Regulation & Compliance

American Banker
June 18, 2008

Walter G. Moeling, IV

Dozens of small banks have gone private in recent years to get out from under the costs of reporting to the Securities and Exchange Commission and complying with the Sarbanes-Oxley Act of 2002, said Walter G. Moeling, IV, a partner at Powell Goldstein LLP in Atlanta.

These efforts rarely go awry, Mr. Moeling said, and when they do, it is usually because the bank runs into capital issues and does not have the cash on hand to buy out the smallest shareholders — not because shareholders oppose the plan itself.

"I don't know of many cases where it has been voted down," he said.

It is unclear which shareholders opposed First Bancshares' plan, but Mr. Moeling said it is possible that those eligible for the buyout were not happy with the price First Bancshares was offering. Even though $21 would be a hefty premium over the recent trading range, shareholders could be holding out for an even higher price, he said.

The plan also could have been torpedoed by large shareholders, Mr. Moeling said. Such shareholders - and activist investors in particular - prefer companies to stay public, so they will have to continue reporting to the SEC, he said.

"When you go private, the flow of information goes right down," he said.



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