BILL REQ. #: H-1291.1
| State of Washington | 59th Legislature | 2005 Regular Session |
Read first time 02/10/2005. Referred to Committee on Financial Institutions & Insurance.
AN ACT Relating to the creation of certified capital companies to promote investment in start-up and emerging Washington businesses; adding a new section to chapter 48.14 RCW; adding a new chapter to Title 48 RCW; providing an effective date; and declaring an emergency.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1
(1)(a) "Affiliate" means:
(i) Any person who, directly or indirectly, beneficially owns,
controls, or holds power to vote fifteen percent or more of the
outstanding voting securities or other voting ownership interests of
the certified capital company or insurance company;
(ii) Any person, fifteen percent or more of whose outstanding
voting securities or other voting ownership interests are directly or
indirectly beneficially owned, controlled, or held with power to vote
by the certified capital company or insurance company;
(iii) Any person who, directly or indirectly, controls, is
controlled by, or is under common control with the certified capital
company or insurance company;
(iv) A partnership in which the certified capital company or
insurance company is a general partner; or
(v) Any person who is an officer, director, employee, or agent of
the certified capital company or insurance company, or an immediate
family member of such officer, director, employee, or agent.
(b) Notwithstanding (a) of this subsection, an investment by a
certified investor in a certified capital company pursuant to an
allocation of premium tax credits in section 4 of this act shall not
cause such certified capital company to become an affiliate of such
certified investor.
(2) "Certification date" means the date on which the certified
capital company is so designated by the office for the certified
capital company program.
(3) "Certified capital" means an amount of cash that:
(a) Is invested by a certified investor in a certified capital
company; and
(b) Fully funds the purchase price of either or both certified
investor's equity interest in the certified capital company or a
qualified debt instrument issued by the certified capital company.
(4) "Certified capital company" means a partnership, corporation,
trust, or limited liability company, organized on a for-profit basis,
that: (a) Has its principal office located or is headquartered in
Washington; (b) has as its primary business activity the investment of
cash in qualified businesses or qualified rural businesses; and (c) is
certified by the office as meeting the criteria of this chapter.
(5) "Certified investor" means any insurer as defined in RCW
48.01.050 that contributes certified capital.
(6) "Commissioner" means the state insurance commissioner.
(7) "Net profits on certified investments" means the amount of
money returned to the certified capital company in repayment of or in
exchange for the certified capital company's qualified investment or
investments in the qualified business in excess of the amount of such
qualified investment or investments. Such number shall aggregate all
of the certified capital company's qualified investments where gains on
qualified investments are netted against losses on qualified
investments.
(8) "Person" means any natural person or entity, including but not
limited to a corporation, general or limited partnership, trust, or
limited liability company.
(9) "Qualified business" means a business that is independently
owned and operated and meets all of the following requirements:
(a) It is headquartered in this state, its principal business
operations are located in this state, at least fifty percent of its
employees are in Washington, and the certified capital company has a
reasonable expectation, based on an affidavit of one of the principal
officers of the business or other comparable evidence, that the
business intends to preserve its headquarters and principal place of
business in Washington for at least three years after the qualified
investment and that it will expend substantially all of the qualified
investment within Washington pursuant to the criteria adopted by the
commissioner by rule;
(b) That is a small business as defined in RCW 19.85.020;
(c) Is not predominantly engaged in: (i) Professional services,
including but not limited to accountants, doctors, or lawyers; (ii)
banking or lending; (iii) real estate development; (iv) insurance; (v)
oil and gas exploration; (vi) direct gambling activities; (vii) making
loans to or investments in a certified capital company or an affiliate;
(d) Any business that is classified as a qualified business at the
time of the first qualified investment in the business shall remain
classified as a qualified business, may receive continuing qualified
investments, and such continuing investments shall be qualified
investments even though the business may not meet the definition of a
qualified business at the time of such continuing investments; except
the business shall not be eligible to receive further qualified
investments if:
(i) It has relocated its headquarters or principal business
operations outside of this state; or
(ii) It has not expended substantially all of its prior qualified
investments within Washington as required by the program. For the
purposes of this chapter and section 2 of this act, the purchase of
services and goods from outside Washington is not precluded, if the
services are performed or the goods are used in Washington.
(10) "Qualified debt instrument" means a debt instrument issued by
a certified capital company, at par value or a premium, with an
original maturity date of at least five years from the date of
issuance, a repayment schedule which is not faster than a level
principal amortization, and interest, distribution, or payment features
which are not related to the profitability of the certified capital
company or the performance of the certified capital company's
investment portfolio.
(11) "Qualified distribution" means any distribution or payment to
a certified capital company in connection with the following:
(a) Reasonable costs and expenses of forming, syndicating, and
organizing the certified capital company, including reasonable and
necessary fees paid for professional services, including, but not
limited to, legal and accounting services, related to the formation of
the certified capital company, and the cost of financing and insuring
the obligations of the certified capital company;
(b) Reasonable costs and expenses of managing and operating the
certified capital company, including an annual management fee in an
amount that does not exceed two and one-half percent of certified
capital, except: (i) No such cost or expense shall be paid to a
certified investor or affiliate of a certified investor; (ii) no such
cost or expense shall be paid for federal or state taxes, including
penalties and interest related to state and federal taxes, of equity
owners of a certified capital company resulting from a tax liability of
the certified capital company; and (iii) such costs and expenses in the
aggregate shall not exceed five percent of certified capital in any one
year;
(c) Reasonable and necessary fees in accordance with industry
custom for professional services, including but not limited to legal
and accounting services, related to the operation of the certified
capital company; except that such professional services shall not be
construed to include litigation challenging the validity or effect of
this act, lobbying or governmental relations;
(d) Any increase or projected increase in federal or state taxes,
including penalties and related interest, of the equity owners of a
certified capital company resulting from the earnings or other tax
liability of the certified capital company to the extent that the
increase is related to the ownership, management, or operation of a
certified capital company.
(12) "Qualified investment" means the investment of cash by a
certified capital company in a qualified business or qualified rural
business for the purchase of any debt, debt participation, equity, or
hybrid security, including a debt instrument or security that has the
characteristic of debt but provides for conversion into equity or
equity participation instruments, including, but not limited to,
options or warrants; except that pursuant to an allocation of premium
tax credits pursuant to section 4 of this act, the investment shall be
made in a qualified rural business.
(13) "Seed or early stage," in reference to a qualified business,
means that the qualified business, at the time of the initial qualified
investment:
(a) Had less than five hundred thousand dollars in total revenues
for the fiscal year immediately preceding the initial qualified
investment;
(b) Has received no more than one investment from a professional
venture capital firm with funds raised from institutional investors; or
(c) Does not have positive operational cash flow for the fiscal
year immediately preceding the initial qualified investment.
(14) "State premium tax liability" means any liability incurred by
an insurance company under the provisions of RCW 48.14.020 or in the
case of a repeal or a reduction by the state of the liability imposed
by RCW 48.14.020, any other tax liability imposed upon an insurance
company by the state.
NEW SECTION. Sec. 2 A new section is added to chapter 48.14 RCW
to read as follows:
(2) Ten percent of the credit shall be allowed in the taxable year
to which such investment is allocated and in each of the nine following
taxable years.
(3) A person taking the credit under this section is subject to all
the requirements of chapter 82.32 RCW. A credit earned during one
calendar year may be carried over to be credited against taxes incurred
in the subsequent calendar year. Credits carried over must be applied
to tax liability before new credits. No refunds may be granted for
credits under this section.
(4) Decertification of a certified company shall cause the
disallowance and the recapture of the credit allowed under subsection
(1) of this section. The commissioner shall assess interest, but not
penalties, on the credit for which the person is not eligible. The
interest shall be assessed at the rate provided for delinquent excise
taxes under chapter 82.32 RCW, shall be assessed retroactively to the
date the tax credit was taken, and shall accrue until the taxes for
which the credit has been used are repaid. The amount to be disallowed
and recaptured shall be assessed as follows:
(a) Decertification of a certified capital company within two years
of its starting date prior to meeting the requirements of section
6(1)(a) of this act shall cause the disallowance of one hundred percent
of the credit allowed under subsection (1) of this section and the tax
for which the credit shall be immediately due.
(b) Decertification of a certified capital company which, having
met all the requirements of section 6(1)(a) of this act, subsequently
fails to meet the requirements of section 6(1)(b) of this act, shall
cause the disallowance of seventy percent of the credit allowed under
subsection (1) of this section and any portion of such credit in excess
of thirty percent that was previously taken shall be immediately due.
(c) Decertification of a certified capital company which, having
met all the requirements of section 6(1) of this act, subsequently
fails to meet the requirements of section 9(2) of this act, other than
on the grounds of the failure of such certified capital company to meet
the requirements of section 6(1) of this act, shall not cause the
disallowance of any credits allowed under subsection (1) of this
section nor the recapture of any portion of such credits that was
previously taken.
(d) If, after twelve years after a certified capital company
receives an investment of certified capital, such certified capital
company has failed to invest one hundred percent of its certified
capital allocable in qualified investment, such certified capital
company shall be required to pay to the commissioner, for deposit in
the general fund, an amount equal to two times the amount of net
profits on qualified investments as required by section 8(4) of this
act at such subsequent time when it was fully invested one hundred
percent and has begun to make a distribution of net profits. The
requirement shall not apply to a certified capital company in which at
least fifty percent of voting stock, capital, membership interests, or
other beneficial ownership interest, as the case may be, are owned by
an entity that is managed, directly or indirectly, by a nonprofit
corporation. This amount of payment to the commissioner shall not be
reduced by the amount set forth in section 8(4) of this act.
(5) Revocation of certification from a certified capital company
pursuant to section 10 of this act, before the later of (a) the third
anniversary of the certification date of the certified company or (b)
the date on which the certified capital company satisfies the
requirements of section 6(1)(b) of this act, shall cause the
disallowance of one hundred percent of the credits allowed under
subsection (1) of this section and the tax for which the credit was
given is immediately due.
(6) No credit shall be allowed in any tax year in which the
eligible person, individually or with or through one or more
affiliates, be a managing partner of or underwrite or control the
direction of a certified capital company for which the credit is
allowed under this section. This provision shall not preclude a
certified investor, insurance company, or any other party from
exercising its legal rights and remedies in the event that a certified
capital company is in default of its statutory obligations or its
contractual obligations to such certified investor, insurance company,
or other party or from monitoring the certified capital company to
ensure its compliance with section 3 of this act or disallowing any
investments that have not been approved by the commissioner pursuant to
section 6(3) of this act.
(7) A certified investor allowed a credit against its state tax
liability earned through an investment in a certified capital company
shall not be required to pay any additional retaliatory tax levied
pursuant to RCW 48.14.040 as a result of claiming such credit.
NEW SECTION. Sec. 3
(2) An applicant is required to:
(a) File an application with the commissioner;
(b) Pay a nonrefundable application fee of seven thousand five
hundred dollars at the time of filing the application;
(c) Have an equity capitalization at the time of seeking
certification of five hundred thousand dollars or more in the form of
unencumbered cash, marketable securities, or other liquid assets. The
applicant shall submit as part of its application an audited balance
sheet that contains an unqualified opinion of an independent certified
public accountant issued not more than thirty-five days before the
application date that states whether the applicant satisfies this
equity capitalization requirement; and
(d) Have at least two principals or at least two persons employed
to manage the funds who have at least two years of money management
experience in the venture capital industry; except that an applicant
that seeks to be certified with respect to premium tax credits
allocated pursuant to section 4 of this act need only to have at least
two years of experience in either venture capital or investment banking
industry.
(3) The commissioner may certify partnerships, corporations,
trusts, or limited liability companies, organized on a for-profit
basis, which submit an application to be designated as a certified
capital company if such applicant is located, headquartered, and
licensed or registered to conduct business in Washington, has as its
primary business activity the investment of cash in qualified
businesses and meets the other criteria set forth in this act.
(4) The commissioner shall review the organizational documents of
each applicant for certification and the business history of each
applicant, determine that the applicant's cash, marketable securities,
and other liquid assets are at least five hundred thousand dollars, and
determine that the officers and the board of directors, general
partners, trustees, managers, or members are trustworthy and are
thoroughly acquainted with the requirements of this section.
(5) Any offering material involving the sale of securities of the
certified capital company shall include the following statement:
"By authorizing the formation of a certified capital company, the
state does not necessarily endorse the quality of management or the
potential for earnings of such company and is not liable for damages or
losses to a certified investor in the company. Use of the word
"certified" in an offering does not constitute a recommendation or
endorsement of the investment by the Washington state insurance
commissioner. If any applicable provisions of the "certified capital
company act" are violated, the state may require forfeiture of unused
premium tax credits and repayment of used premium tax credits."
(6) Within sixty days after the receipt of an application, the
commissioner shall issue the certification or refuse the certification
and communicate in detail to the applicant the grounds for refusal,
including suggestions for the removal of such grounds. The
commissioner shall begin accepting applications to become a certified
capital company in the certified capital company program on January 1,
2006.
(7)(a) No insurance company or affiliate of an insurance company
shall, directly or indirectly:
(i) Beneficially own, whether through rights, options, convertible
interests, or otherwise, fifteen percent or more of the voting
securities or other voting ownership interest of a certified capital
company;
(ii) Manage a certified capital company; or
(iii) Control the direction of investments for a certified capital
company.
(b) A certified capital company may obtain a guaranty, indemnity,
bond, insurance policy, or other payment undertaking for the benefit of
its certified investors from any entity; except that in no case shall
more than one certified investor of such certified capital company or
affiliate of such certified investor be entitled to provide such
guaranty, indemnity, bond, insurance policy, or other payment
undertaking in favor of the certified investors of the certified
capital company and its affiliates in this state.
(c) This subsection shall not preclude a certified investor,
insurance company, or other party from exercising its legal rights and
remedies, including, without limitation, interim management of a
certified capital company, in the event that a certified capital
company is in default of its statutory obligations or its contractual
obligations to such certified investor, insurance company, or other
party.
NEW SECTION. Sec. 4
(2) During any taxable year in which the limitation described in
subsection (1) of this section will limit the amount of certified
capital, certified capital will be allocated in order of priority based
upon the date of filing for certification pursuant to section 3 of this
act. Certified capital limited in any taxable year by the application
of the provisions of this subsection shall be allowed and allocated in
the immediately succeeding taxable year by the application of priority
set forth in this section. The commissioner shall advise any certified
capital company in writing within fifteen days after receiving such
filing, whether the limitations of this section will be applicable with
respect to the investments and credits described in such filing with
the commissioner.
(3) Certified capital may be raised by each certified capital
company at any time subsequent to its certification date, and credits
shall be allocated to and vested in certified investors at the time of
each such investment, although such credits shall not be allowed or
incurred for state tax purposes, until 2008 for the first fifty million
dollars of credit and until 2009 for the next fifty million dollars of
credits.
NEW SECTION. Sec. 5
NEW SECTION. Sec. 6
(a) Within two years after the allocation date, at least twenty-five percent of the certified capital allocable to such certified
capital company must be placed in qualified investments.
(b) Within five years after the allocation date, at least fifty
percent of the certified capital allocable to such certified capital
company must be placed in qualified investments.
(2) The aggregate cumulative amount of all qualified investments
made by the certified capital company from an allocation date shall be
considered in the calculation of the percentage requirements under this
act.
(3) A certified capital company, at least twenty working days prior
to making a proposed investment in a specific business, shall certify
in writing to the commissioner that the business in which it proposes
to invest meets the definition of a qualified business, an explanation
of its determination that the business meets such requirements. The
certification shall include a sworn statement from the business in
which the certified capital company proposes to invest evidencing the
intent of the business to maintain its headquarters in Washington and
conduct its primary business operations in Washington after its receipt
of the investment by the certified capital company. If the
commissioner determines that the business does not meet the definition
of a qualified business, within fifteen working days prior to making
the proposed investment, notify the certified capital company of its
determination and provide an explanation thereof; however, an exemption
may be granted, at the discretion of the commissioner, from the
percentage limits in subsection (1) of this section.
(4) All certified capital not placed in qualified investments by
the certified capital company may be held or invested in such manner as
the certified capital company, in its discretion, deems appropriate.
The proceeds of all certified capital returned to a certified capital
company after being originally placed in qualified investments may be
placed again in qualified investments and shall count toward any
requirement of this section with respect to placing certified capital
in qualified investments.
(5) If within ten years after the starting date of the certified
capital company program, one hundred percent of the certified capital
allocable to a certified capital company participating in such program
has not been placed in qualified investments, the specific certified
capital company shall no longer be permitted to receive management
fees.
(6) Any business which is classified as a qualified business at the
time of the first investment in said business by a certified capital
company shall remain classified as a qualified business and may receive
follow-on investments from any certified capital company, and such
follow-on investments shall be qualified investments even though such
business may not meet the definition of a qualified business at the
time of the follow-on investments, provided that the business meets the
requirements of this section and section 7 of this act and such
business reaffirms its intention to maintain its headquarters in
Washington and conduct its primary business operations in Washington.
(7) No qualified investment may be made by a certified capital
company to the extent such investment would cause the company's total
qualified investment outstanding with respect to the qualified business
receiving such investment to exceed fifteen percent of the total
certified capital of the certified capital company at the time of such
investment.
(8) Documents and other materials submitted by certified capital
companies or by businesses for the purpose of the continuance of
certification shall not be public records if such records are
determined by the commissioner to be trade or business secrets and
shall be maintained in a confidential manner by the commissioner.
(9) The aggregate cumulative amount of all qualified investments
made by a certified capital company will be considered in the
calculation of the percentage requirements under this section, provided
that any amounts received by a certified capital company from a
qualified business as (a) commitment fees, closing fees, or other
similar fees, excluding reimbursement of out-of-pocket expenses,
including legal fees and accounting fees in excess of one percent of
the certified company's investment in the qualified business or (b)
license fees, royalties, or similar charges shall not be considered in
any percentage calculations under this section.
NEW SECTION. Sec. 7
(1) As soon as practicable after the receipt of certified capital
or an irrevocable funding commitment subject only to the receipt of an
allocation pursuant to section 2 of this act:
(a) The name of each certified investor from which the certified
capital was received, including such certified investor's insurance tax
identification number;
(b) The amount of each certified investor's investment of certified
capital; and
(c) The date on which the certified capital was received.
(2) On an annual basis, on or before January 31st of each year:
(a) The amount of the certified capital company's certified capital
at the end of the immediately preceding taxable year;
(b) Whether or not the certified capital company has invested more
than fifteen percent of its total certified capital in any one
business;
(c) All qualified investments that the certified capital company
has made in the previous taxable year, including the number of
employees of each qualified business in which it has made investments
at the time of such investment and as of December 1st of the preceding
taxable year. For any qualified business where the certified capital
company no longer has an investment, the certified capital company
shall provide employment figures for such company as of the last day
before the investment was terminated; and
(d) All qualified investments made in distressed rural areas and
distressed urban areas.
(3) Each certified capital company shall provide to the
commissioner annual audited financial statements, which shall include
the opinion of an independent certified public accountant, within
ninety days of the close of its fiscal year. The audit shall address
whether the funds received by the certified capital company have been
invested as required by section 6 of this act. Upon receiving
notification and documentation by a certified capital company that it
has satisfied the requirements of section 6 of this act that it has
invested fifty percent of its certified capital, the department shall
have sixty days to notify such certified capital company that it has or
has not met such requirement. If the department does not provide such
notification within sixty days, the certified capital company shall
then be deemed to have met such a requirement.
(4) On or before April 1st of each year, each certified capital
company shall pay an annual, nonrefundable certification fee of five
hundred dollars to the commissioner, provided that no such fee shall be
required within six months of the initial certification date of a
certified capital company.
NEW SECTION. Sec. 8
(2) In the event that a business in which a qualified investment is
made relocates its principal business operations to another state
during such investment, or within three months after the termination of
such investment, the cumulative amount of qualified investment shall be
reduced by the amount of such qualified investment for the purposes of
this section unless (a) the certified capital company invests an amount
at least equal to the investment of certified capital in the relocated
business in a qualified business located in Washington within six
months of the relocation or (b) the business demonstrates that it has
returned its principal business operations to Washington within three
months of such relocation. A business shall be deemed to have
relocated its principal business operations outside Washington if the
primary workplace of more than fifty percent of the employees of such
business within the state is relocated to another state.
(3) Payments to debt holders of a certified capital company may be
made without restriction with respect to repayments of principal and
interest on indebtedness owed to them by a certified capital company,
including indebtedness of the certified capital company on which
certified investors earned tax credits. A debt holder that is also a
certified investor or equity holder of a certified capital company may
receive payments with respect to such debt without any restriction
whatsoever.
(4)(a) A certified capital company shall pay to the commissioner
for deposit in the general fund an amount equal to thirty percent of
the net profits on qualified investments. A certified capital company
shall make all payments required under this subsection concurrently
with distributions of profits and gains to its equity owners; however,
nothing contained in this subsection shall be construed to affect
qualified distributions.
(b) The amount of any payment to the commissioner shall be reduced
by fifteen percent of such net profits and gains on qualified
investments if, at the time of such net profits distribution, such
certified capital company irrevocably commits to both: (i) Reinvest
the remaining fifteen percent of such net profits not being paid to the
general fund into qualified businesses, and (ii) invest an additional
amount equal to at least fifteen percent of such net profits
distribution into qualified business which additional amount shall come
from a separate pool of venture capital that is controlled by the
certified capital company but that does not contain certified capital.
In making investments from funds under this subsection, the certified
capital company shall follow the requirements of section 5(3) of this
act pertaining to obtaining approval of the investment being in a
qualified business. Once qualified investments in qualified businesses
have been made pursuant to this subsection equal thirty percent of the
net profits on qualified investments, then the requirement under this
subsection shall be satisfied and the proceeds from such qualified
businesses may be distributed without restriction.
NEW SECTION. Sec. 9
(2) Any material violation of section 5 of this act shall be
grounds for decertification of the certified capital company.
(3) Once a certified capital company has invested an amount
cumulatively equal to one hundred percent of its certified capital in
qualified investments and has met all other requirements under this
act, the certified capital company shall no longer be subject to
regulation by the commissioner and shall no longer be subject to
section 5 of this act. Upon receiving documented certification by a
certified capital company that it has invested an amount equal to one
hundred percent of its certified capital, the department shall have
sixty days to notify such certified capital company that it has or has
not met the requirements with a reason for such determination if it has
not, in the judgment of the commissioner, met such requirement. If the
commissioner does not provide such notification within sixty days, the
certified capital company shall be deemed to have met such
requirements.
(4) The commissioner shall send written notice of such
decertification to the address of each certified investor whose tax
credit has been subject to recapture or forfeiture, using the address
shown on the last filing submitted to the commissioner.
NEW SECTION. Sec. 10
NEW SECTION. Sec. 11
NEW SECTION. Sec. 12
(1) The number of certified capital companies holding certified
capital;
(2) The amount of certified capital invested in each certified
capital company;
(3) The cumulative amount that each certified capital company has
invested as of January 1, 2007, and the cumulative total each year
thereafter;
(4) The cumulative amount that the investments of each certified
capital company have leveraged in terms of capital invested by other
sources of capital in qualified businesses at the same time or
subsequent to investments made by a certified capital company in such
businesses;
(5) The total amount of tax credits granted under this act for each
year the credits have been awarded;
(6) The performance of each certified capital company with regard
to the requirements for recertification;
(7) The classification of the companies in which each certified
capital company has invested according to industrial sector and size of
company;
(8) The total gross number of jobs created by investments made by
each certified capital company using certified capital and the number
of jobs retained;
(9) The location of the companies in which each certified capital
company has invested; and
(10) Those certified capital companies that have been decertified,
or have had their certification revoked, including the reasons for
decertification or revocation.
NEW SECTION. Sec. 13
NEW SECTION. Sec. 14
NEW SECTION. Sec. 15 Sections 1 and 3 through 13 of this act
constitute a new chapter in Title
NEW SECTION. Sec. 16 This act is necessary for the immediate
preservation of the public peace, health, or safety, or support of the
state government and its existing public institutions, and takes effect
July 1, 2005.