Search within this section
Select a section below and enter your search term, or to search all click C&DIs
Favorited Content
Section 130. Form D
us SEC - C&DI - Securities Act Forms
Question 130.01
Question: In an offering involving multiple issuers, can a single Form D be filed for the offering?
Answer: Yes. A single Form D may be used for an offering made in reliance on Regulation D that involves multiple issuers, assuming the offers and sales by the issuers are part of the same Regulation D offering as provided in Rule 502(a). For example, in a master fund offering conducted through feeder funds created for the sole purpose of investing their proceeds in the master fund, where all of the offers and sales of the funds are part of the same offering under Rule 502(a), the aggregate offers and sales of the Regulation D offering should be reflected on a single Form D. Offers and sales that are not part of the same Regulation D offering must be reflected in a separate Form D filing. [Feb. 27, 2009]
Question 130.02
Question: If multiple issuers make a combined Form D filing, how do they determine which is the "primary issuer" in the Form D filing?
Answer: The "primary issuer" is the most important issuer in the offering. For example, the primary obligor in a debt offering with multiple guarantors would likely be identified as the primary issuer. In an offering that includes real estate limited partnerships as multiple issuers, the primary issuer would likely be the partnership expected to receive the largest share of the proceeds. Customary usage in identifying important co-issuers on the cover page of Securities Act registration statements and prospectuses may provide helpful guidance. [Feb. 27, 2009]
Question 130.03
Question: When completing "Item 11—Minimum Investment" of Form D what is the appropriate response when an issuer may waive any required minimum investment amount from an outside investor?
Answer: When an issuer may waive any required minimum investment amount from an outside investor, the appropriate response to Item 11 of Form D is zero, since there is, in effect, no minimum investment amount. [Feb. 27, 2009]
Question 130.04
Question: How does an issuer determine the minimum investment amount from an outside investor in Item 11 of Form D when an outside investor provides only non-cash consideration, such as in a share exchange?
Answer: The issuer should enter an amount based on its good faith valuation of the consideration. In valuing the consideration, the issuer may follow the method of determining "aggregate offering price" in Rule 501(c) of Regulation D, which provides that, to determine the value of non-cash consideration, issuers should use bona fide sales of the consideration made within a reasonable time or, in the absence of sales, an accepted fair value standard. [Feb. 27, 2009]
Question 130.05
Question: In completing Item 11 of Form D, are immediate family members of inside investors, as well as trusts and affiliates controlled by inside investors, also deemed to be inside investors and therefore excluded from the definition of "outside investor"?
Answer: Yes. Immediate family members, and trusts or affiliates whose investment decisions are controlled by or for the benefit of any persons otherwise considered inside investors (including immediate family members), are deemed to be inside investors and are excluded from the definition of "outside investor." For this purpose, the phrase "immediate family member" includes spouses, spousal equivalents and dependents, as in Rule 2-01(f)(13) of Regulation S-X. [Feb. 27, 2009]
Question 130.06
Question: "Item 14—Investors" of Form D instructs the issuer to enter the total number of investors who already have invested in the offering. Does this mean the historic total number of purchasers to date or the number of purchasers still holding at the date of the filing?
Answer: Item 14 of Form D requires that an issuer enter the historic total number of purchasers to date, regardless of whether such purchasers continue to hold the issuer's shares at the date of filing or how long the offering has been ongoing. [Feb. 27, 2009]
Question 130.07
Question: In entering offering and sales amounts, sales commissions and use of proceeds for related party payments in Form D filings, does the issuer enter the aggregate historic amounts from the beginning of the offering, or just the amounts since the last Form D filing?
Answer: Form D requires that the issuer provide the aggregate historic amounts since the beginning of the offering. [Feb. 27, 2009]
Question 130.08
Question: Under "Item 15—Sales Commissions and Finders' Fees Expenses" of Form D, are issuers required to provide only the amount of sales commissions and finders' fees that are paid directly or indirectly out of the offering proceeds?
Answer: No. The requirement is to provide the amounts of sales commissions and finders' fees. There is no limitation to commissions and fees paid out of the offering proceeds. [Feb. 27, 2009]
Question 130.09
Question: On what basis would an issuer completing "Item 15—Sales Commissions and Finders' Fees Expenses" of Form D provide an amount that is paid other than in cash?
Answer: The issuer should base its submission on the instructions to "Item 13—Offering and Sales Amounts" of Form D, which provides that the amount should be based on the issuer's good faith valuation of the payment. The issuer may use the clarification box that accompanies Item 15 if a further explanation of its response is necessary. [Feb. 27, 2009]
Question 130.10
Question: How does an issuer provide financial information in foreign currency amounts in Form D, such as if the issuer derives its revenues principally from outside of the U.S. and in a foreign currency?
Answer: Issuers should translate foreign currency amounts into U.S. dollar amounts at a currency exchange rate in effect on or about the date of the Form D filing. Subsequent changes in exchange rates do not necessitate an amended Form D, and in the event an amended Form D is otherwise required, foreign currency calculations in prior Form D filings need not be recalculated to reflect current exchange rates. [Feb. 27, 2009]
Question 130.11
Question: Do the changes to Form D that are effective as of March 16, 2009 require issuers to amend any Form Ds filed on earlier versions of the form?
Answer: No. The fact that the version of Form D in effect on a later date may contain information requirements different from those applicable to a prior filing will not, in and of itself, trigger an obligation to amend a prior Form D filing. [Feb. 27, 2009]
Question 130.12
Question: If a sale occurs after an issuer has submitted a Form D filing that indicates that a sale has yet to occur in its response to "Item 7—Type of Filing," must the issuer file an amendment solely because of that first sale?
Answer: No. An issuer is not required to file an amendment to a previously filed notice solely to reflect the first sale because an issuer is not required under the Form D amendment rules to file an amendment merely to reflect a change to the amount of securities sold in the offering. [Feb. 27, 2009]
Question 130.13
Question: If an issuer changes its entity type after submitting a Form D notice, must that issuer amend that prior filing solely because of its new entity type status while the offering is ongoing?
Answer: Yes. If, after submitting a Form D notice, an issuer organizes or reorganizes as a different type of entity than the type indicated in "Item 1—Issuer's Identity," the issuer should file an amendment to reflect the change. [Feb. 27, 2009]
Question 130.14
Question: The Item-by-Item instructions for Item 7 of Form D indicate that an issuer must enter the date of the first sale of securities in the offering if the issuer is filing a "new notice." If an issuer is filing an amendment to a Form D filing, must the issuer provide current information about the date of first sale in the amendment?
Answer: Yes. Rule 503(a)(4) provides that an issuer that files an amendment must provide current information in response to all requirements of the form, regardless of why the amendment is filed. For example, if, in the original Form D, the issuer indicated that the first sale has "Yet to Occur" and if, by the time of the amendment, the date of first sale is known, then the issuer must disclose the actual date of first sale in the amendment. [Aug. 14, 2009]
Question 130.15
Question: How should an issuer address Item 12 “Sales Compensation” of Form D if the information requested by this item is not applicable to its Regulation D offering?
Answer: When the information solicited by Item 12 of Form D is not applicable to an issuer’s Regulation D offering because the issuer has not or does not expect to pay directly or indirectly any commission or other similar compensation in connection with the sale of its securities in a Regulation D offering, the issuer should not enter any information in any of the fields under Item 12 of Form D and should proceed directly to Item 13. [August 6, 2015]
This is a work of the U.S. Government
Link copied
