Filing and Amending a Form D Notice

Form D is a notice that is required to be filed with the Securities and Exchange Commission (SEC) by companies and funds that have sold securities without registration under the Securities Act of 1933. This is typically done in an offering based on a claim of exemption under Rule 504, 505, or 506 of Regulation D or Section 4(6) of that statute. The notice must be filed within 15 days after the first sale of securities in the offering based on the exemption. The date of the first sale is considered to be the date on which the first investor is irrevocably contractually committed to invest.

Paper Form D Filings

Companies and funds can file a Form D notice with the SEC on paper. There are two versions of the form available: Form D and Temporary Form D. Each version requires slightly different information, allowing filers to choose the one that best suits their needs. For example, Temporary Form D requires the filing company or fund to provide information on any beneficial owners of 10% or more of its equity securities, while Form D does not.

Copies of both paper versions of the blank Form D are available from the SEC on the Internet at this link or by telephone at (202) 551-4041. The paper forms contain all the instructions you need to complete and file a Form D notice or amendment on paper, including information on where to send the filing and how many copies to include. The filing needs to be signed by a duly authorized person, which could include the filer’s attorney, if duly authorized.

Online Form D Filings

For online filings, a company or fund must have its own filer identification number (Central Index Key or CIK number) and a login password (CIK Confirmation Code or CCC number) to access the SEC’s online filing system, EDGAR.

Step 1: Determine whether the SEC has assigned a CIK number to your company

A CIK number is a unique ten-digit number assigned by the SEC to companies that file with the SEC. If your company has previously filed a Form D, if your company is already an EDGAR filer, or if your company has already taken the necessary steps to obtain one, then a CIK number has already been assigned to you.

If your company has not previously filed a Form D or any other filing with the SEC, then you must apply for a CIK number. You can find your CIK number by entering your company name on the EDGAR Company Search screen at this link.

Step 2: Obtain EDGAR access codes and a CIK number (if not previously assigned)

If your company currently makes electronic filings, you already have and use EDGAR access codes. If your company has not filed a Form D or any other filing with the SEC and does not have EDGAR access codes, you must apply to obtain them. To apply, you must complete and submit an application for EDGAR access online through Form ID.

If you have a CIK number because you have previously filed a Form D on paper, you must apply to obtain access codes. To apply, you provide the SEC with your CIK and create a passphrase. Use the selection for “Convert Paper Only Filer to Electronic Filer” at this link.

Step 3: Create your EDGAR access codes

When the SEC processes your Form ID and approves your request for a CIK number and EDGAR access codes, the SEC will send a message to the email address you provided in the application process with further instructions. In that email, the SEC will provide you with your CIK number and information on how to generate your access codes in EDGAR. You must have your passphrase and CIK number to complete this process.

Step 4: Filing an electronic Form D on EDGAR

To file an electronic Form D on EDGAR, visit this link and use the access codes you generated to log into EDGAR. When you are logged into the system, choose “Form D” under “Make a Filing”. The SEC provides item-by-item instructions and helpful tips on how to complete the Form D on EDGAR. They also provide links to definitions of key terms used throughout the form.

After you complete all of the required Form D information, the SEC recommends that you print the form and carefully review the information you provided before you submit it as your official Form D filing. Once you submit your filing, the SEC will provide you with an email message notifying you of the status of your submission.

Amendments to Form D Filings

A Form D filer may file an amendment to a previously filed Form D notice, either on paper or online, by indicating in the space provided on the form that the filing is an amendment rather than a new filing. A Form D filer should abide by the following guidance in determining whether it should file an amendment to a previously filed Form D notice:

• A filer may file an amendment to a previously filed notice at any time.
• A filer must file an amendment to a previously filed notice for an offering to correct a material mistake of fact or error in the previously filed notice, as soon as practicable after discovery of the mistake or error.
• A filer must file an amendment to reflect a change in the information provided in the previously filed notice, except as provided below, as soon as practicable after the change.
• Beginning March 16, 2009, a filer must file an amendment annually, on or before the first anniversary of the most recent previously filed notice, if the offering is continuing at that time.

For more information, you may direct additional questions on the process to SEC personnel by telephoning (202) 551-8900. You may obtain answers to interpretive legal questions on Form D information requirements by emailing the SEC’s Office of Small Business Policy at smallbusiness@sec.gov

Frequently Asked Questions

Can multiple amendments be made to a Form D filing?

Yes, multiple amendments can be made to a Form D filing. There is no limit on the number of amendments that can be made. Each amendment should be clearly indicated as such and should provide updated information as necessary.

Amendments to a Form D filing may be necessary for a variety of reasons. For example, if there is a material change in the information provided in the original filing, an amendment should be filed to update the information. Similarly, if a mistake or error is discovered in the original filing, an amendment should be filed to correct the mistake or error.

It’s important to note that each amendment to a Form D filing is a separate filing that must comply with all of the Form D filing requirements. This includes the requirement to file the amendment within the required time frame.

What are the implications of not filing Form D within the 15-day window?

The Securities and Exchange Commission (SEC) mandates that Form D should be filed within 15 days of the first sale of securities in the offering. This is not merely a guideline but a requirement. If a company fails to file Form D within this stipulated time frame, it could face serious repercussions.

The SEC may take enforcement action against the issuer for failing to comply with the filing requirements. This could result in penalties, which could include fines or other sanctions. The severity of these penalties can vary depending on the circumstances, including the length of the delay, the reasons for the delay, and whether the issuer has previously failed to comply with SEC filing requirements.

Moreover, the failure to file Form D could potentially jeopardize the issuer’s reliance on the Regulation D exemption for the offering. This could lead to a violation of the securities registration requirements, which could have serious legal and financial implications for the issuer. It could also damage the issuer’s reputation and credibility with investors and the market at large.

Therefore, it is crucial for issuers to ensure that they file Form D within the 15-day window after the first sale of securities in the offering. If there are any doubts or difficulties in meeting this requirement, issuers should seek legal advice to understand their obligations and options.

What should I do if I discover a mistake in a previously filed Form D?

Discovering a mistake in a previously filed Form D can be a cause for concern, but the SEC provides a clear process for correcting such mistakes. If you discover a material mistake of fact or error in a previously filed Form D, you must file an amendment to correct it as soon as practicable.

When filing the amendment, you should clearly indicate that it is an amendment rather than a new filing. This can be done by checking the appropriate box on the form. In the amendment, you should provide an explanation of the mistake or error and the correct information. It’s important to be as clear and detailed as possible in explaining the mistake and the correction to ensure that the SEC and any readers of the filing understand the nature of the correction.

The SEC considers the accuracy of information in Form D filings to be crucial for maintaining transparency and protecting investors. Therefore, it’s essential to ensure that all information provided in Form D filings is accurate and complete. If a mistake or error is discovered after a filing has been made, it should be corrected promptly to maintain the integrity of the company’s disclosures to the SEC and the public.

What happens if I fail to file an amendment to a previously filed Form D when required?

Failing to file an amendment to a previously filed Form D when required can have serious consequences. The SEC has clear rules about when an amendment is required, and failure to comply with these rules can lead to enforcement action.

The SEC may take enforcement action against the issuer for failing to comply with the filing requirements. This could result in penalties, including fines or other sanctions. The severity of these penalties can vary depending on the circumstances, including the nature of the information that was not correctly updated, the length of the delay in filing the amendment, and whether the issuer has previously failed to comply with SEC filing requirements.

Moreover, the failure to file an amendment when required could potentially jeopardize the issuer’s reliance on the Regulation D exemption for the offering. This could lead to a violation of the securities registration requirements, which could have serious legal and financial implications for the issuer. It could also damage the issuer’s reputation and credibility with investors and the market at large.

Therefore, it’s crucial for issuers to monitor any changes in the information provided in a Form D filing and to file an amendment when required. If there are any doubts or difficulties in meeting this requirement, issuers should seek legal advice to understand their obligations and options.

How does the Central Index Key (CIK) factor into the Form D filing process?

The Central Index Key (CIK) is a unique identifier assigned by the SEC to each company that files with the SEC. The CIK is used to track all of the company’s filings with the SEC. When filing Form D online through the EDGAR system, the company must use its CIK to log in. The CIK is crucial for ensuring that the Form D filing is correctly associated with the company in the SEC’s records.

If a company does not already have a CIK because it has not previously filed with the SEC, it must apply for a CIK as part of the process of preparing to file Form D. This involves completing an online application form and providing certain information about the company. The SEC will then assign a CIK to the company, which the company must use for all future filings with the SEC.

The CIK is a critical part of the SEC’s system for tracking and managing filings by companies. It helps to ensure that all filings are correctly associated with the right company and that the public can easily find and access a company’s filings.

What is the role of the EDGAR access codes in the Form D filing process?

The EDGAR access codes are a set of password-like codes that a company must use to log into the EDGAR system for online filing of Form D. The access codes consist of the CIK, the CIK Confirmation Code (CCC), and the password. The company creates the password when it applies for EDGAR access, and the CCC is generated by the EDGAR system and provided to the company.

The EDGAR access codes play a crucial role in ensuring the security of the company’s filings with the SEC. They help to prevent unauthorized access to the company’s EDGAR account and unauthorized filings on behalf of the company. This is particularly important given the sensitive nature of the information contained in many SEC filings, including Form D.

The process of obtaining EDGAR access codes involves submitting an application to the SEC, which includes providing certain information about the company and agreeing to comply with the rules and regulations governing the use of the EDGAR system. Once the application is approved, the SEC provides the company with its CIK and information on how to generate the CCC and create the password.

It’s important for companies to manage their EDGAR access codes carefully. They should ensure that the codes are stored securely, that they are only used for authorized purposes, and that they are updated regularly to maintain their effectiveness. If a company loses its access codes or believes they may have been compromised, it should contact the SEC as soon as possible for assistance.

In conclusion, the EDGAR access codes are a key component of the process of filing Form D and other documents with the SEC. They help to ensure the security and integrity of the filing process, and companies should take care to manage them appropriately.

What is the significance of the Regulation D exemption for securities offerings?

Regulation D is a crucial part of the securities law framework in the United States. It provides exemptions that allow companies to offer and sell their securities without having to register the securities with the SEC. This can be a significant advantage for smaller companies and startups that may not have the resources to go through the full registration process.

The exemptions under Regulation D are based on the premise that smaller, private offerings do not require the same level of regulatory oversight as larger, public offerings. They are designed to facilitate capital formation for smaller companies while still providing adequate protection for investors.

However, it’s important to note that even though a company may be exempt from the registration requirements under Regulation D, it is still subject to the anti-fraud provisions of the securities laws. This means that the company must provide accurate and complete information to potential investors and must not engage in any deceptive or manipulative practices in connection with the offering.

How does the Form D filing process differ for foreign issuers?

Foreign issuers are generally subject to the same Form D filing requirements as U.S. issuers. However, there are a few differences that foreign issuers should be aware of.

First, foreign issuers must provide certain additional information in their Form D filings. This includes information about the foreign issuer’s jurisdiction of incorporation or organization, and the number of non-U.S. purchasers in the offering.

Second, foreign issuers must comply with any applicable securities laws in their home country in addition to the U.S. securities laws. This may require the foreign issuer to make additional disclosures or filings in its home country.

Finally, foreign issuers should be aware that the SEC has specific rules regarding the use of electronic signatures in Form D filings. These rules may require the foreign issuer to take additional steps to ensure that the electronic signature is valid and legally binding.

What are the consequences of providing false or misleading information in a Form D filing?

Providing false or misleading information in a Form D filing can have serious consequences. The SEC considers the accuracy and completeness of information in Form D filings to be crucial for maintaining transparency in the securities markets and protecting investors.

If the SEC determines that a Form D filing contains false or misleading information, it can take enforcement action against the issuer. This can result in penalties, including fines, and may also lead to criminal charges in certain cases.

In addition, providing false or misleading information in a Form D filing can damage the issuer’s reputation and credibility with investors and the market at large. It can also potentially jeopardize the issuer’s reliance on the Regulation D exemption for the offering, which could lead to a violation of the securities registration requirements.

Therefore, it’s crucial for issuers to ensure that all information provided in Form D filings is accurate and complete. If a mistake or error is discovered after a filing has been made, it should be corrected promptly through an amendment to the filing.

Can an issuer withdraw a Form D filing?

Yes, an issuer can withdraw a Form D filing if it determines that the filing was made in error or is no longer necessary. To withdraw a Form D filing, the issuer must file a Form RW with the SEC. The Form RW must include the file number of the Form D filing that is being withdrawn, and it must be signed by a person authorized to sign on behalf of the issuer.

It’s important to note that withdrawing a Form D filing does not erase the filing from the SEC’s records. The filing will still be visible on the SEC’s EDGAR system, but it will be marked as “withdrawn.”

Before deciding to withdraw a Form D filing, issuers should carefully consider the potential implications. For example, if the issuer is still conducting the securities offering, withdrawing the Form D filing could potentially jeopardize the issuer’s reliance on the Regulation D exemption for the offering. Therefore, issuers should seek legal advice before deciding to withdraw a Form D filing.

Is there a specific format or template to follow when filing a Form D?

While there is no specific template provided by the SEC for completing a Form D, the form itself includes detailed instructions and guidance for each item. These instructions can be found on the SEC’s website alongside the form.

It’s important to carefully read and follow the instructions provided for each item on the form. This will help ensure that you provide all the required information and accurately complete the form. Additionally, the SEC provides definitions for key terms used in the form, which can be helpful in understanding and correctly answering the questions.

While there is no prescribed format, it’s important to present the information in a clear and organized manner. Providing concise and accurate descriptions of the offering, the company, and other relevant details will help readers understand the nature of the securities offering.

If you have specific questions or concerns while completing the form, you can reach out to the SEC’s Office of Small Business Policy or consult with legal professionals experienced in securities law to ensure compliance with the filing requirements.

Can I file a Form D electronically if I am a foreign issuer?

Yes, foreign issuers can file Form D electronically through the SEC’s online filing system, EDGAR. The process for electronic filing is the same for both U.S. and foreign issuers.

Foreign issuers must follow the same filing requirements and provide the necessary information as outlined in Form D. This includes details about the offering, the issuer, and any related parties involved in the offering. Additionally, foreign issuers should provide information specific to their jurisdiction, such as the jurisdiction of incorporation or organization.

It’s important for foreign issuers to review the instructions and requirements for Form D carefully to ensure compliance with both U.S. and foreign securities laws. Consulting with legal counsel experienced in securities regulations can help navigate any specific considerations related to foreign issuer filings.

Can I rely on the services of a third party to file Form D on my behalf?

Yes, it is possible to engage the services of a third-party firm or individual to assist with the filing of Form D on your behalf. This can be particularly helpful if you are unfamiliar with the filing process or if you prefer to have professionals handle the regulatory aspects of the filing.

When choosing a third-party service provider, it’s important to ensure that they are knowledgeable about the Form D filing requirements and have experience in filing with the SEC. Consider their reputation, expertise, and track record in assisting clients with securities filings.

It’s important to note that even if you engage a third party to assist with the filing, you, as the issuer, remain responsible for the accuracy and completeness of the information provided in the Form D. Make sure to review the filing before submission to confirm its accuracy and compliance with all relevant regulations.

Communication and coordination with the third-party service provider are crucial to ensure a smooth filing process. Provide them with all necessary information and promptly address any questions or concerns they may have.

Remember that engaging a third party does not absolve you of your obligations as the issuer. Stay involved in the filing process and maintain a clear understanding of the information being submitted on your behalf.

Can I use electronic signatures when filing Form D?

Yes, the SEC permits the use of electronic signatures when filing Form D electronically through the EDGAR system. Electronic signatures provide a convenient and efficient way to sign and submit documents electronically.

To use an electronic signature, issuers must comply with certain requirements. The SEC has specific rules and guidelines regarding the use of electronic signatures, including the use of secure methods to create and verify the electronic signature.

It’s important to note that electronic signatures should be created and used in accordance with the rules and regulations specified by the SEC. This helps to ensure the authenticity, integrity, and security of the documents being filed.

If you plan to use electronic signatures for Form D filings, it is advisable to familiarize yourself with the SEC’s rules on electronic signatures and consult with legal professionals experienced in securities regulations to ensure compliance.

Can I make a Form D filing confidential?

No, Form D filings are not confidential. The information provided in Form D filings becomes part of the SEC’s public records and is accessible to the public.

The purpose of the public availability of Form D filings is to provide transparency and ensure that investors and the public have access to relevant information about securities offerings. Making this information publicly available helps to protect investors and maintain the integrity of the securities markets.

It’s important to carefully review the information provided in the Form D filing to ensure that it does not contain any sensitive or confidential information that should not be disclosed to the public.

If you have concerns about the public disclosure of certain information, it is advisable to consult with legal professionals experienced in securities law to understand any applicable exemptions or alternative filing options that may be available to you.

Can I solicit or advertise my offering while relying on the Regulation D exemption?

The rules regarding solicitation and advertising for offerings conducted under the Regulation D exemption depend on the specific exemption being utilized.

Under Regulation D Rule 506(b), issuers are generally prohibited from engaging in general solicitation or advertising to market their offering. This means that issuers cannot use public advertisements, mass emails, or similar methods to promote the offering. Instead, the offering must be made through private communications with individuals who have a pre-existing relationship with the issuer.

On the other hand, Regulation D Rule 506(c) allows for general solicitation and advertising, but with certain requirements. Issuers relying on Rule 506(c) must take reasonable steps to verify that all investors are accredited investors. This may involve obtaining documentation or other information to substantiate an investor’s accredited status.

It’s important to carefully review the specific rules and requirements of the exemption being utilized to determine the scope of permissible solicitation and advertising activities. Consulting with legal professionals experienced in securities regulations can provide valuable guidance and ensure compliance with the applicable rules.

Is Form D filing required for every securities offering?

Form D filing is not required for every securities offering. The requirement to file Form D arises when an issuer is relying on an exemption under Regulation D for the offering.

Regulation D provides exemptions from the registration requirements of the Securities Act of 1933, allowing issuers to offer and sell securities without undergoing a full registration process. The exemptions provided by Regulation D include Rule 504, Rule 506(b), and Rule 506(c).

While a Form D filing is not mandatory for every securities offering, issuers relying on the Regulation D exemptions must file Form D with the SEC. Form D serves as a notice of the securities offering and provides essential information to the SEC and potential investors.

Issuers should carefully review the requirements of the specific exemption they are relying on to determine if a Form D filing is necessary. Failing to file Form D when required can have serious consequences, including potential violations of securities laws and loss of the exemption.

Can I rely on a completed Form D filing for multiple offerings?

No, a completed Form D filing is generally specific to a particular securities offering. Each offering conducted under Regulation D requires its own separate Form D filing.

When filing Form D, you must provide information related to the specific offering, such as the amount being offered, the type of securities being sold, the intended use of the proceeds, and other relevant details. This information is specific to the particular offering and may vary between different offerings.

If you are conducting multiple offerings under Regulation D, each offering should have its own distinct Form D filing. This ensures that the SEC and potential investors have accurate and up-to-date information regarding each offering.

Filing a separate Form D for each offering also allows for clear and transparent disclosure of the terms and conditions of each offering, facilitating compliance with securities laws and regulations.

Can I submit a Form D filing retroactively if I missed the deadline?

The SEC encourages issuers to file Form D in a timely manner, typically within 15 days after the first sale of securities in the offering. However, if you missed the deadline for filing Form D, it is still possible to submit the filing retroactively.

While there is no specific deadline for retroactive filings, it is important to file the Form D as soon as possible after discovering the oversight. Filing the Form D retroactively helps ensure compliance with the securities laws and provides transparency to investors and the SEC.

When filing Form D retroactively, it is advisable to include a cover letter or an explanation in the filing, acknowledging the late filing and providing a reasonable explanation for the delay. The SEC takes into account the circumstances surrounding the late filing, including any inadvertent errors or omissions.

It’s important to note that filing Form D late may have consequences, including potential enforcement actions by the SEC. To mitigate any potential issues, it is recommended to consult with legal professionals experienced in securities regulations and follow their guidance on the best course of action for retroactive filings.

Can I include additional information in the Form D filing beyond what is required?

Yes, you have the option to include additional information in the Form D filing beyond the minimum requirements. While Form D provides specific fields and disclosures that must be completed, issuers are not restricted from providing supplementary information that they believe is relevant and helpful for potential investors.

Including additional information can provide more comprehensive details about the offering, the issuer, or the intended use of the proceeds. This can enhance the transparency and understanding of the offering for investors.

When including additional information, it is important to ensure that the information is accurate, complete, and not misleading. The SEC expects issuers to provide truthful and accurate information to investors, and any material omissions or misrepresentations can result in regulatory consequences.

If you choose to include additional information, it is advisable to clearly label it as such and ensure that it does not conflict with or contradict the required information in the Form D filing. Providing context, explanations, or supporting documents can help investors make informed decisions about the offering.

Consulting with legal professionals experienced in securities regulations can provide valuable guidance on what additional information may be appropriate to include in your specific Form D filing.

Can I file Form D for an offering that has already commenced?

Yes, you can file Form D for an offering that has already commenced. However, it is important to file the Form D as soon as practicable after the first sale of securities in the offering.

The purpose of filing Form D is to provide notice to the SEC and potential investors about the offering and to ensure compliance with the securities laws. Filing Form D after the offering has commenced helps to fulfill these objectives and maintain transparency in the securities market.

When filing Form D for an ongoing offering, it is important to provide accurate and up-to-date information. This includes disclosing the amount of securities sold and remaining to be sold, the types of securities being offered, and any other relevant details.

Filing Form D after the offering has commenced does not absolve you from complying with the other requirements of the securities laws. It is essential to continue to fulfill your obligations, such as providing accurate and complete information to investors, complying with anti-fraud provisions, and meeting any ongoing reporting requirements.

Consulting with legal professionals experienced in securities regulations can provide guidance on the specific requirements and considerations when filing Form D for an ongoing offering.

Can I advertise my offering after the Form D filing is submitted?

The ability to advertise your offering after submitting the Form D filing depends on the specific exemption you are relying on under Regulation D.

Under Regulation D Rule 506(b), issuers are generally prohibited from engaging in general solicitation or advertising to market their offering. This means that you cannot use public advertisements, mass emails, or similar methods to promote the offering. Instead, the offering must be made through private communications with individuals who have a pre-existing relationship with the issuer.

However, under Regulation D Rule 506(c), issuers are allowed to engage in general solicitation and advertising, but with certain requirements. Issuers relying on Rule 506(c) must take reasonable steps to verify that all investors are accredited investors. This may involve obtaining documentation or other information to substantiate an investor’s accredited status.

It’s crucial to understand the specific rules and requirements of the exemption you are relying on to determine the scope of permissible advertising activities. Consulting with legal professionals experienced in securities regulations can provide guidance on the advertising limitations and ensure compliance with the applicable rules.

Can I raise an unlimited amount of capital under Regulation D?

Under Regulation D, issuers can raise capital without registering the securities offering with the SEC, but there are limitations on the amount of capital that can be raised depending on the exemption being used.

For offerings conducted under Regulation D, there are three common exemptions: Rule 504, Rule 506(b), and Rule 506(c).

• Rule 504: This exemption allows issuers to raise up to $5 million of capital within a 12-month period.
• Rule 506(b): This exemption does not have a specific dollar limit, but it restricts the offering to a maximum of 35 non-accredited investors and an unlimited number of accredited investors.
• Rule 506(c): This exemption also does not have a specific dollar limit and allows for general solicitation and advertising, but all investors must be verified as accredited investors.

It’s important to note that while there are no specific dollar limits for Rule 506(b) and Rule 506(c), issuers must still comply with the anti-fraud provisions of the securities laws. This means that all information provided to investors must be accurate and not misleading.