The SEC has issued a series of frequently asked questions on Exchange Act registration under the JOBS Act.
Anyone who registered under the Exchange Act before they were required to will be sorry. The FAQs state with respect to issuers that are not bank holding companies:
- If an issuer triggered a registration obligation before April 5, 2012, but would not trigger such obligation under the JOBS Act, then the issuer is no longer subject to a Section 12(g) registration obligation with respect to that class. Therefore, if the issuer has not filed an Exchange Act registration statement, it is no longer required to do so.
- If the issuer has filed an Exchange Act registration statement and the registration statement is not yet effective, then the issuer may withdraw the registration statement.
- •If the issuer has registered a class of equity security under Section 12(g), it would need to continue that registration.
Section 503 of the JOBS Act requires the Commission to revise the definition of “held of record” to exclude, from the holder of record calculation, persons who received the securities pursuant to an employee compensation plan in transactions exempted from the registration requirements of Section 5 of the Securities Act. Issuers however are not required to wait for SEC rulemaking before excluding holders who acquired securities through exempt employee benefit plans. Issuers may also exclude former employees who received securities in exempt benefit plan transactions.
The FAQs also address questions with respect to bank holding companies.