[Federal Register Volume 59, Number 249 (Thursday, December 29, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-31661]
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[Federal Register: December 29, 1994]
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FEDERAL DEPOSIT INSURANCE CORPORATION
12 CFR Part 335
RIN 3064-AB32
Securities of Nonmember Insured Banks
AGENCY: Federal Deposit Insurance Corporation (FDIC).
ACTION: Final rule.
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SUMMARY: The Federal Deposit Insurance Corporation (FDIC) is amending
its securities disclosure regulations. The amendments relate to
registration and reporting requirements for non-member insured banks
with securities registered under section 12 of the Securities Exchange
Act of 1934 (Exchange Act or Act).
Section 12(i) of the Exchange Act requires that the FDIC issue
regulations substantially similar to those of the Securities and
Exchange Commission (SEC) or publish its reasons for not doing so.
These amendments are intended to comply with section 12(i) and to
update the regulations. The SEC has amended its Exchange Act
regulations, relating to Small Business Initiatives, Executive
Compensation Disclosure, and Regulation of Communications Among
Shareholders. The FDIC is amending its Exchange Act regulations to
incorporate, in substance, the SEC changes noted above.
DATES: Effective Date. These amendments are effective on July 1, 1995.
Early Compliance. These amendments may be immediately followed by
the affected party.
FOR FURTHER INFORMATION CONTACT: M. Eric Dohm, Staff Accountant,
Division of Supervision (202-898-8921) or Gerald J. Gervino, Senior
Attorney, Legal Division (202-898-3723), Federal Deposit Insurance
Corporation, 550 17th Street N.W., Washington, DC 20429.
SUPPLEMENTARY INFORMATION:
Background
Section 12(i) of the Exchange Act grants authority to the FDIC to
promulgate regulations applicable to the securities of insured banks
(including foreign banks having an insured branch) which are neither
members of the Federal Reserve System nor District banks (Nonmember
Banks). These regulations must be substantially similar to the SEC's
regulations under sections 12 (securities registration), 13 (periodic
reporting), 14(a) (proxies and proxy solicitation), 14(c) (information
statements), 14(d) (tender offers), 14(f) (arrangements for changes in
directors), and 16 (beneficial ownership and reporting) of the Exchange
Act. Section 12(i) does not require the FDIC to promulgate
substantially similar regulations in the event that the FDIC finds that
implementation of such regulation is not necessary or appropriate in
the public interest or for protection of investors and the FDIC
publishes such findings with detailed reasons therefor in the Federal
Register. This amendment is intended to satisfy that requirement.
Amendments to Part 335
A. Small Business Initiatives
Recognizing that smaller banks are disproportionately affected by
complexities in the disclosure requirements of banks registered under
section 12 of the Exchange Act, the FDIC is revising its regulations by
permitting ``small business issuers'' (as defined under the SEC's
Exchange Act rules) to provide financial and other item disclosure in
conformance with Regulation S-B of the Securities and Exchange
Commission (17 CFR Part 228) in lieu of certain disclosure requirements
in FDIC Forms F-1, F-2, F-4, F-5, F-5A and the annual report to
security holders. The definition of ``small business issuer'',
generally includes banks with annual revenues of less than $25 million,
whose voting stock does not have a public float of $25 million or more.
For additional information and discussion, reference is made to the
preamble contained in ``Small Business Initiatives'', SEC Release No.
34-30968, 57 FR 36442 (August 13, 1992); and in ``Additional Small
Business Initiatives'', SEC Release No. 34-32231, 58 FR 26509 (May 4,
1993).
B. Executive Compensation Disclosure
The SEC's regulations, as referenced by these amended Exchange Act
rules, require disclosure of the compensation of the chief executive
officer (CEO) regardless of the amount of compensation, and the four
most highly compensated senior executive officers, excluding the CEO,
who earn more than $100,000 per year in salary and bonus. Additionally,
the regulations require a comprehensive three year compensation table,
a table which discloses awards granted pursuant to long term incentive
plans, and two disclosure tables relative to options and stock
appreciation rights. The SEC's regulations also require:
(a) Disclosure of all forms of director compensation, employment
contracts and termination agreements which require payments in excess
of $100,000;
(b) A compensation committee report to shareholders which details
compensation policies and the basis for the CEO's compensation for the
last fiscal year;
(c) Proxy statement disclosure of the existence of certain
relationships between directors and the bank if specific circumstances
exist; and
(d) A graphical chart, which illustrates for the previous five
years, the cumulative total return to shareholders, of stock
appreciation and dividends.
For additional information and discussion, reference is made to the
preamble contained in ``Executive Compensation Disclosure'', SEC
Release No. 34-31327, 57 FR 48125 (October 21, 1992); in ``Executive
Compensation Disclosure'', SEC Release No. 34-32723, 58 FR 42882
(August 12, 1993); and in ``Executive Compensation Disclosure'', SEC
Release No. 34-33229, 58 FR 63010 (November 29, 1993).
C. Regulation of Communications Among Shareholders
These amendments to the proxy rules and other related provisions
will improve the effectiveness of the proxy-voting process and its
effect on corporate governance of nonmember insured banks subject to
Part 335. These amendments are the result of an effort to eliminate
from the FDIC proxy rules, any unnecessary regulatory impediments to
communication among shareholders and others and to the effective use of
shareholder voting rights. Accordingly, the FDIC is revising its rules
relative to the solicitation of proxy authority to allow management and
other persons seeking proxy authority to get their case to the
shareholders in a more efficient and effective manner. The FDIC has
determined that modifications in the current rules are desirable to
achieve the purposes set forth in the Exchange Act.
The revisions eliminate Form F-6--Form for Statement in Election
Contests (Sec. 335.221) and also adopt new Form F-6A--Notice of Exempt
Solicitation (Sec. 335.222). Disclosures relative to each participant
in an election contest, which were previously provided on Forms F-6,
are now required to be included on Form F-5--Form for Proxy Statement
(Sec. 335.212). Form F-6A requirements apply to large shareholders who
are disinterested in the subject matter of a shareholder vote and who
are engaging in certain solicitations which are exempt from the
regulatory requirements of the proxy rules.
It should also be noted that the FDIC retains its existing rules
which generally require the filing of preliminary proxy material and
preliminary information statements with the FDIC for staff review and
comment, prior to distribution of the definitive materials. The FDIC is
amending its rules, however, to require that preliminary materials be
deemed immediately available for public inspection upon filing, unless
confidential treatment is obtained pursuant to Sec. 335.204(f(2).
The amendments will make the FDIC's proxy and related disclosure
rules substantially similar to the SEC's recently amended comparable
rules. Prior to amendment of its rules, the SEC conducted an extensive
three-year examination focused on the role of its former proxy and
disclosure rules in impeding shareholder communication and
participation. As a result of its examination, the SEC concluded that
the demonstrated effect of its rules as previously written was contrary
to Congress's intent that the rules assure fair, and effective
shareholder suffrage. For additional information and discussion,
reference is made to the preamble contained in ``Regulation of
Communications Among Shareholders'', SEC Rel. No. 34-31326, 57 FR 48276
(October 22, 1992).
D. Other
As described previously, the FDIC is eliminating Form F-6--Form For
Statement In Election Contests (Sec. 335.221) and also proposes to
adopt new Form F-6A--Notice Of Exempt Solicitation (Sec. 335.222). In
addition, several technical amendments will correct various errors
which appear in the Code of Federal Regulations.
Public Comment
The Board requested comment on all aspects of the proposed rule,
particularly those provisions specifically mentioned above. 59 FR 22555
(May 2, 1994).
The FDIC received six comment letters in response to its
solicitation. All of the commenters were favorable to the adoption of
the proposed amendments, as a whole. One commenter, offering otherwise
favorable views, objected to the public availability of preliminary
proxy material under the amendments.
In conjunction with this rule, the FDIC also sought written
comments relative to the following: Should the FDIC consider proposing
a revision to Part 335, to incorporate by cross-reference the
comparable rules of the SEC, rather than continue to maintain the
separate but substantially similar body of rules contained in Part 335
as is done presently? Interested persons were asked to address: (1) The
benefits and disadvantages of cross-referencing as a method for
assuring substantial similarity between the FDIC's and the SEC's
regulations; (2) the potential cost savings or cost burden of cross-
referencing; (3) whether the FDIC should continue to review preliminary
proxy materials and information statements; and (4) any other issues
regarding a cross-referencing proposal which commenters believe
pertinent. Written comments were invited to be submitted during a 60-
day comment period.
All of the commenters supported cross-referencing to some extent.
Two felt that the FDIC should be careful to adopt or preserve
regulations different from those of the SEC, where FDIC drafted
regulations would be more appropriate for banks. None provided an
estimate of cost savings from the cross-referencing procedure. One
commenter indicated that if this cross-referencing procedure is
adopted, the FDIC should provide notice to banks filing under Part 335
that the SEC has amended rules applicable to banks by cross-reference.
The only commenter who addressed the question of advance filing of
preliminary proxy material, felt that advance filing should be
continued.
In the interest of bringing our rules into similarity with the
current SEC rules, the FDIC is adopting the rules as previously
proposed, prior to publication of any comprehensive proposal to
incorporate by cross-reference the comparable rules of the SEC.
Recognizing the above noted response to its request for comment, the
FDIC intends to take further action. Since the previously published
request for comments concerning a comprehensive cross-referencing
proposal was a general notice, the FDIC intends to publish for comment,
a proposal to effect a comprehensive revision of Part 335. The revision
would incorporate by cross-reference the comparable rules of the SEC
rather than continue to maintain the separate but substantially similar
body of rules as presently contained in Part 335. A comprehensive
revision would generally make all relevant SEC Exchange Act
regulations, and amendments thereto, applicable to registered Nonmember
banks unless the FDIC acts to vary specific requirements applicable to
such banks from the provisions of the SEC regulations. The FDIC intends
to publish for comment, a proposed revision of Part 335 to
comprehensively cross-reference the SEC's Exchange Act rules, in the
near future.
Regulatory Flexibility Act
The Board hereby certifies that the rule will not have a
significant economic impact on a substantial number of small entities
within the meaning of the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.). Therefore, the provisions of that Act relating to an initial and
final regulatory flexibility analysis (5 U.S.C. 603 and 604) do not
apply. This rule will not impose significant burdens on depository
institutions of any size and would not have the type of impact
addressed by the Act.
Paperwork Reduction Act
The collection of information contained in this rule has been
reviewed and approved by the Office of Management and Budget under
control number 3064-0030, pursuant to the Paperwork Reduction Act of
1980 (44 U.S.C. 3501 et seq.).
The revisions to the collection of information in this rule are
found in Sec. 335.102, Sec. 335.201, Sec. 335.202, Sec. 335.203,
Sec. 335.204, Sec. 335.205, Sec. 335.207, Sec. 335.210, Sec. 335.212,
Sec. 335.213, Sec. 335.214, Sec. 335.220, Sec. 335.221, Sec. 335.222,
Sec. 335.301, Sec. 335.309a, Sec. 335.310, Sec. 335.312, Sec. 335.321,
Sec. 335.330, Sec. 335.331, and Sec. 335.622. The most significant of
these revisions relate to executive compensation disclosure, small
business initiatives, and communications among shareholders. The
revisions remove Sec. 335.221, eliminating Form F-6--Form For Statement
In Election Contests. The previous disclosure requirements of the Form
F-6 are now included in Form F-5 (Sec. 335.212). The requirement to
file Form F-6A--Notice Of Exempt Solicitation (Sec. 335.222), is also
added. It is estimated that, relative to the final rule, the aggregate
effect of all changes in burden is de minimis and that the changes
counterbalance each other.
The total estimated reporting burden for all collections of
information in this final regulation is summarized as follows:
Number of Respondents: 4,368
Number of Responses Per Respondent: 1.42
Total Annual Responses: 6,214
Hours Per Response: 8.89
Total Annual Burden Hours: 55,276
Comments on the accuracy of the burden estimate, and suggestions
for reducing the burden, should be directed to the Office of Management
and Budget, Paperwork Reduction Project (3064-0030), Washington, DC
20503, with copies of such comments to Steven F. Hanft, Office of the
Executive Secretary, room F-400, 550 17th Street, NW., Washington, DC
20429.
Cost Benefit Analysis
These amendments will significantly reduce the costs and burdens
that have been imposed on ``small business issuers'', those who wish to
communicate with shareholders, and others regarding management
performance and matters submitted to a shareholder vote. Costs will
also be reduced by the changes to the proxy statement delivery
requirements. The amendments should result in cash and manpower savings
for ``small business issuers'' and all those who will no longer be
required to prepare and file proxy materials with the FDIC pursuant to
the new exemptions for solicitations not seeking proxy authority. Even
those who will be required to submit a Notice of Exempt Solicitation
(new Form F-6A) will have a significantly reduced compliance burden.
The amendments to the shareholder list provisions should not change
substantially the costs or burdens to either the bank registrant or the
requesting party. While some additional disclosure will be required
relative to executive compensation, stock performance, and tabulation
procedures and voting results, the overall cost resulting from these
changes to banks should be minimal and is outweighed in any event by
the benefits to shareholders and investors at large resulting from the
enhanced information.
Statutory Basis
The revisions to the FDIC's rules under sections 12, 13, 14(a),
14(c), 14(d), 14(f) and 16 of the Exchange Act, are being adopted by
the FDIC pursuant to Exchange Act section 12(i).
List of Subjects in 12 CFR Part 335
Accounting, Banks, banking, Confidential business information,
Reporting and recordkeeping requirements, Securities.
Text of Final Rules
In accordance with the foregoing, Part 335 of chapter III of title
12 of the Code of Federal Regulations is amended as follows:
PART 335--SECURITIES OF NONMEMBER INSURED BANKS
1. The authority citation for part 335 continues to read as
follows:
Authority: Sec. 12(i) of the Securities Exchange Act of 1934, as
amended (15 U.S.C. 78l(i)).
2. Section 335.102 is amended by revising the first sentence of
paragraph (y); by redesignating paragraphs (oo), (pp), (qq), (rr) and
(ss) as paragraphs (pp), (qq), (rr), (ss) and (tt); by adding a new
paragraph (oo); and by republishing newly designated paragraph (pp)
introductory text and revising newly designated paragraph (pp)(3) to
read as follows:
Sec. 335.102 Definitions.
* * * * *
(y) The term officer or principal officer or executive officer
means Chairman of the Board of Directors, Vice Chairman of the Board,
Chairman of the Executive Committee, President, Vice President (except
as indicated in the next sentence), Cashier, Treasurer, Secretary,
Comptroller, and any other person who participates in major
policymaking functions of the bank. * * *
* * * * *
(oo) The term Small Business Issuer shall be defined in the same
manner as currently defined in 17 CFR 240.12b-2.
(pp) The terms solicit and solicitation mean:
* * * * *
(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:
(i) The furnishing of a form of proxy to a security holder upon the
unsolicited request of such security holder;
(ii) The performance by the bank of acts required by Sec. 335.210;
(iii) The performance by any person of ministerial acts on behalf
of a person soliciting a proxy; or
(iv) A communication by a security holder who does not otherwise
engage in a proxy solicitation (other than a solicitation exempt under
Sec. 335.202) stating how the security holder intends to vote and the
reasons therefore, provided that the communication:
(A) Is made by means of speeches in public forums, press releases,
published or broadcast opinions, statements, or advertisements
appearing in a broadcast media, or newspaper, magazine or other bona
fide publication disseminated on a regular basis;
(B) Is directed to persons to whom the security holder owes a
fiduciary duty in connection with the voting of securities of a bank
held by the security holder; or
(C) Is made in response to unsolicited requests for additional
information with respect to a prior communication by the security
holder made pursuant to this paragraph (oo)(3)(iv).
* * * * *
3. Section 335.201 is amended by revising the reference ``(See 12
CFR 335.102 (gg) and (oo))'' in paragraph (a) to read ``(See 12 CFR
335.102 (gg) and (pp))''; and adding paragraph (d) to read as follows:
Sec. 335.201 Requirement of statement.
* * * * *
(d) The provisions of paragraph (a) of this section shall not apply
to a communication made by means of speeches in public forums, press
releases, published or broadcast opinions, statements, or
advertisements appearing in a broadcast media, newspaper, magazine or
other bona fide publication disseminated on a regular basis, provided
that:
(1) No form of proxy, consent or authorization or means to execute
the same is provided to a security holder in connection with the
communication; and
(2) At the time the communication is made, a definitive proxy
statement is on file with the FDIC pursuant to Sec. 335.204(c).
4. Section 335.202 is amended by revising the introductory text;
adding new paragraph (f); and removing the Note at the end of the
section to read as follows:
Sec. 335.202 Exceptions.
The requirements of this subpart (except Secs. 335.204(l), 335.206,
and 335.210) shall not apply to the following:
* * * * *
(f) Any solicitation by or on behalf of any person who does not, at
any time during such solicitation, seek directly or indirectly, either
on its own or another's behalf, the power to act as proxy for a
security holder and does not furnish or otherwise request, or act on
behalf of a person who furnishes or requests, a form of revocation,
abstention, consent or authorization. Provided, however, that the
exemption set forth in this paragraph shall not apply to:
(1) The bank or an affiliate or associate of the bank (other than
an officer or director or any person serving in a similar capacity);
(2) An officer or director of the bank or any person serving in a
similar capacity engaging in a solicitation financed directly or
indirectly by the bank;
(3) An officer, director, affiliate or associate of a person that
is ineligible to rely on the exemption set forth in this paragraph
(other than persons specified in paragraph (b)(1)(i) of this section),
or any person serving in a similar capacity;
(4) Any nominee for whose election as a director proxies are
solicited;
(5) Any person soliciting in opposition to a merger,
recapitalization, reorganization, sale of assets or other extraordinary
transaction recommended or approved by the board of directors of the
bank who is proposing or intends to propose an alternative transaction
to which such person or one of its affiliates is a party;
(6) Any person who is required to report beneficial ownership of
the bank's equity securities on a Form F-11 [Sec. 335.407], unless such
person has filed a Form F-11 and has not disclosed pursuant to Item 4
thereto an intent, or reserved the right, to engage in a control
transaction, or any contested solicitation for the election of
directors;
(7) Any person who receives compensation from an ineligible person
directly related to the solicitation of proxies, other than pursuant to
Sec. 335.203(c);
(8) Any person who, because of a substantial interest in the
subject matter of the solicitation, is likely to receive a benefit from
a successful solicitation that would not be shared pro rata by all
other holders of the same class of securities, other than a benefit
arising from the person's employment with the bank; and
(9) Any person acting on behalf of any of the foregoing in
paragraphs (f) (1) through (8) of this section.
5. Section 335.203 is amended by adding a ``Note to Small Business
Issuers'' following the introductory text of paragraph (a); and
removing paragraph (c) and Instructions 1, 2 and 3 following paragraph
(c) to read as follows:
Sec. 335.203 Annual report to security holders to accompany
statements.
(a) * * *
Note to Small Business Issuers: A ``small business issuer'', as
defined under 17 CFR 240.12b-2 has the option of providing financial
and other item disclosure in conformance with Regulation S-B of the
Securities and Exchange Commission (17 CFR Part 228) in lieu of the
disclosure requirements set forth by paragraphs (a)(1) and (a)(3)
through (a)(8) of this section. If there is no comparable disclosure
requirement in Regulation S-B, a small business issuer need not
provide the information requested. The definition of ``small
business issuer'', generally includes banks with annual revenues of
less than $25 million, whose voting stock does not have a public
float of $25 million or more.
* * * * *
6. Section 335.204 is amended by revising paragraph (f); revising
the reference ``Sec. 335.220(e)'' to read ``Sec. 335.220(c)'' in each
place it appears in paragraph (h); and adding new paragraph (l), to
read as follows:
Sec. 335.204 Material required to be filed.
* * * * *
(f)(1) All copies of preliminary proxy statements and forms of
proxy filed pursuant to paragraph (a) of this section shall be clearly
marked ``Preliminary Copies'', and shall be deemed immediately
available for public inspection unless confidential treatment is
obtained pursuant to paragraph (f)(2) of this section.
(2) If action is to be taken with respect to any matter specified
in Item 12 of Form F-5, all copies of the preliminary proxy statement
and form of proxy filed pursuant to paragraph (a) of this section shall
be for the information of the FDIC only and shall not be deemed
available for public inspection until filed with the FDIC in definitive
form, provided that:
(i) The proxy statement does not relate to a matter or proposal
subject to Sec. 335.409; and
(ii) The filed material is marked ``Confidential, For Use of the
FDIC Only''. In any and all cases, such material may be disclosed to
any department or agency of the United States Government and to the
Congress, and the FDIC may make such inquiries or investigation in
regard to the material as may be necessary for an adequate review
thereof by the FDIC.
* * * * *
(l) Solicitations subject to Sec. 335.202(f). (1) Any person who:
(i) Engages in a solicitation pursuant to Sec. 335.202(f); and
(ii) At the commencement of that solicitation owns beneficially
securities of the class which is the subject of the solicitation with a
market value of over Sec. 5 million, shall furnish or mail to the FDIC,
not later than three days after the date the written solicitation is
first sent or given to any security holder, three copies of a statement
containing the information specified in the Notice of Exempt
Solicitation (Form F-6A, Sec. 335.222) which statement shall attach as
an exhibit all written soliciting materials. Three copies of an
amendment to such statement shall be furnished or mailed to the FDIC,
in connection with dissemination of any additional communications, not
later than three days after the date the additional material is first
sent or given to any security holder. Three copies of the Notice of
Exempt Proxy Solicitation and amendments thereto shall, at the same
time the materials are furnished or mailed to the FDIC, be furnished or
mailed to each national securities exchange upon which any class of
securities of the bank is listed and registered.
(2) Notwithstanding paragraph (l)(1) of this section, no such
submission need be made with respect to oral solicitations (other than
with respect to scripts used in connection with such oral
solicitations), speeches delivered in a public forum, press releases,
published or broadcast opinions, statements, and advertisements
appearing in a broadcast media, or a newspaper, magazine or other bona
fide publication disseminated on a regular basis.
7. Section 335.205 is amended by revising paragraphs (a)(3) and
(a)(4) to read as follows:
Sec. 335.205 Solicitation prior to furnishing required proxy
statement.
(a) * * *
(3) The identity of the participants in the solicitation (as
defined in Instruction 3 to Item 3 of Form F-5 (Sec. 335.212)) and a
description of their interests direct or indirect, by security holdings
or otherwise, are set forth in each communication published, sent or
given to security holders in connection with the solicitation; and
(4) A written proxy statement meeting the requirements of this
regulation is sent or given to security holders solicited pursuant to
this section at the earliest practicable date.
* * * * *
8. Section 335.207 is amended by revising paragraph (a); revising
the first sentence of paragraph (b)(1); redesignating paragraph (d)
introductory text and paragraphs (d)(1) through (d)(4) as paragraph
(d)(1) introductory text and paragraphs (d)(1)(i) through (d)(1)(iv);
republishing newly designated paragraph (d)(1) introductory text;
designating paragraph (d) concluding text as paragraph (d)(2) and
revising it; and adding a new paragraph (f), to read as follows:
Sec. 335.207 Requirements as to proxy.
(a) The form of proxy:
(1) Shall indicate in bold-face type whether or not the proxy is
solicited on behalf of the bank's board of directors or, if provided
other than by a majority of the board of directors, shall indicate in
bold face type the identity of the persons on whose behalf the
solicitation is made;
(2) Shall provide a specifically designated blank space for dating
the proxy; and
(3) Shall identify clearly and impartially each separate matter
intended to be acted upon, whether or not related to or conditioned on
the approval of other matters, and whether proposed by the bank or by
security holders. No reference need be made, however, to matters as to
which discretionary authority is conferred under paragraph (c) of this
section.
(b)(1) Means shall be provided in the form of proxy whereby the
person solicited is afforded an opportunity to specify by boxes a
choice between approval or disapproval of, or abstention with respect
to each separate matter referred to therein as intended to be acted
upon, other than elections to office. * * *
* * * * *
(d)(1) No proxy shall confer authority:
* * * * *
(2) A person shall not be deemed to be a bona fide nominee and he
shall not be named as such unless he has consented to being named in
the proxy statement and to serve if elected. Provided, however, that
nothing in this section shall prevent any person soliciting in support
of nominees who, if elected, would constitute a minority of the board
of directors, from seeking authority to vote for nominees named in the
bank's proxy statement, so long as the soliciting party:
(i) Seeks authority to vote in the aggregate for the number of
director positions then subject to election;
(ii) Represents that it will vote for all the bank nominees, other
than those bank nominees specified by the soliciting party;
(iii) Provides the security holder an opportunity to withhold
authority with respect to any other bank nominee by writing the name of
that nominee on the form of proxy; and
(iv) States on the form of proxy and in the proxy statement that
there is no assurance that the bank's nominees will serve if elected
with any of the soliciting party's nominees.
* * * * *
(f) No person conducting a solicitation subject to this subpart B
shall deliver a form of proxy, consent or authorization to any security
holder unless the security holder concurrently receives, or has
previously received, a definitive proxy statement that has been filed
with, or mailed for filing to, the FDIC pursuant to Sec. 335.204(c).
9. Section 335.210 is revised to read as follows:
Sec. 335.210 Obligations of banks to provide a list of, or mail
soliciting material to, security holders.
(a) If the bank has made or intends to make a proxy solicitation in
connection with a security holder meeting, upon the written request by
any record or beneficial holder of securities of the class entitled to
vote at the meeting to provide a list of security holders or to mail
the requesting security holder's materials, regardless of whether the
request references this section, the bank shall:
(1) Deliver to the requesting security holder within five business
days after receipt of the request:
(i) Notification as to whether the bank has elected to mail the
security holder's soliciting materials or provide a security holder
list if the election under paragraph (b) of this section is to be made
by the bank;
(ii) A statement of the approximate number of record holders and
beneficial holders, separated by type of holder and class, owning
securities in the same class or classes as holders which have been or
are to be solicited on management's behalf, or any more limited group
of such holders designated by the security holder if available or
retrievable under the bank's or its transfer agent's security holder
data systems; and
(iii) The estimated cost of mailing a proxy statement, form of
proxy or other communication to such holders, including to the extent
known or reasonably available, the estimated costs of any bank, broker,
and similar person through whom the bank has solicited or intends to
solicit beneficial owners in connection with the security holder
meeting or action;
(2) Perform the acts set forth in either paragraphs (a)(2)(i) or
(a)(2)(ii) of this section, at the bank's or requesting security
holder's option, as specified in paragraph (b) of this section:
(i) Mail copies of any proxy statement, form of proxy or other
soliciting material furnished by the security holder to the record
holders, including banks, brokers, and similar entities, designated by
the security holder. A sufficient number of copies must be mailed to
the banks, brokers and similar entities for distribution to all
beneficial owners designated by the security holder. The bank shall
mail the security holder material with reasonable promptness after
tender of the material to be mailed, envelopes or other containers
therefor, postage or payment for postage and other reasonable expenses
of effecting such mailing. The bank shall not be responsible for the
content of the material; or
(ii) Deliver the following information to the requesting security
holder within five business days of receipt of the request: A
reasonably current list of the names, addresses and security positions
of the record holders, including banks, brokers and similar entities,
holding securities in the same class or classes as holders which have
been or are to be solicited on management's behalf, or any more limited
group of such holders designated by the security holder if available or
retrievable under the bank's or its transfer agent's security holder
data systems; the most recent list of names, addresses and security
positions of beneficial owners as specified in Sec. 335.214(b), in the
possession, or which subsequently comes into the possession, of the
bank. All security holder list information shall be in the form
requested by the security holder to the extent that such form is
available to the bank without undue burden or expense. The bank shall
furnish the security holder with updated record holder information on a
daily basis or, if not available on a daily basis, at the shortest
reasonable intervals, provided, however, the bank need not provide
beneficial or record holder information more current than the record
date for the meeting or action.
(b) If the bank is soliciting or intends to solicit with respect to
a proposal that is subject to Sec. 335.409, the requesting security
holder shall have the option set forth in paragraph (a)(2) of this
section. With respect to all other requests pursuant to this section,
the bank shall have the option to either mail the security holder's
material or furnish the security holder list as set forth in paragraph
(a)(2) of this section.
(c) At the time of a list request, the security holder making the
request shall:
(1) If holding the bank's securities through a nominee, provide the
bank with a statement by the nominee or other independent third party,
or a copy of a current filing made with the FDIC and furnished to the
bank, confirming such holder's beneficial ownership; and
(2) Provide the bank with an affidavit, declaration, affirmation or
other similar document provided for under applicable state law
identifying the proposal or other corporate action that will be the
subject of the security holder's solicitation or communication and
attesting that:
(i) The security holder will not use the list information for any
purpose other than to solicit security holders with respect to the same
meeting or action by consent or authorization for which the bank is
soliciting or intends to solicit or to communicate with security
holders with respect to a solicitation commenced by the bank; and
(ii) The security holder will not disclose such information to any
person other than a beneficial owner for whom the request was made and
an employee or agent to the extent necessary to effectuate the
communication or solicitation.
(d) The security holder shall not use the information furnished by
the bank pursuant to paragraph (a)(2)(ii) of this section for any
purpose other than to solicit security holders with respect to the same
meeting for which the bank is soliciting or intends to solicit or to
communicate with security holders with respect to a solicitation
commenced by the bank; or disclose such information to any person other
than an employee, agent, or beneficial owner for whom a request was
made to the extent necessary to effectuate the communication or
solicitation. The security holder shall return the information provided
pursuant to paragraph (a)(2)(ii) of this section and shall not retain
any copies thereof or of any information derived from such information
after the termination of the solicitation.
(e) The security holder shall reimburse the reasonable expenses
incurred by the bank in performing the acts requested pursuant to
paragraph (a) of this section.
10. Section 335.212 is amended by adding in Form F-5 Proxy
Statement ``Note to Small Business Issuers'' after ``General
Instructions''; revising paragraph (a)(2) in Item 3, and adding
Instruction 3 to Item 3; revising paragraphs (a)(2) and (b) in Item 4,
and adding an instruction at the end of Item 4; revising the text
preceding the table in paragraph (d)(2) in Item 5; revising paragraph
(a) in Item 7; removing paragraphs (b), (c), (d), (e), and (h), and all
instructions and general instructions to paragraphs (a), (b), (c), (d),
(e), and (h) in Item 7, and redesignating paragraphs (f), (g), and (i)
of Item 7 as paragraphs (b), (c), and (d) respectively; revising Item
9, the instructions to Item 9 and Item 18; and removing the ``Option
Disclosure Instruction'' and the following option disclosure table
along with notes thereto, which follow Item 21, to read as follows:
Sec. 335.212 Form for proxy statement (Form F-5).
Form F-5--Proxy Statement General Instructions
* * * * *
Note to Small Business Issuers: a ``small business issuer'', as
defined under 17 CFR 240.12b-2 has the option of providing financial
and other item disclosure in conformance with Regulation S-B of the
Securities and Exchange Commission (17 CFR Part 228) in lieu of the
disclosure requirements set forth in this section by Item 4,
paragraph (b)(1)(xi); Item 5, paragraph (d); Item 6, paragraphs (a)
through (d): Item 7, paragraphs (a) and (c); Item 8, paragraph (c);
Item 10, paragraph (b); Item 12, paragraphs (a)(3)(vi), (a)(5),
(a)(6), (a)(7), (b)(1) through (b)(8), (c)(1) through (c)(4), and
(e); and Item 13. If there is no comparable disclosure requirement
in Regulation S-B, a small business issuer need not provide the
information requested. The definition of ``small business issuer'',
generally includes banks with annual revenues of less than $25
million, whose voting stock does not have a public float of $25
million or more.
Information Required in Statement
* * * * *
Item 3--Persons Making the Solicitation
(a) * * *
(2) If the solicitation is made otherwise than by the bank, so
state and give the names of the participants in the solicitation, as
defined in paragraphs (a)(iii), (iv), (v) and (vi) of Instruction 3
to this item.
* * * * *
Instructions. * * *
3. For purposes of this Item 3 and Item 4 of this Form F-5:
(a) The terms ``participant'' and ``participant in a
solicitation'' include the following:
(i) The bank;
(ii) Any director of the bank, and any nominee for whose
election as a director proxies are solicited;
(iii) Any committee or group which solicits proxies, any member
of such committee or group, and any person whether or not named as a
member who, acting alone or with one or more other persons, directly
or indirectly takes the initiative, or engages, in organizing,
directing, or arranging for the financing of any such committee or
group;
(iv) Any person who finances or joins with another to finance
the solicitation of proxies, except persons who contribute not more
than $500 and who are not otherwise participants;
(v) Any person who lends money or furnishes credit or enters
into any other arrangements, pursuant to any contract or
understanding with a participant, for the purpose of financing or
otherwise inducing the purchase, sale, holding or voting of
securities of the bank by any participant or other persons, in
support of or in opposition to a participant; except that such terms
do not include a bank, broker or dealer who, in the ordinary course
of business, lends money or executes orders for the purchase or sale
of securities and who is not otherwise a participant; and
(vi) Any person who solicits proxies.
(b) The terms ``participant'' and ``participant in a
solicitation'' do not include:
(i) Any person or organization retained or employed by a
participant to solicit security holders and whose activities are
limited to the duties required to be performed in the course of such
employment;
(ii) Any person who merely transmits proxy soliciting material
or performs other ministerial or clerical duties;
(iii) Any person employed by a participant in the capacity of
attorney, accountant, or advertising, public relations or financial
adviser, and whose activities are limited to the duties required to
be performed in the course of such employment;
(iv) Any person regularly employed as an officer or employee of
the bank or any of its subsidiaries who is not otherwise a
participant; or
(v) Any officer or director of, or any person regularly employed
by, any other participant, if such officer, director or employee is
not otherwise a participant.
Item 4--Interest of Certain Persons in Matters To Be Acted Upon
(a) * * *
(2) If the solicitation is made otherwise than on behalf of the
bank, each participant in the solicitation, as defined in paragraphs
(a)(iii), (iv), (v), and (vi) of Instruction 3 to Item 3 of this
Form F-5.
* * * * *
(b) Solicitations subject to Sec. 335.220.
(1) Describe briefly any substantial interest, direct or
indirect, by security holdings or otherwise, of each participant as
defined in paragraphs (a)(ii), (iii), (iv), (v) and (vi) of
Instruction 3 to Item 3 of this Form F-5, in any matter to be acted
upon at the meeting, and include with respect to each participant
the following information, or a fair and accurate summary thereof:
(i) Name and business address of the participant.
(ii) The participant's present principal occupation or
employment and the name, principal business and address of any
corporation or other organization in which such employment is
carried on.
(iii) State whether or not, during the past ten years, the
participant has been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors) and, if so, give dates,
nature of conviction, name and location of court, and penalty
imposed or other disposition of the case. A negative answer need not
be included in the proxy statement or other soliciting material.
(iv) State the amount of each class of securities of the bank
which the participant owns beneficially, directly or indirectly.
(v) State the amount of each class of securities of the bank
which the participant owns of record but not beneficially.
(vi) State with respect to all securities of the bank purchased
or sold within the past two years, the dates on which they were
purchased or sold and the amount purchased or sold on each such
date.
(vii) If any part of the purchase price or market value of any
of the shares specified in paragraph (b)(1)(vi) of this item is
represented by funds borrowed or otherwise obtained for the purpose
of acquiring or holding such securities, so state and indicate the
amount of the indebtedness as of the latest practicable date. If
such funds were borrowed or obtained otherwise than pursuant to a
margin account or bank loan in the regular course of business of a
bank, broker or dealer, briefly describe the transaction, and state
the names of the parties.
(viii) State whether or not the participant is, or was within
the past year, a party to any contract, arrangements or
understandings with any person with respect to any securities of the
bank, including, but not limited to joint ventures, loan or option
arrangements, puts or calls, guarantees against loss or guarantees
of profit, division of losses or profits, or the giving or
withholding of proxies. If so, name the parties to such contracts,
arrangements or understandings and give the details thereof.
(ix) State the amount of securities of the bank owned
beneficially, directly or indirectly, by each of the participant's
associates and the name and address of each such associate.
(x) State the amount of each class of securities of any parent
or subsidiary of the bank which the participant owns beneficially,
directly or indirectly.
(xi) Furnish for the participant and associates of the
participant the information required by Sec. 335.212, Item 7(c).
(xii) State whether or not the participant or any associates of
the participant have any arrangement or understanding with any
person--
(A) With respect to any future employment by the bank or its
affiliates; or
(B) With respect to any future transactions to which the bank or
any of its affiliates will or may be a party. If so, describe such
arrangement or understanding and state the names of the parties
thereto.
(2) With respect to any person, other than a director or
executive officer of the bank acting solely in that capacity, who is
a party to an arrangement or understanding pursuant to which a
nominee for election as director is proposed to be elected, describe
any substantial interest, direct or indirect, by security holdings
or otherwise, that such person has in any matter to be acted upon at
the meeting, and furnish the information called for by paragraphs
(b)(1) (xi) and (xii) of this item.
Instruction: For purposes of this Item 4, beneficial ownership
shall be determined in accordance with Sec. 335.403.
Item 5--Voting Securities and Principal Holders Thereof
* * * * *
(d) * * *
(2) Security ownership of management. Furnish the following
information, as of the most recent practicable date, in
substantially the tabular form indicated, as to each class of equity
securities of the bank or any of its parents or subsidiaries other
than directors' qualifying shares, beneficially owned by all
directors and nominees, naming them, each of the named executive
officers as defined in 17 CFR 229.402(a)(3), and directors and
executive officers of the bank as a group, without naming them. Show
in column (3) the total number of shares beneficially owned and in
column (4) the percent of class so owned. Of the number of shares
shown in column (3), indicate, by footnote or otherwise, the amount
of shares with respect to which such persons have a right to acquire
beneficial ownership as specified in Sec. 335.403(d)(1).
* * * * *
Item 7--Compensation and Other Transactions With Management and
Others
* * * * *
(a) Compensation of directors and executive officers. Furnish
the information required by the applicable and currently effective
SEC regulations contained in Item 8 of SEC Schedule 14A (17 CFR
240.14a-101, Item 8).
* * * * *
Item 9--Compensation Plans
If action is to be taken with respect to any plan pursuant to
which cash or noncash compensation may be paid or distributed,
furnish the following information:
(a) Plans subject to security holder action.
(1) Describe briefly the material features of the plan being
acted upon, identify each class of persons who will be eligible to
participate therein, indicate the approximate number of persons in
each such class, and state the basis of such participation.
(2)(i) In the tabular format specified below, disclose the
benefits or amounts that will be received by or allocated to each of
the following under the plan being acted upon, if such benefits or
amounts are determinable:
New Plan Benefits
Plan Name
------------------------------------------------------------------------
Dollar No. of
Name and position value ($) units
------------------------------------------------------------------------
CEO............................................... ......... .........
A................................................. ......... .........
B................................................. ......... .........
C................................................. ......... .........
D................................................. ......... .........
Executive Group................................... ......... .........
Non-Executive Director Group...................... ......... .........
Non-Executive Officer Employee Group.............. ......... .........
------------------------------------------------------------------------
Instruction to New Plan Benefits Table
Additional columns should be added for each plan with respect to
which security holder action is to be taken.
(ii) The table required by paragraph (a)(2)(i) of this item
shall provide information as to the following persons:
(A) Each person (stating name and position) specified in 17 CFR
229.402(a)(3);
(B) All current executive officers as a group;
(C) All current directors who are not executive officers as a
group; and
(D) All employees, including all current officers who are not
executive officers, as a group.
(iii) If the benefits or amounts specified in paragraph
(a)(2)(i) of this item are not determinable, state the benefits or
amounts which would have been received by or allocated to each of
the following for the last completed fiscal year if the plan had
been in effect, if such benefits or amounts may be determined, in
the table specified in paragraph (a)(2)(i) of this item:
(A) Each person (stating name and position) specified in 17 CFR
229.402(a)(3);
(B) All current executive officers as a group;
(C) All current directors who are not executive officers as a
group; and
(D) All employees, including all current officers who are not
executive officers, as a group.
(3) If the plan to be acted upon can be amended, otherwise than
by a vote of security holders, to increase the cost thereof to the
bank or to alter the allocation of the benefits as between the
persons and groups specified in paragraph (a)(2) of this item, state
the nature of the amendments which can be so made.
(b) Additional information regarding specified plans subject to
security holder action.
(1) With respect to any pension or retirement plan submitted for
security holder action, state:
(i) The approximate total amount necessary to fund the plan with
respect to past services, the period over which such amount is to be
paid and the estimated annual payments necessary to pay the total
amount over such period; and
(ii) The estimated annual payment to be made with respect to
current services. In the case of a pension or retirement plan,
information called for by paragraph (a)(2) of this item may be
furnished in the format specified by 17 CFR 229.402(f)(1).
(2)(i) With respect to any specific grant of or any plan
containing options, warrants or rights submitted for security holder
action, state:
(A) The title and amount of securities underlying such options,
warrants or rights;
(B) The prices, expiration dates and other material conditions
upon which the options, warrants or rights may be exercised;
(C) The consideration received or to be received by the bank or
subsidiary for the granting or extension of the options, warrants or
rights;
(D) The market value of the securities underlying the options,
warrants, or rights as of the latest practicable date; and
(E) In the case of options, the federal income tax consequences
of the issuance and exercise of such options to the recipient and
the bank; and
(ii) State separately the amount of such options received or to
be received by the following persons if such benefits or amounts are
determinable:
(A) Each person (stating name and position) specified in 17 CFR
229.402(a)(3);
(B) All current executive officers as a group;
(C) All current directors who are not executive officers as a
group;
(D) Each nominee for election as a director;
(E) Each associate of any of such directors, executive officers
or nominees;
(F) Each other person who received or is to receive 5 percent of
such options, warrants or rights; and
(G) All employees, including all current officers who are not
executive officers, as a group.
Instructions to Item 9.
1. The term ``plan'' as used in this item means any plan as
defined in 17 CFR 229.402(a)(7)(ii).
2. If action is to be taken with respect to a material amendment
or modification of an existing plan, the item shall be answered with
respect to the plan as proposed to be amended or modified and shall
indicate any material differences from the existing plan.
3. If the plan to be acted upon is set forth in a written
document, three copies thereof shall be filed with the FDIC at the
time copies of the proxy statement and form of proxy are first filed
pursuant to Sec. 335.204(a).
4. Paragraph (b)(2)(ii) of this item does not apply to warrants
or rights to be issued to security holders as such on a pro rata
basis.
* * * * *
Item 18. Voting Procedures
As to each matter which is to be submitted to a vote of security
holders, furnish the following information:
(a) State the vote required for approval or election, other than
for the approval of auditors.
(b) Disclose the method by which votes will be counted,
including the treatment and effect of abstentions and broker non-
votes under applicable state law as well as bank charter and by-law
provisions.
* * * * *
11. Section 335.213 is amended by adding 2 paragraphs of text to
follow the existing text in the Note preceding Item 1 to read as
follows:
Sec. 335.213 Form for information statement (Form F-5A).
Form F-5A--Information Statement
Note: * * *
Except as otherwise specifically provided, where any item calls
for information for a specified period in regard to directors,
officers or other persons holding specified positions or
relationships, the information shall be given in regard to any
person who held any of the specified positions or relationships at
any time during the period. However, information need not be
included for any portion of the period during which such person did
not hold any such position or relationship provided a statement to
that effect is made.
Small Business Issuers: A ``small business issuer'', as defined
under 17 CFR 240.12b-2 has the option of providing financial and
other item disclosure in conformance with Regulation S-B of the
Securities and Exchange Commission (17 CFR Part 228) in lieu of the
following referenced disclosure requirements set forth in
Sec. 335.212 Item 4(b)(1)(xi); Item 5, paragraph (d); Item 6,
paragraphs (a) through (d); Item 7, paragraphs (a) and (c); Item 8,
paragraph (c); Item 10, paragraph (b); Item 12, paragraphs
(a)(3)(vi), (a)(5), (a)(6), (a)(7), (b)(1) through (b)(8), (c)(1)
through (c)(4), and (e); and Item 13. If there is no comparable
disclosure requirement in Regulation S-B, a small business issuer
need not provide the information requested. The definition of
``small business issuer'', generally includes banks with annual
revenues of less than $25 million, whose voting stock does not have
a public float of $25 million or more.
* * * * *
12. Section 335.214 is amended by revising the introductory text in
paragraph (a); by revising paragraphs (a)(1)(i)(A), (a)(3), (a)(4),
(a)(5), Note 2 and Note 3 to paragraph (a), paragraph (d), and adding a
new Note 4 to paragraph (a); by revising the reference ``17 CFR
240.14b-1(c) or 17 CFR 240.14b-2(e) (2) and (3)'' in paragraph
(a)(1)(i)(C) to read ``17 CFR 240.14b-1(b)(3) or 17 CFR 240.14b-2(b)(4)
(ii) and (iii)''; by revising the reference ``17 CFR 240.14b-1(c) and
17 CFR 240.14b-2(e) (2) and (3)'' in paragraph (a)(1)(ii)(A), the
introductory text to paragraph (b), and paragraph (c) to read ``17 CFR
240.14b-1(b)(3) and 17 CFR 240.14b-2(b)(4) (ii) and (iii)''; by
revising the reference ``17 CFR 240.14b-2(a)(1)'' to read ``17 CFR
240.14b-2(b)(1)(i)'' in paragraph (a)(2); and by revising the reference
``17 CFR 240.14b-2(e)(1)'' to read ``17 CFR 240.14b-2(b)(4)(i)'' in
paragraph (b)(1) to read as follows:
Sec. 335.214 Obligation of banks in communicating with beneficial
owners.
(a) If the bank knows that securities of any class entitled to vote
at a meeting are held of record by a broker, dealer, bank, association
or other entity that exercises fiduciary powers in nominee name or
otherwise, the bank shall:
(1) * * *
(i) * * *
(A) Whether other persons are the beneficial owners of such
securities, and if so, the number of copies of the proxy and other
soliciting material (or if applicable, the number of copies of the
information statement) necessary to supply such material to such
beneficial owners.
* * * * *
(3)(i) Make the inquiry required by paragraph (a)(1) of this
section:
(A) If the bank intends to solicit proxies, consents or
authorizations:
(1) At least 20 business days prior to the record date of the
meeting of security holders; or
(2) If such inquiry is impracticable 20 business days prior to the
record date of a special meeting, as many days before the record date
as practicable; or
(3) If consents or authorizations are solicited, and such inquiry
is impracticable 20 days before the earliest date on which they may be
used to effect corporate action, as many days before that date as is
practicable; or
(4) At such later time as the rules of a national securities
exchange on which the class of securities in question is listed may
permit for good cause shown; or
(B) If the bank does not intend to solicit proxies, consents or
authorizations, the earlier of:
(1) At least 20 business days prior to the record date of the
meeting of security holders or the record date of written consents in
lieu of a meeting; or
(2) At least 20 business days prior to the date the information
statement is required to be sent or given pursuant to Sec. 335.201(b).
(ii) Provided, however, that if a record holder or respondent bank
has informed the bank that a designated office(s) or department(s) is
to receive such inquiries, the inquiry shall be made to such designated
office(s) or department(s);
(4) Supply in a timely manner, each record holder and respondent
bank of whom the inquiries required by paragraphs (a)(1) and (a)(2) of
this section are made with copies of the proxy, other proxy soliciting
material (or if applicable, copies of the information statement), and/
or the annual report to security holders, in such quantities, assembled
in such form and at such place(s), as the record holder may reasonably
request in order to send such material to each beneficial owner of
securities who is to be furnished with such material by the record
holder or respondent bank; and
(5) Upon the request of any record holder or respondent bank that
is supplied with proxy soliciting material, information statements,
and/or annual reports to security holders pursuant to paragraph (a)(4)
of this section, pay its reasonable expenses for completing the mailing
of such material to beneficial owners.
* * * * *
Note 2: The attention of banks is called to the fact that each
broker, dealer, bank, association or other entity that exercises
fiduciary powers has an obligation under 17 CFR 240.14b-1 and 17 CFR
240.14b-2 (except as provided therein with respect to employee
benefit plan securities held in nominee name) and, with respect to
brokers and dealers, applicable self-regulatory requirements to
obtain and forward, within the time periods prescribed therein:
Proxies (or in lieu thereof requests for voting instructions) and
proxy soliciting materials (or if applicable, copies of the
information statement) to beneficial owners on whose behalf it holds
securities; and annual reports to security holders to beneficial
owners on whose behalf it holds securities, unless the bank has
notified the record holder or respondent bank that it has assumed
responsibility to mail such material to beneficial owners whose
names, addresses and securities positions are disclosed pursuant to
17 CFR 240.14b-1(b)(3) and 17 CFR 240.14b-2(b)(4)(ii) and (iii).
Note 3: The attention of banks is called to the fact that banks
have an obligation, pursuant to paragraph (d) of this section, to
cause proxies (or in lieu thereof requests for voting instructions),
proxy soliciting material (or if applicable, copies of the
information statement) and annual reports to security holders to be
furnished, in a timely manner, to beneficial owners of exempt
employee benefit plan securities.
Note 4: The requirement for sending an annual report to security
holders of record having the same address will be satisfied by
sending at least one report to a holder of record at that address
provided that those holders of record to whom the report is not sent
agree thereto in writing. This procedure is not available, however,
where banks, associations, other entities that exercise fiduciary
powers, brokers, dealers and other persons hold securities in
nominee accounts or ``street names'' on behalf of beneficial owners,
and such persons are not relieved of any obligation to obtain or
send such annual report to the beneficial owners.
* * * * *
(d) If a bank furnishes information statements to, or solicits
proxies, consents or authorizations from record holders and respondent
banks who hold securities on behalf of beneficial owners, the bank
shall cause proxies (or in lieu thereof requests for voting
instructions), proxy soliciting material (or if applicable, copies of
the information statement) and annual reports to security holders to be
furnished, in a timely manner, to beneficial owners of exempt employee
benefit plan securities.
13. Section 335.220 is amended by removing paragraphs (b) and (c)
and redesignating paragraphs (d) through (h) as paragraphs (b) through
(f), respectively; and revising newly redesignated paragraphs (b) and
(e), to read as follows:
Sec. 335.220 Special provisions applicable to election contests.
* * * * *
(b) Solicitations prior to furnishing required statement.
Notwithstanding the provisions of Sec. 335.201 a solicitation subject
to Sec. 335.220 may be made prior to furnishing security holders a
written statement containing the information specified in Form F-5 with
respect to such solicitation: Provided, That--
(1) No form of proxy is furnished to security holders prior to the
time the written proxy statement required by Sec. 335.201 is furnished
to security holders: Provided, however, that this paragraph (b)(1)
shall not apply where a proxy statement then meeting the requirements
of Form F-5 has been furnished to security holders by or on behalf of
the person making the solicitation;
(2) The identity of the participants in the solicitation (as
defined in Instruction 3 of Item 3 of Form F-5 (Sec. 335.212)) and a
description of their interests, direct or indirect, by security
holdings or otherwise, are set forth in each communication published,
sent or given to security holders in connection with the solicitation;
(3) A written proxy statement meeting the requirements of this
Subpart B is sent or given to security holders solicited pursuant to
this paragraph (b) at the earliest practicable date.
* * * * *
(e) Application of Sec. 335.204. The provisions of Sec. 335.204(c)
through (f) shall apply, to the extent pertinent, to soliciting
material subject to paragraphs (c) and (d) of this section.
* * * * *
Sec. 335.221 [Removed and Reserved]
14. Section 335.221 (Form F-6) is removed and reserved.
15. Section 335.222 (Form F-6A) is added to subpart B to read as
follows:
Sec. 335.222 Notice of Exempt Solicitation to be included in
statements submitted by or on behalf of a person pursuant to
Sec. 335.204(l) (Form F-6A).
Form F-6A--Notice of Exempt Solicitation
1. Name and address of the Bank:
----------------------------------------------------------------------
2. Name of person relying on exemption:
----------------------------------------------------------------------
3. Address of person relying on exemption:
----------------------------------------------------------------------
4. Written materials. Attach written material required to be
submitted pursuant to Sec. 335.204(l).
16. Section 335.301 is amended by revising the reference ``(27 CFR
249.220f)'' to read ``(17 CFR 249.220f)''; and adding a ``Note to Small
Business Issuers'' immediately following the existing text to read as
follows:
Sec. 335.301 Requirement of registration statement.
* * * * *
Note to Small Business Issuers: a ``small business issuer'', as
defined under 17 CFR 240.12b-2 has the option of providing the
disclosure required by SEC Form 10-SB, optional form for the
registration of securities of a small business issuer (17 CFR
249.210b), in lieu of the disclosure requirements set forth in Form
F-1 (Sec. 335.309a). The definition of ``small business issuer'',
generally includes banks with annual revenues of less than $25
million, whose voting stock does not have a public float of $25
million or more.
17. Section 335.309a (Form F-1) is amended by adding a new
paragraph immediately preceding the ``General Instructions'' portion of
Form F-1; revising Item 7 and Item 8; and revising paragraphs 7(b)(1),
7(b)(2) and 7(c) under the heading ``Instructions as to Exhibits'' at
the end of the section, to read as follows:
Sec. 335.309a Form for registration of securities of a bank under
section 12(b) or section 12(g) of the Securities Exchange Act of 1934
(Form F-1).
Form F-1
* * * * *
Indicate by check mark if the bank, as a ``small business
issuer'' as defined under 17 CFR 240.12b-2, is providing alternative
disclosures as permitted for small business issuers in this Form F-
1. [ ]
* * * * *
Item 7--Compensation of Directors and Executive Officers
Set forth the same information as is required to be furnished by
item 7(a) of Form F-5 (Sec. 335.212).
Item 8--Interest of Management and Others in Certain Transactions
Set forth the same information for the past three years, as is
required to be furnished by items 7(b), (c) and (d) of Form F-5
(Sec. 335.212).
Note: The information required by items 7(b), (c) and (d) of
Form F-5 need not be included for any nominee for election as a
director.
* * * * *
Instructions as to Exhibits
* * * * *
7. * * *
(b) * * *
(1) Directors, officers, promoters, voting trustees, or security
holders named in answer to item 5 are parties thereto except where
the contract merely involves purchase or sale of current assets
having a determinable market price, at such price.
(2) It calls for the acquisition or sale of fixed assets for a
consideration exceeding 15 percent of the value of all fixed assets
of the bank and its subsidiaries.
* * * * *
(c) Any management contract or any compensatory plan, contract
or arrangement, including but not limited to plans relating to
options, warrants or rights, pension, retirement or deferred
compensation or bonus, incentive or profit sharing (or if not set
forth in any formal document, a written description thereof) in
which any director or any of the named executive officers of the
bank, as defined by 17 CFR 229.402(a)(3), participates shall be
deemed material and shall be filed; and any other management
contract or any other compensatory plan, contract, or arrangement in
which any other executive officer of the bank participates shall be
filed unless immaterial in amount or significance except as follows:
Notwithstanding the above, any compensatory plan, contract, or
arrangement which pursuant to its terms is available to employees,
officers or directors generally and which in operation provides for
the same method of allocation of benefits between management and
nonmanagement participants.
* * * * *
18. Section 335.310 is amended by adding a ``Note to Small Business
Issuers'' immediately following paragraph (c) to read as follows:
Sec. 335.310 Requirement of annual reports and annual reports of
predecessors.
* * * * *
Note to Small Business Issuers: a ``small business issuer'', as
defined under 17 CFR 240.12b-2 has the option of providing the
disclosure required by SEC Form 10-KSB, optional form for annual and
transitional reports of small business issuers (17 CFR 249.310b), in
lieu of the disclosure requirements set forth in Form F-2
(Sec. 335.312). The definition of ``small business issuer'',
generally includes banks with annual revenues of less than $25
million, whose voting stock does not have a public float of $25
million or more.
19. Section 335.312 (Form F-2) is amended by adding a new paragraph
immediately following the second line entitled ``(Title of class)'' in
the introductory portion of Form F-2; adding to Item 11, new paragraph
(a)(3) to immediately precede the instruction to paragraph (a); and
revising paragraph (c)(3)(ii) of Item 11, to read as follows:
Sec. 335.312 Form for annual report of bank (Form F-2)
* * * * *
Indicate by check mark if the bank, as a ``small business
issuer'' as defined under 17 CFR 240.12b-2, is providing alternative
disclosures as permitted for small business issuers in this Form F-
2. [ ]
* * * * *
Item 11--Exhibits, Financial Statement Schedules, and Reports on
Form F-3
(a) * * *
(3) Those exhibits required by paragraph (c) of this Item 11.
Identify in the list each management contract or compensatory plan
or arrangement required to be filed as an exhibit to this form
pursuant to paragraph (c)(3)(ii) of this Item 11.
* * * * *
(c) * * *
(3) * * *
(ii) Any management contract or any compensatory plan, contract
or arrangement, including but not limited to plans relating to
options, warrants or rights, pension, retirement or deferred
compensation or bonus, incentive or profit sharing (or if not set
forth in any formal document, a written description thereof) in
which any director or any of the ``named executive officers'' of the
bank, as defined by 17 CFR 229.402(a)(3), participates shall be
deemed material and shall be filed; and any other management
contract or any other compensatory plan, contract, or arrangement in
which any other executive officer of the bank participates shall be
filed unless immaterial in amount or significance except as follows:
notwithstanding the above, any compensatory plan, contract, or
arrangement which pursuant to its terms is available to employees,
officers or directors generally and which in operation provides for
the same method of allocation of benefits between management and
nonmanagement participants.
* * * * *
20. Section 335.321 (Form F-3) is amended by revising paragraph (c)
and Instructions 3 and 4 of Item 9 to read as follows:
Sec. 335.321 Form for current report of a bank (Form F-3).
Form F-3.--Current Report
* * * * *
Item 9--Submission of Matters to a Vote of Security Holders.
* * * * *
(c) A brief description of each matter voted upon at the meeting
and state the number of votes cast for, against or withheld, as well
as the number of abstentions and broker non-votes, as to each such
matter, including a separate tabulation with respect to each nominee
for office.
* * * * *
Instructions:
* * * * *
3. Paragraph (b) need not be answered if: Proxies for the
meeting were solicited pursuant to subpart B of this part; there was
no solicitation in opposition to the management's nominees as listed
in the proxy statement; and all of such nominees were elected. If
the bank did not solicit proxies and the board of directors as
previously reported to the FDIC was reelected in its entirety, a
statement to that effect in answer to paragraph (b) will suffice as
an answer thereto.
4. Paragraph (c) must be answered for all matters voted upon at
the meeting, including both contested and uncontested elections of
directors.
* * * * *
21. Section 335.330 is amended by adding a ``Note to Small Business
Issuers'' at the end of the section to read as follows:
Sec. 335.330 Quarterly reports.
* * * * *
Note to Small Business Issuers: a ``small business issuer'', as
defined under 17 CFR 240.12b-2 has the option of providing the
disclosure required by SEC Form 10-QSB, optional form for quarterly
and transitional reports of small business issuers (17 CFR
249.310b), in lieu of the disclosure requirements set forth in Form
F-4 (Sec. 335.330). The definition of ``small business issuer'',
generally includes banks with annual revenues of less than $25
million, whose voting stock does not have a public float of $25
million or more.
22. Section 335.331 is amended by adding a new paragraph
immediately following the line entitled ``(Former name, former address
and former fiscal year, if changed since last report)'' in the
introductory portion of Form F-4 to read as follows:
Sec. 335.331 Form for quarterly report of a bank (Form F-4).
Form F-4
* * * * *
Indicate by check mark if the bank, as a ``small business
issuer'' as defined under 17 CFR 240.12b-2, is providing alternative
disclosures as permitted for small business issuers in this Form F-
4. [ ]
* * * * *
23. Section 335.622 is amended by revising paragraph (g)(1) to read
as follows:
Sec. 335.622 General notes to statement of income.
* * * * *
(g) Disclosure of selected quarterly financial data in notes to
financial statements--(1) Exemption. This paragraph (g) shall not apply
unless the bank meets the tests prescribed by 17 CFR 229.302(a)(5).
* * * * *
By Order of the Board of Directors.
Dated at Washington, DC, this 20th day of December, 1994.
Federal Deposit Insurance Corporation.
Robert E. Feldman,
Acting Executive Secretary.
[FR Doc. 94-31661 Filed 12-28-94; 8:45 am]
BILLING CODE 6714-01-P
