Toxic Convertible Note Lenders Not Just For the SEC Anymore
Over the past few years, we’ve written frequently about so-called “toxic lenders” and the toll their loans take on struggling over-the-counter companies. Nearly all of these companies need financing for operations, research and development, expansion and more, and are rarely able to obtain it from banks or other traditional lenders. They turn instead to the toxic funders, who charge high interest and, in the end, almost always convert their notes into enormous amounts of unrestricted stock. That causes runaway dilution, which damages the companies and their investors, and can result in reverse splits and even bankruptcy.
Since 2017, the Securities and Exchange Commission (“SEC”) has been trying to deal with the problem by suing the lenders for acting as unregistered dealers. Though they’ve won one important victory—against Ibrahim Almagarby and his company Microcap Equity Group LLC—and others are waiting in the wings, preparing and prosecuting individual lawsuits is time-consuming and expensive. The SEC has another remedy in mind, which entails changing the way note conversions work under Rule 144, but the rule change has yet to become effective. In the meanwhile, issuers victimized by toxic lenders try to fight back as best they can.
One such company, GeneSYS ID, Inc., won a significant victory at the end of October 2021, when the New York State Court of Appeals held that GeneSYS ID’s lender, Adar Bays, had committed criminal usury and that the contract between lender and borrower was void ab initio.
The events eventually resulting in the New York Court of Appeals’ decision occurred years ago. The company was formed in Nevada in 2010 as Rx Safes and was in the business of developing fingerprint recognition systems. As its name suggested, its original mission was to safeguard prescription drugs that could potentially be abused, but by the time this story begins, it had expanded its product line. Throughout these years, its CEO was Lorraine Yarde, who’s described in the company’s SEC filings as a “serial entrepreneur” and experienced marketer. The company was not notably successful, and by 2015 it was losing money and had turned to multiple toxic funders to keep its corporate head above water.
In 2015, it entered into an agreement with Adar Bays, LLC, by the terms of which Adar Bays would invest a total of $54,000 in two convertible notes, each for $24,000. The first note was issued on October 28, 2015; the second would be funded eight months after the agreement was signed.
Adar Bays is owned and managed by Aryeh Goldstein. Though it was formed in Florida, Goldstein is a resident of New York state.
A 1:200 reverse split and plans to list on the NASDAQ were announced in 2015. The split was authorized on September 28th and processed by the Financial Industry Regulatory Authority (“FINRA”). It became effective on November 12th. The number of shares authorized remained the same, at 500 million. In a shareholder letter from shortly before the split, Yarde tried to reassure investors, explaining, “this means we will go from approximately 270,000,000 shares issued and outstanding to about 1,350,000 shares outstanding, with about 250,000 shares in the public float.”
Rx Safes’ annual report for fiscal year 2015, filed in March 2016, indicates that the company also sold convertible notes to seven other toxic lenders. In July 2016, the issuer merged with a Nevada company called GeneSYS-RX and changed its name to GeneSYS ID. It subsequently obtained a new stock ticker, GNID. Lorraine Yarde stayed on as CEO.
In the same year, Rx Safes/GeneSys ID paid off some of its convertible notes by issuing new ones. When it filed its 10-Q for the period ended March 31, it noted that it had “recently repaid the balance outstanding on the convertible note to Adar Bays LLC of $37,512 including the accrued interest,” adding that “[t]hese steps were taken to prevent further immediate dilution, which may have negatively impacted our stock.”
By November 18–GNID filed its 10-Q for the period ended September 30, 2016 on November 21–the shares outstanding had increased to 17,437,232. The float was still small, but in percentage terms, the increase was dramatic. That quarterly was the last financial report filed by GNID with the SEC. On December 16, 2016, an accountant for the SEC’s Division of Corporation Finance sent GeneSys ID a letter asking the company to clarify a few things it claimed in its 10-K for fiscal 2015 and in its 10-Q for the period ended September 30, 2016. GeneSys ID replied, and the correspondence continued, though the company stopped responding after sending off a final brief letter in May 2017. An annoyed Corp Fin assistant director wrote in December:
On June 1, 2017, we issued an oral comment informing you that a comment remained outstanding and unresolved, and absent a substantive response, we would act consistent with our obligations under the federal securities laws.
As you have not provided a substantive response, we are terminating our review and will take further steps as we deem appropriate.
On September 20, 2018, the SEC issued a 10-day trading suspension and commenced an administrative proceeding to revoke the company’s registration. GeneSYS ID failed to respond to the Order to Institute Proceedings and so was found in default. Its registration was revoked on August 23, 2019.
Because GNID went dark shortly after filing its 10-Q for Q3 2016, what happened with Adar Bays’s loans to the company is not entirely clear. We do know, from the company’s 10-Q for the period ended 30 June of that year, that:
On May 24, 2016, the Company entered into an agreement with Adar Bays, LLC to invest into the Company $35,000 in exchange for a convertible promissory note. The note bears interest at the rate of 8%. All outstanding principle [sic] and interest is due and payable on May 24, 2017. The note is convertible by Adar Bays into shares of the Company’s common stock at any time after 180 days from note issuance (November 20, 2016). The conversion price for each share is equal to 65% multiplied by the lowest trading price of the Common Stock on the OTC Market for the 20 prior trading days. The Company has the option to prepay this note plus accrued interest at 115% of face within 60 days from note issuance, at 125% of face within 61 to 120 days from note issuance, and at 135% of face within 121 to 180 days from note issuance, after which time the note may not be prepaid.
The note also specified that GNID would issue irrevocable instructions to the transfer agent requiring the reservation of 278,000 shares of common stock for eventual conversion. The note further provided that GNID must “reserve a minimum of three times the amount of shares required if the note would be fully converted.”
Six months later, on November 28, 2016, Adar Bays requested the conversion of $5,000 of debt into 439,560 shares of GeneSYS ID’s common stock. The request was, as these things go, modest, considering the size of the loan. Evidently, the lender didn’t suspect the issuer was about to stop filing with the SEC. The terms of the note specified that if GeneSYS ID became delinquent in its filing obligations, the interest rate on the loan would increase to “24 percent per annum or, if such a rate is usurious then at the highest rate of interest permitted by law.” Other events would prompt different kinds of penalties. The note specified that GNID’s failure to deliver converted stock within three business days would trigger default, as would any “representations or warranties” made by GNID in connection with the note or stock purchase agreement that ultimately turned out to be “false or misleading.”
GNID had no intention of paying anything. It denied the request for conversion. It had, in fact, made clear in the 10-Q it filed on November 18 that its stock price had suffered from conversions and from the predations of short sellers, and that:
To address these ongoing concerns, the Company terminated its transfer agent on September 6, 2016, preventing further toxic conversions and bringing all parties to the table to discuss a satisfactory settlement which would provide the Company with a window to redeem the outstanding notes over an extended period of time and prevent any further conversions for several months. We have been actively negotiating this settlement with our existing noteholders, with a plan to convert their debt holdings into non-dilutive equity and provide a workable solution to the problem. We are hopeful that these efforts will result in a positive solution that will not only benefit the company, but should also allow the noteholders to make a return on their investments. As we are in the midst of negotiations, no firm commitments have yet been reached as of the date of preparing this document.
In the absence of a transfer agent, no conversions could have been made—even though stock had been reserved for precisely that purpose—because it’s the transfer agent who issues stock and balances the books. Adar Bays was out of luck. On February 16, 2017, it filed suit against GeneSYS ID in federal district court in the Southern District of New York. On April 19, it filed an amended complaint.
In its complaint, Adar Bays claimed breach of the stock purchase agreement it had entered into with GeneSYS ID, breach of the terms of the note that had been issued to it, unjust enrichment, anticipatory breach of the note and stock purchase agreement, and costs, expenses, and attorneys’ fees. On January 16, 2018, GNID filed a motion to dismiss on the grounds the note is void as usurious. On the same day, Adar Bays filed a motion for summary judgment.
Andrew L. Carter, Jr, the judge in the case, delivered an opinion and order on September 20, 2018. Reducing the parties’ disagreements to their simplest terms, he began by explaining:
AB contends that the SPA provided for, inter alia, the purchase and issuance of a $35,000 8% Convertible Redeemable Note… GNID disputes this characterization, and contends that GNID borrowed $35,000 and executed a promissory Note reflecting the same.
As a result of GNID’s failure to honor Adar Bays’s conversion notice, the company is in default and owes payments at the default interest rate—”24 percent per annum or, if such a rate is usurious then at the highest rate of interest permitted by law”—as well as damages described in the note.
In a motion for summary judgment, the moving party—Adar Bays—must show that the facts in the case are not in dispute; that there is an “absence of a genuine issue of material fact.” Adar Bays believed the evidence offered by the note and the stock purchase agreement and the factual matter of the dismissal of the transfer agent could not be disputed. The non-moving party—GeneSyS ID—must show otherwise in order to prevail. The non-moving party has one advantage: the Court must draw all inferences in the light most favorable to him.
Judge Carter notes that in order to state a claim for breach of contract under New York law, the plaintiff must adduce “proof of (1) an agreement, (2) adequate performance by the plaintiff, (3) breach by the defendant, and (4) damages.” GNID acknowledged the existence of the note and the stock purchase agreement. But it did contend that the fact that the note had an 8% interest rate is disputed because a $2,000 payment to the Adar Bays attorney constituted 6 percent “hidden interest.” In addition, since a cash repayment option was only available for the first six months following execution of the agreements, the actual interested rate prior to conversion was 28 percent. The discount to market upon conversion created an interest rate of at least 35 percent, and the stock reservation requirement represented a 400 percent interest rate.
Adar Bays argued in response that “these disputes relate to legal conclusions, not actual facts,” and so are “insufficient to raise a material issue of fact on a summary judgment motion.” Judge Carter agreed that Adar Bays’s performance had been adequate and that GNID had breached its agreement with Adar Bays. He also believed the lender had also suffered damages, though not the liquidated damages Adar Bays had hoped for, because the actual damages suffered are, as the judge put it, “readily ascertainable.”
Adar Bays also argued that it deserved “expectation damages,” a type of compensation that may be awarded to the party harmed in a breach of contract for the loss of what he reasonably expected from the transaction that had not been completed. The judge once again agreed and calculated Adar Bays’s expectation damages at $49,120.87. He added to that repayment of $30,000, the cost of conversion that Adar Bays would have been entitled to as the note’s outstanding balance. That came to a total of $92,307.67. Reasonable attorneys’ fees would be added. Judge Carter concluded that:
[T]here are no issues of material fact. Further, AB has successfully alleged each element of its breach of contract claim. As discussed below, GNID’s usury defense is without merit. Accordingly, summary judgment for AB on its claims for breach of the SPA and Note is appropriate.
He then took up GeneSYS ID’s motion to dismiss. The standard for a motion to dismiss to prevail is similar to that for a motion for summary judgment: the complaint “must allege sufficient facts which, taken as true, state a plausible claim for relief.”
GNID’s argument is entirely based on its contention that the loan in question was criminally usurious from inception.
New York law makes provision for two types of usury, civil and criminal. However, a corporation cannot assert civil usury as a defense in litigation. GNID, therefore, alleged that Adar Bays’s loan was criminally usurious because it had to. But as Judge Carter points out, the criminal usury statute contains “no specific statutory authority for voiding a loan that violates the criminal usury statute.”
That created a problem for GeneSYS. And so, in its reply to the Adar Bays complaint, it advanced a novel theory: that the New York legislature “did not intend to create two different ‘types’ of usury,” but instead “enacted the criminal provision to create two ‘levels’ of usury in a civil context.” The judge remarked dryly that “[n]evertheless, courts in this District routinely distinguish between the two types of usury when determining who may assert the defense and whether the resultant agreement should be voided.”
The judge then addressed GNID’s claim under the criminal usury provision. He viewed the entire case as a disagreement about a single fundamental issue: did Adar Bays lend money to GeneSYS ID, or did it arrange to purchase stock from GeneSYS ID? Quoting a decision from 1992, he makes clear that “[i]f there is no loan, ‘there can be no usury, however unconscionable the contract may be.’” The civil usury statute proscribes loans with an interest rate greater than 16 percent annually; the criminal statute sets the limit at 25 percent.
The judge ruled that GNID failed in its attempt to prove that Adar Bays intended its loan to be usurious because, GNID said, Adar Bays “cleverly disguised various additional charges” that resulted in “hidden” interest rates. But the case-law cited by GNID made clear that intent can only be proved if the note shows an unlawful interest rate. In this case, the stated rate was 8 percent, far below the 25 percent threshold set in the criminal usury statute, so intent is not implied. The note was also not usurious because the “lender is entitled to the return of the principal and the full legal rate of interest plus a bonus to be paid upon a contingency over which the borrower has no control.” The judge was equally unimpressed by GNID’s claims regarding the attorneys’ fees, the 180-day repayment clause, and the discounted conversion rate. For the last, he cited a case in which “though the initial transaction took the form of a loan, upon conversion to equity, the loans likely have the character of an equity investment, and are thus no longer vulnerable to a usury defense.” Judge Carter ruled that GNID had not shown that the discounted stock price should be considered in the calculation of the interest rate and added that the reservation of shares by the transfer agent was not relevant.
For all the above reasons, the Court granted Adar Bays’s motion for summary judgment on its breach of contract claim and denied GeneSYS ID’s motion to dismiss.
On October 12, 2018, GeneSYS ID filed a notice of appeal. The appeal was subsequently filed in the U.S. Court of Appeals for the Second Circuit. By that time, the company was behind with the corporate paperwork required by the Nevada Secretary of State; currently, its corporate charter is revoked. By the time the appeal was filed, GNID had been hit with a trading suspension by the SEC, and the administrative proceeding to revoke registration of all classes of the issuer’s stock discussed above was underway. It seems none of that was considered relevant to the case. The appellate panel was not well-informed about the OTC market; it said it traded on the “National Quotations Bureau oTCQB [sic] exchange market.” That is gibberish; thanks to the suspension, it traded, to the extent that it traded at all, on the Grey Market, where formerly suspended stocks go to die.
The parties advanced the same arguments as before. GeneSYS ID emphasized the question of the 35 percent discount to market price Adar Bays would enjoy when it converted all or part of its note to stock, claiming that for each $1.00 of principal converted into shares, GNID would receive stock worth $1.35.
The panel came to an unexpected conclusion on June 11, 2020. It examined the case at length. It raised doubts about GNID’s assertion that Adar Bays’s discount upon conversion constituted usurious interest by noting, among other things, that the discount didn’t even assure a profit for the lender:
One question which might be fairly asked about this accounting is what value GeneSYS is actually transferring to Adar Bays. The issuance of further stock, which GeneSYS may do essentially by corporate fiat, does not cost GeneSYS anything, even though those shares may be worth something if sold. Of course, by issuing and then transferring the requisite stock to satisfy the debt, GeneSYS may have rational concerns about subsequent sales by Adar Bays flooding the market in its securities and thus perhaps reducing GeneSYS’s stock price. But that decline in stock price, if it is a “transfer of value” at all, comes at the expense of GeneSYS’s existing shareholders (including Adar Bays if it is unable or unwilling to sell some or all of its newly transferred shares), who are now left holding a less valuable security. GeneSYS thus may be rightly concerned with the perceptions of equity investors as to its appeal as an investment and the impact of those perceptions on its ability to seek capital from equity markets in the future. However, the value of those concerns to GeneSYS is only uncertainly related to the “$1.35 in value for every $1 of principal” accounting which GeneSYS posits. Perhaps the value to GeneSYS is irrelevant in the usury analysis, but, if that is true, the possibility that the shares transferred could become worthless due to bankruptcy or other events remains as an obstacle to the neat calculus which GeneSYS puts forth.
Though the Second Circuit judges apparently didn’t know it, by the time they announced their conclusions, GeneSYS ID’s registration had been revoked by the SEC, and its stock no longer traded in any market. It was a private company, to the extent that it was a company at all, given that its corporate status had been revoked in Nevada.
They did point out that “[t]his is not the first case in our Circuit to present this issue; however, previous cases have not resolved it.” But although “[t]he district courts of this Circuit have generally concluded that a conversion option at a discounted rate does not violate usury laws,” the question has arisen again and again without definitive resolution.
The panel also addressed the question of whether, if the conversion discount rate is determined to be interest, the note is usurious and so void ab initio because it violates the New York usury laws. They note that “[t]here is no authoritative guidance on this issue from the Court of Appeals and the existing case law is unclear.” They add: “Should the Note now be declared void, GeneSYS will walk away with the entirety of the loan—achieving what could be viewed as a “total windfall” at the expense of Adar Bays.”
In the end, the Second Circuit did not arrive at a decision. Instead, the appeals panel decided sua sponte to certify two questions to the New York State Court of Appeals, which it believed was better qualified to address the perplexities of the state’s usury laws. The questions were:
- Whether a stock conversion option that permits a lender, in its sole discretion, to convert any outstanding balance to shares of stock at a fixed discount should be treated as interest for the purpose of determining whether the transaction violates N.Y. Penal Law § 190.40, the criminal usury law.
- If the interest charged on a loan is determined to be criminally usurious under N.Y. Penal Law § 190.40, whether the contract is void ab initio pursuant to N.Y. Gen. Oblig. Law § 5-511.
The case would be decided in New York state’s highest court.
The Amicus Brief
On December 10, 2020, well before the Court arrived at its decision, an unexpected non-party submitted an amicus curiae brief. The amicus was none other than Power Up Lending Group, Ltd, run by Curt Kramer. Kramer is well known as a “toxic lender” himself. He and his companies have been the subject of SEC enforcement actions more than once. In 2013, he agreed to pay $1.4 million to settle charges brought by the regulator against him and his firms Mazuma Corporation, Mazuma Funding Corporation, and Mazuma Holding Corporation. In October 2016, he settled charges brought against him in an administrative proceeding involving his receipt and subsequent sale of shares transferred to him and his company Hope Capital, Inc. by insiders in the notorious scam Spongetech Delivery Systems, Inc. in 2008 and 2009. He still works as a lender to microcap companies and so took an interest in the Adar Bays-GeneSYS ID litigation.
Kramer hoped to “assist the Court in determining [the] two questions as certified by the United States Court of Appeals for the Second Circuit.” He naturally believed both questions should be answered in the negative.
He notes that his interest in the case arises from the fact that he’s in the same business as Adar Bays. He seeks to convince the Court that that business isn’t without considerable risk. Echoing the concerns raised by the Second Circuit, he explains the potential problems raised by Rule 144 compliance: a buyer of a convertible note must wait at least six months before converting it to shares he’s able to sell on the open market. That exposes him to “substantial risk” because, during the Rule 144 tacking period, the debtor may:
(i) be delinquent in its filings with the United States Securities and Exchange Commission (“SEC”), the timely filing of which is a predicate to the lender’s conversion rights; or (ii) the company’s shares may be illiquid and trading volume insufficient to accommodate the lenders conversion; (iii) trading of the company’s stock may be halted by the SEC or appropriate exchange, or (iv) the issuing company ceases to operate or (v) files a petition in bankruptcy. Should any one or more of the aforementioned situations occur it would render the conversion right unenforceable.
In fact, (i), (iii), and, apparently, (iv) had indeed occurred in the case of GeneSYS ID, though after Adar Bays sought to convert $5,000 of its note.
Kramer also seeks to make several original points. The first is that the definition of “interest” is “simply the cost of having the use of another person’s money for a specified period.” But if the note holder chooses to convert, the entity that sold the note—in this case, GeneSYS ID—no longer has the use of the note holder’s money. He gets to keep the money as part of the conversion process.
Kramer’s second point is that GNID’s contentions fail to take into account the difference in value between restricted and unrestricted stock. He attempts to show that the Internal Revenue Service and the SEC acknowledge that restricted stock is worth less—sometimes much less—than unrestricted stock. He then turns to an analysis of GeneSYS ID’s most recent, and, as it turned out, last, Forms 10-K and 10-Q. He notes that: “It would seem to us that these calculations demonstrate the risks incurred and uncertainty in valuing the options because of the fact that GeneSys is insolvent by any definition.”
He closes with two other points, the second of which is dedicated to analysis of the sources he suggests were misconstrued by GNID in its briefs.
The New York State Court of Appeals decided the case on October 14, 2021, in favor of GeneSYS ID.
The court chose to address the second certified question first, beginning with a lengthy history of the state’s usury laws, emphasizing its relevance to the GeneSYS ID case: “Despite persistent attacks launched at the usury laws, the legislature did not alter New York’s longstanding rule requiring total voiding of usurious loans.”
It concluded its historical excursus with a conclusion relevant to the present:
[D]espite numerous entreaties over many centuries, other than the exception for savings banks, the legislature has never addressed complaints by permitting courts to limit a borrower’s remedy for a usurious loan to reduction of the interest rate or loss of interest only. Thus, loans proven to violate the criminal usury statute are subject to the same consequence as any other usurious loans: complete invalidity of the loan instrument.
Having answered the second certified question in the affirmative, it turned to the first, which was whether a stock conversion option that allows a lender to convert at a fixed discount to the stock’s market price should be treated as interest.
The state appellate court had held in the past that “[l]oans with the option of repayment in property (including stock) rather than cash remain loans—not equity investments.” It adds that all consideration paid for a loan should be valued when determining if a transaction is usurious. In response to arguments that conversion discounts are necessary compensation for the risk an investor in microcap companies takes, they respond:
Here, for example, the note provides that if GeneSYS is delisted, the interest rate jumps to 24%, or just under the legal limit, so Adar Bays has protected itself against the risk of delisting. Consequently, that risk should not be used to discount the value of the conversion option. Additionally, the risk of a borrower refusing conversion should not affect the value of the option: in the event the borrower refuses, the lender, as Adar Bays did in this instance, can sue to enforce the contract so long as it is not usurious. Ordinary contract remedies exist to protect against this contingency and it neither renders the loan uncertain nor affects the value of the consideration exchanged. The situation would be no different were a borrower to refuse to pay monies due under any loan having no conversion option: the statutory usury cap allows for the possibility of litigation costs.
The state appellate judges then offer many examples drawn from actions heard in their court that address issues similar to those raised by Adar Bays v GeneSYS ID. Throughout, they’re careful to note that simply because certain factors may be present in cases of usury, those cases must still be investigated, briefed, and tried. They evidently feel that they can say without hesitation that the discount to market of 35 percent is a form of interest because they believe it can be valued. They spend a good deal of time explaining why they believe that and encourage bringing expert witnesses to such cases. One of the seven members of the appeals court, Judge Garcia, disagreed with that premise and wrote a partial dissent in which he expressed skepticism about his colleagues’ certainty about the issue and explained his concerns about the prospect of some lenders ceasing to do business in the state.
In the main opinion, the judges do make clear that the scope of their decision is limited:
Our decision today does nothing to alter the borrower’s burden of establishing usury as a defense in a civil action. Rather, we answer only that which the Second Circuit has asked: stock conversion options should be considered when determining the interest charged on a loan transaction and usurious loans to corporations are wholly void under the General Obligations Law.
In conclusion, the New York State Court of Appeals answers both certified questions in the affirmative.
It’s too early to know what the long-term effects of the outcome of this case will be. Lenders will need to be more careful about the terms of the loans they offer in the state of New York and, perhaps, elsewhere. They now run the risk of having to deal with borrowers who default and then, if sued, claim usury as a defense.
The practice of offering discounts to market upon conversion will also have to be reexamined by lenders and borrowers alike. The one Adar Bays was to receive in connection with its loan to GeneSYS ID was a mere 35 percent. That is, as these things go, relatively low. Many lenders to microcap companies expect as much as 45 or even 50 percent. That will now become a problem, as it will be considered interest, on top of whatever interest rate attaches to the loan itself.
The New York decision is just one more in a series of problems that have arisen in recent years for the toxic funders who’ve been so active and have profited so greatly in the penny stock markets. For several years now, the SEC has been taking them down for acting as unregistered dealers, as we noted above. The proposed changes to Rule 144 will wreak havoc. Currently, holders of convertible notes are subject to a single holding period that begins when the note is purchased. The amendments to Rule 144, if adopted, will require noteholders to enter a new holding period every time they convert. And now they’ll have potential accusations of usury to contend with.
Some have already turned to PIPE deals not involving convertible notes and are looking at lower-tier NASDAQ companies, not OTC issuers. Others must be considering different plans. But the golden goose seems to be on her last legs.
For further information about this securities law blog post, please contact Brenda Hamilton, Securities Attorney at 200 E. Palmetto Park Rd, Suite 103, Boca Raton, Florida, (561) 416-8956, by email [email protected] or visit www.securitieslawyer101.com. This securities law blog post is provided as a general informational service to clients and friends of Hamilton & Associates Law Group and should not be construed as and does not constitute legal advice on any specific matter, nor does this message create an attorney-client relationship. Please note that the prior results discussed herein do not guarantee similar outcomes.