Form SC 13D Investcorp Credit Management Bdc, Inc.

General statement of acquisition of beneficial ownership

Published: 2019-10-04 12:12:02
Submitted: 2019-10-04
formsc13d.htm SC 13D


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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934
(Amendment No.   )

Investcorp Credit Management BDC, Inc.
(Name of Issuer)
 
Common Stock, $0.001 Par Value Per Share
(Title of Class of Securities)
 
12574Q103
(CUSIP Number)
 
Investcorp BDC Holdings Limited
Century Yard
Cricket Square, P.O. Box 1111
Grant Cayman KY1-1102, Cayman Islands BWI
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
 
October 2, 2019
(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ☐

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).



CUSIP No. 12574Q103
 
1.
Names of Reporting Persons

Investcorp Credit Management US LLC
 
 
2.
Check the Appropriate Box if a Member of a Group (See Instructions)
   
(a)
   
(b)
 
 
3.
SEC Use Only
 
 
4.
Source of Funds (See Instructions)
OO
 
 
5.
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     ☐
 
 
6.
Citizenship or Place of Organization
Delaware
 
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With
7.
Sole Voting Power
-0-
 
8.
Shared Voting Power
6,002,924 shares of Common Stock
 
9.
Sole Dispositive Power
-0-
 
10.
Shared Dispositive Power
6,002,924 shares of Common Stock
 
 
11.
Aggregate Amount Beneficially Owned by Each Reporting Person
6,002,924 shares of Common Stock
 
 
12.
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   ☐
 
 
13.
Percent of Class Represented by Amount in Row (11)
44.0%
 
 
14.
Type of Reporting Person (See Instructions)
OO





CUSIP No. 12574Q103
 
1.
Names of Reporting Persons

Investcorp BDC Holdings Limited
 
 
2.
Check the Appropriate Box if a Member of a Group (See Instructions)
   
(a)
   
(b)
 
 
3.
SEC Use Only
 
 
4.
Source of Funds (See Instructions)
OO
 
 
5.
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     ☐
 
 
6.
Citizenship or Place of Organization
Cayman Islands
 
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With
7.
Sole Voting Power
-0-
 
8.
Shared Voting Power
6,002,924 shares of Common Stock
 
9.
Sole Dispositive Power
-0-
 
10.
Shared Dispositive Power
6,002,924 shares of Common Stock
 
 
11.
Aggregate Amount Beneficially Owned by Each Reporting Person
6,002,924 shares of Common Stock
 
 
12.
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   ☐
 
 
13.
Percent of Class Represented by Amount in Row (11)
44.0%
 
 
14.
Type of Reporting Person (See Instructions)
CO




CUSIP No. 12574Q103
 
1.
Names of Reporting Persons

SIPCO Holdings Limited
 
 
2.
Check the Appropriate Box if a Member of a Group (See Instructions)
   
(a)
   
(b)
 
 
3.
SEC Use Only
 
 
4.
Source of Funds (See Instructions)
OO
 
 
5.
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     ☐
 
 
6.
Citizenship or Place of Organization
Cayman Islands
 
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With
7.
Sole Voting Power
-0-
 
8.
Shared Voting Power
6,002,924 shares of Common Stock
 
9.
Sole Dispositive Power
-0-
 
10.
Shared Dispositive Power
6,002,924 shares of Common Stock
 
 
11.
Aggregate Amount Beneficially Owned by Each Reporting Person
6,002,924 shares of Common Stock
 
 
12.
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   ☐
 
 
13.
Percent of Class Represented by Amount in Row (11)
44.0%
 
 
14.
Type of Reporting Person (See Instructions)
CO




CUSIP No. 12574Q103
 
1.
Names of Reporting Persons

Investcorp S.A.
 
 
2.
Check the Appropriate Box if a Member of a Group (See Instructions)
   
(a)
   
(b)
 
 
3.
SEC Use Only
 
 
4.
Source of Funds (See Instructions)
OO
 
 
5.
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     ☐
 
 
6.
Citizenship or Place of Organization
Cayman Islands
 
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With
7.
Sole Voting Power
-0-
 
8.
Shared Voting Power
6,002,924 shares of Common Stock
 
9.
Sole Dispositive Power
-0-
 
10.
Shared Dispositive Power
6,002,924 shares of Common Stock
 
 
11.
Aggregate Amount Beneficially Owned by Each Reporting Person
6,002,924 shares of Common Stock
 
 
12.
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   ☐
 
 
13.
Percent of Class Represented by Amount in Row (11)
44.0%
 
 
14.
Type of Reporting Person (See Instructions)
CO



Explanatory Note

This statement on Schedule 13D (this “Schedule 13D”) is being filed to report beneficial ownership of certain shares of common stock, par value $0.001 per share (the “Common Stock”) of Investcorp Credit Management BDC, Inc., a Maryland corporation (the “Issuer”).  On June 26, 2019, as previously reported by the Issuer and as described below, Investcorp BDC Holdings Limited (“IBDC”) and Investcorp Credit Management US LLC (“ICM”) entered into certain arrangements with the Issuer and its stockholders as a result of which IBDC and ICM may be beneficial owners (within the meaning of Rule 13d-1 under the Exchange Act) of certain shares of the Issuer’s common stock.

This Schedule 13D is filed by (i)  IBDC, (ii) ICM, (iii)  SIPCO Holdings Limited (“SIPCO”), a Cayman Islands company and (iv) Investcorp S.A., a Cayman Islands company (“Investcorp,” and together with IBDC, ICM and SIPCO, the “Reporting Persons”).  SIPCO and Investcorp expressly disclaim status as a “group” with the other Reporting Persons for purposes of this Schedule 13D.  All percentages reported herein are calculated based upon 13,625,533 shares of Common Stock outstanding as of September 17, 2019, as reported in the Issuer’s Preliminary Proxy Statement on Schedule 14A, filed with the Securities and Exchange Commission on September 17, 2019.

Item 1. Security and Issuer

(a)  This Schedule 13D relates to the Common Stock of the Issuer.

(b)  The principal executive office of the Issuer is located at 65 East 55th Street, 15th Floor, New York, NY 10022.

Item 2. Identity and Background

For information with respect to the identity and background of each director or general partner and executive officer, as applicable, of the Reporting Persons, see Schedule 1 attached hereto.

(a)  The persons and entities filing this Schedule 13D are:


(i)
IBDC, a Cayman Islands company


(ii)
ICM, a Delaware limited liability company


(iii)
SIPCO, a Cayman Islands company


(iv)
Investcorp, a Cayman Islands company

(b)  The address of the principal place of business of:


(i)
IBDC is Century Yard, Cricket Square, P.O. Box 1111, Grant Cayman KY1-1102, Cayman Islands, BWI


(ii)
ICM is 280 Park Avenue, 36th Floor, New York, New York 10017


(iii)
SIPCO is Century Yard, Cricket Square, P.O. Box 1111, Grant Cayman KY1-1102, Cayman Islands, BWI


(iv)
Investcorp is Century Yard, Cricket Square, P.O. Box 1111, Grant Cayman KY1-1102, Cayman Islands, BWI

(c)  The principal business of:


(i)
IBDC is investing in companies that provide financial services


(ii)
ICM is advising companies that provide financial services


(iii)
SIPCO is a passive holding company that has no operations and no employees


(iv)
Investcorp, through its subsidiaries, acts as a principal and intermediary in international investment transactions

(d)  During the last five years, none of the Reporting Persons has been convicted in any criminal proceeding (excluding traffic violations or similar misdemeanors).

(e)  During the last five years, none of the Reporting Persons has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

(f) The Citizenship or Place of Organization for the Reporting Persons is:


(i)
IBDC – Cayman Islands


(ii)
ICM – Delaware


(iii)
SIPCO – Cayman Islands


(iv)
Investcorp – Cayman Islands




Item 3. Source and Amount of Funds or Other Consideration

As of the date of this filing, IBDC has used approximately $19,000 of contributions from its members to acquire Common Stock of the Issuer.  In the future, the Reporting Persons may use funds derived from contributions to their members to acquire Common Stock.

Item 4. Purpose of Transaction

The Reporting Persons entered into the Agreements to facilitate their business and for investment purposes.  The Reporting Persons intend to maintain the existing business relationships between ICM and the Issuer.  The information in Item 6 is incorporated by reference herein.  Except as described in this Schedule 13D, none of the Reporting Persons or, to the best of their knowledge, any of the persons listed in Schedule 1 to this Schedule 13D, none of the Reporting Persons have a present plan or proposal that relates to or would result in any of the actions specified in clauses (a) through (j) of Item 4 of Schedule 13D.

Item 5. Interest in Securities of the Issuer

(a), (b)  See cover page for IBDC.  As of the date hereof, IBDC owns 2,920 shares of Common Stock purchased in open market transactions.  As described in Item 6, IBDC has agreed: (i) to purchase from the Issuer in a private placement transaction 680,985 newly issued shares of Common Stock at the most recently determined net asset value per share of the Common Stock at the time of purchase, subject to adjustments, (ii) to purchase in open market transactions 680,985 shares of Common Stock prior to August 30, 2021 and (iii)  if IBDC does not own at least 10% of the Common Stock before August 30, 2021, IBDC has agreed to purchase from the Issuer, and the Issuer has agreed to issue and sell, the remaining balance at a price per share equal to the greater of the then-current net asset value per share and the market price of the Common Stock on Nasdaq.

See cover pages for ICM, SIPCO and Investcorp.  Any Common Stock shown as being beneficially owned by ICM, SIPCO or Investcorp is the same Common Stock listed as being beneficially owned by IBDC.  As a result of the arrangements described in Item 6, the Reporting Persons may be deemed to be part of a group with the Cyrus Funds (as defined below) and part of a group with Stifel (as defined below) and, as a result, may be deemed to beneficially own or have voting or dispositive power over shares of Common Stock owned by each of them, aggregating to 6,000,004 shares of Common Stock, representing approximately 44.0% of outstanding Common Stock, representing.

ICM is an affiliate of IBDC.  Investcorp is the indirect parent corporation of the general partners of certain investment funds that indirectly own IBDC and ICM.  SIPCO may be deemed to control Investcorp through its ownership of a majority of the stock of a company that indirectly owns a majority of Investcorp.  Investcorp and SIPCO may be deemed to share beneficial ownership, voting and dispositive power over any Common Stock beneficially owned by IBDC or ICM.

(c) None of the Reporting Persons has effected any transaction in shares of Common Stock during the past 60 days, except as otherwise disclosed in this Schedule 13D, including on Schedule A hereto.

The information provided and incorporated by reference in Item 3 and Item 6 is hereby incorporated by reference in this Item 5.

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

The descriptions below of the SPA, Voting Agreements and ROFO Agreements (each as defined below below) are intended as a summary only and each is qualified in its entirety by reference to copies of such agreements filed as exhibits to this Schedule 13D and incorporated by reference herein.  The information provided and incorporated by reference in Items 3, 4 and 5 is hereby incorporated by reference herein.  Other than as described in this Schedule 13D, to the best of the Reporting Persons’ knowledge, there are no other contracts, arrangements, understandings or relationships (legal or otherwise) among the persons named in Item 2 and between such persons and any person with respect to any securities of the Issuer.

Stock Purchase and Transaction Agreement

As previously announced by the Issuer, on June 26, 2019, the Issuer entered into a Stock Purchase and Transaction Agreement (the “SPA”) by and between the Company and IBDC, an affiliate of ICM. The SPA was entered into simultaneously with ICM’s entrance into a definitive interest purchase agreement to acquire a majority ownership interest in CM Investment Partners LLC (the “Adviser”), the investment adviser to the Company.

The transactions contemplated by the SPA closed on August 30, 2019, at which time ICM and the Issuer entered into a new advisory agreement (the “Advisory Agreement”), pursuant to which the Adviser acts as investment adviser to the Issuer, and a new administration agreement, pursuant to which the Adviser acts as the Issuer’s administrator.

Voting Agreements

ICM has entered into separate Voting Agreement (collectively, the “Voting Agreements”) with (i) certain funds managed by Cyrus Capital Partners, L.P. (the “Cyrus Funds”) and (ii) Stifel Venture Corp. (“Stifel”).  The Voting Agreements provide that the counterparties will participate in stockholder meetings and vote Common Stock owned by them on the date of the agreements (i) against, or otherwise not in favor of, electing one or more nominees to the Issuer’s Board proposed by a stockholder of the Issuer in connection with a proxy contest, (ii) against, or otherwise not in favor of, terminating the Advisory Agreement or approving any investment advisory agreement between the Issuer and any adviser other than ICM and (iii) in favor of renewing or approving the Advisory Agreement.  Each Voting Agreement provides that such voting arrangements will terminate upon the earliest of (i) ICM no longer serving as the investment adviser to the Issuer, (ii) IBDC and its affiliates no longer owning, in the aggregate, at least 50% of the equity interests in ICM, (iii) the Cyrus Funds (along with its affiliates) or Stifel (along with its affiliates), as applicable, owning less than 7.5% of the Common Stock, (iv) the date, if any, on which Michael C. Mauer is no longer the Co-Chief Investment Officer of ICM due to his termination without cause by ICM and (v) August 30, 2021 (the period prior to such determination, the “Restricted Voting Period”).




The Voting Agreements also provide that the Cyrus Funds and Stifel, respectively, shall not call a special meeting of stockholders to elect, remove or replace directors, to terminate the Advisory Agreement or to vote on any investment advisory agreement between the Issuer and any adviser other than ICM, nor will they grant any proxies or powers of attorney with respect to their Common Stock.  This Agreement shall terminate upon the earlier of (a) the date of termination of the SPA in accordance with its terms, (b) the date on which the parties agree in writing to terminate the Voting Agreement, (c) the expiration of the Restricted Voting Period and (d) the entry into a definitive agreement between the parties pursuant to which IBDC acquires all of the counterparty’s Common Stock.

Right of First Offer Agreements

On August 30, 2019, IBDC entered into separate Right of First Offer Agreements (collectively, the “ROFO Agreements”) with (i) the Cyrus Funds and (ii) Stifel.  The ROFO Agreements provided that the Cyrus Funds and Stifel, as applicable, shall not sell, transfer, pledge, hypothecate, gift, bequest, devise, assign or otherwise dispose of Common Stock owned by them on the date of the agreements, unless pursuant to a permitted transfer or as set forth below.  Each ROFO Agreement provides that such arrangements will terminate upon the earliest of (i) ICM no longer serving as the investment adviser to the Issuer, (ii) IBDC and its affiliates no longer owning, in the aggregate, at least 50% of the equity interests in ICM, (iii) the Cyrus Funds (along with its affiliates) or Stifel (along with its affiliates), as applicable, owning less than 10% of the Common Stock and (iv) December 26, 2020 (the period prior to such determination, the “ROFO Period”).

If the Cyrus Funds or Stifel, as applicable, proposes to sell its Common Stock during the ROFO Period, it must provide notice to IBDC of the terms of the proposed sale at least three business days prior to the good faith estimate of the desired sale date.  IBDC may then purchase any or all of the Common Stock proposed to be sold, subject to certain minimum purchase amounts.  The foregoing right of first offer will not apply to the following permitted transfers: (i) transfer to affiliates that agree to be bound by the applicable ROFO Agreement, (ii) repurchases by the Issuer, (iii) certain sales pursuant to an effective registration statement and (iv) certain transfers pursuant to Rule 144 under the Securities Act of 1933.

Item 7. Material to Be Filed as Exhibits










Schedule A
 
Set forth below is a list of open market transactions in shares of the Common Stock which have been effected by the Reporting Persons in the past 60 days.  All such transactions were open market transactions.  The prices reported below are weighted average prices.  The shares were sold in multiple transactions at prices in the ranges reported below.  The Reporting Persons undertake to provide to the Company, any security holder of the Company, or the staff of the Securities and Exchange Commission, upon request, full information regarding the number of shares sold at each separate price within the ranges set forth below.

Trade Date
Entity
Purchase or Sale
 
Quantity
   
Weighted Average Price
 
Price Ranges
10/2/19
ICM
Purchase
   
2,000
   
$
6.5475
 
$6.45 – $6.64
10/3/19
ICM
Purchase
   
920
    $
6.5040
 
$6.48 – $6.515




SIGNATURES

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Dated: October 4, 2019

INVESTCORP BDC HOLDINGS LIMITED, by The Director Ltd.
 
INVESTCORP CREDIT MANAGEMENT US LLC
         
         
By:
/s/ Toni Pinkerton
 
By:
/s/ Patrick Maloney
 
Name: Toni Pinkerton
   
Name: Patrick Maloney
 
Title: Director
   
Title: General Counsel
         
         
SIPCO HOLDINGS LIMITED
 
INVESTCORP S.A.
         
         
By:
/s/ Rasha Sabkar
 
By:
/s/ Daniele Vecchi
 
Name: Rasha Sabkar
   
Name: Daniele Vecchi
 
Title: Director
   
Title: Director

The original statement shall be signed by each person on whose behalf the statement is filed or his authorized representative. If the statement is signed on behalf of a person by his authorized representative (other than an executive officer or general partner of the filing person), evidence of the representative’s authority to sign on behalf of such person shall be filed with the statement:  provided, however, that a power of attorney for this purpose which is already on file with the Commission may be incorporated by reference. The name and any title of each person who signs the statement shall be typed or printed beneath his signature.

Attention: Intentional misstatements or omissions of fact
constitute Federal criminal violations (See 18 U.S.C. 1001)



SCHEDULE I

SCHEDULE I

INVESTCORP S.A.
DIRECTORS

Name
 
Present
Business Address
 
Present
Principal Occupation
 
Citizenship
             
Rishi Kapoor
 
Investcorp House
P.O. Box 5340
Manama
Kingdom of Bahrain
 
Director
 
Indian
             
HE Mohammed Bin Mahfoodh Alardhi
 
Investcorp House
P.O. Box 5340
Manama
Kingdom of Bahrain
 
Director.
 
Omani
             
Daniele Vecchi
 
Investcorp House
P.O. Box 5340
Manama
Kingdom of Bahrain
 
Director.
 
Italian
             
Rasha Sabkar
 
Investcorp House
P.O. Box 5340
Manama
Kingdom of Bahrain
 
Director
 
Bahraini


INVESTCORP S.A.
EXECUTIVE OFFICERS

Name
 
Position
 
Present
Business Address
 
Present
Principal Occupation
 
Citizenship
                 
Rishi Kapoor
 
Chief Financial Officer
 
Investcorp House
P.O. Box 5340
Manama
Kingdom of Bahrain
 
Co-Chief Executive Officer of Investcorp Holdings S.A.
 
Indian
                 
Paget-Brown Trust Company Ltd.
 
Assistant Secretary
 
PO Box 1111
George Town
Grand Cayman KY1-1102
Cayman Islands
 
Providing Corporate Management Services
 
Cayman Islands
                 
Rasha Sabkar
 
Secretary
 
Investcorp House
P.O. Box 5340
Manama
Kingdom of Bahrain
 
Secretary of Investcorp Holdings S.A.
 
Bahraini
                 
HE Mohammed Bin Mahfoodh Alardhi
 
Executive Chairman
 
Investcorp House
P.O. Box 5340
Manama
Kingdom of Bahrain
 
Executive Chairman of Investcorp Holdings S.A.
 
Omani
                 
Hazem Ben-Gacem
 
Co-Chief Executive Officer
 
Investcorp House
P.O. Box 5340
Manama
Kingdom of Bahrain
 
Co-Chief Executive Officer of Investcorp Holdings S.A.
 
British






SIPCO HOLDINGS LIMITED
DIRECTORS

Name
 
Present
Business Address
 
Present
Principal Occupation
 
Citizenship
             
Mohammed Bin Mahfoodh Alardhi
 
Investcorp House
P.O. Box 5340
Manama
Bahrain
 
Director
 
Omani
             
Rasha Sabkar
 
Investcorp House
P.O. Box 5340
Manama
Kingdom of Bahrain
 
Director
 
Bahraini
             
Mark Horncastle
 
Investcorp International Ltd
48 Grosvenor Street
London W1K 3HW UK
 
Director
 
British
             
Ghassan Abdulaal
 
Investcorp House
P.O. Box 5340
Manama
Bahrain
 
 Director
 
Bahraini
             
Jan Erik Back
 
Investcorp House
P.O. Box 5340
Manama
Bahrain
 
Director
 
Swedish


SIPCO HOLDINGS LIMITED
EXECUTIVE OFFICERS

Name
 
Position
 
Present
Business Address
 
Present
Principal Occupation
 
Citizenship
                 
Paget-Brown Trust Company Ltd.
 
Secretary
 
Boundary Hall
Cricket Square
P.O. Box 1111
George Town,
Grand Cayman KY1-1102,
Cayman Islands
 
Providing Corporate
Management Services
 
Cayman Islands
                 
Jan Erik Back
 
Chief Financial
Officer
 
Investcorp House
P.O. Box 5340
Manama
Bahrain
 
Chief Financial Officer of Investcorp Holdings S.A..
 
Swedish
                 
Mohammed Bin Mahfoodh Alardhi
 
Executive Chairman And Chief Executive Officer
 
 
Investcorp House
P.O. Box 5340
Manama
Bahrain
 
Executive Chairman of Investcorp Holdings S.A..
 
Omani
                 
Mark Horncastle
 
Assistant Secretary and General Counsel
 
Investcorp International Ltd
48 Grosvenor Street
London W1K 3HW UK
 
General Counsel of Investcorp Holdings S.A.
 
British




INVESTCORP BDC HOLDINGS LIMITED
MANAGERS

Name
 
Present
Business Address
 
Present
Principal Occupation
 
Citizenship
             
The Director Limited
 
Boundary Hall
Cricket Square
P.O. Box 1111
George Town,
Grand Cayman KY1-1102,
Cayman Islands
 
Director
 
Cayman Islands


INVESTCORP BDC HOLDINGS LIMITED
OFFICERS

Name
 
Position
 
Present
Business Address
 
Present
Principal Occupation
 
Citizenship
                 
Paget-Brown Trust Company Ltd.
 
Secretary
 
Boundary Hall
Cricket Square
P.O. Box 1111
George Town,
Grand Cayman KY1-1102,
Cayman Islands
 
Providing Corporate
Management Services
 
Cayman Islands


INVESTCORP CREDIT MANAGEMENT US LLC
MANAGERS

Name
 
Present
Business Address
 
Present
Principal Occupation
 
Citizenship
             
Investcorp International Holdings, Inc.
 
280 Park Avenue
Floor 39
New York, NY 10017
 
Director
 
US


INVESTCORP CREDIT MANAGEMENT US LLC
OFFICERS

Name
 
Position
 
Present
Business Address
 
Present
Principal Occupation
 
Citizenship
                 
James A. Feeley III
 
 
Co Head ICM US
 
 
Investcorp International Holdings, Inc.
280 Park Avenue
Floor 39
New York, NY 10017
 
Co Head ICM UC
 
US
                 
Michael Mauer
 
Co Head ICM Us
 
Investcorp International Holdings, Inc.
280 Park Avenue
Floor 39
New York, NY 10017
 
Co Head ICM US
 
US
                 
Patrick Maloney
 
 
General Counsel & Chief Compliance Officer
 
 
Investcorp International Holdings, Inc.
280 Park Avenue
Floor 39
New York, NY 10017
 
 
General Counsel & Chief Compliance Officer
 
 
US
 
                 
Gene Basov
 
Chief Financial Officer
 
Investcorp International Holdings, Inc.
280 Park Avenue
Floor 39
New York, NY 10017
 
Chief Financial Officer
 
US




ex99_1.htm EXHIBIT B


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Exhibit B

SUPPORT AND VOTING AGREEMENT
 
This SUPPORT AND VOTING AGREEMENT, dated as of June 26, 2019 (this “Agreement”), is by and among Cyrus Opportunities Master Fund II, Ltd., Crescent 1, L.P., CRS Master Fund, L.P. and Cyrus Select Opportunities Master Fund, Ltd. (each, a “Stockholder” and collectively, “Stockholders”), and Investcorp Credit Management US LLC (“Buyer”).
 
RECITALS
 
WHEREAS, each Stockholder is the record and beneficial owner of the number of shares of the common stock, par value $0.001 per share (the “Common Stock”), of CM Finance Inc, a Maryland corporation (the “Company”), set forth opposite its name on Exhibit A hereto (the “Shares,” together with any additional Shares or other voting securities of the Company of which such Stockholder acquires record or beneficial ownership after the date hereof, including, without limitation, by purchase, as a result of a stock dividend, stock split, recapitalization, combination, reclassification, exchange or change of such shares shall be such Stockholder’s “Covered Shares”);
 
WHEREAS, Stockholders executed and delivered to the Company that certain Irrevocable Proxy, dated as of February 5, 2014, relating to the Shares (the “Irrevocable Proxy”);
 
WHEREAS, Buyer, CMIP Holdings LP, an Affiliate of Stockholders, Stifel Venture Corp. (“Stifel”) and the other members of CM Investment Partners LLC, a Delaware limited liability company (the “Adviser”), propose to enter into, simultaneously herewith, an Interest Purchase Agreement (the “IPA”) which provides, among other things, that upon the terms and subject to the conditions contained therein, Buyer will purchase all of the interests in the Adviser owned by CMIP Holdings LP and Stifel;
 
WHEREAS, Investcorp BDC Holdings Limited, an Affiliate of Buyer (“Investcorp BDC” and together with Buyer, the “Investcorp Parties”), and the Company propose to enter into, simultaneously herewith, a Stock Purchase and Transaction Agreement (the “SP&TA”; terms used but not defined in this Agreement shall have the meanings ascribed to them in the SP&TA), which provides, among other things, that upon the terms and subject to the conditions contained therein, (i) a new Investment Advisory Agreement will be entered into by the Adviser and the Company at closing and (ii) Investcorp BDC will purchase a certain number of shares of Common Stock, both from the Company and third parties in open-market purchases;
 
WHEREAS, as a condition and inducement to the Investcorp Parties’ willingness to enter into the IPA and the SP&TA, respectively (together, the “Purchase Agreements” and each, a “Purchase Agreement”), and to proceed with the transactions contemplated thereby, Buyer and Stockholders are entering into this Agreement; and
 
WHEREAS, each Stockholder acknowledges that the Investcorp Parties (i) are entering into each of their respective Purchase Agreements in reliance on the representations, warranties, covenants and other agreements of such Stockholder set forth in this Agreement and (ii) would not enter into either Purchase Agreement in the absence of such Stockholder entering into this Agreement.

 
AGREEMENT
 
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, Buyer and Stockholders hereby agree as follows:
 
1.          Termination of Irrevocable Proxy.  Pursuant to and in accordance with Section 7.13 of the IPA and Section 7.06(b) of the SP&TA, at least ten Business Days prior to the Stockholder Meeting to be held in accordance with Section 7.02 of the SP&TA, the Company and Stockholders shall terminate the Irrevocable Proxy.
 
2.          Agreement to Vote:  Pre-Closing Period.  Each Stockholder hereby irrevocably and unconditionally agrees to vote, at the Stockholder Meeting and at any adjournment thereof, all of the Covered Shares:
 
(a)          in favor of the Company Stockholder Proposal and the proposal to adjourn the Stockholder Meeting, if necessary or appropriate, in order to allow the Company to solicit additional proxies with respect to the Company Stockholder Proposal; and
 
(b)          against, or otherwise not in favor of, any (i) Alternative Proposal, (ii) other proposals of any other Company Stockholder or (iii) other action, agreement, proposal or transaction that would reasonably be expected to impede, delay or prevent the approval of the Company Stockholder Proposal or any other transactions contemplated by the Purchase Agreements, or result in a breach of any representation, warranty, covenant or agreement of the Company under the SP&TA.
 
Stockholders acknowledge receipt of a copy of the SP&TA.
 
3.          Agreements Regarding Voting:  Post-Closing Period.  During the period from and after the Initial Closing until the earlier of:
 
(a)          the Adviser (or a successor thereof in which Buyer and its Affiliates own, in the aggregate, at least 50% of the equity interests) no longer serving as the investment adviser to the Company;
 
(b)          Buyer and its Affiliates no longer owning, in the aggregate, at least 50% of the equity interests in the Adviser (or a successor thereof that serves as investment adviser to the Company);
 
(c)          Stockholders and their Affiliates no longer owning, in the aggregate, at least 7.5% of the outstanding shares of the Common Stock;
 
(d)          the date, if any, on which Michael C. Mauer is no longer the Co-Chief Investment Officer of the Adviser due to his termination without cause by the Adviser, as “cause” is defined in the Adviser’s governing agreements or in any employment agreement between Michael C. Mauer and the Adviser; and
 
(e)          the second anniversary of the Initial Closing Date (such period, the “Restricted Period”),
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Each Stockholder agrees that it shall, at any meeting of the Company Stockholders (whether annual or special and whether or not an adjourned or postponed meeting), however called, (i) appear at such meeting or otherwise cause the Covered Shares to be counted as present thereat for the purpose of establishing a quorum, and (ii) vote, or cause to be voted at such meeting, all Covered Shares (whether owned by such Stockholder or Affiliates of such Stockholder):
 
(A)          against, or otherwise not in favor of, electing one or more nominees to the Company Board proposed by a Company Stockholder in connection with a proxy contest;
 
(B)          against, or otherwise not in favor of, (1) terminating the Investment Advisory Agreement as then in effect between the Adviser (or a successor thereof) and the Company, and (2) a proposal to approve any investment advisory agreement between the Company and an adviser other than the Adviser (or a successor thereof or another adviser of which Buyer and its Affiliates own at least 50% of the equity interests); and
 
(C)          if put to a vote of the Company Stockholders, in favor of renewing or approving the Investment Advisory Agreement, as the same may be amended, between the Adviser (or a successor thereof) and the Company.
 
4.          Certain Covenants of Stockholder.  Each Stockholder hereby covenants and agrees that from and after the date hereof until the Termination Date (as defined below), such Stockholder shall not, and shall not authorize or permit any of its Affiliates to, directly or indirectly:
 
(a)          participate in the making of a written request of the Company Stockholders to call a special meeting of the stockholders to elect, remove or replace directors, to terminate the Investment Advisory Agreement or to vote upon any investment advisory agreement between the Company and an adviser other than the Adviser (or a successor thereof or another adviser of which Buyer and its Affiliates own at least 50% of the equity interests); or
 
(b)          grant any proxies or powers of attorney with respect to the Covered Shares, deposit any Covered Shares into a voting trust or enter into a voting agreement with respect to any Covered Shares.
 
For the avoidance of doubt, nothing herein shall prohibit or restrict any Stockholder from rehypothecation of its Shares in connection with a bona fide lending transaction as long as such Stockholder does not relinquish its rights to vote the Shares in connection therewith.
 
5.          Transfers of Covered Shares.
 
(a)          After the date hereof until the date on which the Company Stockholder Proposal is approved by the Company Stockholders, each Stockholder hereby agrees to not, directly or indirectly, without the prior written consent of Buyer (not to be unreasonably withheld, conditioned or delayed), sell, assign, transfer, pledge, exchange, tender, encumber or otherwise dispose of (including by merger, consolidation or otherwise by operation of law) (“Transfer”), or consent to the Transfer of, or enter into any contract, option, call or other arrangement or understanding with respect to the Transfer of (including by merger, consolidation or otherwise by operation of law), any Covered Shares, other than to such Stockholder’s Affiliates (provided that, if not already a party hereto, such Affiliates agree to be bound by this Agreement with respect to such Transferred Covered Shares).
 
(b)          Any purported Transfer in violation of this Section 5 shall be void.
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6.          No Inconsistent Agreements.  Each Stockholder covenants that it has not and will not (a) enter into any legally binding agreement that would restrict, limit or interfere in any material respect with the performance of such Stockholder’s obligations hereunder or (b) take action that would make any of its representations or warranties contained herein untrue or incorrect in any material respect or have the effect of preventing or disabling it from performing its obligations under this Agreement.
 
7.          Termination.  This Agreement shall terminate upon the earlier of (a) the date of termination of either Purchase Agreement in accordance with its terms, (b) the date on which Buyer and Stockholders agree in writing to terminate this Agreement, (c) the expiration of the Restricted Period and (d) the entry into a definitive agreement between Stockholders and Buyer pursuant to which Buyer will acquire all of the Covered Shares from Stockholders (the earliest such date being referred to herein as the “Termination Date”).  Upon any such termination of this Agreement, this Agreement shall no longer be in force or effect and each party hereto shall be released and discharged from its obligations hereunder and shall have no liability to any other party hereto with respect to this Agreement or such obligations; provided, however, that no termination of this Agreement shall relieve any party hereto from any liability incurred by any other party hereto as a result of an intentional breach of a material term or condition of this Agreement prior to such termination.
 
8.          Representations and Warranties of Stockholders.  Each Stockholder hereby represents and warrants to Buyer, severally and not jointly, that such Stockholder is the record and beneficial owner of the Shares, free and clear of Liens other than as created by this Agreement, as created pursuant to applicable Law (including securities Laws) and pursuant to the Irrevocable Proxy.  Each Stockholder has sole voting power, sole power of disposition and sole power to agree to all of the matters set forth in this Agreement, in each case with respect to all of such Shares with no limitations, qualifications or restrictions on such rights, subject to applicable Law (including securities Laws), the terms of this Agreement and the Irrevocable Proxy.  Other than the Shares, such Stockholder does not own beneficially or of record any (i) shares of capital stock or voting securities of the Company, (ii) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities of the Company or (iii) options or other rights to acquire from the Company any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company.  Other than pursuant to the Irrevocable Proxy, the Shares are not subject to any voting trust agreement or other contract to which such Stockholder is a party restricting or otherwise relating to the voting or Transfer (as defined below) of any Shares.
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9.          Further Assurances.  From time to time, at the reasonable request of Buyer and without further consideration or the incurrence of any cost or expense on the part of Stockholders, each Stockholder shall take such further action as may be reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
 
10.          Amendment and Modification.  This Agreement may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument in writing specifically designated as an amendment hereto and signed on behalf of each party hereto and otherwise as expressly set forth herein.
 
11.          Waiver.  No failure or delay of any party in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, or any course of conduct, preclude any other or further exercise thereof or the exercise of any other right or power.  The rights and remedies of the parties hereunder are cumulative and are not exclusive of any rights or remedies which they would otherwise have hereunder.  Any agreement on the part of a party to any such waiver shall be valid only if set forth in a written instrument executed and delivered by such party.
 
12.          Notices.  Each notice, request, demand or other communication under this Agreement will be in writing and will be deemed to have been duly given or made as follows:  (i) if sent by registered or certified mail in the United States, return receipt requested, then such communication will be deemed duly given and made upon receipt; (ii) if sent by nationally recognized overnight air courier (such as UPS or Federal Express), then such communication will be deemed duly given and made two Business Days after being sent; (iii) if sent by email before 5:00 p.m. (based on the time zone of the recipient) on any Business Day, then such communication will be deemed duly given and made when receipt is confirmed; (iv) if sent by email on a day other than a Business Day and receipt is confirmed, or if sent after 5:00 p.m. (based on the time zone of the recipient) on any Business Day and receipt is confirmed, then such communication will be deemed duly given and made on the Business Day following the date which receipt is confirmed; and (v) if otherwise personally delivered to a duly authorized representative of the recipient, then such communication will be deemed duly given and made when delivered to such authorized representative; provided that, in all cases, such notices, requests, demands and other communications are delivered to the address set forth below, or to such other address as any party will provide by like notice to the other parties to this Agreement:
 
if to Buyer, to:
 
c/o Investcorp Credit Management US LLC
280 Park Avenue, 36th Floor
New York, New York 10017
Attention:  Patrick Maloney
Email:  pmaloney@investcorp.com
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with a copy (which shall not constitute notice) to:
 
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166
Attention:  William Rustum
Email:  wrustum@gibsondunn.com
 
if to Stockholders, to:
 
c/o Cyrus Capital Partners, L.P.
65 East 55th Street, 35th Floor
New York, New York 10022
Attention:  Svetoslav Nikov and Jennifer Pulick
Email:  snikov@cyruscapital.com and jpulick@cyruscapital.com
 
with a copy (which shall not constitute notice) to:
 
Akin Gump Strauss Hauer & Feld LLP
One Bryant Park
New York, New York 10036
Attention:  Ackneil M. Muldrow III
Email:  tmuldrow@akingump.com
 
13.          Entire Agreement.  This Agreement represents the entire understanding of the parties hereto with reference to the subject matter hereof and supersedes any and all other oral or written agreements heretofore or theretofore made.
 
14.          Governing Law.  All disputes, claims or controversies arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, shall be governed by and construed in accordance with the Laws of the State of Delaware without regard to its rules of conflict of laws.
 
15.          Jurisdiction; WAIVER OF JURY TRIAL.  Each of the parties hereto hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the Court of Chancery of the State of Delaware, or to the extent such Court does not have subject matter jurisdiction, any federal court sitting in the State of Delaware (the “Chosen Courts”) for any litigation arising out of or relating to this Agreement (and agrees not to commence any litigation relating thereto except in such courts), waives any objection to the laying of venue of any such litigation in the Chosen Courts and agrees not to plead or claim in any Chosen Court that such litigation brought therein has been brought in any inconvenient forum.  Each of the parties hereto agrees, (i) to the extent such party is not otherwise subject to service of process in the State of Delaware, to appoint and maintain an agent in the State of Delaware as such party’s agent for acceptance of legal process and (ii) that service of process may also be made on such party in accordance with the notice provisions contained in Section 12 above.  Service made pursuant to (i) or (ii) above shall have the same legal force and effect as if served upon such party personally within the State of Delaware.  EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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16.          Assignment; Successors.  Neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned or delegated, in whole or in part, by operation of law or otherwise, by either party without the prior written consent of the other party.  Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and permitted assigns.
 
17.          Enforcement.  Each party acknowledges and agrees that in the event of any breach of this Agreement, the other party would be irreparably and immediately harmed and could not be made whole by monetary damages.  It is accordingly agreed that, with respect to any such breach, (a) the non-breaching party shall be entitled, in addition to any other remedy to which it may be entitled at law or in equity, to compel specific performance of this Agreement in any action as well as such damages as may be appropriate and (b) the breaching party will waive, in any action for specific performance, the defense of adequacy of a remedy at law and any requirement for the securing or posting of any bond in connection with any such action.
 
18.          Severability.  If any term, provision, covenant or restriction of this Agreement is held by a Chosen Court to be invalid, void, unenforceable or against its regulatory policy, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
 
19.          Counterparts.  This Agreement may be executed in two or more counterparts, including by facsimile or electronic transmission, which together shall constitute a single agreement.
 
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, Buyer and Stockholders have caused to be executed or executed this Agreement as of the date first written above.

 
INVESTCORP CREDIT MANAGEMENT US LLC
     
 
By:
/s/  Gene Basov
   
Name:  Gene Basov
   
Title:  CFO


[Signature Page to Support and Voting Agreement - Cyrus]



 
CYRUS OPPORTUNITIES MASTER FUND II, LTD.
       
 
CRESCENT 1, L.P.
       
 
CRS MASTER FUND, L.P.
       
 
CYRUS SELECT OPPORTUNITIES MASTER FUND, LTD.
       
 
By:
Cyrus Capital Partners, L.P., as investment manager
       
       
   
By:
/s/  ]David A. Milich
     
Name:  David A. Milich
     
Title:  Authorized Signatory


[Signature Page to Support and Voting Agreement - Cyrus]


Exhibit A
 
Stockholder
No. of Shares
Cyrus Opportunities Master Fund II, Ltd.
2,077,092
Crescent 1, L.P.
717,819
CRS Master Fund, L.P.
645,274
Cyrus Select Opportunities Master Fund, Ltd.
  378,001
    Total
3,818,186
 




ex99_2.htm EXHIBIT C


>

Exhibit C

Execution Version

RIGHT OF FIRST OFFER AGREEMENT
 
This RIGHT OF FIRST OFFER AGREEMENT, dated as of August 30, 2019 (this “Agreement”), is by and among Cyrus Opportunities Master Fund II, Ltd., Crescent 1, L.P., CRS Master Fund, L.P. and Cyrus Select Opportunities Master Fund, Ltd. (each, a “Stockholder” and collectively, “Stockholders”), and Investcorp BDC Holdings Limited, a company organized under the laws of the Cayman Islands (“Buyer”).
 
RECITALS
 
WHEREAS, each Stockholder is the record and beneficial owner of the number of shares of the common stock, par value $0.001 per share (the “Common Stock”), of CM Finance Inc, a Maryland corporation (the “Company”), set forth opposite its name on Exhibit A hereto (the “Shares,” together with any additional Shares or other voting securities of the Company of which such Stockholder acquires record or beneficial ownership after the date hereof as a result of a stock dividend, stock split, recapitalization, combination, reclassification, exchange or change of such shares shall be such Stockholder’s “Covered Shares”);
 
WHEREAS, Investcorp Credit Management US LLC (“ICM US” and together with Buyer, the “Investcorp Parties”), Stockholder, CMIP Holdings LP, an Affiliate of Stockholders, Stifel Venture Corp. (“Stifel”) and the other members of CM Investment Partners LLC, a Delaware limited liability company (the “Adviser”), have entered into that certain Interest Purchase Agreement, dated as of June 26, 2019 (the “IPA”), which provides, among other things, that upon the terms and subject to the conditions contained therein, ICM US will purchase all of the interests in the Adviser owned by CMIP Holdings LP and Stifel;
 
WHEREAS, Buyer and the Company have entered into a Stock Purchase and Transaction Agreement, dated as of June 26, 2019 (the “SP&TA”; terms used but not defined in this Agreement shall have the meanings ascribed to them in the SP&TA), which provides, among other things, that upon the terms and subject to the conditions contained therein, (i) a new Investment Advisory Agreement will be entered into by the Adviser and the Company at closing and (ii) Buyer will purchase a certain number of shares of Common Stock, both from the Company and third parties in open-market purchases;
 
WHEREAS, as a condition and inducement to the Investcorp Parties’ willingness to enter into, and consummate the transactions contemplated by, the IPA and the SP&TA, respectively (together, the “Purchase Agreements” and each, a “Purchase Agreement”), Buyer and Stockholders are entering into this Agreement; and
 
WHEREAS, each Stockholder acknowledges that the Investcorp Parties would not have entered into their respective Purchase Agreements, and would not consummate the transactions contemplated thereby, in the absence of such Stockholder entering into this Agreement.

 
AGREEMENT
 
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, Buyer and Stockholders hereby agree as follows:
 
1.          Right of First Offer.
 
(a)          General.  During the Restricted Period (as defined below), each Stockholder shall not, directly or indirectly, sell, transfer, pledge, hypothecate, gift, bequest, devise, assign or otherwise dispose of (collectively, “Transfer”) any Covered Shares, other than Permitted Transfers (as defined below), without first complying with this Section 1.
 
(b)          Sale Notice.  If, during the Restricted Period, a Stockholder desires to Transfer any Covered Shares other than in connection with a Permitted Transfer, then such Stockholder shall provide written notice of such desire to Buyer at least three Business Days prior to such Stockholder’s good faith estimate of when it desires to consummate a Transfer.  The written notice shall contain the following information:
 
(i)           the number of Covered Shares such Stockholder intends to offer for sale (the “Offered Shares”);
 
(ii)           the price per share at which such Stockholder intends to offer the Offered Shares, on a gross basis;
 
(iii)          if known, or able or permitted to be disclosed pursuant to applicable Law or contract, the identity or identities of the intended third-party purchasers; and
 
(iv)          any other material terms or conditions of the proposed Transfer (the “Sale Notice”).
 
(c)          Election Notice.  Buyer shall have three Business Days after its receipt of the Sale Notice to inform such Stockholder in writing if it desires to purchase any or all of the Offered Shares, provided that Buyer must elect to purchase no less than the lesser of (x) 90% of the Offered Shares and (y) such number of shares representing 1% of the outstanding shares of the Company’s Common Stock at such time (the “Minimum Purchase Condition”) for it to have the right to purchase any Offered Shares (any such notice, an “Election Notice”).  If Buyer timely provides an Election Notice, then Buyer shall be obligated to purchase such number of Offered Shares as Buyer sets forth in the Election Notice in accordance with the Minimum Purchase Condition (such number, the “Subject Shares”), and Stockholder shall be obligated to sell the Subject Shares to Buyer, at the same price and subject to the same material terms and conditions as described in the Sale Notice.  If Buyer fails to deliver an Election Notice to Stockholder within such three Business Day period, then Buyer shall be deemed to have elected not to purchase any of the Offered Shares.  If Buyer does not elect to purchase all of the Offered Shares, then Stockholder shall be free to sell a number of Covered Shares equal to the difference between (x) the number of Offered Shares and (y) the number of Subject Shares (such resulting number of Offered Shares, the “Excess Shares”) in accordance with Section 1(e) below.
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(d)          Closing and Payment for Subject Shares.  Closing for the sale and purchase of the Subject Shares shall occur within three Business Days of Buyer’s delivery of the Election Notice to Stockholder, as such date may be agreed upon between Buyer and Stockholder.  Payment for the Subject Shares shall be in cash by wire transfer of immediately available funds.  At the closing of such sale, Stockholder shall represent and warrant in a definitive agreement that (i) the Subject Shares being sold are free and clear of all Liens, (ii) Stockholder is the record and beneficial owner of the Subject Shares and (iii) Stockholder is transferring good and valid title to the Subject Shares to Buyer.  At the closing of such sale, Buyer shall represent and warrant in a definitive agreement that (i) it is acquiring the Subject Shares for investment purposes only and not for resale, (ii) it has sufficient funds in order to consummate the purchase of the Subject Shares and (iii) that it is not relying on any representations or warranties made by Stockholder or any of its affiliates or representatives other than those contained in the definitive agreement with respect to the sale and purchase of the Subject Shares.  At such closing, Stockholder and Buyer shall execute such additional documents as are otherwise necessary or appropriate, consistent with the terms hereof.
 
(e)          Sale of Excess Shares.  If Buyer does not elect to purchase all of the Offered Shares pursuant to a Sale Notice, then Stockholder may sell any or all of the Excess Shares, at a gross price per share (to the purchaser(s) thereof) that is not less than 90% of the price set forth in the Sale Notice, and on the same material terms and conditions as set forth in the Sale Notice, so long as the sale is completed within 90 days after the date of the Sale Notice. If Stockholder fails to sell all of the Excess Shares within such 90-day period, Stockholder’s right thereafter to sell such unsold Excess Shares under this clause (e) shall terminate unless and until the provisions of clauses (b) and (c) above are once again complied with.
 
(f)          Permitted Transfers.  This Section 1 shall not apply to Covered Shares (each, a “Permitted Transfer”):
 
(i)          Transferred by a Stockholder to its Affiliates, provided that prior to such Transfer, such Affiliate or Affiliates, to the extent not already a party hereto, agree in writing to be bound by this Agreement;
 
(ii)          repurchased by the Company pursuant to its share repurchase program or another transaction otherwise approved by the Board;
 
(iii)          offered for sale to the public in an offering pursuant to an effective registration statement under the Securities Act of 1933, as amended (a “Public Offering”); provided, there is no understanding or intention (either on the part of Stockholder, or between Stockholder and any underwriters for such Public Offering) that in connection with such Public Offering, a single purchaser, or group of related purchasers, will purchase Covered Shares in the Public Offering representing 5% or more of the outstanding shares of Common Stock; or
 
(iv)          Transferred pursuant to Rule 144 (or any similar provisions then in force) under the Securities Act of 1933, as amended; provided, there is no understanding or intention that in connection with any such Transfer or Transfers, a single purchaser, or group of related purchasers, will purchase Covered Shares representing 5% or more of the outstanding shares of Common Stock.
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(g)          Restricted Period.  As used herein, “Restricted Period” means from the date hereof until the earlier of:
 
(i)          the Adviser (or a successor thereof in which Buyer and its Affiliates own, in the aggregate, at least 50% of the equity interests) no longer serving as the investment adviser to the Company;
 
(ii)          Buyer and its Affiliates no longer owning, in the aggregate, at least 50% of the equity interests in the Adviser (or a successor thereof that serves as investment adviser to the Company);
 
(iii)          Stockholders and their Affiliates no longer owning, in the aggregate, at least 10% of the outstanding shares of the Common Stock; and
 
(iv)          the eighteen month anniversary of the date hereof.
 
2.          No Inconsistent Agreements.  Each Stockholder covenants that it has not and will not (a) enter into any legally binding agreement that would restrict, limit or interfere in any material respect with the performance of such Stockholder’s obligations hereunder or (b) take action that would make any of its representations or warranties contained herein untrue or incorrect in any material respect or have the effect of preventing or disabling it from performing its obligations under this Agreement.
 
3.          Termination.  This Agreement shall terminate upon the earlier of (a) the date on which Buyer and Stockholders agree in writing to terminate this Agreement, (b) the expiration of the Restricted Period and (c) the entry into a definitive agreement between Stockholders and Buyer pursuant to which Buyer will acquire all of the Covered Shares from Stockholders (the earliest such date being referred to herein as the “Termination Date”).  Upon any such termination of this Agreement, this Agreement shall no longer be in force or effect and each party hereto shall be released and discharged from its obligations hereunder and shall have no liability to any other party hereto with respect to this Agreement or such obligations; provided, however, that no termination of this Agreement shall relieve any party hereto from any liability incurred by any other party hereto as a result of an intentional breach of a material term or condition of this Agreement prior to such termination.
 
4.          Representations and Warranties of Stockholder.  Each Stockholder hereby represents and warrants to Buyer, severally and not jointly, as follows:
 
(a)          Such Stockholder is the record and beneficial owner of the Shares set forth opposite its name on Exhibit A hereto (as to each Stockholder, the “Stockholder’s Shares”), free and clear of Liens other than as created by this Agreement.  Such Stockholder has sole voting power, sole power of disposition and sole power to agree to all of the matters set forth in this Agreement, in each case with respect to all of such Stockholder’s Shares with no limitations, qualifications or restrictions on such rights, subject to applicable securities laws and the terms of this Agreement.  Other than the Stockholder’s Shares, such Stockholder does not own beneficially or of record any (i) shares of capital stock or voting securities of the Company, (ii) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities of the Company or (iii) options or other rights to acquire from the Company any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company.  Other than pursuant to the Support and Voting Agreement, dated as of June 26, 2019, between Stockholders and ICM US (the “Voting Agreement”), the Stockholder’s Shares are not subject to any voting trust agreement or other contract to which such Stockholder is a party restricting or otherwise relating to the voting or Transfer (as defined below) of any of the Stockholder’s Shares.
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(b)          Each Stockholder is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation and has all requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder.  The execution, delivery and performance of this Agreement by such Stockholder, the performance by such Stockholder of its obligations hereunder and the consummation by such Stockholder of the transactions contemplated hereby have been duly and validly authorized by such Stockholder and no other corporate or organizational actions or proceedings on the part of such Stockholder are necessary to authorize the execution and delivery by such Stockholder of this Agreement, the performance by such Stockholder of its obligations hereunder or the consummation by such Stockholder of the transactions contemplated hereby.  This Agreement has been duly and validly executed and delivered by such Stockholder and, assuming due authorization, execution and delivery by Buyer, constitutes a legal, valid and binding obligation of such Stockholder, enforceable against such Stockholder in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).
 
(c)          (i) Except for any filings that Buyer and Stockholders may mutually determine to be required under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, no filing with, and no permit, authorization, consent or approval of, any Governmental Authority is necessary on the part of such Stockholder for the execution, delivery and performance of this Agreement by such Stockholder or the consummation by such Stockholder of the transactions contemplated hereby and (ii) except as would not reasonably be expected to prevent such Stockholder from performing its obligations under this Agreement, neither the execution, delivery or performance of this Agreement by such Stockholder nor the consummation by such Stockholder of the transactions contemplated hereby nor compliance by such Stockholder with any of the provisions hereof would (A) conflict with or violate, any provision of the organizational documents of such Stockholder, (B) result in any breach or violation of, or constitute a default (or an event which, with notice or lapse of time or both, would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on such property or asset of such Stockholder pursuant to, any contract to which such Stockholder is a party or by which such Stockholder or any property or asset of such Stockholder is bound or affected or (C) violate any order, writ, injunction, decree, statute, rule or regulation applicable to such Stockholder or any of such Stockholder’s properties or assets.
 
(d)          Each Stockholder understands and acknowledges that Buyer has entered into the Purchase Agreements, and will consummate the transactions contemplated thereby, in reliance upon such Stockholder’s execution and delivery of this Agreement and the representations and warranties of such Stockholder contained herein.
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5.          Representations and Warranties of Buyer.  Buyer hereby represents and warrants to Stockholders as follows:
 
(a)          Buyer is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation and has all requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder.  The execution, delivery and performance of this Agreement by Buyer, the performance by Buyer of its obligations hereunder and the consummation by Buyer of the transactions contemplated hereby have been duly and validly authorized by Buyer and no other corporate or organizational actions or proceedings on the part of Buyer are necessary to authorize the execution and delivery by Buyer of this Agreement, the performance by Buyer of its obligations hereunder or the consummation by Buyer of the transactions contemplated hereby.  This Agreement has been duly and validly executed and delivered by Buyer and, assuming due authorization, execution and delivery by Stockholders, constitutes a legal, valid and binding obligation of Buyer, enforceable against Buyer in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).
 
(b)          (i) Except for any filings that Buyer and Stockholders may mutually determine to be required under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, no filing with, and no permit, authorization, consent or approval of, any Governmental Authority is necessary on the part of Buyer for the execution, delivery and performance of this Agreement by Buyer or the consummation by Buyer of the transactions contemplated hereby and (ii) except as would not reasonably be expected to prevent Buyer from performing its obligations under this Agreement, neither the execution, delivery or performance of this Agreement by Buyer nor the consummation by Buyer of the transactions contemplated hereby nor compliance by Buyer with any of the provisions hereof would (A) conflict with or violate, any provision of the organizational documents of Buyer, (B) result in any breach or violation of, or constitute a default (or an event which, with notice or lapse of time or both, would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on such property or asset of Buyer pursuant to, any contract to which Buyer is a party or by which Buyer or any property or asset of Buyer is bound or affected or (C) violate any order, writ, injunction, decree, statute, rule or regulation applicable to Buyer or any of Buyer’s properties or assets.
 
6.          Further Assurances.  From time to time, at the reasonable request of Buyer and without further consideration or the incurrence of any cost or expense on the part of Stockholders, each Stockholder shall take such further action as may be reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
 
7.          Amendment and Modification.  This Agreement may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument in writing specifically designated as an amendment hereto and signed on behalf of each party hereto and otherwise as expressly set forth herein.
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8.          Waiver.  No failure or delay of any party in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, or any course of conduct, preclude any other or further exercise thereof or the exercise of any other right or power.  The rights and remedies of the parties hereunder are cumulative and are not exclusive of any rights or remedies which they would otherwise have hereunder.  Any agreement on the part of a party to any such waiver shall be valid only if set forth in a written instrument executed and delivered by such party.
 
9.          Notices.  Each notice, request, demand or other communication under this Agreement will be in writing and will be deemed to have been duly given or made as follows:  (i) if sent by registered or certified mail in the United States, return receipt requested, then such communication will be deemed duly given and made upon receipt; (ii) if sent by nationally recognized overnight air courier (such as UPS or Federal Express), then such communication will be deemed duly given and made two Business Days after being sent; (iii) if sent by email before 5:00 p.m. (based on the time zone of the recipient) on any Business Day, then such communication will be deemed duly given and made when receipt is confirmed; (iv) if sent by email on a day other than a Business Day and receipt is confirmed, or if sent after 5:00 p.m. (based on the time zone of the recipient) on any Business Day and receipt is confirmed, then such communication will be deemed duly given and made on the Business Day following the date which receipt is confirmed; and (v) if otherwise personally delivered to a duly authorized representative of the recipient, then such communication will be deemed duly given and made when delivered to such authorized representative; provided that, in all cases, such notices, requests, demands and other communications are delivered to the address set forth below, or to such other address as any party will provide by like notice to the other parties to this Agreement:
 
if to Buyer, to:
 
Investcorp BDC Holdings Limited
c/o Investcorp Credit Management US LLC
280 Park Avenue, 36th Floor
New York, New York 10017
Attention:  Patrick Maloney
Email:  pmaloney@investcorp.com
 
with a copy (which shall not constitute notice) to:
 
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166
Attention:  William Rustum
Email:  wrustum@gibsondunn.com
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if to Stockholder, to:
 
c/o Cyrus Capital Partners, L.P.
65 East 55th Street, 35th Floor
New York, New York 10022
Attention:  Svetoslav Nikov and Jennifer Pulick
Email:  snikov@cyruscapital.com and jpulick@cyruscapital.com
 
with a copy (which shall not constitute notice) to:
 
Akin Gump Strauss Hauer & Feld LLP
One Bryant Park
New York, New York 10036
Attention:  Ackneil M. Muldrow III
Email:  tmuldrow@akingump.com
 
10.          Entire Agreement.  This Agreement represents the entire understanding of the parties hereto with reference to the subject matter hereof and supersedes any and all other oral or written agreements heretofore or theretofore made.
 
11.          Governing Law.  All disputes, claims or controversies arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, shall be governed by and construed in accordance with the Laws of the State of Delaware without regard to its rules of conflict of laws.
 
12.          Jurisdiction; WAIVER OF JURY TRIAL.  Each of the parties hereto hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the Court of Chancery of the State of Delaware, or to the extent such Court does not have subject matter jurisdiction, any federal court sitting in the State of Delaware (the “Chosen Courts”) for any litigation arising out of or relating to this Agreement (and agrees not to commence any litigation relating thereto except in such courts), waives any objection to the laying of venue of any such litigation in the Chosen Courts and agrees not to plead or claim in any Chosen Court that such litigation brought therein has been brought in any inconvenient forum.  Each of the parties hereto agrees, (i) to the extent such party is not otherwise subject to service of process in the State of Delaware, to appoint and maintain an agent in the State of Delaware as such party’s agent for acceptance of legal process and (ii) that service of process may also be made on such party in accordance with the notice provisions contained in Section 9 above.  Service made pursuant to (i) or (ii) above shall have the same legal force and effect as if served upon such party personally within the State of Delaware.  EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
 
13.          Assignment; Successors.  Neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned or delegated, in whole or in part, by operation of law or otherwise, by either party without the prior written consent of the other party.  Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and assigns.
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14.          Enforcement.  Each party acknowledges and agrees that in the event of any breach of this Agreement, the other party would be irreparably and immediately harmed and could not be made whole by monetary damages.  It is accordingly agreed that, with respect to any such breach, (a) the non-breaching party shall be entitled, in addition to any other remedy to which it may be entitled at law or in equity, to compel specific performance of this Agreement in any action as well as such damages as may be appropriate and (b) the breaching party will waive, in any action for specific performance, the defense of adequacy of a remedy at law and any requirement for the securing or posting of any bond in connection with any such action.
 
15.          Severability.  If any term, provision, covenant or restriction of this Agreement is held by a Chosen Court to be invalid, void, unenforceable or against its regulatory policy, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
 
16.          Counterparts.  This Agreement may be executed in two or more counterparts, including by facsimile or electronic transmission, which together shall constitute a single agreement.
 
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, Buyer and Stockholders have caused to be executed or executed this Agreement as of the date first written above.

 
INVESTCORP BDC HOLDINGS LIMITED
   
 
By:  The Director Ltd.,
   
 
/s/  Toni Pinkerton
 
Name:  Toni Pinkerton
 
Title:  Director

[Signature Page to Right of First Offer Agreement - Cyrus]
 

 
 
CYRUS OPPORTUNITIES MASTER FUND II, LTD.
       
 
CRESCENT 1, L.P.
       
 
CRS MASTER FUND, L.P.
       
 
CYRUS SELECT OPPORTUNITIES MASTER FUND, LTD.
       
 
By:
Cyrus Capital Partners, L.P., as investment manager
       
   
By:
/s/ Jennifer M. Pulick
     
Name:  Jennifer M. Pulick
     
Title:  Authorized Signatory

[Signature Page to Right of First Offer Agreement - Cyrus]


Exhibit A

Stockholder
No. of Shares
Cyrus Opportunities Master Fund II, Ltd.
2,077,092
Crescent 1, L.P.
717,819
CRS Master Fund, L.P.
645,274
Cyrus Select Opportunities Master Fund, Ltd.
  378,001
    Total
3,818,186
 


ex99_3.htm EXHIBIT D


>

Exhibit D

SUPPORT AND VOTING AGREEMENT
 
This SUPPORT AND VOTING AGREEMENT, dated as of June 26, 2019 (this “Agreement”), is by and between Stifel Venture Corp., a Missouri corporation (“Stockholder”), and Investcorp Credit Management US LLC, a Delaware limited liability company (“Buyer”).
 
RECITALS
 
WHEREAS, Stockholder is the record and beneficial owner of 2,181,818 shares of the common stock, par value $0.001 per share (the “Common Stock”), of CM Finance Inc, a Maryland corporation (the “Company”) (and such shares, the “Shares,” together with any additional Shares or other voting securities of the Company of which Stockholder acquires record or beneficial ownership after the date hereof, including, without limitation, by purchase, as a result of a stock dividend, stock split, recapitalization, combination, reclassification, exchange or change of such shares shall be such Stockholder’s “Covered Shares”);
 
WHEREAS, Stockholder and the Company are party to that certain Irrevocable Proxy, dated as of October 6, 2014, relating to the Shares (the “Irrevocable Proxy”);
 
WHEREAS, Buyer, Stockholder, CMIP Holdings LP (“Cyrus”) and the other members of CM Investment Partners LLC, a Delaware limited liability company (the “Adviser”), propose to enter into, simultaneously herewith, an Interest Purchase Agreement (the “IPA”) which provides, among other things, that upon the terms and subject to the conditions contained therein, Buyer will purchase all of the interests in the Adviser owned by Stockholder and Cyrus;
 
WHEREAS, Investcorp BDC Holdings Limited, an Affiliate of Buyer (“Investcorp BDC” and together with Buyer, the “Investcorp Parties”), and the Company propose to enter into, simultaneously herewith, a Stock Purchase and Transaction Agreement (the “SP&TA”; terms used but not defined in this Agreement shall have the meanings ascribed to them in the SP&TA), which provides, among other things, that upon the terms and subject to the conditions contained therein, (i) a new Investment Advisory Agreement will be entered into by the Adviser and the Company at closing and (ii) Investcorp BDC will purchase a certain number of shares of Common Stock, both from the Company and third parties in open-market purchases;
 
WHEREAS, as a condition and inducement to the Investcorp Parties’ willingness to enter into the IPA and the SP&TA, respectively (together, the “Purchase Agreements” and each, a “Purchase Agreement”), and to proceed with the transactions contemplated thereby, Buyer and Stockholder are entering into this Agreement; and
 
WHEREAS, Stockholder acknowledges that the Investcorp Parties (i) are entering into each of their respective Purchase Agreements in reliance on the representations, warranties, covenants and other agreements of Stockholder set forth in this Agreement and (ii) would not enter into either Purchase Agreement in the absence of Stockholder entering into this Agreement.

 
AGREEMENT
 
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, Buyer and Stockholder hereby agree as follows:
 
1.          Termination of Irrevocable Proxy.  Pursuant to and in accordance with Section 7.13 of the IPA and Section 7.06(a) of the SP&TA, at least ten Business Days prior to the Stockholder Meeting to be held in accordance with Section 7.02 of the SP&TA, the Company and Stockholder shall terminate the Irrevocable Proxy.
 
2.          Agreement to Vote:  Pre-Closing Period.  Stockholder hereby irrevocably and unconditionally agrees to vote, at the Stockholder Meeting and at any adjournment thereof, all of the Covered Shares:
 
(a)          in favor of the Company Stockholder Proposal and the proposal to adjourn the Stockholder Meeting, if necessary or appropriate, in order to allow the Company to solicit additional proxies with respect to the Company Stockholder Proposal; and
 
(b)          against, or otherwise not in favor of, any (i) Alternative Proposal, (ii) other proposals of any other Company Stockholder or (iii) other action, agreement, proposal or transaction that would reasonably be expected to impede, delay or prevent the approval of the Company Stockholder Proposal or any other transactions contemplated by the Purchase Agreements, or result in a breach of any representation, warranty, covenant or agreement of the Company under the SP&TA.
 
Stockholder acknowledges receipt of a copy of the SP&TA.
 
3.          Agreements Regarding Voting:  Post-Closing Period.  During the period from and after the Initial Closing until the earlier of:
 
(a)          the Adviser (or a successor thereof in which Buyer and its Affiliates own, in the aggregate, at least 50% of the equity interests) no longer serving as the investment adviser to the Company;
 
(b)          Buyer and its Affiliates no longer owning, in the aggregate, at least 50% of the equity interests in the Adviser (or a successor thereof that serves as investment adviser to the Company);
 
(c)          Stockholder and its Affiliates no longer owning, in the aggregate, at least 7.5% of the outstanding shares of the Common Stock;
 
(d)          the date, if any, on which Michael C. Mauer is no longer the Co-Chief Investment Officer of the Adviser due to his termination without cause by the Adviser, as “cause” is defined in the Adviser’s governing agreements or in any employment agreement between Michael C. Mauer and the Adviser; and
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(e)          the second anniversary of the Initial Closing Date (such period, the “Restricted Period”),
 
Stockholder agrees that it shall, at any meeting of the Company Stockholders (whether annual or special and whether or not an adjourned or postponed meeting), however called, (i) appear at such meeting or otherwise cause the Covered Shares to be counted as present thereat for the purpose of establishing a quorum, and (ii) vote, or cause to be voted at such meeting, all Covered Shares (whether owned by Stockholder or Affiliates of Stockholder):
 
(A)          against, or otherwise not in favor of, electing one or more nominees to the Company Board proposed by a Company Stockholder in connection with a proxy contest;
 
(B)          against, or otherwise not in favor of, (1) terminating the Investment Advisory Agreement as then in effect between the Adviser (or a successor thereof) and the Company, and (2) a proposal to approve any investment advisory agreement between the Company and an adviser other than the Adviser (or a successor thereof or another adviser of which Buyer and its Affiliates own at least 50% of the equity interests); and
 
(C)          if put to a vote of the Company Stockholders, in favor of renewing or approving the Investment Advisory Agreement, as the same may be amended, between the Adviser (or a successor thereof) and the Company.
 
4.          Certain Covenants of Stockholder.  Stockholder hereby covenants and agrees that from and after the date hereof until the Termination Date (as defined below), Stockholder shall not, and shall not authorize or permit any of its Affiliates to, directly or indirectly:
 
(a)          participate in the making of a written request of the Company Stockholders to call a special meeting of the stockholders to elect, remove or replace directors, to terminate the Investment Advisory Agreement or to vote upon any investment advisory agreement between the Company and an adviser other than the Adviser (or a successor thereof or another adviser of which Buyer and its Affiliates own at least 50% of the equity interests); or
 
(b)          grant any proxies or powers of attorney with respect to the Covered Shares, deposit any Covered Shares into a voting trust or enter into a voting agreement with respect to any Covered Shares.
 
For the avoidance of doubt, nothing herein shall prohibit or restrict the Stockholder from rehypothecation of its Shares in connection with a bona fide lending transaction as long as Stockholder does not relinquish its rights to vote the Shares in connection therewith.
 
5.          Transfers of Covered Shares.
 
(a)          After the date hereof until the date on which the Company Stockholder Proposal is approved by the Company Stockholders, Stockholder hereby agrees to not, directly or indirectly, without the prior written consent of Buyer (not to be unreasonably withheld, conditioned or delayed), sell, assign, transfer, pledge, exchange, tender, encumber or otherwise dispose of (including by merger, consolidation or otherwise by operation of law) (“Transfer”), or consent to the Transfer of, or enter into any contract, option, call or other arrangement or understanding with respect to the Transfer of (including by merger, consolidation or otherwise by operation of law), any Covered Shares, other than to Stockholder’s Affiliates (provided that such Affiliates agree to be bound by this Agreement with respect to such Transferred Covered Shares).
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(b)          Any purported Transfer in violation of this Section 5 shall be void.
 
6.          No Inconsistent Agreements.  Stockholder covenants that it has not and will not (a) enter into any legally binding agreement that would restrict, limit or interfere in any material respect with the performance of Stockholder’s obligations hereunder or (b) take action that would make any of its representations or warranties contained herein untrue or incorrect in any material respect or have the effect of preventing or disabling it from performing its obligations under this Agreement.
 
7.          Applicability of this Agreement.  Notwithstanding anything to the contrary in this Agreement, Buyer acknowledges and agrees that, as long as Stockholder has complied with its obligations set forth in Section 1 of the Right of First Offer Agreement to be entered into by and between Stockholder and Buyer as of the Closing Date (the “ROFO Agreement”), following the entry into the ROFO Agreement, Stockholder and its Affiliates shall be permitted to Transfer any Covered Shares to Stockholder’s and its Affiliates’ directors, officers, employees, consultants and other similar third persons as compensation, and the restrictions and obligations set forth in this Agreement shall not apply to such Covered Shares so Transferred; provided that in no event shall Stockholder or its Affiliates cause any such Transfer of Covered Shares to result in any such director, officer, employee, consultant or similar third person to own in excess of 2% of outstanding shares of the Company’s Common Stock.
 
8.          Termination.  This Agreement shall terminate upon the earlier of (a) the date of termination of either Purchase Agreement in accordance with its terms, (b) the date on which Buyer and Stockholder agree in writing to terminate this Agreement, (c) the expiration of the Restricted Period and (d) the entry into a definitive agreement between Stockholder and Buyer pursuant to which Buyer will acquire all of the Covered Shares from Stockholder (the earliest such date being referred to herein as the “Termination Date”).  Upon any such termination of this Agreement, this Agreement shall no longer be in force or effect and each party hereto shall be released and discharged from its obligations hereunder and shall have no liability to any other party hereto with respect to this Agreement or such obligations; provided, however, that no termination of this Agreement shall relieve any party hereto from any liability incurred by any other party hereto as a result of an intentional breach of a material term or condition of this Agreement prior to such termination.
 
9.          Representations and Warranties of Stockholder.  Stockholder hereby represents and warrants to Buyer that Stockholder is the record and beneficial owner of the Shares, free and clear of Liens other than as created by this Agreement, as created pursuant to applicable Law (including securities Laws) and pursuant to the Irrevocable Proxy.  Stockholder has sole voting power, sole power of disposition and sole power to agree to all of the matters set forth in this Agreement, in each case with respect to all of such Shares with no limitations, qualifications or restrictions on such rights, subject to applicable Law (including securities Laws), the terms of this Agreement and the Irrevocable Proxy.  Other than the Shares, Stockholder does not own beneficially or of record any (i) shares of capital stock or voting securities of the Company, (ii) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities of the Company or (iii) options or other rights to acquire from the Company any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company.  Other than pursuant to the Irrevocable Proxy, the Shares are not subject to any voting trust agreement or other contract to which Stockholder is a party restricting or otherwise relating to the voting or Transfer (as defined below) of any Shares.
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10.          Further Assurances.  From time to time, at the reasonable request of Buyer and without further consideration or the incurrence of any cost or expense on the part of Stockholder, Stockholder shall take such further action as may be reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
 
11.          Amendment and Modification.  This Agreement may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument in writing specifically designated as an amendment hereto and signed on behalf of each party hereto and otherwise as expressly set forth herein.
 
12.          Waiver.  No failure or delay of any party in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, or any course of conduct, preclude any other or further exercise thereof or the exercise of any other right or power.  The rights and remedies of the parties hereunder are cumulative and are not exclusive of any rights or remedies which they would otherwise have hereunder.  Any agreement on the part of a party to any such waiver shall be valid only if set forth in a written instrument executed and delivered by such party.
 
13.          Notices.  Each notice, request, demand or other communication under this Agreement will be in writing and will be deemed to have been duly given or made as follows:  (i) if sent by registered or certified mail in the United States, return receipt requested, then such communication will be deemed duly given and made upon receipt; (ii) if sent by nationally recognized overnight air courier (such as UPS or Federal Express), then such communication will be deemed duly given and made two Business Days after being sent; (iii) if sent by email before 5:00 p.m. (based on the time zone of the recipient) on any Business Day, then such communication will be deemed duly given and made when receipt is confirmed; (iv) if sent by email on a day other than a Business Day and receipt is confirmed, or if sent after 5:00 p.m. (based on the time zone of the recipient) on any Business Day and receipt is confirmed, then such communication will be deemed duly given and made on the Business Day following the date which receipt is confirmed; and (v) if otherwise personally delivered to a duly authorized representative of the recipient, then such communication will be deemed duly given and made when delivered to such authorized representative; provided that, in all cases, such notices, requests, demands and other communications are delivered to the address set forth below, or to such other address as any party will provide by like notice to the other parties to this Agreement:
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if to Buyer, to:
 
c/o Investcorp Credit Management US LLC
280 Park Avenue, 36th Floor
New York, New York 10017
Attention:  Patrick Maloney
Email:  pmaloney@investcorp.com
 
with a copy (which shall not constitute notice) to:
 
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166
Attention:  William Rustum
Email:  wrustum@gibsondunn.com
 
if to Stockholder, to:
 
Stifel Venture Corp.
c/o Stifel Financial Corp.
787 7th Avenue, 11th Floor
New York, New York 10019
Attn:  Mark P. Fisher
Email:  mfisher@stifel.com
 
with a copy (which shall not constitute notice) to:
 
Dechert LLP
1095 Avenue of the Americas
New York, New York 10036
Attention:  Kenneth E. Young and Stephen Pratt
Email: ken.young@dechert.com and stephen.pratt@dechert.com
 
14.          Entire Agreement.  This Agreement represents the entire understanding of the parties hereto with reference to the subject matter hereof and supersedes any and all other oral or written agreements heretofore or theretofore made.
 
15.          Governing Law.  All disputes, claims or controversies arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, shall be governed by and construed in accordance with the Laws of the State of Delaware without regard to its rules of conflict of laws.
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16.          Jurisdiction; WAIVER OF JURY TRIAL.  Each of the parties hereto hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the Court of Chancery of the State of Delaware, or to the extent such Court does not have subject matter jurisdiction, any federal court sitting in the State of Delaware (the “Chosen Courts”) for any litigation arising out of or relating to this Agreement (and agrees not to commence any litigation relating thereto except in such courts), waives any objection to the laying of venue of any such litigation in the Chosen Courts and agrees not to plead or claim in any Chosen Court that such litigation brought therein has been brought in any inconvenient forum.  Each of the parties hereto agrees, (i) to the extent such party is not otherwise subject to service of process in the State of Delaware, to appoint and maintain an agent in the State of Delaware as such party’s agent for acceptance of legal process and (ii) that service of process may also be made on such party in accordance with the notice provisions contained in Section 13 above.  Service made pursuant to (i) or (ii) above shall have the same legal force and effect as if served upon such party personally within the State of Delaware.  EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
 
17.          Assignment; Successors.  Neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned or delegated, in whole or in part, by operation of law or otherwise, by either party without the prior written consent of the other party.  Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and permitted assigns.
 
18.          Enforcement.  Each party acknowledges and agrees that in the event of any breach of this Agreement, the other party would be irreparably and immediately harmed and could not be made whole by monetary damages.  It is accordingly agreed that, with respect to any such breach, (a) the non-breaching party shall be entitled, in addition to any other remedy to which it may be entitled at law or in equity, to compel specific performance of this Agreement in any action as well as such damages as may be appropriate and (b) the breaching party will waive, in any action for specific performance, the defense of adequacy of a remedy at law and any requirement for the securing or posting of any bond in connection with any such action.
 
19.          Severability.  If any term, provision, covenant or restriction of this Agreement is held by a Chosen Court to be invalid, void, unenforceable or against its regulatory policy, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
 
20.          Counterparts.  This Agreement may be executed in two or more counterparts, including by facsimile or electronic transmission, which together shall constitute a single agreement.
 
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, Buyer and Stockholder have caused to be executed or executed this Agreement as of the date first written above.

 
INVESTCORP CREDIT MANAGEMENT US LLC
     
 
By:
/s/  Gene Basov
   
Name:  Gene Basov
   
Title: CFO
 

[Signature Page to Support and Voting Agreement - Stifel]



 
STIFEL VENTURE CORP.
     
 
By:
/s/  Victor J. Nesi
   
Name: Victor J. Nesi
   
Title: Vice President
 

[Signature Page to Support and Voting Agreement - Stifel]


ex99_4.htm EXHIBIT E


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Exhibit E

Execution Version

RIGHT OF FIRST OFFER AGREEMENT
 
This RIGHT OF FIRST OFFER AGREEMENT, dated as of August 30, 2019 (this “Agreement”), is by and between Stifel Venture Corp., a Missouri corporation (“Stockholder”), and Investcorp BDC Holdings Limited, a company organized under the laws of the Cayman Islands (“Buyer”).
 
RECITALS
 
WHEREAS, Stockholder is the record and beneficial owner of 2,181,818 shares of the common stock, par value $0.001 per share (the “Common Stock”), of CM Finance Inc, a Maryland corporation (the “Company”) (such shares, the “Shares,” together with any additional Shares or other voting securities of the Company of which Stockholder acquires record or beneficial ownership after the date hereof as a result of a stock dividend, stock split, recapitalization, combination, reclassification, exchange or change of such shares shall be such Stockholder’s “Covered Shares”);
 
WHEREAS, Investcorp Credit Management US LLC (“ICM US” and together with Buyer, the “Investcorp Parties”), Stockholder, CMIP Holdings LP (“Cyrus”) and the other members of CM Investment Partners LLC, a Delaware limited liability company (the “Adviser”), have entered into that certain Interest Purchase Agreement, dated as of June 26, 2019 (the “IPA”), which provides, among other things, that upon the terms and subject to the conditions contained therein, ICM US will purchase all of the interests in the Adviser owned by Stockholder and Cyrus;
 
WHEREAS, Buyer and the Company have entered into a Stock Purchase and Transaction Agreement, dated as of June 26, 2019 (the “SP&TA”; terms used but not defined in this Agreement shall have the meanings ascribed to them in the SP&TA), which provides, among other things, that upon the terms and subject to the conditions contained therein, (i) a new Investment Advisory Agreement will be entered into by the Adviser and the Company at closing and (ii) Buyer will purchase a certain number of shares of Common Stock, both from the Company and third parties in open-market purchases;
 
WHEREAS, as a condition and inducement to the Investcorp Parties’ willingness to enter into, and consummate the transactions contemplated by, the IPA and the SP&TA, respectively (together, the “Purchase Agreements” and each, a “Purchase Agreement”), Buyer and Stockholder are entering into this Agreement; and
 
WHEREAS, Stockholder acknowledges that the Investcorp Parties would not have entered into their respective Purchase Agreements, and would not consummate the transactions contemplated thereby, in the absence of Stockholder entering into this Agreement.

 
AGREEMENT
 
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, Buyer and Stockholder hereby agree as follows:
 
1.          Right of First Offer.
 
(a)          General.  During the Restricted Period (as defined below), Stockholder shall not, directly or indirectly, sell, transfer, pledge, hypothecate, gift, bequest, devise, assign or otherwise dispose of (collectively, “Transfer”) any Covered Shares, other than Permitted Transfers (as defined below), without first complying with this Section 1.
 
(b)          Sale Notice.  If, during the Restricted Period, Stockholder desires to Transfer any Covered Shares other than in connection with a Permitted Transfer, then Stockholder shall provide written notice of such desire to Buyer at least three Business Days prior to Stockholder’s good faith estimate of when it desires to consummate a Transfer.  The written notice shall contain the following information:
 
(i)          the number of Covered Shares Stockholder intends to Transfer (the “Offered Shares”);
 
(ii)          the price per share at which Stockholder intends to Transfer the Offered Shares, on a gross basis;
 
(iii)          if known, or able or permitted to be disclosed pursuant to applicable Law or contract, the identity or identities of the intended third-party purchasers; and
 
(iv)          any other material terms or conditions of the proposed Transfer (the “Sale Notice”).
 
(c)          Election Notice.  Buyer shall have three Business Days after its receipt of the Sale Notice to inform Stockholder in writing if it desires to purchase any or all of the Offered Shares, provided that Buyer must elect to purchase no less than the lesser of (x) 90% of the Offered Shares and (y) such number of shares representing 1% of the outstanding shares of the Company’s Common Stock at such time (the “Minimum Purchase Condition”) for it to have the right to purchase any Offered Shares (any such notice, an “Election Notice”).  If Buyer timely provides an Election Notice, then Buyer shall be obligated to purchase such number of Offered Shares as Buyer sets forth in the Election Notice in accordance with the Minimum Purchase Condition (such number, the “Subject Shares”), and Stockholder shall be obligated to sell the Subject Shares to Buyer, at the same price and subject to the same material terms and conditions as described in the Sale Notice.  If Buyer fails to deliver an Election Notice to Stockholder within such three Business Day period, then Buyer shall be deemed to have elected not to purchase any of the Offered Shares.  If Buyer does not elect to purchase all of the Offered Shares, then Stockholder shall be free to sell a number of Covered Shares equal to the difference between (x) the number of Offered Shares and (y) the number of Subject Shares (such resulting number of Offered Shares, the “Excess Shares”) in accordance with Section 1(e) below.
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(d)          Closing and Payment for Subject Shares.  Closing for the sale and purchase of the Subject Shares shall occur within three Business Days of Buyer’s delivery of the Election Notice to Stockholder, as such date may be agreed upon between Buyer and Stockholder.  Payment for the Subject Shares shall be in cash by wire transfer of immediately available funds.  At the closing of such sale, Stockholder shall represent and warrant in a definitive agreement that (i) the Subject Shares being sold are free and clear of all Liens, (ii) Stockholder is the record and beneficial owner of the Subject Shares and (iii) Stockholder is transferring good and valid title to the Subject Shares to Buyer.  At the closing of such sale, Buyer shall represent and warrant in a definitive agreement that (i) it is acquiring the Subject Shares for investment purposes only and not for resale, (ii) it has sufficient funds in order to consummate the purchase of the Subject Shares and (iii) that it is not relying on any representations or warranties made by Stockholder or any of its affiliates or representatives other than those contained in the definitive agreement with respect to the sale and purchase of the Subject Shares.  At such closing, Stockholder and Buyer shall execute such additional documents as are otherwise necessary or appropriate, consistent with the terms hereof.
 
(e)          Sale of Excess Shares.  If Buyer does not elect to purchase all of the Offered Shares pursuant to a Sale Notice, then Stockholder may sell any or all of the Excess Shares, at a gross price per share (to the purchaser(s) thereof) that is not less than 90% of the price set forth in the Sale Notice, and on the same material terms and conditions as set forth in the Sale Notice, so long as the sale is completed within 90 days after the date of the Sale Notice. If Stockholder fails to sell all of the Excess Shares within such 90-day period, Stockholder’s right thereafter to sell such unsold Excess Shares under this clause (e) shall terminate unless and until the provisions of clauses (b) and (c) above are once again complied with.
 
(f)          Permitted Transfers.  This Section 1 shall not apply to Covered Shares (each, a “Permitted Transfer”):
 
(i)          Transferred by Stockholder to its Affiliates, provided that prior to such Transfer, such Affiliate or Affiliates agree in writing to be bound by this Agreement;
 
(ii)          repurchased by the Company pursuant to its share repurchase program or another transaction otherwise approved by the Board;
 
(iii)          offered for sale to the public in an offering pursuant to an effective registration statement under the Securities Act of 1933, as amended (a “Public Offering”); provided, there is no understanding or intention (either on the part of Stockholder, or between Stockholder and any underwriters for such Public Offering) that in connection with such Public Offering, a single purchaser, or group of related purchasers, will purchase Covered Shares in the Public Offering representing 5% or more of the outstanding shares of Common Stock; or
 
(iv)          Transferred pursuant to Rule 144 (or any similar provisions then in force) under the Securities Act of 1933, as amended; provided, there is no understanding by, or intention of, Stockholder that in connection with any such Transfer or Transfers, a single purchaser, or group of related purchasers, will purchase Covered Shares representing 5% or more of the outstanding shares of Common Stock.
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(g)          Restricted Period.  As used herein, “Restricted Period” means from the date hereof until the earlier of:
 
(i)          the Adviser (or a successor thereof in which Buyer and its Affiliates own, in the aggregate, at least 50% of the equity interests) no longer serving as the investment adviser to the Company;
 
(ii)          Buyer and its Affiliates no longer owning, in the aggregate, at least 50% of the equity interests in the Adviser (or a successor thereof that serves as investment adviser to the Company);
 
(iii)          Stockholder and its Affiliates no longer owning, in the aggregate, at least 10% of the outstanding shares of the Common Stock; and
 
(iv)          the eighteen month anniversary of the date hereof.
 
Notwithstanding anything to the contrary in this Agreement, Buyer acknowledges and agrees that, as long as Stockholder has complied with its obligations set forth in Section 1 of this Agreement, Stockholder and its Affiliates shall be permitted to Transfer any Covered Shares to Stockholder’s and its Affiliates’ directors, officers, employees, consultants and other similar third persons as compensation, and the restrictions and obligations set forth in this Agreement shall not apply to such Covered Shares so Transferred; provided that in no event shall Stockholder or its Affiliates cause any such Transfer of Covered Shares to result in any such director, officer, employee, consultant or similar third person to own in excess of 2% of outstanding shares of the Company’s Common Stock.
 
2.          No Inconsistent Agreements.  Stockholder covenants that it has not and will not (a) enter into any legally binding agreement that would restrict, limit or interfere in any material respect with the performance of Stockholder’s obligations hereunder or (b) take action that would make any of its representations or warranties contained herein untrue or incorrect in any material respect or have the effect of preventing or disabling it from performing its obligations under this Agreement.
 
3.          Termination.  This Agreement shall terminate upon the earlier of (a) the date on which Buyer and Stockholder agree in writing to terminate this Agreement, (b) the expiration of the Restricted Period and (c) the entry into a definitive agreement between Stockholder and Buyer pursuant to which Buyer will acquire all of the Covered Shares from Stockholder (the earliest such date being referred to herein as the “Termination Date”).  Upon any such termination of this Agreement, this Agreement shall no longer be in force or effect and each party hereto shall be released and discharged from its obligations hereunder and shall have no liability to any other party hereto with respect to this Agreement or such obligations; provided, however, that no termination of this Agreement shall relieve any party hereto from any liability incurred by any other party hereto as a result of an intentional breach of a material term or condition of this Agreement prior to such termination.
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4.          Representations and Warranties of Stockholder.  Stockholder hereby represents and warrants to Buyer as follows:
 
(a)          Stockholder is the record and beneficial owner of the Shares, free and clear of Liens other than as created by this Agreement.  Stockholder has sole voting power, sole power of disposition and sole power to agree to all of the matters set forth in this Agreement, in each case with respect to all of such Shares with no limitations, qualifications or restrictions on such rights, subject to applicable securities laws and the terms of this Agreement.  Other than the Shares, Stockholder does not own beneficially or of record any (i) shares of capital stock or voting securities of the Company, (ii) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities of the Company or (iii) options or other rights to acquire from the Company any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company.  Other than pursuant to the Support and Voting Agreement, dated as of June 26, 2019, between Stockholder and ICM US (the “Voting Agreement”), the Shares are not subject to any voting trust agreement or other contract to which Stockholder is a party restricting or otherwise relating to the voting or Transfer (as defined below) of any Shares.
 
(b)          Stockholder is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation and has all requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder.  The execution, delivery and performance of this Agreement by Stockholder, the performance by Stockholder of its obligations hereunder and the consummation by Stockholder of the transactions contemplated hereby have been duly and validly authorized by Stockholder and no other corporate or organizational actions or proceedings on the part of Stockholder are necessary to authorize the execution and delivery by Stockholder of this Agreement, the performance by Stockholder of its obligations hereunder or the consummation by Stockholder of the transactions contemplated hereby.  This Agreement has been duly and validly executed and delivered by Stockholder and, assuming due authorization, execution and delivery by Buyer, constitutes a legal, valid and binding obligation of Stockholder, enforceable against Stockholder in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).
 
(c)          (i) Except for any filings that Buyer and Stockholder may mutually determine to be required under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, no filing with, and no permit, authorization, consent or approval of, any Governmental Authority is necessary on the part of Stockholder for the execution, delivery and performance of this Agreement by Stockholder or the consummation by Stockholder of the transactions contemplated hereby and (ii) except as would not reasonably be expected to prevent Stockholder from performing its obligations under this Agreement, neither the execution, delivery or performance of this Agreement by Stockholder nor the consummation by Stockholder of the transactions contemplated hereby nor compliance by Stockholder with any of the provisions hereof would (A) conflict with or violate, any provision of the organizational documents of Stockholder, (B) result in any breach or violation of, or constitute a default (or an event which, with notice or lapse of time or both, would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on such property or asset of Stockholder pursuant to, any contract to which Stockholder is a party or by which Stockholder or any property or asset of Stockholder is bound or affected or (C) violate any order, writ, injunction, decree, statute, rule or regulation applicable to Stockholder or any of Stockholder’s properties or assets.
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(d)          Stockholder understands and acknowledges that Buyer has entered into the Purchase Agreements, and will consummate the transactions contemplated thereby, in reliance upon Stockholder’s execution and delivery of this Agreement and the representations and warranties of Stockholder contained herein.
 
5.          Representations and Warranties of Buyer.  Buyer hereby represents and warrants to Stockholder as follows:
 
(a)          Buyer is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation and has all requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder.  The execution, delivery and performance of this Agreement by Buyer, the performance by Buyer of its obligations hereunder and the consummation by Buyer of the transactions contemplated hereby have been duly and validly authorized by Buyer and no other corporate or organizational actions or proceedings on the part of Buyer are necessary to authorize the execution and delivery by Buyer of this Agreement, the performance by Buyer of its obligations hereunder or the consummation by Buyer of the transactions contemplated hereby.  This Agreement has been duly and validly executed and delivered by Buyer and, assuming due authorization, execution and delivery by Stockholder, constitutes a legal, valid and binding obligation of Buyer, enforceable against Buyer in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).
 
(b)          (i) Except for any filings that Buyer and Stockholder may mutually determine to be required under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, no filing with, and no permit, authorization, consent or approval of, any Governmental Authority is necessary on the part of Buyer for the execution, delivery and performance of this Agreement by Buyer or the consummation by Buyer of the transactions contemplated hereby and (ii) except as would not reasonably be expected to prevent Buyer from performing its obligations under this Agreement, neither the execution, delivery or performance of this Agreement by Buyer nor the consummation by Buyer of the transactions contemplated hereby nor compliance by Buyer with any of the provisions hereof would (A) conflict with or violate, any provision of the organizational documents of Buyer, (B) result in any breach or violation of, or constitute a default (or an event which, with notice or lapse of time or both, would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on such property or asset of Buyer pursuant to, any contract to which Buyer is a party or by which Buyer or any property or asset of Buyer is bound or affected or (C) violate any order, writ, injunction, decree, statute, rule or regulation applicable to Buyer or any of Buyer’s properties or assets.
 
6.          Further Assurances.  From time to time, at the reasonable request of Buyer and without further consideration or the incurrence of any cost or expense on the part of Stockholder, Stockholder shall take such further action as may be reasonably necessary to consummate and make effective the transactions contemplated by this Agreement.
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7.          Amendment and Modification.  This Agreement may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument in writing specifically designated as an amendment hereto and signed on behalf of each party hereto and otherwise as expressly set forth herein.
 
8.          Waiver.  No failure or delay of any party in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, or any course of conduct, preclude any other or further exercise thereof or the exercise of any other right or power.  The rights and remedies of the parties hereunder are cumulative and are not exclusive of any rights or remedies which they would otherwise have hereunder.  Any agreement on the part of a party to any such waiver shall be valid only if set forth in a written instrument executed and delivered by such party.
 
9.          Notices.  Each notice, request, demand or other communication under this Agreement will be in writing and will be deemed to have been duly given or made as follows:  (i) if sent by registered or certified mail in the United States, return receipt requested, then such communication will be deemed duly given and made upon receipt; (ii) if sent by nationally recognized overnight air courier (such as UPS or Federal Express), then such communication will be deemed duly given and made two Business Days after being sent; (iii) if sent by email before 5:00 p.m. (based on the time zone of the recipient) on any Business Day, then such communication will be deemed duly given and made when receipt is confirmed; (iv) if sent by email on a day other than a Business Day and receipt is confirmed, or if sent after 5:00 p.m. (based on the time zone of the recipient) on any Business Day and receipt is confirmed, then such communication will be deemed duly given and made on the Business Day following the date which receipt is confirmed; and (v) if otherwise personally delivered to a duly authorized representative of the recipient, then such communication will be deemed duly given and made when delivered to such authorized representative; provided that, in all cases, such notices, requests, demands and other communications are delivered to the address set forth below, or to such other address as any party will provide by like notice to the other parties to this Agreement:
 
if to Buyer, to:
 
Investcorp BDC Holdings Limited
c/o Investcorp Credit Management US LLC
280 Park Avenue, 36th Floor
New York, New York 10017
Attention:  Patrick Maloney
Email:  pmaloney@investcorp.com
 
with a copy (which shall not constitute notice) to:
 
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166
Attention:  William Rustum
Email:  wrustum@gibsondunn.com
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if to Stockholder, to:
 
Stifel Venture Corp.
c/o Stifel Financial Corp.
787 7th Avenue, 11th Floor
New York, New York 10019
Attn:  Mark P. Fisher
Email:  mfisher@stifel.com
 
with a copy (which shall not constitute notice) to:
 
Dechert LLP
1095 Avenue of the Americas
New York, New York 10036
Attention:  Kenneth E. Young and Stephen Pratt
Email: ken.young@dechert.com and stephen.pratt@dechert.com
 
10.          Entire Agreement.  This Agreement represents the entire understanding of the parties hereto with reference to the subject matter hereof and supersedes any and all other oral or written agreements heretofore or theretofore made.
 
11.          Governing Law.  All disputes, claims or controversies arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, shall be governed by and construed in accordance with the Laws of the State of Delaware without regard to its rules of conflict of laws.
 
12.          Jurisdiction; WAIVER OF JURY TRIAL.  Each of the parties hereto hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the Court of Chancery of the State of Delaware, or to the extent such Court does not have subject matter jurisdiction, any federal court sitting in the State of Delaware (the “Chosen Courts”) for any litigation arising out of or relating to this Agreement (and agrees not to commence any litigation relating thereto except in such courts), waives any objection to the laying of venue of any such litigation in the Chosen Courts and agrees not to plead or claim in any Chosen Court that such litigation brought therein has been brought in any inconvenient forum.  Each of the parties hereto agrees, (i) to the extent such party is not otherwise subject to service of process in the State of Delaware, to appoint and maintain an agent in the State of Delaware as such party’s agent for acceptance of legal process and (ii) that service of process may also be made on such party in accordance with the notice provisions contained in Section 9 above.  Service made pursuant to (i) or (ii) above shall have the same legal force and effect as if served upon such party personally within the State of Delaware.  EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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13.          Assignment; Successors.  Neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned or delegated, in whole or in part, by operation of law or otherwise, by either party without the prior written consent of the other party.  Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and assigns.
 
14.          Enforcement.  Each party acknowledges and agrees that in the event of any breach of this Agreement, the other party would be irreparably and immediately harmed and could not be made whole by monetary damages.  It is accordingly agreed that, with respect to any such breach, (a) the non-breaching party shall be entitled, in addition to any other remedy to which it may be entitled at law or in equity, to compel specific performance of this Agreement in any action as well as such damages as may be appropriate and (b) the breaching party will waive, in any action for specific performance, the defense of adequacy of a remedy at law and any requirement for the securing or posting of any bond in connection with any such action.
 
15.          Severability.  If any term, provision, covenant or restriction of this Agreement is held by a Chosen Court to be invalid, void, unenforceable or against its regulatory policy, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
 
16.          Counterparts.  This Agreement may be executed in two or more counterparts, including by facsimile or electronic transmission, which together shall constitute a single agreement.
 
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, Buyer and Stockholder have caused to be executed or executed this Agreement as of the date first written above.

 
INVESTCORP BDC HOLDINGS LIMITED
   
 
By:  The Director Ltd.,
   
 
/s/  Toni Pinkerton
 
Name:  Toni Pinkerton
 
Title:  Director

[Signature Page to Right of First Offer Agreement - Stifel]
 


 
STIFEL VENTURE CORP.
     
 
By:
/s/  Victor Nesi
   
Name:  Victor Nesi
   
Title:  Vice President

[Signature Page to Right of First Offer Agreement - Stifel]


ex99_5.htm EXHIBIT F


>

Exhibit F

JOINT FILING STATEMENT

I, the undersigned, hereby express my agreement that the attached Schedule 13D (and any amendments thereto) relating to the Common Stock of Investcorp Credit Management BDC, Inc. is filed on behalf of each of the undersigned.

Dated: October 4, 2019

INVESTCORP BDC HOLDINGS LIMITED, by The Director Ltd.
 
INVESTCORP CREDIT MANAGEMENT US LLC
         
         
By:
/s/ Toni Pinkerton
 
By:
/s/ Patrick Maloney
 
Name: Toni Pinkerton
   
Name: Patrick Maloney
 
Title: Director
   
Title: General Counsel
         
         
SIPCO HOLDINGS LIMITED
 
INVESTCORP S.A.
         
         
By:
/s/ Rasha Sabkar
 
By:
/s/ Daniele Vecchi
 
Name: Rasha Sabkar
   
Name: Daniele Vecchi
 
Title: Director
   
Title: Director



Additional Files
FileSequenceDescriptionTypeSize
0001140361-19-017997.txt   Complete submission text file   339435

© 2019 SEC.report
SEC CFR Title 17 of the Code of Federal Regulations.