NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
September 30, 2016
(
1
)
Description of Business
Founded in December 2006 as a Florida limited liability company, Imperial Holdings, LLC, converted into Imperial Holdings, Inc. on February 3, 2011, in connection with the Company’s initial public offering. Effective September 1, 2015, the Company changed its name to Emergent Capital, Inc. (with its subsidiary companies, the "Company" or "Emergent Capital").
Incorporated in Florida, Emergent Capital, through its subsidiary companies, owns a portfolio of
623
life insurance policies, also referred to as life settlements, with a fair value of
$483.4 million
and an aggregate death benefit of approximately
$3.0 billion
at
September 30, 2016
. The Company primarily earns income on these policies from changes in their fair value and through death benefits.
431
of these policies, with an aggregate death benefit of approximately
$2.2 billion
and a fair value of approximately
$345.5 million
at
September 30, 2016
are pledged under a
$250.0 million
, revolving credit agreement (the “White Eagle Revolving Credit Facility”) entered into by the Company’s indirect subsidiary, White Eagle Asset Portfolio, LP ("White Eagle"). Additionally,
158
policies, with an aggregate death benefit of approximately
$619.7 million
and a fair value of approximately
$130.0 million
at
September 30, 2016
were pledged as collateral under a
$110.0 million
, revolving credit agreement (the "Red Falcon Revolving Credit Facility" and, together with the White Eagle Revolving Credit Facility, the "Revolving Credit Facilities") entered into by Red Falcon Trust ("Red Falcon"), a Delaware statutory trust formed by one of our subsidiary companies. At
September 30, 2016
,
34
policies owned by the Company, with an aggregate death benefit of approximately
$166.8 million
and a fair value of
$7.8 million
were not pledged as collateral under either of the Revolving Credit Facilities.
(
2
)
Principles of Consolidation and Basis of Presentation
The accompanying consolidated financial statements include the accounts of the Company, all of its wholly-owned subsidiary companies and its special purpose entities, with the exception of Imperial Settlements Financing 2010, LLC ("ISF 2010"), an unconsolidated special purpose entity which is accounted for using the cost method of accounting. The special purpose entity has been created to fulfill specific objectives. All significant intercompany balances and transactions have been eliminated in consolidation, including income from services performed by subsidiary companies in connection with the Revolving Credit Facilities. Notwithstanding consolidation, as referenced above, White Eagle is the owner of
431
policies, with an aggregate death benefit of approximately
$2.2 billion
and an estimated fair value of approximately
$345.5 million
and Red Falcon is the owner of
158
policies with an aggregate death benefit of approximately
$619.7 million
and an estimated fair value of approximately
$130.0 million
, in each case, at
September 30, 2016
.
The unaudited consolidated financial statements have been prepared in conformity with the rules and regulations of the SEC for Form 10-Q and therefore do not include certain information, accounting policies, and footnote disclosures information or footnotes necessary for a complete presentation of financial position, results of operations and cash flows in conformity with generally accepted accounting principles. However, all adjustments (consisting of normal recurring accruals), which, in the opinion of management, are necessary for a fair presentation of the financial statements, have been included. Operating results for the
three months and nine months
ended
September 30, 2016
are not necessarily indicative of the results that may be expected for future periods or for the year ended
December 31, 2016
. These interim financial statements should be read in conjunction with the Consolidated Financial Statements and Notes thereto included in Emergent Capital's Annual Report on Form 10-K for the fiscal year ended
December 31, 2015
.
Discontinued Operations
On October 25, 2013, the Company sold substantially all of the assets comprising its structured settlement business for
$12.0 million
. As a result, the Company has discontinued segment reporting and classified its operating results of the structured settlement business, net of income taxes, as discontinued operations. The accompanying consolidated balance sheets of the Company as of
September 30, 2016
and
December 31, 2015
, and the related consolidated statements of operations for the
three months and nine months
ended
September 30, 2016
and
2015
, and the related notes to the consolidated financial statements reflect the classification of its structured settlement business operating results, net of tax, as discontinued operations. See Note
7
, “
Discontinued Operations
,” for further information. Unless otherwise noted, the following notes refer to the Company’s continuing operations.
Derivative Instrument
In February 2014, the Company issued and sold
$70.7 million
in aggregate principal amount of
8.50%
senior unsecured convertible notes due 2019 (the "Convertible Notes"). Prior to shareholder approval on June 5, 2014 to issue shares of common stock upon conversion of the Convertible Notes in excess of New York Stock Exchange limits for share issuances without shareholder approval, the Convertible Notes contained an embedded derivative feature. In accordance with Accounting Standards Codification ("ASC") 815,
Derivatives and Hedging
, derivative instruments are recognized as either assets or liabilities on the Company’s balance sheet and are measured at fair value with gains or losses recognized in earnings. Embedded derivatives that are not clearly and closely related to the host contract, such as the Convertible Notes, are bifurcated and recognized at fair value with changes in fair value recognized as either a gain or loss in earnings if they can be reliably measured. The Company determined the fair value of its embedded derivative based upon available market data and unobservable inputs using a Black Scholes pricing model. In accordance with ASC 815, upon receipt of shareholder approval on June 5, 2014, the Company reclassified the embedded derivative to equity along with unamortized transaction costs proportionate to the allocation of the initial debt discount and the principal amount of the Convertible Notes. The Convertible Notes are recorded at accreted value and will continue to be accreted up to the par value of the Convertible Notes at maturity. See Note
11
, "
8.50% Senior Unsecured Convertible Notes
."
Foreign Currency
The Company owns certain foreign subsidiary companies formed under the laws of Ireland, Bahamas and Bermuda. These foreign subsidiary companies utilize the U.S. dollar as their functional currency. The foreign subsidiary companies' financial statements are denominated in U.S. dollars and therefore, there are no translation gains and losses resulting from translating the financial statements at exchange rates other than the functional currency. Any gains and losses resulting from foreign currency transactions (transactions denominated in a currency other than the subsidiary companies' functional currency) are included in income. These gains and losses are immaterial to the Company’s financial statements.
Use of Estimates
The preparation of consolidated financial statements, in conformity with accounting principles generally accepted in the United States of America ("GAAP"), requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities at the date of the financial statements and the reported amounts of income and expenses during the reporting period. Actual results could differ from these estimates and such differences could be material. Significant estimates made by management include income taxes, the valuation of life settlements, the valuation of the debt owing under the Revolving Credit Facilities, the valuation of equity awards and the valuation of the conversion derivative liability formerly embedded within the Convertible Notes.
Reclassification
Certain reclassification of the prior period amounts and presentation have been made to conform to the presentation of the current period. This reclassification relates primarily to the adoption of ASU No. 2015-03, "Interest—Imputation of Interest (Subtopic 835-30): which provides guidance on the balance sheet presentation for debt issuance costs and impacts the Convertible Notes.
Change in Accounting Principle and Accounting for Debt Issuance Costs
The Company adopted ASU No. 2015-03, "Interest—Imputation of Interest (Subtopic 835-30)" on January 1, 2016. Upon adoption of ASU No. 2015-03, deferred debt issuance costs related to the Convertible Notes previously presented in the Company's consolidated balance sheet as an asset have been reclassified as a direct deduction to the carrying amount of the liability. The adoption of this ASU did not result in changes to the consolidated statements of operations, stockholders' equity, or statement of cash flows. In transitioning the application of this guidance, retrospective application to all periods presented in the consolidated financial statements has been performed as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As reported under previous accounting guidance
|
|
As reported under ASU 2015-03
|
|
Effect of change
|
Balance Sheet
|
|
|
|
|
|
December 31, 2015
|
|
|
|
|
|
Assets:
|
|
|
|
|
|
Deferred debt costs
|
$
|
1,797
|
|
|
$
|
—
|
|
|
$
|
(1,797
|
)
|
Total assets
|
$
|
509,857
|
|
|
$
|
508,060
|
|
|
$
|
(1,797
|
)
|
|
|
|
|
|
|
Liabilities:
|
|
|
|
|
|
Convertible Notes, net of discount
|
58,609
|
|
|
56,812
|
|
|
(1,797
|
)
|
Total liabilities
|
289,500
|
|
|
287,703
|
|
|
(1,797
|
)
|
|
|
|
|
|
|
Total stockholders' equity
|
220,357
|
|
|
220,357
|
|
|
—
|
|
|
|
|
|
|
|
Total liabilities and stockholders' equity
|
$
|
509,857
|
|
|
$
|
508,060
|
|
|
$
|
(1,797
|
)
|
|
|
|
|
|
|
Net effect
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
(
3
)
Recent Accounting Pronouncements
In May 2014, the Financial Accounting Standards Board ("FASB") issued Accounting Standards Update ("ASU") No. 2014-09, "Revenue from Contracts with Customers," which converges the FASB and the International Accounting Standards Board (“IASB”) standard on revenue recognition. Areas of revenue recognition that will be affected include, but are not limited to, transfer of control, variable consideration, allocation of transfer pricing, licenses, time value of money, contract costs and disclosures. In April 2015, the FASB voted to defer the effective date of the new revenue recognition standard by one year. As a result, the provisions of this ASU are effective for interim and annual periods beginning after December 15, 2017. Following the deferral, in March 2016 the FASB issued ASU No. 2016-08, "Principal versus Agent Considerations (Reporting Revenue Gross versus Net)" which aims to clarify the implementation guidance on principal versus agent considerations. The amendments in this Update do not change the core principle of the guidance in No. 2014-09. The effective date and transition requirements of ASU No. 2016-08 are the same as the effective date and transitions requirements of Update 2014-09. The Company does not expect that this guidance will have a material impact on its financial position, results of operations or cash flows.
In August 2014, the FASB issued ASU No. 2014-15, "Disclosures of Uncertainties About an Entity’s Ability to Continue as a Going Concern." The standard provides guidance around management’s responsibility to evaluate whether there is substantial doubt about an entity’s ability to continue as a going concern and to provide related footnote disclosures. The standard is effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2016. Early adoption is permitted. The Company does not expect that this guidance will have a material impact on its financial position, results of operations or cash flows, and impact on related disclosures.
In February 2015, the FASB issued ASU No. 2015-02, "Consolidation (Topic 810): Amendments to the Consolidation Analysis." This guidance focuses on a reporting company’s consolidation evaluation to determine whether they should consolidate certain legal entities. This guidance is effective for annual periods beginning after December 15, 2015. Early adoption is permitted, including adoption in an interim period. The Company has determined that this guidance does not have an impact on its consolidated financial statements.
In April 2015, the FASB issued ASU No. 2015-03, "Interest—Imputation of Interest (Subtopic 835-30)." This standard provides guidance on the balance sheet presentation for debt issuance costs and debt discounts and debt premiums. To simplify the presentation of debt issuance costs, this standard requires that debt issuance costs related to a recognized debt liability be presented in the balance sheet as a direct deduction from the carrying amount of that debt liability. This ASU is effective for fiscal years beginning after December 15, 2015. The Company adopted this guidance on January 1, 2016. The adoption of this ASU did not result in changes to the consolidated statements of operations, stockholders' equity, or statement of cash flows. In
transitioning the application of this guidance, retrospective application to all periods presented in the consolidated financial statements has been performed.
In November 2015, the FASB issued ASU No. 2015-17, "Income Taxes (Topic 740): Balance Sheet Classifications of Deferred Taxes," which aligns the FASB and the IASB standard for financial statement presentation of deferred income taxes. To simplify the presentation of deferred income taxes, this standard requires that deferred tax assets and liabilities be presented as noncurrent on the balance sheet. This ASU is effective for annual periods beginning after December 15, 2016, and interim periods within those annual periods. Early adoption is permitted, including adoption in an interim period. The Company does not expect that this guidance will have a material impact on its consolidated financial statements.
In March 2016, the FASB issued ASU No. 2016-06, "Derivatives and Hedging (Topic 815): Contingent Put and Call Options in Debt Instruments." Topic 815 requires that embedded derivatives be separated from the host contract and accounted for separately as derivatives if certain criteria are met. One of those criteria is that the economic characteristics and risks of the embedded derivatives are not clearly and closely related to the economic characteristics and risks of the host contract (the "clearly and closely related" criterion). The guidance in this ASU intends to resolve the diversity in practice resulting from the application of the existing four-step decision sequence defined in ASC 815-15-25-42 to call (put) options that can accelerate the repayment of principal on a debt instrument if they meet the clearly and closely related criterion by clarifying that an entity is required to perform only the four-step decision sequence. The entity does not have to separately assess whether the event that triggers its ability to exercise the contingent option is itself indexed only to interest rates or credit risk. This ASU is effective for annual periods beginning after December 15, 2017, and interim periods beginning after December 15, 2018. Early adoption is permitted including adoption in an interim period, as long as any adjustment is reflected as of the beginning of the fiscal year that includes the interim period. We are currently evaluating the impact that the adoption of ASU 2016-06 will have on our consolidated financial statements or related disclosures.
In March 2016, the FASB issued ASU No. 2016-09, "Stock Compensation (Topic 718): Improvements to Employee Share-Based Payment Accounting" as part of its Simplification Initiative. The guidance simplifies several aspects of the accounting for share-based payment transactions including the income tax consequences, classification of awards as either equity or liabilities, and classification on the statement of cash flows. For public business entities, these amendments are effective for annual periods beginning after December 15, 2016, and interim periods within those annual periods. Early adoption is permitted including adoption in an interim period, as long as any adjustment is reflected as of the beginning of the fiscal year that includes the interim period. We are currently evaluating the impact that the adoption of ASU 2016-09 will have on our consolidated financial statements or related disclosures.
In August 2016, the FASB issued ASU No. 2016-15, "Statement of Cash Flows (Topic 230): Classification of Certain Cash Receipts and Cash Payments." This ASU provides specific guidance on eight cash flow classification issues that are either unclear or not included in current GAAP. These cash flow classification issues include debt prepayment or debt extinguishment costs, settlement of zero-coupon debt instruments, contingent consideration payments made after a business combination, proceeds from the settlement of insurance claims, proceeds from the settlement of corporate-owned life insurance policies, distributions received from equity method investees, beneficial interests in securitization transactions, and separately identifiable cash flows and application of the predominance principle. The amendments in this update are effective for public business entities for fiscal years beginning after December 15, 2017, and interim periods within those fiscal years. Early adoption is permitted, including adoption in an interim period. If an entity early adopts the amendments in an interim period, any adjustments should be reflected as of the beginning of the fiscal year that includes that interim period. An entity that elects early adoption must adopt all of the amendments in the same period. We are currently evaluating the impact that the adoption of ASU 2016-15 will have on our consolidated financial statements.
(
4
)
Consolidation of Variable Interest Entities
The Company evaluates its interests in variable interest entities ("VIEs") on an ongoing basis and consolidates those VIEs in which it has a controlling financial interest and is thus deemed to be the primary beneficiary. A controlling financial interest has both of the following characteristics: (i) the power to direct the activities of the VIE that most significantly impact its economic performance; and (ii) the obligation to absorb losses of the VIE that could potentially be significant to it or the right to receive benefits from the VIE that could be potentially significant to the VIE.
The following table presents the consolidated assets and consolidated liabilities of VIEs for which the Company has concluded that it is the primary beneficiary and which are consolidated in the Company’s financial statements as of
September 30, 2016
as well as non-consolidated VIEs for which the Company has determined it is not the primary beneficiary (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Primary Beneficiary
|
|
Not Primary
Beneficiary
|
|
Consolidated VIEs
|
|
Non-consolidated VIEs
|
|
Assets
|
|
Liabilities
|
|
Total
Assets
|
|
Maximum
Exposure
To Loss
|
September 30, 2016
|
$
|
504,771
|
|
|
$
|
244,100
|
|
|
$
|
2,384
|
|
|
$
|
2,384
|
|
December 31, 2015
|
$
|
475,597
|
|
|
$
|
225,208
|
|
|
$
|
2,384
|
|
|
$
|
2,384
|
|
As of
September 30, 2016
,
431
life insurance policies owned by White Eagle with an aggregate death benefit of approximately
$2.2 billion
and an estimated fair value of approximately
$345.5 million
were pledged as collateral under the White Eagle Revolving Credit Facility. In accordance with ASC 810,
Consolidation
, the Company consolidated White Eagle in its financial statements for the
nine months ended September 30, 2016
and
2015
, and the year ended
December 31, 2015
.
As of
September 30, 2016
,
158
life insurance policies owned by Red Falcon with an aggregate death benefit of approximately
$619.7 million
and an estimated fair value of approximately
$130.0 million
were pledged as collateral under the Red Falcon Revolving Credit Facility. In accordance with ASC 810,
Consolidation
, the Company consolidated Red Falcon in its financial statements for the
nine months ended September 30, 2016
and the year ended
December 31, 2015
.
(
5
)
Earnings Per Share
As of
September 30, 2016
and
2015
, there were
28,836,573
and
28,130,508
shares of common stock issued, respectively, and
28,228,573
and
28,064,887
shares of common stock outstanding, respectively. Outstanding shares as of
September 30, 2016
and
2015
have been adjusted to reflect
608,000
and
65,621
treasury shares, respectively.
Basic net income per share is computed by dividing the net earnings attributable to common shareholders by the weighted average number of common shares outstanding during the period.
Diluted earnings per share is computed by dividing net income attributable to common shareholders by the weighted average number of common shares outstanding, increased to include the number of additional common shares that would have been outstanding if the dilutive potential common shares had been issued. Conversion or exercise of the potential common shares is not reflected in diluted earnings per share unless the effect is dilutive. The dilutive effect, if any, of outstanding common share equivalents is reflected in diluted earnings per share by application of the treasury stock method, as applicable.
The following table reconciles actual basic and diluted earnings per share for the
three months and nine months
ended
September 30, 2016
and
2015
(in thousands except share and per share data).
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months Ended
September 30,
|
|
For the Nine Months Ended September 30,
|
|
2016(1)
|
|
2015(2)
|
|
2016(1)
|
|
2015(2)
|
Income (loss) per share:
|
|
|
|
|
|
|
|
Numerator:
|
|
|
|
|
|
|
|
Net income (loss) from continuing operations
|
$
|
(8,543
|
)
|
|
$
|
(13,491
|
)
|
|
$
|
(25,765
|
)
|
|
$
|
(16,689
|
)
|
Net income (loss) from discontinued operations
|
(54
|
)
|
|
(113
|
)
|
|
(248
|
)
|
|
(416
|
)
|
Net income (loss)
|
$
|
(8,597
|
)
|
|
$
|
(13,604
|
)
|
|
$
|
(26,013
|
)
|
|
$
|
(17,105
|
)
|
Basic and diluted income (loss) per common share:
|
|
|
|
|
|
|
|
Basic and diluted income (loss) from continuing operations
|
$
|
(0.31
|
)
|
|
$
|
(0.48
|
)
|
|
$
|
(0.94
|
)
|
|
$
|
(0.70
|
)
|
Basic and diluted income (loss) from discontinued operations
|
—
|
|
|
—
|
|
|
(0.01
|
)
|
|
(0.02
|
)
|
Basic and diluted income (loss) per share available to common shareholders
|
$
|
(0.31
|
)
|
|
$
|
(0.48
|
)
|
|
$
|
(0.95
|
)
|
|
$
|
(0.72
|
)
|
Denominator:
|
|
|
|
|
|
|
|
Basic and Diluted
|
27,614,441
|
|
|
28,084,254
|
|
|
27,529,120
|
|
|
23,827,030
|
|
|
|
(1)
|
The computation of diluted EPS does not include
265,212
shares of restricted stock,
763,594
options,
6,240,521
warrants, and up to
10,738,165
shares of underlying common stock issuable upon conversion of the Convertible Notes, as the effect of their inclusion would have been anti-dilutive.
|
|
|
(2)
|
The computation of diluted EPS did not include
41,259
shares of restricted stock,
774,394
options,
6,240,521
warrants, up to
10,738,165
shares of underlying common stock issuable upon conversion of the Convertible Notes and
323,500
performance shares, as the effect of their inclusion would have been anti-dilutive.
|
(
6
)
Stock-based Compensation
On May 28, 2015, the Company amended and restated its 2010 Omnibus Incentive Plan (the "Omnibus Plan"). Awards under the Omnibus Plan may consist of incentive awards, stock options, stock appreciation rights, performance shares, performance units, and shares of common stock, restricted stock, restricted stock units or other stock-based awards as determined by the compensation committee of the Company's board of directors. The Omnibus Plan provides for an aggregate of
2,700,000
shares of common stock to be reserved for issuance under the Omnibus Plan, subject to adjustment as provided in the Omnibus Plan.
Options
As of
December 31, 2015
, all options to purchase shares of common stock issued by the Company were fully vested. The Company recognized approximately
$0
and
$237,000
in stock-based compensation expense relating to stock options during the
three months and nine months
ended
September 30, 2015
, respectively.
As of
September 30, 2016
, options to purchase
763,594
shares of common stock were outstanding under the Omnibus Plan at a weighted average exercise price of
$8.52
per share. The following table presents the activity of the Company’s outstanding stock options of common stock for the
nine months ended September 30, 2016
:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common Stock Options
|
|
Number of
Shares
|
|
Weighted
Average Exercise Price
per Share
|
|
Weighted
Average
Remaining
Contractual
Term
|
|
Aggregate
Intrinsic
Value
|
Options outstanding, January 1, 2016
|
|
774,394
|
|
|
$
|
8.50
|
|
|
3.47
|
|
|
$
|
—
|
|
Options granted
|
|
—
|
|
|
|
|
|
|
|
|
|
|
Options exercised
|
|
—
|
|
|
|
|
|
|
|
|
|
|
Options forfeited
|
|
(10,800
|
)
|
|
$
|
7.22
|
|
|
—
|
|
|
|
|
Options expired
|
|
—
|
|
|
|
|
|
|
|
|
|
|
Options outstanding, September 30, 2016
|
|
763,594
|
|
|
$
|
8.52
|
|
|
2.72
|
|
|
$
|
—
|
|
Exercisable at September 30, 2016
|
|
763,594
|
|
|
$
|
8.52
|
|
|
2.72
|
|
|
|
|
Unvested at September 30, 2016
|
|
—
|
|
|
—
|
|
|
—
|
|
|
$
|
—
|
|
As of
September 30, 2016
, all outstanding stock options had an exercise price above the fair market value of the common stock on that date. There are
no
remaining unamortized amounts to be recognized on these options.
Restricted Stock
The Company incurred additional stock-based compensation expense of approximately
$142,000
and
$61,000
relating to restricted stock granted to its board of directors and certain employees during the
three months ended September 30, 2016
and
2015
, respectively, and approximately
$270,000
and
$192,000
during the
nine months ended September 30, 2016
and
2015
, respectively.
Under the Omnibus Plan,
41,060
shares of restricted stock granted to the Company’s directors during
2014
vested during the
nine months ended September 30, 2015
. The fair value of the restricted stock was approximately
$255,000
based on the closing price of the Company’s shares on the day prior to the grant date. The Company incurred additional stock-based compensation expense of approximately
$0
and
$108,000
, respectively, related to these
41,060
shares of restricted stock during the
three months and nine months
ended
September 30, 2015
.
Under the Omnibus Plan,
41,259
shares of restricted stock granted to the Company’s directors during
2015
vested during the
nine months ended September 30, 2015
. The fair value of the restricted stock was valued at approximately
$255,000
based on the closing price of the Company’s shares on the day prior to the grant date. The Company incurred stock-based compensation expense of approximately
$0
and
$61,000
related to these
41,259
shares of restricted stock during the
three months ended September 30, 2016
and
2015
, respectively, and
$103,000
and
$83,000
during the
nine months ended September 30, 2016
and
2015
, respectively.
During the
nine months ended September 30, 2016
, the Company granted
65,212
shares of restricted stock to its directors under the Omnibus Plan, which are subject to a
one
year vesting period that commenced on the date of grant. The fair value of the unvested restricted stock was valued at approximately
$255,000
based on the closing price of the Company’s shares on the day prior to the grant date. The Company incurred stock-based compensation expense of approximately
$61,000
and
$80,000
related to these
65,212
shares of restricted stock during the
three months and nine months
ended
September 30, 2016
.
During the
nine months ended September 30, 2016
, the Company granted
200,000
shares of restricted stock units to certain employees under the Omnibus Plan, which are subject to a
two
year vesting period that commenced on the date of grant. The fair value of the unvested restricted stock was valued at approximately
$674,000
based on the closing price of the Company’s shares on the day prior to the grant date. The Company incurred stock-based compensation expense of approximately
$81,000
and
$87,000
, related to these
200,000
shares of restricted stock during the
three months and nine months
ended
September 30, 2016
.
The following table presents the activity of the Company’s unvested shares of restricted stock for the
nine months ended September 30, 2016
:
|
|
|
|
Common Unvested Shares
|
Number of
Shares
|
Outstanding January 1, 2016
|
41,259
|
|
Granted
|
265,212
|
|
Vested
|
(41,259
|
)
|
Forfeited
|
—
|
|
Outstanding September 30, 2016
|
265,212
|
|
The aggregate intrinsic value of the awards of
65,212
and
200,000
is
$190,000
and
$586,000
, respectively, and the remaining weighted average life of these awards is
0.67
years and
1.73
years, respectively as of
September 30, 2016
.
Performance Shares
During 2014, the Company awarded
323,500
target performance shares for restricted common stock to its directors and certain employees, of which
150,000
shares were subject to shareholder approval of the Omnibus Plan, which was obtained at the Company’s 2015 annual meeting on May 28, 2015. The issuance of the performance shares was contingent on the Company’s financial performance, as well as the performance of the Company’s common stock through June 30, 2016, with the actual shares to be issued ranging between
0
–
150%
of the target performance shares. During the year ended
December 31, 2015
,
4,000
of the performance shares were forfeited. Given that the Company's financial performance goal was not achieved during the
nine months ended September 30, 2016
, the remaining performance shares have been forfeited. At
September 30, 2015
, the Company determined that it was not probable that the performance conditions would be achieved and
no
related expense was recognized for the
three months and nine months
ended
September 30, 2015
, respectively.
The following table presents the activity of the Company’s performance share awards for the
nine months ended September 30, 2016
:
|
|
|
|
Performance Shares
|
Number of
Shares
|
Outstanding January 1, 2016
|
319,500
|
|
Awarded
|
—
|
|
Vested
|
—
|
|
Forfeited
|
(319,500
|
)
|
Outstanding September 30, 2016
|
—
|
|
Warrants
On February 11, 2011,
three
shareholders received warrants that may be exercised for up to a total of
4,240,521
shares of the Company’s common stock at a weighted average exercise price of
$14.51
per share. The warrants will expire
seven
years after the date of issuance and are exercisable as they are fully vested. At
September 30, 2016
, all
4,240,521
warrants remained outstanding.
In connection with a settlement of class action litigation arising in connection with the investigation by the U.S. Attorney's Office for District of New Hampshire ("USAO") into the Company's now legacy premium finance business (the "USAO Investigation"), the Company issued warrants to purchase
two million
shares of the Company’s stock into an escrow account in April of 2014. The estimated fair value as of the measurement date of such warrants was
$5.4 million
, which is included in stockholders’ equity. The warrants were distributed in October 2014 and have a
five
-year term from the date they were distributed to the class participants with an exercise price of
$10.75
. The Company is obligated to file a registration statement to register the shares underlying the warrants with the SEC if shares of the Company’s common stock have an average daily trading closing price of at least
$8.50
per share for a
45
day period. The warrants will be exercisable upon effectiveness of the registration statement.
(
7
)
Discontinued Operations
On October 25, 2013, the Company sold substantially all of the operating assets comprising its structured settlement business to Majestic Opco LLC pursuant to an Asset Purchase Agreement. No structured settlement receivables were sold and no on-balance sheet liabilities were transferred in connection with the sale. On August 18, 2015, the Company sold its remaining structured settlement receivables asset for
$920,000
to the buyer of its operating assets.
As a result of the sale of its structured settlements business, the Company reclassified its structured settlement business operating results as discontinued operations in the accompanying Consolidated Statements of Operations for all periods presented.
Operating results related to the Company’s discontinued structured settlement business are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
September 30,
|
|
Nine Months Ended
September 30,
|
|
2016
|
|
2015
|
|
2016
|
|
2015
|
Total income (loss)
|
$
|
3
|
|
|
$
|
(13
|
)
|
|
$
|
9
|
|
|
$
|
60
|
|
Total expenses
|
57
|
|
|
134
|
|
|
257
|
|
|
700
|
|
Income (loss) before income taxes
|
(54
|
)
|
|
(147
|
)
|
|
(248
|
)
|
|
(640
|
)
|
Income tax benefit
|
—
|
|
|
34
|
|
|
$
|
—
|
|
|
224
|
|
Net income (loss) from discontinued operations, net of income taxes
|
$
|
(54
|
)
|
|
$
|
(113
|
)
|
|
$
|
(248
|
)
|
|
$
|
(416
|
)
|
(
8
)
Life Settlements (Life Insurance Policies)
The Company accounts for policies it acquires using the fair value method in accordance with ASC 325-30-50
Investments-Other-Investment in Insurance Contracts
. Under the fair value method, the Company recognizes the initial investment at the purchase price. For policies that were relinquished in satisfaction of premium finance loans at maturity, the initial investment is the loan carrying value. For policies purchased in the secondary or tertiary markets, the initial investment is the amount of cash outlay at the time of purchase. At each reporting period, the Company re-measures the investment at fair value in its entirety and recognizes changes in the Statements of Operations in the periods in which the changes occur.
As of
September 30, 2016
and
December 31, 2015
, the Company owned
623
and
632
policies, respectively, with an aggregate estimated fair value of life settlements of
$483.4 million
and
$461.9 million
, respectively.
The weighted average life expectancy calculated based on death benefit of insureds in the policies owned by the Company at
September 30, 2016
was
9.2
years. The following table describes the Company’s life settlements as of
September 30, 2016
(dollars in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
Remaining Life Expectancy (In Years)*
|
Number of
Life Settlement
Contracts
|
|
Estimated Fair
Value
|
|
Face
Value
|
0 - 1
|
5
|
|
|
$
|
18,456
|
|
|
$
|
22,192
|
|
1 - 2
|
14
|
|
|
33,153
|
|
|
50,245
|
|
2 - 3
|
13
|
|
|
33,749
|
|
|
61,450
|
|
3 - 4
|
28
|
|
|
34,899
|
|
|
92,584
|
|
4 - 5
|
35
|
|
|
53,344
|
|
|
158,546
|
|
Thereafter
|
528
|
|
|
309,794
|
|
|
2,568,779
|
|
Total
|
623
|
|
|
$
|
483,395
|
|
|
$
|
2,953,796
|
|
*Based on remaining life expectancy at
September 30, 2016
derived from reports of third party life expectancy providers, and does not indicate the timing of expected death benefits. See Note 14, "Fair Value Measurements" —Life Settlements.
The weighted average life expectancy calculated based on death benefit of insureds in the policies owned by the Company at
December 31, 2015
was
9.9
years. The following table describes the Company’s life settlements as of
December 31, 2015
(dollars in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
Remaining Life Expectancy (In Years)*
|
Number of
Life Settlement
Contracts
|
|
Estimated Fair
Value
|
|
Face
Value
|
0-1
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
1-2
|
12
|
|
|
28,873
|
|
|
42,988
|
|
2-3
|
17
|
|
|
47,272
|
|
|
84,497
|
|
3-4
|
18
|
|
|
24,450
|
|
|
58,154
|
|
4-5
|
31
|
|
|
42,304
|
|
|
124,720
|
|
Thereafter
|
554
|
|
|
319,026
|
|
|
2,668,993
|
|
Total
|
632
|
|
|
$
|
461,925
|
|
|
$
|
2,979,352
|
|
*Based on remaining life expectancy at
December 31, 2015
derived from reports of third party life expectancy providers, and does not indicate the timing of expected death benefits. See Note 14, "Fair Value Measurements" —Life Settlements.
Estimated premiums to be paid for each of the five succeeding fiscal years and thereafter to keep the life insurance policies in force as of
September 30, 2016
, are as follows (in thousands):
|
|
|
|
|
|
|
Remainder of 2016
|
$
|
18,754
|
|
2017
|
81,169
|
|
2018
|
84,039
|
|
2019
|
91,375
|
|
2020
|
95,623
|
|
Thereafter
|
971,246
|
|
|
$
|
1,342,206
|
|
The amount of
$1.34 billion
noted above represents the estimated total future premium payments required to keep the life insurance policies in force during the life expectancies of all the underlying insured lives and does not give effect to projected receipt of death benefits. The estimated total future premium payments could increase or decrease significantly to the extent that insurance carriers increase the cost of insurance on their issued policies or that actual mortalities of insureds differs from the estimated life expectancies.
(
9
)
White Eagle Revolving Credit Facility
Effective
April 29, 2013
, White Eagle entered into a
15
-year revolving credit agreement with LNV Corporation, as initial lender, Imperial Finance & Trading, LLC, as servicer and portfolio manager and CLMG Corp., as administrative agent. Proceeds from the initial advance under the facility were used, in part, to retire a bridge facility and to fund a payment to the lender protection insurance provider to release subrogation rights in certain of the policies pledged as collateral for the White Eagle Revolving Credit Facility. On May 16, 2014, White Eagle Asset Portfolio, LLC converted from a Delaware limited liability company to White Eagle Asset Portfolio, LP, a Delaware limited partnership (the “Conversion”) and all of its ownership interests were transferred to an indirect, wholly-owned Irish subsidiary of the Company. In connection with the Conversion, the White Eagle Revolving Credit Facility was amended and restated among White Eagle, as borrower, Imperial Finance and Trading, LLC, as the initial servicer, the initial portfolio manager and guarantor, Lamington Road Bermuda Ltd., as portfolio manager, LNV Corporation, as initial lender, the other financial institutions party thereto as lenders, and CLMG Corp., as administrative agent for the lenders. On November 9, 2015, the White Eagle Revolving Credit Facility ("White Eagle Amendment") was amended. As amended, the White Eagle Revolving Credit Facility may provide earlier participation in the portfolio cash flows if certain loan to value (“LTV”) ratios are achieved as more fully described below under “Amortization & Distributions.” Additionally, the maximum facility limit was reduced from
$300.0 million
to
$250.0 million
, and will generally be reduced annually by
$25.0 million
beginning on April 29, 2019. Additionally, the interest rate under the facility was increased by
50 basis point
s.
General & Security
. The White Eagle Revolving Credit Facility provides for an asset-based revolving credit facility backed by White Eagle’s portfolio of life insurance policies with an aggregate lender commitment of up to
$250.0 million
, subject to borrowing base availability.
431
life insurance policies with an aggregate death benefit of approximately
$2.2 billion
and an estimated fair value of approximately
$345.5 million
are pledged as collateral under the White Eagle Revolving Credit Facility at
September 30, 2016
. In addition, the equity interests in White Eagle have been pledged under the White Eagle Revolving Credit Facility.
Borrowing Base.
Borrowing availability under the White Eagle Revolving Credit Facility is subject to a borrowing base, which at any time is equal to the lesser of (A) the sum of all of the following amounts that have been funded or are to be funded through the next distribution date (i) the initial advance and all additional advances to acquire additional pledged policies or that are not for ongoing maintenance advances, plus (ii)
100%
of the sum of the ongoing maintenance costs, plus (iii)
100%
of accrued and unpaid interest on borrowings (excluding the rate floor portion described below), plus (iv)
100%
of any other fees and expenses funded and to be funded as approved by the required lenders, less (v) any required payments of principal and interest previously distributed and to be distributed through the next distribution date; (B)
75%
of the valuation of the policies pledged as collateral as determined by the lenders; (C)
50%
of the aggregate face amount of the policies pledged as collateral (excluding certain specified life insurance policies); and (D) the then applicable facility limit. At
September 30, 2016
,
$49.2 million
was undrawn and
$2.7 million
was available to borrow under the White Eagle Revolving Credit Facility. This amount available to borrow is calculated based on and limited to the premium payments and expenses if any, that are due as of the calculation date. In essence, what is available, is what is required to pay expenses and keep the policies in force as of the calculation date.
Amortization & Distributions.
Proceeds from the maturity of the policies pledged as collateral under the White Eagle Revolving Credit Facility are distributed pursuant to a waterfall. After premium payments, fees to service providers and payments of interest, a percentage of the collections from policy proceeds are to be paid to the lenders, which will vary depending on the then LTV ratio as follows: (1) if the LTV is equal to or greater than
50%
, all remaining proceeds will be directed to the lenders to repay the then outstanding principal balance; (2) if the LTV is less than
50%
but greater than or equal to
25%
,
65%
of the remaining proceeds will be directed to the lenders to repay the then outstanding principal balance; or (3) if the LTV is less than
25%
,
35%
of the remaining proceeds will be directed to the lenders to repay the then outstanding principal balance, in each case, with remaining proceeds (“Excess LTV Payments”) directed to White Eagle for so long as the “Net Total Investment Percentage” exceeds
15%
and there are at least
75
policies pledged under the White Eagle Revolving Credit Facility representing
75
distinct insured with any such proceeds to White Eagle decreasing the
$76.1 million
preference amount (the “preference amount”) that would have been distributed to White Eagle prior to the November 9, 2015 amendment upon the pay down of outstanding indebtedness. Following the satisfaction of the remaining preference payment,
50%
of the remaining proceeds will generally be directed to the lenders with the remainder paid to White Eagle and for any unpaid fees to service providers. As of any calculation date, the “Net Total Investment Percentage” is determined by dividing the difference between the preference amount and the aggregate Excess LTV Payments by the outstanding principal amount under the White Eagle Revolving Credit Facility. With respect to approximately
25%
of the face amount of policies pledged as collateral under the White Eagle Revolving Credit Facility, White Eagle has agreed that if policy proceeds that are otherwise due are not paid by an insurance carrier, the foregoing distributions will be altered such that the lenders will receive any “catch-up” payments with respect to amounts that they would have received in the waterfall prior to distributions being made to White Eagle. During the
continuance of events of default or unmatured events of default, the amounts from collections of policy proceeds that might otherwise be paid to White Eagle will instead be held in a designated account controlled by the lenders and may be applied to fund operating and third party expenses, interest and principal, “catch-up” payments or percentage payments that would go to the lenders as described above.
Use of Proceeds.
Generally, ongoing advances may be made for paying premiums on the life insurance policies pledged as collateral and to pay the fees of service providers. Effective with the White Eagle Amendment on November 9, 2015, ongoing advances may no longer be used to pay interest, which will now be paid by White Eagle if there is not otherwise sufficient amounts available from policy proceeds to be distributed to pay interest expense pursuant to the waterfall described above in "Amortization and Distributions." Subsequent advances and the use of proceeds from those advances in respect of newly pledged policies are at the discretion of the lenders.
Interest.
Borrowings under the White Eagle Revolving Credit Facility bear interest at a rate equal to LIBOR or, if LIBOR is unavailable, the base rate, in each case plus an applicable margin of
4.50%
, which was increased from
4.00%
pursuant to the November 9, 2015 amendment, and subject to a rate floor component equal to the greater of LIBOR (or the applicable rate) and
1.5%
. The base rate under the White Eagle Revolving Credit Facility equals the sum of (i) the weighted average of the interest rates on overnight federal funds transactions or, if unavailable, the average of three federal funds quotations received by the Agent plus
0.75%
and (ii)
0.5%
. Based on the loan agreement, the LIBOR portion of the interest rate will re-adjust annually, once the floor has exceeded
1.5%
. The applicable rate will be dependent on the rate at the last business day of the preceding calendar year. The effective rate at
September 30, 2016
and
2015
was
6.0%
and
5.5%
, respectively.
Interest paid during the period is recorded in the Company’s consolidated financial statements. Accrued interest is reflected as a component of the estimated fair value of the White Eagle Revolving Credit Facility debt. Effective with the White Eagle Amendment on November 9, 2015, interest for the applicable margin of
4.50%
is no longer withheld from borrowings by the lender and, therefore,
$2.9 million
was paid by White Eagle during the
three months ended September 30, 2016
compared to interest expense of
$2.3 million
during the
three months ended September 30, 2015
, which included
$1.7 million
withheld from borrowings by the lender and
$634,000
paid by White Eagle. During the
nine months ended September 30, 2016
, approximately
$8.1 million
in interest expense was paid by White Eagle, compared to interest expense of
$6.9 million
for the
nine months ended September 30, 2015
, which included
$5.0 million
withheld from borrowings by the lender and
$1.9 million
paid by White Eagle.
Maturity.
The term of the White Eagle Revolving Credit Facility expires
April 28, 2028
, which is also the scheduled commitment termination date (though the lenders’ commitments to fund borrowings may terminate earlier in an event of default). The lenders’ interests in and rights to a portion of the proceeds of the policies does not terminate with the repayment of the principal borrowed and interest accrued thereon, the termination of the White Eagle Revolving Credit Facility or expiration of the lenders’ commitments.
Covenants/Events of Defaults
. The White Eagle Revolving Credit Facility contains covenants and events of default that are customary for asset-based credit agreements of this type, but also include cross defaults under the servicing, account control, contribution and pledge agreements entered into in connection with the White Eagle Revolving Credit Facility (including in relation to breaches by third parties thereunder), certain changes in law, changes in control of or insolvency or bankruptcy of the Company and relevant subsidiary companies and performance of certain obligations by certain relevant subsidiary companies, White Eagle and third parties. The White Eagle Revolving Credit Facility does not contain any financial covenants, but does contain certain tests relating to asset maintenance, performance and valuation, the satisfaction of which will be determined by the lenders with a high degree of discretion.
Remedies.
The White Eagle Revolving Credit Facility and ancillary transaction documents afford the lenders a high degree of discretion in their selection and implementation of remedies, including strict foreclosure, in relation to any event of default, including a high degree of discretion in determining whether to foreclose upon and liquidate all or any pledged policies, the interests in White Eagle, and the manner of any such liquidation. White Eagle has limited ability to cure events of default through the sale of policies or the procurement of replacement financing.
The Company elected to account for the debt under the White Eagle Revolving Credit Facility in accordance with ASC 820, which includes the
50%
interest in policy proceeds to the lender, using the fair value method. The fair value of the debt is the amount the Company would have to pay to transfer the debt to a market participant in an orderly transaction. The Company calculated the fair value of the debt using a discounted cash flow model taking into account the stated interest rate of the credit facility and probabilistic cash flows from the pledged policies. Considerable judgment is required in interpreting market data to develop the estimates of fair value. Accordingly, the Company’s estimates are not necessarily indicative of the amounts that the Company, or holders of the instruments, could realize in a current market exchange. The most significant assumptions are the
estimates of life expectancy of the insured and the discount rate. The use of different assumptions and/or estimation methodologies could have a material effect on the estimated fair values.
At
September 30, 2016
, the fair value of the outstanding debt was
$182.1 million
and the borrowing base was approximately
$203.5 million
, which includes
$200.8 million
of outstanding principal. Approximately
$2.7 million
was available to borrow under the Facility.
There are no scheduled repayments of principal prior to maturity although payments are due upon the next distribution date following the receipt of death benefits and distributed pursuant to the waterfall as described above. At
September 30, 2016
, approximately
$7.0 million
included in restricted cash was on account with White Eagle waiting distribution through the waterfall.
(
10
)
Red Falcon Revolving Credit Facility
Effective
July 16, 2015
, Red Falcon Trust ("Red Falcon"), a Delaware statutory trust formed by Blue Heron Designated Activity Company ("Blue Heron"), a wholly-owned Irish subsidiary of the Company, entered into a revolving loan and security agreement (together with its ancillary documents, the “Red Falcon Revolving Credit Facility”) with LNV Corporation, as initial lender, the other lenders party thereto from time to time, Imperial Finance & Trading, LLC, as guarantor, Blue Heron as portfolio administrator and CLMG Corp., as administrative agent (the "Agent"). On July 15, 2016, the Company amended its Red Falcon Revolving Credit Facility (the "Red Falcon Amendment"). Pursuant to the amendment,
six
additional policies and additional portions of
20
policies that were previously pledged in part as collateral under the initial credit agreement were pledged for an additional policy advance. Amounts advanced to Red Falcon following effectiveness of the amendment to the credit agreement were approximately
$3.0 million
.
General & Security
. The Red Falcon Revolving Credit Facility provides for a revolving credit facility backed by Red Falcon’s portfolio of life insurance policies with an initial aggregate lender commitment of up to
$110.0 million
, subject to borrowing base availability. As of
September 30, 2016
,
158
life insurance policies owned by Red Falcon with an aggregate death benefit of approximately
$619.7 million
and an estimated fair value of approximately
$130.0 million
are pledged as collateral under the Red Falcon Revolving Credit Facility. In connection with the Red Falcon Revolving Credit Facility, the residual interests in Red Falcon were also pledged.
Borrowing Base & Availability
. Revolving credit borrowings are permitted for a
five
-year period with the loans under the Red Falcon Revolving Credit Facility maturing on July 15, 2022. Borrowing availability under the Red Falcon Revolving Credit Facility is subject to a borrowing base, which at any time is equal to the lesser of (A) the sum of all of the following amounts that have been funded or are to be funded through the next distribution date (i) the initial advance and all additional advances in respect of newly pledged policies that are not for ongoing maintenance advances, plus (ii)
100%
of the sum of the ongoing maintenance costs, less (iii) any required amortization payments previously distributed and to be distributed through the next distribution date; (B)
60%
of the valuation of the policies pledged as collateral as determined by the lenders; (C)
45%
of the aggregate face amount of the policies pledged as collateral; and (D)
$110.0 million
. At
September 30, 2016
,
$48.4 million
was undrawn and
$307,000
was available to borrow under the Red Falcon Revolving Credit Facility. The amount available to borrow is calculated based on and limited to the premium payments and expenses, if any, that are due as of the calculation date. In essence, what is available, is what is required to pay expenses and keep the policies in force as of the calculation date.
Amortization & Distributions.
Proceeds from the policies pledged as collateral under the Red Falcon Revolving Credit Facility are distributed pursuant to a waterfall with, subject to yield maintenance provisions,
5%
of policy proceeds directed to the lenders. Thereafter proceeds are directed to pay fees to service providers and premiums with any remaining proceeds directed to pay outstanding interest and required amortization of
8%
per annum on the greater of the then outstanding balance of the loan or the initial advance. Generally, after payment of interest and required amortization, a percentage of the collections from policy proceeds are to be paid to the lenders, which will vary depending on the then LTV as follows: (1) if the LTV is equal to or greater than
50%
, all remaining proceeds will be directed to the lenders to repay the then outstanding principal balance; (2) if the LTV is less than
50%
but greater than or equal to
25%
,
65%
of the remaining proceeds will be directed to the lenders to repay the then outstanding principal balance; or (3) if the LTV is less than
25%
,
35%
of the remaining proceeds will be directed to the lenders to repay the then outstanding principal balance, in each case, with remaining proceeds directed to Red Falcon. To the extent there are not sufficient remaining proceeds in the waterfall to satisfy the amount of required interest and amortization then due, Red Falcon will be required to pay any such shortfall amount.
Initial Advance and Use of Proceeds.
Amounts advanced to Red Falcon following effectiveness of the Red Falcon Revolving Credit Facility were approximately
$54.0 million
with certain of the proceeds used to pay transaction expenses and to purchase the policies pledged as collateral under the Red Falcon Revolving Credit Facility from certain affiliates of the Company, who then made a distribution to the Company that was used to redeem the Company's
12.875%
Secured Notes. Generally, ongoing advances may be made for paying premiums on the life insurance policies pledged as collateral, and to pay the fees of service providers. Subsequent advances in respect of newly pledged policies are at the discretion of the lenders.
Interest.
Borrowings under the Red Falcon Revolving Credit Facility bear interest at a rate equal to LIBOR or, if LIBOR is unavailable, the base rate, in each case plus an applicable margin of
4.50%
and subject to a rate floor of
1.0%
. The base rate under the Red Falcon Revolving Credit Facility equals the sum of (i) the weighted average of the interest rates on overnight federal funds transactions or, if unavailable, the average of three federal funds quotations received by the Agent plus
0.75%
and (ii)
0.5%
. Based on the loan agreement, the LIBOR portion of the interest rate will re-adjust monthly, once the floor has exceeded
1.0%
. The applicable rate will be dependent on the rate at the last business day of the immediately preceding calendar month. During the
nine months ended September 30, 2016
the LIBOR floor increased from
1.0%
to
1.56%
at
September 30, 2016
. The effective interest rate at
September 30, 2016
was
6.06%
.
Interest expense for the cash portion of interest paid during the period is recorded in the Company’s consolidated financial statements. Accrued interest is reflected as a component of the estimated fair value of the Red Falcon Revolving Credit Facility.
Interest expense on the facility was
$1.3 million
for the
three months ended September 30, 2016
and
$3.2 million
for the
nine months ended September 30, 2016
as compared to
$3.8 million
for the three and nine month period ended
September 30, 2015
. Interest expense for the three and nine month period ended
September 30, 2015
included
$3.2 million
in debt issuance costs which were not capitalized as a result of the Company electing the fair value option for valuing this debt compared to
$297,000
during the same period ending
2016
associated with the Red Falcon Amendment.
Maturity.
The term of the Red Falcon Revolving Credit Facility expires
July 15, 2022
.
Covenants/Events of Defaults
. The Red Falcon Revolving Credit Facility contains covenants and events of default, including those that are customary for asset-based credit facilities of this type and including cross defaults under the servicing, portfolio management and sales agreements entered into in connection with the Red Falcon Revolving Credit Facility, changes in control of or insolvency or bankruptcy of the Company and relevant subsidiary companies and performance of certain obligations by certain relevant subsidiary companies, Red Falcon and third parties. The Red Falcon Revolving Credit Facility does not contain any financial covenants, but does contain certain tests relating to asset maintenance, performance and valuation with determinations as to the satisfaction of such tests involving determinations made by the lenders with a high degree of discretion.
The Company elected to account for the debt under the Red Falcon Revolving Credit Facility using the fair value method in accordance with ASC 820. The fair value of the debt is the amount the Company would have to pay to transfer the debt to a market participant in an orderly transaction. The Company calculated the fair value of the debt using a discounted cash flow model taking into account the stated interest rate of the credit facility and probabilistic cash flows from the pledged policies. Considerable judgment is required in interpreting market data to develop the estimates of fair value. Accordingly, the Company’s estimates are not necessarily indicative of the amounts that the Company, or holders of the instruments, could realize in a current market exchange. The most significant assumptions are the estimates of life expectancy of the insured and the discount rate. The use of different assumptions and/or estimation methodologies could have a material effect on the estimated fair values.
At
September 30, 2016
, the fair value of the outstanding debt was
$61.5 million
and the borrowing base was approximately
$61.9 million
, which includes
$61.6 million
of outstanding principal. Approximately
$307,000
was available to borrow under the Facility.
(
11
)
8.50% Senior Unsecured Convertible Notes
In February 2014, the Company issued
$70.7 million
in an aggregate principal amount of
8.50%
senior unsecured convertible notes due
2019
. The Convertible Notes were issued pursuant to an indenture dated
February 21, 2014
, between the Company and U.S. Bank National Association, as trustee.
Two
members of the Company’s Board of Directors, Messrs. Dakos and Goldstein, are affiliated with Bulldog Investors, LLC, who purchased
$9.2 million
of the Convertible Notes.
The Convertible Notes are general senior unsecured obligations and rank equally in right of payment with all of the Company’s other existing and future senior unsecured indebtedness. The Convertible Notes are effectively subordinate to all of the Company’s secured indebtedness to the extent of the value of the assets collateralizing such indebtedness. The Convertible Notes are not guaranteed by the Company’s subsidiaries.
The maturity date of the Convertible Notes is
February 15, 2019
. The Convertible Notes accrue interest at the rate of
8.50%
per annum on the principal amount of the Convertible Notes, payable
semi-annually in arrears on August 15 and February 15 of each year
.
The Convertible Notes are convertible into shares of common stock at any time prior to the close of business on the second scheduled trading day immediately preceding the maturity date. Initially, the Convertible Notes were convertible into shares of common stock at a conversion rate of
147.9290
shares of common stock per $1,000 principal amount of Convertible Notes (equivalent to a conversion price of
$6.76
per share of common stock). In the second quarter of 2015, the conversion rate was adjusted to
151.7912
shares of common stock per $1,000 principal amount of Convertible Notes (equivalent to a conversion price of
$6.59
per share of common stock) in connection with anti-dilution adjustment triggered by a rights offering that resulted in the issuance of
6,688,433
shares of the Company’s common stock.
The Company may not redeem the Convertible Notes prior to
February 15, 2017
. On and after such date, and prior to the maturity date, the Company may redeem for cash all, but not less than all, of the Convertible Notes if the last reported sale price of the Company’s common stock equals or exceeds
130%
of the applicable conversion price for at least
20
trading days during the
30
consecutive trading day period ending on the trading day immediately prior to the date the Company delivers notice of the redemption. The redemption price will be equal to
100%
of the principal amount of the Convertible Notes, plus any accrued and unpaid interest to, but excluding, the redemption date. In addition, if the Company calls the Convertible Notes for redemption, a make-whole fundamental charge will be deemed to occur. As a result, the Company will, in certain circumstances, increase the conversion rate by a number of additional shares of common stock for holders who convert their notes prior to the redemption date.
The Company determined that an embedded conversion option existed in the Convertible Notes that was required to be separately accounted for as a derivative under ASC 815, which required the Company to bifurcate the embedded conversion option, record it as a liability at fair value and record a debt discount by an equal amount. Upon receipt of shareholder approval to issue shares of common stock upon conversion of the Convertible Notes in an amount that exceeded applicable New York Stock Exchange limits for issuances without shareholder approval, the Company reclassified the embedded conversion derivative liability to equity. The Convertible Notes are recorded at accreted value and will continue to be accreted up to the par value of the Convertible Notes at maturity.
As of
September 30, 2016
, the carrying value of the Convertible Notes was
$59.5 million
, net of unamortized debt discounts and origination costs of
$9.8 million
and
$1.4 million
, respectively. These are being amortized over the remaining life of the Convertible Notes using the effective interest method.
During the
three months ended September 30, 2016
, the Company recorded
$2.5 million
of interest expense on the Convertible Notes, including
$1.5 million
,
$838,000
and
$124,000
from interest, amortizing debt discounts and origination costs, respectively, compared to interest expense of
$2.3 million
during the
three months ended September 30, 2015
, which included
$1.5 million
,
$711,000
and
$105,000
from interest, amortizing debt discounts and origination costs, respectively.
During the
nine months ended September 30, 2016
, the Company recorded
$7.2 million
of interest expense on the Convertible Notes, including
$4.5 million
,
$2.4 million
and
$351,000
from interest, amortizing debt discounts and origination costs, respectively compared to interest expense of
$6.8 million
during the
nine months ended September 30, 2015
, which included
$4.5 million
,
$2.0 million
and
$294,000
from interest, amortizing debt discounts and origination costs, respectively.
During the
nine months ended September 30, 2016
the Company adopted ASU No. 2015-03, "Interest-Imputation of Interest (Subtopic 835-30)." This standard provides guidance on the balance sheet presentation of debt issuance cost, discount and premiums. See Note 2 "Principles of Consolidation and Basis of Presentation."
(
12
) 15.00% Senior Secured Notes
On March 11, 2016 (the "Initial Closing Date"), the Company, as issuer, entered into an indenture with Wilmington Trust Company, as indenture trustee. The indenture provides for the issuance of up to
$30.0 million
in senior secured notes (the "Senior Secured Notes"), of which approximately
$21.2 million
were issued on the Initial Closing Date with an additional
$8.8
million
issued on March 24, 2016. The Senior Secured Notes were purchased in private transactions exempt from the registration requirements of the Securities Act of 1933, as amended, under the note purchase agreements with certain accredited investors and/or non U.S. persons, including certain members of the Company's board of directors, management and their affiliates, who purchased approximately
$3.3 million
of the Senior Secured Notes issued on the Initial Closing Date.
Interest on the Senior Secured Notes accrues at
15.0%
per annum payable quarterly and all Senior Secured Notes will mature on September 14, 2018 (the "Maturity Date"). The Senior Secured Notes may be optionally redeemed in full at any time and must be redeemed in full upon additional issuances of debt by Emergent Capital, Inc., in each case, at a price equal to
100%
of the principal amount redeemed plus (i) accrued and unpaid interest on the Senior Secured Notes redeemed up to the date of redemption, and (ii) the present value, as of the date of redemption of all remaining interest payments to the Maturity Date using a discount rate equal to the yield to maturity at the time of computation on the US treasury security with a constant maturity most nearly equal to the period from the redemption date to the Maturity Date plus
50
basis points. Upon a change of control, the Company will be required to make an offer to holders of the Senior Secured Notes to repurchase the Senior Secured Notes at a price equal to
107.5%
of their principal amount.
The Senior Secured Notes contain negative covenants restricting additional debt incurred by Emergent Capital, Inc., creation of liens on the collateral securing the Senior Secured Notes, and restrictions on dividends and stock repurchases. The Senior Secured Notes are secured by settlement proceeds, if any, received from certain litigation involving the Company, certain notes issued to the Company and a pledge of
65%
of the equity interests in Blue Heron Designated Activity Company, OLIPP IV, LLC and Red Reef Alternative Investments, LLC.
During the
nine months ended September 30, 2016
, the Company adopted ASU No. 2015-03, "Interest - Imputation of Interest (Subtopic 835-30)." This standard provides guidance on the balance sheet presentation of debt issuance cost, discount and premiums.
As of
September 30, 2016
, the carrying value of the Senior Secured Notes was
$30.0 million
, net of unamortized debt origination costs of
$791,000
, which is being amortized over the remaining life of the Senior Secured Notes using the effective interest method.
The Company recorded approximately
$1.2 million
of interest expense on the Senior Secured Notes, which includes
$1.2 million
of interest and
$84,000
of amortizing debt issuance costs, during the
three months ended September 30, 2016
.
The Company recorded approximately
$2.8 million
of interest expense on the Senior Secured Notes, which includes
$2.5 million
of interest and
$260,000
of amortizing debt issuance costs, during the
nine months ended September 30, 2016
.
(
13
)
12.875% Senior Secured Notes
On November 10, 2014 and January 21, 2015, the Company issued an aggregate of
$50.0 million
in
12.875%
Senior Secured Notes (the "Secured Notes") in
two
$25.0 million
tranches. The Secured Notes were issued at
96%
of their face amount. Fees and expenses paid by the Company in connection with the initial and subsequent issuances were approximately
$1.8 million
and
$305,000
, respectively.
All Secured Notes issued under the indenture were scheduled to mature on
November 10, 2017
. On July 16, 2015, the Company redeemed all of the outstanding Secured Notes at
106%
of their principal amount plus interest up to November 10, 2015. Approximately
$8.8 million
was expensed as extinguishment related to the early repayment of the facility in July 2015, including
$5.2 million
,
$171,000
,
$1.7 million
and
$1.7 million
related to interest and prepayment penalties, unused fees, a write off of debt discounts and write off of issuance costs, respectively.
For the
nine months ended September 30, 2015
, the Company recorded
$4.0 million
of interest expense on the Secured Notes, including
$3.2 million
,
$265,000
,
$264,000
and
$277,000
for interest, unused fees, amortizing debt discounts and issuance costs, respectively.
(
14
)
Fair Value Measurements
The Company carries life settlements and debt under the Revolving Credit Facilities at fair value as shown in the consolidated balance sheets. Fair value is defined as an exit price, representing the amount that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. As such, fair value is a market based measurement that should be determined based on assumptions that market participants would use in pricing an asset or liability. Fair value measurements are classified based on the following fair value hierarchy:
Level 1
-Valuation is based on unadjusted quoted prices in active markets for identical assets and liabilities that are accessible at the reporting date. Since valuations are based on quoted prices that are readily and regularly available in an active market, valuation of these products does not entail a significant degree of judgment.
Level 2
-Valuation is determined from pricing inputs that are other than quoted prices in active markets that are either directly or indirectly observable as of the reporting date. Observable inputs include quoted prices for similar assets or liabilities in active markets, quoted prices for identical or similar assets or liabilities in markets that are not active, and interest rates and yield curves that are observable at commonly quoted intervals.
Level 3
-Valuation is based on inputs that are both significant to the fair value measurement and unobservable. Level 3 inputs include situations where there is little, if any, market activity for the financial instrument. The inputs into the determination of fair value generally require significant management judgment or estimation.
Assets and liabilities measured at fair value on a recurring basis
The balances of the Company’s assets measured at fair value on a recurring basis as of
September 30, 2016
, are as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Level 1
|
|
Level 2
|
|
Level 3
|
|
Total
Fair Value
|
Assets:
|
|
|
|
|
|
|
|
Life settlements
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
483,395
|
|
|
$
|
483,395
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
483,395
|
|
|
$
|
483,395
|
|
The balances of the Company’s liabilities measured at fair value on a recurring basis as of
September 30, 2016
are as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Level 1
|
|
Level 2
|
|
Level 3
|
|
Total
Fair Value
|
Liabilities:
|
|
|
|
|
|
|
|
White Eagle Revolving Credit Facility
|
$
|
—
|
|
|
$
|
—
|
|
|
182,128
|
|
|
$
|
182,128
|
|
Red Falcon Revolving Credit Facility
|
—
|
|
|
—
|
|
|
61,451
|
|
|
61,451
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
243,579
|
|
|
$
|
243,579
|
|
The balances of the Company’s assets measured at fair value on a recurring basis as of
December 31, 2015
, are as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Level 1
|
|
Level 2
|
|
Level 3
|
|
Total Fair
Value
|
Assets:
|
|
|
|
|
|
|
|
Life settlements
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
461,925
|
|
|
$
|
461,925
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
461,925
|
|
|
$
|
461,925
|
|
The balances of the Company’s liabilities measured at fair value on a recurring basis as of
December 31, 2015
, are as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Level 1
|
|
Level 2
|
|
Level 3
|
|
Total Fair
Value
|
Liabilities:
|
|
|
|
|
|
|
|
White Eagle Revolving Credit Facility
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
169,131
|
|
|
$
|
169,131
|
|
Red Falcon Revolving Credit Facility
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
55,658
|
|
|
$
|
55,658
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
224,789
|
|
|
$
|
224,789
|
|
The Company categorizes its investment in life settlement portfolio in two classes, non-premium financed and premium financed. In considering the categories, historically, it has generally believed that market participants would require a lower risk premium for policies that were non-premium financed, while a higher risk premium would be required for policies that were premium financed; the Company believes that this risk premium has been declining.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
($ in thousands)
|
Quantitative Information about Level 3 Fair Value Measurements
|
|
|
Fair Value
at 9/30/16
|
|
Aggregate
death benefit
at 9/30/16
|
|
Valuation Technique
|
|
Unobservable Input (s)
|
|
Range
(Weighted Average)
|
Non-premium financed
|
$
|
103,219
|
|
|
$332,588
|
|
Discounted cash flow
|
|
Discount rate
|
|
15.00%
|
-
|
21.00%
|
|
|
|
|
|
|
|
Life expectancy evaluation
|
|
(5.8 years)
|
Premium financed
|
$
|
380,176
|
|
|
$2,621,208
|
|
Discounted cash flow
|
|
Discount rate
|
|
16.00%
|
-
|
22.50%
|
|
|
|
|
|
|
|
Life expectancy evaluation
|
|
(9.7 years)
|
Life settlements
|
$
|
483,395
|
|
|
$2,953,796
|
|
Discounted cash flow
|
|
Discount rate
|
|
16.52%
|
|
|
|
|
|
|
|
Life expectancy evaluation
|
|
(9.2 years)
|
White Eagle Revolving Credit Facility
|
$
|
182,128
|
|
|
$2,167,370
|
|
Discounted cash flow
|
|
Discount rate
|
|
20.06%
|
|
|
|
|
|
|
|
Life expectancy evaluation
|
|
(9.2 years)
|
Red Falcon Revolving Credit Facility
|
$
|
61,451
|
|
|
$619,652
|
|
Discounted cash flow
|
|
Discount Rate
|
|
11.20%
|
|
|
|
|
|
|
|
Life expectancy evaluation
|
|
(8.6 years)
|
Following is a description of the methodologies used to estimate the fair values of assets and liabilities measured at fair value on a recurring basis and within the fair value hierarchy.
Life settlements
—The Company has elected to account for the life settlement policies it acquires using the fair value method. The Company uses a present value technique to estimate the fair value of its life settlements, which is a Level 3 fair value measurement as the significant inputs are unobservable and require significant management judgment or estimation. The Company currently uses a probabilistic method of valuing life insurance policies, which the Company believes to be the preferred valuation method in the industry. The most significant assumptions are the estimates of life expectancy of the insured and the discount rate.
The Company provides medical records for each insured to independent life expectancy providers (each, an "LE provider"). Each LE provider reviews and analyzes the medical records and identifies all medical conditions it feels are relevant to the life expectancy determination of the insured. Debits and credits are assigned by each LE provider to the individual’s health based on identified medical conditions, which are derived from the experience of mortality attributed to relevant conditions in the portfolio of lives that the LE provider monitors. The health of the insured is summarized by the LE provider into a life assessment of the individual’s life expectancy expressed both in terms of months and in mortality factor. The mortality factor represents the degree to which the given life can be considered more or less impaired than a life having similar characteristics (e.g. gender, age, smoking, etc.). For example, a standard insured (the average life for the given mortality table) would carry a mortality rating of
100%
. A similar but impaired life bearing a mortality rating of
200%
would be considered to have twice the chance of dying earlier than the standard life relative to the LE provider’s population. Since each provider’s mortality factor is based on its own mortality table, the Company calculates its own factors to apply to the table selected by the Company.
The Company calculates mortality factors so that when applied to the mortality table selected by the Company, the resulting LE equals the LE provided by each LE provider. The resulting mortality factors are then blended to determine a factor for each insured.
A mortality curve is then generated based on the calculated mortality factors and the rates from the Company selected mortality table to generate the best estimated probabilistic cash flow stream. The net present value of the cash flows is then calculated to determine the policy value.
If the insured dies earlier than expected, the return will be higher than if the insured dies when expected or later than expected. The calculation allows for the possibility that if the insured dies earlier than expected, the premiums needed to keep the policy in force will not have to be paid. Conversely, the calculation also considers the possibility that if the insured lives longer than expected, more premium payments will be necessary.
Since the quarter ended September 30, 2012, and prior to June 30, 2016, the Company used the 2008 Valuation Basic tables, smoker distinct ("2008 VBT"), mortality tables developed by the U.S. Society of Actuaries (the "SOA"). The mortality tables are created based on the expected rates of death among different groups categorized by factors such as age and gender.
During 2015, the U.S. Society of Actuaries released new versions of the Valuation Basic Tables, the ("2015 VBT"). The 2015 VBT has a significant increase in exposure and number of claims over the 2008 VBT and is believed to be a better fit for the life settlement industry and is becoming more widely accepted. During the
nine months ended September 30, 2016
, the Company changed its valuation technique and decided to adopt the 2015 VBT, smoker and gender distinct tables, to determine the value of the policies. The table shows lower mortality rates in the earlier select periods at most ages, so while the Company continues to fit the life expectancies from the LE providers to the 2015 VBT, the change in the mortality curve changes the timing of the Company’s expected cash flow streams. The resulting impact is approximately
$17.6 million
reduction in the fair value of our life settlements.
Future changes in the life expectancies could have a material adverse effect on the fair value of the Company’s life settlements, which could have a material adverse effect on its business, financial condition and results of operations
Life expectancy sensitivity analysis
If all of the insured lives in the Company’s life settlement portfolio live six months shorter or longer than the life expectancies provided by these third parties, the change in estimated fair value would be as follows (dollars in thousands):
|
|
|
|
|
|
|
|
|
Life Expectancy Months Adjustment
|
Value
|
|
Change in Value
|
+6
|
$
|
403,498
|
|
|
$
|
(79,897
|
)
|
-
|
$
|
483,395
|
|
|
—
|
|
-6
|
$
|
568,760
|
|
|
$
|
85,365
|
|
Discount rate
The discount rate incorporates current information about market interest rates, the credit exposure to the insurance company that issued the life insurance policy and our estimate of the risk premium an investor in the policy would require.
The Company re-evaluates its discount rates at the end of every reporting period in order to reflect the estimated discount rates that could reasonably be used in a market transaction involving the Company’s portfolio of life insurance policies. In doing so, the Company relies on management insight, engages third party consultants to corroborate its assessment, engages in discussions with other market participants and extrapolates the discount rate underlying actual sales of policies.
At one time, due to the Company’s association with the USAO Investigation and certain civil litigation involving the Company, the Company believed that, when given the choice to invest in a policy that was associated with the Company’s premium finance business and a similar policy without such an association, all else being equal, an investor would have generally opted to invest in the policy that was not associated with the Company’s premium finance business. However, since the Company entered into a non-prosecution agreement, investors have required less of a risk premium to transact in policies associated with the Company’s legacy premium finance business. With passage of time, and resolution of litigations, the Company now believes investors no longer require a greater risk premium for policies associated with the Company's premium finance business than the risk premium otherwise required for policies that were premium financed. In general, the Company believes that the risk premium an investor would require to transact in a policy that has been premium financed versus a policy without premium financing is lessening in the current market environment and further expects that, with the passage of time, investors will continue to require less of a risk premium to transact in policies associated that had been premium financed.
Credit exposure of insurance company
The Company considers the financial standing of the issuer of each life insurance policy. Typically, we seek to hold policies issued by insurance companies that are rated investment grade by the top three credit rating agencies. At
September 30, 2016
, the Company had
18
life insurance policies issued by
two
carriers that were rated non-investment grade as of that date. In order to compensate a market participant for the perceived credit and challenge risks associated with these policies, the Company applied an additional 300 basis point risk premium.
The following table provides information about the life insurance issuer concentrations that exceed 10% of total death benefit and 10% of total fair value of the Company’s life settlements as of
September 30, 2016
:
|
|
|
|
|
|
|
|
|
|
|
Carrier
|
Percentage of
Total
Fair Value
|
|
Percentage of
Total Death
Benefit
|
|
Moody's
Rating
|
|
S&P
Rating
|
Transamerica Life Insurance Company
|
18.3
|
%
|
|
20.6
|
%
|
|
A1
|
|
AA-
|
Lincoln National Life Insurance Company
|
21.7
|
%
|
|
19.2
|
%
|
|
A1
|
|
AA-
|
Estimated risk premium
As of
September 30, 2016
, the Company owned
623
policies with an estimated fair value of
$483.4 million
. Of these
623
policies,
539
were previously premium financed and are valued using discount rates that range from
16.00%
to
22.50%
. The remaining
84
policies, which are non-premium financed, are valued using discount rates that range from
15.00%
to
21.00%
. As of
September 30, 2016
, the weighted average discount rate calculated based on death benefit used in valuing the policies in the Company’s life settlement portfolio was
16.52%
.
The discount rate incorporates current information about market interest rates, the credit exposure to the insurance company that issued the life insurance policy and our estimate of the risk premium an investor in the policy would require. The extent to which the fair value could vary in the near term has been quantified by evaluating the effect of changes in the weighted average discount rate on the death benefit used to estimate the fair value. If the weighted average discount rate was increased or decreased by 1/2 of 1% and the other assumptions used to estimate fair value remained the same, the change in estimated fair value would be as follows (dollars in thousands):
Market interest rate sensitivity analysis
|
|
|
|
|
|
|
|
|
|
|
|
Weighted Average Rate Calculated Based on
|
|
|
|
|
|
Death Benefit
|
Rate Adjustment
|
|
Value
|
|
Change in Value
|
16.02%
|
-0.50%
|
|
|
$
|
496,625
|
|
|
$
|
13,230
|
|
16.52%
|
—
|
|
|
$
|
483,395
|
|
|
$
|
—
|
|
17.02%
|
+0.50%
|
|
|
$
|
470,722
|
|
|
$
|
(12,673
|
)
|
Future changes in the discount rates we use to value life insurance policies could have a material effect on the yield on life settlement transactions, which could have a material adverse effect on our business, financial condition and results of our operations.
At the end of each reporting period we re-value the life insurance policies using our valuation model in order to update our estimate of fair value for investments in policies held on our balance sheet. This includes reviewing our assumptions for discount rates and life expectancies as well as incorporating current information for premium payments and the passage of time.
White Eagle Revolving Credit Facility
— In connection with the White Eagle Revolving Credit Facility,
431
policies are pledged by White Eagle to serve as collateral for its obligations under the facility. Absent an event of default under the White Eagle Revolving Credit Facility, ongoing borrowings will be used to pay the premiums on these policies and certain approved third party expenses. As more fully described in Note 9, "White Eagle Revolving Credit Facility," proceeds from the policies pledged as collateral will be distributed pursuant to a waterfall with
50%
of the proceeds remaining following the Excess LTV Payments and/or preference amount, as the case may be, being directed to the lenders with the remainder paid to White Eagle. We have elected to account for this long-term debt, which includes the lender’s interest in policy proceeds, using the fair value method. The fair value of the debt is the amount the Company would have to pay to transfer the debt to a market participant in an orderly transaction. We calculated the fair value of the debt using a discounted cash flow model taking into account the stated interest rate of the White Eagle Revolving Credit Facility and probabilistic cash flows from the pledged policies. Accordingly, our estimates are not necessarily indicative of the amounts that we, or holders of the instruments, could realize in a current market exchange. The most significant assumptions are the estimates of life expectancy of the insured and the discount rate. The use of different assumptions and/or estimation methodologies could have a material effect on the estimated fair values.
During the
nine months ended September 30, 2016
, the Company changed its valuation technique by adopting the 2015 VBT, smoker and gender distinct tables, to determine the value of the life insurance policies pledged as collateral in the facility.
The table shows lower mortality rates in the earlier select periods at most ages, so while the Company continues to fit the life expectancies from the LE providers to the 2015 VBT, the change in the mortality curve changes the timing of the Company’s expected cash flow streams, which resulted in an increase in projected borrowings. The resulting impact is a positive change in fair value of the White Eagle Revolving Credit Facility of approximately
$14.7 million
.
Life expectancy sensitivity analysis of the White Eagle Revolving Credit Facility
A considerable portion of the fair value of the White Eagle Revolving Credit Facility is determined by the timing of receipt of future policy proceeds. Should life expectancies lengthen such that policy proceeds are collected further into the future, the fair value of this debt will decline. Conversely, should life expectancies shorten, the fair value of this debt will increase. Considerable judgment is required in interpreting market data to develop the estimates of fair value.
If all of the insured lives in the life settlement portfolio pledged under the White Eagle Revolving Credit Facility live six months shorter or longer than the life expectancies used to calculate the estimated fair value of the White Eagle Revolving Credit Facility debt, the change in estimated fair value would be as follows (dollars in thousands):
|
|
|
|
|
|
|
|
|
Life Expectancy Months Adjustment
|
Fair Value of White Eagle
Revolving Credit
Facility
|
|
Change in Value
|
+6
|
$
|
152,558
|
|
|
$
|
(29,570
|
)
|
|
$
|
182,128
|
|
|
—
|
|
-6
|
$
|
214,421
|
|
|
$
|
32,293
|
|
Future changes in the life expectancies could have a material effect on the fair value of the White Eagle Revolving Credit Facility, which could have a material adverse effect on its business, financial condition and results of operations.
Discount rate of the White Eagle
Revolving Credit Facility
The discount rate incorporates current information about market interest rates, credit exposure to insurance companies and the Company’s estimate of the return a lender lending against the policies would require.
Market interest rate sensitivity analysis of the White Eagle Revolving Credit Facility
The extent to which the fair value of the White Eagle Revolving Credit Facility could vary in the near term has been quantified by evaluating the effect of changes in the weighted average discount. If the weighted average discount rate were increased or decreased by
1/2 of 1% and the other assumptions used to estimate fair value remained the same, the change in estimated fair value of the White Eagle Revolving Credit Facility as of
September 30, 2016
would be as follows (dollars in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
Discount Rate
|
Rate Adjustment
|
|
Fair Value of White Eagle
Revolving Credit
Facility
|
|
Change in Value
|
19.56%
|
-0.50
|
%
|
|
$
|
186,485
|
|
|
$
|
4,357
|
|
20.06%
|
—
|
|
|
$
|
182,128
|
|
|
$
|
—
|
|
20.56%
|
+0.50
|
%
|
|
$
|
177,933
|
|
|
$
|
(4,195
|
)
|
Future changes in the discount rates could have a material effect on the fair value of the White Eagle Revolving Credit Facility, which could have a material adverse effect on its business, financial condition and results of its operations.
At
September 30, 2016
, the fair value of the debt was
$182.1 million
and the outstanding principal was approximately
$200.8 million
.
Red Falcon Revolving Credit Facility
— In connection with the Red Falcon Revolving Credit Facility,
158
policies are pledged by Red Falcon to serve as collateral for its obligations under the facility. Proceeds from the policies pledged as collateral under the Red Falcon Credit Facility are distributed pursuant to a waterfall with, subject to yield maintenance provisions,
5%
of policy proceeds directed to the lenders. Thereafter proceeds are directed to pay fees to service providers and premiums with any remaining proceeds directed to pay outstanding interest and required amortization of
8%
per annum on the
loan. Generally, after payment of interest and required amortization, a percentage of the collections from policy proceeds are to be paid to the lenders to repay the then outstanding principal balance, which will vary depending on the then loan to value ratio as more fully described in Note 10, "Red Falcon Revolving Credit Facility."
The Company has elected to account for this long-term debt using the fair value method. The fair value of the debt is the amount the Company would have to pay to transfer the debt to a market participant in an orderly transaction. The Company calculated the fair value of the debt using a discounted cash flow model taking into account the stated interest rate of the Red Falcon Revolving Credit Facility and probabilistic cash flows from the pledged policies. Accordingly, the Company’s estimates are not necessarily indicative of the amounts that the Company, or holders of the instruments, could realize in a current market exchange. The most significant assumptions are the estimates of life expectancy of the insured and the discount rate. The use of different assumptions and/or estimation methodologies could have a material effect on the estimated fair values.
During the
nine months ended September 30, 2016
, the Company changed its valuation technique by adopting the 2015 VBT, smoker and gender distinct tables, to determine the value of the life insurance policies pledged as collateral in the facility. The table shows lower mortality rates in the earlier select periods at most ages, so while the Company continues to fit the life expectancies from the LE providers to the 2015 VBT, the change in the mortality curve changes the timing of the Company’s expected cash flow streams, which resulted in an increase in projected borrowings. The resulting impact is a positive change in fair value of the Red Falcon Revolving Credit Facility of approximately
$1.0 million
.
Life expectancy sensitivity analysis of the Red Falcon Revolving Credit Facility
A considerable portion of the fair value of the Red Falcon Revolving Credit Facility is determined by the timing of receipt of future policy proceeds. Should life expectancies lengthen such that policy proceeds are collected further into the future, the fair value of this debt will decline. Conversely, should life expectancies shorten; the fair value of this debt will increase. Considerable judgment is required in interpreting market data to develop the estimates of fair value.
If all of the insured lives in the life settlement portfolio pledged under the Red Falcon Credit Facility live six months shorter or longer than the life expectancies used to calculate the estimated fair value of the Red Falcon Revolving Credit Facility, the change in estimated fair value would be as follows (dollars in thousands):
|
|
|
|
|
|
|
|
|
Life Expectancy Months Adjustment
|
Fair Value of Red Falcon
Revolving Credit
Facility
|
|
Change in Value
|
+6
|
$
|
58,820
|
|
|
$
|
(2,631
|
)
|
|
$
|
61,451
|
|
|
—
|
|
-6
|
$
|
63,718
|
|
|
$
|
2,267
|
|
Future changes in the life expectancies could have a material effect on the fair value of the Red Falcon Revolving Credit Facility, which could have a material adverse effect on its business, financial condition and results of operations.
Discount rate of the Red Falcon Revolving Credit Facility
The discount rate incorporates current information about market interest rates, credit exposure to insurance companies and the Company’s estimate of the return a lender lending against the policies would require.
Market interest rate sensitivity analysis of the Red Falcon Revolving Credit Facility
The extent to which the fair value of the Red Falcon Revolving Credit Facility could vary in the near term has been quantified by evaluating the effect of changes in the weighted average discount. If the weighted average discount rate were increased or decreased by 1/2 of 1% and the other assumptions used to estimate fair value remained the same, the change in estimated fair value of the Red Falcon Revolving Credit Facility as of
September 30, 2016
would be as follows (dollars in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
Discount Rate
|
Rate Adjustment
|
|
Fair Value of Red Falcon
Revolving Credit
Facility
|
|
Change in Value
|
10.70%
|
-0.50
|
%
|
|
$
|
60,542
|
|
|
$
|
(909
|
)
|
11.20%
|
—
|
|
|
$
|
61,451
|
|
|
$
|
—
|
|
11.70%
|
+0.50
|
%
|
|
$
|
62,382
|
|
|
$
|
931
|
|
Future changes in the discount rate, either positive or negative, could have a material effect on the fair value of the Red Falcon Revolving Credit Facility, which could have a material effect on its business, financial condition and results of its operations.
At
September 30, 2016
, the fair value of the debt was
$61.5 million
and the outstanding principal was approximately
$61.6 million
.
Convertible Notes
—The Company determined that an embedded conversion option in the Convertible Notes was required to be separately accounted for as a derivative under Accounting Standards Codification 815,
Derivatives and Hedging
("ASC 815")
.
ASC 815 required the Company to bifurcate the embedded conversion option and record it as a liability at fair value and reduce the debt liability by a corresponding discount of an equivalent amount. The Company used a Black Scholes pricing model that incorporates present valuation techniques and reflect both the time value and the intrinsic value of the embedded conversion option to approximate the fair value of the conversion derivative liability at the end of each reporting period. This model required assumptions as to expected volatility, dividends, terms, and risk free rates.
In accordance with ASC 815, upon receipt of shareholder approval the Company reclassified the embedded derivative to stockholders’ equity along with unamortized transaction costs proportionate to the allocation of the initial debt discount and the principal amount of the Convertible Notes. The Convertible Notes continue to be recorded at accreted value up to the par value of the Convertible Notes at maturity. See Note
11
, "
8.50% Senior Unsecured Convertible Notes
." Although the Company believes its valuation method is appropriate, the use of different methodologies or assumptions to determine the fair value could result in different fair values.
Changes in Fair Value
The following table provides a roll-forward in the changes in fair value for
nine months ended September 30, 2016
, for all life settlement assets for which the Company determines fair value using a material level of unobservable (Level 3) inputs, which consists solely of life settlements (in thousands):
|
|
|
|
|
Life Settlements:
|
|
Balance, January 1, 2016
|
$
|
461,925
|
|
Purchase of policies
|
16
|
|
Retained death benefits acquisitions
|
1,374
|
|
Change in fair value*
|
(2,690
|
)
|
Matured/lapsed/sold policies
|
(29,980
|
)
|
Premiums paid
|
52,750
|
|
Transfers into level 3
|
—
|
|
Transfer out of level 3
|
—
|
|
Balance, September 30, 2016
|
$
|
483,395
|
|
Changes in fair value included in earnings for the period relating to assets held at September 30, 2016
|
$
|
(17,838
|
)
|
*Change in the mortality curve after adoption of 2015 VBT resulted in approximately
$17.6 million
reduction in the fair value of our life settlements.
The following table provides a roll-forward in the changes in fair value for
nine months ended September 30, 2016
, for the White Eagle Revolving Credit Facility for which the Company determines fair value using a material level of unobservable (Level 3) inputs (in thousands):
|
|
|
|
|
White Eagle Revolving Credit Facility:
|
|
Balance, January 1, 2016
|
$
|
169,131
|
|
Draws under the White Eagle Revolving Credit Facility
|
39,295
|
|
Payments on White Eagle Revolving Credit Facility
|
(10,577
|
)
|
Unrealized change in fair value
|
(15,721
|
)
|
Transfers into level 3
|
—
|
|
Transfer out of level 3
|
—
|
|
Balance, September 30, 2016
|
$
|
182,128
|
|
Changes in fair value included in earnings for period relating to liabilities held at September 30, 2016
|
$
|
(15,721
|
)
|
The following table provides a roll-forward in the changes in fair value for
nine months ended September 30, 2016
, for the Red Falcon Revolving Credit Facility for which the Company determines fair value using a material level of unobservable (Level 3) inputs (in thousands):
|
|
|
|
|
Red Falcon Revolving Credit Facility:
|
|
Balance, January 1, 2016
|
$
|
55,658
|
|
Draws under the Red Falcon Revolving Credit Facility
|
15,387
|
|
Payments on Red Falcon Revolving Credit Facility
|
(9,195
|
)
|
Unrealized change in fair value
|
(400
|
)
|
Transfers into level 3
|
—
|
|
Transfer out of level 3
|
—
|
|
Balance, September 30, 2016
|
$
|
61,450
|
|
Changes in fair value included in earnings for period relating to liabilities held at September 30, 2016
|
$
|
(400
|
)
|
The following table provides a roll-forward in the changes in fair value for
nine months ended September 30, 2015
, for all assets for which the Company determines fair value using a material level of unobservable (Level 3) inputs, which consist solely of life settlements (in thousands):
|
|
|
|
|
Life Settlements:
|
|
Balance, January 1, 2015
|
$
|
388,886
|
|
Purchase of policies
|
30,534
|
|
Change in fair value
|
43,582
|
|
Matured/sold policies
|
(53,435
|
)
|
Premiums paid
|
48,243
|
|
Transfers into level 3
|
—
|
|
Transfer out of level 3
|
—
|
|
Balance, September 30, 2015
|
$
|
457,810
|
|
Changes in fair value included in earnings for the period relating to assets held at September 30, 2015
|
$
|
2,805
|
|
The following table provides a roll-forward in the changes in fair value for the
nine months ended September 30, 2015
, for the White Eagle Revolving Credit Facility for which the Company determines fair value using a material level of unobservable (Level 3) inputs (in thousands):
|
|
|
|
|
White Eagle Revolving Credit Facility:
|
|
Balance, January 1, 2015
|
$
|
145,831
|
|
Draws under the White Eagle Revolving Credit Facility
|
42,448
|
|
Payments on White Eagle Revolving Credit Facility
|
(43,241
|
)
|
Unrealized change in fair value
|
12,908
|
|
Transfers into level 3
|
—
|
|
Transfer out of level 3
|
—
|
|
Balance, September 30, 2015
|
$
|
157,946
|
|
Changes in fair value included in earnings for the period relating to liabilities held at September 30, 2015
|
$
|
12,908
|
|
The following table provides a roll-forward in the changes in fair value for the
nine months ended September 30, 2015
, for the Red Falcon Revolving Credit Facility for which the Company determines fair value using a material level of unobservable (Level 3) inputs (in thousands):
|
|
|
|
|
Red Falcon Revolving Credit Facility
|
|
Balance, January 1, 2015
|
$
|
—
|
|
Draws under the Red Falcon Revolving Credit Facility
|
54,000
|
|
Payments on Red Falcon Revolving Credit Facility
|
2,967
|
|
Unrealized change in fair value
|
(1,863
|
)
|
Transfers into level 3
|
581
|
|
Transfer out of level 3
|
—
|
|
Balance, September 30, 2015
|
$
|
55,685
|
|
Changes in fair value included in earnings for the period relating to liabilities held at September 30, 2015
|
$
|
581
|
|
There were no transfers of financial assets or liabilities between levels of the fair value hierarchy during the
nine months ended September 30, 2016
and
2015
.
Other Fair Value Considerations -
Carrying value of certificate of deposits, prepaid expenses and other assets, receivable for maturity of life settlements, investment in affiliates, Senior Secured Notes, accounts payable and accrued expenses approximate fair value due to their short-term maturities and/or low credit risk.
(
15
)
Segment Information
On October 25, 2013, the Company sold its structured settlement business, which was previously reported as an operating segment. The operating results related to the Company’s structured settlement business have been included in discontinued operations in the Company’s Consolidated Statements of Operations for all periods presented and the Company has discontinued segment reporting.
(
16
)
Commitments and Contingencies
Lease Agreements
The Company leases office space under a lease that commenced on October 1, 2014. The lease expires on
September 30, 2020
. The annual base rent is
$239,000
, with a provision for a
3%
increase on each anniversary of the rent commencement date. Rent expense was approximately
$103,000
and
$122,000
for the
three months ended September 30, 2016
and
2015
, respectively, and approximately
$311,000
and
$319,000
for the
nine months ended September 30, 2016
and
2015
. Future minimum lease payments for the remainder of
2016
are approximately
$60,000
.
Employment Agreements
The Company has entered into employment agreements with certain of its officers, including with its chief executive officer, whose agreement provides for substantial payments in the event that the executive terminates his employment with the Company due to a material change in the geographic location where the chief executive officer performs his duties or upon a material diminution of his base salary or responsibilities, with or without cause. These payments are equal to
three
times the sum of the chief executive officer’s base salary and the average of the preceding
three
years’ annual cash bonus.
The Company does not have any general policies regarding the use of employment agreements, but has and may, from time to time, enter into such a written agreement to reflect the terms and conditions of employment of a particular named executive officer, whether at the time of hire or thereafter.
Separation Agreement
On April 26, 2012, the Company entered into a Separation Agreement and General Release of Claims (the "Separation Agreement") with its former chief operating officer, Jonathan Neuman. The Separation Agreement obligates the Company to indemnify Mr. Neuman for his legal expenses including expenses incurred as part of the USAO Investigation and SEC investigation. The Company recognized indemnification expenses of
$59,000
and
$998,000
during the
three months ended September 30, 2016
and
2015
, respectively, and
$488,000
and
$2.5 million
during the
nine months ended September 30, 2016
and
2015
. On December 31, 2015, the Company received a letter from the USAO indicating that the USAO had concluded the USAO Investigation. Accordingly, the Company does not expect to incur advancement or indemnification expenses related to the USAO Investigation going forward.
Litigation
In accordance with applicable accounting guidance, the Company establishes an accrued liability for litigation and regulatory matters when those matters present loss contingencies that are both probable and estimable. In such cases, there may be an exposure to loss in excess of any amounts accrued. When a loss contingency is not both probable and estimable, the Company does not establish an accrued liability. As a litigation or regulatory matter develops, the Company, in conjunction with any outside counsel handling the matter, evaluates on an ongoing basis whether such matter presents a loss contingency that is probable and estimable. If, at the time of evaluation, the loss contingency related to a litigation or regulatory matter is not both probable and estimable, the matter will continue to be monitored for further developments that would make such loss contingency both probable and estimable. When a loss contingency related to a litigation or regulatory matter is deemed to be both probable and estimable, the Company will establish an accrued liability with respect to such loss contingency and record a corresponding amount of litigation-related expense. The Company will then continue to monitor the matter for further developments that could affect the amount of any such accrued liability.
Non-Prosecution Agreement & Indemnification Obligations
On September 27, 2011, the Company was informed that it was being investigated by the U.S. Attorney’s Office for the District of New Hampshire in connection with the Company’s now legacy premium finance loan business. On April 30, 2012, the Company entered into a Non-Prosecution Agreement (the "Non-Prosecution Agreement") with the USAO.
The Non-Prosecution Agreement had a term of
three
years and expired in accordance with its terms on April 30, 2015. While the Non-Prosecution Agreement effectively resolved the USAO Investigation as it pertained to the Company, the Company had continuing cooperation obligations to the USAO and, since entering the Non-Prosecution Agreement, the USAO had been to investigating certain individuals and entities formerly associated with the Company’s legacy premium finance business. Settlements of certain civil litigation with the Company’s director and officer liability insurance carriers related to the USAO Investigation and other contractual obligations required the Company to advance legal fees to and indemnify these individuals and entities. On December 31, 2015, the Company received a letter from the USAO indicating that the USAO Investigation had formally concluded, that the Company fully complied with all of its obligations under the Non-Prosecution Agreement and that the Company was released from any further obligations under the Non-Prosecution Agreement. Accordingly, the Company does not expect to incur advancement or indemnification expenses related to the USAO Investigation going forward.
SEC Investigation
On February 17, 2012, the Company received an initial subpoena issued by the staff of the SEC seeking documents from 2007 through the date of the subpoena, generally related to the Company’s premium finance business and corresponding financial reporting. The SEC is investigating whether any violations of federal securities laws have occurred and the Company has been cooperating with the SEC regarding this matter. The Company is unable to predict what action, if any, might be taken in the future by the SEC or its staff as a result of the investigation or what impact, if any, the cost of responding to the SEC might have on the Company’s financial position, results of operations, or cash flows. The Company has not established any provision for losses in respect of this matter.
Sun Life
On April 18, 2013, Sun Life Assurance Company of Canada ("Sun Life") filed a complaint against the Company and several of its affiliates in the United States District Court for the Southern District of Florida, entitled
Sun Life Assurance Company of Canada v. Imperial Holdings, Inc., et al
. ("
Sun Life Case
"), asserting, among other things, that at least
28
life insurance policies issued by Sun Life and owned by the Company through certain of its subsidiary companies were invalid. The Sun Life complaint, as amended, asserted the following claims: (1) violations of the federal Racketeer Influenced and Corrupt Organizations ("RICO") Act, (2) conspiracy to violate the RICO Act, (3) common law fraud, (4) aiding and abetting fraud, (5) civil conspiracy to commit fraud, (6) tortious interference with contractual obligations, and (7) a declaration that the policies issued were void. Following the filing of a motion by the Company to dismiss the Sun Life Case, on December 9, 2014, counts (2), (4), (5), (6) and (7) of the Sun Life Case were dismissed with prejudice. The Company then filed a motion for summary judgment on the remaining counts. On February 4, 2015, the Court issued an order (the "Order") granting the Company’s motion for summary judgment on counts (1) and (3), resulting in the Company prevailing on all counts in the Sun Life Case.
On July 29, 2013, the Company filed a separate complaint against Sun Life in United States District Court for the Southern District of Florida, entitled
Imperial Premium Finance, LLC v. Sun Life Assurance Company of Canada
("
Imperial Case
"), which was subsequently consolidated with the Sun Life Case. The Imperial complaint asserts claims against Sun Life for breach of contract, breach of the covenant of good faith and fair dealing, and fraud, and seeks a judgment declaring that Sun Life is obligated to comply with the promises made by it in certain insurance policies. The complaint also seeks compensatory damages of no less than
$30.0 million
in addition to an award of punitive damages. On August 23, 2013, Sun Life moved to dismiss the complaint, which was denied by the Court as part of the Order. On February 26, 2015, Sun Life filed a Notice of Appeal from the Order to the United States Court of Appeals for the Eleventh Circuit, which had denied Sun Life’s motion to dismiss. On December 17, 2015, after the matter was fully briefed, the Circuit Court issued an order granting the Company’s motion to dismiss and sent the case back to the District Court. The District Court lifted the stay and ordered Sun Life to file its Answer to the Imperial Case by January 22, 2016. On February 3, 2016, the District Court set a trial date of the Imperial Case for October 31, 2016.
On September 22, 2016, the Court granted summary judgment in favor of Sun Life on the entirety of the Imperial complaint and subsequently entered final judgment to end the case. The Company filed a motion to alter or amend the judgment on October 20, 2016.
Other Litigation
A complaint was filed against the Company’s subsidiary, styled
Kenneth Jennings v. Washington Square Financial, LLC d/b/a Imperial Structured Settlements
("Washington Square"), and was pending in the United States District Court for the Northern District of Illinois. The plaintiff sought, in a purported class action, to represent all individuals who sold all or a part of a structured settlement annuity to Washington Square under the Illinois Structured Settlement Protections Act (the “Illinois Act”), where the underlying annuity contract contained an anti-assignment clause, and where a court issued an order under the Illinois Act approving the transaction. The complaint sought, among other things, a declaration that all such transactions are void and compensatory and punitive damages. On September 28, 2016, the District Court terminated the case pursuant to a notice of voluntary dismissal, without prejudice, which had been filed by the plaintiff.
The Company is party to various other legal proceedings that arise in the ordinary course of business. Due to the inherent difficulty of predicting the outcome of litigation and other legal proceedings, the Company cannot predict the eventual outcome of these matters, and it is reasonably possible that some of them could be resolved unfavorably to the Company. As a result, it is possible that the Company’s results of operations or cash flows in a particular fiscal period could be materially affected by an unfavorable resolution of pending litigation or contingencies. However, the Company believes that the resolution of these other
proceedings will not, based on information currently available, have a material adverse effect on the Company’s financial position or results of operations.
(
17
)
Stockholders’ Equity
During the second quarter of 2015, the Company issued
6,688,433
shares of common stock pursuant to a rights offering at a price of
$5.75
per share.
In connection with the settlement of class litigation, the Company issued warrants to purchase
two million
shares of the Company’s stock into an escrow account in April 2014 and were distributed in October 2014. The estimated fair value at the measurement date of such warrants was
$5.4 million
, which is included in stockholder’s equity. The warrants have a
five
-year term from the date of their distribution with an exercise price of
$10.75
. The Company is obligated to file a registration statement to register the shares underlying the warrants with the SEC if shares of the Company’s common stock have an average daily trading closing price of at least
$8.50
per share for a
45
day period. The warrants will be exercisable upon effectiveness of the registration statement.
The Company has reserved an aggregate of
2,700,000
shares of common stock under its Omnibus Plan, of which
763,594
options to purchase shares of common stock granted to existing employees were outstanding as of
September 30, 2016
, and
116,871
shares of restricted stock had been granted to directors under the plan with
265,212
shares subject to vesting. There were
1,554,323
securities remaining for future issuance under the Omnibus Plan as of
September 30, 2016
.
On September 1, 2015, the Company announced that its Board of Directors authorized a
$10.0 million
share and note repurchase program. The program has a
two
-year expiration date, and authorizes the Company to repurchase up to
$10.0 million
of its common stock and/or its Convertible Notes due 2019. During 2015, the Company purchased
608,000
shares for a total cost of approximately
$2.5 million
, which is an average cost of
$4.17
per share, including transaction fees. There were no purchases during
three months ended September 30, 2016
or
nine months ended September 30, 2016
. As of
September 30, 2016
, the Company may purchase up to approximately
$7.5 million
of additional common stock or Convertible Notes under its board authorized plan. However, the Company's Senior Secured Notes restrict the Company from repurchasing its common stock if the Company has less than
$20 million
in cash and cash equivalents.
On March 14, 2016, the Company filed a prospectus supplement with the SEC related to the offer and sale from time to time of the Company's common stock at an aggregate offering price of up to
$50.0 million
through FBR Capital Markets & Co. and MLV & Co. LLC, as distribution agents. Sales of shares of the Company's common stock under the prospectus supplement and the equity distribution agreement entered into with the distribution agents, if any, may be made in negotiated transactions or transactions that are deemed to be "at the market" offerings as defined in Rule 415 under the Securities Act of 1933. The Company has agreed to pay the distribution agents a commission rate of up to
3%
of the gross proceeds from the sale of any shares of common stock sold through the equity distribution agreement. During the
three months ended September 30, 2016
, the Company sold
443,038
shares of common stock under this prospectus supplement at a weighted average price per share of
$3.51
, receiving proceeds net of commissions totaling approximately
1,505,000
. Approximately
$47,000
in commissions were paid in connection with the sales of shares.
(
18
)
Income Taxes
The Company’s provision for income taxes from continuing operations is estimated to result in an annual effective tax rate of approximately
0.0%
for the
nine month period ended September 30, 2016
as compared to
35.0%
during the same period in
2015
. The Company’s quarterly effective income tax rates are based upon the Company’s current estimated annual rate. The Company’s annual effective income tax rate varies based upon the Company’s taxable earnings, as well as on a mix of taxable earnings in the various state and foreign jurisdictions.
In December 2015, based on the Company's evaluation, a deferred tax valuation allowance was established against its net deferred tax assets. In its evaluation, management considers taxable loss carryback availability, expectations of sufficient future taxable income, trends in earnings, existence of taxable income in recent years, the future reversal of temporary differences, and available tax planning strategies that could be implemented, if required. Valuation allowances are established based on the consideration of all available evidence using a more likely than not standard. This valuation allowance was determined to be necessary as an offset to the full amount of the federal and state deferred tax asset. During the
nine month period ended September 30, 2016
, the Company does not expect that position to change and therefore is not recording any benefit.
In March of 2014, the Company was notified by the IRS of its intention to examine our tax returns for the years ended 2012 and 2013. Tax years prior to 2012 are no longer subject to IRS examination. Various state jurisdiction tax years remain open to examination.
The Company and its subsidiary companies are subject to U.S. federal income tax, as well as to income tax in Florida and other states and foreign jurisdictions in which it operates.