| (a) Definitions. When these words and terms are used
in this section they will have these meanings, unless the context
clearly indicates otherwise.
(1) Affiliate--A person that directly or indirectly
through one or more intermediaries controls, is controlled by, or
is under common control with a state bank seeking to effect a reverse
stock split. A person who is not an affiliate of the state bank at
the commencement of its reverse stock split will not be considered
an affiliate of the bank prior to the completion of the reverse stock
split.
(2) Appraisal report--A report, opinion (other than
an opinion of counsel), or appraisal from an outside party which is
materially related to the reverse stock split, including a report,
opinion, or appraisal relating to the consideration or the fairness
of the consideration to be offered to shareholders in connection with
the reverse stock split or the fairness of the transaction to the
state bank or to unaffiliated shareholders.
(3) Reverse stock split--An amendment to the certificate
of formation of a state bank that achieves a reduction in the number
of issued shares of the bank by requiring exchange of all issued shares
in a particular class for a proportionately smaller number of shares,
generally with a proportionately increased par or stated value. The
equity capital of the state bank remains substantially the same.
(4) Share--A unit representing ownership of at least
part of the proprietary interests of a state bank, whether or not
divided or subdivided by means of classes, series, relative rights,
or preferences; and includes a stock or similar security; or a security
convertible, with or without consideration, into such a security,
or carrying a warrant or right to subscribe to or purchase such a
security; or such warrant or right; or another security determined
by the banking commissioner to be an equity security pursuant to the
Finance Code, §31.002(a)(9)(B).
(5) Unaffiliated shareholder--A shareholder of a share
subject to a reverse stock split who is not an affiliate of the state
bank that issued the share.
(b) Procedure. Pursuant to the Finance Code, §32.101,
to effectuate a reverse stock split in compliance with this section,
a state bank must:
(1) obtain the approval of its shareholders as required
by law; and
(2) obtain the approval of the banking commissioner
pursuant to subsection (d) of this section, by filing an application
setting forth the information and documents required by subsection
(c) of this section and the filing fee required by §15.2 of this
title (relating to Filing and Investigation Fees).
(c) Application. A state bank proposing a reverse stock
split transaction must file with the banking commissioner a written
application seeking approval of the proposed amendment to its certificate
of formation, stating the results of the vote of shareholders regarding
the proposed reverse stock split and stating the percentage of shares
of unaffiliated shareholders that were voted in favor of the proposed
reverse stock split, or undertaking to supplement the application
after conditional approval is obtained to provide shareholder approval
information, setting forth or including as exhibits:
(1) the original and one copy of the proposed amendment
to the certificate of formation, to be processed in the manner required
by the Finance Code, §32.101(c), and a description of the material
terms of the proposed reverse stock split, including terms or arrangements
relating to any shareholder of the state bank which are not identical
to those relating to other shareholders of the same class;
(2) any plan or proposal of the state bank, regarding
activities or transactions which are to occur after the reverse stock
split which relate to or would result in:
(A) an extraordinary corporate transaction, such as
a merger, reorganization, or liquidation, involving the state bank
or any of its subsidiaries;
(B) a sale or transfer of a material amount of assets
of the state bank or any of its subsidiaries;
(C) a change in the present board of directors or management
of the state bank, including a plan or proposal to change the number
or term of directors, to fill an existing vacancy on the board or
to change a material term of the employment contract of an executive
officer;
(D) a material change in the present dividend rate
or policy or indebtedness or capitalization of the state bank;
(E) any other material change in the state bank's corporate
structure or business;
(3) the corporate purpose or purposes of the state
bank for the reverse stock split, and alternative means, if any, considered
by the state bank to accomplish the purposes and the reasons for their
rejection, and the reason for choosing the structure of a reverse
stock split and for undertaking the transaction at this time;
(4) a certified resolution of the board of directors
of the state bank approving the proposed amendment to the certificate
of formation, accompanied by a statement whether or not the board
of directors of the state bank reasonably believes that the reverse
stock split is fair or unfair to unaffiliated shareholders that:
(A) identifies each director, if any, that dissented
to or abstained from voting on the merits of the reverse stock split,
and describes, if known to the state bank after making reasonable
inquiry, the reasons for each dissent or abstention; and
(B) states the number and percentage of disinterested
directors that voted in favor of the proposed reverse stock split;
(5) whether or not the state bank obtained an appraisal
report and, if an appraisal report was obtained, a copy of the appraisal
report. To the extent not addressed in the appraisal report, the state
bank must disclose:
(A) the identity, qualifications, and method of selection
of the outside party that prepared the appraisal report, any material
relationship between the outside party or its affiliates and the state
bank or its affiliates which existed during the past two years or
is mutually understood to be contemplated, and any compensation received
or to be received as a result of the relationship;
(B) a summary of the performance of the appraisal report,
including the procedures followed, the findings and recommendations,
the bases for and methods of arriving at the findings and recommendations,
instructions received from the state bank, and any limitation imposed
by the state bank on the scope of the investigation; and
(C) whether the appraisal report will be made available
for inspection and copying at the home office of the state bank during
its regular business hours by any shareholder of the state bank or
any shareholder's representative who has been so designated in writing;
(6) with respect to the class of shares to which the
reverse stock split relates, the aggregate amount and percentage of
shares beneficially owned by any pension, profit sharing, or similar
plan of the state bank, and by each officer, director, principal shareholder,
and subsidiary of the state bank;
(7) with respect to any purchases of the shares made
by the state bank since the commencement of the bank's second full
fiscal year preceding the date of the application, the amount of the
shares purchased, the range of prices paid for the shares, and the
average purchase price for each quarterly period of the bank during
this period;
(8) to the extent known to the state bank after reasonable
inquiry, any transaction in the class of shares subject to the proposed
reverse stock split that was effected during the past 60 days by the
state bank or by an officer, director, principal shareholder, or subsidiary
of the state bank, including the identity of the person who effected
the transaction, the date of the transaction, the amount of shares
involved, the price per share, and where and how the transaction was
effected;
(9) to the extent known to the state bank after reasonable
inquiry, a description and/or a copy of any contract, arrangement,
understanding, or relationship (whether or not legally enforceable)
in connection with the reverse stock split between the state bank
(or an officer, director, principal shareholder, or subsidiary of
the state bank) and any person with respect to any shares of the state
bank (including a contract, arrangement, understanding, or relationship
concerning the transfer or the voting of these shares, joint ventures,
loan, or option arrangements, puts or calls, guaranties of loans,
guaranties against loss or the giving or withholding of proxies, consents,
or authorizations), naming the persons with whom these contracts,
arrangements, understandings, or relationships have been entered into
and giving the material provisions thereof, including information
for any of these shares that are pledged or otherwise subject to a
contingency, the occurrence of which would give another person the
power to direct the voting or disposition of these shares, except
that disclosure of standard default and similar provisions contained
in loan agreements need not be included;
Cont'd... |
