Filing and Amending a Form D Notice — A Compliance Guide for Small Entities and Others

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.

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.

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:

• A filer may file an amendment to a previously filed notice at any time.
• A filer must file an amendment to a previously filed notice for an offering:
  •  to correct a material mistake of fact or error in the previously filed notice, as soon as practicable after discovery of the mistake or error;
  • to reflect a change in the information provided in the previously filed notice, except as provided below, as soon as practicable after the change; and
    beginning March 16, 2009, annually, on or before the first anniversary of the most recent previously filed notice, if the offering is continuing at that time.
• When amendment is not required: A filer is not required to file an amendment to a previously filed notice to reflect a change that occurs after the offering terminates or a change that occurs solely in the following information contained in a previous Form D notice or amendment:
  • the address or relationship to the issuer of a related person identified;
  • an issuer’s revenues or aggregate net asset value;
  • the minimum investment amount, if the change is an increase, or if the change, together with all other changes in that amount since the previously filed notice, does not result in a decrease of more than 10%;
  • any address or state(s) of solicitation for a person receiving sales compensation;
  • the total offering amount, if the change is a decrease, or if the change, together with all other changes in that amount since the previously filed notice, does not result in an increase of more than 10%;
  • the amount of securities sold in the offering or the amount remaining to be sold;
  • the number of non-accredited investors who have invested in the offering, as long as the change does not increase the number to more than 35;
  • the total number of investors who have invested in the offering; and
  • the amount of sales 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 notice, does not result in an increase of more than 10%.

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.

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 smallbusiness@sec.gov or by telephoning the office at (202) 551-3460.