[¶11,174] Albert D. Noe, 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 ¶16,138B.)
[.1] ProhibitionParticipation in Conduct of Affairs
[.2] ProhibitionExercise of Voting Rights
In the Matter of
ALBERT D. NOE,
individually, and as institution-affiliated
FARMERS AND MERCHANTS BANK
(Insured State Nonmember Bank)
ORDER OF PROHIBITION
FROM FURTHER PARTICIPATION
AND TO CEASE AND DESIST
Albert D. Noe ("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 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 or denying 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 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. § 1818(b)(6)(A).
The FDIC, therefore, accepted the CONSENT AGREEMENT and issued the following:
ORDER OF PROHIBITION FROM
AND TO CEASE AND DESIST
1. Albert D. Noe 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),1 prohibited from:
[.1] (a) participating in any manner in the conduct of the affairs of any financial institution or organization enumerated in section 8(e)(7)(A) of the Act, 12 U.S.C. § 1818(e)(7)(A);
[.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);
2. Further, Albert D. Noe 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:
(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.
(a) Respondent shall pay the sum of ten thousand dollars ($10,000) to the Bank with the executed CONSENT AGREEMENT;
(b) On or before December 31, 1995, Respondent shall pay the sum of twelve
1 Subsection (n)(8), as referenced in section 8(e)(7)(A)(ii), has been redesignated as subsection (b)(9).
thousand five hundred dollars ($12,500) to the Bank;
The provisions of this ORDER shall be binding upon the Respondent, his successors assigns and estate.
(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 twenty-seven thousand five hundred dollars ($27,500) of the potential proceeds from the Contingent Promissory Note, dated November 19, 1993, which the Respondent received in connection with the sale of his stock in Dyer F&M Bancshares, Inc., and deliver the assignment to the FDIC with the executed CONSENT AGREEMENT.
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.