With the targeted relief for small businesses from the Coronavirus Aid, Relief, and Economic Security (CARES) Act come questions about whether certain entities are eligible for relief under the act’s Paycheck Protection Program. For private equity and venture capital portfolio companies, additional analysis is required to determine whether they can obtain CARES Act aid. This LawFlash analyzes such companies’ ability to successfully apply for and receive relief.
US President Donald Trump signed the CARES Act into law on March 27. The act, among other economic stimulus measures, provides targeted relief to small businesses through its Paycheck Protection Program (PPP). Read our March 27 LawFlash on the PPP (updated April 13).
These relief measures include emergency grants and certain “paycheck protection” loans under Section 7(a) of the Small Business Act for companies (generally including affiliates) that meet any of the following criteria:
For an ostensibly “small” private equity or venture capital (PE/VC) portfolio company, however, the assessment of whether the company qualifies for this assistance requires analysis.
Depending on the circumstances, the calculation of the totals above may need to incorporate the applicable numbers from an affiliated PE/VC firm or other portfolio companies in which that firm has invested.
As a Section 7(a) assistance loan program, the CARES Act’s PPP is subject to the SBA’s affiliation rules in 13 CFR § 121.301, as supplemented by the interim final rule regarding sections 1102 and 1106 of the CARES act, promulgated by the Department of Treasury on April 3. Pursuant to those rules, SBA takes into account the number of employees or annual receipts (or net worth/net income under the alternative size standard) belonging to the business at issue (i.e., the portfolio company), as well as those of any “affiliated” businesses, in determining eligibility under the applicable size standard. Businesses and entities are considered to be affiliates of one another when one controls or has the power to control the other, or a third party or parties controls or has the power to control both (e.g., controlled by the same PE/VC fund).[2] It does not matter whether control is actually exercised so long as the power to control exists.[3]
One of the most common ways that SBA finds control (and hence, affiliation) is where an individual or another business concern owns more than 50% of the voting equity of the business concern seeking financial assistance.[4] However, even a minority investor may be found to control a business concern where it has the power to exercise “negative control.” This includes the ability under a business concern’s charter, by-laws, shareholders agreement, or similar governing document to prevent a quorum or otherwise block action by the board of directors or shareholders related to the daily operations of the business concern (e.g., hiring or firing officers, borrowing money, or paying dividends).[5]
Control can also arise through contractual or other economic dependence, including when a business concern derived more than 85% of its receipts over the previous three fiscal years from a contractual relationship with another concern, unless certain facts refuting dependence are present.
Further, effective March 11, SBA reinstated a “totality of the circumstances” affiliation test under which SBA may consider all connections between the borrower and a possible affiliate and, if no single factor is sufficient to constitute affiliation, SBA may determine on a case-by-case basis that affiliation exists when there is “clear and convincing evidence” based on the totality of the circumstances.
As a result, even if a PE/VC firm has made a minority investment in a portfolio company, if it also can block actions by the board or shareholders relative to the daily operations of that company through certain protective provisions, the company will likely be deemed affiliated with that PE/VC firm.
Finally, note that if the same individuals or entities control two or more funds, these funds, and the related portfolio companies themselves in which these funds have invested, may also be affiliated. In this regard, for example, two funds owned by the same unrelated individuals or firms may be affiliated under the “identity of interest” test even though the largest number of shares in each of the two funds, respectively, is not held by the same member of the group. SBA finds such an “identity of interest” where two or more individuals or firms have identical or substantially identical business or economic interests, such as common investments. Such individuals or firms may be treated as one party with such interests aggregated, subject to rebuttal with evidence showing that the interests deemed to be one are in fact separate.
Notably, the CARES Act rescinded an interim final rule promulgated in March 2020, in which, among other things, the SBA (1) reinstated a “totality of the circumstances” affiliation test under which SBA may consider all connections between the borrower and a possible affiliate in making a determination on a case-by-case basis that affiliation exists when there is “clear and convincing evidence” based on the totality of the circumstances; and (2) recognized affiliation based on contractual or other economic dependence, including when a business concern derived more than 85% of its receipts over the previous three fiscal years from a contractual relationship with another concern, unless certain facts refuting dependence are present.
Once affiliation with a PE/VC investor is found, SBA aggregates the number of employees or annual receipts (or net worth/net income under the alternative size standard) of that business concern with the number of employees or annual receipts of the business concern at issue, in order to assess whether the business concern exceeds the size standard for loan eligibility.[6] All foreign and domestic affiliates are considered, regardless of whether the affiliates are organized for profit (meaning that non-profit business concerns are not exempt from being found affiliated, and from including their employees in the total calculation).
SBA also considers whether a PE/VC investor has its own affiliates that must be included in the calculation such as other portfolio companies the PE/VC investor also has the power to control. In most cases where affiliation with a PE/VC investor is found, the resulting total employee count will exceed the applicable threshold, and the business will be excluded from the provisions for relief in the CARES Act. If it does not, of course, the business generally still qualifies.
SBA applies certain exceptions to the above-described general principles of affiliation. For example, businesses owned by licensed investment companies or qualified development companies under the Small Business Investment Act of 1958 (SBIA) are not considered affiliates of such investment companies or development companies.[7]
While other investors—including venture capital operating companies and registered investment companies—are specifically called out in another of these exceptions, that carve-out is expressly limited to situations in which the business is applying for financial, management, or technical assistance under the SBIA. This exception, on its face, is therefore inapplicable to PPP loans under the CARES Act, which modifies Section 7(a) of the separate Small Business Act.[8]
The CARES Act explicitly waives the SBA affiliation rules for the following small businesses seeking relief under the CARES Act’s PPP provisions:
As a result, PE/VC-owned businesses that are franchises, recipients of SBIC financial assistance, or that operate in a single location of 500 employees or fewer that operate in the hospitality or food service industries and have no more than 500 employees per physical location likely do not have to perform the affiliation analysis and are therefore more likely to be eligible to receive an assistance loan pursuant to CARES.
As with any time funding is available from the federal government, it is important to consider the risk of civil and criminal liability under the False Claims Act (FCA), which penalizes false or fraudulent statements or claims of entitlement to the government in connection with a request for payment or approval. Civil FCA penalties can be substantial, including the potential for treble damages. As a result, companies should ensure that they meet the size requirements, including applicable affiliated investors, or an applicable waiver, before applying for financial relief under the CARES small business provisions. For more on this read our March 27 LawFlash, CARES Act’s Substantial Relief Funds Create Fraud Risk.
For our clients, we have formed a multidisciplinary Coronavirus COVID-19 Task Force to help guide you through the broad scope of legal issues brought on by this public health challenge. We also have launched a resource page to help keep you on top of developments as they unfold. If you would like to receive a daily digest of all new updates to the page, please subscribe now to receive our COVID-19 alerts.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Philadelphia
Andrew T. Budreika
Michelle Catchur
Kurt W. Rademacher
Andrew P. Rocks
Benjamin W. Stango
New York
Kristen V. Campana
Crystal Fang
Boston
Sandra J. Vrejan
Ian M. Wenniger
Houston
Elizabeth Khoury Ali
Tara McElhiney
Los Angeles
David V. Chang
Orange County/Los Angeles
Steven L. Miller
Washington, DC
Shah M. Nizami
Katelyn M. Hilferty
[1]15 USC 632(a)(5)(B); see also SBA Information Notice 5000-1175.
[2] § 121.301(f). In making the determination of whether affiliation exists, consideration should be given to SBA’s “present effect” rule. Under such rule, “SBA treats stock options, convertible securities, and agreements to merge as though the rights granted have been actually exercised. SBA gives present effect to an agreement to merge (including an agreement in principle) or to sell stock. If these rights have been granted and they confer the power to control, affiliation exists.” (Small Business Compliance Guide: Size and Affiliation, U.S. Small Business Association, March 2014). See also Size of Appeal of: Potomac River Group, LLC, Appellant, SBA No. SIZ-5844, 2017 (S.B.A.), 2017 WL 3470593 (2017) (holding that present effect rule applies only to affiliation based on stock options, convertible securities, and agreements to merge and not to “a purported agreement in principle to amend an operating agreement” that would have the effect of rendering an affiliated entity or individual unaffiliated).
[3] Id.
[4] §121.301(f)(1).
[5] §§121.301(f)(1). Based on a review of SBA administrative case law, a minority investor’s rights to block the following actions have been characterized as “negative control”: (1) approval and/or amendment of budgets, (2) hiring and firing of officers, (3) setting employee compensation, (4) borrowing of money or other creation of debt, (5) purchasing of equipment, (6) incurrence of expenses over a certain threshold, (7) payment of distributions or dividends (other than tax distributions), (8) amendment or termination or leases, (9) encumbering assets, (10) amendment or modification of an incentive or employee stock ownership plan, (11) entry into or amendment of contracts, (12) initiation and/or defense of a lawsuit and (13) requirement that all actions taken to manage the company require a vote of 75% of the members. See generally Size of Appeal of: Southern Contracting Solutions III, LLC, Appellant, SBA No. SIZ-5956, 2018 (S.B.A.), 2018 WL 4492382 (2018); see also Size of Appeal: DHS Systems LLC, Appellant, SBA No. SIZ-5211 (S.B.A.), 2011 WL 1661931 (2011). Notwithstanding the foregoing, SBA recognizes that a minority investor may have a right to block the following extraordinary actions in order to protect its investment, and that such right would not rise to the level of “negative control”: (a) admission or withdrawal of members, (b) dissolving of the business concern or filing for bankruptcy, (c) amendment of charter, bylaws or other organizational documents, (d) issuance of additional capital stock or equity securities or increasing or decreasing the number of authorized securities, or reclassification of interests to protect a minority owner’s investment, (e) entry into any substantially different business, (f) sale of all or substantially all of the business concern’s assets, (g) mortgaging or encumbering all or substantially all of the business concern’s assets, (h) commission of any act that could result in a change in the amount or character of the business concern’s contribution to capital, (i) cause a change in the character or business of the business concern, (j) commission of any act that would make it impossible to carry on ordinary business, (k) commission of any act in contravention of an operating agreement, or (l) increasing or decreasing the size of the board. Id.
[6] §121.301(f)(8). (Note: as SBA has not yet implemented the CARES Act’s rescission of the interim final rule at 85 Fed. Reg. 7622, this citation still reflects the numbering effected by that notice).
[7] See §121.103(b)(1); see also § 121.301(f)(9).
[8] §121.103(b)(5).
[9] 13 CFR 121.20