[Federal Register Volume 59, Number 112 (Monday, June 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14006]


[[Page Unknown]]

[Federal Register: June 13, 1994]


=======================================================================
-----------------------------------------------------------------------

FEDERAL DEPOSIT INSURANCE CORPORATION

 

Mutual-to-Stock Conversions of State Nonmember Savings Banks

AGENCY: Federal Deposit Insurance Corporation (FDIC).

ACTION: Notice; request for comments.

-----------------------------------------------------------------------

SUMMARY: As previously indicated in Congressional testimony and in 
public statements, the FDIC has been at work on a fundamental review of 
the process by which mutual thrifts convert to stock form. This request 
for comments reflects that study. The intended effect of this notice is 
to obtain comments on the suggested approach to resolving fundamental 
concerns about the current mutual-to-stock conversion process.

DATES: Written comments must be received by the FDIC on or before 
August 12, 1994.

ADDRESSES: Written comments shall be addressed to the Office of the 
Executive Secretary, Federal Deposit Insurance Corporation, 550 17th 
Street NW., Washington, DC 20429. Comments may be hand-delivered to 
room F-400, 1776 F Street, NW., Washington, DC, on business days 
between 8:30 a.m. and 5 p.m. (FAX number: (202) 898-3838). Comments 
will be available for inspection in room 7118, 550 17th Street, NW., 
Washington, DC between 9 a.m. and 4:30 p.m. on business days.

FOR FURTHER INFORMATION CONTACT: Robert H. Hartheimer, Acting Director, 
Division of Resolutions (202/898-8789), John G. Finneran, Jr., Acting 
Deputy General Counsel, Legal Division (202/898-3766), Robert F. 
Miailovich, Associate Director, Division of Supervision (202/898-6918), 
Robert W. Walsh, Manager, Planning and Program Development Section, 
Division of Supervision (202/898-6911), Joseph A. DiNuzzo, Counsel, 
Legal Division (202/898-7349), Federal Deposit Insurance Corporation, 
Washington, DC 20429.

SUPPLEMENTARY INFORMATION:

Historical Background

    Mutual savings institutions were founded to fill gaps in the 
market--and for a social purpose. Commercial banks have not always 
welcomed retail customers as either depositors or borrowers. Mutual 
savings banks were in many respects charitable organizations designed 
to encourage and facilitate thrift on the part of urban wage-earners. 
Their trustees were self-perpetuating groups of leading citizens, some 
of whom may have contributed the capital to establish the bank in the 
first place, who took no fees and did no business with the bank. 
Savings and loan associations were essentially cooperatives. One became 
a ``member'' in order to save--in order eventually to borrow the money 
to build a home. There were limitations on the ability to withdraw 
one's funds. The right to be the next borrower, when enough funds had 
accumulated, was often decided by lot. Trustees were elected by the 
members--and in the early days members were required to attend meetings 
and take their turn as officers. The notion of ``self-help'' motivated 
both sorts of formations. At one time, people spoke of the spread of 
these institutions as a ``movement.''
    As a legacy of that tradition, today there are approximately 1,100 
mutuals in the United States. (Ten years ago there were about 2,500, 
five years ago 1,775.) From time to time, one or another of them 
desires to convert to stock form. It may be that they need more 
capital--in some cases on an urgent basis. It may be that they see 
expansion opportunities and need a currency (stock) with which to 
acquire. For many small institutions, it makes sense to join a larger 
organization, and they often need to convert to be able to do so. Based 
on our own research and analysis, as well as published cases, there is 
also little question that some institutions have converted primarily to 
enrich those who controlled them.
    The existing form of transaction by which both federal and state 
mutuals convert was developed by the Federal Home Loan Bank Board 
(``FHLBB'') in 1974. What happens, essentially, is that the mutual 
sells itself, for cash, to whoever buys its newly issued stock. Various 
categories of potential purchasers get priority. In general, depositors 
stand at the head of the line. To the extent depositors and others with 
priority rights do not subscribe for stock, an attempt is made to sell 
it locally. If stock is still left over, it is sold to investors with 
no particular connection to the converting institution.
    The FHLBB was conscious, when it first wrote rules for conversions, 
that there might be value to the right to subscribe for stock in a 
conversion. For example, if a mutual with $100 million of net worth 
raised only $20 million of new capital in converting, whoever got to 
buy the stock would have a claim on $120 million of net worth. In such 
a situation, the stock would almost certainly be worth much more than 
the buyers had paid for it. For about a year, in the early '70s, the 
FHLBB took the view that rights to buy stock in a converting 
institution should be distributed to its depositors, who could either 
exercise and become owners or sell the rights for their intrinsic 
value.
    The FHLBB subsequently abandoned this approach, however, primarily 
out of concern that depositors would shift funds from association to 
association, hoping to capture the intrinsic value of the rights when 
the conversion occurred--and on a scale that could be destabilizing. At 
the same time, it adopted the current approach, which included an 
``appraisal'' requirement, providing that a converting institution 
issue and sell its capital stock at a total price equal to the 
estimated pro forma value of such stock in the converted institution.
    Because of moratoria imposed in 1973 and 1974, the existing form of 
transaction was not tested in great numbers until the '80s. At that 
point, it worked quite well, because many converting institutions had 
little net worth or economic value, and the market was extremely wary 
even of those that did. Depositors and other investors who subscribed 
for stock got securities with a market value approximately equal to 
what they paid for them.

Problems With the Existing Process

    In the last two-plus years, as non-viable institutions have been 
closed and the industry has returned to health, the existing form of 
transaction has delivered windfalls to those who subscribed. In the 
more than 100 standard conversions in 1992 and 1993, the trading price 
at the end of the first day has exceeded the subscription price by, on 
average, 26%. In 40 instances, this price increase (the ``pop'') has 
exceeded 30%; in 6 instances it exceeded 50%.
    As it has become obvious to everyone familiar with the process that 
buying stock in a conversion is an easy way to make money, a class of 
`'professional depositors'' has emerged--wealthy individuals and 
investment partnerships with $50 to $500 accounts at literally hundreds 
of mutuals across the country. Investment banking firms active in the 
conversion arena advise us that there are perhaps 500 to 1,000 such 
professional depositors, and that they can take the account list of 
almost any mutual in the nation and recognize hundreds of names at 
sight. These professional depositors buy the maximum amount of stock 
allowed--and consequently the overwhelming majority of the stock issued 
in almost every conversion. Market participants have told us that in a 
typical conversion, less than 5% of depositors participate at all--and 
that the majority of them are professionals or insiders.
    Giving depositors the opportunity to subscribe for stock has not 
resulted in broad distribution of stock among them. The vast majority 
of depositors in mutual savings institutions keep their savings there 
precisely because they are risk-averse. They are likely to read and 
ignore or discard the offering circular. The money they keep in a 
savings institution has been put aside for retirement, or for 
emergencies, or for the down payment on first house, and cannot be 
invested in an initial public offering. They do not participate. The 
existing conversion process does not benefit them at all.
    As it has become obvious to everyone who understands the process 
that the stock of converting institutions often trades up sharply on 
the first day of issue, those who control mutual institutions have 
become more and more interested in converting. Managers and even non-
executive trustees have been awarded free stock and options (at the 
subscription price). Employee Stock Ownership Plans (``ESOPs'') have 
been created and given priority in buying stock. These and other 
devices have resulted in substantial transfers of value.
    As it has become clear that most conversions would be 
oversubscribed, the ``allocation'' process has clearly been subject to 
abuse. For example, we have been told that in transactions where 
allocations were likely to be based on size of deposit because of 
expected oversubscription, insiders and others in a position to know 
the relevant record date have been able to transfer large amounts of 
money into their accounts on that single day. Where the right to 
subscribe has been limited to long-term depositors, or depositors with 
local addresses, we are told that professionals are sometimes able to 
persuade other depositors to ``front'' for them (despite rules to the 
contrary).

Problems With Appraisals

    As market valuation of thrifts has risen (and as conversions have 
come to be oversubscribed, with stocks generally trading up), the 
integrity of the appraisal process has been compromised. The FDIC's 
experience with appraisals is that they typically follow a certain 
pattern. A ``peer group'' of stock savings institutions is identified. 
(How they were selected out of the much larger universe of potential 
``peers'' typically is not well explained.) The peer group market/book 
ratio is calculated. It is then stated that the converting institution 
should be valued (on a pro forma basis) at a discount from that ratio. 
Two reasons for this are typically given. The first is that the 
converting mutual is actually inferior to the peer group--which raises 
the question, why were they chosen as peers in the first place. The 
second, discussed below, is the need for a ``new issue discount.'' 
(Price/earnings ratios are also calculated, but there is rarely a 
cogent analysis of the converting institution's earnings potential once 
it appropriately deploys its new capital.)
    At March 31, 1994, the thrift industry average market/book ratio 
was 99% and the median was 95%. (At year-end 1993, those figures were 
five percentage points higher, a year before that 15 percentage points 
lower.) The market tends to value recently converted institutions below 
the industry average--primarily, in our judgment, because the return on 
a newly converted institution's book, or capital, will be low by 
industry standards until it is able to leverage the new capital it 
raises in the conversion. During 1992 and 1993 as a whole, the average 
market/book ratio of a newly converted institution, at the end of the 
first day of trading, was 72%. To meet the ``appraisal'' requirement 
that an institution's stock trade at what it was sold for in a 
situation where a 72% market/book ratio was a reasonable expectation, a 
mutual would have to more than triple its capital base. To be precise, 
a mutual with a $100 million net worth would need to raise $257 million 
(ignoring expenses and the effects of establishing an ESOP or a 
management retention plan), since 72% of $357 million (the resulting 
book value) equals $257. It is extremely hard for a company in a highly 
competitive industry prudently to employ that much new capital.
    What appraisal firms did, in 1992 and 1993, was to ``appraise'' 
converted institutions on average at 57% of book. They did this despite 
the fact that, on average, these institutions traded up the first day 
by 26%.
    Appraisers' principal rationalization for this discrepancy has been 
that, in the context of an initial public offering, a ``new issue 
discount'' is required. While it is certainly true that it is difficult 
to bring a company public without pricing the shares at a level that 
stimulates unfilled demand--resulting in a ``pop''--we question the 
magnitude required in an environment where virtually all conversions 
are trading up. In some circumstances, the need for a ``new issue 
discount'' has been asserted in appraisal updates issued after the end 
of the subscription period, and in the face of 100-300% 
oversubscriptions. We would also observe that the literal language of 
the OTS regulations and guidelines on conversion appraisals does not 
allow for a market discount. The question to be answered is: how much 
stock has to be sold to eliminate any ``pop''?
    We suspect that the practices we describe developed over time as 
appraisers, and mutuals and their advisers, attempted to deal in good 
faith with the inherent contradictions of, on the one hand, a form of 
transaction perfectly suited to institutions on the brink of failure, 
or which the market feared, and, on the other, a thrift industry that 
has returned to health.
    As a footnote to the conversions of the 80's, it is worth observing 
that many institutions which emerged with very high capital ratios were 
so anxious to earn a good return for their new, demanding stockholders, 
that they grew their balance sheets more quickly than they should have 
and took risks they did not fully understand. A total of 77 New England 
savings banks converted in the years 1984 through 1989; these 
transactions increased their weighted average capital ratio to 15.2% 
from 6.6%; 16 of them (or 21%) subsequently failed.1 In addition, 
the rush by converted institutions to increase assets quickly tended to 
reduce credit standards throughout the market, imperiling other 
institutions.
---------------------------------------------------------------------------

    \1\''Understanding the Experience of Converted New England 
Savings Banks,'' Eccles and O'Keefe, FDIC (1994).
---------------------------------------------------------------------------



Changing the Process

    What this history demonstrates is the need for fundamental change:
     The ``appraisal'' process puts the government in the 
awkward position of substituting its judgement for that of the 
market...
      . . . and forces most converting institutions to raise 
far more capital than they can prudently deploy...
      . . . but still fails to eliminate windfalls.
     This has put well-intended individuals involved in more 
than a few conversions in the ethically uncomfortable position of 
pretending the appraisal requirement is met when they know it isn't.
     The required form of transaction transfers the existing 
value of the mutual to a small group of individuals with the cash, 
sophistication and risk appetite to buy the stock.
     Because value is being ``given away,'' the process invites 
insider abuse. And because the value has to go somewhere, the ingenuity 
of market participants eventually frustrates attempts to eliminate the 
problem.
    We share with others a desire to address problems arising under the 
existing rules. We do not in any way want to prevent valid conversions 
from taking place--nor encourage conversions that fail to meet a valid 
business need. We also desire that our handling of conversions be 
generally consistent with that of the OTS.
    For these reasons we are publishing elsewhere in this issue of the 
Federal Register a proposed rule which: (a) reaffirms our intention to 
review conversion applications submitted by state-chartered nonmember 
insured savings banks (and applications for insurance from newly 
established associations to be owned by mutual holding companies), and 
(b) explicitly establishes certain criteria which are comparable to 
those of the OTS.
    At the same time, we feel it is only fair to put the public on 
notice that we believe it may be difficult for a healthy mutual to 
develop a sound business plan while raising enough new capital to 
receive a valid appraisal.
    The noted investment manager, Peter Lynch, describes this problem, 
and the existing form of conversion generally, in graphic terms. Buying 
stock in a converting mutual, he writes, is like going to an automobile 
dealer to buy a car, giving him a check for the purchase price, and 
discovering on the way home that the dealer has put your check in the 
glove compartment of the car. Unless the car is an extraordinary lemon, 
this is bound to be a good deal. And increasing the size of the check--
which is what ``disciplining the appraisal process'' amounts to--won't 
make it stop being a good deal.
    It is possible that the recent OTS amendments (and the requirements 
in the FDIC proposed rule mentioned above) which aim to give long-term, 
local depositors more rights--but within the framework of the existing 
form of transaction--may produce similarly frustrating results. As 
noted earlier, ``real'' depositors are not going to benefit, no matter 
what priorities they receive, because ``real'' depositors still may not 
subscribe in significant numbers.
    We believe that ``insider abuse,'' which is the focus of much 
recent discussion and of several of the OTS amendments and the 
requirements of the FDIC proposed rule, is only a piece of the problem. 
In one recent conversion, for example, state authorities forced the 
institution to rescind stock grants which would have benefited insiders 
by approximately $40 million.
    This was laudable. But the ``pop'' in the price of the converted 
institution's shares benefited those who subscribed by more than $200 
million on the first day of trading and by $275 million after one 
month's trading. All who had their subscriptions filled were 
depositors--but only 5% of all depositors subscribed. We question 
whether it can be an adequate response to the trustees' fiduciary duty 
to deliver that much value to the tiny fraction of a mutual 
institution's depositors with the capacity to line up and collect it.
    We continue to believe--as stated in testimony before the 
Congressional Banking Committees--that the conversion process is 
fundamentally flawed. Thus, in addition to the proposed rule published 
elsewhere in this issue of the Federal Register (which is intended to 
address concerns within the existing mutual-to-stock conversion 
framework) we also are issuing this request for comments seeking views 
on an approach which might address the basic flaws in the existing 
scheme.

The (Misguided) Question of ``Ownership''

    The most vexing question facing everyone who has ever dealt with 
mutual-to-stock conversions is: ``Who owns mutuals?'' That may be the 
wrong way to ask the question. As indicated earlier, mutuals were 
originally closer to charities or community organizations than to 
commercial enterprises. As a by-product of doing what they were founded 
to do, they have accumulated net worth. The trustees hold that value in 
trust. The right question more likely should be: ``If the trustees 
decide to convert, to whom should that value be delivered?''
    We believe there are two ways to answer the question: leaving it to 
the trustees in the reasonable exercise of their fiduciary duty, or 
legislation.
    Leaving the decision to the trustees is logical, but may be 
impractical. The best argument in favor of this approach is that the 
history and circumstances of institutions vary, that boards are 
designed to balance competing interests and considerations, that 
existing law should be adequate to prevent abuse, and that the 
government should not interfere unless it has to. As different boards 
of trustees wrestle with the issues, a consensus should tend to emerge.
    The argument against leaving the decision to the trustees is 
twofold. Taking the positive view of such boards, it places an unfair 
burden on them and their institutions. They will be lobbied by 
potential claimants. Someone will object to whatever decision they 
make. Taking the skeptical view--and there is no question that some 
boards have interpreted their fiduciary responsibilities rather 
loosely--leaving the decision to the trustees is unwise. The FDIC will 
in the end have to expend significant resources providing informal 
guidance to the conscientious and making sure that trustees' 
determinations are reasonable.
    Some could well believe that the preferable way to answer the 
question of ``to whom the value should be delivered'' would be 
legislation. In fact, the main purpose of this notice and request for 
comments is to solicit views from the public on a legislative proposal 
that the FDIC could prepare and present to the appropriate legislative 
body(ies). Legislation could take the form of state law, through which 
each state would decide the question for the mutual banks it charters 
(or has chartered), or federal legislation, through which the Congress 
decides the issue on a nationwide basis. Uniformity argues for federal 
legislation, but questions of federal preemption of state law would 
have to be considered.
    If federal legislation is decided upon, the Congress could either 
establish in the statute explicit value-distribution rights or 
authorize the appropriate federal agency (presumably, the FDIC for 
state savings banks and the OTS for federal and state savings 
associations) to determine to whom the value of the mutual institution 
should be delivered.

Who Should Get the Value?

    We are aware of at least seven groups (in no particular order) 
which might lay a claim to a mutual's value:
    (1) Depositors.
    (2) Other creditors, including holders of subordinated debt.
    (3) Borrowers.
    (4) Employees--whether through the medium of an ESOP, which 
acquires shares in the conversion, or other arrangements designed for 
senior management.
    (5) Trustees.
    (6) The Bank Insurance Fund or the Savings Association Insurance 
Fund, the U.S. Treasury or the relevant state government.
    (7) Charitable organizations or trusts serving the community and 
purposes for which the converting institution was originally founded.
    The question of who receives the value is primarily a political 
one. Accordingly, we do not believe the FDIC should be the one to 
decide among these (or other) claimants. We have a supervisory interest 
in seeing the question answered, however, and answered in a way that is 
generally seen to be sensible and fair.2 To that end, the 
following comments are intended to focus public discussion of the 
question.
---------------------------------------------------------------------------

    \2\Pending a legislative determination of this question, we also 
have a supervisory interest in ensuring that the boards of mutual 
institutions fulfill their fiduciary duties in preserving the value 
of the institution. Accordingly, the FDIC will continue to review 
proposed conversion transactions of state mutual savings banks and 
take appropriate action where the transaction raises fiduciary 
concerns.
---------------------------------------------------------------------------

    Taking each of the seven parties in turn, we believe that at least 
some of the value will have to go to depositors. Although the law of 
many states implies that they are not ``owners'' of mutual institutions 
in the classic sense of the term, and, at least since the creation of 
the FDIC, they have not borne significant risk, they have supplied the 
institution with its resources and in many cases have a vote on 
conversion. Although we have scant sympathy for those professional 
depositors who have opened small accounts in the expectation of large 
windfalls and whose hopes would be disappointed by the reforms we 
propose, it is perhaps the case that some depositors of all types have 
known that conversion was a possibility, and in a sense may have 
``bargained for'' at least some share of the value of the institution. 
The fact that existing OTS regulations and most states' laws give 
savings and loan association depositors preference in subscribing for 
stock may not create an entitlement, but it has probably created an 
expectation--which will probably have to be satisfied to some degree.
    Among depositors, there are questions of allocation: by size, by 
tenure, by address. What is theoretically desirable is often beyond the 
scope of the converting institution's data processing systems. Attempts 
to favor ``local'' depositors can be frustrated in various ways. There 
is also the question of record date--and the problem of long-term 
depositors who unwittingly close their accounts shortly before the 
record date. Our current inclination would be to make the record date 
fairly recent (as a convenience) and to award one share of the 
aggregate value going to depositors for each year that each account has 
been open. We expect that allocating shares to accounts closed prior to 
the record date, while theoretically equitable, would prove 
impractical.
    In contrast to depositors, creditors are uninsured and do take 
risk--especially since the adoption of federal depositor preference. On 
the other hand, most creditors have that status as an incident of some 
other relationship--e.g., as a supplier of goods and services--and 
would be surprised (if delighted) to discover that it gave them any 
claim on the value of the institution. We would therefore expect a 
consensus to emerge favoring their exclusion.
    The argument for giving debtholders part of the value is stronger. 
They have the position they do because of a conscious financial 
transaction. In most cases, such debt is subordinated and does 
represent capital. Debtholders, while subordinating themselves to 
depositors for a higher rate of return, did not ``bargain for'' any 
share of the mutual's net worth--but neither did most depositors. Were 
it to be established that subordinated debtholders were entitled to a 
share of the value, it might make it slightly easier for small mutuals 
to raise debt capital, which has appeal from a safety and soundness 
standpoint. As an equitable approach and from our perspective as 
insurer, we would favor giving debtholders some of the value of a 
converting institution, and we would not expect such a decision to 
strike people as unreasonable or unfair.
    If such a decision is made, we believe the most feasible method of 
allocation is by size of holding, with debtholders as a whole receiving 
a share of the value going to debtholders and depositors combined that 
is proportionate to debt's share of the institution's combined 
liability to depositors and debtholders. The length of time the debt 
has been outstanding, or in any particular holder's hands in the case 
of tradable debt, should not, in our judgement, have bearing.
    Federal Home Loan Bank advances are an important part of the 
liability structure of many banks. The question arises: if other 
debtholders should receive some of the value of a converting 
institution, why not the relevant Federal Home Loan Bank? We believe 
there is a good reason for excluding them: the fact that advances are 
fully secured, making the Banks effectively senior to depositors.
    Although borrowers are technically ``members'' of some mutual 
savings institutions, we believe most borrowers think of the 
institution as having a claim on them, rather than the reverse. During 
that period when they are borrowers, they are in fact already receiving 
a benefit. Borrowers are typically required to open deposit accounts as 
well. Finally, borrowers' loans can be, and often are, sold to third 
parties; distinguishing their rights from those of borrowers whose 
loans have not been sold would present formidable legal and logistical 
challenges. For all these reasons, we do not believe the consensus 
would be to give them a claim, as borrowers, on the value being 
transferred.
    We would point out, however, that at least some knowledgeable 
observers view the rights of depositors to a share of the converting 
institution's value as not really that much stronger than those of 
borrowers. The vast majority of both groups do business with mutuals on 
an arms-length basis, at market terms, at no significant risk, and with 
no expectation of a windfall. In the view of some observers, it is only 
the absence of any other ``owners,'' the fact that depositors turn up 
on the side of the balance sheet where stockholders would be if there 
were any, and the practice of treating depositors as stand-ins for 
owners that give depositors the presumption of a right to receive 
value.

Rewarding Employees and Managers

    It is sometimes said that managers--and to a lesser degree 
employees--of mutual institutions enjoy more job security and a less 
demanding work environment that their counterparts at organizations 
subject to stockholder discipline, but are in turn less well 
compensated. Conversion changes their situation. Some argue that these 
considerations--and years of loyal service--entitle managers to a share 
of the value. The opposing view is that managers of mutuals chose to 
work there and ``bargained for'' whatever pay they got.
    We understand both sets of arguments. The no-entitlement view, if 
we can call it that, has logical purity. The view that managers deserve 
part of the value has emotional appeal, especially when they have spent 
decades at the converting institution. The issue of appropriate 
treatment of long-serving employees is a good example of the 
essentially political nature of the value-distribution question.
    Were we required to decide this issue without legislative guidance, 
we would prefer to see all benefits to employees of insured 
institutions be delivered as compensation. We would certainly endorse 
the creation of an ESOP immediately after conversion. If the conversion 
process has entailed extra effort on the part of some (or all) 
employees, they may be entitled to bonuses. And if conversion entails a 
radical reduction in job security, it may be appropriate to adopt a 
severance policy consistent with standard industry practice for stock 
institutions.
    Focussing on the top few executives and non-executive trustees, it 
is certainly the case that their jobs become harder and less secure 
following conversion. They may be entitled to significant raises. It 
may be appropriate for a few senior executives to receive employment 
contracts. Again, all such steps should be evaluated within the context 
of ``compensation.'' We believe that for individuals who control the 
conversion transaction to lay any claim, in their capacity as managers 
and trustees, to a portion of the value being transferred creates a 
conflict of interest.
    It is currently common practice for converting institutions to 
create stock option plans. We believe it is appropriate for stock 
institutions to have incentive compensation plans of this type. As 
indicated in the FDIC proposed rule mentioned above, we agree with the 
OTS that such plans should, at the earliest, be adopted at the first 
stockholders' meeting following conversion and that the exercise price 
for any such options should be set at that time, rather than being 
based on the conversion price. The latter practice, which had been 
common, gave those who controlled the transaction an incentive to 
underprice the shares, and masked transfers of value to those 
executives receiving options, which, if properly measured, and viewed 
as compensation, would have been deemed excessive.

A ``Government'' Share?

    Several individuals and organizations have suggested that a share 
of the existing value of converting mutuals should go to one of the 
deposit insurance funds, or to the U.S. Treasury, or to the government 
of the state which chartered the institution. We are uncomfortable with 
the first suggestion. Converting institutions have been paying 
premiums, just as stock institutions have. No one would lay claim to a 
portion of the latter's net worth. The FDIC should not do so with 
regard to mutuals.
    Some have advanced the argument--based on the cost of the savings 
and loan crisis--that taxpayers generally, through the medium of the 
Treasury, should get a portion of the value that conversion releases. 
As a fairness matter, we believe this argument is flawed: Institutions 
now converting have not failed, and have not cost taxpayers anything. 
Most state savings banks, whose conversions fall under our 
jurisdiction, are insured by the Bank Insurance Fund, which taxpayers 
have not had to support.
    Another argument for conveying the value of converting mutuals to 
the government--whether state or federal--is that ``no one owns them,'' 
and that the fairest course is therefore to avoid giving the value to 
anyone in particular. We will have more to say on this topic later in 
this Notice, but would observe that if the form of transaction 
suggested below is adopted, many of those who receive the value of the 
institution will get cash, and will pay taxes on it as income, giving 
government its ``share.''

Fulfilling Mutuals' Original Purpose?

    As indicated earlier, mutuals were created for reasons that have 
now largely disappeared. Ordinary citizens have plenty of places to put 
their savings. A host of private- and public-sector entities facilitate 
home-ownership. The trustees of a mutual savings institution having 
regard for their fiduciary duties might liken their situation to that 
of the board of the March of Dimes, which had to redefine its mission 
after polio ceased to be a major threat. From that perspective, it may 
be appropriate for a portion of the value of a converting mutual to be 
transferred to one of more community organizations or charities.
    This approach raises the question, ``Which organizations?''--which 
could be extremely hard to answer. As with the matter of dividing up 
the value in the first place, leaving the decision to the trustees 
places a burden on them. Nevertheless, under this approach, the 
trustees are the ones to decide. If no appropriate vehicles existed, a 
trust might be established to receive the transferred value and make 
grants over time. The responsibility for allocating funds is borne by 
thousands of trustees of colleges and hospitals and foundations and 
charities all over the country; there are plenty of examples to 
follow--and laws to prevent abuse.
    An alternative to endowing a new or existing charitable 
organization is for the converted institution to accept special 
obligations to serve the convenience and needs of the community for 
banking services. This is a very broad subject, which we are not 
prepared to explore exhaustively here. We would make three basic 
points, however. First, while all banks clearly have public 
obligations, it seems likely that imposing different burdens on 
institutions which are otherwise direct competitors will ultimately 
create safety and soundness concerns. For that reason alone we would 
oppose this approach.
    Second, the value transfer inherent in an institution's voluntary 
acceptance of a special obligation to the community--e.g., a promise to 
make affordable housing loans, or to open branches in distressed 
neighborhoods--is difficult to measure against immediately cashable 
value delivered to depositors or others. We think it would be difficult 
for trustees to know what they'd actually done.
    Third, the history of mutual savings banks does suggest that 
organizations to which any portion of the value of a converting 
institution might be transferred should be locally focussed, and should 
have the encouragement of self-help as a major objective. To give only 
two of many possible examples, helping to capitalize a community 
development bank, or establishing a day care facility which permitted 
single mothers to work, would have satisfying historic resonance.

No Entitlement; No Forced Conversion

    The idea that some of the value of a converting institution should 
be delivered to the ``community'' it was chartered to serve is as 
strongly opposed by some as it is supported by others. This is another 
excellent example of the political (rather than regulatory) character 
of the issue.
    At least two arguments against a ``community'' share have been 
advanced. The first is that the ``wrong'' charities and community 
organizations would be chosen--wrong from the speaker's point of view, 
that is--because of their skill and persistence in lobbying the board. 
The second is that such organizations, seeing latent wealth available, 
would put pressure on boards to convert.
    This second argument is also advanced, as it was in the early '70s, 
against giving depositors transferrable rights: if value is 
``available,'' they will put pressure on institutions to convert.
    Being exempt from constituent ``pressure'' is unhealthy for any 
organization. Legislators have to face the voters. Independent agencies 
are subject to oversight. Stock organizations can be taken over. We do 
not believe that the trustees of mutuals should be allowed to ignore 
completely the views of those the institution exists to serve.
    Nevertheless, we would emphasize that however one decides the 
value-distribution issue, that does not answer the (misguided) 
question, ``Who owns a mutual?'' It does not, in our view, give anyone 
standing to demand that an institution convert--any more than a group 
of private citizens could demand that the Red Cross ``convert''! 
Conversion is a decision for the trustees, and until they make such a 
decision, the FDIC will not get involved--except where inadequate 
capital makes it desirable from a safety and soundness standpoint. 
Mutuality has a distinguished history in America. In the aggregate, 
mutuals have cost the FDIC proportionately less than have stock 
institutions. We would not endorse a system that compelled mutual 
institutions to change their character.

New Form of Transaction

    Having adopted an answer to the question, ``Who gets the existing 
value?'', the problem of delivering that value is easier to address. We 
would suggest the following approach:
     The trustees decide how much capital they need to raise as 
a business matter. (There is no ``appraisal'' process.)
     The trustees hire underwriters to conduct an initial 
public offering--and an escrow agent for the purposes described below.
     Rights to subscribe for the stock of the converted 
institution are distributed to ``rightholders'' in accordance with the 
principles outlined above.
     Each of these rights will have value. For example, if a 
mutual with $100 million of net worth elected to raise $20 million, and 
distributed 4 million rights to buy 4 million shares (at $5 each), and 
the market valued the converted institution at 80% of resulting book 
(or $96 million), the shares would trade at $24 each, and the right to 
buy a share for $5 would be worth $19.
     The rights would be ``transferrable'' only in the sense 
that, at the end of the subscription period, the escrow agent would 
exercise on behalf of any rightholder who had not done so, turn the 
stock over to the underwriter for sale, give $5/share of the proceeds 
to the company and send the difference to the rightholder.
    It is likely, under this form of transaction, that very few 
rightholders would chose to exercise, and that the underwriters would 
essentially be selling the whole institution. This gives rise to 
several questions. For example, wouldn't the transaction costs be 
awfully high, relative to the amount of new capital being raised? The 
answer has to be yes--but the cost should be measured relative to the 
major strategic accomplishment of conversion itself; presumably there 
was a reason to convert, or the trustees wouldn't have undertaken it. 
It is also worth observing that the need (opportunity) to sell nearly 
100% of the stock will lead many more underwriting firms to compete for 
the business.
    Another question is why not just distribute stock certificates 
instead of rights? The basic answer is that the selling effort of a 
public offering is what gets the market to focus on the fair value of 
the shares, and gets a group of underwriters committed to make a market 
in them afterwards. A direct distribution of shares could saddle the 
bank with an uneconomically large number of shareholders. It would 
leave unsophisticated holders of small numbers of shares in danger of 
being persuaded to sell at prices below intrinsic value. Finally, to 
the extent that rights were distributed to a community-oriented 
charity, a stock sale should probably be required to avoid leaving a 
controlling block of stock in the hands of a foundation or organization 
which might be governed by the directors of the converted mutual.
    One argument advanced against this form of transaction is that the 
existing process has raised enormous amounts of money to recapitalize 
ailing thrifts, and that while the industry is healthy now, we may need 
to be able to do that again some day. True--but the approach here 
proposed would be able to do that as well. If a thrift with a low 
equity ratio wanted to convert, it could distribute rights and hire an 
escrow agent and an underwriter, just the same. The shares could be 
priced wherever they had to, to be sold. The rights just wouldn't have 
much value--but that would appropriately reflect the institution's 
perilous condition.
    Another argument advanced is that the recent market is a highly 
unusual one, that the embarrassing increases in share price on the day 
of conversion have already begun to shrink and could soon disappear. 
They may or may not--and ``pops'' per se, though on a more modest 
scale, are effectively a requirement of the initial public offering 
market--but the transactions the existing conversion process requires 
would still be inefficient to the point of being improper. Under 
current rules, a well capitalized thrift is only able to avoid a 
``pop'' by increasing its equity ratio to the point where its market/
book ratio falls below industry norms--which says that a lot of the new 
capital will either be underutilized for several years, or used 
imprudently. What all parties at interest should want is the highest 
market/book ratio that can be obtained, because that suggests the right 
business judgements have been made regarding capital structure and 
growth prospects. The elimination of ``pops'' would suggest a 
destruction of the value the trustees hold in trust, and a violation of 
their fiduciary duty of care--regardless of who that duty is owed to.

Merger Conversions

    The OTS interim final rule would prohibit merger conversions--
whereby a stock institution acquires the assets and assumes the 
liabilities of a mutual with no significant payment to anyone--except 
where the survival of the converting institution is in question. The 
form of transaction we here propose would permit merger conversions, 
but would make them essentially a purchase of subscription rights by 
the acquiror, with the value paid for the rights--either in cash or 
other consideration--going to rightholders. This would have efficiency 
benefits for those smaller institutions whose decision to convert 
flowed from a decision to affiliate with a larger organization. 
Trustees who decided to convert and be acquired would of course have 
the same obligation to get the best possible price for rightholders.

Mutual Holding Companies

    The Competitive Equality Banking Act of 1987 and the Financial 
Institutions Reform, Recovery, and Enforcement Act of 1989 authorized 
conversion of mutual savings institutions into federal mutual holding 
companies, which in turn transfer virtually all their assets and 
liabilities to new, stock savings institutions, part of whose stock is 
acquired by subscribers in the conversion, with the majority retained 
by the mutual parent. This structure has the benefit of permitting 
converting institutions to raise only the amount of new capital they 
actually need. It has, however, in our view, potential for even a 
higher level of insider abuse than in standard conversions. We note 
that many newly formed mutual holding companies propose to refuse 
dividends declared by their operating subsidiary--with no corresponding 
change in their percentage ownership of the subsidiary as dividends 
flowed to its minority stockholders. It seems to us that this could 
constitute a breach of fiduciary duty on the part of the trustees--
which would be particularly acute were the trustees significant 
stockholders of the subsidiary. (It is worthy of note that ``pops'' in 
conversions involving mutual holding have been in the 40% range, 
compared to 26% for standard conversions.) As our suggested form of 
standard conversion would eliminate the need to raise excessive amounts 
of capital, we believe use of the mutual holding company structure 
should be discouraged in future conversions.

Summary

    As we have studied the mutual-to-stock conversion process, it has 
become clear that there are two intertwined problems to be solved. One 
is technical: how to do it? The other is political: who should get the 
value? The first problem is interesting and challenging, but the second 
one is fundamental.
    Deciding who should get the value makes a lot of people 
uncomfortable. Almost every answer makes someone angry. As we read the 
history, the FHLBB settled on the existing form of transaction 
precisely because it allowed them to avoid answering the value-
distribution question. We have come to believe that the primary appeal 
of some value-distribution schemes--e.g., giving it to depositors or to 
``the government''--is that they appear to disperse value enough to 
make the issue moot. As we have discussed the subject over the past two 
months, we have observed how tempting it is to continue to avoid it. 
Lawyers and investment bankers and professional depositors with a 
vested interest have urged us to drop the subject--which is not 
surprising. But even disinterested individuals wind up asking, ``Do we 
care?''--and they reach that point with remarkable consistency.
    We should care. The integrity of a banking system is a national 
treasure. Careless distribution of the value of converting institutions 
undermines that integrity. A form of transaction in part designed to 
avoid the value-distribution question--though it worked well for a 
while--today forces well-meaning bankers and lawyers and trustees and 
regulators to wink at polite fictions. Many have suggested that this is 
hardly a crime, since there is no victim. We disagree. Honor is the 
victim.
    Life is full of compromises. There is no ``right'' answer to the 
value-distribution question. But there is a right process for 
addressing it. We invite broad participation in fashioning a 
compromise, as only democracy can, with which no one is entirely 
satisfied, but in which all can take pride.

Questions on Which Comment Is Sought

    The FDIC is hereby requesting comment during a 60-day comment 
period on all aspects of this notice, including the following specific 
issues:
    (1) Should a mutual institution be required, as a threshold issue, 
to demonstrate a need to convert--or is it sufficient that it provide 
an adequate business plan for the future?
    (2) In the absence of legislation, could and should the FDIC adopt 
guidelines or set standards for the distribution of the existing value 
of a converting institution, or could or should the matter be left 
entirely to the trustees?
    (3) Whether it is legislation or the FDIC or the board of trustees 
that sets standards, what should they be? Who should get some of the 
value, how much, and how specific should the rules be?
    (4) If depositors (or creditors or borrowers or employees) are to 
receive some of the value, how should it be allocated among them? 
Should amount of deposit or tenure of association be accorded more 
weight? Must depositors and debtholders be treated identically? What 
practical constraints exist, based on mutuals' information systems and 
resources? What should the record date be?
    (5) If charitable organizations or foundations are to receive a 
portion of the value, how should the suitability of the recipients be 
determined? Should there be a presumption that the trustees' selection 
of recipients is reasonable? Do there need to be rules to prevent abuse 
of such entities--e.g., through ``consulting contracts'' with trustees? 
Should such entities be required to sell at the time of conversion, or 
should they be permitted to diversify over time, in accordance with 
existing federal tax and banking laws?
    (6) Does ``pressure to convert'' from parties who would receive 
value if an institution did so represent a legitimate public policy 
concern? How great might that pressure be? How can trustees of 
institutions which have not elected to convert be protected from 
unreasonable litigation?
    (7) What potential problems (including tax issues and insider 
abuses) are there with the proposed new form of transaction, and how 
can they be avoided or alleviated? On the assumption that the market 
will gradually improve on any form of transaction, how specific does 
legislation or regulation need to be in that area?
    (8) Should converting institutions (including those doing merger 
conversions) be required or encouraged to obtain ``fairness opinions'' 
from independent financial advisors? Should the FDIC attempt to 
``police'' the market judgements involved in the process in any way?
    (9) Should new mutual holding company creations be permitted? If 
not, how should existing ones be regulated?

    By the order of the Board of Directors.

    Dated at Washington, D.C., this 31 day of May, 1994.

Federal Deposit Insurance Corporation.
Robert E. Feldman,
Acting Executive Secretary.
[FR Doc. 94-14006 Filed 6-10-94; 8:45am]
BILLING CODE 6714-01-P