As filed with the Securities and Exchange Commission on March 24, 2010
Securities Act File No. 333-163279
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM N-2
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x
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REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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Pre-effective Amendment No. 3
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o
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Post-effective Amendment No.
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GOLUB CAPITAL BDC LLC
(Exact Name of Registrant as Specified in Charter)
150 South Wacker Drive, Suite 800
Chicago, Illinois 60606
(Address of Principal Executive Offices)
(312) 205-5050
(Registrant’s Telephone Number, Including Area Code)
David B. Golub
Golub Capital BDC LLC
150 South Wacker Drive, Suite 800
Chicago, Illinois 60606
(Name and Address of Agent for Service)
Copies to:
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Thomas J. Friedmann
David J. Harris
Dechert LLP
1775 I Street, N.W.
Washington, D.C. 20006
(202) 261-3300
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Jay L. Bernstein
Andrew S. Epstein
Clifford Chance US LLP
31 West 52
nd
Street
New York, NY 10019
(212) 878-8000
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Approximate date of proposed public offering:
As soon as practicable after the effective date of this Registration Statement.
If any of the securities being registered on this form are offered on a delayed or continuous basis in reliance on Rule 415 under the Securities Act of 1933, other than securities offered in connection with a dividend reinvestment plan, check the following box.
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It is proposed that this filing will become effective (check appropriate box):
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when declared effective pursuant to section 8(c).
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
TABLE OF CONTENTS
EXPLANATORY NOTE
This Amendment No. 3 to the Registration Statement on Form N-2 of Golub Capital BDC LLC is being filed solely for the purpose of filing exhibits, specifically: (1) Form of Certificate of Incorporation; (2) Form of Bylaws; (3) Form of Stock Certificate; (4) Form of Investment Advisory Agreement between Registrant and GC Advisors LLC; (5) Certificate of Appointment of Transfer Agent; (6) Form of Administration Agreement between Registrant and GC Service Company, LLC; (7) Form of Trademark License Agreement between Registrant and Golub Capital Management LLC; (8) Form of Subscription Agreement between Registrant and Investors in Concurrent Private
Placement; (9) Opinion and Consent of Dechert LLP, special counsel for Registrant; (10) Code of Ethics of Golub Capital BDC, Inc.; and (ii) Code of Ethics of GC Advisors LLC.
TABLE OF CONTENTS
GOLUB CAPITAL BDC, INC.
PART C
Other Information
Item 25. Financial Statements and Exhibits
(2) Exhibits
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(a)(1)
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Certificate of Formation
(1)
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(a)(2)
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Form of Certificate of Incorporation
(3)
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(b)(1)
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First Amended and Restated Limited Liability Company Agreement
(1)
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(b)(2)
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Form of Bylaws
(3)
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(c)
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Not applicable
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(d)
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Form of Stock Certificate
(3)
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(e)
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Dividend Reinvestment Plan
(3)
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(f)
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Not applicable
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(g)
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Form of Investment Advisory Agreement between Registrant and GC Advisors LLC
(3)
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(h)
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Form of Underwriting Agreement
(2)
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(i)
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Not applicable
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(j)
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Form of Custody Agreement
(2)
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(k)(1)
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Certificate of Appointment of Transfer Agent
(3)
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(k)(2)
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Form of Administration Agreement between Registrant and GC Service Company, LLC
(3)
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(k)(3)
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Form of Trademark License Agreement between Registrant and Golub Capital Management LLC
(3)
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(k)(4)
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Variable Funding Note Indenture, dated as of July 27, 2007, between Golub Capital Master Funding LLC, as issuer, and U.S. Bank National Association, as indenture trustee, conformed through Amendment No. 2
(1)
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(k)(5)
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Sale and Servicing Agreement, dated as of July 27, 2007, by and among Golub Capital Master Funding LLC, as issuer, Golub Capital Incorporated, as originator and servicer, and U.S. Bank National Association, as indenture trustee and collateral administrator, conformed through Amendment No. 3
(1)
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(k)(6)
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Subscription Agreement between Registrant and GEMS Fund, L.P.
(1)
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(k)(7)
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Form of Subscription Agreement between Registrant and Investors in Concurrent Private Placement
(3)
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(k)(8)
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Power of Attorney of Lawrence E. Golub
(1)
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(k)(9)
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Power of Attorney of Kenneth F. Bernstein
(1)
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(k)(10)
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Omnibus Amendment dated March 15, 2010, by and among Citigroup Global Markets Realty Corp., as deal agent and individual noteholder, Golub Capital Master Funding LLC, as issuer, Golub Capital Incorporated, as originator and servicer, and U.S. Bank National Association, as indenture trustee and collateral administrator
(1)
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(l)
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Opinion and Consent of Dechert LLP, special counsel for Registrant
(3)
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(m)
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Not applicable
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(n)(1)
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Independent Registered Public Accounting Firm Consent
(1)
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(n)(2)
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Consent of Duff & Phelps, LLC
(1)
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(n)(3)
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Consent of Mercer Capital Management, Inc.
(1)
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(n)(4)
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Consent of Murray, Devine & Co., Inc.
(1)
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(o)
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Not applicable
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(p)
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Not applicable
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(q)
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Not applicable
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(r)(1)
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Code of Ethics of Golub Capital BDC, Inc.
(3)
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(r)(2)
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Code of Ethics of GC Advisors LLC
(3)
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(2)
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To be filed by amendment.
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Item 26. Marketing Arrangements
The information contained under the heading “Underwriting” on this Registration Statement is incorporated herein by reference.
C-1
TABLE OF CONTENTS
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Amendment No. 3 to the Registration Statement on Form N-2 to be signed on its behalf by the undersigned, thereunto duly authorized, in The City of New York, in the State of New York, on the 24th day of March 2010.
GOLUB CAPITAL BDC LLC
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By:
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/s/ David B. Golub
Name: David B. Golub
Title: Chief Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, this Amendment No. 3 to the Registration Statement on Form N-2 has been signed by the following persons in the capacities and on the dates indicated.
CERTIFICATE OF
INCORPORATION
OF
GOLUB CAPITAL BDC,
INC.
ARTICLE
I
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1.1
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The
name of the Corporation is Golub Capital BDC, Inc. (the “
Corporation
”).
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ARTICLE
II
2.1 The
address of the Corporation’s registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County,
Delaware 19801. The name of the Corporation’s registered agent at
such address is The Corporation Trust Company.
ARTICLE
III
3.1 The
purposes for which the Corporation is formed are to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware (the “
Delaware General Corporation
Law
”) and to possess and exercise all of the powers and privileges
granted by such law and any other law of Delaware.
ARTICLE
IV
4.1
Authorized
Stock
. The total number of shares of all classes of capital
stock which the Corporation shall have authority to issue is 101,000,000 of
which 100,000,000 shares shall be common stock having a par value of $0.001 per
share (the “
Common
Stock
”) and 1,000,000 shares shall be preferred stock having a par value
of $0.001 per share (the “
Preferred
Stock
”).
4.2
Common
Stock
. Except as otherwise required by law or as otherwise
provided in any Preferred Stock Designation (as defined below), the holders of
the Common Stock shall exclusively possess all voting power, and each share of
Common Stock shall have one vote.
4.3
Preferred
Stock
. The Board of Directors is expressly granted authority
to issue shares of Preferred Stock, in one or more series, and to fix for each
such series such voting powers, full or limited, and such designations,
preferences and relative, participating, optional or other special rights and
such qualifications, limitations or restrictions thereof as shall be stated and
expressed in the resolution or resolutions adopted by the Board of Directors
providing for the issue of such series (each, a “
Preferred Stock
Designation
”) and as may be permitted by the Delaware General Corporation
Law. The Board of Directors may classify any unissued shares of Preferred Stock
of any class or series from time to time, in one or more classes or series of
Preferred Stock, without a separate vote of the holders of the Preferred Stock,
or any series thereof, unless a vote of any such holders is required pursuant to
any Preferred Stock Designation.
ARTICLE
V
5.1 The
name and mailing address of the sole incorporator of the Corporation are as
follows:
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Name
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Address
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Marian
Ryan
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Dechert
LLP
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Cira
Centre
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2929
Arch Street
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Philadelphia,
PA 19104
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5.2 The
powers of the sole incorporator shall terminate upon the filing of this
Certificate of Incorporation, and the names and mailing addresses of the persons
who are to serve as directors until their successors are elected and qualified
are as follows:
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Name
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Position
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Director
Class
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Expiration of Initial
Term
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Address
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Lawrence
E. Golub
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Chairman
of the Board of Directors
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Class
III
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2013
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150
South Wacker Drive, Suite 800
Chicago,
IL 60606
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William
M. Webster IV
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Director
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Class
III
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2013
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150
South Wacker Drive, Suite 800
Chicago,
IL 60606
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Kenneth
F. Bernstein
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Director
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Class
II
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2012
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150
South Wacker Drive, Suite 800
Chicago,
IL 60606
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Thomas
E. Lynch
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Director
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Class
II
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2012
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150
South Wacker Drive, Suite 800
Chicago,
IL 60606
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David
B. Golub
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Chief
Executive Officer; Director
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Class
I
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2011
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150
South Wacker Drive, Suite 800
Chicago,
IL 60606
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ARTICLE
VI
6.1
Powers of the Board of
Directors
. The business and affairs of the Corporation shall
be managed by or under the direction of the Board of Directors. The
Board of Directors shall have the power, without the assent or vote of the
stockholders, to make, alter, amend, change, add to or repeal the Bylaws of the
Corporation as provided in the Bylaws of the Corporation, subject to the power
of the stockholders to alter or repeal any Bylaw whether adopted by them or
otherwise.
The
directors in their discretion may submit any contract or act for approval or
ratification at any annual meeting of the stockholders or at any meeting of the
stockholders called for the purpose of considering any such act or contract, and
any contract or act that shall be approved or be ratified by a majority of the
votes cast by stockholders present in person or by proxy at such meeting and
entitled to vote thereat (provided that a lawful quorum of stockholders be there
represented in person or by proxy), unless a higher vote is required by
applicable law, shall be as valid and binding upon the Corporation and upon all
the stockholders as though it had been approved or ratified by every stockholder
of the Corporation, whether or not the contract or act would otherwise be open
to legal attack because of directors’ interests, or for any other
reason.
The Board
of Directors may authorize the issuance from time to time of shares of stock of
the Corporation of any class or series, whether now or hereafter authorized, or
securities or rights convertible into shares of its stock of any class or
series, whether now or hereafter authorized, for such consideration as the Board
of Directors may deem advisable (or without consideration in the case of a stock
split or stock dividend), subject to such restrictions or limitations, if any,
as may be set forth in the Bylaws.
In
addition to the powers and authorities hereinbefore or by statute expressly
conferred upon them, the directors are hereby empowered to exercise all such
powers and do all such acts and things as may be exercised or done by the
Corporation, subject to the provisions of the statutes of Delaware, of this
Certificate of Incorporation, and to any bylaws of the Corporation; provided,
however, that no bylaw so made shall invalidate any prior act of the directors
which would have been valid if such bylaw had not been made.
6.2
Number of
Directors
. The number of directors of the Corporation shall be
fixed from time to time by the Board of Directors either by resolution or bylaw
adopted by the affirmative vote of a majority of the entire Board of
Directors.
6.3
Classes of
Directors
. The Board of Directors shall be divided into three
classes, designated Class I, Class II and Class III, as nearly equal in number
as possible, and the term of office of directors of one class shall expire at
each annual meeting of stockholders, and in all cases as to each director such
term shall extend until his or her successor shall be elected and shall qualify
or until his or her earlier resignation, removal from office, death or
incapacity. Additional directorships resulting from an increase in number of
directors shall be apportioned among the classes as equally as possible. The
initial term of office of directors of Class I shall expire at the annual
meeting of stockholders in 2011, the initial term of office of directors of
Class II shall expire at the annual meeting of stockholders in 2012 and the
initial term of office of directors of Class III shall expire at the annual
meeting of stockholders in 2013. At each annual meeting of
stockholders a number of directors equal to the number of directors of the class
whose term expires at the time of such meeting (or, if less, the number of
directors properly nominated and qualified for election) shall be elected to
hold office until the third succeeding annual meeting of stockholders after
their election.
At each
annual election, directors chosen to succeed those whose terms then expire shall
be of the same class as the directors they succeed, unless by reason of any
intervening changes in the authorized number of directors, the Board of
Directors shall designate one or more directorships whose term then expires as
directorships of another class in order to more nearly achieve equality of
number of directors among the classes.
Notwithstanding
the rule that the three classes shall be as nearly equal in number of directors
as possible, in the event of any change in the authorized number of directors,
each director then continuing to serve as such shall nevertheless continue as a
director of the class of which such director is a member until the expiration of
his or her current term, or his or her prior death, resignation or removal. If
any newly created directorship may, consistently with the rule that the three
classes shall be as nearly equal in number of directors as possible, be
allocated to any class, the Board of Directors shall allocate it to that of the
available class whose term of office is due to expire at the earliest date
following such allocation.
6.4
Vacancies
. Subject
to applicable requirements of the Investment Company Act of 1940, as amended,
including Section 16(b) thereunder, and except as may be provided by the Board
of Directors in setting the terms of any class or series of Preferred Stock, any
and all vacancies on the Board of Directors may be filled only by the
affirmative vote of a majority of the remaining directors in office, even if the
remaining directors do not constitute a quorum, and any director elected to fill
a vacancy shall serve for the remainder of the full term of the directorship in
which such vacancy occurred and until a successor is duly elected and
qualifies. Subject to the provisions of this Certificate of
Incorporation, no decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
6.5
Elections
. Except
as may otherwise be provided in the Bylaws of the Corporation, directors shall
be elected by the affirmative vote of the holders of a majority of the votes
cast by stockholders present in person or by proxy at an annual or special
meeting duly called for such purpose and entitled to vote
thereat. Election of directors to the Board of Directors need not be
by ballot unless the Bylaws of the Corporation so provide.
ARTICLE
VII
7.1
Limitation on
Liability
. The directors of the Corporation shall be entitled
to the benefits of all limitations on the liability of directors generally that
are now or hereafter become available under the Delaware General Corporation
Law, as amended from time to time. Without limiting the generality of
the foregoing, no director of the Corporation shall be liable to the Corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director’s duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the director derived an improper personal
benefit. Any repeal or modification of this Section 7 shall be
prospective only, and shall not affect, to the detriment of any director, any
limitation on the personal liability of a director of the Corporation existing
at the time of such repeal or modification.
7.2
Indemnification
. The
Corporation, to the full extent permitted by Section 145 of the Delaware
General Corporation Law, as amended from time to time, shall indemnify all
persons whom it may indemnify pursuant thereto. Expenses (including attorneys’
fees) incurred by an officer or director in defending any civil, criminal,
administrative, or investigative action, suit or proceeding for which such
officer or director may be entitled to indemnification hereunder shall be paid
by the Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as authorized hereby.
ARTICLE
VIII
8.1
Powers of Stockholders to
Act by Written Consent
. Any action required or permitted to be
taken at any annual or special meeting of the stockholders may be taken without
a meeting if a unanimous consent which sets forth the action is given in writing
or by electronic transmission by each stockholder entitled to vote on the matter
and is filed with the records of the meetings of the stockholders.
8.2
Special Meetings of
Stockholders
. Special meetings of the stockholders of the
Corporation may be called only by the Chairman of the Board or the Chief
Executive Officer of the Corporation or by a resolution adopted by the
affirmative vote of a majority of the Board of Directors.
ARTICLE
IX
9.1
Amendment
. The
Corporation reserves the right to amend any provision contained in this
Certificate as the same may from time to time be in effect in the manner now or
hereafter prescribed by law, and all rights conferred on stockholders or others
hereunder are subject to such reservation.
I, the
undersigned, being the Incorporator, for the purpose of forming a corporation
under the laws of the State of Delaware, do make, file and record this
Certificate of Incorporation, do certify that the facts herein stated are true,
and accordingly, have hereunto set my hand this
day
of , 2010.
_____________________________
Marian
Ryan
BYLAWS
OF
GOLUB CAPITAL BDC,
INC.
ARTICLE
I.
OFFICES
1.1
Registered
Office
. The registered office of Golub Capital BDC, Inc. (the
“
Corporation
”)
in the State of Delaware shall be established and maintained at c/o The
Corporation Trust Company, 1209 Orange Street, City of Wilmington, County of New
Castle, Delaware 19801 and The Corporation Trust Company shall be the registered
agent of the corporation in charge thereof.
1.2
Other
Offices
. The Corporation may also have offices at such other
places both within and without the State of Delaware as the board of directors
of the Corporation (the “
Board of Directors
”)
may from time to time determine or the business of the Corporation may
require.
ARTICLE
II.
MEETINGS OF
STOCKHOLDERS
2.1
Place of
Meetings
. All meetings of the stockholders shall be held at
such time and place, either within or without the State of Delaware, as shall be
designated from time to time by the Board of Directors and stated in the notice
of the meeting or in a duly executed waiver of notice thereof.
2.2
Annual
Meetings
. The annual meeting of stockholders shall be held on
such date and at such time as may be fixed by the Board of Directors and stated
in the notice of the meeting, for the purpose of electing Directors and for the
transaction of only such other business as is properly brought before the
meeting in accordance with these bylaws (the “
Bylaws
”).
Written
notice of an annual meeting stating the place, date and hour of the meeting,
shall be given to each stockholder entitled to vote at such meeting not less
than ten (10) nor more than sixty (60) days before the date of the annual
meeting.
To be
properly brought before the annual meeting, business must be either (i) brought
before the annual meeting by or at the direction of the Board of Directors, (ii)
pursuant to the notice of meeting or (iii) otherwise properly brought before the
annual meeting by a stockholder who is entitled to vote at the meeting and who
has complied with the advance notice procedures of these Bylaws. In
addition to any other applicable requirements, for business to be properly
brought before an annual meeting by a stockholder, the stockholder must have
given timely notice thereof in writing to the Secretary of the
Corporation. To be timely, the stockholder’s notice must be delivered
by a nationally recognized courier service or mailed by first class United
States mail, postage or delivery charges prepaid, and received at the principal
executive
offices
of the Corporation addressed to the attention of the Secretary of the
Corporation not earlier than ninety (90) days nor more than one hundred twenty
(120) days in advance of the anniversary of the date the Corporation’s proxy
statement was released to the stockholders in connection with the previous
year’s annual meeting of stockholders; provided, however, that in the event that
no annual meeting was held in the previous year or the date of the annual
meeting has been changed by more than thirty (30) days from the date
contemplated at the time of the previous year’s proxy statement, notice by the
stockholder must be received by the Secretary of the Corporation not later than
the close of business on the later of (x) the ninetieth (90th) day prior to such
annual meeting and (y) the seventh (7th) day following the day on which public
announcement of the date of such meeting is first made. A
stockholder’s notice to the Secretary shall set forth (i) as to each matter the
stockholder proposes to bring before the annual meeting (a) a brief description
of the business desired to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting and (b) any material interest
of the stockholder in such business, and (ii) as to the stockholder giving the
notice (a) the name and record address of the stockholder and (b) the class,
series and number of shares of capital stock of the Corporation which are
beneficially owned by the stockholder. Notwithstanding anything in
these Bylaws to the contrary, no business shall be conducted at the annual
meeting except in accordance with the procedures set forth in this Section
2.2. The officer of the Corporation presiding at an annual meeting
shall, if the facts warrant, determine and declare to the annual meeting that
business was not properly brought before the annual meeting in accordance with
the provisions of this Section 2.2, and, if such officer should so determine,
such officer shall so declare to the annual meeting and any such business not
properly brought before the meeting shall not be transacted.
2.3
Special
Meetings
. Special meetings of the stockholders may be called
for any purpose or purposes, unless otherwise prescribed by statute or by the
certificate of incorporation of the Corporation, as amended and/or restated from
time to time (the “
Certificate of
Incorporation
”), by the Secretary only at the request of the Chairman of
the Board, the Chief Executive Officer or by a resolution duly adopted by the
affirmative vote of a majority of the Board. Such request shall state the
purpose or purposes of the proposed meeting. Business transacted at any special
meeting shall be limited to matters relating to the purpose or purposes stated
in the notice of meeting.
Unless
otherwise provided by law, written notice of a special meeting of stockholders,
stating the time, place and purpose or purposes thereof, shall be given to each
stockholder entitled to vote at such meeting, not less than ten (10) or more
than sixty (60) days before the date fixed for the meeting. Business
transacted at any special meeting of stockholders shall be limited to the
purposes stated in the notice.
Nominations
of persons for election to the Board of Directors at a special meeting may be
made only (1) by or at the direction of the Board of Directors, (2) provided
that the Board of Directors has determined that Directors will be elected at the
meeting, by a stockholder who is entitled to vote at the meeting and who has
complied with the advance notice provisions of the bylaws.
2.4
Quorum
. The
holders of a majority of the capital stock issued and outstanding and entitled
to vote thereat, present in person or represented by proxy, shall constitute a
quorum
at all
meetings of the stockholders for the transaction of business except as otherwise
provided by statute or by the Certificate of Incorporation. If,
however, such quorum shall not be present or represented at any meeting of the
stockholders, the holders of a majority of the votes entitled to be cast by the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be
present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the adjournment
is for more than thirty (30) days, or if after the adjournment a new record date
is fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder entitled to vote at the meeting.
2.5
Organization
. The
Chairman of the Board of Directors shall act as chairman of meetings of the
stockholders. The Board of Directors may designate any other officer
or Director of the Corporation to act as chairman of any meeting in the absence
of the Chairman of the Board of Directors, and the Board of Directors may
further provide for determining who shall act as chairman of any stockholders
meeting in the absence of the Chairman of the Board of Directors and such
designee.
The
Secretary of the Corporation shall act as secretary of all meetings of the
stockholders, but, in the absence of the Secretary, the presiding officer may
appoint any other person to act as secretary of any meeting.
2.6
Voting
. Unless
otherwise required by law, the Certificate of Incorporation or these Bylaws, any
question (other than the election of Directors) properly brought before any
meeting of stockholders shall be decided by the affirmative vote of the holders
of a majority of the votes cast by stockholders present in person or by proxy at
an annual or special meeting duly called for such purpose and entitled to vote
thereat. At all meetings of stockholders for the election of
Directors, Directors shall be elected by the affirmative vote of the holders of
a majority of the votes cast by stockholders present in person or by proxy at an
annual or special meeting duly called for such purpose and entitled to vote
thereat. Each stockholder represented at a meeting of stockholders
shall be entitled to cast one vote for each share of the capital stock entitled
to vote thereat held by such stockholder, unless otherwise provided by the
Certificate of Incorporation. Each stockholder entitled to vote at a
meeting of stockholders or to express consent or dissent to corporate action in
writing without a meeting may authorize any person or persons to act for him,
her or it by proxy. All proxies shall be executed in writing and
shall be filed with the Secretary of the Corporation not later than the day on
which exercised. No proxy shall be voted or acted upon after three
(3) years from its date, unless the proxy provides for a longer
period. The Board of Directors, in its discretion, or the officer of
the Corporation presiding at a meeting of stockholders, in his or her
discretion, may require that any votes cast at such meeting shall be cast by
written ballot.
2.7
Action of Shareholders
Without Meeting
. Except as may otherwise be required by law or
in the Certificate of Incorporation, any action required or permitted to be
taken by stockholders at an annual meeting or special meeting of stockholders
may only be taken if it is properly brought before such meeting and may not be
taken by written action in lieu of a meeting.
2.8
Voting
List
. The officer who has charge of the stock ledger of the
Corporation shall prepare and make, at least ten (10) days before every meeting
of stockholders, a complete
list of
the stockholders entitled to vote at the meeting, arranged in alphabetical
order, showing the address of each stockholder and the number of shares
registered in the name of each stockholder. Such list shall be open
to the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten (10) days prior to
the election, either at a place within the city, town or village where the
election is to be held, which place shall be specified in the notice of the
meeting, or, if not specified, at the place where said meeting is to be held.
The list shall be produced and kept at the time and place of election during the
whole time thereof and may be inspected by any stockholder of the Corporation
who is present.
2.9
Stock
Ledger
. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger,
the list required by Section 2.8 or the books of the Corporation, or to vote in
person or by proxy at any meeting of stockholders.
2.10
Adjournment
. Any
meeting of the stockholders, including one at which Directors are to be elected,
may be adjourned for such periods as the presiding officer of the meeting or the
stockholders present in person or by proxy and entitled to vote shall
direct.
2.11
Ratification
. Any
transaction questioned in any stockholders’ derivative suit, or any other suit
to enforce alleged rights of the Corporation or any of its stockholders, on the
ground of lack of authority, defective or irregular execution, adverse interest
of any Director, officer or stockholder, nondisclosure, miscomputation or the
application of improper principles or practices of accounting may be approved,
ratified and confirmed before or after judgment by the Board of Directors or by
the holders of common stock and, if so approved, ratified or confirmed, shall
have the same force and effect as if the questioned transaction had been
originally duly authorized, and said approval, ratification or confirmation
shall be binding upon the Corporation and all of its stockholders and shall
constitute a bar to any claim or execution of any judgment in respect of such
questioned transaction.
2.12
Inspectors of
Election
. The Corporation shall, in advance of any meeting of
stockholders, appoint one or more inspectors to act at the meeting and make a
written report thereof. The Corporation may designate one or more persons as
alternate inspectors to replace any inspector who fails to act. If no inspector
or alternate is able to act at a meeting of stockholders, the person presiding
at the meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before entering upon the discharge of his duties, shall take and sign
an oath faithfully to execute the duties of inspector with strict impartiality
and according to the best of his ability. The inspector shall: (1) decide upon
the qualifications of voters; (2) ascertain the number of shares outstanding and
the voting power of each; (3) determine the shares represented at a meeting and
the validity of the proxies of ballots; (4) count all votes and ballots; (5)
declare the results; (6) determine and retain for a reasonable period a record
of the disposition of any challenges made to any determination by the
inspectors; and (7) certify their determination of the number of shares
represented at the meeting, and their count of all votes and ballots. The
inspectors may appoint or retain other persons or entities to assist the
inspectors in the performance of the duties of the inspectors.
ARTICLE
III.
DIRECTORS
3.1
Powers; Number;
Qualifications
. The business and affairs of the Corporation
shall be managed by or under the direction of the Board of Directors, except as
may be otherwise provided by law or in the Certificate of
Incorporation. The number of Directors which shall constitute the
Board of Directors shall be not less than four (4) nor more than eight (8). The
exact number of Directors shall be fixed from time to time, within the limits
specified in this Section 3.1 or in the Certificate of Incorporation, by a
majority of the Board of Directors. Directors need not be
stockholders of the Corporation. The Board of Directors shall be
divided into classes as more fully set forth in the Certificate of
Incorporation.
3.2
Election; Term of Office;
Resignation; Removal; Vacancies
. Each Director shall hold
office until the next annual meeting of stockholders at which his or her class
stands for election or until such Director’s earlier resignation, removal from
office, death or incapacity. Unless otherwise provided in the
Certificate of Incorporation, vacancies and newly created directorships
resulting from any increase in the authorized number of Directors or from any
other cause may be filled by a majority of the Directors then in office,
although less than a quorum, and each Director so chosen shall hold office until
the next annual meeting and until such Director’s successor shall be duly
elected and shall qualify, or until such Director’s earlier resignation, removal
from office, death or incapacity.
3.3
Nominations
. Nominations
of persons for election to the Board of Directors of the Corporation at a
meeting of stockholders of the Corporation may be made only (i) by or at the
direction of the Board of Directors, (ii) pursuant to the notice of meeting or
(iii) by a stockholder who is entitled to vote at the meeting and who has
complied with the advance notice procedures of these Bylaws. Such
nominations by any stockholder shall be made pursuant to timely notice in
writing to the Secretary of the Corporation. To be timely, the
stockholder’s notice must be delivered by a nationally recognized courier
service or mailed by first class United States mail, postage or delivery charges
prepaid, and received at the principal executive offices of the Corporation
addressed to the attention of the Secretary of the Corporation not earlier than
ninety (90) days nor more than one hundred twenty (120) days in advance of the
anniversary of the date the Corporation’s proxy statement was released to the
stockholders in connection with the previous year’s annual meeting of
stockholders; provided, however, that in the event that no annual meeting was
held in the previous year or the date of the annual meeting has been changed by
more than thirty (30) days from the date contemplated at the time of the
previous year’s proxy statement, notice by the stockholder must be received by
the Secretary of the Corporation not later than the close of business on the
later of (x) the ninetieth (90th) day prior to such annual meeting and (y) the
seventh (7th) day following the day on which public announcement of the date of
such meeting is first made. Such stockholder’s notice to the
Secretary shall set forth (i) as to each person whom the stockholder proposes to
nominate for election or reelection as a Director, (a) the name, age, business
address and residence address of the person, (b) the principal occupation or
employment of the person, (c) the class and number of shares of capital stock of
the Corporation which are beneficially owned by the person and (d) any other
information relating to the person that is required to be disclosed in
solicitations for proxies for election of Directors pursuant to the rules and
regulations of the Securities and
Exchange
Commission under Section 14 of the Securities Exchange Act of 1934, as amended,
and (ii) as to the stockholder giving the notice (a) the name and record address
of the stockholder and (b) the class and number of shares of capital stock of
the Corporation which are beneficially owned by the stockholder. The
Corporation may require any proposed nominee to furnish such other information
as may reasonably be required by the Corporation to determine the eligibility of
such proposed nominee to serve as a Director of the Corporation. No
person shall be eligible for election as a Director of the Corporation unless
nominated in accordance with the procedures set forth herein. The
officer of the Corporation presiding at an annual meeting shall, if the facts
warrant, determine and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he or she should so determine,
he or she shall so declare to the meeting and the defective nomination shall be
disregarded.
3.4
Meetings
. The
Board of Directors may hold meetings, both regular and special, either within or
without the State of Delaware. The first meeting of each newly
elected Board of Directors shall be held immediately after and at the same place
as the meeting of the stockholders at which it is elected and no notice of such
meeting shall be necessary to the newly elected Directors in order to legally
constitute the meeting, provided a quorum shall be present. Regular
meetings of the Board of Directors may be held without notice at such time and
place as shall from time to time be determined by the Board of
Directors. Special meetings of the Board of Directors may be called
by the Chief Executive Officer or a majority of the entire Board of
Directors. Notice thereof stating the place, date and hour of the
meeting shall be given to each Director either by mail not less than forty-eight
(48) hours before the date of the meeting, by telephone, facsimile, telegram or
e-mail on twenty-four (24) hours’ notice, or on such shorter notice as the
person or persons calling such meeting may deem necessary or appropriate in the
circumstances.
3.5
Quorum
. Except
as may be otherwise specifically provided by law, the Certificate of
Incorporation or these Bylaws, at all meetings of the Board of Directors or any
committee thereof, a majority of the entire Board of Directors or such
committee, as the case may be, shall constitute a quorum for the transaction of
business and the act of a majority of the Directors present at any meeting at
which there is a quorum shall be the act of the Board of
Directors. If a quorum shall not be present at any meeting of the
Board of Directors or of any committee thereof, a majority of the Directors
present thereat may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be present.
3.6
Organization of
Meetings
. The Board of Directors shall elect one of its
members to be Chairman of the Board of Directors. The Chairman of the
Board of Directors shall lead the Board of Directors in fulfilling its
responsibilities as set forth in these Bylaws, including its responsibility to
oversee the performance of the Corporation, and shall determine the agenda and
perform all other duties and exercise all other powers which are or from time to
time may be delegated to him or her by the Board of Directors.
Meetings
of the Board of Directors shall be presided over by the Chairman of the Board of
Directors, or in his or her absence, by the Chief Executive Officer to the
extent he or she is a Director, or in the absence of the Chairman of the Board
of Directors and the Chief Executive
Officer
by such other person as the Board of Directors may designate or the members
present may select.
3.7
Actions of Board of
Directors Without Meeting
. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if all members of the Board of Directors or of
such committee, as the case may be, consent thereto in writing, and the writing
or writings are filed with the minutes of proceedings of the Board of Directors
or committee.
3.8
Removal of Directors by
Stockholders
. The entire Board of Directors or any individual
Director may be removed from office for cause by a majority vote of the holders
of the outstanding shares then entitled to vote at an election of
Directors. In case the Board of Directors or any one or more
Directors be so removed, new Directors may be elected at the same time for the
unexpired portion of the full term of the Director or Directors so
removed.
3.9
Resignations
. Any
Director may resign at any time by submitting his or her written resignation to
the Board of Directors or Secretary of the Corporation. Such
resignation shall take effect at the time of its receipt by the Corporation
unless another time be fixed in the resignation, in which case it shall become
effective at the time so fixed. The acceptance of a resignation shall
not be required to make it effective.
3.10
Committees
. The
Board of Directors may designate one or more committees, each committee to
consist of one or more of the Directors of the Corporation. In the
absence or disqualification of a member of a committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or not
he, she or they constitute a quorum, may unanimously appoint another member of
the Board of Directors to act at the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent provided by
law and in the resolution of the Board of Directors establishing such committee,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation, and
may authorize the seal of the Corporation to be affixed to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation’s property and assets, recommending
to the stockholders a dissolution of the Corporation or a revocation of a
dissolution or amending the Bylaws of the Corporation; and, unless the
resolution expressly so provides, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock or to
adopt a certificate of ownership and merger. Each committee shall
keep regular minutes of its meetings and report the same to the Board of
Directors when required.
3.11
Compensation
. Unless
restricted by the Certificate of Incorporation or these Bylaws, the Directors
may be paid their expenses, if any, of attendance at each meeting of the Board
of Directors and may be paid a fixed amount (in cash or other form of
consideration) for attendance at each meeting of the Board of Directors or a
stated salary as Director, as determined by the Board of Directors from time to
time. No such payment shall preclude any Director from serving the
Corporation in any other capacity and receiving compensation
therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings, as determined by the Board of Directors from time to
time.
3.12
Interested
Directors
. No contract or transaction between the Corporation
and one or more of its Directors or officers, or between the Corporation and any
other corporation, partnership, association, or other organization in which one
or more of its Directors or officers are Directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the Director or officer is present at or participates in the meeting of
the Board of Directors or committee thereof which authorizes the contract or
transaction, or solely because his, her or their votes are counted for such
purpose, if (i) the material facts as to his, her or their relationship or
interest and as to the contract or transaction are disclosed or are known to the
Board of Directors or the committee, and the Board of Directors or committee in
good faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested Directors, even though the disinterested Directors
be less than a quorum, (ii) the material facts as to his, her or their
relationship or interest and as to the contract or transaction are disclosed or
are known to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the stockholders
or (iii) the contract or transaction is fair as to the Corporation as of the
time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof or the stockholders. Common or interested Directors
may be counted in determining the presence of a quorum at a meeting of the Board
of Directors or of a committee which authorizes the contract or
transaction.
3.13
Meetings by Means of
Conference Telephone
. Members of the Board of Directors or any
committee designed by the Board of Directors may participate in a meeting of the
Board of Directors or of a committee of the Board of Directors by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 3.13 shall constitute presence in person at
such meeting.
ARTICLE
IV.
OFFICERS
4.1
General
. The
officers of the Corporation shall be elected by the Board of Directors and may
consist of: a Chief Executive Officer, Chief Financial Officer, Chief Compliance
Officer, Secretary and Treasurer. The Board of Directors, in its
discretion, may also elect one or more Vice Presidents (including Executive Vice
Presidents and Senior Vice Presidents), Assistant Secretaries, Assistant
Treasurers, a Controller and such other officers as in the judgment of the Board
of Directors may be necessary or desirable. Any number of offices may
be held by the same person and more than one person may hold the same office,
unless otherwise prohibited by law, the Certificate of Incorporation or these
Bylaws. The officers of the Corporation need not be stockholders of
the Corporation, nor need such officers be Directors of the
Corporation.
4.2
Election
. The
Board of Directors at its first meeting held after each annual meeting of
stockholders shall elect the officers of the Corporation who shall hold their
offices for such terms and shall exercise such powers and perform such duties as
shall be determined
from time
to time by the Board of Directors; and all officers of the Corporation shall
hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office
of the Corporation shall be filled by the Board of Directors. The
salaries of all officers who are Directors of the Corporation shall be fixed by
the Board of Directors or a committee thereof.
4.3
Voting Securities Owned by
the Corporation
. Powers of attorney, proxies, waivers of
notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the
Corporation by the Chief Executive Officer or any Vice President, and any such
officer may, in the name and on behalf of the Corporation, take all such action
as any such officer may deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all
rights and powers incident to the ownership of such securities and which, as the
owner thereof, the Corporation might have exercised and possessed if
present. The Board of Directors may, by resolution, from time to time
confer like powers upon any other person or persons.
4.4
Chief Executive
Officer
. Subject to the provisions of these Bylaws and to the
control of the Board of Directors, the Chief Executive Officer shall have
general supervision, direction and control of the business and the officers of
the Corporation. He or she shall have the general powers and duties of
management usually vested in the chief executive officer of a Corporation,
including general supervision, direction and control of the business and
supervision of other officers of the Corporation, and shall have such other
powers and duties as may be prescribed by the Board of Directors.
4.5
Chief Compliance
Officer
. The Chief Compliance Officer shall have general
responsibility for the compliance matters of the Corporation and shall perform
such other duties and exercise such other powers which are or from time to time
may be delegated to him or her by the Board of Directors or these Bylaws, all in
accordance with policies as established by and subject to oversight of the Board
of Directors. Additionally, the Chief Compliance Officer shall, no less than
annually, (i) provide a written report to the Board of Directors, the content of
which shall comply with Rule 38a-1 of the Investment Company Act of 1940, as
amended (the "
1940 Act
"), and
meet separately with the Corporation's independent directors.
4.6
Chief Financial
Officer
. The Chief Financial Officer shall have general
supervision, direction and control of the financial affairs of the Corporation
and shall perform such other duties and exercise such other powers which are or
from time to time may be delegated to him or her by the Board of Directors or
these Bylaws, all in accordance with policies as established by and subject to
the oversight of the Board of Directors. In the absence of a named
Treasurer, the Chief Financial Officer shall also have the powers and duties of
the Treasurer as hereinafter set forth and shall be authorized and empowered to
sign as Treasurer in any case where such officer’s signature is
required.
4.7
Vice Presidents.
In
the absence or disability of the President, the Vice Presidents, if any, in
order of their rank as fixed by the Board of Directors, or, if not ranked, a
vice president designated by the Board of Directors, shall perform all the
duties of the chief executive officer and when so acting shall have all the
powers of, and be subject to all the restrictions upon, the Chief Executive
Officer. The Vice Presidents shall have such other powers and perform such other
duties as from time to time may be prescribed for them respectively by
the Board
of Directors, these Bylaws, the Chief Executive Officer or the Chairman of the
Board of Directors.
4.8
Secretary
. The
Secretary shall attend all meetings of the Board of Directors and all meetings
of stockholders and record all the proceedings thereat in a book or books to be
kept for that purpose; the Secretary shall also perform like duties for the
standing committees when required. The Secretary shall give, or cause
to be given, notice of all meetings of the stockholders and special meetings of
the Board of Directors, and shall perform such other duties as may be prescribed
by the Board of Directors or the Chief Executive Officer, under whose
supervision the Secretary shall be. If the Secretary shall be unable
or shall refuse to cause to be given notice of all meetings of the stockholders
and special meetings of the Board of Directors, then any Assistant Secretary
shall perform such actions. If there is no Assistant Secretary, then
the Board of Directors or the Chief Executive Officer may choose another officer
to cause such notice to be given. The Secretary shall have custody of
the seal of the Corporation and the Secretary or any Assistant Secretary, if
there is one, shall have authority to affix the same to any instrument requiring
it and when so affixed, it may be attested by the signature of the Secretary or
by the signature of any such Assistant Secretary. The Board of
Directors may give general authority to any other officer to affix the seal of
the Corporation and to attest the affixing by his signature. The
Secretary shall see that all books, reports, statements, certificates and other
documents and records required by law to be kept or filed are properly kept or
filed, as the case may be.
4.9
Treasurer
. The
Treasurer shall have the custody of the corporate funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit all moneys and other valuable effects in
the name and to the credit of the Corporation in such depositories as may be
designated by the Board of Directors. The Treasurer shall disburse
the funds of the Corporation as may be ordered by the Board of Directors, taking
proper vouchers for such disbursements, and shall render to the Chief Executive
Officer and the Board of Directors, at its regular meetings, or when the Board
of Directors so requires, an account of all his transactions as Treasurer and of
the financial condition of the Corporation. If required by the Board
of Directors, the Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors
for the faithful performance of the duties of his or her office and for the
restoration to the Corporation, in case of his or her death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his or her possession or under his or her
control belonging to the Corporation.
4.10
Assistant
Secretaries
. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there are any, shall perform such duties and
have such powers as from time to time may be assigned to them by the Board of
Directors, the Chief Executive Officer, any Vice President, if there is one, or
the Secretary, and in the absence of the Secretary or in the event of his or her
disability or refusal to act, shall perform the duties of the Secretary, and
when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
4.11
Assistant
Treasurers
. Assistant Treasurers, if there are any, shall
perform such duties and have such powers as from time to time may be assigned to
them by the Board of Directors, the Chief Executive Officer, any Vice President,
if there is one, or the Treasurer, and
in the
absence of the Treasurer or in the event of his or her disability or refusal to
act, shall perform the duties of the Treasurer, and when so acting, shall have
all the powers of and be subject to all the restrictions upon the
Treasurer. If required by the Board of Directors, an Assistant
Treasurer shall give the Corporation a bond in such sum and with such surety or
sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his or her office and for the restoration to the
Corporation, in case of his or her death, resignation, retirement or removal
from office, of all books, papers, vouchers, money and other property of
whatever kind in his or her possession or under his or her control belonging to
the Corporation.
4.12
Controller
. The
Controller shall establish and maintain the accounting records of the
Corporation in accordance with generally accepted accounting principles applied
on a consistent basis, maintain proper internal control of the assets of the
Corporation and shall perform such other duties as the Board of Directors, the
Chief Executive Officer or any Vice President of the Corporation may
prescribe.
4.13
Other
Officers
. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may
be assigned to them by the Board of Directors. The Board of Directors
may delegate to any other officer of the Corporation the power to choose such
other officers and to prescribe their respective duties and powers.
4.14
Vacancies
. The
Board of Directors shall have the power to fill any vacancies in any office
occurring from whatever reason.
4.15
Resignations
. Any
officer may resign at any time by submitting his or her written resignation to
the Corporation. Such resignation shall take effect at the time of
its receipt by the Corporation, unless another time be fixed in the resignation,
in which case it shall become effective at the time so fixed. The
acceptance of a resignation shall not be required to make it
effective.
4.16
Removal
. Subject
to the provisions of any employment agreement approved by the Board of
Directors, any officer of the Corporation may be removed at any time, with or
without cause, by the affirmative vote of a majority of the Board of
Directors.
ARTICLE
V.
CAPITAL
STOCK
5.1
Form of
Certificates
. Every holder of stock in the Corporation shall
be entitled to have a certificate signed, in the name of the Corporation (i) by
the Chairman or Vice-Chairman of the Board, the Chief Executive Officer, the
Chief Financial Officer or any Vice-President and (ii) by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares owned by him, her or it in the
Corporation.
5.2
Signatures
. Any
or all of the signatures on the certificate may be a facsimile, including
signatures of officers of the Corporation and countersignatures of a transfer
agent or
registrar. In
case an officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the Corporation with the same effect as if he or she were such
officer, transfer agent or registrar at the date of issue.
5.3
Lost
Certificates
. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate, the
Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate, or his, her or its legal representative, to advertise the same in
such manner as the Board of Directors shall require and/or to give the
Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged
to have been lost, stolen or destroyed.
5.4
Transfers
. Stock
of the Corporation shall be transferable in the manner prescribed by law and in
these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person or entity named in the certificate or by his, her
or its attorney lawfully constituted in writing and upon the surrender of the
certificate therefor, which shall be canceled before a new certificate shall be
issued. Upon surrender to the Corporation or the transfer agent of
the Corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, it shall be
the duty of the Corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transactions upon its books,
unless the Corporation has a duty to inquire as to adverse claims with respect
to such transfer which has not been discharged. The Corporation shall
have no duty to inquire into adverse claims with respect to such transfer unless
(i) the Corporation has received a written notification of an adverse claim at a
time and in a manner which affords the Corporation a reasonable opportunity to
act on it prior to the issuance of a new, reissued or re-registered share
certificate and the notification identifies the claimant, the registered owner
and the issue of which the share or shares is a part and provides an address for
communications directed to the claimant or (ii) the Corporation has required and
obtained, with respect to a fiduciary, a copy of a will, trust, indenture,
articles of co-partnership, bylaws or other controlling instruments, for a
purpose other than to obtain appropriate evidence of the appointment or
incumbency of the fiduciary, and such documents indicate, upon reasonable
inspection, the existence of an adverse claim. The Corporation may
discharge any duty of inquiry by any reasonable means, including notifying an
adverse claimant by registered or certified mail at the address furnished by
him, her or its, if there be no such address, at his, her or its residence or
regular place of business that the security has been presented for registration
of transfer by a named person, and that the transfer will be registered unless
within thirty days from the date of mailing the notification, either (i) an
appropriate restraining order, injunction or other process issues from a court
of competent jurisdiction or (ii) an indemnity bond, sufficient in the
Corporation’s judgment to protect the Corporation and any transfer agent,
registrar or other agent of the Corporation involved from any loss which it or
they may suffer by complying with the adverse claim, is filed with the
Corporation.
5.5
Fixing Record
Date
. In order that the Corporation may determine the
stockholders entitled to notice or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record is
adopted by the Board of Directors, and which record date shall not be more than
sixty (60) nor less than ten (10) days before the date of such meeting, nor more
than ten (10) days after the date upon which the resolution fixing the record
date of action with a meeting is adopted by the Board of Directors, nor more
than sixty (60) days prior to any other action. If no record date is
fixed:
(a)
The
record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held;
(b)
The
record date for determining stockholders entitled to express consent to
corporate action in writing without a meeting, when no prior action by the Board
of Directors is necessary, shall be the first date on which a signed written
consent is delivered to the Corporation; or
(c)
The
record date for determining stockholders for any other purpose shall be at the
close of business on the day on which the Board of Directors adopts the
resolution relating thereto.
A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
5.6
Registered
Stockholders
. Prior to due presentment for transfer of any
share or shares, the Corporation shall treat the registered owner thereof as the
person exclusively entitled to vote, to receive notifications and to all other
benefits of ownership with respect to such share or shares, and shall not be
bound to recognize any equitable or other claim to or interest in such share or
shares on the part of any other person, whether or not it shall have express or
other notice thereof, except as otherwise provided by the laws of the State
Delaware.
ARTICLE
VI.
NOTICES
6.1
Form of
Notice
. Notices to Directors and stockholders other than
notices to Directors of special meetings of the Board of Directors which may be
given by any means stated in Section 3.4, shall be in writing and delivered
personally or mailed to the Directors or stockholders at their addresses
appearing on the books of the Corporation. Notice by mail shall be
deemed to be given at the time when the same shall be mailed. Notice
to Directors may also be given by telegram.
6.2
Waiver of
Notice
. Whenever any notice is required to be given under the
provisions of law or the Certificate of Incorporation or by these Bylaws, a
written waiver, signed by the person or persons entitled to notice, whether
before or after the time stated therein, shall be deemed equivalent to
notice. Attendance of a person at a meeting shall constitute a waiver
of notice of such meeting, except when the person attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose
of, any regular, or special meeting of the stockholders, Directors, or members
of a committee of Directors need be specified in any written waiver of notice
unless so required by the Certificate of Incorporation.
ARTICLE
VII.
INDEMNIFICATION OF DIRECTORS
AND OFFICERS
7.1
The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Corporation) by reason of the fact that he
or she is or was a Director, officer, employee or agent of the Corporation, or
is or was serving at the request of the Corporation as a Director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys’ fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding if he or she acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he or she reasonably believed to be
in or not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that his or
her conduct was unlawful.
7.2
The
Corporation shall indemnify any person who was or is a party, or is threatened
to be made a party to any threatened, pending or completed action or suit by or
in the right of the Corporation to procure a judgment in its favor by reason of
the fact that he or she is or was a Director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
Director, officer, employee or agent of another Corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys’ fees)
actually and reasonably incurred by him or her in connection with the defense or
settlement of such action or suit if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the Corporation and except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
7.3
To the
extent that a present or former Director or officer of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Sections 7.1 or 7.2, or in defense of any claim, issue
or matter therein, he or she shall be indemnified against expenses (including
attorneys’ fees) actually and reasonably incurred by him or her in connection
therewith.
7.4
Any
indemnification under Sections 7.1 or 7.2 (unless ordered by a court) shall be
made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the Director or officer is proper in the
circumstances because he or she has met the applicable standard of conduct set
forth in such section. Such determination shall be made:
(a)
by the
Board of Directors by a majority vote of a quorum consisting of Directors who
were not parties to such action, suit or proceeding, even though less than a
quorum;
(b)
by a
committee of such Directors designated by majority vote of such Directors, even
though less than a quorum;
(c)
by
independent legal counsel in a written opinion, if there are no such Directors,
or such Directors so direct; or
(d)
by the
stockholders.
7.5
Expenses
(including attorneys’ fees) incurred by an officer or Director in defending any
civil, criminal, administrative or investigative action, suit or proceeding may
be paid by the Corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of such
Director or officer to repay such amount if it shall ultimately be determined
that he or she is not entitled to be indemnified by the Corporation as
authorized in this Section. Such expenses (including attorneys’ fees)
incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate.
7.6
The
indemnification and advancement of expenses provided by, or granted pursuant to
the other sections of this Article shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any bylaw, agreement, vote of stockholders or disinterested
Directors or otherwise, both as to action in his or her official capacity and as
to action in another capacity while holding such office.
7.7
The
Corporation shall have power to purchase and maintain insurance on behalf of any
person who is or was a Director, officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation as a Director, officer,
employee or agent of another Corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him or her and incurred
by him or her in any such capacity, or arising out of his or her status as such,
whether or not the Corporation would have the power to indemnify him or her
against such liability under the provisions of this Article.
7.8
For
purposes of this Article, references to “the Corporation” shall include, in
addition to the resulting Corporation, any constituent Corporation (including
any constituent of
a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
Directors, officers, and employees or agents, so that any person who is or was a
Director, officer, employee or agent of such constituent Corporation, or is or
was serving at the request of such constituent Corporation as a Director,
officer, employee or agent of another Corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under this Article
with respect to the resulting or surviving Corporation as he or she would have
with respect to such constituent Corporation of its separate existence had
continued.
7.9
For
purposes of this Article, references to “other enterprises” shall include
employee benefit plans; references to “fines” shall include any excise taxes
assessed on a person with respect to any employee benefit plan; and references
to “serving at the request of the Corporation” shall include any service as a
Director, officer, employee or agent of the Corporation which imposes duties on,
or involves services by, such Director, officer, employee or agent with respect
to an employee benefit plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner he or she reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner “not opposed to the best interests of the
Corporation” as referred to in this Article.
7.10
The
indemnification and advancement of expenses provided by, or granted pursuant to,
this Article shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a Director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
7.11
No
Director or officer of the Corporation shall be personally liable to the
Corporation or to any stockholder of the Corporation for monetary damages for
breach of fiduciary duty as a Director or officer, provided that this provision
shall not limit the liability of a Director or officer (i) for any breach of the
Director’s or the officer’s duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the General Corporation Law of the State of Delaware or (iv) for any transaction
from which the Director or officer derived an improper personal
benefit.
ARTICLE
VIII.
GENERAL
PROVISIONS
8.1
Reliance on Books and
Records
. Each Director, each member of any committee
designated by the Board of Directors, and each officer of the Corporation,
shall, in the performance of his or her duties, be fully protected in relying in
good faith upon the books of account or other records of the Corporation,
including reports made to the Corporation by any of its officers, by an
independent certified public accountant or by an appraiser selected with
reasonable care.
8.2
Maintenance and Inspection
of Records
. The Corporation shall, either at its principal
executive office or at such place or places as designated by the Board of
Directors, keep a record of its stockholders listing their names and addresses
and the number and class of
shares
held by each stockholder, a copy of these Bylaws, as may be amended to date,
minute books, accounting books and other records.
Any such
records maintained by the Corporation may be kept on, or by means of, or be in
the form of, any information storage device or method, provided that the records
so kept can be converted into clearly legible paper form within a reasonable
time. The Corporation shall so convert any records so kept upon the request of
any person entitled to inspect such records pursuant to the provisions of the
General Corporation Law of the State of Delaware. When records are kept in such
manner, a clearly legible paper form produced from or by means of the
information storage device or method shall be admissible in evidence, and
accepted for all other purposes, to the same extent as an original paper form
accurately portrays the record.
Any
stockholder of record, in person or by attorney or other agent, shall, upon
written demand under oath stating the purpose thereof, have the right during the
usual hours for business to inspect for any proper purpose the Corporation’s
stock ledger, a list of its stockholders and its other books and records and to
make copies or extracts therefrom. A proper purpose shall mean a purpose
reasonably related to such person’s interest as a stockholder. In every instance
where an attorney or other agent is the person who seeks the right to
inspection, the demand under oath shall be accompanied by a power of attorney or
such other writing that authorizes the attorney or other agent to so act on
behalf of the stockholder. The demand under oath shall be directed to the
Corporation at its registered office in Delaware or at its principal executive
office.
8.3
Inspection by
Directors
. Any Director shall have the right to examine the
Corporation’s stock ledger, a list of its stockholders and its other books and
records for a purpose reasonably related to his or her position as a
Director.
8.4
Dividends
. Subject
to the provisions of the Certificate of Incorporation, if any, dividends upon
the capital stock of the Corporation may be declared by the Board of Directors
at any regular or special meeting, pursuant to law. Dividends may be
paid in cash, in property, or in shares of the capital stock, subject to the
provisions of the Certificate of Incorporation. Before payment of any
dividend, there may be set aside out of any funds of the Corporation available
for dividends such sum or sums as the Directors from time to time, in their
absolute discretion, think proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the Corporation, or for such other purpose as the Directors shall
think conducive to the interest of the Corporation, and the Directors may modify
or abolish any such reserve in the manner in which it was created.
8.5
Annual
Statement
. The Board of Directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for by vote
of the stockholders, a full and clear statement of the business and condition of
the Corporation.
8.6
Checks
. All
checks or demands for money and notes of the Corporation shall be signed by such
officer or officers or such other persons as the Board of Directors may from
time to time designate.
8.7
Fiscal
Year
. The fiscal year of the Corporation shall be as
determined by the Board of Directors. If the Board of Directors shall
fail to do so, the Chief Executive Officer shall fix the fiscal
year.
8.8
Seal
. The
corporate seal shall have inscribed thereon the name of the Corporation, the
year of its organization and the words “Corporate Seal,
Delaware.” The seal may be used by causing it or a facsimile thereof
to be impressed or affixed or in any manner reproduced.
8.9
Amendments
. The
original or other bylaws may be adopted, amended or repealed by the stockholders
entitled to vote thereon at any regular or special meeting or, if the
Certificate of Incorporation so provides, by the Board of
Directors. The fact that such power has been so conferred upon the
Board of Directors shall not divest the stockholders of the power nor limit
their power to adopt, amend or repeal bylaws.
8.10
Interpretation of
Bylaws
. All words, terms and provisions of these Bylaws shall
be interpreted and defined by and in accordance with the General Corporation Law
of the State of Delaware, as amended, and as amended from time to time
hereafter.
8.11
Conflict with 1940
Act
. If and to the extent that any provision of the General
Corporation Law of the State of Delaware, as amended, or any provision of these
Bylaws shall conflict with any provision of the 1940 Act, the applicable
provision of the 1940 Act shall control.
|
NUMBER
__________C
|
|
SHARES
|
|
SEE
REVERSE FOR
CERTAIN
DEFINITIONS
|
GOLUB
CAPITAL BDC, INC.
|
|
INCORPORATED
UNDER THE LAWS OF THE STATE OF DELAWARE
COMMON
STOCK
CUSIP
38173M 102
THIS
CERTIFIES THAT
_______________________________________________________________________________
is the
owner of
______________________________________________________________________________________
FULLY
PAID AND NON-ASSESSABLE SHARES OF THE PAR VALUE OF $0.001 EACH
OF
THE COMMON STOCK OF
GOLUB
CAPITAL BDC, INC.
transferable
only on the books of the Corporation in person or by duly authorized attorney
upon surrender of this certificate properly endorsed.
This
certificate is not valid unless countersigned by the Transfer Agent and
registered by the Registrar. Witness the facsimile seal of the Corporation and
the facsimile signatures of its duly authorized officers.
|
By
|
|
|
|
_______________________________________
President
|
____________________________________
Secretary
|
|
|
|
|
|
|
|
|
|
The
following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
|
|
as
tenants in common
as
tenants by the entireties
as
joint tenants with right of survivorship
and not as tenants in
common
|
UNIF
GIFT MIN ACT -
|
_____
Custodian ______
(Cust)
(Minor)
under
Uniform Gifts to Minors
Act
_________________
(State)
|
Additional
Abbreviations may also be used though not in the above list.
Golub
Capital BDC, Inc.
The
Corporation will furnish without charge to each stockholder who so requests the
powers, designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof of the Corporation and
the qualifications, limitations or restrictions of such preferences and/or
rights. This certificate and the shares represented thereby are issued and shall
be held subject to all the provisions of the Certificate of Incorporation and
all amendments thereto and resolutions of the Board of Directors providing for
the issue of shares of Common Stock (copies of which may be obtained from the
secretary of the Corporation), to all of which the holder of this certificate by
acceptance hereof assents.
For
value received, ___________________________ hereby sell, assign and transfer
unto
PLEASE
INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING
NUMBER OF ASSIGNEE
(PLEASE
PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF
ASSIGNEE)
|
of the
capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
________________________________________ Attorney to transfer the said
stock on the books of
the within
named Corporation will full power of substitution in the
premises.
|
Dated
_________________________
|
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Notice:
|
The signature
to this assignment must correspond with the name as written upon the face
of the certificate in every particular, without alteration or enlargement
or any change
whatever.
|
Signature(s)
Guaranteed:
|
|
|
|
THE
SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS,
STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
EMBERSHIP
IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM,
PURSUANT
TO S.E.C. RULE 17Ad-15).
|
|
DIVIDEND
REINVESTMENT PLAN
OF
GOLUB
CAPITAL BDC, INC.
Golub
Capital BDC, Inc., a Delaware corporation (the “
Corporation
”), has
adopted the following plan (the “
Plan
”), to be
administered by American Stock Transfer and Trust Company (the “
Plan Administrator
”),
with respect to dividends and other distributions declared by its Board of
Directors on shares of its common stock, par value $0.001 per share (the “
Common Stock
”)
:
1.
Unless a
stockholder specifically elects to receive cash as set forth below, all cash
dividends or other distributions hereafter declared by the Board of Directors,
net of any applicable withholding tax,
shall be automatically
reinvested in additional shares of Common Stock, and no action shall be required
on such stockholder’s part to receive a distribution in Common
Stock.
2.
Such
distributions shall be payable on such date or dates as may be fixed from time
to time by the Board of Directors to stockholders of record at the close of
business on the record date established by the Board of Directors for the
distribution involved.
3.
With
respect to each distribution pursuant to this Plan, the Board of Directors
reserves the right, subject to the provisions of the Investment Company Act of
1940, as amended, to either issue new shares of Common Stock or to make open
market purchases of its shares for the accounts of Participants (as defined
below). The number of shares of Common Stock to be issued to a
Participant is determined by dividing the total dollar amount of the
distribution payable to such stockholder by the market price per share of Common
Stock at the close of regular trading on the Nasdaq Global Market on the date of
such distribution. The market price per share of Common Stock on a
particular date shall be the closing price for such shares on the Nasdaq Global
Market on such date or, if no sale is reported for such date, at the average of
their reported bid and asked prices.
4.
The Plan
Administrator shall establish an account for shares of Common Stock
acquired pursuant to the Plan for each stockholder who has not so elected to
receive distributions in cash (each a “
Participant
”). The
Plan Administrator may hold each Participant’s shares, together with the shares
of other Participants, in non-certificated form in the Plan Administrator’s name
or that of its nominee. Upon request by a Participant, received in
writing no later than three days prior to the record date, the Plan
Administrator shall, instead of crediting shares to and/or carrying shares in a
Participant’s account, issue a certificate registered in the Participant’s name
for the number of whole shares of Common Stock payable to the Participant and a
check for any fractional share. The Plan Administrator is authorized
to deduct a $15.00 transaction fee plus a $0.10 per share brokerage commission
from the proceeds of the sale of any fractional share of Common
Stock.
5.
The Plan
Administrator shall confirm to each Participant each acquisition made pursuant
to the Plan as soon as practicable but not later than 30 business days
after
the
payable date. Although each Participant may from time to time have an
undivided fractional interest (computed to three decimal places) in a share of
Common Stock, no certificates for a fractional share of Common Stock shall be
issued. However, distributions on fractional shares shall be credited
to each Participant’s account. In the event of termination of a
Participant’s account under the Plan, the Plan Administrator shall adjust for
any such undivided fractional interest in cash at the market value of the shares
of Common Stock at the time of termination.
6.
The Plan
Administrator shall forward to each Participant any Corporation-related proxy
solicitation materials and each Corporation report or other communication to
stockholders, and shall vote any shares held by it under the Plan in accordance
with the instructions set forth on proxies returned by Participants to the
Corporation.
7.
In the
event that the Corporation makes available to its stockholders rights to
purchase additional shares or other securities, the shares held by the Plan
Administrator for each Participant under the Plan shall be added to any other
shares held by the Participant in certificated form in calculating the number of
rights to be issued to the Participant. Transaction processing may be
either curtailed or suspended until the completion of any stock dividend, stock
split or corporate action.
8.
The Plan
Administrator’s service fee, if any, and expenses for administering the Plan
shall be paid for by the Corporation. There will be no brokerage
charges or other charges to stockholders who participate in the
Plan.
9. Each
participant may elect to receive an entire distribution in cash by noticing the
Plan Administrator in writing so that such notice is received by the Plan
Administrator no later than the record date for distributions to
stockholders.
10.
Each
Participant may terminate his or its account under the Plan by so notifying the
Plan Administrator via the Plan Administrator’s website at
www.amstock.com
or by filling
out the transaction request form located at the bottom of the Participant’s
statement and sending it to American Stock Transfer & Trust Company, P.O.
Box 922, Wall Street Station, New York, New York, 10269. Such
termination shall be effective immediately if the Participant’s notice is
received by the Plan Administrator at least three days prior to any distribution
date; otherwise, such termination shall be effective only with respect to any
subsequent distribution. The Plan may be terminated or amended by the
Corporation upon notice in writing mailed to each Participant at least 30 days
prior to any record date for the payment of any dividend by the
Corporation. Upon any termination, the Plan Administrator shall cause
a certificate or certificates to be issued for the full shares of Common Stock
held for the Participant under the Plan and a cash adjustment for any fractional
share to be delivered to the Participant without charge to the
Participant. If a Participant elects by his, her or its written
notice to the Plan Administrator in advance of termination of his, her or its
account to have the Plan Administrator sell part or all of his, her or its
shares and remit the proceeds to the Participant, the Plan Administrator is
authorized to deduct a $15.00 transaction fee plus a $0.10 per share brokerage
commission from the proceeds.
11.
These
terms and conditions may be amended or supplemented by the Corporation at any
time but, except when necessary or appropriate to comply with applicable law or
the rules or policies of the Securities and Exchange Commission or any other
regulatory authority, only by mailing to each Participant appropriate written
notice
at least
30 days prior to the effective date thereof. The amendment or
supplement shall be deemed to be accepted by each Participant unless, prior to
the effective date thereof, the Plan Administrator receives written notice of
the termination of his, her or its account under the Plan. Any such
amendment may include an appointment by the Plan Administrator in its place and
stead of a successor agent under these terms and conditions, with full power and
authority to perform all or any of the acts to be performed by the Plan
Administrator under these terms and conditions. Upon any such
appointment of any agent for the purpose of receiving distributions, the
Corporation shall be authorized to pay to such successor agent, for each
Participant’s account, all distributions payable on shares of the Corporation
held in the Participant’s name or under the Plan for retention or application by
such successor agent as provided in these terms and conditions.
12.
The Plan
Administrator shall at all times act in good faith and use its best efforts
within reasonable limits to ensure its full and timely performance of all
services to be performed by it with respect to purchases and sales of the
Corporation’s Common Stock under this Plan and to comply with applicable law,
but assumes no responsibility and shall not be liable for loss or damage due to
errors unless such error is caused by the Plan Administrator’s negligence, bad
faith or willful misconduct or that of its employees or agents.
13.
These
terms and conditions shall be governed by the laws of the State of New
York.
March 5,
2010
INVESTMENT ADVISORY
AGREEMENT
BETWEEN
GOLUB CAPITAL BDC,
INC.
AND
GC ADVISORS
LLC
Agreement
made this _____ day of ____________ 2010, by and between GOLUB CAPITAL BDC,
INC., a Delaware corporation (the “Corporation”), and GC ADVISORS LLC, a
Delaware limited liability company (the “Adviser”).
WHEREAS,
the Corporation is a newly organized corporation that will operate as a
closed-end, non-classified management investment company;
WHEREAS,
the Corporation has filed a registration statement on Form N-2 (the
“Registration Statement”) to register shares of its common stock for issuance in
an initial public offering (the “Offering”);
WHEREAS,
prior to the effectiveness of the Registration Statement, the Corporation filed
an election to be treated as a business development company under the Investment
Company Act of 1940, as amended (the “Investment Company Act”);
WHEREAS,
prior to and in anticipation of the Offering, the Corporation has acquired
interests in senior secured loans and other debt obligations that will comprise
a portion of the Corporation’s initial portfolio;
WHEREAS,
the Adviser is registered as an investment adviser under the Investment Advisers
Act of 1940, as amended (the “Investment Advisers Act”); and
WHEREAS,
the Corporation desires to retain the Adviser to furnish investment advisory
services to the Corporation on the terms and conditions hereinafter set forth,
and the Adviser wishes to be retained to provide such services.
NOW,
THEREFORE, in consideration of the premises and for other good and valuable
consideration, the parties hereby agree as follows:
1.
Duties of
the Adviser.
(a)
The
Corporation hereby employs the Adviser to act as the investment adviser to the
Corporation and to manage the investment and reinvestment of the assets of the
Corporation, subject to the supervision of the Board of Directors of the
Corporation, for the period and upon the terms herein set forth, (i) in
accordance with the investment objective, policies and restrictions that are set
forth in the Registration Statement, as the same may be amended
from
time to
time, (ii) in accordance with the Investment Company Act and (iii) in accordance
with all other applicable federal and state laws, rules and regulations, and the
Corporation’s certificate of incorporation and bylaws. Without limiting the
generality of the foregoing, the Adviser shall, during the term and subject to
the provisions of this Agreement, (i) determine the composition of the
portfolio of the Corporation, the nature and timing of the changes therein and
the manner of implementing such changes; (ii) identify, evaluate and negotiate
the structure of the investments made by the Corporation (including performing
due diligence on prospective portfolio companies); (iii) execute, close, service
and monitor the Corporation’s investments; (iv) determine the securities and
other assets that the Corporation will purchase, retain, or sell; and (v)
provide the Corporation with such other investment advisory, research and
related services as the Corporation may, from time to time, reasonably require
for the investment of its funds. The Adviser shall have the power and authority
on behalf of the Corporation to effectuate its investment decisions for the
Corporation, including the execution and delivery of all documents relating to
the Corporation’s investments and the placing of orders for other purchase or
sale transactions on behalf of the Corporation. In the event that the
Corporation determines to acquire debt financing, the Adviser will arrange for
such financing on the Corporation’s behalf, subject to the oversight and
approval of the Corporation’s Board of Directors. If it is necessary for the
Adviser to make investments on behalf of the Corporation through a special
purpose vehicle, the Adviser shall have authority to create or arrange for the
creation of such special purpose vehicle and to make such investments through
such special purpose vehicle in accordance with the Investment Company
Act.
(b)
The
Adviser hereby accepts such employment and agrees during the term hereof to
render the services described herein for the compensation provided
herein.
(c)
Subject
to the requirements of the Investment Company Act, the Adviser is hereby
authorized, but not required, to enter into one or more sub-advisory agreements
with other investment advisers (each, a “Sub-Adviser”) pursuant to which the
Adviser may obtain the services of the Sub-Adviser(s) to assist the Adviser in
fulfilling its responsibilities hereunder. Specifically, the Adviser may retain
a Sub-Adviser to recommend specific securities or other investments based upon
the Corporation’s investment objective and policies, and work, along with the
Adviser, in structuring, negotiating, arranging or effecting the acquisition or
disposition of such investments and monitoring investments on behalf of the
Corporation, subject to the oversight of the Adviser and the Corporation. The
Adviser, and not the Corporation, shall be responsible for any compensation
payable to any Sub-Adviser. Any sub-advisory agreement entered into by the
Adviser shall be in accordance with the requirements of the Investment Company
Act, the Investment Advisers Act and other applicable federal and state
law.
(d)
The
Adviser shall for all purposes herein provided be deemed to be an independent
contractor and, except as expressly provided or authorized herein, shall have no
authority to act for or represent the Corporation in any way or otherwise be
deemed an agent of the Corporation.
(e)
The
Adviser shall keep and preserve, in the manner and for the period that would be
applicable to investment companies registered under the Investment Company Act
any books and records relevant to the provision of its investment advisory
services to the Corporation and shall specifically maintain all books and
records with respect to the Corporation’s portfolio transactions and shall
render to the Corporation’s Board of Directors such periodic and special reports
as the Board of Directors may reasonably request. The Adviser agrees that all
records that it maintains for the Corporation are the property of the
Corporation and will surrender promptly to the Corporation any such records upon
the Corporation’s request, provided that the Adviser may retain a copy of such
records.
2.
Corporation’s
Responsibilities and Expenses Payable by the Corporation.
All
investment professionals of the Adviser and their respective staffs, when and to
the extent engaged in providing investment advisory and management services
hereunder, and the compensation and routine overhead expenses of such personnel
allocable to such services, will be provided and paid for by the Adviser and not
by the Corporation. The Corporation will bear all other costs and expenses of
its operations and transactions, including (without limitation) those relating
to: organization and offering; calculating the Corporation’s net asset value
(including the cost and expenses of any independent valuation firm); fees and
expenses incurred by the Adviser payable to third parties, including agents,
consultants or other advisors, in monitoring financial and legal affairs for the
Corporation and in monitoring the Corporation’s investments and performing due
diligence on its prospective portfolio companies or otherwise relating to, or
associated with, evaluating and making investments; interest payable on debt, if
any, incurred to finance the Corporation’s investments and expenses related to
unsuccessful portfolio acquisition efforts; offerings of the Corporation’s
common stock and other securities; investment advisory and management fees;
administration fees payable under the administration agreement (the
“Administration Agreement”) between the Corporation and GC Service Company, LLC
(the “Administrator”), the Corporation’s administrator; fees payable to third
parties, including agents, consultants or other advisors, relating to, or
associated with, evaluating and making investments, including costs associated
with meeting potential financial sponsors; transfer agent
,
dividend agent
and custodial fees and expenses; federal and state
registration fees; all costs of registration and listing the Corporation’s
securities on any securities exchange; federal, state and local taxes;
independent Directors’ fees and expenses; costs of preparing and filing reports
or other documents required by the Securities and Exchange Commission
or other
regulators
; costs of any reports, proxy statements or other notices to
stockholders, including printing costs; costs associated with individual or
group stockholders; the Corporation’s allocable portion of the fidelity bond,
directors and officers/errors and omissions liability insurance, and any other
insurance premiums; direct costs and expenses of administration, including
printing, mailing, long distance telephone, copying, secretarial and other
staff, independent auditors and outside legal costs; proxy voting expenses; and
all other expenses incurred by the Corporation or the Administrator in
connection with administering the Corporation’s business, including payments
under the Administration Agreement based upon the Corporation’s allocable
portion of the Administrator’s overhead in performing its obligations under the
Administration Agreement, including rent and the allocable portion of the cost
of the Corporation’s chief compliance officer and chief financial officer and
their respective staffs.
3.
Compensation of the
Adviser.
The Corporation agrees to pay, and the Adviser agrees to accept,
as compensation for the services provided by the Adviser hereunder, a base
management fee (“Base Management Fee”) and an incentive fee (“Incentive Fee”) as
hereinafter set forth. The Corporation shall make any payments due hereunder to
the Adviser or to the Adviser’s designee as the Adviser may otherwise direct. To
the extent permitted by applicable law, the Adviser may elect, or adopt a
deferred compensation plan pursuant to which it may elect, to defer all or a
portion of its fees hereunder for a specified period of time.
(a)
The Base
Management Fee shall be calculated at an annual rate of 1.375% of the
Corporation’s average adjusted gross assets (excluding cash and cash equivalents
and including assets purchased with borrowed funds). For services
rendered under this Agreement, the Base Management Fee will be payable quarterly
in arrears. The Base Management Fee will be calculated based on the average
value of the Corporation’s gross assets at the end of the two most recently
completed calendar quarters, and appropriately adjusted for any share issuances
or repurchases during the current calendar quarter. Base Management Fees for any
partial month or quarter will be appropriately pro-rated. For purposes of this
Agreement, cash equivalents means U.S. government securities and commercial
paper maturing within 270 days of issuance.
(b)
The
Incentive Fee shall be calculated and paid as set forth on Schedule A hereto, as
it may be amended from time to time;
provided that
, no incentive
fee shall be paid at any time where, after such payment, the cumulative
incentives fees paid to date would exceed 20% of the “cumulative pre-incentive
net income,” as defined in Schedule A, since the Corporation’s election to be
treated as a business development company.
4.
Covenants of the
Adviser.
The Adviser covenants that it is registered as an investment
adviser under the Investment Advisers Act. The Adviser agrees that its
activities will at all times be in compliance in all material respects with all
applicable federal and state laws governing its operations and
investments.
5.
Excess Brokerage
Commissions.
The Adviser is hereby authorized, to the fullest extent now
or hereafter permitted by law, to cause the Corporation to pay a member of a
national securities exchange, broker or dealer an amount of commission for
effecting a securities transaction in excess of the amount of commission another
member of such exchange, broker or dealer would have charged for effecting that
transaction, if the Adviser determines in good faith, taking into account such
factors as price (including the applicable brokerage commission or dealer
spread), size of order, difficulty of execution, and operational facilities of
the firm and the firm’s risk and skill in positioning blocks of securities, that
such amount of commission is reasonable in relation to the value of the
brokerage and/or research services provided by such member, broker or dealer,
viewed in terms of either that particular transaction or its overall
responsibilities with respect to the Corporation’s portfolio, and constitutes
the best net results for the Corporation.
6.
Proxy
Voting.
The Adviser shall be responsible for voting any proxies
solicited by an issuer of securities held by the Corporation in the best
interest of the Corporation and in accordance with the Adviser’s proxy voting
policies and procedures, as they may be amended
from time to time. The Corporation has been
provided with a copy of the Adviser’s proxy voting policies and procedures and
has been informed as to how it can obtain further information from the Adviser
about proxy voting activities undertaken on behalf of the
Corporation. The Adviser shall be responsible for reporting the
Corporation’s proxy voting activities, as required, through periodic filings on
Form N-PX.
7.
Limitations on the
Employment of the Adviser.
The services of the Adviser to the Corporation
are not exclusive, and the Adviser may engage in any other business or render
similar or different services to others including, without limitation, the
direct or indirect sponsorship or management of other investment based accounts
or commingled pools of capital, however structured, having investment objectives
similar to those of the Corporation, so long as its services to the Corporation
hereunder are not impaired thereby, and nothing in this Agreement shall limit or
restrict the right of any manager, partner, officer or employee of the Adviser
to engage in any other business or to devote his or her time and attention in
part to any other business, whether of a similar or dissimilar nature, or to
receive any fees or compensation in connection therewith (including fees for
serving as a director of, or providing consulting services to, one or more of
the Corporation’s portfolio companies, subject to applicable law). So long as
this Agreement or any extension, renewal or amendment remains in effect, the
Adviser shall be the only investment adviser for the Corporation, subject to the
Adviser’s right to enter into sub-advisory agreements. The Adviser assumes no
responsibility under this Agreement other than to render the services called for
hereunder. It is understood that directors, officers, employees and stockholders
of the Corporation are or may become interested in the Adviser and its
affiliates, as directors, officers, employees, partners, stockholders, members,
managers or otherwise, and that the Adviser and directors, officers, employees,
partners, stockholders, members and managers of the Adviser and its affiliates
are or may become similarly interested in the Corporation as stockholders or
otherwise.
Subject
to any restrictions prescribed by law and the provisions of the Code of Ethics
of the Corporation and the Adviser and the Adviser's Allocation Policy, the
Adviser and its members, officers, employees and agents shall be free, from time
to time, to acquire, possess, manage, and dispose of securities or other
investment assets for their own accounts, for the accounts of their family
members, for the account of any entity in which they have a beneficial interest,
or for the accounts of others for whom they may provide investment advisory,
brokerage or other services (collectively, “Managed Accounts”), in transactions
that may or may not correspond with transactions effected or positions held by
the Corporation or to give advice and take action with respect to Managed
Accounts that differs from advice given to, or action taken on behalf of, the
Corporation, so long as the Adviser allocates investment opportunities to the
Corporation, over a period of time on a fair and equitable basis compared to
investment opportunities extended to other Managed Accounts. The
Adviser is not obligated to initiate the purchase or sale for the Corporation of
any security that the Adviser and its members, officers, employees or agents may
purchase or sell for its or their own accounts or for the account of any other
client, if in the opinion of the Adviser, such transaction or investment appears
unsuitable or undesirable for the Corporation. Moreover, it is
understood that when the Adviser determines that it would be appropriate for the
Corporation and one or more Managed Accounts to participate in the same
investment opportunity, the Adviser will seek to execute orders for the
Corporation and for such
Managed
Account(s) on a basis that the Adviser considers to be fair and equitable over
time. In such situations, the Adviser may (but is not required to)
place orders for the Corporation and each Managed Account simultaneously or on
an aggregated basis. If all such orders are not filled at the same
price, the Adviser may cause the Corporation and each Managed Account to pay or
receive the average of the prices at which the orders were filled for the
Corporation and all relevant Managed Accounts on each applicable
day. If all such orders cannot be fully executed under prevailing
market conditions, the Adviser may allocate the investment opportunities among
participating accounts in a manner that the Adviser considers equitable, taking
into account, among other things, the size of each account, the size of the
order placed for each account and any other factors that the Adviser deems
relevant.
8.
Responsibility of Dual
Directors, Officers and/or Employees.
If any person who is a manager,
partner, officer or employee of the Adviser or the Administrator is or becomes a
director, officer and/or employee of the Corporation and acts as such in any
business of the Corporation, then such manager, partner, officer and/or employee
of the Adviser or the Administrator shall be deemed to be acting in such
capacity solely for the Corporation, and not as a manager, partner, officer or
employee of the Adviser or the Administrator or under the control or direction
of the Adviser or the Administrator, even if paid by the Adviser or the
Administrator.
9.
Limitation of Liability of
the Adviser; Indemnification.
The Adviser (and its officers, managers,
partners, agents, employees, controlling persons, members and any other person
or entity affiliated with the Adviser, including without limitation its general
partner and the Administrator) shall not be liable to the Corporation for any
action taken or omitted to be taken by the Adviser in connection with the
performance of any of its duties or obligations under this Agreement or
otherwise as an investment adviser of the Corporation, except to the extent
specified in Section 36(b) of the Investment Company Act concerning loss
resulting from a breach of fiduciary duty (as the same is finally determined by
judicial proceedings) with respect to the receipt of compensation for services,
and the Corporation shall indemnify, defend and protect the Adviser (and its
officers, managers, partners, agents, employees, controlling persons, members
and any other person or entity affiliated with the Adviser, including without
limitation its general partner and the Administrator, each of whom shall be
deemed a third party beneficiary hereof) (collectively, the “Indemnified
Parties”) and hold them harmless from and against all damages, liabilities,
costs and expenses (including reasonable attorneys’ fees and amounts reasonably
paid in settlement) incurred by the Indemnified Parties in or by reason of any
pending, threatened or completed action, suit, investigation or other proceeding
(including an action or suit by or in the right of the Corporation or its
security holders) arising out of or otherwise based upon the performance of any
of the Adviser’s duties or obligations under this Agreement or otherwise as an
investment adviser of the Corporation. Notwithstanding the preceding sentence of
this Paragraph 9 to the contrary, nothing contained herein shall protect or be
deemed to protect the Indemnified Parties against or entitle or be deemed to
entitle the Indemnified Parties to indemnification in respect of, any liability
to the Corporation or its security holders to which the Indemnified Parties
would otherwise be subject by reason of willful
misfeasance,
bad faith or gross negligence in the performance of the Adviser’s duties or by
reason of the reckless disregard of the Adviser’s duties and obligations under
this Agreement (as the same shall be determined in accordance with the
Investment Company Act and any interpretations or guidance by the Securities and
Exchange Commission or its staff thereunder).
10.
Effectiveness, Duration and
Termination of Agreement.
This Agreement shall become effective as of the
first date above written. This Agreement shall remain in effect for two years,
and thereafter shall continue automatically for successive annual periods,
provided that such continuance is specifically approved at least annually by (a)
the vote of the Corporation’s Board of Directors, or by the vote of a majority
of the outstanding voting securities of the Corporation and (b) the vote of a
majority of the Corporation’s Directors who are not parties to this Agreement or
“interested persons” (as such term is defined in Section 2(a)(19) of the
Investment Company Act) of any such party, in accordance with the requirements
of the Investment Company Act. This Agreement may be terminated at any time,
without the payment of any penalty, upon 60 days’ written notice, by the vote of
a majority of the outstanding voting securities of the Corporation, or by the
vote of the Corporation’s Directors or by the Adviser. This Agreement will
automatically terminate in the event of its “assignment” (as such term is
defined for purposes of Section 15(a)(4) of the Investment Company Act). The
provisions of Section 9 of this Agreement shall remain in full force and effect,
and the Adviser shall remain entitled to the benefits thereof, notwithstanding
any termination of this Agreement. Further, notwithstanding the termination or
expiration of this Agreement as aforesaid, the Adviser shall be entitled to any
amounts owed under Section 3 through the date of termination or expiration and
Section 9 shall continue in force and effect and apply to the Adviser and its
representatives as and to the extent applicable.
11.
Notices.
Any notice
under this Agreement shall be given in writing, addressed and delivered or
mailed, postage prepaid, to the other party at its principal
office.
12.
Amendments.
This
Agreement may be amended by mutual consent, but the consent of the Corporation
must be obtained in conformity with the requirements of the Investment Company
Act.
13.
Entire Agreement; Governing
Law.
This Agreement contains the entire agreement of the parties and
supersedes all prior agreements, understandings and arrangements with respect to
the subject matter hereof. This Agreement shall be construed in accordance with
the laws of the State of New York and the applicable provisions of the
Investment Company Act. To the extent the applicable laws of the State of New
York, or any of the provisions herein, conflict with the provisions of the
Investment Company Act, the latter shall control.
* * * *
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed on the date above written.
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GC
ADVISORS LLC
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Name:
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Title:
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SCHEDULE
A
Calculation
and Payment of Incentive Fee
The
Incentive Fee is calculated as provided below and payable quarterly in arrears
(or, upon termination of the Investment Advisory Agreement, as of the
termination date) (a “Performance Period”). The Adviser is not required to
reimburse the Corporation for any part of an Incentive Fee it receives that was
based on accrued interest that the Corporation never actually
receives.
Limitation
on Incentive Fee
Each
quarterly Incentive Fee payable on the Income and Capital Gains Incentive Fee
Calculation (as defined below) is subject to a cap (the “Incentive Fee
Cap”). The Incentive Fee Cap in any quarter is the difference between
(a) 20.0% of Cumulative Pre-Incentive Fee Net Income (as defined below) and (b)
cumulative incentive fees of any kind paid to the Adviser by the Corporation
since the effective date of the Corporation’s election to become a business
development company. To the extent the Incentive Fee Cap is zero or a negative
value in any quarter, no incentive fee would be payable in that quarter.
“Cumulative Pre-Incentive Fee Net Income” is equal to the sum of (a)
Pre-Incentive Fee Net Investment Income (as defined below) for each period since
the effective date of the Corporation’s election to become a business
development company and (b) cumulative aggregate realized capital gains,
cumulative aggregate realized capital losses, cumulative aggregate unrealized
capital depreciation and cumulative aggregate unrealized capital appreciation
since the effective date of the Corporation’s election to become a business
development company. “Pre-Incentive Fee Net Investment Income” means
interest income, dividend income and any other income (including any other fees
such as commitment, origination, structuring, diligence and consulting fees or
other fees that the Corporation receives from portfolio companies but excluding
fees for providing managerial assistance) accrued during the calendar quarter,
minus operating expenses for the calendar quarter (including the base management
fee, taxes, any expenses payable under the Investment Advisory Agreement and the
Administration Agreement, and any interest expense and dividends paid on any
outstanding preferred stock, but excluding the incentive fee). Pre-Incentive Fee
Net Investment Income includes, in the case of investments with a deferred
interest feature such as market discount, debt instruments with payment in kind
(“PIK”) interest, preferred stock with PIK dividends and zero coupon securities,
accrued income that the Corporation has not yet received in cash.
Income and Capital Gains Incentive Fee
Calculation
The
income and capital gains incentive fee calculation (the “Income and Capital
Gains Incentive Fee Calculation”) has two parts: (i) the income component; and
(ii) the capital gains component.
Income
Component
The
income component is calculated quarterly in arrears based on the Corporation’s
Pre-Incentive Fee Net Investment Income for the immediately preceding calendar
quarter.
Pre-Incentive
Fee Net Investment Income does not include any realized capital gains, realized
capital losses or unrealized capital appreciation or
depreciation. Once calculated, Pre-Incentive Fee Net Investment
Income, expressed as a rate of return on the value of the Corporation’s net
assets (defined as total assets less indebtedness and before taking into account
any incentive fees payable during the period) at the end of the immediately
preceding calendar quarter, is compared to a fixed “hurdle rate” of 2.0%
quarterly. The Pre-Incentive Fee Net Investment Income used to
calculate this part of the incentive fee is also included in the amount of the
Corporation’s total assets (other than cash and cash equivalents but including
assets purchased with borrowed funds) used to calculate the 1.375% base
management fee.
The
income component of the Income and Capital Gains Incentive Fee Calculation with
respect to the Corporation’s Pre-Incentive Fee Net Investment Income is
calculated quarterly, in arrears, as follows:
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zero
in any calendar quarter in which the Pre-Incentive Fee Net Investment
Income does not exceed the hurdle
rate;
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100.0%
of the Corporation’s Pre-Incentive Fee Net Income with respect to that
portion of the Pre-Incentive Fee Net Investment Income, if any, that
exceeds the hurdle rate but is less than 2.5% in any calendar quarter;
and
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20.0%
of the amount of the Corporation’s Pre-Incentive Fee Net Investment
Income, if any, that exceed 2.5% in any calendar
quarter.
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These
calculations are adjusted for any share issuances or repurchases during the
quarter.
Capital Gains
Component
The
second part of the Income and Capital Gains Incentive Fee Calculation equals (a)
20.0% of the Corporation’s Incentive Fee Capital Gains (as defined below), if
any, calculated in arrears as of the end of each calendar year (or upon
termination of the Investment Advisory Agreement, as of the termination date),
commencing with the year ending December 31, 2010 less (b) the aggregate amount
of any previously paid capital gain incentive fees. “Incentive Fee
Capital Gains” equals the sum of (1) the Corporation’s realized capital gains on
a cumulative positive basis from the date of the Corporation’s election to
become a business development company through the end of each calendar year, (2)
all realized capital losses on a cumulative basis, and (3) all unrealized
capital depreciation on a cumulative basis.
The
cumulative aggregate realized capital gains are calculated as the sum of the
differences, if positive, between (a) the net sales price of each investment in
the Corporation’s
portfolio
when sold and (b) the accreted or amortized cost basis of such
investment. The cumulative aggregate realized capital losses are
calculated as the sum of the amounts by which (a) the net sales price of each
investment in the Corporation’s portfolio when sold is less than (b) the
accreted or amortized cost basis of such investment. The aggregate
unrealized capital depreciation is calculated as the sum of the differences, if
negative, between (a) the valuation of each investment in the Corporation’s
portfolio as of the applicable Capital Gains Fee calculation date and (b) the
accreted or amortized cost basis of such investment.
CERTIFICATE
OF APPOINTMENT OF
AMERICAN
STOCK TRANSFER
&
TRUST COMPANY as
TRANSFER
AGENT
BY
Golub
Capital BDC, Inc. (the “Company”)
(
name of
corporation
)
a
Delaware
(
state of
corporation
)
Corporation
(
description of entity – e.g.,
corporation, partnership
)
The
Company is authorized to issue the following shares/units:
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Par
Value
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Number
of Shares/Units Authorized
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Common
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$
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0.001
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100,000,000
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Preferred
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$
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0.001
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1,000,000
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The
address of the Company to which Notices may be sent is:
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150
South Wacker Drive
Suite
800
Chicago,
Illinois 60606
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The name
and address of legal counsel for the Company is:
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Dechert
LLP
c/o
Thomas Friedmann
1775
I Street, N.W.
Washington,
DC 20006
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Attached
are true copies of the certificate of incorporation and bylaws (or such other
comparable documents for non-corporate entities), as amended, of the
Company.
If any
provision of the certificate of incorporation or by-laws of the Corporation, any
court or administrative order, or any other document, affects any transfer
agency or registrar function or responsibility relating to the shares, attached
is a statement of each such provision.
All
shares issued and outstanding as of the date hereof, or to be issued during the
term of this appointment, are/shall be duly authorized, validly issued, fully
paid and non-assessable. All such shares are (or, in the case of shares that
have not yet been issued, will be) duly registered under the Securities Act of
1933 and the Securities Act of 1934. Any shares not so registered were or shall
be issued or transferred in a transaction or series of transactions exempt from
the registration provisions of the relevant Act, and in each such issuance or
transfer, the Corporation was or shall be so advised by its legal counsel and
all shares issued or to be issued bear or shall bear all appropriate
legends.
American
Stock Transfer & Trust Company, LLC (“AST”) is hereby appointed as transfer
agent and registrar for the shares/units of the Company set forth above, in
accordance with the general practices of AST and its regulations set forth in
the pamphlet entitled Regulations of American Stock Transfer & Trust
Company, a copy of which we have received and reviewed.
The
initial term of this Certificate of Appointment shall be three (3) years from
the date of this Certificate of Appointment and the appointment shall
automatically be renewed for further three years successive terms without
further action of the parties, unless written notice is provided by either party
at least 90 days prior to the end of the initial or any subsequent three year
period. The term of this appointment shall be governed in accordance with this
paragraph, notwithstanding the cessation of active trading in the capital stock
of the Company.
The
Corporation will advise AST promptly of any change in any information contained
in this Certificate by a supplemental Certificate or otherwise in
writing.
WITNESS
my hand this 9
th
day of
March, 2010.
Name:
David B. Golub
Title:
Chief Executive Officer
ADMINISTRATION
AGREEMENT
AGREEMENT
(this “Agreement”) made as of this __ day of ___________, 2010, by and between
Golub Capital BDC, Inc., a Delaware corporation (hereinafter referred to as the
“Company”), and GC Service Company, LLC, a Delaware limited liability company
(the “Administrator”).
W I T N E S S E T
H:
WHEREAS,
the Company is a newly formed closed-end non-diversified management investment
company that has filed a notice with the Securities and Exchange Commission that
it intends to elect to treated as a business development company under the
Investment Company Act of 1940 (the “Investment Company Act”);
WHEREAS,
the Company desires to retain the Administrator to provide administrative
services to the Company in the manner and on the terms hereinafter set forth;
and
WHEREAS,
the Administrator is willing to provide administrative services to the Company
on the terms and conditions hereafter set forth.
NOW,
THEREFORE, in consideration of the premises and the covenants hereinafter
contained and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the Company and the Administrator
hereby agree as follows:
1.
Duties of the
Administrator
(a)
Employment of
Administrator
. The Company hereby employs the Administrator to act as
administrator of the Company, and to furnish, or arrange for others to furnish,
the administrative services, personnel and facilities described below, subject
to review by and the overall control of the Board of Directors of the Company,
for the period and on the terms and conditions set forth in this Agreement. The
Administrator hereby accepts such employment and agrees during such period to
render, or arrange for the rendering of, such services and to assume the
obligations herein set forth subject to the reimbursement of costs and expenses
provided for below. The Administrator and such others shall for all purposes
herein be deemed to be independent contractors and shall, unless otherwise
expressly provided or authorized herein, have no authority to act for or
represent the Company in any way or otherwise be deemed agents of the
Company.
(b)
Services.
The
Administrator shall perform (or oversee, or arrange for, the performance of) the
administrative services necessary for the operation of the Company. Without
limiting the generality of the foregoing, the Administrator shall provide the
Company with office facilities, equipment, clerical, bookkeeping and record
keeping services at such facilities and such other services as the
Administrator, subject to review by the Board of Directors of the Company, shall
from time to time determine to be necessary or useful to perform its obligations
under this Agreement. The Administrator shall also, on behalf of the Company,
conduct relations with custodians, depositories, transfer agents, dividend
disbursing agents, other stockholder servicing agents, accountants, attorneys,
underwriters, brokers and dealers, corporate fiduciaries, insurers, banks and
such other persons in any such other capacity deemed to be necessary or
desirable.
The Administrator shall make reports to the Directors of its performance of
obligations hereunder and furnish advice and recommendations with respect to
such other aspects of the business and affairs of the Company as it shall
determine to be desirable; provided that nothing herein shall be construed to
require the Administrator to, and the Administrator shall not, provide any
advice or recommendation relating to the securities and other assets that the
Company should purchase, retain or sell or any other investment advisory
services to the Company. The Administrator shall be responsible for the
financial and other records that the Company is required to maintain and shall
prepare reports to stockholders, and reports and other materials filed with the
Securities and Exchange Commission (the “SEC”). The Administrator will provide
on the Company’s behalf significant managerial assistance to those portfolio
companies to which the Company is required to provide such assistance. In
addition, the Administrator will assist the Company in determining and
publishing the Company’s net asset value, oversee the preparation and filing of
the Company’s tax returns, and the printing and dissemination of reports to
stockholders of the Company, and generally oversee the payment of the Company’s
expenses and the performance of administrative and professional services
rendered to the Company by others.
2.
Records
The
Administrator agrees to maintain and keep all books, accounts and other records
of the Company that relate to activities performed by the Administrator
hereunder and, if required by the Investment Company Act, will maintain and keep
such books, accounts and records in accordance with that Act. In compliance with
the requirements of Rule 31a-3 under the Investment Company Act, the
Administrator agrees that all records which it maintains for the Company shall
at all times remain the property of the Company, shall be readily accessible
during normal business hours, and shall be promptly surrendered upon the
termination of the Agreement or otherwise on written request. The Administrator
further agrees that all records which it maintains for the Company pursuant to
Rule 31a-1 under the Investment Company Act will be preserved for the periods
prescribed by Rule 31a-2 under the Investment Company Act unless any such
records are earlier surrendered as provided above. Records shall be surrendered
in usable machine-readable form. The Administrator shall have the right to
retain copies of such records subject to observance of its confidentiality
obligations under this Agreement.
3.
Confidentiality
The
parties hereto agree that each shall treat confidentially the terms and
conditions of this Agreement and all information provided by each party to the
other regarding its business and operations. All confidential information
provided by a party hereto, including nonpublic personal information pursuant to
Regulation S-P of the SEC, shall be used by any other party hereto solely for
the purpose of rendering services pursuant to this Agreement and, except as may
be required in carrying out this Agreement, shall not be disclosed to any third
party, without the prior consent of such providing party. The foregoing shall
not be applicable to any information that is publicly available when provided or
thereafter becomes publicly available other than through a breach of this
Agreement, or that is required to be disclosed by any regulatory authority, any
authority or legal counsel of the parties hereto, by judicial or administrative
process or otherwise by applicable law or regulation.
4.
Compensation; Allocation of
Costs and Expenses
In full
consideration of the provision of the services of the Administrator, the Company
shall reimburse the Administrator for the costs and expenses incurred by the
Administrator in performing its obligations and providing personnel and
facilities hereunder. If requested to perform significant managerial assistance
to portfolio companies of the Company, the Administrator will be paid an
additional amount based on the services provided, which shall not exceed the
amount the Company receives from the portfolio companies for providing this
assistance.
The
Company will bear all costs and expenses that are incurred in its operation and
transactions and not specifically assumed by the Company’s investment adviser
(the “Adviser”), pursuant to that certain Investment Advisory Management
Agreement, dated as of [________] by and between the Company and the Adviser.
Costs and expenses to be borne by the Company include, but are not limited to,
those relating to: organization and offering; calculating the Company’s net
asset value (including the cost and expenses of any independent valuation firm);
expenses incurred by the Adviser payable to third parties, including agents,
consultants or other advisors, in monitoring financial and legal affairs for the
Company and in monitoring the Company’s investments and performing due diligence
on its prospective portfolio companies or otherwise relating to, or associated
with, evaluating and making investments; interest payable on debt, if any,
incurred to finance the Company’s investments and expenses related to
unsuccessful portfolio acquisition efforts; offerings of the Company’s common
stock and other securities; investment advisory and management fees;
administration fees payable under this Agreement; fees payable to third parties,
including agents, consultants or other advisors, relating to, or associated
with, evaluating and making investments, including costs associated with meeting
potential financial sponsors; transfer agent
,
dividend agent
and custodial fees and expenses; federal and state
registration fees; all costs of registration and listing the Company’s shares on
any securities exchange; federal, state and local taxes; independent Directors’
fees and expenses; costs of preparing and filing reports or other documents
required by the SEC
or other
regulators
; costs of any reports, proxy statements or other notices to
stockholders, including printing costs; costs associated with individual or
groups of stockholders; the Company’s allocable portion of the fidelity bond,
directors and officers/errors and omissions liability insurance, and any other
insurance premiums; direct costs and expenses of administration, including
printing, mailing, long distance telephone, copying, secretarial and other
staff, independent auditors and outside legal costs; and all other expenses
incurred by the Company or the Administrator in connection with administering
the Company’s business, including payments under this Agreement based upon the
Company’s allocable portion (subject to the review and approval of our
independent directors) of the Administrator’s overhead in performing its
obligations under this Agreement, including rent and the allocable portion of
the cost of the Company’s chief compliance officer and chief financial officer
and their respective staffs.
To the
extent the Administrator outsources any of its functions, the Company will pay
the fees associated with such functions on a direct basis without profit to the
Administrator.
5.
Limitation of Liability of
the Administrator; Indemnification
The
Administrator (and its officers, managers, partners, agents, employees,
controlling persons, members, and any other person or entity affiliated with the
Administrator, including without limitation its sole member) shall not be liable
to the Company for any action taken or omitted to be taken by the Administrator
in connection with the performance of any of its duties or obligations under
this Agreement or otherwise as administrator for the Company, and the
Company
shall indemnify, defend and protect the Administrator (and its officers,
managers, partners, agents, employees, controlling persons, members, and any
other person or entity affiliated with the Administrator, including without
limitation the Adviser, each of whom shall be deemed a third party beneficiary
hereof) (collectively, the “Indemnified Parties”) and hold them harmless from
and against all damages, liabilities, costs and expenses (including reasonable
attorneys’ fees and amounts reasonably paid in settlement) incurred by the
Indemnified Parties in or by reason of any pending, threatened or completed
action, suit, investigation or other proceeding (including an action or suit by
or in the right of the Company or its security holders) arising out of or
otherwise based upon the performance of any of the Administrator’s duties or
obligations under this Agreement or otherwise as administrator for the Company.
Notwithstanding the preceding sentence of this Paragraph 5 to the contrary,
nothing contained herein shall protect or be deemed to protect the Indemnified
Parties against or entitle or be deemed to entitle the Indemnified Parties to
indemnification in respect of, any liability to the Company or its security
holders to which the Indemnified Parties would otherwise be subject by reason of
willful misfeasance, bad faith or negligence in the performance of the
Administrator’s duties or by reason of the reckless disregard of the
Administrator’s duties and obligations under this Agreement (to the extent
applicable, as the same shall be determined in accordance with the Investment
Company Act and any interpretations or guidance by the SEC or its staff
thereunder).
6.
Activities of the
Administrator
The
services of the Administrator to the Company are not to be deemed to be
exclusive, and the Administrator and each affiliate is free to render services
to others. It is understood that directors, officers, employees and stockholders
of the Company are or may become interested in the Administrator and its
affiliates, as directors, officers, members, managers, employees, partners,
stockholders or otherwise, and that the Administrator and directors, officers,
members, managers, employees, partners and stockholders of the Administrator and
its affiliates are or may become similarly interested in the Company as
stockholders or otherwise.
7.
Duration and Termination of
this Agreement
This
Agreement shall become effective as of the date hereof, and shall remain in
force with respect to the Company for two years thereafter, and thereafter
continue from year to year, but only so long as such continuance is specifically
approved at least annually by (i) the Board of Directors of the Company and
(ii) a majority of those Directors “interested persons” (as defined in the
Investment Company Act) with respect to this Agreement.
This
Agreement may be terminated at any time, without the payment of any penalty, by
the Company, or by the Administrator, upon 60 days’ written notice to the other
party. This Agreement may not be assigned by a party without the consent of the
other party.
8.
Amendments
to this Agreement
This
Agreement may be amended pursuant to a written instrument by mutual consent of
the parties.
9.
Governing
Law
This
Agreement shall be construed in accordance with laws of the State of New York
and the applicable provisions of the Investment Company Act, if any. To the
extent that the applicable laws of the State of New York, or any of the
provisions herein, conflict with the applicable provisions of the Investment
Company Act, if any, the latter shall control.
10.
Entire
Agreement
This
Agreement contains the entire agreement of the parties and supersedes all prior
agreements, understandings and arrangements with respect to the subject matter
hereof.
11.
Notices
Any
notice under this Agreement shall be given in writing, addressed and delivered
or mailed, postage prepaid, to the other party at its principal
office.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed on the date above written.
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GC
SERVICE COMPANY, LLC
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Name:
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Title:
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TRADEMARK LICENSE
AGREEMENT
This
TRADEMARK LICENSE AGREEMENT (this “
Agreement
”) is made
and effective as of
[ ],
2010 (the “
Effective
Date
”), by and between Golub Capital Management LLC, a Delaware limited
liability company (the “
Licensor
”), and Golub
Capital BDC, Inc., a corporation organized under the laws of the State of
Delaware (the “
Licensee
”) (each a
“
party
,” and
collectively, the “
parties
”).
RECITALS
WHEREAS,
Licensee is a newly organized, externally managed, closed-end, non-diversified
management investment company that has filed notice with the Securities and
Exchange Commission that it intends to elect to be treated as a business
development company under the Investment Company Act of 1940, as amended (the
“
1940
Act
”);
WHEREAS,
Licensor is an affiliate of Golub Capital Incorporated, a Delaware corporation
(“
GCI
”), which,
together with its affiliates, provides investment management, investment
consultation and investment advisory services;
WHEREAS,
GCI and its affiliates, including GC Advisors LLC, a Delaware limited liability
company (“
Adviser
”), have used
the mark “Golub Capital” (the “
Licensed Mark
”) in
the United States of America (the “
Territory
”) in
connection with the investment management, investment consultation and
investment advisory services they provide;
WHEREAS,
the Licensee is entering into an investment advisory and management agreement
with Adviser (the “
Advisory Agreement
”),
wherein Licensee shall engage Adviser to act as the investment adviser to the
Licensee;
WHEREAS,
it is intended that Adviser be a third party beneficiary of this Agreement;
and
WHEREAS,
Licensee desires to use the Licensed Mark as part of its corporate name and in
connection with the operation of its business, and Licensor is willing to grant
Licensee a license to use the Licensed Mark, subject to the terms and conditions
of this Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
ARTICLE
1.
LICENSE
GRANT
1.1.
License
. Subject to
the terms and conditions of this Agreement, Licensor hereby grants to Licensee,
and Licensee hereby accepts from Licensor, a personal, non-exclusive,
royalty-free right and license to use the Licensed Mark solely and exclusively
as a component of Licensee’s own corporate name and in connection with marketing
the
investment
management, investment consultation and investment advisory services that
Adviser may provide to Licensee. During the term of this Agreement, Licensee
shall use the Licensed Mark only to the extent permitted under this License, and
except as provided above, neither Licensee nor any affiliate, owner, director,
officer, employee or agent thereof shall otherwise use the Licensed Mark or any
derivative thereof in the Territory without the prior express written consent of
Licensor in its sole and absolute discretion and shall not use the Licensed Mark
for any purpose outside the Territory. All rights not expressly granted to
Licensee hereunder shall remain the exclusive property Licensor.
1.2.
Nothing
in this Agreement shall preclude Licensor or any of its successors or assigns
from using or permitting other entities to use the Licensed Mark, whether or not
such entity directly or indirectly competes or conflicts with Licensee’s
business in any manner.
ARTICLE
2.
COMPLIANCE
2.1.
Quality Control
. In
order to preserve the inherent value of the Licensed Mark, Licensee agrees to
use reasonable efforts to ensure that it maintains the quality of the Licensee’s
business and the operation thereof equal to the standards prevailing in the
operation of Licensee’s business as of the date of this
Agreement. The Licensee further agrees to use the Licensed Mark in
accordance with such quality standards as may be reasonably established by
Licensor and communicated to the Licensee from time to time in writing, or as
may be agreed to by Licensor and the Licensee from time to time in
writing.
2.2.
Compliance With Laws
.
Licensee agrees that the business operated by it in connection with the Licensed
Mark shall comply with all laws, rules, regulations and requirements of any
governmental body in the Territory or elsewhere as may be applicable to the
operation, marketing, and promotion of the business and shall notify Licensor of
any action that must be taken by Licensee to comply with such law, rules,
regulations or requirements.
2.3.
Notification of
Infringement
. Each party shall immediately notify the other party and
provide to the other party all relevant background facts upon becoming aware of
(a) any registrations of, or applications for registration of, marks in the
Territory that do or may conflict with the Licensor’s rights in the Licensed
Mark or the rights granted to the Licensee under this Agreement, (b) any
infringements or misuse of the Licensed Mark in the Territory by any third party
(“
Third Party
Infringement
”), or (c) any claim that Licensee’s use of the Licensed Mark
infringes the intellectual property rights of any third party in the Territory
(“
Third Party
Claim
”). Licensor shall have the exclusive right, but not the
obligation, to prosecute, defend and/or settle in its sole discretion, all
actions, proceedings and claims involving any Third Party Infringement or Third
Party Claim, and to take any other action that it deems necessary or proper for
the protection and preservation of its rights in the Licensed Mark. Licensee
shall cooperate with Licensor in the prosecution, defense or settlement of such
actions, proceedings or claims.
ARTICLE
3.
REPRESENTATIONS AND
WARRANTIES
3.1.
Licensee
accepts this license on an “as is” basis. Licensee acknowledges that
Licensor makes no explicit or implicit representation or warranty as to the
registrability, validity, enforceability, ownership of the Licensed Mark, or as
to Licensee’s ability to use the Licensed Mark without infringing or otherwise
violating the rights of others, and Licensor has no obligation to indemnify
Licensee with respect to any claims arising from Licensee’s use of the Licensed
Mark, including without limitation any Third Party Claim.
3.2.
Mutual
Representations
. Each party hereby represents and warrants to the other
party as follows:
(a)
Due Authorization
.
Such party is a corporation duly incorporated and in good standing as of the
Effective Date, and the execution, delivery and performance of this Agreement by
such party have been duly authorized by all necessary action on the part of such
party.
(b)
Due Execution
. This
Agreement has been duly executed and delivered by such party and, upon due
authorization, execution and delivery of this Agreement by the other party,
constitutes a legal, valid and binding obligation of such party, enforceable
against such party in accordance with its terms.
(c)
No Conflict.
Such
party’s execution, delivery and performance of this Agreement do not: (i)
violate, conflict with or result in the breach of any provision of the charter
or by-laws (or similar organizational documents) of such party; (ii) conflict
with or violate any governmental order applicable to such party or any of its
assets, properties or businesses; or (iii) conflict with, result in any breach
of, constitute a default (or event which with the giving of notice or lapse of
time, or both, would become a default) under, require any consent under, or give
to others any rights of termination, amendment, acceleration, suspension,
revocation or cancellation of any contract, agreement, lease, sublease, license,
permit, franchise or other instrument or arrangement to which it is a
party.
ARTICLE
4.
TERM AND
TERMINATION
4.1.
Term
. This Agreement
shall expire if the Adviser or one of its affiliates ceases to serve as investment adviser to
the Licensee. This Agreement shall be terminable by Licensor at
any time and in its sole discretion in the event that Licensor or Licensee
receives notice of any Third Party Claim arising out of Licensee’s use of the
Licensed Mark; by Licensor or Licensee upon sixty (60) days’ written notice
to the other party; or by Licensee at any time in the event Licensee assigns
or attempts to assign or sublicense this Agreement or any of Licensee’s rights
or duties hereunder without the prior written consent of Licensor.
4.2.
Upon Termination
.
Upon expiration or termination of this Agreement, all rights granted to Licensee
under this Agreement with respect to the Licensed Mark shall cease, and Licensee
shall immediately delete the term “Golub Capital” from its corporate name and
shall discontinue all other use of the Licensed Mark. For twenty-four
(24) months following termination of this Agreement, Licensee shall specify on
all public-facing materials in a prominent place and in prominent typeface that
Licensee is no longer operating under the Licensed Mark, is no longer associated
with Licensor, or such other notice as may be deemed necessary by Licensor in
its sole discretion in its prosecution, defense, and/or settlement of any Third
Party Claim.
ARTICLE
5.
MISCELLANEOUS
5.1.
Third Party
Beneficiaries
. The parties agree that Adviser shall be a third party
beneficiary of this Agreement, and shall have the rights and protections
provided to Licensee under this Agreement. Nothing in this Agreement,
either express or implied, is intended to or shall confer upon any third party
other than Adviser any legal or equitable right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
5.2.
Assignment
. Licensee
shall not sublicense, assign, pledge, grant or otherwise encumber or transfer to
any third party all or any part of its rights or duties under this Agreement, in
whole or in part, without the prior written consent from Licensor, which consent
Licensor may grant or withhold in its sole and absolute discretion. Any
purported transfer without such consent shall be void
ab initio
.
5.3.
Independent
Contractor
. Neither party shall have, or shall represent that it has, any
power, right or authority to bind the other party to any obligation or
liability, or to assume or create any obligation or liability on behalf of the
other party.
5.4.
Notices
. All notices,
requests, claims, demands and other communications hereunder shall be in writing
and shall be given or made (and shall be deemed to have been duly given or made
upon receipt) by delivery in person, by overnight courier service (with
signature required), by facsimile or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties at the following
addresses (or such other address as the parties may provide to each other by
written Notice):
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If
to Licensor:
Golub
Capital Management LLC
150
South Wacker Drive, Suite 800
Chicago,
Illinois 60606
Tel.
No.: 312.205.5050
Fax
No.:
Attn:
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If
to Licensee:
Golub
Capital BDC, Inc.
150
South Wacker Drive, Suite 800
Chicago,
Illinois 60606
Tel.
No.: 312.205.5050
Fax
No.:
Attn:
Chief Executive Officer
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5.5.
Governing Law
. This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York. The parties unconditionally and
irrevocably
consent to the exclusive jurisdiction of the courts located in the State of New
York and waive any objection with respect thereto, for the purpose of any
action, suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
5.6.
Amendment
. This
Agreement may not be amended or modified except by an instrument in writing
signed by each party hereto.
5.7.
No Waiver
. The
failure of either party to enforce at any time for any period the provisions of
or any rights deriving from this Agreement shall not be construed to be a waiver
of such provisions or rights or the right of such party thereafter to enforce
such provisions, and no waiver shall be binding unless executed in writing by
all parties hereto.
5.8.
Severability
. If any
term or other provision of this Agreement is invalid, illegal or incapable of
being enforced by any law or public policy, all other terms and provisions of
this Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such determination
that any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby are consummated as originally contemplated to the greatest extent
possible.
5.9.
Headings
. The
descriptive headings contained in this Agreement are for convenience of
reference only and shall not affect in any way the meaning or interpretation of
this Agreement.
5.10.
Counterparts
. This
Agreement may be executed in one or more counterparts, each of which when
executed shall be deemed to be an original instrument and all of which taken
together shall constitute one and the same agreement.
5.11.
Entire Agreement
.
This Agreement constitutes the entire agreement of the parties with respect to
the subject matter hereof and supersedes all prior agreements and undertakings,
both written and oral, between the parties with respect to such subject
matter.
IN
WITNESS WHEREOF, each party has caused this Agreement to be executed as of the
Effective Date by its duly authorized officer.
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LICENSOR:
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GOLUB
CAPITAL MANAGEMENT LLC
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By:
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Name:
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Title:
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GOLUB
CAPITAL BDC, INC.
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By:
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Name:
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Title:
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ACKNOWLEDGED
AND AGREED TO
AS OF
_______________________, 2010
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GC
ADVISORS LLC
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By:
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Name:
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Title:
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SUBSCRIPTION
AGREEMENT
Golub
Capital BDC, INC.
Ladies
and Gentlemen:
The terms
of this subscription agreement (the “
Agreement
”) are made
and entered into between Golub Capital BDC, Inc., a Delaware corporation (the
“
Company
”),
and (the “
Investor
”).
In order
to subscribe for shares of common stock, par value $0.001 of the Company (the
“
Shares
”), a
prospective Investor must complete and execute this Agreement in accordance with
the instructions set forth in this Agreement. This Agreement in its
entirety, together with the appropriate payment as described herein, should then
be returned to:
Golub
Capital BDC, Inc.
150 South
Wacker Drive, Suite 800
Chicago,
Illinois 60606
Attn: David
B. Golub
Subscriptions
from suitable prospective Investors will be accepted at the sole discretion of
the Company. If your subscription is not accepted, we shall return
your payment, without interest.
In
connection with the proposed purchase by the Investor of Shares pursuant to
Regulation D (“
Regulation D
”) under
the Securities Act of 1933, as amended (the “
Securities Act
”), the
Investor agrees and acknowledges, on its own behalf or on behalf of each account
for which it is acquiring Shares, and makes the representations and agreements,
on its own behalf or on behalf of each account for which it is acquiring Shares,
set forth in Sections 1 through 4 and Sections 9 through 28 of this
Agreement:
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Name
in which the Shares are to be Registered:
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Address:
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Social
Security Number
or
Taxpayer Identification Number, as applicable:
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Subscription
Amount: No. of
Shares
Dollars
Please
make payment by check or bank draft, money order or wire transfer to Golub
Capital BDC, Inc. for the amount of your subscription.
IF YOU
ARE ACTING FOR MORE THAN ONE INVESTOR, PLEASE COMPLETE THE FORM ATTACHED HERETO
AS ANNEX A FOR EACH OF THOSE INVESTORS.
The
Investor(s) has/have provided a completed and signed Substitute IRS Form W-9 as
set forth in Section 28 of this Agreement. This Agreement has been
executed by the Investor(s) or a duly authorized representative of the
Investor(s), as of the date indicated below.
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Date:
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INVESTOR
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By:
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Name:
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Title:
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Accepted:
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GOLUB
CAPITAL BDC, INC.
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By:
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Name: David
B. Golub
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Title: Chief
Executive Officer
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The
Subscription
1. The
undersigned, desiring to become an Investor in the Company, hereby subscribes
for and agrees to purchase Shares in the Company.
2. In
exchange for the Shares subscribed for herein, the undersigned hereby
irrevocably commits to pay $15.00 per Share to the Company on the terms and
conditions set forth in this Agreement.
3. Upon
signing the signature page of this Agreement by or on behalf of each named
Investor, (i) the Agreement shall be validly executed and delivered to such
Investor and shall be valid, binding and enforceable against such Investor in
accordance with the terms and subject to the conditions set forth in this
Agreement, subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization and similar laws affecting creditors’ rights generally and
equitable principles of general applicability, and (ii) such Investor
irrevocably subscribes for and agrees to purchase from the Company the number of
Shares set forth next to the Investor’s name on page 1 of this
Agreement. Notwithstanding the foregoing, any subscription may be
revoked by the Company until delivery of such document or prior to the
fulfillment of the condition set forth in Section 4.
4. The
Investor understands and agrees that the Company reserves the right to accept or
reject the Investor’s subscription for any reason or for no reason, in whole or
in part, at any time prior to its acceptance by the Company and such
subscription shall be deemed to be accepted by the Company only when this
Agreement is signed by a duly authorized person by or on behalf of the
Company. This Agreement may be signed in counterpart
form.
Representations,
Warranties and Covenants of the Company
5. The
Company has been duly organized as a corporation and is validly existing and in
good standing under the laws of the State of Delaware. The Company
has full right, power and authority to enter into this Agreement and to perform
its obligations hereunder.
6. This
Agreement has been duly authorized by the Company and, when executed and
delivered by the Company, will constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, subject
to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization and
similar laws affecting creditors’ rights generally and equitable principles of
general applicability.
7. The
execution and delivery by the Company of, and the performance by the Company of
its obligations under, this Agreement will not contravene any provision of
applicable law or the organizational documents of the Company or any agreement
of other instrument binding upon the Company, or any judgment, order or decree
of any governmental body, agency or court having jurisdiction over the Company,
and no consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for performance by the Company of its
obligations under this Agreement, except where failure to do so would not
reasonably be expected to have a material adverse effect.
8. All
of the Shares are duly authorized, validly issued, fully paid and nonassessable,
no holder thereof is or will be subject to personal liability by reason of being
such a holder, and such Shares are not subject to any preemptive
rights.
Representations,
Warranties and Covenants of each Investor
9. The
Investor is a legal entity of the type reflected in Annex A hereto and is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization. The Investor has
full right, power and authority to enter into this Agreement and to perform its
obligations hereunder.
10. Any
information furnished to the Company by the Investor, including with respect to
the Investor’s financial position, background and investment experience, is
true, correct and complete in all material respects as of the date of this
Agreement.
11. The
execution and delivery by the Investor of, and the performance by the Investor
of its obligations under, this Agreement will not contravene any provision of
applicable law or the organizational documents of the Investor or any agreement
of other instrument binding upon the Investor, or any judgment, order or decree
of any governmental body, agency or court having jurisdiction over the Investor,
and no consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for performance by the Investor of its
obligations under this Agreement, except where failure to do so would not
reasonably be expected to have a material adverse effect.
Conditions
12. The
obligations of the Company under this Agreement shall be subject to (i) the
Company’s acceptance of this Agreement. If this condition is not
fulfilled, (i) this Agreement shall terminate and (ii) neither party shall have
any claim against the other party for costs, damages, compensation or
otherwise.
Accredited
Investor and Qualified Purchaser
13. The
Investor certifies that it is an “accredited investor” as such term is defined
in Regulation D. Annex B, as completed by the Investor, sets
forth the basis on which the Investor satisfies accredited investor
status. The Investor is a “qualified purchaser” as defined for
purposes of Section 3(c)(7) of the Investment Company Act of 1940, as amended
(the “
Investment Company Act
”),
and a “qualified eligible person” under Commodity Futures Trading Commission
Rule 4.7. Annex C, as completed by the Investor, sets forth the basis
on which the Investor satisfies qualified purchaser and qualified eligible
person status.
14. The
Investor is knowledgeable, sophisticated and experienced in business and
financial matters, and it fully understands the limitations on ownership, sale,
transfer or other disposition of the Shares. The Investor is able to
bear the economic risk of its investment in the Shares and is currently able to
afford the complete loss of such investment. The Investor is aware
that there are substantial risks incident to the purchase of the
Shares.
Transfer
Restrictions
15. The
Investor understands and agrees that the Shares are being offered in a
transaction not involving any public offering within the United States within
the meaning of the Securities Act; that the Shares have not been registered
under the Securities Act. The Investor agrees that, if in the future
it decides to offer, resell, pledge or otherwise transfer such Shares (or any
interest therein), such Shares or interest therein will be offered, resold,
pledged or otherwise transferred in a transaction exempt from, or not subject
to, the registration requirements of the Securities Act or pursuant to a
registration statement declared effective by the Securities and Exchange
Commission (the “
SEC
”).
16. The
Investor agrees that any certificate representing Shares shall bear a legend
stating the foregoing transfer restrictions, which restrictions shall terminate
only in accordance with the terms of such legend.
17. Each
of the foregoing restrictions is subject to any requirement of law that the
disposition of the Investor’s property or the property of such investor account
or accounts on behalf of which the Investor holds the Shares be at all times
within the control of the Investor or of such accounts and subject to compliance
with any applicable federal and state securities laws.
The
Offering
18. The
Investor acknowledges that no materials relating to the sale of the Shares have
been subject to review, comment or approval by the staff of the SEC or any state
securities commission.
19. The
Investor is not purchasing the Shares with a view to, or for offer or sale in
connection with, any distribution thereof (within the meaning of the Securities
Act) that would be in violation of the securities laws of the United States or
any state thereof. The Investor has a pre-existing relationship with
the Company or its affiliates.
20. The
party signing this Agreement is acquiring the Shares for its own account, as an
Investor, or for an Investor (which is itself an accredited investor, qualified
purchaser and qualified eligible person) as to which the party signing this
Agreement exercises sole investment discretion and is authorized to make the
representations, and enter into the agreements, contained in this
Agreement. The party signing this Agreement has indicated herein
whether it is acquiring the Shares for its own account, as an Investor, or for
the account of one or more Investors.
21. The
Investor has had access to all information that it believes is necessary,
sufficient or appropriate in connection with its purchase of the Shares, it has
been afforded an opportunity to ask questions concerning the terms and
conditions of the offering and sale of the Shares, it has had all such questions
answered to its satisfaction, it has been supplied all additional information as
it has requested and, after being advised by persons deemed appropriate by the
Investor concerning this Agreement and the transactions contemplated hereby, it
has made an independent decision to purchase the Shares based on information it
has determined to be adequate to verify the accuracy of any other information
that the Investor deems relevant to making an investment in the
Shares.
22. The
Investor became aware of the offering of the Shares by the Company, and the
Shares were offered to the Investor, through direct contact between the Investor
and the Company. The Investor did not become aware of, nor were the
Shares offered to the Investor by any other means, including, in each case, by
any form of general solicitation or general advertising. In making
the decision to purchase the Shares, the Investor relied solely on information
obtained by the Investor directly from the Company as a result of any inquiries
by the Investor or one or more of the Investor’s advisors.
General
23. The
Investor acknowledges that the Company and its affiliates and others will rely
on the acknowledgments, representations and warranties contained in this
Agreement as a basis for exemption of the sale of the Shares under the
Securities Act and under the securities laws of all applicable states and for
other purposes. Each party signing this Agreement agrees to notify
the Company promptly if any of the acknowledgments, representations or
warranties set forth in this Agreement are no longer accurate.
24. The
Company and its affiliates are irrevocably authorized to produce this Agreement
or a copy hereof to any interested party in any administrative or legal
proceeding or official inquiry with respect to the matters covered
hereby.
25. All
notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered to the Company
at the address set forth below or, if to the Investors, at the addresses set
forth on the first page hereof or in Annex A, as applicable, or at such other
address as the Investors shall from time to time designate in writing to the
Company. Each such notice, request or other communication shall be
effective (i) if given by facsimile, when such facsimile is transmitted to the
facsimile number set forth below, page one or on Annex A, as applicable, if such
facsimile is transmitted on a business day, and if not, then on the next
business day thereafter, or (ii) if given by mail, three (3) days after mailed
by registered or certified mail (return receipt requested) or (c) if given by
express courier, on the day delivered by an express courier (with confirmation
by recipient) to the following addresses:
Golub
Capital BDC, Inc.
150 South
Wacker Drive, Suite 800
Chicago,
Illinois 60606
Facsimile: 312-[___]-[____]
Attn: David
B. Golub
26. This
Agreement contains the entire agreement between the parties hereto with respect
to the matters contemplated herein and supersedes all prior agreements or
understandings among the parties related to such matters.
27. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware.
28. The
Investor agrees to provide, together with this completed and signed Agreement, a
completed and signed Substitute IRS Form W-9.
ANNEX
A
INFORMATION
ON ADDITIONAL INVESTORS
|
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Name
(use exact name in which securities
are to be registered)*
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Address and Facsimile
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Social Security Number
(or Tax Identification
Number, as applicable)
|
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Subscription Amount ($)
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1.
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2.
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3.
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4.
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5.
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* Please
complete one copy of Annex B and Annex C for each investor.
ANNEX
B
ACCREDITED
INVESTOR STATUS
Accredited Investor
Status
. Please mark the appropriate box next to each
description applicable:
[
] A
natural person whose individual net worth, or joint net worth with that person's
spouse, exceeds $1,000,000.
[
] A
natural person who had individual income in excess of $200,000 in each of the
most recent two years, or joint income with that person's spouse in excess of
$300,000 in each of the most recent two years and who has a reasonable
expectation of reaching the same income level in the current year.
[
] A
director or executive officer (as defined in Rule 501(f) of Regulation D
promulgated under the Securities Act) of the Company.
[
] A
bank (as defined in Section 3(a)(2) of the Securities Act) or a savings and loan
association or other institution (as defined in Section 3(a)(5)(A) of the
Securities Act) whether acting in its individual or fiduciary
capacity.
[
] A
broker or dealer registered pursuant to Section 15 of the Securities Exchange
Act of 1934, as amended (the "
Exchange
Act
").
[
] An
insurance company (as defined in Section 2(a)(13) of the Securities
Act).
[
] An
investment company registered under the Investment Company Act or a business
development company (as defined in Section 2(a)(48) of the Investment Company
Act).
[
] A
Small Business Investment Company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business Investment Act
of 1958, as amended.
[
] A
plan established and maintained by a state, its political subdivisions or any
agency or instrumentality of a state or its political subdivisions, for the
benefit of its employees, if such plan has total assets in excess of
$5,000,000.
[
] An
employee benefit plan within the meaning of the Employee Retirement Income
Security Act of 1974, as amended (“
ERISA
”), if (A) the
investment decision is made by a plan fiduciary (as defined in Section 3(21) of
ERISA) which is either a bank, savings and loan association, insurance company
or registered investment advisor, (B) the employee benefit plan has
total assets in excess of $5,000,000 or (C) if the plan is a self directed plan,
its investment decisions are made solely by persons who are accredited
investors.
[
] A
private business development company (as defined in Section 202(a)(22) of the
Investment Advisers Act of 1940, as amended).
[
] Any
organization described in Section 501(c)(3) of the Internal Revenue Code of
1986, as amended, corporation, Massachusetts or similar business trust, or
partnership, not formed for the specific purpose of acquiring securities, with
total assets in excess of $5,000,000.
[
] A
trust, with total assets in excess of $5,000,000, not formed for the specific
purpose of acquiring securities, whose acquisition is directed by a person who,
either alone or with his or her purchaser representative(s), has such knowledge
and experience in financial business matters that such person is capable of
evaluating the merits and risks of acquiring securities.
[
] An
entity in which all of the equity owners meet the requirements of at least one
of the above subparagraphs for accredited investors.
ANNEX
C
QUALIFIED
PURCHASER AND QUALIFIED ELIGIBLE PERSON STATUS
Qualified Purchaser and
Qualified Eligible Person Status
. Please mark the appropriate
box next to each description applicable:
|
(1)
|
[
]
A
natural person (including any person who will hold a joint, community
property, or other similar shared ownership interest in the Company with
that person’s qualified purchaser spouse) who owns at least $5,000,000 in
Investments (as defined in Schedule
I).
|
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[
]
A
company* that owns at least $5,000,000 in Investments and that is owned
directly or indirectly by or for two or more natural persons who are
related as siblings or spouse (including former spouses), or direct lineal
descendants by birth or adoption, spouses of such persons, the estates of
such persons, or foundations, charitable organizations, or trusts
established by or for the benefit of such persons (“
Family
Company
”).
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[
]
A trust
that is not covered by clause (2) above, and that was not formed for the
specific purpose of investing in the Company, as to which the trustee or
other person authorized to make decisions with respect to the trust, and
each settlor or other person who has contributed assets to the trust, is a
person described in clause (1), (2), or
(4).
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[
]
A
person (including a company), acting for its own account or the accounts
of other qualified purchasers, who in the aggregate owns and invests on a
discretionary basis, not less than $25,000,000 in
Investments.
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[
]
A
“Qualified Institutional Buyer”
as
defined in Rule 144A under the Securities Act (as that term is modified by
the limitations imposed thereon by Rule 2a51-1(g)(1) under the Investment
Company Act);
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[
]
A
company, regardless of the amount of its Investments, each of the
beneficial owners of securities issued by such company is a person
described in clause (1), (2), (3), (4), or (5) of this Annex
C.
(If this
item is checked, please contact the Company. Additional
requirements may
apply.)
|
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*
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For
purposes of this Question, “company” includes a corporation, a
partnership, an association, a joint-stock company, a trust or a
fund. In order to be a “qualified purchaser” any company that
both (i) would, but for an exception provided in Sections 3(c)(1) or
3(c)(7) of the Investment Company Act, be an investment company and (ii)
was in existence prior to May 1, 1996, must have complied with the consent
provisions of Section 2(a)(51)(C) of the Investment Company
Act.
|
SCHEDULE
I
For the
purposes of determining “qualified purchaser” status, the term “Investments”
means all of the following:
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(i)
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Securities
(as defined by Section 2(a)(1) of the Securities Act), other than
securities of an issuer that controls, is controlled by, or is under
common control with, the Investor,
unless
the issuer of
such securities is any of the
following:
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(A)
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An
investment company, a company that would be an investment company under
the Investment Company Act but for the exclusions provided by Sections
3(c)(1) through 3(c)(9) of the Investment Company Act or the exemptions
provided by Rules 3a-6 or 3a-7 thereunder, or a commodity
pool;
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(B)
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A
company that files reports pursuant to Section 13 or Section 15(d) of the
Exchange Act or that has a class of securities that are listed on a
“designated offshore securities market” as that term is defined by
Regulation S under the Securities Act;
or
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(C)
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A
company with shareholders’ equity of not less than $50 million (determined
in accordance with generally accepted accounting principles) as reflected
on the company’s most recent financial statements, provided that such
financial statements present the information as of a date within 16 months
preceding the date on which the Investor acquires Shares in the
Company.
|
(ii) Real
estate held for “Investment Purposes,” as described below.
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(iii)
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“Commodity
Interests” held for Investment Purposes, as described
below. “Commodity Interests” means commodity futures contracts,
options on commodity futures contracts, and options on physical
commodities traded on or subject to the rules
of:
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(A)
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Any
contract market designated for trading such transactions under the
Commodity Exchange Act (“
CEA
”) and the
rules thereunder; or
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(B)
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Any
board of trade or exchange outside the United States, as contemplated in
Part 30 of the rules under the CEA.
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(iv)
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“Physical
Commodities” held for Investment Purposes, as described
below. “Physical Commodity” means any physical commodity with
respect to which a Commodity Interest is traded on a market specified in
(iii)(A) or (B) immediately above.
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(v)
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To
the extent not securities, “Financial Contracts” entered into for
Investment Purposes, as described below. “Financial Contracts”
means any arrangement that:
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(A)
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Takes
the form of an individually negotiated contract, agreement, or option to
buy, sell, lend, swap, or repurchase, or other similar individually
negotiated transaction commonly entered into by participants in the
financial markets;
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(B)
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Is
in respect of securities, commodities, currencies, interest or other
rates, other measures of value, or any other financial or economic
interest similar in purpose or function to any of the foregoing;
and
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(C)
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Is
entered into in response to a request from a counter party for a
quotation, or is otherwise entered into and structured to accommodate the
objectives of the counter party to such
arrangement.
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(vi)
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If
the Investor is a company that would be an investment company but for one
of the exclusions provided by Section 3(c)(1) or Section 3(c)(7) of the
Investment Company Act, or a commodity pool, any amounts payable to the
Investor pursuant to a firm agreement or similar binding commitment
pursuant to which a person has agreed to acquire an interest in, or make
capital contributions to, the Investor upon demand of the Investor;
and
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(vii)
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Cash
and cash equivalents (including foreign currencies) held for Investment
Purposes, as described below,
including:
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(A)
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Bank
deposits, certificates of deposit, bankers acceptances and similar bank
instruments held for Investment Purposes;
and
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(B)
|
The
net cash surrender value of an insurance
policy.
|
Investment
Purposes
. For purposes of the definition of “Investment” the
following applies. Real estate is not considered to be held for
Investment Purposes by an Investor if it is used by the Investor or a Related
Person, as defined below, for personal purposes or as a place of business, or in
connection with the conduct of the trade or business of the Investor or a
Related Person,
provided that
real estate owned by an Investor that is engaged primarily in the
business of investing, trading or developing real estate in connection with such
business may be deemed to be held for Investment
Purposes. Residential real estate is not deemed to be used for
personal purposes if deductions with respect to such real estate are not
disallowed by Section 280A of the Internal Revenue Code of 1986, as
amended. A Commodity Interest or Physical Commodity owned, or a
financial contract entered into, by an Investor that is engaged primarily in the
business of investing, reinvesting, or trading in Commodity Interests, Physical
Commodities or financial contracts in connection with such business may be
deemed to be held for Investment Purposes. The term “Related Person”
generally means a person who is related to the Investor as a sibling, spouse or
former spouse, or is a direct lineal descendant or ancestor by birth or adoption
of the Investor, or is a spouse of such descendant or ancestor,
provided that
, in the case of a Family
Company, a Related Person includes any owner of the Family Company and any
person who is a Related Person of such owner.
Valuation
. For
purposes of determining whether an Investor is a qualified purchaser, the
aggregate amount of Investments owned and invested on a discretionary basis by
the Investor shall be the Investments’ fair market value on the most recent
practicable date or their cost,
provided
that
: in the case of Commodity Interests, the amount of Investments shall
be the value of the initial margin or option premium deposited in connection
with such Commodity Interests; and, in each case, certain deductions (described
below) from the amount of Investments owned by the Investor must be
made. In determining whether any person is a qualified purchaser
there is deducted from the amount of such person’s Investments the amount of any
outstanding indebtedness incurred to acquire or for the purpose of acquiring the
Investments owned by such person. Additionally, in determining
whether a Family Company is a qualified purchaser, there will be deducted from
the value of such Family Company’s Investments any outstanding indebtedness
incurred by an owner of the Family Company to acquire such
Investments.
Joint
Investments
. In determining whether a natural person is a
qualified purchaser, there may be included in the amount of such person’s
Investments any Investments held jointly with such person’s spouse, or
Investments in which such person shares with such person’s spouse a community
property or similar shared ownership interest. In determining whether
spouses who are making a joint investment in the Company are qualified
purchasers, there may be included in the amount of each spouse’s Investments any
Investments owned by the other spouse (whether or not such Investments are held
jointly). In each case, the amount of any such Investments will be
reduced by any deductions specified above (under “
Valuation
”) with
respect to each spouse.
Investments by
Subsidiaries
. For purposes of determining the amount of
Investments owned by a company under paragraph (c) of the “Qualified Purchaser”
question in the Investor Qualifications section above, there may be included
Investments owned by majority-owned subsidiaries of the company and Investments
owned by a company (“
Parent Company
”) of
which the company is a majority-owned subsidiary, or by a majority-owned
subsidiary of the company and other majority-owned subsidiaries of the Parent
Company.
Certain Retirement Plans and
Trusts
. In determining whether a natural person is a qualified
purchaser, there may be included in the amount of such person’s Investments any
Investments held in an individual retirement account or similar account the
Investments of which are directed by and held for the benefit of such
person.
March 24,
2010
Golub
Capital BDC LLC
150 South
Wacker Drive
Suite
800
Chicago,
IL 60606
|
|
Re:
|
Registration Statement
on Form N-2
|
Ladies
and Gentlemen:
We have
acted as counsel to Golub Capital BDC LLC, a Delaware limited liability company
(the “
Company
”), in
connection with the preparation and filing of a Registration Statement on Form
N-2 (Registration No. 333-163279) as originally filed on November 20, 2009 with
the Securities and Exchange Commission (the “
Commission
”) under
the Securities Act of 1933, as amended (the “
Securities Act
”), and
under the Investment Company Act of 1940, as amended (the “
Investment Company
Act
”), and as subsequently amended on February 5, 2010, March 17, 2010
and March 24, 2010 (the “
Registration
Statement
”), relating to the proposed issuance by the Company of up to an
aggregate of $172,500,000 of shares (the “
Shares
”) of the
Company’s common stock, par value $0.001 per share (“
Common Stock
”), to be
sold to underwriters pursuant to an underwriting agreement substantially in the
form to be filed as Exhibit (h) to the Registration Statement (the “
Underwriting
Agreement
”). This opinion letter is being furnished to the Company in
accordance with the requirements of Item 25 of Form N-2 under the Investment
Company Act, and no opinion is expressed herein as to any matter other than as
to the legality of the Shares.
In
rendering the opinion expressed below, we have examined and relied on originals
or copies, certified or otherwise identified to our satisfaction, of such
documents, corporate records and other instruments and such agreements,
certificates and receipts of public officials, certificates of officers or other
representatives of the Company and others, and such other documents as we have
deemed necessary or appropriate as a basis for rendering this opinion, including
the following documents:
|
|
(i)
|
the
Registration Statement;
|
|
|
(ii)
|
the
Underwriting Agreement;
|
|
|
(iii)
|
the
form of certificate evidencing the Shares, filed as Exhibit (d) to the
Registration Statement;
|
|
US Austin Boston Charlotte Hartford New
York Newport
Beach Philadelphia Princeton San
Francisco Silicon Valley Washington DC
EUROPE Brussels London Luxembourg Moscow Munich Paris ASIA Beijing Hong
Kong
|
|
|
(iv)
|
the
form of Certificate of Incorporation of the Company, filed as Exhibit
(a)(2) to the Registration
Statement;
|
|
|
(v)
|
the
form of Bylaws of the Company, filed as Exhibit (b)(2) to the Registration
Statement;
|
|
|
(vii)
|
the
form of Plan of Conversion effecting the Company’s conversion from a
Delaware limited liability company to a Delaware corporation, such
conversion to be effected one day prior to the effectiveness of the
Registration Statement (the “
BDC
Conversion
”);
|
|
|
(vii)
|
a
certificate of good standing with respect to the Company issued by the
Secretary of State of the State of Delaware dated March 24, 2010;
and
|
|
|
(viii)
|
resolutions
of the board of directors of the Company relating to, among other things,
the authorization and issuance of the
Shares.
|
As to the
facts upon which this opinion is based, we have relied, to the extent we deem
proper, upon certificates of public officials and certificates and written
statements of officers, directors, employees and representatives of the
Company.
In our
examination, we have assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as original documents and the conformity to
original documents of all documents submitted to us as copies. In
addition, we have assumed (i) the legal capacity of natural persons,
(ii) the legal power and authority of all persons signing on behalf of the
parties to all documents (other than the Company), (iii) the BDC Conversion will
have been completed in accordance with the form of Plan of Conversion, (iv) the
Plan of Conversion, including the Certificate of Incorporation, will have been
filed with the Secretary of State of the State of Delaware, (v) the Certificate
of Incorporation and the Bylaws will have become effective substantially in the
form of the documents filed as exhibits to the Registration Statement and (vi)
the Registration Statement will have been declared effective by the
Commission.
On the
basis of the foregoing and subject to the assumptions and qualifications set
forth in this letter, we are of the opinion that when (i) the Underwriting
Agreement has been duly executed and delivered by the parties thereto and (ii)
the Shares are (a) issued and delivered against receipt by the Company of
payment therefor at a price per Share not less than the par value per share of
the Common Stock as contemplated by the Registration Statement and in accordance
with the terms of the Underwriting Agreement and (b) countersigned by the
transfer agent, the Shares will be validly issued, fully paid and
nonassessable.
The
opinion expressed herein is limited to the General Corporation Law of the State
of Delaware. We are not members of the bar of the State of Delaware,
nor do we purport to be experts in the laws of the State of
Delaware.
This
opinion letter has been prepared for your use solely in connection with the
Registration Statement. We assume no obligation to advise you of any changes in
the foregoing subsequent to the date of this opinion.
We hereby
consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to this firm under the caption “Legal Matters” in
the prospectus which forms a part of the Registration Statement. In giving such
consent, we do not thereby admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission thereunder.
Very
truly yours,
/s/
Dechert LLP
Dechert
LLP
CODE
OF ETHICS
FOR
GOLUB
CAPITAL BDC, INC.
GC
ADVISORS LLC
|
Section
I
|
Statement
of General Fiduciary
Principles
|
This Code
of Ethics (the “Code”) has been adopted by each of Golub Capital BDC, Inc. (the
“Corporation”), and GC Advisors LLC, the Corporation’s investment adviser (the
“Adviser”) in compliance with Rule 17j-1 under the Investment Company Act of
1940, as amended (the “Act”). The purpose of the Code is to
establish standards and procedures for the detection and prevention of
activities by which persons having knowledge of the investments and investment
intentions of the Corporation may abuse their fiduciary duty to the Corporation,
and otherwise to deal with the types of conflict of interest situations to which
Rule 17j-1 is addressed.
The Code
is based on the principle that the directors and officers of the Corporation,
and the managers, partners, officers and employees of the Adviser, who provide
services to the Corporation, owe a fiduciary duty to the Corporation to conduct
their personal securities transactions in a manner that does not interfere with
the Corporation’s transactions or otherwise take unfair advantage of their
relationship with the Corporation. All directors, managers, partners,
officers and employees of the Corporation or the Adviser (collectively, the
“Covered Personnel”) are expected to adhere to this general principle as well as
to comply with all of the specific provisions of this Code that are applicable
to them. Any Covered Personnel who is affiliated with another entity
that is a registered investment adviser is, in addition, expected to comply with
the provisions of the code of ethics that has been adopted by such other
investment adviser.
The Adviser has adopted a separate code
of ethics pursuant to the Investment Advisers Act of 1940, and the rules
thereunder (the “Adviser’s Code of Ethics”). The Adviser will provide
a written report, at least annually, to the Corporation’s board of directors
describing any issues arising under the Adviser’s Code of Ethics or procedures
since the last report to the board, including, but not limited to, information
about material violations of the Adviser’s Code of Ethics or procedures and
sanctions imposed in response to material violations and certifying that the
Adviser has adopted procedures reasonably necessary to prevent violations of the
Adviser’s Code of Ethics.
Technical
compliance with the Code will not automatically insulate any Covered Personnel
from scrutiny of transactions that show a pattern of compromise or abuse of the
individual’s fiduciary duty to the Corporation. Accordingly, all
Covered Personnel must seek to avoid any actual or potential conflicts between
their personal interests and the interests of the Corporation and its
shareholders. In sum, all Covered Personnel shall place the interests
of the Corporation before their own personal interests.
All
Covered Personnel must read and retain this Code of Ethics.
(A)
“Access
Person” means any director, officer, general partner or Advisory Person (as
defined below) of the Corporation or the Adviser.
(B)
An
“Advisory Person” of the Corporation or the Adviser means: (i) any director,
officer, general partner or employee of the Corporation or the Adviser, or any
company in a Control (as defined below) relationship to the Corporation or the
Adviser, who in connection with his or her regular functions or duties makes,
participates in, or obtains information regarding the purchase or sale of any
Covered Security (as defined below) by the Corporation, or whose functions
relate to the making of any recommendation with respect to such purchases or
sales; and (ii) any natural person in a Control
relationship
to the Corporation or the Adviser, who obtains information concerning
recommendations made to the Corporation with regard to the purchase or sale of
any Covered Security by the Corporation.
(C)
“Beneficial
Ownership” is interpreted in the same manner as it would be under Rule
16a-1(a)(2) under the Securities Exchange Act of 1934 (the “1934 Act”) in
determining whether a person is a beneficial owner of a security for purposes of
Section 16 of the 1934 Act and the rules and regulations
thereunder.
(D)
“Chief
Compliance Officer” means the Chief Compliance Officer of the Corporation (who
also may serve as the compliance officer of the Adviser and/or one or more
affiliates of the Adviser). Corporation shall initially have no Chief
Compliance Officer. Prior to the completion of the Corporation’s initial public
offering, the Corporation will appoint a Chief Compliance Officer or appoint a
company to act in that capacity.
(E)
“Control”
shall have the same meaning as that set forth in Section 2(a)(9) of the
Act.
(F)
“Covered
Security” means a security as defined in Section 2(a)(36) of the Act, which
includes: any note, stock, treasury stock, security future, bond, debenture,
evidence of indebtedness, certificate of interest or participation in any
profit-sharing agreement, collateral-trust certificate, pre-organization
certificate or subscription, transferable share, investment contract,
voting-trust certificate, certificate of deposit for a security, fractional
undivided interest in oil, gas, or other mineral rights, any put, call,
straddle, option, or privilege on any security (including a certificate of
deposit) or on any group or index of securities (including any interest therein
or based on the value thereof), or any put, call, straddle, option, or privilege
entered into on a national securities exchange relating to foreign currency, or,
in general, any interest or instrument commonly known as a “security,” or any
certificate of interest or participation in, temporary or interim certificate
for, receipt for, guarantee of, or warrant or right to subscribe to or purchase,
any of the foregoing.
Except
that “Covered Security” does not include: (i) direct obligations of the
Government of the United States; (ii) bankers’ acceptances, bank certificates of
deposit, commercial paper and high quality short-term debt instruments,
including repurchase agreements; and (iii) shares issued by open-end investment
companies registered under the Act. References to a Covered Security
in this Code (e.g., a prohibition or requirement applicable to the purchase or
sale of a Covered Security) shall be deemed to refer to and to include any
warrant for, option in, or security immediately convertible into that Covered
Security, and shall also include any instrument that has an investment return or
value that is based, in whole or in part, on that Covered Security
(collectively, “Derivatives”). Therefore, except as otherwise
specifically provided by this Code: (i) any prohibition or requirement of this
Code applicable to the purchase or sale of a Covered Security shall also be
applicable to the purchase or sale of a Derivative relating to that Covered
Security; and (ii) any prohibition or requirement of this Code applicable to the
purchase or sale of a Derivative shall also be applicable to the purchase or
sale of a Covered Security relating to that Derivative.
(G)
“Independent
Director” means a director of the Corporation who is not an “interested person”
of the Corporation within the meaning of Section 2(a)(19) of the
Act.
(H)
“Initial
Public Offering” means an offering of securities registered under the Securities
Act of 1933 (the “1933 Act”), the issuer of which, immediately before the
registration, was not subject to the reporting requirements of Sections 13 or
15(d) of the 1934 Act.
(I)
“Investment
Personnel” of the Corporation or the Adviser means: (i) any employee
of the Corporation or the Adviser (or of any company in a Control relationship
to the Corporation or the Adviser) who, in connection with his or her regular
functions or duties, makes or participates in making recommendations regarding
the purchase or sale of securities by the Corporation; and (ii) any natural
person who controls the Corporation or the Adviser and who obtains information
concerning recommendations made to the Corporation regarding the purchase or
sale of securities by the Corporation.
(J)
“Limited
Offering” means an offering that is exempt from registration under the 1933 Act
pursuant to Section 4(2) or Section 4(6) thereof or pursuant to Rule 504, Rule
505, or Rule 506 thereunder.
(K)
“Security
Held or to be Acquired” by the Corporation means: (i) any Covered
Security which, within the most recent 15 days: (A) is or has been
held by the Corporation; or (B) is being or has been considered by the
Corporation or the Adviser for purchase by the Corporation; and (ii) any option
to purchase or sell, and any security convertible into or exchangeable for, a
Covered Security described in Section II (K)(i).
(L)
“17j-1
Organization” means the Corporation or the Adviser, as the context
requires.
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Section
III
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Objective
and General Prohibitions
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Covered
Personnel may not engage in any investment transaction under circumstances in
which the Covered Personnel benefits from or interferes with the purchase or
sale of investments by the Corporation. In addition, Covered
Personnel may not use information concerning the investments or investment
intentions of the Corporation, or their ability to influence such investment
intentions, for personal gain or in a manner detrimental to the interests of the
Corporation.
Covered
Personnel may not engage in conduct that is deceitful, fraudulent or
manipulative, or mat involves false or misleading statements, in connection with
the purchase or sale of investments by the Corporation. In this
regard, Covered Personnel should recognize that Rule 17j-1 makes it unlawful for
any affiliated person of the Corporation, or any affiliated person of an
investment adviser for the Corporation, in connection with the purchase or sale,
directly or indirectly, by the person of a Security Held or to be Acquired by
the Corporation to:
(i)
employ
any device, scheme or artifice to defraud the Corporation;
(ii)
make
any untrue statement of a material fact to the Corporation or omit to state to
the Corporation a material fact necessary in order to make the statements made,
in light of the circumstances under which they are made, not
misleading;
(iii)
engage
in any act, practice or course of business that operates or would operate as a
fraud or deceit upon the Corporation; or
(iv)
engage
in any manipulative practice with respect to the Corporation.
Covered
Personnel should also recognize that a violation of this Code or of Rule 17j-1
may result in the imposition of: (1) sanctions as provided by Section
VIII below; or (2) administrative, civil and, in certain cases, criminal fines,
sanctions or penalties.
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Section
IV
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Prohibited
Transactions
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(A)
Other
than securities purchased or acquired by a fund affiliated with the Corporation
and pursuant to an exemptive order under Section 57(i) of the Act permitting
certain types of co-investments, an Access Person may not purchase or otherwise
acquire direct or indirect Beneficial Ownership of any Covered Security, and may
not sell or otherwise dispose of any Covered Security in which he or she has
direct or indirect Beneficial Ownership, if he or she knows or should know at
the time of entering into the transaction that: (1) the Corporation
has purchased or sold the Covered Security within the last 15 calendar days, or
is purchasing or selling or intends to purchase or sell the Covered Security in
the next 15 calendar days; or (2) the Adviser has within the last 15 calendar
days considered purchasing or selling the Covered Security for the Corporation
or within the next 15 calendar days intend to consider purchasing or selling the
Covered Security for the Corporation.
(B)
Investment
Personnel of the Corporation or the Adviser must obtain approval from the
Corporation or the Adviser, as the case may be, before directly or indirectly
acquiring Beneficial Ownership in any securities in an Initial Public Offering
or in a Limited Offering, except when such securities are acquired by a fund
affiliated with the Corporation and pursuant to an exemptive order under Section
57(i) of the Act permitting certain types of co-investments. Such
approval must be obtained from the Chief Compliance Officer, unless he is the
person seeking such approval, in which case it must be obtained from the
President of the 17j-1 Organization.
(C)
No
Access Person shall recommend any transaction in any Covered Securities by the
Corporation without having disclosed to the Chief Compliance Officer his or her
interest, if any, in such Covered Securities or the issuer thereof, including:
the Access Person’s Beneficial Ownership of any Covered Securities of such
issuer, except when such securities transactions are to be made by a fund
affiliated with the Corporation and pursuant to an exemptive order under Section
57(i) of the Act permitting certain types of co-investments; any contemplated
transaction by the Access Person in such Covered Securities; any position the
Access Person has with such issuer; and any present or proposed business
relationship between such issuer and the Access Person (or a party which the
Access Person has a significant interest).
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Section
V
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Reports
by Access Persons
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(A)
Personal
Securities Holdings Reports.
All
Access Persons shall within 10 days of the date on which they become Access
Persons, and thereafter, within 30 days after the end of each calendar year,
disclose the title, number of shares and principal amount of all Covered
Securities in which they have a Beneficial Ownership as of the date the person
became an Access Person, in the case of such person’s initial report, and as of
the last day of the year, as to annual reports. A form of such
report, which is hereinafter called a “Personal Securities Holdings Report,” is
attached as Schedule A. Each
Personal
Securities Holdings Report must also disclose the name of any broker, dealer or
bank with whom the Access Person maintained an account in which any securities
were held for the direct or indirect benefit of the Access Person as of the date
the person became an Access Person or as of the last day of the year, as the
case may be. Each Personal Securities Holdings Report shall state the
date it is being submitted.
(B)
Quarterly
Transaction Reports.
Within 10
days after the end of each calendar quarter, each Access Person shall make a
written report to the Chief Compliance Officer of all transactions occurring in
the quarter in a Covered Security in which he or she had any Beneficial
Ownership. A form of such report, which is hereinafter called a
“Quarterly Securities Transaction Report,” is attached as Schedule
B.
A
Quarterly Securities Transaction Report shall be in the form of Schedule B or
such other form approved by the Chief Compliance Officer and must contain the
following information with respect to each reportable transaction:
(1) Date
and nature of the transaction (purchase, sale or any other type of acquisition
or disposition);
(2) Title,
interest rate and maturity date (if applicable), number of shares and principal
amount of each Covered Security involved and the price of the Covered Security
at which the transaction was effected;
(3) Name
of the broker, dealer or bank with or through whom the transaction was effected;
and
(4) The
date the report is submitted by the Access Person.
(C)
Independent
Directors.
Notwithstanding
the reporting requirements set forth in this Section V, an Independent Director
who would be required to make a report under this Section V solely by reason of
being a director of the Corporation is not required to file a Personal
Securities Holding Report upon becoming a director of the Corporation or an
annual Personal Securities Holding Report. Such an Independent
Director also need not file a Quarterly Securities Transaction Report unless
such director knew or, in the ordinary course of fulfilling his or her official
duties as a director of the Corporation, should have known that during the
15-day period immediately preceding or after the date of the transaction in a
Covered Security by the director such Covered Security is or was purchased or
sold by the Corporation or the Corporation or the Adviser considered purchasing
or selling such Covered Security.
(D)
Access
Persons of the Adviser.
An Access
Person of the Adviser need not make a Quarterly Transaction Report if all of the
information in the report would duplicate information required to be recorded
pursuant to Rules 204-2(a)(12) or (13) under the Investment Advisers Act of
1940, as amended.
(E)
Brokerage
Accounts and Statements.
Access
Persons, except Independent Directors, shall:
(1) within
10 days after the end of each calendar quarter, identify the name of the broker,
dealer or bank with whom the Access Person established an account in which any
securities were held during the quarter for the direct or indirect benefit of
the Access Person and identify any new account(s) and the date the account(s)
were established. This information shall be included on the
appropriate Quarterly Securities Transaction Report.
(2) instruct
the brokers, dealers or banks with whom they maintain such an account to provide
duplicate account statements to the Chief Compliance Officer.
(3) on
an annual basis, certify that they have complied with the requirements of (1)
and (2) above.
(F)
Form
of Reports.
A
Quarterly Securities Transaction Report may consist of broker statements or
other statements that provide a list of all personal Covered Securities holdings
and transactions in the time period covered by the report and contain the
information required in a Quarterly Securities Transaction Report.
(G)
Responsibility
to Report.
Access
Persons will be informed of their obligations to report; however, it is the
responsibility of each Access Person to take the initiative to comply with the
requirements of this Section V. Any effort by the Corporation, or by
the Adviser and its affiliates, to facilitate the reporting process does not
change or alter that responsibility. A person need not make a report
hereunder with respect to transactions effected for, and Covered Securities held
in, any account over which the person has no direct or indirect influence or
control.
(H)
Where
to File Reports.
All
Quarterly Securities Transaction Reports and Personal Securities Holdings
Reports must be filed with the Chief Compliance Officer.
(I)
Disclaimers.
Any
report required by this Section V may contain a statement that the report will
not be construed as an admission that the person making the report has any
direct or indirect Beneficial Ownership in the Covered. Security to
which the report relates.
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Section
VI
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Additional
Prohibitions
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(A)
Confidentiality
of the Corporation’s Transactions.
Until
disclosed in a public report to shareholders or to the Securities and Exchange
Commission in the normal course, all information concerning the securities
“being considered for purchase or sale” by the Corporation shall be kept
confidential by all Covered Personnel and disclosed by them only on a “need to
know” basis. It shall be the responsibility of the Chief Compliance
Officer to report any inadequacy found in this regard to the directors of the
Corporation.
(B)
Outside
Business Activities and Directorships.
Access
Persons may not engage in any outside business activities that may give rise to
conflicts of interest or jeopardize the integrity or reputation of the
Corporation. Similarly, no such outside business activities may be
inconsistent with the interests of the Corporation. All directorships
of public or private companies held by Access Persons shall be reported to the
Chief Compliance Officer.
(C)
Gratuities.
Corporation
Personnel shall not, directly or indirectly, take, accept or receive gifts or
other consideration in merchandise, services or otherwise of more than nominal
value from any person, firm, corporation, association or other entity other than
such person’s employer that does business, or proposes to do business, with the
Corporation.
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Section
VII
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Annual
Certification
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(A)
Access
Persons.
Access
Persons who are directors, managers, partners, officers or employees of the
Corporation or the Adviser shall be required to certify annually that they have
read this Code and that they understand it and recognize that they are subject
to it. Further, such Access Persons shall be required to certify
annually that they have complied with the requirements of this
Code.
(B)
Board
Review.
No less
frequently than annually, the Corporation and the Adviser must furnish to the
Corporation’s board of directors, and the board must consider, a written report
that: (A) describes any issues arising under this Code of Ethics or procedures
since the last report to the board, including, but not limited to, information
about material violations of the Code or procedures and sanctions imposed in
response to material violations; and (B) certifies that the Corporation or the
Adviser, as applicable, has adopted procedures reasonably necessary to prevent
Access Persons from violating the Code.
Any
violation of this Code shall be subject to the imposition of such sanctions by
the 17j-1 Organization as may be deemed appropriate under the circumstances to
achieve the purposes of Rule 17j-1 and this Code. The sanctions to be
imposed shall be determined by the board of directors, including a majority of
the Independent Directors, provided, however, that with respect to violations by
persons who are directors, managers, partners, officers or employees of
the
Adviser
(or of a company that controls the Adviser), the sanctions to be imposed shall
be determined by the Adviser (or the controlling person
thereof). Sanctions may include, but are not limited to, suspension
or termination of employment, a letter of censure and/or restitution of an
amount equal to the difference between the price paid or received by the
Corporation and the more advantageous price paid or received by the offending
person.
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Section
IX
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Administration
and Construction
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(A)
The
administration of this Code shall be the responsibility of the Chief Compliance
Officer.
(B)
The
duties of the Chief Compliance Officer are as follows:
(1) Continuous
maintenance of a current list of the names of all Access Persons with an
appropriate description of their title or employment, including a notation of
any directorships held by Access Persons who are officers or employees of the
Adviser or of any company that controls the Adviser, and informing all Access
Persons of their reporting obligations hereunder;
(2) On
an annual basis, providing all Covered Personnel a copy of this Code and
informing such persons of their duties and obligations hereunder including any
supplemental training that may be required from time to time;
(3) Maintaining
or supervising the maintenance of all records and reports required by this
Code;
(4) Reviewing all Personal Securities Holdings Reports and
Quarterly Securities Transaction Reports;
(5) Preparing
listings of all transactions effected by Access Persons who are subject to the
requirement to file Quarterly Securities Transaction Reports and reviewing such
transactions against a listing of all transactions effected by the
Corporation;
(6) Issuance
either personally or with the assistance of counsel as may be appropriate, of
any interpretation of this Code that may appear consistent with the objectives
of Rule 17j-1 and this Code;
(7) Conduct
such inspections or investigations as shall reasonably be required to detect and
report, with recommendations, any apparent violations of this Code to the board
of directors of the Corporation;
(8) Submission
of a report to the board of directors of the Corporation, no less frequently
than annually, a written report that describes any issues arising under the Code
since the last such report, including but not limited to the information
described in Section VII (B); and
(C)
The
Chief Financial Officer shall maintain and cause to be maintained in an easily
accessible place at the principal place of business of the 17j-1 Organization,
the following records and must make these records available to the Securities
and Exchange Commission at any time and from time to time for reasonable
periodic, special or other examinations:
(1) A
copy of all codes of ethics adopted by the Corporation or the Adviser and its
affiliates, as the case may be, pursuant to Rule 17j-1 that have been in effect
at any time during the past five (5) years;
(2) A
record of each violation of such codes of ethics and of any action taken as a
result of such violation for at least five (5) years after the end of the fiscal
year in which the violation occurs;
(3) A
copy of each report made by an Access Person for at least two (2) years after
the end of the fiscal year in which the report is made, and for an additional
three (3) years in a place that need not be easily accessible;
(4) A
copy of each report made by the Chief Compliance Officer to the board of
directors for two (2) years from the end of the fiscal year of the Corporation
in which such report is made or issued and for an additional three (3) years in
a place that need not be easily accessible;
(5) A
list of all persons who are, or within the past five (5) years have been,
required to make reports pursuant to the Rule and this Code of Ethics, or who
are or were responsible for reviewing such reports;
(6) A
copy of each report required by Section VII (B) for at least two (2) years after
the end of the fiscal year in which it is made, and for an additional three (3)
years in a place that need not be easily accessible; and
(7) A
record of any decision, and the reasons supporting the decision, to approve the
acquisition by Investment Personnel of securities in an Initial Public Offering
or Limited Offering for at least five (5) years after the end of the fiscal year
in which the approval is granted.
(D)
This
Code may not be amended or modified except in a written form that is
specifically approved by majority vote of the Independent
Directors.
This Code
of Ethics initially was adopted and approved by the Board of Directors of the
Corporation, including a majority of the Independent Directors, at a meeting on
March 5, 2010.
SCHEDULE
A
PERSONAL SECURITIES HOLDINGS
REPORT
(1) I
have read and understand the Code of Ethics of each of Golub Capital BDC, Inc.
and GC Advisors LLC (the “Code”), recognize that the provisions of the Code
apply to me and agree to comply in all respects with the procedures described
therein. Furthermore, if during the past calendar year I was subject
to the Code, I certify that I complied in all respects with the requirement of
the Code as in effect during that year. Without limiting the
generality of the foregoing, I certify that I have identified all new securities
accounts established during each calendar quarter.
(2) I
also certify that the following securities brokerage and commodity trading
accounts are the only brokerage or commodity accounts in which I trade or hold
Covered Securities in which I have a direct or indirect Beneficial Ownership
interest, as such terms are defined by the Code, and that I have requested that
the firms at which such accounts are maintained send duplicate account
statements to the Chief Compliance Officer.
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Title
of
Covered Security
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Number of Shares
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Principal Amount
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Broker,
Dealer or Bank
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Date Opened
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Date
of Report:
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Print
Name:
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Date
Submitted:
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Signature:
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SCHEDULE
B
QUARTERLY SECURITIES
TRANSACTION REPORT
The
following lists all transactions in Covered Securities, in which I had any
direct or indirect Beneficial Ownership interest, that were effected during the
last calendar quarter and required to be reported by Section V (A) of the
Code. (If no such transactions took place write “NONE”) Please sign
and date this report and return it to the Chief Compliance Officer no later than
the 10
th
day of
the month following the end of the quarter. Use reverse side if
additional space if needed.
PURCHASES AND
ACQUISITIONS
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Trade Date
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No. of
Shares or
Principal
Amount
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Interest
Rate and
Maturity
Date
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Name of
Security
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Unit Price
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Total Price
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Broker,
Dealer,
or
Bank
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SALES AND OTHER
DISPOSITIONS
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Trade Date
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No. of
Shares or
Principal
Amount
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Interest
Rate and
Maturity
Date
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Name of
Security
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Unit Price
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Total Price
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Broker
Dealer,
or
Bank
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NEW
ACCOUNTS ESTABLISHED DURING THE QUARTER
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Name of Broker,
Dealer or Bank
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Name of Account
and Account Number
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Date Established
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Dated
of Report:
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Name
(please print):
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Date
Submitted:
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Signature:
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Golub Capital BDC,
Inc.
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To:
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Board of Directors of Golub
Capital BDC, Inc.
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From:
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Golub Capital BDC,
Inc.
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Date:
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Re:
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Certification of Code of
Ethics
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Golub Capital BDC, Inc. hereby certifies
that it has adopted procedures reasonably necessary to prevent its “access
persons” (as defined in Rule 17j-1 under the Investment Company Act of 1940, as
amended) from violating its Code of Ethics.
By: __________________________
Name:
Title:
GC Advisors LLC
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To:
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Board of Directors of Golub
Capital BDC, Inc.
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Date:
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Re:
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Certification of Code of
Ethics
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GC Advisors LLC hereby certifies that it
has adopted procedures reasonably necessary to prevent its “access persons” (as
defined in Rule 17j-1 under the Investment Company Act of 1940, as amended) from
violating its Code of Ethics. GC Advisors LLC also hereby certifies
that is has adopted a code of ethics pursuant to the Investment Advisers Act of
1940, and the rules thereunder (the “Adviser’s Code of Ethics”), and has adopted
procedures reasonably necessary to prevent violations of the Adviser’s Code of
Ethics.
By: __________________________
Name:
Title:
CODE OF ETHICS AND PERSONAL
TRADING POLICY
GC
ADVISORS LLC
December
2009
Code
of Ethics
The
Investment Advisers Act of 1940 (the Act) imposes a fiduciary duty on investment
advisers. As a fiduciary, GC Advisors, LLC (the Firm) has a duty of
utmost good faith to act solely in the best interests of its
clients. Clients entrust us with their money and financial future,
which in turn places a high standard on our conduct and
integrity. The Firm’s fiduciary duty compels all Supervised Persons
to act with the utmost integrity in all of their dealings with clients and is
the core principle underlying this Code of Ethics and Personal Trading Policy
(the Code). It also represents the expected basis for all dealings
with clients (current, prospective and former).
Standards
of Conduct
This Code
of Ethics consists of the following core principles:
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1.
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The interests of clients will be
placed ahead of the Firm’s or any Supervised Person’s own investment
interests at all times.
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2.
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Supervised Persons are expected to
conduct their personal securities transactions in accordance with the
Firm’s Personal Trading Policy and must avoid any actual or perceived
conflict of interest with clients. Anyone with questions
regarding the appearance of a conflict with a client should consult with
the Chief Compliance Officer (CCO) before taking action that may result in
an actual conflict.
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3.
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Supervised Persons will avoid any
abuse of their position of trust and
responsibility.
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4.
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No Supervised Person will take
inappropriate advantage of their position within the
Firm.
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5.
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Supervised Persons are expected to
act in the best interests of all clients of the
Firm.
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6.
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The fiduciary principle that
independence in the investment decision-making process is
paramount.
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7.
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Supervised Persons are expected to
comply with federal and all other applicable securities
laws. Strict adherence to these policies and other policies and
procedures of the Firm will assist everyone in complying with this
important requirement.
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8.
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Information concerning the
identity of security holdings and financial circumstances of all clients
is confidential.
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As part of the required standards of
conduct, Supervised Persons are not permitted, in connection with the purchase
or sale, directly or indirectly, of a security held or to be acquired by a
client:
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1.
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To defraud such client in any
manner;
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2.
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To mislead such client, including
by making a statement that omits material
facts;
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3.
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To engage in any act, practice or
course of conduct which operates or would operate as a fraud or deceit
upon such client;
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4.
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To engage in any manipulative
practice with respect to such client;
or
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5.
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To engage in any manipulative
practice with respect to securities, including price
manipulation.
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Compliance
with this fiduciary duty can be achieved by trying to avoid conflicts of
interest and by fully disclosing all material facts concerning any conflict that
does arise with respect to any client.
Failure
to comply with the Firm’s Code may result in disciplinary action, up to and
including termination of employment.
The
Firm’s Supervised Persons are expected to maintain a high level of ethics,
integrity and professionalism in business and personal dealings.
“Professionalism” means integrity, objectivity, independence where required,
adherence to professional standards and applicable laws and regulations, and a
demonstrated will to maintain and improve the quality of professional services
and to withstand pressures, competitive and otherwise, to compromise on
principles, standards and quality.
We are
entrusted by our clients with their assets and confidential
information. To meet our obligations with that trust, we shall abide
by the Prudent Investor Rule which requires a fiduciary to exercise reasonable
care, skill and caution applied to investments in a portfolio not in isolation,
but in the context of the portfolio as a whole and as part of an overall
investment strategy, which should incorporate risk and return objectives
reasonably suitable to the client. In making and implementing
investment decisions, the fiduciary has a duty to diversify investments of the
client unless, under the circumstances, it is not prudent to do so.
The
Code Covers These Persons
The Code
covers all “Supervised Persons” of the Firm. In addition, the
management of the Firm’s affiliates, Golub Capital Incorporated and Golub
Capital Management LLC (together, “Golub Capital”) have determined that
supervised persons of Golub Capital shall also be subject to the
Code. Supervised Persons include:
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1.
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Directors, officers, and partners
of the firm (or other persons occupying a similar status or performing
similar functions)
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3.
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Any other person who provides
advice on behalf of the firm and is subject to the Firm’s supervision and
control
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In
addition, a subset of Supervised Persons, known as “Access Persons” must comply
with specific reporting requirements. Access Persons include any
Supervised Person who
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Has access to nonpublic
information regarding any clients’ purchase or sale of securities, or
nonpublic information regarding the portfolio holdings of any fund the
adviser or its control affiliates
manage
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Is involved in making securities
recommendations to clients, or has access to such recommendations that are
nonpublic
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Management
of the Firm and of Golub Capital have determined that, due to the nature of the
firms’ business activities, both Supervised Persons of the Firm and Supervised
Persons of Golub Capital are presumed to be Access Persons of the
Firm.
Conflicts
of Interest
Conflicts among Client
Interests
. Conflicts of interest may arise where the Firm or
its Supervised Persons have reason to favor the interests of one client over
another client (e.g., larger accounts over smaller accounts; accounts
compensated by performance fees over accounts compensated differently; accounts
in which employees have made material personal investments; accounts of close
friends or relatives of Supervised Persons). Favoritism of one group
of clients over another is prohibited under the Code.
Competing with Client
Trades
. The Code prohibits Access Persons from using knowledge
about pending or currently considered securities transactions for clients to
profit personally (directly or indirectly) as a result of such transactions,
including by purchasing or selling such securities for their own, their family’s
or their friends’ accounts or by relaying such information to others for their
use.
Disclosure of Personal
Interest
. Investment personnel are prohibited from
recommending, implementing or considering any securities transaction for a
client without first disclosing any material beneficial ownership, business or
personal relationship, or other material interest in the issuer or its
affiliates, to an appropriate designated person. This designated
person for The Firm shall be the Chief Compliance Officer. If such
designated person deems the disclosed interest to present a material conflict,
the investment personnel may not participate in any decision-making process
regarding the securities of that issuer.
Confidentiality
All
information concerning the identity of security holdings and financial
circumstances of all clients (both current and former) or prospective clients is
confidential.
All
information about clients must be kept in strict confidence, including the
client’s identity (unless the client consents), the client’s financial
situation, the client’s security holdings, and advice furnished to the client by
the Firm.
Protection
of Material Non-public Information (
i.e.
, Insider
Trading)
As more
fully discussed within our Privacy Policy, Supervised Persons are expected to
exercise diligence and care in maintaining and protecting our clients’
nonpublic, confidential information.
Supervised
Persons are also expected not to divulge information regarding the Firm’s
securities recommendations or client securities holdings to any individual
outside of the Firm, except
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1.
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As necessary to complete
transactions or account changes (for example, communications with brokers
and custodians);
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2.
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As necessary to maintain or
service a client or a client’s
account;
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3.
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With various service providers
providing administrative functions for the Firm (such as our technology
service provider), only after we have entered into a contractual agreement
that prohibits the service provider from disclosing or using confidential
information except as necessary to carry out its assigned responsibilities
and only for that purpose;
or
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Additional
procedures regarding the Firm’s Insider Trading restrictions may be found at the
end of this document.
Personal
Conduct
As noted
above, Supervised Persons are expected to conduct themselves with the utmost
integrity and to avoid any actual or perceived conflict with our
clients. In this spirit, the following are required of Supervised
Persons:
Acceptance of Gifts:
The
Firm’s overriding principle concerning gifts and gratuities is: Supervised
Persons should not accept inappropriate gifts, favors, entertainment, special
accommodations or other things of material value that could influence their
decision-making or make them feel beholden to a person or firm.
Supervised
Persons are generally prohibited from giving or receiving any gift, gratuity,
hospitality or other offering of more than de minimis value from any person of
entity doing business with the Firm. (De minimis is described as $100
per year.) Any Supervised Person who wishes to give, directly or indirectly,
anything of value to any person or entity that does business with or on behalf
of the Firm, including gifts and gratuities with value in excess of $100 per
year, must obtain written consent from the CCO and CIO, prior to giving such
gift. Supervised Persons may accept unsolicited gifts (other than
those prohibited above) provided each gift over $100 is promptly reported in
writing to the Director of Administration and the CCO. Attendance at
an outing or dinner with a representative of another firm does not require any
report unless an overnight say is involved, in which case the Supervised Person
must send details to the Director of Administration and the CCO in
advance. The CCO shall maintain a log of all gift and event
reports.
Service as Director for an Outside
Company:
Any supervised person wishing to serve as director
for an outside company (public or private) must first seek the written approval
of the Vice Chairman and/or CCO. The Vice Chairman and/or CCO, in
reviewing the request, will determine whether such service is consistent with
the interest of the Firm and our clients.
Outside Business Interests:
Any supervised person wishing to engage in business activities outside of the
Firm’s business must first seek written approval from the Vice Chairman and/or
CCO and, if requested, provide periodic reports to the Vice Chairman and/or CCO
summarizing those outside business activities.
Political Contributions:
The
Firm prohibits any supervised person from making a political contribution to
gain, or to attempt to gain, an engagement for the Firm or any
affiliate. The Firm is currently reviewing its Political
Contributions policy and will communicate any final policy guidelines to all
Supervised Persons when determined.
Personal
Trading Restrictions
Supervised
Persons are expected to purchase or sell a security for their personal accounts
only after determining there is no conflict of interest with the client accounts
trading in the same security.
All
Supervised Persons of the Firm are restricted from trading in securities noted
on “Restricted Securities List” available on the G drive at G:\Admin\Forms and
Templates\Restricted Securities List. It is the responsibility of
each supervised person to ensure that a particular securities transaction being
considered for his or her personal account is not subject to a
restriction.
All
Supervised Persons must obtain the prior written approval of the leader of the
business line indicated on the Restricted Securities List (the leaders of
business lines are required to obtain prior written approval of the Chairman or
the Vice-Chairman) before engaging in any securities transaction (purchases,
sales, options trading, etc.) in a personal account using the Personal Trading
Pre-clearance Form set forth as Exhibit A to this Code. A copy of
this form will also be saved on the G drive at G:\Admin\Forms and
Templates\Personal Trading Pre-clearance Form.
When a
Supervised Person engages in a personal securities transaction, the Supervised
Person shall direct that the executing broker send a duplicate copy of the
confirmation to the Firm’s designated third-party compliance vendor at the same
time as it is provided to the Supervised Person. Such Supervised
Persons shall also direct such broker to provide duplicate copies of any
periodic statement on any account maintained by such person (or any other
account in which such supervised person has a beneficial interest) to the Firm’s
designated third-party compliance vendor.
Personal
Trading Policy
Matters
for the Supervised Person to Consider Before Placing a Trade
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1.
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Will the amount or nature of the
transaction affect the price or market for the
security?
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2.
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Will you benefit from the
purchases or sales being made for any
client?
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3.
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Will your transaction harm any
client?
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4.
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Is there an appearance or
suggestion of impropriety?
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If
there is a chance the answer to any of these questions is “yes” you must include
the information on your Pre-Clearance Form.
Initial
Public Offerings and Limited or Private Offerings
All
Supervised Persons are required to obtain approval from the Vice Chairman or CFO
before investing in an initial public offering (IPO) or a limited or private
offering (i.e., limited or private partnership), defined as an equity position
within a non-public company. The pre-approval includes all
investments contemplated by investment personnel of the Firm.
Reports
of Personal Securities
Access
Persons are required to report securities transactions and holdings for all
accounts in which the Access Person has a direct or indirect beneficial
ownership interest
1
. This includes personal
securities information of any immediate family member
2
living within the same household as
the Access Person. Personal securities reporting requirements do not
include other individuals living in the Access Person’s household but Access
Persons should be cognizant of the confidentiality of the business of the
adviser.
Initial
and Annual Holdings Report
Each
Access Person (which currently means each Supervised Person) must provide an
initial holdings report to the Firm’s third-party compliance vendor within 10
days of initial employment with the Firm and thereafter on an annual
basis. The Form of this report is attached as
Exhibit B
to this
Code. In addition, all Access Persons are required to provide to the
Firm’s third-party compliance vendor brokerage statements (either directly from
the broker-dealer or from the Access Person) which contain the information set
forth below regarding all of the Access Person’s reportable personal
holdings:
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Ticker Symbol or CUSIP
number;
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1
A person
has a
Beneficial
Ownership
of a security if the person, directly or indirectly, through
any contract, arrangement, understanding, relationship, or otherwise has or
shares: 1. Voting power which includes the power to vote, or to direct the
voting of, such security; and/or, 2. Investment power which includes the power
to dispose, or to direct the disposition of, such security.
2
Immediate family
means any
child, stepchild, grandchild, parent, stepparent, grandparent, spouse, sibling,
mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or
sister-in-law, and shall include adoptive relationships.
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·
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Number of Shares or
Par;
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Broker or Bank Name;
and
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Transactions and holdings reports
and all brokerage statements will be maintained in confidence, except to the
extent necessary to implement and enforce the provisions of the Code or to
comply with request for information from government
agencies
. The Firm’s third-party compliance vendor will
coordinate with the Firm’s CCO regarding review of the reports.
Quarterly
Transactional Reports
Each
Access Person must also submit to the Firm’s third-party compliance vendor a
quarterly report regarding their personal securities transactions in which they
had a direct or indirect beneficial ownership interest, as discussed
above.
This
quarterly report is due 30 calendar days following each calendar quarter-end,
and the report should be submitted using the form found in Exhibit
C.
In addition to the report set forth in
Exhibit C
Access Persons must
submit to the Firm’s third-party compliance vendor copies of monthly or
quarterly brokerage statements (either directly from the broker-dealer or from
the Access Person) reflecting all of the Access Person’s reportable personal
securities transactions during the period. The brokerage statements
must contain the information set forth below:
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Security Identification
information, including as appropriate: ticker symbol or CUSIP number,
interest rate and maturity
date;
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Number of Shares or
Par;
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Type of Transaction (Purchase,
Sale
or
Other);
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Price at which the transaction was
executed;
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The third-party compliance vendor will
coordinate with the Firm’s CCO regarding review of the
reports. Securities not required to be reported may be found in
Acceptable Personal Trades section.
Acceptable
Personal Trades and Exempt Transactions
The
following forms of securities may be freely held or traded by Access Persons,
without regard to the Personal Trading Restrictions described above or the
reporting requirements described in Reports of Personal Securities
above. For these reasons, the following securities are considered
safest from a regulatory perspective for an Access Person to purchase, sell or
hold. Access Persons are therefore encouraged to conduct their
personal transactions within the following types of acceptable securities and
exempt transactions:
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1.
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Shares of open-end mutual funds
not managed by the Firm (Note: trades in closed-end mutual funds or
exchange traded funds must follow the Personal Trading Restrictions
requirements described in this
Code);
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2.
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Shares of any money market
fund;
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3.
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Direct obligations of the United
States Government;
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4.
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Money market instruments,
including bankers’ acceptances, bank certificates of deposit, commercial
paper, repurchase agreements and other high quality short-term
debt;
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5.
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Any report with respect to
securities held in accounts over which the Access Person has no direct or
indirect influence or control (i.e., accounts managed by an outside
investment adviser on a discretionary basis);
and
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6.
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Transactions effected pursuant to
an automatic investment plan (including dividend reinvestment
plans).
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Firm
Review of Personal Transaction Reports
The
following factors will be considered when reviewing reportable security holdings
and transactions and pre-clearance requests.
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1.
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Whether the investment opportunity
should be directed to a client’s
account;
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2.
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Whether the amount or nature of
the transaction affected/will affect the price or market for the
security;
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3.
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Whether the Access Person
benefited or will benefit from purchases or sales being made for
clients;
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4.
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Whether the transaction
harmed/will harm any client;
or
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5.
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Whether the transaction has the
appearance of
impropriety.
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The third-party compliance vendor will
review the CCO’s quarterly transaction report. In no case should an
Access Person review his/her own report.
Code
of Ethics and Personal Trading Policy Violations
All
Supervised Persons are required to report promptly any apparent or suspected
violations of this policy to the CCO (including the discovery of any violation
committed by another Supervised Person). Examples of items that
should be reported include but are not limited to noncompliance with federal
securities laws, conduct that is harmful to clients and purchasing securities
contrary to the Personal Trading Policy. Such violations must be
reported to the CCO on a timely basis. If the possible violation
involves the CCO, you should report it directly to the Vice
Chairman.
Such
reports by Supervised Persons will not be viewed negatively by Firm management,
even if the reportable event, upon further review, is determined to not be a
violation and CCO determined the Supervised Person reported such apparent
violation in good faith.
All
reports will be treated with the utmost level of
confidentiality. Retaliation by the Firm or any Supervised Person
against anyone who reports a suspected violation is prohibited. Such
attempted retaliation would be treated as a further violation of this
Code.
Recordkeeping
Policy
We are
subject to extensive recordkeeping requirements. Records must be
maintained for a minimum of two years in The Firm’s home office and three
additional years in an easily accessible place, for a total of five
years. Certain records must be maintained for the life of the
Firm.
The
following records shall be maintained for the required document retention
period:
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1.
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A copy of each Code that has been
in effect at any time during the last five
years.
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2.
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A record of any violation of the
Code and any action taken as a result of such violation of for five years
from the end of the fiscal year in which the violation
occurred.
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3.
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A record of all written
acknowledgements of receipt of the Code and amendments for each person who
is currently, or within the past five years was, a Supervised Person.
(These records must be kept for five years after the individual ceases to
be a Supervised Person of the
Firm)
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4.
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Pre-Clearance Forms, holdings and
transaction reports made pursuant to the Code, including any brokerage
confirmation and account statements made in lieu of these
reports.
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5.
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A list of the names of persons who
currently, or within the past five years, were Access Persons or
investment personnel.
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6.
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A record of any decision and
supporting reasons for approving the acquisition of securities by Access
Persons in limited offerings for at least five years after the end of the
fiscal year in which approval was
granted.
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7.
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A record of any decisions and
supporting reasons that grant Supervised Persons or Access Persons a
waiver from or exception to the
Code.
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8.
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Copies of all reports provided to
Senior Management regarding the annual review of the Code and a listing of
any material violations.
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9.
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A record of persons responsible
for reviewing the Access Persons reports currently and during the previous
five years.
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Administration
and Enforcement of the Code
Training
and Education
The Firm
has designated the Director of Administration of the Firm as the individual
responsible for training and educating supervised persons regarding the
Code. Training will occur periodically and all supervised persons are
required to attend any training and/or read all applicable
materials.
Annual
Review
The CCO
must review at least annually the adequacy of the current Code as well as the
effectiveness of its implementation. This report should be delivered
to senior management including the Chairman. All material violations
should be brought to the attention of senior management as well, in a timely
manner.
New
Employee Acknowledgement
New
employees must acknowledge they have read and understand and they must agree to
comply with this Code of Ethics and Personal Trading Policy. This is
done by completing
Exhibit
D
.
Annual
and Amendment Acknowledgements
All
Supervised Persons are required to acknowledge annually that they have read,
understand and agree to comply with the Code, in connection with the Firm’s
annual policy acknowledgement process. This is done by completing
Exhibit
D
. Amendments will be distributed via e-mail and again, an
acknowledgement must be completed and returned to the Firm’s third-party
compliance vendor via
Exhibit
D
.
Form
ADV Disclosure
A
description of our Code will be provided in the Firm’s Form ADV, Part II,
Schedule F. If requested, a copy of the complete Code will be
provided to any current or prospective client that makes a
request. The Firm’s Form ADV will be updated if necessary to reflect
amendments to the Code.
Sanctions
Violations
of the Code may result in disciplinary action against the Supervised
Person. The disciplinary action may be whatever the Vice Chairman and
CCO deem appropriate given the situation, and may include a written warning,
fines, disgorgement of profits and/or losses avoided, suspension, demotion, or
termination of employment. Violations may also be referred to civil
or criminal authorities where appropriate.
Further
Information
For
further information regarding the Code of Ethics and Personal Trading Policy for
GC Advisors LLC, please contact the CCO.
Matthew
S. Hardin
4500
Brooktree Road, Suite 104
Wexford,
PA
mhardin@hardincompliance.com
724-935-6771
Procedure
for the Detection and Prevention of the Misuse of Material, Nonpublic
Information
In
furtherance of the objectives of the Insider Trading and Securities Fraud
Enforcement Act of 1988 (the Insider Trading Act), Adviser has established the
following policies and procedures designed to detect and prevent the misuse of
material, nonpublic information (as hereinafter defined). Given the
potential liability to which both the Firm and its personnel are subject to
under the Insider Trading Act, it is critical that all Supervised Persons
thoroughly familiarize themselves with these procedures. Questions
should be directed to the CCO.
Prohibition
against Misuse of Material, Nonpublic Information
SEC Rule
10b-5 makes it unlawful for any person to misuse, either directly or indirectly,
any material, nonpublic information. Supervised Persons who are in
possession of any material, nonpublic information are prohibited
from:
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1.
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Purchasing or selling such
securities for their own accounts or for accounts in which they have a
beneficial interest or over which they have the power, directly or
indirectly, to make investment
decisions;
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2.
|
Soliciting customers’ orders to
purchase or sell the
securities;
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3.
|
Issuing research reports,
recommendations or comments which could be construed as recommendations;
and
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4.
|
Disclosing such information or any
conclusions based thereon to any other person in or outside the Firm,
except as set forth herein.
|
“Material,
non-public information” is any information which has not been publicly
disseminated and which a reasonable investor might consider important in making
an investment decision. Examples of the types of information that is
likely to be deemed “material” include, but are not limited to, the
following:
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1.
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Dividend increases or
decreases;
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2.
|
Earnings estimates or material
changes in previously released earnings
estimates;
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3.
|
Significant expansion or
curtailment of operations;
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4.
|
Significant increase or decline in
revenue;
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5.
|
Significant merger or acquisition
proposals or agreements, including tender
offers;
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6.
|
Significant new products or
discoveries;
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7.
|
Extraordinary
borrowing;
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10.
|
Extraordinary management
developments; and
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11.
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Purchase and sale of substantial
assets.
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The Firm
is engaged in an investment advisory practice on behalf of institutional
clients, which may result in its receipt of material nonpublic
information. It is good practice, therefore, to exercise caution in
discussing one’s work with family, friends and
colleagues. Discussions in the office should be limited based on a
“need to know” basis. Substantive discussions should be avoided in
restaurants, elevators and other public places where conversations may be
overheard. Care should also be exercised in using, transporting and
disposing of written materials, including drafts and notes. The
following specific policies and procedures to prevent the dissemination of
material, non-public information acquired in the course of the Firm’s business
have been adopted and shall become effective immediately. These are
collectively referred to in the securities industry as a “Chinese
Wall.”
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1.
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Material, non-public information
may not be communicated to any person except the Vice Chairman, CFO, CCO,
Counsel for the Firm or other Supervised Persons whom the Vice Chairman
and/or CFO determines need such information to carry out their
professional responsibilities. Such persons must treat the
information confidentially.
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2.
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All such material non-public
information that is in written form should be kept in a confidential and
private location at all times when not being
used.
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3.
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If such information is
computerized, access to the computer files and computerized information
will be restricted only to those Supervised Persons approved by the Vice
Chairman and/or CFO.
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4.
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Aside from these procedures and
policies, if a Supervised Person of the Firm obtains any information that
he or she has any reason to believe may constitute material nonpublic
information; such information should be brought immediately to the
attention of the Vice Chairman and/or CFO and the
CCO.
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The CCO
is responsible for all insider trading review and/or
determinations. Nothing in this policy is to override the policies
and procedures outlined in the Firm’s Code in effect at the time.
EXHIBIT
A
GC
Advisors LLC
Personal
Trading Pre-Clearance Form
The
Personal Trading Pre-Clearance Form documents that the proposed transaction is
not a conflicting transaction. Pre-clearance must be granted prior to
placing a trade, and is only good for the day of the approval.
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SECURITY
NAME
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TICKER/
CUSIP
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#
OF SHARES/ CONTRACTS/ PRINCIPAL
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TYPE
OF TRADE
1
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SECURITY
TYPE
2
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BROKER/
CUSTODIAN
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1.
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Buy (B), Sell (S), Short (Sh),
Covered Short (CS)
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2.
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Common Stock, Option, Debt,
IPO/Limited Offering, Other
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For IPO trades, please provide
Public Offering Date:
______________________
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I certify
that,
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1.
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I
have no inside information or other knowledge pertaining to this proposed
transaction that constitutes a violation of Firm policy, confidentiality
agreements or securities laws.
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2.
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I
am not an officer, director or principal shareholder of the company and am
not required to file any of the reports required by Section 16 of the
Securities Exchange Act of 1934.
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3.
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Any
transaction described above establishing a position in a Security is
undertaken with the intention of holding such position for not less than
thirty (30) days.
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4.
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For
a Limited Offering or IPO: I certify and acknowledge the
following:
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a.
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I am not investing in this Limited
Offering or IPO to profit improperly from my position as a Firm Supervised
Person;
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b.
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The investment opportunity did not
arise by virtue of my activities on behalf of a Firm client;
and
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c.
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To the best of my knowledge, no
Firm clients have any foreseeable interest in purchasing this
Security;
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Supervised
Person ______________________________________________ (Print Name)
Signed
________________________________________________
__________________
Date
By
signing below, the individual verifies that the proposed transaction described
above does not violate the Firm’s Personal Security Transaction
Policy. Note: Two signatures are required for
pre-clearance.
___________________________________
____________
__________________
Business
Line Approver
*
, GC Advisors
LLC Date
_______________________________________________
__________________
Chairman/Vice
Chairman, GC Advisors
LLC
Date
*
For Direct Lending: Greg Cashman and Andrew Steuerman; Broadly Syndicated: Cora
Passis, Christina Jamieson and Michael Loehrke; Club Loans: Gregory Robbins;
Secured Notes: Craig Benton; Agency: Heath Fuller. Please note the
above business line leaders require the approval of David Golub or Lawrence
Golub.
EXHIBIT
B
Initial
and Annual Reporting Form (Securities Accounts and Securities
Holdings)
Supervised
Person ___________________________________________________ (Print
Name)
Information
submitted current as of ___________________________________________
(Date)
In
accordance with GC Advisors, LLC Code of Ethics and Personal Trading Policy,
please provide a list of all securities accounts in which you have a beneficial
interest. Note that this includes accounts of immediate family
members living in your household. Use additional sheets as
necessary.
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Name
of Broker,
Dealer
or Bank
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Account
Title
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Account
Number
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In
accordance with GC Advisors, LLC Code of Ethics and Personal Trading Policy,
please provide a list of all reportable securities in which you have a
beneficial interest. This includes securities held by broker/dealers
and other custodians, at your home, in safe deposit boxes, and by an
issuer. Supervised Persons may submit their brokerage/custodial
statements in lieu of listing all securities holdings.
Use additional sheets as
necessary
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Number
of Shares (if applicable)
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Security
Name
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Type
(e.g.,
equity,
fixed
income)
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Ticker
or
CUSIP
(if
applicable)
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Principal
Amount (if applicable)
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I certify
that this form fully discloses all of the securities accounts in which I have a
beneficial interest.
I certify
that this form fully discloses all of the reportable securities in which I have
a beneficial interest. Nothing in this report should be construed as
an admission that the person making the report has any direct or indirect
beneficial ownership in the securities contained in this report.
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Reviewed
by:
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Signature
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Date
of Review:
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Exception(s)
Noted:
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No
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Yes
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If
Yes, Describe:
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Date
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EXHIBIT
C
GC
Advisors/Golub Capital
Quarterly
Activity Report
Quarter
Ended: _____________________
Employee
Name: ____________________
Accounts:
Firm
Name
Account Number
Trades:
Firm
Name
Account
Number
Trade
Date
Ticker
symbol/CUSIP number
Interest
Rate
Maturity
Date
Number
of Shares or Par
Type
of Transaction (Purchase, Sale or Other)
Price
Principal
Amount
Outside
Activities:
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Outside
Organization
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Role
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Purpose/Description
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Public
Company (Y/N)
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Family?
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Circle
One and Sign Below:
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YES
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I
acknowledge that the information on this report is accurate and
complete.
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NO
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The
information in this report contains errors or is not
complete. I acknowledge that I have supplied the correct
information to the Firm’s CCO to update this
report.
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___________________________________________________
______________________
Supervised
Person
Name Date
EXHIBIT
D
ACKNOWLEDGMENT
OF CODE OF ETHICS AND PERSONAL TRADING POLICY
Please
indicate below whether this is an initial acknowledgement, an annual
acknowledgement, or an acknowledgement of an amended Code of Ethics and Personal
Trading Policy.
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Initial
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____
Annual
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____
Amended
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You must review the Firm’s
Code of Ethics and Personal Trading Policy before completing this
Acknowledgment. Terms defined in the Code of Ethics and Personal
Trading Policy have the same meanings in this Acknowledgment. You
must give this Acknowledgment directly to the Director of Administration or to
the Chief Compliance Officer
.
I
REPRESENT AND CERTIFY THAT I HAVE RECEIVED, READ, UNDERSTOOD AND WILL COMPLY
WITH THE CODE OF ETHICS AND PERSONAL TRADING POLICY AND UNDERSTAND THAT I AM
SUBJECT TO THE CODE AND THE SANCTIONS DESCRIBED THEREIN. IF THIS IS
AN ANNUAL CERTIFICATION, I FURTHER REPRESENT AND CERTIFY THAT I HAVE COMPLIED
WITH THE CODE DURING THE PRECEDING YEAR.
Please
direct questions regarding the completion of this Acknowledgment to the Chief
Compliance Officer.
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Name
of Supervised Person
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Dated:
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Signature
of Supervised Person
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