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FDIC Enforcement Decisions and Orders

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{{3-31-97 p.C-4016}}
   [11,173] In the Matter of Michael D. Johnson, Farmers and Merchants Bank, Dyer, Tenn., Docket Nos. 94-73e and 95-36b (5-11-95).

   Respondent prohibited from participating in the conduct of affairs of, or exercising voting rights in, any insured institution without the prior consent of the FDIC. (This order was terminated by order of the FDIC dated 12-20-96. See ¶16,138A.)

   [.1] Prohibition—Participation in Conduct of Affairs
   [.2] Prohibition—Exercise of Voting Rights

In the Matter of
MICHAEL D. JOHNSON
individually, and as
institution-affiliated party of
FARMERS AND MERCHANTS BANK
DYER, TENNESSEE
ORDER OF PROHIBITION
FROM FURTHER PARTICIPATION
AND TO CEASE AND DESIST

FDIC-94-73e
FDIC-95-36b

   Michael D. Johnson ("Respondent") has been advised of the right to receive a NOTICE OF INTENTION TO PROHIBIT FROM FURTHER PARTICIPATION AND TO CEASE AND DESIST ("NOTICE") issued by the Federal Deposit Insurance Corporation ("FDIC") detailing the alleged violations, unsafe or unsound banking practices, and/or breaches of fiduciary duty for which an ORDER OF PROHIBITION FROM FURTHER PARTICIPATION AND TO CEASE AND DESIST ("ORDER") may issue, and has been further advised of the right to a hearing on the alleged charges under sections 8(b) and 8(e) of the Federal Deposit Insurance Act ("Act"), 12 U.S.C. §§ 1818(b) and 1818(e), and the FDIC's Rules of Practice and Procedure, 12 C.F.R. Part 308. Having waived those rights, the Respondent entered into a STIPULATION AND CONSENT TO THE ISSUANCE OF AN ORDER OF PROHIBITION FROM FURTHER PARTICIPATION AND AN ORDER TO CEASE AND DESIST ("CONSENT AGREEMENT") with a representative of the Legal Division of the FDIC, whereby solely for the purpose of this proceeding and without admitting any violations, unsafe or unsound banking practices, unjust enrichment and/or any breaches of fiduciary duty, the Respondent consented to the issuance of an ORDER by the FDIC.
   The FDIC considered the matter and determined it had reason to believe that:
   (a) The Respondent has engaged or participated in violations, unsafe or unsound banking practices, and/or breaches of fiduciary duty as an institution-affiliated party of the Farmers and Merchants Bank, Dyer, Tennessee;
   (b) By reason of such violations, practices and/or breaches of fiduciary duty, the Bank has suffered or will probably suffer financial loss or other damage, the interests of the Bank's depositors have been or could be prejudiced and/or Respondent received financial gain or other benefit and/or has been unjustly enriched; and
   (c) Such violations, practices and/or breaches of fiduciary duty demonstrate the Respondent's willful and/or continuing disregard for the safety or soundness of the Bank.
   The FDIC further determined that such violations, practices and/or breaches of fiduciary duty demonstrate the Respondent's unfitness to serve as a director, officer, person participating in the conduct of the affairs or as an institution-affiliated party of the Bank, any other insured depository institution, or any other agency or organization enumerated in section 8(e)(7)(A) of the Act, 12 U.S.C. § 1818(e)(7)(A).
   The FDIC has further determined it had reason to believe that the Respondent has been unjustly enriched in connection with such violations and/or practices, and that the Respondent should be required to make restitution to the Bank pursuant to section 8(b)(6)(A) of the Act, 12 U.S.C. § 8(b)(6)(A).
   The FDIC, therefore, accepted the CONSENT AGREEMENT and issued the following:

ORDER OF PROHIBITION FROM
FURTHER PARTICIPATION
AND TO CEASE AND DESIST

   1. Michael D. Johnson is hereby, without the prior written approval of the FDIC and the appropriate Federal financial institutions regulatory agency, as that term is defined in section 8(e)(7)(D) of the Act, 12 U.S.C. § 1818(e)(7)(D), prohibited from:

       [.1] (a) participating in any manner in the conduct of the affairs of any financial institution or organization enumerated in {{3-31-97 p.C-4017}}section 8(e)(7)(A) of the Act, 12 U.S.C. § 1818(e)(7)(A);1

       [.2] (b) soliciting, procuring, transferring, attempting to transfer, voting, or attempting to vote any proxy, consent or authorization with respect to any voting rights in any financial institution enumerated in section 8(e)(7)(A) of the Act, 12 U.S.C. § 1818(e)(7)(A);
       (c) violating any voting agreement previously approved by the appropriate Federal banking agency; or
       (d) voting for a director, or serving or acting as an institution-affiliated party.
       2. Further, Michael D. Johnson is hereby ORDERED to take affirmative action pursuant to section 8(b)(6)(A)(i) of the Act, 12 U.S.C. § 1818(b)(6)(A)(i), and pay the Bank $50,000 restitution, as follows:
       (a) Within thirty (30) days of the effective date of this ORDER Respondent shall pay the sum of ten thousand dollars ($10,000) to the Bank;
       (b) On or before December 31, 1995, Respondent shall pay the sum of seven thousand five hundred dollars ($7,500) to the Bank;
       (c) Should the Respondent fail to remit any payment in accordance with (a) and (b) above, the entire remaining balance shall immediately become due and payable with interest from the date of default, computed at the legal rate of interest determined by 12 U.S.C. § 1961; and
       (d) Respondent shall prepare and execute a written assignment to the Bank of thirty-two thousand five hundred dollars ($32,500) of the potential proceeds of the Contingent Promissory Note, dated November 19, 1993, which Respondent received in connection with sale of his stock in Dyer F&M Bancshares, Inc., and deliver the assignment with the executed CONSENT AGREEMENT.
   The above restitution actions are subject to the approval of the Chancery Court, Jackson, Tennessee, which has jurisdiction over the divorce proceeding to which Respondent is a party. Respondent shall immediately commence all actions necessary to ensure that approval of the Chancery Court in Jackson, Tennessee, is rendered to meet the monetary and time obligations of the Respondent herein. Copies of all pleadings filed in this matter with the Chancery Court shall be forwarded to the FDIC at 5100 Poplar Avenue, Suite 1900, Memphis, Tennessee 38137. In the event that such Chancery Court does not approve the payment by Respondent to the Bank of all or any portion of the amounts set forth in (a) and (b) above, but approves the action set forth in (d) above, the amount of the potential proceeds assigned to the Bank pursuant to (d) above shall be increased by an amount equal to the sum of the amounts set forth in (a) and (b).
   3. This ORDER will become effective ten (10) days after its issuance. The provisions of this ORDER will remain effective and enforceable except to the extent that, and until such time as, any provision of this ORDER shall have been modified, terminated, suspended, or set aside by the FDIC.
   Dated this 11th day of May, 1995.
   Pursuant to delegated authority.
1 Subsection (b)(8), as referenced in section 8(e)(7)(A)(ii), has been redesignated at subsection (b)(9).

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