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ENGROSSED HOUSE AMENDME NT
TO
ENGROSSED SENATE BILL NO . 760 By: Kirt and Hall of the Senate
and
Boatman of the House
An Act relating to the Oklahoma Capital Investment
Board; amending 74 O.S. 2021, Sections 5085 .5,
5085.6, 5085.8, 5085.10, 508 5.11, 5085.12, 5085.14,
5085.15, and 5085.16, which relate to the Oklahoma
Capital Formation Act; modifying definition;
modifying reference; dissolving Board upon certain
date; transferring certain contracts and management
of certain investments to the Oklahoma Science and
Technology Research and Development Board ; updating
statutory reference; updating statutory langu age; and
providing an effective date .
AMENDMENT NO. 1. Page 1, Lines 6 through 11, strike the title to
read:
"[ Oklahoma Capital Investment Board - Oklahoma
Capital Formation Act – transfer of contracts and
management of investments to the Oklahoma Science
and Technology Research and Development Board -
effective date ]"
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Passed the House of Representatives the 27th day of April, 2023.
Presiding Officer of the House of
Representatives
Passed the Senate the ____ day of _______ ___, 2023.
Presiding Officer of the Senate
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ENGROSSED SENATE
BILL NO. 760 By: Kirt and Hall of the Senate
and
Boatman of the House
An Act relating to the Oklahoma Capital Investment
Board; amending 74 O.S. 2021, Sections 5085 .5,
5085.6, 5085.8, 5085.10, 5085.11, 5085.12, 5085.14,
5085.15, and 5085.16, which relate to the Oklahoma
Capital Formation Act; modifying definition;
modifying reference; dissolving Board upon certain
date; transferring certain contracts and management
of certain investments to the Oklahoma Science and
Technology Research and Development Board ; updating
statutory reference; updating statutory langu age; and
providing an effective date.
BE IT ENACTED BY THE PEOPLE OF TH E STATE OF OKLAHOMA:
SECTION 1. AMENDATORY 74 O.S. 2021, Section 5085.5, is
amended to read as follows:
Section 5085.5. For purposes of this act the Oklahoma Capital
Formation Act:
1. “Board” means the Oklahoma Capital Investment Board Science
and Technology Research and Development Board of the Oklahoma Cente r
for the Advancement of Science and Technology;
2. “Director” means any person who is a member of t he Board;
3. “Equity capital” means capital invested in common or
preferred stock, royalty rights, limited partnership inter ests, and
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any other securities or rights that evidence ownership in private
businesses;
4. “Investor group” means any individual, corporation,
partnership, or other lawfully organized entity;
5. “Near-equity capital” means capital invested in unsecured,
undersecured, subordinated , or convertible loans or debt securities;
6. “Persons” means individuals, corporations, partnerships , or
other lawfully organi zed entities;
7. “Put option” means a right or privil ege to sell an amount of
a particular security or c lass of securities during a time period
ending on the expiration date of the option; and
8. “Tax credits” means tax credits ava ilable against
liabilities imposed by Section 2355 of Title 68 of the Oklahom a
Statutes or Section 624 of Title 36 of the Oklaho ma Statutes and
issued or transferred pursuant to this act the Oklahoma Capital
Formation Act.
a. The tax credits issued or tran sferred pursuant to the
Oklahoma Capital Formation Act, upon election by the
purchaser at utilizat ion, will be treated as a payment
or prepayment in lieu o f tax imposed under Section
2355 of Title 68 of the Oklahoma Statutes;
b. Tax credits utilized pursua nt to subparagraph a of
this paragraph shall be treated and may be claimed as
a payment of tax or estimated tax for the purposes of
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and as defined in Secti ons 2375, 2385.9, and 2385.13
of Title 68 of the Oklahoma Statutes. Such tax
credits are further sub ject to the system deve loped in
conjunction with the Oklahoma Tax Commission as
required by subsection C of Section 5085.7 of this
title for registration a nd verification of the tax
credits. Taxpayers may rely upon the provision s of
the registration and v erification system deve loped
pursuant to Section 5085.7 of this title.
SECTION 2. AMENDATORY 74 O.S. 2021, Section 5085.6, is
amended to read as follows:
Section 5085.6. A. The Until the effective date of this act,
the Oklahoma Capital Investment Board shall consist of five (5)
Directors who shall be appointed by the Governo r with the advice and
consent of the Senate. Directors s hall be selected based upon
outstanding knowledge and leadership and shall pos sess experience in
the management of investments similar in nature and in value to
those of the Board. Directors shall s erve for a term of office of
five (5) years. Provided, t he initial Board of Directors of the
Oklahoma Capital Investment Board shall c onsist of the trustees of
the trust certified as the Oklahoma Capital Investment Board
pursuant to the provisions of Section 2 of this act Section 5085.2
of this title and the Directors of the Oklahoma Capital Investment
Board who were appointed pursuant to the provisions of Section
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5061.6 of Title 74 of the Oklahoma Statutes . Positions on the Board
of Directors held by trustee s of such trust shall not be filled as
the terms of office for said the trustees expire. Positions on the
Board of Directors held by D irectors of the Oklahom a Capital
Investment Board shall be filled by the Governor with the advice and
consent of the Senate as the terms of office for said the Directors
expire and in a manner to allow one member to rotate off o f the
Board each year.
B. Annually, the Directors shall select a chairman to preside
at their meetings. The Directors shall have the authority to m anage
the Oklahoma Capital Inves tment Board in accord ance with the
requirements of this act the Oklahoma Capital Formation Act and its
trust indenture.
C. The meetings of the Directors shall be subject to the
Oklahoma Open Meeting Act, Section 301 et seq. of Title 25 of the
Oklahoma Statutes, and the Oklaho ma Open Records Act, Section 24A.1
et seq. of Title 51 of the Oklahoma Statutes. Any inf ormation
submitted to or compiled by the Oklahoma Capital Investment Board
with respect to the marketing plans, fi nancial statements, trade
secrets, research concepts, methods or products, or any other
proprietary information of persons, firms, association s,
partnerships, agencies, corporations, or other entities shall be
confidential, except to the extent that the pe rson or entity that
provided such information or that is the subject of such information
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consents to disclosure. Executive sessions may be he ld to discuss
such materials if deemed necessary by the Directors.
D. A conflict of interest shall be deemed to e xist in any
contractual relationship in which a Direc tor of the Board, officer,
agent or employee or any for -profit firm or corporation in whi ch
such Director, officer, agent, or employee or any member of his or
her immediate family is an officer, partner, or principal
stockholder, shall directly or indirect ly buy or sell goods or
services to, or otherwise contract with the Board. Upon a showing
thereof, such Director, officer, agent, or employee shall be subject
to removal and such contract shall be deeme d unenforceable as
against the Board unless the recor ds of the Board shall reflect that
such Director, officer, agent , or employee fully and pu blicly
disclosed all such interest or interests, and unless such
contractual relationship shall have been secured by competitive
bidding following a public invitation to bid. If a Director,
officer, agent, or employee holds such an interest, he or she sha ll
refrain from any further official involvement in regard to such
contract or agreement, from voting on any matt er pertaining to such
contract or agreement, and from communicating with other Board
members, officers, agents , or employees concerning said the contract
or agreement.
E. Bonds issued by the Oklahoma Capital Investment Board shall
be subject to oversight pursuant to the Oklahoma Bond Oversight and
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Reform Act, Section 695.1 et seq. of Title 62 of the Oklahoma
Statutes.
F. Upon the effective date of this act, t he Oklahoma Capital
Investment Board shall be dissolved. Any contracts or agreements
executed by the Board or by any subsidiary or affiliate of the Bo ard
and any investment of funds required by the provisions of a contract
executed by the Board or by any subsidiary or affiliate of the Board
shall be transferred to and managed by the Oklahoma Center fo r the
Advancement of Science and Technology.
SECTION 3. AMENDATORY 74 O.S. 2021, S ection 5085.8, is
amended to read as follows:
Section 5085.8. A. Except as otherwise provided by subsections
F and G of this section, the Oklahoma Capital Investment Science and
Technology Research a nd Development Board shall have the power to
solicit proposals from qua lified investor groups for inves tment of
capital in accordance with the requirements of the Oklahoma Capital
Formation Act. The Boa rd shall establish criteria for selection of
persons, firms, corporations, or other entities deemed qualified to
generate capital for investment in a manner which will result in a
significant potential to create jobs and to diversify and stabilize
the economy of the State of Oklahoma this state. Such criteria
shall include the applicant’s level of experience, quality of
management, investment philosophy and pr ocess, historical investment
performance, probability of success in fund raising, the amount and
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timing of fees to be paid, and such other investment c riteria as may
be commonly used in professional portfolio management as the Board
may deem appropriate.
B. Except as otherwise provided by subsections F and G of this
section, the Board shall have the p ower to extend a guarantee in the
form of a put option or such other method as selected by the Board.
Guarantees may extend to princip al plus interest over t he term of
the guarantee at a rate set by Board resolution from time to time.
Guarantees in whatever form negotiated by the Board may be made for
any period of time, but no term shall expire prior to January 1,
1992. The Board may charge a reasonable fee for costs and the fair
compensation of risk associated with its guarantee. The guarantees
extended by the Board shall in no way be an obligation of t he state
and may be restricted to specific funds or assets of the Board;
provided, however, proceeds from the sale of any tax credits shall
be sufficient to meet contractual guarantee obligations of the
Board. The Board shall have the right to contract fr eely to protect
the interests of the State of Oklahoma this state. The Board shall
ensure that at least Two Dollars ($2.00) will be invested in
Oklahoma businesses or projects for every One Dollar ($1.0 0) of
principal guaranteed by the Board.
C. If the Board purchases any security pursuant to an agreement
with an investor group, the Board shall acquire such securities and
may invest, manage, transfer , or dispose of such securities in
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accordance with policies for management of assets adopted by the
Board.
D. Except as otherwise provided by subsections F and G of this
section, the Board shall have the power to make any contract,
execute any document, perfo rm any act, or enter into any financial
or other transaction necessary in order to carry out its missio n.
The Board may employ such persons as may be required for the
performance of any function a uthorized or required by the Oklahoma
Capital Formation Act or necessary for the accomplishment of any
such function. Such persons shall be selected based upon
outstanding knowledge and leadership in the field for which the
person performs services for th e Board. In selecting such persons,
the Board shall hire pe rsons who meet standards applicable to
persons responsible for investment of equity and near -equity
securities.
E. In carrying out the mission of the Board as authorized in
the Oklahoma Capital F ormation Act, neither the Board nor its
officers, directors, or employees shall be considered to be broker -
dealers, agents, investment advisors , or investment adviser
representatives under Title 71 of the Oklahoma Statutes. The tax
credits issued or transfe rred pursuant to the Oklahoma Capital
Formation Act and Sect ion 2357.7 of Title 68 of the Oklahoma
Statutes shall not be considered to be securities under Title 71 of
the Oklahoma Statutes.
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F. On and after the effective date of this act June 8, 2012,
except for the investment of funds required by provisions in a
contract executed by the Board or by any subsidi ary or affiliate of
the Board prior to the effective date of this act June 8, 2012, or
executed by an entity that was not a subsidiary or affiliate o f the
Board at the time such contract was executed but which became a
subsidiary or affiliate of the Board subsequent to the execution of
such contract, but pri or to the effective date of this act June 8,
2012, neither the Board nor any entity which is a s ubsidiary or
affiliate of the Board nor any entity which is controlled either
directly or indirectl y by the Board or which acts under the
authority of or pursua nt to the direction of the Board shall:
1. Enter into any contract authorizing or requiring the
investment of any funds obtained by the Board, or commitment binding
the Board to make any investm ent of any funds obtained by the Board,
or the investment of any funds obtained by a subsidiary, affiliate ,
or any entity under the direct or indirect control of the Board, in
any corporation, general partnership, limited partnership, limited
liability company, private equity or hedge fund , or other lawfully
recognized business entity; or
2. Modify any agreement executed prior to the effective date of
this act June 8, 2012, by the Board or executed by any subsidia ry or
affiliate of the Board or executed by any ent ity that was not a
subsidiary or affiliate of the Boa rd at the time such contract was
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executed, but which subsequently became a subsidiary or affiliate,
in any manner that would have the effect of increasi ng the amount of
any contractual commitment to make an investment of funds in a
general or limited partn ership, corporation, limited liability
company, private equity or hedge fund , or any other lawfully
recognized entity.
G. On and after the effective date of this act June 8, 2012,
except for the use of funds required by prov isions in a contract
executed by the Board or by any subsidiary or affiliate of the Board
prior to the effective date of this act June 8, 2012, or executed by
an entity that was not a subsidiary or affiliate of the Board at the
time such contract was executed but which became a subsidiary or
affiliate of the Board subsequent to the execution of such contract,
but prior to the effective date of this act June 8, 2012, neither
the Board nor any entity which is a subsidiary or a ffiliate of the
Board nor any entity which is controlled ei ther directly or
indirectly by the Board or which acts under the authority of or
pursuant to the directio n of the Board shall:
1. Enter into any contract for the purpose of guaranteeing, in
whole or in part, the repayment of obligations owed by a business
entity, other than a subsidiary of the Board, in connection with a
loan of money from a bank, financial institution or any other
entity; or
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2. Modify any contract described by paragraph 1 of this
subsection executed prior to the effective date of this act June 8,
2012, by the Board or executed by any subsidiary or affiliate of the
Board or executed by any en tity that was not a subsidiary or
affiliate of the Board at the time such contract was executed, but
which subsequently became a subsidiary or affiliate, i n a manner
that would increase any existing obligation of the Board or its
subsidiary or affiliate or extend the term of any such contract.
SECTION 4. AMENDATORY 74 O.S. 2021, Se ction 5085.10, is
amended to read as follows:
Section 5085.10. Notwithstanding other provisions of law, the
Oklahoma Science and Technology Research and Dev elopment Board or
any entity designated by the Board, shall have the authority to
expend funds to administer and operate the programs of the Oklahoma
Capital Investment Board.
SECTION 5. AMENDATORY 74 O.S. 2021, Section 5 085.11, is
amended to read as follows:
Section 5085.11. A. There is hereby created in the St ate
Treasury a revolving fund for the Oklahoma Department of Comme rce to
be designated the “Oklahoma Capital Formation Revolving Fund ”. The
fund shall be a cont inuing fund, not subject to fiscal year
limitations, and shall consist of appropriated funds. All monies
accruing to the credit of said the fund are hereby appr opriated and,
as authorized by the Oklahoma Capital Investment Science and
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Technology Research and Develo pment Board, shall be expended by the
Oklahoma Department of Commerce to perform the duties imposed upon
the Oklahoma Capital Investment Board by law. Expenditures of
appropriated funds from said the fund shall be made upon warrants
issued by the State Tr easurer against claims filed as prescribed by
law with the Director of the Office of Management and Enterprise
Services for approval and paym ent.
B. On the effective date of this act July 1, 1991, any
unencumbered funds remaining in the Oklahoma Capital I nvestment
Board Revolving Fund shall be transferred to the credit of the
Oklahoma Capital Formation Revolving Fund. Any unexpended funds
remaining in the Oklahoma Capital Investment Board Revolving Fund
after November 15, 1991, shall be transferred to the credit of the
Oklahoma Capital Formation Revolving Fund.
SECTION 6. AMENDATORY 74 O.S. 2021, Section 5085.12, is
amended to read as follows:
Section 5085.12. Nothing contained herein is or shall be
construed as a restriction or limitation upon any powers which the
Oklahoma Capital Investment Science and Technology Research an d
Development Board might otherwise have under any o ther law of this
state heretofore or h ereafter enacted and the provisions of this act
the Oklahoma Capital Formation Act are cumulative to such po wers.
The provisions hereof do and shall be construed to provide a
complete, additional , and alternative meth od for the doing of the
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things authorized and shall be regarded as supple mental and
additional to powers conferred by any other laws.
SECTION 7. AMENDATORY 74 O.S. 2021, Section 5085.14, is
amended to read as follows:
Section 5085.14. A. The Oklahoma Capital Investment Science
and Technology Research and Development Board may adopt rules,
policies, procedures, and regulatory and adminis trative measures
necessary to administer the programs of the Board or convenient for
the organization and internal management of Board responsibilities.
B. The level, timing , or degree of success of the Oklahoma
Capital Investment Board in mobilizing or en suring investment in
Oklahoma businesses or projects, accomplishing other economic
development objectives, or achieving any other statutory duty shall
not compromise, diminish, invali date, or affect the enforceability
of any guarantee of the Board.
SECTION 8. AMENDATORY 74 O.S. 2021, Section 5085.15, is
amended to read as follows:
Section 5085.15. Within thirty (30) days after the Oklahoma
Capital Investment Science and Technology Research and Development
Board or any subsidiary or affil iate of the Board has made payment
of any remaining expense or obligation created by the Board or by
the subsidiary or affiliate, pursuant to the terms of any promissory
note, loan agreement, guaranty agreement, investment agreement, or
other contract or agreement, any remaining monies paid to either the
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Board or any subsidiary or affiliate of the Board pursuant to the
terms of an agreement or contract entered into prior to the
effective date of this act June 8, 2012, shall be paid by the Board
or by its subsidiary or affiliate to the Genera l Revenue Fund of the
State Treasury.
SECTION 9. AMENDATORY 74 O.S. 2021, Section 5085.16, is
amended to read as follows:
Section 5085.16. None of the provisions of this act the
Oklahoma Capital Formation Act shall alter, amend, modify, affect,
diminish, or impair the enforceabili ty of, or any obligation or
liability of the Oklahoma Capital Investment Science and Technology
Research and Development Board or any entity which is a subsidiary
or affiliate of the Oklahoma Capital Inve stment Board or any entity
which is controlled ei ther directly or indirectly by the Oklahoma
Capital Investment Board under any contract, agreement, guarante e,
or instrument entered into or delivered by such party with any
business entity or bank, financia l institution, or any other entity
existing as of the effective date of this act June 8, 2012,
including, without limitation, any guaran tee extended by the
Oklahoma Capital Investment Board and any assignment of any third -
party commitments to purchase, and proceeds released from the sale
of, tax credits, all of which shall remain in full force and effect.
SECTION 10. This act shall become effec tive November 1, 2023.
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Passed the Senate the 8th day of March, 2023.
Presiding Officer of the Senate
Passed the House of Representatives the ___ _ day of __________,
2023.
Presiding Officer of the House
of Representatives