Form D is the notice a company files with the SEC when it sells securities under Regulation D. It is short, it costs nothing to file with the SEC, and it is public the moment it is accepted. Companies treat it as paperwork. It is also the first thing a regulator, a journalist, or a future investor will look at.
I spent sixteen years at the SEC, first as an investigator and then as an enforcement attorney. A Form D was often the first document we pulled when an offering came to our attention. Here is what it does and how to get it right.
Who Files a Form D
A company files a Form D when it relies on Rule 504, Rule 506(b) or Rule 506(c) of Regulation D, or on Section 4(a)(5) of the Securities Act. If you are raising money from investors under one of those exemptions, you file.
Form D is a notice, not a registration statement. The SEC does not review or approve it, and filing one does not mean the SEC has looked at your offering.
The 15-Day Deadline
Form D is due no later than 15 calendar days after the first sale in the offering. The first sale is the date the first investor is irrevocably committed to invest. That is usually the date a subscription agreement is signed, not the date the money clears. If the fifteenth day falls on a weekend or a federal holiday, the deadline moves to the next business day.
Companies miss this deadline in a predictable way: the first investor signs early, the round stays open for months, and everyone assumes the filing waits until closing. It does not.
How It Is Filed
Form D is filed electronically on EDGAR, the SEC's filing system. A company that has never filed needs EDGAR access codes first. Under the SEC's EDGAR Next rules, the people who file for the company also need individual Login.gov credentials, and the company needs at least one account administrator. Getting set up can take several days, so do it before the first sale, not on day fourteen.
What Form D Discloses
The form asks for:
- ›The company's name, entity type, state of formation and contact details
- ›Related persons: every executive officer, director and promoter
- ›Industry group and, optionally, a revenue or net-asset range
- ›The exemption claimed (for example, Rule 506(b) or 506(c))
- ›Total offering amount, amount sold so far, and amount remaining
- ›Number of investors, including any non-accredited investors
- ›Sales compensation: any broker-dealer or other person paid a commission, with their registration numbers
- ›Any proceeds paid to executive officers, directors or promoters
Every one of those answers is public. Anyone can search EDGAR and read it.
What I Looked For as an Enforcement Attorney
When a Form D crossed my desk, I read it against what the company was telling investors:
- ›Sales compensation. A commission paid to someone who is not a registered broker-dealer is a red flag. So is a Form D that lists no sales compensation while the deck thanks a "capital partner."
- ›Related persons. A promoter who appears in the offering materials but not on the Form D gets a second look.
- ›Use of proceeds. Money paid to insiders should match what the private placement memorandum says.
- ›The exemption box. A company that checks 506(b) while advertising on social media has told the SEC, in writing, which rule it broke.
The Form D is a sworn picture of the offering. It should match the documents you gave investors.
When to Amend
File an amended Form D:
- ›To correct a material mistake of fact or error in the original filing, as soon as practicable after you find it
- ›To reflect certain changes in the information provided, such as new related persons or a meaningful increase in the offering amount
- ›Annually, on or before the first anniversary of the most recent filing, if the offering is still continuing
Some changes, such as a change in the number of investors or the amount sold, do not by themselves require an amendment. Check the instructions before you decide one is not needed.
What Happens If You File Late or Not at All
For Rule 506 offerings, filing a Form D is not a condition of the exemption itself. That does not make it optional. A company that is enjoined by a court for failing to file can be barred from using Regulation D in the future. States also rely on the Form D for their own notice filings, and they charge late fees or take action when those filings are missed. And a missing Form D is one more fact a regulator notices when something else goes wrong.
The State Notice Filings That Follow
The SEC filing is only half of it. Most states require a notice filing for Rule 506 offerings sold to their residents: usually a copy of the Form D, a consent to service of process, and a fee. Most states take these filings through NASAA's Electronic Filing Depository. Deadlines are commonly 15 days after the first sale in that state, but timing and fees vary, and a few states work differently.
Offerings under Rule 504 or Section 4(a)(5) do not get the same federal preemption, so they may need full registration or a state exemption in each state where you sell. I explain the state side in Blue Sky Laws and State Notice Filings.
A Simple Checklist
- ›Set up EDGAR access before the first investor signs.
- ›Record the date of the first irrevocable commitment.
- ›File Form D within 15 calendar days of that date.
- ›Make sure related persons, sales compensation and use of proceeds match your PPM.
- ›File state notices for every state where you have sold.
- ›Calendar the annual amendment if the offering stays open.
Chapter 5 of my book covers finders, Form D and blue sky filings: Finders, Form D and Blue Sky. The rules behind the exemption are in Rule 506 of Regulation D: 506(b) vs. 506(c).
Related Reading
- ›Reg D Attorney — Flat Fee
- ›What Is a PPM and When Do You Need One?
- ›Regulation D Enforcement Triggers
Questions about how this applies to your company? Email me directly at flehrer@securitiesattorney1.com or call (561) 706-7646.
This post is general information, not legal advice.
Authoritative Sources
- 17 C.F.R. §§ 230.500–230.508 — Regulation D — Electronic Code of Federal Regulations
- SEC Investor Bulletin: Accredited Investor Definition — U.S. Securities and Exchange Commission
- 17 C.F.R. Part 240 — General Rules and Regulations, Exchange Act — Electronic Code of Federal Regulations
- SEC EDGAR — Full-Text Search of Company Filings — U.S. Securities and Exchange Commission
- Securities Act of 1933 (15 U.S.C. §§ 77a et seq.) — U.S. Government Publishing Office
- Securities Exchange Act of 1934 (15 U.S.C. §§ 78a et seq.) — U.S. Government Publishing Office
Primary sources are cited so readers can verify the law directly. Rules and staff guidance change; see our editorial and corrections policy to report an error or an outdated citation.
Frederick M. Lehrer served as an enforcement attorney in the SEC's Division of Enforcement at the Southeast Regional Office from 1991 through 2000, and concurrently as a Special Assistant United States Attorney in the Southern District of Florida from 1997 through 1999, prosecuting securities-related financial crimes. He has practiced securities and corporate law in private practice for more than twenty-five years, advising issuers worldwide on SEC registration, disclosure obligations, Regulation D private placements, Regulation A offerings, and going public transactions. The firm is based in Florida and serves clients internationally.
Questions about how this applies to your company are answered personally — most within the same business day. Flat-fee arrangements available for most work.