As we have previously advised in a memorandum dated September 12, 2008, the Securities and Exchange Commission (“SEC”) issued final rules on February 6, 2008 revising Regulation D. Most significantly, the new rules amend the content of Form D and require electronic filing of Form D via the Internet. The SEC implemented a transition period from September 15, 2008 through March 15, 2009, during which time issuers could choose to file Form D electronically or continue to file in paper format. In our previous memorandum, we advised you that we would file the “Temporary” version of Form D in paper format on your behalf until March 16, 2009, when electronic filing becomes mandatory.

As March 16, 2009 approaches, we have prepared this memorandum to provide guidance on how these new rules will affect you. You will need to make a decision as to whether you would like Seward & Kissel to assist you in complying with the new rules, or whether you will handle the filings yourself. If you would like our assistance, please contact us as soon as possible.

What will change on March 16, 2009?

Form D has been revised and the amendment requirements for Form D have been expanded. Please see our September 12, 2008 memorandum for details regarding these changes.

Form D and amendments thereto must be filed electronically via the Internet. Once filed, the data on your Form D will be publicly available on the SEC’s website.

Issuers engaged in continuous offerings (generally all of our private fund clients, referred to herein as “you”) will be required to amend their Form Ds annually.

How does this affect me if I have previously filed a Form D?

If you have previously filed Form D in paper format and your offering is continuous, you will be required to file annual amendments to your Form D via the Internet (in addition to any other required amendments, as further discussed in our September 12, 2008 memorandum).

If I previously filed a Form D, when am I required to file an annual amendment via the Internet?

Although we anticipate that the SEC may provide further guidance regarding the timing of the annual amendment filings, it is likely that these time frames will apply:

• If your most recent Form D (including any amendment thereto) was filed prior to March 16, 2008, you must file an amendment on or before March 16, 2009.
• If your most recent Form D (including any amendment thereto) was filed between March 16, 2008 and March 16, 2009, you must file an amendment on or before the anniversary date of that filing.

What if I have never filed a Form D?

All Form Ds filed on or after March 16, 2009 will be filed electronically via the Internet and annual amendments will be required to be filed on or before the anniversary of the filing.

Are there any other-than-annual amendments that I will be required to file?

Yes. You will be required to file amendments when there are changes to your responses to certain questions on Form D, similar to the amendment requirements that were in place prior to the implementation of the new rules. Please see our September 12, 2008 memorandum for further details.

What do I have to do in order to be able to file electronically?

In order to file an electronic Form D, you must have Electronic Data Gathering, Analysis, and Retrieval (“EDGAR”) codes from the SEC.

Current EDGAR filers may use their previously assigned EDGAR filing codes to log onto the new filing system.

If you are not a current EDGAR filer and you have not previously filed a Form D, you will need to obtain initial EDGAR filing codes.

If you have previously filed a Form D in paper format, you may have been issued certain EDGAR codes by the SEC. These codes must be converted into electronic filing codes.

What should I do if I would like Seward & Kissel to assist me with my filings?

If you would like us to assist you with the preparation and filing of the Form D, including obtaining EDGAR codes, please contact your Seward & Kissel paralegal or any of the persons listed below.

Susan Schneider at (212) 574-1389 or schneider@sewkis.com
Jeanmarie Reginato at (212) 574-1256 or reginato@sewkis.com (if you have questions specifically about your EDGAR codes)

What if I choose to file my own Form D?

If you would like to obtain your own EDGAR codes and make your own electronic filings, you should visit the following websites:

To obtain EDGAR codes: https://www.filermanagement.edgarfiling.sec.gov/

To file the electronic Form D: https://www.onlineforms.edgarfiling.sec.gov/

For more information from the SEC: http://www.sec.gov/info/smallbus/secg/formdguide.htm