(a) The term "principal officer" as used in this part means Chairman of the Board, Vice Chairman of the Board, President, Senior Vice President, Cashier, Chairman of the Executive Committee, and any other person who performs functions corresponding to those performed by the foregoing officers.

(b) (1) The terms "solicit" and "solicitation" include:

(i) Any request for a proxy whether or not accompanied by or included in a form of proxy;

(ii) Any request to execute or not to execute, or to revoke, a proxy; or

(iii) 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.

(2) The terms do not include: (i) Any solicitation by a person in respect of stock of which he is the beneficial owner; (ii) The action of a broker or other person in respect to stock carried in his name or in

the name of his nominee, in forwarding to the beneficial owner of such stock, soliciting material received from the bank, or impartially instructing such beneficial owner to forward a proxy to the person, if any, to whom the beneficial owner desires to give a proxy, or impartially requesting from the beneficial owner instructions as to the authority to be conferred by the proxy and stating that a proxy will be given if the instructions are received by a certain date.

(c) The term "person" as used in this part is not limited to natural persons, but also includes corporations, partnerships, pension funds, profit-sharing funds, and any other organized group of persons of whatever na

ture.

§ 11.3

Information to be furnished stockholders.

(a) No solicitation subject to this part shall be made by or on behalf of a national bank unless each person solicited is concurrently furnished or has previously been furnished with a written proxy statement containing the applicable information specified in Schedules A and B.

(b) The form of proxy shall afford the person solicited an opportunity to specify his choice between approval or disapproval of each matter or group of related matters referred to therein as intended to be acted upon. The proxy may provide that if the signer does not indicate a choice, the proxy confers authority to vote the shares represented thereby in favor of, or against, matters set forth therein.

(c) A proxy may confer discretionary authority with respect to matters which may come before the meeting other than those matters listed in the notice of meeting and proxy statement: Provided, That, except in the case of a proposal omitted from the proxy statement, notice of meeting and form of proxy pursuant to paragraph (d) of this section, the persons on whose behalf the solicitation is made are not aware a reasonable time prior to the time the solicitation is made, that any such other matters are to be presented for action at the meeting: And provided fur

ther, That a specific statement to that effect shall be made in the proxy statement or in the form of proxy.

(d) If any stockholder entitled to vote at a meeting shall submit to the management of the bank at least 60 days in advance of a day corresponding to the first date on which management's proxy statement was released to stockholders in connection with the last annual meeting of stockholders, a proposal which is accompanied by notice of intention. to present the proposal for action at the meeting, the management shall set forth the proposal in its proxy statement and shall identify the proposal in its form of proxy and provide means by which stockholders can specify a choice between approval or disapproval as provided for in paragraph (b) of this

11.3. This paragraph (d) shall not apply, however, to elections to office. A proposal to be presented at any meeting other than the annual meeting shall be submitted to the management of the bank a reasonable time before the solicitation is made. If the management opposes the proposal it shall also at the written request of the proponent include in its proxy statement the name and address of the proponent and a statement of the stockholder in not more than 100 words in support of the proposal: Provided, That such supporting statement shall not include the proponent's name and address, and provided further that the proxy statement may omit such name and address if it contains a statement that they will be furnished to any stockholder upon request. The statement and request of the stockholder shall be furnished to the management at the same time the proposal is furnished. Neither the management nor the bank shall be responsible for such statement. Notwithstanding the foregoing, the management may omit a proposal and any statement in support thereof from its proxy statement, notice of meeting, and form of proxy under any of the following circum

stances:

(1) If the management has at the stockholder's request included a proposal in the proxy statement and form or proxy relating to either of the last two annual meetings of stockholders or any special meeting held subsequent to the earlier of such two annual meetings and such stockholder has failed. without good cause to present the proposal, in person or by proxy, for action at the meeting; or

(2) If the proposal is not a proper subject for action by stockholders, or is otherwise legally inappropriate, or unworkable, or appears to be primarily for the purpose of enforcing a personal claim, redressing a personal grievance, or promoting general economic, political, racial, religious, social, or similar causes; or

(3) If the proposal or the supporting statement is false, misleading, or slanderous in any material respect; or

(4) If the same proposal or a proposal substantially similar in whole or material part has previously been submitted in a management proxy statement and form of proxy relating to any annual or special meeting of stockholders held within the preceding five calendar years, it may be omitted from the management's proxy material relating to any meeting of stockholders held within 3 calendar years after the latest such previous submission: Provided, That-(i) if the proposal was submitted at only one meeting during such preceding period it received less than 5 percent of the total number of votes cast with respect thereto, or (ii) if the proposal was submitted at any two meetings during such preceding period it received at the time of its second submission less than 10 percent of the total number of votes cast with respect thereto, or (iii) if the proposal was submitted at three or more meetings during such preceding period, it received at the time of its latest submission less than 20 percent of the total number of votes cast with respect thereto; or

(5) If such proposal consists of a recommendation or request that the management of the bank take action with respect to a matter relating to the conduct of the ordinary business operations of the bank; or

(6) If, prior to the receipt of such proposal, the same proposal, or a proposal substantially similar in whole or material part, has been received by the management from another security holder and is to be included in the bank's proxy soliciting material. Whenever the management asserts that a proposal and any statement in support thereof may properly be omitted from its proxy statement and form of proxy, it shall file with the Comptroller, not later than 20 days prior to the date the preliminary copies of the proxy statement and form or proxy are filed pursuant to § 11.4(a), or such

shorter period prior to such date as the Comptroller may permit, a copy of the proposal and any statement in support thereof as received from the stockholder, together with a statement of the reasons why the management deems such omission to be proper in the particular case, and where such reasons are based on matters of law, a supporting opinion of counsel. The management shall at the same time, if it has not already done so, notify the stockholder submitting the proposal of its intention to omit the proposal from its proxy statement and form of proxy and shall forward to him a copy of the statement of the reasons why the management deems the omission of the proposal to be proper and a copy of such supporting opinion of counsel.

(e) No proxy shall confer authority (1) to vote for the election to any position for which a proposed nominee is not named in the proxy statement, or (2) to vote at any meeting other than the next 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 stockholders.

(f) Any person or group of persons, including directors or attorneys for the bank, may be designated to act as proxy, but not officers, clerks, tellers, or bookkeepers of the bank.

[$ 11.3 amended Oct. 7, 1967, 32 Fed Reg. no. 125]

§ 11.3a Tender offers for stock of national banks.

(a) All requests or invitations for tenders or advertisements making a tender offer or requesting or inviting tenders shall contain the names of the persons making such requests, invitations, or advertisements and the information required by Items 2 (a), (c) and (e) (1), 3, 4, 5, and 6 of Schedule D, or a fair and adequate summary thereof and shall be filed with the Comptroller as part of the statement required by § 12.3a: Provided, however, That the information required by Item 2(e) (1) shall include only convictions involving dishonesty or breach of trust.

(b) Any additional material soliciting or requesting such tender offers subsequent to the initial solicitation or request shall contain the names of the persons making such solicitation or request and the information required

by Items 2 (a), (c) and (e) (1), 3, 4, 5, and 6 of Schedule D, or a fair and adequate summary thereof: Provided, however, That such material may omit any of such information previously furnished to the persons solicited or requested for tender offers. Copies of such additional material soliciting or requesting such tender offers shall be filed with the Comptroller not later than the time copies of such material are first published or sent or given to security holders.

(c) Any written solicitation or recommendation to the holders of a security to accept or reject a tender offer or request or invitation for tenders subject to section 14(d) of the Act shall include the name of the person making such solicitation or recommendation and the information required by Items 1(b), 2(b) of Schedule E or a fair and adequate summary thereof: Provided, however, That such written solicitation or recommendation may omit any of such information previously furnished to the persons to whom the solicitation or recommendation is made.

§ 11.4 Material to be filed with Comptroller.

(a) Three preliminary copies of the proxy statement and form of proxy and any other soliciting material to be furnished to security holders concurrently therewith shall be filed with the Comptroller at least 10 days prior to the date definitive copies of such material are proposed to be sent or given to security holders, or such shorter period prior to that date as the Comptroller may authorize upon a showing of good cause therefor. Where preliminary copies of material are filed with the Comptroller pursuant to this rule, the distribution to security holders should be deferred until the comments of the Comptroller's staff have been received and complied with. Three copies of the final material shall be mailed to the Comptroller, concurrently with mailing to security holders.

(b) Three preliminary copies of any additional soliciting material, relating to the same meeting or subject matter, furnished to security holders subsequent to the proxy statement shall be filed with the Comptroller at least 2 days (exclusive of Saturdays, Sundays, or holidays) prior to the date copies of such material are first sent or given to security

holders, or such shorter period prior to such date as the Comptroller may authorize upon a showing of good cause therefor.

§ 11.4a Filing of Schedule D by persons making a tender offer.

(a) No person, directly or indirectly, by use of the mails or by any means or instrumentality of Interstate Commerce or of any facility of a national security exchange or otherwise, shall make a tender offer for, or a request or invitation for tenders of, any class of any equity security of a national bank which is registered or required to be registered pursuant to section 12 of the Act, if, after consummation thereof, such person would, directly or indirectly, be the beneficial owner of more than 10 per centum of such class, unless, at the time copies of the offer or request or invitation are first published or sent or given to security holders, such person has filed with the Comptroller a statement containing the information and exhibits required by Schedule D: Provided, however, That any person making a tender offer for or a request or invitation for tenders which commenced prior to August 8, 1968, shall, if such offer, request or invitation continues after such date, file the statement required by this part on or before August 20, 1968. Copies of all statements, in the form in which such material is furnished to security holders and the Comptroller, shall be sent to the issuer not later than the date such material is first published or sent or given to any security holders.

(b) If any material change occurs in the facts set forth in the statement required by paragraph (a) of this section, the person who filed such statement shall promptly file with the Comptroller an amendment disclosing such change.

§ 11.4b Recommendations as to tender

offers.

(a) No solicitation or recommendation to the holders of a security to accept or reject a tender offer or request or invitation for tenders subject to section 14(d) of the Act shall be made unless, at the time copies of the solicitation or recommendation are first published or sent or given to holders of the security, the person making such solicitation or

recommendation has filed with the Comptroller a statement containing the information specified by Schedule E: Provided, however, That this part shall not apply to (1) a person required by § 11.4(a) to file a statement, or (2) a person, other than the bank or the management of the bank, who makes no written solicitations or recommendations other than solicitations or recommendations, copies of which have been filed with the Comptroller pursuant to this part; And provided further, That any person making solicitation or recommendation to the holders of a security to accept or reject a tender offer or request or invitation for tenders which solicitation or recommendation commenced prior to August 8, 1968, shall, if such solicitation or recommendation continues after such date, file the statement required by this Part on or before August 20, 1968.

(b) If any material change occurs in the facts set forth in the statement required by paragraph (a) of this section, the person who filed such statement shall promptly file with the Comptroller an amendment disclosing such change.

§ 11.4c Purchase of securities by nominee of bank or by controlling persons. When a person makes a tender offer for, or request or invitation for tenders of, any class of equity securities of a national bank subject to section 13(e) of the Act, and such person has filed a statement with the Comptroller pursuant to § 11.3a hereof and the bank has received notice thereof, no person shall thereafter, for or on behalf of the bank, nor shall any person controlling, controlled by, or under common control with the bank, during the period such tender offer, request or invitation continues, purchase (including any purchase subject to control of the bank or any such person), any equity securities of the bank unless:

(a) Such person has filed with the Comptroller a statement containing the information specified below with respect to proposed purchases:

(1) The title and amount of securities to be purchased, the names of the persons or classes of persons from whom, and the market in which, the securities are to be pur

N

securities to which this statement relates and the name and address of the issuer of such securities.

(b) Identify the tender offer or request or invitation for tenders to which this statement relates and state the reasons for the solicitation or recommendation to security - holders to accept or reject such tender offer, request, or invitation for tenders.

Item 2. Identity and Background.

(a) State the name and business address of the person filing this statement.

(b) Describe any arrangement or under- standing in regard to the solicitation with (i) the bank or the management of the bank or (ii) the maker of the tender offer or request or invitation for tender of securities of the class to which this statement relates. Item 3. Persons Retained, Employed or To Be Compensated.

Identify any person or class or persons employed, retained or to be compensated, by the person filing this Schedule E, or by any person on his behalf, to make solicitations or recommendations to security holders and describe briefly the terms of such employment, retainer or arrangement for compensation.

Item 4. Material To Be Filed as Exhibits. Copies of all solicitations or recommendations to accept or to reject a tender offer or request or invitation for tenders of the securities specified in Item 1 shall be filed as an -- exhibit.

sign on behalf of such person shall be filed with the statement.

§ 11.5 Special provisions applicable to election contests.

(a) Solicitation to which this section applies: This section applies to any solicitation subject to this part by any person for the purpose of opposing a solicitation subject to this part by any other person with respect to the election of directors at any annual or special meeting of security holders.

(b) For the purpose of this section, the term "participant" includes nominees for whose election proxies are solicited, and any other person, acting alone or in conjunction with one or more other persons, in organizing, directing or financing the solicitation, provided however that such term does not include (1) any person or organization retained or employed by a participant to solicit security holders, or any person who merely transmits proxy soliciting material or performs ministerial or clerical duties; (2) 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 performance of his duties in the course of such employment; (3) any person regularly employed as an officer or employee of the issuer or any of its subsidiaries who is not otherwise a participant; or (4) 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.

(c) Filing of information required by Schedule C: (1) No solicitation subject to this section shall be made by any person other than the management of a national bank unless at least 5 business days prior thereto, or such shorter period as the Comptroller may authorize, there has been filed with the Comptroller by or on behalf of each participant in such solicitation, a statement in triplicate containing the information specified by Schedule