Monday, September 22, 2008

Form D Amendments--When to File Them

Effective September 15, 2008, issuers must file amendments to a notice on Form D:

1. Within 12 months of: (a) the initial Form D filing; or (b) within 12 months of the most recent Form D amendment filing, if the offering is continuing;

2. Upon discovering a material mistake of fact or error in the previously filed Form D; and

3. To reflect changes in the information contained in a Form D, other than a change that occurs after the offering terminates or a change that occurs solely in the following information:
the address or relationship to the issuer of a related person identified in response to Item 3 of Form D;

an issuer's revenues or aggregate net asset value;

the minimum investment amount, if (A) the change is an increase or (B) the change, together with all other changes in that amount since the previously filed Form D, does not result in a decrease of more than 10%;

any address or state(s) of solicitation shown in response to Item 12 of Form D;

the total offering amount, if (A) the change is a decrease or (B) 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%;

the amount of securities sold or the amount remaining to be sold in the offering;

the number of non-accredited investors who have invested in the offering, so long as the change does not increase the number to more than 35;

the total number of investors who have invested in the offering; or

the amount of sales commissions, finders' fees or use of proceeds for payments to executive officers, directors or promoters, if (A) the change is a decrease or (B) 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%.

Attributed to Ann McGovern, Senior Paralegal, Goodwin Proctor, LLP, at Paralegal Roundtable, Annual Fall 2008 Conference of the North American Securities Administrators Association (NASAA).