A SPAC-tacular Change in UK Listing Rules

Date
10 March 2021

HorsesForCoursesNeighNeighNeigh

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Great article!

I like the way you link SPACs in with London as a financial centre and explicitly explore this--I think this would be great analysis for an interview. I think this is likely to come up directly in interviews in the future so definitely a great read!

Sunak is more properly referred to as "Chancellor[of the Exchequer]" rather than finance minister--there is a minister with a very similar title (Financial Secretary to the Treasury) that is in a way almost the finance minister but Chancellor is a broader job than just finance. I know people do sometimes refer to Sunak as a finance minister but it always peeves me 🤣 I'm probably the only person why has ever cared about this 🤣

Super concise analysis and I will definitely be bookmarking!
 

Jaysen

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  • Feb 17, 2018
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    Great article!

    I like the way you link SPACs in with London as a financial centre and explicitly explore this--I think this would be great analysis for an interview. I think this is likely to come up directly in interviews in the future so definitely a great read!

    Sunak is more properly referred to as "Chancellor[of the Exchequer]" rather than finance minister--there is a minister with a very similar title (Financial Secretary to the Treasury) that is in a way almost the finance minister but Chancellor is a broader job than just finance. I know people do sometimes refer to Sunak as a finance minister but it always peeves me 🤣 I'm probably the only person why has ever cared about this 🤣

    Super concise analysis and I will definitely be bookmarking!
    Not sure how we missed this, thanks for flagging @HorsesForCoursesNeighNeighNeigh!
     

    Dheepa

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    Hi all! Welcome again to this week’s commercial discussion. For anyone that’s new to this topic here are two things to watch to get to grips with it (Thanks to @Raam for this). As always feel free to jump in with your own questions or thoughts!

    So I think there are three main things you should be able to discuss about SPACs:

    1. Why are SPACs growing in popularity?

    The traditional reason for SPACs being more advantageous for companies seeking to list is they bypass the issues involved with pricing shares in a traditional IPO listing. The book building process is where underwriters (investment banks) go on their infamous road shows to collate bids on the prices that institutional investors would be willing to pay for shares. However, investment banks tend to set prices slightly below the rate that gets calculated from those bids. This can be frustrating for the founders and other angel investors with stakes in the company because their returns from the IPO are often far less than the company’s actual worth. With SPACs, the price for the company is set through private negotiations offering more certainty.

    Certainty is especially important for companies seeking to list right now because of all the COVID induced volatility in the share market. Even without COVID, investor favourites like Uber performed terribly on its first day of trading due to trade war escalation on the day. So it’s easy to see why a whole host of companies (most notably Airbnb) delayed listings last year when there was really no telling how the market would perform on any given day. Another more current reason for the increased popularity is (and you’re probably tired of hearing about this one now), low interest rates. PE firms are looking for more and more investment opportunities that utilise their “dry powder” and there’s an increased appetite for the greater returns their investments offer.

    2. Are SPACs a good thing?

    There a couple of (in my opinion) good reasons for distrusting SPACs.

    The IPO process is a lengthy one for a reason. Due diligence allows investors to weed out any issues beforehand and disclosure requirements means that any issues that can’t be resolved are ones investors deem worth taking. SPACs on the other hand benefit from neither of these precautions leaving the possibility that investors are paying for revenues or assets that don’t actually exist. See the allegations that Nikola’s chairman exaggerated the capabilities of its leading product and Akazoo that flat out falsified its company’s accounts.

    Secondly, it’s also important to bear in mind that an investment in a SPAC is not even really an investment in a potentially lucrative company. Rather it is an investment in the capabilities of the leading individuals and PE firms behind the SPAC. It is blind faith placed in the hands of people with not much to lose even if the SPAC fails. Then there’s the issue of the ‘promote’ – the 20% stake that sponsors get in the target company, which leave investors 20% short of the actual share capital that their money should have given them. This is what has led to dissenters saying SPAC’s are just another clever way for executives to by pass accountability created by listing regulations and better line their own pockets.

    Thirdly, any value created for shareholders through the SPAC is also heavily subject to dilution inherent in the SPAC structure, either from the aforementioned promote or from the redemption of shares (i.e. sale of the shares back to the company) by some shareholders (note: these shareholders still hold on to their warrants i.e. option to purchase the share at a pre-determined price should the value go up). This is the flipside to the money back feature of SPACs that allow shareholders to leave with no losses if they disagree with the target being acquired. Remaining shareholders bear the cost of both of the redemption and the ‘promote’ especially if the SPAC goes on to perform poorly post-merger. (I had a lot of time today and came across this study that informed some of the things I mention here, it’s very technical but worth a read if math doesn’t stress you out) The high cost of an SPAC listing really begs the question of its worthwhile at all for shareholders. The recent changes in direct listing rules on the NYSE now allows for companies to raise fresh money even through direct listings. This seems to be a far less costly, and a more tried and tested way to list. (I think you’d get bonus points if you could discuss Coinbase’s recent choice for a direct listing here)

    3. Listing rules (and how does the SPAC boom affect law firms more broadly)

    The SPAC boom in the US only exists because its listing rules facilitate it. Here in the UK, trading of any listed company is suspended upon announcement of a merger (meaning investors lose the ability to dip out if they disagree with the choice of target company). There are also strict rules against disseminating forward looking financial information. Considering that most tech companies (the primary target of SPACs thus far) are valued so highly for their potential rather than historical performance, this seems to take all the benefit out of the better pricing that allegedly comes with an SPAC listing. As the original article already mentions, if the FCA does make changes to these requirements, there will be a flurry of advisory work for capital markets lawyers helping clients navigate these rules, in addition to the inevitable actual SPAC deal/listing work.

    I’m personally more intrigued by how SPAC’s are going to be structured to curtail some of the issues I discussed above on high costs and scepticism around the promote provisions. Bill Ackman alleges that his SPAC has the solution – the promote does not materialise until after the stock rises 20% and any dilution to ordinary shareholders from redemption will be capped at 6%. I’m interested to see if the market responds well to this and if not, will lawyers need to come up with better ways to structure the warrants and share rights arising out of these listings?
     
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    Anon08

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    It is fascinating to hear the recent discussion around SPACs, which are often portrayed as a new phenomenon. In fact, it's a pretty old one, with the last SPAC 'boom' occurring in early-mid 2008, before, naturally, the '08/09 crisis. Just bear this in mind if you plan to bring this up in applications/interviews!

    I think @Dheepa gives a really nice summary of some of the problems surrounding SPACs and their introduction in the British market. However, I'd like to share some of the upsides of SPACs - not just for investors but also for PE actors!

    First, I think SPACs are a great way to get retail investors in on PE. Quite simply, SPACs are an ingenious way for PE actors to raise capital to fund their M&A/restructuring. Previously, the only people to benefit from the lucrative business of PE were the financial providers - basically, the banks. However, SPACs allow retail investors to get in on the action. Yes, there are concerns about diluting, and so on; nevertheless, I think that a new investment opportunity shouldn't be sniffed at (at least, too hard)! With the rise of retail investing, it would be rather fun to have 'the ordinary Redditer' get involved with slightly more mainstream investment - although "Pershing Square Tontine Holdings, Ltd.-to-the-moon" doesn't quite have the same je ne sais quoi as Musk's "Gamestonk!!". Time will tell whether having shares in SPACs will become part of the ordinary individual's investment portfolio...however, I have a hunch that such investment will be here to stay.

    Second, SPACs are useful for more, shall we say, controversial or bombastic PE actors when it comes to attaining financing. Consider Bill Ackman. He is, undoubtedly, a very successful individual. However, he has his quirks and his eccentric personality. Let's not forget his rather gorgeous way of stating that his SPAC was looking for some juicy targets: 'we're in a unicorn mating dance, and we want to marry a very attractive unicorn on the other side that meets our characteristics'. In an age where trends are being bucked, and technology (and, bizarrely, memes - that's right, gotta go fast, boomer), are outstripping the vision and comprehension of the mainstays of Wall Street, there may come a time when PE actors want to attempt something a little too outside of the box. In those instances, they might struggle to attain funding via usual sources, like banks. However, with a SPAC, there is no need to go and lobby the suits in glass atriums - instead, pop a post on r/WallStreetBets and appeal to the masses. I'm being a little facetious and dramatic - but the sentiment remains true: exotic investments may turn the stomachs of traditional lenders, in which case, the sponsor may turn to the markets and rattle their can...

    Third and finally, SPACs subvert the traditional processes, like an IPO, for a reason - they are flawed. WeWork, Uber, and countless more wannabe-hip IPO businesses have touted themselves as something they are not. What then happens is, lo and behold, they list on the market, and their share price tanks, as investors realise they have been taken for a ride on the preceding roadshow (who would have guessed...). I really love the resurgence of SPACs as they explicitly highlight other flaws in the regulation of markets. In a way, these enterprises say with an admirable, brazen tone, 'if you don't like it - fix it!'. If one adopts this devil-may-care, slightly cynical perspective, one may be inclined to argue that when IPOs are so misleading and so dubious, one is better placed to trust a SPAC - I don't know about you, but I would trust Bill Ackman who says he just wants to make money, more than Uber, who keeps trying to claim, as was documented in its legal escapades, that it is a technology company that is creating some kind of interconnected web that links tens of thousands of people together (I am not particularly convinced...). [It is no secret that private fund managers, PE houses, and other related parties, do have very thickly-lined pockets. However, amongst other things, that is a testament to the profitability of the industry - this echoes my first point - let the retail investors have (even a small) slice!]

    Remember, SPACs are, for the most part (in the 2020/21 resurgence), just standard PE stuff with a different method of financing. So, a target company might sell some of their equity to a PE house/SPAC to raise capital (where other alternatives are now available, such as direct listings); however, this is not the only reason a target company might dance with SPACs (the benefit of onboarding expertise - or what I like to call, the Dragons' Den factor). Hence, when candidates analyse SPACs, I would recommend a focus on:
    1. What is the process of PE? How does it work traditionally, and why do financial actors participate in it?
    2. What aspect of the PE process do SPACs alter? How does it alter it? What are the pros and cons compared to the traditional method(s)?
    Right, that's probably horribly jumbled, but I hope that elucidates the other side of the coin!
     

    Jacob Miller

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    Really interesting points @Dheepa and @Neville Birdi!

    I think your second point - surrounding concerns about the accountability of the process - is probably the area of this discussion that I find the most fascinating.

    For me (and this may sound like I'm on a different planet - so do bear with me while I explain), I think most of these concerns actually arise because we are making a direct comparison between 'traditional floats' and SPACs. In my opinion, it actually makes sense to consider them as completely different things, mainly because I would tend to argue that the only real similarity they share is that they're both tradable on the open market. None of the key metrics that we'd use to judge a traditional IPO can be applied in exactly the same way, so we actually need to put them on an entirely different plane (parallel, perhaps) to traditional IPOs.

    Thinking in these terms instead, it becomes a lot easier to define a regulatory landscape for SPACs compared to shoe-horning them into the standard IPO regulatory landscape. This type of listing will absolutely need further regulation - like any novel development, it will need developed over time and it's simply an example of the pace of change in society and the economy outstripping the pace of legal development. On this note, it is worthwhile to remember that the UK Listing Authority, which publishes the Listing Rules, doesn't have to go through the parliamentary due process that a legislative change would have to, so it is comparatively easier to develop nuanced rules and regulations for SPACs in a much shorter time-frame to changing legislation. For example, the current three-year track record requirement for Premium listing on the LSE renders SPACs ineligible, yet we see talks of $1bn SPACs being listed on the London market. To me, this is simply cutting the nose off the London market to spite its face.

    One of the most heavily criticised elements of SPAC listing is, as you mention, Dheepa, that you're investing based on the name and reputation of investors as opposed to a proven track record of a company. I would tend to say, though, that this actually generates a kind of layer of protection in itself: it's much harder to build the sort of reputation required to launch a successful SPAC than it is to diddle some documents to make a company look like it's performing better than it is.

    One final point worth considering is that SPACs aren't worlds away from other types of share issuance already widely known about. Cash box placing is a more long-standing means of exploiting a loophole in the Companies Act (s.561 for anyone interested) surrounding share issuance. In the brief, there is a rule in UK company law which states that, if a company wants to issue new shares, its existing shareholders must first be offered to buy these shares on a pro rata basis to prevent their shareholding from being diluted. One of the very few exceptions to this is where the consideration for the new shares is in a non-cash form. This non cash form could be anything: for example, if the shares are to be issued at a value of £40 each cash, they could be issued for £40 each plus a Freddo and be caught by this exemption. In practice, the most common way of exploiting this loophole is by using a special purpose vehicle (SPV) which is wholly owned by the issuing company, and issuing preference shares in that SPV in exchange for cash. In the day-to-day, cash box placings aren't widely used as they carry connotations of exploiting shareholders/ manipulating the law, so generally get bad press. They do, however, work wonders for quickly raising a lot of money and, as such, we saw several at the beginning of the Pandemic (such as Aston Martin Lagonda Holdings Plc issue a £152m cash box placing in June last year to raise funds at shorter notice than traditional issue would have allowed). This article discusses a little more about the parallels. If we consider that argument, it could even be said that SPACs aren't particularly new at all, and are just a new way of doing an existing thing!

    There is a huge amount of food for thought in the SPAC issue, though - I think the proposed changes to the rules by the Hill Commission open up a raft of potential work, mainly across transactional and advisory departments, for London firms in the near future.
     

    Ali2020

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    Dec 11, 2019
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    Hi All,

    Firstly, thank you for creating this discussion surrounding the SPAC boom! Really interesting stuff and how it impacts so many businesses, from EV start-ups, celebrities (Jay-Z's involvement in the largest cannabis SPAC in Canada!) and changing the way law firms draft prospectuses for SPAC deals.

    I was wondering if anyone can help me understand how a law firm that is more insurance-focused would be impacted by the recent SPAC boom?

    Thanks!
     

    Oroma

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    Hi All,

    Firstly, thank you for creating this discussion surrounding the SPAC boom! Really interesting stuff and how it impacts so many businesses, from EV start-ups, celebrities (Jay-Z's involvement in the largest cannabis SPAC in Canada!) and changing the way law firms draft prospectuses for SPAC deals.

    I was wondering if anyone can help me understand how a law firm that is more insurance-focused would be impacted by the recent SPAC boom?

    Thanks!

    I may be wrong but I think the insurance sector has generally been impacted through a surge in d&o (directors and officers) liability policies. With this in mind, I found this very helpful in understanding where insurance lawyers come into play in the SPAC boom: https://woodruffsawyer.com/do-notebook/insurance-coverage-spacs-2021/

    Also think of professional indemnity.
     

    Ali2020

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    Dec 11, 2019
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    Dheepa

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    Hi All,

    Firstly, thank you for creating this discussion surrounding the SPAC boom! Really interesting stuff and how it impacts so many businesses, from EV start-ups, celebrities (Jay-Z's involvement in the largest cannabis SPAC in Canada!) and changing the way law firms draft prospectuses for SPAC deals.

    I was wondering if anyone can help me understand how a law firm that is more insurance-focused would be impacted by the recent SPAC boom?

    Thanks!

    If the listing rules on forward facing financial information is changed (I discuss this under point 3 of my post), then there could be a potential increase in liability for misleading information provided by directors or issuers which would lead to an increase in demand for coverage from insurance policies (This is what I think at least. I'm not at all an expert on insurance unfortunately 😅 )
     

    Jaysen

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  • Feb 17, 2018
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    Quite incredible news in the FT today - it only took about two and a half months for SPACs in 2021 to outperform the entirety of 2020. There have been 264 SPACs launched so far, raising $79.4bn globally. Following the Fed's comments earlier today, I think it's fair to expect similar figures over the next two and a half months.

    It's quite remarkable looking at the numbers around SPACs, M&A deals and PE buyouts - it's nearly impossible to tell that we've had one of the worst economic recessions since the 1920s.
    Was shocked by this too. Do you think this boom is going to come crashing down?
     

    Jacob Miller

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  • Feb 15, 2020
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    There's going to be a bearish reaction at some point that'll cause valuations to decline (because some are pretty crazy, especially for SPAC targets lacking profitability in the short term). But the prominence of ESG going forward will cushion this - to what extent is still to be determined.
    Yeah I agree completely. I think we're seeing replications of the dot-com bubble in SPACs and also crypto-asset valuations at the moment - only a matter of time before the bubble pops and only really the biggest names survive it. It will be very interesting to see whether the stock market is geared up for another bubble pop any better than it was in the past - I'm not holding my breath.
     
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