(a) Scope. This section governs an application for
the purchase of assets pursuant to the Finance Code, §§32.001(c)
and 32.401-32.404 or Finance Code, §203.001(b).
(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 application must, except to the extent waived by the banking
commissioner, include:
(1) a summary of the proposed transaction, including
a description of the types and total dollar amounts of liabilities
and obligations expressly assumed;
(2) a copy of all agreements related to the proposed
transaction executed by an authorized representative of each party
to the transaction;
(3) for each party to the transaction, 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 transaction, or a certificate of an officer verifying the action
taken by the board of directors and the shareholders or participants
approving the transaction, or an explanation of the basis for concluding
that this action was not required;
(4) an assessment of the applicant's future prospects,
proposed officers and directors, and proposed branches and other locations;
(5) an assessment of the current regulatory and financial
condition of each party to the transaction;
(6) if the proposed transaction will change the existing
CRA delineated community of the applicant, a copy of the proposed
CRA map depicting the proposed delineated community of the applicant;
(7) 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;
(8) a copy of the latest annual report for each financial
institution and bank holding company involved in the proposed transaction;
(9) a copy of that portion of the most recent watch
list for the applicant and that portion of the watch list of the selling
party that identifies low-quality assets being acquired or liabilities
being assumed;
(10) a description of the due diligence review conducted
by or for the applicant and a summary of findings;
(11) a description of all material legal or administrative
proceedings involving the applicant;
(12) an opinion of legal counsel that conforms with §15.109
of this title (relating to Opinion of Legal Counsel), concluding:
(A) the transaction will not cause or result in a material
violation of the laws of this state relative to the organization and
operation of state banks;
(B) the liabilities and obligations of the purchasing
bank will be limited to those expressly assumed under the purchase
agreement, unless otherwise required by law; and
(C) all conditions with respect to the transaction
imposed by the banking commissioner have been satisfied or otherwise
resolved or, to the best knowledge of legal counsel, no conditions
have been imposed;
(13) a copy of each filing regarding the proposed transaction
that is required by another governmental authority, complete with
all related attachments, exhibits, and correspondence;
(14) a current pro forma balance sheet and income statement
of the applicant, with adjustments, reflecting the proposed transaction
as of the most recent quarter ended immediately prior to the filing
of the application;
(15) a copy of the applicant's strategic plan that
complies with the department's Memorandum 1009, including projections
of the balance sheet and income statement of the applicant as of the
quarter ending one year from the date of its current pro forma financial
statement required in accordance with paragraph (14) of this subsection;
(16) an explanation of the manner and basis of valuing
any of the shares or other evidences of ownership of an entity that
is to constitute part of the consideration used to acquire assets;
(17) the location of each new branch of the applicant
that will result from the transaction;
(18) 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, if applicable;
(19) other information that the banking commissioner,
in the exercise of discretion, considers necessary to make an informed
decision to approve or deny the proposed transaction; and
(20) 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.
(d) Public notice. Within 14 days prior to or 14 days
after submission of the initial application, the applicant must publish
notice in accordance with the requirements of §15.5 of this title
(relating to Public Notice) in the specified communities where the
home offices of the applicant and other financial institutions involved
in the transaction are located. With respect to an interstate merger
transaction, the applicant must inform the department of the publication
requirements in the host state for the banking commissioner to determine,
pursuant to §15.5(e) of this title, whether those requirements
satisfy the publication requirements of this subsection.
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Source Note: The provisions of this §15.105 adopted to be effective September 15, 1997, 22 TexReg 8948; amended to be effective January 7, 2004, 29 TexReg 80; amended to be effective November 8, 2012, 37 TexReg 8779; amended to be effective January 2, 2020, 44 TexReg 8232 |