Private Placement Memorandums: A Must-Have When Selling Securities

January 23, 2018 by Kevin S. Kim, Esq.

Companies often ask whether they should use a private placement memorandum (PPM) for securities transactions involving angel investors in a private placement. Generally, the answer is yes, but inevitably, companies are going to question whether a PPM is actually required.

The most obvious answer is that a PPM may be legally required in specific scenarios—particularly when selling securities to future investors who lack accreditation. In these instances, the specifics of the PPM typically rely on the disclosure requirements of the relevant securities regulations.

Even in circumstances where a PPM is not required by law, the oral or written statements of the issuer still fall under the purview of the federal and state anti-fraud mandates. During a securities transaction, the issuer cannot mislead the potential investor by making untrue or misleading statements and must provide full disclosure of all pertinent material facts.

In the event of a material misstatement, intentional or not, the investors could potentially bring a securities fraud claim against the issuer, as well as its officers and directors. Additionally, the Securities and Exchange Commission (SEC) can levy civil and criminal punishments.

A well-drafted PPM protects from securities fraud claims by establishing a record of communications between the issuer and investors.

A polished, professionally-formatted PPM presented to prospective clientele can also function as a useful sales tool. It subtly conveys to interested investors that the issuer is detail-oriented and efficient—highly sought after qualities in any industry.

After a company opts to use a PPM, the next step is constructing the actual content of the document. Depending on the entities involved in the transaction, securities law regulations meant to protect less sophisticated or financially secure parties may dictate the general framework of the PPM.

If at least one investor of the private offering is without accreditation, then the issuer will likely have to give detailed disclosures. This requirement usually increases the context of the PPM and the subsequent legal expenditures for doing so—which is why most offerings are limited solely to accredited investors.

In other contexts, there may be minimal formal mandatory disclosure mandates—such as when an offering extends to only a handful of accredited investors from the same state. In these situations, the PPM should include, at a minimum, the necessary details to allow the potential investor to make an informed choice as to whether to proceed with the purchase.

The actual contents of a PPM may vary depending on the type of offering, but below are some suggestions of contexts that should be described in the document.

Summary of Offering Terms – Typically provided in the form of a term sheet, describing the amount of funding required, use of funds, and term of the offering.

Cautionary Language – List of risk statements indicating the level of risk of offered securities, as well as risk disclosure about generally investing in private offerings.

Description of the Issuer – Information on organizational structure, history of the company, experience with private offerings, the reason for the offering.

Business Plan – Detailed description of the opportunity being presented, market plans, implementation plan, use of funds, distribution plan, company financials, and

Risk Factors – Includes language detailing the risks associated with the particular offering, foreseeable obstacles or roadblocks, risks to the issuer or associated companies/individuals, and other risks that are associated with the private offering.

Subscription Procedures – Detailed instructions on how to participate in the offering.

Conflicts of Interest – A summary of potential conflicts of interest to the issuer, affiliate partners, principals, or others associated with the offering.

Supplemental – Contains information such as financial projections, licenses or other organizational documents that may affect the investor’s desire to invest.

Although not always necessary, it is generally a good idea to use a PPM when offering securities to early investors. Though some investors may be accredited, companies must take into consideration all investors who make up the angel investor pool and draft the PPM accordingly. The costs and complexity associated with drafting the contents of the PPM will be driven by the type of investors the offering is attracting.