tion, and § 335.220(e), copies of soliciting material in the form of speeches, press releases, and radio or television scripts may, but need not, be filed with the FDIC prior to use or publication. Definitive copies, however, shall be filed with or mailed for filing to the FDIC as required by paragraph (c) of this section not later than the date such material is used or published. The provisions of paragraphs (a) and (b) of this section, and § 335.220(e) shall apply, however, to any reprints or reproductions of all or any part of such material.

(h) Where any statement, form of proxy, or other material filed pursuant to this paragraph is revised, two of the copies of such revised material filed under paragraph (c) of this section shall be marked to indicate clearly the changes. If the revision alters the text of the material, the changes in such text shall be indicated by means of underscoring or in some other appropriate manner.

(i) The date that proxy material is "filed" with the FDIC for purposes of paragraphs (a), (b), and (d) of this section, is the date of receipt by the FDIC not the date of mailing to the FDIC. In computing the advance filing period for preliminary copies of proxy soliciting material referred to in such paragraphs, the filing date of the preliminary material is to be counted as the first day of the period and definitive material should not be planned to be mailed or distributed to security holders until after the expiration of such period. Where additional time is required for final printing after receipt of comments, the preliminary proxy material should be filed as early as possible prior to the intended mailing date.

(j) Where preliminary copies of material are filed with the FDIC under this section the printing of definitive copies for distribution to security holders should be deferred until the comments of the FDIC's staff have been received and considered.

§ 335.205 Solicitation prior to furnishing required proxy statement.

(a) Notwithstanding the provisions of § 335.201, a solicitation (other than one subject to § 335.220) may be made prior to furnishing security holders a

written proxy statement containing the information specified in Form F-5 with respect to such solicitation if:

(1) The solicitation is made in opposition to a prior solicitation or an invitation for tenders or other publicized activity which, if successful, could reasonably have the effect of defeating the action proposed to be taken at the meeting;

(2) No form of proxy is furnished to security holders prior to the time the written proxy statement required by § 335.201 is furnished to security holders: Provided, however, That this paragraph 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;

(3) The identity of the person or persons by or on whose behalf the solicitation is made and a description of their interests, direct or indirect, by security holdings or otherwise, are set forth in each communication sent or given to security holders in connection with the solicitation; and

(4) A written proxy statement meeting the requirements of this section is sent or given to security holders at the earliest practicable date.

(b) Three copies of any soliciting material proposed to be sent or given to security holders prior to the furnishing of the written proxy statement required by § 335.201 shall be filed with the FDIC in preliminary form at least five business days prior to the date definitive copies of such material are first sent or given to security holders, or such shorter period as the FDIC may authorize upon a showing of good cause therefor.

§ 335.206 False or misleading statements.

(a) No solicitation or communication subject to this Subpart B shall be made by means of any statement, form of proxy, notice of meeting, or other communication, written or oral, containing any statement that, at the time and in the light of the circumstances under which it is made, is false or misleading with respect to any material fact, or that omits to state any material fact necessary in order to make the statement therein not false or misleading or necessary to correct

any statement in any earlier communication with respect to the solicitation of a proxy for the same meeting or subject matter that has become false or misleading. Depending upon particular circumstances, the following may be misleading within the meaning of this paragraph: Predictions as to specific future market values, material that directly or indirectly impugns character, integrity, or personal reputation, or directly or indirectly makes charges concerning improper, illegal, or immoral conduct or associations, without factual foundation; failure to so identify a statement, form of proxy, and other soliciting material as to clearly distinguish it from the soliciting material of any other person or persons soliciting for the same meeting or subject matter; claims made prior to a meeting regarding the results of a solicitation.

(b) The fact that a proxy statement, form of proxy, or other soliciting material has been filed with or reviewed by the FDIC or its staff shall not be deemed a finding by the FDIC that such material is accurate or complete or not false or misleading, or that the FDIC has passed upon the merits of or approved any statement therein or any matter to be acted upon by security holders. No representation contrary to the foregoing shall be made.

[46 FR 25208, May 5, 1981, as amended at 48 FR 55564, Dec. 14, 1983]

§ 335.207 Requirements as to proxy.

(a) The form of proxy (1) shall incidate 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 matter or group of related matters intended to be acted upon 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 so

licited is afforded an opportunity to specify by boxes a choice between ap proval or disapproval of, or abstention with respect to, each matter or group of related matters referred to therein as intended to be acted upon, other than elections to office. A proxy may confer discretionary authority with respect to matters as to which a choice is not so specified by the security holder if the form of proxy states in boldfaced type how the shares represented by the proxy are intended to be voted in each such case.

(2) A form of proxy which provides for the election of directors shall set forth the names of persons nominated for election as directors. Such form of proxy shall clearly provide any of the following means for security holders to withhold authority to vote for each nominee:

(i) A box opposite the name of each nominee which may be marked to indicate that authority to vote for such nominee is withheld; or

(ii) An instruction in bold-face type which indicates that the security holder may withhold authority to vote for any nominee by lining through or otherwise striking out the name of any nominee; or

(iii) Designated blank spaces in which the shareholder may enter the names of nominees with respect to whom the shareholder chooses to withhold authority to vote; or

(iv) Any other similar means, provided that clear instructions are fur nished indicating how the shareholder may withhold authority to vote for any nominee.

The form of proxy also may provide a means for the security holder to grant authority to vote for the nominees set forth, as a group, provided that there is a similar means for the security holder to withhold authority to vote for the group of nominees. Any form of proxy which is executed by the security holder in such manner as not to withhold authority to vote for the election of any nominee shall be deemed to grant authority, provided that the form of proxy so states in bold-face type.

Instructions. 1. Section 335.207(b)(2) does not apply in the case of a merger, consolidation or other plan if the election of directors is an integral part of the plan.

2. If applicable state law gives legal effect to votes cast against a nominee, then in lieu of, or in addition to, providing a means for security holders to withhold authority to vote, the bank should provide a similar means for security holders to vote against each nominee.

(c) A proxy may confer discretionary authority to vote with respect to any of the following matters:

(1) Matters which the persons making the solicitation do not know, a reasonable time before the solicitation, are to be presented at the meeting, if a specific statement to that effect is made in the proxy statement or form of proxy;

(2) Approval of the minutes of the prior meeting if such approval does not amount to ratification of the action taken at that meeting;

(3) The election of any person to any office for which a bona fide nominee is named in the proxy statement and nominee is subsequently unable to serve or for good cause refuses to et serve;

(4) Any proposal omitted from the 0 proxy statement and form of proxy gunder § 335.206 or § 335.211; and

(5) Matters incident to the conduct of the meeting.

(d) No proxy shall confer authority er (1) to vote for the election of any person to any office for which a bona e fide nominee is not named in the proxy statement, or (2) to vote at any annual meeting other than the next annual meeting (or any adjournment thereof) to be held after the date on which the proxy statement and form of proxy are first sent or given to security holders. A person shall not be O deemed to be a bona fide nominee and he shall not be named as one unless he has consented to being named in the proxy statement and to serve if elected.

(e) The proxy statement or form of proxy shall provide, subject to reasonable specified conditions, that the shares represented by the proxy will be voted and that where the person solicited specifies by means of a ballot provided under paragraph (b) of this section a choice with respect to any matters to be acted upon, the shares I will be voted in accordance with the specifications so made.

(a) The information included in the Statement shall be clearly presented and the statements made shall be divided into groups according to subject matter and the various groups of statements shall be preceded by appropriate headings. The order of items in the form need not be followed. Where practicable and appropriate, the information shall be presented in tabular form. All amounts shall be stated in figures. Information required by more than one applicable item need not be repeated. No statement need be made in response to any item that is inapplicable.

(b) Any information required to be included in the Statement as to terms of securities or other subject matter that from a standpoint of practical necessity must be determined in the future may be stated in terms of present knowledge and intention. To the extent practicable, the authority to be conferred concerning each such matter shall be confined within limits reasonably related to the need for discretionary authority. Subject to the foregoing, information that is not known to the persons on whose behalf the solicitation is to be made and is not reasonably within the power of such persons to ascertain or procure may be omitted, if a brief statement of the circumstances rendering such information unavailable is made.

(c) There may be omitted from a proxy statement any information contained in any other proxy soliciting material that has been furnished to each person solicited in connection with the same meeting or subject matter if a clear reference is made to the particular document containing the information.

(d) All printed Statements shall be set in roman type at least as large as 10-point modern type except that to the extent necessary for convenient presentation financial statements and other statistical or tabular matter may be set in roman type at least as large as 8-point modern type. All type shall be leaded at least 2 points.

(e) All proxy statements shall disclose on the first page thereof the complete mailing address, including zip code, of the principal executive offices of the bank and the approximate date on which the proxy statement and form of proxy are first sent or given to security holders.

the

of

(f) All proxy statements shall disclose, under an appropriate caption, the date by which proposals of security holders intended to be presented at the next annual meeting must be received by the bank for inclusion in the bank's proxy statement and form of proxy relating to that meeting, such date to be calculated in accordance with provisions § 335.211(a)(3)(i). If the date of the next annual meeting is subsequently advanced by more than 30 calendar days or delayed by more than 90 calendar days from the date of the annual meeting to which the proxy statement relates, the bank shall, in a timely manner, inform security holders of such change, and the date by which proposals of security holders must be received, by any means reasonably calculated to so inform them.

§ 335.210 Mailing communications for security holders.

If the management of the bank has made or intends to make any proxy solicitations subject to this section, the bank shall perform such of the following acts as may be requested in writing with respect to the same subject matter or meeting by any security holder who is entitled to vote on such matter or to vote at such meeting and who shall first defray the reasonable expenses to be incurred by the bank in the performance of the act or acts requested:

(a) The bank shall mail or otherwise furnish to such security holder the following information as promptly as practicable after the receipt of such request;

(1) A statement of the approximate number of holders of record of any class of securities, any of the holders of which have been or are to be solicited on behalf of the bank's or any group of holders that the security holder shall designate;

(2) If the bank has made or intends to make, through bankers, brokers, or other persons, any solicitation of the beneficial owners of securities of any class, a statement of the approximate number of such beneficial owners, or any group of such owners that the security holder shall designate;

(3) An estimate of the cost of mailing a specified proxy statement, form of proxy, or other communication to such holders, including insofar as known or reasonably available, the estimated handling and mailing costs of the bankers, brokers, or other persons specified in paragraph (a)(2) of this section.

(b)(1) Copies of any proxy statement, form of proxy, or other communication furnished by the security holder shall be mailed by the bank to such of the holders of record specified in paragraph (a)(1) of this section as the security holder shall designate. The bank shall also mail to each banker, broker, or other person specified in paragraph (a)(2) of this section, a sufficient number of copies of such proxy statement, form of proxy, or other communication as will enable the banker, broker, or other person to furnish a copy thereof to each beneficial owner solicited or to be solicited through him.

(2) Any material that is furnished by the security holder shall be mailed with reasonable promptness by the bank after receipt of a tender of the material to be mailed, of envelopes or other containers therefor, of postage or payment for postage, and of evidence that such material has been filed with the FDIC under § 335.204. The bank need not, however, mail any such material that relates to any matter to be acted upon at an annual meeting of security holders prior to the earlier of: (i) A day corresponding to the first date on which the bank's proxy soliciting material was released to security holders in connection with the last annual meeting of security

holders, or (ii) the first day on which solicitation is made on behalf of the bank. With respect to any material that relates to any matter to be acted upon by security holders otherwise than at an annual meeting, material need not be mailed prior to the first day on which solicitation is made on behalf of management.

(3) Neither the management nor the bank shall be responsible for the proxy statement, form of proxy, or other communication.

(c) In lieu of performing the acts specified above, the bank may, at its option, furnish promptly to the security holder a reasonably current list of the names and addresses of such of the holders of record specified in paragraph (a)(1) of this section as the security holder shall designate, and a list of the names and addresses of the bankers, brokers, or other persons specified in paragraph (a)(2) of this section as the security holder shall designate together with a statement of the approximate number of beneficial owners solicited or to be solicited through each the banker, broker, or other person and a schedule of the handling and mailing costs of each banker, broker, or other person, if the schedule has been supplied to the bank. The foregoing information shall be furnished promptly upon the request of the security holder or at daily or other reasonable intervals as it becomes available to the bank.

§ 335.211 Proposals of security holders. (a) If any security holder of the bank notifies the bank of his intention to present a proposal for action at a forthcoming meeting of the bank's security holders, the bank shall set forth the proposal in its proxy statement or information statement. If management issues a proxy statement, it shall identify the proposal in its form of proxy and provide means by which security holders can make the specification required by § 335.207(b). If the bank issues an information statement under § 335.201(b), it shall identify the proposal and indicate the disposition it proposes to make at the meeting. The bank however, need not include a proposal in its information statement if such proposal is submitted less than 60 days in advance of a day corre

sponding to the date of mailing a proxy statement or information statement in connection with the last annual meeting of security holders. Notwithstanding the foregoing, the banks shall not be required to include the proposal in its proxy statement or form of proxy unless the security holder (hereinafter, the "proponent") has complied with the requirements of this paragraph and paragraphs (b) and (c) of this section:

(1) Eligibility. At the time he submits the proposal, the proponent shall be a record or beneficial owner of a security entitled to be voted at the meeting on his proposal, and he shall continue to own security through the date on which the meeting is held. If the the bank requests documentary support for a proponent's claim that he is a beneficial owner of a voting security of the bank, the proponent shall furnish appropriate documentation within 10 business days after receiving the request. In the event the bank includes the proponent's proposal in its proxy soliciting materials for the meeting and the proponent fails to comply with the requirement that he continuously be a voting security holder through the meeting date, the bank shall not be required to include any proposals submitted by the proponent in its proxy soliciting materials for any meeting held in the following two calendar years.

(2) Notice. The proponent shall notify the management in writing of his intention to appear personally at the meeting to present his proposal for action. The proponent shall furnish the requisite notice at the time he submits the proposal, except that if he was unaware of the notice requirement at that time he shall comply with it within 10 business days after being informed of it by the bank. If the proponent, after furnishing in good faith the notice required by this provision, subsequently determines that he will be unable to appear personally at the meeting, he shall arrange to have another security holder of the bank present his proposal on his behalf at the meeting. In the event the proponent or his proxy fails, without good cause, to present the proposal for action at the meeting, the bank shall not be required to include any