Form D: Notice of Sales of Securities Pursuant to Regulation D or Section 4(5)

Form D Filings Needed for Compliance with Regulation D

Issuers selling securities without registration under the Securities Act pursuant to Regulation D will file a Form D notice of an exempt offering of securities with the SEC and individual states. In an offering based on a claim of exemption under Rule 504, 505 or 506 of Regulation D, a Form D filing is required for each new offering of securities no later than 15 calendar days after the first sale of securities in the state.

Information contained in Form D includes basic information about the issuer, the securities being offered, the anticipated accredited or nonaccredited status of investors, the amount of any sales compensation paid to any person in connection with the offering, the offering and sales amounts, and certain information regarding anticipated use of proceeds.

Electronic Filing of Form D

Form D must be filed electronically with the SEC. An issuer must file a Form ID and receive electronic filing credentials from the SEC in order to become an electronic filer before filing its first Form D electronically.

State Notice Filings

Electronic filing is not yet available for individual state filing, and thus a copy or printout of the Form D as electronically filed with the SEC must be manually filed with the state securities administrator within the requisite time period in each state in which securities are sold.

Some, but not all states, require in addition to Form D, that a consent to service of process be included with the filing. States may impose a Form D filing fee, and there may be amendment filing requirements.

State laws vary, so be wary. Some states' (notably New York and Virginia, perhaps among others) have instituted requirements for filing of a notice on a specified form with their regulators, which must be filed at least 15 days in advance of an issuer's making any offers in the state.

Filing Deadline for the SEC

The Form D instructions provide a filing deadline as follows:

"When to file: o An issuer must file a new notice with the SEC for each new offering of securities no later than 15 calendar days after the "date of first sale" of securities in the offering as explained in the Instruction to Item 7. For this purpose, the date of first sale is the date on which the first investor is irrevocably contractually committed to invest, which, depending on the terms and conditions of the contract, could be the date on which the issuer receives the investor's subscription agreement or check. An issuer may file the notice at any time before that if it has determined to make the offering. An issuer must file a new notice with each state that requires it at the time set by the state. For state filing information, go to www.NASAA.org. A mandatory capital commitment call does not constitute a new offering, but is made under the original offering, so no new Form D filing is required. o An issuer may file an amendment to a previously filed notice at any time. o An issuer must file an amendment to a previously filed notice for an offering: - to correct a material mistake of fact or error in the previously filed notice, as soon as practicable after discovery of the mistake or error; - to reflect a change in the information provided in the previously filed notice, except as provided below, as soon as practicable after the change; and - annually, on or before the first anniversary of the most recent previously filed notice, if the offering is continuing at that time."

When an Amendment of Form D is not Required

"When amendment is not required: An issuer is not required to file an amendment to a previously filed notice to reflect a change that occurs after the offering terminates or a change that occurs solely in the following information:

  • - the address or relationship to the issuer of a related person identified in response to Item 3;
  • - an issuer's revenues or aggregate net asset value;
  • - the minimum investment amount, if the change is an increase, or if the change, together with all other changes in that amount since the previously filed notice, does not result in a decrease of more than 10%;
  • - any address or state(s) of solicitation shown in response to Item 12;
  • - the total offering amount, if the change is a decrease, or if the change, together with all other changes in that amount since the previously filed notice, does not result in an increase of more than 10%;
  • - the amount of securities sold in the offering or the amount remaining to be sold;
  • - the number of non-accredited investors who have invested in the offering, as long as the change does not increase the number to more than 35;
  • - the total number of investors who have invested in the offering; and
  • - the amount of sales commissions, finders' fees or use of proceeds for payments to executive officers, directors or promoters, if the change is a decrease, or if the change, together with all other changes in that amount since the previously filed notice, does not result in an increase of more than 10%."

California Amendments

According to Department of Corporations Release 120-C (2009): "California does not require the filing of amendments or annual renewals. "

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