Does satisfying “Reg D exemptions” eliminate the need for a PPM?

[Samuel S.]

Hey BP folks, I know there is a TON of info on here regarding syndications, and it has all been invaluable advice. That said, and as the title suggests, I am still trying to figure out if a PPM is needed if the funds being raised meets the Reg D exemptions? My situation is fairly simple: I am looking to raise funds from friends and family. I would not be raising over $1M, no public marketing, and under 35 non accredited investors. The funds would be coming from SDIRA’s and cash. As I understand it, traditional IRA’s cannot invest in this type of deal. The investors would all receive their proportionate equity into the deal, and I would receive compensation for managing the package. In this scenario, would an LLC with a detailed operating agreement suffice? Or does it depend on whether I would have sole investment decisions? As I’m sure is the case with many others in this space, I am trying to figure out the right way to do this properly, yet efficiently and cost effective as possible. Years ago when I just had a duplex, my pitch fell upon deaf ears. Now that I have built a little portfolio, I have friends and family that are very interested in getting involved. Any advice is massively appreciated!

[Dan Gauthier]

@Samuel S., your question - whether a PPM is necessary - is more accurately whether a PPM is advisable, because a PPM is at base a risk management tool to disclose every little detail of your offering (yes, your raise as described would be considered an offering). The fact that your offering could meet a Reg. D exemption does not exempt you from distributing a PPM (there is no such requirement in the first instance), it exempts the offering from SEC registration.

As lawyers are commonly risk adverse, most will advise you to distribute a PPM. I recommend you consult with a knowledgeable RE/securities attorney to go over the pros and cons for your offering. If you're not already working with an attorney to help you draft your issuer entity's operating agreement, I definitely recommend this also.

One last comment: in my experience, knowledgeable investors will expect to see a PPM and, if you don't have one, it is often a red flag.