Item 1.02. Termination of a Material Definitive Agreement.
On March 9, 2023, in connection with and immediately prior to the consummation
of the transactions contemplated by the Merger Agreement (as defined below),
First Eagle Alternative Capital BDC, Inc., a Delaware corporation ("FCRD" or the
"Company"), terminated (1) the Investment Management Agreement, dated as of
May 28, 2020, by and between FCRD and First Eagle Alternative Credit, LLC
("FEAC") and (2) the Administration Agreement, dated as of January 31, 2020, by
and between FCRD and FEAC.
Item 2.01. Completion of Acquisition or Disposition of Assets.
On March 9, 2023, Crescent Capital BDC, Inc., a Maryland corporation ("CCAP")
completed its previously announced acquisition of FCRD, pursuant to the
Agreement and Plan of Merger (the "Merger Agreement"), dated as of October 3,
2022, by and among CCAP, FCRD, Echelon Acquisition Sub, Inc., a Delaware
corporation and a direct wholly-owned subsidiary of CCAP ("Acquisition Sub"),
Echelon Acquisition Sub LLC, a Delaware limited liability company and a direct
wholly-owned subsidiary of CCAP ("Acquisition Sub 2"), and Crescent Cap
Advisors, LLC, a Delaware limited liability company and the external investment
adviser to CCAP ("CCAP Advisor"). Pursuant to the Merger Agreement, Acquisition
Sub was merged with and into FCRD (the "First Merger"), with FCRD continuing as
the surviving corporation and a direct wholly-owned subsidiary of CCAP.
Immediately following the First Merger, FCRD was merged with and into
Acquisition Sub 2 (the "Second Merger" and, together with the First Merger, the
"Mergers"), with Acquisition Sub 2 continuing as the surviving entity (the
"Surviving Company"). As a result of, and as of the effective time of, the
Second Merger, FCRD's separate corporate existence ceased.
In accordance with the terms of the Merger Agreement, at the effective time of
the First Merger (the "Effective Time"), holders of shares of FCRD's common
stock, par value $0.001 per share (the "FCRD Common Stock"), issued and
outstanding immediately prior to the Effective Time (excluding shares held by
subsidiaries of FCRD or held, directly or indirectly, by CCAP or Acquisition Sub
("Cancelled Shares")) had their shares of FCRD Common Stock converted to the
right to receive, in the aggregate, approximately (1) $8,649,179 in cash payable
by CCAP (the "Parent Cash Consideration"), (2) 6,174,383 validly issued, fully
paid and non-assessable shares of CCAP's common stock, par value $0.001 per
share (the "Aggregate Share Consideration" and, together with the Parent Cash
Consideration, the "CCAP Aggregate Merger Consideration") and (3) $35 million in
cash payable by CCAP Advisor (the "CCAP Advisor Cash Consideration"), subject to
adjustments for cash payable in lieu of fractional shares.
With respect to the CCAP Aggregate Merger Consideration, record holders of
shares of FCRD Common Stock were entitled, with respect to all or any portion of
the shares of FCRD Common Stock held as of the Effective Time, to make an
election to receive payment for their shares of FCRD Common Stock in cash (an
"Election"), subject to the conditions of and certain adjustment mechanisms set
forth in the Merger Agreement.
Any record holder of shares of FCRD Common Stock who did not validly make an
Election was deemed to have elected to receive shares of CCAP's common stock
with respect to the CCAP Aggregate Merger Consideration as payment for their
shares of FCRD Common Stock. Each share of FCRD Common Stock (other than a
Cancelled Share) with respect to which an Election was effectively made, subject
to the conditions and limitations set forth in the Merger Agreement, and not
properly revoked or lost was treated as an "Electing Share" and each share of
FCRD Common Stock (other than a Cancelled Share) with respect to which an
Election was not properly made or such Election was properly revoked was treated
as a "Non-Electing Share."
Applying the adjustment mechanisms in the Merger Agreement among all
stockholders who hold Electing Shares, pro rata based on the aggregate number of
. . .
Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule;
Transfer of Listing.
In connection with the closing of the transactions contemplated by the Merger
Agreement, on March 9, 2023, the Company notified the Nasdaq Stock Market LLC
("Nasdaq") of the consummation of the Mergers and requested that Nasdaq file
with the U.S. Securities and Exchange Commission a Form 25 Notification of
Removal of Listing and/or Registration to delist the shares of the FCRD Common
Stock under Section 12(b) of the Securities Exchange Act of 1934, as amended.
Trading of shares of the FCRD Common Stock on Nasdaq was suspended after the
closing of trading on March 9, 2023.
In connection with the closing of the transactions contemplated by the Merger
Agreement, on March 9, 2023, the Company notified the New York Stock Exchange
("NYSE") of the consummation of the Mergers and requested that NYSE file with
the U.S. Securities and Exchange Commission a Form 25 Notification of Removal of
Listing and/or Registration to delist FCRD's 5.00% Notes due 2026 (the "Notes")
under Section 12(b) of the Securities Exchange Act of 1934, as amended. Trading
of the Notes on NYSE was suspended after the closing of trading on March 9,
2023.
On March 9, 2023, CCAP and the Surviving Company entered into an Agreement and
Plan of Merger (as amended, supplemented or otherwise modified to date, the
"Third Merger Agreement"), pursuant to which, on March 9, 2023, immediately
following the Second Merger, the Surviving Company merged with and into CCAP
(the "Third Merger"), with CCAP continuing as the surviving entity.
On March 9, 2023, CCAP entered into a fifth supplemental indenture (the "Fifth
Supplemental Indenture") by and between CCAP and U.S. Bank National Association,
as trustee (the "Trustee"), effective as of the closing of the Third Merger. The
Fifth Supplemental Indenture relates to CCAP's assumption of $111.6 million in
aggregate principal amount of the Notes.
Pursuant to the Fifth Supplemental Indenture, CCAP expressly assumed all the
obligations of FCRD under the Notes and the indenture, dated as of November 18,
2014 (the "Base Indenture"), by and between FCRD and the Trustee, as amended and
supplemented by the fourth supplemental indenture, dated as of May 25, 2021 (the
"Fourth Supplemental Indenture") (the Base Indenture, as amended and
supplemented by the Fourth Supplemental Indenture, the "Original Indenture"),
including the due and punctual payment of the principal of (and premium, if any)
and interest, if any, on all the Notes and the performance of every covenant of
the Original Indenture on the part of the FCRD to be performed or observed.
The information contained in Item 2.01 is incorporated herein by reference.
Item 5.01. Changes in Control of Registrant.
As a result of the First Merger, a change in control of the Company occurred.
The information contained in Item 2.01 is incorporated herein by reference.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
Pursuant to the Merger Agreement, as of the Effective Time, (i) each of the
officers and directors of the Company ceased to be officers and directors of the
Company and (ii) the officers and directors of Acquisition Sub, each as of
immediately prior to the Effective Time, became the officers and directors of
the Company.
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Item 5.03. Amendments to Articles of Incorporation or Bylaws; Changes in Fiscal
Year.
Pursuant to the terms of the Merger Agreement, at the Effective Time, the
certificate of incorporation of the Company was amended and restated and the
bylaws of Acquisition Sub, as in effect immediately prior to the Effective Time,
became the bylaws of the Company (as the surviving corporation in the First
Merger). The certificate of incorporation and bylaws of the Company (as the
surviving corporation in the First Merger), each as in effect immediately
following the Effective Time, are filed herewith as Exhibits 3.1 and 3.2,
respectively, and are incorporated herein by reference.
Item 5.07. Submission of Matters to a Vote of Security Holders.
On March 7, 2023, the Company held its special meeting of stockholders (the
"Special Meeting"). At the Special Meeting, the Company's stockholders approved
two proposals. The issued and outstanding shares of stock of the Company
entitled to vote at the Special Meeting consisted of 29,922,028 shares of common
stock outstanding as of the record date, January 19, 2023. The final voting
results from the Special Meeting were as follows:
Proposal 1. To adopt the Merger Agreement and approve the transactions
contemplated thereby, including the Mergers (such proposal collectively, the
"Merger Proposal").
Votes For Votes Against Abstentions
17,861,104 211,704 118,148
Proposal 2. To approve the adjournment of the Special Meeting, if necessary or
appropriate, to solicit additional proxies, in the event that there are
insufficient votes at the time of the Special Meeting to approve the Merger
Proposal. A vote was not taken on this proposal as there were sufficient votes
present to conduct the business of the Special Meeting. The vote, prior to the
Special Meeting, to approve such proposal was as follows:
Votes For Votes Against Abstentions
17,839,016 219,068 132,872
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
Filed with this report:
2.1* Agreement and Plan of Merger, dated as of October 3, 2022, by and among
CCAP, Acquisition Sub, Acquisition Sub 2, FCRD and CCAP Advisor
(incorporated by reference to Exhibit 2.1 of FCRD's Current Report on Form
8-K filed on October 4, 2022 (File No. 814-00789)).
3.1 Certificate of Incorporation of First Eagle Alternative Capital BDC, Inc.
3.2 Bylaws of First Eagle Alternative Capital BDC, Inc.
104 Cover Page Interactive Data File (embedded within the Inline XBRL
document).
* Exhibits and schedules to this Exhibit have been omitted in accordance with
Item 601(b)(2) of Regulation S-K. The Registrant agrees to furnish
supplementally a copy of all omitted exhibits and schedules to the SEC upon its
request.
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