SEC Troubles Are No Bar to Getting Small-Business Relief Funds

(Bloomberg) -- A penny-stock company under investigation by the Securities and Exchange Commission for market manipulation in connection with a 300% jump in its shares two years ago got a $3.1 million loan from the government's coronavirus relief fund for small businesses.

Cool Holdings Inc., which sells electronics equipment, is one of at least three companies whose run-ins with the SEC didn't prevent them from tapping the $349 billion first round of the Small Business Administration's Paycheck Protection Program.

Two other recipients of PPP funds, MiMedx Group Inc. and CV Sciences Inc., have paid fines to settle SEC investigations. In early April, MiMedx, a Marietta, Georgia-based maker of skin grafts and other biomaterials, also agreed to pay $6.5 million to end a Justice Department probe into claims it defrauded the federal government. The companies neither admitted nor denied wrongdoing.

The ability of these publicly traded companies to secure loans while many other small businesses couldn't demonstrates the haphazard nature of the relief program. Loan applications ask only whether a business or owner is bankrupt, engaged in illegal activity, or if a principal or senior executive has been indicted or convicted in the past seven years, or is on parole. There are no questions about a company's history with law enforcement or other regulatory bodies.

“The Trump Administration should have a plan in place to prioritize scarce PPP funds so that real small businesses get priority, not large publicly traded firms and companies that are under active investigation for fraud,” Democratic Senator Jack Reed of Rhode Island said in an email. “I have reached out to Treasury and SBA urging them to fix glaring weaknesses in these programs and will continue pressing Republican lawmakers to allow needed reforms.”

MiMedx Investigations

Several large, public companies generated public criticism for securing PPP loans. Some, such as Shake Shack Inc. and the operator of the Ruth's Chris steakhouse chain, returned the money. The Treasury Department and SBA issued new guidance last week, warning companies with large valuations and access to capital markets that it's unlikely they could certify in good faith the loan is “necessary to support the ongoing operations of the applicant.” Treasury Secretary Steven Mnuchin has also said the SBA will audit all loans of more than $2 million for any criminal liability.

More: Justice Department Sees Early Fraud Signs in SBA Loan Flurry

MiMedx, which won approval for a $10 million PPP loan, spent the past three years dealing with federal investigations into accounting fraud and allegations that it bilked U.S. Department of Veterans Affairs. Once a promising small-cap company with a market value of $1.2 billion, MiMedx was delisted from Nasdaq in 2018 after its board uncovered accounting irregularities, announced the need for a multiyear earnings restatement and ousted the company's top executives.

MiMedx's fortunes hit bottom in November, when former Chief Executive Officer Parker Petit and Chief Operating Officer William Taylor were indicted in New York on charges of accounting fraud. The SEC extracted a $1.5 million settlement from the company to resolve a parallel investigation. The two former executives have entered not guilty pleas and are fighting the charges.

Blue Torch

Under a new CEO hired last year, MiMedx secured $75 million in financing from Blue Torch Finance LLC. And in March, the company published restated earnings through 2018, reflecting an overstatement of at least $70 million in revenue over several years. Its report for 2019 has been delayed.

MiMedx entered into an agreement with the Justice Department on April 6 to settle a civil investigation into claims that it defrauded the government by overcharging for skin-graft products. Combined with its $1.5 million SEC settlement five months earlier, the company has agreed to pay $8 million to resolve claims of bad behavior.

On April 21, the same day MiMedx disclosed it had received the loan, it announced it renegotiated several covenants from its Blue Torch credit facility, allowing the company to reduce the amount of liquidity it needed on hand to $20 million from $40 million. The amended agreement cost MiMedx $725,000 in fees, which were added to the principal, and the interest rate of the loan increased.

MiMedx said in an emailed statement that the PPP funds would be used for their intended purpose, to keep its 710 employees on the payroll, and that the money isn't counted in its liquidity calculations for Blue Torch. The change in the covenant prevented the company from going into technical default, MiMedx said.

“We need operating funds on hand at a time when we cannot access the public markets, owing to our financial restatement process,” the company said. “These funds are being used as designed –- to fund payroll. We are in compliance with the PPP program as it stands.”

Penny Stocks

Cool Holdings is under investigation for fraud by the SEC, which has asked for documents tied to its shares rallying 300% in September 2018. Two early investors in the Miami-based company, Barry Honig and John O'Rourke, were sued by the regulator that same month for their roles in orchestrating market manipulation in the shares of other penny stocks.

The SEC alleged that the two participated in pump-and-dump schemes, where insiders buy shares of cheap stocks, push them higher through promotions and then sell. Both men settled with the SEC without admitting or denying the allegations and were banned from penny stock companies. O'Rourke agreed in March to pay a $1.2 million penalty.

Vern LoForti, senior vice president of Cool Holdings, said the company is cooperating with the SEC and that Honig and O'Rourke haven't been investors since September 2018. He said Cool Holdings met all the SBA requirements for a loan and that the money would be used for payroll costs, rent and utilities at its 44 U.S. stores.

“While we do have public shareholders,” LoForti said, “we are a ‘small employer' and the kind of small business specifically targeted by Congress for assistance.”

CV Sciences, which sells oils extracted from cannabis plants, received a $2.9 million PPP loan. In a case filed by the SEC in 2017, the San Diego-based company agreed to pay a $150,000 penalty to resolve claims it overstated its assets. CEO Michael Mona resigned, agreed to pay a $50,000 fine and was suspended from serving as an officer or director of a publicly traded company for five years.

The company and its former CEO didn't respond to requests for comment.