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Market Trends: De-SPAC Transactions

March 06, 2022

By: Jamie Payne, LEXIS PRACTICAL GUIDANCE

This article discusses recent market trends in de-SPAC transactions (acquisitions involving Special Purpose Acquisition Companies (SPACs)) in 2021, covering notable transactions, deal structure and process, and other key market trends.

SPACs and De-SPAC Transactions

A SPAC is a public shell company that raises funds through an initial public offering (IPO) and uses the proceeds to acquire a private company. This business combination is commonly referred to as a de-SPAC transaction. While a SPAC cannot know its target company at the time of its IPO, SPACs typically focus on a particular industry or geography in seeking targets for the business combination.

A de-SPAC transaction must be consummated within a designated time frame, usually between 18 and 24 months from the date of pricing the IPO. If the SPAC is unable to consummate a merger in the designated time frame, the SPAC is required to liquidate and return the funds raised in the IPO (being held in an interest-bearing trust account) to investors or seek approval from stockholders for an extension. Most de-SPAC mergers require additional financing, such as through forward purchase agreements with the sponsor, or through private investment in public equity (PIPE) transactions, wherein the SPAC issues new securities to institutional accredited investors contingent upon the closing of the initial business combination.

In 2021, SPAC IPOs and de-SPAC transactions reached record-breaking numbers. The number of SPAC IPOs increased from 248 in 2020 to 613 in 2021. The total SPAC IPO proceeds also increased from approximately $83 billion in 2020 to more than $160 billion in 2021.

There was a corresponding increase in the number of de-SPAC mergers after SPAC IPOs, although many existing SPACs have yet to identify target companies and complete a de-SPAC transaction. In 2021, 267 de-SPAC mergers were announced and 199 were closed. SPAC activity in 2021 was the highest it has ever been, but 2021 fourth-quarter indicators show that the SPAC market is trending towards a decrease in activity. 

The average size of de-SPAC transactions remained consistent between $2.2 billion and $2.8 billion in 2021 until a significant decline to $1.4 billion in the fourth quarter. The largest SPAC merger announced and closed in 2021, between Altimeter Growth Corp. and Grab Holdings Inc., was valued at $39.6 billion.

Many of the trends expected in de-SPAC transactions in 2022 will be related to both the high number of SPACs seeking acquisition targets in a competitive market and heightened regulatory scrutiny and oversight. At the end of 2021, 572 SPACs were in the market to complete a business combination, with an additional 270 SPAC IPOs still in registration. Although only one SPAC liquidated in 2021, as merger deadlines loom for SPACs that went public in 2020 and 2021, there may be an increase in liquidations if SPACs are unable to consummate a merger or obtain the required stockholder approval to extend the deadlines. While the acquisition opportunities become more competitive and the pressure to consummate de-SPAC mergers builds, the U.S. Securities and Exchange Commission (SEC) is warning of increased regulatory oversight. The number of shareholders exercising redemption rights in connection with merger approval votes is expected to continue increasing in response to stockholder uncertainty.

Recent Trends in De-SPAC Transactions

PIPE Financings

One key trend seen in de-SPAC transactions is the decreased use and size of PIPE financing in business combinations.

The number of de-SPAC mergers involving PIPE financing has steadily declined throughout 2021 from 91% in the first quarter to 75% in the fourth quarter. This is a decrease from the fourth quarter of 2020 when de-SPAC transactions with PIPE financing peaked at 94% of transactions.

The end of 2021 was marked with a decrease in total dollar value of pending de-SPAC transactions to $233.6 billion, the lowest it was during the year. This indicates a continued decline in equity value of SPAC mergers. As the equity value of SPAC mergers decreases, the role of PIPEs may also decrease.
PIPE investments help to both fund redemptions and finance the merger itself. The funds raised in the IPO are held in a trust account, and the terms of a SPAC require that before a de-SPAC transaction, the SPAC must offer its public stockholders the right to redeem their shares for the original purchase price, which funds are paid from the trust account. Due to this redemption right, there is uncertainty as to how many stockholders will redeem out (stockholders have the right to both vote to approve the merger while also redeeming their shares) and the resulting amount of cash available in the SPAC’s trust account at the closing of the de-SPAC transaction after redemptions are paid out. Obtaining PIPE financing helps to mitigate the risk that insufficient cash will be available for the de-SPAC transaction.

Earnouts

The use of earnouts in de-SPAC transactions continued in 2021. Nearly half of the de-SPAC transactions that closed in 2021 included earnouts as part of the merger consideration to target stockholders. In de-SPAC transactions, earnouts refer to the right of target company stockholders to receive additional equity if certain milestones are met, usually based on the combined company’s post-closing public stock price.

Of the de-SPAC transactions with earnouts, over 90% of the earnouts were tied to stock price milestones, while the other earnouts were based on the target company achieving a specific business objective (i.e., building a facility) and, in a few deals, a combination of a business objective and stock price milestone. The de-SPAC earnouts typically have multiple tranches, with a certain percentage of shares becoming available when the stock price reaches a specific threshold. In the Ginkgo Bioworks, Inc. merger, for example, the target stockholders were entitled to receive 188.7 million shares divided into four equal tranches if the trading price per share of the merged company common stock was greater than or equal to $12.50, $15.00, $17.50, and $20.00 for any 20 trading days within any period of 30 consecutive trading days during the five-year earnout period. At each threshold, the target stockholders would receive 25% of the earnout consideration. It is uncommon for de-SPAC transaction earnouts to be in the form of cash.

Redemptions

An increasing number of stockholders are exercising redemption rights at the time of the de-SPAC merger approval vote. The average rate of redemption increased significantly in the third and fourth quarters of 2021. In the fourth quarter, stockholders in more than 60% of de-SPAC transactions exercised redemption rights at a level above 50%. And, in 10% of those de-SPAC transactions, the rate of redemption was 90% or more. As more SPACs enter an increasingly competitive market and companies seek stockholder approval to extend merger periods, stockholders may respond to uncertainties by exercising redemption rights more frequently.

SEC Scrutiny

As recently as December 2021, the SEC indicated that SPACs will be part of its enforcement agenda in 2022. In 2021, the average time between signing and closing of de-SPAC transactions increased slightly from three months to five months. The interim period has increased in part due to heighted regulatory scrutiny.

At an Investor Advisory Committee Meeting held on March 11, 2021, Commissioner Allison Herren Lee, as the acting commission chair, noted a growing concern about SPACs and the potential increased risks to investors. Lee’s statements came one day after the SEC released an investor alert cautioning against investments in SPACs with celebrity involvement.

Then, in July 2021, the SEC announced its first notable enforcement action involving a SPAC, its sponsor, the target company, and the chief executive officers. The SEC announced charges against Stable Road Acquisition Corp., SRC-NI (the SPAC sponsor), Momentus Inc., and the chief executive officers of the SPAC and target company for misleading claims about the target company’s technology and national security risks associated with the target company’s CEO.

In December 2021, the announced de-SPAC mergers between (1) Digital World Acquisition Corp. and Trump Media Technology Group and (2) Churchill Capital Corp IV and Atieva, Inc. (d/b/a Lucid Motors), were each reported to be under regulatory investigation. The SEC cautioned it will continue to scrutinize de-SPAC transactions and consider additional regulation of SPAC activity. 

Sponsor Lock-ups

A continuing trend in 2021 is the nontraditional treatment of the sponsor founder shares, which may be another reflection of the increased competition for target companies and the SPAC’s intent to be an appealing merger partner. Traditionally, the sponsor pays a nominal amount (usually $25,000) for that number of founder shares equaling 20% of the total shares outstanding after the completion of the IPO, and the holders of these sponsor shares are restricted from selling these shares (i.e., their shares are locked up) for a period of one year from the date of the merger. However, if the combined company’s public share price trades over $12.00 (20% higher than the $10 IPO price per share) for more than 20 days in a 30-day period, the lock-up is lifted and the sponsors are free to sell their shares, even before the one-year lock-up period expires.

SPACS, however, have provided for nontraditional treatment of the founder shares that set the de-SPAC transactions apart from the traditional SPAC structure, such as reducing the amount of founder shares purchased at a nominal price from 20% to 10%, or subjecting the founder shares to vesting based on certain stock price milestones, much like stockholder earnouts.

One of the key strategies in which sponsors are aligning their interests with those of the target stockholders is increasing the length of the sponsor’s lock-up period or creating a tiered release of the transfer restrictions. For example, in the notable merger between Social Capital Hedosophia Holdings Corp. V and Social Finance, Inc., the sponsor agreed to a lock-up of 180 days or earlier based on stock price milestones, a longer lock-up period than the 30-day period for target stockholders. In the merger between Reinvent Technology Partners Y and Aurora Innovation, Inc., 25% of the sponsor shares could be transferred after the first anniversary of the closing while the remaining 75% of sponsor shares were separated equally into three tranches subject to price-based vesting after two, three, and four years from the closing date.

Key Provisions in Business Combination Agreements

Lastly, the 2020 trends relating to certain provisions within the business combination agreements continued in 2021. In de-SPAC transactions in 2021:

  • Buyers agreed to limited representations and warranties.
  • In nearly all transactions, there were no post-closing indemnification obligations of the target company.
  • Parties did not obtain representations and warranties insurance, except in the case of a few transactions.
  • Most of the transactions included a cap on D&O insurance premiums.
  • Very few of the transactions included a termination fee.
  • Post-closing purchase price adjustments and earnouts were used less frequently.

Traditionally, de-SPAC transactions have not included a fiduciary termination right in favor of the SPAC, and the transactions usually include force-the-vote provisions and an obligation by the sponsor to vote its shares in favor of the deal. As more SPACs go public and begin seeking targets, resulting in a more competitive market, we may see such fiduciary termination rights evolving.

Notable De-SPAC Transactions

The transactions in these charts link to Market Standards, the searchable database of publicly filed M&A deals from Practical Guidance that enables users to search, compare, and analyze more than 38,000 transactions using up to 150 detailed deal points to filter search results. For more information on Market Standards, click here.

SoFi Technologies, Inc.

Date

June 1, 2021

SPAC Name

Social Capital Hedosophia Holdings Corp. V

Target

Social Finance, Inc.

Deal Size

$8.65 billion 

Target Ownership Post-Closing
(assuming no redemption)

Target stockholders: 74.2%

SPAC stockholders: 9.3%

SPAC sponsors: 5.5%

PIPE investors: 11.0%

The percentages reflect the director restricted stock unit award settlement and repurchase.

Lock-up Period

Target stockholders are subject to lock-up period of 30 days after closing, subject to certain customary exceptions.

Certain other key holders of the sponsor, certain SoFi holders, the sponsor, and SoFi Technologies are subject to transfer restrictions for 180 days (subject to the granting of early release following the closing with respect to SoFi Technologies shares).

Board Composition Post-Closing

SPAC: Two members

Target: Four members

Investors: Seven members

SPAC Duration

IPO: October 8, 2020

Merger Agreement signed: January 7, 2021

Business combination closed: June 1, 2021

Other – Change to Class Structure

The authorized capital stock was changed via the organizational documents in connection with the closing.

Lucid Group, Inc. (d/b/a Lucid Motors)

Date

July 23, 2021

SPAC Name

Churchill Capital Corp IV

Target

Atieva, Inc. (d/b/a Lucid Motors)

Deal Size

$11.75 billion

Target Ownership Post-Closing
(assuming no redemption)

Target stockholders: 73.4%

SPAC stockholders: 13.0%

SPAC sponsor: 3.2%

PIPE investors: 10.4%

Lock-up Period

180 days after closing, subject to certain customary exceptions

Board Composition Post-Closing

Target: Two members

Controlling stockholder: Five members

SPAC sponsor: One member

SPAC: One member

SPAC Duration

IPO: August 3, 2020

Merger Agreement signed: February 22, 2021

Business combination closed: July 23, 2021

Other – Change to Class Structure

The authorized capital stock was changed via the organizational documents in connection with the closing.

OfferPad Inc.

Date September 1, 2021

SPAC Name

Supernova Partners Acquisition Company, Inc.

Target

OfferPad, Inc.

Deal Size

$2.25 billion

Target Ownership Post-Closing
(assuming no redemption)

Target equityholders: 74.9%

SPAC stockholders: 13.4%

Sponsor and related parties: 5.0%

PIPE investors: 6.7%

Lock-up Period

180 days after closing, subject to certain customary exceptions
Board Composition Post-Closing Only holders of Class B common stock can appoint or remove the seven members of the board of directors.

SPAC Duration

IPO: October 23, 2020

Merger Agreement signed: March 17, 2021

Business combination closed: September 1, 2021

Other – Dual class structure and sunset provision

At closing, the company adopted a dual class structure comprising Class A common stock, entitled to one vote per share, and Class B common stock, entitled to 10 votes per share. The Class B common stock is subject to a sunset provision triggered by the earlier of:

  • The date that is nine months following the date on which founder is no longer providing services to OfferPad and has not provided services for the 9-month period
  • The date as of which the qualified stockholders have transferred more than 75% of the shares of the Class B common stock

Gingko Bioworks, Inc.

Date September 16, 2021

SPAC Name

Soaring Eagle Acquisition Corp.

Target

Ginkgo Bioworks, Inc.

Deal Size

$15 billion (plus contingent earnout)

Target Ownership Post-Closing
(assuming no redemption)

Target stockholders: 84.3%

SPAC stockholders: 9.7%

PIPE investors: 4.3%

Initial stockholders: 1.7%

Lock-up Period

Target stockholders are subject to lock-up period of 180 days after closing, subject to certain customary exceptions and for tax purposes. Earnout consideration is excluded from transfer restrictions.
Founders and employees are subject to a one-year transfer restriction, subject to exceptions for:

  • Equity awards
  • Earnout consideration

An aggregate of 10% of the total number of shares are subject to the transfer restrictions.

Board Composition Post-Closing

In connection with the closing, the company declassified the board of directors.

Class B common stockholders may elect 25% of the directors. 

SPAC Duration

IPO: February 26, 2021

Merger Agreement signed: May 11, 2021

Business combination closed: September 16, 2021

Other – Dual Class Structure At closing, the company adopted a dual class structure comprising Class A common stock, entitled to one vote per share, and Class B common stock, entitled to 10 votes per share, for so long as the outstanding shares of Class B common stock represent at least 2% of all outstanding shares of common stock.
Other – Earnout Consideration

$180 million earnout shares, which are subject to forfeiture to the extent that the vesting conditions are not satisfied during the five-year period after the closing.

The earnout consideration is divided into four equal tranches and 25% of the earnout consideration immediately vests if the trading price per share of Class A common stock is greater than or equal to:

  • $12.50 for any 20 trading days within any period of 30 consecutive trading days during the earnout period
  • $15.00 for any 20 trading days within any period of 30 consecutive trading days during the earnout period
  • $17.50 for any 20 trading days within any period of 30 consecutive trading days during the earnout period
  • $20.00 for any 20 trading days within any period of 30 consecutive trading days during the earnout period

Aurora Innovation Inc.

Date November 3, 2021

SPAC Name

Reinvent Technology Partners Y

Target

Aurora Innovation, Inc.

Deal Size

$12 billion 

Target Ownership Post-Closing
(assuming no redemption)

Target stockholders: 87.3%

SPAC stockholders: 7.3%

Sponsor and related parties: 2.4%

PIPE investors: 3.0%

Lock-up Period

25% of sponsor shares are subject to a lock-up until the first anniversary after the closing.

The remaining 75% of sponsor shares are separated into three tranches and subject to price-based vesting and different lock-up periods:

  • Tranche I: two years following the closing
  • Tranche II: three years following the closing
  • Tranche III: four years following the closing
Board Composition Post-Closing

Aurora stockholders: Seven members

SPAC sponsor: One member

SPAC Duration

IPO: March 18, 2021

Merger Agreement signed: July 14, 2021

Business combination closed: November 3, 2021

Other – Change to Class Structure The authorized capital stock was changed via the organizational documents in connection with the closing.

Grab Holdings, Inc.

Date December 1, 2021

SPAC Name

Altimeter Growth Corp.

Target

Grab Holdings, Inc.

Deal Size

$39.6 billion

Target Ownership Post-Closing
(assuming no redemption)

Target stockholders: 88.19%

SPAC stockholders: 1.27%

Sponsor and certain SPAC directors: 0.32%Sponsor related parties: 1.96%

PIPE investors: 8.27%

Lock-up Period

Specifically identified target stockholders are subject to transfer restrictions as follows:

  • Upon the earlier of five days after the first earnings release of target after the closing if the closing price per share of Class A ordinary shares exceeds $12.50 for any five trading days within the 10 consecutive trading day period preceding such earnings release, or after the first earnings release of target after the consummation of the closing if the closing price per share of Class A ordinary shares exceeds $12.50 for any five trading days within any 10 consecutive trading day period, five days after such fifth trading day, Class A ordinary shares held by certain target stockholders
  • 180 days after the closing, Class A ordinary shares held by certain target stockholders
  • One year after the closing, Class A ordinary shares received by certain target executives
  • Three years after the closing, Class A ordinary shares received by other identified key executives
  • Three years after the closing, Class A ordinary shares or other securities convertible into or exercisable or exchangeable for Class A ordinary shares held by the sponsor

In each case, there is a specific cap on the aggregate number of Class A ordinary shares that may be resold. 

Board Composition Post-Closing Class B ordinary shareholders have a controlling interest in the company and have the sole ability to increase the total number of directors up to nine persons. A majority of the directors are nominated and appointed by the Class B ordinary shareholders.

SPAC Duration

IPO: October 5, 2020

Merger Agreement signed: April 12, 2021

Business combination closed: December 1, 2021

Other – Change to Class Structure The company adopted a dual class structure comprising Class A ordinary shares, entitled to one vote per share, and Class B ordinary shares, entitled to 45 votes per share. Class B ordinary shareholders may increase the total number of directors without approval of Class A ordinary shareholders.

Buzzfeed, Inc.

Date December 3, 2021

SPAC Name

890 5th Avenue Partners, Inc.

Target

BuzzFeed, Inc.

Deal Size

$1.2 billion

Target Ownership Post-Closing
(assuming no redemption)

Target stockholders: 94.9%

SPAC stockholders: 3.1%

Complex Networks Equityholders: 1.1%

Initial stockholders: 0.9%

Lock-up Period

Pursuant to an Amended and Restated Investor Rights Agreement:

  • Certain stockholders (directors, officers, and other parties to the agreement) are subject to a 180-day lock-up from the commencement of sales of SPAC’s IPO, subject to certain limited exceptions and customary terms.
  • The initial stockholders agreed to transfer restrictions on Founder Shares until the earlier to occur of (A) one year after the closing or (B) after the closing if the last reported sale price of the Class A common stock equals or exceeds $12.00 per share for any 20 trading days within any 30-day trading period commencing at least 150 days after the closing, or the date following the closing on which the company complete a liquidation, merger, stock exchange, reorganization or other similar transaction.
Board Composition Post-Closing As a controlled company, a majority of the seven directors will be independent directors.

SPAC Duration

IPO: January 14, 2021

Merger Agreement signed: June 24, 2021

Business combination closed: December 3, 2021


Jamie (Cole) Payne is a Content Manager with Lexis Practical Guidance’s Corporate and M&A team. She has several years of legal experience advising clients in mergers and acquisitions, entity formation, corporate governance matters, and commercial contract negotiations. Her experience is not limited to any one particular industry, and she has worked with a variety of privately-held and public companies. Jamie also served as an adjunct law professor for a brief period of time. She is passionate about teaching best practices and negotiation skills, as well as coaching other lawyers in professional development.


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