The SEC has posted a final rule release on the electronic filing of Form D. Form D serves as the official notice of an offering of securities made without registration under the Securities Act in reliance on an exemption provided by Regulation D. Both public and nonpublic companies file information using this form.

The SEC streamlined and updated the informational requirements in the form. The instructions were clarified and simplified. Issuers must file Form D information electronically through a new online filing system that is accessible from any computer with Internet access.

The SEC stated that by requiring the electronic filing of Form D data through the Internet, it will make the information filed more readily available to regulators and members of the public. The information will be available on the SEC's Web site, and because the online filing system will automatically capture and tag data items, the data will be interactive and searchable.

The amendments to Form D will:

  • mandate electronic filing of Form D information after a phase-in period during which electronic filing will be voluntary; and through an online filing system that will be accessible from any computer with Internet access; and capture and tag data items, so that the data will be interactive and viewable in an easy-to-read format; and
  • revise Form D's information requirements by:
    • permitting filers to identify all issuers in a multiple-issuer offering in one Form D filing;
    • deleting the current requirement to identify as "related persons" owners of 10 percent or more of a class of the issuer's equity securities;
    • replacing the current requirement to provide a business description of the issuer with a requirement to classify the issuer by industry from a pre-established list of industries;
    • requiring revenue range information for the issuer, or net asset value range information in the case of hedge funds (subject to an option to decline to disclose);
    • requiring more specific information on the registration exemption claimed by the issuer in the Form D notice as well information on any exclusion claimed from the definition of "investment company" under the Investment Company Act of 1940;
    • requiring reporting of the date of first sale in the offering;
    • specifying when amendments to a previously filed Form D notice are required by reason of mistakes of fact, errors or changes to information in a previously filed notice or the passage of a calendar year;
    • requiring reporting of whether the offering is expected to last over a year;
    • limiting reporting of the minimum investment amount accepted in the offering to the amount accepted from outside investors, so as not to affect employee stock ownership incentive plans adversely;
    • requiring CRD numbers for both individual recipients of sales compensation and associated broker-dealers;
    • replacing the current requirement to disclose information on a wide variety of expenses and applications of proceeds with a requirement to report expenses only as to amounts paid for sales commissions and, separately stated, finders' fees, and report use of proceeds only as to the amount of proceeds used to make payments to executive officers, directors and promoters;
    • replacing the current 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), a consent to service of process and a certification that the issuer is not disqualified by rule from relying on an exemption claimed; and
    • permitting a limited amount of free writing in "clarification" fields to the extent necessary to clarify certain information provided.

Please click http://www.sec.gov/rules/final/2008/33-8891.pdf for a copy of adopting release