Ask Securities Lawyer 101 l Form D Q & A
Form D Question & Answer
The most common exemptions used by companies to sell stock prior to going public are those found in Regulation D of the Securities Act. Many private companies going public do not realize that a filing with the SEC is required even for offerings to initial shareholders in private placements made under Regulation D. This blog post addresses common questions we receive about Form D’s requirements.
Q. What Is a Form D?
A. Form D is a notice of an exempt offering of securities in reliance upon Regulation D (or Section 4(6) of the Securities Act).
Q. What securities offerings require a Form D filing?
A. Offerings made in reliance upon Rules 504, 505, and 506 of Regulation D and Securities Act Section 4(5) require Form D filings.
Q. What is the due date for my Company’s Form D ?
A. 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.
Q. What Information is required in a Form D ?
A. Form D requires specific information about the issuer and the offering it is conducting. The required information includes (i) the issuer’s identity, (ii) its principal place of business and contact information, (iii) state of domicile (iv) the names and addresses of its executive officers and directors, (v) the specific exemption claimed under the Securities Act, and (v) the identity and contact information of any broker-dealer, finder or other person receiving any commission or other similar compensation relating to the sale of securities in the offering.
Q. Who receives the Form D when it is filed?
A. The completed Form D must be filed with the Securities and Exchange Commission (the “SEC”) if the issuer is relying on Rule 506 of Regulation D. Additionally, state blue sky laws may require the filing of the Form D along with a filing fee.
Q. How Do I File the Form D with the SEC?
A. 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.
Q. Is the Form D publicly available?
A. Yes, all Forms D filed through EDGAR are available for public viewing on the SEC’s website immediately upon filing.
Q. Does the Form D have to be amended?
A. The Form D must be amended (i) to correct a material mistake of disclosure, as soon as practicable after the discovery of the mistake; (ii) to reflect a change in certain reported information (including any change in the issuer’s directors or officers), as soon as practicable after the change; or (iii) “annually, on or before the first anniversary of the most recent previously filed notice, if the offering is continuing at that time.”
Q. What happens if I didn’t file a Form D for my Company’s offering?
A. While failure to file a Form D will not necessarily disqualify an issuer from relying upon Regulation D, the failure to file can increase the probability of comments to the issuer’s S-1 registration statement or Form 211.
Q. Do states require a Form D filing?
Most states require a notice filing on Form D filing to comply with their own exemptions from registration.
For further information about this securities law blog post, please contact Brenda Hamilton, Securities Attorney at 101 Plaza Real S, Suite 202 N, Boca Raton, Florida, (561) 416-8956, by email at [email protected] or visit www.securitieslawyer101.com. This securities law blog post is provided as a general informational service to clients and friends of Hamilton & Associates Law Group and should not be construed as, and does not constitute, legal and compliance advice on any specific matter, nor does this message create an attorney-client relationship. For more information about going public and the rules and regulations affecting the use of Rule 144, Form 8K, crowdfunding, FINRA Rule 6490, Rule 506 private placement offerings and memorandums, Regulation A, Rule 504 offerings, SEC reporting requirements, SEC registration statements on Form S-1 , IPO’s, OTC Pink Sheet listings, Form 10 OTCBB and OTC Markets disclosure requirements, DTC Chills, Global Locks, reverse mergers, public shells, direct public offerings and direct public offerings please contact Hamilton and Associates at (561) 416-8956 or [email protected]. Please note that the prior results discussed herein do not guarantee similar outcomes.
Hamilton & Associates | Securities Lawyers
Brenda Hamilton, Securities Attorney
101 Plaza Real South, Suite 202 North
Boca Raton, Florida 33432
Telephone: (561) 416-8956
Facsimile: (561) 416-2855