCUA before making a payment and this paragraph (a)(3) does not apply to any
merger of a Federally insured credit
union resulting from an assisted transaction described in section 208 of the
Act, 12 U.S.C. 1788, or the Federally insured credit union being placed into
conservatorship or liquidation; and
(4) A Federally insured credit union
or IAP making a request pursuant to
paragraphs (a)(1) through (3) of this
section must demonstrate it does not
possess and is not aware of any information, evidence, documents or other
materials indicating there is a reasonable basis to believe, at the time the
payment is proposed to be made, that:
(i) The IAP has committed any fraudulent act or omission, breach of trust
or fiduciary duty, or insider abuse with
regard to the Federally insured credit
union that has had or is likely to have
a material adverse effect on the Federally insured credit union;
(ii) The IAP is substantially responsible for the insolvency of, the appointment of a conservator liquidating
agent for, or the troubled condition, as
defined by § 700.2 of this chapter, of the
Federally insured credit union;
(iii) The IAP has materially violated
any applicable Federal or state law or
regulation that has had or is likely to
have a material effect on the Federally
insured credit union; or
(iv) The IAP has violated or conspired to violate sections 215, 656, 657,

1005, 1006, 1007, 1014, 1032, or 1344 of title
18 of the United States Code, or sections 1341 or 1343 of that title affecting
a Federally insured financial institution, as defined in title 18 of the United
States Code.
(b) In making a determination under
paragraphs (a)(1) through (3) of this
section, NCUA may consider:
(1) Whether, and to what degree, the
IAP was in a position of managerial or
fiduciary responsibility;
(2) The length of time the IAP was affiliated with the Federally insured
credit union and the degree to which
the proposed payment represents a reasonable payment for services rendered
over the period of employment; and
(3) Any other factors or circumstances indicating the proposed
payment would be contrary to the intent of section 206(t) of the Act or this
part.
[76 FR 30517, May 26, 2011; 79 FR 12658, Mar.
6, 2014]

§ 750.5 Permissible
indemnification
payments.
(a) A Federally insured credit union
may make or agree to make reasonable
indemnification payments to an IAP,
including advanced funds to pay or reimburse reasonable legal fees or other
professional expenses incurred by an
IAP in an administrative proceeding or
civil action initiated by NCUA or a
state regulatory authority if:
(1) The Federally insured credit
union’s board of directors, in good
faith, determines in writing after due
investigation and consideration that:
(i) The IAP acted in good faith and in
a manner he or she believed to be consistent with his or her fiduciary duty;
(ii) The advancement or payment of
the expenses will not materially adversely affect the credit union’s safety
and soundness; and
(iii) The IAP has the financial capability or has otherwise made appropriate financial arrangements sufficient to repay the advance if required
in accordance with this rule; and
(2) The IAP provides:
(i) A written affirmation of his or her
reasonable good faith belief that he or
she acted in a manner believed to be
consistent with his or her fiduciary
duty; and

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National Credit Union Administration

§ 750.7

(ii) An agreement in writing to reimburse the Federally insured credit
union, to the extent not covered by
payments from insurance or bonds purchased pursuant to § 750.1(j)(2)(i), for
that portion of any advanced indemnification payments which ultimately
become
prohibited
indemnification
payments as defined in § 750.1(j); and
(3) The indemnification payments do
not ultimately constitute prohibited
indemnification payments as defined
in§ 750.1(j).
(b) An IAP seeking indemnification
payments must not participate in any
way in the board of director’s discussion and approval of such payments;
however, the IAP may present his or
her request to the board and respond to
any inquiries from the board concerning his or her involvement in the
circumstances giving rise to the administrative proceeding or civil action.
(c) In the event a majority of the
members of the board of directors are
named as respondents in an administrative proceeding or civil action and
request indemnification, the remaining
members of the board may authorize
independent legal counsel to review the
indemnification request and provide
the remaining members of the board
with a written opinion of counsel as to
whether the conditions in paragraph
(a)(1) through (3) of this section have
been met. If independent legal counsel
concludes that the conditions have
been met, the remaining members of
the board of directors may rely on the
opinion in authorizing the requested
indemnification.
(d) In the event all of the members of
the board of directors are named as respondents in an administrative proceeding or civil action and request indemnification, the board will authorize
independent legal counsel to review the
indemnification request and provide
the board with a written opinion of
counsel as to whether the conditions in
paragraph (a)(1) through (3) of this section have been met. If independent
legal counsel concludes the conditions
have been met, the board of directors
may rely on the opinion in authorizing
the requested indemnification.
[76 FR 30517, May 26, 2011; 79 FR 12658, Mar.
6, 2014]

§ 750.6 Filing instructions; appeal.
(a) Requests to make excess nondiscriminatory severance plan payments pursuant to§ 750.1(d)(2)(v) and
golden parachute payments permitted
by § 750.4 must be submitted in writing
to NCUA. In the case of a Federal or
state chartered natural person credit
union, such written requests must be
submitted to the NCUA regional director for the region in which the credit
union is located. In the case of a Federal or state chartered corporate credit
union, such written requests must be
submitted to the Director of the Office
of National Examinations and Supervision. The request must be in letter
form and must contain all relevant factual information as well as the reasons
why such approval should be granted.
If written concurrence by the state supervisory authority is required, the requesting party must submit a copy of
its written request to the state supervisory authority where the credit
union is located.
(b) A FICU whose request for approval by NCUA, in accordance with
paragraph (a) of this section, has been
denied may seek reconsideration of the
request and/or file an appeal with the
NCUA Board in accordance with the
procedures set forth in subpart B to
part 746 of this chapter.
[76 FR 30517, May 26, 2011, as amended at 78
FR 32545, May 31, 2013; 79 FR 12658, Mar. 6,
2014; 82 FR 50297, Oct. 30, 2017]

§ 750.7 Applicability in the event of liquidation or conservatorship.
The provisions of this part, or any
consent or approval granted under the
provisions of this part by NCUA, will
not in any way bind any liquidating
agent or conservator for a failed Federally insured credit union and will not
in any way obligate the liquidating
agent or conservator to pay any claim
or obligation pursuant to any golden
parachute, severance, indemnification
or other agreement. Claims for employee welfare benefits or other benefits that are contingent, even if otherwise vested, when a liquidating agent
or conservator is appointed for any
Federally insured credit union, including any contingency for termination of
employment, are not provable claims
or actual, direct compensatory damage

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Pt. 760

12 CFR Ch. VII (1–1–18 Edition)

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claims against such liquidating agent
or conservator. Nothing in this part
may be construed to permit the payment of salary or any liability or legal
expense of any IAP contrary to 12
U.S.C. 1786(t)(3).

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