A Personal Placement Memorandum, or “PPM,” is a disclosure doc usually utilized in reference to a personal providing of securities. It comprises a compilation of details about the corporate issuing the securities, the phrases of the securities, and the dangers of investing in these securities. This text explains the authorized background underlying why a PPM is usually used and overviews what is usually included in a PPM.
Why Use a PPM?
Put merely, a PPM is used to tell potential traders about an providing of securities. The quantity of disclosures included in a disclosure doc like a PPM varies amongst personal firms which might be promoting securities with some firms together with a really detailed PPM to others selecting to not embrace any formal disclosure doc to their traders. How does a enterprise proprietor searching for to lift capital or an organization officer concerned in a securities providing know if the corporate, or “issuer,” must be distributing a PPM to potential traders? To reply this query, let’s first contemplate the authorized background underlying why PPMs have change into frequent apply for issuers.
The Securities Act of 1933 (the “Securities Act”) governs securities choices and requires that each one choices of securities be registered with the Securities and Trade Fee (“SEC”) or meet the necessities of a registration exemption. One of the crucial generally used registration exemptions is Part 4(a)(2) of the Securities Act, which exempts these choices which don’t contain a “public providing.” Choices that depend on Part 4(a)(2) are generally known as “personal placements” since they’re supposed to not contain a “public providing” (therefore the title Personal Placement Memorandum). Registering an providing with the SEC is an costly and prolonged course of and subsequently, personal issuers usually go to nice lengths to suit beneath the Part 4(a)(2) exemption.
There’s a number of steering from the SEC on what’s and isn’t thought of a personal providing of securities. Nonetheless, the spirit of this steering revolves round correct disclosures to potential traders, with the diploma of these disclosures being on a spectrum: much less subtle traders needing extra disclosures and extra subtle traders needing much less disclosures. Moreover, securities legal guidelines require these disclosures to be correct and never deceptive. Since a PPM formally memorializes what you’re telling potential traders about your organization and its providing, it’s a useful gizmo to (i) help an issuer in offering applicable info to potential traders and (ii) adjust to securities legal guidelines governing these disclosures.
What is usually included in a PPM?
Now that you’ve got an understanding of why it’s possible you’ll wish to use a PPM, let’s flip to what’s usually included in a PPM. For the overwhelming majority of personal choices, the securities legal guidelines solely present steering on what could also be disclosed in a PPM versus particular necessities. The vast majority of the SEC’s assets are, understandably, spent on reporting firms (suppose Fb and Apple), which do have disclosure necessities. On account of this focus, many of the SEC’s steering is said to those reporting firms. That being mentioned, personal providing practitioners have typically taken this steering and utilized it to personal choices.
Essentially the most generally included sections of a PPM are (i) an outline of the issuer, (ii) an outline of the phrases of the providing, (iii) sure threat components and disclosures, (iv) a subscription settlement and investor questionnaire, and (iv) a abstract of any materials agreements. Though these are the frequent parts of a PPM, each scenario differs.
Description of Enterprise. To persuade somebody to put money into your organization, it’s important to inform a very good story. To do that, it’s essential to precisely depict your enterprise, which is the explanation an outline of the enterprise is usually one of many first sections within the PPM. Nonetheless, from a authorized perspective, you have to be cautious in crafting this part in order that you don’t violate the prohibition towards the usage of fraud, materially false statements, omission of fabric info, or different acts to deceive one other individual with respect to the providing or promoting of securities. Committing securities fraud might lead to an antagonistic judgment, penalties, fines, and even a proper to rescind the acquisition of securities. To additional shield the issuer from claims of fraudulent gross sales, an issuer might also give potential traders entry to key company paperwork and supply materials to again up the data within the PPM.
The Providing. This part usually describes the phrases of the deal and customarily, a broad abstract of the primary paperwork concerned within the deal (e.g., company paperwork and stockholders agreements). Questions usually addressed on this part embrace: how a lot fairness is being provided, value of the shares, whether or not there a minimal buy quantity, what rights traders can have, and who’s eligible to take a position.
Sure Disclosures/Threat Components. Disclosures and threat components are particularly vital in addressing the anti-fraud provisions addressed above. This part of the PPM describes intimately the dangers related to your enterprise. Though your inclination could also be to restrict your threat disclosures as a result of you don’t want to “scare” off traders, it must be the part you spend nearly all of your time. As talked about above, securities legal guidelines (particularly with respect to reporting firms) information PPM disclosures. As an example the significance of drafting these threat components fastidiously, contemplate the case the place the SEC initiated an motion towards Mylan N.V. (“Mylan”), an SEC reporting firm. The SEC alleged Mylan violated Part 17(a) of the Securities Act as a result of Mylan disclosed in its SEC filings that there was threat that the Facilities for Medicare and Medicaid Companies (“CMS”) “could” take the place that its submissions to Medicaid have been incorrect when, the truth is, CMS had already advised Mylan that it was misclassifying one in every of its medicine leading to incorrect submissions. In different phrases, as a substitute of revealing that CMS had already disagreed with Mylan’s classification of one in every of its medicine, Mylan misleadingly used the phrase “could” and introduced it solely as a possible threat. This instance highlights how correct firms must be in disclosing its enterprise dangers to its traders. (Cite: See sec.gov/information/press-release/2019-194; https://www.sec.gov/litigation/complaints/2019/comp-pr2019-194.pdf)
Subscription Settlement and Investor Questionnaire. With the intention to buy securities, an investor usually wants to finish some type of a subscription settlement. This settlement governs the precise buy of securities (e.g., how a lot is being purchased, when should funds be transferred and the way, and so on.). Investor questionnaires are additionally generally included. Not solely does a questionnaire present the issuer with the investor’s contact info, it is usually helps the issuer adjust to the suitable personal placement exemptions from the SEC’s registration necessities. For instance, if an issuer is relying upon the Rule 506(b) secure harbor, usually the issuer will restrict the providing to accredited traders, and an investor questionnaire provides the issuer an inexpensive perception that the investor is an accredited investor.
Summaries of Materials Agreements. Lastly, PPMs additionally usually embrace summaries of the fabric deal paperwork. Usually, these summaries are extra in depth than the abstract of the providing part addressed above. Relying on whether or not the issuer is an organization, restricted legal responsibility firm, or different entity, sure governing paperwork might also be hooked up. For instance, an organization would possibly connect its certificates of incorporation which incorporates info on the category of shares provided, whereas a restricted legal responsibility firm would possibly connect its restricted legal responsibility firm settlement which units forth the rights and obligations of its members.
In abstract, a PPM is introduced to traders to tell traders in regards to the providing, mitigate sure dangers to the issuer related to the providing, and to truly promote the securities. Whereas many varieties of choices don’t require a PPM to be delivered, it’s useful to consider the assets spent getting ready securities disclosures like buying insurance coverage. The extra put into getting ready the disclosures, the extra these disclosures will shield towards threat of potential securities legal guidelines violations.
This text is for normal info solely. The knowledge introduced shouldn’t be construed to be formal authorized recommendation nor the formation of a lawyer/shopper relationship.