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Do NYC startups have to file a Form 99 when issuing founder stock?
Let me say up front that I am not licensed to practice law in New York. I have been involved in deals where securities were sold into the state, so I have had to deal with Form 99, but it's not a day-to-day occurrence for me. With that said, my understanding is that a New York regulator will tell you that, yes, you absolutely have to file Form 99. But the New York City Bar disagrees. To the best of my knowledge, the questions has never been challenged to resolution. In most cases like this, it's easier to hold your nose and comply that it is to fight back. That said, my personal opinion is that Form 99 is not required. Issuing stock to a founder is a private offering to an accredited investor within the Regulation D safe harbor if the founder is a director, executive officer, or general partner of the issuer. Most founders are one or more of those things. The National Securities Markets Improvement Act of 1996 established the federal-level filing requirements for Regulation D offerings, and provided that each state into which securities are sold can require that the issuer prthe same information that is required at the federal level, plus pay a filing fee. The federal-level requirement is satisfied by filing Form D with the SEC. Most states require you to file Form D and pay a fee of a few hundred dollars before or immediately after you sell securities into the state. New York is an exception in that it requires Form D as well as Form 99, and Form 99 demands substantially more information than is required on Form D. Since NSMIA preempted the state's authority to demand additional information, New York probably has no authority to require Form 99. It is unlikely that the Form 99 mandate would survive a legal challenge.
How are some venture-backed companies not required to file an SEC Form D when they sell securities?
Nobody is actually required to file a Form D. Rather, everybody who sells securities in the US is required to either register their offering (basically, be a public company), or find an exemption from registration. The most common exemption for issuers (companies selling shares of their own stock in order to raise money) is 15 U.S. Code u00a7 77d(a)(2), known as Section 4(a)(2) (formerly section 4(2)) of the Securities Act of 1933 u2022 hey, don't ask me how they come up with the section numbers! This says that you don't have to register your stock sale as long as it is not a public offering. As long as you don't publicly solicit investment, you don't have to register or file anything. End of story, but not quite.That's the statute. The regulations implementing the statute are commonly called Regulation D. Among its provisions are three safe harbors, know as Rule 504, 505, an 506. If you comply with any of these, including properly filing Form D, you are deemed not to have made a public offering so your stock sale is okay. As an added bonus, Rule 506 preempts state laws, so if you file a Form D for a 506 sale you don't have to do any state filings.So the answer is, companies don't really have to file a Form D. But it's good practice to file them if they can, because doing so gives them a defensible position that they did not make an illegal public offering, and avoids the need for state filings. The cost is that a Form D filing is a public record, so now everybody knows how and when you raised money (they can also get this from any restated Certificate of Incorporation filed with Delaware, among other records). Sometimes a company wants to be extra private, and if they raise money only from a small group of sophisticated institutional investors who they already know, it's safe to simply rely on complying with Section 4(2) without going through the further step of confirming that with a Form D.
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