Current through September 21, 2024
(a) "The article" means
W.S.
9-12-1301 through
9-12-1312;
(b) "Fiscal year" means the twelve (12) month
period that a company uses when reporting to the Internal Revenue
Service;
(c) "Follow-on capital"
means any additional investments of capital made in a qualified business that
has received a qualified investment;
(d) "Headquartered" means an organization's
principal office is located in Wyoming and at least sixty percent (60%) of the
organization's employees are employed in Wyoming or 60% of the business payroll
is paid to individuals living in Wyoming;
(e) "Liquid assets" means an investment that
can be converted to cash in less than 20 days;
(f) "Person" means a natural person or
entity, including a corporation, general or limited partnership, trust or
limited liability company;
(g)
"Principal office" means the main administrative functions of the organization
and the original books and records are maintained in the Wyoming
office;
(h) "Qualified debt
instrument" means a debt instrument issued by a Wyoming small business
investment company which:
(i) Is issued at par
value or a premium;
(ii) Has an
original maturity date of at least four (4) years from the date of issuance and
a repayment schedule which is not faster than a level principal amortization
over four (4) years. A repayment schedule is not faster than a level principal
amortization over four (4) years if the repayment schedule for the debt
instrument issued by a Wyoming small business investment company has a
scheduled outstanding principal balance greater than a hypothetical note with
the same price and yield as the Wyoming small business investment company's
debt instrument that provided for principal to be amortized over equal,
consecutive daily payments, where payments are first allocated to accrued
interest and then to principal. However, a participating investor may receive
payments at any time for future earned interest, provided the amount received
does not exceed the present value of that future interest payment, discounted
by a factor that is not less than the stated interest rate of the debt
instrument;
(iii) Satisfies the
rating criteria to qualify as "NAIC 1" as determined by the securities
valuation office of the national association of insurance commissioners;
and
(iii) Has no interest,
distribution or payment features that are related to the profitability of the
Wyoming small business investment company or the performance of the Wyoming
small business investment company's investment portfolio.
(j) "Qualified distribution" means any
distribution or payment made by a Wyoming small business investment company in
connection with:
(i) The costs and expenses of
forming, syndicating and organizing the Wyoming small business investment
company, including any fee paid for professional services, and the costs of
financing and insuring the obligations of the Wyoming small business investment
company provided that the distribution or payment is not made directly or
indirectly to a participating investor, including:
(A) That at the time the Wyoming small
business investment company closes its investment from its participating
investors and after deducting the aggregate of the costs of organizing,
forming, syndicating, insuring and defeasing the obligations, the Wyoming small
business investment company must have cash or other liquid assets available for
qualified investments, in an amount equal to at least fifty percent (50%) of
the amount of designated capital initially received from its participating
investors.
(ii) An
annual management fee not to exceed three percent (3%) of designated capital on
an annual basis to offset the costs and expenses of managing and operating a
Wyoming small business investment company;
(iii) 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
Wyoming small business investment company;
(iv) An increase or projected increase in
federal or state taxes, including penalties and related interest, of the equity
owners of a Wyoming small business investment company resulting from the
earnings or other tax liability of a Wyoming small business investment company
to the extent that the increase is related to the ownership, management or
operation of a Wyoming small business investment company; and
(v) Payments of principal and interest to
holders of qualified debt instruments issued by a Wyoming small business
investment company.
(k)
"Qualified Investment" means the investment of money by a Wyoming small
business investment company in a qualified business for the purchase of any
debt, debt participation, equity or hybrid security of any nature and
description, including a debt instrument or security which has the
characteristics of debt but provides for conversion into equity or equity
participation instruments such as options or warrants, but shall not include
any purchase of a guaranteed portion of a federally guaranteed loan; provided
that the investment must not have a final stated maturity or be subject to
mandatory redemption or repurchase prior to two (2) years from the date of
initial investment and, provided further, that not more than fifty percent
(50%) is used to refinance existing non-Wyoming small business investment
company debt. Notwithstanding the foregoing, a qualified investment shall not
include an investment that results, or could result, in a Wyoming small
business investment company owning fifty percent (50%) or more of the voting or
non-voting stock of a qualified business as evidenced by a proforma
capitalization table presented to the Wyoming small business investment
company, unless;
(i) Such ownership is the
result of:
(A) The Wyoming small business
investment company's exercise of its rights and remedies following a default in
the obligations of the qualified business;
(B) The Wyoming small business investment
company's exercise of preemptive rights granted to it in connection with its
initial investment in a qualified business, provided such rights are exercised
in connection with an investment in such qualified business by a party other
than the Wyoming small business investment company or an affiliate of the
Wyoming small business investment company;
(C) The operation of any anti-dilution rights
granted to a Wyoming small business investment company in connection with its
initial investment in a qualified business; or
(D) Such investment is approved by the
Council prior to its being made.
(l) "Remaining uninvested designated capital"
means the difference between designated capital and the cumulative amount of
all qualified investments in qualified businesses.