New York Form D Filing Requirements
Concerns have been raised as to whether private bid submissions under Rule 506(b)/§4(a)(2) are now required in New York for new fund bids. If a deposit is made, there can be no assurance that the New York Attorney General`s Office (NYAG) will not solicit previous offers for related issuers. It should be noted that many other states have alternative exemptions for private placements that do not require a deposit. This is not the case in New York. If an offer continues for more than one year, an issuer must file an annual amendment to Form D with the SEC to update the information in the filing. At the end of the four-year period, if the offering is still ongoing, the issuer must file a new Form D with the SEC and New York via EFD and pay a new filing fee. b. Once submitted by EVS, all relevant future submissions (amendments/renewals) must be made via EVS. In March 2020, New York proposed amendments to 13 NYCRR 10 to modernize its procedures for enrolling in Regulation D offers.
 In December 2020, New York adopted these amendments and amended its regulations to allow, among other things, the submission of electronic communications.  The main conclusions are as follows: Paragraph 359-e(1)(a) states: A “dealer” means any person, firm, association or entity that buys and sells securities from the public within or outside that State for its own account, through a dealer or otherwise, other than a bank, unless: the bank is considered a dealer under the Federal Securities Exchange Act of 1934; However, no person, firm, association or entity to the extent that, individually or in a fiduciary capacity, it buys or sells securities on its investment account in good faith. Except as otherwise provided in this Article, the term “dealer” includes any person, firm, group or entity that sells or offers for sale securities to or from the public within or from that State. No person, firm, association or partnership is considered to be a “dealer” for the purposes of this subdivision merely because it sells or offers for sale securities or securities to a bank, corporation, savings institution, trust company, insurance company, investment company within the meaning of the Federal Investment Company Act of nineteen hundred and forty, a pension fund or profit-sharing fund. or any other financial institution or institutional buyer, whether the purchaser is acting for itself or in a fiduciary capacity in connection with a private placement of securities. Payment of filing fees between $300 and $1,200, depending on the size of the offer Prior to the amendments, New York required issuers selling securities under a Regulation D exemption to file a Notice on Form 99. Compliance with the Form 99 filing requirement was cumbersome because issuers had to collect sensitive personal information from directors, officers and major shareholders and file the original form, signed in wet ink, along with a notarized Form U-2, a state and state announcement, and copies of all offering documents. before the securities can be sold or offered in New York.