Yes. The statute excludes capital invested with a guaranteed rate of return on the amount invested. Examine the real entitlement rather than relying on the sales label.
Read what is promised and by whom
A target or forecast is not automatically a guarantee, but calling a guarantee projected does not change the underlying agreement. Have the operative terms assessed before treating the investment as qualifying capital.
Identify differences that affect capital, risk, participation or job evidence.
Ask for the designation record rather than the brochure's assertion, and have counsel confirm the current statutory amounts before relying on the lower figure. A guarantee does not have to appear inside the primary subscription agreement to create a problem; a side letter, a parent-company backstop or an affiliate assurance of repayment can just as easily fix the return and eliminate genuine risk of loss. Ask whether any related entity has agreed, in writing or informally, to make the investor whole if the enterprise underperforms, since that arrangement can undermine the at-risk requirement even when the main document reads cleanly. Distinguish a capped preferred return, which still leaves the investor exposed to loss of principal, from an arrangement that effectively repays the invested amount regardless of enterprise results. Request the complete governing documents, not a summary term sheet, and have counsel trace every entity connected to the investment for backstop or return-fixing language before treating the capital as qualifying.