Each issuer of securities that sells securities in private placement offerings and relies on an exemption provided under Regulation D or Section 4(6) of the Securities Act of 1933 (the “Securities Act”) to exempt the offering from the registration requirements of the Securities Act must file a Form D with the U.S. Securities and Exchange Commission (“SEC”) within 15 days of the first sale of securities. Effective today, all Form D filings submitted to the SEC must be filed electronically through the SEC’s online filing system located at www.sec.gov. The online filing system will be accessible from any computer with Internet access. However, each issuer must obtain an identification number (also known as a “Central Index Key” or “CIK” number) and a set of access codes from the SEC to electronically submit the Form D filing.
The SEC has also revised the Form D to simplify the form and update the information requirements to make the form more useful for investors. Some of the revisions include the following:
- Permitting filers to identify all issuers in a multiple-issuer offering in one Form D filing;
- Deleting the previous requirement to identify as “related persons” owners of 10% or more of a class of the issuer’s equity securities;
- Replacing the previous requirement to provide a business description of the issuer with a requirement to classify the issuer by industry from an established list of industries and specify the issuer’s revenue range;
- Requiring the date of the first sale of the offering, which the SEC has clarified to mean the date on which the first investor is irrevocably contractually committed to invest, which, depending on the terms and conditions of the offering, could be the date on which the issuer receives the investor’s subscription agreement or check;
- Specifying that amendments to a previously filed Form D are required (i) annually, on or before the anniversary of the last filed Form D or amended Form D, if the offering is continuing at that time, and (ii) promptly by reason of material mistakes of fact or errors, or changes to certain information previously submitted;
- Replacing the previous federal and state signature requirements with a combined signature requirement that includes an undertaking to provide offering documents to regulators on request (subject to applicable law); and
- Permitting a limited amount of free writing in “clarification” fields to the extent necessary to clarify certain information provided.
Please click here for a copy of the SEC’s Final Rule.