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Why is Everyone Hatin’ on Form D?

More and more I’ve been hearing about companies not filing Form D’s in conjunction with their financings.  The reason:  We don’t want the press picking up on our fundraising / we want to control the message / we are stealth, etc.

This post isn’t about the value of being stealth.  I’ve always thought stealth mode is a little silly.  After all, a startup’s best indication of success is the people that it puts together, but like I said – to each his own.

What this post is about is why I think people should still file Form D’s despite many law firms saying “eh, don’t worry about it.”  I’ll go all lawyer on y’all for a moment.

Regulation D requires a filing, but per Rule 507, if you don’t file it, doesn’t eliminate your ability to rely on RegD for the financing.   Therefore a company that wants to be stealth and elects against the advice not to file the Form D is violating an SEC rule, but it doesn’t jeopardize the offering exemption.    4(2) always exists, but that is factual, and in these very early rounds you may have small angels or others who are tricky.

My sense is that some law firms are loose and cite 4(2), so that VCs have come to believe that it doesn’t really matter whether you file the Form D.

The SEC has not gone after anyone yet (but could), but as some of you may recall the S-1 (IPO filing document) requires disclosure of what exemption you relied upon (and I have heard of current situations in which the SEC was really reading this section closely which isn’t surprising in this era of SecondMarket), so a company that doesn’t file the Form D has to decide how they disclose what they did, and risk more SEC questions.

Note, you no longer need to list the names of the investors in the Form D, so it is less of an issue to file it.  Even if a company doesn’t promptly file, once they have announced the round publicly I would recommend that they then file theForm D.

Note also that if a public acquirer is picking up your company, they are, too, going to go through each financing with a fine tooth comb.

Bottom line:  seems like little value for a potential problem later that you don’t need.  Suck it up and file the D’s and keep all of our reporter friends happy at the same time.

August 13th, 2012     Categories: Financings, Law, Uncategorized    
  • Bart Dillashaw

    I’ll also add that if you don’t file a Form D, you loose the best part of Regulation D, which is that it preempts all of the individual state securities laws and regulations. If you have an offering that spans multiply states, you are giving up a huge benefit, as the state agencies are much more prone to enforcement actions and are much more difficult to deal with if you happen to trip up one of their rules.

  • dkim76

    one immaterial typo: thanks to the JOBS Act, it’s 4(a)(2) now. :-)

    • jasonmendelson

      hah! Thanks!

  • AndrewR4488

    From a former student, feel free to go lawyer on us as much as you’d like. I took Securities, but the simple and relevant explanation is always welcome.