Q: A public bank has registered securities under Section 12(g) of the '34 Act and, by virtue of being a bank, reports to the FDIC instead of the SEC. Bank-issued stock is exempt from '33 Act registration. We are creating a bank holding company structure — the bank's shareholders have agreed to exchange their bank stock for shares in the new bank holding company, which will own all of the bank's stock going forward. Now that the issuer is a corporation, our securities regulator will be the SEC. The securities issued in the bank holding company reorganization will be issued pursuant to an exemption from registration under the '33 Act. Accordingly, after the reorganization, the bank holding company will not have any shares registered under the '33 Act. The question is whether any new registration statements need to be filed under the '34 Act. Under Rule 12g-3(a), the bank holding company's newly issued securities are "deemed" to be registered pursuant to Section 12. We note that under Rule 12g-3(f), we must file a Form 8-K disclosing the transaction, but is there any reason to file a Form 8-A or other registration statement to register the shares under the '34 Act?
RE: Rule 12g-3 should be available for the succession by the holding company to the bank's '34 Act registration. Under Rule 12g-3, the succession happens by operation of law and no '34 Act registration statement on Form 10 or Form 8-A is required.
This conclusion is borne out by a few SEC Staff telephone interpretations. In interp. M.19., the Staff explains that succession under Rule 12g-3 happens by operation of law and it is implemented by the SEC's acceptance of the Form 8-K. Interp M.20. deals with succession in a holding company context, noting that the holding company is automatically deemed to be registered under Section 12, whether or not an 8-K or 8-A is actually filed. Finally, in interp. M.23., the Staff specifically contemplates the circumstances surrounding the formation of a one-bank holding company, noting that because the subsidiary bank has no '34 Act file number (presumably because it previously satisfied its '34 Act obligations by reporting to its banking regulator), the new '34 Act file number is assigned when the successor holding company file the Form 8-K required under Rule 12g-3(f).
One practical note: when you file the 8-K via EDGAR, make sure that you use the header submission type of "8-K12G3" in order to ensure that the 8-K is recognized as announcing the succession and getting a file number assigned.
-Dave Lynn, Editor, TheCorporateCounsel.net 6/30/2007
RE: Regarding your practical note, would you use submission type "8-K12G3" or submission type "8-K12B" to establish the succession pursuant to 12g-3 for a registrant with a class of securities registered under Section 12(b)?
RE: If the class of securities is registered under Section 12(b), then the issuer should use submission type "8-K12B" to file the 8-K.
-Dave Lynn, Editor, TheCorporateCounsel.net 9/23/2009
RE: Thank you.
-9/23/2009 RE: When you search EDGAR under a successor company’s new file number, will the predecessor company’s filings (i.e., all filings prior to the succession transaction) show up in the successor’s filing history? What if you search under the successor's name, rather than the file number? Would the answer change if the predecessor company is going to continue filing reports on EDGAR using its file number following the reorg?
RE: Keir Gumbs notes the following in his article "Understanding Succession Issues under the Federal Securities Laws," 19 INSIGHTS 4 (April 2005). I would also note that, in a change of position, the Staff will no longer give no-action relief in its successor line of letter whereby the successor is permitted to keep the predecessor's Exchange Act filing number.
When a new registrant files a registration statement with the Commission, the EDGAR system generates a new file number, which can then be used to identify the registrant. Thus, a successor issuer that wants a new file number must file a Form 8-K indicating that it is being filed pursuant to Rule 12g-3.27 Otherwise, the issuer will not receive a new file number after the succession is complete and must continue using the predecessor’s file number as though no change had taken place. In these circumstances, the succession will be equivalent to a name change. That is, the successor will continue to use the file number and EDGAR access codes (CIK, CCC and password) of the predecessor and the reporting history of the predecessor will show as the reporting history of the successor.
-Dave Lynn, Editor, TheCorporateCounsel.net 6/28/2013
RE: Thanks, Dave. Did the Staff expressly change its position re: succeeding to a predecessor's file number? If so, can you direct us to that? Interactive Intelligence, Inc. (available April 27, 2011) appears to be the last no-action letter where the SEC permitted the successor to keep the predecessor's file number. It's also the last no-action request we can find where the issuer requested use of the predecessor's number. We assume the change came about shortly after Interactive Intelligence but can't find anything definitive. Thanks in advance.
RE: I have seen a post-SPAC combined company file its Super 8-K with the 8-K12b designation (which makes sense for certain SPAC business combinations, depending on merger structure), and then immediately file an identical Super 8-K without the 8-K12b designation. Is there any reason to do that? It seems as if the filer holds the view that an 8-K with designation 8-K12b does not qualify as a current report on Form 8-K, as far as EDGAR goes.
RE: I don't think there's any reason that the 8-K12B wouldn't count for some reason. The requirements for successor issuers under Rule 12g-3 are to "indicate in the Form 8-K report filed with the Commission in connection with the succession, pursuant to the requirements of Form 8-K, the paragraph of section 12 of the Act under which the class of securities issued by the successor issuer is deemed registered."
I'm no SPAC expert, but it seems to me that the Super 8-K is likely in most cases to be the "8-K report filed . . . in connection with the succession," so I don't see why another identical filing would be necessary. I wonder if the practice has something to do with the limitations of the EDGAR System? The EDGAR Filer Manual says that up to nine items may be specified on a single EDGARLink Online Form 8-K submission. I noticed that the DraftKings filing had more than that, and that while the filings were identical, the EDGAR Page lists one as containing eight items and the other as containing two items.
-John Jenkins, Editor, TheCorporateCounsel.net 6/30/2020