Electric truckmaker Nikola receives new SEC subpoena

Nikola, the electric vehicle start-up, has attracted new scrutiny from the Securities and Exchange Commission, which has subpoenaed the company for information relating to its plans to raise more capital from investors.

Nikola also restated its 2020 earnings after the US securities regulator changed accounting rules for companies that go public using special purpose acquisition companies, or Spacs.

The SEC issued the subpoena on March 24 in relation to Nikola’s “projected 2021 cash flow and anticipated use of funds from 2021 capital raises”, according to an SEC regulatory filing.

Nikola, whose disclosures to investors have been under investigation by the SEC and the US Department of Justice since the publication of fraud allegations in a short seller’s report last autumn, said in March that it planned to sell up to $100m in stock to investors in 2021. The fundraising was aimed at ensuring it had adequate capital for the next 12 to 18 months, it said.

Nikola shares surged after it went public last year via a merger with a Spac, amid excitement over its plans to build an electric truck. Its shares are down 80 per cent from their peak, however, and the company has admitted that nine statements that founder Trevor Milton made about Nikola’s progress and technical prowess were wholly or partly inaccurate. Milton left the company in September.

The company spent $14.5m in the first quarter on legal expenses.

Nikola said it had restated its earnings to comply with new guidance issued by the SEC last month, which said that Spacs had incorrectly accounted for warrants as equity when they should be considered liabilities. Warrants, which are given to early investors for free as a sweetener, act as options that can be used to buy more shares at a set price in the future.

The change added $7.3m in long-term liabilities and a $13.4m non-cash gain, said chief financial officer Kim Brady. It did not affect operating expenses or cash flows.

Nikola shares were up nearly 10 per cent on Friday as the company beat Wall Street expectations for the first quarter with an adjusted earnings per share loss of 14 cents, compared to a projected 26 cent loss.

Chris McNally, analyst at Evercore ISI, said the results were “encouraging” although set against “relatively low expectations”.

The SEC has heightened its scrutiny of Spacs since they boomed in popularity last year, focusing in particular on optimistic revenue projections that are used to attract large institutional investors and retail buyers.

In a statement last month, the acting director of the SEC’s division of corporation finance, John Coates, suggested companies listing through Spacs could be held liable for forward-looking statements. Using a Spac to go public rather than a traditional initial public offering “gives no one a free pass for material misstatements or omissions”, he said.

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