Current through Reg. 49, No. 38; September 20, 2024
The following procedures must be followed when a person
desires to obtain control of a savings association (including change of control
of a savings association holding company).
(1) No person other than the issuer may make
a public tender offer for, solicitation or a request or invitation for tenders
of, or enter into and consummate any agreement to exchange securities for, seek
to acquire, or acquire in the open market or by means of a privately negotiated
agreement or contract, any voting security or any security convertible into a
voting security of a savings association if, after the consummation thereof,
such person would directly or indirectly, or by conversion or by exercise of
any right to acquire, be in control of such savings association, unless such
person has filed with the Commissioner all of the following information on an
application form approved by the Commissioner and which application form is
deemed by the Commissioner to be complete and has received a written order from
the Commissioner approving such acquisition or change of control:
(A) the background and identity of the
applicant, if such applicant and any affiliate is an individual, or all
individuals who are directors, executive officers, or owners of 10% or more of
the voting securities of the applicant if the applicant is not an individual.
Such filing must contain the following information:
(i) name and address;
(ii) present principal business activity,
occupation, or employment including position and office held and the name,
principal business, and address of any corporation or other organization in
which such employment is carried on;
(iii) material occupations, positions,
offices, or employments previously held by the individual, giving the starting
and ending dates of each and the name, principal business, and address of any
business corporation or other organization in which each such occupation,
position, office, or employment was carried on, indicating if any such
occupation, position, office, or employment required licensing by or
registration with any federal, state, or municipal governmental
agency;
(iv) whether such
individual is presently charged with or has ever been convicted of a violation
of law in a criminal proceeding (excluding minor traffic violations) and, if
so, giving the date, nature of conviction, name and location of the court, and
penalty imposed or other disposition of the case;
(v) whether such individual has been or is a
party to any federal, state, or municipal court lawsuit in which such
individual is or was alleged to have violated any federal or state statutes or
regulations, and, if so, giving the date, style of the suit, case number, court
location, and disposition of the suit;
(vi) whether any such individual has been or
is a party to any federal, state, or municipal governmental agency
administrative actions in which such individual was or is alleged to be in
violation of any governmental agency statute or regulation, and if so, giving
the date, nature of the action, name and location of the governmental agency,
and disposition of the case; and any other relevant information requested by
the Commissioner;
(B) if
the applicant is not an individual, the nature of its business operations for
the past five years or for such lesser period as such applicant and any
predecessors thereof have been in existence;
(C) description of the interrelationships
between the applicant and all affiliates of the applicant;
(D) nature, identity, source, and amount of
funds or other consideration used or to be used in effecting the acquisition of
control, and, if any part of these funds or other consideration has been or is
to be borrowed or otherwise obtained, there must be a description of the
transaction, the names of the parties, and all arrangements, or other
understanding with such parties, including all arrangements, agreements, or
understandings in regard to repayment of the funds;
(E) any plans or proposals which the
applicant may have to declare dividends to liquidate such savings associations,
to sell its assets, or to merge it with any person or persons or to make any
other material change in its business operations or corporate structure or
management, including modifications in or plans to enter into any management
contracts, and any financial or employment guarantees given to present and
contemplated management;
(F) the
terms and conditions of any proposed acquisition and the manner in which the
acquisition is to be made;
(G) the
number of shares of the savings association's voting securities (including
securities convertible or evidencing rights to acquire voting securities) which
the applicant, its affiliates, affiliated persons, and any other related person
plans to acquire, and the terms of the offer, request, invitation, agreement,
or acquisition;
(H) a description
of any contracts, arrangements, or understandings with respect to any voting
security of the savings association in which the applicant, its affiliates, or
any related person is involved;
(I)
copies of any contracts, agreements, or other documents which the Commissioner
determines are relevant to the review of the application; and
(J) any other relevant information requested
by the Commissioner.
(2)
If the person required to file the information required by paragraph (1) of
this section is a partnership, limited partnership, syndicate, trust, or other
group, the Commissioner may require that the information must be given to:
(A) each partner of such partnership or
limited partnership;
(B) each
member of such syndicate or group; and
(C) each person who controls such partner or
member.
(3) If the person
required to file the information required by paragraph (1) of this section is a
corporation, the Commissioner may require that the information called for must
be given with respect to such corporation and each officer and director of such
corporation and each person who is directly or indirectly the beneficial owner
of more than 10% of the outstanding voting securities of such
corporation.
(4) The transaction
for acquisition of control of a savings association may not be consummated
until the Commissioner approves the application for acquisition of control. The
application will be processed and considered in accordance with Finance Code
§
62.555 and §
62.556. The Commissioner
will render a decision on or before 60 days after the application is complete
and accepted for filing as provided by §
60.101 of this title (relating to
Application Filing Requirements). The application will be denied if the
Commissioner finds any of the following:
(A)
the acquisition would substantially lessen competition or would in any manner
be in restraint of trade and would result in a monopoly or would be in
furtherance of a combination or conspiracy to monopolize or attempt to
monopolize the savings association or savings bank industry in any part of the
state, unless the Commissioner also finds that the anticompetitive effects of
the proposed acquisition are clearly outweighed in the public interest by the
probable effect of acquisition in meeting the convenience and needs of the
community to be served and that the proposed acquisition is not a violation of
any law of this state or the United States;
(B) the financial condition of any acquiring
party might jeopardize the financial stability of the savings association being
acquired;
(C) plans or proposals to
liquidate or sell the savings association or its assets are not in the best
interest of the savings association;
(D) the experience, ability, standing,
competence, trustworthiness, or integrity of the applicant is such that the
acquisition would not be in the best interest of the savings
association;
(E) the savings
association will not be solvent, have adequate capital structure, or be in
compliance with the laws of this state after the acquisition;
(F) the acquisition would result in the
violation of any law or regulation or it has been evidenced that the applicant,
affiliates, or affiliated persons may cause to be abused the fiduciary
responsibility held by the savings association or other demonstration or
untrustworthiness of the applicant, affiliates, or affiliated persons which
would affect the savings association has been evidenced;
(G) the applicant has not provided
information pertinent to the application requested by the Commissioner;
or
(H) the applicant is not acting
in good faith.
