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FDIC Enforcement Decisions and Orders
{{1-31-05 p.C-5835}} Respondent is prohibited from participating in the conduct or affairs of, or exercising voting rights in, any insured institution without the prior written approval of the FDIC. [.1] Prohibition, Removal or SuspensionProhibition FromParticipation in Conduct of Affairs [.2] Prohibition, Removal or SuspensionProhibition FromVoting Rights, Exercise of In the Matter of
Herbert A. Gardner, Jr. ("Respondent"), has been advised of
the right to receive a NOTICE OF INTENTION TO PROHIBIT FROM FURTHER
PARTICIPATION ("NOTICE") issued by the Federal Deposit Insurance
Corporation ("FDIC") detailing the unsafe or unsound banking
practices, and/or breaches of fiduciary duty for which an ORDER OF
PROHIBITION FROM FURTHER PARTICIPATION ("ORDER") may issue, and
has been further advised of the right to a hearing on the alleged
charges under section 8(e) of the Federal Deposit Insurance Act
("Act"), 12 U.S.C. §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 ("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 unsafe or unsound banking practices, and/or any breaches
of fiduciary duty, 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 unsafe or unsound banking practices, and/or breaches of fiduciary duty as an institution-affiliated party of Millennia Community Bank, Greenville, North Carolina; (b) By reason of such practices and/or breaches of fiduciary duty, the Bank has suffered financial loss or other damage; and (c) Such practices and/or breaches of fiduciary duty involve personal dishonesty on the part of the respondent. The FDIC further determined that such 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, therefore, accepts the CONSENT AGREEMENT and issues the following: 1. Herbert A. Gardner, Jr., 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 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); (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. This ORDER will become effective upon its issuance by the FDIC. 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. Pursuant to delegated authority. Dated this 27th day of August, 2003.
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Last Updated 4/16/2005 | legal@fdic.gov |
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