Sec. 223.31 How does section 23A apply to a member bank’s acquisition of an affiliate that becomes an operating subsidiary of the member bank after the acquisition?
(a) Certain acquisitions by a member bank of securities issued by an affiliate are treated
as a purchase of assets from an affiliate. A member bank’s acquisition of a security issued by a
company that was an affiliate of the member bank before the acquisition is treated as a
purchase of assets from an affiliate, if:
(1) As a result of the transaction, the company becomes an operating subsidiary of the
member bank; and
(2) The company has liabilities, or the member bank gives cash or any other
consideration in exchange for the security.
(b) Valuation. (1) Initial valuation. A transaction described in paragraph (a) of this
section must be valued initially at the greater of:
(i) The sum of:
(A) The total amount of consideration given by the member bank in exchange for the
security; and
(B) The total liabilities of the company whose security has been acquired by the
member bank, as of the time of the acquisition; or
(ii) The total value of all covered transactions (as computed under this part) acquired by
the member bank as a result of the security acquisition.
(2) Ongoing valuation. The value of a transaction described in paragraph (a) of this
section may be reduced after the initial transfer to reflect:
(i) Amortization or depreciation of the assets of the transferred company, to the extent
that such reductions are consistent with GAAP; and
(ii) Sales of the assets of the transferred company.
(c) Valuation example. The parent holding company of a member bank contributes
between 25 and 100 percent of the voting shares of a mortgage company to the member bank.
The parent holding company retains no shares of the mortgage company. The member bank
gives no consideration in exchange for the transferred shares. The mortgage company has total
assets of $300,000 and total liabilities of $100,000. The mortgage company’s assets do not
include any loans to an affiliate of the member bank or any other asset that would represent a
separate covered transaction for the member bank upon consummation of the share transfer.
As a result of the transaction, the mortgage company becomes an operating subsidiary of the
member bank. The transaction is treated as a purchase of the assets of the mortgage company
by the member bank from an affiliate under paragraph (a) of this section. The member bank
initially must value the transaction at $100,000, the total amount of the liabilities of the
mortgage company. Going forward, if the member bank pays off the liabilities, the member
bank must continue to value the covered transaction at $100,000. If the member bank,
however, sells $15,000 of the transferred assets of the mortgage company or if $15,000 of the
transferred assets amortize, the member bank may value the covered transaction at $85,000.
(d) Exemption for step transactions. A transaction described in paragraph (a) of this
section is exempt from the requirements of this regulation (other than the safety and soundness
requirement of § 223.13 and the market terms requirement of § 223.51) if:
(1) The member bank acquires the securities issued by the transferred company within
one business day (or such longer period, up to three months, as may be permitted by the
member bank’s appropriate Federal banking agency) after the company becomes an affiliate of
the member bank;
(2) The member bank acquires all the securities of the transferred company that were
transferred in connection with the transaction that made the company an affiliate of the
member bank;
(3) The business and financial condition (including the asset quality and liabilities) of
the transferred company does not materially change from the time the company becomes an
affiliate of the member bank and the time the member bank acquires the securities issued by
the company; and
(4) At or before the time that the transferred company becomes an affiliate of the
member bank, the member bank notifies its appropriate Federal banking agency and the Board
of the member bank’s intent to acquire the company.
(e) Example of step transaction. A bank holding company acquires 100 percent of the
shares of an unaffiliated leasing company. At that time, the subsidiary member bank of the
holding company notifies its appropriate Federal banking agency and the Board of its intent to
acquire the leasing company from its holding company. On the day after consummation of the
acquisition, the holding company transfers all of the shares of the leasing company to the
member bank. No material change in the business or financial condition of the leasing
company occurs between the time of the holding company’s acquisition and the member
bank’s acquisition. The leasing company has liabilities. The leasing company becomes an
operating subsidiary of the member bank at the time of the transfer. This transfer by the
holding company to the member bank, although deemed an asset purchase by the member bank from an affiliate under paragraph (a) of this section, would qualify for the exemption in
paragraph (d) of this section.
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