Texas Provides Guidance on Filing Electronic Form D
The Texas Securities Board issued the following bulletin on electronic filing of Form D in the State:
On February 6, 2008, the Securities and Exchange Commission (SEC) mandated the electronic filing of Form D. See Securities Act Release No. 33-8891 (Feb. 6, 2008), available from the SEC in pdf format. The SEC also adopted revisions to Form D designed to simplify and restructure information requirements. The new online filing system will be accessible from any computer with Internet access. The newly revised Form D may be filed electronically with the SEC on a voluntary basis from September 15, 2008, through March 15, 2009. Beginning March 16, 2009, electronic filing is mandatory for all Forms D filed with the SEC.
The intent of this bulletin is to advise you of revisions to the filing requirements for an issuer offering or selling securities in Texas in reliance on a limited offering exemption under state law and federal Regulation D.
What to file
On or after September 15, 2008, but before March 16, 2009, an issuer offering or selling securities in reliance on Rule 505 or Rule 506 of SEC Regulation D shall file with the Texas Securities Commissioner:
a Temporary Form D (17 CFR 239.500T) available in pdf format, together with a consent to service of process on Form U-2 , available from NASAA; or
a copy of the notice of sale on Form D filed electronically with the SEC, until such time that the requisite Form D notice is no longer accepted as paper-only and an electronic filing system acceptable to the Texas Securities Commissioner is implemented.
The filing must also be accompanied by the requisite fee. The fee is one-tenth (1/10) of one percent (1%) of the aggregate amount of securities described as being offered for sale, but in no case more than $500. Payment is to be made by check, payable to "State of Texas".
How to file
A paper filing shall be submitted to the Texas Securities Commissioner at: 208 E. 10th Street, 5th Floor, Austin, Texas 78701 or POB 13167, Austin, Texas 78711-3167.
In order to make an electronic filing with the SEC on Form D, an issuer will need to obtain an EDGAR access code. EDGAR access codes may be obtained by following the instructions on the SEC EDGAR website. For an inexperienced issuer the authentication process should be reviewed in advance of an anticipated filing of Form D because the authorization process could be time consuming. For additional information on how to file with the SEC, go to the SEC Form D.
When to File
The filings made with the Texas Securities Commissioner shall be filed no later than 15 calendar days after the first sale of securities in Texas, unless the 15th day falls on a Saturday, Sunday or holiday, in which case the due date is the first business day following.
When to file amendment
Issuers must file an amendment for excess sales with the Texas Securities Commissioner in accordance with requirements set forth in Rule 114.4(d)(2), but may voluntarily file an amendment to a Form D at any time.
An amendment to a Temporary Form D filing need only report the issuer's name and any material change in the facts from those set forth initially in Parts A and B of the form.
An amendment to a previously filed paper copy of an electronic Form D filed with the SEC must provide current information in response to all requirements of the notice of sale on Form D regardless of why the amendment is filed.
How to get help with questions regarding filing requirements
Requests for additional information or questions regarding this bulletin may be directed to: David Weaver, General Counsel here, or by calling (512) 305-8300.