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In this conversation, attorneys Sarah Florer and Roland Wiederaenders explore private securities and their role in the world of alternative assets. They define private securities as investments in alternative assets, not traditional publicly registered securities. They explain that private securities are subject to different regulations and disclosure requirements than public securities. The conversation highlights the benefits of private securities, such as the ability for small businesses to raise capital and the potential for investors to support mission-driven projects. They also emphasize the crucial role of financial education in empowering investors to make decisions about private investments and how this supports the democratization of capital. Roland and Sarah discuss the differences between public and private securities in this conversation. They explain that public securities are sold by larger companies that have filed documents with the SEC and have ongoing disclosure obligations. On the other hand, private securities are sold by companies that may not have a long history and have fewer disclosure requirements. The conversation also discusses the different types of business entities that issue private securities, such as limited liability companies (LLCs) and limited partnerships. It underscores the importance of disclosure in both public and private securities and the need for investors to understand the risks involved.
Takeaways
- Private securities are investments in alternative assets, not traditional public registered securities.
- Private securities are subject to different regulations and disclosure requirements than public securities.
- Private securities allow small businesses to raise capital and provide opportunities for investors to support mission-driven projects.
- Financial education and the democratization of capital are essential factors in private securities. Public securities are sold by larger companies that have filed documents with the SEC and have ongoing disclosure obligations.
- Private securities are sold by companies that may have a short history and have fewer disclosure requirements.
- Private securities are often structured as limited liability companies (LLCs) or partnerships.
- Disclosure is important in public and private securities, providing investors with the necessary information to make investment decisions.
- Investors need to understand the risks involved in investing in private securities.
Chapters
00:00 Introduction to Private Securities
08:19 Contrasting Private Securities with Public Securities
19:03 The Benefits of Investing in Private Securities
23:40 The Role of Disclosure Documents in Private Securities
35:29 Exploring the Risks of Private Securities and Alternative Assets
CREDITS:
Sponsored by
Real Advisers, Austin, Texas
Real Advisers, Austin, Texas
Special thanks to:
Please visit us at: AltInvestingMadeEasy.com
Please contact us: info@AltIvestingMadeEasy.com
Roland Wiederanders: Roland@grablemartin.com
Sarah Florer: sflorer@grablemartin.com
Disclaimer: “This production is for educational purposes only and is not intended as investment or legal advice.”
© 2024 AltInvestingMadeEasy LLC All rights reserved
Creators & Guests
Host
Roland Wiederaenders
Co-founder of the Alt Investing Made Easy podcast, investment advisor, and corporate securities attorney with expertise in private investment funds, corporate/securities issues, mergers and acquisitions, partnership structuring, and federal income tax matters. Roland is also a member of Grable Martin PLLC.
Host
What is Alt Investing Made Easy?
Join attorneys Sarah Florer and Roland Roland Wiederaenders as they navigate through the maze of market jargon and reveal the secrets of diversifying your portfolio. Whether you're a seasoned investor or taking your first step toward financial freedom, we empower you with the knowledge and insights you need to thrive in the dynamic landscape of alternative assets. Get ready to transform how you invest, inspiring a new way of thinking about your finances, and discover how to make your money work harder. Dive in with us, and let's make investing in alternative assets easy, giving you the confidence to navigate the financial landscape, one episode at a time.
[Roland] Today, we're talking about a topic that is essential for any discussion about alternative assets. Today, we're talking about private securities.
[Roland] Sarah, this is great. Being here on our episode number two,(...) thanks for being here. It's really exciting to have started, isn't it?
[Sarah] Yeah, for sure. And now, we're getting feedback, and we're figuring out that we need to dive into some of these topics so that it's as easy for our audience to understand and even speak about them, maybe as it is for us after all these years.(...)
[Sarah] Yeah, exactly. I was just thinking today that, you know, just using the term "private security," and I'll be saying that a lot. We'll be saying that a lot. But we really have to make sure that we're talking from first principles, that we define our terms, and that we've never left anybody behind so that our audience can know. And when we say that, we mean something really specific, and it has an important meaning.
[Sarah] Right.(...) So, why don't we get into more details, again, setting out in a simple framework, what is a private security, first by talking about what a public security is?
[Roland] You know, even backing up a little further, saying alternative assets. Again, we're talking about investments in private securities. Alternative assets are anything that is not a traditional public registered security.
(...)
And unless you're investing in real estate or oil and gas, if you invest in an alternative asset, you're going to be investing in a private security. And that's why this term is so important. But, sir, you're right. You know, we do have to contrast a private security with a public security or publicly registered security.
[Sarah] Right. And before we get into that, I just wanted to make a comment for our audience, and that is that, you know, don't worry if it's not making sense just yet. One reason we want to keep revisiting this topic of what a private security is, which then explains what an alternative investment is, is so that it's easy for people to understand. And also, we can talk about the many ways of what it means. But mostly, you know, bear with us. There may be some repetition, but it's in the interest of making sure everybody who's listening to us is able to understand these basic fundamental principles.
[Roland] You know, I noted this to you in a text the other day that one of the last public speaking engagements I did in front of a live audience.
(...)
It was in front of people and the title of the presentation was millions to billions. So that's the target of this audience. They're thinking about how they can turn their millions into billions. But when I ask everybody, do you know what the difference between a private security and a public security is? There was a room full of 40 people there and nobody really knew. And maybe, you know, they were reluctant to admit ignorance. And that's a thing for sure. But I really do think that this is something that maybe people don't really appreciate. And if they can,(...) you know, again, our goal here is wanting to help people invest in alternative assets because this is a good asset class for your portfolio.
(...)
Your diversification, you know, your asset allocation,(...) alternative assets are legitimate, but you should not invest in alternative assets unless you understand what they are. And to understand what they are, we have to be talking, you know, these defined terms.
[Sarah] Exactly. And I just wanted to add, you know, we were also talking about what a security is and what do we think people think a security is when we talk about it, right? Yeah. And how my first thought was, well, if I weren't a lawyer, maybe I'd think, oh, it's some kind of a life insurance product or something. And you had something else you thought it might be, you know, like a security services company.
[Roland] Yeah. My mom just bought a new security system for her home and people probably think I'm out there door to door selling security systems.
(...)
[Sarah] So this is why it's important. And, you know, people can have an internal complaint about why legal terms are what they are. But there's a history to why we use the words we use for certain things. And in the end, when it comes to security, we think we can explain it in a way that makes it easy to remember and understand. Yeah. So you want to maybe explain first what a security is? Yeah.
[Roland] Yeah. And as so many things, you know, people imagine lawyers citing cases and statutes and here to talk about what a security is, we actually do cite a Supreme Court case back from 1946.
(...)
And the fundamental definition of the case is Howie. And I think that we've got notes in all these episodes so we could drop really anything in there that we wanted to. And we could put a citation there so that you can click on it and read it yourself.
[Sarah] Yeah, the SEC versus Howie 1946, right, with some other details about the identification of the case. Yeah. We'll put that in the comments.(...)
[Roland] And so what the court was looking at was whether an investment contract was a security and they were just really looking at the definition of a security.(...) And I'll just read the language again or Sarah, maybe you could read it this time since I read it last time.
[Sarah] Let me get it. Is there an investment in a common enterprise with a reasonable expectation of profits to be derived solely from the entrepreneurial or managerial efforts of others?(...)
[Roland] I love definitions. You know, I mean, that's probably why we're attorneys. You know, we love language and it's the law with all of its clear language and defined terms. And I think it's interesting when you read that and step back and it kind of makes sense.(...)
[Sarah] Well, you have to remember that when something in the law is explained, people try to explain it with the most, or they should say the courts, try to explain it with the most general language that will cover as much as possible. Language that will cover as many possible scenarios. So that's why you don't hear terms like stock or things like, you know, membership interest for those who are already familiar with that. Because in the end, we need to be able to rely on the basic principles and ideas that are captured by what's written in a definition. So here again, just to repeat the language, whether an investment contract is a security turns on whether the following requirements are met. Was there an investment in a common enterprise with a reasonable expectation of profits to be derived solely from the entrepreneurial or managerial efforts of others?(...)
[Roland] The way that I always think about this and describe it to people is a separation between management and ownership.
{Sarah] What do you mean by that?
(...)
[Roland] Well,(...) that you can have an owner of a company, but they don't necessarily control what goes on in the day-to-day operations. Really, that's the way it should be in a lot of instances because man, I'd like to maybe invest in Microsoft, but I don't know anything about developing software or selling Xboxes. You know, I want them to do that. I just want to sit back and allow them to do what they know how to do best. And they're going to go off and grow the company and create revenue. And then the value of my shares of stock will grow. And maybe they have dividends and they pay me a distribution of cash on that share of stock. But really, I don't want to be involved in the management. And that's what we're really talking about here. People think of securities. They think about shares of stock and corporations.
(...)
But there are other types of business entities that sell different types of securities, but it's really all the same thing. It's this passive ownership interest in an economic enterprise where you're relying on the efforts of others to make the money.
[Sarah] Right, exactly. And that's why when you invest in a private security, you're actually it's the same as if you're investing in Microsoft in many respects, apart from the wider economic considerations and all these other things that are there. But when it comes to the legal structure, you're owning a share of something or you're owning a share of a mutual fund that owns those shares of that company. It becomes very complicated with larger companies, obviously. But in the end, the legal structures are common legal structures. And also, that's why the definition applies to an investment contract, whether it's a private security or public security.
(...)
[Sarah] Yeah. Do you want to talk some more about what public securities are? Because if people do like understand the word securities in the context of investments, then that's probably what they're thinking of, just like you mentioned.(...)
[Roland] Yeah, that's exactly right. They tune into the evening news and they're giving a report about the movement that day of the Dow Jones, or maybe they don't even talk about Dow Jones anymore. But the S&P 500 or the NASDAQ, you know, and that's what people think of as publicly registered securities. And this is a really important point. We're getting down to the crux of some of the most important information that you need to know about alternative assets. The general rule under the Securities Act of 1933 is that all securities must be registered.
[Sarah] So that would cover private if we didn't have any exceptions, right? That would cover everything.
[Roland] That's right. That's the general rule. And except for these exceptions that we're about to talk about, we would have to have a registered security no matter what, even on these small sub-million dollar deals that we work on that we still do all the documents we treated as if it were a much bigger deal disclosing all the same types of information. It's not the same volume of information because we typically represent companies that have been recently formed, but we really are disclosing all the same type of information that public companies are required to disclose. And I guess, you know, understanding that process of how you become a public company, this is something that is worthwhile talking about, I think.
[Sarah] And it's really important because what you know about in the media, what people around the world know about are the famous big American companies like Amazon and, you know, the tech stocks and all those things. But all of those are securities and they are public securities and they're subject to some of the registration requirements that Roland's about to explain to us. We're going through this exercise because we want to understand how to contrast how a private security is different.
[Roland] So another term I think a lot of people are familiar with, Sarah's IPO, right? Yeah. That's an acronym stands for Initial Public Offering. And we've seen those images of people standing up there at the bell, they're ringing the bell and it's the first day of trading of our stock. We just conducted our IPO and really all the IPO means is that the SEC has declared effective a registration statement that you filed with respect to the shares of stock. And it sounds kind of simplistic, you know, it's just like, okay, well, just send it in and we'll get the SEC to approve it. Well,(...) it sounds much, a lot of times you can describe things very simply, but once you start drilling down, you know, you understand how involved that process is.
[Roland] Well, really it's because the SEC and then the registration process, you're supposed to disclose so much information that's actually, it sounds like it's, you know, oversight, but what it really is, is making sure that the company is disclosing information that investors need to know about.(...) And then once they do that to a high degree as required, then they're free to trade publicly and have anybody who wants to come and invest.
[Roland] Yeah. And this is one thing that I didn't include, didn't write down here, but we could bring up now the standard for disclosure and a rule from the exchange act of 1934 rule 10 B5. The rule is, is no matter what, whether you have a registered security, a public security, like we're trying to describe here, or the private securities, the alternative assets, we'll get into talking about. The rule is that the people, the sponsors of the deal, the management have an obligation to disclose to the investors everything that is material about that investment, that is material to their investment decision. And also they can't fail to disclose anything where the failure is material. So, you know, one example I like to give there is, I help people with their financing for a commercial real estate development and we have to disclose it's a hundred unit apartment complex in Roundrock, Texas or whatever.
(...)
But the failure to disclose something that would be material is if I just fail to disclose that it has this huge environmental remediation that, oh, you know, don't worry about that. It's only going to cost us $10 million, but we're not going to tell you about that. I mean, I'm obligated to tell you, you know, all the things that I wouldn't necessarily want to tell you, but it's just that, you know, that, that standard of disclosure. And you have to kind of put yourself in the shoes of a reasonable investor.(...) And this is how we counsel our clients is think about your investor and this information that we're telling you, you should disclose to them. Is this information that they would want to know that they reasonably would want to know before making their investment decision.(...) And so that that disclosure of the material information that's built into all the securities laws.
(...)
And when we talk about going to register a public company with the SEC, the SEC is really focused on that. And they read what we submit to them and they say, well, you didn't disclose this, this and this because that's material information. So so that's that's really, you know, getting into the process a little bit.
[Sarah] And the reason it's important is because it protects everyone, right?
(...)
So it's it's there's a real good reason if you have the money to do an IPO, you're more free and who you can take investments from. Although you have a continuing obligation to continue to disclose a lot of information in accordance with the exchange act requirements. Right. So as we've discussed over time, like the reason IPOs are reserved to the larger companies is not because they're more special or more interesting.(...) And all of them started off as small companies at some point, most of them, many of them.(...) But you have to be able to afford it. And it's expensive to do an IPO and to then maintain your IPO, maintain your registration, really.
(...)
And, you know, this is actually why it's so important and actually a feature of American law that's really important for all of us who invest in the United States. And that is that we have the option to have a different process or exceptions for private securities..
(...)
So maybe you could tell us a bit more about that Roland and about how that works in contrast to public securities.
[Roland] Well, sure. Backing up just a little bit just so that people understand that that with the public securities, the registration process, it can take from six months to a year longer. It can run from five hundred thousand dollars to a million dollars in legal fees. And then that's just for the IPO. [Sarah: Just for the IPO]. And then going forward, you have continuing obligations. And this is one thing that's so important with understanding public securities is that some of these continuing disclosure obligations. This is the place where investors will be able to access the material information that they need to inform them themselves about an investment in the public company. And you've heard of all these reports. I'm sure most of our audiences have heard of these before. It's the 10 Q's, the 10 K's.(...) There's an 8K as well that must be filed on the occurrence of anything material that happens to the company. So if Mark Zuckerberg somehow becomes disabled, God forbid, I don't know anything about meta or whatever, but he just popped into my mind. The loss of his services would presumably be a material that could have a material of adverse effect to meta and Facebook. And so that would be something that they would be obligated to disclose to the public. And then when I'm going out and deciding whether to invest in Facebook,(...) I see that filing and I'm charged with knowledge of that information. And if I go ahead and invest in Facebook,(...) notwithstanding the fact that Mark Zuckerberg is disabled, well, I'm charged with that knowledge. And I can't come back later on and say, "Hey, I didn't know. I never would have invested." But just to these costs that are associated with having a public company, they're huge. And they can only be borne by companies that are large enough that are earning enough revenue where they can justify dedicating $250,000 a year to their legal budget. You have to have a big company.
[Sarah] Exactly. And that's, again, I don't know. I remember reading a statistic, but something about the small and medium, number of small and medium businesses in the United States.
(...)
Do you remember the number, the percentage of the economy that are the jobs in the country that are provided by such businesses? It's a really, really material chunk of our economy.(...) And it also gives people the independence to meet sort of the self-reliance and the independence that a lot of Americans like to have in their lives, right? Is to have your own small business or medium business and not necessarily be part of big corporate America, et cetera.
(...)
[Sarah ] Well, yeah, and that's a great segue. Sarah, going to this point that we brought up in our first episode about the democratization of capital and the thing that really inspires us is that no good idea should fail for lack of funding.(...) And so, thankfully, we do have legislators and Congress people that do their best, I think, at some level to try to enact laws to help our economy grow. And so one of the most important laws, and this is really the crux of what we're trying to talk, describe to you today, are private securities. We've devoted all of this conversation so far into getting to this point of really understanding. And Sarah brought it up before, but Sarah, tell us what we mean by a private security.
[Sarah] So a private security is contrasted with a public security, which is registered with the SEC,(...) is subject to a series of exceptions or one of a series of exceptions that are available depending on what kind of security it is, what kind of investment it is. And there's still disclosure requirements that go along with it, but they aren't, they don't have to be maintained in the same way that you have to maintain your disclosure once you are registered with the SEC.
(...)
And also the disclosure requirements are just, I guess, because the investments are usually smaller and less complicated than these gigantic corporates, then they're less onerous in a certain sense you can actually successfully disclose information about your project and your investment to your, with, with minimal, comparatively minimal effort in time. It would probably feel like a lot of time and money in contrast to the option of registering and becoming a public security. It actually very much supports the idea that small and medium investors can start from the ground up and start building projects.
(...)
[Roland] That's exactly right. And without these exemptions from the registration requirements, it would be completely prohibitive from small businesses to create financing, these financing mechanisms that we're talking about with private security. So again, it's another example where buried in our laws are certain American principles, aren't they? And one of those is this,(...) you know, if you're willing to work hard, then you're able to start on equal footing with everybody else. And that egalitarianism and that democratization of capital is something that is really important. And many, many very large and successful wealthy people and businesses today started off very small. And that wealth building journey is something that is really important to our economy, but also really important to individuals, lots of individuals from all different backgrounds.
(...)
And this is another thing that we'll talk about in due course, but something I've observed at schools now with my own children is that they're getting a much healthier, better financial education. We're all trying to make an effort to educate the next generations about financial health and well-being and financial security, which means we'll have younger and younger people who are interested in investing. And the natural place for them to start is, you know, once they establish a certain baseline with the public markets is in alternative assets.
[Roland] Yeah, for sure. And one thing that we'll bring up is the relationship between alternative assets and real estate. The good thing about real estate is it can provide you with shelter that we all need. And it's a place where a lot of our clients get their start in creating these investment opportunities as small time real estate investing.
[Sarah] And yeah, it'll be interesting. Well, going forward, we'll have further episodes about people who are able to take the investments they promote for in the alternative asset space and they make them very mission driven, whatever that mission is. But I can think of one client whose mission was to ensure that there's affordable housing available. And so investing in various kind of lower on the lower end of the market scale, but making those places safe and still making a profit, but maybe ensuring also that there's stability for people who are at risk for housing problems, et cetera. So those are all very mission driven problems that speak to fundamental needs in society that, you know, people care about.(...)
[Roland] Yeah. So I guess the takeaway from this idea is that, you know, we can have these smaller scale projects that are very specialized that maybe have these targets like what you're talking about. And they still can be funded because we have these exemptions from the registration rules and not every company has to be a public company. We can have these smaller private companies doing these smaller deals and they just talk with you or me and we can help them in a very affordable way, disclose everything that they need to sell their private securities and finance their business. And again, you know, this is the idea of some there are people out there that have good ideas, but they don't have the money. There are people out there that have money to invest, but they don't have the good ideas. So let's marry them, put them together. And it's really inspiring when we're able to tell people do these smaller deals because those smaller deals grow into larger deals. They just keep working on bigger and bigger things. And, you know, we've grown with clients over time.
[Roland] Yeah, it's true. So it's important. We should probably note this to our audience that when we say smaller deal or bigger deal, all of that is completely subjective. So for some people, a small deal may be ten thousand dollars per person investing up to ten people or for other people, it might be ten million dollars. It all depends on your perspective. And it's equally important to everyone because whether you manage to get up to savings of ten thousand dollars or savings of ten million dollars, you know, that that money is important to you. And as an investor, as a promoter of investments,(...) you know, money is important and it's important to try and keep that safe and make it grow. So, again, when we talk about small, I think we mean in comparison to the what what what was the most recent billion, multi billion dollar valuation for the, you know, a public IPO. You know, if you're if you're working in that space, which there are private companies that probably approach those kinds of numbers,(...) then it's a totally different scenario that you're talking about. And perhaps one day we could have a talk about what the large end of the private securities market looks like. That could be fun.
[Roland] For sure. You know, we've seen some of those big deals. Right.
[Sarah] And there's a there's a huge amount of private wealth, I think, that's kept in the form of private securities. And you may not even know it, that a brand you're consuming is actually a privately held security. You normally I think we assume that anything large and household recognizable is is going to have a public listing in some part of the world, at least. It's not always so.I know Mars, right?
[Sarah] Mars is a famous one.
[Roland] Yeah. So, well, just maybe to recap, the public companies are typically the larger companies and they've gone through this process where they've filed documents with the SEC and the SEC is in some sense, given them a stamp of approval. But they have these continuing disclosure obligations so that going forward, they have to submit quarterly financial statements, annual financial statements. These include a discussion of the management's analysis of the business. So you can really read these and find out more about how management is thinking about the business. Yeah. And then also these periodical reports that the 8K's, so anything material, material that's unexpected that happens, the company has to file those reports. Right. And they're spending tons of money and legal fees doing that every year. So those are the big companies that we're talking about, the public companies.
(...)
[Roland] But the key part, let's still go back to this, which is what we said earlier, is that these are public securities that you're buying in these companies.(...) Private securities, they're still securities that you're buying if you're investing in alternative assets and most of them are structured as securities. But now let's talk a little bit more about what we mean by a security in the context of a private security. There are securities that are sold by the same type of company that sells the public securities.(...) You can have a corporation and it can either sell a public security, go through that process with the SEC, or the company can come to us, Sarah and Roland say, hey, we need to raise a million dollars and we want to go out. We've got these investors. They've already committed to the concept.(...) And just as soon as we can get the paperwork ready, they're ready to write the checks to us for, you know, we've got four people and each of them are going to give us $250,000.(...)
[Sarah] We've talked about how we know about corporations. And I think typically a public security would be structured as a corporation for a number of reasons with some exceptions. But then in the private security space, we get a lot of the corporate entities, let's call them business entities or enterprises that are structured in a way that's familiar to many, many people. But we know them as, you know, limited liability companies and limited partnerships.(...) Do you want to explain a little bit about how those are different and maybe why?
(...)
[Roland] Yeah. A limited liability company is probably the thing that needs the most explanation. A limited partnership. Most people understand the idea about a partnership and limited just means that the limited partners are the investors and there's a general partner that's the manager and the general partner has unlimited liability and the limited partners have the limited liability. Exactly in the same sense as members of a limited liability company have that limited liability and it's the managers more.(...) But we do work predominantly with LLCs and LLCs sort of marry the best of both worlds between a corporation and a limited partnership.(...) And really, you can think about an LLC as a corporation that's taxed as a partnership. But don't get it confused with an S-Corp because that's something different.
(...)
[Sarah] That's why you need tax advisors. Well, yeah, exactly. And we're not even really tax advisors, but we can speak intelligibly about this issue at least and kind of be able to speak to what investors are interested in investing and what their expectations are. But it is important to understand that you may not be buying a share of stock and an alternative asset. It more than likely will be either a limited partnership interest or a membership interest in an LLC.
(...)
[Sarah] And I think to do that, you need to understand also that some of the formalities are different. Like in the old days, you actually had stock certificates, right? Or even bond certificates.(...) And while largely the world has moved away from that and everything is done digitally and it's non-certificated, et cetera, in our minds, I think we just are able to sort of conceptualize a piece of paper that's equivalent of a piece of property, which is what you own when you own a stock. A membership interest is rarely certificated, although I suppose it could be,(...) but it still doesn't mean that you don't have an ownership interest and that also the important part also being that you have the protections of the limited liability company.
(...)
Limited liability. That's why it's called what it's called for those investors who are not participating in management.
[Roland] If you don't understand that, it really just gets back to the division between ownership and control and very typically the owners, unless they're engaged in control over the management, they'll never be held liable for more than the amount of their investment. But the management, if they go out and do something fraudulent, you know, or commit securities fraud or any other kind of fraud, they could be held liable personally and they could be held liable in the sense that they would have to maybe sell assets in order to pay off a judgment against people that were defrauded by the corporation that they're managing. But just remember, if you're really only a purely passive investor, a passive investor in private securities or even public securities, you should never be held liable for obligations of the entity that you've invested in unless you've somehow taken part in management, which does happen from time to time. Some of our activist investors, you know.
[Sarah] Right.(...) And also I think it's important what it means when basically you could lose the money you invested.
(...)
[Roland] Yeah, you can lose the money that you invested for sure. That's the thing. But they can't come after you and say, well, we're taking the hundred dollars that you bought to buy that one share of Apple, whatever it costs now.(...) And you have to sell your house because you owe an additional $10,000.
[Sarah] Exactly. Exactly. So that's what we mean when we talk about really the limitation, the limited liability of an investor, right? Is that, yeah, you might lose your money, but it's not going to be worse than that. Yeah. Which is maybe when you've lost your money, not such a consolation. But at the same time, there's not really an alternative to how you can structure that because nobody can make conclusive promises about the future. And that's really what disclosure is for, isn't it? So that, you know, the project is you're told as much about it and what could go wrong.(...) And then if you choose to put your money there, then you've been informed of potential consequences, right? So it's really an interesting area when you start digging into it more deeply.
(...)
[Roland] Yeah. And then the other thing too, that people should remember is that the information that you think about being having available for a public company, you know, while that is all mandated by the rules under the securities laws and the disclosure requirements under the Securities Act, the Exchange Act of 1934.
(...)
You know, that's a set of laws that tell these companies what they're required to disclose. But with the companies that we're talking about with investments in alternative assets and private securities, those disclosure obligations are greatly reduced in the sense that there aren't necessarily any disclosure requirements on the manager other than to continue to disclose the information that's necessary for the investment decision.
(...)
But because of restricted liquidity, you know, you may be in for a much longer ride and we'll talk about this more, but just think about the disclosure that you're going to get from the company will be defined more by agreement and all the agreements that we draft typically include provisions that say that the company will deliver to you quarterly financial statements. Maybe they're not audited annually, they'll deliver the annual financial statements to you.(...) If they call me up and say, "Hey, you know, we just lost the services of one of our management team," I would tell them, "Well, you should go out to all your investors, even though they've already invested and you've told them that they're not going to be getting their money back for a really long time. You still need to inform them about what's going on with the company. So let's do an addendum to the PPM and we'll explain what some of these terms mean, but an addendum, a supplement to the disclosure that you've already provided and tell them what material things are going on that they should just at least be informed about.
(...)
[Sarah] And that's why we keep talking about disclosure, right? But from both perspectives, whether you're promoting a deal or whether you're investing in a deal, this document, which is known as the PPM or the Private Placement Memorandum or the Confidential Memorandum, different things. In fact, it's your key document that references other more detailed documents that you actually sign up to, such as a company agreement or a membership agreement, etc., right? A partnership agreement. But in the end, the business information that you need to know is in that memorandum and it's to both sides if you want to set them as sides against each other, because really both are ideal as a win-win for the promoters and the investors. But if there were a time when there was a conflict, then you have this key document that sets out, "Well, I told you this," or "I didn't tell you this." "Oh, okay." So it's really to both sides, both promoters and investors benefit to focus and require as much as possible in that initial Private Placement Memorandum and then obviously even going forward when things change.
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[Roland] It's important to note that there may not be a ton there because we just formed a lot of these clients that we work with. They just formed the entity a month ago. So the entity hasn't done anything except maybe open up a bank account and applied for financing. So there's very little, honestly, historical information. There may be practically nothing to disclose. But in this disclosure document that Sarah mentioned, the PPM or Offering Memorandum, that's where the people that put these alternative asset deals together to sell them as an investment opportunity. It's their, for lack of a better term, it's for sure the disclosure document where they're satisfying this obligation to disclose all the material information about the investment, but it's also a sales document.
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And so they're going to include in that document things like target returns and projections.
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[Sarah] Details of the management. Because in a private investing space, your reputation is really important.(...) You don't have the brand to hide behind or to use because typically companies are not so old. And so then your reputation and your individual area of specialty, which might lead you to promote a private investment would be really important. And that I think is meaningful to people also. Roland,(...) in the end,(...) there's a saying about getting behind the right horse.(...) You need to know something about the horse. Oh, yeah, for sure. And the jockey too.
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[Sarah] And that.
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[Roland] Yeah. And so, you know, this disclosure is so important and you touched on something there that the management is key.(...) And that's one thing that we as attorneys, you know, I don't want to pretend to be anything that I'm not. But after we get to working with some of these clients, we really get to know them as people.(...) And I guess that's why I like what it is we do because I think that we help these people that are tremendously creative, hardworking, really looking to create value. You know, wanting to create this scenario where they accept this investment in and they're going to go off and do something with it. And everybody goes away making a ton of money and everybody's happy at the end.
[Sarah] I mean, so it's a win-win. Yeah.
[Roland] And I think what our discussion today is really uncovered is what our next topic should be. Sarah, tell us what our next topic is going to be about.
[Sarah] Well, we talked about the investments in private securities being different from public securities, like Roland mentioned. And one area is about the risks. And we I think next time we'll talk more about the risks that come from having a different level of information available and some of the other risks that are inherent in private securities related to private securities and alternative assets. Because in the end, the more information you have about risks, then you can take a decision about what you do or how much risk you can tolerate.
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Roland] Thanks, everybody, for watching. Please remember to like this video if you like it and subscribe to our channel. And remember to take aim with your alternative investment strategies.
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So see you next time on Alts Investing Made Easy.