Each issuer of securities relying on an exemption from registration pursuant to Regulation D under the Securities Act of 1933 must file Form D with the Securities and Exchange Commission (“SEC”), as well as each state in which the issuer accepts an investor. Form D is required with respect to any private offering, including interests in hedge funds.
As required by the SEC, Form D should be filed no later than 15 calendar days after the “date of first sale” of securities in the offering. Most states also require a Form D notice filing within 15 calendar days after the date of first sale pursuant to their respective “Blue Sky” laws. However, certain states (e.g., New York) require a pre-filing instead; Form D pre-filings must be submitted before any sales occur within the state.
The SEC Electronic Data Gathering, Analysis, and Retrieval system (“EDGAR”) website includes an electronic version of Form D. In order to file Form D, you will need to first complete a Form ID through EDGAR. This document must be notarized, so be sure to print and sign it in the presence of a notary. You may then scan the document as a PDF, upload it to EDGAR, create a passphrase and submit the Form ID. Be sure to write down the passphrase, as well as save a copy of the Form ID Application Acknowledgement page for future reference. Once you have received your EDGAR confirmation email with your new ID and CIK Number, you may log in on the Form D portion of EDGAR and begin completing Form D.
Form D requires basic information regarding the principal place of business, related persons and type of industry of the private offering. Other sections require the calculation of revenue, sales compensation (if any), the number of investors and gross proceeds. Form D must be signed and submitted to the SEC electronically. Most states will require a copy of Form D with either an electronic or, in some cases, an original signature.
Annual amendments to Form D must be filed with the SEC every year on or before the anniversary of the most recently filed notice. Some states also require annual amendment filings. Form D can be found here for reference: http://www.sec.gov/about/forms/formd.pdf.
Issuers of private offerings should always consult with a qualified hedge fund attorney prior to the date of first sale to confirm that Form D is timely filed with the appropriate federal and state agencies.
Please contact us if you would like assistance with Form D and/or Blue Sky notice filings or have any questions regarding the process in general.