|
|
|
|
|
Maryland
|
|
814-00733
|
|
06-1798488
|
(State or Other Jurisdiction
of Incorporation)
|
|
(Commission
File Number)
|
|
(IRS Employer
Identification No.)
|
|
|
|||
300 South Tryon Street, Suite 2500
Charlotte, North Carolina
|
|
28202
|
||
(Address of Principal Executive Offices)
|
|
(Zip Code)
|
¨
|
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
|
¨
|
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
|
¨
|
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
|
¨
|
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
|
•
|
On August 2, 2018, the Company entered into an investment advisory agreement (the “
Advisory Agreement
”) and an administration agreement (the “
Administration Agreement
”) with the Adviser pursuant to which the Adviser serves as the Company’s investment adviser and administrator and manages its investment portfolio which initially consists of the cash proceeds received in connection with the Asset Sale.
|
•
|
On August 2, 2018, the Company issued 8,529,917 shares of Common Stock to the Adviser at a price of $11.723443 per share, or an aggregate of $100.0 million in cash, in a private transaction exempt from registration under Section 4(a)(2) of the Securities Act of 1933, as amended (the “
Securities Act
”), and/or Rule 506 of Regulation D thereunder (the “
Stock Issuance
”).
|
•
|
On August 2, 2018, the Company entered into a registration rights agreement with the Adviser with respect to the shares of Common Stock acquired in the Stock Issuance (the “
Registration Rights Agreement
”).
|
•
|
1.0% for the period from August 2, 2018 through December 31, 2018;
|
•
|
1.125% for the period commencing on January 1, 2019 through December 31, 2019; and
|
•
|
1.375% for all periods thereafter.
|
(i)
|
For each quarter from and after August 2, 2018 (the date of the Advisory Agreement) through December 31, 2019 (the “
Pre-2020 Period
”), the Income-Based Fee will be calculated and payable quarterly in arrears based on the Pre-Incentive Fee Net Investment Income for the immediately preceding calendar quarter for which such fees are being calculated. In respect of the Pre-2020 Period, “
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, managerial assistance and consulting fees or other fees that the Company receives from portfolio companies) accrued during the relevant calendar quarter, minus the Company’s operating expenses for such quarter (including the Base Management Fee, expenses payable under the Administration Agreement, any interest expense and any dividends paid on any issued and 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 original issue discount, debt instruments with payment-in-kind interest and zero coupon securities), accrued income not yet received in cash. Pre-Incentive Fee Net Investment Income does not include any realized capital gains, realized capital losses or unrealized capital appreciation or depreciation.
|
(ii)
|
For each quarter beginning on and after January 1, 2020 (the “
Post-2019 Period
”), the Income-Based Fee will be calculated and payable quarterly in arrears based on the Pre-Incentive Fee Net Investment Income for the immediately preceding calendar quarter and the eleven preceding calendar quarters (or such fewer number of
|
(iii)
|
Pre-Incentive Fee Net Investment Income, expressed as a rate of return on the value of the Company’s net assets (defined as total assets less senior securities constituting indebtedness and preferred stock) at the end of the calendar quarter for which such fees are being calculated, will be compared to a “hurdle rate”, expressed as a rate of return on the value of the Company’s net assets at the end of the most recently completed calendar quarter, of 2% per quarter (8% annualized). The Company will pay the Adviser the Income-Based Fee with respect to the Company’s Pre-Incentive Fee Net Investment Income in each calendar quarter as follows:
|
(1)
|
(a) With respect to the Pre-2020 Period, no Income-Based Fee for any calendar quarter in which the Company’s Pre-Incentive Fee Net Investment Income (as defined in paragraph (i) above) does not exceed the hurdle rate;
|
(2)
|
(a) With respect to the Pre-2020 Period, 100% of the Company’s Pre-Incentive Fee Net Investment Income (as defined in paragraph (i) above) for any calendar quarter with respect to that portion of the Pre-Incentive Fee Net Investment Income for such quarter, if any, that exceeds the hurdle rate but is less than 2.5% (10% annualized) (the “
Pre-2020 Catch-Up Amount
”). The Pre-2020 Catch-Up Amount is intended to provide the Adviser with an incentive fee of 20% on all of the Company’s Pre-Incentive Fee Net Investment Income (as defined in paragraph (i) above) when the Company’s Pre-Incentive Fee Net Investment Income (as defined in paragraph (i) above) reaches 2% per quarter (8% annualized);
|
(3)
|
(a) With respect to the Pre-2020 Period, 20% of the amount of the Company’s Pre-Incentive Fee Net Investment Income (as defined in paragraph (i) above) for any calendar quarter with respect to that portion of the Pre-Incentive Fee Net Investment Income (as defined in paragraph (i) above) for such quarter, if any, that exceeds the Pre-2020 Catch-Up Amount; and
|
•
|
the allocable portion of the Adviser’s rent for the Company’s Chief Financial Officer and the Chief Compliance Officer and their respective staffs, which is based upon the allocable portion of the usage thereof by such personnel in connection with their performance of administrative services under the Administration Agreement;
|
•
|
the allocable portion of the salaries, bonuses, benefits and expenses of the Company’s Chief Financial Officer and Chief Compliance Officer and their respective staffs, which is based upon the allocable portion of the time spent by such personnel in connection with performing administrative services for the Company under the Administration Agreement;
|
•
|
the actual cost of goods and services used for the Company and obtained by the Adviser from entities not affiliated with the Company, which is reasonably allocated to the Company on the basis of assets, revenues, time records or other method conforming with generally accepted accounting principles;
|
•
|
all fees, costs and expenses associated with the engagement of a sub-administrator; and
|
•
|
costs associated with (a) the monitoring and preparation of regulatory reporting, including registration statements and amendments thereto, prospectus supplements, and tax reporting, (b) the coordination and oversight of service
|
Director Name
|
|
Director
Class
|
|
Term
Expires
|
Interested Directors
|
|
|
|
|
Michael Freno
|
|
Class II
|
|
2020
|
Tom Finke
|
|
Class III
|
|
2021
|
Eric Lloyd
|
|
Class I
|
|
2019
|
Independent Directors
|
|
|
|
|
Thomas W. Okel
|
|
Class III
|
|
2021
|
Jill Olmstead
|
|
Class III
|
|
2021
|
Mark Mulhern
|
|
Class I
|
|
2019
|
John Switzer
|
|
Class II
|
|
2020
|
•
|
E. Ashton Poole, the Company’s Chief Executive Officer and President;
|
•
|
Steven C. Lilly, the Company’s Chief Financial Officer, Secretary and Chief Compliance Officer;
|
•
|
C. Robert Knox, Jr., the Company’s Controller and Principal Accounting Officer;
|
•
|
Jeffrey A. Dombcik, Senior Managing Director and Chief Credit Officer;
|
•
|
Cary B. Nordan, Senior Managing Director and Chief Origination Officer; and
|
•
|
Douglas A. Vaughn, Senior Managing Director and Chief Administrative Officer.
|
Name
|
|
Age
|
|
Position
|
Eric Lloyd
|
|
50
|
|
Chief Executive Officer
|
Jonathan Bock
|
|
36
|
|
Chief Financial Officer
|
Ian Fowler
|
|
54
|
|
President
|
C. Robert Knox, Jr.
|
|
46
|
|
Principal Accounting Officer
|
Melissa LaGrant
|
|
44
|
|
Chief Compliance Officer
|
Executive Officer
|
|
Title
|
|
Discretionary Bonus
|
|
E. Ashton Poole
|
|
President and Chief Executive Officer
|
|
$500,000
|
|
Steven C. Lilly
|
|
Chief Financial Officer, Secretary and Chief Compliance Officer
|
|
$500,000
|
|
Jeffrey A. Dombcik
|
|
Senior Managing Director and Chief Credit Officer
|
|
$235,000
|
|
Douglas A. Vaughn
|
|
Senior Managing Director and Chief Administrative Officer
|
|
$110,000
|
Item 9.01.
|
Financial Statements and Exhibits.
|
Exhibit
No.
|
|
Description
|
3.1
|
|
|
3.2
|
|
|
3.3
|
|
|
10.1
|
|
|
10.2
|
|
|
10.3
|
|
|
99.1
|
|
|
|
|
|
|
|
|
Barings BDC, Inc.
|
||
|
|
|
||
Date: August 2, 2018
|
|
By:
|
|
/s/ Jonathan Bock
|
|
|
|
|
Jonathan Bock
|
|
|
|
|
Chief Financial Officer
|
|
|
|
|
|
ATTEST:
|
|
|
|
TRIANGLE CAPITAL CORPORATION
|
|
|
|
||
/s/ Steven C. Lilly
|
|
|
|
/s/ E. Ashton Poole
|
Steven C. Lilly
|
|
|
|
E. Ashton Poole
|
Secretary
|
|
|
|
Chief Executive Officer and President
|
|
|
|
|
|
ATTEST:
|
|
|
|
TRIANGLE CAPITAL CORPORATION
|
|
|
|
||
/s/ Steven C. Lilly
|
|
|
|
/s/ E. Ashton Poole
|
Steven C. Lilly
|
|
|
|
E. Ashton Poole
|
Secretary
|
|
|
|
Chief Executive Officer and President
|
1.
|
In General
.
|
(i).
|
organizational and offering expenses;
|
(ii).
|
fees and expenses incurred in valuing the Company’s assets and computing its net asset value (including the cost and expenses of any independent valuation firm);
|
(iii).
|
the fees and expenses incurred by the Company or payable to third parties, including lawyers, accountants, auditors, agents, consultants or other advisors, in connection with the Company’s financial, accounting and legal affairs and in monitoring the Company’s investments and performing due diligence on the Company’s prospective portfolio companies or otherwise related to, or associated with, evaluating and making investments, including expenses related to unsuccessful portfolio acquisition efforts;
|
(iv).
|
all fees, costs and expenses of money borrowed by the Company, including principal, interest and the costs associated with the establishment and maintenance of any credit facilities, other financing arrangements, or other indebtedness of the Company, if any (including commitment fees, accounting and legal fees, closing and other costs);
|
(v).
|
offerings of the Company’s common stock and other securities;
|
(vi).
|
investment advisory and management fees payable under Section 6 of this Agreement;
|
(vii).
|
administration fees;
|
(viii).
|
transfer agent and custody fees and expenses;
|
(ix).
|
federal and state registration fees;
|
(x).
|
all costs of registration and listing the Company’s securities on any securities exchange;
|
(xi).
|
federal, state and local taxes;
|
(xii).
|
Non-Interested Directors’ compensation, fees and expenses;
|
(xiii).
|
costs of preparing and filing reports or other documents required by the SEC or other regulators;
|
(xiv).
|
costs of any reports, proxy statements or other notices to stockholders, including printing costs;
|
(xv).
|
costs of holding stockholder meetings;
|
(xvi).
|
the Company’s allocable portion of the fidelity bond, directors and officers/errors and omissions liability insurance, and any other insurance premiums, including independent director liability policies;
|
(xvii).
|
direct costs and expenses of administration and operation, including printing, mailing, long distance telephone, copying, secretarial and other staff, independent auditors and outside legal costs;
|
(xviii).
|
all third-party legal, expert and other fees, costs and expenses relating to any actions, proceedings, lawsuits, demands, causes of action and claims, whether actual or threatened, made by or against the Company, or which the Company is authorized or obligated to pay under applicable law or its governing agreements or by the Board of Directors;
|
(xix).
|
subject to Section 7 below, any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company, or against any trustee, director, partner, member or officer of the Company in his capacity as such for which the Company is required to indemnify such trustee, director, partner, member or officer by any court or governmental agency, or settlement of pending or threatened proceedings;
|
(xx).
|
all travel and related expenses of directors, officers, managers, agents and employees of the Company and the Adviser, incurred in connection with attending meetings of the Board of Directors or holders of securities of the Company or performing other business activities that relate to the Company, including travel and related expenses incurred in connection with the purchase, consideration for purchase, financing, refinancing, sale or other disposition of any investment or potential investment of the Company; provided, however, that the Company shall only be responsible for (A) a proportionate share of such expenses, as determined by the Adviser in good faith, where such expenses were not incurred solely for the benefit of the Company, and (B) expenses incurred in accordance with the Company’s travel expense reimbursement policies;
|
(xxi).
|
all expenses relating to payments of dividends or interest or distributions in cash or any other form made or caused to be made by the Board of Directors to or on account of holders of the securities of the Company, including in connection with any dividend reinvestment plan or direct stock purchase plan;
|
(xxii).
|
all fees, costs and expenses related to (A) the design and maintenance of the Company’s web site or sites and (B) the Company’s allocable share of costs associated with technology-related expenses, including any computer software or hardware, electronic equipment or purchased information technology services from third-party vendors or affiliates of the Adviser that is used
|
(xxiii).
|
all fees, costs and expenses incurred with respect to market information systems and publications, research publications and materials, and settlement, clearing and custodial fees and expenses; provided, however, that the Company shall only be responsible for a proportionate share of such expenses, as determined by the Adviser in good faith, where such expenses were not incurred solely for the benefit of the Company; and
|
(xxiv).
|
all other non-investment advisory expenses incurred by the Company or the Administrator in connection with administering the Company’s business (including payments under the Administration Agreement based upon the Company’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 Company’s Chief Financial Officer and Chief Compliance Officer and their respective staffs).
|
1.
|
|
a.
|
With respect to the Pre-2020 Period, no Income-Based Fee for any calendar quarter in which the Company’s Pre-Incentive Fee Net Investment Income (as defined in Section 6(b)(i)) does not exceed the hurdle rate;
|
b.
|
With respect to the Post-2019 Period, no Income-Based Fee for any calendar quarter in which the Company’s Pre-Incentive Fee Net Investment Income (as defined in Section 6(b)(ii)) does not exceed the hurdle rate;
|
2.
|
|
a.
|
With respect to the Pre-2020 Period, 100% of the Company’s Pre-Incentive Fee Net Investment Income (as defined in Section 6(b)(i)) for any calendar quarter with respect to that portion of the Pre-Incentive Fee Net Investment Income for such quarter, if any, that exceeds the hurdle rate but is less than 2.5% (10% annualized) (the “
Pre-2020 Catch-Up Amount
”).
The Pre-2020 Catch-Up Amount is intended to provide the Adviser with an incentive fee of 20% on all of the Company’s Pre-Incentive Fee Net Investment Income (as defined in Section 6(b)(i)) when the Company’s Pre-Incentive Fee Net Investment Income (as defined in Section 6(b)(i)) reaches 2% per quarter (8% annualized);
|
b.
|
With respect to the Post-2019 Period, 100% of the Company’s Pre-Incentive Fee Net Investment Income (as defined in Section 6(b)(ii)) with respect to that portion of the Pre-Incentive Fee Net Investment Income (as defined in Section 6(b)(ii)), if any, that exceeds the hurdle rate but is less than 2.5% (10% annualized) (the “
Post-2019 Catch-Up
|
c.
|
With respect to the Pre-2020 Period, 20% of the amount of the Company’s Pre-Incentive Fee Net Investment Income (as defined in Section 6(b)(i)) for any calendar quarter with respect to that portion of the Pre-Incentive Fee Net Investment Income (as defined in Section 6(b)(i)) for such quarter, if any, that exceeds the Pre-2020 Catch-Up Amount; and
|
d.
|
With respect to the Post-2019 Period, 20% of the amount of the Company’s Pre-Incentive Fee Net Investment Income (as defined in Section 6(b)(ii)) for any calendar quarter with respect to that portion of the Pre-Incentive Fee Net Investment Income (as defined in Section 6(b)(ii)), if any, that exceeds the Post-2019 Catch-Up Amount.
|
|
|
|
TRIANGLE CAPITAL CORPORATION
a Maryland corporation
|
||
|
|
|
By:
|
|
/s/ E. Ashton Poole
|
Name:
|
|
E. Ashton Poole
|
Title:
|
|
Chief Executive Officer and President
|
|
||
BARINGS LLC
a Delaware limited liability company
|
||
|
|
|
By:
|
|
/s/ Eric Lloyd
|
Name:
|
|
Eric Lloyd
|
Title:
|
|
Managing Director
|
(i).
|
the allocable portion of the Administrator’s rent for the Company’s Chief Financial Officer and the Chief Compliance Officer and their respective staffs, which will be based upon the allocable portion of the usage thereof by such personnel in connection with their performance of administrative services under this Agreement;
|
(ii).
|
the allocable portion of the salaries, bonuses, benefits and expenses of the Company’s Chief Financial Officer and Chief Compliance Officer and their respective staffs, which will be based
|
(iii).
|
the actual cost of goods and services used for the Company and obtained by the Administrator from entities not affiliated with the Company, which will be reasonably allocated to the Company on the basis of assets, revenues, time records or other method conforming with generally accepted accounting principles;
|
(iv).
|
all fees, costs and expenses associated with the engagement of a Sub-Administrator; and
|
(v).
|
costs associated with (a) the monitoring and preparation of regulatory reporting, including registration statement amendments, prospectus supplements, and tax reporting, (b) the coordination and oversight of service provider activities and the direct cost of such contractual matters related thereto and (c) the preparation of all financial statements and the coordination and oversight of audits, regulatory inquiries, certifications and sub-certifications.
|
(i).
|
This Agreement shall continue in effect for two years from the date hereof and thereafter continue automatically for successive annual periods, but only so long as such continuance is specifically
|
(ii).
|
This Agreement may be terminated at any time, without the payment of any penalty, by vote of the Board of Directors, or by the Administrator, upon 60 days’ written notice to the other party.
|
|
|
|
TRIANGLE CAPITAL CORPORATION
, a Maryland Corporation
|
||
|
|
|
By:
|
|
/s/ E. Ashton Poole
|
Name:
|
|
E. Ashton Poole
|
Title:
|
|
Chief Executive Officer and President
|
|
||
BARINGS LLC
, a Delaware limited liability company
|
||
|
|
|
By:
|
|
/s/ Eric Lloyd
|
Name:
|
|
Eric Lloyd
|
Title:
|
|
Managing Director
|
1.
|
Definitions
. As used in this Agreement, the following terms shall have the following meanings:
|
(a)
|
Agreement
has the meaning set forth in the Introductory Paragraph of this Agreement.
|
(b)
|
Affiliate
means, as to any specified Person, (i) any Person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the specified Person, (ii) any executive officer, director, trustee, general partner, managing member or similar position of the specified Person or (iii) any legal entity for which the specified Person acts as an executive officer, director, trustee, general partner, managing member or similar position. For purposes of this definition, “control” (including the correlative meanings of the terms “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly, or indirectly through one or more intermediaries, of the power to direct or cause the direction of the management and policies of such Person, whether by contract, through the ownership of voting securities, partnership interests or other equity interests or otherwise.
|
(c)
|
Business Day
means, with respect to any act to be performed hereunder, each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in New York, New York are authorized or obligated by applicable law, regulation or executive order to close.
|
(d)
|
Closing Date
means the date of this Agreement.
|
(e)
|
Company
has the meaning set forth in the Introductory Paragraph of this Agreement.
|
(f)
|
Commission
means the U.S. Securities and Exchange Commission.
|
(g)
|
Common Stock
has the meaning set forth in the Recitals of this Agreement.
|
(h)
|
Controlling Person
has the meaning set forth in
Section 7(a)
of this Agreement.
|
(i)
|
Effectiveness Deadline
means, with respect to the Initial Registration Statement or the New Registration Statement, the 60
th
calendar day following the Closing Date (or, in the event the Commission reviews and has written comments to the Initial Registration Statement or the New Registration Statement, the 90
th
calendar day following the Closing Date);
provided
,
further
, that if the Effectiveness Deadline falls on a Saturday, Sunday or other day that the Commission is closed for business, the Effectiveness Deadline shall be extended to the next Business Day on which the Commission is open for business.
|
(j)
|
Effectiveness Period
has the meaning set forth in
Section 2(b)
of this Agreement.
|
(k)
|
Exchange Act
means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated by the Commission pursuant thereto.
|
(l)
|
Filing Deadline
means, with respect to the Initial Registration Statement required to be filed pursuant to
Section 2(a)
, the thirtieth (30
th
) calendar day following the Closing Date;
provided
,
however
, that if the Filing Deadline falls on a Saturday, Sunday or other day that the Commission is closed for business, the Filing Deadline shall be extended to the next business day on which the Commission is open for business.
|
(m)
|
FINRA
means the Financial Industry Regulatory Authority.
|
(n)
|
Holder
means each Person that is a record owner of any Registrable Securities from time to time.
|
(o)
|
Indemnified Party
has the meaning set forth in
Section 7(c)
of this Agreement.
|
(p)
|
Indemnifying Party
has the meaning set forth in
Section 7(c)
of this Agreement.
|
(q)
|
Initial Registration Statement
has the meaning set forth in
Section 2(a)
of this Agreement.
|
(r)
|
Liabilities
has the meaning set forth in
Section 7(a)
of this Agreement.
|
(s)
|
New Registration Statement
has the meaning set forth in
Section 2(b)
of this Agreement.
|
(t)
|
Person
means an individual, partnership, corporation, trust, unincorporated organization, government or agency or political subdivision thereof, or any other legal entity.
|
(u)
|
Prospectus
means the prospectus included in any Registration Statement, including any preliminary prospectus, and all other amendments and supplements to any such prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference, if any, in such prospectus.
|
(v)
|
Purchaser Indemnitee
has the meaning set forth in
Section 7(a)
of this Agreement.
|
(w)
|
Registrable Securities
means (i) the Shares and (ii) any securities issued or issuable upon any stock split, dividend or other distribution, recapitalization or similar event relating to the Shares;
provided
,
however
, that Registrable Securities shall not include any securities of the Company that have previously been registered and remain subject to a currently effective Registration Statement or which have been sold to the public either pursuant to a Registration Statement or Rule 144, or which may be sold immediately without registration under the Securities Act and without volume restrictions pursuant to Rule 144.
|
(x)
|
Registration Expenses
means any and all expenses incident to the performance of or compliance with
Sections 2
,
3
and
6
of this Agreement, including, without limitation: (i) all Commission, securities exchange, FINRA filings, listing, inclusion and filing fees; (ii) any fees and expenses incurred in connection with compliance with federal or state securities or blue sky laws; (iii) all expenses of any Persons in preparing or assisting in preparing, word processing, duplicating, printing, delivering and distributing any Registration Statement, any Prospectus, any amendments or supplements thereto, any underwriting agreements, securities sales agreements, certificates and any other documents relating to the performance under and compliance with this Agreement; (iv) the fees and disbursements of counsel for the Company and of the independent public accountants of the Company (including, without limitation, the expenses of any special audit and “cold comfort” letters required by or incident to such performance), and reasonable fees and disbursements of counsel for selling Holders to review any Registration Statement; and (v) any fees and disbursements customarily paid in issues and sales of securities (including the fees and expenses of any experts retained by the Company in connection with any Registration Statement). For the avoidance of doubt, Registration Expenses shall exclude brokers’ or underwriters’ discounts and commissions and transfer taxes, if any, relating to the sale or disposition of Registrable Securities by a Holder and the fees and disbursements of any counsel to the Holders other than as provided for in subparagraph (iv) above.
|
(y)
|
Registration Statement
means the Initial Registration Statement, the New Registration Statement or any other registration statement that covers the resale of any Registrable Securities, including the Prospectus, amendments and supplements to such registration statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto and all material incorporated by reference or deemed to be incorporated by reference, if any, in such registration statement.
|
(z)
|
Rule 144
means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission as a replacement thereto having substantially the same effect as such rule.
|
(aa)
|
Rule 158
means Rule 158 promulgated by the Commission pursuant to the Securities Act, as such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission as a replacement thereto having substantially the same effect as such rule.
|
(ab)
|
Rule 415
means Rule 415 promulgated by the Commission pursuant to the Securities Act, as such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission as a replacement thereto having substantially the same effect as such rule.
|
(ac)
|
Rule 497
means Rule 497 promulgated by the Commission pursuant to the Securities Act, as such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission as a replacement thereto having substantially the same effect as such rule.
|
(ad)
|
Securities Act
means the Securities Act of 1933, as amended, and the rules and regulations promulgated by the Commission thereunder.
|
(ae)
|
Shares
has the meaning set forth in the Recitals of this Agreement.
|
(af)
|
Transaction Agreement
has the meaning set forth in the Recitals of this Agreement.
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(ag)
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Underwritten Offering
means a sale of securities of the Company to an underwriter or underwriters for reoffering to the public.
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2.
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Registration
.
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3.
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Piggyback Registrations
. If, at any time when there are Registrable Securities then outstanding there is not an effective Registration Statement covering all of the Registrable Securities, the Company proposes to register under the Securities Act any of its securities, whether or not for sale for its own account, on a form and in a manner which would permit registration of the Registrable Securities held by a Holder for sale to the public under the Securities Act (including, but not limited to, registration statements relating to secondary offerings of securities of the Company but excluding any registration statements (i) on Form N-14 (or any successor or substantially similar form), (ii) otherwise relating to any corporate reorganization or other transactions covered by Rule 145 promulgated under the Securities Act, or (iii) on any registration form which does not permit secondary sales or does not include substantially the same information as would be required to be included in a registration statement covering the resale of the Registrable Securities), the Company shall give written notice of the proposed registration to each Holder not later than ten (10) calendar days prior to the filing thereof. Each Holder shall have the right to request that all or any part of its Registrable Securities be included in such registration. Each Holder can make such a request by giving written notice to the Company within five (5) calendar days after the receipt of such notice by the Holders;
provided
,
however
, that if the registration is an Underwritten Offering and the managing underwriters of such offering determine that the aggregate amount of securities of the Company which the Company and all Holders propose to include in such registration statement exceeds the maximum amount of securities that may be sold without having a material adverse effect on the success of the offering, including without limitation the selling price and other terms of such offering, the Company will include in such registration, first, the securities that the Company proposes to sell, second, the Registrable Securities of such Holders, pro rata among all such Holders on the basis of the relative percentage of Registrable Securities owned by all Holders who have requested that securities owned by them be so included (it being further agreed and understood, however, that such underwriters shall have the right to eliminate entirely the participation of the Holders), and third, the comparable securities of any additional holders of the Company’s securities, pro rata among all such holders on the basis of the relative percentage of such securities held by each of them. Registrable Securities proposed to be registered and sold pursuant to an Underwritten Offering for the account of any Holder shall be sold to the prospective underwriters selected or approved by the Company and on the terms and subject to the conditions of one or more underwriting agreements negotiated between the Company and the prospective underwriters. Any Holder who holds
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4.
|
Expenses
. The Company shall bear all Registration Expenses in connection with the registration of the Registrable Securities pursuant to
Sections 2
and
3
of this Agreement.
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5.
|
Rules 144 and 144A Reporting
. With a view to making available the benefits of certain rules and regulations of the Commission that may permit the sale of the Registrable Securities to the public without registration, the Company shall, for so long as any Holder owns any Registrable Securities:
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6.
|
Registration Procedures
. In connection with the obligations of the Company with respect to any registration pursuant to this Agreement, the Company shall:
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7.
|
Indemnification and Contribution
.
|
8.
|
Miscellaneous
.
|
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TRIANGLE CAPITAL CORPORATION
,
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||
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By:
|
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/s/ E. Ashton Poole
|
Name:
|
|
E. Ashton Poole
|
Title:
|
|
Chief Executive Officer and President
|
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||
BARINGS LLC
,
|
||
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|
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By:
|
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/s/ Eric Lloyd
|
Name:
|
|
Eric Lloyd
|
Title:
|
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Managing Director
|
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