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(ii) Extensions of credit and other transactions with the subsidiary are conducted in compliance with the rules for covered transactions with affiliates set forth in sections 23A and 23B of the Federal Reserve Act, as applied to thrifts; and

(iii) Any contracts entered into by the subsidiary include a written disclosure indicating that the subsidiary is not a bank or savings association; the subsidiary is an organization separate and apart from any bank or savings association; and the obligations of the subsidiary are not backed or guaranteed by any bank or savings association and are not insured by the FDIC. [59 FR 4788, Feb. 2, 1994, as amended at 60 FR 39232, Aug. 1, 1995; 62 FR 66264, Dec. 18, 1997; 63 FR 42678, Aug. 10, 1998; 66 FR 59666, Nov. 29, 2001]

§ 567.13 Obligations of acquirors of savings associations to maintain capital.

(a) Definitions. As used in this section, the following definitions apply, unless the context otherwise requires:

(1) Acquiror means a person or company that controls a savings association.

(2) Control means control as determined under §574.4(a) or (b) of this chapter.

(3) Capital means the measure of capital used in the applicable capital maintenance obligation.

(4) Capital maintenance obligation means an obligation to maintain the capital of a savings association imposed by means of a resolution issued or condition imposed by the Federal Savings and Loan Insurance Corporation ("FSLIC"), the Federal Home Loan Bank Board ("Board"), the Office, or any of their delegates, a stipulation to the FSLIC, the Board, the Office, or any of their delegates, or an agreement between the acquiror and the FSLIC, the Board, the Office, or any of their delegates.

(5) Deficiency means the amount by which the level at which the acquiror is required to maintain the association's capital pursuant to a capital maintenance obligation exceeds the savings association's capital.

(6) Divestiture or divest means any action or conduct that would result in

the acquiror no longer being in control of the savings association.

(7) Savings association means a Federal savings and loan association or a Federal savings bank chartered under section 5 of the Home Owners' Loan Act, a building and loan, savings and loan or homestead association or a cooperative bank (other than a cooperative bank described in 12 U.S.C. 1813(a)(2)) the deposits of which are insured by the Federal Deposit Insurance Corporation, and any corporation (other than a bank) the deposits of which are insured by the Federal Deposit Insurance Corporation that the Office and the Federal Deposit Insurance Corporation jointly determine to be operating in substantially the same manner as a savings association, and shall include any savings bank or cooperative bank which is deemed by the Office to be a savings association under 12 U.S.C. 1467a(1).

(8) Savings and loan holding company means a savings and loan holding company as defined in §574.2(q) of this chapter.

(b) Notice. Prior to divestiture of a savings association, an acquiror that is subject to a capital maintenance obligation shall provide written notice of such divestiture to the Office on Form DV, including the certifications required therein. If the acquiror is unable to provide such certifications, the acquiror may submit alternative certifications addressing the subjects of each certification, in a form acceptable to the Office.

(c) Determination of deficiency. Upon receipt of the notice required under paragraph (b) of this section, the Office will conduct a full or limited scope examination of the savings association, as deemed appropriate, to ascertain whether a deficiency exists as of the date of the examination. If such examination is not completed within 90 days of the notice required under paragraph (b) of this section, or the Office has not communicated the results of the examination to the acquiror within such period, the deficiency, if any, shall be calculated based on the savings association's most recent Thrift Financial Report, filed prior to the notice of divestiture, provided, however, that if the failure to complete an examination

within 90 days is caused by any failure of the association or the acquiror to cooperate, the 90 day period may be extended by the Director of the Office for additional periods, including such time as may be needed to base a deficiency on the results of a completed examination. Notwithstanding any other provision of this section, if the Office determines that fraud or misrepresentation occurred during the course of an examination conducted to determine the association's capital, compliance with the procedures set forth in this section shall not be deemed to have extinguished an acquiror's capital maintenance obligation and the Office will seek appropriate enforcement remedies.

(d) Divestiture. (1) In the event that the examination conducted under paragraph (c) of this section indicates that no deficiency exists, the acquiror may divest control of the savings association to which the capital maintenance obligation relates upon receiving written notice of the results of the examination. Where the examination was not completed or the results not communicated to the acquiror in a timely manner, and the savings association's most recent Thrift Financial Report filed before the filing of the notice of divestiture indicates no deficiency existed at that time, the acquiror may divest control of the savings association to which the capital maintenance obligation relates 91 days after the receipt of the notice by the Office, or such longer period as established under paragraph (c) of this section.

(2) In the event that a deficiency exists, the acquiror may not divest control of the savings association to which the capital maintenance obligation relates unless:

(i) The acquiror provides the office with an agreement to infuse into the savings association the amount necessary to remedy the deficiency and make arrangements, satisfactory to the Office, to assure payment of the deficiency; or

(ii) The deficiency is satisfied.

(3) An acquiror may divest control of a savings association to which a capital maintenance obligation relates prior to the completion of the examination conducted under paragraph (c)

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§ 568.1 Authority, purpose, and scope.

(a) This part is issued by the Office of Thrift Supervision (OTS) pursuant to section 3 of the Bank Protection Act of 1968 (12 U.S.C. 1882), and sections 501 and 505(b)(1) of the Gramm-Leach-Bliley Act (12 U.S.C. 6801, 6805(b)(1)). This part is applicable to savings associations. It requires each savings association to adopt appropriate security procedures to discourage robberies, burglaries, and larcenies and to assist in the identification and prosecution of persons who commit such acts. Section 568.5 of this part is applicable to savings associations and their subsidiaries (except brokers, dealers, persons providing insurance, investment companies, and investment advisers). Section 568.5 of this part requires covered institutions to establish and implement appropriate administrative, technical, and physical safeguards to protect the

security, confidentiality, and integrity of customer information.

(b) It is the responsibility of an association's board of directors to comply with this regulation and ensure that a written security program for the association's main office and branches is developed and implemented.

[56 FR 29566, June 28, 1991, as amended at 66 FR 8639, Feb. 1, 2001]

§ 568.2 Designation of security officer.

Within 30 days after the effective date of insurance of accounts, the board of directors of each savings association shall designate a security officer who shall have the authority, subject to the approval of the board of directors, to develop, within a reasonable time but no later than 180 days, and to administer a written security program for each of the association's offices.

§ 568.3 Security program.

(a) Contents of security program. The security program shall:

(1) Establish procedures for opening and closing for business and for the safekeeping of all currency, negotiable securities, and similar valuables at all times;

(2) Establish procedures that will assist in identifying persons committing crimes against the association and that will preserve evidence that may aid in their identification and prosecution. Such procedures may include, but are not limited to:

(i) Maintaining a camera that records activity in the office;

(ii) Using identification devices, such as prerecorded serial-numbered bills, or chemical and electronic devices; and

(iii) Retaining a record of any robbery, burglary, or larceny committed against the association;

(3) Provide for initial and periodic training of officers and employees in their responsibilities under the security program and in proper employee conduct during and after a burglary, robbery, or larceny; and

(4) Provide for selecting, testing, operating and maintaining appropriate security devices, as specified in paragraph (b) of this section.

(b) Security devices. Each savings association shall have, at a minimum, the following security devices:

(1) A means of protecting cash and other liquid assets, such as a vault, safe, or other secure space;

(2) A lighting system for illuminating, during the hours of darkness, the area around the vault, if the vault is visible from outside the office;

(3) Tamper-resistent locks on exterior doors and exterior windows that may be opened;

(4) An alarm system or other appropriate device for promptly notifying the nearest responsible law enforcement officers of an attempted or perpetrated robbery or burglary; and

(5) Such other devices as the security officer determines to be appropriate, taking into consideration:

(i) The incidence of crimes against financial institutions in the area;

(ii) The amount of currency and other valuables exposed to robbery, burglary, or larceny;

(iii) The distance of the office from the nearest responsible law enforcement officers;

(iv) The cost of the security devices; (v) Other security measures in effect at the office; and

(vi) The physical characteristics of the structure of the office and its surroundings.

§ 568.4 Report.

The security officer for each savings association shall report at least annually to the association's board of directors on the implementation, administration, and effectiveness of the security program.

568.5 Protection of customer information.

Savings associations and their subsidiaries (except brokers, dealers, persons providing insurance, investment companies, and investment advisers) must comply with the Interagency Guidelines Establishing Standards for Safeguarding Customer Information prescribed pursuant to sections 501 and 505 of the Gramm-Leach-Bliley Act (15 U.S.C. 6801 and 6805), set forth in appendix B to part 570 of this chapter.

[66 FR 8639, Feb. 1, 2001]

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§ 569.1

Definitions.

As used in this part:

(a) Security holder. The term security holder means any person having the right to vote in the affairs of a savings association by virtue of:

(1) Ownership of any security of the association or

(2) Any indebtedness to the association.

For purposes of this part, the term security holder shall include any account holder having the right to vote in the affairs of a mutual savings association.

(b) Person. The term person includes, in addition to natural persons, corporations, partnerships, pension funds, profit-sharing funds, trusts, and any other group of associated persons of whatever nature.

(c) Proxy. The term proxy includes every form of authorization by which a person is, or may be deemed to be, designated to act for the security holder in the exercise of his or her voting rights in the affairs of a savings association. Such an authorization may take the form of failure to dissent or object.

(d) Solicit; solicitation. The terms solicit and solicitation refer to:

(1) Any request for a proxy whether or not accompanied by or included in a form of proxy;

(2) Any request to execute, not execute, or revoke a proxy; or

(3) The furnishing of a form of proxy or other communication to security holders under circumstances reasonably calculated to result in the procurement, withholding, or revocation of a proxy.

The terms do not apply, however, to the furnishing of a form of proxy to a security holder upon the request of

such security holder or to the performance by any person of ministerial acts on behalf of a person soliciting a proxy. § 569.2 Form of proxies.

Every form of proxy shall conform to the following requirements:

(a) The proxy shall be revocable at will by the person giving it. The power to revoke may not be conditioned on any event or occurrence or be otherwise limited; except that, in the case of a proxy relating to capital stock if such proxy is coupled with an interest, states such fact on its face, and is valid under the laws of the State in which it is to be exercised, such proxy may be made irrevocable to the extent permitted by such State law.

(b) The proxy may not be part of any other document or instrument (such as an account card).

(c) The proxy shall be clearly labeled "Revocable Proxy" in boldface type (at least as large as 18 point).

§ 569.3 Holders of proxies.

No proxy of a mutual savings association with a term greater than eleven months or solicited at the expense of the association may designate as holder anyone other than the board of directors [trustees] as a whole, or a committee appointed by a majority of such board.

§ 569.4 Proxy soliciting material.

No solicitation of a proxy shall be made by means of any statement, form of proxy, notice of meeting, or other communication, written or oral, which: (a) Solicits any undated or postdated proxy;

(b) Solicits any proxy that provides that it shall be deemed to be dated as of any date subsequent to the date on which it is signed by the security holder; or

(c)(1) Contains any statement that is false or misleading with respect to any material fact, or

(2) Omits to state any material fact: (i) Necessary in order to make the statements therein not false or misleading or

(ii) Necessary to correct any statement in any earlier communication with respect to the solicitation of a proxy for the same meeting or subject

matter that has subsequently become false or misleading.

PART 570-SAFETY AND SOUNDNESS GUIDELINES AND COMPLIANCE PROCEDURES

Sec.

570.1 Authority, purpose, scope and preservation of existing authority.

570.2 Determination and notification of failure to meet safety and soundness standards and request for compliance plan. 570.3 Filing of safety and soundness compliance plan.

570.4 Issuance of orders to correct deficiencies and to take or refrain from taking other actions.

570.5 Enforcement of orders.

APPENDIX A ΤΟ PART 570 INTERAGENCY STANDARDS

GUIDELINES ESTABLISHING FOR SAFETY AND SOUNDNESS APPENDIX B ΤΟ PART 570 INTERAGENCY GUIDELINES ESTABLISHING YEAR 2000 STANDARDS FOR SAFETY AND SOUNDNESS AUTHORITY: 12 U.S.C. 1831p-1.

SOURCE: 60 FR 35686, July 10, 1995, unless otherwise noted.

§ 570.1 Authority, purpose, scope and preservation of existing authority.

(a) Authority. This part and the Guidelines in Appendices A and B to this part are issued by the OTS under section 39 (section 39) of the Federal Deposit Insurance Act (FDI Act) (12 U.S.C. 1831p-1) as added by section 132 of the Federal Deposit Insurance Corporation Improvement Act of 1991 (FDICIA) (Pub. L. 102-242, 105 Stat. 2236 (1991)), and as amended by section 956 of the Housing and Community Development Act of 1992 (Pub. L. 102-550, 106 Stat. 3895 (1992)), and as amended by section 318 of the Community Development Banking Act of 1994 (Pub. L. 103325, 108 Stat. 2160 (1994)). Appendix B to this part is further issued under sections 501(b) and 505 of the GrammLeach-Bliley Act (Pub. L. 106-102, 113 Stat. 1338 (1999)).

(b) Purpose. Section 39 of the FDI Act requires the OTS to establish safety and soundness standards. Pursuant to section 39, a savings association may be required to submit a compliance plan if it is not in compliance with a safety and soundness standard established by guideline under section 39 (a) or (b). An enforceable order under sec

tion 8 of the FDI Act may be issued if, after being notified that it is in violation of a safety and soundness standard prescribed under section 39, the savings association fails to submit an acceptable compliance plan or fails in any material respect to implement an accepted plan. This part establishes procedures for submission and review of safety and soundness compliance plans and for issuance and review of orders pursuant to section 39. Interagency Guidelines Establishing Standards for Safety and Soundness pursuant to section 39 of the FDI Act are set forth in Appendix A to this part. Interagency Guidelines Establishing Standards for Safeguarding Customer Information are set forth in appendix B to this part. (c) Scope. This part and the Interagency Guidelines Establishing Safety and Soundness Standards as set forth at appendix A to this part and the Interagency Guidelines Establishing Year 2000 Standards for Safety and Soundness as set forth at appendix B to this part implement the provisions of section 39 of the FDI Act as they apply to savings associations.

(d) Preservation of existing authority. Neither section 39 of the FDI Act nor this part in any way limits the authority of the OTS under any other provision of law to take supervisory actions to address unsafe or unsound practices, violations of law, unsafe or unsound conditions, or other practices. Action under section 39 and this part may be taken independently of, in conjunction with, or in addition to any other enforcement action available to the OTS. [60 FR 35686, July 10, 1995, as amended at 63 FR 55488, Oct. 15, 1998; 64 FR 66708, Nov. 29, 1999; 66 FR 8639, Feb. 1, 2001]

§ 570.2 Determination and notification of failure to meet safety and soundness standards and request for compliance plan.

(a) Determination. OTS may, based upon an examination, inspection, or any other information that becomes available to OTS, determine that a savings association has failed to satisfy the safety and soundness standards contained in the Interagency Guidelines Establishing Standards for Safety and Soundness as set forth in appendix A to this part or the Interagency

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