The SEC has adopted provisions that will mandate electronic filing of Form D information after a phase-in period during which electronic filing will be voluntary.
The phase-in period for Form D electronic filing will begin on September 15, 2008. Electronic filing will become mandatory on March 16, 2009. The information will be filed through an online filing system, accessible from any computer with Internet access, that will capture and tag data items and will make the filed information available on the SEC’s Web site in an easy-to-read format.
The SEC also voted to adopt amendments to revise and update the information requirements of Form D. The revisions include:
- Requiring filers to identify all issuers in a multiple-issuer offering;
- Deleting the current requirement to identify as “related persons” owners of 10% or more of a class of equity securities;
- Replacing the current requirement to provide a business description with a requirement to provide industry group information from a pre-established list;
- Requiring revenue range information for operating companies and net asset value information for hedge funds (subject to an option to decline to disclose);
- Requiring reporting the date of first sale;
- Specifying that material mistakes of fact or errors in a previously filed Form D require an amendment and when changes in a previously filed Form D or the passage of time require amendments;
- Requiring that amendments contain current information in response to all information requirements;
- Revising the minimum investment amount disclosure requirement to specify that it relates to outside investors only;
- Replacing the current requirement to disclose information on a wide variety of expense and use of proceeds items with a requirement to disclose expenses only as to amounts paid for sales commissions and, separately stated, finders’ fees and with a requirement to disclose use of proceeds only as to the amount of gross proceeds used or proposed to be used for payments to related persons; and
- Permitting a limited amount of free writing to the extent necessary to clarify responses.
The changes in information requirements will become effective on September 15, 2008.