(a) Scope. This section governs an application for merger or share exchange pursuant to the Finance Code, §§32.301-32.303 and 32.008, or §203.001(b). This section does not apply to a merger, reorganization, or conversion of a state bank into another form of financial institution pursuant to the Finance Code, §32.501, governed by §15.107 of this title (relating to Notice of Merger, Reorganization, or Conversion of a State Bank into Another Form of Financial Institution).
(b) Form of application. The applicant must submit a fully completed, verified application on a form prescribed by the banking commissioner and simultaneously tender the required filing fee pursuant to §15.2 of this title (relating to Filing and Investigation Fees). The Interagency Bank Merger Act application may be used in lieu of the commissioner prescribed form if it is accompanied by the signature page and supplemental page of the commissioner prescribed form. The application must, except to the extent waived by the banking commissioner, include:
  (1) a summary of the proposed transaction;
  (2) a copy of all agreements related to the proposed transaction executed by an authorized representative of each party to the merger or share exchange;
  (3) certificate and plan of merger or share exchange in accordance with the Texas Business Organizations Code, which must include:
    (A) a current draft of the certificate of merger or share exchange, and additional copies equal to the number of surviving, new, or acquired entities, executed and acknowledged by an authorized officer for each party to the merger or share exchange;
    (B) the plan of merger or share exchange;
    (C) the restated certificate of formation of each resulting state bank;
    (D) the restated certificate of formation, or other constitutive documents, of each surviving entity other than the resulting state bank;
    (E) the certificate of formation, or other constitutive documents, of each new resulting entity;
    (F) if a party to a merger is an entity required to file documents with the Texas secretary of state before the transaction can be legally consummated, a provision in the certificate of merger conditioning the merger upon the approval of the banking commissioner, containing wording substantially as follows, as applicable: This merger will become effective upon the final approval and filing of the certificate of merger by the Secretary of State of Texas and with the Banking Commissioner of Texas which must be on or before ________ (date), which is the 90th day after the date of filing of the certificate of merger with the Secretary of State;
  (4) for each party to the merger or share exchange, a certified copy of those portions of the minutes of board meetings and shareholder or participant meetings at which action was taken regarding approval of the merger or share exchange, or a certificate of an officer verifying the action taken by the board of directors and the shareholders or participants approving the merger or share exchange, or an explanation of the basis for concluding that this action was not required;
  (5) for each resulting state bank, an assessment of its future prospects, proposed officers and directors, and proposed branches and other locations;
  (6) an assessment of the current regulatory and financial condition of each party to the transaction;
  (7) if a merger or share exchange will change the existing CRA delineated community of a resulting state bank, a copy of a map depicting the proposed delineated community of the resulting state bank;
  (8) a copy of current financial statements for each entity involved in the proposed transaction, accompanied by an affidavit of no material change dated no earlier than 30 days prior to the date of submission of the application;
  (9) a copy of the latest annual report for each financial institution and bank holding company involved in the proposed transaction;
  (10) a copy of that portion of the most recent watch list for each financial institution involved in the proposed transaction that identifies low-quality assets;
  (11) a description of the due diligence review conducted by or for a state bank that is a party to the transaction and a summary of findings;
  (12) a description of all material legal or administrative proceedings involving any party to the merger or share exchange;
  (13) an opinion of legal counsel that conforms with §15.109 of this title (relating to Opinion of Legal Counsel), concluding:
    (A) the merger or share exchange has been duly authorized by the board and shareholders or participants of each participating state bank in accordance with the Finance Code, §32.301, and the Texas Business Organizations Code;
    (B) the merger or share exchange will not cause or result in a material violation of the laws of this state relative to the organization and operation of state banks;
    (C) all deposit and other liabilities of every state bank that is a party to the merger or share exchange will be discharged or otherwise assumed or retained by a financial institution that is authorized by law to do so;
    (D) each surviving, new, or acquiring entity that is not a financial institution will not be engaged in the unauthorized business of banking, and each resulting state bank will not be engaged in a business other than banking or a business incidental to banking; and
    (E) all conditions with respect to the merger or share exchange that have been imposed by the banking commissioner have been satisfied or otherwise resolved or, to the best knowledge of legal counsel, no conditions have been imposed;
  (14) a copy of each filing or application regarding the proposed merger or share exchange required by another governmental authority, complete with all related attachments, exhibits, and correspondence;
  (15) a current pro forma balance sheet and income statement for each party to the transaction, with adjustments, reflecting the proposed merger or share exchange as of the most recent quarter ended immediately prior to the filing of the application;
  (16) a copy of the strategic plan that complies with the department's Memorandum 1009, including projections of the balance sheet and income statement of each resulting state bank as of the quarter ending one year from the date of the pro forma financial statement required by paragraph (15) of this subsection;
  (17) an explanation of compliance with or nonapplicability of provisions of governing law relating to rights of dissenting shareholders or participants to the merger or share exchange;
  (18) a copy of all securities offering documents, proxy statements, or other disclosure materials delivered or to be delivered to shareholders or participants of a party concerning the merger or share exchange;
  (19) an explanation of the manner and basis of converting or exchanging any of the shares or other evidences of ownership of an entity that is a party to the merger or share exchange into shares, obligations, evidences of ownership, rights to purchase securities, or other securities of one or more of the surviving, acquiring, or new entities, into cash or other property, including shares, obligations, evidences of ownership, rights to purchase securities, or other securities of another person or entity, or into a combination of the foregoing;
  (20) for antitrust purposes, an analysis of the anticipated competitive effect of the proposed transaction in the affected markets and a statement of the basis of the analysis of the competitive effects, or alternatively, a copy of the analysis of competitive effects of the proposed transaction addressed in the companion federal regulatory agency application;
  (21) other information that the banking commissioner, in the exercise of discretion, considers necessary to make an informed decision to approve or deny the proposed merger or share exchange; and
  (22) in addition to all other requirements of this subsection, with respect to an interstate merger transaction:
    (A) any additional opinions and information the applicant, by contacting the department, determines the banking commissioner requires; and
    (B) information regarding applicable host state law and evidence of compliance with the law.
(c) Applicant's duty to disclose. The applicant must supply all material information necessary for the banking commissioner to make a fully informed decision on the application.
Cont'd...