Guide to Definitions of Terms Used in Form D
July 14, 2017
Terms used but not defined in Form D that are defined in Rule 405 or Rule 501 under the Securities Act of 1933, 17 C.F.R. § 230.405 or 230.501, have the meanings given to them in those rules. More specifically, as used in Form D, the following terms have the meanings explained below:
"Accredited investor" is defined in Rule 501(a), which is codified in Title 17 of the Code of Federal Regulations as § 230.501(a).
"Director" means any director of a corporation or any person performing similar functions with respect to any organization whether incorporated or unincorporated. Securities Act of 1933, Rule 405, 17 C.F.R. § 230.405.
"Executive officer" means the president, any vice president in charge of a principal business unit, division or function (such as sales, administration or finance), any other officer who performs a policy making function, or any other person who performs similar policy making functions for the issuer. Executive officers of subsidiaries may be deemed executive officers of the issuer if they perform such policy making functions for the issuer. Securities Act of 1933, Rule 501(f), 17 C.F.R. § 230.501(f).
"Investment Company Act Section 3(c)" is a provision of the Investment Company Act of 1940.
"Issuer" means issuer as defined in section 2(a)(4) of the Securities Act of 1933, which is set forth immediately below, except that in the case of a proceeding under the Federal Bankruptcy Code (11 U.S.C. 101 et seq.), the trustee or debtor in possession will be considered the issuer in an offering under a plan or reorganization, if the securities are to be issued under the plan. Rule 501(h) under the Securities Act of 1933, 17 C.F.R. § 230.501(h).
Section 2(a)(4) of the Securities Act of 1933 defines the term "issuer" as follows:
The term "issuer" means every person who issues or proposes to issue any security; except that with respect to certificates of deposit, voting-trust certificates, or collateral-trust certificates, or with respect to certificates of interest or shares in an unincorporated investment trust not having a board of directors (or persons performing similar functions) or of the fixed, restricted management, or unit type, the term "issuer" means the person or persons performing the acts and assuming the duties of depositor or manager pursuant to the provisions of the trust or other agreement or instrument under which such securities are issued; except that in the case of an unincorporated association which provides by its articles for limited liability of any or all of its members, or in the case of a trust, committee, or other legal entity, the trustees or members thereof shall not be individually liable as issuers of any security issued by the association, trust, committee, or other legal entity; except that with respect to equipment-trust certificates or like securities, the term "issuer" means the person by whom the equipment or property is or is to be used; and except that with respect to fractional undivided interests in oil, gas, or other mineral rights, the term "issuer" means the owner of any such right or of any interest in such right (whether whole or fractional) who creates fractional interests therein for the purpose of public offering. Securities Act of 1933, § 2(a)(4), 15 U.S.C. § 77B(a)(4).
(i) Any person who, acting alone or in conjunction with one or more other persons, directly or indirectly takes initiative in founding and organizing the business or enterprise of an issuer; or
(ii) Any person who, in connection with the founding and organizing of the business or enterprise of an issuer, directly or indirectly receives in consideration of services or property, or both services and property, 10 percent or more of any class of securities of the issuer or 10 percent or more of the proceeds from the sale of any class of such securities. However, a person who receives such securities or proceeds either solely as underwriting commissions or solely in consideration of property shall not be deemed a promoter within the meaning of this paragraph if such person does not otherwise take part in founding and organizing the enterprise. Securities Act of 1933, Rule 405, 17 C.F.R. § 230.405.
"Regulation D" is a set of SEC rules codified at Title 17 of the Code of Federal Regulations as §§ 230.501-.508.
"Rule 145", "Rule 405", "Rule 501", "Rule 501(a)", "Rule 504(b)(1) (not (i), (ii) or (iii))", "Rule 504(b)(1)(i)", "Rule 504(b)(1)(ii)", "Rule 504(b)(1)(iii)", and "Rule 506" are the SEC rules codified at Title 17 of the Code of Federal Regulations as §§ 230.145, 230.405, 230.501, 230.501(a), 230.504((b)(1) (not (i), (ii) or (iii)), 230.504(b)(1)(i), 230.504(b)(1)(ii), 230.504(b)(1)(iii), and 230.506, respectively.
"Securities Act Section 4(a)(5)" means the provision of the Securities Act of 1933 which states that the provisions of section 5 do not apply to —
* * *
(5) transactions involving offers or sales by an issuer solely to one or more accredited investors, if the aggregate offering price of an issue of securities offered in reliance on this paragraph does not exceed the amount allowed under section 3(b) (1) of this title, if there is no advertising or public solicitation in connection with the transaction by the issuer or anyone acting on the issuer's behalf, and if the issuer files such notice with the Commission as the Commission shall prescribe. Securities Act of 1933, § 4(a)(5), 15 U.S.C. § 77d(a)(5).