UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
SCHEDULE 14A
(RULE 14a-101)
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Filed by the
Registrant þ
Filed by a Party other than the Registrant
o
Check the appropriate box:
þ Preliminary
Proxy Statement.
o Confidential,
for Use of the Commission Only (as permitted by
Rule 14a-6(e)(2)).
o Definitive
Proxy Statement.
o Definitive
Additional Materials.
o Soliciting
Material Pursuant to
Section 240.14a-12.
Triangle Capital Corporation
(Name of Registrant as Specified in
Its Charter)
(Name of Person(s) Filing Proxy
Statement if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
þ No
fee required.
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Fee computed on table below per Exchange Act
Rules 14a-6(i)(1)
and 0-11.
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(1)
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Title of each class of securities to which transaction applies:
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(2)
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Aggregate number of securities to which transaction applies:
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(3)
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Per unit price or other underlying value of transaction computed
pursuant to Exchange Act
Rule 0-11
(Set forth the amount on which the filing fee is calculated and
state how it was determined):
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(4)
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Proposed maximum aggregate value of transaction:
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Fee paid previously with preliminary materials.
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Check box if any part of the fee is offset as provided by
Exchange Act
Rule 0-11(a)(2)
and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration
statement number, or the form or schedule and the date of its
filing.
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(1)
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Amount previously paid:
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(2)
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Form, schedule or registration statement no.:
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3700
Glenwood Avenue, Suite 530
Raleigh, North Carolina 27612
(919) 719-4770
March [ ], 2010
Dear Stockholder:
You are cordially invited to attend Triangle Capital
Corporations 2010 Annual Meeting of Stockholders to be
held on Wednesday, May 5, 2010 at 8:30 a.m., Eastern
Time, at the Womans Club of Raleigh,
3300 Womans Club Drive, Raleigh, North Carolina 27612.
The notice of Annual Meeting and proxy statement accompanying
this letter provide an outline of the business to be conducted
at the meeting. I will also report on the progress of the
Company during the past year and answer stockholders
questions.
It is important that your shares be represented at the Annual
Meeting. If you are unable to attend the meeting in person, I
urge you to vote your shares by completing, dating and signing
the enclosed proxy card and promptly returning it in the
envelope provided. Your vote is important.
Sincerely yours,
Garland S. Tucker, III
President & Chief Executive Officer
TABLE OF CONTENTS
TRIANGLE
CAPITAL CORPORATION
3700 Glenwood Avenue,
Suite 530
Raleigh, North Carolina 27612
(919) 719-4770
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
To Be Held On Wednesday,
May 5, 2010
To the Stockholders of Triangle Capital Corporation:
The 2010 Annual Meeting of Stockholders of Triangle Capital
Corporation (the Company) will be held at the
Womans Club of Raleigh, 3300 Womans Club Drive,
Raleigh, North Carolina 27612, on Wednesday, May 5, 2010,
at 8:30 a.m. (Eastern Time) for the following purposes:
1. To elect eight directors to serve for one year and until
their successors have been duly elected and qualified
(Proposal No. 1);
2. To approve a proposal to authorize the Company, pursuant
to approval of its Board of Directors, to sell shares of its
common stock during the next year at a price below the
Companys then current net asset value (i.e., book value)
per share (Proposal No. 2);
3. To ratify the appointment of Ernst & Young LLP
as the Companys independent registered public accounting
firm for the fiscal year ending December 31, 2010
(Proposal No. 3); and
4. To transact such other business as may properly come
before the meeting.
You have the right to receive notice of and to vote at the
meeting if you were a stockholder of record at the close of
business on March 1, 2010. Whether or not you expect to be
present in person at the meeting, please sign the enclosed proxy
and return it promptly in the self-addressed envelope provided.
Instructions are shown on the proxy card. In the event there are
not sufficient votes for a quorum or to approve or ratify any of
the foregoing proposals at the time of the Annual Meeting, the
Annual Meeting may be adjourned in order to permit further
solicitation of the proxies by the Company.
By order of the Board of Directors,
Steven C. Lilly
Chief Financial Officer, Treasurer and Secretary
Raleigh, North Carolina
March [ ], 2010
This is an important meeting. To ensure proper representation
at the meeting, please complete, sign, date and return the proxy
card in the enclosed, self-addressed envelope. Even if you vote
your shares prior to the meeting, you still may attend the
meeting and vote your shares in person.
TRIANGLE
CAPITAL CORPORATION
3700 Glenwood Avenue, Suite 530
Raleigh, North Carolina 27612
(919) 719-4770
2010 Annual Meeting of
Stockholders
This proxy statement is furnished in connection with the
solicitation of proxies by the Board of Directors of Triangle
Capital Corporation (the Company,
Triangle, we, us or
our) for use at our 2010 Annual Meeting of
Stockholders to be held on Wednesday, May 5, 2010, at
8:30 a.m. (Eastern Time) at the Womans Club of
Raleigh, 3300 Womans Club Drive, Raleigh, North Carolina
27612, and at any adjournments thereof (the Annual
Meeting). The Notice of Annual Meeting, this proxy
statement, the accompanying proxy card and our annual report for
the fiscal year ended December 31, 2009 are first being
sent to stockholders on or about March [ ], 2010.
We encourage you to vote your shares, either by voting in person
at the meeting or by granting a proxy (i.e., authorizing someone
to vote your shares). If you properly sign and date the
accompanying proxy card, and we receive it in time for the
meeting, the persons named as proxies will vote the shares
registered directly in your name in the manner that you
specified. If you give no instructions on the proxy card, the
shares covered by the proxy card will be voted FOR the election
of the nominees as directors and FOR the other matters listed in
the accompanying Notice of Annual Meeting of Stockholders.
YOUR VOTE IS IMPORTANT. WHETHER OR NOT YOU PLAN TO ATTEND THE
MEETING, PLEASE PROMPTLY VOTE YOUR SHARES EITHER BY MAIL OR
BY TELEPHONE.
IMPORTANT NOTICE REGARDING THE AVAILABILITY OF PROXY
MATERIALS FOR THE ANNUAL MEETING TO BE HELD ON MAY 5, 2010:
The Notice of Annual Meeting, this proxy statement and our
annual report for the fiscal year ended December 31, 2009
are available at the following Internet address:
http://ir.tcap.com/annual-proxy.cfm.
INFORMATION
ABOUT THE MEETING
When is
the Annual Meeting?
The Annual Meeting will be held on Wednesday, May 5, 2010,
at 8:30 a.m. (Eastern Time).
Where
will the Annual Meeting be held?
The Annual Meeting will be held at the Womans Club of
Raleigh, 3300 Womans Club Drive, Raleigh, North Carolina
27612.
What
items will be voted on at the Annual Meeting?
There are three matters scheduled for a vote:
1. To elect eight directors to serve for one year and until
their successors have been duly elected and qualified
(Proposal No. 1);
2. To approve a proposal to authorize the Company, pursuant
to approval of our Board of Directors, to sell shares of its
common stock during the next year at a price below the
Companys then current net asset value (i.e., book value)
per share (Proposal No. 2); and
3. To ratify the appointment of Ernst & Young LLP
as the Companys independent registered public accounting
firm for the fiscal year ending December 31, 2010
(Proposal No. 3).
As of the date of this proxy statement, we are not aware of any
other matters that will be presented for consideration at the
Annual Meeting.
What are
the Board of Directors recommendations?
Our Board of Directors recommends that you vote:
FOR the election of each of the eight
nominees named herein to serve on the Board of Directors;
FOR the proposal to authorize the Company to
sell shares of its common stock during the next year at a price
below the Companys then current net asset value per share
(i.e., book value); and
FOR the ratification of the appointment of
Ernst & Young LLP as the Companys independent
registered public accounting firm for the fiscal year ending
December 31, 2010.
Will
Triangles directors be in attendance at the Annual
Meeting?
Triangle encourages, but does not require, its directors to
attend annual meetings of stockholders. However, Triangle
anticipates that all of its directors will attend the Annual
Meeting.
INFORMATION
ABOUT VOTING
Who is
entitled to vote at the Annual Meeting?
Only stockholders of record at the close of business on the
record date, March 1, 2010, are entitled to receive notice
of the Annual Meeting and to vote the shares for which they are
stockholders of record on that date at the Annual Meeting, or
any postponement or adjournment of the Annual Meeting. As of the
close of business on March 1, 2010, we had
11,934,594 shares of common stock outstanding and 72
stockholders of record.
Stockholders of Record: Shares Registered in Your
Name. If on March 1, 2010, your shares were
registered directly in your name with Triangles transfer
agent, The Bank of New York Mellon, then you are a stockholder
of record. As a stockholder of record, you may vote in person at
the Annual Meeting or vote by
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proxy. Whether or not you plan to attend the Annual Meeting, we
urge you to fill out and return the enclosed proxy card to
ensure your vote is counted.
Beneficial Owners: Shares Registered in the Name of a
Broker or Bank. If on March 1, 2010, your
shares were held in an account at a brokerage firm, bank, dealer
or other similar organization, then you are the beneficial owner
of shares held in street name, and these proxy
materials are being forwarded to you by that organization. The
organization holding your account is considered the stockholder
of record for purposes of voting at the Annual Meeting. As a
beneficial owner, you have the right to direct your broker or
other agent on how to vote the shares in your account. You are
also invited to attend the Annual Meeting. However, since you
are not the stockholder of record, you may not vote your shares
in person at the Annual Meeting unless you request and obtain a
valid proxy from your broker or other agent.
How do I
vote?
With respect to Proposal No. 1, you may either vote
FOR all the nominees to the Board of Directors, or
you may vote WITHHOLD AUTHORITY for all nominees or
for any nominee you specify. For each of the other proposals to
be voted on, you may vote FOR or
AGAINST, or abstain from voting altogether. The
procedures for voting are fairly simple:
Stockholders of Record: Shares Registered in Your
Name. If you are a stockholder of record, you may
vote in person at the Annual Meeting or vote by proxy using the
enclosed proxy card. Whether or not you plan to attend the
Annual Meeting, we urge you to fill out and return the enclosed
proxy card to ensure your vote is counted. You may still attend
the Annual Meeting and vote in person if you have already voted
by proxy.
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To vote in person, come to the Annual Meeting, and we will give
you a ballot when you arrive.
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To vote using the enclosed proxy card, simply complete, sign and
date the enclosed proxy card and return it promptly in the
postage paid envelope provided. If you return your signed proxy
card to us before the Annual Meeting, we will vote your shares
as you direct.
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Beneficial Owners: Shares Registered in the Name of a
Broker or Bank. If you are a beneficial owner of
shares registered in the name of your broker, bank or other
agent, you should have received a proxy card and voting
instructions with these proxy materials from that organization
rather than from Triangle. Simply complete and mail the proxy
card to ensure that your vote is counted. Alternatively, you may
be able to vote by telephone or over the Internet as instructed
by your broker or bank. To vote in person at the Annual Meeting,
you must obtain a valid proxy from your broker, bank or other
agent. Follow the instructions from your broker or bank included
with these proxy materials, or contact your broker or bank to
request a proxy form.
How many
votes do I have?
On each matter to be voted upon, you have one vote for each
share of common stock for which you are the stockholder of
record as of March 1, 2010.
What if I
return a proxy card but do not make specific choices?
If you return a signed and dated proxy card without marking any
voting selections, your shares will be voted: FOR
the election of each of the eight nominees named herein to serve
on the Board of Directors; FOR the proposal to
authorize the Company to sell shares of its common stock during
the next year at a price below the Companys then current
net asset value (i.e., book value) per share; and
FOR the ratification of the appointment of
Ernst & Young LLP as Triangles independent
registered public accounting firm for the fiscal year ending
December 31, 2010.
If any other matter is properly presented at the meeting, your
proxy (one of the individuals named on your proxy card) will
vote your shares as recommended by the Board of Directors or, if
no recommendation is given, will vote your shares using his or
her best judgment.
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Can I
change my vote after submitting my proxy card?
Yes. You can revoke your proxy at any time before the final vote
at the Annual Meeting. If you are the record holder of your
shares, you may revoke your proxy in any one of three ways:
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You may submit another properly completed proxy bearing a later
date;
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You may send a written notice that you are revoking your proxy
to Triangle Capital Corporation, 3700 Glenwood Avenue,
Suite 530, Raleigh, North Carolina 27612, Attention: Steven
C. Lilly, Corporate Secretary; or
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You may attend the Annual Meeting and notify the election
officials at the Annual Meeting that you wish to revoke your
proxy and vote in person. Simply attending the Annual Meeting,
however, will not, by itself, revoke your proxy.
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If your shares are held by your broker or bank as a nominee or
agent, you should follow the instructions provided by your
broker or bank.
How are
votes counted?
Votes will be counted by the inspector of election appointed for
the Annual Meeting, who will separately count FOR
and WITHHOLD AUTHORITY votes, and, with respect to
proposals other than the election of directors,
AGAINST, ABSTAIN and broker non-votes. A
broker non-vote occurs when a nominee, such as a broker or bank,
holding shares for a beneficial owner does not vote on a
particular proposal because the nominee does not have
discretionary voting power with respect to that proposal and has
not received instructions with respect to that proposal from the
beneficial owner. In the event that a broker, bank, custodian,
nominee or other record holder of our common stock indicates on
a proxy that it does not have discretionary authority to vote
certain shares on a particular proposal, then those shares will
be treated as broker non-votes with respect to that proposal.
Accordingly, if you own shares through a nominee, such as a
broker or bank, please be sure to instruct your nominee how to
vote to ensure that your vote is counted on each of the
proposals.
If your shares are held by your broker as your nominee (that is,
in street name), you will need to obtain a proxy
form from the institution that holds your shares and follow the
instructions included on that form regarding how to instruct
your broker to vote your shares. Please note that brokers that
have not received voting instructions from their clients cannot
vote on their clients behalf on non-routine
proposals, such as the proposals to elect eight directors and to
allow the Company to issue shares of common stock below net
asset value (Proposal Nos. 1 and 2), but may vote their
clients shares on Proposal No. 3.
Abstentions and broker non-votes will be treated as shares
present for the purpose of determining the presence of a quorum
for the transaction of business at the Annual Meeting.
How many
votes are needed to approve each proposal?
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For Proposal No. 1, the eight nominees receiving the
most FOR votes, among votes properly cast in person
or by proxy, will be elected. If you vote WITHHOLD
AUTHORITY with respect to one or more nominees, your
shares will not be included in determining the number of votes
cast and, as a result, will have no effect on this proposal. In
addition, for purposes of the vote on this proposal, broker
non-votes will have the same effect as votes to withhold
authority for all nominees, which, as stated in the previous
sentence, would have no effect on this proposal.
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To be approved, Proposal No. 2 must receive
FOR votes from (1) a majority of the
outstanding shares of common stock entitled to vote at the
Annual Meeting and (2) a majority of the outstanding shares
of common stock entitled to vote at the Annual Meeting which are
not held by affiliated persons of the Company. With respect to
Proposal No. 2 only, Section 2(a)(42) of the
Investment Company Act of 1940, or the 1940 Act, defines a
majority of the outstanding shares as the lesser of:
(1) 67% or more of the common stock of Triangle present or
represented by proxy at the Annual Meeting, if the holders of
more than 50% of Triangles common stock are present or
represented by proxy; or (2) more than
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50% of the outstanding common stock of Triangle. For purposes of
the vote on this proposal, abstentions and broker non-votes will
have the effect of votes against the proposal, although they
will be considered present for purposes of determining the
presence of a quorum.
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To be approved, Proposal No. 3 must receive
FOR votes from a majority of all votes cast at the
Annual Meeting, whether in person or by proxy. For purposes of
the vote on this proposal, abstentions and broker non-votes will
not be counted as votes cast and will have no effect on the
result of the vote, although they will be considered present for
the purpose of determining the presence of a quorum.
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How many
shares must be present to constitute a quorum for the Annual
Meeting?
A quorum of stockholders is necessary to hold a valid meeting. A
quorum will be present if at least a majority of the outstanding
shares entitled to vote are represented by stockholders present
at the Annual Meeting or by proxy. On March 1, 2010, the
record date, there were 11,934,594 shares outstanding and
entitled to vote. Thus, 5,967,298 shares must be
represented by stockholders present at the Annual Meeting or by
proxy to have a quorum.
Your shares will be counted towards the quorum only if you
submit a valid proxy (or one is submitted on your behalf by your
broker, bank or other nominee) or if you vote in person at the
Annual Meeting. Abstentions and broker non-votes will be counted
towards the quorum requirement.
If a quorum is not present at the Annual Meeting, or if a quorum
is present but there are not enough votes to approve one or more
of the proposals, the person named as chairman of the Annual
Meeting may adjourn the meeting to permit further solicitation
of proxies. A stockholder vote may be taken on one or more of
the proposals in this proxy statement prior to any such
adjournment if there are sufficient votes for approval on such
proposal(s).
How can I
find out the results of the voting at the Annual
Meeting?
Preliminary voting results will be announced at the Annual
Meeting and filed on
Form 8-K
within four business days of the Annual Meeting. Final results
will be published on an amended
Form 8-K
within four days after the final voting results are established.
ADDITIONAL
INFORMATION
How and
when may I submit a stockholder proposal for Triangles
2011 Annual Meeting?
Our annual meeting of stockholders generally is held in May of
each year. We will consider for inclusion in our proxy materials
for the 2011 Annual Meeting of Stockholders, stockholder
proposals that are received at our executive offices, in
writing, no earlier than
[ ],
2010, and no later than 5:00 p.m. (Eastern Time) on
[ ],
2010, and that comply with our bylaws and all applicable
requirements of
Rule 14a-8
promulgated under the Securities Exchange Act of 1934, as
amended, or the Exchange Act. Proposals must be sent to our
Corporate Secretary at Triangle Capital Corporation, 3700
Glenwood Avenue, Suite 530, Raleigh, North Carolina 27612.
On February 24, 2009, our Board of Directors approved and
adopted our Second Amended and Restated Bylaws of the Company.
Pursuant to our Second Amended and Restated Bylaws, stockholders
wishing to submit proposals or director nominations that are not
to be included in our proxy materials must have given timely
notice thereof in writing to our Corporate Secretary. To be
timely for the 2011 Annual Meeting of Stockholders, you must
notify our Corporate Secretary, in writing, no earlier than
[ ],
2010, and no later than 5:00 p.m. (Eastern Time) on
[ ],
2010. We also advise you to review Triangles bylaws, which
contain additional requirements about advance notice of
stockholder proposals and director nominations, including the
different notice submission date requirements in the event that
our 2011 Annual Meeting of Stockholders is held before
April 6, 2011 or after June 5, 2011. In accordance
with our bylaws, the chairman of the 2011 Annual Meeting of
Stockholders may determine, if the facts warrant, that a matter
has not been properly brought before the meeting and, therefore,
may not be considered at the meeting.
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If a stockholder is recommending a candidate to serve on the
Board of Directors, the recommendation must include all
information specified in our bylaws, including the following:
1. Information as to each individual whom the stockholder
proposes to nominate for election or reelection:
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all information relating to the candidate that would be required
to be disclosed in connection with the solicitation of proxies
for the election of the candidate as a director in an election
contest (even if an election contest is not involved), or would
otherwise be required in connection with such solicitation, in
each case pursuant to Regulation 14A (or any successor
provision) under the Exchange Act and its rules (including the
candidates written consent to being named in the proxy
statement as a nominee and to serving as a director if elected).
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2. As to the stockholder giving the notice, any candidate
and any stockholder associated person (a stockholder
associated person is a person who acts in concert with the
stockholder giving notice, owns Triangles securities with
such stockholder (other than a stockholder that is a depository)
or directly or indirectly controls, or is controlled by, or is
under common control with such stockholder):
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the class, series and number of all shares of stock or other
securities of Triangle or any of its affiliates, which are owned
(beneficially or of record) by such stockholder, candidate or
stockholder associated person;
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the date on which each security of Triangle was acquired and the
investment intent of such acquisition, and any short interest
(including any opportunity to profit or share in any benefit
from any decrease in the price of such stock or other security)
in any stockholder associated person of any such person;
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the candidate holder for, and number of, any security of
Triangle owned beneficially but not of record by such
stockholder, candidate or stockholder associated person;
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whether and the extent to which such stockholder, candidate or
stockholder associated person, directly or indirectly, is
subject to or during the last six months has engaged in any
hedging, derivative or other transaction or series of
transactions or entered into any other agreement, arrangement or
understanding (including any short interest, any borrowing or
lending of securities or any proxy or voting agreement), the
effect or intent of which is (1) to manage risk or benefit
of changes in the price of any security of Triangle or the
security of any entity that was listed in the peer group in the
stock performance graph in the most recent annual report to
security holders of Triangle for such stockholder, candidate or
stockholder associated person or (2) to increase or
decrease the voting power of such stockholder, candidate or
stockholder associated person of Triangle or any of its
affiliates disproportionately to such persons economic
interest in Triangles securities;
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any substantial interest, direct or indirect, by security
holdings or otherwise, of such stockholder, candidate or
stockholder associated person, in Triangle or any of its
affiliates, other than an interest arising from the ownership of
any security of Triangle where such stockholder, candidate or
stockholder associated person receives no extra or special
benefit not shared on a pro rata basis by all other holders of
the same class or series; and
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whether such stockholder believes any candidate is, or is not,
an interested person of Triangle, as defined in the
1940 Act, and information regarding such candidate that is
sufficient, in the discretion of our board or any of its
committees or any authorized officer of Triangle, to make such
determination.
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3. As to the stockholder giving the notice, any stockholder
associated person with an interest or ownership and any
candidate:
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the name and address of such stockholder, as they appear on
Triangles stock ledger, and the current name and business
address, if different, of each such stockholder associated
person and any candidate;
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the investment strategy or objective, if any, of such
stockholder and each such stockholder associated person who is
not an individual and a copy of the prospectus, offering
memorandum or similar document, if any, provided to investors or
potential investors in such stockholder, and each such
stockholder associated person; and
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to the extent known by the stockholder giving the notice, the
name and address of any other stockholder supporting the
candidate for election or reelection as a director or the
proposal of other business on the date of such
stockholders notice.
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The above procedures regarding stockholder nominations of
directors in our Second Amended and Restated Bylaws reflect the
material changes and clarifications to those procedures which
were in place pursuant to our previous bylaws.
How can I
obtain Triangles Annual Report on
Form 10-K?
A stockholders letter and a copy of our Annual Report on
Form 10-K
for the fiscal year ended December 31, 2009, which together
constitute our 2009 Annual Report to stockholders, are being
mailed along with this proxy statement. Our 2009 Annual Report
is not incorporated into this proxy statement and shall not be
considered proxy solicitation material.
We will also mail to you without charge, upon written
request, a copy of any specifically requested exhibit to our
Annual Report on
Form 10-K
for the fiscal year ended December 31, 2009. Requests
should be sent to: Corporate Secretary, Triangle Capital
Corporation, 3700 Glenwood Avenue, Suite 530, Raleigh,
North Carolina 27612. A copy of our Annual Report on
Form 10-K
has also been filed with the SEC and may be accessed from the
SECs homepage
(http://www.sec.gov).
Who is
paying for this proxy solicitation?
We will pay for the entire cost of soliciting proxies. We
estimate that we will pay The Altman Group, Inc., our proxy
solicitor, a fee of approximately $30,000 to solicit proxies,
though the costs of this proxy solicitation process could be
lower or higher than our estimate. In addition to these written
proxy materials, our proxy solicitor, directors and employees
may also solicit proxies in person, by telephone or by other
means of communication; however, our directors and employees
will not be paid any additional compensation for soliciting
proxies. We may also reimburse brokerage firms, banks and other
agents for the cost of forwarding proxy materials to beneficial
owners.
How many
copies should I receive if I share an address with another
stockholder?
The SEC has adopted rules that permit companies and
intermediaries, such as brokers, to satisfy the delivery
requirements for proxy statements and annual reports with
respect to two or more stockholders sharing the same address by
delivering a single proxy statement addressed to those
stockholders. This process, which is commonly referred to as
householding, potentially provides extra convenience
for stockholders and cost savings for companies.
Brokers may be householding our proxy materials by delivering a
single proxy statement and Annual Report to multiple
stockholders sharing an address unless contrary instructions
have been received from the affected stockholders. Once you have
received notice from your broker that they will be householding
materials to your address, householding will continue until you
are notified otherwise or until you revoke your consent. If at
any time you no longer wish to participate in householding and
would prefer to receive a separate proxy statement and Annual
Report, or if you are receiving multiple copies of the proxy
statement
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and Annual Report and wish to receive only one, please notify
your broker if your shares are held in a brokerage account or us
if you are a stockholder of record. You can notify us by sending
a written request to: Steven C. Lilly, Corporate Secretary,
Triangle Capital Corporation, 3700 Glenwood Avenue,
Suite 530, Raleigh, North Carolina 27612, or by calling
(919) 719-4770.
In addition, Triangle will promptly deliver, upon written or
oral request to the address or telephone number above, a
separate copy of the annual report and proxy statement to a
stockholder at a shared address to which a single copy of the
documents was delivered.
Whom
should I contact if I have any questions?
If you have any questions about the Annual Meeting, these proxy
materials or your ownership of our common stock, please contact
Steven C. Lilly
c/o Triangle
Capital Corporation, 3700 Glenwood Avenue, Suite 530,
Raleigh, North Carolina 27612, Telephone:
919-719-4770,
or by Fax:
919-719-4777.
PROPOSAL NO. 1
ELECTION
OF DIRECTORS
Our bylaws provide that our Board of Directors will consist of
no less than one director and no greater than twelve directors.
The number of directors is set at eight. Directors are elected
for a term of one year, with each directors term of office
expiring the following year. Directors serve until their
successors are elected and qualified.
The current directors, Messrs. Burgess, Dunwoody, Gambill,
Goldstein, Lilly, Rich, Smith and Tucker, have been nominated by
our Board of Directors (upon the recommendation by our
nominating and corporate governance committee) for election for
a one-year term expiring in 2011. With the exception of
Mr. Gambill who was appointed by the Board in August of
2009, each director was initially elected as a director by the
sole stockholder of the Company prior to our initial public
offering in February 2007. No person being nominated as a
director is being proposed for election pursuant to any
agreement or understanding between us and any such person. Each
director has agreed to serve as a director if elected and has
consented to be named as a nominee.
A stockholder can vote for or withhold his or her vote from any
or all of the nominees. In the absence of instructions to the
contrary, it is the intention of the persons named as proxies to
vote such proxy for the election of all the nominees named
below. If any of the nominees should decline or be unable to
serve as a director, it is intended that the proxy will be voted
for the election of such person or persons who are nominated as
replacements. The Board of Directors has no reason to believe
that any of the persons named will be unable or unwilling to
serve.
Information
about the Nominees
Certain information, as of March [ ], 2010, with
respect to each of the eight nominees for election at the Annual
Meeting, all of whom currently serve as our directors, is set
forth below, including their names, ages, a brief description of
their recent business experience, including present occupations
and employment, certain directorships that each nominee holds,
and the year in which each nominee became a director of the
Company. Each directors current term expires on
May 5, 2010, the Annual Meeting date.
Certain of our directors who are also officers of the Company
may serve as directors of, or on the boards of managers of,
certain of our portfolio companies. In addition, the Board of
Directors of Triangle Mezzanine Fund LLLP, our wholly-owned
consolidated subsidiary that has elected to be treated as a
business development company, or BDC, under the 1940 Act
(Triangle Mezzanine Fund), is composed of all of the
Companys directors. The business address of each nominee
listed below is 3700 Glenwood Avenue, Suite 530, Raleigh,
North Carolina 27612.
8
Nominees
for Directors
Interested
Directors
Messrs. Tucker, Burgess and Lilly are interested persons
as defined in the 1940 Act due to their positions as officers of
the Company.
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Name
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Age
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Background Information
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Garland S. Tucker, III
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62
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Mr. Tucker has served as Chairman of our Board of
Directors, Chief Executive Officer and President since 2006 and
is a member of our investment committee. Mr. Tucker was a
co-founder of Triangle Capital Partners, LLC, the former
external manager of Triangle Mezzanine Fund prior to our IPO.
Prior to co-founding Triangle Capital Partners, LLC in 2000,
Mr. Tucker and an outside investor group sold First
Travelcorp, a corporate travel services company that he and the
investors founded in 1991. For the two years preceding the
founding of First Travelcorp, Mr. Tucker served as Group
Vice President, Chemical Bank, New York, with responsibility for
southeastern corporate finance. Prior to Chemical Bank,
Mr. Tucker spent a decade with Carolina Securities
Corporation, serving as President and Chief Executive Officer
until 1988. During his tenure, Carolina Securities Corporation
was a member of the New York Stock Exchange, and Mr. Tucker
served a term as President of the Mid-Atlantic Securities
Industry Association. Mr. Tucker entered the securities
business in 1975 with Investment Corporation of Virginia. He is
a graduate of Washington & Lee University and Harvard
Business School.
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Brent P.W. Burgess
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44
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Mr. Burgess has served as our Chief Investment Officer and
member of our Board of Directors since 2006 and is a member of
our investment committee. Mr. Burgess was a co-founder of
Triangle Capital Partners, LLC. Prior to joining Triangle, he
was Vice President for five years at Oberlin Capital, an SBIC
mezzanine fund. He began his private equity career in 1996 with
Cherokee International Management, a Raleigh based private
equity firm, where he worked as an analyst and associate. He
previously served on the Board of Governors of the National
Association of SBICs and is a past president of the Southern
Regional Association of SBICs. He is a graduate of the
University of Regina and Regent College, Vancouver.
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Steven C. Lilly
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40
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Mr. Lilly has served as our Chief Financial Officer,
Secretary, Treasurer and member of our Board of Directors since
2006 (as well as our Chief Compliance Officer since our IPO in
2007) and is a member of our investment committee. From
2005 to 2006, Mr. Lilly served as Chief Financial Officer
of Triangle Capital Partners, LLC. Prior to joining Triangle
Capital Partners in December, 2005, Mr. Lilly spent six and
a half years with SpectraSite, Inc., which prior to its sale in
August, 2005, was the third largest independent wireless tower
company in the United States. At SpectraSite, Mr. Lilly
served as Senior Vice President-Finance & Treasurer
and Interim Chief Financial Officer. On November 15, 2002,
SpectraSite Holdings, Inc. (SpectraSites predecessor
company) filed a voluntary petition for relief under
Chapter 11 of the Bankruptcy Code in the U.S. Bankruptcy
Court for the Eastern District of North Carolina to implement a
pre-negotiated financial restructuring pursuant to the
companys Plan of Reorganization, confirmed by the
Bankruptcy Court on January 28, 2003. Prior to SpectraSite,
Mr. Lilly was Vice President of the Media &
Communications Group with First Union Capital Markets (now Wells
Fargo and Company), specializing in arranging financings for
high growth, financial sponsor driven companies across the media
and telecommunications sector. Mr. Lilly is a graduate of
Davidson College and has completed the executive education
program at the University of North Carolinas
Kenan-Flagler School of Business.
|
9
Independent
Directors
Messrs. Dunwoody, Gambill, Goldstein, Rich and Smith are
considered independent for purposes of the 1940 Act.
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Name
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Age
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Background Information
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W. McComb Dunwoody
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65
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Since 2007, Mr. Dunwoody has served on our Board of
Directors and is a member of our compensation committee. He is
the founder of The Inverness Group Incorporated and a Managing
Member of Inverness Management LLC, a private equity investment
firm that specializes in management buyout transactions.
Inverness is not a parent, subsidiary or other affiliate of
Triangle. Prior to Inverness, Mr. Dunwoody began the
Corporate Finance Department of First City National Bank of
Houston as a Senior Vice President. From 1968 to 1975, he
worked in New York as an investment banker with The First Boston
Corporation and Donaldson, Lufkin & Jenrette.
Mr. Dunwoody currently serves on various corporate boards
of directors and was formerly the Chairman of the Executive
Committee of the Board of Directors of
National-Oilwell,
Inc. Mr. Dunwoodys community involvement includes the
co-founding of Imagine College, an education program serving
over 5,000 inner-city students. He received an undergraduate
degree in Business Administration from the University of
Texas Honors Program.
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Mark M. Gambill
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59
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On August 5, 2009, Mark M. Gambill was elected by our Board
of Directors to fill a vacant seat created in August 2008. In
addition, he has been appointed as a member of our nominating
and corporate governance committee. Mr. Gambill is a
co-founder and current Chairman of Cary Street Partners, a
Richmond, Virginia based advisory and wealth management firm.
From 1972 to 1999, Mr. Gambill was employed by Wheat First
Butcher Singer (Wheat). He served as head of
Wheats capital markets group in the late 1980s, where he
was responsible for investment banking, public finance, taxable
fixed income, municipal sales and trading, equity sales, trading
and research. He became President of Wheat in 1996. Wheat merged
with First Union Corporation in January 1998. Subsequent to
Wheats merger with First Union, Mr. Gambill served as
President of Wheat First Union. He later was named Head of
Equity Capital Markets of Wheat First Union. He currently serves
on the Board of Directors of Speedway Motorsports, Inc. (NYSE:
TRK) where he is Chairman of its audit committee and a member of
its compensation committee. Mr. Gambill is also a director
of NewMarket Corporation (NYSE: NEU) and serves on its audit
committee. Mr. Gambill graduated summa cum laude from
Hampden-Sydney College.
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10
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Name
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Age
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Background Information
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Benjamin S. Goldstein
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54
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Mr. Goldstein has served on our Board of Directors since
2007 and is a member of our compensation committee and chairs
our audit committee. He is currently the President and
co-founder of The Advisory Group, LLC, a real estate advisory,
development and investment firm based in Raleigh, North
Carolina. The Advisory Group is not a parent, subsidiary or
other affiliate of Triangle. Mr. Goldstein is also active
in his community, as he currently serves on the boards of the
Wake Education Partnership, based in Raleigh, North Carolina, as
well as Paragon Commercial Bank. Prior to
co-founding
The Advisory Group, Mr. Goldstein was President and Partner
of Roanoke Properties, the developer of a residential resort
real estate community on the Outer Banks of North Carolina,
which had a build out value of over $300 million. He spent
three years in the securities business, serving as the Chief
Financial Officer of Carolina Securities Corporation for one
year, and later named to head the Carolina Securities Division
of Thomson McKinnon Corporation, which had acquired Carolina
Securities. He began his career at KPMG, where he worked with
audit and consulting clients with an emphasis on the real estate
industry. A native of North Carolina, Mr. Goldstein is
a CPA and graduated from UNC-Chapel Hill with a degree in
business.
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Simon B. Rich, Jr.
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65
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Mr. Rich has served on our Board of Directors since 2007
and is a member of our audit committee and our nominating and
corporate governance committee. Mr. Rich is also a director
of Verenium Corporation, a company traded on the Nasdaq Global
Market under the symbol, VRNM. He retired in 2001
from his positions as Chief Executive Officer of Louis Dreyfus
Holding Co. and Chairman and Chief Executive Officer of Louis
Dreyfus Natural Gas, two affiliated Delaware and Oklahoma
companies, respectively, neither of which was a parent,
subsidiary or other affiliate of Triangle. As CEO,
Mr. Richs companies combined operations
included roles such as oil refinery processing, petroleum
product storage and distribution, natural gas production and
distribution and the merchandising and distribution of
electricity in North America and Europe, as well as the
merchandising and processing of agricultural products in North
America, South America and Europe. During Mr. Richs
tenure, his companies successfully partnered with Electricite de
France, creating EDF Trading, a company that currently
dispatches Frances electric generation system. From 2005
to 2006, Mr. Rich also served as a director and member of
the audit committee of Fisher Scientific. His work experience,
which spans more than thirty years, includes all aspects of the
energy and agriculture industries. His expertise involves
private equity investments with an emphasis on sustainability in
energy and agriculture. In addition to Mr. Richs
career in the energy and agriculture industries, he currently
serves as a trustee of Warren Wilson College and serves on the
Board of Directors of Environmental Defense. Mr. Rich is
also the former Chairman of the Board of Visitors of The
Nicholas School of the Environment and Earth Sciences at Duke
University, where he is now Emeritus and an adjunct instructor.
Mr. Rich holds an undergraduate degree in Economics from
Duke University.
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11
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Name
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Age
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Background Information
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Sherwood H. Smith, Jr.
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75
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Mr. Smith has served on our Board of Directors since 2007
and is a member of our audit committee, nominating and corporate
governance committee and our compensation committee. He
currently serves as a director of Franklin Street Partners, a
privately held investment management firm in Chapel Hill, North
Carolina. Until 2000 he served as a director of Carolina
Power & Light Company (now Progress Energy
Corporation), a company for which he has also served as
Chairman, President and Chief Executive Officer. In addition,
Mr. Smith has served as a director of Wachovia Corporation
(now Wells Fargo and Company), Nortel Networks, Springs
Industries, and Northwestern Mutual Life Insurance Company
(Trustee). Other than his current position as director,
Mr. Smith has never been employed by a parent, subsidiary
or other affiliate of Triangle. He has been a member of the
Business Roundtable and The Business Council and has served as
Chairman of the North Carolina Citizens for Business and
Industry. Mr. Smith has both an undergraduate and law
degree from the University of North Carolina at Chapel Hill.
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The Board of Directors recommends that you vote
FOR the election of the nominees named in this proxy
statement.
Qualifications
of Director Nominees
When considering whether our director nominees have the
experience, qualifications, attributes and skills, taken as a
whole, to enable our Board of Directors to satisfy its oversight
responsibilities effectively in light of our operational and
organizational structure, the Nominating and Corporate
Governance Committee and the Board of Directors focused
primarily on the information discussed in each of the director
nominees individual biographies set forth above and on the
following particular attributes:
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Mr. Tucker: The Nominating and Corporate
Governance Committee and Board of Directors considered his prior
service to the Company as its Chairman, President and Chief
Executive Officer and his thirty-five years of experience in the
financial and investment industries and determined that his
intimate knowledge of the Company and his familiarity with the
financial and investment industries are critical to the
oversight of our strategic goals and the evaluation of our
operational performance.
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Mr. Burgess: The Nominating and Corporate
Governance Committee and Board of Directors considered his
successful history with the Company as its Chief Investment
Officer and member of our Board of Directors and extensive
experience in leading and managing investments and determined
that his strong leadership and comprehensive knowledge of the
investment industry are integral to the oversight of our
investment goals.
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Mr. Lilly: The Nominating and Corporate
Governance Committee and Board of Directors considered his prior
service to the Company as its Chief Financial Officer,
Secretary, Treasurer and Chief Compliance Officer and his broad
experience and leadership in the financial industry and
determined that his intimate knowledge of the Company and
extensive experience in the financial industry are crucial to
the evaluation of our operational performance and financial
goals.
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Mr. Dunwoody: The Nominating and
Corporate Governance Committee and Board of Directors considered
his extensive experience and leadership in public and private
companies and determined that his broad experience enhances his
participation to the Board and oversight of our compensation
objectives.
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Mr. Gambill: The Nominating and Corporate
Governance Committee and Board of Directors considered his
involvement in the capital markets for over thirty-five years,
supervising various areas including financing and research, and
determined that his experience in serving as an advisor to
internal operations and proper capitalization and structure in a
variety of settings bring crucial skills and contributions to
the Board.
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12
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Mr. Goldstein: The Nominating and
Corporate Governance Committee and Board of Directors considered
his extensive experience in directly auditing engagements of
private and public companies and determined that his experience
of over twenty years of public accounting and work with various
financial and accounting matters enhances his ability to provide
effective leadership as chairman of our audit committee and to
provide effective oversight of compensation decisions in his
capacity as member of our compensation committee.
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Mr. Rich: The Nominating and Corporate
Governance Committee and Board of Directors considered his
public company experience, as well as his successful leadership
of a variety of entities and determined that his leadership and
public company experience provide valuable contributions to the
oversight of our companys governance guidelines and
financial records.
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Mr. Smith: The Nominating and Corporate
Governance Committee and Board of Directors considered his
extensive experience as officer and director of various public
companies his extensive business knowledge and determined that
his public company experience and knowledge are important in
providing effective oversight in light of our operational and
organizational structure.
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DIRECTOR
COMPENSATION
Our directors are divided into two groups interested
directors and independent directors. Interested directors are
interested persons as defined in
Section 2(a)(19) of the 1940 Act. The compensation table
below sets forth compensation that our independent directors
earned during the year ended December 31, 2009. Our
interested directors are not compensated for their service as
Board members.
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Fees Earned
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Restricted
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or Paid in
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Stock
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All Other
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Name
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Year
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Cash
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Awards(1)
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Compensation
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Total
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W. McComb Dunwoody
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2009
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$
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13,250
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$
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30,000
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$
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43,250
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Mark M. Gambill(2)
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2009
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$
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16,250
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$
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27,500
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Benjamin S. Goldstein
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2009
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$
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29,000
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$
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30,000
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$
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59,000
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Simon B. Rich, Jr.
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2009
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$
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24,000
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$
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30,000
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$
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54,000
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Sherwood H. Smith, Jr
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2009
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$
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25,000
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$
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30,000
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$
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55,000
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(1) |
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Grant date fair value of restricted stock awards granted to each
non-employee director on May 6, 2009. Proxy disclosure
rules require reporting of the aggregate grant date fair value
computed in accordance with FASB ASC Topic 718. |
|
(2) |
|
On August 8, 2009, Mr. Gambill was elected to fill a
vacant board seat by our Board of Directors. He was therefore
only compensated for board service from August 8, 2009,
through December 31, 2009. |
Director
Fees
In 2009, each of our directors (other than Mr. Gambill) who
were not one of our employees or an employee of our subsidiaries
earned an annual fee of $30,000 worth of restricted stock in
Triangle, calculated based on the share price of our common
stock as of the close of the Nasdaq Global Market May 6,
2009, the date of grant. Based on this calculation, each of our
independent directors (other than Mr. Gambill) received
2,953 shares of restricted stock, which will vest on
May 6, 2010, so long as each individual is still a director
at that time. Mr. Gambills pro-rata portion of his
annual fee was paid in cash for 2009.
In addition, independent directors received a fee of $2,500 for
each board meeting attended in person and $1,250 for each board
meeting attended by conference telephone or similar
communications equipment; audit committee members receive a fee
of $1,500 for each audit committee meeting attended in person
and $750 for each audit committee meeting attended by conference
telephone or similar communication equipment; and members of our
compensation committee and nominating and corporate governance
committee receive a fee of $1,000 for each committee meeting
attended in person and $500 for each committee meeting attended
by conference telephone or similar communication equipment.
Finally, our audit committee chairman receives an
13
annual fee of $10,000, and each of our compensation committee
and nominating and corporate governance committee chairmen
receive an annual fee of $5,000 for their services as chairmen
of their respective committees. The Director Compensation Table
above takes into account all changes in director compensation
made during the 2009 fiscal year. We also reimbursed our
independent directors for all reasonable direct
out-of-pocket
expenses incurred in connection with their service on the Board.
Directors who are also our employees or employees of our
subsidiaries did not receive compensation for their services as
directors.
Non-Employee
Director Equity Compensation
Our Board of Directors and sole stockholder approved
Triangles 2007 Equity Incentive Plan, or the Original
Plan, effective February 13, 2007, for the purpose of
attracting and retaining the services of executive officers,
directors and other key employees. During our fiscal year ended
December 31, 2007, no equity incentive awards were granted
under the Original Plan, in part due to certain 1940 Act
restrictions which disallow the issuance of certain types of
compensation to a business development companys employees
and non-employee directors without having first obtained
exemptive relief. In 2007, we filed a request with the
Securities and Exchange Commission, or the SEC, for such
exemptive relief with respect to our ability to issue restricted
stock to our employees and non-employee directors. On
March 18, 2008 we received an order from the SEC
authorizing such issuance of restricted stock to our employees
and non-employee directors pursuant to the terms of the Amended
and Restated Plan and as otherwise set forth in the exemptive
order. In 2008, our Board approved, and at the 2008 Annual
Stockholders Meeting the stockholders voted to approve, the
Triangle Capital Corporation Amended and Restated 2007 Equity
Incentive Plan, or the Amended and Restated Plan. During our
fiscal year ended December 31, 2009, we granted restricted
share awards to our officers, directors and key employees as
compensation related to performance in 2008.
The following is a summary of the material features of the
Amended and Restated Plan. It may not contain all of the
information important to you. The Amended and Restated Plan
includes provisions allowing the issuance of restricted stock to
all key employees and directors. Restricted stock refers to an
award of stock that is subject to forfeiture restrictions and
may not be transferred until such restrictions have lapsed. The
Amended and Restated Plan will also allow us to issue options to
our key employees in the future should our Board and
compensation committee choose to do so.
Under the Amended and Restated Plan, up to 900,000 shares
of our common stock are authorized for issuance. Participants in
the Amended and Restated Plan who are employees and employee
directors may receive awards of options to purchase shares of
common stock or grants of restricted stock, as determined by the
Board. Participants who are non-employee directors may receive
awards of restricted stock in accordance with certain parameters
as discussed below under Restricted Stock Awards to
Non-Employee Directors. The basis of such participation is
to provide incentives to our employees and directors in order to
attract and retain the services of qualified professionals.
Options granted under the Amended and Restated Plan entitle the
optionee, upon exercise, to purchase shares of common stock at a
specified exercise price per share. Options must have a per
share exercise price of no less than the fair market value of a
share of stock on the date of the grant, subject to forfeiture
provisions as determined by the Board. The exercise period of
each stock option awarded will expire on a date determined by
the Board, such date to be specified in the stock option award
agreement; however, the Plan also states that no stock option
award will be exercisable after the expiration of ten years from
the date such stock option was granted.
The Amended and Restated Plan permits the issuance of restricted
stock to employees and directors consistent with such terms and
conditions as the Board shall deem appropriate, subject to the
limitations set forth in the plan. With respect to awards issued
to our employees and officers, the Board will determine the time
or times at which such shares of restricted stock will become
exercisable and the terms on which such shares will remain
exercisable. Shares granted pursuant to a restricted stock award
will not be transferable until such shares have vested in
accordance with the terms of the award agreement, unless the
transfer is by will or by the laws of descent and distribution.
14
The Amended and Restated Plan provides that our non-employee
directors each receive an automatic grant of restricted stock at
the beginning of each one-year term of service on the Board, for
which forfeiture restrictions lapse one year from the grant
date. The number of shares granted to each non-employee director
in 2009 was automatically the equivalent of $30,000 worth of
shares, taken at the market value at the close of the Nasdaq
Global Market on the date of grant, which historically has been
the date of our annual stockholders meeting. Consistent with the
Amended and Restated Plan, the grants of restricted stock to
non-employee directors will be automatic (that is, the grants
will equal $30,000 worth of restricted stock each year), and the
terms thereunder will not be changed without SEC approval.
Shares granted pursuant to a restricted stock award will not be
transferable until such shares have vested in accordance with
the terms of the award agreement, unless the transfer is by will
or by the laws of descent and distribution.
Our Board of Directors has delegated administration of the
Amended and Restated Plan to its compensation committee,
currently comprised solely of three (3) independent
directors who are independent pursuant to the listing
requirements of the Nasdaq Global Market. Our Board may abolish
such committee at any time and revest in our Board the
administration of the Amended and Restated Plan. Our Board
administers the Amended and Restated Plan in a manner that is
consistent with the applicable requirements of the Nasdaq Global
Market and the exemptive order.
EXECUTIVE
OFFICERS
As of March [ ], 2010, we do not have any
executive officers who are not directors of Triangle Capital
Corporation. Our executive officers, Messrs. Tucker, Lilly
and Burgess, serve as directors and executive officers of the
Company, as well as directors, managers
and/or
officers of Triangle Mezzanine Fund.
CORPORATE
GOVERNANCE
Director
Independence
In accordance with rules of the Nasdaq Global Market, our Board
of Directors annually determines each directors
independence. We do not consider a director independent unless
our Board of Directors has determined that he or she has no
material relationship with us. We monitor the relationships of
our directors through the activities of our nominating and
corporate governance committee and through a questionnaire each
director completes no less frequently than annually and updates
periodically if information provided in the most recent
questionnaire changes.
In order to evaluate the materiality of any such relationship,
the Board of Directors uses the definition of director
independence set forth in the listing standards promulgated by
the Nasdaq Global Market. Rule 4200(a)(15)(G) provides that
a director of an investment company (i.e., a business
development company) shall be considered to be independent if he
or she is not an interested person of the Company,
as defined in Section 2(a)(19) of the 1940 Act.
In addition, our chief compliance officer reviews, no less than
quarterly, a list of each directors securities
transactions and holdings in order to ensure that our directors
have not entered into any transactions with, or own any interest
in, companies that would cause one or more of them to be
considered interested persons as defined in
Section 2(a)(19) of the 1940 Act. For a more detailed
description of these policies, please see Certain
Relationships and Related Party Transactions herein.
The Board of Directors has determined that
Messrs. Dunwoody, Gambill, Goldstein, Rich and Smith are
independent and have no relationship with us, except as
directors and stockholders. All of the members of our audit
committee, compensation committee and nominating and corporate
governance committee are independent as defined in
Section 2(a)(19) of the 1940 Act.
15
Meetings
of the Board of Directors and Committees
During 2009, our Board of Directors held five board meetings.
Our Board of Directors has established an audit committee, a
compensation committee, a nominating and corporate governance
committee and an investment committee. Each of the audit
committee, compensation committee and nominating and corporate
governance committee operates pursuant to a charter, each of
which is available under Corporate Governance on the
Investor Relations section of our website at the following URL:
http://ir.tcap.com,
and is also available in print to any stockholder who requests a
copy. All directors attended 100% of the aggregate number of
meetings of the Board and of the respective committees on which
they served.
We expect each director to make a diligent effort to attend all
Board and committee meetings, as well as each Annual Meeting of
Stockholders.
We have designated Simon B. Rich, Jr. as the presiding
director of all executive sessions of non-employee directors.
Executive sessions of non-employee directors are held each board
meeting. Stockholders may communicate with Mr. Rich by
writing to: Board of Directors, Triangle Capital Corporation,
3700 Glenwood Avenue, Suite 530, Raleigh, North Carolina
27612.
Audit
Committee
We have a separately-designated standing audit committee
established in accordance with Section 3(a)(58)(A) of the
Exchange Act. The audit committee is responsible for compliance
with legal and regulatory requirements, selecting our
independent registered public accounting firm, reviewing the
plans, scope and results of the audit engagement with our
independent registered public accounting firm, approving
professional services provided by our independent registered
public accounting firm, reviewing the independence of our
independent registered public accounting firm, reviewing the
integrity of the audits of the financial statements and
reviewing the adequacy of our internal accounting controls.
Our Board of Directors adopted the Audit Committee Charter on
January 31, 2007. The Audit Committee Charter is publicly
available under Corporate Governance on the Investor
Relations section of our website at the following URL:
http://ir.tcap.com.
The members of the audit committee are Messrs. Goldstein,
Rich and Smith, each of whom is independent for purposes of
Section 2(a)(19) of the 1940 Act and the Nasdaq Global
Market corporate governance listing standards.
Mr. Goldstein serves as the chairman of the audit
committee. Our Board of Directors has determined that
Mr. Goldstein is an audit committee financial
expert as defined under Item 407(d)(5) of
Regulation S-K
of the Exchange Act. Mr. Goldstein meets the current
independence requirements of
Rule 10A-3
of the Exchange Act, Nasdaq listing standards, and, in addition,
is not an interested person of the Company, as
defined in Section 2(a)(19) of the 1940 Act. Our audit
committee held five meetings during 2009.
Compensation
Committee
The compensation committee is appointed by the Board to
discharge its responsibilities relating to the compensation of
our executive officers and other key employees. The compensation
committee has the responsibility for recommending appropriate
compensation levels for our executive officers, evaluating and
approving executive officer compensation plans, policies and
programs, reviewing benefit plans for executive officers and
other employees and producing an annual report on executive
compensation for inclusion in our proxy statement. The
compensation committee may form and delegate any of its
responsibilities to a subcommittee so long as such subcommittee
is solely composed of one or more members of the compensation
committee. The Compensation Committee Charter is available under
Corporate Governance on the Investor Relations
section of our website at the following URL:
http://ir.tcap.com.
Members of our compensation committee review annually and
approve goals and objectives relevant to our executive
officers compensation, including annual performance
objectives. They evaluate annually the performance of the chief
executive officer and other executive officers, and recommend to
the independent directors of the Board the compensation level
for each such person based on this evaluation. They review on a
16
periodic basis our executive compensation programs to determine
whether they are properly coordinated and achieve their intended
purposes. They review and recommend to the Board for approval
any changes in incentive compensation plans and equity-based
compensation plans. The members of the compensation committee
review and approve all equity-based compensation plans of
Triangle, whether or not final approval rests with the
Companys stockholders, and grant equity-based awards
pursuant to such plans in compliance with the 1940 Act. They
review and approve employment agreements and any special
supplemental benefits or perquisites for our executive officers.
They review broadly employee compensation strategies, including
salary levels and ranges and employee fringe benefits, in
conjunction with compensation consultants.
In determining executive compensation levels for our executive
officers, the compensation committee meets at least annually
with management, and may meet with independent compensation
consultants, in order to determine whether current methods of
executive compensation are effective in achieving
Triangles short and long term strategies. The compensation
committee, in conjunction with a compensation consultant if
necessary, will analyze the compensation of executive officers
and directors of other BDCs in order to establish the
compensation levels necessary to attract and retain quality
executive officers and investment professionals. For more
information regarding the role of Triangles management in
determining compensation, please see the discussion in
Compensation Discussion & Analysis
Establishing Compensation Levels Role of the
Compensation Committee and Management.
The members of the compensation committee are
Messrs. Dunwoody, Goldstein and Smith, each of whom is
independent for purposes of Section 2(a)(19) the 1940 Act
and the Nasdaq Global Market corporate governance listing
standards. Mr. Smith serves as the chairman of the
compensation committee. Our compensation committee held two
meetings during 2009.
Nominating
and Corporate Governance Committee
The nominating and corporate governance committee is responsible
for identifying, researching and nominating directors for
election by our stockholders, selecting nominees to fill
vacancies on our Board of Directors or a committee of the Board,
developing and recommending to the Board of Directors a set of
corporate governance principles and overseeing the evaluation of
the Board of Directors and our management. The nominating and
corporate governance committees policy is to consider
nominees properly recommended by our stockholders in accordance
with our charter, bylaws and applicable law. For more
information on how our stockholders may recommend a nominee for
a seat on our Board, see our answer to the question How
and when may I submit a stockholder proposal for Triangles
2011 Annual Meeting? under Additional
Information section in this proxy statement.
In considering possible candidates for nomination, the
nominating and corporate governance committee will consider
certain factors including whether the composition of the Board
contains a majority of independent directors as determined by
the Nasdaq Global Market standards and the 1940 Act, the
candidates character and integrity, whether the candidate
possesses an inquiring mind, vision and the ability to work well
with others, conflicts of interest interfering with the proper
performance of the responsibilities of a director, a
candidates experience and what type of diversity he or she
brings to the Board, whether the candidate has sufficient time
to devote to the affairs of Triangle, including consistent
attendance at Board and committee meetings and advance review of
materials and whether each candidate can be trusted to act in
the best interests of us and all of our stockholders.
The Nominating and Corporate Governance Committee Charter is
publicly available under Corporate Governance on the
Investor Relations section of our website at the following URL:
http://ir.tcap.com.
The members of the nominating and corporate governance committee
are Messrs. Gambill, Rich and Smith, each of whom is
independent for purposes of Section 2(a)(19) the 1940 Act
and the Nasdaq Global Market corporate governance listing
standards. Mr. Dunwoody served on the nominating and
corporate governance committee until August 2009, at which time
Mr. Gambill became a member of the nominating and corporate
governance committee, relieving Mr. Dunwoody of such
duties. Each nominee for election under Proposal No. 1
at the 2010 Annual Meeting was recommended by the members of the
nominating and corporate governance committee to our Board of
Directors, which approved such nominees. Mr. Rich serves as
17
the chairman of the nominating and corporate governance
committee. Our nominating and corporate governance committee
held one meeting during 2009.
Investment
Committee
Our investment committee is responsible for all aspects of our
investment process. The members of the Triangle Capital
Corporation investment committee are Messrs. Tucker,
Burgess, Lilly, Jeffrey A. Dombcik, Douglas A. Vaughn and David
F. Parker. Triangle Mezzanine Fund has a separate investment
committee that is responsible for all aspects of our investment
process relating to investments made by Triangle Mezzanine Fund.
The members of the Triangle Mezzanine Fund investment committee
are also Messrs. Tucker, Burgess, Lilly, Dombcik, Vaughn
and Parker. Mr. Vaughns appointment to the Triangle
Mezzanine Fund investment committee is contingent upon our
receiving approval from the United States Small Business
Administration (which regulates Small Business Investment
Companies, or SBICs, such as Triangle Mezzanine Fund). For
purposes of the discussion herein, any reference to the
investment committee refers to both the investment
committee of Triangle Capital Corporation and the investment
committee of Triangle Mezzanine Fund.
Our investment committee generally meets once a week but also
meets on an as needed basis depending on transaction volume. Our
investment committee is involved in all significant stages of
the investment process, including, origination, due diligence
and underwriting, approval, documentation and closing, and
portfolio management and investment monitoring.
Communication
with the Board of Directors
Stockholders with questions about Triangle Capital Corporation
are encouraged to contact Steven C. Lilly, at 3700 Glenwood
Avenue, Suite 530, Raleigh, North Carolina 27612,
(919) 719-4770.
However, if stockholders feel their questions have not been
addressed, they may communicate with our Board of Directors by
sending their communications to: Triangle Capital Corporation
Board of Directors,
c/o Simon
B. Rich, Jr., 3700 Glenwood Avenue, Suite 530,
Raleigh, North Carolina 27612. In addition, stockholders may
communicate with us by clicking Contact IR on the
Investor Relations section of our website at the following URL:
http://ir.tcap.com.
All stockholder communications received by our corporate
secretary in this manner will be delivered to one or more
members of the Board of Directors.
Corporate
Leadership Structure
Mr. Tucker serves jointly as the Chairman of our Board of
Directors and President and Chief Executive Officer. In
addition, we have designated Mr. Rich as our lead
independent director to preside over all executive sessions of
non-employee directors. We believe that consolidating our
leadership structure without an independent chairman provides an
efficient and effective management model which fosters direct
accountability, effective decision-making and alignment of
corporate strategy between our Board of Directors and
management. Mr. Tucker is, and Mr. Rich is not, an
interested person as defined Section 2(a)(19)
of the 1940 Act.
Oversight
of Risk Management
On behalf of the Board of Directors, the Audit Committee
oversees our enterprise risk management function. To this end,
the Audit Committee meets at least annually (i) as a
committee to discuss the Companys risk management
guidelines, policies and exposures and (ii) with our
independent auditors to review our internal control environment
and other risk exposures. Additionally, on behalf of the Board
of Directors, the Compensation Committee oversees the management
of risks relating to our executive compensation program and
other employee benefit plans. In fulfillment of its duties, the
Compensation Committee reviews at least annually our executive
compensation program and meets regularly with our chief
executive officer to understand the financial, human resources
and stockholder implications of all compensation decisions. The
Audit Committee and the Compensation Committee each report to
the Board of Directors on a quarterly basis to apprise the Board
of Directors regarding the status of remediation efforts of
known risks and of any new risks that may have arisen since the
previous report.
18
Compliance
Policies and Procedures
In accordance with the 1940 Act, we have adopted and implemented
written policies and procedures reasonably designed to prevent
violation of the U.S. federal securities laws, and we
review these compliance policies and procedures annually for
their adequacy and the effectiveness of their implementation. In
addition, we have designated Mr. Lilly as our Chief
Compliance Officer. As such, Mr. Lilly is responsible for
administering our compliance program and meeting with our Board
of Directors at least annually to assess its effectiveness.
Code of
Conduct and Corporate Governance Guidelines
We have adopted a code of conduct and corporate governance
guidelines covering ethics and business conduct. These documents
apply to our directors, officers and employees. Our code of
conduct and corporate governance guidelines are available on the
Investor Relations section of our website at the following URL:
http://ir.tcap.com.
We will report any material amendments to or waivers of a
required provision of our code of conduct
and/or
corporate governance guidelines on our website
and/or in a
Current Report on
Form 8-K.
COMPENSATION
DISCUSSION AND ANALYSIS
General
In 2009, our senior management team consisted of Garland S.
Tucker, Brent P.W. Burgess and Steven C. Lilly. We refer to
these three officers in 2009 as our named executive officers, or
NEOs. Each of our NEOs entered into employment
agreements with us in 2007 for two-year terms, was compensated
according to the terms of such agreements, which are described
herein, and each employment expired on February 20, 2009.
In February 2009, upon determination by our compensation
committee that it would be in the best interests of the Company
and its stockholders for the Company to operate without
employment agreements, we requested that our NEOs waive all
notice requirements pursuant to their employment agreements and
agree not to renew them on a going-forward basis in 2009. After
consideration, Messrs. Tucker, Burgess, and Lilly agreed
with our compensation committee, voluntarily waiving their
notice rights as to the renewal of their employment agreements.
As a result, since February 21, 2009, none of our employees
is party to an employment agreement with us. Each executive
officer continues to be paid a base salary and is eligible to
receive cash bonuses and equity incentives in the discretion of
our board of directors and compensation committee.
Our executive compensation program is designed to encourage our
executive officers to think and act like stockholders of the
Company. The structure of the NEOs employment agreements
and our incentive compensation programs were designed to
encourage and reward the following:
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sourcing and pursuing attractively priced investment
opportunities in all types of securities of lower middle market
privately-held companies;
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participating in comprehensive due diligence with respect to our
investments;
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ensuring we allocate capital in the most effective manner
possible; and
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working efficiently and developing relationships with other
professionals.
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Our compensation committee reviewed and approved all of our
compensation policies for 2009.
We completed our initial public offering, or IPO, in February
2007. As our first three years of operation as a publicly traded
business development company, or BDC, 2007, 2008 and 2009
represented a period of constant development and growth for us,
and we worked to create an executive compensation program that
would effectively achieve our desired objectives stated above.
We intend to continue the process of aligning executive
compensation and our goals in 2010.
As a BDC, we must comply with the requirements of the 1940 Act.
The 1940 Act imposes certain limitations on the structure of our
compensation programs, including limitations on our ability to
issue certain equity-based compensation to our employees and
directors. In 2008, we received an exemptive order from the
19
SEC which permits us to issue restricted share awards as part of
the compensation packages for our employees and directors. In
2008, we revised our 2007 Equity Incentive Plan in accordance
with the SECs comments. Our Board has approved the
Triangle Capital Corporation Amended and Restated 2007 Equity
Incentive Plan, or the Amended and Restated Plan, and our
stockholders voted to approve the Amended and Restated Plan at
our 2008 Annual Meeting of Stockholders.
Executive
Compensation Policy
In 2009, we compensated our NEOs through a combination of base
salary, cash bonuses and restricted stock awards. Our
integration of restricted stock awards into our overall
compensation philosophy is designed to make us competitive with
comparable employers and to align managements incentives
with the long-term interests of our stockholders. In allocating
among these elements the compensation committee believes that
the compensation of our NEOs should be based predominately on
company and individual performance.
Overview
Our performance-driven compensation policy consists of the
following three components:
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Base salary;
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Annual cash bonuses; and
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Long-term compensation pursuant to our equity incentive plan.
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We designed each NEOs compensation package to
appropriately reward the NEO for his contribution to the
Company. Our compensation philosophy has not historically been,
and going forward will not be, a mechanical process, and our
compensation committee will continue to use its judgment and
experience, working in conjunction with our chief executive
officer and an independent compensation consultant, to determine
the appropriate mix of compensation for each individual. Cash
compensation consisting of base salary and discretionary cash
bonuses tied to achievement of performance goals set by the
compensation committee are intended to incentivize NEOs to
remain with us in their roles and work hard to achieve our
goals. Stock-based compensation in the form of restricted stock
was awarded based on individual performance expectations set by
the compensation committee.
Establishing
Compensation Levels
Role
of the Compensation Committee and Management
As set forth in the Compensation Committee Charter, our
compensation committees primary responsibility is to
evaluate the compensation of our executive officers and assure
that they are compensated effectively and in a manner consistent
with our stated compensation objectives. The compensation
committee also periodically reviews our corporate goals and
objectives relevant to executive compensation, our executive
compensation structure to ensure that it is designed to achieve
the objectives of rewarding the companys executive
officers appropriately for their contributions to corporate
growth and profitability and our other goals and objectives. At
least annually, the compensation committee will evaluate the
compensation of our executive officers and determine the amounts
and individual elements of total compensation for executive
officers consistent with our corporate goals and objectives and
will communicate to stockholders the factors and criteria on
which the executive officers compensation is based,
including the relationship of our performance to the executive
officers compensation. With respect to the compensation of
our executive officers other than the chief executive officer,
the committee works with the chief executive officer to conduct
these reviews. The committee will also periodically evaluate the
terms and administration of our annual and long-term incentive
plans, including equity compensation plans, to ensure that they
are structured and administered in a manner consistent with our
goals and objectives as to participation in such plans, target
annual incentive awards, corporate financial goals, actual
awards paid to executive officers, and total funds allocated for
payment under the compensation plans.
20
Assessment
of Market Data
To assess the competitiveness of our executive compensation
levels, we developed a comparative group of internally managed
BDCs and performed comprehensive analyses of competitive
performance and compensation levels. In 2009, this comparative
group included the following: Capital Southwest Corporation;
Hercules Technology Growth Capital, Inc.; Kohlberg Capital
Corporation; Main Street Capital Corporation; MCG Capital
Corporation; Medallion Financial Corp.; Patriot Capital Funding,
Inc.; and Utek Corporation. In addition, our compensation
committee reviewed various independent consulting reports
regarding compensation within the private equity industry.
Our analysis centered around key elements of compensation
practices within the BDC industry in general and, more
specifically, compensation practices at internally managed BDCs
closer in asset size, typical investment size, typical
investment type, market capitalization, and general business
scope to our Company. Items we reviewed included, but were not
necessarily limited to, base compensation, bonus compensation
and restricted stock awards. In addition to actual levels of
compensation, we also analyzed the approach other BDCs were
taking with regard to their compensation practices. Items we
reviewed included, but were not necessarily limited to, the use
of employment agreements for certain employees, the targeted mix
of cash and equity compensation, the use of a third party
compensation consultant, and certain corporate and executive
performance measures established to achieve total returns for
stockholders.
Using the above data, we ranked below the median of the
comparative group in market capitalization, below the median in
net income, and in the lower quartile in assets and number of
employees. Although each of the comparative companies is not
exactly comparable in size, scope and operations, the
compensation committee believes that they were the most relevant
comparable companies available with disclosed executive
compensation data, and they provide a good representation of
competitive compensation levels for our executives.
Assessment
of Company Performance
We believe that the alignment of (i) a companys
business plan, (ii) its stockholders expectations and
(iii) its employee compensation is essential to long term
business success in the interest of our stockholders and
employees. We typically make three to seven year investments in
privately held businesses. Our business plan involves taking on
investment risk over an extended period of time, and a premium
is placed on our ability to maintain stability of net asset
values and continuity of earnings to pass through to
stockholders in the form of recurring dividends. Our strategy is
to generate income and capital gains from our portfolio of
investments in the debt and equity securities of our customers.
This income supports the payment of dividends to our
stockholders. Therefore, a key element of our return to
stockholders is in the form of current income through the
payment of dividends. This recurring payout requires a
methodical asset acquisition approach and active monitoring and
management of our investment portfolio over time. A meaningful
part of our employee base is dedicated to the maintenance of
asset values and expansion of this recurring revenue to support
and grow dividends.
Compensation
Determination
We analyzed the competitiveness of the previously described
components of compensation individually, as well as in total, in
conjunction with our peer group of BDCs listed above. Our
comparative analysis indicated that in aggregate, for 2009, our
base salaries plus target bonuses resulted in total annual cash
compensation below the market median. We believe this is
primarily due to the fact that the Company is smaller than the
other BDCs in our peer group. As the Company grows and matures
we would expect our compensation levels would, over time, more
closely approximate the median of our peer group.
21
Classes
of Executive Compensation
Base
salary
Base salary is used to recognize particularly the experience,
skills, knowledge and responsibilities required of the executive
officers in their roles. In establishing the 2009 base salaries
of the NEOs, the compensation committee and management
considered a number of factors including the seniority of the
individual, the functional role of the position, the level of
the individuals responsibility, the ability to replace the
individual and the base salary of the individual in 2008. In
addition, we considered the base salaries paid to comparably
situated executive officers in other BDCs and other competitive
market practices. Finally, we used a compensation consultant in
order to get an objective third party experts insight into
our NEOs base salaries.
The salaries of the NEOs are reviewed on an annual basis, as
well as at the time of promotion or other changes in
responsibilities. The leading factors in determining increases
in salary level are relative cost of living and competitive
pressures.
On February 21, 2007, we entered into employment agreements
with Messrs. Tucker, Burgess and Lilly, and each employment
agreements term ended without renewal on February 20,
2009. Each of our NEOs is now employed on an at-will basis. In
general the agreements provided for the compensation of each
NEO, as discussed above, payments to each executive upon various
termination scenarios and contained certain restrictive
covenants on competition and solicitation of our employees and
clients. The 2009 base salaries and target bonus levels for the
three NEOs were the same as they were in 2008.
Pursuant to these agreements, each executive would have received
compensation for termination due to death or disability,
termination by us other than for cause, termination by the
executive for good reason or termination upon a change in
control. See Employment Agreements and
Potential Payments upon Termination or Change in
Control for additional information regarding the material
terms of these agreements.
In February 2009, upon determination by our compensation
committee that it would be in the best interests of the Company
and its stockholders for the Company to operate without
employment agreements, we requested that our NEOs waive all
notice requirements pursuant to their employment agreements and
agree not to renew them on a going-forward basis in 2009. After
consideration, Messrs. Tucker, Burgess, and Lilly agreed
with our compensation committee, voluntarily waiving their
notice rights as to the renewal of their employment agreements.
As a result, since February 21, 2009, none of our employees
is party to an employment agreement with us.
Determination
of 2009 Annual Base Salary
The compensation committee annually reviews the base salary for
each of our executive officers and determines whether or not to
adjust it in its sole discretion. Increases to base salary are
awarded to recognize levels of responsibilities and related
individual performance, and to address changes in the external
competitive market for a given position.
Mr. Tucker was paid an annual base salary of $265,000.
Mr. Tuckers base salary did not increase from 2008 to
2009. Mr. Tuckers base salary recognizes his overall
responsibility for the Company and his continued leadership
which enabled us to achieve the majority of our operational and
financial objectives in 2009.
Mr. Burgess was paid an annual base salary of $240,000 for
2009. Mr. Burgess base salary did not increase from
2008 to 2009. Mr. Burgess base salary recognizes his
lead role in managing all investment activity of the Company,
including marketing, structuring, closing and monitoring
portfolio company investments.
Mr. Lilly was paid an annual base salary of $240,000 for
2009. Mr. Lillys base salary did not increase from
2008 to 2009. Mr. Lillys base salary recognizes his
lead role in managing all financial aspects of our
22
Company, including his leadership in matters relating to our
capital structure, the media and investor relations.
Mr. Lillys base salary also reflected his service as
our Companys Chief Compliance Officer.
Annual
Cash Bonuses
We pay annual cash bonuses to reward corporate and individual
achievements for the prior fiscal year. We determined that
annual cash bonuses will be based on the compensation
committees discretionary assessment of the Companys
and the NEOs performance, with recommendations from the
chief executive officer for NEOs other than himself. For 2009,
NEOs were eligible for cash bonuses, ranging from 0% to up to
139.6% of their highest annual rate of base salary, depending on
the NEOs position. Performance achievements which were
considered in the determination of cash bonuses for fiscal 2009
include individual performance and Company performance (based
upon a comparison of actual performance to budgeted performance).
Determination
of Annual Cash Bonuses
Cash bonuses for 2009 were paid in February of 2010 and were
typically determined as a percentage of each employees
salary, based on individual performance and each employees
level within the Company. Our NEOs annual cash bonuses
paid for performance in 2009 are disclosed in the bonus column
of the Summary Compensation Table. All of our NEOs cash
bonuses earned during 2009 were determined based on performance
goals adopted by the compensation committee. The potential bonus
ranges for each of our NEOs are presented below, as well as the
actual percentage of bonuses paid as compared to salary paid in
2009 for each of our NEOs:
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Minimum
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Target
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Actual %
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Performance %
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Performance
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of 2009 Salary
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NEO
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of 2009 Salary
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% of 2009 Salary
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Awarded
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Garland S. Tucker, III
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0
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%
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139.6
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%
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139.6
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%
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Brent P.W. Burgess
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0
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%
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129.2
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%
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129.2
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%
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Steven C. Lilly
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0
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%
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108.3
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%
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108.3
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%
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All of our NEOs cash bonuses for 2009 were determined
based on the compensation committees analysis of certain
individual performance-based elements including how efficiently
capital was deployed and the establishment of meaningful
operational policies and procedures, including but not limited
to, portfolio valuation, portfolio monitoring processes, asset
management processes, transaction monitoring processes and
maintaining appropriate dividend payouts to stockholders.
Mr. Tucker was paid an annual cash bonus of $370,000
for 2009, which is a $105,000 increase from his annual cash
bonus for 2008. Mr. Tuckers cash bonus reflects his
overall responsibility for the Company and his continued
leadership in 2009, which enabled us to achieve the majority of
our operational and financial objectives.
Mr. Burgess was paid an annual cash bonus of
$310,000 for 2009, which is a $70,000 increase from his annual
cash bonus for 2008. Mr. Burgess cash bonus reflects
his ability to manage the Companys investment process,
including sourcing new investments, monitoring our portfolio and
guiding all of the investments we made during 2009 to a
successful closing on terms we believe will be favorable to the
Company.
Mr. Lilly was paid an annual cash bonus of $260,000
for 2009, which is a $20,000 increase from his annual cash bonus
for 2008. Mr. Lillys cash bonus reflects his lead
role in managing all financial aspects of our Company, including
his leadership in matters relating to our capital structure, the
media and investor relations. Mr. Lillys cash bonus
also reflected his service as our Chief Compliance Officer
during 2009.
Long Term
Incentive Compensation
General
Our Board of Directors adopted the Amended and Restated Plan in
order to provide stock-based awards as incentive compensation to
our employees and non-employee directors. Since our IPO, our
compensation
23
committee has chosen to utilize shares of our restricted stock,
rather than stock options or other equity-based incentive
compensation, as its long term incentive compensation strategy.
We use stock-based awards to (i) attract and retain key
employees, (ii) motivate our employees by means of
performance-related incentives to achieve long-range performance
goals, (iii) enable our employees to participate in our
long-term growth and (iv) link our employees
compensation to the long-term interests of our stockholders. The
compensation committee has been delegated exclusive authority by
our Board of Directors to select the persons to receive
stock-based awards. At the time of each award granted to each
NEO, the compensation committee determines the terms of the
award in its sole discretion, including their performance period
(or periods) and the performance objectives relating to the
award.
Options
Since our IPO, our compensation committee has not utilized
options to purchase our common stock as a form of compensation
to our NEOs and other employees. As such, we did not grant any
stock options to our employees in 2009.
Our compensation committee may, however, in its sole discretion
(upon delegation by the Board) grant our employees options to
purchase our common stock (including incentive stock options and
non-qualified stock options). We expect that, if granted,
options will represent a fixed number of shares of our common
stock, will have an exercise, or strike, price equal to the fair
market value of our common stock on the date of such grant, and
will be exercisable, or vested, at some later time
after grant. Upon any stock option grant, its exercise price
will not be changed absent specific SEC approval that we may do
so. The fair market value will be defined as either
(i) the closing sales price of the our common stock on the
Nasdaq Global Market, or any other such exchange on which the
shares are traded, on such date, (ii) in the absence of
reported sales on such date, the closing sales price on the
immediately preceding date on which sales were reported or
(iii) in the event there is no public market for the shares
on such date, the fair market value as determined, in good
faith, by our Board in its sole discretion (which will in no
event will be less than the net asset value of such shares of
common stock on such date), and for purposes of a sale of a
share of common stock as of any date, the actual sales price on
that date. Some stock options granted by our compensation
committee may vest simply by the holder remaining with the
Company for a period of time, and some may vest based on meeting
certain performance goals. We anticipate that our options, if
granted in the future, will be valued for financial reporting
purposes using the Black Scholes valuation method, and charges
to earnings will be taken over the relevant service period
pursuant to Financial Accounting Standards Board
(FASB) Accounting Standards Codification
(ASC) ASC Topic 718, Stock Compensation
(formerly Statement of Accounting Standards No. 123R,
Share-Based Payment).
Specific performance factors that the compensation committee may
consider in determining the vesting of options may include
individual employee performance objectives such as work ethic,
business development, proficiency and overall contribution to
the Company.
Restricted
Stock
Upon obtaining the requisite exemptive relief from the SEC in
2008, our compensation committee has utilized restricted shares
of our common stock as the sole form of equity-based incentive
compensation to our NEOs and other employees.
Generally BDCs, such as us, may not grant shares of their stock
for services without an exemptive order from the SEC. In 2007,
we filed a request with the SEC for exemptive relief with
respect to our ability to issue restricted stock to our
employees and non-employee directors. On February 6, 2008,
the Board voted to approve the Triangle Capital Corporation
Amended and Restated 2007 Equity Incentive Plan, or the Amended
and Restated Plan, and to recommend approval of the Amended and
Restated Plan by stockholders, subject to an order from the SEC
granting exemptive relief. On March 18, 2008, we received
an order from the SEC authorizing such issuance of restricted
stock to our employees and non-employee directors, subject to
certain restrictions. As such, we were able to begin the
implementation of our long-term compensation strategies
24
through granting restricted stock to our non-employee directors,
NEOs and other key employees in 2008 and continued to do so in
2009.
The Amended and Restated Plan allows our Board (and compensation
committee, after delegation of administrative duties) to grant
shares of restricted stock to our employees. Each restricted
stock award is for a fixed number of shares as set forth in an
award agreement between the grantee and us. Award agreements set
forth time
and/or
performance vesting schedules and other appropriate terms
and/or
restrictions with respect to awards, including rights to
dividends and voting rights.
Determination
of Restricted Stock Awards
Specific performance factors that the compensation committee
considered in determining the granting of restricted stock in
2009 included individual employee performance objectives such as
work ethic, proficiency and overall contribution to the Company
during our fiscal year ended December 31, 2008.
Mr. Tucker was awarded 29,182 shares of
restricted stock in 2009, which is an increase of
7,128 shares of restricted stock from that which was
granted to him in 2008. This award reflects
Mr. Tuckers leadership during 2008, which enabled us
to achieve the majority of our operational and financial
objectives. Mr. Tuckers performance during this time
period was vital to our Companys success.
Mr. Burgess was awarded 23,636 shares of
restricted stock in 2009, which is an increase of
3,663 shares of restricted stock from that which was
granted to him in 2008. This award reflects
Mr. Burgess leadership in implementing our investment
strategy during 2008, including the expansion of our investment
team, the deal sourcing of certain portfolio investments and
guidance of each investment through our internal investment
process from inception to closing.
Mr. Lilly was awarded 21,091 shares of
restricted stock in 2009, which is an increase of
1,118 shares of restricted stock from that which was
granted to him in 2008. This award reflects
Mr. Lillys role in managing all financial aspects of
our Company, including his leadership in matters relating to our
capital structure, the media and investor relations.
Mr. Lillys cash bonus also reflected his service as
our Chief Compliance Officer during 2009.
Change in
Control and Severance
Effective February 2009, resulting from the determination by our
compensation committee that it would be in the best interests of
the Company and our stockholders for the Company to operate
without employment agreements, none of our employees is party to
an employment agreement with us, and, as such, our NEOs are no
longer entitled to any severance or other compensation upon the
termination of their employment, including any such compensation
as a result of a change in control of the Company. However,
since each of our NEOs was party to an employment agreement with
us from January 1, 2009 through February 20, 2009, we
are required to describe certain terms of their former
employment agreements, which we have set forth below.
Change
in Control
Upon termination of employment after a change of control, the
NEOs would have received severance payments pursuant to their
employment agreements entered into in connection with our IPO
Effective February 20, 2009, however, our NEOs voluntarily
waived their rights to the renewal of their employment
agreements. As a result, effective February 21, 2009, none
of our NEOs is eligible to receive severance upon a change of
control.
Upon specified covered transactions involving a change of
control (as defined in the Amended and Restated Plan), all
outstanding awards under the Amended and Restated Plan will
either be assumed or substituted for by the surviving entity. If
the surviving entity does not assume or substitute similar
awards, the awards held by the participants will be accelerated
in full and then terminated to the extent not exercised prior to
the covered transaction.
25
Severance
Under specified covered transactions involving a change in
control (as defined in each NEOs employment agreement), if
an NEO had terminated his employment with us within two years
following such change in control, or if we had terminated or
given the NEO notice of non-renewal of the NEOs employment
within the two years commencing with a change in control, he
would have received a severance package beginning on the date of
termination. The severance package would have included monthly
payments equal to one- twelfth of (i) the NEOs annual
salary at that time plus (ii) the NEOs bonus
compensation as described in the employment agreement, and
(iii) the Company would have continued to provide the NEO
with all of the benefits provided to him immediately prior to
the termination, as described in the employment agreement. The
severance package would have continued to be in effect for
thirty-six months. In the event that an NEOs severance pay
had been triggered under his employment agreement, he would have
continued to receive his respective severance package even if he
had been hired by another employer, including a competing
business development company or other fund; however, the
Companys obligation to continue the NEOs
then-existing benefits under the severance package would have
terminated on the date the NEO became eligible to receive such
equal benefit from another employer.
In addition, a separate severance package existed in the event
the NEOs employment had been terminated as a result of
death or disability, or in the event that the Company had
terminated the NEOs employment outside of the two-year
period after a specified covered transaction involving a change
in control. The same severance package referenced in the
immediately preceding paragraph would have been provided to the
NEO, except that the severance package would have only continued
to be in effect for twenty-four months.
Each NEOs employment agreement also included a right to
allow the executive officer the opportunity to evaluate his
position with the Company for a one-month period beginning at
the end of one year after a change in control had occurred, in
order to determine whether at that time it would have been in
the best interests of the Company and the executive officer for
the executive officer to continue serving in his then current
position. If the NEO had been dissatisfied with his
responsibilities one year after the change in control had
occurred, he could have terminated his employment with the
Company without good reason and still would have received a
severance package. The severance package would have included
monthly payments equal to one-twelfth of (i) the NEOs
annual salary at that time plus (ii) the NEOs bonus
compensation as described in the employment agreement, and
(iii) the Company would have continued to provide the NEO
with all of the benefits provided to him immediately prior to
the termination, as described in the employment agreement. The
severance package would have continued to be in effect for
thirty-six months.
Finally, if we had failed to renew any NEOs employment
agreement outside of the two-year period after a specified
covered transaction involving a change in control (causing such
NEOs employment to terminate), any severance payment or benefit
would have been payable at the absolute discretion of the Board.
The rationale behind providing a severance package in certain
events was to attract talented executives who would be assured
that they would not be financially injured if they physically
relocated
and/or left
another job to join us but were forced out through no fault of
their own and to ensure that our business would be operated and
governed for our stockholders by a management team, and under
the direction of a Board of Directors, who were not financially
motivated to frustrate the execution of a change in control
transaction. For more discussion regarding executive
compensation in the event of a termination or change of control,
please see the table entitled 2009 Potential
Payments Upon Termination or Change in Control and
accompanying discussion.
Tax
and Accounting Considerations
Section 162(m) of the Internal Revenue Code of 1986 (the
IRC) limits our deduction for federal income tax
purposes to not more than $1 million of compensation paid
to certain executive officers in a calendar year. Compensation
above $1 million may be deducted if it is
performance-based compensation as defined in the IRC
and the Treasury Regulations thereunder. Our compensation
committee has not established a policy for determining which
forms of incentive compensation awarded to our executive
officers should be designated to qualify as
performance-based compensation for tax purposes. To
maintain flexibility in compensating our
26
executive officers in a manner designed to promote our
objectives, the compensation committee has not adopted a policy
that requires all compensation to be deductible. However, the
compensation committee evaluates the effects of the compensation
limits of Section 162(m) on all compensation it proposes to
grant, and the compensation committee intends to provide all
executive compensation in a manner consistent with our best
interests and those of our stockholders. In 2009, none of our
executive officers received compensation that would exceed the
$1 million limit on deductibility under Section 162(m).
In awarding restricted stock awards for performance in 2009, we
accounted for share-based awards under the provisions of FASB
ASC Topic 718, Stock Compensation (formerly Statement of
Accounting Standards No. 123R, Share-Based Payment).
ASC Topic 718 establishes accounting for stock-based awards
exchanged for goods or services. Accordingly, stock-based
compensation cost is measured at grant date, based on the fair
value of the awards, and is recognized as an expense ratably
over the requisite service period. Accounting rules also require
us to record cash compensation as an expense at the time the
obligation is incurred.
Conclusion
Our compensation policies are designed to fairly compensate,
retain and motivate our NEOs. The retention and motivation of
our NEOs should enable us to grow strategically and position
ourselves competitively in our market.
COMPENSATION
COMMITTEE REPORT
The compensation committee determines the compensation for our
executive officers and the amount of salary and bonus to be
included in the compensation package for each of our executive
officers. The compensation committee currently consists of
Messrs. Dunwoody, Goldstein and Smith, all of whom are
considered independent under the rules promulgated by the Nasdaq
Global Market and are not interested persons of
Triangle Capital Corporation, as defined in
Section 2(a)(19) of the 1940 Act.
The compensation committee of our Board of Directors has
reviewed and discussed with management the information contained
in the Compensation Discussion & Analysis section of
this proxy statement and, based on their review and discussion,
has recommended to our Board of Directors that the Compensation
Discussion and Analysis be included in this proxy statement to
be filed with the SEC.
The Compensation Committee:
Sherwood H. Smith, Jr., Chair
W. McComb Dunwoody
Benjamin S. Goldstein
The information contained in the report above shall not be
deemed to be soliciting material or to be
filed with the SEC, nor shall such information be
incorporated by reference into any future filing under the
Securities Act of 1933, as amended, or the Securities Exchange
Act of 1934, as amended, except to the extent specifically
incorporated by reference therein.
27
EXECUTIVE
OFFICER COMPENSATION
Due to the fact that we consummated our initial public offering
of common stock in February 2007, we only have executive officer
compensation data for a portion of 2007, in addition to the 2008
and 2009 data. The respective compensation of our named
executive officers in 2007, 2008 and 2009 was as follows:
Summary
Compensation Table
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Restricted
|
|
|
|
|
|
|
Principal
|
|
|
|
Base
|
|
|
|
Stock
|
|
All Other
|
|
|
Name
|
|
Position
|
|
Year
|
|
Salary
|
|
Bonus
|
|
Awards
|
|
Compensation
|
|
Total
|
|
Garland S. Tucker, III
|
|
|
CEO
|
|
|
|
2009
|
|
|
$
|
265,000
|
|
|
$
|
370,000
|
|
|
$
|
309,913
|
(1)
|
|
$
|
109,254
|
(2)
|
|
$
|
1,054,167
|
|
|
|
|
|
|
|
|
2008
|
|
|
$
|
265,000
|
|
|
$
|
265,000
|
|
|
$
|
245,020
|
(3)
|
|
$
|
60,389
|
(4)
|
|
$
|
835,409
|
|
|
|
|
|
|
|
|
2007
|
|
|
$
|
231,875
|
(5)
|
|
$
|
265,000
|
|
|
|
|
|
|
$
|
18,277
|
|
|
$
|
515,152
|
|
Brent P.W. Burgess
|
|
|
CIO
|
(6)
|
|
|
2009
|
|
|
$
|
240,000
|
|
|
$
|
310,000
|
|
|
$
|
251,014
|
(1)
|
|
$
|
85,568
|
(2)
|
|
$
|
886,582
|
|
|
|
|
|
|
|
|
2008
|
|
|
$
|
240,000
|
|
|
$
|
240,000
|
|
|
$
|
221,900
|
(3)
|
|
$
|
46,290
|
(4)
|
|
$
|
748,190
|
|
|
|
|
|
|
|
|
2007
|
|
|
$
|
210,000
|
(5)
|
|
$
|
240,000
|
|
|
|
|
|
|
$
|
12,318
|
|
|
$
|
462,318
|
|
Steven C. Lilly
|
|
|
CFO
|
|
|
|
2009
|
|
|
$
|
240,000
|
|
|
$
|
260,000
|
|
|
$
|
223,986
|
(1)
|
|
$
|
81,187
|
(2)
|
|
$
|
805,173
|
|
|
|
|
|
|
|
|
2008
|
|
|
$
|
240,000
|
|
|
$
|
240,000
|
|
|
$
|
221,900
|
(3)
|
|
$
|
46,054
|
(4)
|
|
$
|
747,954
|
|
|
|
|
|
|
|
|
2007
|
|
|
$
|
210,000
|
(5)
|
|
$
|
280,416
|
(7)
|
|
|
|
|
|
$
|
11,488
|
|
|
$
|
501,904
|
|
|
|
|
(1) |
|
Grant date fair value of restricted stock awards granted during
2009. |
|
(2) |
|
Includes (i) value of benefits in the form of 401(k)
contributions, health, life and disability insurance premiums
paid by the Company in 2009 and (ii) value of dividends
received or earned in respect of each executive officers
restricted stock awards received in 2009. |
|
(3) |
|
Grant date fair value of restricted stock awards granted during
2008. |
|
(4) |
|
Includes (i) value of benefits in the form of 401(k)
contributions, health, life and disability insurance premiums
paid by the Company in 2008 and (ii) value of dividends
received or earned in respect of each executive officers
restricted stock awards received in 2008. |
|
(5) |
|
Includes base salary paid from February 21, 2007 through
December 31, 2007. |
|
(6) |
|
CIO stands for Chief Investment Officer. |
|
(7) |
|
Includes a tax
gross-up
bonus approved by the compensation committee. |
Equity
Incentive Plan
Our Board of Directors and sole stockholder approved
Triangles 2007 Equity Incentive Plan, or the Original
Plan, effective February 13, 2007, for the purpose of
attracting and retaining the services of executive officers,
directors and other key employees. During our fiscal year ended
December 31, 2007, no equity incentive awards were granted
under the Original Plan, in part due to certain 1940 Act
restrictions which disallow the issuance of certain types of
compensation to a business development companys
non-employee directors and employees without having first
obtained exemptive relief. In 2007, we filed a request with the
Securities and Exchange Commission, or the SEC, for such
exemptive relief with respect to our ability to issue restricted
stock to our employees and non-employee directors. On
March 18, 2008 we received an order from the SEC
authorizing such issuance of restricted stock to our employees
and non-employee directors pursuant to the terms of the Amended
and Restated Plan and as otherwise set forth in the exemptive
order. In 2008, our Board approved, and the stockholders voted
to approve, the Triangle Capital Corporation Amended and
Restated 2007 Equity Incentive Plan, or the Amended and Restated
Plan. During our fiscal year ended December 31, 2009, we
granted restricted share awards to our officers, directors and
key employees in accordance with the Amended and Restated Plan.
The following is a summary of the material features of the
Amended and Restated Plan. It may not contain all of the
information important to you. The Amended and Restated Plan
includes provisions allowing the issuance of restricted stock to
all key employees and directors. Restricted stock refers to an
award of stock that is subject to forfeiture restrictions and
may not be transferred until such restrictions have lapsed. The
28
Amended and Restated Plan will also allow us to issue options to
our key employees in the future should our Board and
compensation committee choose to do so.
Under the Amended and Restated Plan, up to 900,000 shares
of our common stock are authorized for issuance. Participants in
the Amended and Restated Plan who are employees may receive
awards of options to purchase shares of common stock or grants
of restricted stock, as determined by the Board. Participants
who are non-employee directors may receive awards of restricted
stock in accordance with certain parameters as discussed below.
The basis of such participation is to provide incentives to our
employees and directors in order to attract and retain the
services of qualified professionals.
Options granted under the Amended and Restated Plan entitle the
optionee, upon exercise, to purchase shares of common stock at a
specified exercise price per share. Options must have a per
share exercise price of no less than the fair market value of a
share of stock on the date of the grant, subject to forfeiture
provisions as determined by the Board. The exercise period of
each stock option awarded will expire on a date determined by
the Board, such date to be specified in the stock option award
agreement; however, the Plan also states that no stock option
award will be exercisable after the expiration of ten years from
the date such stock option was granted.
The Amended and Restated Plan permits the issuance of restricted
stock to employees and directors consistent with such terms and
conditions as the Board shall deem appropriate, subject to the
limitations set forth in the plan. With respect to awards issued
to our employees, the Board will determine the time or times at
which such shares of restricted stock will become exercisable
and the terms on which such shares will remain exercisable.
Shares granted pursuant to a restricted stock award will not be
transferable until such shares have vested in accordance with
the terms of the award agreement, unless the transfer is by will
or by the laws of descent and distribution.
The Amended and Restated Plan provides that our non-employee
directors each receive an automatic grant of restricted stock at
the beginning of each one-year term of service on the Board, for
which forfeiture restrictions lapse one year from the grant
date. From 2008 forward, the grants of restricted stock to
non-employee directors under the Amended and Restated Plan are
automatic, that is, the grants will equal $30,000 worth of
restricted stock each year, taken at the market value at the
close of the Nasdaq Global Market on the date of grant, which
historically has been the date of our annual stockholders
meeting. The terms thereunder will not be changed without SEC
approval. Shares granted pursuant to a restricted stock award
will not be transferable until such shares have vested in
accordance with the terms of the award agreement, unless the
transfer is by will or by the laws of descent and distribution.
Our Board of Directors has delegated administration of the
Amended and Restated Plan to its compensation committee,
currently comprised solely of three (3) independent
directors who are independent pursuant to the listing
requirements of the Nasdaq Global Market. Our Board may abolish
such committee at any time and revest in our Board the
administration of the Amended and Restated Plan. Our Board
administers the Amended and Restated Plan in a manner that is
consistent with the applicable requirements of the Nasdaq Global
Market and the exemptive order.
The following tables and discussions thereunder provide
information regarding the Amended and Restated Plan generally
and the restricted stock awards granted to our executive
officers in 2009:
Grants of
Plan-Based Awards
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock Awards:
|
|
Grant Date
|
|
|
|
|
Number of
|
|
Fair Value
|
Name
|
|
Grant Date
|
|
Shares of Stock
|
|
of Stock
|
|
Garland S. Tucker, III
|
|
February 4, 2009
|
|
|
29,182
|
(1)
|
|
$
|
309,913
|
|
Brent P.W. Burgess
|
|
February 4, 2009
|
|
|
23,636
|
(1)
|
|
$
|
251,014
|
|
Steven C. Lilly
|
|
February 4, 2009
|
|
|
21,091
|
(1)
|
|
$
|
223,986
|
|
|
|
|
(1) |
|
Consists of restricted stock which vests ratably over four years
from the date of grant. |
29
On February 4, 2009, the Board of Directors, upon
recommendation of our compensation committee, approved grants of
restricted stock awards to the Companys non-employee
directors and executive officers as set forth above. All of
these restricted shares of stock were valued at $10.62, the
closing price of our common stock on the Nasdaq Global Market on
February 4, 2009, the grant date. The restricted share
awards granted to the executive officers vest ratably over four
years from this grant date.
None of these shares of restricted Stock may be sold, assigned,
transferred, pledged, hypothecated or otherwise encumbered or
disposed of prior to the their vesting date, and, except as
otherwise determined by our board or compensation committee at
or after the grant of each executive officers award of
restricted stock, any of the shares which have not fully vested
will be forfeited, and all rights of the executive officer to
such shares shall terminate, without further obligation on the
part of Triangle, unless the executive officer remains employed
with us for the entire vesting period relating to the restricted
stock.
In addition, in accordance with the Amended and Restated Plan
and each individual award agreement, any share of the
Companys stock distributed with respect to the restricted
stock reflected in the table above is subject to the same
ratable vesting restrictions, terms and conditions as the
restricted stock awarded to each executive officer.
For additional information regarding the restricted stock awards
granted to each of our executive officers, please refer to our
Compensation Discussion & Analysis.
Outstanding
Equity Awards at Fiscal Year-End
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity Incentive
|
|
|
|
|
|
|
Equity Incentive
|
|
Plan Awards: Market
|
|
|
Number of
|
|
Market Value of
|
|
Plan Awards: Number
|
|
or Payout Value of
|
|
|
Shares of Stock
|
|
Shares of Stock
|
|
of Unearned Shares
|
|
Unearned Shares
|
|
|
That Have Not
|
|
That Have Not
|
|
That Have Not
|
|
That Have Not
|
Name
|
|
Vested
|
|
Vested(1)
|
|
Vested
|
|
Vested(1)
|
|
Garland S. Tucker, III
|
|
|
45,723
|
(2)
|
|
$
|
552,791
|
|
|
|
45,723
|
(2)
|
|
$
|
552,791
|
|
Brent P.W. Burgess
|
|
|
38,616
|
(3)
|
|
$
|
466,867
|
|
|
|
38,616
|
(3)
|
|
$
|
466,867
|
|
Steven C. Lilly
|
|
|
36,071
|
(4)
|
|
$
|
436,098
|
|
|
|
36,071
|
(4)
|
|
$
|
436,098
|
|
|
|
|
(1) |
|
The values of the unvested common stock listed are based on a
$12.09 closing price of our common stock as reported on the
Nasdaq Global Market on December 31, 2009. |
|
(2) |
|
16,541 of the shares listed will vest ratably on May 6 of each
year until May 6, 2013, and 29,182 of the shares listed
will vest ratably on February 4 of each year until
February 4, 2014, at which respective times such shares
will be fully vested, subject to the executive officer still
being employed with us at such vesting dates. |
|
(3) |
|
14,980 of the shares listed will vest ratably on May 6 of each
year until May 6, 2013, and 23,636 of the shares listed
will vest ratably on February 4 of each year until
February 4, 2014, at which respective times such shares
will be fully vested, subject to the executive officer still
being employed with us at such vesting dates. |
|
(4) |
|
14,980 of the shares listed will vest ratably on May 6 of each
year until May 6, 2013, and 21,091 of the shares listed
will vest ratably on February 4 of each year until
February 4, 2014, at which respective times such shares
will be fully vested, subject to the executive officer still
being employed with us at such vesting dates. |
Employment
Agreements
Effective February 2009, resulting from the determination by our
compensation committee that it would be in the best interests of
the Company and our stockholders for the Company to operate
without employment agreements, none of our employees is party to
an employment agreement with us. However, since each of our NEOs
was party to an employment agreement with us from
January 1, 2009 through February 20, 2009, we are
required to describe certain terms of their former employment
agreements, which we have done herein.
30
Upon consummation of our IPO, we entered into employment
agreements with Messrs. Tucker, Burgess, and Lilly that
provide for a two year term. The initial base salaries under the
employment agreements for Messrs. Tucker, Burgess, and
Lilly were $265,000, $240,000, and $240,000, respectively.
In addition, in 2008, each executive officer was eligible to
receive an annual bonus of up to a maximum of 100% of the
executive officers 2008 base salary for achieving certain
performance objectives. Our compensation committee established
such performance objectives, as well as the bonus awarded to
each executive officer, the details of which are discussed in
the Compensation Discussion & Analysis section above.
After recent consideration, our board of directors and
compensation committee determined that it would be in the best
interests of the Company and our stockholders if these
employment agreements were not renewed for additional one-year
terms. Accordingly, on February 20, 2009, each executive
officer affirmatively waived his non-renewal notice rights set
forth in his employment agreement, and the Company formally
acknowledged such waivers.
For additional information regarding the total compensation for
each of our executive officers, please refer to our Compensation
Discussion & Analysis.
Potential
Payments upon Termination or Change in Control
Effective February 2009, resulting from the determination by our
compensation committee that it would be in the best interests of
the Company and our stockholders for the Company to operate
without employment agreements, none of our employees is party to
an employment agreement with us and, as such, our NEOs are no
longer entitled to any severance or other compensation upon the
termination of their employment, including any such compensation
as a result of a change in control of the Company. However,
since each of our NEOs was party to an employment agreement with
us from January 1, 2009 through February 20, 2009, we
are required to describe certain terms of their former
employment agreements, including potential payments to our NEOs
upon their termination or a change in control, which we have set
forth below.
Under their respective employment agreements (which, as
explained above in the section entitled Employment
Agreements, are no longer in effect as of
February 21, 2009), each NEO was entitled to certain
payments upon termination of employment or in the event of a
change in control. The following table sets forth those
potential payments with respect to each NEO between
January 1, 2009 and February 21, 2009. In providing
the estimated potential payments, we have made the following
general assumptions in all circumstances where applicable:
|
|
|
|
|
change in control event would have occurred, and the date of
termination was February 21, 2009;
|
|
|
|
the annual salary at the time of termination would have been as
follows: Garland S. Tucker, III, $265,000; Brent P.W.
Burgess, $240,000; and Steven C. Lilly $240,000;
|
|
|
|
there would have been no unpaid bonus for the prior year;
|
|
|
|
there would have been no accrued and unpaid salary; and
|
|
|
|
there would have been no unpaid reimbursement for expenses
incurred prior to the date of termination.
|
31
2009
Potential Payments Upon Termination or Change in Control
(through February 20, 2009)
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|
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|
|
|
|
|
|
|
|
|
|
|
|
|
Within Two
|
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|
|
|
|
|
|
|
|
|
|
|
Years
|
|
|
|
|
|
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Outside of
|
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After
|
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|
Thirteenth
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Two Years
|
|
Change in
|
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Month After
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After
|
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Control;
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Change in
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Change
|
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Termination
|
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Control;
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in Control;
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w/o Cause or
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Termination
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Termination
|
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for Good
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w/o Good
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Name
|
|
Benefit
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w/o Cause(3)
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Reason(4)
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Death
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Disability
|
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Reason(5)
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Garland S. Tucker, III
|
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|
Severance Pay(1)
|
|
|
$
|
530,000
|
|
|
$
|
795,000
|
|
|
$
|
530,000
|
|
|
$
|
530,000
|
|
|
$
|
795,000
|
|
|
|
Bonu
|
s Compensation(2)
|
|
|
$
|
530,000
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|
|
$
|
795,000
|
|
|
$
|
530,000
|
|
|
$
|
530,000
|
|
|
$
|
795,000
|
|
Brent P.W. Burgess
|
|
|
Severance Pay(1)
|
|
|
$
|
480,000
|
|
|
$
|
720,000
|
|
|
$
|
480,000
|
|
|
$
|
480,000
|
|
|
$
|
720,000
|
|
|
|
Bonu
|
s Compensation(2)
|
|
|
$
|
480,000
|
|
|
$
|
720,000
|
|
|
$
|
480,000
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|
|
$
|
480,000
|
|
|
$
|
720,000
|
|
Steven C. Lilly
|
|
|
Severance Pay(1)
|
|
|
$
|
480,000
|
|
|
$
|
720,000
|
|
|
$
|
480,000
|
|
|
$
|
480,000
|
|
|
$
|
720,000
|
|
|
|
Bonu
|
s Compensation(2)
|
|
|
$
|
480,000
|
|
|
$
|
720,000
|
|
|
$
|
480,000
|
|
|
$
|
480,000
|
|
|
$
|
720,000
|
|
|
|
|
(1) |
|
Severance pay would have included an NEOs annual salary
and applicable multiple thereof paid monthly beginning at the
time of termination, plus the employees benefits in the
form of medical, health or other employee welfare benefit plan
adopted by us. |
|
(2) |
|
Bonus compensation would at most have been equal to 100% of an
employees annual salary, multiplied by the number of years
in which the employee would have been eligible to receive
severance pay as defined above. |
|
(3) |
|
Change in control was defined in each employees employment
agreement. |
|
(4) |
|
Good Reason was defined in each employees employment
agreement. |
|
(5) |
|
The intent of this particular provision in each of our executive
officers employment agreements was to allow the executive
officer the opportunity to evaluate his position with the
Company one year after a change in control had occurred, in
order to determine whether at that time it would have been in
the best interests of the Company and the executive officer for
the executive officer to continue serving in his then current
position. |
Under specified covered transactions involving a change in
control, if an NEO had terminated his employment with us within
two (2) years following such change in control, or if we
had terminated or given the NEO notice of non-renewal of the
NEOs employment within the two years commencing with a
change in control, he would have received a severance package
beginning on the date of termination. The severance package
would have included monthly payments equal to one-twelfth of
(i) the NEOs annual salary at that time plus
(ii) the NEOs bonus compensation as described in the
employment agreement, and (iii) the Company would have
continued to provide the NEO with all of the benefits provided
to him immediately prior to the termination, as described in the
employment agreement. The severance package would have continued
to be in effect for thirty-six months.
In addition, a separate severance package existed in the event
the NEOs employment had been terminated as a result of
death or disability, or in the event that the Company had
terminated the NEOs employment outside of the two-year
period after a specified covered transaction involving a change
in control. The same severance package referenced in the
immediately preceding paragraph would have been provided to the
NEO, except that the severance package would have only continued
to be in effect for twenty-four months.
Each NEOs employment agreement also included a right to
allow the executive officer the opportunity to evaluate his
position with the Company for a one-month period beginning at
the end of one year after a change in control had occurred, in
order to determine whether at that time it would have been in
the best interests of the Company and the NEO for the NEO to
continue serving in his then current position. If the NEO had
been dissatisfied with his responsibilities under the management
after the change in control had occurred, he could have
terminated his employment with the Company without good reason
and still would have received a severance package. The severance
package would have included monthly payments equal to
one-twelfth of (i) the NEOs annual salary at that
time plus (ii) the NEOs bonus compensation as
described in the employment agreement, and (iii) the
Company would have continued to provide the NEO with all of the
32
benefits provided to him immediately prior to the termination,
as described in the employment agreement. The severance package
would have continued to be in effect for thirty-six months.
Finally, if we had failed to renew any NEOs employment
agreement outside of the two-year period after a specified
covered transaction involving a change in control (thereby
terminating such NEOs employment with us), any severance
payment or benefit would have been payable at the absolute
discretion of the Board.
In addition to severance compensation, each NEOs
employment agreement provided noncompetition, nonsolicitation,
non-interference and confidentiality covenants in the event an
NEOs employment had been terminated. Under the applicable
employment agreements, for a period of two years after an
NEOs employment with Triangle terminated for any reason
whatsoever, the NEO would have been prohibited from competing
with our Company, soliciting our employees and interfering with
our business relationships. Further, each executive officer was
required to keep confidential, whether during or after
employment, all of our Companys confidential
information, as such term was defined in each employment
agreement.
After recent consideration, our board of directors and
compensation committee determined that it would be in the best
interests of the Company and our stockholders if these
employment agreements were not renewed for additional one-year
terms; however, we had not given any of our executive officers
the requisite three-month notice in accordance with the terms of
their employment agreements. To that end, Messrs. Tucker,
Burgess and Lilly were in agreement with us that non-renewal of
their employment agreements is desirable, and accordingly, on
February 20, 2009, each executive officer affirmatively
waived his non-renewal notice rights set forth in his employment
agreement, and we formally acknowledged such waivers.
Effective February 21, 2009, none of the executive officers
is employed by us pursuant to an employment agreement. Rather,
each executive officer is currently employed by us on an at-will
basis. Each executive officer will continue to be paid his
respective salary set forth in his previously effective
employment agreement (as described herein) and is eligible to
receive cash bonuses and equity incentives in the discretion of
our board of directors and compensation committee.
401(k)
Plan
In 2009, we maintained a 401(k) plan in which all full-time
employees who were at least 21 years of age were eligible
to participate. Only full-time employees who are at least
21 years of age and have 90 days of service are
eligible to participate and receive certain employer
contributions. Eligible employees have the opportunity to
contribute their compensation on a pretax salary basis into the
401(k) plan up to $16,500 for the plan year, and to direct the
investment of these contributions. Plan participants who reach
the age of 50 prior to or during the plan year are eligible to
defer up to an additional $5,500 for the plan year.
Compensation
Committee Interlocks and Insider Participation
All members of our compensation committee
(Messrs. Dunwoody, Goldstein and Smith) are independent
directors, and none of the members are present or past employees
of the Company. No member of the compensation committee:
(i) has had any relationship with the Company requiring
disclosure under Item 404 of
Regulation S-K
under the Exchange Act; (ii) is an executive officer of
another entity, at which one of our executive officers serves on
the compensation committee; or (iii) is an executive
officer of another entity, at which one of our executive
officers serves on the Board of Directors.
33
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth information with respect to the
beneficial ownership of our common stock as of March 1,
2010, the record date, by each of our executive officers and
independent directors and all of our directors and executive
officers as a group. As of March 1, 2010, we are not aware
of any 5% beneficial owners of our common stock.
Beneficial ownership is determined in accordance with the rules
of the SEC and includes voting or investment power with respect
to the securities. There is no common stock subject to options
or warrants that are currently exercisable or exercisable within
60 days of March 1, 2010. Percentage of beneficial
ownership is based on 11,934,594 shares of common stock
outstanding as of March 1, 2010. The business address of
each person below is 3700 Glenwood Avenue, Suite 530,
Raleigh, North Carolina 27612.
|
|
|
|
|
|
|
|
|
|
|
Number of Shares
|
|
|
|
|
|
|
Beneficially
|
|
|
Percentage
|
|
Name of Beneficial Owner
|
|
Owned(1)
|
|
|
of Class(2)
|
|
|
Executive Officers
|
|
|
|
|
|
|
|
|
Garland S. Tucker, III
|
|
|
195,284
|
(3)
|
|
|
1.6
|
%
|
Brent P.W. Burgess
|
|
|
183,774
|
(4)
|
|
|
1.5
|
%
|
Steven C. Lilly
|
|
|
139,649
|
(5)
|
|
|
1.2
|
%
|
Independent Directors:
|
|
|
|
|
|
|
|
|
W. McComb Dunwoody
|
|
|
137,850
|
(6)
|
|
|
1.2
|
%
|
Mark M. Gambill
|
|
|
|
|
|
|
|
|
Benjamin S. Goldstein
|
|
|
14,962
|
(7)
|
|
|
*
|
|
Simon B. Rich, Jr.
|
|
|
27,771
|
(8)
|
|
|
*
|
|
Sherwood H. Smith, Jr.
|
|
|
59,241
|
(9)
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
All Directors and Executive Officers as a Group
|
|
|
758,531
|
|
|
|
6.4
|
%
|
|
|
|
* |
|
Less than 1.0% |
|
(1) |
|
Beneficial ownership has been determined in accordance with
Rule 13d-3
of the Exchange Act. |
|
(2) |
|
Based on a total of 11,934,594 shares issued and
outstanding as of March 1, 2010. |
|
(3) |
|
Includes 69,261 shares of restricted stock and
812 shares held by Mr. Tuckers wife. |
|
(4) |
|
Includes 59,374 shares of restricted stock. |
|
(5) |
|
Includes 51,632 shares of restricted stock. |
|
(6) |
|
Includes 6,771 shares of restricted stock. |
|
(7) |
|
Includes 6,771 shares of restricted stock. |
|
(8) |
|
Includes 6,771 shares of restricted stock and
3,500 shares held by Mr. Richs wife. |
|
(9) |
|
Includes 6,771 shares of restricted stock. |
SECTION 16(A)
BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Exchange Act and the disclosure
requirements of Item 405 of SEC
Regulation S-K
require that our directors and executive officers, and any
persons holding more than 10% of any class of our equity
securities report their ownership of such equity securities and
any subsequent changes in that ownership to the SEC, The Nasdaq
Stock Market and to us. Based solely on a review of the written
statements and copies of such reports furnished to us by our
executive officers, directors and greater than 10% beneficial
owners, we believe that during fiscal year 2009 all
Section 16(a) filing requirements applicable to the
executive officers, directors and stockholders were timely
satisfied.
34
PROPOSAL NO. 2
APPROVAL
TO SELL SHARES OF COMMON STOCK BELOW NET ASSET VALUE (BOOK
VALUE)
The Company is a closed-end investment company that has elected
to be treated as a business development company, or BDC, under
the 1940 Act. The 1940 Act prohibits the Company from selling
shares of its common stock at a price below the current net
asset value (i.e., book value) per share of such stock, with
certain exceptions. One such exception would permit the Company
to sell shares of its common stock during the next year at a
price below the Companys then current net asset value per
share if its stockholders approve such a sale and the
Companys directors make certain determinations. Pursuant
to this provision, the Company is seeking the approval of its
common stockholders so that it may, in one or more public or
private offerings of its common stock, sell shares of its common
stock at a price below its then current net asset value per
share, subject to certain conditions discussed below. If
approved, the authorization would be effective for a period
expiring on the earlier of the anniversary of the date of this
Annual Meeting and the date of the Companys 2011 Annual
Meeting of Stockholders, which is expected to be held in May
2011.
Generally, equity securities sold in public securities offerings
are priced based on public market prices quoted on exchanges
such as Nasdaq, rather than net asset value, or book value, per
share. Since the Companys IPO, at times the Companys
common stock has traded above its net asset value per share, and
at times the Companys common stock has traded below its
net asset value per share. At each of the Companys 2008
and 2009 Annual Meetings of Stockholders, the Company requested
and received approval from its stockholders to sell its stock at
a price per share below net asset value under certain
circumstances. This year, the Company is again seeking the
approval of a majority of its common stockholders of record to
offer and sell shares of its common stock at prices that, net of
underwriting discount or commissions, may be less than net asset
value so as to permit the flexibility in pricing that market
conditions may require.
Reasons
to Offer Common Stock Below Net Asset Value
We believe that market conditions will continue to provide
opportunities to invest new capital at potentially attractive
returns. In 2008 and 2009, U.S. credit markets, including
many lending institutions, experienced significant difficulties
resulting in large part from the default in payments on
sub-prime
residential mortgages and concerns generally about the decline
in the U.S. economy. This contributed to significant stock
price volatility for capital providers such as our Company and
has made access to capital more challenging for many smaller
businesses. However, the change in credit market conditions also
has had beneficial effects for capital providers like us because
small businesses are sometimes selling for lower prices, in
certain circumstances, willing to pay higher interest rates and
generally are generally are accepting more contractual terms
that we believe will be favorable to us. Accordingly, for firms
that continue to have access to capital, we believe that the
current environment could provide investment opportunities on
more favorable terms than have been available in recent periods.
Our ability to take advantage of these opportunities, however,
is dependent upon our access to equity capital.
As a BDC and RIC, the Company is dependent on its ability to
raise capital through the issuance of common stock. RICs
generally must distribute substantially all of their earnings to
stockholders as dividends in order to achieve pass-through tax
treatment, which prevents the Company from using those earnings
to support new investments. Further, BDCs must maintain a debt
to equity ratio of less than 1:1, which requires the Company to
finance its investments with at least as much equity as debt in
the aggregate. To continue to build the Companys
investment portfolio, and thereby support maintenance and growth
of the Companys dividends, the Company endeavors to
maintain consistent access to capital through the public and
private equity markets enabling it to take advantage of
investment opportunities as they arise.
Although the Companys common stock has had a limited
trading history, it has traded both at a premium and at a
discount in relation to its net asset value, which is the
equivalent of book value, rather than market or
publicly-traded value. The possibilities that shares of our
common stock will trade at a discount from net asset value or at
premiums that are unsustainable over the long term are separate
and distinct from the risk that our net asset value will
decrease. It is not possible to predict whether any shares of
our common stock issued in the future will trade at, above, or
below net asset value. The following table, reflecting the
entire public trading history of our common stock since our
initial public offering in February 2007, lists the high and low
sales
35
prices for our common stock, and the sales prices as percentages
of net asset values. On March 1, 2010, the record date, the
last reported closing sale price of our common stock on the
Nasdaq Global Market was $13.50.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Premium of High Sales
|
|
Discount of Low Sales
|
|
|
Net Asset
|
|
Sales Price
|
|
Price to Net Asset
|
|
Price to Net Asset
|
|
|
Value(1)
|
|
High
|
|
Low
|
|
Value(2)
|
|
Value(2)
|
|
Year Ended December 31, 2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
First Quarter
|
|
$
|
13.57
|
|
|
$
|
16.00
|
|
|
$
|
13.45
|
|
|
|
117.9
|
%
|
|
|
99.1
|
%
|
Second Quarter
|
|
$
|
13.75
|
|
|
$
|
15.79
|
|
|
$
|
13.58
|
|
|
|
114.8
|
%
|
|
|
98.8
|
%
|
Third Quarter
|
|
$
|
13.99
|
|
|
$
|
14.99
|
|
|
$
|
11.95
|
|
|
|
107.1
|
%
|
|
|
85.4
|
%
|
Fourth Quarter
|
|
$
|
13.74
|
|
|
$
|
14.50
|
|
|
$
|
10.75
|
|
|
|
105.5
|
%
|
|
|
78.2
|
%
|
Year ended December 31, 2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
First Quarter
|
|
$
|
13.85
|
|
|
$
|
13.40
|
|
|
$
|
12.94
|
|
|
|
96.8
|
%
|
|
|
93.4
|
%
|
Second Quarter
|
|
$
|
13.73
|
|
|
$
|
12.25
|
|
|
$
|
11.85
|
|
|
|
89.2
|
%
|
|
|
86.3
|
%
|
Third Quarter
|
|
$
|
13.76
|
|
|
$
|
13.75
|
|
|
$
|
9.91
|
|
|
|
99.9
|
%
|
|
|
72.0
|
%
|
Fourth Quarter
|
|
$
|
13.22
|
|
|
$
|
13.18
|
|
|
$
|
4.00
|
|
|
|
99.7
|
%
|
|
|
30.3
|
%
|
Year ended December 31, 2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
First Quarter
|
|
$
|
12.46
|
|
|
$
|
12.92
|
|
|
$
|
5.21
|
|
|
|
103.7
|
%
|
|
|
41.8
|
%
|
Second Quarter
|
|
$
|
11.31
|
|
|
$
|
12.38
|
|
|
$
|
7.50
|
|
|
|
109.5
|
%
|
|
|
66.3
|
%
|
Third Quarter
|
|
$
|
10.60
|
|
|
$
|
12.77
|
|
|
$
|
10.26
|
|
|
|
120.5
|
%
|
|
|
96.8
|
%
|
Fourth Quarter
|
|
$
|
11.05
|
|
|
$
|
13.28
|
|
|
$
|
10.95
|
|
|
|
120.2
|
%
|
|
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99.1
|
%
|
Year ended December 31, 2010
|
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|
|
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|
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|
|
|
|
|
|
|
|
First Quarter (through March 10, 2010)
|
|
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*
|
|
|
$
|
14.17
|
|
|
$
|
11.45
|
|
|
|
*
|
|
|
|
*
|
|
|
|
|
* |
|
Net asset value has not yet been calculated for this period |
|
(1) |
|
Net asset value per share is determined as of the last day in
the relevant quarter and therefore may not reflect the net asset
value per share on the date of the high and low sales prices.
The net asset values shown are based on outstanding shares at
the end of each period. |
|
(2) |
|
Calculated as the respective high or low sales price divided by
net asset value. |
The unprecedented nature of the recent credit market dislocation
and uncertainty surrounding the U.S. economy has led to
significant stock market volatility, particularly with respect
to the stock of financial services companies. During times of
increased price volatility, the Companys common stock may
periodically trade below its net asset value, which is not
uncommon for BDCs like the Company. As noted above, however, the
recent market uncertainties have created, and we believe will
continue to create, favorable opportunities to invest, including
opportunities that, all else being equal, may increase net asset
value over the longer-term, even if financed with the issuance
of common stock below net asset value, although there is no
assurance that this will occur. The Company expects that it will
be periodically presented with attractive opportunities that
require the Company to make an investment commitment quickly.
The Company may be unable to capitalize on investment
opportunities presented to it unless it is able to quickly raise
capital. Stockholder approval of the proposal to sell shares
below net asset value subject to the conditions detailed below
will provide the Company with the flexibility to invest in such
opportunities.
The Board of Directors believes that having the flexibility to
issue its common stock below net asset value in certain
instances is in the best interests of stockholders. If the
Company were unable to access the capital markets as attractive
investment opportunities arise, the Companys ability to
grow over time and continue to pay steady or increasing
dividends to stockholders could be adversely affected. It could
also have the effect of forcing the Company to sell assets that
the Company would not otherwise sell, and such sales could occur
at times that are disadvantageous to sell.
36
Conditions
to Sales Below Net Asset Value
If this proposal is approved, the Company will only sell shares
of its common stock at a price below net asset value per share
if the following conditions are met:
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a majority of the Companys directors who have no financial
interest in the sale and a majority of such directors who are
not interested persons of the Company have determined that any
such sale would be in the best interests of the Company and its
stockholders; and
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a majority of the Companys directors who have no financial
interest in the sale and a majority of such directors who are
not interested persons of the Company, in consultation with the
underwriter or underwriters of the offering if it is to be
underwritten, have determined in good faith, and as of a time
immediately prior to the first solicitation by or on behalf of
the Company of firm commitments to purchase such securities or
immediately prior to the issuance of such securities, that the
price at which such securities are to be sold is not less than a
price which closely approximates the market value of those
securities, less any distributing commission or discount.
|
As a stockholder, you should also be aware that no conflict of
interest exists as to any entity affiliated with the Company
such that any such entity would receive fees as a direct result
of assets under management increasing from any sale of the
Companys stock at a price per share below net asset value.
As an internally managed BDC, we do not pay asset management
fees to third party investment advisors.
Finally, in determining whether or not to sell additional shares
of the Companys common stock at a price below the net
asset value per share, the Board of Directors will have duties
to act in the best interests of the Company and its stockholders.
Key
Stockholder Considerations
Before voting on this proposal or giving proxies with regard to
this matter, common stockholders should consider the dilutive
effect of the issuance of shares of the Companys common
stock at less than net asset value per share on the net asset
value per outstanding share of common stock. Any sale of common
stock at a price below net asset value would result in an
immediate dilution to existing common stockholders. Since under
this proposal shares of the Companys common stock could be
issued at a price that is substantially below the net asset
value per share, the dilution could be substantial. This
dilution would include reduction in the net asset value per
shares as a result of the issuance of shares at a price below
the net asset value per share and a proportionately greater
decrease in a stockholders interest in the earnings and
assets of the Company and voting interest in the Company than
the increase in the assets of the Company resulting from such
issuance. If this Proposal No. 2 is approved, the
Board of Directors of the Company may, consistent with its
fiduciary duties, approve the sale of the Companys common
stock at any discount to its then-current net asset value per
share; however, the Board will consider the potential dilutive
effect of the issuance of shares at a price below the net asset
value per share when considering whether to authorize any such
issuance and will act in the best interests of the Company and
its stockholders in doing so.
The 1940 Act establishes a connection between common share sale
price and net asset value because, when stock is sold at a sale
price below net asset value per share, the resulting increase in
the number of outstanding shares is not accompanied by a
proportionate increase in the net assets of the issuer. Further,
if current stockholders of the Company do not purchase any
shares to maintain their percentage interest, regardless of
whether such offering is above or below the then current net
asset value, their voting power will be diluted. For an
illustration of the potential dilutive effect of an offering of
our common stock at a price below net asset value, please see
the table below under the heading Examples of Dilutive
Effect of the Issuance of Shares Below Net Asset
Value.
Finally, any sale of substantial amounts of our common stock or
other securities in the open market may adversely affect the
market price of our common stock and may adversely affect our
ability to obtain future financing in the capital markets. In
addition, future sales of our common stock to the public may
create a potential market overhang, which is the existence of a
large block of shares readily available for sale that could lead
the market to discount the value of shares held by other
investors.
37
Examples
of Dilutive Effect of the Issuance of Shares Below Net
Asset Value
The following table illustrates the level of net asset value
dilution that would be experienced by a nonparticipating
stockholder in three different hypothetical offerings of
different sizes and levels of discount from net asset value per
share, although it is not possible to predict the level of
market price decline that may occur. Actual sales prices and
discounts may differ from the presentation below.
The examples assume that Company XYZ has 1,000,000 common shares
outstanding, $15,000,000 in total assets and $5,000,000 in total
liabilities. The current net asset value and net asset value per
share are thus $10,000,000 and $10.00. The table illustrates the
dilutive effect on nonparticipating Stockholder A of (1) an
offering of 50,000 shares (5% of the outstanding shares) at
$9.50 per share after offering expenses and commission (a 5%
discount from net asset value), (2) an offering of
100,000 shares (10% of the outstanding shares) at $9.00 per
share after offering expenses and commissions (a 10% discount
from net asset value) and (3) an offering of
200,000 shares (20% of the outstanding shares) at $8.00 per
share after offering expenses and commissions (a 20% discount
from net asset value). The acronym NAV stands for
net asset value.
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Example 1
|
|
Example 1
|
|
Example 1
|
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|
5% Offering
|
|
10% Offering
|
|
20% Offering
|
|
|
|
|
at 5% Discount
|
|
at 10% Discount
|
|
at 20% Discount
|
|
|
Prior to Sale
|
|
Following
|
|
%
|
|
Following
|
|
%
|
|
Following
|
|
%
|
|
|
Below NAV
|
|
Sale
|
|
Change
|
|
Sale
|
|
Change
|
|
Sale
|
|
Change
|
|
Offering Price
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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Price per Share to Public
|
|
|
|
|
|
$
|
10.00
|
|
|
|
|
|
|
$
|
9.47
|
|
|
|
|
|
|
$
|
8.42
|
|
|
|
|
|
Net Proceeds per Share to Issuer
|
|
|
|
|
|
$
|
9.50
|
|
|
|
|
|
|
$
|
9.00
|
|
|
|
|
|
|
$
|
8.00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
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|
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|
Decrease to NAV
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Shares Outstanding
|
|
|
1,000,000
|
|
|
|
1,050,000
|
|
|
|
5.00
|
%
|
|
|
1,100,000
|
|
|
|
10.00
|
%
|
|
|
1,200,000
|
|
|
|
20.00
|
%
|
NAV per Share
|
|
$
|
10.00
|
|
|
$
|
9.98
|
|
|
|
(0.24
|
)%
|
|
$
|
9.91
|
|
|
|
(0.91
|
)%
|
|
$
|
9.67
|
|
|
|
(3.33
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
|
|
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|
Dilution to Stockholder
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares Held by Stockholder A
|
|
|
10,000
|
|
|
|
10,000
|
|
|
|
|
|
|
|
10,000
|
|
|
|
|
|
|
|
10,000
|
|
|
|
|
|
Percentage Held by Stockholder A
|
|
|
1.0
|
%
|
|
|
0.95
|
%
|
|
|
(4.76
|
)%
|
|
|
0.91
|
%
|
|
|
(9.09
|
)%
|
|
|
0.83
|
%
|
|
|
(16.67
|
)%
|
Total Asset Values
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total NAV Held by Stockholder A
|
|
$
|
100,000
|
|
|
$
|
99,762
|
|
|
|
(0.24
|
)%
|
|
$
|
99,091
|
|
|
|
(0.91
|
)%
|
|
$
|
96,667
|
|
|
|
(3.33
|
)%
|
Total Investment by Stockholder A (Assumed to Be $10.00 per
Share)
|
|
$
|
100,000
|
|
|
$
|
100,000
|
|
|
|
|
|
|
$
|
100,000
|
|
|
|
|
|
|
|
100,000
|
|
|
|
|
|
Total Dilution to Stockholder A (Total NAV Less Total Investment)
|
|
|
|
|
|
$
|
(288
|
)
|
|
|
|
|
|
$
|
(909
|
)
|
|
|
|
|
|
$
|
(3,333
|
)
|
|
|
|
|
Per Share Amounts
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NAV per Share Held by Stockholder A
|
|
|
|
|
|
$
|
9.98
|
|
|
|
|
|
|
$
|
9.91
|
|
|
|
|
|
|
$
|
9.67
|
|
|
|
|
|
Investment per Share Held by Stockholder A (Assumed to be $10.00
per Share on Shares Held Prior to Sale)
|
|
$
|
10.00
|
|
|
$
|
10.00
|
|
|
|
|
|
|
$
|
10.00
|
|
|
|
|
|
|
$
|
10.00
|
|
|
|
|
|
Dilution per Share Held by Stockholder A (NAV per Share Less
Investment per Share)
|
|
|
|
|
|
$
|
(0.02
|
)
|
|
|
|
|
|
$
|
(0.09
|
)
|
|
|
|
|
|
$
|
(0.33
|
)
|
|
|
|
|
Percentage Dilution to Stockholder A (Dilution per Share Divided
by Investment per Share)
|
|
|
|
|
|
|
|
|
|
|
(0.24
|
)%
|
|
|
|
|
|
|
(0.91
|
)%
|
|
|
|
|
|
|
(3.33
|
)%
|
Required
Vote
Approval of this proposal requires the affirmative vote of
(1) a majority of the outstanding shares of common stock
entitled to vote at the Annual Meeting; and (2) a majority
of the outstanding shares of common stock entitled to vote at
the Annual Meeting which are not held by affiliated persons of
the Company.
For purposes of this proposal, the 1940 Act defines a
majority of the outstanding shares as: (1) 67% or
more of the voting securities present at the Annual Meeting if
the holders of more than 50% of the outstanding voting
securities of such company are present or represented by proxy;
or (2) 50% of the outstanding voting securities of such
company, whichever is the less. Abstentions and broker non-votes
will have the effect of a vote against this proposal.
The Board of Directors recommends a vote FOR
the proposal to authorize the Company to sell shares of its
common stock during the next year at a price below the
Companys then current net asset value (i.e., book value)
per share.
38
PROPOSAL NO. 3
RATIFICATION
OF APPOINTMENT OF
INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM
The audit committee of the Board of Directors has selected
Ernst & Young LLP as our independent registered public
accounting firm for the fiscal year ending December 31,
2010, and the Board of Directors has further directed that
management should submit the appointment of the independent
registered public accounting firm for ratification by the
stockholders at the Annual Meeting. Ernst & Young LLP
also will serve as the independent registered public accounting
firm for all of our wholly-owned subsidiaries.
Ernst & Young LLP has advised us that neither the firm
nor any present member or associate of it has any material
financial interest, direct or indirect, in us or our
wholly-owned subsidiaries. It is expected that a representative
of Ernst & Young LLP will be present at the Annual
Meeting and will have an opportunity to make a statement if he
or she chooses and will be available to answer appropriate
questions.
Stockholder ratification of the appointment of Ernst &
Young LLP as our independent registered public accounting firm
is not required by our bylaws or other governing documents.
However, the Board is submitting the appointment of
Ernst & Young LLP to the stockholders for ratification
as a matter of good corporate governance. Our audit committee is
therefore not bound by a vote either for or against the
proposal. The audit committee will consider a vote against the
firm by the stockholders in selecting our independent registered
public accounting firm in the future. Even if the stockholders
do ratify the appointment, the audit committee in its discretion
may direct the appointment of a different independent registered
public accounting firm at any time during the year if it
believes that such a change would be in the best interest of
Triangle and our stockholders.
On behalf of the audit committee, the Board recommends a
vote FOR the ratification of the appointment of
Ernst & Young LLP as the Companys independent
registered public accounting firm for the fiscal year ending
December 31, 2010.
Independent
Registered Public Accounting Firms Fees
We have paid or expect to pay the following fees to
Ernst & Young LLP for work performed in 2009 and 2008
or attributable to the audit of our 2009 and 2008 financial
statements:
|
|
|
|
|
|
|
|
|
|
|
Fiscal Year Ended
|
|
|
Fiscal Year Ended
|
|
|
|
December 31, 2009
|
|
|
December 31, 2008
|
|
|
Audit Fees
|
|
$
|
447,500
|
(1)
|
|
$
|
280,000
|
|
Audit Related Fees
|
|
|
|
|
|
|
|
|
Tax Fees
|
|
$
|
38,000
|
|
|
$
|
49,000
|
|
Other Fees
|
|
$
|
31,600
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TOTAL FEES:
|
|
$
|
517,100
|
|
|
$
|
329,000
|
|
|
|
|
(1) |
|
Includes approximately $170,700 in audit fees related to our
three public offerings of common stock which closed in 2009. |
Audit Fees. Audit fees include fees for
services that normally would be provided by the accountant in
connection with statutory and regulatory filings or engagements
and that generally only the independent accountant can provide.
In addition to fees for the audit of our annual financial
statements, the audit of the effectiveness of our internal
control over financial reporting and the review of our quarterly
financial statements in accordance with generally accepted
auditing standards, this category contains fees for comfort
letters, statutory audits, consents, and assistance with and
review of documents filed with the SEC.
Audit Related Fees. Audit related fees are
assurance related services that traditionally are performed by
the independent accountant, such as attest services that are not
required by statute or regulation.
Tax Fees. Tax fees include corporate and
subsidiary compliance and consulting.
39
All Other Fees. Fees for other services would
include fees for products and services other than the services
reported above.
During 2008 and 2009, 100% of our audit fees and tax fees
associated with our independent registered public accounting
firm were approved by our audit committee.
Pre-Approval
Policies and Procedures
The audit committee has established, and our Board of Directors
has approved, a pre-approval policy that describes the permitted
audit, audit-related, tax and other services to be provided by
Ernst & Young LLP, the Companys independent
registered accounting firm. The policy requires that the audit
committee pre-approve the audit and non-audit services performed
by the independent registered accounting firm in order to assure
that the provision of such service does not impair the
firms independence. Our audit committee formally adopted
this pre-approval policy on March 12, 2008. Prior to
March 12, 2008, our audit committee specifically reviewed
and approved Ernst & Young LLPs services between
February 21, 2007 and December 31, 2007.
Any requests for audit, audit-related, tax and other services
that have not received general pre-approval must be submitted to
the audit committee for specific pre-approval, irrespective of
the amount, and cannot commence until such approval has been
granted. Normally, pre-approval is provided at regularly
scheduled meetings of the audit committee. However, the audit
committee may delegate pre-approval authority to one or more of
its members. The member or members to whom such authority is
delegated shall report any pre- approval decisions to the audit
committee at its next scheduled meeting. The audit committee
does not delegate its responsibilities to pre-approve services
performed by the independent registered accounting firm to
management.
AUDIT
COMMITTEE REPORT
The audit committee of the Board of Directors of Triangle
Capital Corporation operates under a written charter adopted by
the Board of Directors, which is available on our website at the
following URL:
http://ir.tcap.com.
The audit committee is currently comprised of
Messrs. Goldstein, Rich and Smith.
Management is responsible for the Companys internal
controls and the financial reporting process. The Companys
independent registered public accounting firm is responsible for
performing an independent audit of the Companys
consolidated financial statements in accordance with auditing
standards generally accepted in the United States and expressing
an opinion on the conformity of those audited financial
statements in accordance with accounting principles generally
accepted in the United States. The audit committees
responsibility is to monitor and oversee these processes. The
audit committee is also directly responsible for the
appointment, compensation and oversight of the Companys
independent registered public accounting firm.
Review
with Management
The audit committee has reviewed the audited financial
statements and met and held discussions with management
regarding the audited financial statements. Management has
represented to the audit committee that the Companys
consolidated financial statements were prepared in accordance
with accounting principles generally accepted in the United
States.
Review
and Discussion with Independent Registered Public Accounting
Firm
The audit committee has discussed with Ernst & Young
LLP matters required to be discussed by Statement on Auditing
Standards No. 114, Communication with Audit Committees
(which supersedes Statement on Auditing Standards No. 61,
as amended). The audit committee received and reviewed the
written disclosures and the letter from Ernst & Young
LLP required by Independence Standard No. 1, Independence
Discussions with Audit Committees, as amended by the
Independence Standards Board, and has discussed with
Ernst & Young LLP its independence and the
compatibility of non-audit services with the firms
independence. The audit committee also reviewed the requirements
and the Companys implementation of
40
Section 404 of the Sarbanes-Oxley Act of 2002 including the
Public Company Accounting Oversight Boards Auditing
Standard No. 2 regarding the audit of internal controls
over financial reporting.
Conclusion
Based on the audit committees discussion with management
and the Companys independent registered public accounting
firm, the audit committees review of the audited financial
statements, the representations of management and the report of
the independent registered public accounting firm to the audit
committee, the audit committee recommends that the Board of
Directors include the audited consolidated financial statements
in the Companys Annual Report on
Form 10-K
for the year ended December 31, 2009 for filing with the
Securities and Exchange Commission. The audit committee also
appoints Ernst & Young LLP to serve as the
Companys independent registered public accounting firm for
the year ended December 31, 2010, subject to ratification
of such appointment by the stockholders of the Company.
The Audit Committee
Benjamin S. Goldstein, Chair
Simon B. Rich, Jr.
Sherwood H. Smith, Jr.
CERTAIN
RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
Related
Party Transactions Policy and Procedure
The Company has procedures in place for the review, approval and
monitoring of transactions involving the Company and certain
related persons of the Company. As a BDC, the Company is
prohibited by the 1940 Act from participating in transactions
with any persons affiliated with the BDC, including, officers,
directors, and employees of the BDC and any person controlling
or under common control with the BDC, or its affiliates, absent
an exemptive order from the SEC.
In order to ensure that the Company does not engage in any
prohibited transactions with any persons affiliated with
Company, the Company has implemented the following procedures:
|
|
|
|
|
The Companys investment committee will distribute (via
email) to the chief compliance officer and chief executive
officer information memoranda for all transactions for which
non-binding term sheets have been issued.
|
|
|
|
The chief compliance officer
and/or chief
executive officer will then distribute (via email) such
nonbinding term sheets to our list of affiliated persons.
|
|
|
|
Next, the chief compliance officer
and/or chief
executive officer will distribute (via email) the written
requirements of Section 57 of the 1940 Act to the
Companys affiliated persons.
|
|
|
|
Finally, the chief compliance officer
and/or chief
executive officer will request that the affiliated persons
(i) review the information memoranda, (ii) review the
requirements of Section 57 of the 1940 Act,
(iii) determine whether there is a related party conflict
as to themselves and (iv), if such a related party conflict
exists, the applicable affiliated person must communicate such
conflict with the chief compliance officer
and/or chief
executive officer as soon as reasonably possible.
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The chief compliance officer will review all affiliated
transactions before they occur and make a recommendation to the
Board regarding whether the transactions comply with all
applicable rules and regulations. The chief compliance officer
will also review the Board minutes to ensure that any approval
by the Board of an affiliated transaction is made upon the
requisite legal basis.
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The chief compliance officer will review all affiliated
transactions after they occur to verify that they comply with
the proposed terms and all applicable regulations. The chief
compliance officer will notify
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the Board should any affiliated transaction occur without proper
approval or with terms different than those approved. The Board
will have the discretion to reverse the transaction or require
the affiliated party to reimburse any detriment suffered by the
Company as a result of such transaction.
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In addition, the Companys code of conduct, which has
approved by the Board of Directors and acknowledged in writing
by all employees, requires that all employees and directors
avoid any conflict, or the appearance of a conflict, between an
individuals personal interests and the interests of the
Company. Pursuant to the code of conduct, each employee and
director must disclose any conflicts of interest, or actions or
relationships that might give rise to a conflict, to our chief
compliance officer. The nominating and corporate governance
committee is charged with monitoring and making recommendations
to the Board of Directors regarding policies and practices
relating to corporate governance. Certain actions or
relationships that might give rise to a conflict of interest are
reviewed and approved by the Board of Directors.
Certain
Transactions With or Involving Related Persons
During 2009, we did not enter into any transactions with related
persons that would be required to be disclosed under this
caption pursuant to Item 404(a) of
Regulation S-K.
For additional information regarding the amount of common stock
owned by members of management, see Security Ownership of
Certain Beneficial Owners and Management.
OTHER
BUSINESS
The Board of Directors knows of no other business to be
presented for action at the 2010 Annual Meeting of Stockholders.
If any matters do come before the meeting on which action can
properly be taken, it is intended that the proxies shall vote in
accordance with the judgment of the person or persons exercising
the authority conferred by the proxy at the meeting. The
submission of a proposal does not guarantee its inclusion in our
proxy statement or presentation at the meeting unless certain
securities law requirements are met.
You are cordially invited to attend the 2010 Annual Meeting
of Stockholders in person. Whether or not you plan to attend the
meeting, you are requested to complete, date, sign and promptly
return the accompanying proxy card in the enclosed postage-paid
envelope.
By order of the Board of Directors
Steven C. Lilly
Chief Financial Officer, Treasurer and Secretary
Raleigh, North Carolina
March [ ], 2010
42
THIS
PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS OF
TRIANGLE CAPITAL CORPORATION FOR THE 2010 ANNUAL MEETING OF
STOCKHOLDERS
May 5,
2010
The undersigned stockholder of Triangle Capital Corporation (the
Company) acknowledges receipt of the Notice of
Annual Meeting of Stockholders of the Company and hereby
appoints Garland S. Tucker, III and Steven C. Lilly, or any
one of them, and each with full power of substitution, to act as
attorneys and proxies for the undersigned to vote all the shares
of common stock of the Company that the undersigned is entitled
to vote at the Annual Meeting of Stockholders of the Company to
be held on May 5, 2010, at 8:30 a.m., Eastern Time, at
the Womans Club of Raleigh, 3300 Womans Club Drive,
Raleigh, North Carolina 27612, and at any adjournment thereof,
as indicated on this proxy.
THIS PROXY IS REVOCABLE AND WILL BE VOTED AS DIRECTED BY THE
UNDERSIGNED BELOW; where no choice is specified, it will be
voted FOR Proposals 1, 2 and 3.
Please sign and date this proxy on the reverse side and return
it in the enclosed envelope.
(CONTINUED
ON REVERSE SIDE)
ANNUAL MEETING OF STOCKHOLDERS
TRIANGLE CAPITAL CORPORATION
May 5, 2010
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Mark, sign and date your proxy card and return it in the
postage-paid envelope we have provided or return it to Triangle
Capital Corporation,
c/o The
Altman Group, Inc., Attn: Charlotte Brown, 1200 Wall Street
West, 3rd Floor, Lyndhurst, New Jersey 07071.
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PLEASE
DATE, SIGN AND MAIL YOUR
PROXY CARD IN THE ENVELOPE PROVIDED AS SOON AS
POSSIBLE!
THE BOARD
OF DIRECTORS RECOMMENDS A VOTE FOR PROPOSALS 1,
2 and 3
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1. The election of the following eight persons (except as marked
to the contrary) as Directors who will serve as directors of
Triangle Capital Corporation until the 2011 Annual Meeting and
until their successors have been duly elected and qualified.
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Nominees:
Garland S. Tucker, III Brent P.W. Burgess Steven C. Lilly W. McComb Dunwoody
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Mark M. Gambill Benjamin S. Goldstein Simon B. Rich, Jr. Sherwood M. Smith, Jr.
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FOR
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WITHHOLD AUTHORITY
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FOR ALL EXCEPT
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INSTRUCTIONS: To withhold authority to vote for any individual,
mark, For All Except and write the nominees
name(s) on the line below.
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FOR
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AGAINST
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ABSTAIN
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2. To approve a proposal to authorize the Company, pursuant
to approval of its Board of Directors, to sell shares of its
common stock during the next year at a price below the
Companys then current net asset value (i.e., book value)
per share
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3. The ratification of the selection of Ernst &
Young LLP as the Companys independent registered public
accounting firm for the fiscal year ending December 31,
2010.
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THIS PROXY IS REVOCABLE AND WILL BE VOTED AS DIRECTED BY THE
UNDERSIGNED BELOW; where no choice is specified, it will be
voted FOR Proposals 1, 2 and 3.
IMPORTANT: Please sign exactly as your name appears on this
proxy. For joint accounts, each joint owner should sign. When
signing as attorney, executor, administrator, trustee or
guardian, please give your full title as such. If the signer is
a corporation or partnership, please sign in full corporate or
partnership name by a duly authorized officer or partner.
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SIGNATURE
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DATE
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SIGNATURE
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DATE
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IF HELD JOINTLY
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