New Jersey-2020-A4330-Introduced

An Act establishing a direct investment program for businesses impacted during a major economic emergency, and supplementing and amending 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. (New section) Sections 1 through 5 of P.L. , c. (C. ) (pending before the Legislature as this bill) shall be known and may be cited as the "Economic Emergency Investment Stabilization Act."

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

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

"Major economic emergency" means an emergency that has resulted in the Governor declaring a state of emergency, pursuant to P.L.1942, c.251 (C.App.A:9-33 et seq.), within this State, which was required due to a public health emergency, pursuant to section 3 of P.L.2005, c.222 (C.26:13-3), or due to a major natural disaster; a major economic emergency shall also include a major disruption to the State's economy that results in a year over year decline in State sales and use tax or State income tax revenues of at least 10 percent, and a concurrent increase in the State unemployment rate above seven percent.

"Matching investment agreement" means an investment agreement with the authority which provides that the authority will make an equity investment in the business during a funding round, provided that the business has private funding sources that will provide two dollars in equity investment for every dollar in equity investment made by the authority, and which ensures that the terms of the investment made by the authority offer equal or greater shareholder rights and benefits than the terms granted to any of the private funding sources during the funding round in which the investment agreement takes place.

"Program" means the "Pandemic Investment Stabilization Program" established pursuant to section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill).

"Qualified applicant" means a business as defined by the authority which:

a. is in the process of raising money through an offering of equity in the business and which is applying to the authority for a matching investment agreement;

b. has been determined by the authority that the potential equity investment will be a material factor in the financial success or failure of the business during the economic emergency, and that the business is likely, at the conclusion of the economic emergency, to return to a level of financial viability that will allow the authority to exit its equity stake without taking a loss on its investment;

c. has a board of directors or advisors;

d. is physically located in the State through property ownership or a lease agreement;

e. has at least 50 percent of its employees spend at least 80 percent of their time in New Jersey;

f. has founders that work full time for the business and have a financial investment into the business; and

g. is registered to do business in the State and is currently in good standing.

"Stabilization fund" means the "Economic Emergency Investment Stabilization Fund" established pursuant to section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill).

3. (New section) The authority shall establish an equity investment program to be known as the "Economic Emergency Investment Stabilization Program" for the purpose of making equity investments in businesses that would be financially healthy if not for the effects of a major economic emergency.

4. (New section) a. To implement the program, the authority shall establish and maintain a special revolving fund to be known as the "Economic Emergency Investment Stabilization Fund," which shall be credited, following the start of a major economic emergency, with:

(1) amounts from the "Economic Recovery Fund," established pursuant to section 3 of P.L.1992, c.16 (C.34:1B-7.12), which the authority determines is appropriate to implement the program, within the limits of funding available from the "Economic Recovery Fund";

(2) any moneys that shall be received by the authority from the sale of equity stakes in businesses that were made using moneys in the stabilization fund pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill); and

(3) other moneys of the authority, including but not limited to, any moneys available from other business assistance programs administered by the authority which the authority is authorized and determines to deposit therein.

b. The authority shall use the moneys in the stabilization fund to:

(1) enter, during a major economic emergency or within six months of the end of all executive orders or economic conditions related to such an emergency, into matching investment agreements with qualified applicants;

(2) make equity investments of no greater than $1 of authority investment for every $1 in new outside investments up to an amount determined by the authority, pursuant to section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill); and

(3) defray the administrative expenses of the authority in carrying out the purposes and provisions of P.L. , c. (C. ) (pending before the Legislature as this bill).

c. In evaluating a matching investment agreement application submitted by a qualified applicant, the authority shall place primary emphasis on the applicant's record of profitability and financial stability prior to the economic emergency, and on projections by the applicant, including the data and assumptions forming the basis thereof, of recovered profitability and financial stability during the term of the equity investment. The equity investment may only be made by the authority if the qualified applicant has demonstrated to the satisfaction of the authority that the qualified applicant has the ability, reputation, and growth prospects necessary such that, following the end of the economic emergency, the business will be attractive enough to private investors for the authority to easily sell its equity stake without taking a financial loss.

d. For any equity stake in any qualified applicant the authority makes pursuant to a matching investment agreement, the authority shall seek to exit is equity investment not less than 12 months and not more than 10 years following the end of the economic emergency. During this 12 month to 10-year period, the authority may exit its position at any time the authority determines to be most financially beneficial to the stabilization fund. The authority may only maintain its investment beyond the 12 month to 10-year period, if all of its opportunities to sell its investment in the first 10 years would have been for less than the original investment, and the authority makes the determination that the value of the investment will increase significantly by holding the investment for more than 10 years, and that the anticipated increase in value exceeds the public benefit that would accrue from selling the investment and using the proceeds for some other eligible use of the "Economic Recovery Fund."

e. All moneys remaining in the stabilization fund starting 12 months following the end of the major economic emergency and continuing until all equity investments have been sold shall be credited to and deposited in the "Economic Recovery Fund" for any of the purposes thereof.

5. (New section) On application to the authority, an applicant for a matching investment agreement shall be required to:

a. provide information about the business and its finances on a form or forms as determined to be necessary by the authority in order to make a determination about whether to make an equity investment in a business;

b. pay a reasonable application fee, as determined by the authority, that is to be used to pay for administrative costs in processing applications and administering the program;

c. provide information about the business's current equity financing round, and which shall document that:

(1) the business has obtained outside funding from investment entities including, but not limited to, venture capital funds, angel investor funds, investment partnerships, a limited liability corporation, or an individual member of an organized investment group, provided that none of those investors are business employees, related to business employees, or otherwise not independent of the business;

(2) the outside funding raised is equal to at least 100 percent of the amount requested to be invested by the authority in the application;

(3) the outside funding was committed within 90 days of the date that the application is submitted;

(4) the funding round has generated at least $100,000 in outside investments prior to any contribution by the authority;

(5) the terms of other equity investments shall be disclosed to the authority to determine that the equity investment made by the authority will be on equally or more beneficial terms than those granted to other outside investors;

d. identify the amount of equity investment that it is seeking from the authority, provided that the authority shall not make investments under a matching investment agreement of less than $100,000 or greater than $1,000,000, meaning that the amount raised from other outside investors during the funding round shall be between $100,000 and $1,000,000, at a minimum, prior to the authority investment, thus ensuring that the authority is not making an investment that represents more than 50 percent of the amount raised during the financing round and that the total amount of equity that the authority holds in the business is never to exceed 25 percent; and

e. provide information exhibiting the business's:

(1) ability to raise capital in the past;

(2) financial stability and growth prospects prior to the major economic emergency;

(3) plans to utilize funding received during this financing round;

(4) prospects for recovering from the impacts of the major economic emergency and returning to prior levels of financial stability or growth; and

(5) future appeal to investors and the ability for the authority to find a purchaser of the authority's equity stake within five years after the major economic emergency has concluded.

6. Section 5 of P.L.1974, c.80 (C.34:1B-5) is amended to read as follows:

5. The authority shall have the following powers:

a. To adopt bylaws for the regulation of its affairs and the conduct of its business;

b. To adopt and have a seal and to alter the same at pleasure;

c. To sue and be sued;

d. To acquire in the name of the authority by purchase or otherwise, on such terms and conditions and such manner as it may deem proper, or by the exercise of the power of eminent domain in the manner provided by the "Eminent Domain Act of 1971," P.L.1971, c.361 (C.20:3-1 et seq.), any lands or interests therein or other property which it may determine is reasonably necessary for any project; provided, however, that the authority in connection with any project shall not take by exercise of the power of eminent domain any real property except upon consent thereto given by resolution of the governing body of the municipality in which such real property is located; and provided further that the authority shall be limited in its exercise of the power of eminent domain in connection with any project in qualifying municipalities as defined under the provisions of P.L.1978, c.14 (C.52:27D-178 et seq.), or to municipalities which had a population, according to the latest federal decennial census, in excess of 10,000;

e. To enter into contracts with a person upon such terms and conditions as the authority shall determine to be reasonable, including, but not limited to, reimbursement for the planning, designing, financing, construction, reconstruction, improvement, equipping, furnishing, operation and maintenance of the project and to pay or compromise any claims arising therefrom;

f. To establish and maintain reserve and insurance funds with respect to the financing of the project or the school facilities project and any project financed pursuant to the "Municipal Rehabilitation and Economic Recovery Act," P.L.2002, c.43 (C.52:27BBB-1 et al.);

g. To sell, convey or lease to any person all or any portion of a project for such consideration and upon such terms as the authority may determine to be reasonable;

h. To mortgage, pledge or assign or otherwise encumber all or any portion of a project, or revenues, whenever it shall find such action to be in furtherance of the purposes of this act, P.L.2000, c.72 (C.18A:7G-1 et al.), the "Municipal Rehabilitation and Economic Recovery Act," P.L.2002, c.43 (C.52:27BBB-1 et al.), P.L.2007, c.137 (C.52:18A-235 et al.), and sections 3 through 18 of P.L.2009, c.90 (C.52:27D-489c et al.);

i. To grant options to purchase or renew a lease for any of its projects on such terms as the authority may determine to be reasonable;

j. To contract for and to accept any gifts or grants or loans of funds or property or financial or other aid in any form from the United States of America or any agency or instrumentality thereof, or from the State or any agency, instrumentality or political subdivision thereof, or from any other source and to comply, subject to the provisions of P.L.1974, c.80 (C.34:1B-1 et seq.), section 6 of P.L.2001, c.401 (C.34:1B-4.1), P.L.2000, c.72 (C.18A:7G-1 et al.), the "Municipal Rehabilitation and Economic Recovery Act," P.L.2002, c.43 (C.52:27BBB-1 et al.), and P.L.2007, c.137 (C.52:18A-235 et al.), with the terms and conditions thereof;

k. In connection with any action undertaken by the authority in the performance of its duties and any application for assistance or commitments therefor and modifications thereof, to require and collect such fees and charges as the authority shall determine to be reasonable, including but not limited to fees and charges for the authority's administrative, organizational, insurance, operating, legal, and other expenses;

l. To adopt, amend and repeal regulations to carry out the provisions of P.L.1974, c.80 (C.34:1B-1 et seq.), section 6 of P.L.2001, c.401 (C.34:1B-4.1), P.L.2000, c.72 (C.18A:7G-1 et al.), the "Municipal Rehabilitation and Economic Recovery Act," P.L.2002, c.43 (C.52:27BBB-1 et al.), and P.L.2007, c.137 (C.52:18A-235 et al.);

m. To acquire, purchase, manage and operate, hold and dispose of real and personal property or interests therein, take assignments of rentals and leases and make and enter into all contracts, leases, agreements and arrangements necessary or incidental to the performance of its duties;

n. To purchase, acquire and take assignments of notes, mortgages and other forms of security and evidences of indebtedness;

o. To purchase, acquire, attach, seize, accept or take title to any project or school facilities project by conveyance or by foreclosure, and sell, lease, manage or operate any project or school facilities project for a use specified in this act, P.L.2000, c.72 (C.18A:7G-1 et al.), the "Municipal Rehabilitation and Economic Recovery Act," P.L.2002, c.43 (C.52:27BBB-1 et al.), P.L.2007, c.137 (C.52:18A-235 et al.), and sections 3 through 18 of P.L.2009, c.90 (C.52:27D-489c et al.);

p. To borrow money and to issue bonds of the authority and to provide for the rights of the holders thereof, as provided in P.L.1974, c.80 (C.34:1B-1 et seq.), section 6 of P.L.2001, c.401 (C.34:1B-4.1), P.L.2000, c.72 (C.18A:7G-1 et al.), the "Municipal Rehabilitation and Economic Recovery Act," P.L.2002, c.43 (C.52:27BBB-1 et al.), P.L.2007, c.137 (C.52:18A-235 et al.), and sections 3 through 18 of P.L.2009, c.90 (C.52:27D-489c et al.);

q. To extend credit or make loans to any person for the planning, designing, acquiring, constructing, reconstructing, improving, equipping and furnishing of a project or school facilities project, which credits or loans may be secured by loan and security agreements, mortgages, leases and any other instruments, upon such terms and conditions as the authority shall deem reasonable, including provision for the establishment and maintenance of reserve and insurance funds, and to require the inclusion in any mortgage, lease, contract, loan and security agreement or other instrument, of such provisions for the construction, use, operation and maintenance and financing of a project or school facilities project as the authority may deem necessary or desirable;

r. To guarantee up to 90% of the amount of a loan to a person, if the proceeds of the loan are to be applied to the purchase and installation, in a building devoted to industrial or commercial purposes, or in an office building, of an energy improvement system;

s. To employ consulting engineers, architects, attorneys, real estate counselors, appraisers, and such other consultants and employees as may be required in the judgment of the redevelopment utility to carry out the purposes of P.L.1974, c.80 (C.34:1B-1 et seq.), section 6 of P.L.2001, c.401 (C.34:1B-4.1), P.L.2000, c.72 (C.18A:7G-1 et al.), the "Municipal Rehabilitation and Economic Recovery Act," P.L.2002, c.43 (C.52:27BBB-1 et al.), P.L.2007, c.137 (C.52:18A-235 et al.), and sections 3 through 18 of P.L.2009, c.90 (C.52:27D-489c et al.), and to fix and pay their compensation from funds available to the redevelopment utility therefor, all without regard to the provisions of Title 11A of the New Jersey Statutes;

t. To do and perform any acts and things authorized by P.L.1974, c.80 (C.34:1B-1 et seq.), section 6 of P.L.2001, c.401 (C.34:1B-4.1), P.L.2000, c.72 (C.18A:7G-1 et al.), the "Municipal Rehabilitation and Economic Recovery Act," P.L.2002, c.43 (C.52:27BBB-1 et al.), P.L.2007, c.137 (C.52:18A-235 et al.), and sections 3 through 18 of P.L.2009, c.90 (C.52:27D-489c et al.), under, through or by means of its own officers, agents and employees, or by contract with any person;

u. To procure insurance against any losses in connection with its property, operations or assets in such amounts and from such insurers as it deems desirable;

v. To do any and all things necessary or convenient to carry out its purposes and exercise the powers given and granted in P.L.1974, c.80 (C.34:1B-1 et seq.), section 6 of P.L.2001, c.401 (C.34:1B-4.1), P.L.2000, c.72 (C.18A:7G-1 et al.), the "Municipal Rehabilitation and Economic Recovery Act," P.L.2002, c.43 (C.52:27BBB-1 et al.), P.L.2007, c.137 (C.52:18A-235 et al.), and sections 3 through 18 of P.L.2009, c.90 (C.52:27D-489c et al.);

w. To construct, reconstruct, rehabilitate, improve, alter, equip, maintain or repair or provide for the construction, reconstruction, improvement, alteration, equipping or maintenance or repair of any development property and lot, award and enter into construction contracts, purchase orders and other contracts with respect thereto, upon such terms and conditions as the authority shall determine to be reasonable, including, but not limited to, reimbursement for the planning, designing, financing, construction, reconstruction, improvement, equipping, furnishing, operation and maintenance of any such development property and the settlement of any claims arising therefrom and the establishment and maintenance of reserve funds with respect to the financing of such development property;

x. When authorized by the governing body of a municipality exercising jurisdiction over an urban growth zone, to construct, cause to be constructed or to provide financial assistance to projects in an urban growth zone which shall be exempt from the terms and requirements of the land use ordinances and regulations, including, but not limited to, the master plan and zoning ordinances, of such municipality;

y. To enter into business employment incentive agreements as provided in the "Business Employment Incentive Program Act," P.L.1996, c.26 (C.34:1B-124 et al.);

z. To enter into agreements or contracts, execute instruments, and do and perform all acts or things necessary, convenient or desirable for the purposes of the redevelopment utility to carry out any power expressly provided pursuant to P.L.1974, c.80 (C.34:1B-1 et seq.), P.L.2000, c.72 (C.18A:7G-1 et al.), and P.L.2007, c.137 (C.52:18A-235 et al.), including, but not limited to, entering into contracts with the State Treasurer, the Commissioner of Education, districts, the New Jersey Schools Development Authority, and any other entity which may be required in order to carry out the provisions of P.L.2000, c.72 (C.18A:7G-1 et al.), P.L.2007, c.137 (C.52:18A-235 et al.), and sections 3 through 18 of P.L.2009, c.90 (C.52:27D-489c et al.);

aa. (Deleted by amendment, P.L.2007, c.137);

bb. To make and contract to make loans to local units to finance the cost of school facilities projects and to acquire and contract to acquire bonds, notes or other obligations issued or to be issued by local units to evidence the loans, all in accordance with the provisions of P.L.2000, c.72 (C.18A:7G-1 et al.), and P.L.2007, c.137 (C.52:18A-235 et al.);

cc. Subject to any agreement with holders of its bonds issued to finance a project or school facilities project, obtain as security or to provide liquidity for payment of all or any part of the principal of and interest and premium on the bonds of the authority or for the purchase upon tender or otherwise of the bonds, lines of credit, letters of credit, reimbursement agreements, interest rate exchange agreements, currency exchange agreements, interest rate floors or caps, options, puts or calls to hedge payment, currency, rate, spread or similar exposure or similar agreements, float agreements, forward agreements, insurance contract, surety bond, commitment to purchase or sell bonds, purchase or sale agreement, or commitments or other contracts or agreements, and other security agreements or instruments in any amounts and upon any terms as the authority may determine and pay any fees and expenses required in connection therewith;

dd. To charge to and collect from local units, the State and any other person, any fees and charges in connection with the authority's actions undertaken with respect to school facilities projects, including, but not limited to, fees and charges for the authority's administrative, organization, insurance, operating and other expenses incident to the financing of school facilities projects;

ee. To make loans to refinance solid waste facility bonds through the issuance of bonds or other obligations and the execution of any agreements with counties or public authorities to effect the refunding or rescheduling of solid waste facility bonds, or otherwise provide for the payment of all or a portion of any series of solid waste facility bonds. Any county or public authority refunding or rescheduling its solid waste facility bonds pursuant to this subsection shall provide for the payment of not less than fifty percent of the aggregate debt service for the refunded or rescheduled debt of the particular county or public authority for the duration of the loan; except that, whenever the solid waste facility bonds to be refinanced were issued by a public authority and the county solid waste facility was utilized as a regional county solid waste facility, as designated in the respective adopted district solid waste management plans of the participating counties as approved by the department prior to November 10, 1997, and the utilization of the facility was established pursuant to tonnage obligations set forth in their respective interdistrict agreements, the public authority refunding or rescheduling its solid waste facility bonds pursuant to this subsection shall provide for the payment of a percentage of the aggregate debt service for the refunded or rescheduled debt of the public authority not to exceed the percentage of the specified tonnage obligation of the host county for the duration of the loan. Whenever the solid waste facility bonds are the obligation of a public authority, the relevant county shall execute a deficiency agreement with the authority, which shall provide that the county pledges to cover any shortfall and to pay deficiencies in scheduled repayment obligations of the public authority. All costs associated with the issuance of bonds pursuant to this subsection may be paid by the authority from the proceeds of these bonds. Any county or public authority is hereby authorized to enter into any agreement with the authority necessary, desirable or convenient to effectuate the provisions of this subsection.

The authority shall not issue bonds or other obligations to effect the refunding or rescheduling of solid waste facility bonds after December 31, 2002. The authority may refund its own bonds issued for the purposes herein at any time;

ff. To pool loans for any local government units that are refunding bonds and do and perform any and all acts or things necessary, convenient or desirable for the purpose of the authority to achieve more favorable interest rates and terms for those local governmental units;

gg. To finance projects approved by the board, provide staff support to the board, oversee and monitor progress on the part of the board in carrying out the revitalization, economic development and restoration projects authorized pursuant to the "Municipal Rehabilitation and Economic Recovery Act," P.L.2002, c.43 (C.52:27BBB-1 et al.) and otherwise fulfilling its responsibilities pursuant thereto;

hh. To offer financial assistance to qualified film production businesses as provided in the "New Jersey Film Production Assistance Act," P.L.2003, c.182 (C.34:1B-178 et al.);

ii. To finance or develop private or public parking facilities or structures, which may include the use of solar photovoltaic equipment, in municipalities qualified to receive State aid pursuant to the provisions of P.L.1978, c.14 (C.52:27D-178 et seq.) and municipalities that contain areas designated pursuant to P.L.1985, c.398 (C.52:18A-196 et al.) as Planning Area 1 (Metropolitan), Planning Area 2 (Suburban), or a town center, and to provide appropriate assistance, including but not limited to, extensions of credit, loans, and guarantees, to municipalities qualified to receive State aid pursuant to the provisions of P.L.1978, c.14 (C.52:27D-178 et seq.) and municipalities that contain areas designated pursuant to P.L.1985, c.398 (C.52:18A-196 et seq.) as Planning Area 1 (Metropolitan), Planning Area 2 (Suburban), or a town center, and their agencies and instrumentalities or to private entities whose projects are located in those municipalities, in order to facilitate the financing and development of parking facilities or structures in such municipalities. The authority may serve as the issuing agent of bonds to finance the undertaking of a project for the purposes of this subsection; [and]

jj. To make grants for the planning, designing, acquiring, constructing, reconstructing, improving, equipping, and furnishing of a project, including, but not limited to, grants for working capital and meeting payroll requirements, upon such terms and conditions as the authority shall deem reasonable, during periods of emergency declared by the Governor and for the duration of economic disruptions due to the emergency; and

kk. To make equity investments in businesses requiring capital investment during major economic emergencies, that are otherwise financially healthy businesses pursuant to the terms of "Economic Emergency Investment Stabilization Act" established pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill).

(cf: P.L.2020, c.8, s.1)

7. This act shall take effect immediately.

STATEMENT

This bill, entitled the "Economic Emergency Investment Stabilization Act," creates the "Economic Emergency Investment Stabilization Program" (program) to allow the New Jersey Economic Development Authority (authority) to make direct equity investments in businesses that have been financially harmed by a "major economic emergency," as defined in the bill.

Under the bill, the authority is limited to making investments of between $100,000 and $1,000,000 and can only make an investment in a business during a period from the time that the economic emergency is declared to six months after the major economic emergency has ended. The authority is to utilize: 1) amounts from the "Economic Recovery Fund"; 2) moneys received by the authority from the prior sale of equity stakes in businesses under this program; and 3) other moneys of the authority, including but not limited to, any moneys available from other business assistance programs administered by the authority which it is authorized and determines to deposit therein.

A business seeking the investment is to have identified at least $1 of new outside investment in the last 90 days for each $1 of investment that the business seeks from the authority. While the authority may provide up to 50 percent of the investments, up to $1 million, made during a funding round, its total investment in the business is limited to a 25 percent equity stake overall. Any equity investment made by the authority is to be on equal or better terms, for the authority, than those made by any of the outside investors. The authority is only to make an investment if it determines that the potential equity investment will be a material factor in the financial success or failure of the business during the major economic emergency, and that the business is likely, at the conclusion of the economic emergency, to return to a level of financial viability that will allow the authority to exit its equity stake without taking a loss on its investment. The authority is only to maintain its investment for a period of one to 10 years after the end of the major economic emergency, and can only maintain its investment for a longer period of time if it was unable to sell the investment during the first 10 years without taking a loss, and the anticipated increase in value by holding the investment for more than 10 years exceeds the public benefit that would accrue from selling the investment and using the proceeds for some other eligible use of the "Economic Recovery Fund." Once 12 months have passed from the end of the major economic emergency, the authority is to take all funds in the pandemic investment stabilization fund and transfer them into the "Economic Recovery Fund," as well as any future receipts from the sale of equity investments that were made under the major economic emergency.