Learn more about Corporate and Securities at Schiff Hardin. For more information about Form D filings please contact a member of our Corporate and Securities Group, including any of the following attorneys: Jon K. Jurva Shirley M. Lukitsch Stephen A. Marcus Robert J. Minkus Paul A. Rahe Schiff Hardin Offices One Atlantic Center, Suite 2300 1201 West Peachtree Atlanta, GA 30309 225 Franklin Street, Suite 2600  Boston, MA 02110  6600 Sears Tower 233 S Wacker Drive Chicago, IL 60606 One Westminster Place Suite 200 Lake Forest, IL 60045 900 Third Avenue New York, NY 10022 One Market, Spear Tower 32nd Floor San Francisco, CA 94105 1666 K Street, NW Suite 300 Washington, DC 20006 - - - - - - - - - Join our mailing list. Forward this alert to a friend or colleague. - - - - - - - - -

Schiff Hardin Corporate and Securities Client Alert

Public and Private Companies Required to File Forms D Electronically

Effective Monday, March 16, 2009, the SEC will require that Form D filings by all companies, public and private, in connection with a sale of securities that is exempt from registration under Regulation D or Section 4(6) of the Securities Act of 1933 be made electronically via EDGAR. Forms D filed electronically will be interactive, searchable and accessible by regulators and the public at www.sec.gov.

The electronic filing will replace a paper filing with the SEC. Some states have implemented electronic filing. In other states, paper filings with individual state securities regulators (together with applicable consents to service of process and the payment of applicable fees) will continue to be required, although the SEC is working with the North American Securities Administrators Association to implement "one-stop" electronic filing. "One-stop" filing is not yet available.

We note the following about the new rules:

• The SEC will no longer accept paper filings on or after March 16. The electronic filing requirement applies to any issuer, not just current SEC filers, so that private companies, including private equity funds, portfolio companies and hedge funds, will need to obtain appropriate EDGAR access codes, including a "Central Index Key" (a permanent filer identification code) and additional security codes, to file electronically.



• To facilitate the application process to obtain EDGAR access codes, the SEC has adopted rule and form amendments, also effective as of March 16, 2009, to allow applicants to submit authenticating documents by attaching them to their online Form ID application in PDF format rather than submitting such documents by fax. Although the SEC expects processing time for Forms ID to be 48 hours after submission of authenticating documents, the SEC has warned that requests for EDGAR access codes around March 16 may take longer than usual. Issuers that do not yet have EDGAR access codes should factor these requirements into their offering timeline.



• As is currently required, the new Form D must be filed no later than 15 days after the first sale of securities in an offering. The "date of first sale" is the date on which the first investor is irrevocably contractually committed to invest (e.g., the date on which the issuer receives the first investor's subscription agreement or check).



• In connection with this rule-making, the SEC substantially revised Form D and clarified circumstances in which amendments are required. Under the new Form D, issuers may elect not to disclose certain information (e.g., revenue information and aggregate net asset value range), which may be particularly important for private issuers. For continuous offerings, annual amendments filed on or after March 16, 2009, must also be filed electronically.



• Although filed electronically, issuers must retain a manually signed Form D.



• As a result of the requirement of electronic filings, investors who wish to review a Form D will now be able to search and review the filing on the SEC's Web site, rather than being required to request a paper copy from the SEC.

ABOUT SCHIFF HARDIN LLP

Schiff Hardin's corporate and securities attorneys provide the full range of corporate, securities and financing services for private and public companies throughout the United States and abroad. Our tradition of service to our clients — many of which we have worked with for decades — enables us to anticipate their legal needs and provide solutions tailored to their individual circumstances.

For more information, please feel free to contact us.