EXHIBIT (A)(3) FORM OF AMENDED AND RESTATED ARTICLES OF INCORPORATION OF THE REGISTRANT
Published on December 29, 2006
Exhibit (a)(3)
TRIANGLE CAPITAL CORPORATION
ARTICLES OF AMENDMENT AND RESTATEMENT
FIRST: Triangle Capital Corporation, a Maryland corporation (the
Corporation), desires to amend and restate its charter as currently in effect and as
hereinafter amended.
SECOND: The following provisions are all the provisions of the
charter currently in effect and as hereinafter amended:
ARTICLE I
NAME
NAME
The name of the corporation (the Corporation) is:
Triangle Capital Corporation
ARTICLE II
PURPOSE
PURPOSE
The purposes for which the Corporation is formed are to conduct and carry on the
business of a business development company, subject to making an election under the
Investment Company Act of 1940, as amended, and the rules promulgated thereunder (the 1940
Act) and to engage in any lawful act or activity for which corporations may be organized
under the general laws of the State of Maryland as of now or hereafter in force.
ARTICLE III
PRINCIPAL OFFICE IN STATE AND RESIDENT AGENT
PRINCIPAL OFFICE IN STATE AND RESIDENT AGENT
The address of the principal office of the Corporation in the State of Maryland is
The Corporation Trust Incorporated, 300 East Lombard Street, Baltimore, Maryland 21202. The
name and address of the resident agent of the Corporation in Maryland are The
Corporation Trust Incorporated, 300 East Lombard Street, Baltimore, Maryland 21202.
ARTICLE IV
PROVISIONS FOR DEFINING, LIMITING AND
REGULATING CERTAIN POWERS OF THE CORPORATION AND OF
THE STOCKHOLDERS AND DIRECTORS
PROVISIONS FOR DEFINING, LIMITING AND
REGULATING CERTAIN POWERS OF THE CORPORATION AND OF
THE STOCKHOLDERS AND DIRECTORS
Section 4.1 Number, Classification and Election of
Directors. The business and affairs of the Corporation shall be managed under the
direction of the Board of Directors. The number of directors of the Corporation is three
(3), which number may be increased or decreased only by the Board of Directors pursuant to
the Bylaws, but shall never be less than the minimum number required by the Maryland General
Corporation Law ( the MGCL) or the 1940 Act. The names of the directors who shall serve
until their successors are duly elected and qualify are:
Garland S. Tucker, III
Brent P.W. Burgess
Steven C. Lilly.
The directors may increase the number of directors and may fill any vacancy, whether
resulting from an increase in the number of directors or otherwise, on the Board of
Directors in the manner provided in the Bylaws.
The terms of each director shall be one year unless and until the Board of Directors,
acting by authority provided under Section 3-802 of the MGCL, shall establish terms
consistent with Section 3-803 and designate directors to serve as class I, class II and
class III directors pursuant to Section 3-803(a) of the MGCL. The Corporation elects, at
such time as it becomes eligible to make the election provided for under Section 3-802(b) of
the MGCL, that, subject to applicable requirements of the 1940 Act and except as may be
provided by the Board of Directors in setting the terms of any class or series of Preferred
Stock (as hereinafter defined), any and all vacancies on the Board of Directors may be
filled only by the affirmative vote of a majority of the remaining directors in office, even
if the remaining directors do not constitute a quorum, and any director elected to fill a
vacancy shall serve for the remainder of the full term of the directorship in which such
vacancy occurred and until a successor is duly elected and qualifies.
Section 4.2 Extraordinary Actions. Except as specifically provided in
Section 4.9 (relating to the removal of directors), and in Section 6.2 (relating to certain
extraordinary transactions and certain amendments to the charter), notwithstanding any
provision of the MGCL requiring any action to be taken or approved by the affirmative vote
of the holders of shares entitled to cast a greater number of votes, any such action shall
be effective and valid if declared advisable by the Board of Directors and taken or approved
by the affirmative vote of holders of shares entitled to cast a majority of all the votes
entitled to be cast on the matter.
Section 4.3 Election of Directors. Except as otherwise provided in the
Bylaws of the Corporation, directors shall be elected by a plurality of the votes cast in
the election of directors. The Board of Directors may amend the bylaws to alter the vote
required to elect directors.
Section 4.4 Quorum. The presence in person or by proxy of the holders
of shares of stock of the Corporation entitled to cast a majority of the votes entitled to
be cast (without regard to class) shall constitute a quorum at any meeting of stockholders,
except with respect to any such matter that, under applicable statutes or regulatory
requirements, requires approval by a separate vote of one or more classes of stock, in which
case the presence in person or by proxy of the holders of shares entitled to cast a majority
of the votes entitled to be cast by each such class on such a matter shall constitute a
quorum.
Section 4.5 Authorization by Board of Stock Issuance. The Board of
Directors may authorize the issuance from time to time of shares of stock of the Corporation
of any class or series, whether now or hereafter authorized, or securities or rights
convertible into shares of its stock of any class or series, whether now or hereafter
authorized, for such consideration as the Board of Directors may deem advisable (or without
consideration in the case of a stock split or stock dividend), subject to such restrictions
or limitations, if any, as may be set forth in the charter or the Bylaws.
Section 4.6 Preemptive Rights. Except as may be provided by the Board
of Directors in setting the terms of classified or reclassified shares of stock pursuant to
Section 5.4 or as may otherwise be provided by contract, no holder of shares of stock of the
Corporation shall, as such holder, have any preemptive right to purchase or subscribe for
any additional shares of stock of the Corporation or any other security of the Corporation
which it may issue or sell.
Section 4.7 Appraisal Rights. No holder of stock of the Corporation
shall be entitled to exercise the rights of an objecting stockholder under Title 3, Subtitle
2 of the MGCL or any successor statute, except as permitted by the MGCL with respect to
appraisal rights arising in connection with the Maryland Control Share Acquisition Act,
unless the Board of Directors, upon the affirmative vote of a majority of the Board of
Directors, shall determine that such rights apply, with respect to all or any classes or
series of stock, to one or more transactions occurring after the date of such determination
in connection with which holders of such shares would otherwise be entitled to exercise such
rights.
Section 4.8 Determinations by Board. The determination as to any of
the following matters, made in good faith by or pursuant to the direction of the Board of
Directors consistent with the charter shall
be final and conclusive and shall be binding upon the Corporation and every holder of shares of its stock: the amount of the net income of the Corporation for any period and the
amount of assets at any time legally available for the payment of dividends, redemption of
its stock or the payment of other distributions on its stock; the amount of paid-in surplus,
net assets, other surplus, annual or other net profit, net assets in excess of capital,
undivided profits or excess of profits over losses on sales of assets; the amount, purpose,
time of creation, increase or decrease, alteration or cancellation of any reserves or
charges and the propriety thereof (whether or not any obligation or liability for which such
reserves or charges shall have been created shall have been paid or discharged); any
interpretation of the terms, preferences, conversion or other rights, voting powers or
rights, restrictions, limitations as to dividends or distributions, qualifications or terms
or conditions of redemption of any class or series of stock of the Corporation; the fair
value, or any sale, bid or asked price to be applied in determining the fair value, of any
asset owned or held by the Corporation or of any shares of the stock of the Corporation; the
number of shares of stock of any class of the Corporation; any matter relating to the
acquisition, holding and disposition of any assets by the Corporation; or any other matter
relating to the business and affairs of the Corporation or required or permitted by
applicable law, the charter or Bylaws or otherwise to be determined by the Board of
Directors.
Section 4.9 Removal of Directors. Subject to the rights of holders of
one or more classes or series of stock established pursuant to Section 5.4 hereof to elect
or remove one or more directors, any director, or the entire Board of Directors, may be
removed from office at any time only for cause and only by the affirmative vote of at least
two-thirds of the votes entitled to be cast generally in the election of directors. For the
purpose of this paragraph, cause shall mean, with respect to any particular director,
conviction of a felony or a final judgment of a court of competent jurisdiction holding that
such director caused demonstrable, material harm to the Corporation through bad faith or
active and deliberate dishonesty.
Section 4.10 Investment Activities. No officer or director of the
Corporation, including any officer or director who also serves as a director, officer or
employee of any entity that provides investment advisory services or as a member of the
investment committee of any such entity, shall be obligated to offer to the Corporation the
opportunity to participate in any business or investing activity or venture that is
presented to such person other than in his or her capacity as an officer or director of the
Corporation.
ARTICLE V
STOCK
STOCK
Section 5.1 Authorized Shares. The Corporation has
authority to issue 150,000,000 shares of
stock, initially consisting of 150,000,000 shares of Common Stock, $.001 par value per share (Common Stock). The aggregate par
value of all authorized shares of stock having
par value is $150,000. If shares of one class
of stock are classified or reclassified into shares of another class of stock pursuant to
this Article V, the number of authorized shares of the former class shall be
automatically decreased and the number of shares of the latter class shall be
automatically increased, in each case by the
number of shares so classified or
reclassified, so that the aggregate number of shares of stock of all classes that the
Corporation has authority to issue shall not
be more than the total number of shares of
stock set forth in the first sentence of this
paragraph. A majority of the entire Board of
Directors, without any action by the
stockholders of the Corporation, may amend the
charter from time to time to increase or
decrease the aggregate number of shares of
stock or the number of shares of stock of any
class or series that the Corporation has
authority to issue.
Section 5.2 Common Stock. Each share of Common Stock
shall entitle the holder to one vote on all
matters submitted to a vote of stockholders,
including the election of directors. The
Board of Directors may classify and reclassify
any unissued shares of Common Stock from time
to time into one or more classes or series of
stock and cause the issuance of such shares,
without obtaining stockholder approval. When
authorized by the Board of Directors and
declared by the Corporation out of assets
legally available, distributions may be paid
to the holders of common stock. Except as otherwise provided in the
charter, shares of
common stock have no conversion, exchange,
preemptive or redemption rights.
Section 5.3 Preferred Stock. The Board of Directors may
classify any unissued shares of stock and
reclassify any previously classified but
unissued shares of stock of any class or
series from time to time, in one or more
classes or series of preferred stock
(Preferred Stock).
Section 5.4 Classified or Reclassified Shares. Prior to
the issuance of classified or reclassified shares of any class or series, the Board of
Directors by resolution shall: (a) designate
that class or series to distinguish it from
all other classes and series of stock of the
Corporation; (b) specify the number of shares
to be included in the class or series; (c) set
or change, subject to the express terms of any
class or series of stock of the Corporation
outstanding at the time, the preferences,
conversion or other rights, voting powers,
restrictions, limitations as to dividends or
other distributions, qualifications and terms
and conditions of redemption for each class or
series; and (d) cause the Corporation to file
articles supplementary with the State
Department of Assessments and Taxation of
Maryland (SDAT). Any of the terms of any
class or series of stock set or changed
pursuant to clause (c) of this Section 5.4 may
be made dependent upon facts or events
ascertainable outside the charter (including
determinations by the Board of Directors or
other facts or events within the control of
the Corporation) and may vary among holders
thereof, provided that the manner in which
such facts, events or variations shall operate
upon the terms of such class or series of
stock is clearly and expressly set forth in
the articles supplementary or other charter
document.
Section 5.5 Effect of Liquidation, Dissolution or Winding
Up of the Corporation. In the event of any
liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary,
the holders of the Common Stock shall be
entitled, after payment or provision for
payment of the debts and other liabilities of
the Corporation and the amount to which the
holders of any class of stock hereafter
classified or reclassified having a preference
on distributions in the liquidation,
dissolution or winding up of the Corporation
shall be entitled, together with the holders
of any other class of stock hereafter
classified or reclassified having (if any such
class of stock is participating preferred
stock or preference stock) or not having a
preference on distributions in the
liquidation, dissolution or winding up of the
Corporation, to share ratably in the remaining
net assets of the Corporation.
Section 5.6 Inspection of Books and Records. Except as
otherwise provided in the 1940 Act, a
stockholder that is otherwise eligible under
applicable law to inspect the Corporations
books of account, stock ledger or other
specified documents of the Corporation shall
have no right to make such inspection if the
Board of Directors determines that such
stockholder has an improper purpose for
requesting such inspection.
Section 5.7 Charter and Bylaws. The rights of all
stockholders of the Corporation, and the terms
of all shares of stock in the Corporation, are
subject to the provisions of the charter and
the Bylaws. The Board of Directors of the
Corporation shall have the exclusive power to
make, alter, amend or repeal the Bylaws.
Section 5.8
Stockholders Consent in Lieu of Meeting. Any action
required or permitted to be taken at any meeting of the stockholders
may be taken without a meeting by consent, in writing or by
electronic transmission, in any manner permitted by the MGCL and
(a) as set forth in the Bylaws or (b) as set forth in the
terms of any class or series of Preferred Stock.
ARTICLE VI
AMENDMENTS; CERTAIN EXTRAORDINARY TRANSACTIONS
AMENDMENTS; CERTAIN EXTRAORDINARY TRANSACTIONS
Section 6.1 Amendments Generally. The Corporation reserves the right from time to time to make any amendment
to its charter, now or hereafter authorized by law, including any amendment altering the terms or
contract rights, as expressly set forth in the charter, of any shares of outstanding stock. All
rights and powers conferred by the charter on stockholders, directors and officers are granted
subject to this reservation.
Section 6.2 Approval of Certain Extraordinary Actions and Charter Amendments.
(a) Required Votes. Notwithstanding any other provisions in the charter or
Bylaws, the affirmative vote of the holders of shares entitled to cast at least seventy-five
percent (75%) of the votes entitled to be cast on the matter, each voting as a separate
class, shall be necessary to effect:
(i) | The liquidation or dissolution of the Corporation and any amendment to the charter of the Corporation to effect any such liquidation or dissolution; | ||
(ii) | A conversion of the Company from a closed-end company to an open-end company, as those terms are defined in Sections 5(a)(2) and 5(a)(1), respectively, of the 1940 Act; and | ||
(iii) | Any amendment to Section 4.1, Section 4.2, Section 4.7, Section 6.1 or this Section 6.2; |
Provided, however, that if the Continuing Directors (as defined herein), by a vote of
at least seventy-five percent (75%) of such Continuing Directors, in addition to approval by
the Board of Directors, approve such proposal or amendment, the affirmative vote of the
holders of a majority of the votes entitled to be cast shall be sufficient to approve such
matter.
(b) Continuing Directors. Continuing Directors means the directors
identified in Section 4.1 and the directors whose nomination for election by the
stockholders or whose election by the directors to fill vacancies is approved by a majority
of the Continuing Directors then on the Board.
ARTICLE VII
LIMITATION OF LIABILITY; INDEMNIFICATION AND ADVANCE OF EXPENSES
LIMITATION OF LIABILITY; INDEMNIFICATION AND ADVANCE OF EXPENSES
Section 7.1 Limitation of Liability. To the maximum extent that
Maryland law in effect from time to time permits limitation of liability of directors and
officers, no director or officer of the Corporation shall be liable to the Corporation or
its stockholders for money damages.
Section 7.2 Indemnification and Advance of Expenses. The Corporation
shall have the power, to the maximum extent permitted by Maryland law in effect from time to
time, to obligate itself to indemnify, and to pay or reimburse reasonable expenses in
advance of final disposition of a proceeding to, (a) any individual who is a present or
former director or officer of the Corporation or (b) any individual who, while a director or
officer of the Corporation and at the request of the Corporation, serves or has served as a
director, officer, partner or trustee of another corporation, partnership, joint venture,
trust, employee benefit plan or any other enterprise from and against any claim or liability
to which such person may become subject or which such person may incur by reason of his or
her service in any such capacity, except with respect to any matter as to which such person
shall have been finally adjudicated in any proceeding not to have acted in good faith in the
reasonable belief that his or her action was in the best interest of the Corporation. The
Corporation shall have the power, with the approval of the Board of Directors, to provide
such indemnification and advancement of expenses to a person who served a predecessor of the
Corporation in any of the capacities described in (a) or (b) above and to any employee or
agent of the Corporation or a predecessor of the Corporation.
Section 7.3 1940 Act. The provisions of this Article VII shall be
subject to the limitations of the 1940 Act applicable to the Corporation.
Section 7.4 Amendment or Repeal. Neither the amendment nor repeal of
this Article VII, nor the adoption or amendment of any other provision of the charter or
Bylaws inconsistent with this Article VII, shall apply to or affect in any respect the
applicability of the preceding sections of this Article VII with respect to any act or
failure which occurred prior to such amendment, repeal or adoption.
THIRD: The amendment to and restatement of the charter as hereinabove set forth
have been duly advised by the Board of Directors and approved by the stockholders of the
Corporation as required by law.
FOURTH: The current address of the principal office of the Corporation is as
set forth in Article III of the foregoing amendment and restatement of the charter.
FIFTH: The name and address of the current resident agent of the Corporation is
as set forth in Article III of the foregoing amendment and restatement of the charter.
SIXTH: The number of directors of the Corporation and the names of those
currently in office are set forth in Article IV of the foregoing amendment and restatement
of the charter.
SEVENTH: The total number of shares of stock which the Corporation had
authority to issue immediately prior to this amendment and restatement was 100,000,
consisting of 100,000 shares of Common Stock, $.001 par value per share. The aggregate par
value of all authorized shares of stock having a par value was $100.
EIGHTH: The total number of shares of stock which the Corporation has authority
to issue pursuant to the foregoing amendment and restatement of the charter is 150,000,000 shares of Common Stock, $.001 par value per share. The aggregate par value of all
authorized shares of stock having a par value is $150,000.
NINTH: The undersigned President acknowledges these Articles of Amendment and
Restatement to be the corporate act of the Corporation and, as to all matters or facts
required to be verified under oath, the undersigned President acknowledges that, to the best
of his knowledge, information and belief, these matters and facts are true in all material
respects and that this statement is made under the penalties of perjury.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Corporation has caused these Articles of Amendment and
Restatement to be signed in its name and on its behalf by its President and attested to by
its Secretary on this day of , 2006.
ATTEST:
|
TRIANGLE CAPITAL CORPORATION | |||
By: | ||||
Steven C. Lilly
|
Garland S. Tucker, III | |||
Secretary
|
President |
RETURN ADDRESS OF FILING PARTY:
John A. Good, Esq.
Bass, Berry & Sims PLC
100 Peabody Place, Suite 900
Memphis, Tennessee 38103
John A. Good, Esq.
Bass, Berry & Sims PLC
100 Peabody Place, Suite 900
Memphis, Tennessee 38103