SEC Form D Electronic Online Filing Due for Paper-to-Electronic Conversion on Monday March 16, 2009, or Paper Amendment Filing Due to be Sent by Friday, March 13, 2009.

The SEC has implemented new electronic Form D filing requirements, which trigger filings due March 16, 2009. http://www.sec.gov/rules/final/2008/33-8891.pdf

The SEC requires a paper-to-electronic conversion by March 16, 2009, of any Form D filed previously in paper, for any Issuer that has ever filed an SEC Form D, and which is still actively making an offering (even if the issuer's amendment on file is current.)

To Which Issuers Does The Filing Requirement Apply?

Even if the Issuer has a current, valid Form D on file, that does not need an Amendment because the information is up to date, the Issuer is still required to file an annual amendment with the SEC (and online only after March 16, 2009.) The online Form D has been changed from the prior paper Form D. http://www.sec.gov/about/forms/formd.pdf

The filing requirement applies to any issuer with an active offering (an offering open to new investors) on March 16, 2009. Even if the Issuer has no current sales, and even if the Issuer's Form D is current and its information does not require an Amendment, the Issuer will be required to file an annual Amendment online.

If your offering is currently active, currently open to new investors, and if you have not filed an amendment within the past 12 months (i.e. if you have not filed an Amendment since March 16, 2008), then this March 16, 2009 filing requirement applies to you.

Stop-Gap To Meet Filing Requirement: File Paper Form D by March 13, 2009

Because there are some filing glitches on the SEC's EDGAR system, the SEC stated that the first annual Form D filing requirement can also be met by filing a paper Form D before the deadline. The paper copy must be postmarked, or FedEx shipped, no later than Friday March 13, 2009 (or if you must, but Saturday March 14, 2009.)

The SEC will no longer accept paper Form D filings after Monday March 16, 2009.

Complexities of Filing Process Causes More Time Planning Than Usual

The EDGAR filing process for Form D is more complicated than one would imagine, more than it should be, and requires several additional steps before the online filing can be made. The process of applying for filing access codes or CIK codes, or locating existing CIK codes if you have previously filed a paper Form D, then applying for EDGAR filing access codes, then setting up the EDGAR filing account, is running at least a week delay in SEC processing time. This adds to the time delay and time cost. Because of glitches in the SEC's online EDGAR filing system, the filings are not all going as smoothly as the SEC had hoped. Therefore, many issuers are marking one last paper filing before March 13, 2009, to be covered for another year before which it needs to make the online filing requirement. https://www.filermanagement.edgarfiling.sec.gov

Can We Help You?

Let us know if you'd like us to prepare and file on EDGAR the online Form D for you, or if you'd like help in obtaining the CIK codes, for your Issuer, your Small Business, for your Fund, or for your group of Funds. We have experience in filing electronic and paper Form Ds and can make the filings as efficiently as they can be done. nfallon@nfhlaw.com