The JOBS Act amends Sections 12(g) and 15(d) of the Exchange Act to increase the record holder threshold at which issuers must register under the Exchange Act from 500 persons, (i) to 2,000 persons, or 500 persons who are not accredited investors, for any company other than a bank or a bank holding company and, (ii) to 2,000 persons for a bank or bank holding company. On April 11, 2012, the Division of Corporation Finance issued Frequently Asked Questions Regarding Changes to the Requirements for Exchange Act Registration and Deregistration which address questions related to the changes imposed by the JOBS Act.
Effect on Obligation of Issuers to Register. If the issuer (other than a bank holding company) triggered a Section 12(g) reporting obligation for a class of securities as of a fiscal year-end prior to April 5, 2012, but would not trigger such obligation under the amended rule, and the issuer has not yet registered that security under Section 12(g), then the issuer would no longer be subject to the registration obligation with respect to that security. If the issuer (other than a bank holding company) has not filed an Exchange Act registration statement, it is no longer required to do so.
A bank holding company will have a Section 12(g) registration obligation if, as of any fiscal year-end after April 5, 2012, it has total assets of more than $10 million and a class of equity security held of record by 2,000 or more persons. Therefore, the SEC considers the effect of this amended provision is to eliminate, for bank holding companies, any Section 12(g) registration obligation with respect to a class of equity security as of a fiscal year-end on or before April 5, 2012.
If the issuer (including a bank holding company) 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 (including a bank holding company) has already registered a class of equity securities under Section 12(g), it would need to continue that registration unless it is eligible to deregister under Section 12(g) or current rules.
Termination of Registration under Section 12(g) of a Class of Equity Securities of a Bank Holding Company. If a class of equity security is held of record by less than 1,200 persons, the bank holding company may file a Form 15 to terminate the Section 12(g) registration of that class. Form 15 has not yet been amended to reflect the new rules. Therefore, the issuer should include an explanatory note in its Form 15 which explains that it is relying on Section 12(g)(4) to terminate its duty to file reports with respect to that security. Until the registration is terminated 90 days after filing of the Form 15, the issuer will be required to file all reports under Sections 13(a), 14, and 16 of the Exchange Act. A bank holding company may apply for immediate suspension of its Section 13(a) reporting obligations, effective upon the filing of a Form 15, if it meets all the requirements of Rule 12g-4. Rule 12g-4 has not yet been amended to incorporate the new 1,200 holder deregistration threshold.
Suspension of Reporting Obligations under Section 15(d) by Bank Holding Companies. For the current fiscal year, a bank holding company can suspend its obligation to file reports under Section 15(d) with respect to a class of securities that was sold pursuant to a Securities 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. Such suspension would be deemed to have occurred as of the beginning of the fiscal year.
If during the current fiscal year, a bank holding company has a registration statement that becomes effective or is updated pursuant to Securities Act Section 10(a)(3), then such bank holding company will have a Section 15(d) reporting obligation for the current fiscal year. However, if the bank holding company (i) has a security held of record by less than 1,200 persons as of the first day of the current fiscal year, (ii) has a registration statement that is updated pursuant to Section 10(a)(3) of the Securities Act, and (iii) did not make any sales of such security under such registration statement during the current fiscal year, then the bank holding company may be eligible to seek no-action relief to suspend its Section 15(d) reporting obligations. Such issuers should contact the Office of Chief Counsel for the Division of Corporation Finance for further information.
“Held of Record” Definition. Section 503 of the JOBS Act requires the SEC 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. The FAQs provide that as of April 5, 2012, issuers, including bank holding companies, may exclude such persons, whether or not the person is a current employee of the issuer, from its holder of record calculation.