Special Purpose Vehicles and You: Navigating the Legalities Surrounding SPVs - The Journey of McCall
Updated: Aug 18, 2021
There are lots of benefits to using a special purpose vehicle or SPV to raise capital. However, you undermine these advantages if you don’t familiarize yourself with its legal aspects. Handling legal affairs may be intimidating, but it is a necessary aspect of any business venture. If you want to utilize the full potential of an SPV, you need to know how to navigate its legalities.
In this episode, McCall Harris talks about the legal processes involved with SPVs. She also explains from a legal standpoint why it is a favourable alternative to venture capital funds. In addition, McCall talks about the steps involved in creating and dissolving an SPV. Finally, she provides details behind the legal documents essential in these processes.
If you are a mission-driven founder who wants to try SPVs for your business, this episode is for you!
Here are three reasons why you should listen to the full episode:
Understand the step-by-step process of creating an SPV.
Learn the documents you need for an SPV.
Find out more about dissolving an SPV, whether in a successful or unsuccessful exit.
Visit Christina Sjahli’s for more insights on raising capital through equity crowdfunding on the Her CEO Journey podcast.
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[05:24] Being a Lawyer and Specializing in SPV
McCall’s desire to become a lawyer started when she was young.
She started as an operational associate. Over time, she handled more compliance and legal work.
She had never heard of special purpose vehicles in law school and learned all about them in Assure.
[07:43] What Is a Special Purpose Vehicle?
While it isn’t what SPV stands for, you can view it as a single purchase vehicle.
Its predecessor, the venture capital fund, is more complex because it involves various investments.
On the other hand, an SPV only deals with acquiring one asset.
From an investment vehicle standpoint, there is no difference between an LLC or an LP.
Tune in to the full episode to hear about why you may want to opt for an LLC or LP as your entity.
[12:09] The Four-Step Process of Creating an SPV
Your SPV is an entity that’s taking pooled capital to acquire a private asset. So first, you need to create and incorporate it.
Second, you have to obtain your entity’s tax ID number.
Third, you need to open a bank account under the name of the SPV.
Fourth, you'll need to prepare your legal documents. These include your operating or limited partnership agreement, depending on if your entity is an LLC or an LP.
“The meat and potatoes of an SPV come in with the fund documents of the SPV.”
[13:47] Benefits of SPVs
An SPV delivers an investment quicker and more efficiently than a VC fund.
With a VC fund, you’ll have to get through more red tape and internal hoops.
SPVs are structured to allow investors to quickly onboard and assess the merits of the asset.
[15:29] Why Does a Cleaner Cap Table Matter?
With an SPV, you only have a single investor in your cap table, which makes your life as a founder much easier down the road.
You can pool small amounts of investments together until you have a large enough sum.
You can also specify in your SPV’s operating agreement what happens when someone does not meet a capital call.
[17:50] Legal Documents You Need to Know
An operating agreement has all the terms that you and your investors agree with regarding the SPV.
A subscription agreement contains all the information you need from your investor.
“All of those types of disclosures you have to do to make an investment in private equity, all housed in the subscription agreement... So if ever you have to go back and look.. what did they say? What did they sign up for? What information did they give us? It's all housed there.”
A private placement memorandum or PPM is an optional document where you can place all disclosures.
[21:37] Drafting an Operating Agreement
Organizers want to deal with SPVs efficiently, cost-effectively, and as quickly as possible.
“I don't want to say the organizers who are running an SPV don't go through as much due diligence as someone who's running a VC... I just believe they're able to go through it quicker, because they don't have as many internal hoops they have to jump through.”
For this, it helps to start with a template operating agreement for every deal.
Other details can be housed in a separate document. For instance, stock prices can be detailed in a stock purchase agreement.
Having this minimalist approach saves money and time for both the organizer and the founder.
[26:01] The Terms Included in an Operating Agreement
The operating agreement deals with how the SPV is going to function.
There should be provisions for ownership interest, management fees, and distributions.
The agreement should also specify how investors can remove themselves from the SPV.
Amendment considerations are also fundamental parts of an operating agreement.
[28:03] Legal Aspects of Successful Business Exits
Whether exits happen through an M&A or an IPO, the SPV is notified.
SPVs can be flexible in terms of scheduling for capital calls, which is when investors need to send the money they promised.
“How are we going to be raising capital over time if I want to do capital calls? What's my carry gonna be? Is there going to be a management fee? What are the rights of the investors? What are the rights of me as the lead or the organizer of this deal? How am I protected? All of that is in the operating agreement.”
If there is no capital call, the bank account under your SPV’s name will be shut down.
In its place, you have to open a brokerage account because it can handle both stocks and cash.
When setting up a brokerage account, make sure to name it after the SPV fund. Don't forget to shut down the LLC or LP so you don't lose money to annual fees.
[34:42] Unsuccessful Business Exits
In a bankruptcy or ghosting situation, filing a claim is usually the next step.
However, consider whether or not the legal fees are worth the payout.
In a fire sale, it’s the same process as an M&A, only with a lot less money.
If you’re in a public market, it’s best to be truthful to investors if you are going under.
“A truthful answer, even if it's not popular or what they want to hear, is better than a non-answer.”
[38:44] Other Considerations
Assure is not part of the due diligence process.
An SPV can invest in foreign assets.
But from an operational standpoint, there may be hiccups with foreign investors.
Listen to the full episode to learn more about other SEC considerations about dealing with foreign investments!
McCall Harris is a lawyer and legal counsel at Assure. While at kindergarten, she already knew she wanted to be an attorney. However, she didn’t know about special purpose vehicles of SPVs even while in law school.
She specialized in compliance work and is specializing in custom SPVs. Ever since her stint in Assure, she experienced tremendous growth along with the company itself.
“[SPVs are] helpful when you have a group of investors you're excited about, you want to pull their capital together. So they're showing up as a single investor on your cap table, as opposed to four or five different people.”
“It's important if you have issues or your investors maybe have certain concerns, that you do address them at the beginning. Because once it's all said and done, like those are the rules we all agreed to play by.”
“From an organizer’s perspective, they want to do deals as fast as they can, efficiently as they can, and the most cost-effective as they can. And the way to do that is to make it so an SPV is ready to go essentially off the shelf.”
“I think it's important to know, you can still do an SPV and not have a template, I just think by doing that, you kind of undermine a lot of the draw and benefit of doing an SPV. Because now all of a sudden, you're sinking a lot of cost into legal fees, a lot of time and resources into negotiating those terms, when it's not necessary.”
“SPVs have that flexibility to say, hey, okay, I'm going to make a schedule. And here's when we're going to ask you to send money in.”
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