Falling bank stock prices are raising an issue that has not cropped up since 1994, when Shawmut National Corp. had to recast its offer for Northeast Federal Corp.
Nashville-based First American Corp. and Commercial Federal Corp. a thrift based in Omaha, are two companies whose shares have fallen significantly since they announced merger agreements. If their shares fall only slightly further, the banks may have to raise their offers or risk losing their deals.
Analysts and bankers say it is highly unlikely the mergers will fail to occur. Not only have bank stocks shown signs of recovering from their recent slump, but the structure of most merger agreements nowadays protect acquirers against their stocks falling.
"It's certainly been a concern with banks down 10 or 15%" that mergers could be jeopardized, said Scott Edgar, director of research at Sife Trust Fund. But he said most deals "give quite a bit of leeway."
First American's share price has tumbled 21% since Dec. 8, when it agreed to buy Deposit Guaranty Corp. But First American's stock can drop even further without imperiling the merger because its merger agreement, according to a Securities and Exchange Commission filing, contains a "double trigger."
That means not only must First American's stock price continue to fall, but it must also significantly underperform an index that comprises 34 banks before Deposit Guaranty has the right to request calling off the merger.
The 34-bank index includes such regional banks as Huntington Bancshares and Regions Financial Corp., whose stocks would be expected to perform like First American's. It also contains such big banks as First Union Corp. and Wells Fargo & Co., whose shares have performed much worse than most regionals' in recent weeks. The inclusion of these banks in the index, analysts and investors say, probably assures that First American will acquire Deposit Guaranty.
Bank merger advisers say that including an index containing a wide array of bank stocks is standard in merger agreements nowadays.
"If you've got a double trigger, it's virtually impossible to walk out of a deal or get the exchange offer increased," said Barry P. Taff, partner at the law firm of Silver, Freedman & Taff. "It becomes a cosmetic thing for sellers to show they're thinking of their shareholders."
In greater peril is a proposed merger between Commercial Federal, a thrift with $7.2 billion of assets, and Perpetual Midwest Financial Inc., a $402 million thrift based in Cedar Rapids, Iowa. Perpetual turned down a higher cash offer from another company to take 0.8636 shares of Commercial Federal's stock for each Perpetual share.
This proposed deal contains only a single "trigger." According to an SEC filing, Perpetual can walk away from the merger if Commercial Federal's share price falls below $30.167 around the time the merger closes. The performance of Commercial Federal stock is not protected by tying it to an index of other thrifts or banks.
Since the proposed merger was announced Dec. 15, Commercial Fed's stock price has fallen to $31.8125, from $35.50.
Nevertheless, Rick L. Brown, Perpetual's executive vice president, chief financial officer, and treasurer, said he is confident the merger will proceed. The "floor price" for Commercial Federal's stock will not become a major concern until the deal's closing, scheduled for mid-May.
"We've got room, and we've got time," Mr. Brown said.