US watchdog mulls guidance to curb growth projections by listed SPAC companies

The move by the Securities and Exchange may further cool IPO frenzy through blank-cheque companies

The headquarters of the U.S. Securities and Exchange Commission (SEC) are seen in Washington, July 6, 2009. REUTERS/Jim Bourg    (UNITED STATES BUSINESS POLITICS)
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The US securities regulator is considering new guidance to rein in earnings growth projections made by listed blank-cheque companies, and clarify when they qualify for certain legal protections, according to sources.

The previously unreported measures being weighed by staff at the Securities and Exchange Commission (SEC) would escalate its crackdown on the deal frenzy in special purpose acquisition companies, or SPACs, which it worries is putting investors at risk.

The SPAC market had already started to lose steam after the SEC earlier this month suggested warrants issued by SPACs should be accounted for as liabilities instead of equity instruments, and the potential new guidance could compound that slowdown.

Wall Street's biggest gold rush of recent years, SPACs are listed shell companies that raise funds to acquire a private company and take it public, allowing targets to sidestep the more stringent regulatory checks of an initial public offering.

A record $100 billion has already been raised by US SPACs – also known as blank-cheque companies – so far this year, while the value of SPAC mergers and acquisitions hit a record $263bn, according to data from Dealogic.

In the past year, electric truck maker Nikola is among companies that have gone public through SPAC mergers.

The boom has drawn scrutiny from the SEC which has issued a number of warnings over SPAC marketing and investor communications.

Among the concerns it has flagged are SPAC earnings growth projections. SPAC sponsors say the projections are important for investors, especially when target companies are unprofitable start-ups, but investor advocates say they are frequently wildly optimistic or misleading.

In addition, the SEC is considering guidance aimed at clarifying when a key liability protection for such forward-looking statements applies to SPACs, the sources said.

The legal safe harbour created by the 1995 Private Securities Litigation Reform Act protects listed companies from shareholder litigation provided forward-looking statements are made in good faith, identified as such and couched in cautionary language.

While the safe harbour does not apply to IPOs, SPAC sponsors have generally operated on the basis that it does apply to SPAC deals, and have leaned on it heavily to issue growth projections.

But some attorneys say the SEC's rules on safe harbour are ambiguous, and the SEC's acting director of corporation finance, John Coates, earlier this month cast doubt on whether it applies to SPAC deals.

He said SPAC targets "have no more of a track record" than private companies doing IPOs, raising questions about the potential liability of sponsors and other parties involved in the transactions.

The SEC guidance would aim to clarify the conditions upon which safe harbour applies, the sources said. Those changes would likely prompt more due diligence and caution on the part of SPAC deal makers wary of incurring liability, according to the sources.

The SEC has not substantively amended the definition of “blank-cheque company” since the passage of the 1995 law, the agency has said.

The changes are being discussed by staff in the SEC's corporation finance division but it was unclear if the agency's leadership would back them, a source said.

While Mr Coates has said there are "significant" issues with some SPAC deals, he has also emphasised he is neither pro- nor anti-SPAC.

In addition to the recent accounting guidance and warnings over projections, marketing and investor communications, the SEC has opened an inquiry into how Wall Street banks are managing the deal risks.

The SPAC boom has been fuelled in part by easy monetary conditions as central banks have pumped cash into pandemic-hit economies, while the SPAC structure provides start-ups with an easier path to go public.

But the SEC scrutiny may be starting to tamp down the market. SPACs raised roughly $17bn during the first 20 days of January, but that fell to $2.5bn during the corresponding period in April, according to Dealogic.

RBC Capital Markets co-heads of SPAC coverage, Amir Emami and Michael Ventura, said valuations had been stretched during the SPAC boom and that, as with other frothy markets in the past, the sector was due for a "reset".

"And then when there's a reset, it's a hard reset. So we're going through that reset right now," said Mr Ventura.

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