Author Archives: Liz Dunshee

This one flew under our radar! In January, Corp Fin published Form D FAQs. According to remarks that Commissioner Mark Uyeda delivered at yesterday’s Small Business Capital Formation Advisory Committee meeting, the FAQs are intended to consolidate existing guidance and are designed to be a “one-stop shop” to quickly address frequent questions posed to the Staff about Form D.

Since they’re relatively concise, here are the 12 FAQs in full:

1. Question: When must an issuer file a Form D?

Answer: Rule 503 of Regulation D (17 CFR 230.500–508) requires an issuer that offers or sells its securities in reliance on the Regulation D exemption[1] to file the Form D notice online using the SEC’s EDGAR (Electronic Data Gathering, Analysis, and Retrieval) system. There are three possible exemptions under the rules comprising Regulation D: Rule 504, Rule 506(b), and Rule 506(c). An issuer that offers or sells its securities in reliance on Section 4(a)(5) of the Securities Act of 1933 also must file a Form D.

A company must file the Form D notice within 15 calendar days after the first sale of securities in the offering. For Form D, the date of first sale is the date on which the first investor is irrevocably contractually committed to invest. If the due date for the Form D falls on a Saturday, Sunday or holiday, the due date is the next business day. An issuer may file a Form D before it has sold any securities. The SEC does not charge any filing fee for a Form D notice or amendment. In addition, paper filings of Forms D are not accepted.

2. Question: What Commission or staff guidance is available on how to answer specific item requirements of Form D?

Answer: The PDF version of Form D available on the SEC website provides general instructions on filing a Form D and amendments, as well as specific item-by-item instructions for the form.

The Commission also provided guidance on each of the items of Form D when it adopted the electronic Form D in Release No. 33–8891 (Feb. 6, 2008). Staff in the Division of Corporation Finance has also provided interpretive guidance on Form D in certain Compliance and Disclosure Interpretations (specifically Securities Act Rules C&DI Nos. 257.02–257.08 and Securities Act Forms C&DI Nos. 130.01–130.15), which provide interpretations in a question-and-answer format in an effort to clarify how staff would interpret or apply certain rules and regulations in specific situations.

3. Question: How do I find a Form D filed on EDGAR?

Answer: All Form D filings, including their accession numbers, are publicly available on the SEC website under search filings . You can also navigate to the filing search from any SEC website page by going to the top left-hand corner and clicking on “Search Filings,” and then clicking “Search Filings” in the drop down menu.

4. Question: How does an issuer obtain access to EDGAR in order to file a Form D?

Answer: New EDGAR filers will need to submit a Form ID to request access to EDGAR. The SEC has a dedicated web page that provides instructions on how to obtain EDGAR access. For questions about these instructions, including difficulties in obtaining a CIK or EDGAR access, contact SEC filer support at (202) 551-8900 and choose Option No. 4.

Once a company has a CIK number and EDGAR access, it can submit Form D and other SEC filings by logging into the EDGAR system. To file a Form D, visit the SEC’s Online Forms Login page and log in. Once logged in, choose “Form D” under “Make a Filing” in the top left corner.

Once logged in, the filer will have only one hour after its last keystroke to complete a Form D filing. Therefore, it is important to gather all the information needed to complete the filing before logging in. The company can compile the information by referring to the PDF version of Form D.

5. Question: What are the consequences of filing a Form D late?

Answer: Rule 503(a) of Regulation D requires the filing of a Form D no later than 15 calendar days after the first sale of securities in an offering conducted in reliance on Regulation D. However, that requirement is not a condition to the availability of the Regulation D exemptions under Rule 504, Rule 506(b) or Rule 506(c). Rule 507 states some of the potential consequences of the failure to comply with Rule 503.

Issuers who did not file a required Form D within the required 15 calendar day period should make a good faith effort to file the Form D as soon as practicable.

6. Question: When are amendments to the Form D required?

Answer: An issuer may file an amendment to a previously filed notice at any time.

An issuer must file an amendment to a previously filed notice for an offering:

– to correct a material mistake of fact or error in the previously filed notice, as soon as practicable after discovery of the mistake or error;

– to reflect a change in the information provided in the previously filed notice, except as provided below, as soon as practicable after the change; and

– annually, on or before the first anniversary of the most recent previously filed notice, if the offering is continuing at that time.

An issuer is not required to file an amendment to a previously filed notice to reflect a change that occurs after the offering terminates. An issuer is also not required to file an amendment to a previously filed notice for a change that occurs solely in the information set forth in Rule 503(a)(3)(ii) and the General Instructions to Form D. The changes that do not require an amendment to a previously filed Form D notice are changes to:

– the address or relationship to the issuer of a related person identified in response to Item 3;

– an issuer’s revenues or aggregate net asset value;

– the minimum investment amount, if the change is an increase, or if the change, together with all other changes in that amount since the previously filed notice, does not result in a decrease of more than 10%;

– any address or state(s) of solicitation shown in response to Item 12;

– the total offering amount, if the change is a decrease, or if the change, together with all other changes in that amount since the previously filed notice, does not result in an increase of more than 10%;

– the amount of securities sold in the offering or the amount remaining to be sold;

– the number of non-accredited investors who have invested in the offering, as long as the change does not increase the number to more than 35;

– the total number of investors who have invested in the offering; and

– the amount of sales commissions, finders’ fees or use of proceeds for payments to executive officers, directors or promoters, if the change is a decrease, or if the change, together with all other changes in that amount since the previously filed notice, does not result in an increase of more than 10%.

An issuer that files an amendment to a previously filed notice must respond to all items of the Form D with current information as of the date the amendment is filed, regardless of why the amendment is filed.

7. Question: When must an issuer file an amendment to an earlier filed Form D versus a new original Form D?

Answer: An amendment to a Form D is required if the offering is continuing and one of the three triggering events requiring an amendment occurs. These triggering events are described in question 6 above and also in the General Instructions to Form D. The issuer’s offering is continuing if the issuer is engaged in an ongoing effort to offer and sell its securities, regardless of whether it has successfully sold any securities.

A new Form D is required to reflect the first sale of securities in a new and distinct offering in reliance on Regulation D. Rule 152(d)(1) provides guidance as to when a Regulation D offering is deemed terminated or completed and Rule 152(c)(2) provides guidance on when a Regulation D offering is deemed to commence. An issuer should also consider Rule 152(b) if it ceased its selling efforts and then recommenced efforts to offer and sell its securities.

8. Question: When conducting a Regulation D offering, do I have to comply with state securities regulations (often called blue sky laws)?

Answer: While the SEC regulates and enforces the federal securities laws, each state has its own securities regulator who enforces what are known as “blue sky” laws. A company selling securities must comply with both federal statutes and regulations and state securities statutes and regulations in the states where securities are offered and sold.

Offers and sales of securities conducted in reliance on Rule 506(b) and Rule 506(c) are not subject to state registration and review. However, those offerings are subject to both state anti-fraud authority and state requirements that may require the issuer to file a notice and a consent to service of process with the states. In addition, issuers must pay any fees required by the states. Companies should contact state securities regulators in the relevant states for further guidance on compliance with state securities law.

More information on compliance with state securities laws is available on the website of the North American Securities Administrators Association (“NASAA”). Information about NASAA’s Electronic Filing Depository database that allows filers to electronically submit their state notice forms and corresponding filing fees to participating state securities regulators is available.

9. Question: Who may sign the Form D?

Answer: Form D must be signed by a person who is duly authorized by the issuer. This requirement is described in Rule 503(b)(2). Signatures must comply with Rule 302 of Regulation S-T.

10. Question: Can an issuer withdraw or delete a Form D filed on EDGAR?

Answer: Generally, no. Once filed, the Form D will be publicly available on EDGAR and generally cannot be withdrawn. In very rare cases the staff may remove a Form D filing from EDGAR if it meets the requirements of Rule 15 of Regulation S-T (17 CFR 232.15). Please consult EDGAR’s How Do I Correct or Delete a Filing for further information.

11. Question: Can an issuer request confidential treatment for any information required by Form D?

Answer: No. An issuer cannot request confidential treatment for any information required by Form D.

12. Question: How should an issuer address Item 12 “Sales Compensation” of Form D if the information requested by this item is not applicable to its Regulation D offering?

Answer: When the information solicited by Item 12 of Form D is not applicable to an issuer’s Regulation D offering because the issuer has not or does not expect to pay directly or indirectly any commission or other similar compensation in connection with the sale of its securities in a Regulation D offering, the issuer should not enter any information in any of the fields under Item 12 of Form D and should proceed directly to Item 13.

While the info in these FAQs isn’t necessarily new – and it’s important to remember the FAQs are simply Staff guidance, not Commission-approved rules – it’s another example of the effort that the Staff is making to improve clarity and predictability. As Commissioner Uyeda noted, Reg D plays a significant role in capital formation for small businesses. Sometimes the “little things” can go a long way.

– Liz Dunshee

The January-February issue of the Deal Lawyers newsletter was just sent to the printer. It is also available online to members of DealLawyers.com who subscribe to the electronic format. This issue includes the following articles:

– So, You Think You Can (Deal) Jump?

– Delaware Chancery Litigation Over Continuation Vehicle Transaction Highlights Considerations for GP-Led Secondaries

– Just Announced: The 2026 Proxy Disclosure & 23rd Annual Executive Compensation Conferences

The Deal Lawyers newsletter is always timely & topical – and something you can’t afford to be without to keep up with the rapid-fire developments in the world of M&A. If you don’t subscribe to Deal Lawyers, please email us at info@ccrcorp.com or call us at 800-737-1271.

– Liz Dunshee

A trio of proponent lawsuits have sprung up in the past week, which was one of the predicted outcomes for this year’s Rule 14a-8 process. This Cleary memo summarizes the complaints and potential consequences. Here’s an excerpt:

On February 17, 2026, two separate lawsuits were filed challenging company decisions to exclude shareholder proposals from their 2026 proxy materials. A third lawsuit followed just two days later, on February 19, 2026. These cases mark the earliest examples of litigation under this season’s revised Rule 14a-8 no-action letter process.

The first two lawsuits, filed in federal courts in New York and Washington, D.C., both challenge exclusions based on the ordinary business exception under Rule 14a-8(i)(7). One involves a group of New York City pension funds challenging AT&T Inc.’s exclusion of an EEO-1 workforce diversity disclosure proposal; the other involves the Nathan Cummings Foundation challenging Axon Enterprise, Inc.’s exclusion of a political spending disclosure proposal. The third lawsuit, also filed in federal court in New York, involves a procedural dispute over whether PepsiCo, Inc. properly notified an individual shareholder represented by People for the Ethical Treatment of Animals (PETA) of alleged deficiencies in the proposal submission.

All three companies filed exclusion noticesi with the SEC and included the unqualified representation required by the Commission—namely, that each company has a reasonable basis to exclude the proposal based on the provisions of Rule 14a-8. While the SEC has yet to react, and may not given prior statements, these lawsuits offer useful lessons for companies navigating exclusion decisions this season. This alert focuses on the first two lawsuits, though the emergence of a procedural challenge underscores that litigation risk extends beyond substantive questions of excludability.

I blogged about one of the initial lawsuits last week on the Proxy Season Blog – along with other risks that companies may want to consider when deciding which path to take this year on Rule 14a-8 shareholder proposals. The Cleary memo details the parade of horribles that companies could have to contend with if a court grants a mid-season injunction to order inclusion of a previously excluded proposal in a proxy statement. It also looks at the procedural history of the cases to-date, to try to draw lessons for the rest of us. Here are the high points of the suggested takeaways:

– Provide detailed, company specific analysis in (j) notices – but know it’s not a complete shield

– Consult data to inform your exclusion strategy – how close does your situation track with no-action precedent?

– Track past settlements, withdrawals or commitments made to proponents

– Engage with proponents before excluding

– Consider the full spectrum of risks

As the Cleary team notes, the SEC’s lighter touch this year has not made the exclusion calculus any simpler. We’re continuing to track updates on the Proxy Season Blog and in our “Proxy Season” Practice Area.

– Liz Dunshee

The SEC’s Small Business Capital Formation Advisory Committee is meeting virtually today at 10:00 am ET (they were going to meet at SEC headquarters but got snowed out). Here are the agenda highlights:

– 10:20 am – Deep Dive on “Finders” (continuing a July 2025 discussion)

– 1:00 pm – Update from the SEC’s Office of the Advocate for Small Business Capital Formation – reviewing the FY25 Staff Report

– 1:15 pm – Shedding Light on the Private Secondary Market

You can watch the webcast by going to the agenda page.

– Liz Dunshee

In this 31-minute episode of the Women Governance Trailblazers podcast, Courtney Kamlet and I spoke with Jen Sisson, who serves as CEO of the International Corporate Governance Network. We discussed:

– ICGN’s mission, members, and current activities.

– Jen’s thoughts on balancing global corporate governance standards with local and business-specific nuances.

– Finding common ground in conversations about governance standards and regulatory changes.

– Different approaches to the shareholder proposal process across the world.

– Perspectives from long-term institutional investors financial activism.

– Things that excite Jen about corporate governance right now.

– Jen’s advice for the next generation of women governance trailblazers.

To listen to any of our prior episodes of Women Governance Trailblazers, visit the podcast page on TheCorporateCounsel.net or use your favorite podcast app. If there are governance trailblazers whose career paths and perspectives you’d like to hear more about, Courtney and I always appreciate recommendations! Drop me an email at liz@thecorporatecounsel.net.

– Liz Dunshee

Like a bad on-again, off-again relationship, tariffs were “off” early Friday when SCOTUS issued its opinion in Learning Resources v. Trump – ruling 6-3 that the International Emergency Economic Powers Act doesn’t give the president the authority to unilaterally impose a tax. Before the day was out, the White House issued a proclamation imposing a (mostly) across-the-board 10% import – beginning tomorrow, February 24th, lasting for a limited time period of 150 days, and subject to a list of product exceptions. Here’s the fact sheet.

Of course, in today’s world, you can’t just rely on an official fact sheet. The president said in a Truth Social post on Saturday that he planned to raise the Section 122 tariff to the statutory cap of 15% – and also indicated that the administration would continue to work to issue new tariffs. See this Politico article for more about that, this summary from GHY International (a customs brokerage) for key points on how the Section 122 tariff is expected to apply, this Global Trade Alert explainer for a comparison of the Section 122 tariffs to the IEEPA tariffs that were struck down, and this NYT article for other potential tariff avenues.

Similar to last year, this tariff drama is playing out at a time when many companies are finalizing their Form 10-K. For better or worse, companies have become somewhat accustomed to flip-flopping and uncertainty on this topic, so that may already be built into many tariff-related disclosures. We’ve also blogged about tariffs in one way or another over 3 dozen times since February of last year (compared to 4 mentions in the entire history of the blog before that) – and we continue to post resources in our “Trump Administration Tariffs” Practice Area for members – so these issues are relatively fresh in disclosure lawyers’ minds.

Nevertheless, the disclosure issues still require a fresh think each time around because the facts and circumstances are always evolving. And although it would be great if you could simply unwind your tariff disclosure to pretend like this all never happened, the reality is that things are still very uncertain and it’s unlikely we’ll return to the old status quo. So, I’ll recap a few key points:

– Risk factors should discuss material company-specific impacts (and ongoing uncertainties). This AP article gives an example of how tariffs (and their recission) affect companies in different ways. Keep in mind that even if a company is sourcing domestically, the global trade war may affect local supply and pricing. We’ve blogged many times about different types of risks that could arise – a few examples relate to prices, costs of goods, inflationary impact, supply chain disruptions, trade deal uncertainty, and adaptation decisions.

– Non-GAAP issues could come into play if the company has been adjusting for tariff impacts.

– As Meredith shared last fall, companies have been discussing tariffs in the MD&A (consider similar material issues as noted above for risk factors), Quantitative & Qualitative Disclosures About Market Risks, and even in the financial statements in some instances. Affected companies will need to consider whether to add, remove, or modify any of these disclosures.

– Reuters reported that thousands of companies have sued the administration over tariffs and are seeking refunds. Whether and when refunds will be distributed is very much up in the air. Especially for large companies, it may be a stretch to say that this type of thing is a material legal proceeding not incidental to the business, but securities lawyers should think through Item 103 of Regulation S-K to make sure. It doesn’t seem like this type of proceeding would generally involve a loss contingency either – but I’m not an accountant (or a litigator)! Companies should make sure to evaluate their particular circumstances.

– Liz Dunshee

John blogged last week that debt offerings are having a moment – in large part to fund AI-related capex – and “hyperscalers” are negotiating atypical terms. The AI boom is also one factor that’s driving a surge in convertible notes issuances, according to this Cleary memo.

In the converts space, PIPEs and pre-IPO issuances are becoming more common – and the notes often look different than their traditional counterparts. The memo says that PIPE convertible notes are including bespoke features such as:

– Governance rights, such as board or observer seats, and the right to vote the underlying shares on an as-converted basis.

– Consent rights over items such as changes of control, M&A or other extraordinary transactions; material asset sales, investments, expenditures, borrowings, or issuances; related party transactions; material changes to organizational documents or lines of business; and other material adverse changes.

– Guarantees or collateral.

– Financial covenants.

– Prepayment provisions.

– Purchase price adjustments beyond standard anti-dilution provisions in capital markets convertible notes – e.g., ratchets for lower-priced issuances within a certain period.

– Equity sweeteners, such as warrants.

– Paying interest cash or in kind (PIK interest), or a combination of the two.

– Alternative return calculations – e.g., based on a specified internal rate of return (IRR) or multiple on invested capital (MOIC).

– An extended lock-up or standstill for the investor, as well as restrictions on hedging and transfers.

– Registration rights to facilitate SEC registered resale.

– Issuing in the form of preferred stock, rather than debt.

The memo says that converts are also playing a growing role in the pre-IPO ecosystem, with pre-IPO convert deals often involving discussions of similar features as PIPE converts. See the memo for a more nuanced discussion. If you’re looking for more on converts, check out our “Convertible Debt” Practice Area for more resources.

– Liz Dunshee

We’ve posted the transcript for our annual webcast “The Latest: Your Upcoming Proxy Disclosures” with Mark Borges from Compensia and CompensationStandards.com, Dave Lynn of Goodwin Procter, TheCorporateCounsel.net and CompensationStandards.com, Alan Dye from Hogan Lovells and Section16.net and Ron Mueller from Gibson Dunn. They broke down all you need to know for the upcoming proxy season. The webcast covered the following topics:

– Status of SEC Executive Compensation Disclosure Requirements

– Other Possible Topics for SEC Review

– Incentive Compensation – Disclosure Considerations for Tariff Challenges and Discretionary Adjustments

– Executive Security and Other Key “Perks” Disclosures

– Investor Perspectives: “Homogenization” and Performance Equity

– Proxy Advisors – Impact of the Executive Order

– Proxy Advisors – Voting Policy Updates for 2026

– Proxy Advisors – Impact of Announced Move Towards “Customization” of Voting Policies

– Proxy Advisors – Status of Legal Challenges in Texas and Florida

– New Challenges with Shareholder Engagement

– Clawback Policies – Lessons from 2025

– Compensation-Related Shareholder Proposals in 2026

– ESG and DEI Goals: Impact of Shifting and Conflicting Perspectives

– Managing Stock Price Volatility When Granting Equity

This program covered a lot of ground on how to anticipate and handle difficult proxy season issues. Members of this site can access the transcript of this program for free – as well as on-demand CLE credit. If you are not a member of TheCorporateCounsel.net, email info@ccrcorp.com to sign up today and get access to the replay and full transcript. It’s a great way to get up to speed!

– Liz Dunshee

Last month, John observed that “DExit” hasn’t been a stampede by any stretch, based on the (limited) number of reincorporation proposals and high percentage of Delaware-incorporated IPOs that occurred in 2024 and 2025.

A recently published dataset for entity formations, gathered by Professor Andrew Verstein at the UCLA School of Law, takes that one step further – Delaware experienced a “sharp increase” in incorporations in 2025, on an absolute basis as well as relative to other states. Here’s more detail from this HLS blog:

The Corporate Census is a draft paper and accompanying dataset that tracks entity formation in the United States. It presents a near-complete dataset of entity formations — including corporations, LLCs, and other business forms — for all U.S. states, dating back to the nation’s founding. It allows entity-by-entity, week-by-week, analyses and comparisons across states. The database includes about 100 million formations and allows for granular, longitudinal analysis of state popularity, entity-type trends, and legal or economic shocks.

And:

About 30% more Delaware corporations formed in 2025 than in 2024, greatly exceeding the prior trendline. This, while national incorporation levels remained flat.

This was an absolute increase, not driven by a decline in formation in other states. While Delaware averaged 1090 new corporations per week in 2020-24, that number increased by 309 in 2025. The rest of the nation as a whole enjoyed no statistically significant increase in corporate formation, nor did any other state individually. Plainly, something happened in 2024 or was anticipated for 2025 that rendered Delaware more attractive as a site of formation in 2025.

I was on the edge of my seat after reading that line, but the paper doesn’t arrive at any firm conclusion about what may have driven Delaware’s popularity last year, and we also can’t predict for sure whether the trend will continue. Nevertheless, it’s helpful to have numbers, instead of just “vibes,” about where Delaware stands.

– Liz Dunshee

We’ve known for a while that companies have been staying private longer and raising lots of capital along the way. The recent report from the SEC’s Office of the Advocate for Small Business Capital Formation confirmed that once again. The Staff found:

– The number of comapnies remaining private eight years or more after receiving their first VC round had quadrupled from 2014 to 2024, and

– 45% of unicorns are 9+ years old.

But hope springs eternal, and 2026 may be the year when more of them (finally, hopefully) move forward with a public debut.

These mega deals bring a different dynamic to the table when it comes to structuring the IPO and everything that goes into it. For example, this article from The Information gives a reminder that “innovative” lockups are on the table. Here’s an excerpt:

At least two large banks largely ruled out a standard IPO lockup period of either 90 to 180 days and are discussing how to design a staggered lockup release for the companies.
. . .
One option is staggering the dates to prevent a wave of selling on one day. IPO bankers and lawyers said investors could be allowed to sell a portion of their holdings every 20 to 30 days. Releases can also be triggered when the stock hits a certain price, they said.

The article notes that some companies that are believed to be in the pipeline have raised tens of billions of dollars privately. So, banks are looking to mitigate the risk of a mass selloff while also giving key insiders a path to liquidity.

Lockup variations aren’t unprecedented. Overall, underwriters have gotten more comfortable with early release mechanisms and see them as a tool to help with public float – e.g., early release based on stock price performance (as noted above), accommodating a release if the lockup is set to expire during a quarterly blackout period, or both. But there are still sensitivities, especially close to the IPO. Keep in mind that immediate sales might have collateral impacts on Section 11 liability as well – which is something I blogged about a few years ago in the lockup context. Meredith gave an update last summer on where this theory stands.

– Liz Dunshee