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Podcast: Cowen’s Co-President on Why SPACs Are Having a Moment

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Senate banking hearing grills Gensler on SEC regs, crypto, retail investing, and more

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Tuesday morning, the Senate Banking Committee held an oversight with the Securities Exchange Commission’s Chairman Gary Gensler.

A bipartisan group of senators questioned Gensler’s regulatory intentions on topics from cryptocurrency to retail investing.

Gensler began by speaking with board Chairman Sen. Sherrod Brown (D-OH), reporting his staff was researching the dangers of SPACS.

But as ranking member Sen. Pat Toomey (R- PA) took the talking stick, he went right into Payment for Order Flow (PFOF). 

“I worry you would favor the paternalistic push by some on the left to restrict investor freedom under the guise of protection while actually harming retail investors; such harm may result in the form of your opposition to Payment for Order Flow,” Toomey said.

“Banning Payment for Order Flow could very well have the effect of eliminating commission-free investing, which would be a great disservice to average investors.”

Toomey’s point comes from the idea that PFOF has enabled the best time ever to be a retail investor in America.

Through commission-free trading, no minimum balances, low or no-fee mutual funds ETFs, and user-friendly tech-like mobile apps, Toomey said investors could take part in the profits of Wall Street like never before.

Securities Exchange Commission’s Chairman Gary Gensler. | CSPAN

Payment for order flow

Gensler said his biggest worry about the equity market was competition and consolidation. While retail investing has taken off, the PFOF that enables it is ripe for conflict of interest: he said more than half of all PFOF trades go into one big pool. 

“Nearly half of the volume transacted is executed in “dark pools” or by wholesalers. I wonder whether this means that the consolidated tape — the so-called National Best Bid and Offer — fully reflects the full range of activity on exchanges,” Gensler said in testimony.

“As I have stated previously, I believe payment for order flow and exchange rebates may present a number of conflicts of interest.”

Retail investors have flocked to products like Robinhood, which offers fee-less and fractional investing in stocks, and securities, by selling their customer’s trades to partner market makers instead of “actually” posting them on the true securities markets.

The practice, pioneered by Bernie Madoff, printed $2.5 billion in 2020 for top trading firms like T.D. Ameritrade, Robinhood, and Charles Swab.

Feeless trading would disappear

The majority of fees collected come from options trades in small amounts of $.50 at a time. Without it, Toomey and others argue feeless trading would disappear overnight, and so would retail investing. 

In March, PFOF became a retail investor rallying cry when Robinhood shut down trading of Gamestop to cover a change in its own market maker deposit requirements.

To some, it looked like PFOF had enabled hedge funds to shut down orders that were losing them money by requiring Robinhood to foot the bill. But, ironically, PFOF is the only reason retail investors got into Gamestop in the first place. 

SenatorJack Reed (D-RI) went into PFOF, asking Gensler, “is the owner of these securities getting the best deal?”

“I think it may make our markets less efficient; retail traders may not be getting the best execution even if with a price improvement [feeless trading,]” Gensler said.

“If anyone on this Commission or this staff makes a trade on these platforms, it is 97 per cent chance that it does not go to an exchange; it goes to dark markets and secondary sale.”

As Gensler later went on to tell Senator Tim Scott (R-SC): the goal is to encourage more competition in the investing order market, not less. In addition, he hopes to find a way to shorten the settlement cycle, to leave traders less exposed. 

“Technology has driven down the cost of investing, but there’s still a cost left PFOF, even a couple of pennies out there is still a cost,” Gensler said.

“What I have raised with Jennifer Leete: we can we do better with more competition, rather than one reseller buying half the orders in America. I think we will try to drive it down to an even lower cost.”

Leete was appointed as Associate Director in Enforcement in the SEC in 2020, with 20 years of experience supervising cases against convicted trading order fraudsters at the SEC.

Cryptocurrency security regulation

As Toomey first brought up and jumped into during his question period, Gensler has recently made it clear he believed some cryptocurrency products were securities and needed to be regulated. The senator said he would like to see more public guidance. 

“So I’m frustrated by the lack of helpful SEC public guidance, explaining how you make this distinction: What makes some of them securities while others are not,” Toomey said. “Why not publicly announce what characteristics make the cryptocurrency?”

Toomey referred to stable coins, crypto-assets founded with the goal of stability to govern exchanges and offer liquidity as non-securities. However, if they don’t have an “expectation of profit on the investment,” they don’t beat the Howey test for securities, and in Toomey’s book, they are not securities. 

“As Thurgood Marshall wrote in the Reves opinion, in defining the scope of the market that it — Congress wished to regulate — Congress painted a broad brush, and it actually included about 35 different things inside the definition of a security,” Gensler said.

“Senator, this, this congress could change the laws, but the laws that we have right now have a very broad definition of a security, including a note, including an investment contract, and the like.”

Without naming names, the senator had referenced last week’s news that Coinbase’s USDC savings product had come under fire from the SEC for unregulated security fears.

Coinbase, through CEO Brian Armstrong, took up arms via Twitter posts and claimed they had no idea why their money market bank loan product was being considered a security.

The SEC has been known to work privately with firms that aim to create securities or investment products.

How to get away with security

Though believing that some stable coins are fair game, in general, Gensler thinks his hands are tied: most cryptocurrencies are investment products.

“I agree with you that, that some of these tokens have been deemed to be commodities, many of them are securities, and the Supreme Court has weighed in a number of times you noted, the Howey Test,” Gensler said. 

The Howie test comes from a Supreme Court decision in 1946 between a Florida orange grove owner selling speculative land and the SEC. The SCOTUS ruled that Howie was violating the rules set down in the 1933 Securities act, defining an ‘”investment contract” exists when there is the investment of money in a common enterprise with a reasonable expectation of profits to be derived from the efforts of others.”

Under this ruling, if it is advertised to make money on money, it is a security. 

The Senator and Gensler brought up the Reves test, another securities law case decided in 1990 concerning an Arkansas co-op farm “investment” shares. The SCOTUS found the promissory notes were securities and thus violated the ’33 act.

However, after 60 years of innovation that had created many financial products, the Reves case had to be more technical. Basically, to cover all the new products, the SCOTUS stated that anything marketed like SEC-compliant security or resembled one would have to be SEC-compliant: the average investor expected that the SEC would check investment products for fraud. 

Gensler said he believes the Senate and House can change the laws, but he interprets the 1933 Securities to act as a broad set of rules that he must follow regarding security regulation.

He said that many things have become classified as securities at times, including whiskey barrels bought with speculative intent in the 1960s— which is true.

“I’m not negative or minimalist about crypto; I am technology-neutral, Gensler said. “I think that this technology has been and can continue to be a catalyst for change, but technologies don’t last long if they stay outside of the regulatory framework.”

In other news

Aside from arguing over cryptocurrency and retail investing, Gensler presented two goals for the SEC. One, to release new cyber security “hygiene” guidelines in the coming months for firms to follow in the age of ransomware hacking attacks.

Gensler agreed with Sen Jon Tester (D – MT), who said cyber security was a dire challenge facing American businesses like climate change. 

“I couldn’t agree with you more. So there are two lists we’re looking at: how are you managing your cyber risk because it’s a real risk, how are you governing and managing it, and what are your costs for cyber hygiene,” Gensler said. “Secondly is incident reporting, if you have a breach, and you’re paying ransomware and the like.”

Two, as Gensler made clear in a Wall Street Jornal Op-Ed Tuesday morning: the U.S. intends to increase oversite into the financial activities of Chinese companies tenfold.

Under new laws passed by the Senate, Chinese companies must open their books to U.S. audit within a new three-year timeframe. Gensler said that if they refuse, the companies will be barred from trade and U.S. stock exchanges.  

“The Securities and Exchange Commission may need to prohibit trading in about 270 China-related companies by early 2024.

The reason can be traced to the Enron and WorldCom accounting scandals,” Gensler wrote in an Op-Ed. “Congress passed the Sarbanes-Oxley Act in 2002, mandating inspections of public companies’ auditors by the Public Company Accounting Oversight Board. More than 50 foreign jurisdictions allow the board to “audit the auditors.” Two do not: China and Hong Kong.”

Gensler said last year Congress passed the Holding Foreign Companies accountable act, which prohibits trading a foreign-issued stock if the US oversight board can’t inspect or audit the firm. It does not have to be a US-based firm that performs the audit, but someone has to audit every three years, or you’re out. 



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Source: https://www.lendacademy.com/senate-banking-hearing-grills-gensler-on-sec-regulation-crypto-retail-investing-and-more/

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SPACs: Singapore Exchange (SGX) Introduces Updated SPAC Listing Guidelines

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Singapore Exchange (SGX) recently revealed that they’ve created updated rules that will allow Special Purpose Acquisition Companies (SPACs) to list on its Mainboard “effective 3 September 2021.”

Tan Boon Gin, CEO of Singapore Exchange Regulation (SGX RegCo), noted that SGX’s SPAC framework should give firms an alternative capital fundraising option with more certainty on both price and execution.

Tan added that they want the SPAC process to “result in good target companies listed on SGX, providing investors with more choice and opportunities.” Tan also mentioned that “to achieve this, you can expect us to focus on the sponsors’ quality and track record.” Tan further noted that they have “introduced requirements that increase sponsors’ skin in the game and their alignment with shareholders’ interest.”

An SGX listing under the SPAC framework “must have” the following features:

  • Minimum market capitalisation “of S$150 million”
  • De-SPAC must take place “within 24 months of IPO with an extension of up to 12 months subject to fulfilment of prescribed conditions”
  • Moratorium on Sponsors’ shares from IPO to de-SPAC, “a 6-month moratorium after de-SPAC and for applicable resulting issuers, a further 6-month moratorium thereafter on 50% of shareholdings.”
  • Sponsors must subscribe to “at least 2.5% to 3.5% of the IPO shares/units/warrants depending on the market capitalisation of the SPAC”
  • De-SPAC can proceed “if more than 50% of independent directors approve the transaction and more than 50% of shareholders vote in support of the transaction”
  • Warrants issued to shareholders “will be detachable and maximum percentage dilution to shareholders arising from the conversion of warrants issued at IPO is capped at 50%”
  • All independent shareholders are “entitled to redemption rights”
  • Sponsor’s promote “limit of up to 20% of issued shares at IPO”

More than 80 respondents offered feedback, which is perhaps the highest response rate to an SGX consultation “in recent times,” the announcement revealed. It also noted that respondents included financial institutions, investment banks, private equity and venture capital funds, corporate finance firms, private investors, lawyers, auditors and stakeholder associations “whose views have been carefully considered in arriving at the framework.”

As confirmed in the announcement, SGX will continue to work cooperatively with the Securities Investors Association (Singapore) in order to “increase retail investors’ understanding of SPACs through collaborative efforts including the conduct of educational programs.”

SGX will “separately partner Singapore Institute of Directors to educate future directors of SPACs on the responsibilities and duties expected of them,” the update noted.

SGX’s responses to the feedback received and the updated rules may be accessed here.

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Source: https://www.crowdfundinsider.com/2021/09/179975-spacs-singapore-exchange-sgx-introduces-updated-spac-listing-guidelines/

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Lucid Motors kicks off market debut with EV factory expansion plans

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Lucid Group (formerly Lucid Motors) will be expanding its factory in Casa Grande, Arizona, by 2.7 million square feet, CEO Pete Rawlinson said Monday just hours after the company officially went public with a $4.5 billion injection of capital.

The company also said it has 11,000 paid reservations for its flagship luxury electric sedan, the Lucid Air.

Part of the expansion will be used to accommodate the manufacturing of Project Gravity, the mysterious title given to the automaker’s forthcoming luxury electric SUV, a Lucid spokesman told TechCrunch. Not much is known about Gravity at this point, other than that it’s scheduled to be available from 2023 and that it will use the same battery platform as the Air. Patent drawings submitted to the European Union Intellectual Property Office, first noticed by a member of the Lucid Forum, reveal little more than the renderings on Lucid’s website.

The company is also planning on bringing more of the component production in-house, including major pieces such as the body panel stampings, the spokesman added. These parts were being handled by an external supplier.

The Casa Grande City Council approved the plans to expand the nearly 1 million-square-foot space in March. The first phase of the factory, which cost around $700 million to construct, went up in a record 12 months after breaking ground. Lucid has said that it wants to expand production capacity from around 30,000 vehicles per year to up to 400,000.

Lucid has had a long, sometimes tenuous road to the public market. The company first set its sights on bringing an electric sedan to production as early as 2018, but it quickly hit funding challenges that pushed this timeline further and further back. Lucid received major funding in 2018 with a $1 billion investment from Saudi Arabia’s sovereign wealth fund, which continued to be its largest shareholder throughout Lucid’s merger with special purpose acquisition company Churchill Capital IV Corp.

That merger hit a bit of a hiccup last week when the company failed to garner a sufficient number of votes on a key proposal — likely due to the rise of retail traders and malfunctioning spam filters, executives said in an investor call.

Lucid, which will now operate under the name Lucid Group, is listed under the ticker symbol LCID.

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Source: https://techcrunch.com/2021/07/26/lucid-motors-kicks-off-market-debut-with-ev-factory-expansion-plans/

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ServiceMax promises accelerating growth as key to $1.4B SPAC deal

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ServiceMax, a company that builds software for the field-service industry, announced yesterday that it will go public via a special purpose acquisition company, or SPAC, in a deal valued at $1.4 billion. The transaction comes after ServiceMax was sold to GE for $915 million in 2016, before being spun out in late 2018. The company most recently raised $80 million from Salesforce Ventures, a key partner.

Broadly, ServiceMax’s business has a history of modest growth and cash consumption.

ServiceMax competes in the growing field-service industry primarily with ServiceNow, and interestingly enough given Salesforce Ventures’ recent investment, Salesforce Service Cloud. Other large enterprise vendors like Microsoft, SAP and Oracle also have similar products. The market looks at helping digitize traditional field service, but also touches on in-house service like IT and HR giving it a broader market in which to play.

GE originally bought the company as part of a growing industrial Internet of Things (IoT) strategy at the time, hoping to have a software service that could work hand in glove with the automated machine maintenance it was looking to implement. When that strategy failed to materialize, the company spun out ServiceMax and until now it remained part of Silver Lake Partners thanks to a deal that was finalized in 2019.

TechCrunch was curious why that was the case, so we dug into the company’s investor presentation for more hints about its financial performance. Broadly, ServiceMax’s business has a history of modest growth and cash consumption. It promises a big change to that storyline, though. Here’s how.

A look at the data

The company’s pitch to investors is that with new capital it can accelerate its growth rate and begin to generate free cash flow. To get there, the company will pursue organic (in-house) and inorganic (acquisition-based) growth. The company’s blank-check combination will provide what the company described as “$335 million of gross proceeds,” a hefty sum for the company compared to its most recent funding round.

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Source: https://techcrunch.com/2021/07/16/servicemax-promises-accelerating-growth-as-key-to-1-4b-spac-deal/

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