Several public companies that took small business rescue loans say they are not giving back the cash

Despite outrage on Main Street and new pressure from the Treasury Department this week, several publicly traded companies that received payroll relief funds from the Small Business Administration oppose demands to return the cash.

The companies said the Paycheck Protection Program loans have allowed them to keep employees on payroll and that they disagree with the federal government’s move to make it harder for public companies to receive emergency funds. The outrage stems from the belief that these companies could easily tap the equity or debt markets to raise cash.

Bruce Davis, the chairman and CEO of Digimarc Corp., said that the notion that all public companies have easy access to vast capital markets at any time is mistaken.

“The goal of the program is to give small businesses some time to see how things were going and to prevent a precipitous reduction the workforce,” he said.

“All I see is a knee-jerk reaction to Shake Shack,” he said. “Policymakers rushed back and said ‘If you’re public you don’t qualify.’ [But] they’re not thinking of us: It’s getting oversimplified and in a crude manner that will be a disservice to companies like mine.”

Davis said the PPP loan helps him keep his 215 skilled workers on the job at Digimarc, a Beaverton, Oregon-based tech company that creates invisible digital identifiers for everything from driver’s licenses to bank notes. The SBA funds are critical, he said, since the company is currently operating at a loss and only generates some $23 million in annual revenues.

“The notion that we’re a big tech company with access to big capital is flawed,” he said. “To return [the PPP funds] would be breaching fiduciary duty.”

CNBC reached out to the 41 biggest publicly traded companies that had received PPP loans to see if they would be returning the funds in light of the Treasury Department’s new guidelines. Six affirmed that they had no plans to return the funds, five said they will (or had) returned the money while 30 either did not respond or said their decision was pending.

The federal program was designed to assist struggling small businesses cover payroll costs and keep Americans  employed during the coronavirus outbreak.

PolarityTE, a $38 million biotech company based in Salt Lake City, echoed Davis’ comments. 

“We are a small-cap company with a low market price, which means capital market participants will not have an interest in raising capital for us,” the company said. “In short, we have the need for assistance the PPP was intended for and we applied for the loan to meet that need.”

The company comments came a day after the Treasury Department and SBA on Thursday issued new guidance on which companies qualify for the loans. The SBA warned Thursday that large public companies who tapped the PPP before the rule change can avoid government scrutiny by returning the relief loans in two weeks.

“Borrowers still must certify in good faith that their PPP loan request is necessary,” the SBA said. “It is unlikely that a public company with substantial market value and access to capital markets will be able to make the required certification in good faith, and such a company should be prepared to demonstrate to SBA, upon request, the basis for its certification.”

“Any borrower that applied for a PPP loan prior to the issuance of this guidance and repays the loan in full by May 7, 2020 will be deemed by SBA to have made the required certification in good faith,” it added. 

But Digimarc’s Davis represents just one executive at scores of public companies that received hundreds of millions of dollars in forgivable loans this month from the PPP. By one measure, 184 public companies have received a total loan value of $695 million, per data analytics firm FactSquared.

Critics have blasted those companies in recent days for what they see as unfair, taxpayer-backed loans to multimillion-dollar, well-connected companies that already benefit from access to the vast public markets for funding.

The fallout deepened as companies worth more than $100 million in the stock market successfully applied for relief. Companies including DMC Global, Wave Life Sciences and Fiesta Restaurant Group (which employed more than 10,000 as of its latest annual report) won the loans, according to a Tuesday research note from Morgan Stanley. 

The SBA’s rule change on Thursday came as the House of Representatives passed a $484 billion supplemental relief package to replenish an initial $349 billion program for small businesses. The program depleted its initial $349 billion last week and requires the new funding to continue lending.

Some well-known companies like Ruth’s Hospitality and Shake Shack, have already decided to return their PPP loans amid public backlash and the government’s new pressure.

Shake Shack, a company worth $1.7 billion with more than 7,000 employees, said earlier this week it would return the $10 million loan from the SBA. Meanwhile, the owner of Ruth’s Chris Steak House chain said Thursday that it would refund the $20 million it received.

But the rule change, and public outrage, has forced some of the smaller public companies who’ve received the loans to face a key question. Return the Paycheck Protection Program loans and recoup public image? Or keep the funds and potentially prevent layoffs down the road?

Kura Sushi USA, a subsidiary of a Japanese restaurant chain, said that after much deliberation and angst that it chose to cancel its $5.98 million federal small-business loan.

“Receiving a loan not only meant that we could continue to keep paying the remaining staff on payroll, it meant that we could also rehire all of the employees that had been furloughed,” Kura Sushi President and CEO Jimmy Uba said in a statement. “We never considered how intense the competition for the loans would be and applied for one immediately.”

“Today, we made the decision to return our PPP loan,” he added. “This was a difficult decision because our employees are extremely important to us, but it’s impossible to ignore the fact that our finances allow us to weather financial hardship for a longer period than independent restaurant owners.”

Optinose, a specialty pharmaceutical company based in Yardley, Pennsylvania, echoed those sentiments in announcing that it, too, would be returning its $4.4 million loan.

“We are hopeful that both the money returned to Treasury by Optinose and other companies and the additional $320 billion stimulus passed by Congress this week will facilitate relief for a larger number of small businesses, including many of the physician practices we serve,” a spokesman said.

But others, such as Digimarc’s Davis, defended their application for and receipt of the PPP funds.

Several executives said their businesses meet the SBA’s criteria for what defines a small business based on industry-specific stipulations despite their status as public companies. Combined with the fact that the funds will be used only to keep employees on payroll, several representatives stressed to CNBC that they see no reason to return the funds.

But between those public companies who said they’d return the PPP funds and those who said they won’t, all said they wished the SBA and Treasury Department could have been clearer on which companies qualified when first announcing the program.

“Biolase has approximately 150 employees and is well under the 500-employee defined maximum for companies to participate in the PPP,” company spokesman Todd Kehrli wrote in an email. He added that Biolase doesn’t have plans to return the funds.

“Given the current economic situation, it was unlikely Biolase could access public equity markets to raise cash to help make up for the significant lost revenue we experienced,” he added. “The PPP was essential in helping maintain Biolase as a viable business moving forward.”

Others emphasized that being public doesn’t necessarily mean access to sufficient capital whenever needed. That’s especially true among small- or micro-cap companies, said Audrey Chang, a spokeswoman for travel company Lindblad Expeditions.

“Lindblad does not have a substantial market value, rather it is a micro-cap company with a $250 million market capitalization. The company does not have ready access to capital, although we are exploring these options,” she wrote in an email.

She added that Lindblad has no plans to return the PPP funds.

“The PPP funds will be used entirely as they were intended and as the name of the program dictates — to pay and protect our employees against layoffs, furloughs and salary reductions that otherwise would be needed,” she added.

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