With the March 16 deadline for mandatory electronic filing of the new Form D fast approaching, issuers offering or selling unregistered securities on a continuous basis in reliance on Regulation D, including insurance companies offering private placement variable life insurance products, should be mindful of the new amendment rules for Form D. The new amendment rules are part of the changes that the SEC adopted to the filing and content requirements of Form D in early 2008.
Among other changes, the new Form D seeks to clarify "when, how, and why an amendment to a Form D may or must be filed." Specifically, new Form D expressly requires an amendment to a previously filed notice of sales on Form D in the following three instances:
- 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;
- To reflect a change in the information provided in the previously filed notice, as soon as practicable after the change (except that no amendment is required to reflect a change that occurs after the offering terminates or a change that occurs solely in certain specified information); and
- Annually, on or before the first anniversary of the filing of the notice or the filing of the most recent amendment to the notice, if the offering is continuing at that time.
The annual amendment requirement is particularly noteworthy with regard to ongoing offerings because it effectively means, absent any further guidance from the SEC, that:
- For each Form D or amendment thereto last filed on or before March 16, 2008, the issuer must file an amendment on or before March 16, 2009; and
- For each Form D or amendment thereto last filed between March 16, 2008 and March 16, 2009, the issuer must file an amendment on or before the one-year anniversary of such filing.
Regardless of why an amendment is filed, an issuer amending its Form D must provide current information in response to all requirements of the Form D.