CHAPTER 150: VENTURE CAPITAL PROGRAM

(A) As used in this chapter:

(1) “Authority” means the Ohio venture capital authority created under section 150.02 of the Revised Code.

(2) “Lender” means any person that lends money to the program fund as provided in this chapter.

(3) “Loss” means a loss incurred with respect to a lender’s loan to the program fund. Such a loss is incurred only if and to the extent a program administrator fails to satisfy its obligations to the lender to make timely payments of principal or interest as provided in the loan agreement between the lender and the program administrator. “Loss” does not include either of the following:

(a) Any loss incurred by the program fund, including a loss attributable to any investment made by a program administrator;

(b) Any loss of the capital required to be provided by a program administrator, or income accruing to that capital, under the agreement entered into under division (B) of section 150.05 of the Revised Code.

(4) “Ohio-based business enterprise” means a person that is engaged in business, that employs at least one individual on a full-time or part-time basis at a place of business in this state, including a person engaged in business if that person is a self-employed individual, and that is in the seed or early stage of business development requiring initial or early stage funding or is an established business enterprise developing new methods or technologies.

(5) “Ohio-based venture capital fund” means a venture capital fund having its principal office in this state, where the majority of the fund’s staff are employed and where at least one investment professional is employed who has at least five years of experience in venture capital investment.

(6) “Program fund” means the fund created under section 150.03 of the Revised Code.

(B) The general assembly declares that its purpose in enacting Chapter 150. of the Revised Code is to increase the amount of private investment capital available in this state for Ohio-based business enterprises in the seed or early stages of business development and requiring initial or early stage funding, as well as established Ohio-based business enterprises developing new methods or technologies, thereby increasing employment, creating additional wealth, and otherwise benefiting the economic welfare of the people of this state. Accordingly, it is the intention of the general assembly that the Ohio venture capital authority focus its investment policy principally on venture capital funds investing in such Ohio-based business enterprises.

Effective Date: 04-09-2003

(A) There is hereby created the Ohio venture capital authority, which shall exercise the powers and perform the duties prescribed by this chapter. The exercise by the authority of its powers and duties is hereby declared to be an essential state governmental function. The authority is subject to all laws generally applicable to state agencies and public officials, including, but not limited to, Chapter 119. and sections 121.22 and 149.43 of the Revised Code, to the extent those laws do not conflict with this chapter.

(B) The authority shall consist of nine members. Seven of the members shall be appointed by the governor, with the advice and consent of the senate, from among the general public. All appointed members shall have experience in the field of banking, investments, commercial law, or industry relevant to the purpose of the Ohio venture capital program as stated in section 150.01 of the Revised Code. The director of development and tax commissioner or their designees shall be ex officio, nonvoting members.

Initial gubernatorial appointees to the authority shall serve staggered terms, with one term expiring on January 31, 2004, two terms expiring on January 31, 2005, two terms expiring on January 31, 2006, and two terms expiring on January 31, 2007. Thereafter, terms of office for all appointees shall be for four years, with each term ending on the same day of the same month as did the term that it succeeds. A vacancy on the authority shall be filled in the same manner as the original appointment, except that a person appointed to fill a vacancy shall be appointed to the remainder of the unexpired term. Any appointed member of the authority is eligible for reappointment.

A member of the authority may be removed by the member’s appointing authority for misfeasance, malfeasance, willful neglect of duty, or other cause, after notice and a public hearing, unless the notice and hearing are waived in writing by the member.

(C) Members of the authority shall serve without compensation, but shall receive their reasonable and necessary expenses incurred in the conduct of authority business. The governor shall designate a member of the authority to serve as chairperson. A majority of the voting members of the authority constitutes a quorum, and the affirmative vote of a majority of the voting members present is necessary for any action taken by the authority. A vacancy in the voting membership of the authority does not impair the right of a quorum to exercise all rights and perform all duties of the authority.

(D) The department of development shall provide the authority with office space and such technical assistance as the authority requires.

Effective Date: 04-09-2003

Within ninety days after the effective date of this section, the authority shall establish, and subsequently may modify as it considers necessary, a written investment policy governing the investment of money from the program fund, which is hereby created. The program fund shall consist of the proceeds of loans acquired by a program administrator. The authority is subject to Chapter 119. of the Revised Code with respect to the establishment or modification of the policy. The policy shall meet all the following requirements:

(A) It is consistent with the purpose of the program stated in section 150.01 of the Revised Code.

(B) Subject to divisions (C), (D), and (E) of this section, it permits the investment of money from the program fund in private, for-profit venture capital funds, including funds of funds, that invest in enterprises in the seed or early stage of business development or established business enterprises developing new methods or technologies, and that demonstrate potential to generate high levels of successful investment performance.

(C) It specifies that a program administrator or fund manager employed by the program administrator shall invest not less than seventy-five per cent of program fund money under its investment authority in Ohio-based venture capital funds.

(D) It specifies that not less than an amount equal to fifty per cent of program fund money invested in any venture capital fund be invested by the venture capital fund in Ohio-based business enterprises.

(E) It specifies that a program administrator or fund manager employed by the program administrator shall not invest money from the program fund in a venture capital fund to the extent that the total amount of program fund money invested in the venture capital fund, when combined with any program fund money invested in a venture capital fund under the same management as that venture capital fund, exceeds the lesser of the following:

(1) Ten million dollars;

(2)(a) In the case of an Ohio-based venture capital fund, fifty per cent of the total amount of capital committed to the fund from all sources, after accounting for capital committed from the program fund;

(b) In the case of any other venture capital fund, twenty per cent of the total amount of capital committed to the fund from all sources, after accounting for capital committed from the program fund.

(F) It specifies that a program administrator or fund manager employed by the program administrator shall not commit capital from the program fund to a venture capital fund until the venture capital fund receives commitment of at least the same amount from other investors in the fund.

(G) It specifies the general conditions a private, for-profit investment fund must meet to be selected as a program administrator under section 150.05 of the Revised Code, including, as a significant selection standard, direct experience managing external or nonproprietary capital in private equity fund of funds formats.

(H) It specifies the criteria the authority must consider when making a determination under division (B)(1) of section 150.04 of the Revised Code.

(I) It includes investment standards and general limitations on allowable investments that the authority considers reasonable and necessary to achieve the purposes of this chapter as stated in division (B) of section 150.01 of the Revised Code, minimize the need for the authority to grant tax credits under section 150.07 of the Revised Code, ensure compliance of the program administrators with all applicable laws of this state and the United States, and ensure the safety and soundness of investments of money from the program fund.

(J) It prohibits the investment of money from the program fund directly in persons other than venture capital funds, except for temporary investment in investment grade debt securities or temporary deposit in interest-bearing accounts or funds pending permanent investment in venture capital funds.

Effective Date: 04-09-2003

(A) The investment policy established or modified under section 150.03 of the Revised Code shall specify the terms and conditions under which the authority may grant tax credits under section 150.07 of the Revised Code, subject to that section and division (B) of this section, to provide security against lenders’ losses.

(B) Nothing in this chapter authorizes the providing of security against losses on any bases other than the following:

(1) The application first of moneys of the Ohio venture capital fund, created under section 150.08 of the Revised Code, that the authority, under the criteria in its investment policy, determines may be expended without adversely affecting the ability of the authority to continue fulfilling the purpose of this chapter as stated in section 150.01 of the Revised Code; and then

(2) The granting of tax credits pursuant to section 150.07 of the Revised Code, but only to the extent moneys under division (B)(1) of this section are insufficient.

Effective Date: 04-09-2003

(A) The authority shall select, as program administrators, not more than two private, for-profit investment funds to acquire loans for the program fund and to invest money in the program fund as prescribed in the investment policy established or modified by the authority in accordance with sections 150.03 and 150.04 of the Revised Code. To be eligible for selection, an investment fund must be incorporated or organized under Chapter 1701., 1705., 1775., 1782., or 1783. of the Revised Code, must have an established business presence in this state, and must be capitalized in accordance with any state and federal laws applicable to the issuance or sale of securities.

The authority shall select program administrators only after soliciting and evaluating requests for proposals as prescribed in this section. The authority shall publish a notice of a request for proposals in newspapers of general circulation in this state once each week for two consecutive weeks before a date specified by the authority as the date on which it will begin accepting proposals. The notices shall contain a general description of the subject of the proposed agreement and the location where the request for proposals may be obtained. The request for proposals shall include all the following:

(1) Instructions and information to respondents concerning the submission of proposals, including the name and address of the office where proposals are to be submitted;

(2) Instructions regarding the manner in which respondents may communicate with the authority, including the names, titles, and telephone numbers of the individuals to whom such communications shall be directed;

(3) Description of the performance criteria that will be used to evaluate whether a respondent selected by the authority is satisfying the authority’s investment policy;

(4) Description of the factors and criteria to be considered in evaluating respondents’ proposals, the relative importance of each factor or criterion, and description of the authority’s evaluation procedure;

(5) Description of any documents that may be incorporated by reference into the request for proposals, provided that the request specifies where such documents may be obtained and such documents are readily available to all interested parties.

After the date specified for receiving proposals, the authority shall evaluate submitted proposals. The authority may discuss a respondent’s proposal with that respondent to clarify or revise a proposal or the terms of the agreement.

The authority shall choose for review proposals from at least three respondents the authority considers qualified to operate the program in the best interests of the investment policy adopted by the authority. If three or fewer proposals are submitted, the authority shall review each proposal. The authority may cancel a request for proposals at any time before entering into an agreement with a respondent. The authority shall provide respondents fair and equal opportunity for such discussions. The authority may terminate discussions with any respondent upon written notice to the respondent.

(B) After reviewing the chosen proposals, the authority may select not more than two such respondents and enter into a written agreement with each of the selected respondents, provided that at no time shall there be agreements with more than two persons.

The agreement shall do all of the following:

(1) Specify that borrowing and investing by the program administrator will be budgeted to guarantee that no tax credits will be granted during the first four years of the Ohio venture capital program, and will be structured to ensure that payments of principal, interest, or interest equivalent due in any fiscal year, when added to such payments due from any other program administrator, does not exceed twenty million dollars;

(2) Require investment by the program administrator or the fund manager employed by the program administrator to be in compliance with the investment policy established or modified in accordance with sections 150.03 and 150.04 of the Revised Code that is in effect at the time the investment is made, and prohibit the program administrator or fund manager from engaging in any investment activities other than activities to carry out that policy;

(3) Require periodic financial reporting by the program administrator to the authority, which reporting shall include an annual audit by an independent auditor and such other financial reporting as is specified in the agreement or otherwise required by the authority for the purpose of ensuring that the program administrator is carrying out the investment policy;

(4) Specify any like standards or general limitations in addition to or in furtherance of investment standards or limitations that apply pursuant to division (H) of section 150.03 of the Revised Code;

(5) Require the program administrator to apply program fund revenue first to the payment of principal borrowed by the program administrator for investment under the program, then to interest related to that principal, and then to amounts necessary to cover the program administrator’s pro rata share required under division (B)(9) of this section; and require the program administrator to pay the authority not less than ninety per cent of the amount by which program fund revenue attributable to investments under the program administrator’s investment authority exceeds amounts so applied;

(6) Specify the procedures by which the program administrator shall certify immediately to the authority the necessity for the authority to issue tax credit certificates pursuant to contracts entered into under section 150.07 of the Revised Code;

(7) Specify any general limitations regarding the employment of a fund manager by the program administrator, in addition to an express limitation that the fund manager be a person with demonstrated, substantial, successful experience in the design and management of seed and venture capital investment programs and in capital formation. The fund manager may be, but need not be, an equity owner or affiliate of the program administrator.

(8) Specify the terms and conditions under which the authority or the program administrator may terminate the agreement, including in the circumstance that the program administrator or fund manager violates the investment policy;

(9) Require the program administrator or fund manager employed by the program administrator to provide capital in the form of a loan equal to one per cent of the amount of outstanding loans by lenders to the program fund. The loan from the program administrator or fund manager shall be on the same terms and conditions as loans from other lenders, except that the loan from the program administrator or fund manager shall not be secured by the Ohio venture capital fund or tax credits available to other lenders under division (B) of section 150.04 of the Revised Code. Such capital shall be placed at the same risk as the proceeds from such loans. The program administrator shall receive a pro rata share of the net income, including net loss, from the investment of money from the program fund, but is not entitled to the security against losses provided under section 150.04 of the Revised Code.

Effective Date: 04-09-2003

(A) The authority is not an agency as defined in section 101.82 of the Revised Code for purposes of divisions (A) and (B) of section 101.83 of the Revised Code.

(B) The selection of a program administrator and the entering into an agreement under section 150.05 of the Revised Code do not constitute a purchase of services under Chapter 125. of the Revised Code.

(C) Notwithstanding section 121.22 of the Revised Code, the authority may hold an executive session for either of the following purposes, but only after a majority of a quorum of the authority determines, by a roll call vote, to hold the session, and only at a regular or special meeting:

(1) Presenting, reviewing, or discussing proprietary information relating to any person unless that person has consented in writing to disclosure of such information by the authority;

(2) Preparing for, conducting, or reviewing negotiating sessions with any private, for-profit investment fund for the purpose of selecting a program administrator and entering into an agreement under section 150.05 of the Revised Code.

Effective Date: 04-09-2003

(A) For the purpose stated in section 150.01 of the Revised Code, the authority may authorize a lender to claim one of the refundable tax credits allowed under section 5707.031, 5725.19, 5727.241, 5729.08, 5733.49, or 5747.80 of the Revised Code. The credits shall be authorized by a written contract with the lender. The contract shall specify the terms under which the lender may claim the credit, including the amount of loss, if any, the lender must incur before the lender may claim the credit; specify that the credit shall not exceed the amount of the loss; and specify that the lender may claim the credit only for a loss certified by a program administrator to the authority under the procedures prescribed under division (B)(6) of section 150.05 of the Revised Code.

(B) Tax credits may be authorized at any time after the authority establishes the investment policy under section 150.03 of the Revised Code, but a tax credit so authorized may not be claimed until the beginning of the fifth year after the authority establishes the investment policy. A tax credit may not be claimed after June 30, 2026.

(C)(1) Upon receiving certification of a lender’s loss from a program administrator pursuant to the procedures in the investment policy, the authority shall issue a tax credit certificate to the lender, except as otherwise provided in division (D) of this section.

(2) If the lender is a pass-through entity, as defined in section 5733.04 of the Revised Code, then each equity investor in the lender pass-through entity shall be entitled to claim one of the tax credits allowed under division (A) of this section for that equity investor’s taxable year in which or with which ends the taxable year of the lender pass-through entity in an amount based on the equity investor’s distributive or proportionate share of the credit amount set forth in the certificate issued by the authority. If all equity investors of the lender pass-through entity are not eligible to claim a credit against the same tax set forth in division (A) of this section, then each equity investor may elect to claim a credit against the tax to which the equity investor is subject to in an amount based on the equity investor’s distributive or proportionate share of the credit amount set forth in the certificate issued by the authority.

(3) The certificate shall state the amount of the credit and the calendar year under section 5707.031, 5725.19, 5727.241, or 5729.08, the tax year under section 5733.49, or the taxable year under section 5747.80 of the Revised Code for which the credit may be claimed. The authority, in conjunction with the tax commissioner, shall develop a system for issuing tax credit certificates for the purpose of verifying that any credit claimed is a credit issued under this section and is properly taken in the year specified in the certificate and in compliance with division (B) of this section.

(D) The authority shall not, in any fiscal year, issue tax credit certificates in a total amount exceeding twenty million dollars.

Effective Date: 04-09-2003; 06-30-2005; 06-05-2006

(A) There is hereby created in the state treasury the Ohio venture capital fund, to which shall be credited all payments received by the authority pursuant to division (B)(5) of section 150.05 of the Revised Code and all interest earned on moneys of the fund.

(B) Except as provided in division (C) of this section, money in the Ohio venture capital fund shall be used exclusively to provide security against losses as authorized under this chapter.

(C) If the amount in the venture capital fund exceeds the amount reasonably necessary to provide security against such losses, the excess may be used, upon appropriation by the general assembly, to provide scholarships or other financial assistance to students enrolled in a course of study in the fields of physical or natural sciences, mathematics, or engineering at an institution of higher education in this state.

Effective Date: 04-09-2003

The state, the governor, or a member of the authority is not liable in damages to any person in a civil action for any loss incurred as a result of any investment made by a program administrator or fund manager employed by the program administrator.

Effective Date: 04-09-2003

(A) On the first day of January of the second year after the date of entering into an agreement under section 150.05 of the Revised Code and of each ensuing year, the authority shall file with the clerk of the house of representatives, the clerk of the senate, and the chairpersons of the house and senate standing committees predominantly concerned with economic development a written report on the Ohio venture capital program. The report shall include all the following:

(1) A description of the details of the investment policy established or modified in accordance with sections 150.03 and 150.04 of the Revised Code;

(2) The authority’s assessment of the program’s achievement of its purpose stated in section 150.01 of the Revised Code;

(3) The value of tax credit certificates issued by the authority under section 150.07 of the Revised Code in each fiscal year ending on or before the preceding thirtieth day of June;

(4) The amount of tax credits claimed pursuant to section 5707.031, 5725.19, 5727.241, 5729.08, 5733.49, or 5747.80 of the Revised Code, as to the respective taxes involved;

(5) The financial status of the Ohio venture capital fund;

(6) The names of venture capital funds in which money from the program fund has been invested and the locations of their principal offices, and the names of the enterprises in which each of those venture capital funds has invested such money and the locations of those enterprises’ principal offices;

(7) Any recommendations for modifying the program to better achieve the purpose stated in section 150.01 of the Revised Code.

(B) During each year that a report is issued under division (A) of this section, the chairperson of the authority, or another member of the authority designated by the chairperson as the authority’s representative, shall be required to appear in person before the standing committees of the house and senate predominantly concerned with economic development to give testimony concerning the status of the Ohio venture capital program.

Effective Date: 04-09-2003; 06-30-2005