12 Cfr 552.13

[Code of Federal Regulations]
[Title 12, Volume 5]
[Revised as of January 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 12CFR552.13]

[Page 152-154]

TITLE 12--BANKS AND BANKING

CHAPTER V--OFFICE OF THRIFT SUPERVISION, DEPARTMENT OF THE TREASURY

PART 552_FEDERAL STOCK ASSOCIATIONS_INCORPORATION, ORGANIZATION, AND
CONVERSION--Table of Contents

Sec. 552.13 Combinations involving Federal stock associations.

(a) Scope and authority. Federal stock associations may enter into
combinations only in accordance with the provisions of this section,
sections 5(d) and 18(c) of the Federal Deposit Insurance Act, sections
5(d)(3)(A) and 10(s) of the Home Owners' Loan Act, and Sec. 563.22 of
this chapter.
(b) Definitions. The following definitions apply to Sec. Sec.
552.13 and 552.14 of this part:
(1) Combination. A merger or consolidation with another depository
institution, or an acquisition of all or substantially all of the assets
or assumption of all or substantially all of the liabilities of a
depository institution by another depository institution. Combine means
to be a constituent institution in a combination.
(2) Consolidation. Fusion of two or more depository institutions
into a newly-created depository institution.
(3) Constituent institution. Resulting, disappearing, acquiring, or
transferring depository institution in a combination.
(4) Depository institution means any commercial bank (including a
private bank), a savings bank, a trust company, a savings and loan
association, a building and loan association, a homestead association, a
cooperative bank, an industrial bank or a credit union, chartered in the
United States and having its principal office located in the United
States.
(5) Disappearing institution. A depository institution whose
corporate existence does not continue after a combination.
(6) Merger. Uniting two or more depository institutions by the
transfer of all property rights and franchises to the resulting
depository institution, which retains its corporate identity.
(7) Mutual savings association. Any savings association organized in
a form not requiring non-withdrawable stock under Federal or State law.
(8) Resulting institution. The depository institution whose
corporate existence continues after a combination.
(9) Savings association has the same meaning as defined in Sec.
561.43 of this chapter.
(10) State. Includes the District of Columbia, Commonwealth of
Puerto Rico, and States, territories, and possessions of the United
States.
(11) Stock association. Any savings association organized in a form
requiring non-withdrawable stock.
(c) Forms of combination. A Federal stock association may combine
with any depository institution, provided that:
(1) The combination is in compliance with, and receives all
approvals required under, any applicable statutes and regulations;
(2) Any resulting Federal savings association meets the requirements
for Federal Home Loan Bank membership and insurance of accounts;
(3) In the case of a combination with a bank that is a member of the
Bank Insurance Fund, any resulting Federal savings association conforms
to the requirements of sections 5(c) and 10(m) of the Home Owners' Loan
Act under the standards set forth in section 5(c)(5) of the Home Owners'
Loan Act, and in the case of a combination with any other depository
institution, any resulting Federal savings association conforms within
the time prescribed by the OTS to the requirements of section 5(c) of
the Home Owners' Loan Act; and
(4) If any constituent savings association is a mutual savings
association, the resulting institution shall be mutually held, unless:
(i) The transaction involves a supervisory merger;
(ii) The transaction is approved under part 563b of this chapter;
(iii) The transaction involves an interim Federal stock association
or an interim State stock savings association; or
(iv) The transaction involves a transfer in the context of a mutual
holding company reorganization under section 10(o) of the Home Owners'
Loan Act.
(d) Combinations. Prior written notification to, notice to, or prior
written approval of, the Office pursuant to Sec. 563.22 of this chapter
is required for every combination. In the case of applications and
notices pursuant to Sec. 563.22 (a) or (c), the Office shall apply

[[Page 153]]

the criteria set out in Sec. 563.22 of this chapter and shall impose
any conditions it deems necessary or appropriate to ensure compliance
with those criteria and the requirements of this chapter.
(e) Approval of the board of directors. Before filing a notice or
application for any combination involving a Federal stock association,
the combination shall be approved:
(1) By a two-thirds vote of the entire board of each constituent
Federal savings association; and
(2) As required by other applicable Federal or state law, for other
constituent institutions.
(f) Combination agreement. All terms, conditions, agreements or
understandings, or other provisions with respect to a combination
involving a Federal savings association shall be set forth fully in a
written combination agreement. The combination agreement shall state:
(1) That the combination shall not be effective unless and until:
(i) The combination receives any necessary approval from the Office
pursuant to Sec. 563.22 (a) or (c);
(ii) In the case of a transaction requiring a notification pursuant
to Sec. 563.22(b), notification has been provided to the OTS; or
(iii) In the case of a transaction requiring a notice pursuant to
Sec. 563.22(c), the notice has been filed, and the appropriate period
of time has passed or the OTS has advised the parties that it will not
disapprove the transaction;
(2) Which constituent institution is to be the resulting
institution;
(3) The name of the resulting institution;
(4) The location of the home office and any other offices of the
resulting institution;
(5) The terms and conditions of the combination and the method of
effectuation;
(6) Any charter amendments, or the new charter in the combination;
(7) The basis upon which the savings accounts of the resulting
institution shall be issued;
(8) If a Federal association is the resulting institution, the
number, names, residence addresses, and terms of directors;
(9) The effect upon and assumption of any liquidation account of a
disappearing institution by the resulting institution; and
(10) Such other provisions, agreements, or understandings as relate
to the combination.
(g) [Reserved]
(h) Approval by stockholders--(1) General rule. Except as otherwise
provided in this section, an affirmative vote of two-thirds of the
outstanding voting stock of any constituent Federal savings association
shall be required for approval of the combination agreement. If any
class of shares is entitled to vote as a class pursuant to Sec. 552.4
of this part, an affirmative vote of a majority of the shares of each
voting class and two-thirds of the total voting shares shall be
required. The required vote shall be taken at a meeting of the savings
association.
(2) General exception. Stockholders of the resulting Federal stock
association need not authorize a combination agreement if:
(i) It does not involve an interim Federal savings association or an
interim state savings association;
(ii) The association's charter is not changed;
(iii) Each share of stock outstanding immediately prior to the
effective date of the combination is to be an identical outstanding
share or a treasury share of the resulting Federal stock association
after such effective date; and
(iv) Either:
(A) No shares of voting stock of the resulting Federal stock
association and no securities convertible into such stock are to be
issued or delivered under the plan of combination, or
(B) The authorized unissued shares or the treasury shares of voting
stock of the resulting Federal stock association to be issued or
delivered under the plan of combination, plus those initially issuable
upon conversion of any securities to be issued or delivered under such
plan, do not exceed 15% of the total shares of voting stock of such
association outstanding immediately prior to the effective date of the
combination.
(3) Exceptions for certain combinations involving an interim
association. Stockholders of a Federal stock association

[[Page 154]]

need not authorize by a two-thirds affirmative vote combinations
involving an interim Federal savings association or interim state
savings association when the resulting Federal stock association is
acquired pursuant to Sec. 574.7(a)(2) of this chapter. In those cases,
an affirmative vote of 50 percent of the shares of the outstanding
voting stock of the Federal stock association plus one affirmative vote
shall be required. If any class of shares is entitled to vote as a class
pursuant to Sec. 552.4 of this part, an affirmative vote of 50 percent
of the shares of each voting class plus one affirmative vote shall be
required. The required votes shall be taken at a meeting of the
association.
(i) Disclosure. The OTS may require, in connection with a
combination under this section, such disclosure of information as the
OTS deems necessary or desirable for the protection of investors in any
of the constituent associations.
(j) Articles of combination. (1) Following stockholder approval of
any combination in which a Federal savings association is the resulting
institution, articles of combination shall be executed in duplicate by
each constituent institution, by its chief executive officer or
executive vice president and by its secretary or an assistant secretary,
and verified by one of the officers of each institution signing such
articles, and shall set forth:
(i) The plan of combination;
(ii) The number of shares outstanding in each depository
institution; and
(iii) The number of shares in each depository institution voted for
and against such plan.
(2) Both sets of articles of combination shall be filed with the
Office. If the Office determines that such articles conform to the
requirements of this section, the Office shall endorse the articles and
return one set to the resulting institution.
(k) Effective date. No combination under this section shall be
effective until receipt of any approvals required by the Office. The
effective date of a combination in which the resulting institution is a
Federal stock association shall be the date of consummation of the
transaction or such other later date specified on the endorsement of the
articles of combination by the Office. If a disappearing institution
combining under this section is a Federal stock association, its charter
shall be deemed to be cancelled as of the effective date of the
combination and such charter must be surrendered to the Office as soon
as practicable after the effective date.
(l) Mergers and consolidations: transfer of assets and liabilities
to the resulting institution. Upon the effective date of a merger or
consolidation under this section, if the resulting institution is a
Federal savings association, all assets and property (real, personal and
mixed, tangible and intangible, choses in action, rights, and credits)
then owned by each constituent institution or which would inure to any
of them, shall, immediately by operation of law and without any
conveyance, transfer, or further action, become the property of the
resulting Federal savings association. The resulting Federal savings
association shall be deemed to be a continuation of the entity of each
constituent institution, the rights and obligations of which shall
succeed to such rights and obligations and the duties and liabilities
connected therewith, subject to the Home Owners' Loan Act and other
applicable statutes.

[54 FR 49523, Nov. 30, 1989, as amended at 57 FR 14343, Apr. 20, 1992;
59 FR 44623, Aug. 30, 1994]