New Jersey-2020-A3642-Introduced

An Act concerning the sale of tax credits to fund investment in New Jersey high-growth businesses and supplementing P.L.1974, c.80 (C.34:1B-1 et seq.).

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. This act shall be known and may be cited as the "New Jersey Innovation Evergreen Act."

2. As used in P.L. , c. (C. ) (pending before the Legislature as this bill):

"Authority" means the New Jersey Economic Development Authority established pursuant to section 4 of P.L.1974, c.80 (C.34:1B-4).

"Director" means the Director of the Division of Taxation in the Department of the Treasury.

"Follow-on investment" means a subsequent investment made by an investor who has made a previous investment in a New Jersey high-growth business.

"Fund" means the "New Jersey Innovation Evergreen Fund" established pursuant to section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill).

"High-growth business" means a business that is growing significantly faster than the average growth rate of the economy or is a start-up company that is investing in developing a product or new business model that will allow it to grow significantly faster than the average growth rate of the economy within the next three to five years.

"Innovation ecosystem" means those fundraisers, programs, and events that support the establishment and expansion of high-growth businesses in targeted sectors. Examples of fundraisers, programs, and events shall include, but not be limited to: mentoring programs for start-ups; meet-up or networking events; funds for locating a business in a collaborative workspace; programs that provide businesses services; and entrepreneurial education to businesses.

"Principal business operations" means a location where at least 50 percent of the business's employees who are not primarily engaged in retail sales reside in the State, or a location where at least 50 percent of the business's payroll for employees not primarily engaged in retail sales is paid to individuals living in this State.

"Program" means the New Jersey Innovation Evergreen Program established pursuant to section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill).

"Purchaser" means an entity registered to do business in this State with the Director of the Division of Revenue and Enterprise Services in the Department of the Treasury that purchases an allocation of tax credits under the program.

"Qualified business" means a business that, at the time of the first qualified investment in the business and throughout the period of the qualified investment under the program:

a. is registered to do business in this State with the Director of the Division of Revenue and Enterprise Services in the Department of the Treasury;

b. has its principal business operations located in the State at the time of the qualified investment;

c. intends to maintain its principal business operations in the State after receiving a qualified investment under the program;

d. is engaged in a targeted industry; and

e. employs fewer than 250 persons at the time of the qualified investment.

"Qualified investment" means the direct investment of money by the fund in a qualified business for the purchase of shares of stock, with an additional investment in an option or warrant, or a follow-on investment, in the discretion of the authority, all of which is matched by an investment by a qualified venture firm.

"Qualified venture firm" means a venture firm that is approved by the authority as a qualified venture firm pursuant to section 10 of P.L. , c. (C. ) (pending before the Legislature as this bill).

"Special purpose vehicle" means an entity controlled by or under common control with a venture firm that is formed solely for the purpose of investing in a New Jersey high-growth business alongside the venture firm.

"Targeted industry" means any industry identified from time to time by the authority that disrupts current technologies or business models, including, initially: advanced transportation and logistics; advanced manufacturing; clean energy; life sciences; information and high technology; aviation; finance and insurance; non-retail food and beverage businesses; and other innovative industries.

"Venture firm" means a partnership, corporation, trust, or limited liability company that invests cash in a business during the early or expansion stages of a business in exchange for an equity stake in the business in which the investment is made. Venture firm may include a venture capital fund, a family office fund, and a corporate investor fund, provided that a professional manager administers the venture firm.

3. The New Jersey Innovation Evergreen Program is hereby established as a program under the jurisdiction of the New Jersey Economic Development Authority. The purpose of the program shall be to invest in innovation as a catalyst for economic growth and to advance the competitiveness of the State's businesses in the global economy. Beginning on the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), the authority shall auction up to $300,000,000 in tax credits to implement this purpose; provided, however, the authority shall not auction more than $60,000,000 in tax credits under the program in any calendar year. The authority shall deposit the proceeds of the auction in the New Jersey Innovation Evergreen Fund, established pursuant to section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill), as provided for in section 6 of P.L. , c. (C. ) (pending before the Legislature as this bill). The authority shall not undertake an auction if, exclusive of reserves, including the reserve set aside for follow-on investments pursuant to subsection d. of section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill), more than $15,000,000 is available to allocate to qualified venture firms.

4. a. The authority shall establish and maintain a dedicated fund to be known as the "New Jersey Innovation Evergreen Fund." The authority shall use the money in the fund only to carry out the purposes enumerated in subsections b. and c. of this section. The authority shall credit the fund with: money paid by purchasers of tax credits authorized pursuant to section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill); distributions from payments or repayments received by the authority pursuant to subsection c. of section 12 of P.L. , c. (C. ) (pending before the Legislature as this bill); earnings received, if any, from the investment or reinvestment of money credited to the fund; and any money which, from time to time, may otherwise become available for the purposes of the fund.

b. The authority shall use the fund to allocate money to qualified venture firms to make qualified investments of capital in qualified businesses through a special purpose vehicle pursuant to section 11 of P.L. , c. (C. ) (pending before the Legislature as this bill) and to pay the administrative, legal, and auditing expenses of the authority incurred in the administration of the program. The authority shall use 75 basis points of the total funds deposited in the fund, calculated on an annual basis, for programs administered by the authority that create an innovation ecosystem that supports and promotes high-growth businesses in the State.

c. The authority shall deposit into the fund dividends and returns on investments paid to the authority by or on behalf of a qualified business. Upon the fund holding total deposits of $500,000,000, and thereafter upon a qualified investment in a qualified business achieving a return on investment of twice the original and follow-on investment, 50 percent of any return on investment in excess of twice the original and follow-on investment shall be paid to the General Fund of the State.

d. The authority shall account for and calculate reserves for follow-on investments, programs that support the State's innovation ecosystem, and administrative, legal, and auditing expenses. The authority shall not include these reserves when calculating the amount in the fund available for new qualified investments.

5. a. The authority shall sell the tax credits authorized pursuant to section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill) to purchasers through a competitive auction process.

b. The authority shall determine the form and manner in which potential purchasers may bid for tax credits available under the program. To be allowed a tax credit under the program, a potential purchaser shall:

(1) specify the requested amount of tax credits, which shall not be less than $1,000,000;

(2) specify the amount the potential purchaser will pay in exchange for the requested amount of tax credits, which shall not be less than 85 percent of the requested dollar amount of tax credits;

(3) commit to serve on the New Jersey Innovation Evergreen Advisory Board, established pursuant to section 13 of P.L. , c. (C. ) (pending before the Legislature as this bill), and to otherwise provide mentorship and networking opportunities to qualified businesses that receive funding under the program; and

(4) provide any other information that the chief executive officer of the authority determines is necessary.

c. Prior to an auction, the authority shall establish and disclose to bidders the weighted criteria the authority will utilize, which the authority shall base on the price offered to purchase the tax credits and the quality of the mentorship and networking opportunities and other support of the State's innovation ecosystem offered by a purchaser in its bid. The authority may pro rate the amount of tax credits allocated to each purchaser. The authority shall provide written notice to a potential purchaser indicating whether the authority has approved the potential purchaser as a purchaser of tax credits and, if so, the amount of tax credits approved.

d. Except as provided in section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill), the authority shall hold one competitive auction per calendar year.

e. Notwithstanding the provisions of this section to the contrary, the authority may contract with an independent third party to conduct the competitive bidding process through which State tax credits issued by the authority may be sold.

6. a. A purchaser that submits a successful bid for the purchase of tax credits pursuant to section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill) shall enter into a contract with the authority that includes payment information and the commitments made by the purchaser in its auction bid. A purchaser that submits a successful bid for the

purchase of tax credits pursuant to section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill) shall pay by wire transfer, at a period of time specified in the contract, the amount specified in its auction bid to the authority for deposit into the fund. Upon receipt thereof, the chief executive officer of the authority shall notify the director to issue tax credits in the amount approved. Failure by the purchaser to pay the amount agreed upon at the period of time specified in the contract may disqualify the purchaser from purchasing the tax credits and the authority may reassign the right to purchase the credits to another bidder. Failure by the purchaser to adhere to the commitments made in its auction bid may allow the authority to disqualify the purchaser from participating in future auctions and may result in the authority recapturing a portion of the tax credits.

b. The authority shall credit to the fund any money paid to the authority by a purchaser for an allocation of tax credits under the program.

c. The authority shall ensure that no undue financial advantage shall benefit a purchaser that also is: managing a qualified venture firm; beneficially owning, through rights, options, convertible interests, or otherwise, more than 15 percent of the voting securities or other voting ownership interests of a qualified venture firm; or controlling the direction of investments for a qualified venture firm. The chief executive officer of the authority shall annually certify that the authority is monitoring the activities of the purchasers and has taken appropriate steps to ensure no undue financial advantage benefits to the purchasers.

7. a. A purchaser shall apply the tax credit allowed pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill) against the State tax liability of the purchaser for the current privilege period or reporting period as of the date of the credit's approval. A purchaser may carry forward an unused credit resulting from the limitations of subsection b. of this section, if necessary, for use in the seven privilege periods or reporting periods next following the privilege period or reporting period for which the credit is allowed.

b. The director shall prescribe the order of priority of the application of the credit allowed under P.L. , c. (C. ) (pending before the Legislature as this bill) and any other credits allowed by law. The amount of a credit applied under P.L. , c. (C. ) (pending before the Legislature as this bill) against the tax imposed pursuant to section 5 of P.L.1945, c.162 (C.54:10A-5) for a privilege period, together with any other credits allowed by law, shall not exceed 50 percent of the tax liability otherwise due and shall not reduce the tax liability of the purchaser to an amount less than the statutory minimum provided in subsection (e) of section 5 of P.L.1945, c.162 (C.54:10A-5).

8. a. A purchaser may apply to the director and the chief executive officer of the authority for a tax credit transfer certificate, in the privilege period or reporting period during which the director allows the purchaser a tax credit pursuant to section 7 of P.L. , c. (C. ) (pending before the Legislature as this bill), in lieu of the purchaser being allowed to apply any amount of the tax credit against the purchaser's State tax liability. The tax credit transfer certificate, upon receipt thereof by the purchaser from the director and the chief executive officer of the authority, may be sold or assigned, in full or in part, to another person that may have a tax liability pursuant to section 5 of P.L.1945, c.162 (C.54:10A-5), sections 2 and 3 of P.L.1945, c.132 (C.54:18A-2 and C.54:18A-3), section 1 of P.L.1950, c.231 (C.17:32-15), or N.J.S.17B:23-5. The buyer or assignee of a tax credit transfer certificate pursuant to this section shall apply the transferred tax credit against the same tax for which the purchaser was approved for a tax credit under the program. The tax credit transfer certificate provided to the purchaser shall include a statement waiving the purchaser's right to claim the credit that the purchaser has elected to sell or assign.

b. The purchaser shall not sell or assign a tax credit transfer certificate allowed under this section for consideration received by the purchaser of less than 85 percent of the transferred tax credit amount before considering any further discounting to present value which shall be permitted. The tax credit transfer certificate issued to a purchaser by the director shall be subject to any limitations and conditions imposed on the application of State tax credits pursuant to section 7 of P.L. , c. (C. ) (pending before the Legislature as this bill) and any other terms and conditions that the director may prescribe.

c. A buyer or assignee of a tax credit transfer certificate pursuant to this section shall not make any subsequent transfers, assignments, or sales of the tax credit transfer certificate.

d. Ten percent of the consideration received by a purchaser from the sale or assignment of a tax credit transfer certificate pursuant to this section shall be remitted to the director and deposited in the General Fund of the State.

e. The authority shall publish on its Internet website the following information concerning each tax credit transfer certificate approved by the authority and the director pursuant to this section:

(1) the name of the transferor;

(2) the name of the transferee;

(3) the value of the tax credit transfer certificate;

(4) the amount of State tax against which the transferee may apply the tax credit; and

(5) the consideration received by the transferor.

9. a. The authority shall establish an application process and determine the form and manner through which a venture firm may make and file an application for certification as a qualified venture firm. The authority may accept applications on a rolling basis or on a date set by the authority.

b. In evaluating applicants for certification as a qualified venture firm, the authority shall establish weighted criteria by which the authority will evaluate all venture firms applying in the same calendar year and shall establish a minimum acceptable score. The criteria may include, but shall not be limited to:

(1) the management structure of the applicant, including:

(a) the quality of the leadership, including the willingness to work with the authority to support targeted industries and innovation ecosystem in the State;

(b) the willingness to locate to the State;

(d) the knowledge, experience, and capabilities of the applicant in subject areas relevant to high-growth businesses in the State;

(e) the tenure and turnover history of principals and senior investment professionals of the applicant;

(f) whether the State's investment with the applicant under this program would exceed 15 percent of the total invested in the applicant by all investors, including investments in any special purpose vehicles;

(g) the fund's stage of fundraising; and

(h) whether fees, expenses, and the remuneration of the general partner or fund manager are similar to those of peer funds; and

(2) the applicant's investment strategy, including:

(a) the applicant's track record of investing in high-growth businesses;

(b) whether the investment strategy of the fund is focused on high-growth businesses, including the percentage of the fund identified for investment in New Jersey or surrounding geographic areas; and

(c) the performance history of the general partner or fund manager based on a review of investment returns on individual funds on an absolute basis and relative to peers.

10. a. The authority shall review the criteria for certification established pursuant to section 9 of P.L. , c. (C. ) (pending before the Legislature as this bill) and shall certify or refuse to certify a venture firm as a qualified venture firm.

b. The authority shall not certify a venture firm as a qualified venture firm if the venture firm has:

(1) an equity capitalization, net assets, or written commitments of less than $10,000,000 in the form of cash or cash equivalents on the date the determination for certification is made; or

(2) fewer than two principals or persons employed to direct the qualified investment of capital who have at least five years of money management experience in the venture capital or private equity sectors on the date the determination for certification is made.

The authority may adopt, pursuant to the provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), rules setting forth additional disqualifying criteria and adjusting the minimum equity capitalization, net assets, or written commitments of a qualified venture firm.

c. The authority shall provide written notification to each venture firm that is certified as a qualified venture firm by the authority and shall provide written notification to each venture firm that the authority refuses to certify as a qualified venture firm, communicating in detail the grounds for the authority's refusal. The authority shall review each qualified venture firm annually for the disqualifying criteria set forth in subsection b. of this section. The authority may decertify a qualified venture firm at any time pursuant to the disqualifying criteria set forth in subsection b. of this section. Decertification shall not affect any previously made qualified investment or the fund's commitment to make a follow-on investment in a qualified business.

11. a. The authority is authorized to allocate money credited to the fund to one or more qualified venture firms for qualified investments at the times, in the amounts, and subject to the terms and conditions that the authority shall determine to be necessary and appropriate to effectuate the purposes of P.L. , c. (C. ) (pending before the Legislature as this bill), provided that no more than two qualified investments shall be made with each qualified venture firm in a calendar year and each qualified investment shall not exceed $5,000,000 in initial investment, exclusive of follow-on investments. The fund shall not invest in a qualified venture firm if the authority determines that an undue financial advantage would benefit a purchaser if the investment occurs, or if the investment would be inconsistent with the investment policies and goals of the State.

b. The authority shall make and enter into an agreement with each qualified venture firm. The agreement shall include, but not be limited to, provisions that require the qualified venture firm to:

(1) make investments in qualified business that equal or exceed the amount of capital received by the qualified venture firm from the fund under the program;

(2) cause an audit of the qualified venture firm's books and accounts, which a certified public accountant, who is licensed in accordance with the "Accountancy Act of 1997," P.L.1997, c.259 (C.45:2B-42 et seq.), or licensed in accordance with the laws of another state, shall conduct at least once each year in which the qualified venture firm is in receipt of fund money or in which the qualified venture firm is responsible for the management of fund money allocated to the qualified venture firm by the authority;

(3) enter into an agreement with each qualified business that receives a qualified investment, which shall, at a minimum, require the qualified business to use the qualified investment of capital to support its business operations in this State and to provide the information required pursuant to section 12 of P.L. , c. (C. ) (pending before the Legislature as this bill);

(4) upon the identification of a qualified investment, create a special purpose vehicle for the qualified investment of the fund;

(5) upon the identification of a qualified investment, indicate the amount of follow-on investment the authority should reserve, and periodically provide updates concerning this amount;

(6) publicize its participation in the fund; and

(7) consent to the authority publicly disclosing the list of qualified investment firms participating in the program.

c. A qualified venture firm that has made and entered into an agreement with the authority pursuant to subsection b. of this section is authorized to make qualified investments of capital in one or more qualified businesses from fund money allocated to the qualified venture firm by the authority at the times, in the amounts, and subject to the terms and conditions that the qualified venture firm determines to be necessary and appropriate. The authority may limit the amount of allocated fund money that a qualified venture firm invests in a qualified business based upon the size of investments the qualified business has received, the source of the investments, and the industry in which the qualified business is engaged.

12. a. A qualified venture firm shall annually report to the authority:

(1) the amount of the qualified investment, if any, invested at the end of the preceding calendar year;

(2) all qualified investments made during the preceding calendar year, including the number and wages of employees of each qualified business at the time the venture firm made the qualified investment and as of December 31 of that year;

(3) for any qualified investment in which the qualified venture firm no longer has a position as of the end of the calendar year, the number of employees of the business as of the date the investment was terminated;

(4) its financial information, audited by a certified public accountant, of the qualified venture firm and the special purpose vehicle that include a consolidated summary of the performance of the qualified venture firm. Any information about the performance of an individual business, including the qualified business, shall be considered confidential and not subject to P.L.1963, c.73 (C.47:1A-1 et seq.), known commonly as the open public records act; and

(5) any other information the authority requires to ascertain the impact of the program on the economy of the State.

b. With respect to the information required pursuant to paragraphs (1) through (4) of subsection a. of this section, the report shall include a statement prepared by a certified public accountant, who is licensed in accordance with the "Accountancy Act of 1997," P.L.1997, c.259 (C.45:2B-42 et seq.), or licensed in accordance with the laws of another state, certifying that the accountant has reviewed the report and that the information and representations contained in the report are accurate.

c. Not later than 60 days after the sale or other disposition of a qualified investment, the qualified venture firm shall provide to the authority a report on the amount of the stock sold or disposed of and the consideration received for the sale or disposition. The report shall detail the cumulative effect of sequentially introduced positive or negative values and include the gross income and details of any offsetting fees that reduce the net distribution. Any dividend or proceeds received by the authority for the sale or other disposition of a qualified investment shall be deposited into the fund and used in accordance with section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill).

13. The New Jersey Innovation Evergreen Advisory Board is hereby established in, but not of, the authority for the purposes of providing guidance and networking opportunities to qualified businesses. The members shall serve in a voluntary capacity, to be appointed through a process to be determined by the chief executive officer of the authority from among purchasers and other strategic partners identified by the chief executive officer, to support the State's innovation ecosystem. The terms of the voluntary members appointed, after the initial appointments, shall be one year, and each member may be reappointed.

14. Beginning the year next following the year in which P.L. , c. (C. ) (pending before the Legislature as this bill) takes effect and every two years thereafter, the authority shall prepare a report on the implementation of the program, and submit the report to the Governor and, pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1), to the Legislature. Each biennial report required under this section shall include:

a. the names and locations of qualified businesses receiving capital;

b. the amount of each qualified investment;

c. a report by a certified public accountant of the consolidated performance of the fund;

d. the cumulative amount of capital committed by purchasers;

e. the rate and amount of fees charged by each qualified venture firm, including performance-based earnings and carried interest;

f. the classification of each qualified business, according to the industrial sector and the size of the qualified business;

g. the State's return on investment;

h. the total number of jobs created in the State by the qualified business after the qualified investment;

i. the average wages paid for the jobs; and

j. any other metrics the authority determines are relevant based upon national best practices.

15. Notwithstanding the provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), to the contrary, the chief executive officer of the authority may adopt immediately upon filing with the Office of Administrative Law, rules and regulations that the chief executive officer deems necessary to implement the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill), which shall be effective for a period not to exceed 180 days from the date of the filing. The chief executive officer shall thereafter amend, adopt, or readopt the rules and regulations in accordance with the requirements of P.L.1968, c.410 (C.52:14B-1 et seq.).

16. This act shall take effect immediately.

STATEMENT

This bill establishes the New Jersey Innovation Evergreen Program (program) and New Jersey Innovation Evergreen Fund (fund) under the jurisdiction of the New Jersey Economic Development Authority (EDA). The purpose of the program and fund is to invest in qualified high-growth businesses as a catalyst for economic growth and to advance the competitiveness of the State's businesses in the global economy.

The bill requires the EDA to auction State tax credits, to establish a dedicated fund, and to credit that fund with money generated from the sale of State tax credits. The EDA is to allocate money credited to the fund to qualified venture firms for investments of capital in qualified businesses. The bill requires the EDA to issue State tax credits in the aggregate principal sum of up to $300 million and to auction those tax credits for commitments of private capital. The bill prohibits the EDA from: 1) selling more than $60 million in tax credits in any calendar year; and 2) undertaking an auction if, exclusive of reserves, including the reserve set aside for follow-on investments, more than $15 million is available to allocate to qualified venture firms.

The bill requires the EDA to sell the State tax credits through a competitive bidding process. Under the bill, each potential purchaser of tax credits must make a commitment for the purchase of at least $1 million in State tax credits. The bill further provides that each potential purchaser must make a commitment of private capital that is not less than 85 percent of the requested amount of State tax credits to be purchased.

The bill establishes a New Jersey Innovation Evergreen Advisory Board (board). The purpose of the board is to provide guidance and networking opportunities to businesses receiving an investment under the program. As a condition of receiving a tax credit, a purchaser is to serve on the advisory board and otherwise provide guidance and networking opportunities to businesses receiving an investment under the program.

The bill permits purchasers of tax credits to transfer State tax credits issued by the EDA, upon application to and approval by the Director of the Division of Taxation. The bill provides that the subsequent sale or assignment of State tax credits to another person cannot be exchanged for private financial consideration of less than 85 percent of the transferred State tax credit amount.

The bill requires the EDA to credit to the fund proceeds from the sale of State tax credits, certain distributions from payments or repayments made to the EDA by qualified venture firms, and net earnings, if any, derived from the investment or reinvestment of money credited to the fund.

The bill requires that the EDA identify and evaluate venture firms and certify them as venture firms qualified to make investments on behalf of the fund. The bill prohibits the EDA from certifying a venture firm as a qualified venture firm if the firm has an equity capitalization, net assets, or written commitments of less than $10 million in the form of cash or cash equivalents, or if the firm has fewer than two principals or persons employed to direct the qualified investment of capital who have at least five years of money management experience.

Upon certification as a qualified venture firm, the EDA may allocate money from the fund to the qualified venture firm to make qualified investments of capital in qualified businesses. The bill requires the EDA to make and enter into an agreement with each qualified venture firm that is allocated money from the fund. The bill provides that the agreement generally must require the qualified venture firm to match the capital contributed by the EDA from the fund, to make qualified investments of capital in qualified businesses, to cause an annual audit of its books and records, and to make and file annual reports with the EDA.

The bill requires the authority to prepare and submit biennial reports on the implementation of the program.