Since the adoption of the Fixing America’s Surface Transportation Act (FAST Act) on December 4, 2015, the Division of Corporation Finance (Division) of the Securities and Exchange Commission has issued six Compliance and Disclosure Interpretations (C&DIs), the first two of which were previously summarized in the Corporate and Financial Weekly Digest edition of December 18, 2015. The four most recently released C&DIs related to the FAST Act were issued on December 21, 2015, and include the following guidance:
- C&DI 3 underscores that Section 85001 of the FAST Act amended Section 12(g) and Section 15(d) of the Securities Exchange Act of 1934, as amended (Exchange Act), to provide that savings and loan holding companies will be treated in a similar manner to bank holding companies for purposes of registration, termination of registration or suspension of their reporting obligations under the Exchange Act. In particular, with respect to savings and loan holding companies:
- savings and loan holding companies will have a Section 12(g) registration obligation as of any fiscal year-end after December 4, 2015, with respect to a class of its equity securities that is held of record by 2,000 or more persons;
- the holders of record threshold for deregistration under Section 12(g) has increased from 300 to 1,200 persons; and
- the holders of record threshold for suspension of reporting under Section 15(d) has increased from 300 to 1,200 persons.
- C&DI 4 clarifies that the Division interprets the FAST Act amendments to Section 12(g)(1)(B) to eliminate any Section 12(g) registration obligation for savings and loan holding companies with respect to a class of equity securities where the registration obligation would otherwise be triggered as of a fiscal year that ended on or before December 4, 2015. Accordingly, any savings and loan holding company that has filed a registration statement under the Exchange Act that is not yet effective may withdraw the registration statement. If any savings and loan holding company has already registered a class of equity securities under Section 12(g), it must continue such registration unless it is eligible to deregister the securities.
- C&DI 5 provides that a savings and loan holding company may terminate its Section 12(g) registration by filing a Form 15 if the applicable class of equity securities is held of record by less than 1,200 persons. Until rule amendments are made to reflect the changes to Section 12(g)(4) promulgated under the FAST Act, the SEC advises any savings and loan holding company filing a Form 15 in reliance on such changes to include an explanatory note indicating that it is relying on Exchange Act Section 12(g)(4).
- C&DI 6 clarifies that a savings and loan holding company may suspend its obligation to file reports under Section 15(d) of the Exchange Act with respect to a class of securities sold pursuant to an Exchange Act registration statement and that was held of record by less than 1,200 persons as of the first day of the current fiscal year. The suspension would be deemed to have occurred as of the beginning of the fiscal year in accordance with Section 15(d) (as amended by the FAST Act). However, if a savings and loan holding company has a registration statement that becomes effective or is updated during the current fiscal year, it will then have a Section 15(d) reporting obligation for the current fiscal year, unless the updating was pursuant to Section 10(a)(3) of the Exchange Act and no sales have been made under the registration statement during the current fiscal year.
The complete text of all six FAST Act C&DIs can be found here.