SENATE BILL NO. 492
AN ACT TO AMEND TITLE 5 OF THE DELAWARE CODE TO PROVIDE FOR THE LICENSING AND REGULATION OF BUSINESS AND INDUSTRIAL DEVELOPMENT CORPORATIONS.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Three-fifths of all members elected to each House thereof concurring therein):
Section I. Add a new Chapter 33 to Title 5 of the Delaware Code, to read as follows:
CHAPTER 33. BUSINESS AND INDUSTRIAL DEVELOPMENT CORPORATIONS Subchapter I. General Provisions
3301. Short title. 3325. Avoidance of conflict of
3302. Findings; declaration of interest.
3303. Definitions. Subchapter [V. Mergers,
3304. Applicability of other laws. Acquisitions and Sale of Business
3305. Corporate name. Assets
3306. Supervision of Bidcos.
3307. Fees. 3331. General rules.
3308. Liberal construction.
Subchapter V. Operating Rules
Subchapter II. Licensing Governing Business of Bidco
3311. Applications; review by Commissioner.
3312 Voluntary surrender of Bidco license. 3341. Form and Maintenance of Bidco records; annual audited report.
3342. Periodic report requirements. 3343. Examination of Bidcos.
Subchapter III. Conduct of
Bidco Business Subchapter VI. Enforcement
Powers of Commissioner
3322. Business of a Bidco. 3323. Control of business firm
prohibited; exceptions. 3324. Business of Bidco to be
conducted in prudent business manner. 3351. Investigations.
3352. False statements, entries or
3353. Violations; remedies.
Subchapter I. General Provisions
§3301. Short title
This chapter shall be known and may be cited as the "Delaware Bldco Act." §3302. Findingli_declaration of purposes.
(a) It is determined and declared as a matter of legislative finding that:
(I) The avallablity of financial and management assistance are important resources
to small businesses to locate, remain and expand in the State, which, in time, will result in Increased employment opportunities In the State.
(2) There Is need for financial and management resource alternatives to small
businesses in the State due to lack of bank financing In situations, including, but not limited to, start-ups, under-collateralization, management problems, and above-average risk projects
(4) In order to increase employment opportunities and commercial transactions in the State, there is a need to encourage the development of resources directed at small businesses, which will help such businesses locate, remain and expand in the State.
(b) It is further determined and declared that the purposes of this chapter shall be to:
(1) Promote economic development by encouraging the formation of private financial institutions known as Bidcos to help meet the financing assistance and management assistance needs of growth-oriented small businesses In the State; and
(2) Provide for the licensing and regulation of Bidcos to prevent fraud, conflict of Interest, and mismanagement, in order to encourage:
(I) private equity investments in Bidcos; and
(11) pension funds, insurance companies, foundations, utilities and other institutions to lend funds to Bidcos.
For the purposes of this chapter, unless otherwise specifically defined, or unless another intention clearly appears or unless the context requires a different meaning:
(1) "Affiliate" means, If used with respect to a specified person other than a natural person, a person controlling or controlled by such specified person, or a person controlled by a person who also controls such specified person.
(2) "Applicant" means a Delaware corporation that has submitted an application for a license under this chapter.
(3) "Bidco" means a business and industrial development corporation licensed under this chapter.
(4) "Business firm" means a person that transacts business on a regular and continual basis, or that proposes to transact business on a regular and continual basis.
(5) "Commissioner" means the Bank Commissioner of the State.
(6) "Control" means, if used with respect to a specified person, the power to direct or cause the direction of, directly or indirectly through one or more intermediaries, the management and policies of such specified person, whether through the ownership of voting securities, by contract, other than a commercial contract for goods or non-management services, or otherwise. A natural person shall not be considered to control another person solely on account of being a director, officer, or employee of such other person.
(7) "Controlling person" means, if used with respect to a specified person, a person who controls such specified person, directly or indirectly through one (1) or more intermediaries.
(8) "Corporate name" means the name of a corporation as set forth in the certificate of incorporation of such corporation.
(9) "Delaware corporation" means a corporation, whether for profit or non-profit, incorporated under the General Corporation Law of Delaware.
(10) "Insolvent" means a licensee that ceases to pay its debts in the ordinary course of business, that cannot pay its debts as they become due, or whose liabilities exceed Its assets.
(11) "Interests of a licensee" includes the interests of shareholders of the licensee.
(12) "License" means a license issued under this chapter authorizing a Delaware corporation to transact business as a Bidco.
(13) "Licensee" means a Delaware corporation which Is licensed under this chapter.
(14) "Officer" means:
(a) If used with respect to a corporation, a person appointed or designated as an officer of such corporation by or pursuant to applicable law or the certificate of
Incorporation or bylaws of such corporation, or a person who performs with respect to such corporation functions usually performed by an officer of a corporation; and
(b) If used with respect to a specified person other than a natural person or a
corporation, a person who performs with respect to such specified person functions usually performed by an officer of a corporation with respect to such corporation.
(15) "Order" Includes an approval, authorization, consent, exemption, denial, prohibition, or other official act taken by the Commissioner.
(1) "Person" includes an individual, proprietorship, joint venture, partnership,
trust, business trust, syndicate, association, joint stock company, corporation, cooperative, government, agency of a government, or any other entity or organization. If used with respect to acquiring control of or controlling a specified person, "person" includes a combination of two (2) or more persons acting In concert.
(1) "Principal shareholder" means a person that owns, directly or indirectly, of record or beneficially, securities representing ten (10) percent or more of the outstanding voting securities of a corporation.
(1) "State" means the State of Delaware.
(1) "State Administrative Procedures Act" refers to Chapter 101, Title 29 of the Delaware Code.
(2) "Subject person" means a controlling person, subsidiary, or affiliate of a
licensee, a director, officer, or employee of a licensee or of a controlling person, subsidiary, or affiliate of a licensee, or any other person who participates in the conduct of the business of a licensee.
(1) "Subsidiary" means, if used with respect to a licensee, a company or business firm which the licensee holds control of as permitted by section 3323(a)(2), (3), (4) or (5) of this chapter.
(1) "This chapter" Includes any order Issued or rule promulgated under this chapter.
§3304 ApplicabLIItyof other laws.
A corporation licensed under and pursuant to this chapter shall be known as a Bidco, shall be subject to regulation by the Commissioner, and shall be deemed subject to the General Corporation Law of Delaware to the extent that such law Is not inconsistent with the express provisions of this chapter,
§3305. Corporate name.
Each corporation licensed under this chapter shall use the word "Bidco" in Its
§3306. Supervision of Bidcos.
(a) The Commissioner shall administer this chapter and shall have supervision
responsibility for all Bidcos incorporated under the laws of this State, and shall secure the e.ecution of all laws relative to Bidcos.
(a) the Commissioner shall Issue orders and promulgate rules and regulations that are deemed necessary or appropriate to execute, enforce, and effectuate the purposes of this chapter
(a) Whenever the Commissioner Issues an order or license under this chapter, the Commissioner may Impose conditions that are deemed necessary or appropriate to effectuate the purposes of this chapter.
(a) Every final order, decision or license action of the Commissioner under this Chapter IS subject to administrative and judicial review In accordance with law.
The Commissioner shall establish a schedule of fees, which the Commissioner determines to be reasonable and necessary to effectuate the purposes of this chapter, In connection with the licensing, administration and supervision of Bidcos, and such schedule shall be Subject to amendment by the Commissioner from time to time.
§3308 Liberal construction.
This chapter shall be liberally construed to accomplish its purposes.
Subchapter II. Licensing
§3311. Applications; review by Commissioner.
(a) A Delaware corporation may apply to the Commissioner for a license to form and conduct business as a Bidco. A person other than a Delaware corporation may not apply for such a license.
(b) An application filed with the Commissioner under this chapter shall be in such form and contain such information as the Commissioner may require, but shall contain, at a minimum, the following:
(1) A detailed business plan setting forth the services to be provided by the proposed Bidco to business firms located within or outside of the State;
(2) A summary of the geographical business markets of the proposed Bidco;
(3) Information concerning the experience of the management of the proposed Bidco and how such experience relates to the execution of the business plan referred to in paragraph (1) of this subsection;
(4) Location of the proposed main office of the Bidco and any branch offices, or the vicinity thereof;
(5) A detailed summary of how the management of the proposed Bidco Intends to Implement a reasonable and prudent policy for conserving and Investing the capital of such Bidco;
(6) A summary of the types of business firms to be assisted by the proposed Bidco; and
(7) Three (3) years of detailed financial projections.
(c) After a review of an application and receipt and review of any additional or supplemental Information requested by the Commissioner, the Commissioner shall approve the application for a license under this chapter if the Commissioner determines that:
(1) The applicant has, or has firm financing commitments from equity Investors or debt sources for, cash or similar liquid assets sufficient to demonstrate that prior to the time such applicant is authorized to transact business as a Bidco, such applicant will have liquid assets available to provide financing assistance to business firms in an amount adequate for such applicant to transact business as a Bidco:
(2) Each director, officer, and controlling person of the applicant is of good character and sound financial standing: each director and officer of such applicant is competent to perform his functions with respect to such applicant; and the directors and officers of such applicant are collectively able to manage the business of such applicant as a Bidco:
(3) It is reasonable to believe that the applicant, if licensed, will comply with this chapter; and
(4) The applicant has reasonable prospects of being a viable, ongoing Bidco and of satisfying the basic objectives of Its business plan.
(d) The Commissioner shall require a Bidco to have at the time It is authorized to transact business as a Bidco a minimum net worth of not less than $1,000,000.
(e) If an application for a license under this chapter Is approved and all conditions precedent to the issuance of such license are fulfilled, the Commissioner shall Issue a
license to the applicant. A licensee shall post the license, or a copy thereof, in a
conspicuous place In each of the main and branch offices of the licensee. A license shall
not be transferable or assignable. Each license shall expire on December 31 of each year
and be subject to an annual renewal.
(f) If the Commissioner denies an application, the Commissioner shall provide the applicant with a written statement explaining the basis for the denial. - The formation, acquisition or control of a Bidco pursuant to this chapter shall not be deemed to be a violation of any condition imposed by law upon an out-of state bank holding compa,,y or any subsidiary thereof which acquires and holds all or substantially all of the voting shares
of a bank or banks In the State, and such condition shall not, of itself, be basis for denial of an application.
§3312. Voluntary surrender of Bidco license.
(a) Upon approval of a two-thirds vote of its board of directors and after complying with subsection (b) of this section, a licensee may apply to the Commissioner to have the Comissioner accept the surrender of the license of such licensee. If the Commissioner
determines that the requirements of this section have been satisfied, the Commissioner shall approve the application, unless In the opinion of the Commissioner the purpose of the application Is to evade a current or prospective action by the Commissioner under subchapter VI of this chapter.
(b) Not less than sixty (60) days before filing an application with the Commissioner under subsection (a) of this section, a licensee shall notify each of its shareholders of its intention to file such application. Each such shareholder shall be notified of the
right to file with the licensee an objection to the proposed surrender of the license within the sixty (60) day period and shall be advised that, if such shareholder files such an objection, such shareholder should send a copy of such objection to the Commissioner. If shareholders holding twenty (20) percent or more of the outstanding voting securities of the licensee file such objections, the licensee shall not proceed with the application under subsection (a) of this section unless the application is approved by a vote of shareholders holding two-thirds of the outstanding voting securities of such licensee.
Subchapter III. Conduct of Bidco Business.
(a) A licensee shall maintain not less than one (I) office In the State.
(b) Each office of a licensee, whether within or outside of the State, shall be located In a place which Is reasonably accessible to the public.
(c) A licensee shall maintain at each of Its offices personnel who are competent to conduct the business of such office.
(d) Upon written notice to the Commissioner, a licensee may establish, relocate, or close an office.
§3322. Business of a Bidco.
(a) The business of a licensee shall be the business of providing financing assistance and management assistance to business firms.
(b) A licensee may determine the structure and the terms and conditions for financing assistance provided by that licensee to a business firm including, but not limited to, structures such as straight loans, purchase of debt instruments, straight equity
investments (e.g purchase of common stock or preferred stock), debt with equity features
(e.g warrants to purchase stock, convertible debentures, or receipt of a percentage of
gross or net income or sales), royalty-based financing, guaranteeing of debt, or leasing of property
(c) Management assistance provided by a licensee to a business firm may encompass management and technical advice and services.
(d) A licensee may exercise the incidental powers that are necessary or convenient to carry on the business of, or that are reasonably related to the business of, providing financing assistance and management assistance to business firms.
(e) In connection with an extension of credit by a licensee to a business firm, the licensee and such business firms may, notwithstanding any other provisions of the laws of the State, agree to any rate of interest and any schedule of fees.
§3323 Contfol of business firm prohibited; exceptions.
(a) Either by itself or in concert with one (1) or more of its directors, officers, principal shareholders, or affiliates, one (I) or more other licensees, or one (1) or more directors, officers, principal shareholders, or affiliates of another licensee or licensees, a licensee shall not hold control of a business firm, except as follows:
financing assistance to a business firm may acquire and hold control of such business firm. Unless the Commissioner approves a longer period, a licensee holding control of a business firm under this paragraph shall divest itself of the interest which constitutes holding control as soon as practicable or within three
(3) years after acquiring such interest, whichever is earlier.
(2) With the approval of the Commissioner, a licensee may acquire and hold control of a corporation which Is licensed as a small business investment company under the U.S. Small Business Investment Act of 1958, as amended.
(3) With the approval of the Commissioner, a licensee may acquire and hold control of a company which is a development company, whether or not such development company has been or may become certified by the United States Small Business Administration pursuant to the U.S. Small Business Investment Act of 1958, as amended.
(4) With the approval of the Commissioner, a licensee may acquire and hold control of another business firm which is engaged in no business other than the business of providing financing assistance or management assistance to business firms.
(5) With the approval of the Commissioner, a licensee may acquire and hold control of a business firm not referred to in paragraphs (1) through (4) of this subsection. The Commissioner shall not approve an application under this paragraph unless the Commissioner determines that such an acquisition will promote the purposes of this chapter.
(b) If a licensee anticipates acquiring and holding control of a business firm under subsection (a)(1) of this section, the licensee shall file with the Commissioner a plan for acquiring and holding control of such business firm that shall include, at minimum, the following:
(1) The reasons it is necessary for the licensee to acquire and hold control of such business firm;
(2) The percentage of outstanding voting securities of such business firm that the licensee anticipates acquiring and holding;
(3) The licensee's proposed course of action upon obtaining control of such business firm; and
(4) The length of time the licensee anticipates it will be necessary to hold control of such business firm.
(c) The Commissioner may require a licensee to demonstrate the necessity for such licensee to hold control of a business firm under subsection (a)(1) of this section.
(d) For the purposes of this section, "hold control" means ownership, directly or indirectly, of record or beneficially, of voting securities greater than
(1) For a business firm with outstanding voting securities held by fewer than fifty (50) shareholders, forty (40) percent of such outstanding voting securities.
(2) For a business firm with outstanding voting securities held by fifty (50) or more shareholders, twenty-five (25) percent of the outstanding voting securities.
§3324. Business of Bidco to be conducted in prudent business manner.
(a) A licensee shall transact its business in a prudent business manner and shall maintain itself In a viable condition.
(b) In determining whether a licensee is transacting business in a prudent business manner, the Commissioner shall not consider the risk of the financing assistance provided by such licensee to a business firm, unless the Commissioner determines that the risk Is so great compared with the realistically expected return as to demonstrate mismanagement of the licensee.
(c) Subsection (b) of this section shall not limit the authority of the Commissioner to do any of the following:
(I) Determine that a licensee's financing assistance to a single business firm or a
group of affiliated business firms Is In violation of subsection (a) of this
section If the amount of such financing assistance is Unduly large in relation to the total assets or the total shareholders' equity of such licensee.
(2) Require that a licensee maintain a reserve in the amount of anticipated losses.
(3) Require that a licensee have in effect a written financing assistance policy, approved by its board of directors, including credit evaluation criteria and other matters. The Commissioner shall not require that a licensee adopt a financing
assistance policy that contains standards which prevent such licensee from exercising needed flexibility In evaluating and structuring financing assistance to business firms on a deal-by-deal basis.
§3325. Avoidance of conflict of Interest.
(a) A licensee shall avoid any transaction or act which involves, or has the potential to Involve, a conflict of Interest, unless such transaction or act and the circumstances underlying the conflict or potential conflict of interest are fully and adequately disclosed to appropriate persons.
(b) Notwithstanding subsection (a) of this section, a licensee shall provide the Commissioner with a separate notice, setting forth the specific facts concerning an actual or potential conflict of Interest, prior to the consummation of any transaction or act referred to In subsection (a) of this section.
(c) Nothing In this section shall limit the authority of the Commissioner to determine that a transaction or act Involves a conflict of Interest, Including, but not limited to, disapproval of any proposed transaction, or to take Such steps that the Commissioner deems necessary or appropriate to resolve such conflict of Interest.
Subchapter IV. Mergers Acquisitions and Sale of Business Assets.
§3331. General rules.
(a) Without the prior approval of the Commissioner, a licensee shall not consummate a transaction involving a merger, acquisition of control, or a sale of all or substantially all of Its business assets, where the licensee Is a principal party to such transaction.
(b) The Commissioner shall not approve the merger of a licensee with another corporation unless:
(I) The licensee Is the surviving corporation; or
(2) If the licensee Is the disappearing corporation, the surviving corporation is also a licensee.
(c) The Commissioner shall approve an application by a licensee for approval of a proposed transaction involving a merger, acquisition of control or a sale of all or substantially all of such licensee's business assets, only upon a finding by the Commissioner that.
(I) Such merger, acquisition, or sale will be on a sound financial basis with respect to the acquiring licensee;
(2) Upon consummation of such merger, acquisition, or sale, It is reasonable to believe that the acquiring licensee will comply with this chapter; and
(3) Such merger, acquisition, or sale will not have a major detrimental impact upon competition In the providing of financing assistance or management assistance to business firms, or If there will be such a major detrimental impact, such merger, acquisition, or sale is necessary In the interests of the financial soundness of any of the parties to such merger, acquisition, or sale, or Is otherwise, on balance, in the public interest.
Subchapter V. Operating Rules Governing Business of Bidcos. §3341 Form and maintenance of Bidco records annual audited report.
(a) A licensee shall make and keep books, accounts, and other records In such form and manner as the Commissioner may require. Such records shall be kept at such place and shall be preserved for such length of time as the Commissioner may specify.
(b) Not more than ninety (90) days after the close of each fiscal year of a licensee or a longer period if specified by the Commissioner, a licensee shall file with the Commissioner an audited report containing the following:
(1) Financial statements, including balance sheet, statement of income or loss, statement of changes In capital accounts, and statement of changes In financial position;
(2) A report, certificate, or opinion of the Independent certified public
accountant or independent public accountant who performs the audit, stating that the financial statements were prepared in accordance with generally accepted accounting principles: and
(1) Such other Information as the Commissioner may require. §3342. Periodic report requirements.
In addition to the audited report required by Section 3341(b) of this title, a licensee shall file with the Commissioner such other reports and at such times as the Commissioner may require. Any report required by the Commissioner under this section shall be In such form and shall contain such information as the Commissioner may specify.
§3343. Examination of Bidtos.
(a) The Commissioner shall visit and examine each licensee as frequently as the Commissioner deems It necessary or expedient of such licensee. On the occasion of every
such visit and examination, the Commissioner shall (in company with one (1) or more of the officers of such licensee, If requested by such licensee) be given free access to every part of the office or place of business and to the assets, securities, books, papers and records of such licensee.
(b) If In the Commissioner's opinion it Is necessary for a thorough examination of a licensee, the Commissioner may retain one (I) or more accountants, attorneys, appraisers, or other third parties to assist the Commissioner In such examination. Within ten (10)
days after receipt of a statement from the Commissioner, such licensee shall pay or reimburse the fees, costs and expenses of any third parties retained by the Commissioner under this subsection.
(c) Any examination under this section may be made by any person or persons designated by the Commissioner, and in ouch case all the powers vested In the Commissioner by this section shall be possessed by such person or persons so designated. When any such
examination Is made without the presence of the Commissioner, the Commissioner shall give written authority to the person or persons conducting such examination, which shall be exhibited to any person contacted in the course of the investigation.
Subchapter VI. Enforcement Powers of Commissioner §3351. Investigations.
(a) The Commissioner may make such investigations within or without the State as the Commissioner may consider necessary or appropriate for determining whether to approve an application filed with the Commissioner under this chapter or for determining whether a licensee or other person has violated or is about to violate this chapter, to aid in the enforcement of this chapter, or to aid in issuing an order or promulgating a rule or regulation pursuant to this chapter.
(b) Any investigation under this section may be made by any person or persons designated by the Commissioner, and in such case all the powers vested In the Commissioner by this section shall be possessed by such person or persons so designated. When any such investigation is made without the presence of the Commissioner, the Commissioner shall give written authority to the person or persons conducting such investigation, which shall be exhibited to any person contacted in the course of such investigation.
(c) For purposes of an investigation under this section, the Commissioner may administer oaths and affirmations, subpoena witnesses, including but not limited to the officers, directors, trustees, partners, managers and employees of any entity being
examined, compel the attendance of witnesses, take evidence, and require the production of books, papers, correspondence, memoranda, agreements, or other documents or records which the Commissioner considers relevant to such investigation.
(a) If any person falls to comply with a subpoena or subpoena duces tecum Issued by the Commissioner under this section or falls to testify with respect to a matter concerning
which the person may be lawfully questioned, the Court of Chancery, upon application of the Commissioner, may Issue an order requiring the attendance of such person and the giving of testimony or production of evidence.
§3352. False statements, entries or reports; penalty.
Every director, officer, agent, clerk or employee of any entity affected by sections 3343 or 3351 of this chapter, who wilfully or knowingly subscribes or exhibits any false paper, with Intent to deceive any person authorized to investigate or examine as to the condition of such entity, or who wilfully or knowingly subscribes to or makes any false report, shall be fined not less than $500 nor more than $1,000.
§3353. Violations; remedies.
(a) Subject to the State Administrative Procedures Act, the Commissioner may Issue an order, setting forth an appropriate remedy, Including, without limitation, a cease-and-desist order, an order removing any person from office with a licensee, or prohibiting any person from further participating In any manner in the conduct of the business of such licensee, upon a finding by the Commissioner that such licensee, subject person or other person:
(1) Has violated, Is violating, or is about to violate any provision of this chapter or other applicable law, rule or regulation;
(2) Has engaged or participated, or is engaging or participating, or Is about to engage or participate detrimentally with respect to the business of such licensee;
(3) Has been indicted or convicted for a crime involving dishonesty or breech of trust; or
(4) Is conducting acts that threaten the Interests of such licensee or may threaten to impair public confidence in such licensee.
(b) The licensee, subject person or other person to whom an order is Issued under subsection (a) of this section, is entitled to judicial review of such order as set forth In the State Administrative Procedures Act.
(a) If the Commissioner finds that a licensee Is insolvent, or such licensee Is transacting business without authority or In violation of this chapter or any other law, or It Is contrary to the purposes of this Act for such licensee to continue business, the Commissioner shall communicate the facts to the Attorney General of the State who shall file in the Court of Chancery, in any county where such licensee Is doing business, a complaint setting forth the facts and applying for an order requiring such licensee to show cause why its business should not be closed.
(b) In a proper case made, the Court of Chancery shall have the power to appoint a receiver to take charge of, settle and wind up the affairs of a licensee under the direction of the Court, to enjoin such licensee from doing business, or to make such other order or decree as the circumstances shall warrant and the Court shall deem proper.
(a) Subject to the State Administrative Procedures Act, should the Commissioner find that any person has violated this chapter, other than that prohibited under Section 335? of this chapter, the Commissioner may order such person to pay to the State a civil penalty In such amount as the Commissioner may specify. However, the amount of any such Civil penalty shall not exceed $10,000.00 for each violation, or In the case of a continuing violation, $10,000.00 for each day for which the violation continues.
(b) This section shall not apply to any act committed or omitted In good faith In conformity with an order, rule, declaratory ruling, or written interpretative opinion of the Commissioner, notwithstanding that such order, rule, declaratory ruling, or written interpretative opinion may be later amended, rescinded, or repealed, or determined by judicial or other authority to be invalid for any reason.
(c) The provisions of subsection (a) of this section are In addition to, and not an alternative to, other provisions of this chapter which authorize the Commissioner to issue orders or to take other action on account of a violation of this chapter.
(d) The provisions of subsection (a) of this section are in addition to, and not an alternative to, any criminal penalties that may be available under State and federal law.
Section 2. This Act shall become effective on July 1, 1988.
Approved July 12, 1988.