The newly implemented March 16, 2009, deadline for filing an amended Form D is fast approaching. Last year, the Securities and Exchange Commission (SEC) amended Rule 503 of Regulation D (“Regulation D”) under the Securities Act of 1933, as amended (the “Securities Act”). Rule 503 requires issuers of securities who wish to rely on Regulation D for exemption from the registration requirements of the Securities Act to file a Form D. Issuers must file the Form D within 15 days of the first sale of such securities in the United States. Rule 503 previously required a subsequent filing of an amended Form D only in the event of a material change to the information contained in the form. As revised, Rule 503 now requires an amended Form D to be filed on an annual basis whenever continuous offerings are involved. Most hedge funds are continuous offerings and, therefore, are subject to this new requirement.
Beginning on March 16, 2009, issuers must file an amended Form D annually, on or before the first anniversary of the latter of either the initial filing of their Form D or the most recent amendment to it. If either the initial Form D or the most recent amendment was filed prior to March 16, 2008, issuers must file the new amendment no later than March 16, 2009. This new requirement for annual amendments does not relieve an issuer of its duty to update its Form D throughout the year, as soon as practical after discovering (1) any material change to the information provided within the form or (2) any material mistake of fact or error in the form, provided the offering is ongoing at the time such discovery is made.
The revised Rule 503 further requires issuers filing a Form D after March 16, 2009, to file electronically through the SEC’s Electronic Data Gathering, Analysis, and Retrieval System (EDGAR). In order to make an electronic filing, issuers will need a code that will enable them to file through EDGAR. This code can be obtained by filing a Form ID with the SEC. Please note that any codes issued in conjunction with prior paper filings of Form D may need to be converted into codes that will allow access to EDGAR. Once filed through EDGAR, a Form D will be available to the public online and will be fully searchable.
Please note that, for the time being, most states still require separate filings for any securities offerings made to their residents. These requirements vary from state to state and may or may not mandate annual amendments and/or electronic filings. Please refer to the Blue Sky laws of each state in which you have investors to determine the requirements of that state.