Some Legal and Compliance Considerations for SEC Form D Filings

Issuers looking to raise capital by selling securities without having to register them with the Securities and Exchange Commission (SEC) need to meet the terms of a legal exemption. For most, that means meeting the requirements of Section 4(a)(5), Rule 504, or, more commonly, Rule 506 of Regulation D of the Securities Act.

To rely on a Regulation D (Reg. D) exemption, issuers must ensure that they follow the law’s specific requirements regarding the number of accredited investors and non-accredited investors that may participate in the offering. In addition, as with all unregistered securities taking advantage of the exemptions provided by Rule 504, Rule 506, or Section 4(a)(5), issuers using a Reg. D exemption must also file a Form D with the SEC. 

Form D is a “notice of exempt offering.” It must be filed with the SEC within 15 days after the first sale of securities in the offering.

Form D is not a particularly complicated filing, but it is a critical one. The failure to file — or to properly file a Form D — can have serious compliance consequences. 

In this article, we will take a closer look at Form D and some of the compliance issues it raises. In particular, we will discuss what information it requires, when it needs to be filed, how you go about filing it with the SEC, and what the consequences are for issuers who get it wrong.

So let’s get started.

What Information Must Be Included in Form D? 

Form D isn’t a particularly onerous form. Essentially, it requires issuers to provide some basic information about their company and the securities offering or issuance for which they are claiming an exemption. 

Among other things, the form requests information including (not limited to):

• issuer identity,

• principal place of business and contact information,

• industry,

• size of the issuer,

• the exemption being claimed,

• the type of filing,

• details about the offering,

• who the executive officers and promoters are,

• information about the number of accredited investors and non-accredited investors,

• sales commissions information, and,

• how the proceeds from the sale of securities will be used.

There is, of course, a filing fee that must accompany the form, and if material changes to any of the information provided on the form occur, the issuer will need to file an amended Form D. Plus, all information provided in the form must be complete and accurate. But basically, that’s it. The form is pretty simple. In fact, because of its simplicity, Form D is a welcome alternative to the traditional, costly, time-consuming, and lengthy SEC registration filing. 

But wait. There is somewhat of a catch. 

And it’s that…

Issuers cannot neglect filing a Form D, and for this filing, timing is everything.   

The Timing of a Form D Filing; Why it Matters; and the Risks of Getting it Wrong.  

The thing to realize about Form D is that it’s a document that the SEC takes very seriously. For any issuer wanting to raise capital from accredited investors with a Reg. D exemption, it is vital that they file a Form D with the SEC. 

And not only that, but it is critical that they get the timing right.

 
Let us explain.

Form D may be a simple document, but it carries considerable importance for accredited investors and the SEC. First, a Form D filing provides insight into both a company and its offerings for investors. This gives a certain level of transparency and makes it easier for investors to evaluate the opportunity. Next, the form assists the SEC in monitoring and enforcing private placement compliance. Finally, Form D filings provide accredited investors with insight into overall capital raising activities in the market.  

Thus, it is important that all issuers file a Form D with the SEC for any exempt security offering. 

Equally important, however, is getting the timing of the filing right.

So, when exactly does a Form D have to be filed with the SEC?

The answer is that any issuer relying on a securities exemption (i.e., under Reg. D or Section 4(a)(5)) must file a complete and accurate Form D with the SEC no later than 15 days after the first sale of securities in the offering. For purposes of calculating this date, it is the date of the first sale of securities on which the very first investor is “irrevocably contractually committed to invest.”

Why, you may ask, does the timing matter so much?

Because the consequences of not filing — or not getting the timing right — can be quite severe. 

If a Form D is not filed with the SEC, or if a sale occurs before the Form D is filed, the entire offering may no longer be exempt from the registration requirements. In addition, companies that fail to file a Form D or file late can be subject to SEC enforcement actions resulting in penalties and/or possibly the inability to rely on a Reg. D exemption in the future.

Which means that the entire capital raise is riding on filing a Form D and getting the timing right.

So let’s look at how you go about filing a Form D with the SEC. 

How to File a Form D: EDGAR, and the New EDGAR NEXT SEC Filing Requirements

As noted above, issuers raising money through private placements or Reg. D exempt securities must file a Form D with the SEC. Form D filings are made electronically by accessing the SEC’s electronic database. 

The SEC’s database — known as “EDGAR” (which stands for Electronic Data Gathering, Analysis, and Retrieval database) — contains all public filings filed by publicly traded companies, mutual funds, and any other company that is required to submit documents or file forms with the SEC. This system provides public access to millions of filings and company reports — promoting transparency regarding securities investments. 

Form D notices must be filed using the EDGAR system. 

But before you hop on EDGAR and file your Form D, you need to know that in 2024 the SEC updated its rules on EDGAR filings. Effective March 24, 2025, all filers will now be required to use the SEC’s newly amended and updated system, known as “EDGAR Next.” The SEC’s purpose in adopting EDGAR Next was to increase EDGAR security and improve account management. 

The specific filing requirements and compliance dates for transferring from an EDGAR account to the new EDGAR Next account are beyond the scope of this article. However, if you are interested in this topic, see here. Basically, anyone required to file a form or document with the SEC will be required to now use EDGAR Next — no exceptions. The transition period for existing users is between March 24, 2025, and September 15, 2025. In some cases, filers may transfer over as late as December 19, 2025, but after September 15, 2025, all filers will be required to enroll in EDGAR Next.  

Don’t Forget to File Your Form D

So there you have it. Form D is not complicated or onerous, but it is highly important. The SEC takes non-filing very seriously.Form D may not be a complicated and onerous form, but it is a highly important one, and the SEC takes non-filing very seriously. All issuers claiming a Regulation D securities law exemption must file Form D correctly and in a timely fashion. The compliance consequences of failing to do so can be severe. This simple little form plays a key role in maintaining transparency and efficiency in securities offerings. Thus, companies that are taking advantage of the Reg. D exemptions should be certain to comply with this part of the law.

From filing forms to raising capital, complying with the securities laws is critical for both issuers and investors. The securities laws touch on a vast number of financial and investment issues of importance to all investors and issuers. VerifyInvestor.com makes verifying accredited investors easy, cost-effective, secure, and reliable. Our services (which also include AML/KYC, qualified purchaser, and qualified client verification) are always code-compliant and confidential. We help companies fully and easily comply with their legal obligations to verify accredited investors.