Form SC 13D/A Stifel Financial Corp

[Amend] General statement of acquisition of beneficial ownership

Published: 2019-10-04 12:57:00
Submitted: 2019-10-04
d793936dsc13da.htm SC 13D/A


ENT> SC 13D/A 1 d793936dsc13da.htm SC 13D/A

SC 13D/A

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. 1)*

 

 

INVESTCORP CREDIT MANAGEMENT BDC, INC.

(Name of Issuer)

Common Stock, $0.001 par value per share

(Title of Class of Securities)

12574Q103

(CUSIP Number)

Bryan Cave Leighton Paisner LLP

One Metropolitan Square

211 North Broadway, Suite 3600

St. Louis, Missouri 63102

Attention: Robert J. Endicott and Todd M. Kaye

Telephone: (314)

259-2000

(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

Rule 13d-1(e),
13d-1(f)
or
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

§240.13d-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.

 

 

 


  1    

  NAMES OF REPORTING PERSONS

 

  Stifel Financial Corp.

  2    

  CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

  (a)  ☐        (b)  ☒

 

  3    

  SEC USE ONLY

 

  4    

  SOURCE OF FUNDS

 

  WC

  5    

  CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 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

 

  2,181,8181

  9     

  SOLE DISPOSITIVE POWER

 

  0

  10     

  SHARED DISPOSITIVE POWER

 

  2,181,8181

11    

  AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

  2,181,8181

12    

  CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES

 

  ☐

13    

  PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

  16.0%2

14    

  TYPE OF REPORTING PERSON

 

  HC

 

1

All such shares are owned directly by Stifel Venture Corp., which is a direct wholly-owned subsidiary of Stifel Financial Corp.

2

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 (“SEC”) on September 17, 2019.


  1    

  NAMES OF REPORTING PERSONS

 

  Stifel Venture Corp.

  2    

  CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

  (a)  ☐        (b)  ☒

 

  3    

  SEC USE ONLY

 

  4    

  SOURCE OF FUNDS

 

  AF

  5    

  CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)

 

  ☐

  6    

  CITIZENSHIP OR PLACE OF ORGANIZATION

 

  Missouri

NUMBER OF

SHARES

  BENEFICIALLY  

OWNED BY

EACH

REPORTING

PERSON

WITH

    7     

  SOLE VOTING POWER

 

  0

  8     

  SHARED VOTING POWER

 

  2,181,818

  9     

  SOLE DISPOSITIVE POWER

 

  0

  10     

  SHARED DISPOSITIVE POWER

 

  2,181,818

11    

  AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

  2,181,818

12    

  CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES

 

  ☐

13    

  PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

  16.0%

14    

  TYPE OF REPORTING PERSON

 

  CO

 

2


Explanatory Note

This Amendment No. 1 (the “Amendment”) to Schedule 13D (“Schedule 13D”) amends the statement on Schedule 13D of the Reporting Persons and relates to the common stock, par value $0.001 per share (the “Common Stock”) of Investcorp Credit Management BDC, Inc. (formerly known as CM Finance Inc), a Maryland corporation (the “Issuer”). 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 Act) of certain shares of the Issuer’s common stock. The Issuer’s principal executive offices are located at 65 East 55th Street, 15th Floor, New York, New York 10022. Except as otherwise set forth herein, this Amendment does not modify any of the information previously included in the Schedule 13D. Information given in response to each item shall be deemed incorporated by reference in all other items, as applicable.

 

Item 2.

Identity and Background.

 

  (a)

This statement is being filed jointly by Stifel Financial Corp. (“Stifel Financial”) and Stifel Venture Corp. (“Stifel Venture,” and together with Stifel Financial, the “Reporting Persons” or “Stifel”).

 

  (b)

The address of the principal business address for each of the Reporting Persons is One Financial Plaza, 501 North Broadway, St. Louis, Missouri 63102.

 

  (c)

Stifel Financial is a financial holding company that operates as a retail and institutional brokerage, and investment banking company in the United States and internationally.

Stifel Venture is a wholly-owned subsidiary of Stifel Financial Corp., which operates as a holding company for venture capital investments.

The information required by instruction C to Schedule 13D with respect to the executive officers and directors of each of the Reporting Persons (the “Executive Officers and Directors”) is set forth below. Except as otherwise indicated, the principal occupation of the Executive Officers and Directors are with the Reporting Person, and the principal business address for the Executive Officers and Directors is the address reported for the Reporting Person under Item 2(b) above.

A. Stifel Financial

Executive Officers:

Ronald J. Kruszewski, Chairman of the Board and Chief Executive Officer

Thomas W. Weisel,

Co-Chairman

James M. Zemlyak,

Co-President

Victor J. Nesi,

Co-President

James M. Marischen, Chief Financial Officer

 

3


Mark P. Fisher, Senior Vice President, General Counsel and Corporate Secretary

Richard J. Himelfarb, Senior Vice President

Thomas B. Michaud, Senior Vice President

Ben A. Plotkin, Senior Vice President

David D. Sliney, Chief Operating Officer

Hugo J. Warns III, Senior Vice President

Directors:

Ronald J. Kruszewski

Adam T. Berlew (principal occupation: Executive Director of Americas Marketing, Google Cloud, 1600 Amphitheatre Pkwy, Mountain View, CA 94043)

Kathleen Brown (principal occupation: Partner, Manatt, Phelps and Phillips, LLP; 11355 W. Olympic Blvd., Los Angeles, CA 90064)

Michael W. Brown (principal occupation: retired; address: c/o Morrow Executive Services, 14509 SW Peavine Road, McMinnville, OR 97128)

John P. Dubinsky (principal occupation: President and Chief Executive Officer, Westmoreland Associates, LLC, a financial consulting company, 7777 Bonhomme, Suite 1210, Clayton, MO 63105)

Robert E. Grady (principal occupation: Partner, Gryphon Investors, One Maritime Plaza, Suite 2300, San Francisco, California 94111)

Daniel J. Ludeman, Sr. (principal occupation: President and Chief Operating Officer, Concordance Academy of Leadership, 1845 Borman Ct, St. Louis, MO 63146)

Maura A. Markus (principal occupation: retired; address: One Financial Plaza, 501 North Broadway, St. Louis, Missouri 63102)

James M. Oates (principal occupation: Managing Director, The Wydown Group, a financial consulting firm, c/o Northeast Investment Management, Inc., 100 High Street, Suite 1000, Boston, MA 02110)

David A. Peacock (principal occupation: President and COO, Schnuck Markets, Inc.; address: 11420 Lackland Rd, St. Louis, MO 63146)

Thomas W. Weisel

Michael J. Zimmerman (principal occupation: Vice Chairman, Continental Grain Company, a privately held diversified international agribusiness and investment firm, 277 Park Avenue, New York, NY 10172)

B. Stifel Venture

Executive Officers:

Ronald J. Kruszewski, President

James M. Marischen, Chief Financial Officer and Treasurer

Mark P. Fisher, Secretary

Director:

Ronald J. Kruszewski

 

4


The address for each of the Executive Officers of both Stifel Financial Corp. and Stifel Venture Corp. is One Financial Plaza, 501 North Broadway, St. Louis, Missouri 63102-2102.

 

  (d)

During the last five years, neither of the Reporting Persons nor any of either Reporting Persons’ Executive Officers or Directors has been convicted in a criminal proceeding.

 

  (e)

During the last five years, neither the of the Reporting Persons nor any of either Reporting Persons’ Executive Officers or Directors has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which proceeding it 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)

Stifel Financial Corp. is a Delaware corporation. Stifel Venture Corp. is a Missouri corporation. Each of the Reporting Persons’ Executive Officers and Directors is a citizen of the United States of America.

 

Item 4.

Purpose of Transaction.

The information in Section 6 is incorporated by reference herein. The Reporting Persons entered into the transactions described herein for investment purposes. Except as described in this Schedule 13D, none of the Reporting Persons or, to the best of their knowledge, any of the Reporting Persons’ Executive Officers and Directors, 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 6.

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

Other than as described elsewhere in this Amendment and as previously included in the Schedule 13D, the Reporting Persons have no understandings, arrangements, relationships or contracts relating to the Issuer’s common stock which are required to be described hereunder.

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 Issuer 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 Issuer.

 

5


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 Agreement

In connection with the foregoing arrangements, Stifel Venture entered into a Voting Agreement with ICM (the “Voting Agreement”). The Voting Agreement provides that Stifel Venture will participate in stockholder meetings of the Issuer and vote Common Stock owned by it on the date of the Voting Agreement (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. The Voting Agreement provides that it 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) Stifel (along with its affiliates), as applicable, owning less than 7.5% of the total outstanding and issued Common Stock, (iv) the date, if any, on which Michael C. Mauer is no longer the

Co-Chief
Investment Officer of the investment adviser to the Issuer due to his termination without cause and (v) August 30, 2021 (the period prior to such determination, the “Restricted Voting Period”).

The Voting Agreement also provides that Stifel shall not call a special meeting of stockholders of the Issuer 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 Voting Agreement shall terminate upon the earlier of (a) the date on which the parties agree in writing to terminate the Voting Agreement, (b) the expiration of the Restricted Voting Period and (c) the entry into a definitive agreement between the parties pursuant to which IBDC acquires all of Stifel Venture’s Common Stock.

Right of First Offer Agreement

On August 30, 2019, Stifel Venture entered in to a Right of First Offer Agreement with IBDC (the “ROFO Agreement”). The ROFO Agreement provides that Stifel shall not sell, transfer, pledge, hypothecate, gift, bequest, devise, assign or otherwise dispose of Common Stock owned by it on the date of the ROFO Agreement, unless pursuant to a permitted transfer or as set forth below. The 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) Stifel (along with its affiliates), as applicable, owning less than 10% of the total issued and outstanding Common Stock and (iv) February 28, 2021 (the period prior to such termination, the “ROFO Period”).

 

6


If Stifel 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) transfers 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.

Exhibit

 

Number

  

Description

1.    Support and Voting Agreement, dated as of June 26, 2019, by and between Stifel Venture Corp. and Investcorp Credit Management US LLC.
2.    Right of First Offer Agreement, dated as of August 30, 2019, by and between Stifel Venture Corp. and Investcorp BDC Holdings Limited.

 

7


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

 

STIFEL FINANCIAL CORP.
By:  

/s/ James M. Marischen

Name: James M. Marischen
Title: Chief Financial Officer
STIFEL VENTURE CORP.
By:  

/s/ James M. Marischen

Name: James M. Marischen
Title: Chief Financial Officer

 

8

d793936dex991.htm EX-99.1


ENT> EX-99.1 2 d793936dex991.htm EX-99.1

EX-99.1

Exhibit 1

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

(e) the second anniversary of the Initial Closing Date (such period, the “Restricted Period”),

 

2


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

 

3


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).

(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

 

4


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.

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:

 

5


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.

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

 

6


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.]

 

7


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]

d793936dex992.htm EX-99.2


ENT> EX-99.2 3 d793936dex992.htm EX-99.2

EX-99.2

Exhibit 2

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.

(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

 

2


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.

(g) Restricted Period. As used herein, “Restricted Period” means from the date hereof until the earlier of:

 

3


(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.

 

4


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.

 

5


(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.

 

6


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

 

7


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.

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.]

 

9


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 Pinkerston
  Name: Toni Pinkerston
  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]

Additional Files
FileSequenceDescriptionTypeSize
0001193125-19-262533.txt   Complete submission text file   146482

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