I was asked this question today:
“If I filed a Form D late a couple of years ago, and the proposed rules go into effect as written, they provide a 5 year look back. Does that mean I will suffer a 1 year disqualification on using Rule 506 immediately upon the effectiveness of the proposed rules?”
The proposed rules provide as follows:
(b)(1) No exemption under § 230.506 shall be available for an issuer if such issuer, or any of its predecessors or affiliates, has, within the five preceding years, failed to comply with the requirements of § 230.503 in connection with an offering conducted in reliance on § 230.506, except that such exemption shall be available for offers and sales in connection with offerings that commenced before the failure to comply occurred. In determining compliance with § 230.503 for purposes of this paragraph (b)(1), a notice on Form D (§ 239.500) or amendment thereto will be deemed timely if it is filed not later than 30 calendar days after the date specified for such filing in § 230.503, unless the issuer previously failed to comply with such a filing deadline in connection with the same offering.
But the proposed rules go on to say:
(3) For purposes of paragraph (b)(1) of this section, failures to comply with § 230.503 that occurred before [effective date of final rule] shall be disregarded.
This means that if you have missed a Form D deadline in the last 5 years, you won’t automatically be disqualified from using Rule 506 on your next financing when the rules become effective, if they become effective in their current form.