def14a
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934 (Amendment No. )
Filed by the Registrant þ
Filed by a Party other than the Registrant o
Check the appropriate box:
o Preliminary Proxy Statement
o Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
þ Definitive Proxy Statement
o Definitive Additional Materials
o Soliciting Material Pursuant to §240.14a-12
(Name of Registrant as Specified In Its Charter)
MVC CAPITAL, INC.
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
þ No fee required.
o Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
1) Title of each class of securities to which transaction applies:
2) Aggregate number of securities to which transaction applies:
3) Per unit price or other underlying value of transaction computed pursuant to
Exchange Act Rule 0-11 (set forth the amount on which the filing fee is
calculated and state how it was determined):
4) Proposed maximum aggregate value of transaction:
5) Total fee paid:
o Fee paid previously with preliminary materials.
o Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number, or
the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
2) Form, Schedule or Registration Statement No.:
3) Filing Party:
4) Date Filed:
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SEC 1913 (04-04)
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Persons who are to respond to the collection of information contained in this form are not required to respond unless the
form displays a currently valid OMB control number. |
NOTICE OF
ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD SEPTEMBER 7,
2006
MVC CAPITAL, INC.
NOTICE IS HEREBY GIVEN that the annual meeting (the
Meeting) of the stockholders of MVC Capital, Inc.
(the Fund) will be held at the offices of Schulte
Roth & Zabel LLP, 919 Third Avenue, New York, NY 10022,
on September 7, 2006, 12:00 p.m. (Eastern time) for
the following purposes:
1. to elect five nominees to serve as members of the Board
of Directors of the Fund (Proposal 1);
2. to approve an Investment Advisory and Management
Agreement between the Fund and The Tokarz Group Advisers LLC
(Proposal 2 and, collectively with
Proposal 1, the Proposals); and
3. to transact such other business as may properly come
before the meeting or any adjournment thereof.
The Proposals are discussed in greater detail in the Proxy
Statement attached to this Notice. Stockholders of record at the
close of business on July 17, 2006 are entitled to receive
notice of and to vote at the Meeting. Each stockholder is
invited to attend the Meeting in person. If you cannot be
present at the Meeting, we urge you to mark, sign, date and
promptly return the enclosed Proxy Card so that the Meeting can
be held and a maximum number of shares may be voted. If you
received more than one Proxy Card, please be sure to mark, sign,
date and return each one.
IT IS
IMPORTANT THAT PROXY CARDS BE RETURNED PROMPTLY.
If you do not expect to attend the Meeting, you are urged to
mark, sign, date and return without delay the enclosed Proxy
Card(s) in the enclosed envelope, which requires no postage if
mailed in the United States, so that your shares may be
represented at the Meeting. Instructions for the proper
execution of the Proxy Card(s) are set forth at the end of the
attached Proxy Statement. Instructions for telephone and
Internet voting (which may be available to you) are set forth on
the enclosed Proxy Card.
A proxy may be revoked at any time before it is exercised by
the subsequent execution and submission of a revised proxy, by
giving written notice of revocation to the Fund at any time
before the proxy is exercised or by voting in person at the
Meeting.
By Order of the Board of Directors,
Michael Tokarz
Chairman
August 4, 2006
287 Bowman Avenue
2nd Floor
Purchase, NY 10577
QUESTIONS
AND ANSWERS
At the Annual Meeting of Stockholders of the Fund to be held
on September 7, 2006, you will have the opportunity to vote
on proposals relating to the Fund. We recommend that you
carefully read the attached Proxy Statement, which describes the
proposals in detail. The following Questions and
Answers are provided for your convenience.
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Q. |
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What issues am I being asked to vote on at the upcoming
meeting on September 7, 2006? |
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A. |
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You are being asked to vote on the following two proposals: |
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To elect five nominees to serve as members of the
Board; and
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To approve an Investment Advisory and Management
Agreement between the Fund and The Tokarz Group Advisers LLC
(TTG Advisers) (the Advisory Agreement). |
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Q. |
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Why am I being asked to vote on the Advisory Agreement? |
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A. |
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Over the past several months, the Fund has been presented with a
number of opportunities to manage and invest in various private
investment funds and offshore enterprises. However, under its
current internal management structure, due to the regulatory and
tax constraints on the Funds activities (because of its
status as a business development company and a regulated
investment company under the Internal Revenue Code of
1986, as amended), the Fund is restricted in its ability to
participate in many of these opportunities. |
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Accordingly, the Board, in conjunction with management, has been
working to develop a structure that would allow the Fund and
stockholders to benefit from a broader range of investment and
management opportunities. After weighing the options available
to the Fund and giving careful consideration to the unique
nature of the Fund, including its investment objective and
strategy, its status as a business development company and the
associated regulatory and tax constraints, management proposed
that the Board consider externalizing the Funds
management. The Board considered, among other things, the
Funds current internal structure and the complex web of
statutory and regulatory restrictions that limit the Funds
ability to participate in various opportunities. The Board
concluded that an externalized structure could better position
the Fund to capture additional opportunities for stockholders. |
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As a result, at an in-person meeting held on May 30, 2006,
the Board, including all of the independent directors
(Mr. Tokarz recused himself from the determination),
unanimously approved the Advisory Agreement between the Fund and
TTG Advisers which provides for an external management structure
for the Fund. |
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The Board, including all of the independent directors,
recommends that you vote FOR the
approval of the Advisory Agreement. The Investment Company Act
of 1940, as amended, prohibits implementation of the
externalization unless stockholders approve the Advisory
Agreement. |
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What are the benefits of retaining TTG Advisers as the
Funds investment adviser? |
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The Board believes that the externalization of the Funds
management and the retention of TTG Advisers as the Funds
investment adviser offers a number of potential benefits for the
Fund and stockholders, including, for example: |
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Increased Opportunities The
potential for increased access to investment opportunities as a
result of the increased activities, visibility and resources of
the Funds management team; |
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The Retention and Attraction of Quality
Talent A greater ability for the Funds
management team to attract and retain the high caliber of talent
from which the Fund has been accustomed to receive services
during the past two fiscal years; |
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Mr. Tokarzs Continued Service to the
Fund Mr. Tokarz has agreed to serve as the
Funds Portfolio Manager for the full twenty-four calendar
months following the effective date of the Advisory Agreement,
absent the occurrence of certain extraordinary events. The Fund
has enjoyed significant growth and strong performance during
Mr. Tokarzs service to the Fund. Although past
performance is no guarantee of future results, the Board
believes that Mr. Tokarz and his team have demonstrated a
strong commitment to pursuing |
1
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the Funds investment objective and it would thus be
beneficial for the Fund to retain TTG Advisers (which is
controlled exclusively by Mr. Tokarz) as the Funds
investment adviser; |
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Continuity of Management It is
currently expected that all of the current employees of the Fund
(including the Funds investment professionals) will join
TTG Advisers and will continue to provide services to the Fund
upon implementation of the Advisory Agreement. Thus,
implementation of the Advisory Agreement should not disrupt the
current management of the Fund; and |
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The Spin-Off The Advisory
Agreement provides for the pursuit of a spin-off of a subsidiary
of the Fund to all of our stockholders (on a pro-rata basis)
(the Spin-Off). It is contemplated that this
subsidiary would, together with TTG Advisers, own the manager
and/or
general partner (or managing member) of private investment funds
and other vehicles. As a result, our stockholders, as
stockholders of the spun-off subsidiary, would have the
opportunity to participate in a portion of the revenues
generated by these vehicles. |
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In short, the Board believes that the proposed externalized
structure positions the Fund for continued growth and benefits
stockholders. |
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Is there additional information available describing the
contemplated Spin-Off? |
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Yes, to some extent. The attached Proxy Statement, under the
section entitled Terms of the Advisory
Agreement The Spin-Off of a Subsidiary and
Opportunities to Manage Other Entities contains some
further information regarding the Spin-Off, including an
illustration depicting the contemplated structure following the
Spin-Off. It is important to bear in mind that details regarding
the Spin-Off are still being worked on and, as a result, the
Board has not yet considered or approved the specific terms of
the Spin-Off. If approved, it is expected that the material
terms of the Spin-Off will be disclosed in a registration
statement filed with the Securities and Exchange Commission.
It is possible that the Board may determine not to proceed
with the Spin-Off. In this event, the Advisory Agreement
would nevertheless be implemented (assuming stockholders approve
it) and stockholders may not have an opportunity to
participate in the revenues generated by private investment
funds managed by TTG Advisers. |
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What are the fees proposed to be paid to TTG Advisers under
the Advisory Agreement? |
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Under the Advisory Agreement, the Fund would pay TTG Advisers a
fee for investment advisory and management services consisting
of two components a base management fee (generally,
2% of total assets less cash and investments not made in
portfolio companies) and an incentive fee. The incentive fee
will consist of two parts: (i) one part will be based on
our pre-incentive fee net operating income; and (ii) the
other part will be based on the capital gains received on our
portfolio of securities acquired after November 1, 2003.
These compensation components are described, in detail, in the
attached Proxy Statement under Terms of the Advisory
Agreement. |
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What impact would the implementation of the Advisory
Agreement have on proposed expenses? |
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Uncertain. Had the Advisory Agreement been in effect during the
most recent completed fiscal year (2005), the Funds
expense ratio (at October 31, 2005, the last completed
fiscal year) would have been
3.35%1
instead of 3.75% under the current internal management
structure. Whether expenses increase in future periods depends
on a number of factors that are difficult to predict including,
for example: (i) the amount of total assets of the Fund;
(ii) the amount of assets that would be held in cash and
portfolio company investments; (iii) the amount of assets
that will be invested pursuant to the Funds investment
strategy; and (iv) the amount of operating expenses
(excluding advisory fees) that are incurred by the Fund. |
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In an effort to achieve some certainty with regard to the
Funds expenses, for each of the next two full fiscal years
(i.e., fiscal 2007 and 2008), TTG Advisers has agreed to
absorb or reimburse operating expenses of the Fund (promptly
following the completion of such year), to the extent necessary
to limit the Funds Expense Ratio (as defined on
page 21 of the attached Proxy Statement) for any such year
to 3.25% (the Expense Cap); provided,
however, if, on October 31, 2007, the Funds net
assets have not increased by at least 5% from October 31,
2006, the dollar value of the Expense Cap shall increase by 5%
for fiscal 2008. The Expense Cap is described, in detail, in the
attached Proxy Statement under Terms of the Advisory
Agreement Payment of our expenses. |
1 Assuming
a base management fee of 2% and including expenses accrued under
the incentive fee.
2
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How will the appointment of TTG Advisers as the Funds
investment adviser affect management of the Fund? |
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Although the externalization involves a restructuring of the
Fund, if implemented, the Advisory Agreement should not disrupt
the continued management of the Fund by Mr. Tokarz and his
team. It is expected that the present investment selection
process would continue and that TTG Advisers would seek to
provide the Fund with at least the same level, quality and
nature of services currently being provided by Mr. Tokarz
and his team. In fact, it is currently expected that all of the
current employees of the Fund (including the Funds
investment professionals) will join TTG Advisers and will
continue to provide services to the Fund upon implementation of
the Advisory Agreement. |
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Will Mr. Tokarz continue to be the Funds Portfolio
Manager? |
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Mr. Tokarz has agreed to serve as the Funds Portfolio
Manager for the full twenty-four calendar months following the
effective date of the Advisory Agreement, absent the occurrence
of certain extraordinary events. |
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When would the Advisory Agreement take effect if approved by
stockholders? |
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If stockholders approve the Advisory Agreement at the Meeting
(or an adjournment thereof), the agreement would take effect on
the later of: (i) November 1, 2006; or (ii) the
effective date of the registration of TTG Advisers as an
investment adviser with the SEC. At that time, the internal
management of the Funds portfolio will automatically cease. |
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What happens if stockholders do not approve the Advisory
Agreement? |
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If stockholders do not approve the Advisory Agreement at the
Meeting (or an adjournment thereof), the Board and
Mr. Tokarz would consider alternative courses of action. In
this event, the Board will also consider ceasing pursuit of the
Spin-Off. |
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What happens to the Funds current agreement with
Mr. Tokarz if the Advisory Agreement is implemented? |
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Immediately upon the effective date of the Advisory Agreement,
Mr. Tokarzs employment agreement with the Fund, dated
November 1, 2003, as extended on October 31, 2005,
will be terminated. The obligations of the Fund under the
employment agreement would be superseded by those under the
Advisory Agreement. |
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I am a registered shareholder, how can I vote my shares? |
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Whether or not you attend the Meeting, you may vote by using one
of the following options: |
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By mail: Mark, sign and date the
enclosed proxy card and return it in the enclosed envelope; |
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By phone: Call
1-800-652-VOTE
(8638) to vote by phone. Have your control number (located
on the signature side of the enclosed proxy card) available for
reference. The automatic system will prompt you on how to vote.
There is NO CHARGE to you for the call. Do not mail the paper
proxy card; or |
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By internet: Log on to
www.computershare.com/expressvote. Have your control number
(located on the signature side of the enclosed proxy card)
available for reference. The system will prompt you on how to
vote. Do not mail the paper proxy card. |
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If you attend the Meeting, you may vote in person. |
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I am a beneficial holder, how can I vote my shares? |
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Whether or not you attend the Meeting, you may vote by using one
of the following options: |
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By mail: Mark, sign and date the
enclosed proxy card and return it in the enclosed envelope; |
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By phone: See the specific
instructions provided to you by your broker; or |
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By internet: Log on to
www.proxyvote.com.
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If you attend the Meeting, you may vote in person. |
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Q: |
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Whom should I call for additional information? |
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Please call the Funds investor relations department at
(914) 510-9400. |
3
ANNUAL
MEETING OF STOCKHOLDERS
OF
MVC CAPITAL, INC.
SEPTEMBER 7, 2006
287 Bowman Avenue
2nd Floor
Purchase, New York 10577
(914) 510-9400
PROXY STATEMENT
This Proxy Statement is furnished in connection with the
solicitation of proxies by the Board of Directors (the
Board) of MVC Capital, Inc. (the Fund)
for use at the annual meeting of the stockholders of the Fund
(the Meeting), to be held at the offices of Schulte
Roth & Zabel LLP, 919 Third Avenue, New York, NY 10022,
on September 7, 2006, 12:00 p.m. (Eastern time), and
at any adjournment thereof. This Proxy Statement, the
accompanying Notice of Annual Meeting of Stockholders, and the
enclosed Proxy Card(s) are expected to be mailed on or about
August 4, 2006.
A Proxy Card that is properly executed and returned to the Fund
prior to the Meeting will be voted as provided therein at the
Meeting and at any adjournment thereof. A proxy may be revoked
at any time before it is exercised by the subsequent execution
and submission of a revised proxy, by giving written notice of
revocation to the Fund at any time before the proxy is exercised
or by voting in person at the Meeting. Signing and mailing a
Proxy Card will not affect your right to give a later proxy or
to attend the Meeting and vote your shares in person.
The Board intends to bring before the Meeting the two proposals
that are set forth in the Notice of Annual Meeting of
Stockholders and that are described in this Proxy Statement. The
persons named as proxies on the enclosed Proxy Card will vote
all shares represented by proxies in accordance with the
instructions of stockholders as specified on the Proxy Card.
Abstentions and broker non-votes will each be counted as present
for purposes of determining the presence of a quorum. A
broker non-vote occurs when a broker submits a proxy
card with respect to shares of common stock held in a fiduciary
capacity (typically referred to as being held in street
name), but declines to vote on a particular matter because
the broker has not received voting instructions from the
beneficial owner nor does it have discretionary power to vote on
a particular matter. Under the rules that govern brokers who are
voting with respect to shares held in street name, brokers have
the discretion to vote such shares on routine matters, but not
on non-routine matters. For example, the election of directors
is a routine matter while the proposal to approve the Investment
Advisory and Management Agreement with The Tokarz Group Advisers
LLC (TTG Advisers) is a non-routine matter.
With respect to the election of each nominee to serve as a
member of the Board (Proposal No. 1), abstentions and
broker non-votes will not have any effect on the outcome of
Proposal No. 1. With respect to the proposal to
approve the Investment Advisory and Management Agreement with
TTG Advisers (Proposal No. 2), abstentions and broker
non-votes will have the same effect as a negative vote on the
outcome of Proposal No. 2.
In addition to soliciting proxies by mail, officers or employees
of the Fund may solicit proxies by telephone or in person,
without special compensation. The Fund may retain a proxy
solicitor to assist in the solicitation of proxies, for which
the Fund would pay usual and customary fees.
Most beneficial owners whose shares are held in street name will
receive voting instruction forms from their banks, brokers or
other agents, rather than the Funds Proxy Card. A number
of banks and brokerage firms are participating in a program that
offers a means to grant proxies to vote shares via the Internet
or by telephone. If your shares are held in an account with a
bank or broker participating in this program, you may grant a
proxy to vote those shares via the Internet or telephonically by
using the website or telephone number shown on the instruction
form provided to you by your broker or bank.
4
Only stockholders of record at the close of business on
July 17, 2006 (the Record Date) are entitled to
notice of, and to vote at, the Meeting. On the Record Date,
19,092,028 shares of the Fund were outstanding.
Each stockholder of record on the Record Date is entitled to one
vote for each share held.
In the event that a quorum is not present at the Meeting or at
any adjournment thereof, or in the event that a quorum is
present at the Meeting but sufficient votes to approve a
proposal are not received, one or more adjournments of the
Meeting may be proposed to permit further solicitation of
proxies. A stockholder vote may be taken with respect to the
Fund on some or all matters before any such adjournment if a
quorum is present and sufficient votes have been received for
approval. Any adjournment will require the affirmative vote of a
majority of the shares represented at the Meeting in person or
by proxy.
The Funds Annual Report on
Form 10-K
for the fiscal year ended October 31, 2005 has previously
been furnished to the stockholders of the Fund. The report is
not to be regarded as proxy-soliciting material. A copy of the
Funds Annual Report is available on the Funds
website at www.mvccapital.com and may be obtained without
charge, by writing to the Fund at 287 Bowman Avenue,
2nd Floor, Purchase, New York 10577, or by calling
toll-free
1-800-426-5523.
PROPOSAL 1
ELECTION OF DIRECTORS
At the Meeting, stockholders will vote on a proposal to elect
five nominees to serve as directors of the Fund
(Directors). The nominees include Emilio Dominianni,
Gerald Hellerman, Robert Knapp, William Taylor and Michael
Tokarz. Each nominee currently is a member of the Board.
The persons named as proxies on the enclosed Proxy Card intend,
in the absence of contrary instructions, to vote all proxies
they are entitled to vote in favor of the election of the five
nominees named above to serve as the Directors. Each of the
nominees has consented to stand for election and to serve if
elected. If elected, a nominee will serve for a term of one year
until the next annual meeting of stockholders after his
election. If any nominee should be unable to serve, an event
that is not now anticipated, the persons named as proxies will
vote for such replacement nominee as may be recommended by the
presently serving Directors.
Information regarding the nominees and the officers of the Fund,
including brief biographical information, is set forth below.
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(5)
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Number of
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Portfolios in
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(6)
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Fund Complex
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Other
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(2)
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(3)
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Overseen by
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Directorships
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Positions(s)
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Term of Office/
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(4)
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Director or
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Held by Director
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(1)
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Held with
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Length of Time
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Principal Occupation(s)
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Nominee for
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or Nominee for
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Name, Address and Age
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the Fund
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Served
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During Past 5 Years
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Director
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Director
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Nominees for Independent
Directors
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Emilio Dominianni
287 Bowman Avenue
2nd Floor
Purchase, NY 10577
Age: 75
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Director
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1 year/3 years, 5 months
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Mr. Dominianni is a retired
Partner of, and was Special Counsel to Coudert Brothers LLP, a
law firm. He is currently a Director of Stamm International
Corporation, Powrmatic Inc., and Powrmatic of Canada Ltd.,
manufacturers and distributors of heating, ventilating, and air
conditioning equipment. He was a Director of American Air
Liquide Inc., Air Liquide International Corporation, and a
Consultant to Air Liquide America Corp., all manufacturers and
distributors of industrial gases, and Mouli Manufacturing Corp.,
a distributor of kitchen and household products.
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None(1)
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See column 4
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5
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(5)
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Number of
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Portfolios in
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(6)
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Fund Complex
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Other
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(2)
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(3)
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Overseen by
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Directorships
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Positions(s)
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Term of Office/
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(4)
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Director or
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Held by Director
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(1)
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Held with
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Length of Time
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Principal Occupation(s)
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Nominee for
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or Nominee for
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Name, Address and Age
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the Fund
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Served
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During Past 5 Years
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Director
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Director
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Gerald Hellerman
287 Bowman Avenue
2nd Floor
Purchase, NY 10577
Age: 68
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Director
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1 year/3 years,
5 months
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Mr. Hellerman has been the
Principal of Hellerman Associates, a financial and corporate
consulting firm, since the firms inception in 1993. He is
currently a Director of The Mexico Equity and Income Fund, Inc.,
a Director and President of Innovative Clinical Solutions, Ltd.,
a company formerly engaged in clinical trials and physician
network management which is currently in liquidation, a Director
of FNC Realty Corporation which is developing and operating
owned properties and a Director of AirNet Systems Inc.
Mr. Hellerman is presently serving as Manager-Investment
Advisor for a U.S. Department of Justice Settlement Trust.
Mr. Hellerman has served as a Trustee or Director of Third
Avenue Value Trust, a Trustee of Third Avenue Variable
Series Trust, a Director of Clemente Global Growth Fund,
Inc. and a Director of Brantley Capital Corporation.
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None(1)
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See column 4
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Robert Knapp
Millenco, L.P.
666 Fifth Avenue,
8th Floor
New York, NY 10103
Age: 39
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Director
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1 year/3 years,
5 months
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Mr. Knapp is a Managing
Director of Millennium Partners where he specializes in
mis-priced assets, turnaround situations, and closed end fund
arbitrage. He also is a Director of the Vietnam Opportunity
Fund, a Cayman Islands private equity fund listed on the London
Stock Exchange, for which Millennium acted as seed investor.
Formerly he served as a director for the First Hungary Fund, a
Channel Islands private equity fund, and as a Director of the
Vietnam Frontier Fund, a Cayman Islands investment company.
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None(1)
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See column 4
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William Taylor
287 Bowman Avenue
2nd Floor
Purchase, NY 10577
Age: 63
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Director
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5 months
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Mr. Taylor is a Certified
Public Accountant and is currently a Director of Northern
Illinois University Foundation and a Trustee of Writers Theatre.
From 1976 through May, 2005, Mr. Taylor was a Partner at
Deloitte & Touche. From 1997 to 2001 Mr. Taylor
was a Director of Deloitte & Touche USA and from 1999
to 2003 Mr. Taylor was a Director of Deloitte Touche
Tohmatsu.
|
|
None(1)
|
|
See column 4
|
6
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(5)
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
|
|
|
|
|
|
|
|
Portfolios in
|
|
(6)
|
|
|
|
|
|
|
|
|
Fund Complex
|
|
Other
|
|
|
(2)
|
|
(3)
|
|
|
|
Overseen by
|
|
Directorships
|
|
|
Positions(s)
|
|
Term of Office/
|
|
(4)
|
|
Director or
|
|
Held by Director
|
(1)
|
|
Held with
|
|
Length of Time
|
|
Principal Occupation(s)
|
|
Nominee for
|
|
or Nominee for
|
Name, Address and Age
|
|
the Fund
|
|
Served
|
|
During Past 5 Years
|
|
Director
|
|
Director
|
|
Officer and Nominee for
Interested Director
|
Michael Tokarz(2)
287 Bowman Avenue
2nd Floor
Purchase, NY 10577
Age: 56
|
|
Director,
Chairman, and Portfolio Manager
|
|
1 year/2 years
and 9 months
|
|
Mr. Tokarz currently serves as
Chairman and Portfolio Manager of the Fund. Mr. Tokarz also
is Chairman of The Tokarz Group, a private merchant bank, since
2002. Prior to this, Mr. Tokarz was a senior General
Partner and Administrative Partner at Kohlberg Kravis
Roberts & Co., a private equity firm specializing in
management buyouts. He also currently serves on the corporate
boards of Conseco, Inc., is Chairman elect of Walter Industries,
Inc., IDEX Corporation, Stonewater Control Systems, Lomonosov,
Athleta, Inc. and Apertio Ltd. Mr. Tokarz is an active
member of the endowment committee and Board of Trustees of YMCA
in Westchester County. He is also a member of the Board of the
Warwick Business School in England. He is Chairman elect and is
a member of the Board of the University of Illinois Foundation,
and serves on its executive committee, investment policy
committee and is Chairman of the budget and finance committee;
he is also a member of the Venture Capital Subcommittee and
serves as a member of the Board of Managers for Illinois
Ventures, LLC. Mr. Tokarz also serves as the Chairman of
the Illinois Emerging Technology Fund LLC. Mr. Tokarz
serves as a director for the following portfolio companies of
the Fund: Baltic Motors Corporation, Dakota Growers Pasta
Company, Ohio Medical Corporation, Timberland
Machines & Irrigation, Inc., Harmony
Pharmacy & Health Centers, Inc., and previously served
on the Board of Vestal Manufacturing Enterprises, Inc. from
April 2004 until July 2005.
|
|
None(1)
|
|
See column 4
|
7
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(5)
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
|
|
|
|
|
|
|
|
Portfolios in
|
|
(6)
|
|
|
|
|
|
|
|
|
Fund Complex
|
|
Other
|
|
|
(2)
|
|
(3)
|
|
|
|
Overseen by
|
|
Directorships
|
|
|
Positions(s)
|
|
Term of Office/
|
|
(4)
|
|
Director or
|
|
Held by Director
|
(1)
|
|
Held with
|
|
Length of Time
|
|
Principal Occupation(s)
|
|
Nominee for
|
|
or Nominee for
|
Name, Address and Age
|
|
the Fund
|
|
Served
|
|
During Past 5 Years
|
|
Director
|
|
Director
|
|
Executive
Officers
|
|
|
|
|
|
|
|
|
|
|
Bruce Shewmaker(3)
287 Bowman Avenue
2nd Floor
Purchase, NY 10577
Age: 60
|
|
Managing Director
|
|
Indefinite term/2 years and
10 months
|
|
Until June 2003, Mr. Shewmaker
served as Managing Director of Crossbow Ventures Inc., and as a
Vice President of Crossbow Venture Partners Corp., the general
partner of Crossbow Venture Partners LP, a licensed small
business investment company. Mr. Shewmaker also is a
co-founder and Director of Infrared Imaging Systems, Inc., a
medical devices company. From 1999 to 2001, he was a Managing
Director of E*OFFERING Corp., an investment banking firm which
merged into Wit SoundView Group in 2000. Mr. Shewmaker
served as a director for the following portfolio companies of
the Fund: Baltic Motors Corporation and Vestal Manufacturing
Enterprises, Inc. from April 2004 until July 2005 and currently
serves on the Boards of Foliofn, Inc., ProcessClaims,
Inc. and Vendio Services, Inc. Mr. Shewmaker also serves on
the Board of VIANY.
|
|
None
|
|
None
|
Peter Seidenberg
287 Bowman Avenue
2nd Floor
Purchase, NY 10577
Age: 37
|
|
Chief Financial Officer
|
|
Indefinite term/ 10 months
|
|
Mr. Seidenberg joined the Fund
in April 2005 after having previously served as a Principal of
Nebraska Heavy Industries, where he worked on engagements
including serving as the Chief Financial Officer of Commerce
One, Inc. Prior to that, Mr. Seidenberg served as the
Director of Finance and Business Development and as Corporate
Controller for Plumtree Software, Inc. Mr. Seidenberg has
also worked at AlliedSignal and several small manufacturing
companies, where he held roles in finance and operations.
Mr. Seidenberg on behalf of the Fund sits on the board of
Ohio Medical Corp.
|
|
None
|
|
None
|
8
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(5)
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
|
|
|
|
|
|
|
|
Portfolios in
|
|
(6)
|
|
|
|
|
|
|
|
|
Fund Complex
|
|
Other
|
|
|
(2)
|
|
(3)
|
|
|
|
Overseen by
|
|
Directorships
|
|
|
Positions(s)
|
|
Term of Office/
|
|
(4)
|
|
Director or
|
|
Held by Director
|
(1)
|
|
Held with
|
|
Length of Time
|
|
Principal Occupation(s)
|
|
Nominee for
|
|
or Nominee for
|
Name, Address and Age
|
|
the Fund
|
|
Served
|
|
During Past 5 Years
|
|
Director
|
|
Director
|
|
Scott Schuenke
287 Bowman Avenue
2nd Floor
Purchase, NY 10577
Age: 27
|
|
Chief Compliance Officer
|
|
Indefinite term/1 year and
10 months
|
|
Mr. Schuenke served as a
Compliance Officer with U.S. Bancorp Fund Services,
LLC, from 2002 until he joined MVC Capital, Inc. in 2004.
Mr. Schuenke also served as the Secretary of The Mexico
Equity & Income Fund, Inc. and Assistant Secretary of
Tortoise Energy Infrastructure Corporation during his tenure at
U.S. Bancorp Fund Services, LLC. Mr. Schuenke is
a Certified Public Accountant.
|
|
None
|
|
None
|
Jaclyn Shapiro-Rothchild
287 Bowman Avenue
2nd Floor
Purchase, NY 10577
Age: 27
|
|
Vice President/ Secretary
|
|
Indefinite term/1 year and
9 months Indefinite term/2 years and 7 months
|
|
Ms. Shapiro has worked
directly for the Fund since June 2002. Prior to that, she was an
Associate and Business Manager with Draper Fisher Jurvetson meVC
Management Co. LLC, the former investment sub-adviser to the
Fund, and an Associate at The Bank Companies (acquired by
Newmark & Co. Real Estate), a commercial real estate
company.
|
|
None
|
|
None
|
|
|
|
(1)
|
|
Other than the Fund.
|
|
(2)
|
|
Mr. Tokarz is an
interested person, as defined in the Investment
Company Act of 1940, as amended (the 1940 Act), of
the Fund (an Interested Director) because he serves
as an officer of the Fund.
|
|
(3)
|
|
Mr. Shewmaker served as
Director of the Fund from March 2003 to March 2004.
|
Board
Meetings and Committees
The Board has adopted a charter for each of its Audit,
Nominating/Corporate Governance/Strategy and Compensation
Committees, as well as a Corporate Governance Policy. The Audit
Committees charter is annexed hereto as Exhibit B.
The Board has also adopted a Code of Ethics that applies to all
of the Funds employees, officers and directors, as well as
a Code of Ethics for Principal Executive and Senior Financial
Executives that applies to and has been signed by the Principal
Executive Officer and the Chief Financial Officer of the Fund.
These materials can be found on the Funds website at
www.mvccapital.com, and may be obtained by written request to
MVC Capital, Inc., c/o Corporate Secretary, 287 Bowman
Avenue, 2nd Floor, Purchase, New York 10577. Waivers, if
any, of the Funds Code of Ethics or Code of Ethics for
Principal Executive and Senior Financial Executives would be
promptly disclosed on the Funds website.
During the fiscal year ended October 31, 2005, the Board
held eight (8) meetings. During the last fiscal year, each
of the nominees (except for Mr. Taylor who was appointed to
the Board on February 23, 2006) attended 100% of the
aggregate number of meetings of the Board and any committee of
the Board on which such nominee served. Currently, 80% of the
Directors are Independent Directors. Mr. Knapp has been
appointed by the Independent Directors of the Board to serve as
the Presiding Director over executive sessions of non-management
directors.
Interested parties should communicate with the Presiding
Director or with the non-management directors as a group
according to the following procedures established by the Fund
for stockholders communication with the Board: any
communications intended for the Board should be sent to the Fund
at the Funds address and any such
9
communication will be forwarded to the Board (or applicable
Board member) or disclosed to the Board (or applicable Board
member) at its next regular meeting.
The Audit Committees primary purposes are:
|
|
|
|
|
oversight responsibility with respect to: (i) the adequacy
of the Funds accounting and financial reporting processes,
policies and practices; (ii) the integrity of the
Funds financial statements and the independent audit
thereof; (iii) the adequacy of the Funds overall
system of internal controls and, as appropriate, the internal
controls of certain service providers; (iv) the Funds
compliance with certain legal and regulatory requirements;
(v) determining the qualification and independence of the
Funds independent auditors; and (vi) the Funds
internal audit function, if any; and
|
|
|
|
oversight of the preparation of any report required to be
prepared by the Committee pursuant to the rules of the
Securities and Exchange Commission (SEC) for
inclusion in the Funds annual proxy statement with respect
to the election of directors.
|
The most recent fiscal year of the Fund ended on
October 31, 2005. During that fiscal year, the Audit
Committee held five (5) meetings. In connection with the
Funds audited financial statements for the fiscal year
ended October 31, 2005, the Audit Committee has:
(i) reviewed and discussed with management the Funds
audited financial statements for the fiscal year ended
October 31, 2005; (ii) discussed with Ernst &
Young LLP (E&Y), the independent auditors of the
Fund, the matters required to be discussed by Statements on
Auditing Standards (SAS) No. 61 (Codification of Statements
on Auditing Standards, AU § 380); (iii) received
the written disclosures and a letter from E&Y regarding, and
discussed with E&Y, its independence; and
(iv) recommended to the Board that the audited financial
statements of the Fund for the fiscal year ended
October 31, 2005 be included in the Funds Annual
Report to Stockholders for filing with the SEC.
The current members of the Audit Committee are
Messrs. Dominianni, Hellerman and Taylor, each of whom is
considered independent under the rules promulgated by the New
York Stock Exchange and is not an interested person,
as defined by the 1940 Act, of the Fund (the Independent
Directors). Each member of the Audit Committee meets the
current independence and experience requirements of
Rule 10A-3
of the Securities Exchange Act of 1934, as amended (the
1934 Act), and the Board has determined that
Mr. Hellerman is an audit committee financial
expert as defined under Item 401 of
Regulation S-K
of the 1934 Act. Mr. Hellerman is the Chairman of the
Audit Committee.
The Valuation Committee, the principal purpose of which is to
determine the fair values of securities in the Funds
portfolio for which market quotations are not readily available,
is currently comprised of Messrs. Dominianni, Hellerman and
Knapp. Mr. Knapp is the Chairman of the Valuation
Committee. The Valuation Committee held six (6) meetings
during the fiscal year ended October 31, 2005.
The Nominating/Corporate Governance/Strategy Committee (the
Nominating Committee), the principal purposes of
which are to consider and nominate persons to serve as
Independent Directors and oversee the composition and governance
of the Board and its committees and to provide strategic
direction with respect to the Fund, is currently comprised of
Messrs. Dominianni, Hellerman, Knapp, and Taylor, each of
whom is an Independent Director. Mr. Dominianni is the
Chairman of the Nominating Committee. The Nominating Committee
was established in January 2004.
The Nominating Committee considers director candidates nominated
by stockholders in accordance with procedures set forth in the
Funds By-Laws. The Funds By-Laws provide that
nominations may be made by any stockholder of record of the Fund
entitled to vote for the election of directors at a meeting,
provided that such nominations are made pursuant to timely
notice in writing to the Secretary. The Nominating Committee
then determines the eligibility of any nominated candidate based
on criteria described below. To be timely, a stockholders
notice must be received at the principal executive offices of
the Fund not less than 60 days nor more than 90 days
prior to the scheduled date of a meeting. A stockholders
notice to the Secretary shall set forth: (a) as to each
stockholder-proposed nominee, (i) the name, age, business
address and residence address of the nominee, (ii) the
principal occupation or employment of the nominee,
(iii) the class, series and number of shares of capital
stock of the Fund that are owned beneficially by the nominee,
(iv) a statement as to the nominees citizenship, and
(v) any other information relating to the person that is
required to be disclosed in solicitations for proxies for
election of
10
directors pursuant to Section 14 of the 1934 Act, and
the rules and regulations promulgated thereunder; and
(b) as to the stockholder giving the notice, (i) the
name and record address of the stockholder and (ii) the
class, series and number of shares of capital stock of the
corporation that are owned beneficially by the stockholder. The
Fund or the Nominating Committee may require a stockholder who
proposes a nominee to furnish any such other information as may
reasonably be required by the Fund to determine the eligibility
of the proposed nominee to serve as director of the Fund. The
Nominating Committee held one (1) meeting during the fiscal
year ended October 31, 2005.
In addition, the Nominating Committee considers potential
director candidates with input from various sources, which can
include: current Directors, members of the management team, or
an outside search firm. The Nominating Committee seeks to
identify candidates that possess, in its view, strong character,
judgment, business experience and acumen. As a minimum
requirement, any eligible candidate who is not proposed to serve
as an Interested Director (i.e., a candidate who is not
employed or proposed to be employed by the Fund) must not be an
interested person, as defined by the 1940 Act, of
the Fund. The Nominating Committee also considers, among other
factors, certain other relationships (beyond those delineated in
the 1940 Act) that might impair the independence of a proposed
Director.
The Compensation Committee, the principal purpose of which is to
oversee the compensation of the Independent Directors, is
currently comprised of Messrs. Hellerman and Knapp. The
Compensation Committee was established in March 2003. The
Compensation Committee held one (1) meeting during the
fiscal year ended October 31, 2005.
The Board has adopted a policy that encourages all Directors, to
the extent reasonable and practicable, to attend the Funds
annual stockholders meetings in person. All of the
Directors attended the last annual meeting.
Director
and Executive Officer Compensation.
The following table sets forth compensation paid by us in all
capacities during the fiscal year ended October 31, 2005 to
all of our Directors and our three highest paid executive
officers. Our Directors have been divided into two
groups Interested Directors and Independent
Directors. The Interested Director is an interested
person as defined by the 1940 Act. (The Fund is not part
of any Fund Complex.)
Compensation
Table
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(3)
|
|
|
|
(5)
|
|
|
(2)
|
|
Pension or
|
|
(4)
|
|
Total Compensation
|
|
|
Aggregate
|
|
Retirement Benefits
|
|
Estimated
|
|
from Fund and
|
(1)
|
|
Compensation
|
|
Accrued as Part of
|
|
Annual Benefits
|
|
Fund Complex
|
Name of Person, Position
|
|
from Fund(5)
|
|
Fund Expenses(1)
|
|
Upon Retirement
|
|
Paid to Directors
|
Interested Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Michael Tokarz, Chairman and
Portfolio Manager
|
|
$
|
0
|
|
|
$
|
0
|
|
|
$
|
0
|
|
|
$
|
0
|
|
Independent Directors
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Emilio Dominianni, Director
|
|
$
|
28,500
|
|
|
$
|
0
|
|
|
$
|
0
|
|
|
$
|
28,500
|
|
Robert Everett, Director(2)
|
|
$
|
32,250
|
|
|
$
|
0
|
|
|
$
|
0
|
|
|
$
|
32,250
|
|
Gerald Hellerman, Director
|
|
$
|
41,875
|
|
|
$
|
0
|
|
|
$
|
0
|
|
|
$
|
41,875
|
|
Robert Knapp, Director
|
|
$
|
32,000
|
|
|
$
|
0
|
|
|
$
|
0
|
|
|
$
|
32,000
|
|
Executive Officers (who are not
directors)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Bruce Shewmaker, Managing
Director(3)
|
|
$
|
262,000
|
|
|
$
|
0
|
|
|
$
|
0
|
|
|
$
|
0
|
|
Frances Spark, Former Chief
Financial Officer(4)
|
|
$
|
220,000
|
|
|
$
|
0
|
|
|
$
|
0
|
|
|
$
|
0
|
|
Jaclyn Shapiro, Vice President
and Secretary
|
|
$
|
175,000
|
|
|
$
|
0
|
|
|
$
|
0
|
|
|
$
|
0
|
|
|
|
|
(1) |
|
Directors do not receive any pension or retirement benefits from
the Fund. |
11
|
|
|
(2) |
|
On February 20, 2006, Mr. Everett resigned from the
Board. On February 23, 2006, Mr. Taylor was appointed
to the Board. |
|
(3) |
|
As of the Annual Meeting of Stockholders on March 29, 2004,
Mr. Shewmaker was no longer a member of the Board. |
|
(4) |
|
On October 3, 2005, Ms. Spark resigned from the
position of Chief Financial Officer of the Fund and Peter
Seidenberg was appointed as the new Chief Financial Officer of
the Fund. |
|
(5) |
|
The following table provides detail as to aggregate compensation
paid during fiscal 2005 to our three highest paid executive
officers: |
|
|
|
|
|
|
|
|
|
|
|
Salary
|
|
|
Bonus and Awards
|
|
Ms. Spark
|
|
$
|
180,000
|
|
|
$
|
40,000
|
|
Mr. Shewmaker
|
|
$
|
150,000
|
|
|
$
|
112,000
|
|
Ms. Shapiro
|
|
$
|
135,000
|
|
|
$
|
40,000
|
|
During the last fiscal year, each Independent Director was paid
an annual retainer of $15,000 ($20,000 for the Chairman of each
of the Audit Committee and Valuation Committee) and per-meeting
(including Audit Committee and Valuation Committee meetings)
fees of $1,250 (subject to a maximum fee of $2,000 per day)
or $750 in the case of telephonic meetings (subject to a maximum
fee of $2,000 per day) and Nominating Committee and
Compensation Committee per-meeting fees of $750. Each
Independent Director is also reimbursed by the Fund for
reasonable
out-of-pocket
expenses. The Directors do not receive any pension or retirement
benefits from the Fund.
At a meeting of the Board held on January 31, 2006, the
Board along with the Compensation Committee changed the fees
payable to Independent Directors and the fees payable to the
Chairman of the Audit Committee, Valuation Committee, and
Nominating Committee as follows. Each Independent Director is
now paid: an annual retainer of $50,000 ($60,000 for the
Chairman of the Audit Committee and $55,000 for the Chairman of
each of the Valuation Committee and Nominating Committee) for up
to five in-person Board meetings and committee meetings per
year. In the event that more than five in-person Board meetings
and committee meetings occur, each Independent Director will be
paid an additional $1,000 for each in-person meeting. Each
Independent Director is also reimbursed by the Fund for
reasonable
out-of-pocket
expenses. The Directors do not receive any pension or retirement
benefits from the Fund.
Mr. Tokarz, Chairman and Portfolio Manager of the Fund,
received no compensation from the Fund during the last fiscal
year. Mr. Tokarz has entered into a compensation
arrangement with the Fund under which he, as Portfolio Manager,
will be compensated by the Fund based upon his positive
performance and will be paid the lesser of: (i) 20% of the
net income of the Fund for the fiscal year; or (ii) the sum
of (a) 20% of the net capital gains realized by the Fund in
respect of investments made during his tenure as Portfolio
Manager and (b) the amount, if any, by which the
Funds total expenses for a fiscal year were less than two
percent of the Funds net assets (determined as of the last
day of the period). Any payments to be made shall be calculated
based upon the audited financial statements for the Fund for the
applicable fiscal year and shall be paid as soon as practicable
following the completion of such audit. Mr. Tokarz has
determined to allocate a portion of the incentive compensation
to certain employees of the Fund. As described under
Proposal 2 below, if Proposal 2 is
approved and the Advisory Agreement (as defined in
Proposal 2) is implemented, the agreement with
Mr. Tokarz would be terminated.
On February 16, 2005, the Fund entered into a sublease for
a larger space in the building in which the Funds current
executive offices are located. The sublease is scheduled to
expire on February 28, 2007. Future payments under the
sublease total approximately $223,000 in fiscal year 2006 and
$75,000 in fiscal year 2007. The Funds previous lease was
terminated effective March 1, 2005, without penalty. The
building in which the Funds executive offices are located,
287 Bowman Avenue, is owned by Phoenix Capital Partners, LLC, an
entity which is 97% owned by Mr. Tokarz.
12
Director
Equity Ownership
The following table sets forth, as of the Record Date, with
respect to each Director and nominee, certain information
regarding the dollar range of equity securities beneficially
owned in the Fund. The Fund does not belong to a family of
investment companies.
|
|
|
|
|
|
|
|
|
|
|
|
|
(3)
|
|
|
|
|
Aggregate Dollar Range of Equity
|
|
|
(2)
|
|
Securities of All Funds Overseen or to
|
(1)
|
|
Dollar Range of Equity
|
|
be Overseen by Director or Nominee
|
Name of Director or Nominee
|
|
Securities in the Fund
|
|
in Family of Investment Companies
|
|
Emilio Dominianni
|
|
|
Over $100,000
|
|
|
|
Over $100,000
|
|
Gerald Hellerman
|
|
|
Over $100,000
|
|
|
|
Over $100,000
|
|
Robert Knapp
|
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Over $100,000
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(1)
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Over $100,000
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(1)
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William Taylor
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Over $100,000
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Over $100,000
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Michael Tokarz(2)
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Over $100,000
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Over $100,000
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(1)
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These shares are owned by
Mr. Knapp directly.
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(2)
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Mr. Tokarz is an Interested
Director of the Fund because he serves as an officer of the Fund.
|
VOTE
REQUIRED
The election of the nominees requires the affirmative vote of
a plurality of the votes present or represented by proxy at the
Meeting and entitled to vote on the election of the nominees.
The Board recommends a vote FOR the election of
all of the nominees.
PROPOSAL 2
CONSIDERATION
OF THE APPROVAL OF
AN INVESTMENT ADVISORY AND MANAGEMENT AGREEMENT
BETWEEN THE FUND AND THE TOKARZ GROUP ADVISERS
LLC
Background
Over the past several months, the Fund has been presented with a
number of opportunities to manage and invest in various private
investment funds and offshore enterprises. However, due to the
regulatory and tax constraints on the Funds activities
(both as a business development company and a regulated
investment company under the Internal Revenue Code of
1986, as amended (the Code)), the Fund is restricted
in its ability to participate in many of these opportunities.
Accordingly, the Board, in conjunction with management, has been
working to develop a structure that would allow the Fund and
stockholders to benefit from a broader range of investment and
management opportunities. After weighing the options available
to the Fund and giving careful consideration to the unique
nature of the Fund, including its investment objective and
strategy, its status as a business development company and the
associated regulatory and tax constraints, management proposed
that the Board consider externalizing the Funds
management. The Board concluded that an externalized structure
could better position the Fund to capture a number of the
described benefits and opportunities for stockholders. In
addition, as part of the effort to capture these benefits and
opportunities, and in connection with the externalization, the
Board authorized the establishment and pursuit of the spin-off
of the Subsidiary (as described below under Terms of the
Advisory Agreement The Spin-Off of a Subsidiary
and Opportunities to Manage Other Entities) that would
allow stockholders an opportunity to participate in a portion of
the revenues generated from the management of private investment
funds and other vehicles by The Tokarz Group Advisers LLC
(TTG Advisers). As a result, at an in-person meeting
held on May 30, 2006, the Independent Directors unanimously
approved an investment advisory and management agreement (the
Advisory Agreement) between the Fund and TTG
Advisers which provides for an external management structure for
the Fund. (Mr. Tokarz recused himself from making a
determination on this matter.)
13
The 1940 Act requires that stockholders approve the Advisory
Agreement in order to implement the externalized structure.
Therefore, the Board has determined to submit this Proposal for
stockholders consideration at this Meeting and
recommends that you vote for its approval.
If stockholders approve the Advisory Agreement at this Meeting
(or an adjournment thereof), TTG Advisers will commence its
performance of the investment advisory and management services
with respect to the Funds portfolio and management of the
Fund effective on the later of: (i) November 1, 2006;
or (ii) the effective date of the registration of TTG
Advisers as an investment adviser with the SEC (the
Effective Date). As of the Effective Date, the
internal management of the Funds portfolio will
automatically cease. If stockholders do not approve the Advisory
Agreement at this Meeting (or an adjournment thereof), the Board
and Mr. Tokarz would consider alternative courses of
action. A form of the proposed Advisory Agreement is attached
hereto as Exhibit C.
Proposed
Externalization
The proposed Advisory Agreement provides that TTG Advisers will
act as investment adviser to the Fund, with authority to invest
and reinvest the Funds property in accordance with the
investment objective, policies and limitations set forth in the
Funds most recent prospectus and such other limitations as
are imposed by law or as may be imposed by the Directors from
time to time and oversee the administration, recordkeeping and
compliance functions of the Fund
and/or third
parties performing such functions for the Fund. Under this
arrangement, it is expected that the present investment
selection process would continue. In fact, it is expected that
Mr. Tokarz would continue to serve as the primary
investment professional responsible for the Funds
investment decisions and that all the Funds current
investment professionals would join TTG Advisers and would
continue to provide services to the Fund. The plan of
externalization should not affect the control which the
Directors have, to date, exercised over the affairs of the Fund.
For example, the Directors would continue to hold formal
quarterly meetings to review the Funds affairs, and would
receive, at least quarterly, statements from TTG Advisers
detailing changes in the Funds portfolio. (A description
of the Funds current internal structure is set forth below
under Present Management.)
It is the Directors belief that an external structure
would allow the management team the flexibility necessary to
develop and manage various other investment products and thus
grow assets under management. As more fully discussed below
under Board Consideration of the Approval of the Advisory
Agreement, the Board believes that growth in the
teams assets under management can provide a number of
potential benefits for the Fund and stockholders, including, in
particular: (i) the potential for increased access to
investment opportunities as a result of the teams
increased activities, visibility and resources; and (ii) a
greater ability for the team to attract and retain the high
caliber of talent from which the Fund has been accustomed to
receive services during the past two fiscal years. Further, as a
result of the Spin-Off (which is defined and explained below),
the Board recognizes that stockholders could have an opportunity
to increase their returns by benefiting directly from a portion
of the income generated from certain of the investment products
that would be managed by TTG Advisers. In short, the Board
believes that the externalized structure positions the Fund for
continued growth and benefits our stockholders.
About TTG
Advisers
TTG Advisers, which has its principal office at 287 Bowman
Avenue, Purchase, New York 10577, was organized to provide
investment advisory and management services to the Fund and
other investment vehicles. Newly organized as an investment
adviser, TTG Advisers is in the process of registering with the
SEC. It has no previous operating history. Implementation of the
Advisory Agreement is conditioned upon the effective
registration of TTG Advisers assuming the Funds
stockholders approve the Advisory Agreement. Mr. Tokarz
would continue to serve as the Funds Portfolio Manager
assuming stockholders approve the Advisory Agreement. However,
instead of performing this function solely in his capacity as an
officer of the Fund, he would do so as the controlling member of
TTG Advisers, the Funds investment adviser. Furthermore,
it is currently expected that all of the Funds current
employees (including the Funds investment professionals)
will join TTG Advisers and will continue to provide services to
the Fund.
14
Terms of
the Advisory Agreement
The following description is qualified in its entirety by
reference to the form of proposed Advisory Agreement attached
hereto as Exhibit C. Under the terms of the Advisory
Agreement, TTG Advisers will determine the composition of our
portfolio, the nature and timing of the changes to our portfolio
and the manner of implementing such changes, identify, evaluate
and negotiate the structure of the investments we make
(including performing due diligence on our prospective portfolio
companies), close and monitor the investments we make, determine
the securities and other assets that we purchase, retain or sell
and oversee the administration, recordkeeping and compliance
functions of the Fund
and/or third
parties performing such functions for the Fund. TTG
Advisers services under the Advisory Agreement are not
exclusive, and it may furnish similar services to other entities.
Pursuant to the Advisory Agreement, the Fund would pay TTG
Advisers a fee for investment advisory and management services
consisting of two components a base management fee
and an incentive fee.
The base management fee will be calculated at an annual rate of
2% of our total assets (excluding cash and the value of any
investment by the Fund not made in a portfolio company
(Non-Eligible Assets), but including assets
purchased with borrowed funds that are not Non-Eligible Assets)
(the Base Management Fee). The Base Management Fee
will be payable quarterly in arrears. The Base Management Fee
will be calculated based on the value of our total assets
(excluding Non-Eligible Assets, but including assets purchased
with borrowed funds that are not Non-Eligible Assets) at the end
of the most recently completed fiscal quarter. Base Management
Fees for any partial month or quarter will be appropriately pro
rated.
The incentive fee will be comprised of the following two parts:
One part will be calculated and payable quarterly in arrears
based on our pre-incentive fee net operating income.
Pre-incentive fee net operating income means interest income,
dividend income and any other income (including any other fees
to the Fund and MVC Financial Services, Inc.
(MVCFS), the Funds wholly-owned subsidiary,
such as directors, commitment, origination, structuring,
diligence and consulting fees or other fees that we receive from
portfolio companies) accrued during the fiscal quarter, minus
the Funds and MVCFS operating expenses for the
quarter (including the Base Management Fee and any interest
expense and dividends paid on any outstanding preferred stock,
but excluding the incentive fee (whether paid or accrued)).
Pre-incentive fee net operating income includes, in the case of
investments with a deferred interest feature (such as market
discount, debt instruments with
payment-in-kind
interest, preferred stock with
payment-in-kind
dividends and zero coupon securities), accrued income that we
have not yet received in cash. TTG Advisers will not be under
any obligation to reimburse us for any part of the incentive fee
it received that was based on accrued income that we never
receive as a result of a default by an entity on the obligation
that resulted in the accrual of such income.
Pre-incentive fee net operating income does not include any
realized capital gains, realized capital losses or unrealized
capital appreciation or depreciation. Because of the structure
of the incentive fee, it is possible that we may pay an
incentive fee in a quarter where we incur a loss. For example,
if we receive pre-incentive fee net operating income in excess
of the hurdle rate (explained below) for a quarter, we will pay
the applicable incentive fee even if we have incurred a loss in
that quarter due to realized and unrealized capital losses.
Pre-incentive fee net operating income, expressed as a rate of
return on the value of our net assets at the end of the
immediately preceding fiscal quarter, will be compared to a
fixed hurdle rate of 1.75% per fiscal quarter.
If market interest rates rise, we may be able to invest our
funds in debt instruments that provide for a higher return,
which would increase our pre-incentive fee net operating income
and make it easier for TTG Advisers to surpass the fixed hurdle
rate and receive an incentive fee based on such net operating
income. Our pre-incentive fee net operating income used to
calculate this part of the incentive fee is also included in the
amount of our total assets (excluding Non-Eligible Assets, but
including assets purchased with borrowed funds that are not
Non-Eligible Assets) used to calculate the 2% Base Management
Fee.
Under the Advisory Agreement, it is proposed we pay TTG Advisers
an incentive fee with respect to our pre-incentive fee net
operating income in each fiscal quarter as follows:
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no incentive fee in any fiscal quarter in which our
pre-incentive fee net operating income does not exceed the
hurdle rate;
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15
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100% of our pre-incentive fee net operating income with respect
to that portion of such pre-incentive fee net operating income,
if any, that exceeds the hurdle rate but is less than 2.1875% in
any fiscal quarter. We refer to this portion of our
pre-incentive fee net operating income (which exceeds the hurdle
rate but is less than 2.1875%) as the catch-up. The
catch-up is meant to provide our investment adviser
with 20% of our pre-incentive fee net operating income as if a
hurdle rate did not apply if this net operating income exceeds
2.1875% in any fiscal quarter; and
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20% of the amount of our pre-incentive fee net operating income,
if any, that exceeds 2.1875% in any fiscal quarter.
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These calculations are appropriately pro rated for any period of
less than three months and adjusted for any share issuances or
repurchases during the current quarter.
The second part of the incentive fee (the Capital Gains
Fee) will be determined and payable in arrears as of the
end of each fiscal year (or upon termination of the Advisory
Agreement, as of the termination date), commencing with the
fiscal year ending on October 31, 2007, and will equal 20%
of: (i) the Funds aggregate net realized capital
gains, during such fiscal year, on the Funds investments
made after November 1, 2003 (the Funds New
Portfolio) (exclusive of any realized gains subject to an
SPV Incentive Allocation, as defined below); minus (ii) the
cumulative aggregate unrealized capital depreciation of the
Funds New Portfolio calculated from November 1, 2003.
For purposes of this calculation, neither the Funds
contribution of an investment to a Subsidiary (as defined below)
nor the Funds distribution of an investment to the
Funds stockholders shall be deemed to be a realization
event.
In addition, the Fund proposes to authorize TTG Advisers to
create or arrange for the creation of one or more special
purpose vehicles for which it may serve as the general partner
or managing member for purposes of making investments on behalf
of the Fund (each, an SPV). It is proposed that TTG
Advisers, in its role as the general partner or managing member
of an SPV, receive an incentive allocation equal to 20% of the
net profits of the SPV (the SPV Incentive
Allocation). In no event would any SPV Incentive
Allocation received by TTG Advisers cause the total compensation
received by TTG Advisers under the Advisory Agreement to exceed
the limits imposed by the Investment Advisers Act of 1940, as
amended.
Notwithstanding the foregoing, in no event shall the sum of the
Capital Gains Fee and the SPV Incentive Allocation, if any, for
any fiscal year exceed: (i) 20% of (a) the Funds
cumulative realized capital gains on the Funds investments
(the Funds Total Portfolio) (including any
realized gains attributable to an SPV Incentive Allocation),
minus (b) the sum of the Funds cumulative realized
capital losses on, and aggregate unrealized capital depreciation
of, the Funds Total Portfolio; minus (ii) the
aggregate amount of Capital Gains Fees paid and the value of SPV
Incentive Allocations made in all prior years (the
Cap). For purposes of calculating the Cap:
(i) the initial value of any investment held by the Fund on
November 1, 2003 shall equal the fair value of such
investment on November 1, 2003; and (ii) the initial
value of any investment made by the Fund after November 1,
2003 shall equal the accreted or amortized cost basis of such
investment. Furthermore, in the event that the Capital Gains Fee
for any fiscal year exceeds the Cap (Uncollected Capital
Gains Fees), all or a portion of such amount shall be
accrued and payable to TTG Advisers following any subsequent
fiscal year in which the Advisory Agreement is in effect, but
only to the extent the Capital Gains Fee, plus the amount of
Uncollected Capital Gains Fees, each calculated as of the end of
such subsequent fiscal year, do not exceed the Cap. Any
remaining Uncollected Capital Gains Fees shall be paid following
subsequent fiscal years in accordance with the same process,
provided the Advisory Agreement is in effect during such fiscal
year.
16
Examples
of Incentive Fee Calculations
Example
1: Income Related Portion of Incentive Fee(1):
Assumptions
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Hurdle rate(2) = 1.75%
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Management fee(3) = 2.00%
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Other expenses (legal, accounting, custodian, transfer agent,
etc.)(4) = maximum value of 3.25% of the Funds average net
asset value including management fee
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Alternative
1
Additional
Assumptions
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Operating income (including interest, dividends, fees, etc.) =
4.00%
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Pre-incentive fee net operating income
(operating income − (management fee + other
expenses)) = .075%
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Pre-incentive fee net operating income does not exceed hurdle
rate, therefore there is no incentive fee.
Alternative
2
Additional
Assumptions
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Operating income (including interest, dividends, fees, etc.) =
5.25%
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Pre-incentive fee net operating income
(operating income − (management fee + other
expenses)) = 2.00%
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Pre-incentive fee net operating income exceeds hurdle rate,
therefore there is an incentive fee.
Incentive Fee
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=
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100% × Catch-Up + the greater of 0% AND
(20% ×(pre-incentive
fee net operating income − 2.1875%)
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=
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(100% × (2.00% − 1.75%)) + 0%
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Alternative
3
Additional
Assumptions
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Operating income (including interest, dividends, fees, etc.) =
6.00%
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Pre-incentive fee net operating income
(operating income − (management fee + other
expenses)) = 2.75%
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Pre-incentive fee net operating income exceeds hurdle rate,
therefore there is an incentive fee.
Incentive Fee
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=
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100% × Catch-Up + the greater of 0% AND
(20% × (pre-incentive
fee net operating income − 2.1875%)
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=
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(100% × (2.1875% − 1.75%)) + (20% ×
(2.75% − 2.1875%))
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=
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0.4375% + (20% × 0.5625%)
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17
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(1) |
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The hypothetical amount of pre-incentive fee net operating
income shown is based on a percentage of total net assets. |
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(2) |
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Represents 1.75% annualized hurdle rate. |
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(3) |
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Represents 2.00% annualized management fee. |
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(4) |
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Excludes offering expenses. |
Example
2: Capital Gains Portion of Incentive Fee
Assumptions
Year 1 of the Advisory Agreement:
$20 million investment made in Company A (Investment
A), and $30 million investment made in Company B
(Investment B).
Legacy Investment I (Legacy I) is assumed from prior
management and has a cost basis of $5 million, and had a
fair market value (FMV) of $2 million at
November 1, 2003.
Legacy Investment II (Legacy II) is
assumed from prior management and has a cost basis of
$3 million, and had a FMV of $0 at November 1, 2003.
Year 2 of the Advisory Agreement:
Investment A is sold for $50 million, FMV of Investment B
is $32 million, FMV of Legacy I is $0 and FMV of
Legacy II is $2 million.
Year 3 of the Advisory Agreement:
FMV of Investment B is $32 million, Legacy I is written off
for no proceeds and a $5 million loss is realized and FMV
of Legacy II is $2 million.
Year 4 of the Advisory Agreement:
Investment B is sold for $32 million and Legacy II is
sold for $5 million.
18
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Compensation
Calculation
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Cap Calculation
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Actual
Payout
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(20% of: net realized capital
gains, during the fiscal year, on the Funds New Portfolio
minus the aggregate unrealized capital depreciation on
the Funds New Portfolio calculated from November 1,
2003)
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((a) 20% of (i) cumulative
net realized capital gains, calculated based on the FMV of
investments on November 1, 2003 for investments made prior
to that date and on accreted/amortized cost for those
investments made after November 1, 2003, on the Funds
Total Portfolio minus (ii) the cumulative unrealized
capital depreciation on the Funds Total Portfolio
calculated based on the FMV of investments on November 1,
2003 for investments made prior to that date and on
accreted/amortized cost for those investments made after
November 1, 2003; minus, (b) the aggregate
amount of Capital Gains Fees paid in all prior years)
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(the Compensation Calculation plus
any uncollected fees to the extent they do not exceed the Cap
Calculation)
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Year 1
|
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20% of: ($0 realized capital gains
on the Funds New Portfolio minus $0 realized losses on the
Funds New Portfolio) minus ($0 aggregate unrealized
capital depreciation on the Funds New Portfolio) =
$0
|
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(a) 20% of (i) ($0 cumulative
net realized capital gains on the Funds Total Portfolio),
minus (ii) ($2 million cumulative unrealized capital
depreciation (based on Legacy Is FMV value at 11/1/03) on
the Funds Total Portfolio); minus, (b) ($0 in
Capital Gains Fees paid in all prior years) =
$(2 million)
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$0
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Year 2
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20% of: ($30 million realized
capital gains on the Funds New Portfolio minus $0 realized
losses on the Funds New Portfolio) minus ($0
aggregate unrealized capital depreciation on the Funds New
Portfolio) = $6 million
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(a) 20% of
(i) ($30 million cumulative net realized capital gains
on the Funds Total Portfolio) minus (ii)
($2 million cumulative unrealized capital depreciation
(based on Legacy Is FMV value at 11/1/03) on the
Funds Total Portfolio); minus, (b) ($0 in Capital
Gains Fees paid in all prior years) = $5.6 million
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$5.6 million
($400,000 (i.e., the Compensation Calculation minus the
Cap Calculation) is uncollected)
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19
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Compensation
Calculation
|
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Cap Calculation
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Actual
Payout
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Year 3
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20% of: ($0 realized capital gains
on the Funds New Portfolio minus $0 realized losses on the
Funds New Portfolio) minus ($0 aggregate unrealized
capital depreciation on the Funds New Portfolio) =
$0
|
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(a) 20% of
(i) ($28 million cumulative net realized capital gains
on the Funds Total Portfolio ($30 million on
Investment A and a realized loss of $2 million on Legacy I
based on the FMV on 11/1/2003)) minus (ii) ($0 cumulative
unrealized capital depreciation on the Funds Total
Portfolio); minus, (b) ($5.6 million in Capital
Gains Fees paid in all prior years) = $0
|
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$0
($400,000 earned in
Year 2 remains uncollected)
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Year 4
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20% of: ($2 million realized
capital gains on the Funds New Portfolio minus $0 realized
losses on the Funds New Portfolio) minus ($0
aggregate unrealized capital depreciation on the Funds New
Portfolio) = $400,000
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(a) 20% of
(i) ($35 million cumulative net realized capital gains
on the Funds Total Portfolio ($30 million on
Investment A, a $2 million realized gain on Investment B, a
$5 million realized gain on Legacy II based on the FMV
on 11/1/2003 and a realized loss of $2 million on Legacy I
based on the FMV on 11/1/2003)) minus (ii) ($0 cumulative
unrealized capital depreciation on the Funds Total
Portfolio); minus, (b) ($5.6 million in Capital
Gains Fees paid in all prior years) = $1.4 million
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$800,000
($400,000 earned in
Year 4 and the $400,000 that was uncollected in Year 2 is paid
out.)
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Had the Advisory Agreement been in effect during the last fiscal
year ended October 31, 2005, the Fund would have incurred
approximately $2.1 million in Base Management Fees and
accrued approximately $1.1 in incentive fees or approximately 6%
less than the approximate $3.5 million that the Fund
accrued and paid last year with respect to salaries, bonuses and
benefits for employees and the provisional expense relating to
Mr. Tokarzs present agreement with the Fund.
Payment
of our expenses
All investment professionals of TTG Advisers and its staff, when
and to the extent engaged in providing services required to be
provided by TTG Advisers under the Advisory Agreement, and the
compensation and routine overhead expenses of such personnel
allocable to such services, will be provided and paid for by TTG
Advisers and not by the Fund, except that costs or expenses
relating specifically to items identified in the next sentence
shall be borne by the Fund. The Fund will bear all costs and
expenses of its operations and transactions, including, without
limitation, those relating to: (i) the cost and expenses of
any independent valuation firm; (ii) expenses incurred by
TTG Advisers payable to third parties, including agents,
consultants or other advisors, in monitoring financial and legal
affairs for the Fund and in monitoring the Funds
investments and performing due diligence on its prospective
portfolio companies, provided, however, the retention by
TTG Advisers of any third party to perform such services shall
require the advance approval of the Board (which approval shall
not be unreasonably withheld) if the fees for such services are
expected to exceed $30,000; once the third party is approved,
any expenditure to such third party will not require additional
approval from the Board; (iii) interest
20
payable on debt, if any; (iv) offerings of the Funds
common stock and other securities; (v) investment advisory
and management fees; (vi) fees and payments due under any
administration agreement between the Fund and its administrator;
(vii) transfer agent and custodial fees;
(viii) federal and state registration fees; (ix) all
costs of registration and listing the Funds shares on any
securities exchange; (x) federal, state and local taxes;
(xi) independent directors fees and expenses;
(xii) costs of preparing and filing reports or other
documents required by governmental bodies (including the SEC);
(xiii) costs of any reports, proxy statements or other
notices to stockholders, including printing and mailing costs;
(xiv) the cost of the Funds fidelity bond, directors
and officers/errors and omissions liability insurance, and any
other insurance premiums; (xv) direct costs and expenses of
administration, including printing, mailing, long distance
telephone, copying, independent auditors and outside legal
costs; (xvi) the costs and expenses associated with the
establishment of an SPV; (xvii) the allocable portion of
the cost (excluding office space) of the Funds Chief
Financial Officer, Chief Compliance Officer and Secretary in an
amount not to exceed $100,000, per year, in the aggregate; and
(xviii) all other expenses incurred by the Fund in
connection with administering the Funds business.
Notwithstanding the foregoing, absent the consent of the Board,
any fees or income earned, on the Funds behalf, by any
officer, director, employee or agent of TTG Advisers in
connection with the monitoring or closing of an investment or
disposition by the Fund or for providing managerial assistance
to a portfolio company (e.g., serving on the board of
directors of a portfolio company) shall inure to the Fund.
In addition, for each of the next two full fiscal years
(i.e., fiscal 2007 and 2008), TTG Advisers has agreed to
absorb or reimburse operating expenses of the Fund (promptly
following the completion of such year), to the extent necessary
to limit the Funds Expense Ratio for any such year to
3.25% (the Expense Cap); provided however,
if, on October 31, 2007, the Funds net assets have
not increased by at least 5% from October 31, 2006, the
dollar value of the Expense Cap shall increase by 5% for fiscal
2008. For purposes of this paragraph, the Funds
Expense Ratio shall be calculated as of
October 31 of any such year and mean: (i) the
consolidated expenses of the Fund (which expenses shall include
any amounts payable to TTG Advisers under the Base Management
Fee, but shall exclude the amount of any interest, taxes,
incentive compensation, and extraordinary expenses (including,
but not limited to, any legal claims and liabilities and
litigation costs and any indemnification related thereto, and
the costs of any spin-off or other similar type transaction
contemplated by the Advisory Agreement)), as a percentage of
(ii) the average net assets of the Fund (i.e.,
average consolidated assets less average consolidated
liabilities) during such fiscal year as set forth in the
Funds financial statements contained in the Funds
annual report on
Form 10-K.
Below is a table depicting: (i) the Funds actual
expense ratio for the fiscal year ended October 31, 2005
and the period November 1, 2005 to April 30, 2006; and
(ii) restated, pro forma, expense ratios for those periods
that assume implementation of the Advisory Agreement at the
beginning of the fiscal year (November 1, 2004).
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November 1, 2005 Through
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Fiscal 2005
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April 30, 2006
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Historical
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Pro Forma
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Historical
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Pro Forma
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Net Assets as of the End of Period
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198,739,000
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198,739,000
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217,621,516
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217,621,516
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Operating
Expenses
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Employee Salaries, Bonuses and
Benefits
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2,336,242
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1,397,390
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Base Management Fee at 2%
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2,134,773
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1,713,448
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Accrued Incentive Fees
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1,117,328
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1,117,328
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3,556,186
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3,556,186
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Other Expenses
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3,051,379
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2,566,959
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1,776,099
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1,443,285
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Total Operating Expenses
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6,504,949
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5,819,060
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6,729,675
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6,712,919
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Ratio of Total Operating Expenses*
to Average Net Assets
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3.75%
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3.35%
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6.58%
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6.57%
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Ratio of Total Operating Expenses*
to Average Net Assets (excluding accrued Incentive
Fees)
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3.10%
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2.70%
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3.10%
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3.09%
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* |
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Period data is annualized |
21
There is no assurance that the comparative unaudited results
shown above would remain the same in the future. In fact, the
Advisory Agreement could result in comparatively higher
expenses. Whether expenses increase in future periods depends on
a number of factors that are difficult to predict including, for
example: (i) the amount of total assets of the Fund;
(ii) the amount of assets held in cash and portfolio
company investments; (iii) the amount of assets that will
be invested pursuant to the Funds investment strategy; and
(iv) the amount of operating expenses (excluding advisory
fees) that are incurred by the Fund. This is particularly true,
as the Fund converts cash to portfolio investments in future
quarters because, under the Advisory Agreement, management fees
are paid based on assets invested (excluding cash). Thus, these
fees would increase.
Indemnification
The Advisory Agreement provides that, absent willful
misfeasance, bad faith or gross negligence in the performance of
its duties or by reason of the reckless disregard of its duties
and obligations, TTG Advisers, its members and their respective
officers, managers, partners, agents, employees, controlling
persons, members and any other person or entity affiliated with
it (collectively, the Indemnified Parties) are
entitled to indemnification from the Fund for any damages,
liabilities, costs and expenses (including reasonable
attorneys fees and amounts reasonably paid in settlement)
arising from the rendering of TTG Advisers services under
the Advisory Agreement or otherwise as an investment adviser of
the Fund. In addition, TTG Advisers has agreed to indemnify the
Fund for losses or damages arising out of the willful
misfeasance, bad faith or gross negligence in the performance of
an Indemnified Partys duties or by reason of the reckless
disregard of its duties and obligations under the Advisory
Agreement.
The
Spin-Off of a Subsidiary and Opportunities to Manage Other
Entities
As consideration for the Fund entering into the Advisory
Agreement, TTG Advisers has acknowledged the parties
objective of having the Funds stockholders participate in
a portion of the revenues generated by private investment funds
managed by TTG Advisers. The Advisory Agreement provides for the
pursuit of a spin-off of a subsidiary of the Fund (a
Subsidiary) to all of our stockholders (on a
pro-rata basis) (the Spin-Off). It is contemplated
that this Subsidiary would, together with TTG Advisers, own
(directly or indirectly) the manager
and/or
general partner (or managing member) of private investment funds
and other vehicles (a Private Fund General
Partner). As a result, our stockholders, as stockholders
of the spun-off Subsidiary, may have the opportunity to
participate in a portion of the management fees and incentive
compensation generated by these vehicles. Further, the Advisory
Agreement provides that a Private Fund General Partner
would be a general partner (or managing member) of any private
investment fund or other pooled investment vehicle formed by TTG
Advisers that has an investment objective of investing in
Targeted Investments (as defined below).
22
The illustrations below depict the proposed structure of the
Fund before and after the Spin-Off.
Before
Spin-Off
After
Spin-Off
Under this structure, Private Fund General Partners would
be entitled to the entire portion of incentive allocations made
by the investment funds they serve (provided that, a portion of
the allocation may be allocated to third parties not affiliated
with, and independent of, TTG Advisers). It has not yet been
determined the extent to
23
which the Subsidiary would share the revenues generated from any
Private Fund General Partner and this percentage may vary
depending on the nature and size of the vehicles to be managed,
among other factors. Furthermore, the Board recognizes that
following the Spin-Off, the Subsidiary may offer its shares to
investors other than the Funds stockholders which could
potentially have the effect of diluting our stockholders
participation in the revenue generated by Private
Fund General Partners.
Following the Spin-Off, the Subsidiary would be expected to
operate as a public company subject to the oversight and control
of a board of directors, a majority of whose members would be
independent of TTG Advisers. Details regarding the Spin-Off are
in the process of being considered and its specific terms will
be subject to the due diligence of, and the consideration and
approval by, the Board. It is expected that the material terms
will be disclosed in a registration statement filed with the
SEC. However, there can be no assurance that the Board will
approve the specific terms of the Spin-Off. As a result, it is
possible that the Board may determine not to proceed with the
Spin-Off. In this event, the Advisory Agreement will be
implemented (assuming stockholders approve it) and
stockholders may not have an opportunity to participate in
revenue generated by private investment funds managed by TTG
Advisers. Additionally, in the event the Funds
stockholders do not approve the Advisory Agreement, it is
unlikely that the Board would approve the Spin-Off as described.
Under the terms of the Advisory Agreement (and as contemplated
by the Spin-Off), TTG Advisers will not be prohibited from
managing other funds. Nevertheless, TTG Advisers has agreed not
to undertake any conflicting duties of loyalty which would
affect its prior fiduciary duty to the Fund. Further, for a
period of five years from the Effective Date (unless the
Advisory Agreement ceases to be in effect), TTG Advisers has
agreed to give the Fund 30 days advance notice
in writing of any proposed undertaking by it of material
significance (including the taking on of any new clients) and to
provide the Fund and the Independent Directors with all
information relevant to a determination of the effect of such
undertaking on TTG Advisers ability to carry out its
obligations to the Fund under the Advisory Agreement.
Additionally, during this period, TTG Advisers has agreed that,
absent the consent of the Board, it will not manage another
business development company, a private equity fund or other
similar vehicle with the investment objective of:
(i) investing in mezzanine and debt securities; or
(ii) making equity or other non-debt
investments that are (a) at the time of the formation of
the vehicle, expected to be equal to or less than the lesser of
10% of the Funds net assets or $25 million; and
(b) issued by U.S. companies with less than
$150 million in revenues (Targeted
Investments). Furthermore, the Fund and TTG Advisers have
agreed that, so long as the Advisory Agreement or any extension,
renewal or amendment remains in effect, TTG Advisers will be the
only investment adviser for the Fund, subject to TTG
Advisers right to enter into sub-advisory agreements (in
accordance with the requirements under the 1940 Act). TTG
Advisers assumes no responsibility under the Advisory Agreement
other than to render the services called for by the Advisory
Agreement.
Principal
Executive Officers
The following individual is the principal executive officer of
TTG Advisers. The principal business address of such person is
287 Bowman Avenue, Purchase, New York 10577.
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Name
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Position
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Principal Occupation
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Michael Tokarz
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Chief Executive Officer
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The principal occupations of
Mr. Tokarz are set forth under Election of
Directors in Proposal 1
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Duration
and Termination of Agreement
This Advisory Agreement shall remain in effect for two years
after the Effective Date, and thereafter shall continue
automatically for successive annual periods, provided that such
continuance is specifically approved at least annually by:
(i) the vote of the Board, or by the vote of stockholders
holding a majority of the outstanding voting securities of the
Fund; and (ii) the vote of a majority of the Funds
directors who are not parties to the Advisory Agreement and are
not interested persons (as such term is defined in
Section 2(a)(19) of the 1940 Act) of either the Fund or TTG
Advisers, in accordance with the requirements of the 1940 Act.
The Advisory Agreement may be terminated at any time, without
the payment of any penalty, upon 60 days written
notice, by: (i) TTG Advisers in the event (a) a
majority of the current Independent Directors cease to serve as
Directors of the Fund or (b) the Fund undergoes a change in
control (as such term is defined by
Section 2(a)(9) of the 1940 Act) not caused
24
by TTG Advisers; (ii) TTG Advisers, following the initial
two year term of the Advisory Agreement; (iii) by the vote
of the stockholders holding a majority of the outstanding
voting securities of the Fund (as such term is defined by
Section 2(a)(42) of the 1940 Act); or (iv) by the
action of the Funds Directors. Furthermore, the Advisory
Agreement shall automatically terminate in the event of its
assignment (as such term is defined for purposes of
Section 15(a)(4) of the 1940 Act).
Mr. Tokarzs
Commitment to the Fund
TTG Advisers has represented that it will enter into an
agreement with Mr. Tokarz pursuant to which Mr. Tokarz
will agree to serve as the portfolio manager primarily
responsible for the
day-to-day
management of the Funds portfolio for the full twenty-four
calendar months following the Effective Date, absent the
occurrence of certain extraordinary events. In addition, the
Fund and TTG Advisers have acknowledged that Mr. Tokarz is
the current Portfolio Manager of the Fund and TTG Advisers has
covenanted that throughout the term of the Advisory Agreement it
will not undertake any action that would cause Mr. Tokarz
to cease to serve as the Funds primary Portfolio Manager,
including, without limitation, transferring any controlling
interest in TTG Advisers to another entity or person. In
addition, the Fund and TTG Advisers have acknowledged that
Mr. Tokarz has entered into an agreement with the Fund
pursuant to which Mr. Tokarz and the Fund have agreed that,
upon the Effective Date, Mr. Tokarzs employment
agreement with the Fund, dated November 1, 2003, as
extended on October 31, 2005, shall immediately be
terminated and any outstanding obligation under that agreement
shall be superseded by those under the Advisory Agreement.
Allocation
of Investment Opportunities
It is expected that the Fund will adopt an allocation policy
that requires, absent the consent of the Board, TTG Advisers to
allocate investment opportunities sourced by it or a person or
entity affiliated with it, to the Fund consistent with the
Funds stated investment objective (as may be amended from
time to time consistent with applicable law). Specifically,
under this policy, absent the consent of the Board, TTG Advisers
would allocate to the Fund all investment opportunities in
Targeted Investments. It is expected, however, that the policy
would permit any private investment fund that is managed or
co-managed by TTG Advisers and a person or entity not affiliated
with TTG Advisers or the Subsidiary to make an investment,
without regard to the Fund, if such investment is sourced by a
person or entity not affiliated with TTG Advisers and the
Subsidiary. Further, TTG Advisers shall not have an obligation
to seek the consent of the Board nor be required to allocate
Control Investments to the Fund, provided
such investment is allocated, in its entirety, to a
Subsidiary. For these purposes, a Control Investment
shall mean any equity investment where the investor holds a
majority of the outstanding voting securities (as
defined by the 1940 Act) of the relevant company.
The
Boards Considerations
At an in-person meeting held on May 30, 2006, all of the
Independent Directors (Mr. Tokarz recused himself from
making a determination on this matter), voted to approve the
Advisory Agreement, including the externalization plan and
recommended that stockholders approve such agreement. The
Independent Directors had the opportunity to consult in an
executive session with counsel to the Independent Directors
regarding the approval of the Advisory Agreement. In reaching a
decision to approve the Advisory Agreement, the Independent
Directors reviewed a significant amount of information and
considered, among other things:
(i) the nature, extent and quality of the advisory and
other services proposed to be provided to the Fund by TTG
Advisers;
(ii) the investment performance of the Fund and
Mr. Tokarz and his team;
(iii) the potential for additional benefits to be derived
by TTG Advisers and its affiliates as a result of our
relationship with TTG Advisers;
(iv) TTG Advisers estimated pro forma profitability
with respect to managing the Fund;
(v) the costs of the services to be provided by TTG
Advisers (including management fees, incentive fees and expense
ratios) and estimated profits expected to be realized by TTG
Advisers; and
(vi) the potential for economies of scale.
25
In particular, all of the Independent Directors considered the
following:
Nature, Extent and Quality of Services. The
Independent Directors considered TTG Advisers
representation that the nature, quality and level of services
proposed to be provided by TTG Advisers under the Advisory
Agreement would be at least the same as those being provided
currently to the Fund by Mr. Tokarz and the internal
management team. The Independent Directors considered that all
of the Funds current investment professionals would be
joining TTG Advisers and would continue to provide services to
the Fund. The Independent Directors considered representations
that Mr. Tokarz would continue to serve as the primary
portfolio manager responsible for the Funds investment
decisions. The Independent Directors examined the proposed
organizational structure of TTG Advisers and its proposed
financial resources. The Independent Directors considered the
experience of the proposed members of TTG Advisers
management team, noting that each has been involved with the
management of the Fund and its portfolio companies and has prior
experience in connection with the types of investments proposed
to be made by us, including such personnels network of
relationships with intermediaries focused on small and
middle-market companies. The Independent Directors accorded
weight to the fact that, although the externalization involves a
restructuring of the Fund, if implemented, the Advisory
Agreement should not disrupt the continued management of the
Fund. In addition, the Independent Directors considered the
other terms and conditions of the Advisory Agreement, including
TTG Advisers representation that it will enter into an
agreement with Mr. Tokarz pursuant to which Mr. Tokarz
will agree to serve as the portfolio manager primarily
responsible for the
day-to-day
management of the Funds portfolio for the full twenty-four
calendar months following the Effective Date, absent the
occurrence of certain extraordinary events. In this regard, the
Independent Directors took into account that the Advisory
Agreement provides that TTG Advisers may only terminate the
agreement, at any time: (i) under circumstances where
(a) a majority of the current Independent Directors ceases
to serve as Directors of the Fund; or (b) the Fund
undergoes a change in control (as such term is
defined by Section 2(a)(9) of the 1940 Act) not caused by
TTG Advisers; or (ii) following the initial two year term
of the Advisory Agreement. The Independent Directors concluded
that the substantive terms of the Advisory Agreement, including
the services to be provided, are generally similar to those of
comparable business development companies described in the
market data then available and that it would be difficult to
obtain similar services from other third party services
providers.
Investment Performance. Because TTG Advisers
is newly formed, the Directors did not consider the investment
performance of TTG Advisers. The Directors, however, accorded
significant weight to the performance of the Fund since
Mr. Tokarz and his team assumed their responsibilities in
November 2003 and to the representation that all of the
Funds current employees (including the Funds
investment professionals) are expected to join TTG Advisers and
continue their service to the Fund upon the implementation of
the Advisory Agreement. In this regard, the Independent
Directors compared the investment performance of the Fund, since
November 2003, to the investment performance of the S&P 500
Index as well as other business development companies.
Additional Benefits Derived by TTG
Advisers. The Independent Directors also took
into account the benefits of externalization to TTG Advisers,
particularly that it would allow TTG Advisers greater
flexibility to manage other funds and thus grow the assets under
the teams management. In this regard, the Independent
Directors accorded weight to the benefits that could potentially
flow to the Fund and the Funds stockholders from increased
assets under management including, in particular, those
described above under Proposed Externalization. The
Independent Directors also considered that
Mr. Tokarzs current arrangement with the Fund does
not prohibit him or members of his team from managing other
funds. In this regard, the Independent Directors accorded weight
to TTG Advisers representation that it would seek to
provide the Fund with at least the same level, quality and
nature of services currently being provided. The Independent
Directors also considered that for a period of five years from
the Effective Date, TTG Advisers must provide 30 days
advance written notice to the Independent Directors before
taking on any assignment of material significance (including the
taking on of any new clients). The Independent Directors also
considered TTG Advisers representation that it would not
manage a business development company, a private equity fund or
other similar vehicle with the investment objective of investing
in Targeted Investments, without the consent of the Independent
Directors.
26
Other Matters Considered. The Independent
Directors considered the degree to which the above described
goals sought to be achieved by the externalization may be
accomplished internally (i.e., without a need for the
externalization). The Independent Directors concluded that the
complex web of statutory and regulatory restrictions (including
those relating to the Funds status under the Code)
materially limit the Funds ability to grow assets under
internal management (particularly, if the Fund would seek to do
this without significantly diluting the equity of the
Funds current stockholders). In addition, the Independent
Directors considered that TTG Advisers is likely to have greater
success than the Fund in its present form in attracting and
retaining talented personnel through its ability to offer
compensation incentives, including equity participation, in an
independent entity. Furthermore, the Independent Directors
accorded significant weight to the fact that, absent the
occurrence of certain extraordinary events, the Advisory
Agreement may not be terminated by TTG Advisers during its
initial two-year term and Mr. Tokarz would serve as the
Funds Portfolio Manager for the full twenty-four calendar
months following the Effective Date. By contrast, under his
current agreement with the Fund, Mr. Tokarz may terminate
his arrangement with the Fund at any time (on 30 days
notice) for any reason.
Profitability of TTG Advisers. The Independent
Directors considered that TTG Advisers is newly formed and its
expected profitability is difficult to ascertain and is
dependent on its ability to secure other mandates to manage
investment funds. Nevertheless, the Independent Directors
considered a pro-forma rough estimate of profitability provided
to it by representatives of management and the Independent
Directors observed that the estimated profitability level seemed
reasonable.
Costs of the Services Proposed to be Provided to the
Fund. The Independent Directors considered
comparative data with respect to services rendered and the
advisory fees (including the management fees and incentive fees)
of other business development companies with similar investment
strategies, as well as the Funds projected operating
expenses and expense ratio compared to other business
development companies with similar investment strategies. The
Independent Directors also considered the comparative expense
ratio data cited above under Terms of the Advisory
Agreement Payment of our expenses,
which demonstrated that had the Advisory Agreement been in
effect during the Funds last fiscal year, the Funds
total expense ratio for that year would have been lower than the
Funds actual expense ratio for that year. In addition, the
Independent Directors accorded particular weight to the Expense
Cap agreed to by TTG Advisers. Furthermore, the Independent
Directors took into account that an asset-based fee offers a
higher degree of certainty as to the Funds expense ratio
than the current internal arrangement. Based upon its review,
the Independent Directors concluded that the fees to be paid
under the Advisory Agreement are fair and generally comparable
to those payable under agreements of comparable business
development companies described in the market data then
available.
Economies of Scale. The Independent Directors
concluded that there is limited potential for economies of scale
that would inure to the benefit of our stockholders given the
nature of the Fund.
Conclusions. Prior to reaching its
determinations at the May 30 in-person meeting, the
Independent Directors evaluated the proposed arrangements and
the concept of externalization, in general, at multiple
telephonic and in-person meetings. In view of the wide variety
of factors that the Independent Directors considered in
connection with its evaluation of the Advisory Agreement, it is
not practical to quantify, rank or otherwise assign relative
weights to the specific factors it considered in reaching its
decision. Rather, the Independent Directors based their approval
on the totality of information presented to, and the
investigation conducted by, them. In considering the factors
discussed above, individual Directors may have given different
weights to different factors. Based on their review of the above
mentioned factors and discussion of the Advisory Agreement, the
Independent Directors determined that the fees to be paid under
the Advisory Agreement were fair and reasonable in light of the
services proposed to be provided. The Independent Directors then
approved the Advisory Agreement and directed that the Advisory
Agreement be submitted to stockholders for approval with the
Independent Directors unanimous recommendation that
stockholders of the Fund vote to approve the Advisory Agreement.
If the Funds stockholders approve Proposal 2, the
Advisory Agreement will remain in full force and effect for two
years from the date of its implementation, and will
automatically renew for successive annual
27
periods thereafter, but only so long as such continuance is
specifically approved at least annually by both (i) the
Board or by a majority of the outstanding voting securities (as
defined in the 1940 Act) of the Fund, and (ii) the vote of
a majority of those directors of the Fund who are not parties to
the Advisory Agreement and are not interested persons of any
such party, cast in person at a meeting called for the purpose
of voting on such approval.
Present
Management
The Fund is internally managed under the oversight of five
Directors. On November 6, 2003, Mr. Tokarz assumed his
position as Chairman and Portfolio Manager of the Fund.
Mr. Tokarz is responsible for making the
day-to-day
decisions concerning the composition of our portfolio, the
nature and timing of the changes to our portfolio and the manner
of implementing such changes, identifying, evaluating and
negotiating the structure of the investments we make (including
performing due diligence on our prospective portfolio
companies), and determining the securities and other assets that
we purchase, retain or sell.
Led by Mr. Tokarz, the Fund is currently served by a team
of seven full-time and one part-time investment professionals.
Often the Fund uses the services of other investment
professionals, with whom it has developed long-term
relationships, on an as-needed basis. We have benefited from the
combined resources and investment experience of all of the
members of our team. In addition, the Fund employs four other
professionals who manage the operations of the Fund and provide
investment support functions both directly and indirectly to our
portfolio companies.
Generally, prior to approving any new investment, we follow the
process outlined below. The key steps in our investment approval
process are:
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Initial investment screening by deal person or investment team;
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Investment professionals present an investment proposal
containing key terms and understandings (verbal and written) to
the entire investment team;
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Our Chief Compliance Officer reviews the proposed investment for
compliance with the 1940 Act, the Code, and all other relevant
rules and regulations;
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Investment professionals are provided with authorization to
commence due diligence;
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Any investment professional can call a meeting, as deemed
necessary, to: (i) review the due diligence reports;
(ii) review the investment structure and terms; or
(iii) obtain any other information deemed relevant;
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Once all due diligence is completed, the proposed investment is
rated using a rating system which tests several factors
including, but not limited to, cash flow, EBITDA growth,
management and business stability. We use this rating system as
the base line for tracking the investment in the future;
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Our Chief Compliance Officer confirms that the proposed
investment will not cause us to violate the 1940 Act, the Code
or any other applicable rule or regulation;
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Mr. Tokarz, who is involved throughout the process, makes a
final determination whether to approve the transaction; and
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The investment is funded.
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The Directors hold formal quarterly meetings at which a report
of actions taken since the most recent meeting is presented to
the Directors. Additionally, the Directors receive and review,
at least quarterly, statements detailing changes in the
Funds portfolio of investments.
The current internally-managed operations of the Fund also
include: supervision of relations with the Funds
custodian, administrator, attorneys, independent registered
public accounting firm and others furnishing services to the
Fund; preparing stockholder communications and conducting
stockholder relations; maintaining Fund records; and insuring
compliance with applicable laws, including state and federal
securities laws.
28
Current
Compensation Under Internal Management Structure
Under the terms of his present agreement with the Fund, the Fund
is obligated to pay Mr. Tokarz an amount equal to the
lesser of: (i) 20% of the net income of the Fund for the
fiscal year; or (ii) the sum of (a) 20% of the net
capital gains realized by the Fund in respect of investments
made during his tenure as Portfolio Manager; and (b) the
amount, if any, by which the Funds total expenses for a
fiscal year were less than two percent of the Funds net
assets (determined as of the last day of the period). Any
payments made are calculated based upon the audited financials
of the Fund for the applicable fiscal year and would be paid as
soon as practicable following the completion of such audit.
Mr. Tokarz has determined to allocate a portion of the
incentive compensation to certain employees of the Fund. Either
the Fund or Mr. Tokarz may terminate the agreement upon
30 days written notice. For the year ended
October 31, 2005, Mr. Tokarz received no cash or other
compensation from the Fund pursuant to his contract.
The other employees and officers of the Fund receive salaries,
bonuses and benefits. The compensation of the three highest paid
executive officers of the Fund is set forth under Director
and Executive Officer Compensation in Proposal 1. For
the fiscal year ended October 31, 2005, the Fund accrued a
total of approximately $2.3 million in salaries, bonuses
and benefits to its employees and accrued approximately
$1.1 million in incentive compensation as a provisional
expense relating to Mr. Tokarzs present agreement
with the Fund. As discussed earlier, if the Advisory Agreement
is implemented, the Funds present agreement with
Mr. Tokarz shall be terminated and any obligation of the
Fund under the present agreement would be superseded by those
under the Advisory Agreement.
VOTE
REQUIRED
The Advisory Agreement cannot become effective unless
approved at the Meeting, or any adjournment thereof, by a
majority of the outstanding voting securities of the Fund (as
defined in the 1940 Act). Such a majority (Majority
Vote) means the affirmative vote of the holders of
(a) 67% or more of the shares of the Fund present at the
Meeting, if the holders of more than 50% of the outstanding
shares of the Fund are present or represented by proxy, or
(b) more than 50% of the outstanding shares of the Fund,
whichever is less.
The Board recommends a vote FOR the Advisory
Agreement.
VOTING
INFORMATION
A quorum is constituted by the presence in person or by proxy of
the holders of a majority of the outstanding shares of the Fund
entitled to vote at the Meeting. For purposes of determining the
presence of a quorum for transacting business at the Meeting,
abstentions and broker non-votes will be treated as shares that
are present at the Meeting.
In the event that a quorum is not present at the Meeting, or in
the event that a quorum is present at the Meeting but sufficient
votes to approve any proposal are not received, the persons
named as proxies, or their substitutes, may propose one or more
adjournments of the Meeting to permit the further solicitation
of proxies. Any adjourned session or sessions may be held after
the date set for the Meeting without notice, except announcement
at the Meeting (or any adjournment thereof); provided, that if
the Meeting is adjourned to a date that is more than
30 days after the date for which the Meeting was originally
called, written notice will be provided to stockholders. Any
adjournment will require the affirmative vote of a majority of
the shares represented at the Meeting in person or by proxy. In
the event an adjournment is proposed because a quorum is not
present, the persons named as proxies will vote those proxies
they are entitled to vote FOR all of the nominees in favor
of such adjournment, and will vote those proxies required to
WITHHOLD on any nominee, against any such adjournment. In the
event a quorum is present but sufficient votes to approve
Proposal 2 are not received, the persons named as proxies
will vote those proxies they are entitled to vote FOR
Proposal 2 in favor of such adjournment, and will vote
those proxies required to be voted AGAINST Proposal 2,
against any such adjournment.
Most beneficial owners whose shares are held in street name will
receive voting instruction forms from their banks, brokers or
other agents, rather than the Funds Proxy Card. A number
of banks and brokerage firms are participating in a program that
offers a means to grant proxies to vote shares via the Internet
or by telephone. If your
29
shares are held in an account with a bank or broker
participating in this program, you may grant a proxy to vote
those shares via the Internet or telephonically by using the
website or telephone number shown on the instruction form
received from your broker or bank.
EXPENSES
OF SOLICITATION
The cost of preparing, assembling and mailing this Proxy
Statement, the Notice of Annual Meeting of Stockholders and the
enclosed Proxy Card, as well as the costs associated with the
proxy solicitation, will be borne by the Fund. Mr. Tokarz
has agreed to bear all expenses related to the organization of
TTG Advisers as well as his legal expenses in connection with
the Advisory Agreement.
OTHER
MATTERS AND ADDITIONAL INFORMATION
Other
Business at the Meeting.
The Board does not intend to bring any matters before the
Meeting other than as stated in this Proxy Statement, and is not
aware that any other matters will be presented for action at the
Meeting. If any other matters properly come before the Meeting,
it is the intention of the persons named as proxies to vote on
such matters in accordance with their best judgment, unless
specific instructions have been given.
Future
Stockholder Proposals.
If a stockholder intends to present a proposal at the annual
meeting of stockholders of the Fund to be held in 2007 (the
2007 Annual Meeting) and desires to have the
proposal included in the Funds proxy statement and form of
proxy for that meeting, the stockholder must deliver the
proposal to the Secretary at the principal executive office of
the Fund, 287 Bowman Avenue, 2nd Floor, Purchase, New York
10577, and such proposal must be received by the Secretary a
reasonable time before we print the proxy materials for that
meeting. The submission of a proposal does not guarantee its
inclusion in the proxy statement and is subject to limitations
under the 1934 Act. The proposal must be submitted in a
manner consistent with applicable law and the Funds
By-Laws.
Results
of Voting.
Stockholders will be informed of the voting results of the
Meeting in the Funds annual report for the fiscal year
ending October 31, 2006 on
Form 10-K
which will be filed with the SEC on or before January 14,
2007.
ADDITIONAL
INFORMATION ABOUT THE FUND
Brokerage.
During the 2005 fiscal year, the Fund paid no brokerage
commissions to any broker: (i) that is an affiliated person
of the Fund; (ii) that is an affiliated person of such
person; or (iii) an affiliated person of which is an
affiliated person of the Fund, or any principal underwriter or
administrator for the Fund.
Administrator.
U.S. Bancorp Fund Services, LLC, located at 615 East
Michigan Street, Milwaukee, WI 53202, serves as the
administrator, custodian and accounting agent of the Fund.
Section 16(a)
Beneficial Ownership Reporting Compliance.
Section 16(a) of the 1934 Act, and Section 30(h)
of the 1940 Act, taken together, require that the Directors,
officers of the Fund and beneficial owners of more than 10% of
the equity securities of the Fund (collectively, Reporting
Persons) file with the SEC reports of their beneficial
ownership and changes in their beneficial ownership of the
Funds securities. Based solely on its review of the copies
of such reports, the Fund believes that
30
each of the Reporting Persons who was a Reporting Person during
the fiscal year ended October 31, 2005 has complied with
applicable filing requirements.
Exhibit A attached hereto identifies holders of more than
5% of the shares of the Funds common stock as of the
Record Date.
Independent
Public Accountants.
The Board, upon approval and recommendation of the Audit
Committee, at a meeting held on December 12, 2005, selected
E&Y to serve as the independent accountants for the Fund for
the fiscal year ending October 31, 2006. E&Y was
approved by the Audit Committee and the Board to serve as the
independent accountants for the Fund for the fiscal year ended
October 31, 2005, and has served in such capacity since
October 27, 2003. A representative of E&Y will attend
the Meeting to respond to appropriate questions and make a
statement, if
he/she so
desires.
Audit
Fees:
The aggregate fees billed for professional services rendered by
E&Y for the audit of the Funds annual financial
statements for the fiscal year ended October 31, 2005 were
$275,000.
The aggregate fees billed for professional services rendered by
E&Y for the audit of the Funds annual financial
statements for the fiscal year ended October 31, 2004 were
$135,000.
Audit-Related
Fees:
For the fiscal year ended October 31, 2005, the aggregate
fees billed by E&Y for assurance and related services that
were reasonably related to the performance of the audit or
review of our financial statements were $0.
For the fiscal year ended October 31, 2004, the aggregate
fees billed by E&Y for assurance and related services that
were reasonably related to the performance of the audit or
review of our financial statements were $0.
Tax
Fees:
For the fiscal year ended October 31, 2005, the aggregate
fees billed by E&Y for services rendered with respect to tax
compliance, tax advice and tax planning were $15,650.
For the fiscal year ended October 31, 2004, the aggregate
fees billed by E&Y for services rendered with respect to tax
compliance, tax advice and tax planning were $38,500.
All
Other Fees:
For the fiscal year ended October 31, 2005, the aggregate
fees billed by E&Y for any other products or services were
$102,000.
For the fiscal year ended October 31, 2004, the aggregate
fees billed by E&Y for any other products or services were
$21,500.
The Audit Committee has considered whether E&Y has
maintained its independence during the fiscal year ended
October 31, 2005.
31
The Audit Committee Charter requires that the Audit Committee
pre-approve all audit and non-audit services to be provided to
the Fund by the independent accountants; provided, however,
that the Audit Committee may specifically authorize its
Chairman to pre-approve the provision of any non-audit service
to the Fund. Further, the foregoing pre-approval policy may be
waived, with respect to the provision of any non-audit services,
consistent with the exceptions provided for in the federal
securities laws. All of the audit and tax services provided by
E&Y for the fiscal year ended October 31, 2005 were
pre-approved by the Audit Committee or its Chairman. For the
fiscal year ended October 31, 2005, the Funds Audit
Committee did not waive the pre-approval requirement with
respect to any non-audit services provided to the Fund by
E&Y.
By Order of the Board of Directors
Michael Tokarz
Chairman
August 4, 2006
Stockholders who do not expect to be present at the Meeting
and who wish to have their shares voted are requested to mark,
sign and date the enclosed Proxy Card and return it in the
enclosed envelope. No postage is required if mailed in the
United States. Alternatively, you may have the ability to vote
your shares by the Internet or by telephone.
32
EXHIBIT A
The following table sets forth, as of July 27, 2006, each
stockholder who owned more than 5% of the Funds
outstanding shares of common stock, each current director, each
nominee for director, the Funds executive officers, and
the directors and executive officers as a group. Unless
otherwise indicated, the Fund believes that each beneficial
owner set forth in the table has sole voting and investment
power.
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
|
|
Shares Owned
|
|
Percentage of
|
Name of Beneficial
Owner
|
|
Beneficially
|
|
Fund Held
|
|
The Anegada Master
Fund Ltd.
The Cuttyhunk Fund Limited
Tonga Partners, L.P.
TE Cannell Portfolio, Ltd.
c/o Cannell Capital LLC
150 California Street, 5th Floor
San Francisco, CA 94111
|
|
|
2,601,800
|
(1)
|
|
|
13.63
|
%
|
|
|
|
|
|
|
|
|
|
QVT Financial LP.
527 Madison Avenue, 8th Floor
New York, New York 10022
|
|
|
2,039,600
|
(2)
|
|
|
10.68
|
%
|
|
|
|
|
|
|
|
|
|
Western Investment Hedged Partners
LP.
Western Investment Institutional Partners LLC
Western Investment Activism Partners LLC
Western Investment Total Return Master Fund Ltd. and
Arthur D. Lipson
c/o Western Investment LLC
2855 East Cottonwood Parkway
Suite 110
Salt Lake City, UT 84121
|
|
|
1,372,400
|
(3)
|
|
|
7.88
|
%
|
|
|
|
|
|
|
|
|
|
Deutsche Bank AG.
Taunusanlage 12
D-60325 Frankfurt am Main
Federal Republic of Germany
|
|
|
1,336,366
|
(4)
|
|
|
6.99
|
%
|
|
|
|
|
|
|
|
|
|
Millenco, L.P.
Millennium Global Estate, L.P.
Millennium USA, L.P.
Millennium Partners, L.P. and
Millennium International, Ltd.
c/o Millennium Management, LLC
666 Fifth Avenue, 8th Floor
New York, NY 10103
|
|
|
1,369,770
|
(5)
|
|
|
7.17
|
%
|
|
|
|
|
|
|
|
|
|
Wynnefield Partners Small Cap
Value, L.P.
Wynnefield Partners Small Cap Value, L.P. I
Wynnefield Small Cap Value Offshore Fund,
Ltd. Channel Partnership II, L.P.
Wynnefield Capital Management, LLC
Wynnefield Capital, Inc.
Nelson Obus
c/o Wynnefield Capital Management LLC
450 Seventh Avenue
Suite 509
New York, NY 10123
|
|
|
1,189,600
|
(6)
|
|
|
6.23
|
%
|
|
|
|
|
|
|
|
|
|
MFP Investors, LLC.
51 John F. Kennedy Parkway, 2nd Floor
Short Hills, NJ 07078
|
|
|
999,700
|
(7)
|
|
|
5.23
|
%
|
A-1
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
|
|
Shares Owned
|
|
Percentage of
|
Name of Beneficial
Owner
|
|
Beneficially
|
|
Fund Held
|
|
Interested Director
|
|
|
|
|
|
|
|
|
Michael Tokarz
|
|
|
407,773
|
|
|
|
2.14
|
%
|
|
|
|
|
|
|
|
|
|
Independent Directors
|
|
|
|
|
|
|
|
|
Emilio Dominianni
|
|
|
10,000
|
|
|
|
*
|
|
Gerald Hellerman
|
|
|
23,729
|
|
|
|
*
|
|
Robert Knapp(8)
|
|
|
1,492,470
|
|
|
|
7.82
|
%
|
William Taylor
|
|
|
20,048
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Executive Officers
|
|
|
|
|
|
|
|
|
Bruce Shewmaker
|
|
|
3601
|
|
|
|
*
|
|
Peter Seidenberg
|
|
|
1155
|
|
|
|
*
|
|
Scott Schuenke
|
|
|
334
|
|
|
|
*
|
|
Jaclyn Shapiro-Rothchild
|
|
|
1000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
All directors and executive
officers as a group (9 in total)
|
|
|
1,960,110
|
|
|
|
10.44
|
%
|
|
|
|
*
|
|
Less than 1%.
|
|
(1)
|
|
Based upon information contained in
Form 4 filed with the SEC on May 19, 2006.
|
|
(2)
|
|
Based upon information contained in
Schedule 13G filed with the SEC on December 8, 2005.
This amount includes 1,336.366 shares where Deutsche Bank
AG is the beneficial owner of the shares.
|
|
(3)
|
|
Based upon information contained in
Schedule 13G/A filed with the SEC on February 14, 2006.
|
|
(4)
|
|
Based upon information contained in
Schedule 13G filed with the SEC on January 31, 2006.
See footnote (2).
|
|
(5)
|
|
Based upon information contained in
Schedule 13D/A filed with the SEC on December 1, 2005.
|
|
(6)
|
|
Based upon information contained in
Schedule 13G/A filed with the SEC on February 14, 2006.
|
|
(7)
|
|
Based upon information contained in
Schedule 13G/A filed with the SEC on January 20, 2005
|
|
(8)
|
|
1,369,770 shares are owned by
Millennium Partners, L.P.
and/or its
affiliates (Millennium). Mr. Knapp is an
officer of Millennium. Mr. Knapp has disclaimed all
beneficial ownership in these shares to the extent permitted
under applicable law.
|
A-2
Exhibit B
AMENDED AND RESTATED AUDIT COMMITTEE CHARTER
MVC CAPITAL, INC.
January 31, 2006
This charter sets forth the purpose, authority and
responsibilities of the Audit Committee of the Board of
Directors (the Board) of MVC Capital, Inc. (the
Fund), a Delaware corporation.
Purposes
The Audit Committee of the Board (the Committee)
has, as its primary purposes:
(i) oversight responsibility with respect to: (a) the
adequacy of the Funds accounting and financial reporting
processes, policies and practices; (b) the integrity of the
Funds financial statements and the independent audit
thereof; (c) the adequacy of the Funds overall system
of internal controls and, as appropriate, the internal controls
of certain service providers; (d) the Funds
compliance with certain legal and regulatory requirements;
(e) determining the qualification and independence of the
Funds independent auditors; and (f) the Funds
internal audit function, if any; and
(ii) oversight of the preparation of any report required to
be prepared by the Committee pursuant to the rules of the
Securities and Exchange Commission (SEC) for
inclusion in the Funds annual proxy statement with respect
to the election of directors.
Authority
The Committee has been duly established by the Board and shall
have the resources and authority appropriate to discharge its
responsibilities, including the authority to retain counsel and
other experts or consultants at the expense of the Fund. The
Committee has the authority and responsibility to retain and
terminate the Funds independent auditors. In connection
therewith, the Committee must evaluate the independence of the
Funds independent auditors and receive the auditors
specific representations as to their independence.
Composition
and Term of Committee Members
The Committee shall be comprised of a minimum of three Directors
of the Board. To be eligible to serve as a member of the
Committee, a Director must be an Independent
Director, which term shall mean a Director who is not an
interested person, as defined in the Investment
Company Act of 1940, as amended, of the Fund. The members of the
Committee shall designate one member to serve as Chairman of the
Committee.
Each member of the Committee shall serve until a successor is
appointed.
The Board must determine whether: (i) the Committee has at
least one member who is an audit committee financial
expert, (ACFE) as such term is defined in the
rules adopted under Section 407 of the Sarbanes-Oxley Act
of 2002; (ii) the Committee has at least one member who
possesses accounting and financial management
expertise (as such term is described under the New York
Stock Exchange Listing Requirements) which may be based on past
employment expertise, professional certification in accounting
or other comparable experience or background that indicates an
individuals financial sophistication; and (iii) each
member of the Committee possesses sufficient financial
literacy, as required under the New York Stock Exchange
Listing Requirements. The designation of a person as an ACFE is
not intended to impose any greater responsibility or liability
on that person than the responsibility and liability imposed on
such person as a member of the Committee, nor does it decrease
the duties and obligations of other Committee members or the
Board.
Meetings
The Committee shall meet on a regular basis and no less
frequently than quarterly. The Committee shall meet, at a
minimum, within 90 days prior to the filing of each annual
and quarterly report of the Fund on
Forms 10-K
and 10-Q,
respectively. Periodically, the Committee shall meet to discuss
with management the annual audited financial
B-1
statements and quarterly financial statements, including the
Funds disclosures under Managements Discussion
and Analysis of Financial Condition and Results of
Operations. Periodically, the Committee should meet
separately with each of management, any personnel responsible
for the internal audit function and, if deemed necessary, the
Funds administrator and independent auditors to discuss
any matters that the Committee or any of these persons or firms
believe should be discussed privately. The Committee may request
any officer or employee of the Fund, or the Funds legal
counsel (or counsel to the Independent Directors of the Board)
or the Funds independent auditors to attend a meeting of
the Committee or to meet with any members of, or consultants to,
the Committee.
Minutes of each meeting will be taken and circulated to all
members of the Committee in a timely manner.
Any action of the Committee requires the vote of a majority of
the Committee members present, whether in person or otherwise,
at the meeting at which such action is considered. At any
meeting of the Committee, one member of the Committee shall
constitute a quorum for the purpose of taking any action.
Duties
and Powers and of the Committee
The duties and powers of the Committee include, but are not
limited to, the following:
|
|
|
|
|
bears direct responsibility for the appointment, compensation,
retention and oversight of the work of the Funds
independent auditors (including resolution of disagreements
between management and the auditor regarding financial
reporting) for the purpose of preparing or issuing an audit
report or performing other audit, review or attest services for
the Fund, and the independent auditors must report directly to
the Committee;
|
|
|
|
set the compensation for the independent auditors, such amount
to be paid by the Fund;
|
|
|
|
evaluate the independence of the Funds independent
auditors and receive the auditors specific representations
as to their independence;
|
|
|
|
to the extent required by applicable law, pre-approve:
(i) all audit and non-audit services that the Funds
independent auditors provide to the Fund and (ii) all
non-audit services that the Funds independent auditors
provide to the Funds investment adviser and any entity
controlling, controlled by, or under common control with the
investment adviser that provides ongoing services to the Fund,
if the engagement relates directly to the operations and
financial reporting of the Fund. (To the extent specifically
authorized by the Audit Committee, the Chairman of the Audit
Committee may pre-approve the provision of any non-audit
services to the Fund.);
|
|
|
|
meet with the Funds independent auditors, including
private meetings, as necessary to (i) review the
arrangements for and scope of the annual audit and any special
audits; (ii) discuss any matters of concern relating to the
Funds financial statements, including any adjustments to
such statements recommended by the auditors, or other results of
the audit; (iii) review any audit problems or difficulties
with managements response; (iv) consider the
auditors comments with respect to the Funds
financial policies, procedures and internal accounting controls
and managements responses thereto; and (v) review the
form of opinion the auditors propose to render to the Directors
and the shareholders of the Fund;
|
|
|
|
review reports prepared by the Funds independent auditors
detailing the fees paid to the Funds independent auditors
for: (i) audit services (includes all services necessary to
perform an audit, services provided in connection with statutory
and regulatory filings or engagements and other services
generally provided by independent auditors, such as comfort
letters, statutory audits, attest services, consents and
assistance with, and review of, documents filed with the SEC);
(ii) audit-related services (covers assurance and due
diligence services, including, employee benefit plan audits, due
diligence related to mergers and acquisitions, consultations and
audits in connection with acquisitions, internal control reviews
and consultations concerning financial accounting and reporting
standards); (iii) tax services (services performed by a
professional staff in the accounting firms tax division,
except those services related to the audit, including tax
compliance, tax planning and tax advice); and (iv) other
services (includes financial information systems implementation
and design);
|
B-2
|
|
|
|
|
ensure that the Funds independent auditors prepare and
deliver annually to the Committee a written statement (the
Auditors Statement) describing: (i) the
auditors internal quality control procedures;
(ii) any material issues raised by the most recent internal
quality control review or peer review of the auditors, or by any
inquiry or investigation by governmental or professional
authorities within the preceding five years respecting one or
more independent audits carried out by the auditors, and any
steps taken to deal with any such issues; and (iii) all
relationships between the independent auditors and the Fund,
including each non-audit service provided to the Fund and the
matters set forth in Independence Standards Board No. 1;
|
|
|
|
prior to filing an annual report with the SEC, receive and
review a written report, as of a date 90 days or less prior
to the filing, to the Committee from the Funds independent
auditors regarding any: (i) critical accounting policies to
be used; (ii) alternative accounting treatments that have
been discussed with the Funds management along with a
description of the ramifications of the use of such alternative
treatments and the treatment preferred by the independent
auditors; and (iii) material written communications between
the auditor and management of the Fund;
|
|
|
|
oversee the Funds internal controls and annual and
quarterly financial reporting process, including results of the
annual audit. Oversee internal accounting controls relating to
the activities of the Funds custodian, investment adviser
and administrator through the periodic review of reports,
discussions with appropriate officers and consideration of
reviews provided by internal audit staff;
|
|
|
|
establish procedures for: (i) the receipt, retention and
treatment of complaints received by the Fund from any source
regarding accounting, internal accounting controls or auditing
matters; and (ii) the confidential, anonymous submission
from employees of the Fund and its service providers of concerns
regarding questionable accounting or auditing matters;
|
|
|
|
review of any issues brought to the Committees attention
by independent public accountants or the Funds management,
including those relating to any deficiencies in the design or
operation of internal controls which could adversely affect the
Funds ability to record, process, summarize and report
financial data, any material weaknesses in internal controls and
any fraud, whether or not material, that involves management or
other employees who have a significant role in the Funds
internal controls;
|
|
|
|
review and evaluate the qualifications, performance and
independence of the lead partner of the Funds independent
auditors;
|
|
|
|
require the Funds independent auditors to report any
instance of an audit partner of those auditors earning or
receiving compensation based on that partner procuring
engagements with the Fund to provide any services other than
audit, review or attest services;
|
|
|
|
resolve any disagreements between the Funds management and
independent auditors concerning the Funds financial
reporting;
|
|
|
|
to the extent there are Directors who are not members of the
Committee, report its activities to the Board on a regular basis
and to make such recommendations with respect to the above and
other matters as the Committee may deem necessary or appropriate;
|
|
|
|
discuss any Fund press releases relating to its financial
statements (to the extent such releases are not discussed by the
Valuation Committee or the Board);
|
|
|
|
discuss any policies with respect to risk management;
|
|
|
|
set clear hiring policies for employees or former employees of
the independent auditors;
|
|
|
|
conduct an annual performance evaluation of the Committee;
|
|
|
|
review the Committees charter at least annually and
recommend any material changes to the Board; and
|
|
|
|
review such other matters as may be appropriately delegated to
the Committee by the Board.
|
B-3
Exhibit C
FORM OF
INVESTMENT ADVISORY AND MANAGEMENT AGREEMENT
BETWEEN
MVC CAPITAL, INC.
AND
THE TOKARZ GROUP ADVISERS LLC
Agreement made this day of
2006, by and between MVC Capital, Inc., a Delaware Fund (the
Fund), and The Tokarz Group Advisers LLC, a Delaware
limited liability company (the Adviser).
Whereas, the Fund is a closed-end management investment company
that has elected to be regulated as a business development
company under the Investment Company Act of 1940 (the
Investment Company Act); and
Whereas, the Board of Directors of the Fund (the
Board) has determined to externalize the Funds
management and retain the Adviser to furnish investment advisory
services to the Fund 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 Fund hereby employs the Adviser to act as the
investment adviser to the Fund and to manage the investment and
reinvestment of the assets of the Fund, subject to the
supervision of the Board of Directors of the Fund (the
Board), for the period and upon the terms herein set
forth: (i) in accordance with the investment objectives,
policies and restrictions that are determined by the Board from
time to time and disclosed to the Adviser, which objectives,
policies and restrictions shall initially be those set forth in
the Funds Registration Statement on
Form N-2,
filed with the Securities and Exchange Commission (the
SEC) on February 21, 2006 (the
Registration Statement); (ii) in accordance
with the Investment Company Act; and (iii) during the term
of this Agreement in accordance with all other applicable
federal and state laws, rules and regulations, and the
Funds charter and by-laws. References in this Agreement to
the Fund shall also include any wholly-owned
subsidiary of the Fund, where appropriate and as applicable.
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 Fund, 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 Fund; (iii) close and monitor the Funds
investments; (iv) determine the securities and other assets
that the Fund will purchase, retain, or sell; (v) perform
due diligence on prospective portfolio companies;
(vi) provide the Fund with such other investment advisory,
research and related services as the Fund may, from time to
time, reasonably require for the investment of their funds;
(vii) oversee the performance of the Funds outside
service providers, including the Funds administrator,
transfer agent and custodian; (viii) oversee compliance by
the Fund with U.S. federal, state and other applicable laws
and regulations; (ix) provide the Fund with office space;
and (x) pay the salaries, fees and expenses of such of the
Funds directors, officers or employees who are directors,
officers, principals or employees of the Adviser or any of its
affiliates, except that the Fund will reimburse the Adviser for
(a) its allocable portion of the compensation payable to
its chief financial officer (CFO), chief compliance
officer (CCO) and secretary in an amount not to
exceed $100,000 per year, in the aggregate, and
(b) travel expenses, or an appropriate portion of such
expenses (in the event such expenses are not otherwise
reimbursed by a portfolio company or third party), that relate
to attendance at meetings of the Board or any committees thereof
and the Funds portfolio companies. The Adviser may
delegate any of the foregoing duties to a third party with the
consent of the Board. The Adviser shall have the power and
authority on behalf of the Fund to effectuate its investment
decisions for the Fund, including the execution and delivery of
all documents relating to the Funds investments and the
placing of orders for other purchase or sale transactions on
behalf of the Fund. In the event that the Fund, in consultation
with the Adviser, determines to incur debt financing, the
Adviser will arrange for such financing on the Funds
behalf, subject to the approval of the Board. Furthermore, the
Fund shall consult with the Adviser prior to issuing any
preferred stock. The Adviser will offer, and provide where
requested, on the
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Funds behalf
and/or on
behalf of a subsidiary of the Fund, significant managerial
assistance to the issuers of securities in which the Fund is
invested. The Adviser shall make available to the Fund
individuals to serve as directors
and/or
officers of the Fund, as deemed necessary by the Board.
(b) The Adviser shall manage the Funds
day-to-day
operations and oversee the administration, recordkeeping and
compliance functions of the Fund
and/or third
parties performing such functions for the Fund. Without limiting
the generality of the foregoing, the Adviser specifically shall
be responsible for overseeing: (i) the preparation of
periodic financial statements; (ii) the preparation of
financial and accounting reports for presentation to the
Funds Board and for stockholders and governmental
agencies; (iii) the preparation and filing of the
Funds tax returns (and those of any wholly-owned
subsidiary involved with the Funds operations);
(iv) the preparation and providing of such reports and
analyses to the Funds Board and stockholders as may from
time to time be considered necessary or appropriate by the
Funds Board; (v) the arrangement of the payment of
the Funds expenses and the performance of administrative
and professional services rendered to the Fund by others;
(vi) the preparation of any proxy statements and arranging
and conducting meetings of stockholders of the Fund;
(vii) the procurement of insurance for the Fund, its
subsidiaries
and/or its
officers and directors, as directed by the Board; and
(viii) such other operational, administrative and
regulatory compliance duties as shall from time to time arise as
a result of the Funds operations and investing activities.
(c) The Adviser hereby accepts such employment and agrees
during the term hereof to render the services described herein
for the compensation provided herein.
(d) Subject to the requirements of the Investment Company
Act, the Adviser is hereby authorized 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 providing the investment advisory
services (i.e., the making of investment recommendations or
decisions for the Fund) required to be provided by the Adviser
under Section 1(a) of this Agreement. Specifically, the
Adviser may retain a
Sub-Adviser
to recommend specific securities or other investments based upon
the Funds investment objectives and policies. The Adviser,
and not the Fund, 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 and other applicable federal and state law. Nothing in this
subsection (d) will obligate the Adviser to pay any
expenses that are the expenses of the Fund under Section 2.
(e) The Adviser, and any
Sub-Adviser,
shall for all purposes herein provided each 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 Fund in any way or otherwise be deemed an agent of
the Fund.
(f) The Adviser shall keep and preserve for the period
required by the Investment Company Act any books and records
relevant to the provision of its investment advisory services to
the Fund and shall specifically maintain all books and records
with respect to the Funds portfolio transactions and shall
render to the Board such periodic and special reports as the
Board may reasonably request. The Adviser agrees that all
records that it maintains for the Fund are the property of the
Fund and will surrender promptly to the Fund any such records
upon the Funds request, provided that the Adviser may
retain a copy of such records. Upon termination of this
Agreement, the Adviser shall have no further obligations under
this Section 1(f).
(g) Prior to the Effective Date (as defined in
Section 10 below), the Adviser shall adopt and implement
written policies and procedures reasonably designed to prevent
its violation of the Federal Securities laws. Also prior to the
Effective Date, the Adviser shall have provided to the Fund, and
shall provide the Fund at such times in the future as the Fund
shall reasonably request, a copy of such policies and procedures
(and any amendments thereto) and a report of such policies and
procedures. Such report shall be of sufficient scope and in
sufficient detail, as may reasonably be required to comply with
Rule 38a-1
under the Investment Company Act
(Rule 38a-1)
and to provide reasonable assurance that any material
inadequacies would be disclosed by such examination, and, if
there are no such inadequacies, the report shall so state.
2. Funds Responsibilities and Expenses Payable by
the Fund.
All investment professionals of the Adviser and its staff, when
and to the extent engaged in providing services required to be
provided by the Adviser under Section 1(a) and (b), and the
compensation and routine overhead
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expenses of such personnel allocable to such services, will be
provided and paid for by the Adviser and not by the Fund, except
that costs or expenses relating specifically to items identified
in the next sentence shall be borne by the Fund, as appropriate.
The Fund will bear all costs and expenses of its operations and
transactions, including, without limitation, those relating to:
(i) the cost and expenses of any independent valuation
firm; (ii) expenses incurred by the Adviser payable to
third parties, including agents, consultants or other advisors,
in monitoring financial and legal affairs for the Fund and in
monitoring the Funds investments and performing due
diligence on its prospective portfolio companies, provided,
however, the retention by the Adviser of any third party to
perform such services shall require the advance approval of the
Board (which approval shall not be unreasonably withheld) if the
fees for such services are expected to exceed $30,000; once the
third party is approved any expenditure to such third party will
not require additional approval from the Board;
(iii) interest payable on debt, if any, incurred to finance
the Funds investments or to maintain its tax status;
(iv) offerings of the Funds common stock and other
securities; (v) investment advisory and management fees;
(vi) fees and payments due under any administration
agreement between the Fund and its administrator;
(vii) transfer agent and custodial fees;
(viii) federal and state registration fees; (ix) all
costs of registration and listing the Funds shares on any
securities exchange; (x) federal, state and local taxes;
(xi) independent directors fees and expenses;
(xii) costs of preparing and filing reports or other
documents required by governmental bodies (including the SEC);
(xiii) costs of any reports, proxy statements or other
notices to stockholders, including printing and mailing costs;
(xiv) the cost of the Funds fidelity bond, directors
and officers/errors and omissions liability insurance, and any
other insurance premiums; (xv) direct costs and expenses of
administration, including printing, mailing, long distance
telephone, copying, independent auditors and outside legal
costs; (xvi) the costs and expenses associated with the
establishment of an SPV (as defined in Section 3(c) below);
(xvii) the allocable portion of the cost (excluding office
space) of the Funds CFO, CCO and secretary (subject to the
limit set forth in Section 1(a)); and (xviii) all
other expenses incurred by the Fund in connection with
administering the Funds business. Notwithstanding the
foregoing, absent the consent of the Board, any fees or income
earned, on the Funds behalf, by any officer, director,
employee or agent of the Adviser in connection with the
monitoring or closing of an investment or disposition by the
Fund or for providing managerial assistance to a portfolio
company (e.g., serving on the board of directors of a portfolio
company), shall inure to the Fund.
3. Compensation of the Adviser.
The Fund 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 Fund shall make any payments due hereunder to the
Adviser or to the Advisers designee as the Adviser may
otherwise direct. To the extent permitted by applicable law, the
Adviser may elect, or the Fund may adopt a deferred compensation
plan pursuant to which the Adviser 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 2.00% per annum
of the Funds total assets (excluding cash and the value of
any investment by the Fund not made in a portfolio company
(Non-Eligible Assets), but including assets
purchased with borrowed funds that are not Non-Eligible Assets).
The Base Management Fee will be payable quarterly in arrears.
The Base Management Fee will be calculated based on the value of
the Funds total assets (excluding Non-Eligible Assets, but
including assets purchased with borrowed funds that are not
Non-Eligible Assets) at the end of the most recently completed
fiscal quarter. Base Management Fees for any partial fiscal
quarter will be appropriately pro rated.
(b) The Incentive Fee shall consist of two parts, as
follows:
(i) One part will be calculated and payable quarterly in
arrears based on the Pre-Incentive Fee net operating income for
the fiscal quarter (the Income Incentive Fee).
Pre-Incentive Fee net operating income means
interest income, dividend income and any other income (including
any other fees to the Fund such as directors, commitment,
origination, structuring, diligence and consulting fees or other
fees that the Fund receives from portfolio companies) accrued by
the Fund during the fiscal quarter, minus the Funds
operating expenses for the fiscal quarter (including the Base
Management Fee and any interest expense and dividends paid on
any issued and outstanding preferred stock, but excluding the
Incentive Fee (whether paid or accrued)).
Pre-incentive fee net operating income includes, in the case of
investments with a deferred interest feature (such as market
discount, debt instruments with
payment-in-kind
interest, preferred stock with
payment-in-kind
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dividends and zero coupon securities), accrued income that has
not yet been received in cash. Pre-Incentive Fee net operating
income does not include any realized capital gains, realized and
unrealized capital losses or unrealized capital appreciation or
depreciation.
Pre-Incentive Fee net operating income, expressed as a rate of
return on the value of the Funds net assets (defined as
total assets less liabilities) at the end of the immediately
preceding fiscal quarter, will be compared to a hurdle
rate of 1.75% per fiscal quarter. The Fund will pay
the Adviser the Income Incentive Fee with respect to the
Funds pre-Incentive Fee net operating income in each
fiscal quarter as follows:
(A) no Income Incentive Fee in any fiscal quarter in which
the Funds pre-Incentive Fee net operating income does not
exceed the hurdle rate;
(B) 100% of the Funds pre-Incentive Fee net operating
income with respect to that portion of such pre-Incentive Fee
net operating income, if any, that exceeds the hurdle rate but
is less than 2.1875% in any fiscal quarter; and
(C) 20% of the amount of the Funds pre-Incentive Fee
net operating income, if any, that exceeds 2.1875% in any fiscal
quarter.
These calculations will be appropriately pro rated for any
period of less than three months and adjusted for any share
issuances or repurchases during the current fiscal quarter.
(ii) The second part of the Incentive Fee (the
Capital Gains Fee) will be determined and payable in
arrears as of the end of each fiscal year (or upon termination
of this Agreement as set forth below), commencing with the
fiscal year ending on October 31, 2007, and will equal 20%
of: (a) the Funds aggregate net realized capital
gains, during such fiscal year, on the Funds investments
made after November 1, 2003 (the Funds New
Portfolio) (exclusive of any realized gains subject to an
SPV Incentive Allocation, as defined below); minus (b) the
cumulative unrealized capital depreciation of the Funds
New Portfolio calculated from November 1, 2003. If the
Capital Gains Fee is negative, then there will be no Capital
Gains Fee payable for such year. If this Agreement shall
terminate as of a date that is not a fiscal year end, the
termination date shall be treated as though it were a fiscal
year end for purposes of calculating and paying a Capital Gains
Fee. Furthermore, upon the tender of a notice of termination of
this Agreement, all unrealized capital gains on the Funds
New Portfolio shall be deemed realized at their net asset value
last determined by the Valuation Committee of the Board and the
Capital Gains Fee shall be determined and deemed payable as of
the date of a tender of a notice of termination of this
Agreement. Any Capital Gains Fee due upon the tender of a notice
of termination of this Agreement shall be paid as soon as
practicable after the Capital Gains Fee is permitted to be paid
under applicable law. Any Capital Gains Fee to be made under
this Section 3 shall be paid as soon as practicable
following the completion of the audit of the financial
statements of the Fund for the applicable fiscal year performed
in accordance with generally accepted accounting principles.
For purposes of this Section 3(b)(ii):
Realized capital gains are calculated as the
sum of the differences, if positive, between (a) the net
sales price of each investment in the Funds New Portfolio
when sold during such fiscal year and (b) the accreted or
amortized cost basis of such investment.
Realized capital losses are calculated as the
sum of the amounts by which (a) the net sales price of each
investment in the Funds New Portfolio when sold during
such fiscal year is less than (b) the accreted or amortized
cost basis of such investment.
Net realized capital gains means realized
capital gains minus realized capital losses.
Aggregate unrealized capital depreciation
means the sum of the differences, if negative, between
(a) the valuation of each investment in the Funds New
Portfolio, as of the applicable Capital Gains Fee calculation
date and (b) the accreted or amortized cost basis of such
investment.
Notwithstanding the foregoing, in no event shall either the
Funds contribution of an investment to a Subsidiary (as
defined in Section 4) or the Funds distribution
of an investment to the Funds stockholders be deemed to be
a realization event.
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(iii) Notwithstanding the foregoing, in no event shall the
sum of the Capital Gains Fee and the SPV Incentive Allocation
(as defined below), if any, for any fiscal year exceed:
(a) 20% of (i) the Funds cumulative realized
capital gains on the Funds investments (the
Funds Total Portfolio) (including any realized
gains attributable to an SPV Incentive Allocation (as defined
below)), minus (ii) the sum of the cumulative realized
capital losses on, and aggregate unrealized capital depreciation
of, the Funds Total Portfolio; minus (b) the
aggregate amount of Capital Gains Fees paid and the value of SPV
Incentive Allocations made in all prior years (the
Cap). Furthermore, in the event that the Capital
Gains Fee for any fiscal year exceeds the Cap (Uncollected
Capital Gains Fees), all or a portion of such amount shall
be accrued and payable to the Adviser following any subsequent
fiscal year in which the Agreement is in effect, but only
to the extent the Capital Gains Fee, plus the amount of
Uncollected Capital Gains Fees, each calculated as of the end of
such subsequent fiscal year, do not exceed the Cap. Any
remaining Uncollected Capital Gains Fees shall be paid following
subsequent fiscal years in accordance with the same process,
provided the Agreement is in effect during such fiscal year.
For purposes of this Section 3(b)(iii):
Cumulative realized capital gains are
calculated as the sum of the differences, if positive, between
(a) the net sales price of each investment in the
Funds portfolio when sold and (b) with respect to
investments held by the Fund on November 1, 2003, the fair
value of such investment on November 1, 2003, and with
respect to all other investments, the accreted or amortized cost
basis of such investment.
Cumulative realized capital losses are
calculated as the sum of the amounts by which (a) the net
sales price of each investment in the Funds portfolio when
sold is less than (b) with respect to investments held by
the Fund on November 1, 2003, the fair value of such
investment on November 1, 2003, and with respect to all
other investments, the accreted or amortized cost basis of such
investment.
Aggregate unrealized capital depreciation is
calculated as the sum of the differences, if negative, between
(a) the valuation of each investment in the Funds
portfolio as of the applicable Capital Gains Fee calculation
date and (b) with respect to investments held by the Fund
on November 1, 2003, the fair value of such investment on
November 1, 2003, and with respect to all other
investments, the accreted or amortized cost basis of such
investment.
(c) The Fund hereby authorizes the Adviser to create or
arrange for the creation of one or more special purpose vehicles
for which it may serve as the general partner or managing
member, as applicable, for purposes of making investments on
behalf of the Fund (each, an SPV). Furthermore, the
Fund authorizes the Adviser, in its role as the general partner
or managing member, as applicable, of an SPV, to receive an
incentive allocation equal to 20% of the net profits of the SPV
(the SPV Incentive Allocation). The Adviser
acknowledges and agrees that: (i) prior to the SPV
conducting any investment activities, the Board must approve the
SPVs organizational documents; and (ii) subject to
the approval of the Board, the Adviser will establish procedures
for every SPV to ensure that any SPV Incentive Allocation
received by the Adviser will not cause the total compensation
received by the Adviser under this Agreement to exceed the
limits imposed by Section 205(b)(3) of the Investment
Advisers Act of 1940, as amended.
In addition, for each of the next two full fiscal years (i.e.,
fiscal 2007 and 2008), the Adviser hereby agrees to absorb or
reimburse operating expenses of the Fund (promptly following the
completion of such year), to the extent necessary to limit the
Funds Expense Ratio for any such year to 3.25% (the
Expense Cap); provided, however, if, on
October 31, 2007, the Funds net assets have not
increased by at least 5% from October 31, 2006, the dollar
value of the Expense Cap shall increase by 5% for fiscal 2008.
For purposes of this paragraph, the Funds Expense
Ratio shall be calculated as of October 31 of any
such year and mean: (i) the consolidated expenses of the
Fund (which expenses shall include any amounts payable to the
Adviser under the Base Management Fee, but shall exclude the
amount of any interest, taxes, incentive compensation, and
extraordinary expenses (including, but not limited to, any legal
claims and liabilities and litigation costs and any
indemnification related thereto, and the costs of any spin-off
or other similar type transaction contemplated by this
Agreement)), as a percentage of (ii) the average net assets
of the Fund (i.e., average consolidated assets less average
consolidated liabilities) during such fiscal year as set forth
in the Funds financial statements contained in the
Funds annual report on
Form 10-K.
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4. The Advisers Management of Private Equity
Funds. As consideration for the Fund entering
into this Agreement, the Adviser acknowledges the parties
objective of having the Funds stockholders participate in
a portion of the revenues generated by private investment funds
managed by the Adviser. During the term of this Agreement, the
Adviser agrees that, absent the consent of the Board, the
Adviser shall not establish a private investment fund managed by
the personnel of the Adviser with the investment objective of:
(a) investing in mezzanine and debt securities; or
(b) making equity or other non-debt investments
that are: (i) at the time of the formation of the private
fund, expected to be equal to or less than the lesser of 10% of
the Funds net assets or $25 million; and
(ii) issued by U.S. companies with less than
$150 million in revenues (Targeted
Investments). If the Board approves the formation of a new
private investment fund for investment in Targeted Investments,
this private investment fund shall have a general partner or
managing member (a Private Fund General
Partner) that is owned (directly or indirectly) by the
Adviser and a Subsidiary (as defined below). Private
Fund General Partners shall be entitled to the entire
portion of incentive allocations paid by the private investment
funds managed by the Adviser, unless a portion thereof is
allocated to a third party that is not affiliated with, and
independent of, the Adviser. The Fund represents that the
independent directors, constituting a majority of the Board (the
Independent Board), have resolved to:
(i) establish a wholly-owned subsidiary of the Fund (a
Subsidiary) that would, among other things, have the
authority to invest (directly or indirectly) in Private
Fund General Partners; and (ii) authorize the Fund to
pursue a spin-off of the Subsidiary to all stockholders, on a
pro-rata basis, the specific terms of which would be subject to
the due diligence of, and the consideration and approval by, the
Independent Board. In addition, the Adviser will use its
reasonable efforts to include the Subsidiary in opportunities to
participate in the revenues of other new private investment
funds formed to pursue investments other than Targeted
Investments.
5. Registration of the Adviser. The
Adviser covenants that immediately upon the approval of this
Agreement by the Board, it will undertake the process of
registering as an investment adviser with the SEC. Upon the
Effective Date (as defined in Section 10), 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.
6. Brokerage Commissions. The Adviser is
hereby authorized, to the fullest extent now or hereafter
permitted by law, to cause the Fund 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 firms 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 Funds
portfolio, and constitutes the best net results for the Fund.
7. Limitations on the Business of the
Adviser. The services of the Adviser to the Fund
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 Fund, and subject
to compliance with applicable law and adherence to
Section 4. Nothing in this Agreement shall limit or
restrict the right of any member, 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.
Notwithstanding the foregoing, the Adviser will not undertake
any conflicting duties of loyalty which would affect its prior
fiduciary duty to the Fund. In furtherance of this requirement,
for a period of five years from the Effective Date (as defined
in Section 10) (unless this Agreement ceases to be in
effect), the Adviser shall give the Fund 30 days
advance notice in writing of any proposed undertaking by it of
material significance (including the taking on of any new
clients) and will provide the Fund and the Funds
independent directors with all information relevant to a
determination of the effect of such undertaking on the
Advisers ability to carry out its obligations to the Fund
under this Agreement. Furthermore, during the term of this
Agreement, the Adviser shall not manage another business
development company, a private equity fund or other similar
vehicle with the investment objective of investing in Targeted
Investments, without the consent of the Board. So long as this
Agreement or any extension, renewal or amendment remains in
effect, the Adviser shall be
C-6
the only investment adviser for the Fund, subject to the
Advisers right to enter into sub-advisory agreements (in
accordance with the requirements under the Investment Company
Act). 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 Fund 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 Fund as
stockholders or otherwise.
8. Responsibility of Dual Directors, Officers
and/or
Employees. If any person who is a manager,
partner, officer, principal or employee of the Adviser is or
becomes a director, officer
and/or
employee of the Fund and acts as such in any business of the
Fund, then, when acting on behalf of the Fund, such manager,
partner, officer
and/or
employee of the Adviser shall be deemed to be acting in such
capacity solely for the Fund, and not as a manager, partner,
officer or employee of the Adviser or under the control or
direction of the Adviser of the Administrator, even if paid by
the Adviser.
9. Limitation of Liability of the Adviser;
Indemnification. The Adviser, its members and
their respective officers, managers, partners, agents,
employees, controlling persons, members and any other person
affiliated with any of them (collectively, the Indemnified
Parties), shall not be liable to the Fund 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 Fund,
except: (a) 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; or (b) with respect to any loss
by the Fund caused by the willful misfeasance, bad faith or
gross negligence in the performance of any Indemnified
Partys duties under this Agreement, or the reckless
disregard of the Advisers 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 SEC or its staff thereunder). The Fund shall
indemnify, defend and protect the Indemnified Parties (each of
whom shall be deemed a third party beneficiary hereof) 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 Fund or
its security holders) arising out of or otherwise based upon the
performance of any of the Advisers duties or obligations
under this Agreement or otherwise as an investment adviser of
the Fund. Notwithstanding the foregoing provisions of this
Section 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 Fund 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 any Indemnified
Partys duties or by reason of the reckless disregard of
the Advisers 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 SEC or its staff thereunder). Furthermore, the Adviser shall
indemnify, defend and protect the Fund and hold it harmless in
connection with losses or damages arising out of conduct
identified in clauses (a) and (b) of this
Section 9.
10. Effectiveness, Duration and Termination of
Agreement. This Agreement shall become effective
upon the later of: (i) November 1, 2006; or
(ii) the effective date of the registration of the Adviser
as an investment adviser with the SEC (the Effective
Date). This Agreement shall remain in effect for two years
after such date, 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 Board, or by the vote of a majority of the outstanding
voting securities of the Fund (as such term is defined in
Section 2(a)(42) of the Investment Company Act); and
(b) the vote of a majority of the Funds directors who
are not parties to this Agreement and are not interested
persons (as such term is defined in Section 2(a)(19)
of the Investment Company Act) of any party to this Agreement,
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: (a) the Adviser, at any time, in the event (i) a
majority of the current members of the Independent Board ceases
to serve as directors of the Fund; or (ii) the Fund
undergoes a change in control (as such term is
defined by Section 2(a)(9) of the Investment Company Act)
not caused by the Adviser; or (b) the Adviser, at any time,
following the initial two year term of this Agreement; or
(c) by the vote of
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the stockholders holding a majority of the outstanding
voting securities of the Fund (as such term is defined by
Section 2(a)(42) of the Investment Company Act); or
(d) by the action of the Funds directors.
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). Under no
circumstances shall this agreement be assigned or transferred
without the consent of the Funds Board. Following the
termination of this Agreement, the Fund shall not have any
obligation or liability to the Adviser or to the principals,
officers
and/or
employees of the Adviser other than the obligation to pay the
Adviser any outstanding amounts owed under Section 3
calculated until and through the date of termination of the
Agreement. Notwithstanding anything to the contrary, the
provisions of Section 10 (Limitation of Liability of the
Adviser; Indemnification) shall continue in full force and
effect and apply to the Adviser and its representatives as and
to the extent applicable.
11. The Funds Portfolio
Manager. The Adviser represents that it will
enter into an agreement with Mr. Tokarz pursuant to which
Mr. Tokarz will agree to serve as the portfolio manager
primarily responsible for the
day-to-day
management of the Funds portfolio for the full twenty-four
calendar months following the Effective Date (subject to the
termination of the Agreement in accordance with the provisions
of Section 10). In addition, the parties hereby acknowledge
that Mr. Tokarz is the current Portfolio Manager of the
Fund and the Adviser covenants that throughout the term of this
Agreement it will not undertake any action that would cause
Mr. Tokarz to cease to serve as the Funds primary
Portfolio Manager, including, without limitation, transferring
any controlling interest in the Adviser to another entity or
person. Notwithstanding the foregoing, it is understood by the
Fund that Mr. Tokarz is not required to devote his full
business time and attention to his duties as the Funds
Portfolio Manager or to the Adviser. In addition, the Fund and
the Adviser hereby acknowledge that Mr. Tokarz has entered
into an employment agreement with the Fund dated
November 1, 2003, as extended on October 31, 2005 (the
Original Agreement). Mr. Tokarz and the Fund
have agreed that, upon the Effective Date, the Original
Agreement shall immediately terminate and any outstanding
obligations under that agreement shall be superseded by those
under this Agreement.
12. Use of the Funds Name. The
Adviser acknowledges that the name of the Fund is the
Funds property and, as such, the Adviser shall not,
without the prior written consent of the Board, use, or cause to
be used, the Funds name or any derivative thereof,
including, but not limited to, the term MVC.
13. Amendments of this Agreement. This
Agreement may not be amended or modified except by an instrument
in writing signed by all parties hereto, but the consent of the
Fund must be obtained in conformity with the requirements of the
Investment Company Act.
14. Governing Law. This Agreement shall
be governed by, and construed in accordance with, the laws of
the State of New York, including without limitation
Sections 5-1401
and 5-1402 of the New York General Obligations Law and New York
Civil Practice Laws and Rules 327(b), 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.
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.
15. 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.
16. 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.
17. 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.
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18. 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.
19. 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 their
respective principal executive office addresses.
20. 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 (including the Original Agreement), both
written and oral, between the parties with respect to such
subject matter.
21. Certain Matters of Construction.
(a) The words hereof, herein,
hereunder and words of similar import shall refer to
this Agreement as a whole and not to any particular Section or
provision of this Agreement, and reference to a particular
Section of this Agreement shall include all subsections thereof.
(b) Definitions shall be equally applicable to both the
singular and plural forms of the terms defined, and references
to the masculine, feminine or neuter gender shall include each
other gender.
(c) The word including shall mean including
without limitation.
In witness whereof, the parties hereto have caused this
Agreement to be duly executed on the date above written.
MVC Capital, Inc.
Name: _
_
Title: _
_
The Tokarz Group Advisers LLC
Name: _
_
Title: _
_
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INSTRUCTIONS FOR
SIGNING PROXY CARDS
The following general rules for signing Proxy Cards may be of
assistance to you and avoid the time and expense involved in
validating your vote if you fail to sign your Proxy Card
properly.
1. Individual Accounts: Sign your name
exactly as it appears in the registration on the Proxy Card.
2. Joint Accounts: Either party may sign,
but the name of the party signing should conform exactly to the
name shown in the registration on the Proxy Card.
3. All Other Accounts: The capacity of
the individual signing the Proxy Card should be indicated unless
it is reflected in the form of registration. For example:
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Registration
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Valid Signatures
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CORPORATE ACCOUNTS
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(1) ABC Corp.
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ABC Corp.
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(2) ABC Corp.
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John Doe, Treasurer
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(3) ABC Corp. c/o John Doe,
Treasurer
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John Doe
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(4) ABC Profit Sharing Plan
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John Doe, Treasurer
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TRUST ACCOUNTS
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(1) ABC Trust
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Jane B. Doe, Trustee
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(2) Jane B. Doe, Trustee u/t/d
12/28/78
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Jane B. Doe
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CUSTODIAL OR ESTATE
ACCOUNTS
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(1) John B. Smith, Cust. f/b/o
John B. Smith Jr. UGMA
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John B. Smith
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(2) John B. Smith
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John B. Smith, Jr., Executor
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Proxy MVC CAPITAL, INC.
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
ANNUAL MEETING OF SHAREHOLDERS
SEPTEMBER 7, 2006
This proxy is solicited on behalf of the Board of Directors of MVC Capital, Inc. (the Fund) for
use at the annual meeting of stockholders to be held at 12:00 p.m. (Eastern time), on September 7,
2006, at the offices of Schulte Roth & Zabel LLP, 919 Third Avenue, New York, New York 10022 (the
Meeting), and related to the proposals with respect to the Fund set forth in the Notice of Annual
Meeting of Stockholders dated August 4, 2006.
The undersigned hereby appoints Michael Tokarz and Bruce Shewmaker and each of them proxies for the
undersigned, with full power of substitution and revocation, to represent the undersigned and to
vote, as designated, on behalf of the undersigned at the Meeting and any adjournment thereof, all
shares of the Fund which the undersigned is entitled to vote at the Meeting and any adjournment
thereof.
Your vote is important. If this proxy is properly executed and received by the Fund prior to the
Meeting, shares represented by this proxy will be voted as instructed. Unless indicated to the
contrary, this proxy will be voted FOR the proposals and grant discretionary authority to vote
upon such other business as may properly come before the Meeting or any adjournment thereof. The
undersigned hereby revokes and proxy previously given.
Please mark, sign, date and return promptly in the enclosed envelope if you are not voting by
telephone or the internet.
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SEE REVERSE SIDE
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CONTINUED AND TO BE VOTED ON REVERSE SIDE
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SEE REVERSE SIDE |
Telephone and Internet Voting Instructions
You can vote by telephone OR Internet! Available 24 hours 7 days a week!
Instead of mailing your proxy, you may choose one of the two voting methods outlined below to vote
your proxy.
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Call toll free 1-800-652-VOTE (8683) in the United States or Canada any time on a touch tone
telephone. There is NO CHARGE to you for the call. |
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Follow the simple instructions provided by the recorded message. |
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Go to the following web site:
WWW.COMPUTERSHARE.COM/EXPRESSVOTE |
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Enter the information requested on your computer screen and follow the simple instructions. |
VALIDATION DETAILS ARE LOCATED ON THE FRONT OF THIS FORM IN THE COLORED BAR.
If you vote by telephone or the Internet, please DO NOT mail back this proxy card.
Proxies submitted by telephone or the Internet must be received by 11:59 p.m., Eastern Time, on
September 6, 2006.
THANK YOU FOR VOTING.
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Mark this box with an X if you have made
changes to your name or address details above. |
Annual Meeting Proxy Card |
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123456 |
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C0123456789 |
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PLEASE REFER TO THE REVERSE SIDE FOR TELEPHONE AND INTERNET VOTING INSTRUCTIONS.
THE BOARD OF DIRECTORS OF MVC CAPITAL, INC. (THE FUND) RECOMMENDS A VOTE FOR PROPOSALS NO. 1 AND 2.
1. To elect five nominees to serve as members of the Board of Directors of the Fund:
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For |
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Withhold |
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For |
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Withhold |
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01 - Emilio Dominianni
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o
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04 - William Taylor
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o
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02 - Gerald Hellerman
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o
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05 - Michael Tokarz
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o
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03 - Robert Knapp
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For |
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Against |
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Abstain |
2.
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To approve an Investment Advisory and Management
Agreement between the Fund and The Tokarz Group
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Advisors LLC as described in the proxy statement. |
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3.
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In their discretion, the Proxies are authorized to vote |
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upon such other business as may properly come before |
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the Meeting or any adjournment thereof. |
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Authorized Signatures Sign Here This section must be completed for your instructions to be executed.
Please sign exactly as name(s) appears hereon. If shares are held in the name of joint owners,
each should sign. Attorneys-in-fact, executors, administrators, trustees, guardians, etc.
should so indicate. If stockholder is a corporation or partnership, please sign in full
corporate or partnership name by authorized person. The undersigned hereby acknowledges receipt
of the notice of annual meeting of stockholders and the proxy.
Signature 1 - Please keep signature within
the box
Signature 2 - Please keep signature within
the box
0 1 0 1 4 8 1 |
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