Securities Lawyer's Deskbook                          published by The University of Cincinnati College of Law

Rule 13k-1 -- Foreign Bank Exemption from the Insider Lending Prohibition under Section 13(k)

---

1. For the purpose of this Rule:
   
1. Foreign bank means an institution:
   
1. The home jurisdiction of which is other than the United States;
   
2. That is regulated as a bank in its home jurisdiction; and
   
3. That engages directly in the business of banking.
   
2. Home jurisdiction means the country, political subdivision or other place in which a foreign bank is incorporated or organized.
   
3. Engages directly in the business of banking means that an institution engages directly in banking activities that are usual for the business of banking in its home jurisdiction.
   
4. Affiliate, parent and subsidiary have the same meaning as under Rule 12b-2.
   
2. An issuer that is a foreign bank or the parent or other affiliate of a foreign bank is exempt from the prohibition of extending, maintaining, arranging for, or renewing credit in the form of a personal loan to or for any of its directors or executive officers under section 13(k) of the Act with respect to any such loan made by the foreign bank as long as:
   
1. Either:
   
1. The laws or regulations of the foreign bank's home jurisdiction require the bank to insure its deposits or be subject to a deposit guarantee or protection scheme; or
   
2. The Board of Governors of the Federal Reserve System has determined that the foreign bank or another bank organized in the foreign bank's home jurisdiction is subject to comprehensive supervision or regulation on a consolidated basis by the bank supervisor in its home jurisdiction under 12 CFR 211.24(c); and
   
2. The loan by the foreign bank to any of its directors or executive officers or those of its parent or other affiliate:
   
1. Is on substantially the same terms as those prevailing at the time for comparable transactions by the foreign bank with other persons who are not executive officers, directors or employees of the foreign bank, its parent or other affiliate; or
   
2. Is pursuant to a benefit or compensation program that is widely available to the employees of the foreign bank, its parent or other affiliate and does not give preference to any of the executive officers or directors of the foreign bank, its parent or other affiliate over any other employees of the foreign bank, its parent or other affiliate; or
   
3. Has received express approval by the bank supervisor in the foreign bank's home jurisdiction.
   

Notes to paragraph (b):

1. The exemption provided in paragraph (b) of this Rule applies to a loan by the subsidiary of a foreign bank to a director or executive officer of the foreign bank, its parent or other affiliate as long as the subsidiary is under the supervision or regulation of the bank supervisor in the foreign bank's home jurisdiction, the subsidiary's loan meets the requirements of paragraph (b)(2) of this Rule, and the foreign bank meets the requirements of paragraph (b)(1) of this Rule.
   
2. For the purpose of paragraph (b)(1)(ii) of this Rule, a foreign bank may rely on a determination by the Board of Governors of the Federal Reserve System that another bank in the foreign bank's home jurisdiction is subject to comprehensive supervision or regulation on a consolidated basis by the bank supervisor under 12 CFR 211.24(c) as long as the foreign bank is under substantially the same banking supervision or regulation as the other bank in their home jurisdiction.
   

3. As used in paragraph (1) of section 13(k) of the Act , issuer does not include a foreign government, as defined under Rule 405, that files a registration statement under the Securities Act of 1933 on Schedule B.

	Notice to Users: The Deskbook is made available with the understanding that the University of Cincinnati College of Law is not engaged in rendering legal, accounting or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. See Terms and Conditions of Use.   © Copyright 1998-2008, University of Cincinnati, All Rights Reserved  Contact: joseph.hodnicki@uc.edu