Companies may use an exemption under Regulation D to offer and sell securities without having to register the offering with the Securities and Exchange Commission (“SEC”).
When relying on such an exemption,companies must file what’s known as a “Form D” after they first sell their securities.
Form D is a brief notice that includes basic information about the company and the offering, such as the names and addresses of the company’s executive officers, the size of the offering and the date of first sale.
The SEC recently approved amendments to Form D, adding a box check box requiring issuers to disclose if they are relying on Rule 506(c).
Form D is a notice of an exempt offering of securities in reliance upon Regulation D (or Section 4(6) of the Securities Act).
Offerings made in reliance upon Rules 504, 505, and 506 of Regulation D and Securities Act Section 4(5) require Form D filings.
The Form D must be filed with the SEC no later than 15 calendar days after the “date of first sale” of securities sold based on a claim of exemption under Rule 504, 505 or 506 of Regulation D or Section 4(6) of the Securities Act.
For this purpose, the “date of first sale” is the “date on which the first purchaser is irrevocably contractually committed to purchase the securities.” If the date on which the Form D is required to be filed falls on a Saturday, Sunday or holiday, the applicable due date is the first business day following.
The completed Form D must be filed with the SEC if the issuer is relying on Rule 506 of Regulation D. Additionally, state blue sky lawsmay require the filing of the Form D along with a filing fee.
The SEC requires the electronic filing of Forms D through the SEC’s Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”). To use EDGAR, the Company must obtain its own filer identification number and filer access codes from the SEC.