SEC Mandates New Electronic Filing Requirement for Regulation D Securities Offerings

March 25, 2009

Effective March 16, 2009, all issuers filing a Form D notice to claim an exemption from registration with the SEC must:

The SEC requires an issuer to file a Form D notice whenever an offering of securities is made in reliance on the exemptions from registration under Regulation D or Section 4(6) of the Securities Act of 1933, as amended. Issuers relying on such an exemption from registration must file the Form D notice either before the first sale of securities is made or within 15 calendar days after the date of the first sale.

The new SEC rules require that all Form D notices and related amendments be filed electronically through the SEC's EDGAR system, using the new electronic Form D. As of March 16, 2009, the SEC no longer accepts filings made through the mail or on the former paper Form D. This new electronic filing requirement and electronic form is part of the SEC's effort to cut the costs and labor burden associated with Form D filings, while taking another step forward in the SEC's transition to a centralized and publicly-accessible database. While Form D filings have always been public information and publicly accessible, the new electronic Form D filing requirement greatly increases the ease with which the public may view and search such filings via Issuers should be aware that the new electronic version of Form D includes revised disclosure requirements and that the new electronic filing requirement does not necessarily change any state law (or "blue sky") requirements or filing obligations.

To make the electronic filing, an issuer must obtain a Central Index Key (CIK) number, a CIK Confirmation Code (CCC), and a Password by following the steps beginning at the "Apply for EDGAR Access" tab at the SEC Filer Management Website.1 The SEC recommends allowing at least 48 hours to obtain these codes. Issuers that have filed electronically in the past may use the same codes previously required for electronic filing. Issuers may also "convert" their old paper filing codes into new electronic filing codes by accessing the SEC Filer Management Website and selecting the "Convert Paper Only Filer to Electronic Filer" tab.

After an issuer obtains these access codes, the actual filing process is fairly simple and straightforward. The questions on the electronic Form D are presented in an "interview" format and basic information such as the issuer's address is already filled in based on existing SEC records. Upon completion of the electronic filing, a transmission confirmation copy of the filed Form D should be printed, executed by an authorized officer of the issuer, notarized and then retained in the issuer's records for a period of five years.

In addition to the revised information requirements of the new electronic Form D, the SEC has also revised the rules governing when an issuer must file an amendment to a previously filed Form D notice. In general, the SEC has decreased the number of instances in which it is necessary for an issuer to file an amendment. As noted above, the SEC is requiring that all amendments to a Form D notice (including those to a previously filed paper Form D) be filed electronically.

Attorneys at Frost Brown Todd continue to monitor SEC reporting requirements and advise issuers how to meet these requirements. For more information please contact any of the attorneys in Frost Brown Todd's Public Companies and Securities Practice Group.