§ 4-28-102 — Chapter definitions

As used in this chapter: (1) "Affiliate" means: (A) (i) Any person who, directly or indirectly, beneficially owns, controls or holds the power to vote fifteen percent (15%) or more of the outstanding voting securities or other voting ownership interest of a TNInvestco or insurance company; or (ii) Any person, fifteen percent (15%) 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 a TNInvestco or insurance company; (B) Notwithstanding this subdivision (1), an investment by a participating investor in a TNInvestco pursuant to an allocation of investment tax credits under this section does not cause that TNInvestco to become an affiliate of that participating investor; (2) "Allocation amount" means the total amount of tax credits allocated to the participating investors in a qualified TNInvestco pursuant to this chapter; (3) "Allocation date" means the date on which investment tax credits under § 4-28-105 are allocated to the participating investor of a qualified TNInvestco under this chapter; (4) "Base investment amount" means fourteen million dollars ($14,000,000) in the case of a qualified TNInvestco receiving one (1) allocation of tax credits and twenty eight million dollars ($28,000,000) in the case of a qualified TNInvestco receiving two (2) allocations of tax credits, which must be available in cash or cash equivalents immediately following the investment by a TNInvestco's participating investors and its owners; provided, however, that a contract for payment of cash or cash equivalents over a specified period of time shall also be sufficient; (5) "Designated capital" means an amount of money that is invested by a participating investor in a qualified TNInvestco; (6) "End date profit share percentage" means a fee paid to the state by a qualified TNInvestco as provided in § 4-28-109 in an amount equal to ninety-nine percent (99%) of all distributions or payments made by a qualified TNInvestco that are not classified as qualified distributions, other than distributions or repayments of capital contributions by the TNInvestco's equity owners who are not participating investors and that occur after the program end date; (7) "Investment period" means the period January 1, 2010, through December 31, 2019; (8) "Minority-owned business" means a business that is wholly owned, or at least fifty-one percent (51%) of the assets or outstanding stock of which is owned, by one (1) or more individuals who are members of any racial or ethnic minority within the state and whose management and daily business operations are under the control of one (1) or more members of any racial or ethnic minority within the state; (9) "Participating investor" means any insurance company required to pay the gross premiums tax pursuant to § 56-4-205 that contributes designated capital pursuant to this chapter; (10) "Person" means any natural person or entity, including, but not limited to, a corporation, general or limited partnership, trust or limited liability company; (11) "Profit share percentage" means a fee paid to the state by a qualified TNInvestco as provided in § 4-28-109 in an amount equal to fifty percent (50%) of all distributions or payments made by a qualified TNInvestco that are not classified as qualified distributions, other than distributions or repayments of capital contributions by the TNInvestco's equity owners who are not participating investors; (12) "Program end date" means December 31, 2024; (13) (A) "Qualified business" means a business that is independently owned and operated and meets all of the following requirements: (i) It is headquartered in this state, its principal business operations are located in this state, and at least sixty percent (60%) of its employees are located in this state; (ii) It has not more than one hundred (100) employees; (iii) It is not principally engaged in: (a) Professional services provided by accountants, doctors or lawyers; (b) Banking or lending; (c) Real estate development; (d) Insurance; (e) Oil and gas exploration; or (f) Gambling activities; and (iv) It is not a franchise of and has no financial relationship with a TNInvestco or any affiliate of a TNInvestco prior to a TNInvestco's first qualified investment in the business; provided, however, that if the TNInvestco continues to fulfill its fiduciary duty to the program established by this chapter, then the business can be one in which the TNInvestco, its affiliates, or a separate fund managed by the managers of the TNInvestco was invested prior to the allocation of investment tax credits to the TNInvestco; and provided, further, that if the TNInvestco continues to fulfill its fiduciary duty to the program established by this chapter, then the business can be one in which a separate fund managed by the managers of the TNInvestco makes an investment after the investment by the TNInvestco; (B) (i) The requirements of subdivision (13)(A)(i) may, in the alternative, be met if the qualified TNInvestco represents in its application for funding approval that the business will, in the definitive purchase agreements to be executed upon closing, agree to: (a) Commence locating its headquarters, its principal business operations, and at least sixty percent (60%) of its employees in Tennessee; and (b) Complete all of the required elements of subdivision (13)(A)(i) within twelve (12) months after closing; (ii) If the business fails to fulfill the commitments specified in subdivision (13)(B)(i), then the commissioner of economic and community development may, in the commissioner's sole discretion, impose on the TNInvestco the following penalty. Notwithstanding subdivision (11) to the contrary, under the penalty authorized by this subdivision (13)(B)(ii), the profit share percentage, as otherwise defined in subdivision (11), shall be amended such that the fee paid to the state by the qualified TNInvestco in connection with the business shall equal eighty percent (80%), rather than fifty percent (50%), of any distributions arising from the TNInvestco's investment in the business, other than qualified distributions or distributions or repayments of capital contributions by the TNInvestco's equity owners who are not participating investors; (C) A business classified as a qualified business at the time of the first qualified investment in the business will remain classified as a qualified business and may receive continuing qualified investments from any TNInvestco; provided, that the business continues to meet the requirements of subdivision (13)(A)(i); (14) "Qualified distribution" means any distribution or payment by a qualified TNInvestco in connection with the following: (A) Costs and expenses of forming, syndicating and organizing the qualified TNInvestco, including fees paid for professional services; provided, however, that start up costs shall not exceed one hundred twenty-five thousand dollars ($125,000); (B) An annual management fee to offset the costs and expenses of managing and operating a qualified TNInvestco; provided, however, that in the first four (4) years following its allocation date, a qualified TNInvestco's management fee shall not exceed two percent (2%) of its base investment amount per annum and in the fifth through tenth years following its allocation date, a qualified TNInvestco's management fee per annum shall not exceed two percent (2%) of the lesser of its base investment amount or its qualified investments; (C) Reasonable and necessary fees in accordance with industry custom for ongoing professional services, including, but not limited to, legal and accounting services related to the operation of a qualified TNInvestco not including any lobbying or governmental relations; provided, however, that professional service fees shall not exceed fifty thousand dollars ($50,000) annually; (D) An increase or projected increase in federal or state taxes of the equity owners of a TNInvestco resulting from the earnings or other tax liability of a TNInvestco to the extent that the increase is related to the ownership, management or operation of a TNInvestco; provided, however, that such distributions shall not exceed that actual tax liability due and payable on such investor's actual return. Documents supporting such payments must be provided to the commissioner of revenue upon request; or (E) Payments to the TNInvestco's equity owners who are not participating investors; provided, that no such payments shall reduce the base amount for other purposes of this chapter without regard to the early or seed stage multiplier; (15) "Qualified investment" means the investment of cash by a qualified TNInvestco in a qualified business for the purchase of equity, equity options, warrants, or debt convertible to equity. An investment by a qualified TNInvestco in a debt instrument whose terms are substantially equivalent to terms typically found in debt financing provided by banks to profitable companies, such as security interests in tangible assets with readily discernable orderly liquidation value in excess of the loan amount and/or personal guarantees, shall not be deemed as a qualified investment. Qualified investments determined to be seed or early stage investments shall be increased by three hundred percent (300%) for purposes of determining if a qualified TNInvestco meets the investment thresholds in § 4-28-106 ; (16) "Qualified TNInvestco" means a TNInvestco that has been approved to receive an investment tax credit allocation; (17) "Seed or early stage investment" means an investment in a company that has a product or service in testing or pilot production that may or may not be commercially available. The company may or may not be generating revenues and may have been in business less than three (3) years at the time of investment; (18) "State premium tax liability" means any liability incurred by an insurance company under § 56-4-205 or in the case of a repeal or a reduction by the state of the liability imposed by § 56-4-205 , any other tax liability imposed upon an insurance company by the state; (19) "TNInvestco" means a partnership, corporation, trust or limited liability company, whether organized on a for-profit or not-for-profit basis that completes the application process in § 4-28-104 and that is certified by the department of economic and community development as meeting the established criteria; and (20) "Woman-owned business" means a business that is wholly owned, or at least fifty-one percent (51%) of the assets or outstanding stock of which is owned, by one (1) or more women and whose management and daily business operations are under the control of one (1) or more women.

Legislative History

Amended by 2021 Tenn. Acts, ch. 510, s 1, eff. 5/25/2021. Acts 2009 , ch. 610, § 3; 2010 , ch. 1142, §§ 1- 5, 15, 24, 25.