Many banks have taken advantage of the provisions of the JOBS Act regarding the holder-of-record threshold to deregister and terminate their registration. Banks may want to consider their capital-raising alternatives going forward. A community or small bank that is no longer subject to Exchange Act filing requirements may consider a Rule 506 offering. A Rule 506 offering to accredited investors will be an attractive alternative for many banks. However, capital-raising always has been a challenge for community banks. Some institutional investors may be reluctant to invest in "restricted securities" if these investors are subject to caps or limitations on the amount of restricted securities that they may hold in their portfolios. Some banks may want to focus on issuances at the bank level (not the holding company level) and rely on the Section 3(a)(2) exemption available to banks. Section 3(a)(2) of the Securities Act exempts from registration any security issued or guaranteed by a national bank, or any banking institution organized under the law of any state, territory, or the District of Columbia, the business of which is substantially confined to banking and is supervised by the state or territorial banking commission or similar official. To qualify for the exemption under Section 3(a)(2), the institution must meet two requirements: (i) it must be a national bank or any institution supervised by a state banking commission or similar authority and (ii) its business must be substantially confined to banking. Securities issued by bank holding companies are not exempt from registration under Section 3(a)(2). Securities issued pursuant to this exemption will not be considered "restricted securities" and, as a result, there may be more investor interest.
Banks would benefit from a specific exemption under Section 3(b)(2). The Commission has an opportunity in connection with its 3(b)(2) rulemaking (required by Title IV of the JOBS Act) to consider a streamlined approach for banks to offer securities publicly (relying on a framework similar to that provided by existing Regulation A), which will not be "restricted securities." Under existing Regulation A, an issuer must prepare an offering statement. Banks, however, are already subject to significant regulatory oversight and make available financial and other information to their regulators (and bank call reports are accessible to investors). It would make good sense to consider a tailored 3(b)(2) exemption for banks, with reduced information requirements, especially given that many banks will have availed themselves of the modified holder-of-record provisions to terminate their filing obligations, but still need access to capital.
Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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