107.865—Control of a Small Business by a Licensee.
(a) In general.
You, or you and your Associates (in the latter case, the “Investor Group”), may exercise Control over a Small Business for purposes connected to your investment, through ownership of voting securities, management agreements, voting trusts, majority representation on the board of directors, or otherwise. The period of such Control will be limited to the seventh anniversary of the date on which such Control was initially acquired, or any earlier date specified by the terms of any investment agreement.
(b) Presumption of control.
Control over a Small Business based on ownership of voting securities will be presumed to exist whenever you or the Investor Group own or control, directly or indirectly:
(1)
At least 50 percent of the outstanding voting securities, if there are fewer than 50 shareholders; or
(2)
More than 25 percent of the outstanding voting securities, if there are 50 or more shareholders; or
(3)
At least 20 percent of the outstanding voting securities, if there are 50 or more shareholders and no other party holds a larger block.
(c) Rebuttals to presumption of Control.
A presumption of Control under paragraph (b) of this section is rebutted if:
(1)
The management of the Small Business owns at least a 25 percent interest in the voting securities of the business; and
(2)
The management of the Small Business can elect at least 40 percent of the board members of a corporation, general partners of a limited partnership, or managers of a limited liability company, as appropriate, and the Investor Group can elect no more than 40 percent. The balance of such officials may be elected through mutual agreement by management and the Investor Group.
(d) Extension of Control.
With SBA's prior written approval you, or the Investor Group, may retain Control for such additional period as may be reasonably necessary to complete divestiture of Control or to ensure the financial stability of the portfolio company.
(e) Additional Financing for businesses under Licensee's Control.
If you assume Control of a Small Business, you may later provide additional Financing, without an exemption under § 107.730(a)(1).