UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): April 30, 2018 (April 27, 2018)
BLACKROCK CAPITAL INVESTMENT CORPORATION
(Exact name of registrant as specified in its charter)
| Delaware | 814-00712 | 20-2725151 | ||
| (State or other jurisdiction of incorporation or organization) |
(Commission File Number) |
(IRS Employer Identification Number) |
40 East 52nd Street
New York, NY 10022
(Address of principal executive offices)
(212) 810-5800
(Registrant’s telephone number, including area code)
BlackRock Capital Investment Corporation
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | 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)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
On April 27, 2018, Michael J. Zugay notified BlackRock Capital Investment Corporation (the “Registrant”) that he is resigning from the Registrant for personal reasons, effective immediately. Mr. Zugay served as Chief Executive Officer of the Registrant. As a result of the resignation of Mr. Zugay from his position as Chief Executive Officer, the Board of Directors (the “Board”) of the Registrant has withdrawn its nomination of Mr. Zugay at the Registrant’s annual meeting of stockholders to be held May 4, 2018. The Board previously named Mr. Zugay as a nominee for election at the annual meeting to serve a term on the Board ending in 2021. The Board does not intend to present a replacement nominee at the annual meeting and has reduced the size of the Board from eight to seven directors. Any proxy cards that are submitted with instructions to vote for Mr. Zugay will be voted only for the two other nominees of the Board, as named in the Registrant’s proxy statement dated March 20, 2018.
On April 30, 2018, the Board appointed James E. Keenan as Interim Chief Executive Officer of the Registrant, effective immediately.
James E. Keenan, Chairman of the Board of the Registrant, is Managing Director of BlackRock, Inc. (together with certain of its affiliates, collectively “BlackRock”), Chief Investment Officer and Global Co-Head of Credit within BlackRock Alternative Investors (BAI). He leads the strategy for Global Fundamental Credit and is responsible for providing oversight of the investment process and performance, the partnerships with BlackRock’s distribution channels, and the team’s infrastructure as well as determining the strategic direction and growth initiatives of the platform. Jim oversees Leveraged Finance, Hedge Funds, and Private Credit businesses including opportunistic, middle market and specialty finance. He serves on BlackRock’s Global Operating Committee, BlackRock Alternative Investors Executive Committee and GFI Executive Committee.
Over the last 13 years, Jim was the portfolio manager across a variety of strategies including HY, Opportunistic and distressed portfolios and long short hedge funds. He has been responsible for building the Global Fundamental Credit business since 2006.
Prior to joining BlackRock in 2004, Mr. Keenan held roles within credit research and trading from 1998 to 2003 at UBS Global Asset Management and at Columbia Management Group.
Mr. Keenan is 41 years old. He earned a BBA degree in finance from the University of Notre Dame in 1998.
| Item 5.03. | Amendments to Articles of Incorporation or Bylaws. |
Effective as of April 30, 2018, the Registrant’s board of directors amended and restated the Registrant’s bylaws (the “Amended and Restated Bylaws”) to clarify that the chairman of any stockholder meeting has the authority to adjourn such stockholder meeting.
A copy of the Amended and Restated Bylaws is furnished as Exhibit 3.1 to this report. The foregoing description of the Amended and Restated Bylaws does not purport to be complete and is qualified in its entirety by reference to the full text of the Amended and Restated Bylaws, which are attached hereto as Exhibit 3.1 and are incorporated herein by reference.
| Item 9.01. | Financial Statements and Exhibits |
(d) Exhibits
| 3.1 | Amended and Restated Bylaws | |
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
| BLACKROCK CAPITAL INVESTMENT CORPORATION
| ||||||
| Date: April 30, 2018 | By: | /s/ Michael Pungello | ||||
| Name: | Michael Pungello | |||||
| Title: | Interim Chief Financial Officer and Treasurer | |||||
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Exhibit 3.1
AMENDED AND RESTATED
BY-LAWS
OF
BLACKROCK CAPITAL INVESTMENT CORPORATION
| Page | ||||||
| ARTICLE I | ||||||
| STOCKHOLDER MEETINGS | ||||||
| 1.1 | Place | 1 | ||||
| 1.2 | Annual Meeting | 1 | ||||
| 1.3 | Notice | 1 | ||||
| 1.4 | Chairman | 2 | ||||
| 1.5 | Proxies; Voting | 3 | ||||
| 1.6 | Inspectors of Election | 3 | ||||
| 1.7 | Records at Stockholder Meetings | 3 | ||||
| 1.8 | Quorum at Stockholder Meetings | 3 | ||||
| 1.9 | Adjournments | 4 | ||||
| ARTICLE II | ||||||
| DIRECTORS | ||||||
| 2.1 | General Powers | 4 | ||||
| 2.2 | Number, Tenure and Qualifications | 4 | ||||
| 2.3 | Regular and Special Meetings | 5 | ||||
| 2.4 | Chairman; Records | 6 | ||||
| 2.5 | Resignation and Removal | 6 | ||||
| 2.6 | Vacancies | 6 | ||||
| ARTICLE III | ||||||
| OFFICERS | ||||||
| 3.1 | Officers of the BDC | 7 | ||||
| 3.2 | Election and Tenure | 7 | ||||
| 3.3 | Removal of Officers | 7 | ||||
| 3.4 | Vacancies | 7 | ||||
| 3.5 | Bonds and Surety | 7 | ||||
| 3.6 | Chairman, Chief Executive Officer, and Vice Presidents | 7 | ||||
| 3.7 | Secretary | 8 | ||||
| 3.8 | Treasurer | 8 | ||||
| 3.9 | Other Officers and Duties | 8 | ||||
| 3.10 | Salaries | 9 | ||||
| Page | ||||||
| ARTICLE IV | ||||||
| COMMITTEES | ||||||
| 4.1 | Number, Tenure and Qualifications | 9 | ||||
| 4.2 | Powers | 9 | ||||
| 4.3 | Meetings | 9 | ||||
| 4.4 | Telephone Meetings | 10 | ||||
| 4.5 | Written Consent By Committees | 10 | ||||
| 4.6 | Vacancies | 10 | ||||
| ARTICLE V | ||||||
| MISCELLANEOUS | ||||||
| 5.1 | Contracts | 10 | ||||
| 5.2 | Checks and Drafts | 10 | ||||
| 5.3 | Deposits | 10 | ||||
| 5.4 | Signatures | 10 | ||||
| 5.5 | Seal | 10 | ||||
| 5.6 | Affixing Seal | 10 | ||||
| 5.7 | Accounting Year | 11 | ||||
| 5.8 | Authorization of Distributions | 11 | ||||
| 5.9 | Contingencies | 11 | ||||
| 5.10 | Investment Policy | 11 | ||||
| ARTICLE VI | ||||||
| STOCK TRANSFERS | ||||||
| 6.1 | Certificates | 11 | ||||
| 6.2 | Transfer Agents, Registrars and the Like | 12 | ||||
| 6.3 | Transfer of Shares | 12 | ||||
| 6.4 | Replacement Certificate | 12 | ||||
| 6.5 | Closing of Transfer Books or Fixing of Record Date | 12 | ||||
| 6.6 | Stock Ledger | 13 | ||||
| 6.7 | Fractional Stock; Issuance of Units | 13 | ||||
| 6.8 | Registered Stockholders | 13 | ||||
| ARTICLE VII | ||||||
| AMENDMENT OF BY-LAWS | ||||||
| 7.1 | Amendment and Repeal of By-Laws | 13 | ||||
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| Page | ||||||
| ARTICLE VIII | ||||||
| NOTICE | ||||||
| 8.1 | Notices | 14 | ||||
| 8.2 | Waiver of Notices | 14 | ||||
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BLACKROCK CAPITAL INVESTMENT CORPORATION
BY–LAWS
These By-Laws, amended and restated as of April 30, 2018, are made and adopted pursuant to the Certificate of Incorporation establishing BlackRock Capital Investment Corporation (hereinafter the “BDC”), dated as of April 13, 2005, as from time to time amended (hereinafter the “Certificate”). All words and terms capitalized in these By-Laws shall have the meaning or meanings set forth for such words or terms in the Certificate.
ARTICLE I
STOCKHOLDER MEETINGS
1.1 Place. All meetings of stockholders shall be held at the principal executive office of the BDC or at such other place as shall be set by the Board of Directors and stated in the notice of the meeting.
1.2 Annual Meeting. An annual meeting of the stockholders for the election of directors and the transaction of any business within the powers of the BDC shall be held on a date and at the time set by the Board of Directors.
1.3 Notice. Written notice of all meetings of stockholders, stating the time and place of the meeting, shall be given by the corporate secretary of the BDC (hereinafter the “Secretary”) by mail to each stockholder of record entitled to vote thereat at its registered address, mailed at least ten (10) days and not more than sixty (60) days before the meeting or otherwise in compliance with applicable law. Such notice will also specify the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting. No business (including without limitation nominations for the election of directors) may be transacted at an annual or special meeting of stockholders, other than business that is either (i) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors (or any duly authorized committee thereof), (ii) otherwise properly brought before the meeting by or at the direction of the Board of Directors (or any duly authorized committee thereof) or (iii) in the case of an annual meeting, otherwise properly brought before the meeting by any stockholder of the BDC, whether such proposal is included in the BDC’s proxy statement or a proxy statement prepared by one or more stockholders, (A) who is a stockholder of record on the date notice is given as provided for in this Article I Section 1.3 and on the record date for the determination of stockholders entitled to notice of and to vote at such annual meeting and (B) who complies with the notice procedures set forth in this Article I Section 1.3 or, with respect to the election of Directors, set forth in Section 2.2 of Article II.
(a) In addition to any other applicable requirements, for business to be properly brought before a meeting by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the BDC.
(i) To be timely, a stockholder’s notice to the Secretary must be delivered to or mailed and received at the principal executive offices of the BDC (A) in the case of an annual meeting, not less than ninety (90) days nor more than one hundred twenty (120) days prior to the anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that in the event that the annual meeting is called for a date that is not within thirty (30) days before or after such anniversary date, notice by the stockholder in order to be timely must be so received not later than the close of business on the tenth (10th) day following the day on which such notice of the date of the meeting was mailed or such public disclosure of the date of the meeting was made, whichever first occurs; and (B) in the case of a special meeting of stockholders called for the purpose of electing directors, not later than the close of business on the fifth (5th) day following the day on which notice of the date of the special meeting was mailed or public disclosure of the date of the special meeting was made, whichever first occurs.
(ii) Except for notices regarding nominations for the election of directors, which notices shall be prepared in accordance with Article II Section 2.2(c)(ii), to be in proper written form, a stockholder’s notice to the Secretary must set forth as to each matter such stockholder proposes to bring before the meeting (A) a brief description of the business desired to be brought before the meeting and the reasons for conducting such business at the meeting, (B) the name and record address of such stockholder, (C) the class or series and number of shares of the BDC which are owned beneficially or of record by such stockholder, (D) a description of all arrangements or understandings between such stockholder and any other person or persons (including their names) in connection with the proposal of such business by such stockholder and any material interest of such stockholder in such business and (E) a representation that such stockholder intends to appear in person or by proxy at the meeting to bring such business before the meeting.
(b) No business shall be conducted at a meeting of stockholders except business brought before the meeting in accordance with the procedures set forth in this Article I Section 1.3 or Article II Section 2.2, as the case may be; provided, however, that, once business has been properly brought before the meeting in accordance with such procedures, nothing in this Article I Section 1.3 shall be deemed to preclude discussion by any stockholder of any such business. If the chairman of a meeting determines that business was not properly brought before the meeting in accordance with the foregoing procedures, the chairman of the meeting shall declare to the meeting that the business was not properly brought before the meeting and such business shall not be transacted.
1.4 Chairman. The Chairman shall act as chairman at all meetings of the stockholders; in the Chairman’s absence, the Director or Directors present at each meeting may elect a temporary chairman for the meeting, who may be one of themselves.
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1.5 Proxies; Voting. Stockholders may vote either in person or by duly executed proxy and each full share represented at the meeting shall have one vote, all as provided in Article IV of the Certificate.
1.6 Inspectors of Election. In advance of any meeting of stockholders, the Directors may appoint Inspectors of Election to act at the meeting or any adjournment thereof. If Inspectors of Election are not so appointed, the Chairman of any meeting of stockholders may, and on the request of any stockholder or stockholder proxy shall, appoint Inspectors of Election of the meeting. The number of Inspectors of Election shall be one unless the Directors shall determine to appoint three. In case any person appointed as Inspector of Election fails to appear or fails or refuses to act, the vacancy may be filled by appointment made by the Directors in advance of the convening of the meeting or at the meeting by the person acting as chairman. The Inspectors of Election shall determine the number of shares of stock of the BDC (the “Shares”) outstanding, the Shares represented at the meeting, the existence of a quorum, the authenticity, validity and effect of proxies, shall receive votes, ballots or consents, shall hear and determine all challenges and questions in any way arising in connection with the right to vote, shall count and tabulate all votes or consents, determine the results, and do such other acts as may be proper to conduct the election or vote with fairness to all stockholders. If there are three Inspectors of Election, the decision, act or certificate of a majority is effective in all respects as the decision, act or certificate of all. On request of the Chairman of the meeting, or of any stockholder or stockholder proxy, the Inspectors of Election shall make a report in writing of any challenge or question or matter determined by them and shall execute a certificate of any facts found by them.
1.7 Records at Stockholder Meetings. At each meeting of the stockholders, there shall be made available for inspection at a convenient time and place during normal business hours, if requested by stockholders, the minutes of the last previous Annual or Special Meeting of stockholders of the BDC and a list of the stockholders of the BDC, as of the record date of the meeting or the date of closing of transfer books, as the case may be. Such list of stockholders shall contain the name and the address of each stockholder in alphabetical order and the number of Shares owned by such stockholder. Stockholders shall have such other rights and procedures of inspection of the books and records of the BDC as are granted to stockholders of a Delaware business corporation.
1.8 Quorum at Stockholder Meetings. The holders of a majority of the outstanding shares of capital stock entitled to vote at the meeting of stockholders, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders, except as otherwise provided by the Delaware General Corporation Law or the Certificate. A quorum, once established, shall not be broken by the withdrawal of enough votes to leave less than a quorum. When a specified item of business requires a vote by the holders of a class or series of shares of capital stock (if the BDC shall then have outstanding shares of more than one class or series) voting as a class or series, the holders of a majority of the shares of such class or series shall constitute a quorum (as to such class or series) for the transaction of such item of business, except as otherwise provided by the Delaware General Corporation Law or by the Certificate. Notwithstanding the foregoing, if there is no election contest and a majority of the outstanding shares of capital stock entitled to vote at the meeting are not present in person or by proxy, the holders of one-third of such shares (and one-third of the shares of any class or series) shall constitute a quorum to the extent permitted by applicable law.
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1.9 Adjournments. The chairman of the meeting may adjourn any meeting of the stockholders from time to time to reconvene at the same or some other place. Notice need not be given of any such adjourned meeting if the time and place, if any, thereof and the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the BDC may transact any business which might have been transacted at the original meeting. 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, notice of the adjourned meeting in accordance with the requirements of Section 1.3 hereof shall be given to each stockholder of record entitled to notice of and to vote at the meeting.
ARTICLE II
DIRECTORS
2.1 General Powers. The business and affairs of the BDC shall be managed under the direction of its Board of Directors.
2.2 Number, Tenure and Qualifications.
(a) At any regular meeting or at any special meeting called for that purpose, a majority of the entire Board of Directors may establish, increase or decrease the number of directors, provided that the number thereof shall never be less than two, nor more than nine, and further provided that the tenure of office of a director shall not be affected by any decrease in the number of directors. The term of office of a Director shall be as provided in the Certificate.
(b) The Directors shall be elected at an annual meeting of the stockholders or special meeting in lieu thereof called for that purpose, except as provided in the Certificate or in Section 2.6 of this Article II. Each Director elected shall hold office until his or her successor shall have been elected and shall have qualified. The term of office of a Director shall terminate and a vacancy shall occur in the event of the death, resignation, removal, bankruptcy, adjudicated incompetence or other incapacity to perform the duties of the office of the Director.
(c) Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors of the BDC, whether such person is submitted to stockholders in the BDC’s proxy statement or a proxy statement prepared by one or more stockholders, except as may be otherwise provided in the Certificate with respect to the right of holders of preferred stock of the BDC to nominate and elect a specified number of directors in certain circumstances. Nominations of persons for election to the Board of Directors at any annual meeting of stockholders, or at any special meeting of stockholders called for the purpose of electing directors, may be made (i) by or at the direction of the Board of Directors (or any duly authorized committee thereof) or (ii) by any stockholder of the BDC (A) who is a stockholder of record on the date of the giving of the notice provided for in this Article II Section 2.2 and on the record date for the determination of stockholders entitled to notice of and to vote at such meeting and (B) who complies with the notice procedures set forth in this Article II Section 2.2.
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(d) In addition to any other applicable requirements, for a nomination to be made by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the BDC.
(i) To be timely, a stockholder’s notice to the Secretary must be delivered to or mailed and received at the principal executive offices of the BDC in accordance with Article I Section 1.3(a)(i).
(ii) To be in proper written form, a stockholder’s notice to the Secretary must set forth (A) as to each person whom the stockholder proposes to nominate for election as a director (1) the name, age, business address and residence address of the person, (2) the principal occupation or employment of the person, (3) the class or series and number of Shares of the BDC which are owned beneficially or of record by the person, if any, and (4) any other information relating to the person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Securities Exchange Act of 1934 (the “Exchange Act”); and (B) as to the stockholder giving the notice (1) the name and record address of such stockholder, (2) the class or series and number of Shares of the BDC which are owned beneficially or of record by such stockholder, (3) a description of all arrangements or understandings between such stockholder and each proposed nominee and any other person or persons (including their names) in connection with which the nomination(s) are made by such stockholder, (4) a representation that such stockholder intends to appear in person or by proxy at the meeting to nominate the persons named in its notice and (5) any other information relating to such stockholder that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder. Such notice must be accompanied by a written consent of each proposed nominee to being named as a nominee and to serve as a director if elected.
(e) No person shall be eligible for election as a director of the BDC unless nominated in accordance with the procedures set forth in this Article II Section 2.2. If the chairman of the meeting determines that a nomination was not made in accordance with the foregoing procedures, the chairman shall declare to the meeting that the nomination was defective and such defective nomination shall be disregarded.
2.3 Regular and Special Meetings. Regular meetings of the Directors may be held without call or notice and regular meetings shall generally be held quarterly. Special meetings of the Directors may be called by the Chairman, the Chief Executive Officer, the Secretary or at the request in writing of a majority of the Directors then in office. Notice of the date, time and place of each special meeting shall be (i) mailed by regular mail to each Director
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at the Director’s designated address at least six days before the special meeting, (ii) sent by overnight courier to the Director’s designated address at least two days before the special meeting (with delivery scheduled to occur no later than the day before the meeting), or (iii) given orally by telephone or other means, or by email, telegraph or telecopy, or by any other means comparable to any of the foregoing, to each Director at the Director’s designated address at least twenty-four hours before the meeting.
Except to the extent required by law, neither the business to be transacted at, nor the purpose of, any meeting of the Board of Directors need be stated in any notice or waiver of notice of such meeting, and no notice need be given of action proposed to be taken by unanimous written consent.
2.4 Chairman; Records. The Chairman shall act as chairman at all meetings of the Directors; in absence of a chairman, the Directors present shall elect one of their number to act as temporary chairman. The results of all actions taken at a meeting of the Directors, or by unanimous written consent of the Directors, shall be recorded by the person appointed by the Board of Directors as the meeting secretary.
2.5 Resignation and Removal. Any of the Directors may resign (without need for prior or subsequent accounting) by an instrument in writing signed by such Director and delivered or mailed to the Directors, the Chairman, the Chief Executive Officer, or the Secretary and such resignation shall be effective upon such delivery, or at a later date according to the terms of the instrument. Any of the Directors may be removed, provided the aggregate number of Directors after such removal shall not be less than the minimum number set forth in the Certificate, only by the proportion of votes of the stockholders that are set forth in the Certificate as the required proportion of votes for removal of Director, and with or without cause as may be permitted by the Certificate or as required by applicable law. Upon the resignation or removal of a Director, each such resigning or removed Director shall execute and deliver to the BDC such documents as may be required by applicable law or the Certificate or as may be requested by the remaining Directors as being in the best interests of the BDC and its stockholders. Upon the incapacity or death of any Director, such Director’s legal representative shall execute and deliver to the BDC on such Director’s behalf such documents as the remaining Directors shall require as provided in the preceding sentence.
2.6 Vacancies. Whenever a vacancy in the Board of Directors shall occur, the remaining Directors may fill such vacancy by appointing an individual by a written instrument signed by a majority of the Directors, whether or not sufficient to constitute a quorum, then in office or may leave such vacancy unfilled or may reduce the number of Directors, so long as at all times the composition of the Board of Directors complies with the requirements of Sections 56(a) and 15(f)(1) of the Investment Company Act of 1940. The aggregate number of Directors after such reduction shall not be less than the minimum number required by the Certificate. If the stockholders of any class or series of Shares are entitled separately to elect one or more Directors, a majority of the remaining Directors elected by that class or series or the sole remaining Director elected by that class or series may fill any vacancy among the number of Directors elected by that class or series. Any vacancy created by an increase in Directors may be filled by the appointment of an individual made by a written instrument signed by a majority of the Directors then in office. Whenever a vacancy in the number of Directors shall occur, until
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such vacancy is filled as provided herein, the Directors in office, regardless of their number, shall have all the powers granted to the Directors and shall discharge all the duties imposed upon the Directors.
ARTICLE III
OFFICERS
3.1 Officers of the BDC. The officers of the BDC shall consist of a Chairman, a Chief Executive Officer, a Secretary, a Treasurer and such other officers or assistant officers as may be elected or authorized by the Directors. Any two or more of the offices may be held by the same person, except that the same person may not be both Chief Executive Officer and Secretary. The Chairman shall be a Director, but no other officer of the BDC need be a Director.
3.2 Election and Tenure. At the initial organization meeting, the Directors shall elect the Chairman, Chief Executive Officer, Secretary, Treasurer and such other officers as the Directors shall deem necessary or appropriate in order to carry out the business of the BDC. Such officers shall serve at the pleasure of the Directors or until their successors have been duly elected and qualified. The Directors may fill any vacancy in office or add any additional officers at any time.
3.3 Removal of Officers. Any officer may be removed at any time, with or without cause, by action of a majority of the Directors. This provision shall not prevent the making of a contract of employment for a definite term with any officer and shall have no effect upon any cause of action which any officer may have as a result of removal in breach of a contract of employment. Any officer may resign at any time by notice in writing signed by such officer and delivered or mailed to the Chairman, Chief Executive Officer, or Secretary, and such resignation shall take effect immediately upon receipt by the Chairman, Chief Executive Officer, or Secretary, or at a later date according to the terms of such notice in writing.
3.4 Vacancies. A vacancy in any office may be filled by the Board of Directors for the balance of the term.
3.5 Bonds and Surety. Any officer may be required by the Directors to be bonded for the faithful performance of such officer’s duties in such amount and with such sureties as the Directors may determine.
3.6 Chairman, Chief Executive Officer, and Vice Presidents. The Chairman shall, if present, preside at all meetings of the stockholders and of the Directors and shall exercise and perform such other powers and duties as may be from time to time assigned to such person by the Directors. Subject to such supervisory powers, if any, as may be given by the Directors to the Chairman, the Chief Executive Officer shall be the chief executive officer of the BDC and, subject to the control of the Directors, shall have general supervision, direction and control of the business of the BDC and of its employees and shall exercise such general powers of management as are usually vested in the office of Chief Executive Officer of a corporation. Subject to direction of the Directors, the Chairman and the Chief Executive Officer shall each have power in the name and on behalf of the BDC to execute any and all loans, documents,
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contracts, agreements, deeds, mortgages, registration statements, applications, requests, filings and other instruments in writing, and to employ and discharge employees and agents of the BDC. Unless otherwise directed by the Directors, the Chairman and the Chief Executive Officer shall each have full authority and power, on behalf of all of the Directors, to attend and to act and to vote, on behalf of the BDC at any meetings of business organizations in which the BDC holds an interest, or to confer such powers upon any other persons, by executing any proxies duly authorizing such persons. The Chairman and the Chief Executive Officer shall have such further authorities and duties as the Directors shall from time to time determine. In the absence or disability of the Chief Executive Officer, the Vice-Presidents in order of their rank as fixed by the Directors or, if more than one and not ranked, the Vice-President designated by the Directors, shall perform all of the duties of the Chief Executive Officer, and when so acting shall have all the powers of and be subject to all of the restrictions upon the Chief Executive Officer. Subject to the direction of the Directors, and of the Chief Executive Officer, each Vice-President shall have the power in the name and on behalf of the BDC to execute any and all instruments in writing, and, in addition, shall have such other duties and powers as shall be designated from time to time by the Directors or by the Chief Executive Officer.
3.7 Secretary. The Secretary shall maintain the minutes of all meetings of, and record all votes of, stockholders, Directors and the Executive Committee, if any. The Secretary shall be custodian of the seal of the BDC, if any, and the Secretary (and any other person so authorized by the Directors) shall affix the seal, or if permitted, facsimile thereof, to any instrument executed by the BDC which would be sealed by a Delaware business corporation and shall attest the seal and the signature or signatures of the officer or officers executing such instrument on behalf of the BDC. The Secretary shall also perform any other duties commonly incident to such office in a Delaware business corporation, and shall have such other authorities and duties as the Directors shall from time to time determine.
3.8 Treasurer. Except as otherwise directed by the Directors, the Treasurer shall have the general supervision of the monies, funds, securities, notes receivable and other valuable papers and documents of the BDC, and shall have and exercise under the supervision of the Directors and of the Chief Executive Officer all powers and duties normally incident to the office. The Treasurer may endorse for deposit or collection all notes, checks and other instruments payable to the BDC or to its order. The Treasurer shall deposit all funds of the BDC in such depositories as the Directors shall designate. The Treasurer shall be responsible for such disbursement of the funds of the BDC as may be ordered by the Directors or the Chief Executive Officer. The Treasurer shall keep accurate account of the books of the BDC’s transactions which shall be the property of the BDC, and which together with all other property of the BDC in the Treasurer’s possession, shall be subject at all times to the inspection and control of the Directors. Unless the Directors shall otherwise determine, the Treasurer shall be the principal accounting officer of the BDC and shall also be the principal financial officer of the BDC. The Treasurer shall have such other duties and authorities as the Directors shall from time to time determine. Notwithstanding anything to the contrary herein contained, the Directors may authorize any adviser, administrator, manager or transfer agent to maintain bank accounts and deposit and disburse funds.
3.9 Other Officers and Duties. The Directors may elect such other officers and assistant officers as they shall from time to time determine to be necessary or desirable in order
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to conduct the business of the BDC. Assistant officers shall act generally in the absence of the officer whom they assist and shall assist that officer in the duties of the office. Each officer, employee and agent of the BDC shall have such other duties and authority as may be conferred upon such person by the Directors or delegated to such person by the Chief Executive Officer.
3.10 Salaries. The salaries and other compensation of the officers shall be fixed from time to time by the Board of Directors and no officer shall be prevented from receiving such salary or other compensation by reason of the fact that he is also a director.
ARTICLE IV
COMMITTEES
4.1 Number, Tenure and Qualifications. The Board of Directors may appoint from among its members an Executive Committee, an Audit Committee, a Compensation Committee and other committees, composed of one or more directors, to serve at the pleasure of the Board of Directors.
4.2 Powers. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. The By-laws may provide that in the absence or disqualification of a member of a committee, the member or members present at any meeting and not disqualified from voting, whether or not such member or members 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 in the resolution of the Board of Directors, or in the By-laws of the Corporation, 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 the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by law to be submitted to stockholders for approval or (ii) adopting, amending or repealing any By-law of the Corporation.
4.3 Meetings. Notice of committee meetings shall be given in the same manner as notice for special meetings of the Board of Directors. A majority of the members of the committee shall constitute a quorum for the transaction of business at any meeting of the committee. The act of a majority of the committee members present at a meeting shall be the act of such committee. The Board of Directors may designate a chairman of any committee, and such chairman or, in the absence of a chairman, any two members of any committee (if there are at least two members of the Committee) may fix the time and place of its meeting unless the Board shall otherwise provide. In the absence of any member of any such committee, the members thereof present at any meeting, whether or not they constitute a quorum, may appoint another director to act in the place of such absent member. Each committee shall keep minutes of its proceedings.
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4.4 Telephone Meetings. Members of a committee of the Board of Directors may participate in a meeting by means of a conference telephone or similar communications equipment if all persons participating in the meeting can hear each other at the same time. Participation in a meeting by these means shall constitute presence in person at the meeting.
4.5 Written Consent By Committees. Any action required or permitted to be taken at any meeting of a committee of the Board of Directors may be taken without a meeting, if a consent in writing to such action is signed by each member of the committee and such written consent is filed with the minutes of proceedings of such committee.
4.6 Vacancies. Subject to the provisions hereof, the Board of Directors shall have the power at any time to change the membership of any committee, to fill all vacancies, to designate alternate members to replace any absent or disqualified member or to dissolve any such committee.
ARTICLE V
MISCELLANEOUS
5.1 Contracts. The Board of Directors may authorize any officer or agent to enter into any contract or to execute and deliver any instrument in the name of and on behalf of the BDC and such authority may be general or confined to specific instances. Any agreement, deed, mortgage, lease or other document shall be valid and binding upon the BDC when authorized or ratified by action of the Board of Directors and executed by an authorized person.
5.2 Checks and Drafts. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the BDC shall be signed by such officer or agent of the BDC in such manner as shall from time to time be determined by the Board of Directors.
5.3 Deposits. All funds of the BDC not otherwise employed shall be deposited from time to time to the credit of the BDC in such banks, trust companies or other depositories as the Board of Directors may designate.
5.4 Signatures. All contracts and other instruments shall be executed on behalf of the BDC by its properly authorized officers, agent or agents, as provided in the Certificate or By-laws or as the Directors may from time to time by resolution provide.
5.5 Seal. The Board of Directors may authorize the adoption of a seal by the BDC. The seal shall contain the name of the BDC and the year of its incorporation and the words “Incorporated Delaware.” The Board of Directors may authorize one or more duplicate seals and provide for the custody thereof.
5.6 Affixing Seal. Whenever the BDC is permitted or required to affix its seal to a document, it shall be sufficient to meet the requirements of any law, rule or regulation relating to a seal to place the word “(SEAL)” adjacent to the signature of the person authorized to execute the document on behalf of the BDC.
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5.7 Accounting Year. The Board of Directors shall have the power, from time to time, to fix the fiscal year of the BDC by a duly adopted resolution.
5.8 Authorization of Distributions. Dividends and other distributions upon the stock of the BDC may be authorized by the Board of Directors, subject to the provisions of law and the Certificate of Incorporation. Dividends and other distributions may be paid in cash, property or stock of the BDC, subject to the provisions of law and the Certificate of Incorporation.
5.9 Contingencies. Before payment of any dividends or other distributions, there may be set aside out of any assets of the BDC available for dividends or other distributions such sum or sums as the Board of Directors may from time to time, in its absolute discretion, think proper as a reserve fund for contingencies, for equalizing dividends or other distributions, for repairing or maintaining any property of the BDC or for such other purpose as the Board of Directors shall determine to be in the best interest of the BDC, and the Board of Directors may modify or abolish any such reserve.
5.10 Investment Policy. Subject to applicable law and the provisions of the Certificate of Incorporation, the Board of Directors may from time to time adopt, amend, revise or terminate any policy or policies with respect to investments by the BDC as it shall deem appropriate in its sole discretion.
ARTICLE VI
STOCK TRANSFERS
6.1 Certificates. The shares of stock of the BDC shall be represented by a certificate, unless and until the Board of Directors adopts a resolution permitting shares to be uncertificated. Notwithstanding the adoption of any such resolution providing for uncertificated shares, every holder of stock of the BDC theretofore represented by certificates and, upon request, every holder of uncertificated shares, shall be entitled to a certificate or certificates which shall represent and certify the number of shares of each class of stock held by him, her or it in the BDC. Each certificate shall be signed by the Chairman or a vice president and countersigned by the secretary or an assistant secretary or the treasurer or an assistant treasurer and may be sealed with the seal, if any, of the BDC. The signatures may be either manual or facsimile. Certificates shall be consecutively numbered; and if the BDC shall, from time to time, issue several classes of shares, each class may have its own number series. A certificate is valid and may be issued whether or not an officer who signed it is still an officer when it is issued. Each certificate representing shares which are restricted as to their transferability or voting powers, which are preferred or limited as to their dividends or as to their allocable portion of the assets upon liquidation or which are redeemable at the option of the BDC, shall have a statement of such restriction, limitation, preference or redemption provision, or a summary thereof, plainly stated on the certificate. In lieu of such statement or summary, the BDC may set forth upon the face or back of the certificate a statement that the BDC will furnish to any stockholder, upon request and without charge, a full statement of such information.
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6.2 Transfer Agents, Registrars and the Like. The Directors shall have authority to employ and compensate such transfer agents and registrars with respect to the Shares of the BDC as the Directors shall deem necessary or desirable. In addition, the Directors shall have power to employ and compensate such dividend disbursing agents, warrant agents and agents for the reinvestment of dividends as they shall deem necessary or desirable. Any of such agents shall have such power and authority as is delegated to any of them by the Directors.
6.3 Transfer of Shares. Stock of the BDC shall be transferable in the manner prescribed by applicable law and in these By-Laws. Transfers of stock shall be made on the books of the BDC, and in the case of certificated shares of stock, only by the person named in the certificate or by such person’s attorney lawfully constituted in writing and upon the surrender of the certificate therefor, properly endorsed for transfer and payment of all necessary transfer taxes; or, in the case of uncertificated shares of stock, upon receipt of proper transfer instructions from the registered holder of the shares or by such person’s attorney lawfully constituted in writing, and upon payment of all necessary transfer taxes and compliance with appropriate procedures for transferring shares in uncertificated form; provided, however, that such surrender and endorsement, compliance or payment of taxes shall not be required in any case in which the officers of the BDC shall determine to waive such requirement. With respect to certificated shares of stock, every certificate exchanged, returned or surrendered to the BDC shall be marked “Cancelled,” with the date of cancellation, by the Secretary of the BDC or the transfer agent thereof. No transfer of stock shall be valid as against the BDC for any purpose until it shall have been entered in the stock records of the BDC by an entry showing from and to whom transferred.
6.4 Replacement Certificate. Any officer designated by the Board of Directors may direct a new certificate to be issued in place of any certificate previously issued by the BDC alleged to have been lost, stolen or destroyed upon the making of an affidavit of that fact by the person claiming the certificate to be lost, stolen or destroyed. When authorizing the issuance of a new certificate, an officer designated by the Board of Directors may, in his or her discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or the owner’s legal representative to advertise the same in such manner as he shall require and/or to give bond, with sufficient surety, to the BDC to indemnify it against any loss or claim which may arise as a result of the issuance of a new certificate.
6.5 Closing of Transfer Books or Fixing of Record Date. The Board of Directors may set, in advance, a record date for the purpose of determining stockholders entitled to notice of or to vote at any meeting of stockholders or determining stockholders entitled to receive payment of any dividend or the allotment of any other rights, or in order to make a determination of stockholders for any other proper purpose. Such date, in any case, shall not be prior to the close of business on the day the record date is fixed and shall be not more than 90 days and, in the case of a meeting of stockholders, not less than ten days, before the date on which the meeting or particular action requiring such determination of stockholders of record is to be held or taken.
In lieu of fixing a record date, the Board of Directors may provide that the stock transfer books shall be closed for a stated period but not longer than 20 days. If the stock transfer books are closed for the purpose of determining stockholders entitled to notice of or to vote at a meeting of stockholders, such books shall be closed for at least ten days before the date of such meeting.
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If no record date is fixed and the stock transfer books are not closed for the determination of stockholders, (a) the record date for the determination of stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day on which the notice of meeting is mailed or the 30th day before the meeting, whichever is the closer date to the meeting; and (b) the record date for the determination of stockholders entitled to receive payment of a dividend or an allotment of any other rights shall be the close of business on the day on which the resolution of the directors, declaring the dividend or allotment of rights, is adopted.
When a determination of stockholders entitled to vote at any meeting of stockholders has been made as provided in this section, such determination shall apply to any adjournment thereof, except when (i) the determination has been made through the closing of the transfer books and the stated period of closing has expired or (ii) the meeting is adjourned to a date more than 120 days after the record date fixed for the original meeting, in either of which case a new record date shall be determined as set forth herein.
6.6 Stock Ledger. The BDC shall maintain at its principal office or at the office of its counsel, accountants or transfer agent, an original or duplicate share ledger containing the name and address of each stockholder and the number of shares of each class held by such stockholder.
6.7 Fractional Stock; Issuance of Units. The Board of Directors may issue fractional stock or provide for the issuance of scrip, all on such terms and under such conditions as they may determine. Notwithstanding any other provision of the Certificate of Incorporation or these By-laws, the Board of Directors may issue units consisting of different securities of the BDC. Any security issued in a unit shall have the same characteristics as any identical securities issued by the BDC, except that the Board of Directors may provide that for a specified period securities of the BDC issued in such unit may be transferred on the books of the BDC only in such unit.
6.8 Registered Stockholders. The BDC may deem and treat the holder of record of any Shares as the absolute owner thereof for all purposes and shall not be required to take any notice of any right or claim of right of any other person.
ARTICLE VII
AMENDMENT OF BY–LAWS
7.1 Amendment and Repeal of By-Laws. In accordance with Section 10.1 of the Certificate of Incorporation, the Directors shall have the power to amend or repeal the By-Laws or adopt new By-Laws at any time. Action by the Directors with respect to the By-Laws shall be taken by an affirmative vote of a majority of the Directors. The Directors shall in no event adopt By-Laws which are in conflict with the Certificate, and any apparent inconsistency shall be construed in favor of the related provisions in the Certificate. Stockholders shall have no authority to adopt, amend or repeal By-Laws except to the extent required by law.
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ARTICLE VIII
NOTICE
8.1 Notices. Whenever written notice is required by law, the Certificate of Incorporation or these By-Laws (except as set forth in Sections 1.3 and 2.2 herein or as otherwise stated therein or herein), to be given to any director, member of a committee or stockholder, such notice may be given by mail, addressed to such director, member of a committee or stockholder, at such person’s address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Written notice may also be given personally or by telegram, telex, cable, facsimile, transmission, email or other electronic means to any address provided to the BDC by the person being notified.
8.2 Waiver of Notices. Whenever any notice is required by applicable law, the Certificate of Incorporation or these By-Laws (except as stated therein or herein), to be given to any director, member of a committee or stockholder, a waiver thereof in writing, signed by the person or persons entitled to notice, whether before or after the time stated therein, shall be deemed equivalent thereto. Attendance of a person at a meeting, present in person or represented by proxy, shall constitute a waiver of notice of such meeting, except where the person attends the 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 annual or special meeting of stockholders or any regular or special meeting of the directors or members of a committee of directors need be specified in any written waiver of notice unless so required by law, the Certificate of Incorporation or these By-Laws.
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