When a company decides to raise money in a Regulation D offering as part of its going public transaction, it must file a Form D – Notice of Sales with the Securities and Exchange Commission Rule 504, 505 or 506 of Regulation D of the Securities Act of 1933, as amended (the “Securities Act”). A Form D must also be filed for an exempt offering made pursuant to the accredited investor exemption of Section 4(5) of the Securities Act.
The Form D notice must be filed using the SEC’s Electronic Gathering, Analysis and Retrieval System known as EDGAR. Many companies are unaware that Form D must be amended under certain circumstances.
An issuer with a previously filed notice on Form D should file an amended Form D to:
o to correct a material mistake of fact or error in the previously filed Form D, as soon as practicable after discovery of the mistake or error;
o to reflect a change in the information provided in the previously filed Form D, as soon as practicable after the change; and
o annually, on or before the first anniversary date of the most recent previously filed Form D, if the offering is continuing at such time.
An issuer is not required to file an amendment to a previously filed Form D to reflect a change that occurs after the offering terminates. Further, an issuer is not required to file an amendment to reflect a change that occurs in the following information reported in a Form D or Form D amendment:
o the address or relationship to the issuer of a related person identified in the Form D;
o he issuer’s revenues or aggregate net asset value;
o the minimum investment accepted of the offering, if the change is an increase, or if the change, together with all other changes in the amount since the previously filed Form D, would not result in a decrease of more than 10%;
o any address or state of solicitation for a person receiving sales compensation;
o the total offering amount, if the change is a decrease of the offering, or if the change, together with all other changes in the amount since the previously filed Form D, does not result in an increase of more than 10%;
o the amount of securities sold in the offering reported in the Form D or the amount remaining to be sold;
o the number of non-accredited investors who have invested in the offering if there are no more than 35;
o the total number of persons investing in the offering; and
o the amount of 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 Form D, does not result in an increase of more than 10%.
For further information please contact Brenda Hamilton, Securities Attorney at 101 Plaza Real South, Suite 202 North, Boca Raton, FL, (561) 416-8956, or by email at [email protected]. This information is provided as a general or informational service to clients and friends of Hamilton & Associates Law Group, P.A. and should not be construed as, and does not constitute legal advice on any specific matter, nor does this message create an attorney-client relationship. Please note that prior results discussed herein do not guarantee similar outcomes.
