TriplePoint Venture Growth BDC Corp., et al., 9357-9361 [2018-04370]
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Federal Register / Vol. 83, No. 43 / Monday, March 5, 2018 / Notices
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.24
Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2018–04419 Filed 3–2–18; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Investment Company Act Release No.
33037; File No. 812–14773]
TriplePoint Venture Growth BDC Corp.,
et al.
February 28, 2018.
Securities and Exchange
Commission (‘‘Commission’’).
ACTION: Notice.
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AGENCY:
Notice of application for an order
under sections 17(d) and 57(i) of the
Investment Company Act of 1940 (the
‘‘Act’’) and rule 17d–1 under the Act
permitting certain joint transactions
otherwise prohibited by sections 17(d)
and 57(a)(4) of the Act and under rule
17d–1 under the Act.
SUMMARY OF APPLICATION: Applicants
request an order to permit a business
development company (‘‘BDC’’) and
certain closed end management
investment companies to co-invest in
portfolio companies with each other and
with affiliated investment funds and
accounts.
APPLICANTS: TriplePoint Venture Growth
BDC Corp. (the ‘‘Company’’); TPVG
Variable Funding Company LLC and
TPVG Investment LLC (collectively, the
‘‘Existing Company Subsidiaries’’);
TPVG Advisers LLC (the ‘‘BDC
Adviser’’), on behalf of itself and its
successors; 1 and TriplePoint Capital
LLC (‘‘TriplePoint’’), TriplePoint
Financial LLC, TPF Funding 1 LLC,
TriplePoint Ventures 5 LLC, and TPC
Credit Partners 3 LLC (collectively, with
TriplePoint, the ‘‘TPC Companies’’).
FILING DATES: The application was filed
on May 10, 2017, and amended on
November 8, 2017.
HEARING OR NOTIFICATION OF HEARING: An
order granting the requested relief will
be issued unless the Commission orders
a hearing. Interested persons may
request a hearing by writing to the
Commission’s Secretary and serving
applicants with a copy of the request,
personally or by mail. Hearing requests
should be received by the Commission
24 17
CFR 200.30–3(a)(12).
term ‘‘successor,’’ as applied to each
Adviser, is limited to an entity that results from a
reorganization into another jurisdiction or change
in the type of business organization.
1 The
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by 5:30 p.m. on March 26, 2018, and
should be accompanied by proof of
service on applicants, in the form of an
affidavit or, for lawyers, a certificate of
service. Pursuant to rule 0–5 under the
Act, hearing requests should state the
nature of the writer’s interest, any facts
bearing upon the desirability of a
hearing on the matter, the reason for the
request, and the issues contested.
Persons who wish to be notified of a
hearing may request notification by
writing to the Commission’s Secretary.
ADDRESSES: Secretary, U.S. Securities
and Exchange Commission, 100 F St.
NE, Washington, DC 20549–1090.
Applicants, 2755 Sand Hill Road, Suite
150, Menlo Park, CA 94025.
FOR FURTHER INFORMATION CONTACT:
Christine Y. Greenlees, Senior Counsel,
at (202) 551–6879, or Robert H. Shapiro,
Branch Chief, at (202) 551–6821 (Chief
Counsel’s Office, Division of Investment
Management).
SUPPLEMENTARY INFORMATION: The
following is a summary of the
application. The complete application
may be obtained via the Commission’s
website by searching for the file
number, or for an applicant using the
Company name box, at https://
www.sec.gov/search/search.htm or by
calling (202) 551–8090.
Applicants’ Representations
1. The Company, a Maryland
corporation, is organized as a closedend management investment company
that has elected to be regulated as a BDC
under section 54(a) of the Act.2 The
Company’s Objectives and Strategies 3
are to maximize total return to
shareholders primarily in the form of
current income and, to a lesser extent,
capital appreciation, by primarily
lending to venture growth stage
companies focused in technology, life
sciences and other high growth
industries. The Company has a fivemember board of directors (the
‘‘Board’’), three of whom are not
‘‘interested persons’’ as defined in
section 2(a)(19) of the Act (the ‘‘NonInterested Directors’’).
2 Section 2(a)(48) defines a BDC to be any closedend investment company that operates for the
purpose of making investments in securities
described in sections 55(a)(1) through 55(a)(3) of the
Act and makes available significant managerial
assistance with respect to the issuers of such
securities.
3 ‘‘Objectives and Strategies’’ means a Regulated
Fund’s (defined below) investment objectives and
strategies, as described in the Regulated Fund’s
registration statement on Form N–2, other filings
the Regulated Fund has made with the Commission
under the Securities Act of 1933 (the ‘‘Securities
Act’’) or under the Securities Exchange Act of 1934,
and the Regulated Fund’s reports to shareholders.
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2. TPVG Variable Funding Company
LLC, Delaware limited liability
company, is a wholly-owned subsidiary
of the Company established for utilizing
the Company’s revolving credit facility.
3. TPVG Investment LLC, a Delaware
limited liability company, is a whollyowned subsidiary of the Company
established for holding certain of the
Company’s investments.
4. TriplePoint, a Delaware limited
liability company, is a global financing
provider. TriplePoint is exempt from
registration under the Act pursuant to
section 3(c)(7) of the Act.
5. Each of TriplePoint Financial LLC,
TPF Funding 1 LLC, and TriplePoint
Ventures 5 LLC is a Delaware limited
liability company, a wholly-owned
subsidiary of TriplePoint and exempt
from registration under the Act pursuant
to section 3(c)(7) of the 1940 Act.
6. TPC Credit Partners 3 LLC, a
Delaware limited liability company, is a
majority-owned subsidiary of
TriplePoint and is exempt from
registration under the Act pursuant to
section 3(c)(7) of the 1940 Act.
7. The BDC Adviser, a Delaware
limited liability company, is registered
with the Commission as an investment
adviser under the Investment Advisers
Act of 1940 (the ‘‘Advisers Act’’). The
BDC Adviser is a wholly-owned
subsidiary of TriplePoint. The BDC
Adviser serves as investment adviser to
the Company.
8. The TPC Companies, from time to
time, may hold various financial assets
in a principal capacity (together, in such
capacity, ‘‘Existing TPC Proprietary
Accounts’’ and together with any Future
TPC Proprietary Account (as defined
below), the ‘‘TPC Proprietary
Accounts’’).
9. Applicants seek an order (‘‘Order’’)
to permit a Regulated Fund 4 and one or
more other Regulated Funds and/or one
or more Affiliated Funds 5 to participate
4 ‘‘Regulated Fund’’ means the Company and any
Future Regulated Fund. ‘‘Future Regulated Fund’’
means any closed-end management investment
company (a) that is registered under the Act or has
elected to be regulated as a BDC, (b) whose
investment adviser is an Adviser, and (c) that
intends to participate in the Co-Investment
Program. The term ‘‘Adviser’’ means (a) the BDC
Adviser and (b) any future investment adviser that
controls, is controlled by or is under common
control with TriplePoint and is registered as an
investment adviser under the Advisers Act.
5 ‘‘Affiliated Fund’’ means the Existing TPC
Proprietary Accounts, any Future TPC Proprietary
Accounts and any Future Affiliated Funds. ‘‘Future
TPC Proprietary Account’’ means any direct or
indirect, wholly- or majority-owned subsidiary of
TriplePoint that is formed in the future and, from
time to time, may hold various financial assets in
a principal capacity. ‘‘Future Affiliated Fund’’
means any entity (a) whose investment adviser is
an Adviser, (b) that would be an investment
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in the same investment opportunities
through a proposed co-investment
program (the ‘‘Co-Investment Program’’)
where such participation would
otherwise be prohibited under either or
both of sections 17(d) and 57(a)(4) and
rule 17d–1 by (a) co-investing with each
other in securities issued by issuers in
private placement transactions in which
an Adviser negotiates terms in addition
to price; 6 and (b) making additional
investments in securities of such
issuers, including through the exercise
of warrants, conversion privileges, and
other rights to purchase securities of the
issuers (‘‘Follow-On Investments’’). ‘‘CoInvestment Transaction’’ means any
transaction in which a Regulated Fund
(or its Wholly-Owned Investment Sub,
defined below) participated together
with one or more other Regulated Funds
and/or one or more Affiliated Funds in
reliance on the requested Order.
‘‘Potential Co-Investment Transaction’’
means any investment opportunity in
which a Regulated Fund (or its WhollyOwned Investment Sub) could not
participate together with one or more
Affiliated Funds and/or one or more
other Regulated Funds without
obtaining and relying on the Order.7
10. Applicants state that any of the
Regulated Funds may, from time to
time, form one or more Wholly-Owned
Investment Subs.8 Such a subsidiary
would be prohibited from investing in a
Co-Investment Transaction with any
Affiliated Fund or Regulated Fund
because it would be a company
company but for section 3(c)(1) or 3(c)(7) of the Act,
and (c) that intends to participate in the CoInvestment Program.
6 The term ‘‘private placement transactions’’
means transactions in which the offer and sale of
securities by the issuer are exempt from registration
under the Securities Act.
7 All existing entities that currently intend to rely
upon the requested Order have been named as
applicants. Any other existing or future entity that
subsequently relies on the Order will comply with
the terms and conditions of the application.
8 The term ‘‘Wholly-Owned Investment Sub’’
means an entity (i) that is wholly-owned by a
Regulated Fund (with the Regulated Fund at all
times holding, beneficially and of record, 100% of
the voting and economic interests); (ii) whose sole
business purpose is to hold one or more
investments on behalf of the Regulated Fund (and,
in the case of an SBIC Subsidiary (defined below),
maintain a license under the SBA Act (defined
below) and issue debentures guaranteed by the SBA
(defined below)); (iii) with respect to which the
Regulated Fund’s Board has the sole authority to
make all determinations with respect to the entity’s
participation under the conditions of the
application; and (iv) that would be an investment
company but for section 3(c)(1) or 3(c)(7) of the Act.
Each of the Existing Company Subsidiaries is a
Wholly-Owned Investment Sub. ‘‘SBIC Subsidiary’’
means a Wholly-Owned Investment Sub that is
licensed by the Small Business Administration (the
‘‘SBA’’) to operate under the Small Business
Investment Act of 1958, as amended, (the ‘‘SBA
Act’’) as a small business investment company.
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controlled by its parent Regulated Fund
for purposes of section 57(a)(4) and rule
17d-1. Applicants request that each
Wholly-Owned Investment Sub be
permitted to participate in CoInvestment Transactions in lieu of its
parent Regulated Fund and that the
Wholly-Owned Investment Sub’s
participation in any such transaction be
treated, for purposes of the requested
Order, as though the parent Regulated
Fund were participating directly.
Applicants represent that this treatment
is justified because a Wholly-Owned
Investment Sub would have no purpose
other than serving as a holding vehicle
for the Regulated Fund’s investments
and, therefore, no conflicts of interest
could arise between the Regulated Fund
and the Wholly-Owned Investment Sub.
The Regulated Fund’s Board would
make all relevant determinations under
the conditions with regard to a WhollyOwned Investment Sub’s participation
in a Co-Investment Transaction, and the
Regulated Fund’s Board would be
informed of, and take into
consideration, any proposed use of a
Wholly-Owned Investment Sub in the
Regulated Fund’s place. If the Regulated
Fund proposes to participate in the
same Co-Investment Transaction with
any of its Wholly-Owned Investment
Subs, the Board will also be informed
of, and take into consideration, the
relative participation of the Regulated
Fund and the Wholly-Owned
Investment Sub.
11. When considering Potential CoInvestment Transactions for any
Regulated Fund, the applicable Adviser
will consider only the Objectives and
Strategies, investment policies,
investment positions, capital available
for investment (‘‘Available Capital’’),
and other pertinent factors applicable to
that Regulated Fund. Before relying on
the requested Order, the Board of each
Regulated Fund, including the NonInterested Directors, will have
determined that it is in the best interests
of the Regulated Fund to participate in
the Co-Investment Transactions.9
12. Other than pro rata dispositions
and Follow-On Investments as provided
in conditions 7 and 8, and after making
the determinations required in
conditions 1 and 2(a), the Adviser will
present each Potential Co-Investment
Transaction and the proposed allocation
to the directors of the Board eligible to
vote under section 57(o) of the Act
(‘‘Eligible Directors’’), and the ‘‘required
majority,’’ as defined in section 57(o) of
9 The Regulated Funds, however, will not be
obligated to invest, or co-invest, when investment
opportunities are referred to them.
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the Act (‘‘Required Majority’’) 10 will
approve each Co-Investment
Transaction prior to any investment by
the participating Regulated Fund.
13. With respect to the pro rata
dispositions and Follow-On Investments
provided in conditions 7 and 8, a
Regulated Fund may participate in a pro
rata disposition or Follow-On
Investment without obtaining prior
approval of the Required Majority if,
among other things: (i) The proposed
participation of each Regulated Fund
and Affiliated Fund in such disposition
is proportionate to its outstanding
investments in the issuer immediately
preceding the disposition or Follow-On
Investment, as the case may be; and (ii)
the Board of the Regulated Fund has
approved that Regulated Fund’s
participation in pro rata dispositions
and Follow-On Investments as being in
the best interests of the Regulated Fund.
If the Board does not so approve, any
such disposition or Follow-On
Investment will be submitted to the
Regulated Fund’s Eligible Directors. The
Board of any Regulated Fund may at any
time rescind, suspend or qualify its
approval of pro rata dispositions and
Follow-On Investments with the result
that all dispositions and/or Follow-On
Investments must be submitted to the
Eligible Directors.
14. Applicants acknowledge that
some of the Affiliated Funds may not be
funds advised by an Adviser because
they are TPC Proprietary Accounts.
Applicants do not believe these TPC
Proprietary Accounts should raise
issues under the conditions of this
Application because the allocation
policies and procedures of the Advisers
provide that investment opportunities
are offered to client accounts (including
the Regulated Funds) before they are
offered to TPC Proprietary Accounts.
15. In accordance with each Adviser’s
allocation policies and procedures,
Potential Co-Investment Transactions
will be offered to, and allocated among,
the Affiliated Funds and Regulated
Funds based on each client’s particular
Objectives and Strategies and in
accordance with the conditions. If the
aggregate amount recommended by the
Advisers to be invested by the Affiliated
Funds (not including the TPC
Proprietary Accounts) and the Regulated
Funds in a Potential Co-Investment
Transaction were equal to or more than
the amount of the investment
opportunity, a TPC Proprietary Account
would not participate in the investment
10 In the case of a Regulated Fund that is a
registered closed-end fund, the Board members that
make up the Required Majority will be determined
as if the Regulated Fund were a BDC subject to
section 57(o).
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opportunity. If the aggregate amount
recommended by the Advisers to be
invested by the Affiliated Funds (not
including the TPC Proprietary
Accounts) and the Regulated Funds in
a Potential Co-Investment Transaction
were less than the amount of the
investment opportunity, a TPC
Proprietary Account would then have
the opportunity to participate in the
Potential Co-Investment Transaction in
a principal capacity.
16. Currently, there are no existing
Regulated Funds other than the
Company or Affiliated Funds other than
TPC Proprietary Accounts. As a result,
the Company and the TPC Proprietary
Accounts will be able to comply with
the conditions, including condition 1,
because the conditions require that the
TPC Proprietary Accounts will only be
permitted to invest in a Potential CoInvestment Transaction to the extent
that the aggregate demand from the
Regulated Funds and the other
Affiliated Funds is less than the total
investment opportunity. Once another
Regulated Fund or Affiliated Fund
(other than a TPC Proprietary Account)
exists, the Company will no longer have
a right of first refusal and the applicants
will continue to comply with the
conditions, including condition 1.
17. No Non-Interested Director of a
Regulated Fund will have a financial
interest in any Co-Investment
Transaction, other than through share
ownership in one of the Regulated
Funds.
18. Applicants also represent that if
an Adviser or its principals, or any
person controlling, controlled by, or
under common control with an Adviser
or its principals, and the Affiliated
Funds (collectively, the ‘‘Holders’’) own
in the aggregate more than 25% of the
outstanding voting shares of a Regulated
Fund (the ‘‘Shares’’), then the Holders
will vote such Shares as required under
condition 14.
Applicants’ Legal Analysis
1. Section 57(a)(4) of the Act prohibits
certain affiliated persons of a BDC from
participating in joint transactions with
the BDC or a company controlled by a
BDC in contravention of rules as
prescribed by the Commission. Under
section 57(b)(2) of the Act, any person
who is directly or indirectly controlling,
controlled by, or under common control
with a BDC is subject to section 57(a)(4).
Applicants submit that each of the
Regulated Funds and Affiliated Funds
could be deemed to be a person related
to each Regulated Fund in a manner
described by section 57(b) by virtue of
being under common control. Section
57(i) of the Act provides that, until the
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Commission prescribes rules under
section 57(a)(4), the Commission’s rules
under section 17(d) of the Act
applicable to registered closed-end
investment companies will be deemed
to apply to transactions subject to
section 57(a)(4). Because the
Commission has not adopted any rules
under section 57(a)(4), rule 17d–1 also
applies to joint transactions with
Regulated Funds that are BDCs. Section
17(d) of the Act and rule 17d–1 under
the Act are applicable to Regulated
Funds that are registered closed-end
investment companies.
2. Section 17(d) of the Act and rule
17d–1 under the Act prohibit affiliated
persons of a registered investment
company from participating in joint
transactions with the company unless
the Commission has granted an order
permitting such transactions. In passing
upon applications under rule 17d–1, the
Commission considers whether the
company’s participation in the joint
transaction is consistent with the
provisions, policies, and purposes of the
Act and the extent to which such
participation is on a basis different from
or less advantageous than that of other
participants.
3. Applicants state that in the absence
of the requested relief, the Regulated
Funds would be, in some
circumstances, limited in their ability to
participate in attractive and appropriate
investment opportunities. Applicants
believe that the proposed terms and
conditions will ensure that the CoInvestment Transactions are consistent
with the protection of each Regulated
Fund’s shareholders and with the
purposes intended by the policies and
provisions of the Act. Applicants state
that the Regulated Funds’ participation
in the Co-Investment Transactions will
be consistent with the provisions,
policies, and purposes of the Act and on
a basis that is not different from or less
advantageous than that of other
participants.
Applicants’ Conditions
Applicants agree that the Order will
be subject to the following conditions:
1. Each time an Adviser or an
Affiliated Fund considers a Potential
Co-Investment Transaction for an
Affiliated Fund or another Regulated
Fund that falls within a Regulated
Fund’s then-current Objectives and
Strategies, the Regulated Fund’s Adviser
will make an independent
determination of the appropriateness of
the investment for such Regulated Fund
in light of the Regulated Fund’s thencurrent circumstances.
2. (a) If the Adviser deems a Regulated
Fund’s participation in any Potential
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Co-Investment Transaction to be
appropriate for the Regulated Fund, it
will then determine an appropriate level
of investment for the Regulated Fund.
(b) If the aggregate amount
recommended by the applicable Adviser
to be invested by the applicable
Regulated Fund in the Potential CoInvestment Transaction, together with
the amount proposed to be invested by
the other participating Regulated Funds
and Affiliated Funds, collectively, in the
same transaction, exceeds the amount of
the investment opportunity, the
investment opportunity will be
allocated among them pro rata based on
each participant’s Available Capital, up
to the amount proposed to be invested
by each. The applicable Adviser will
provide the Eligible Directors of each
participating Regulated Fund with
information concerning each
participating party’s Available Capital to
assist the Eligible Directors with their
review of the Regulated Fund’s
investments for compliance with these
allocation procedures.
(c) After making the determinations
required in conditions 1 and 2(a), the
applicable Adviser will distribute
written information concerning the
Potential Co-Investment Transaction
(including the amount proposed to be
invested by each participating Regulated
Fund and Affiliated Fund) to the
Eligible Directors of each participating
Regulated Fund for their consideration.
A Regulated Fund will co-invest with
one or more other Regulated Funds and/
or one or more Affiliated Funds only if,
prior to the Regulated Fund’s
participation in the Potential CoInvestment Transaction, a Required
Majority concludes that:
(i) The terms of the Potential CoInvestment Transaction, including the
consideration to be paid, are reasonable
and fair to the Regulated Fund and its
shareholders and do not involve
overreaching in respect of the Regulated
Fund or its shareholders on the part of
any person concerned;
(ii) The Potential Co-Investment
Transaction is consistent with:
(A) The interests of the shareholders
of the Regulated Fund; and
(B) the Regulated Fund’s then-current
Objectives and Strategies;
(iii) the investment by any other
Regulated Funds or Affiliated Funds
would not disadvantage the Regulated
Fund, and participation by the
Regulated Fund would not be on a basis
different from or less advantageous than
that of other Regulated Funds or
Affiliated Funds; provided that, if any
other Regulated Fund or Affiliated
Fund, but not the Regulated Fund itself,
gains the right to nominate a director for
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election to a portfolio company’s board
of directors or the right to have a board
observer or any similar right to
participate in the governance or
management of the portfolio company,
such event shall not be interpreted to
prohibit the Required Majority from
reaching the conclusions required by
this condition (2)(c)(iii), if:
(A) The Eligible Directors will have
the right to ratify the selection of such
director or board observer, if any;
(B) the applicable Adviser agrees to,
and does, provide periodic reports to
the Regulated Fund’s Board with respect
to the actions of such director or the
information received by such board
observer or obtained through the
exercise of any similar right to
participate in the governance or
management of the portfolio company;
and
(C) any fees or other compensation
that any Affiliated Fund or any
Regulated Fund or any affiliated person
of any Affiliated Fund or any Regulated
Fund receives in connection with the
right of the Affiliated Fund or a
Regulated Fund to nominate a director
or appoint a board observer or otherwise
to participate in the governance or
management of the portfolio company
will be shared proportionately among
the participating Affiliated Funds (who
each may, in turn, share its portion with
its affiliated persons) and the
participating Regulated Funds in
accordance with the amount of each
party’s investment; and
(iv) the proposed investment by the
Regulated Fund will not benefit the
Advisers, the Affiliated Funds or the
other Regulated Funds or any affiliated
person of any of them (other than the
parties to the Co-Investment
Transaction), except (A) to the extent
permitted by condition 13, (B) to the
extent permitted by section 17(e) or
57(k) of the Act, as applicable, (C)
indirectly, as a result of an interest in
the securities issued by one of the
parties to the Co-Investment
Transaction, or (D) in the case of fees or
other compensation described in
condition 2(c)(iii)(C).
3. Each Regulated Fund has the right
to decline to participate in any Potential
Co-Investment Transaction or to invest
less than the amount proposed.
4. The applicable Adviser will present
to the Board of each Regulated Fund, on
a quarterly basis, a record of all
investments in Potential Co-Investment
Transactions made by any of the other
Regulated Funds or Affiliated Funds
during the preceding quarter that fell
within the Regulated Fund’s thencurrent Objectives and Strategies that
were not made available to the
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Regulated Fund, and an explanation of
why the investment opportunities were
not offered to the Regulated Fund. All
information presented to the Board
pursuant to this condition will be kept
for the life of the Regulated Fund and
at least two years thereafter, and will be
subject to examination by the
Commission and its staff.
5. Except for Follow-On Investments
made in accordance with condition 8,11
a Regulated Fund will not invest in
reliance on the Order in any issuer in
which another Regulated Fund,
Affiliated Fund, or any affiliated person
of another Regulated Fund or Affiliated
Fund is an existing investor.
6. A Regulated Fund will not
participate in any Potential CoInvestment Transaction unless the
terms, conditions, price, class of
securities to be purchased, settlement
date, and registration rights will be the
same for each participating Regulated
Fund and Affiliated Fund. The grant to
an Affiliated Fund or another Regulated
Fund, but not the Regulated Fund, of
the right to nominate a director for
election to a portfolio company’s board
of directors, the right to have an
observer on the board of directors or
similar rights to participate in the
governance or management of the
portfolio company will not be
interpreted so as to violate this
condition 6, if conditions 2(c)(iii)(A), (B)
and (C) are met.
7. (a) If any Affiliated Fund or any
Regulated Fund elects to sell, exchange
or otherwise dispose of an interest in a
security that was acquired in a CoInvestment Transaction, the applicable
Advisers will:
(i) Notify each Regulated Fund that
participated in the Co-Investment
Transaction of the proposed disposition
at the earliest practical time; and
(ii) formulate a recommendation as to
participation by each Regulated Fund in
the disposition.
(b) Each Regulated Fund will have the
right to participate in such disposition
on a proportionate basis, at the same
price and on the same terms and
conditions as those applicable to the
participating Affiliated Funds and
Regulated Funds.
(c) A Regulated Fund may participate
in such disposition without obtaining
prior approval of the Required Majority
if: (i) The proposed participation of each
Regulated Fund and each Affiliated
Fund in such disposition is
proportionate to its outstanding
11 This exception applies only to Follow-On
Investments by a Regulated Fund in issuers in
which the Regulated Fund already holds
investments.
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investments in the issuer immediately
preceding the disposition; (ii) the Board
of the Regulated Fund has approved as
being in the best interests of the
Regulated Fund the ability to participate
in such dispositions on a pro rata basis
(as described in greater detail in the
application); and (iii) the Board of the
Regulated Fund is provided on a
quarterly basis with a list of all
dispositions made in accordance with
this condition. In all other cases, the
Adviser will provide its written
recommendation as to the Regulated
Fund’s participation to the Eligible
Directors, and the Regulated Fund will
participate in such disposition solely to
the extent that a Required Majority
determines that it is in the Regulated
Fund’s best interests.
(d) Each Affiliated Fund and each
Regulated Fund will bear its own
expenses in connection with any such
disposition.
8. (a) If any Affiliated Fund or any
Regulated Fund desires to make a
Follow-On Investment in a portfolio
company whose securities were
acquired in a Co-Investment
Transaction, the applicable Advisers
will:
(i) Notify each Regulated Fund that
participated in the Co-Investment
Transaction of the proposed transaction
at the earliest practical time; and
(ii) formulate a recommendation as to
the proposed participation, including
the amount of the proposed Follow-On
Investment, by each Regulated Fund.
(b) A Regulated Fund may participate
in such Follow-On Investment without
obtaining prior approval of the Required
Majority if: (i) The proposed
participation of each Regulated Fund
and each Affiliated Fund in such
investment is proportionate to its
outstanding investments in the issuer
immediately preceding the Follow-On
Investment; and (ii) the Board of the
Regulated Fund has approved as being
in the best interests of the Regulated
Fund the ability to participate in
Follow-On Investments on a pro rata
basis (as described in greater detail in
the application). In all other cases, the
Adviser will provide its written
recommendation as to the Regulated
Fund’s participation to the Eligible
Directors, and the Regulated Fund will
participate in such Follow-On
Investment solely to the extent that a
Required Majority determines that it is
in the Regulated Fund’s best interests.
(c) If, with respect to any Follow-On
Investment:
(i) The amount of the opportunity is
not based on the Regulated Funds’ and
the Affiliated Funds’ outstanding
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investments immediately preceding the
Follow-On Investment; and
(ii) the aggregate amount
recommended by the Adviser to be
invested by the Regulated Fund in the
Follow-On Investment, together with
the amount proposed to be invested by
the other participating Regulated Funds
and the Affiliated Funds in the same
transaction, exceeds the amount of the
opportunity;
then the amount invested by each such
party will be allocated among them pro
rata based on each participant’s
Available Capital for investment in the
asset class being allocated, up to the
amount proposed to be invested by
each.
(d) The acquisition of Follow-On
Investments as permitted by this
condition will be considered a CoInvestment Transaction for all purposes
and subject to the other conditions set
forth in the application.
9. The Non-Interested Directors of
each Regulated Fund will be provided
quarterly for review all information
concerning Potential Co-Investment
Transactions and Co-Investment
Transactions, including investments
made by other Regulated Funds or
Affiliated Funds that the Regulated
Fund considered but declined to
participate in, so that the Non-Interested
Directors may determine whether all
investments made during the preceding
quarter, including those investments
that the Regulated Fund considered but
declined to participate in, comply with
the conditions of the Order. In addition,
the Non-Interested Directors will
consider at least annually the continued
appropriateness for the Regulated Fund
of participating in new and existing CoInvestment Transactions.
10. Each Regulated Fund will
maintain the records required by section
57(f)(3) of the Act as if each of the
Regulated Funds were a BDC and each
of the investments permitted under
these conditions were approved by the
Required Majority under section 57(f) of
the Act.
11. No Non-Interested Director of a
Regulated Fund will also be a director,
general partner, managing member or
principal, or otherwise an ‘‘affiliated
person’’ (as defined in the Act) of an
Affiliated Fund.
12. The expenses, if any, associated
with acquiring, holding or disposing of
any securities acquired in a CoInvestment Transaction (including,
without limitation, the expenses of the
distribution of any such securities
registered for sale under the Securities
Act) will, to the extent not payable by
the Advisers under their respective
VerDate Sep<11>2014
19:25 Mar 02, 2018
Jkt 244001
investment advisory agreements with
Affiliated Funds and the Regulated
Funds, be shared by the Regulated
Funds and the Affiliated Funds in
proportion to the relative amounts of the
securities held or to be acquired or
disposed of, as the case may be.
13. Any transaction fee 12 (including
break-up or commitment fees but
excluding broker’s fees contemplated by
section 17(e) or 57(k) of the Act, as
applicable), received in connection with
a Co-Investment Transaction will be
distributed to the participating
Regulated Funds and Affiliated Funds
on a pro rata basis based on the amounts
they invested or committed, as the case
may be, in such Co-Investment
Transaction. If any transaction fee is to
be held by an Adviser pending
consummation of the transaction, the
fee will be deposited into an account
maintained by such Adviser at a bank or
banks having the qualifications
prescribed in section 26(a)(1) of the Act,
and the account will earn a competitive
rate of interest that will also be divided
pro rata among the participating
Regulated Funds and Affiliated Funds
based on the amounts they invest in
such Co-Investment Transaction. None
of the Affiliated Funds, the Advisers,
the other Regulated Funds or any
affiliated person of the Regulated Funds
or Affiliated Funds will receive
additional compensation or
remuneration of any kind as a result of
or in connection with a Co-Investment
Transaction (other than (a) in the case
of the Regulated Funds and the
Affiliated Funds, the pro rata
transaction fees described above and
fees or other compensation described in
condition 2(c)(iii)(C); and (b) in the case
of an Adviser, investment advisory fees
paid in accordance with the agreement
between the Adviser and the Regulated
Fund or Affiliated Fund.
14. If the Holders own in the aggregate
more than 25 percent of the Shares of
a Regulated Fund, then the Holders will
vote such Shares as directed by an
independent third party when voting on
(1) the election of directors; (2) the
removal of one or more directors; or (3)
any other matter under either the Act or
applicable state law affecting the
Board’s composition, size or manner of
election.
15. The TPC Proprietary Accounts
will not be permitted to invest in a
Potential Co-Investment Transaction
except to the extent the demand from
the Regulated Funds and the other
12 Applicants are not requesting and the
Commission is not providing any relief for
transaction fees received in connection with any
Co-Investment Transaction.
PO 00000
Frm 00103
Fmt 4703
Sfmt 4703
9361
Affiliated Funds is less than the total
investment opportunity.
16. Each Adviser will maintain
written policies and procedures
reasonably designed to ensure
compliance with the foregoing
conditions. These policies and
procedures will require, among other
things, that each Adviser will be
notified of all Potential Co-Investment
Transactions that fall within the thencurrent Objectives and Strategies of any
Regulated Fund it advises and will be
given sufficient information to make its
independent determination and
recommendations under conditions 1,
2(a), 7 and 8.
17. Each Regulated Fund’s chief
compliance officer, as defined in rule
38a–1(a)(4), will prepare an annual
report for its Board that evaluates (and
documents the basis of that evaluation)
the Regulated Fund’s compliance with
the terms and conditions of the
application and the procedures
established to achieve such compliance.
For the Commission, by the Division of
Investment Management, under delegated
authority.
Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2018–04370 Filed 3–2–18; 8:45 am]
BILLING CODE 8011–01–P
DEPARTMENT OF STATE
[Public Notice: 10342]
Notice of Determinations; Additional
Culturally Significant Object Imported
for Exhibition Determinations: ‘‘Like
Life: Sculpture, Color, and the Body’’
Exhibition
On January 19, 2018, notice
was published on page 2864 of the
Federal Register (volume 83, number
13) of determinations pertaining to
certain objects to be included in an
exhibition entitled ‘‘Like Life:
Sculpture, Color, and the Body.’’ Notice
is hereby given of the following
determinations: I hereby determine that
a certain additional object to be
included in the exhibition ‘‘Like Life:
Sculpture, Color, and the Body,’’
imported from abroad for temporary
exhibition within the United States, is
of cultural significance. The additional
object is imported pursuant to a loan
agreement with the foreign owner or
custodian. I also determine that the
exhibition or display of the additional
exhibit object at The Metropolitan
Museum of Art, New York, New York,
from on or about March 20, 2018, until
on or about July 22, 2018, and at
possible additional exhibitions or
SUMMARY:
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]]>Agencies
[Federal Register Volume 83, Number 43 (Monday, March 5, 2018)]
[Notices]
[Pages 9357-9361]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-04370]
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SECURITIES AND EXCHANGE COMMISSION
[Investment Company Act Release No. 33037; File No. 812-14773]
TriplePoint Venture Growth BDC Corp., et al.
February 28, 2018.
AGENCY: Securities and Exchange Commission (``Commission'').
ACTION: Notice.
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Notice of application for an order under sections 17(d) and 57(i)
of the Investment Company Act of 1940 (the ``Act'') and rule 17d-1
under the Act permitting certain joint transactions otherwise
prohibited by sections 17(d) and 57(a)(4) of the Act and under rule
17d-1 under the Act.
Summary of Application: Applicants request an order to permit a
business development company (``BDC'') and certain closed end
management investment companies to co-invest in portfolio companies
with each other and with affiliated investment funds and accounts.
Applicants: TriplePoint Venture Growth BDC Corp. (the ``Company'');
TPVG Variable Funding Company LLC and TPVG Investment LLC
(collectively, the ``Existing Company Subsidiaries''); TPVG Advisers
LLC (the ``BDC Adviser''), on behalf of itself and its successors; \1\
and TriplePoint Capital LLC (``TriplePoint''), TriplePoint Financial
LLC, TPF Funding 1 LLC, TriplePoint Ventures 5 LLC, and TPC Credit
Partners 3 LLC (collectively, with TriplePoint, the ``TPC Companies'').
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\1\ The term ``successor,'' as applied to each Adviser, is
limited to an entity that results from a reorganization into another
jurisdiction or change in the type of business organization.
Filing Dates: The application was filed on May 10, 2017, and amended on
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November 8, 2017.
Hearing or Notification of Hearing: An order granting the requested
relief will be issued unless the Commission orders a hearing.
Interested persons may request a hearing by writing to the Commission's
Secretary and serving applicants with a copy of the request, personally
or by mail. Hearing requests should be received by the Commission by
5:30 p.m. on March 26, 2018, and should be accompanied by proof of
service on applicants, in the form of an affidavit or, for lawyers, a
certificate of service. Pursuant to rule 0-5 under the Act, hearing
requests should state the nature of the writer's interest, any facts
bearing upon the desirability of a hearing on the matter, the reason
for the request, and the issues contested. Persons who wish to be
notified of a hearing may request notification by writing to the
Commission's Secretary.
ADDRESSES: Secretary, U.S. Securities and Exchange Commission, 100 F
St. NE, Washington, DC 20549-1090. Applicants, 2755 Sand Hill Road,
Suite 150, Menlo Park, CA 94025.
FOR FURTHER INFORMATION CONTACT: Christine Y. Greenlees, Senior
Counsel, at (202) 551-6879, or Robert H. Shapiro, Branch Chief, at
(202) 551-6821 (Chief Counsel's Office, Division of Investment
Management).
SUPPLEMENTARY INFORMATION: The following is a summary of the
application. The complete application may be obtained via the
Commission's website by searching for the file number, or for an
applicant using the Company name box, at https://www.sec.gov/search/search.htm or by calling (202) 551-8090.
Applicants' Representations
1. The Company, a Maryland corporation, is organized as a closed-
end management investment company that has elected to be regulated as a
BDC under section 54(a) of the Act.\2\ The Company's Objectives and
Strategies \3\ are to maximize total return to shareholders primarily
in the form of current income and, to a lesser extent, capital
appreciation, by primarily lending to venture growth stage companies
focused in technology, life sciences and other high growth industries.
The Company has a five-member board of directors (the ``Board''), three
of whom are not ``interested persons'' as defined in section 2(a)(19)
of the Act (the ``Non-Interested Directors'').
---------------------------------------------------------------------------
\2\ Section 2(a)(48) defines a BDC to be any closed-end
investment company that operates for the purpose of making
investments in securities described in sections 55(a)(1) through
55(a)(3) of the Act and makes available significant managerial
assistance with respect to the issuers of such securities.
\3\ ``Objectives and Strategies'' means a Regulated Fund's
(defined below) investment objectives and strategies, as described
in the Regulated Fund's registration statement on Form N-2, other
filings the Regulated Fund has made with the Commission under the
Securities Act of 1933 (the ``Securities Act'') or under the
Securities Exchange Act of 1934, and the Regulated Fund's reports to
shareholders.
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2. TPVG Variable Funding Company LLC, Delaware limited liability
company, is a wholly-owned subsidiary of the Company established for
utilizing the Company's revolving credit facility.
3. TPVG Investment LLC, a Delaware limited liability company, is a
wholly-owned subsidiary of the Company established for holding certain
of the Company's investments.
4. TriplePoint, a Delaware limited liability company, is a global
financing provider. TriplePoint is exempt from registration under the
Act pursuant to section 3(c)(7) of the Act.
5. Each of TriplePoint Financial LLC, TPF Funding 1 LLC, and
TriplePoint Ventures 5 LLC is a Delaware limited liability company, a
wholly-owned subsidiary of TriplePoint and exempt from registration
under the Act pursuant to section 3(c)(7) of the 1940 Act.
6. TPC Credit Partners 3 LLC, a Delaware limited liability company,
is a majority-owned subsidiary of TriplePoint and is exempt from
registration under the Act pursuant to section 3(c)(7) of the 1940 Act.
7. The BDC Adviser, a Delaware limited liability company, is
registered with the Commission as an investment adviser under the
Investment Advisers Act of 1940 (the ``Advisers Act''). The BDC Adviser
is a wholly-owned subsidiary of TriplePoint. The BDC Adviser serves as
investment adviser to the Company.
8. The TPC Companies, from time to time, may hold various financial
assets in a principal capacity (together, in such capacity, ``Existing
TPC Proprietary Accounts'' and together with any Future TPC Proprietary
Account (as defined below), the ``TPC Proprietary Accounts'').
9. Applicants seek an order (``Order'') to permit a Regulated Fund
\4\ and one or more other Regulated Funds and/or one or more Affiliated
Funds \5\ to participate
[[Page 9358]]
in the same investment opportunities through a proposed co-investment
program (the ``Co-Investment Program'') where such participation would
otherwise be prohibited under either or both of sections 17(d) and
57(a)(4) and rule 17d-1 by (a) co-investing with each other in
securities issued by issuers in private placement transactions in which
an Adviser negotiates terms in addition to price; \6\ and (b) making
additional investments in securities of such issuers, including through
the exercise of warrants, conversion privileges, and other rights to
purchase securities of the issuers (``Follow-On Investments''). ``Co-
Investment Transaction'' means any transaction in which a Regulated
Fund (or its Wholly-Owned Investment Sub, defined below) participated
together with one or more other Regulated Funds and/or one or more
Affiliated Funds in reliance on the requested Order. ``Potential Co-
Investment Transaction'' means any investment opportunity in which a
Regulated Fund (or its Wholly-Owned Investment Sub) could not
participate together with one or more Affiliated Funds and/or one or
more other Regulated Funds without obtaining and relying on the
Order.\7\
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\4\ ``Regulated Fund'' means the Company and any Future
Regulated Fund. ``Future Regulated Fund'' means any closed-end
management investment company (a) that is registered under the Act
or has elected to be regulated as a BDC, (b) whose investment
adviser is an Adviser, and (c) that intends to participate in the
Co-Investment Program. The term ``Adviser'' means (a) the BDC
Adviser and (b) any future investment adviser that controls, is
controlled by or is under common control with TriplePoint and is
registered as an investment adviser under the Advisers Act.
\5\ ``Affiliated Fund'' means the Existing TPC Proprietary
Accounts, any Future TPC Proprietary Accounts and any Future
Affiliated Funds. ``Future TPC Proprietary Account'' means any
direct or indirect, wholly- or majority-owned subsidiary of
TriplePoint that is formed in the future and, from time to time, may
hold various financial assets in a principal capacity. ``Future
Affiliated Fund'' means any entity (a) whose investment adviser is
an Adviser, (b) that would be an investment company but for section
3(c)(1) or 3(c)(7) of the Act, and (c) that intends to participate
in the Co-Investment Program.
\6\ The term ``private placement transactions'' means
transactions in which the offer and sale of securities by the issuer
are exempt from registration under the Securities Act.
\7\ All existing entities that currently intend to rely upon the
requested Order have been named as applicants. Any other existing or
future entity that subsequently relies on the Order will comply with
the terms and conditions of the application.
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10. Applicants state that any of the Regulated Funds may, from time
to time, form one or more Wholly-Owned Investment Subs.\8\ Such a
subsidiary would be prohibited from investing in a Co-Investment
Transaction with any Affiliated Fund or Regulated Fund because it would
be a company controlled by its parent Regulated Fund for purposes of
section 57(a)(4) and rule 17d-1. Applicants request that each Wholly-
Owned Investment Sub be permitted to participate in Co-Investment
Transactions in lieu of its parent Regulated Fund and that the Wholly-
Owned Investment Sub's participation in any such transaction be
treated, for purposes of the requested Order, as though the parent
Regulated Fund were participating directly. Applicants represent that
this treatment is justified because a Wholly-Owned Investment Sub would
have no purpose other than serving as a holding vehicle for the
Regulated Fund's investments and, therefore, no conflicts of interest
could arise between the Regulated Fund and the Wholly-Owned Investment
Sub. The Regulated Fund's Board would make all relevant determinations
under the conditions with regard to a Wholly-Owned Investment Sub's
participation in a Co-Investment Transaction, and the Regulated Fund's
Board would be informed of, and take into consideration, any proposed
use of a Wholly-Owned Investment Sub in the Regulated Fund's place. If
the Regulated Fund proposes to participate in the same Co-Investment
Transaction with any of its Wholly-Owned Investment Subs, the Board
will also be informed of, and take into consideration, the relative
participation of the Regulated Fund and the Wholly-Owned Investment
Sub.
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\8\ The term ``Wholly-Owned Investment Sub'' means an entity (i)
that is wholly-owned by a Regulated Fund (with the Regulated Fund at
all times holding, beneficially and of record, 100% of the voting
and economic interests); (ii) whose sole business purpose is to hold
one or more investments on behalf of the Regulated Fund (and, in the
case of an SBIC Subsidiary (defined below), maintain a license under
the SBA Act (defined below) and issue debentures guaranteed by the
SBA (defined below)); (iii) with respect to which the Regulated
Fund's Board has the sole authority to make all determinations with
respect to the entity's participation under the conditions of the
application; and (iv) that would be an investment company but for
section 3(c)(1) or 3(c)(7) of the Act. Each of the Existing Company
Subsidiaries is a Wholly-Owned Investment Sub. ``SBIC Subsidiary''
means a Wholly-Owned Investment Sub that is licensed by the Small
Business Administration (the ``SBA'') to operate under the Small
Business Investment Act of 1958, as amended, (the ``SBA Act'') as a
small business investment company.
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11. When considering Potential Co-Investment Transactions for any
Regulated Fund, the applicable Adviser will consider only the
Objectives and Strategies, investment policies, investment positions,
capital available for investment (``Available Capital''), and other
pertinent factors applicable to that Regulated Fund. Before relying on
the requested Order, the Board of each Regulated Fund, including the
Non-Interested Directors, will have determined that it is in the best
interests of the Regulated Fund to participate in the Co-Investment
Transactions.\9\
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\9\ The Regulated Funds, however, will not be obligated to
invest, or co-invest, when investment opportunities are referred to
them.
---------------------------------------------------------------------------
12. Other than pro rata dispositions and Follow-On Investments as
provided in conditions 7 and 8, and after making the determinations
required in conditions 1 and 2(a), the Adviser will present each
Potential Co-Investment Transaction and the proposed allocation to the
directors of the Board eligible to vote under section 57(o) of the Act
(``Eligible Directors''), and the ``required majority,'' as defined in
section 57(o) of the Act (``Required Majority'') \10\ will approve each
Co-Investment Transaction prior to any investment by the participating
Regulated Fund.
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\10\ In the case of a Regulated Fund that is a registered
closed-end fund, the Board members that make up the Required
Majority will be determined as if the Regulated Fund were a BDC
subject to section 57(o).
---------------------------------------------------------------------------
13. With respect to the pro rata dispositions and Follow-On
Investments provided in conditions 7 and 8, a Regulated Fund may
participate in a pro rata disposition or Follow-On Investment without
obtaining prior approval of the Required Majority if, among other
things: (i) The proposed participation of each Regulated Fund and
Affiliated Fund in such disposition is proportionate to its outstanding
investments in the issuer immediately preceding the disposition or
Follow-On Investment, as the case may be; and (ii) the Board of the
Regulated Fund has approved that Regulated Fund's participation in pro
rata dispositions and Follow-On Investments as being in the best
interests of the Regulated Fund. If the Board does not so approve, any
such disposition or Follow-On Investment will be submitted to the
Regulated Fund's Eligible Directors. The Board of any Regulated Fund
may at any time rescind, suspend or qualify its approval of pro rata
dispositions and Follow-On Investments with the result that all
dispositions and/or Follow-On Investments must be submitted to the
Eligible Directors.
14. Applicants acknowledge that some of the Affiliated Funds may
not be funds advised by an Adviser because they are TPC Proprietary
Accounts. Applicants do not believe these TPC Proprietary Accounts
should raise issues under the conditions of this Application because
the allocation policies and procedures of the Advisers provide that
investment opportunities are offered to client accounts (including the
Regulated Funds) before they are offered to TPC Proprietary Accounts.
15. In accordance with each Adviser's allocation policies and
procedures, Potential Co-Investment Transactions will be offered to,
and allocated among, the Affiliated Funds and Regulated Funds based on
each client's particular Objectives and Strategies and in accordance
with the conditions. If the aggregate amount recommended by the
Advisers to be invested by the Affiliated Funds (not including the TPC
Proprietary Accounts) and the Regulated Funds in a Potential Co-
Investment Transaction were equal to or more than the amount of the
investment opportunity, a TPC Proprietary Account would not participate
in the investment
[[Page 9359]]
opportunity. If the aggregate amount recommended by the Advisers to be
invested by the Affiliated Funds (not including the TPC Proprietary
Accounts) and the Regulated Funds in a Potential Co-Investment
Transaction were less than the amount of the investment opportunity, a
TPC Proprietary Account would then have the opportunity to participate
in the Potential Co-Investment Transaction in a principal capacity.
16. Currently, there are no existing Regulated Funds other than the
Company or Affiliated Funds other than TPC Proprietary Accounts. As a
result, the Company and the TPC Proprietary Accounts will be able to
comply with the conditions, including condition 1, because the
conditions require that the TPC Proprietary Accounts will only be
permitted to invest in a Potential Co-Investment Transaction to the
extent that the aggregate demand from the Regulated Funds and the other
Affiliated Funds is less than the total investment opportunity. Once
another Regulated Fund or Affiliated Fund (other than a TPC Proprietary
Account) exists, the Company will no longer have a right of first
refusal and the applicants will continue to comply with the conditions,
including condition 1.
17. No Non-Interested Director of a Regulated Fund will have a
financial interest in any Co-Investment Transaction, other than through
share ownership in one of the Regulated Funds.
18. Applicants also represent that if an Adviser or its principals,
or any person controlling, controlled by, or under common control with
an Adviser or its principals, and the Affiliated Funds (collectively,
the ``Holders'') own in the aggregate more than 25% of the outstanding
voting shares of a Regulated Fund (the ``Shares''), then the Holders
will vote such Shares as required under condition 14.
Applicants' Legal Analysis
1. Section 57(a)(4) of the Act prohibits certain affiliated persons
of a BDC from participating in joint transactions with the BDC or a
company controlled by a BDC in contravention of rules as prescribed by
the Commission. Under section 57(b)(2) of the Act, any person who is
directly or indirectly controlling, controlled by, or under common
control with a BDC is subject to section 57(a)(4). Applicants submit
that each of the Regulated Funds and Affiliated Funds could be deemed
to be a person related to each Regulated Fund in a manner described by
section 57(b) by virtue of being under common control. Section 57(i) of
the Act provides that, until the Commission prescribes rules under
section 57(a)(4), the Commission's rules under section 17(d) of the Act
applicable to registered closed-end investment companies will be deemed
to apply to transactions subject to section 57(a)(4). Because the
Commission has not adopted any rules under section 57(a)(4), rule 17d-1
also applies to joint transactions with Regulated Funds that are BDCs.
Section 17(d) of the Act and rule 17d-1 under the Act are applicable to
Regulated Funds that are registered closed-end investment companies.
2. Section 17(d) of the Act and rule 17d-1 under the Act prohibit
affiliated persons of a registered investment company from
participating in joint transactions with the company unless the
Commission has granted an order permitting such transactions. In
passing upon applications under rule 17d-1, the Commission considers
whether the company's participation in the joint transaction is
consistent with the provisions, policies, and purposes of the Act and
the extent to which such participation is on a basis different from or
less advantageous than that of other participants.
3. Applicants state that in the absence of the requested relief,
the Regulated Funds would be, in some circumstances, limited in their
ability to participate in attractive and appropriate investment
opportunities. Applicants believe that the proposed terms and
conditions will ensure that the Co-Investment Transactions are
consistent with the protection of each Regulated Fund's shareholders
and with the purposes intended by the policies and provisions of the
Act. Applicants state that the Regulated Funds' participation in the
Co-Investment Transactions will be consistent with the provisions,
policies, and purposes of the Act and on a basis that is not different
from or less advantageous than that of other participants.
Applicants' Conditions
Applicants agree that the Order will be subject to the following
conditions:
1. Each time an Adviser or an Affiliated Fund considers a Potential
Co-Investment Transaction for an Affiliated Fund or another Regulated
Fund that falls within a Regulated Fund's then-current Objectives and
Strategies, the Regulated Fund's Adviser will make an independent
determination of the appropriateness of the investment for such
Regulated Fund in light of the Regulated Fund's then-current
circumstances.
2. (a) If the Adviser deems a Regulated Fund's participation in any
Potential Co-Investment Transaction to be appropriate for the Regulated
Fund, it will then determine an appropriate level of investment for the
Regulated Fund.
(b) If the aggregate amount recommended by the applicable Adviser
to be invested by the applicable Regulated Fund in the Potential Co-
Investment Transaction, together with the amount proposed to be
invested by the other participating Regulated Funds and Affiliated
Funds, collectively, in the same transaction, exceeds the amount of the
investment opportunity, the investment opportunity will be allocated
among them pro rata based on each participant's Available Capital, up
to the amount proposed to be invested by each. The applicable Adviser
will provide the Eligible Directors of each participating Regulated
Fund with information concerning each participating party's Available
Capital to assist the Eligible Directors with their review of the
Regulated Fund's investments for compliance with these allocation
procedures.
(c) After making the determinations required in conditions 1 and
2(a), the applicable Adviser will distribute written information
concerning the Potential Co-Investment Transaction (including the
amount proposed to be invested by each participating Regulated Fund and
Affiliated Fund) to the Eligible Directors of each participating
Regulated Fund for their consideration. A Regulated Fund will co-invest
with one or more other Regulated Funds and/or one or more Affiliated
Funds only if, prior to the Regulated Fund's participation in the
Potential Co-Investment Transaction, a Required Majority concludes
that:
(i) The terms of the Potential Co-Investment Transaction, including
the consideration to be paid, are reasonable and fair to the Regulated
Fund and its shareholders and do not involve overreaching in respect of
the Regulated Fund or its shareholders on the part of any person
concerned;
(ii) The Potential Co-Investment Transaction is consistent with:
(A) The interests of the shareholders of the Regulated Fund; and
(B) the Regulated Fund's then-current Objectives and Strategies;
(iii) the investment by any other Regulated Funds or Affiliated
Funds would not disadvantage the Regulated Fund, and participation by
the Regulated Fund would not be on a basis different from or less
advantageous than that of other Regulated Funds or Affiliated Funds;
provided that, if any other Regulated Fund or Affiliated Fund, but not
the Regulated Fund itself, gains the right to nominate a director for
[[Page 9360]]
election to a portfolio company's board of directors or the right to
have a board observer or any similar right to participate in the
governance or management of the portfolio company, such event shall not
be interpreted to prohibit the Required Majority from reaching the
conclusions required by this condition (2)(c)(iii), if:
(A) The Eligible Directors will have the right to ratify the
selection of such director or board observer, if any;
(B) the applicable Adviser agrees to, and does, provide periodic
reports to the Regulated Fund's Board with respect to the actions of
such director or the information received by such board observer or
obtained through the exercise of any similar right to participate in
the governance or management of the portfolio company; and
(C) any fees or other compensation that any Affiliated Fund or any
Regulated Fund or any affiliated person of any Affiliated Fund or any
Regulated Fund receives in connection with the right of the Affiliated
Fund or a Regulated Fund to nominate a director or appoint a board
observer or otherwise to participate in the governance or management of
the portfolio company will be shared proportionately among the
participating Affiliated Funds (who each may, in turn, share its
portion with its affiliated persons) and the participating Regulated
Funds in accordance with the amount of each party's investment; and
(iv) the proposed investment by the Regulated Fund will not benefit
the Advisers, the Affiliated Funds or the other Regulated Funds or any
affiliated person of any of them (other than the parties to the Co-
Investment Transaction), except (A) to the extent permitted by
condition 13, (B) to the extent permitted by section 17(e) or 57(k) of
the Act, as applicable, (C) indirectly, as a result of an interest in
the securities issued by one of the parties to the Co-Investment
Transaction, or (D) in the case of fees or other compensation described
in condition 2(c)(iii)(C).
3. Each Regulated Fund has the right to decline to participate in
any Potential Co-Investment Transaction or to invest less than the
amount proposed.
4. The applicable Adviser will present to the Board of each
Regulated Fund, on a quarterly basis, a record of all investments in
Potential Co-Investment Transactions made by any of the other Regulated
Funds or Affiliated Funds during the preceding quarter that fell within
the Regulated Fund's then-current Objectives and Strategies that were
not made available to the Regulated Fund, and an explanation of why the
investment opportunities were not offered to the Regulated Fund. All
information presented to the Board pursuant to this condition will be
kept for the life of the Regulated Fund and at least two years
thereafter, and will be subject to examination by the Commission and
its staff.
5. Except for Follow-On Investments made in accordance with
condition 8,\11\ a Regulated Fund will not invest in reliance on the
Order in any issuer in which another Regulated Fund, Affiliated Fund,
or any affiliated person of another Regulated Fund or Affiliated Fund
is an existing investor.
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\11\ This exception applies only to Follow-On Investments by a
Regulated Fund in issuers in which the Regulated Fund already holds
investments.
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6. A Regulated Fund will not participate in any Potential Co-
Investment Transaction unless the terms, conditions, price, class of
securities to be purchased, settlement date, and registration rights
will be the same for each participating Regulated Fund and Affiliated
Fund. The grant to an Affiliated Fund or another Regulated Fund, but
not the Regulated Fund, of the right to nominate a director for
election to a portfolio company's board of directors, the right to have
an observer on the board of directors or similar rights to participate
in the governance or management of the portfolio company will not be
interpreted so as to violate this condition 6, if conditions
2(c)(iii)(A), (B) and (C) are met.
7. (a) If any Affiliated Fund or any Regulated Fund elects to sell,
exchange or otherwise dispose of an interest in a security that was
acquired in a Co-Investment Transaction, the applicable Advisers will:
(i) Notify each Regulated Fund that participated in the Co-
Investment Transaction of the proposed disposition at the earliest
practical time; and
(ii) formulate a recommendation as to participation by each
Regulated Fund in the disposition.
(b) Each Regulated Fund will have the right to participate in such
disposition on a proportionate basis, at the same price and on the same
terms and conditions as those applicable to the participating
Affiliated Funds and Regulated Funds.
(c) A Regulated Fund may participate in such disposition without
obtaining prior approval of the Required Majority if: (i) The proposed
participation of each Regulated Fund and each Affiliated Fund in such
disposition is proportionate to its outstanding investments in the
issuer immediately preceding the disposition; (ii) the Board of the
Regulated Fund has approved as being in the best interests of the
Regulated Fund the ability to participate in such dispositions on a pro
rata basis (as described in greater detail in the application); and
(iii) the Board of the Regulated Fund is provided on a quarterly basis
with a list of all dispositions made in accordance with this condition.
In all other cases, the Adviser will provide its written recommendation
as to the Regulated Fund's participation to the Eligible Directors, and
the Regulated Fund will participate in such disposition solely to the
extent that a Required Majority determines that it is in the Regulated
Fund's best interests.
(d) Each Affiliated Fund and each Regulated Fund will bear its own
expenses in connection with any such disposition.
8. (a) If any Affiliated Fund or any Regulated Fund desires to make
a Follow-On Investment in a portfolio company whose securities were
acquired in a Co-Investment Transaction, the applicable Advisers will:
(i) Notify each Regulated Fund that participated in the Co-
Investment Transaction of the proposed transaction at the earliest
practical time; and
(ii) formulate a recommendation as to the proposed participation,
including the amount of the proposed Follow-On Investment, by each
Regulated Fund.
(b) A Regulated Fund may participate in such Follow-On Investment
without obtaining prior approval of the Required Majority if: (i) The
proposed participation of each Regulated Fund and each Affiliated Fund
in such investment is proportionate to its outstanding investments in
the issuer immediately preceding the Follow-On Investment; and (ii) the
Board of the Regulated Fund has approved as being in the best interests
of the Regulated Fund the ability to participate in Follow-On
Investments on a pro rata basis (as described in greater detail in the
application). In all other cases, the Adviser will provide its written
recommendation as to the Regulated Fund's participation to the Eligible
Directors, and the Regulated Fund will participate in such Follow-On
Investment solely to the extent that a Required Majority determines
that it is in the Regulated Fund's best interests.
(c) If, with respect to any Follow-On Investment:
(i) The amount of the opportunity is not based on the Regulated
Funds' and the Affiliated Funds' outstanding
[[Page 9361]]
investments immediately preceding the Follow-On Investment; and
(ii) the aggregate amount recommended by the Adviser to be invested
by the Regulated Fund in the Follow-On Investment, together with the
amount proposed to be invested by the other participating Regulated
Funds and the Affiliated Funds in the same transaction, exceeds the
amount of the opportunity;
then the amount invested by each such party will be allocated among
them pro rata based on each participant's Available Capital for
investment in the asset class being allocated, up to the amount
proposed to be invested by each.
(d) The acquisition of Follow-On Investments as permitted by this
condition will be considered a Co-Investment Transaction for all
purposes and subject to the other conditions set forth in the
application.
9. The Non-Interested Directors of each Regulated Fund will be
provided quarterly for review all information concerning Potential Co-
Investment Transactions and Co-Investment Transactions, including
investments made by other Regulated Funds or Affiliated Funds that the
Regulated Fund considered but declined to participate in, so that the
Non-Interested Directors may determine whether all investments made
during the preceding quarter, including those investments that the
Regulated Fund considered but declined to participate in, comply with
the conditions of the Order. In addition, the Non-Interested Directors
will consider at least annually the continued appropriateness for the
Regulated Fund of participating in new and existing Co-Investment
Transactions.
10. Each Regulated Fund will maintain the records required by
section 57(f)(3) of the Act as if each of the Regulated Funds were a
BDC and each of the investments permitted under these conditions were
approved by the Required Majority under section 57(f) of the Act.
11. No Non-Interested Director of a Regulated Fund will also be a
director, general partner, managing member or principal, or otherwise
an ``affiliated person'' (as defined in the Act) of an Affiliated Fund.
12. The expenses, if any, associated with acquiring, holding or
disposing of any securities acquired in a Co-Investment Transaction
(including, without limitation, the expenses of the distribution of any
such securities registered for sale under the Securities Act) will, to
the extent not payable by the Advisers under their respective
investment advisory agreements with Affiliated Funds and the Regulated
Funds, be shared by the Regulated Funds and the Affiliated Funds in
proportion to the relative amounts of the securities held or to be
acquired or disposed of, as the case may be.
13. Any transaction fee \12\ (including break-up or commitment fees
but excluding broker's fees contemplated by section 17(e) or 57(k) of
the Act, as applicable), received in connection with a Co-Investment
Transaction will be distributed to the participating Regulated Funds
and Affiliated Funds on a pro rata basis based on the amounts they
invested or committed, as the case may be, in such Co-Investment
Transaction. If any transaction fee is to be held by an Adviser pending
consummation of the transaction, the fee will be deposited into an
account maintained by such Adviser at a bank or banks having the
qualifications prescribed in section 26(a)(1) of the Act, and the
account will earn a competitive rate of interest that will also be
divided pro rata among the participating Regulated Funds and Affiliated
Funds based on the amounts they invest in such Co-Investment
Transaction. None of the Affiliated Funds, the Advisers, the other
Regulated Funds or any affiliated person of the Regulated Funds or
Affiliated Funds will receive additional compensation or remuneration
of any kind as a result of or in connection with a Co-Investment
Transaction (other than (a) in the case of the Regulated Funds and the
Affiliated Funds, the pro rata transaction fees described above and
fees or other compensation described in condition 2(c)(iii)(C); and (b)
in the case of an Adviser, investment advisory fees paid in accordance
with the agreement between the Adviser and the Regulated Fund or
Affiliated Fund.
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\12\ Applicants are not requesting and the Commission is not
providing any relief for transaction fees received in connection
with any Co-Investment Transaction.
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14. If the Holders own in the aggregate more than 25 percent of the
Shares of a Regulated Fund, then the Holders will vote such Shares as
directed by an independent third party when voting on (1) the election
of directors; (2) the removal of one or more directors; or (3) any
other matter under either the Act or applicable state law affecting the
Board's composition, size or manner of election.
15. The TPC Proprietary Accounts will not be permitted to invest in
a Potential Co-Investment Transaction except to the extent the demand
from the Regulated Funds and the other Affiliated Funds is less than
the total investment opportunity.
16. Each Adviser will maintain written policies and procedures
reasonably designed to ensure compliance with the foregoing conditions.
These policies and procedures will require, among other things, that
each Adviser will be notified of all Potential Co-Investment
Transactions that fall within the then-current Objectives and
Strategies of any Regulated Fund it advises and will be given
sufficient information to make its independent determination and
recommendations under conditions 1, 2(a), 7 and 8.
17. Each Regulated Fund's chief compliance officer, as defined in
rule 38a-1(a)(4), will prepare an annual report for its Board that
evaluates (and documents the basis of that evaluation) the Regulated
Fund's compliance with the terms and conditions of the application and
the procedures established to achieve such compliance.
For the Commission, by the Division of Investment Management,
under delegated authority.
Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2018-04370 Filed 3-2-18; 8:45 am]
BILLING CODE 8011-01-P
