Sec. 223.2 What is an “affiliate” for purposes of sections 23A and 23B and this regulation?
(a) For purposes of this part and except as provided in paragraphs (b) and (c) of this section, “affiliate” with respect to a member bank means:
(1) Parent companies. Any company that controls the member bank;
(2) Companies under common control by a parent company. Any company, including
any subsidiary of the member bank, that is controlled by a company that controls the member
bank;
(3) Companies under other common control. Any company, including any subsidiary
of the member bank, that is controlled, directly or indirectly, by trust or otherwise, by or for
the benefit of shareholders who beneficially or otherwise control, directly or indirectly, by trust
or otherwise, the member bank or any company that controls the member bank;
(4) Companies with interlocking directorates. Any company in which a majority of its
directors, trustees, or general partners (or individuals exercising similar functions) constitute a majority of the persons holding any such office with the member bank or any company that
controls the member bank;
(5) Sponsored and advised companies. Any company, including a real estate
investment trust, that is sponsored and advised on a contractual basis by the member bank or
an affiliate of the member bank;
(6) Investment companies.
(i) Any investment company for which the member bank or any affiliate of the member
bank serves as an investment adviser, as defined in section 2(a)(20) of the Investment
Company Act of 1940 (15 U.S.C. 80a-2(a)(20)); and
(ii) Any other investment fund for which the member bank or any affiliate of the
member bank serves as an investment advisor, if the member bank and its affiliates own or
control in the aggregate more than 5 percent of any class of voting securities or of the equity
capital of the fund;
(7) Depository institution subsidiaries. A depository institution that is a subsidiary of
the member bank;
(8) Financial subsidiaries. A financial subsidiary of the member bank;
(9) Companies held under merchant banking or insurance company investment
authority.
(i) In general. Any company in which a holding company of the member bank owns or
controls, directly or indirectly, or acting through one or more other persons, 15 percent or more
of the equity capital pursuant to section 4(k)(4)(H) or (I) of the Bank Holding Company Act
(12 U.S.C. 1843(k)(4)(H) or (I)).
(ii) General exemption. A company will not be an affiliate under paragraph (a)(9)(i) of
this section if the holding company presents information to the Board that demonstrates, to the
Board’s satisfaction, that the holding company does not control the company.
(iii) Specific exemptions. A company also will not be an affiliate under
paragraph (a)(9)(i) of this section if:
(A) No director, officer, or employee of the holding company serves as a director,
trustee, or general partner (or individual exercising similar functions) of the company;
(B) A person that is not affiliated or associated with the holding company owns or
controls a greater percentage of the equity capital of the company than is owned or controlled
by the holding company, and no more than one officer or employee of the holding company
serves as a director or trustee (or individual exercising similar functions) of the company; or
(C) A person that is not affiliated or associated with the holding company owns or
controls more than 50 percent of the voting shares of the company, and officers and employees
of the holding company do not constitute a majority of the directors or trustees (or individuals
exercising similar functions) of the company.
(iv) Application of rule to private equity funds. A holding company will not be deemed
to own or control the equity capital of a company for purposes of paragraph (a)(9)(i) of this
section solely by virtue of an investment made by the holding company in a private equity fund
(as defined in the merchant banking subpart of the Board’s Regulation Y (12 CFR 225.173(a)))
that owns or controls the equity capital of the company unless the holding company controls
the private equity fund under 12 CFR 225.173(d)(4).
(v) Definition. For purposes of this paragraph (a)(9), “holding company” with respect
to a member bank means a company that controls the member bank, or a company that is
controlled by shareholders that control the member bank, and all subsidiaries of the company
(including any depository institution that is a subsidiary of the company).
(10) Partnerships associated with the member bank or an affiliate. Any partnership for
which the member bank or any affiliate of the member bank serves as a general partner or for
which the member bank or any affiliate of the member bank causes any director, officer, or
employee of the member bank or affiliate to serve as a general partner;
(11) Subsidiaries of affiliates. Any subsidiary of a company described in
paragraphs (a)(1) through (10) of this section; and
(12) Other companies. Any company that the Board determines by regulation or order,
or that the appropriate Federal banking agency for the member bank determines by order, to
have a relationship with the member bank, or any affiliate of the member bank, such that
covered transactions by the member bank with that company may be affected by the
relationship to the detriment of the member bank.
(b) “Affiliate” with respect to a member bank does not include:
(1) Subsidiaries. Any company that is a subsidiary of the member bank, unless the
company is:
(i) A depository institution;
(ii) A financial subsidiary;
(iii) Directly controlled by:
(A) One or more affiliates (other than depository institution affiliates) of the member
bank; or
(B) A shareholder that controls the member bank or a group of shareholders that
together control the member bank;
(iv) An employee stock option plan, trust, or similar organization that exists for the
benefit of the shareholders, partners, members, or employees of the member bank or any of its
affiliates; or
(v) Any other company determined to be an affiliate under paragraph (a)(12) of this
section;
(2) Bank premises. Any company engaged solely in holding the premises of the
member bank;
(3) Safe deposit. Any company engaged solely in conducting a safe deposit business;
(4) Government securities. Any company engaged solely in holding obligations of the
United States or its agencies or obligations fully guaranteed by the United States or its
agencies as to principal and interest; and
(5) Companies held DPC. Any company where control results from the exercise of
rights arising out of a bona fide debt previously contracted. This exclusion from the definition
of “affiliate” applies only for the period of time specifically authorized under applicable State
or Federal law or regulation or, in the absence of such law or regulation, for a period of two
years from the date of the exercise of such rights. The Board may authorize, upon application
and for good cause shown, extensions of time for not more than one year at a time, but such
extensions in the aggregate will not exceed three years.
(c) For purposes of subpart F (implementing section 23B), “affiliate” with respect to a
member bank also does not include any depository institution.
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