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Corporate Decision #98-46 November 1998

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Corporate Decision #98-46 November 1998 Comptroller of the Currency Administrator of National Banks Washington, D.C. 20219 Corporate Decision #98-46 November 1998 DECISION OF THE OFFICE OF THE COMPTROLLER OF THE CURRENCY ON THE APPLICATION TO MERGE SECURITYBANK TEXAS, ARLINGTON, TEXAS, WITH AND INTO SOUTHTRUST BANK, NATIONAL ASSOCIATION, BIRMINGHAM, ALABAMA October 15, 1998 _____________________________________________________________________________ I. INTRODUCTION On September 1, 1998, SouthTrust Bank, National Association, Birmingham, Alabama (“SouthTrust”) filed an Application (“Merger Application”) with the Office of the Comptroller of the Currency ("OCC") for approval to merge SecurityBank Texas, Arlington, Texas (“SecurityBank”) with and into SouthTrust under SouthTrust’s charter and title, pursuant to 12 U.S.C. §§ 215a-1, 1828(c) & 1831u(a) ("the Interstate Merger"). SouthTrust is an interstate national bank which has its main office in Birmingham and operates branches in Alabama, Florida, Georgia, Mississippi, North Carolina, South Carolina and Tennessee.1 SecurityBank has its main office in Arlington, Texas, and operates branches only in Texas. In the Merger Application, OCC approval is also requested for SouthTrust, as the resulting bank, to retain SouthTrust’s main office as the main office of the resulting bank under 12 U.S.C. § 1831u(d)(1) and to retain SouthTrust’s branches and SecurityBank’s main office and branches as branches after the merger under 12 U.S.C. §§ 36(d) & 1831u(d)(1). SouthTrust is a wholly-owned subsidiary of SouthTrust of Alabama Inc., which in turn is a wholly-owned subsidiary of SouthTrust Corporation, a multistate bank holding company headquartered in Birmingham, Alabama. SecurityBank is not owned or controlled by a bank holding company. As of March 31, 1998, SouthTrust had approximately $33 billion in assets and $20 billion in deposits, and SecurityBank had approximately $81 million in assets and $73 million in deposits. 1 SouthTrust operates branches in these states as a result of earlier merger transactions. See, e.g., Decision on the Application to Merge Nine Affiliated Banks into SouthTrust Bank of Alabama, N.A., Birmingham, Alabama (OCC Corporate Decision No. 97-41, June 1, 1997). - 2 - II. LEGAL AUTHORITY A. The Interstate Merger is Authorized under 12 U.S.C. §§ 215a-1 and 1831u. In the Interstate Merger, SecurityBank will be merged into SouthTrust. In 1994, Congress enacted legislation to create a framework for interstate mergers and branching by banks.2 The Riegle-Neal Act added a new section 44 to the Federal Deposit Insurance Act that authorized certain interstate merger transactions beginning on June 1, 1997: (1) In General. -- Beginning on June 1, 1997, the responsible agency may approve a merger transaction under section 18(c) [12 U.S.C. § 1828(c), the Bank Merger Act] between insured banks with different home States, without regard to whether such transaction is prohibited under the law of any State. 12 U.S.C. § 1831u(a)(1).3 The Riegle-Neal Act also permitted a state to elect to prohibit such interstate merger transactions involving a bank whose home state is the prohibiting state by enacting a law between September 29, 1994, and May 31, 1997, that applies equally to all out-of-state banks and expressly prohibits all mergers involving out-of-state banks. See 12 U.S.C. § 1831u(a)(2) (state "opt-out" laws). In this Merger Application, the home states of the banks are Alabama and Texas. Neither state has laws that opt-out of the interstate merger provisions of the Riegle-Neal Act. Texas law contains two provisions that purport to bar interstate mergers. First, Texas Constitution Article XVI, Section 16(a) bars foreign corporations, other than national banks domiciled in Texas, from exercising banking privileges in Texas. Second, Texas Finance Code § 32.0095(a), enacted in 1995, prohibits Texas state-chartered banks and national banks with main offices in Texas from engaging in a merger transaction involving an out-of-state bank. However, neither of these provisions meets the requirements in the Riegle-Neal Act for an effective state opt-out 2 See Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994, Pub. L. No. 103-328, 108 Stat. 2338 (enacted September 29, 1994) ("the Riegle-Neal Act"). 3 See Riegle-Neal Act § 102(a) (adding new section 44, 12 U.S.C. § 1831u). The Act also made conforming amendments to the provisions on mergers and consolidations of national banks to permit national banks to engage in such section 44 interstate merger transactions. See Riegle-Neal Act § 102(b)(4) (adding a new section, codified at 12 U.S.C. § 215a-1). It also added a similar conforming amendment to the McFadden Act to permit national banks to maintain and operate branches in accordance with section 44. See Riegle-Neal Act § 102(b)(1)(B) (adding new subsection 12 U.S.C. § 36(d)). For purposes of section 1831u, the following definitions apply: The term "home State" means, with respect to a national bank, "the State in which the main office of the bank is located." The term "host State" means, "with respect to a bank, a State, other than the home State of the bank, in which the bank maintains, or seeks to establish and maintain, a branch." The term "interstate merger transaction" means any merger transaction approved pursuant to section 1831u(a)(1). The term "out-of-State bank" means, "with respect to any State, a bank whose home State is another State." The term "responsible agency" means the agency determined in accordance with 12 U.S.C. § 1828(c)(2) (namely, the OCC if the acquiring, assuming, or resulting bank is a national bank). See 12 U.S.C. § 1831u(f)(4), (5), (6), (8) & (10). - 3 - law. The provision in the Texas Constitution antedates the Riegle-Neal Act, and so it does not meet the requirement that the state provision be enacted between September 29, 1994, and May 31, 1997. The provision in the Texas Finance Code does not prohibit interstate mergers involving state savings banks, and so it does not meet the Riegle-Neal Act’s requirement that the state law apply equally to all banks.4 Recently, the appropriate responsible federal banking agencies have approved several interstate mergers under the Riegle-Neal Act involving out-of-state state-chartered banks and state or national banks located in Texas in which the out-of-state state bank was the resulting bank.5 In connection with those applications, the Texas Department of Banking issued opinions stating that the Texas law provisions did not meet the requirements of the Riegle-Neal Act for the reasons noted above and concluded that the responsible federal banking agency may approve an interstate merger transaction between insured banks with different home states, one of which is Texas.6 Accordingly, the proposed Interstate Merger in this Merger Application may be approved under 12 U.S.C. §§ 215a-1 & 1831u(a). An application to engage in an interstate merger transaction under 12 U.S.C. § 1831u is also subject to certain requirements and conditions set forth in sections 1831u(a)(5) and 1831u(b) of the Riegle-Neal Act. These conditions are: (1) compliance with state-imposed age limits, if any, subject to the Act’s limits; (2) compliance with certain state filing requirements, to the extent the filing requirements are permitted in the Act; (3) compliance with nationwide and state concentration limits; (4) community reinvestment compliance; and (5) adequacy of capital and management skills. The Interstate Merger satisfies all these conditions to the extent applicable. First, the proposal satisfies the state-imposed age requirements permitted by section 1831u(a)(5). Under that section, the OCC may not approve a merger under section 1831u(a)(1) "that would have the effect of permitting an out-of-State bank or out-of-State bank holding company to acquire a bank in a host state that has not been in existence for the minimum period of time, if any, specified in the statutory law of the host State." 12 U.S.C. § 1831u(a)(5)(A). However, the maximum age requirement a state is permitted to set is five years. 12 U.S.C. § 1831u(a)(5)(B). In the proposed Interstate Merger, SouthTrust is acquiring by merger a bank in the host state of Texas. Texas has not yet enacted legislation implementing the interstate merger and branching provisions of the 4 For further discussion of Texas Finance Code § 32.0095 and the Riegle-Neal Act’s requirements for an effective state opt-out law, see Decision on the Application to Merge NationsBank of Texas N.A., Dallas, Texas, into NationsBank N.A., Charlotte, North Carolina (OCC Corporate Decision No. 98-19, April 2, 1998) (Part II-A-4-b, pages 18-20) (“OCC NationsBank/Texas Decision”). 5 See, e.g., Letter from the Federal Deposit Insurance Corporation Atlanta Regional Office approving the merger of State First National Bank, Texarkana, Texas, into Regions Bank, Birmingham, Alabama (August 6, 1998); Letter from the Federal Reserve Bank of Atlanta approving the merger of FirstBank, Dallas, Texas, into Colonial Bank, Montgomery, Alabama (August 20, 1998); Letter from the Federal Reserve Board approving the merger of Compass Bank, Houston, Texas, into Compass Bank, Birmingham, Alabama (August 28, 1998). 6 See, e.g., Letter of Everette D. Jobe, General Counsel, Texas Department of Banking (July 30, 1998). See also Press Release of Texas Department of Banking (May 13, 1998) (Texas Department of Banking announcement that it would permit state banks with their main offices in Texas to engage in interstate merger and branching transactions). - 4 - Riegle-Neal Act, and so it does not have an age requirement for interstate mergers between banks. Moreover, SecurityBank has been in existence for more than five years.
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