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Description of the Small Business Investment Company Program Participation by Unleveraged Funds

Author: Christopher A. Rossi

October 2017
Description of the Small Business Investment Company Program Participation by Unleveraged Funds

A Small Business Investment Company (SBIC) is a privately owned and operated company that makes long-term investments in American small businesses and is licensed by the United States Small Business Administration (SBA).

The principal reason for a firm to become licensed as an unleveraged SBIC is the special rules applying to investments in SBICs made by certain financial institutions. Banks and Federal savings associations (as well as their holding companies) have the ability to own or to invest in SBICs and thereby to own indirectly more than 5 percent of the voting stock of a small business. The Dodd-Frank Wall Street Reform and Consumer Protection Act generally prohibits a banking entity from acquiring or retaining any equity, partnership or other ownership interest in or sponsoring a private equity fund. In addition, non-bank financial companies that engage in proprietary trading or ownership or sponsorship of a private equity fund may be subject to additional capital and quantitative limits. These prohibitions are not applicable to investments in SBICs. Additionally, banks, Federal savings associations and their holding companies also receive Community Reinvestment Act Credit for SBIC investments; and, in the case of banks and their holding companies, also receive exemptions from certain capital charge regulations and lending “affiliation” rules under the Gramm-Leach-Bliley Act.

This document provides a general overview of the SBIC Program for SBICs not using “Leverage” provided by SBA.

The U.S. Small Business Administration

SBA administers the SBIC Program through its Investment Division (which employs approximately 80 people). SBA is an independent Federal agency, located at 409 Third Street, SW, Washington, DC 20006 (202.205.6510). Useful information about the SBIC Program is available on SBA’s website at www.sba.gov/INV or may be obtained by contacting Samuel J. Boyd, Jr. (202.205.7546).

SBIA

The SBIC industry is served by an active trade association, the Small Business Investor Alliance (SBIA), which is located at 1100 H Street, NW, Suite 1200, Washington, DC 20005 (202.628.5055), www.sbia.org. SBIA’s President is Brett Palmer. Harry Haskins, the long-term senior career SBA manager of the SBIC Program is SBIA’s Director of SBIC Relations. SBIA provides a variety of information and services to its members and represents the industry with SBA and on Capitol Hill. SBIA publishes regular updates and is a resource for information concerning the SBIC Program.

Historical Perspective

Established by the United States Congress in 1958 to stimulate long-term investment in American small businesses, the SBIC Program has evolved into a significant factor in financing smaller American businesses. Over the years, SBICs have provided over $91 billion of funding to more than 116,000 businesses, including well-known companies such as Apple Computer, Federal Express, Cray Computers, Callaway Golf and Outback Steakhouse.

The SBIC Program has undergone significant changes since its creation in 1958. The original Program permitted only Debenture Leverage. The Small Business Equity Enhancement Act of 1992 drastically changed the SBIC Program. It created a new form of SBA Leverage known as “Participating Securities” (essentially preferred limited partnership interests in an SBIC); increased the amount of Leverage available to an SBIC to $90 million (which subsequently was indexed to reflect changes in the cost of living since March 31, 1993 and then modified in 2009 to be $150 million); required minimum private capital of $10 million for SBICs using Participating Securities and $5 million for SBICs using Debentures; provided for stricter SBA licensing standards; and enacted other changes to make the program more consistent with the private venture capital industry. Unlike the Debenture Program (where SBA is a creditor of the SBIC), which requires an SBIC to make periodic interest payments, the Participating Securities Program required an SBIC to pay SBA a prioritized payment (preferred return) and a profit share when the SBIC realized profits. As a consequence, the Participating Securities Program was designed to permit investing in equity securities whether or not those securities had a current pay component. This new program resulted in a large expansion of the number of SBIC licenses granted.

Following the burst of the “technology bubble” in 2002, the Administration decided there no longer was a need for an equity SBIC program and that the existing Participating Securities Program would cause significant losses to SBA. Accordingly, SBA decided to terminate the Participating Securities Program and announced that beginning on October 1, 2004, it would not issue commitments to use Participating Securities Leverage or license new SBICs using that Leverage.

SBA officials continue to emphasize that they believe the Debenture Program is working well and they want to expand it. The governing law and regulations for the Debenture Program have undergone several revisions since 1994 that have further streamlined and improved the SBIC Program. During the last four years SBA has conducted significant outreach to institutional investors, bank regulators and prospective applicants in order to enlarge the existing Debenture Program and to create ways for SBICs to make certain kinds of equity investments without undermining the financial integrity of the Debenture Program.

As of June 30, 2016,1 there were 315 licensed SBICs with approximately $14.9 billion of private capital and $11.1 billion of outstanding SBA Leverage (of which $11 billion is Debenture Leverage and $130 million is Participating Securities Leverage). Of these SBICs: 224 use Debentures; 35 use Participating Securities; 48 do not use Leverage; and eight are specialized SBICs.

During the first three quarters of the 2017 Federal fiscal year (October 1 – September 30) (FY) ended June 30, 2016, SBA licensed a total of 12 SBICs with approximately $650 million of private capital. Of those eight are Debenture SBICs and four are Unleveraged SBICs.

Community Reinvestment Act Credit

Current Community Reinvestment Act (CRA) regulations present banks (other than certain “small banks”) with a continuing need to make investments that qualify for CRA purposes. Investment in an SBIC is specifically identified in the CRA regulations as a type of investment that will be presumed by the regulatory agencies to be a “qualified investment” for CRA purposes. The investment should be in an SBIC that is located in or doing substantial business in the region in which the bank’s assessment area is located, but the SBIC is not required to be headquartered within the assessment area itself. The SBIC Act and other Federal statutes explicitly permit banks, bank holding companies, Federal savings associations and savings and loan holding companies to invest in SBICs.

Gramm-Leach-Bliley Act and Dodd-Frank Act Exemptions

As part of the implementation of the Gramm-Leach-Bliley Act (the GLB Act), effective April 1, 2002, the Federal Reserve Board, the FDIC and the Office of the Comptroller of the Currency adopted new regulations governing regulatory capital treatment for certain equity investments held by banks, bank holding companies and financial holding companies. Under the regulations, an 8 percent Tier 1 capital deduction applies on covered investments that in the aggregate are less than 15 percent of an organization’s Tier 1 capital, a 12 percent deduction applies to investments aggregating 15-24.99 percent of Tier 1 capital, and a 25 percent deduction applies to investments aggregating 25 percent and above of Tier 1 capital. The regulations exempt SBIC investments from such capital charges so long as their value is less than 15 percent of Tier 1 capital. However, the amount of SBIC investments will be considered when determining capital charges with respect to other investments. These rules, however, may be affected by contemplated changes to bank capital requirements to conform to the Basel III Accords.

In addition, ownership of a 15 percent equity interest in a portfolio company by a bank-affiliated SBIC will not give rise to a presumption that the portfolio company is an Affiliate under Sections 23(a) and (b) of the GLB Act.

The Dodd-Frank Act generally prohibits a banking entity from acquiring or retaining any equity, partnership or other ownership interest in or sponsoring a private equity fund. In addition, non-bank financial companies that engage in proprietary trading or ownership or sponsorship of a private equity fund may be subject to additional capital and quantitative limits. These prohibitions are not applicable to investments in SBICs. The final regulations implementing the “Volcker Rule” under Dodd-Frank Act permit banking entities to invest in licensed SBICs, as well as in funds that have received permission from SBA to file an SBIC license application, and to sponsor SBICs.

Investment Advisers Act Exemption

An adviser that solely advises SBICs, an entity that has received a “green light letter” authorizing it to submit a formal SBIC license application to SBA and an applicant that is affiliated with one or more SBICs and that has applied for another SBIC license is expressly exempted from the Dodd-Frank Act amendments to the Investment Advisers Act of 1940 (the Advisers Act) which amendments require advisers to certain types of private funds to register with the Securities and Exchange Commission or to become exempt reporting advisers.

The SBIC Advisers Relief Act, which became law on December 4, 2015, provides certain additional relief for investment advisers that advise private funds and SBICs, and for investment advisers that advise venture funds and SBICs. Before the enactment of the SBIC Advisers Relief Act, only advisers solely to private funds that had assets under management in the United States of less than $150 million could rely upon the so-called “private fund adviser exemption” from the Advisers Act’s investment adviser registration requirements. Also, prior to the enactment of the SBIC Advisers Relief Act, only advisers solely to one or more venture capital funds (as defined by the SEC) could rely upon the so-called “venture capital fund adviser exemption” from the Advisers Act’s investment adviser registration requirements. The SBIC Advisers Relief Act revised the private fund adviser exemption by excluding SBIC assets from counting towards the $150 million threshold for purposes of determining whether an investment adviser satisfies the conditions for the private fund adviser exemption and by deeming SBICs to be venture capital funds for purposes of the venture capital fund adviser exemption.

Certain Exemptions from SBA Regulations

Unleveraged SBICs are exempt from many SBA regulations which pertain to SBICs using Debentures, including:

  • the management-ownership diversity requirement, which generally prohibits a single investor from owning greater than 70 percent of an SBIC and requires that at least three “Institutional Investors” (which are entities or natural persons that satisfy certain net worth criteria) unaffiliated with management and one another and whose investments in the SBIC are significant in dollar and percentage own at least 30 percent of the SBIC
  • the “overline” limitations which restrict how much can be invested in any one portfolio company and its affiliates
  • restrictions on the SBIC’s use of its “idle funds"
  • restrictions on the SBIC’s incurrence of third party secured debt
  • certain recordkeeping requirements
  • limitations on distributions to the SBIC’s investors and the requirement to obtain SBA approval to decrease “Regulatory Capital” by more than 2 percent per year (but must notify SBA of any reduction within 30 days)
  • prohibitions the SBIC’s ability to sell assets to its “Associates” without SBA approval
  • SBA consent requirements for certain types of co-investments made with the SBIC’s Associates
  • the requirement that SBA approve management services contracts with the SBIC’s management company and the SBIC’s initial management expense and any changes thereto (although the SBIC is required to notify SBA of such initial management expenses and of any such changes)
  • the requirement to obtain SBA’s prior approval for new directors and officers other than the chief operating officer (although the SBIC is required to notify SBA of any such new directors or officers within 30 days), and
  • limitations on the amount of management fees the SBIC is permitted to pay.

SBIC Investments

An SBIC can only invest in “Small Businesses” and must invest at least 25 percent of its invested funds in “Smaller Enterprises.”2 SBA regulations define a “Small Business” as a company with tangible net worth (total net worth less goodwill) of less than $19.56 million and average after-tax income (exclusive of loss carry-forwards) for the prior two years of less than $6.5 million. A company failing that test can still qualify as a Small Business if it meets the size standards for its industry group under an alternative test. The size standards for industry groups under this alternative test are based on the number of employees (typically 500 to 1,000 for a manufacturing company) or gross revenues.3 A “Smaller Enterprise” is a company with a net worth (excluding goodwill) of less than $6 million and average after-tax income for the prior two years of less than $2 million or which meets the alternative test. Importantly, in making a determination under the size test and the alternative test, the company and all Affiliates of the company must be considered. Companies are “Affiliates” of each other if one controls or has the power to control the other or a third party or parties control or have the power to control both. SBICs and private funds exempted from registration under certain sections of the Investment Company Act of 1940 are not considered Affiliates of a company for purposes of determining whether that company qualifies as a Small Business or Smaller Enterprise. Certain debt-to-equity ratios must also be met if an SBIC finances the change of ownership of a Small Business with more than 500 employees.

SBIC regulations preclude investment in the following types of businesses: companies whose principal business is re-lending or re-investing (venture capital firms, leasing companies, factors, banks); many kinds of real estate projects; single-purpose projects that are not continuing businesses; companies that will use the proceeds outside of the United States or have more than 49 percent of their tangible assets or employees outside the United States at the time of financing or within one year following the financing (unless the funding is used for a specific U.S. purpose that is acceptable to SBA); businesses that are passive and do not carry on an active trade or business; and businesses that use 50 percent or more of the funds to buy goods or services from an associated supplier.

Historically, SBA regulations prevented an SBIC (or two or more SBICs acting together) and its Associates (controlled or related persons) from controlling a small business, except on a temporary basis to protect its investment or if the small business was a “start-up.” In December 2000, legislation was enacted eliminating the legislative basis for regulating “control during the investment period.” Effective November 21, 2002, SBA adopted final regulations indicating that an SBIC and its Associates may control a small business for up to seven years, and with SBA’s consent, for a longer period, to permit an orderly sale of the investment or to ensure the financial stability of the small business.

SBICs are precluded from making investments in a Small Business if it would give rise to a conflict of interest. Generally, a conflict of interest may arise if an Associate4 of the SBIC has or makes an investment in the Small Business or serves as one of its officers or directors or would otherwise benefit from the financing. Joint investing with an Associate (such as another fund controlled by affiliates of the General Partner) may be made on the same terms and conditions and at the same time or on terms that are fair to the SBIC.

Terms of Portfolio Company Financings

An SBIC may make investments in the form of debt with no equity features (Loans), debt with equity features (Debt Securities), or stock, rights to acquire stock, and interests in limited partnerships, limited liability companies and joint ventures (Equity Securities). Investments must be made for a term of not less than one year (except for bridge loans in anticipation of a permanent financing in which the SBIC intends to participate or to protect the SBIC’s prior investment). Loans and Debt Securities must have amortization not exceeding “straight line.” The permissible interest rate depends on the type of debt. For straight Loans, the permitted rate is the higher of (i) 19 percent or (ii) 11 percent over the higher of the SBIC’s weighted cost of Debenture Leverage or the current Debenture Rate. For Debt Securities, the permitted rate is the higher of (i) 14 percent or (ii) 6 percent over the higher of the SBIC’s weighted cost of Debenture Leverage or the current Debenture Rate. Regulations define an SBIC’s weighted cost of Debenture Leverage and describe the permitted rate when more than one SBIC participates in the financing.

The applicable interest rate is calculated adding in all points, fees, discounts and other costs of money, other than (i) application and closing fees of up to 5 percent of the financing if it is a Debt Security, or 3 percent for Loans, (ii) permitted prepayment penalties, and (iii) reasonable monitoring expenses, each of which may be charged in addition to the permitted interest. In addition, an SBIC may be reimbursed for its reasonable closing costs (including legal fees). An SBIC may also charge a default rate of interest of up to 7 percent and a royalty based on improvement in the performance of a portfolio company after the financing.

An SBIC is permitted to require a Small Business to redeem Equity Securities, but only after one year and only for a price equal to either (i) the purchase price or (ii) a price determined at the time of redemption based on (a) a reasonable formula that reflects the performance of the company (e.g., based on the book value or earnings) or (b) fair market value determined by a professional, third party appraiser. Mandatory redemptions not complying with these requirements will result in the investment being treated as a Debt Security, subject to the interest restrictions described above. However, the Small Business can be required to redeem the SBIC’s equity security if the Small Business has a public offering, has a change of control or management or defaults under its investment agreement.

An SBIC is permitted to retain its investment in a business that ceases to be a Small Business and is permitted to continue to invest in such a “large” business until the company has a public offering. Following a public offering, the SBIC is permitted to exercise rights to acquire securities that were obtained prior to the public offering.

If within one year of the initial financing by an SBIC a portfolio company changes its business to one in which an SBIC is prohibited from investing, then the SBIC must divest itself of the investment absent SBA’s approval.

SBIC Operations

SBA has adopted a number of regulations and policies concerning operating requirements of SBICs intended to assure their proper management. Principal regulations and policies include:

An SBIC and its Associates may provide management services to Small Businesses in which the SBIC invests, but only may charge for services at competitive rates for services actually rendered.

The General Partner or Board of Directors is required to value the SBIC’s assets annually pursuant to valuation guidelines approved by SBA. SBA has issued model valuation guidelines that are similar to those customarily used by venture capital firms, but do not conform with generally accepted accounting principles.

An SBIC’s ability to borrow funds from third parties is subject to SBA regulation. Although SBICs using Debentures may only incur unsecured debt, unleveraged SBICs may incur secured debt.

SBICs are required to file a variety of reports with SBA, none of which generally are considered burdensome. These reports include an annual financial statement which is certified to by the SBIC’s independent certified public accountants (and contains information concerning each portfolio company), valuation reports as described above, capital certificates reporting, among other things, changes in “Regulatory Capital,” reports as to changes in the SBIC’s management, material litigation, a brief report describing each investment, and copies of reports sent to investors and, if applicable, to the SEC. SBA will conduct regulatory examinations of each SBIC on an annual basis.

SBA has certain rights and remedies if the SBIC violates SBA regulations. Remedies for regulatory violations are graduated in severity depending on the seriousness of the regulatory violation. For minor regulatory infractions, warnings are given. For serious infractions restrictions on distributions and making new investments may be imposed, management fees may be required to be reduced, and investors may be required to pay their unfunded capital commitments to the SBIC. In severe cases, SBA may require the Limited Partners to remove the Partnership’s general partner or manager or its officers, directors, managers or partners, or SBA may obtain appointment of a receiver for the Partnership.

Organization

SBICs are organized under state law as corporations, limited partnerships or limited liability companies.

Investors

Investors may be either domestic or foreign individuals or entities. The SBIC Act specifically authorizes banks and Federal savings associations to invest up to 5 percent of their capital and surplus in SBICs. Certain investors owning 33 percent or more of an SBIC are required to submit certain background information to SBA and are subject to SBA’s fingerprinting requirements. All investors in an SBIC and anyone owning 10 percent or more of any investor owning 10 percent of an SBIC must be identified to SBA in the SBIC’s license application.

Restrictions on Transfer

Investors in an SBIC may not transfer their interests without SBA’s prior consent. Additionally, without SBA’s consent, an SBIC may not release any of its investors from the liability to make the full amount of their capital contribution.

Licensing

SBA uses a two-step licensing process for “first time” SBICs. In the first phase, an applicant completes and submits to SBA a form entitled Management Assessment Questionnaire (MAQ). This contains the elements of the applicant’s business plan as well as detailed information concerning the experience of each of the “Principals” to carry out the business plan.

SBA generally requires that at least two, substantially full-time, members of the team have at least five years of successful investment experience at a decision-making level in the types of investments the applicant is proposing to make. Generally each individual’s track record should include at least 10-15 investments with a reasonable number of complete realizations during the last ten years (and preferably including some that are quite recent). SBA also considers how long and in what ways the management team has worked together. SBA views the track record of the Principals and the “cohesiveness” of the key Principals as being fundamentally important. Additionally, SBA is concerned about the internal management of the SBIC. They prefer a team composed of three to five Principals, although as few as two and as many as six also are acceptable. However, SBA does not want dominance by a single Principal over investment and other management decisions (including personnel matters). They do not want to license a “one man band.” SBA looks at the division of the SBIC’s carried interest to evaluate relationships. They have an informal rule that no Principal may own 50 percent or more of the carried interest, unless there are only two Principals and they each have 50 percent.

The MAQ is then reviewed by SBA’s “Investment Committee,” after which the Principals, if appearing qualified, are invited to meet with the members of the Investment Committee. After the meeting with the applicant’s Principals, SBA’s Investment Committee may turn the application down or issue a “green light” letter indicating that the applicant has passed the first part of the application process and now is authorized to file a formal application. At the present time, a “green light” letter usually is issued three to four months following submission of the MAQ and immediately after the interview.

An applicant that receives a green light letter must file its formal license application not more than 18 months after the date of that letter. Although SBA does not charge applicants any fee for processing the MAQ, applicants must pay a non-refundable license application fee of $15,000 at the time they submit their formal application for an SBIC license.

After receipt of the “green light” letter and obtaining commitments for at least the minimum required Regulatory Capital from investors satisfying the “diversity” requirement, the applicant files a formal application which contains additional information about the applicant and the management team, as well as the applicant’s and its general partner’s or manager’s organizational applicant documents. While the Regulations require a Debenture SBIC to have at least $5 million of Regulatory Capital, SBA generally requires an SBIC to have firm commitments when its formal license application is filed for an amount of capital that is sufficient to enable the SBIC to have a first closing and conduct its operations, even if it does not subsequently raise additional funds. Depending on the projected size of the SBIC, SBA could require $15 – 20 million of private commitments, or more, at the time the application is filed. During the formal licensing process, SBA seeks to determine that there is a qualified management team and that the SBIC has a good chance of operating profitably. SBA reviews the applicant’s business plan, projections and organizational documents, and conducts reference and other background checks (including litigation searches and an FBI fingerprint check) on the management team. The process presently is taking approximately six to nine months. SBA requires applicants to advise their investors that the investors are not entitled to rely on SBA’s review of the applicant in deciding whether to invest.

After a license application is filed and accepted for processing by SBA, an applicant may make “pre-licensing investments,” which will be included in the applicant’s Regulatory Capital if they are submitted to and approved by SBA prior to the investment being made. SBA requires 10 business days to review such pre-licensing investments (but approvals frequently take longer). SBA does not determine the quality or wisdom of the investment. Rather, SBA simply seeks to determine if the investment is made in compliance with SBA Regulations. Once licensed, SBA pre-approval of investments is not required. SBA requires all principal members of the management team to attend a one-day regulations class run by SBA and will only permit one “pre-licensing” investment to be made prior to at least one person from applicant attending the class. Arrangements for attending the regulations class are made by contacting SBIA.

Timeline

Applicants should assume the following timeline for securing a license:

Management Assessment Questionnaire

3-4 months

Formal License Approval

6-9 months

Total

9-13 months

This timeline assumes the license application is filed immediately upon receipt of the “green light” letter.

Licensing Second Funds

For “second” SBIC funds, SBA follows a process that is similar to licensing new funds. After submission of a request outlining the proposed new SBIC, SBA’s Office of Operations compares the new fund and the prior fund(s) (similarity of business plan, changes in management team, track record, profitability, liquidity and prior SBA compliance record) and makes a recommendation to the Investment Committee that in turn makes a decision whether to issue a “green light” letter for the new fund. Following receipt of that letter, when the new fund has received commitments for the minimum required capital that also satisfies the “diversity” requirement, the fund may submit a formal application for processing. If the “second” fund continues the investment strategy of a successful SBIC and the management team is basically the same, SBA has adopted a new “fast track” licensing process designed to shorten the process to less than six months. Under SBA policy, the prior SBIC and the follow-on SBIC must each agree not to co-invest more than 30 percent of its investable capital with the other SBIC.

Endnotes

1 SBICs that have surrendered their licenses or have been transferred to the Office of Liquidation are not included in these figures.

2 This percentage may be lower for certain SBICs licensed before February 17, 2009.

3 The alternative size test uses the predominant industry for the company together with its affiliates taken together.

4 The definition of an Associate is complex, generally covering all control persons and their respective control persons.

The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship