Corporate & Securities Law

By Jim Hamilton

California Clarifies Form D Filing Procedures After SEC's 3/16/2009 Electronic Form D Filing Mandate

Procedures for filing Form D to claim California's Rule 506 or Section 25102(f) exemptions were clarified by the Department of Corporations in light of the SEC's requirement, effective March 16, 2009, that Form D be filed electronically at the federal level.

Section 25102.1(d) [Rule 506]. Issuers claiming federal preemption under Rule 506 of federal Regulation D at California statutory section 25102.1(d) must file a copy of the SEC-filed and -accepted version of Form D, accompanied by a $300 fee. The filing must include a consent to service of process at Rule 260.165 or Form U-2, Uniform Consent to Service of Process, if Temporary Form D was filed with the SEC before March 16, 2009 but does not require a consent to service of process or Form U-2 if Form D was filed electronicallywith the SEC. The filing must be submitted to the Department of Corporationsno later than 15 days after the first sale in California.

Section 25102(f). Issuers claiming an exemption at statutory section 25102(f) from California qualification requirements, if filing a copy of Form D rather than electronically filing a notice with the Department of Corporations, must file a copy of the SEC-filed and -accepted version of Form D, accompanied by the appropriate fee based on the value of securities proposed to be sold at Section 25608(c) and a cover letter stating that Form D is filed in reliance on Section 25102(f). The filing must include a consent to service of process at Rule 260.165 or Form U-2, Uniform Consent to Service of Process, if Temporary Form D was filed with the SEC before March 16, 2009 but does not require a consent to service of process or Form U-2 if Form D was filed electronically with the SEC. The filing must be submitted to the Department of Corporations no later than 15 days after the first sale in California.

NOTES for either filing above: (1) An electronic signature on a copy of electronic Form D is accepted in California; (2) California does not require amendments or annual renewals; and (3) Issuers filing electronically with the SEC are advised to allow adequate time to obtain an EDGAR access code before filing with the SEC, to meet the California 15-day filing requirement.

Mail all filings to: California Department of Corporations, 1515 K. Street, Suite 200, Sacramento, California 95814.

Questions regarding Form D filing requirements may be called in to 1 (866) ASK-CORP [(1) 866-275-2677].

For the full text of this Release, No. 120-C, please see http://www.corp.ca.gov/

Full post as published by Jim Hamilton's World of Securities Regulation on March 26, 2009 (boomark / email).