Effective March 16, 2009, all new and amended Form D filings with the Securities and Exchange Commission (the “SEC”) must be made electronically through the SEC’s EDGAR System. Hedge funds, private equity funds, and other pooled investment vehicles (each a “Fund”) that rely on Regulation D for exemption from the registration requirements of the Securities Act of 1933, as amended, with respect to the sale of their securities to investors, are required to file a notice on Form D with the SEC and to make amendments to Form D in accordance with Rule 503 of Regulation D. In February 2008, the SEC adopted amendments to Rule 503 in order to update and streamline the required disclosures on Form D and to require online filing of Form D as of March 16, 2009.
Among the most notable changes to Rule 503 is the requirement that an amended Form D be filed annually for continuous offerings. Previously, Funds were only required to amend a previously filed Form D in the event of a material change to the information reported on the form. Beginning on March 16, 2009 and regardless of the initial filing date of the Form D, Funds engaged in a continuous offering will be required to file an amended Form D annually while the continuous offering is ongoing, on or before the first anniversary of the initial filing or the most-recently filed amendment. In effect, a Fund that filed its initial or most-recent amended Form D prior to March 16, 2008 must file its annual amendment no later than March 16, 2009. If a Fund made a filing after March 16, 2008, the annual amended Form D is due on or before the first anniversary of the most recent filing. The annual amendment must reflect any changes in the offering and must update the current number of investors and current dollar amount of interests sold. Note that Funds are still required to file other-than-annual amendments as soon as practicable in order to (1) correct a material mistake of fact or error on the Form D; or (2) reflect a change in certain information provided on the Form D.
Online submission of initial and amended Form D filings becomes mandatory on March 16, 2009. In order to file electronically, a Fund will need to obtain an EDGAR filing code and password. The application process to obtain the filing code can take several days, therefore Funds that anticipate making a Form D filing on or after March 16 should apply for filing codes as soon as possible. Once filed through EDGAR, a Form D filing will be available to the public and fully searchable through the SEC website.
In addition to the basic information required by the old Form D, the amended Form D requires some new disclosures. As amended, Form D requires disclosure of the date of the first sale in the offering, which is defined as “the date on which the first investor is irrevocably contractually committed to invest, which, depending on the terms and conditions of the investment contract could be the date on which the issuer receives the investor’s subscription agreement or check.” Like the old Form D, the amended Form D requires identification of each person that has been or will be paid any commission directly or indirectly in connection with the offering. The instructions to the amended Form D clarify that the reporting requirement for commissions can be triggered by cash compensation payments as well as other forms of consideration. Further, as amended, Form D adds the requirement that the CRD Number of any compensation recipient be provided, if the person has a CRD Number. CRD Numbers are identification numbers assigned to broker-dealers and broker-dealer representatives by the Financial Industry Regulatory Authority. When both a person that receives sales compensation and the person’s associated broker-dealer are reported on the Form D, both CRD numbers, if any, must be provided.
Most state securities bureaus have not changed their notice filing requirements for offerings made to in-state residents. In most cases, these notice filings require submission of a manually signed Form D on paper, a uniform consent to service of process and payment of a filing fee.