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4000 - Advisory Opinions

Question Whether FDIC Advance Approval is Required for Submission by a Bank of Any Matter to a Shareholder Vote; Shareholder Proposals


January 24, 1990

Gerald J. Gervino, Senior Attorney

We are writing concerning two shareholder proposals which you have submitted to the *** Bank ("Bank") of *** for inclusion in their proxy statement for the bank's 1990 annual meeting.

The proposals are as follows:

1.  The shareholders of *** Bank require the President of *** Bank to reside within *** County?

2.  The shareholders of *** Bank require that loan committee and Executive Committee members be directors who reside within *** County.

Upon opinion of counsel, the chairman of the board of the bank has indicated to you that the above mandatory directives are not a proper subject for shareholder action. He indicates that any further redrafted proposals must be submitted to and approved by the FDIC and the State of Ohio before they would be a proper subject for action by the bank's shareholders.

We would not recommend enforcement action if the bank omitted the above two proposals, as presently drafted, in connection with its proxy solicitation for its 1990 annual meeting. We would like to draw your attention to the note under section 335.211(c)(1) of our regulations, 12 CFR 335.211(c)(1)(1989), which states that a proposal that may be improper under applicable law when framed as a mandate or directive may be proper when framed as a recommendation or request.

Chairman *** and counsel for the bank have both made an erroneous statement to you with respect to this matter. FDIC advance approval is not required for submission by a bank of any matter to a shareholder vote. We cannot provide an opinion with respect to Ohio law, but suggest that you may wish to contact the Ohio bank regulatory authorities at the following address:

Linda K. Page

Director of Commerce

77 S. High Street, 23rd Floor

Columbus, Ohio 43266-0541

If you have any further questions, feel free to write or call me at (202) 898-3723 or contact M. Eric Dohm at (202) 898-8921.

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