Does Failure to File a Form D Blow Your Exemption

Failure to file a Form D does not blow your exemption. So I want to get clear. That’s the position of the SEC. It’s not a prerequisite for the exemption. Now, the states disagree, some of them. Some states are notoriously hardcore, and they’ll write you a nasty letter. And I won’t say you, they’ll write the issuer, the syndicator, syndication LC, a nasty letter saying, you violated securities laws. You’ve blown your exemptions. We’re going to come after you, blah, blah, blah, blah. That’s all nonsense. What ends up happening is you end up paying a fine, and it’s just a lot of headache. But the SEC has made it very clear that failure to file a Form D does not blow your 506B exemption. Now, that doesn’t mean you shouldn’t file it, because the states can still ban you from raising capital in their state. I mean, there’s a lot of things that they can give you a cease and desist. The states have a lot of power, but it’s not going to blow your exemption. Surely the LPs have zero exposure on there.

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