Securities Filing — Form D (New York Martin Act Overlay)

SECURITIES FILING — FORM D (NEW YORK MARTIN ACT NOTICE OVERLAY)

A compilation guide and NY-specific overlay for preparing (i) a federal Form D (Notice of Exempt Offering of Securities) filed on SEC EDGAR, and (ii) the concurrent state notice filing for New York-targeted offers made in reliance on Rule 506 of Regulation D, filed via the NASAA Electronic Filing Depository ("EFD") to the New York State Department of Law, Investor Protection Bureau, under New York General Business Law § 359-e (the "Martin Act").

NEW YORK DRAFTING NOTES — THE MARTIN ACT AND § 359-E

1. The Martin Act is unique. N.Y. General Business Law Article 23-A (§§ 352-352-h), known as the Martin Act, is widely regarded as the broadest blue-sky law in the United States. It grants the NY Attorney General (through the Investor Protection Bureau) civil AND criminal enforcement authority, does NOT require the AG to prove scienter in civil cases, and has a broad definition of "fraudulent practices." The Martin Act applies to any offer or sale "within or from" New York, even if the issuer and buyer are elsewhere.
2. NSMIA preemption is partial. Although Section 18 of the Securities Act preempts state registration requirements for "covered securities" (including Rule 506 offerings), 15 U.S.C. § 77r(c)(1) preserves state authority to require notice filings, impose filing fees, and pursue fraud enforcement. The Martin Act's anti-fraud provisions are NOT preempted.
3. § 359-e dealer registration. Under N.Y. GBL § 359-e, any "dealer" offering securities in or from New York must register or file a notice with the NY Department of Law. The NYAG's December 2020 rule amendments (13 N.Y.C.R.R. Part 10) require Rule 506 issuers to file Form D via the NASAA Electronic Filing Depository (EFD) instead of the old paper Form 99. This became mandatory on February 1, 2021.
4. Deadline to file with NY. The NY notice filing must be made within 15 days of the first sale of securities to a New York purchaser. Amendments must be filed within 15 days of any material change. Annual renewals are required.
5. NY filing fee. NY charges a filing fee of $300 for the initial Form D notice filing under § 359-e (plus a renewal fee for subsequent periods). Fees are paid through EFD.
6. Form 99 is retired. The old NY Form 99 has been retired as of February 1, 2021. Issuers now file Form D via EFD, not Form 99.
7. Real estate syndications (§ 352-e). If the offering involves "participation interests or investments in real estate, mortgages or leases" (a "real estate syndication"), § 352-e imposes a separate and more onerous registration regime—filing of an offering statement (typically the "CPS-1" or "CPS-7" through the NYAG Real Estate Finance Bureau). Rule 506 does NOT preempt § 352-e for real estate syndications targeted at NY investors (the Martin Act's real estate offering requirements are NOT NSMIA-preempted).
8. Bad-actor disqualification. Rule 506(d) disqualifies issuers and related persons for certain "bad acts." Independently, GBL § 352-c prohibits deceptive practices in connection with securities offerings, and the NYAG may investigate bad-actor histories separately.

SECTION A — FEDERAL FORM D (EDGAR FILING)

A.1 Filing Authority and Trigger

Form D must be filed within 15 calendar days after the date of first sale of securities in a Regulation D offering (Rule 503). The filing is made electronically on SEC EDGAR by obtaining CIK and CCC credentials. An amendment must be filed: (a) annually on the anniversary of the most recent previous Form D; (b) within 30 days after termination of the offering; and (c) promptly upon any material inaccuracy.

A.2 Information to Gather Before Filing

Prepare the following before logging into EDGAR:

Item 1 — Issuer Identity

• Exact legal name of issuer: [________________________________]
• Jurisdiction of incorporation/organization: [____________]
• Year of formation: [____]
• Previous names (if any, within last 5 years): [________________________________]
• Entity type (corporation, LLC, LP, trust, etc.): [____________]
• CIK (Central Index Key): [____________]
• IRS EIN: [____________]

Item 2 — Principal Place of Business

• Street address: [________________________________]
• City: [____________]
• State: [____________]
• Zip: [____________]
• Phone: [____________]

Item 3 — Related Persons

(Include all directors, executive officers, managing members, general partners, and promoters)

Item 4 — Industry Group
☐ Agriculture
☐ Banking & Financial Services
☐ Biotechnology
☐ Computers
☐ Health Care
☐ Manufacturing
☐ Real Estate (NOTE: if selected AND NY offers, separate Martin Act § 352-e real estate syndication filing may be required)
☐ Technology
☐ Other: [____________]

Item 5 — Issuer Size
☐ Not applicable (e.g., pooled investment fund)
Or Aggregate Revenue Range:
☐ $0 / Decline
☐ $1 - $1,000,000
☐ $1,000,001 - $5,000,000
☐ $5,000,001 - $25,000,000
☐ $25,000,001 - $100,000,000
☐ Over $100,000,000

Item 6 — Federal Exemption Claimed
☐ Rule 504
☐ Rule 506(b)
☐ Rule 506(c) (general solicitation permitted; all purchasers must be accredited investors, with verification of accredited status)
☐ Section 4(a)(5)
☐ Investment Company Act § 3(c)

Item 7 — Type of Filing
☐ New Notice — Date of First Sale: [__/__/____]
☐ Amendment

Item 8 — Duration of Offering
☐ Offering expected to last more than one year

Item 9 — Type of Security
☐ Equity
☐ Debt
☐ Option, warrant, or other right to acquire
☐ Security to be acquired upon exercise
☐ Pooled investment fund interests
☐ Tenant-in-common
☐ Mineral property
☐ Other: [____________]

Item 10 — Business Combination Transaction
Yes ☐ / No ☐

Item 11 — Minimum Investment
$[____________]

Item 12 — Sales Compensation
List each person receiving sales compensation (broker, finder, placement agent):

• Name: [________________________________]
• CRD Number: [____________]
• Broker-Dealer: [____________]
• States of registration: [____________]

Item 13 — Offering and Sales Amounts

• Total offering amount: $[____________]
• Total amount sold to date: $[____________]
• Total remaining to be sold: $[____________]

Item 14 — Investors

• Number of accredited investors who already invested: [____]
• Total number of non-accredited investors (must be 0 for Rule 506(c)): [____]
• Total number of investors to date: [____]

Item 15 — Sales Commissions and Finders' Fees

• Sales commissions: $[____________]
• Finders' fees: $[____________]

Item 16 — Use of Proceeds
Amount used or proposed to be used for payments to executive officers, directors, or promoters: $[____________]

A.3 Signature

Form D is electronically signed by an officer, director, promoter, or other authorized person. Under Rule 302 of Regulation S-T, typed signatures constitute legal signatures. A manually signed authentication document must be retained for five years.

SECTION B — NEW YORK STATE MARTIN ACT NOTICE FILING (GBL § 359-e)

B.1 Filing Method — NASAA Electronic Filing Depository

Effective February 2, 2021, all NY Form D notice filings for Rule 506 offerings must be made through the NASAA Electronic Filing Depository (EFD) at https://www.efdnasaa.org. The old paper Form 99 is retired and is no longer accepted.

B.2 When to File

(a) Initial Filing: Within 15 days of first sale of securities to a New York resident, in accordance with N.Y. GBL § 359-e and 13 NYCRR Part 10.
(b) Amendments: Within 15 days of any material change, consistent with SEC Rule 503(a) amendment triggers.
(c) Annual Renewal: The filing must be renewed each year that the offering continues.
(d) Termination Notice: A final amendment must be filed within 30 days of termination of the offering.

B.3 Filing Fee

The NY filing fee is $300 for the initial notice filing under GBL § 359-e; renewal fees apply for subsequent years. All fees are paid electronically through EFD via ACH or credit card.

B.4 Information Required for NY Notice Filing

In addition to the federal Form D information, EFD will prompt for:

• Identification of states where offers/sales are made, including New York
• Confirmation of total amount sold to NY residents: $[____________]
• Confirmation of number of NY investors: [____]
• Anticipated use of proceeds in NY: [________________________________]

B.5 Filing Agent and Address of NYAG

The filing is directed to the:

New York State Department of Law
Office of the Attorney General
Investor Protection Bureau
28 Liberty Street
New York, NY 10005
(212) 416-8200

B.6 Consent to Service of Process

As part of the § 359-e filing, the issuer consents to service of process on the NY Secretary of State or NY Attorney General, consistent with GBL § 359-e(9).

B.7 Anti-Fraud Coverage

NOTE: NSMIA does NOT preempt the Martin Act's anti-fraud provisions. An issuer may comply with Rule 506 federal requirements and the § 359-e notice filing, and STILL face Martin Act enforcement by the NYAG if fraudulent practices are alleged. Unlike federal securities fraud under § 10(b), the NYAG need NOT prove scienter in a civil Martin Act action, and private investors have no private right of action under the Martin Act (CPC Int'l v. McKesson Corp., 70 N.Y.2d 268 (1987)).

SECTION C — CHECKLIST: NEW YORK REAL ESTATE SYNDICATION (§ 352-E)

☐ Does the offering involve participation interests or investments in real estate, mortgages, or leases?

If YES, then in ADDITION to Rule 506 / Form D, the issuer must comply with N.Y. GBL § 352-e, which may require:

☐ Filing of an Offering Plan (CPS-1 or CPS-7) with the NYAG Real Estate Finance Bureau;
☐ Review and processing by the Real Estate Finance Bureau prior to commencement of sales;
☐ Ongoing reporting and amendment obligations;
☐ Payment of filing fees based on total offering amount.

NOTE: NSMIA does NOT preempt § 352-e real estate syndication requirements. Federal Rule 506 exemption does NOT eliminate the need for a § 352-e filing where the offering targets NY investors.

SECTION D — COMPLIANCE REPRESENTATIONS

The Issuer represents and warrants to the Commission and the New York State Department of Law that:

D.1 Federal Compliance

(a) The Issuer is offering and selling securities pursuant to Rule [504 / 506(b) / 506(c)] of Regulation D;
(b) The Issuer is NOT subject to bad-actor disqualification under SEC Rule 506(d), having conducted a factual inquiry of each covered person;
(c) All information in Form D is true, complete, and not misleading in any material respect;
(d) The Issuer will file amendments as required by Rule 503(a)(3);
(e) For Rule 506(c) offerings, the Issuer has taken reasonable steps to verify accredited investor status consistent with SEC interpretive guidance.

D.2 New York Compliance

(a) The Issuer is making concurrent filings on EFD satisfying the notice requirements of N.Y. GBL § 359-e;
(b) The Issuer acknowledges that § 359-e filing is MANDATORY for Rule 506 offerings "within or from" New York, per NYAG December 2020 rule amendments;
(c) The Issuer has paid the $300 state filing fee (plus any applicable renewal fees);
(d) The Issuer will file amendments and renewals as required;
(e) The Issuer is NOT subject to disqualification under N.Y. GBL § 352-c;
(f) If the offering involves real estate participation interests, the Issuer has separately complied with § 352-e and any required Real Estate Finance Bureau filings;
(g) The Issuer consents to service of process on the NY Secretary of State or NY Attorney General as provided in § 359-e(9);
(h) The Issuer has not engaged in any fraudulent practices within the meaning of N.Y. GBL §§ 352, 352-c, including material misrepresentations or omissions.

D.3 Ongoing Obligations

The Issuer shall maintain records of all NY investors, subscription agreements, accredited investor verification materials, and sales compensation payments for not less than five years from the termination of the offering, consistent with 13 NYCRR Part 10 and SEC record-retention guidance.

SECTION E — NEW YORK ENFORCEMENT RISK AND LIABILITY

E.1 Martin Act Enforcement

The NY Attorney General may bring civil or criminal enforcement actions under GBL §§ 352, 352-c, and 353 for:

(a) Fraudulent practices in securities offerings (broadly defined, without requirement of scienter in civil actions);
(b) False or misleading statements in connection with securities offerings;
(c) Failure to register as a dealer under § 359-e;
(d) Failure to file required notices.

Civil remedies include injunctions, disgorgement, restitution to investors, and civil penalties. Criminal remedies include misdemeanor and felony charges under § 352-c(5) and § 352-c(6).

E.2 No Private Right of Action Under the Martin Act

Private investors cannot sue directly under the Martin Act (CPC Int'l v. McKesson Corp., 70 N.Y.2d 268 (1987); Assured Guar. (UK) Ltd. v. J.P. Morgan Inv. Mgmt. Inc., 18 N.Y.3d 341 (2011)). However, investors may sue under common-law fraud, breach of fiduciary duty, and federal securities laws (including Section 12 of the Securities Act for rescission and Rule 10b-5 for fraud).

E.3 Rescission and Private Remedies

Investors may have rescission rights under Section 12(a)(1) of the Securities Act (for violation of registration requirements) or 12(a)(2) (for material misstatements in offering materials). Such claims are subject to the one-year / three-year statute of limitations under § 13 of the Securities Act.

SECTION F — AUTHORIZATION AND EXECUTION

The undersigned, being duly authorized, certifies that the foregoing compilation is accurate and complete to the best of the undersigned's knowledge, and that the Issuer will timely file Form D on SEC EDGAR and the corresponding NY notice filing through EFD in accordance with this compilation.

ISSUER: [________________________________]

By: [________________________________]
Name: [________________________________]
Title: [Chief Executive Officer / Managing Member / General Partner]
Date: [__/__/____]

[Retain a manually signed authentication document for five years pursuant to SEC Rule 302 of Regulation S-T.]

OPTIONAL — BOARD / MANAGING MEMBER RESOLUTION

"RESOLVED, that the [Board of Directors / Managing Member / General Partner] of [Issuer Name] hereby authorizes and directs the officers of the Issuer to: (i) prepare and file Form D via SEC EDGAR within 15 days after the first sale of securities in the Offering; (ii) file the required state notice filing with the New York State Department of Law via the NASAA Electronic Filing Depository under N.Y. GBL § 359-e; (iii) pay all applicable federal and state filing fees; and (iv) take all other actions necessary to comply with Regulation D, the New York Martin Act, and related requirements."

SOURCES AND REFERENCES

• SEC Rule 503 and Form D (17 C.F.R. § 230.503): https://www.ecfr.gov/current/title-17/chapter-II/part-230
• SEC Form D on EDGAR: https://www.sec.gov/forms
• N.Y. General Business Law Article 23-A (Martin Act): https://www.nysenate.gov/legislation/laws/GBS/A23-A
• N.Y. General Business Law § 359-e: https://www.nysenate.gov/legislation/laws/GBS/359-E
• N.Y. General Business Law § 352-e (real estate syndications): https://www.nysenate.gov/legislation/laws/GBS/352-E
• NYAG Form D Guidance (Dec. 2020): https://ag.ny.gov/sites/default/files/regulatory-documents/part10-efd-formd-guidance.pdf
• NYAG Real Estate Finance Bureau (syndications): https://ag.ny.gov/resources/organizations/real-estate-regulation/real-estate-syndications
• NASAA Electronic Filing Depository: https://www.efdnasaa.org
• NY Department of Law, Investor Protection Bureau, 28 Liberty Street, New York, NY 10005
• CPC Int'l v. McKesson Corp., 70 N.Y.2d 268 (1987) — no Martin Act private right of action
• Assured Guar. (UK) Ltd. v. J.P. Morgan Inv. Mgmt. Inc., 18 N.Y.3d 341 (2011) — Martin Act does not preempt common law fraud
• NSMIA preservation of state notice filings: 15 U.S.C. § 77r(c)(1)