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Holding on to unclaimed property could soon begin hurting corporate bottom lines as cash-strapped states adjust their escheatment policies in an effort to raise revenues. States are changing the rules regarding the seizure of lost property, changing the reporting requirements for corporations that must report unclaimed property, and increasing audit activity and the size of fines, all in an effort to speed up the process that awards unclaimed funds to their rightful owners or to the state.

An area of compliance that hasn’t generated a lot of concern from corporate secretaries may soon command their attention – but not in a good way. Fines for non-compliance can be in the millions.

‘We’re seeing states increase the number of audits that they conduct in an effort to induce penalties, fines and interest fees,’ says Karen Anderson, vice president of compliance at Unclaimed Property Recovery and Reporting, which provides pre-escheatment owner location services to corporations.

‘States are also changing the extent of what needs to be reported – for example, making it clear that they want the social security numbers and even email addresses of the owners of lost property,’ Anderson says. Such changes have financial implications for companies because internal systems and controls may need to be adjusted in order to meet the new standards of compliance.

John Buonomo, senior vice president of regulatory services for AST, says the dormancy periods for unclaimed property continue to shrink, which means companies have to be more diligent about alerting the state that the time owners have to collect their property has expired. He says most states used to have five-year dormancy periods, with some at seven years, but now ‘there are no sevens and very few fives; almost everyone is at three years, with a few states pushing to move to two years on certain assets.’

Time is short

Unclaimed property laws in 48 states and Washington, DC have dormancy periods that are triggered by inactivity, so companies need to be aware of the length of time that each state believes constitutes ‘inactivity’. The faster the dormancy period is reached, the faster the states can start assessing fines or collecting lost assets for their coffers.

Increasing the number of audits also increases the opportunities to collect fines. Buonomo says California was one of the first states to begin aggressively fining companies, but Michigan is implementing fines this year and other states are following. Experts estimate that in most states, only 15 percent to 35 percent of all companies are in full compliance with escheatment laws, so enforcement could yield a pretty penny.

The cost to some companies could be huge. On unclaimed property consulting firm Keane’s website, a blog post written by chief compliance officer Debbie Zumoff and Valerie Jundt, the managing director of Keane National Consulting and Advisory Services, warns that ‘because there’s virtually no statute of limitations for unclaimed property in most states, the time frame for compliance may be expanded, creating the need to estimate liability for historical years. This can result in an increase in the known liability by three to eight times, translating into millions of dollars potentially owed to states in fines and penalties.’

And states are ramping up efforts to collect, with the backing of the courts. Insurer John Hancock has been involved in three collection actions already this year – a $20 million unclaimed property settlement in California, an agreement to establish a $10 million fund to repay beneficiaries and supply an additional payment of $3 million to three regulatory agencies in Florida, and a settlement with Louisiana, 35 states and the District of Columbia to recover unclaimed insurance proceeds.

Financial institutions such as John Hancock have become prime targets for states that have stepped up enforcement of escheatment laws. Jundt identified several areas where financial institutions were particularly vulnerable to liability in a recent article she penned for Bankers Digest. During an audit, states may find that financial institutions have not properly identified potential unclaimed property that should be included in their annual reports, have forgotten to return small loan credit balances to customers, have not followed up proactively to reactivate customers’ dormant accounts, or have simply made filings to the wrong state. Because financial institutions deal with massive amounts of money and potentially millions of customers, mistakes are often duplicated many times over, and this can lead to multiple fines that can add up to millions of dollars.

Staying in compliance

To avoid state actions, Anderson suggests companies reassess their policies and procedures on unclaimed property to make sure that they are in line with state regulations. Some states have changed their rules concerning the types of assets that are considered unclaimed property, so being proactive about compliance before being audited will help companies to avoid fines.
‘With so many states cash-strapped and extending their reach, being proactive has never been more important than now,’ says Anderson.

Companies should also review the effectiveness of their unclaimed property efforts more regularly, looking for ways to improve efficiency. A quarterly review of company procedures involving reaching out to unclaimed property owners or exploring new options for locating beneficiaries is a positive step.

Buonomo, whose company helps stock issuers locate the owners of lost shares, says stock issuers, who often find themselves in the position of locating beneficiaries of shareholders who have died or forgotten about shares, should consider implementing escheatment programs that can handle unclaimed property issues in the future. He says such programs, which actively seek out the owners of unclaimed property and return it to them, can have a positive effect on the reputation of a company. Stock issuers usually don’t pay for programs that return shares to shareholders – instead, companies charge the shareholders a fee for alerting them to their lost asset. Even thought they have to pay a little to get hold of their assets, customers will generally think highly of a company that is honest enough to return money to them that they didn’t know they had coming.

Such programs can also protect corporate secretaries and investor relations executives from the wrath of their boards. ‘If you get hit with a $500,000 fine from California for being late on escheatment of property, no exec is going to be able to explain that away to the board,’ Buonomo says.

[Article by Matthew Scott, Corporate Secretary]

MBA Mondays are back after a one week hiatus. Today we are going to talk about convertible debt. Convertible debt can also be called convertible loans or convertible notes. For the purposes of this post, these three terms will be interchangeable.

Convertible debt is when a company borrows money from an investor or a group of investors and the intention of both the investors and the company is to convert the debt to equity at some later date. Typically the way the debt will be converted into equity is specified at the time the loan is made. Sometimes there is compensation in the form of a discount or a warrant. Other times there is not. Sometimes there is a cap on the valuation at which the debt will convert. Other times there is not.

There are a number of reasons why the investors and/or the company would prefer to issue debt instead of equity and convert the debt to equity at a later date. For the company, the reasons are clearer. If the company believes its equity will be worth more at a later date, then it will dilute less by issuing debt and converting it later. It is also true that the transaction costs, mostly legal fees, are usually less when issuing debt vs equity.

For investors, the preference for debt vs equity is less clear. Sometimes investors are so eager to get the opportunity to invest in a company that they will put their money into a convertible note and let the next round investors set the price. They believe that if they insisted on setting a price now, the company would simply not take their money. Sometimes investors believe that the compensation, in the form of a warrant or a discount, is sufficiently valuable that it offsets the value of taking debt vs equity. Finally, debt is senior to equity in a liquidation so there is some additional security in taking a debt position in a company vs an equity position. For early stage startups, however, this is not particularly valuable. If a startup fails, there is often little or no liquidation value.

Friends and family rounds, which we discussed earlier in this series, are often done via convertible debt. It makes sense that friends and family would not want to enter into a hardball negotiation with a founder and would prefer to let the price discussion happen when professional investors enter the equation.

The typical forms of compensation for making a convertible loan are warrants or a discount.

Warrants are another form of an option. They are very similar to options. In the typical convertible note, the Warrant will be an option for whatever security is sold in the next round. The Warrant is most often expressed in terms of "warrant coverage percentage." For example "20% warrant coverage" means you take the size of the convertible note, say $1mm, multiply it by 20%, which gets you to $200,000, and the Warrant will be for $200,000 of additional securities in the next round. Just to complete this example, let's say the next round is for $4mm. Then the total size of the next round will be $5.2mm ($4mm of new money plus $1mm of the convertible note plus a Warrant for another $200k). The total cost of the convertible loan is $1.2mm of dilution at the next round price for $1mm of cash.

A discount is simpler to understand but often more complicated to execute. A discount will also be expressed in terms of a percentage. The most common discounts are 20% and 25%. The discount is the amount of reduction in price the convertible loan holders will get when they convert in the next round. Let's use the same example as before and use a 20% discount. The company raised $4mm of new cash and the convertible loan holders will get $1.25mm of equity in the round for converting their $1mm loan ($1mm divided by .8 equals $1.25mm). Said another way $1mm is a 20% discount to $1.25mm.

Convertible notes also typically have some cap on the valuation they can convert at. That cap is anywhere from the current valuation (not very common) to a multiple of the current valuation. Recently we are starting to see uncapped convertible notes. These notes have no cap on the valuation they can convert at.

Startups typically thing about raising capital via convertible debt early on in the life of a startup. They want to move fast, keep transaction costs low, and they are often dealing with a syndicate of angel investors and it is easier to get the round done with a convertible note than a seed or series A round. While these are all good reasons to consider convertible debt, I am not a big fan of it at this stage in a company's life. I believe it is good practice to set the value of the equity early on and start the process of increasing it round after round after round. I also do not like to purchase or own convertible debt myself. I want to know how much of a company I've purchased and I do not like taking equity risk and getting debt returns.

However, later on in a company's life convertible debt can make a lot of sense. A few years ago, we had a portfolio company that was planning on an exit in a year to two years and needed one last round of financing to get there. They went out and talked to VCs and figured out how much dilution they would take for a $7mm to $10mm raise. Then they went to Silicon Valley Bank and talked to the venture debt group. In the end, they raised something like $7.5mm of venture debt, issues SVB some Warrants as compensation for making the loan, and built the company for another year, sold it and did much better in the end because they avoided the dilution of the last round. This is an example of where convertible debt is really useful in the financing plan of a startup.

My guess is we will see the use of convertible debt, particularly with no compensation and no cap on valuation, wane as the current financing gold rush fizzles out. It will remain an important but less common form of early stage startup financing and will be particularly valuable in things like friends and family rounds where all parties want to defer the price negotiation. But I expect that we will see it used more commonly as companies grow and develop more sophisticated financing needs. It is a good structure when the compensation for making the loan is fair and balanced and when the debt vs equity tradeoff is useful for both the borrower and lender.

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