File an Exchange Act report without a holding company | Techy Kings


By Brittany McIntosh

Qsince Bank of the Ozarks—now known as OZK Bank—reorganized and dissolved its holding company in 2017, banks and their advisers have debated the need for a bank to have a holding company, as well as the advantages and disadvantages of doing so. However, what remains unclear to many bank management teams, in-house counsel and boards of directors are the practicalities and advantages associated with being a publicly traded bank rather than a publicly traded bank holding company.

In June 2017, Bank of the Ozarks Inc. reorganized and merged with and became its wholly owned subsidiary, Bank of the Ozarks. As a result of the reorganization, Bank of the Ozarks spun off its parent company, began trading on the Nasdaq Stock Market as a publicly traded entity, became a successor issuer to the parent company for purposes of the Securities Exchange Act of 1934, and began filing its Exchange Act report (Form 10-K, Form 10-Q, Form 8-K, etc.) with the FDIC rather than the Securities and Exchange Commission.

In October 2017, BancorpSouth Inc. followed and reorganized, with BancorpSouth Bank surviving and continuing to trade on the New York Stock Exchange. Subsequently, in 2021, BancorpSouth Bank survived its merger with Cadence Bancorporation, changed its name to Cadence Bank, and the surviving bank continued to file its Exchange Act report with the FDIC. Additionally, in September 2018, Zions Bancorporation completed its internal reorganization and merged with Zions Bancorporation, NA and filed its Exchange Act report with the OCC but continued to file with the SEC as a “voluntary filer.”

Filing of Deed of Exchange with FDIC

Under Section 12(i) of the Exchange Act, the FDIC, the OCC and the Federal Reserve Board are given the powers, functions and duties of the SEC to administer and enforce sections of the Exchange Act. In January 2022, the FDIC said there were 15 banks that filed Exchange Act reports with the regulator.

Because it is more common for the FDIC to exercise this authority, this article will only discuss the practicalities (and certain advantages) of being a publicly traded bank that files an Exchange Act report with the FDIC.

Here are some practical considerations for banks considering such restructuring.

How to file

All Exchange Act filings must be prepared in paper form in accordance with the guidelines and requirements set forth in applicable SEC regulations and submitted to the FDIC’s Division of Securities Accounting and Disclosure. However, banks may voluntarily file the report electronically using the FDICconnect portal.

To make a filing, the bank must first have access to the FDICconnect Section 335 system. Once you have access, you go to the section titled Reporting Required by the Securities Exchange Act under the “Applications, Filings and Institutional Information” tab and follow the instructions and menus regarding the specific filing. FDICconnect can only be accessed by FDIC-insured institutions; therefore, outside counsel and filing agents will not be able to file on behalf of the bank. Exchange Act reports are shown immediately on the FDIC website when submitted electronically each business day from 8 am to 10 pm ET. All Exchange Act filings not received by that time on the business day will be posted to the FDIC website by 8 a.m. ET on the following business day. Once open, the Exchange Act report shows the date it was filed but is not time stamped.

Cost and time savings

There is no equivalent to the SEC’s EDGAR, the Electronic Data Collection, Analysis and Retrieval System, at the FDIC. Deed of Exchange filers simply upload a PDF of the filing or file a paper copy, which saves a lot of time and cost. There is also no equivalent iXBRL markup for these FDIC filings and no hyperlinks are required to other filed documents. And by statute, a filing fee generally will not be charged with respect to any filing or submission of an Exchange Act report made with the FDIC.

Special considerations

There is no need for a Form S-1, S-3, S-4 or S-8 registration statement, but Form 10 is still required. Securities issued by banks are “exempt securities” under Section 3(a)(2) of the Securities Act and under most state and “blue sky” securities laws. Accordingly, there is no need to register the offer and sale of bank securities under the Securities Act as they are “exempt securities.” Although a Form S-1 is not required, first-time public bank issuers must file a concurrent Form 10 registration statement to register under the Exchange Act, which is subject to review by the FDIC.

When issuing bank securities, the bank may have to comply with regulations offering securities from, and pay filing fees to, bank regulators. The practices of bank regulators may differ with respect to reviewing and commenting on the offer material. In general, the absence of filings and potential review of offering materials allows all banks to have the ability to quickly access capital markets in a manner similar to large SEC registrants who have effective shelf registration statements.

An initial proxy statement is required

FDIC practice differs from SEC practice with respect to proxy statements in that all proxy statements must be filed in preliminary form with the FDIC for review by staff, whose comments should be received and considered before a final copy is filed and distributed.

Brittany McIntosh is a partner at Nelson Mullins, where her practice focuses on banking mergers and acquisitions, securities offerings, SEC reporting requirements, stock exchange listing compliance and corporate governance and general corporate matters.


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