(a) The Commissioner shall approve the agreement if:
(1) The successor meets the requirements of State law for the formation of a new commercial bank;
(2) The agreement provides an adequate capital structure, including surplus, for the successor in relation to its deposit liabilities and other activities;
(3) The agreement is fair; and
(4) The proposed transaction is not against the public interest.
(b) If the successor will not exercise trust powers, the Commissioner may not approve the agreement until the Commissioner is satisfied that successor fiduciaries have been provided adequately for all fiduciary positions held by the constituent banks.