The Securities and Exchange Commission ("SEC") has adopted final rules regarding the electronic filing of Form D by issuers in private offerings pursuant to Regulation D under the Securities Act of 1933, as amended. Beginning on September 15, 2008, issuers will have the option of filing reports on Form D either in paper form or electronically until March 16, 2009, when electronic filing becomes mandatory. In connection with the new electronic filing requirement, the SEC also established a reconfigured, 16-item format for Form D, which retains most (but not all) of the requirements of the current form and provides for the disclosure of some additional items of information.
One new item to be disclosed in the electronic Form D is the CRD number of any broker or broker-dealer that receives compensation in connection with the offering reported on the Form. The CRD number corresponds to a broker's or broker-dealer's record located in the Central Registration Depository, a computer database of brokers and broker-dealers maintained by FINRA. The inclusion (or omission, as applicable) of CRD numbers on the new form will clearly indicate whether or not persons receiving sales compensation are registered broker-dealers. As a result, issuers paying compensation to finders and other non-registered parties in connection with private offerings under Regulation D should be all the more careful how they engage and compensate finders in capital-raising transactions. Moreover, this new disclosure requirement could well facilitate more rigorous scrutiny by the SEC and state securities regulators of payments to non-registered persons or entities.