Filing and Amending a Form D Notice:
A Compliance Guide for Small Entities and Others1
Form D is a form for a notice required to be filed with the Securities and Exchange Commission. Commission rules require the notice to be filed by companies and funds that have sold securities without registration under the Securities Act of 1933 in an offering based on a claim of exemption under Rule 504, 505 or 506 of Regulation D or Section 4(6) of that statute. Commission rules further require the notice to be filed within 15 days after the first sale of securities in the offering based on the exemption. For this purpose, the date of first sale is the date on which the first investor is irrevocably contractually committed to invest. If the due date falls on a Saturday, Sunday or holiday, it is moved to the next business day.
Until March 16, 2009, a company or fund may file a Form D notice or an amendment with the SEC either on paper or online. After that date, you must file online. The SEC does not charge any filing fee for a Form D notice or amendment. Many states also require the filing of Form D notices and amendments, and most of them do charge a filing fee. For information on state requirements for Form D filings, visit www.NASAA.org.
Paper Form D Filings. Companies and funds filing a Form D notice with the SEC on paper may use one of two available versions of the form. One version is called simply “Form D”; the other is called “Temporary Form D”. Since the information required by Form D and Temporary Form D is slightly different, a filer may choose to use one version rather than the other based on the different information requirements. For instance, Temporary Form D requires the filing company or fund to provide information on any beneficial owners of 10% or more of its equity securities, while Form D does not. Copies of both paper versions of the blank Form D are available from the SEC on the Internet at http://www.sec.gov/info/smallbus/cfformd.htm and by telephone at (202) 551-4041. The paper forms contain all the instructions you need to complete and file a Form D notice or amendment on paper, including information on where to send the filing and how many copies to include. The filing needs to be signed by a duly authorized person, which could include the filer’s attorney, if duly authorized.
Online Form D Filings. A company or fund filing a Form D notice or amendment online with the SEC must have its own filer identification number (called a “Central Index Key” or “CIK” number) and a login password (called a “CIK Confirmation Code” or “CCC” number) to access the SEC’s online filing system, “EDGAR.” “EDGAR” stands for Electronic Data Gathering, Analysis and Retrieval” system. You can obtain a CIK and CCC number for your company or fund at any time, even well before you are ready to file your Form D notice. To get them, you must complete a short form that provides the SEC with basic information about the filer. You can complete the form by visiting https://www.filermanagement.edgarfiling.sec.gov and clicking on the box indicating that you would like to “become a new filer or generate new access codes.” Follow the online instructions in completing the form. You will need to print the completed form, have it notarized, and fax it to the SEC before obtaining your CIK and CCC numbers. The SEC provides you with these numbers by sending a message to the e-mail address required to be included in the completed information form. Be sure to give yourself enough time to complete the entire process of obtaining EDGAR CIK and CCC numbers, so your Form D notice filing is not late. If you have any questions about obtaining CIK and CCC numbers, you may contact SEC filer support personnel at (202) 551-8900 and choose Option No. 2.
Once you have your CIK and CCC numbers, you can make Form D and other SEC filings online by logging in to the EDGAR system. You will have only one hour after your last keystroke to complete your Form D filing once you have logged in. Therefore, you will want to make sure you have all the information needed to complete the filing before logging in. You can compile the information using a copy of the blank paper Form D (not Temporary Form D) available at http://www.sec.gov/about/forms/formd.pdf. Once you have all the information you need, make the filing by visiting the website at https://www.onlineforms.edgarfiling.sec.gov and using your CIK and CCC numbers to log in. Once logged in, choose “Form D” under “Make a Filing” in the top left corner as shown in the sample image below.
The online version of Form D will appear on your screen. The form provides all the instructions and other information you should need to complete and submit a Form D notice online with the SEC. Once you click the “Submit” button and submit your filing, you will receive an e-mail message notifying you of the status of the submission. If you have questions at this point in the filing process, you may contact SEC filer support personnel at (202) 551-8900 and choose Option No. 4.
Amendments to Form D Filings. A Form D filer may file an amendment to a previously filed Form D notice, either on paper or online, by indicating in the space provided on the form that the filing is an amendment rather than a new filing. A Form D filer should abide by the following guidance in determining whether it should file an amendment to a previously filed Form D notice:
Definitions of Terms Used in Form D. Terms used but not defined in Form D that are defined in Rule 405 or Rule 501 under the Securities Act of 1933, 17 C.F.R. § 230.405 or 230.501, have the meanings given to them in those rules. More specific information on these definitions may be found in the Guide to Definitions of Terms Used in Form D.
Additional Information. The SEC's Division of Corporation Finance is available to assist small companies and others with questions on filing and amending Form D notices. Our Guidance on the Form D Filing Process may answer your questions on the EDGAR Form D filing process. You may direct additional questions on the process to SEC personnel by telephoning (202) 551-8900. You may obtain answers to interpretive legal questions on Form D information requirements by e-mailing the SEC’s Office of Small Business Policy at email@example.com or by telephoning the office at (202) 551-3460.
1 This guide was prepared by the staff of the U.S. Securities and Exchange Commission as a “small entity compliance guide” under Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996, as amended. The guide summarizes and explains rules adopted by the SEC, but is not a substitute for any rule itself. Only the rule itself can provide complete and definitive information regarding its requirements.