

[Federal Register: May 7, 2007 (Volume 72, Number 87)]
[Notices]               
[Page 25799-25802]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07my07-90]                         

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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 27815; 812-13312]

 
Hercules Technology Growth Capital, Inc.; Notice of Application

May 2, 2007.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice of an application for an order under section 6(c) of the 
Investment Company Act of 1940 (the ``Act'') for an exemption from 
sections 23(a), 23(b) and 63 of the Act, and under sections 57(a)(4) 
and 57(i) of the Act and rule 17d-1 under the Act authorizing certain 
joint transactions otherwise prohibited by section 57(a)(4) of the Act.

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Summary of the Application: Applicant, Hercules Technology Growth 
Capital, Inc. (``HTGC'') requests an order to permit it to issue shares 
of its restricted common stock as part of the compensation packages for 
certain of its employees and directors, and certain employees of its 
wholly-owned consolidated subsidiaries.

Filing Dates: The application was filed on July 7, 2006 and amended on 
April 4, 2007 and May 1, 2007.

Hearing or Notification of Hearing: An order granting the application 
will be issued unless the Commission orders a hearing. Interested 
persons may request a hearing by writing to the Commission's Secretary 
and serving HTGC with a copy of the request, personally or by mail. 
Hearing requests should be received by the Commission by 5:30 p.m. on 
May 22, 2007, and should be accompanied by proof of service on HTGC, in 
the form of an affidavit or, for lawyers, a certificate of service. 
Hearing requests should state the nature of the writer's interest, the 
reason for the request, and the issues contested. Persons who wish to 
be notified of a hearing may request notification by writing to the 
Commission's Secretary.

ADDRESSES: Secretary, U.S. Securities and Exchange Commission, 100 F 
Street, NE., Washington, DC 20549-1090. HTGC, c/o Manuel A. Henriquez, 
Chairman of the Board and Chief Executive Officer, HTGC, 400 Hamilton 
Avenue, Suite 310, Palo Alto, California 94301.

FOR FURTHER INFORMATION CONTACT: Laura J. Riegel, Senior Counsel, at 
(202) 551-6873, or Nadya B. Roytblat, Assistant Director, at (202) 551-
6821, (Division of Investment Management, Office of Investment Company 
Regulation).

SUPPLEMENTARY INFORMATION: The following is a summary of the 
application. The complete application may be obtained for a fee at the 
Commission's Public Reference Desk, 100 F Street, NE., Washington, DC 
20549-0102 (tel. 202-551-5850).

Applicant's Representations

    1. HTGC, a Maryland corporation, is an internally managed, non-
diversified, closed-end investment company that has elected to be 
regulated as a business development company (``BDC'') under the Act.\1\ 
HTGC is a specialty finance company that provides debt and equity 
growth capital to technology-related and life-science companies at all 
stages of development. Shares of HTGC's common stock are traded on The 
NASDAQ Global Market under the symbol ``HTGC.'' As of December 31, 
2006, there were 21,927,034 shares of HTGC's common stock outstanding. 
As of that date, HTGC had 26 employees, including the employees of its 
wholly-owned consolidated subsidiaries.
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    \1\ HTGC was organized on December 18, 2003. On February 22, 
2005, HTGC filed with the Commission its registration statement on 
Form N-2 under the Securities Act of 1933, as amended, in connection 
with its initial public offering of common stock (the ``IPO'') and 
elected to be regulated as a BDC on the same date. Section 2(a)(48) 
defines a BDC to be any closed-end investment company that operates 
for the purpose of making investments in securities described in 
sections 55(a)(1) through 55(a)(3) of the Act and makes available 
significant managerial assistance with respect to the issuers of 
such securities. On June 11, 2005, HTGC completed its IPO.
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    2. HTGC currently has a four member board of directors (``Board'') 
of whom one is considered to be an ``interested person'' of HTGC within 
the meaning of section 2(a)(19) of the Act and three are not-interested 
persons (``Non-interested Directors''). HTGC has three directors who 
are not officers of employees of HTGC (the ``Non-employee Directors''). 
Currently, HTGC's Non-employee Directors are all Non-interested 
Directors, but it is possible that HTGC may have Non-employee Directors 
in the future who are interested persons of HTGC.
    3. In May, 2006, HTGC adopted the 2006 Non-employee Director Plan 
(the ``2006 Plan'') for the purpose of advancing the interests of HTGC 
by providing for the grant of awards under the 2006 Plan to eligible 
directors of HTGC who are Non-employee Directors.\2\ HTGC proposes to 
amend

[[Page 25800]]

and restate the 2006 Plan to permit the issuance of restricted stock 
that, at the time of issuance, is subject to certain forfeiture 
restrictions, and thus is restricted as to its transferability until 
such forfeiture restrictions have lapsed (the ``Restricted Stock'') to 
its Non-employee Directors (the ``Amended and Restated 2006 Plan'').
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    \2\ The Commission has issued an order under Section 61(a)(3)(B) 
of the Act approving the 2006 Plan and the grant of options to Non-
employee Directors under the 2006 Plan. Hercules Technology Growth 
Capital, Inc., Investment Company Act Release Nos. 27668 (Jan. 19, 
2007) (notice) and 27669 (Feb. 15, 2007) (order).
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    4. In May, 2006, HTGC adopted the Amended and Restated 2004 Equity 
Incentive Plan (the ``2004 Plan'') for the purpose of attracting and 
retaining the services of executive officers, employee directors, and 
other key employees. HTGC proposes to amend and restate the 2004 Plan 
to permit the issuance of shares of Restricted Stock to its employees 
and the employees of its wholly-owned consolidated subsidiaries (the 
``Amended and Restated 2004 Plan''; each of the Amended and Restated 
2004 Plan and the Amended and Restated 2006 Plan is an ``Amended and 
Restated Plan'' and together, the ``Amended and Restated Plans'').
    5. HTGC requests an order to permit it to issue shares of 
Restricted Stock to its Non-employee Directors and employees, and the 
employees of its wholly-owned consolidated subsidiaries (collectively, 
the ``Restricted Stock Participants'' and each, a ``Restricted Stock 
Participant'').\3\ HTGC believes that the Amended and Restated Plans 
would enable HTGC to offer the Restricted Stock Participants 
compensation packages that are competitive with those offered by its 
competitors and other investment management businesses, which would 
enhance the ability of HTGC to hire and retain key senior management 
and other key personnel.
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    \3\ HTGC requests that the order also permit the issuance of 
Restricted Stock to its future Non-employee Directors under the 
Amended and Restated 2006 Plan and to its future employees and the 
future employees of its wholly-owned consolidated subsidiaries under 
the Amended and Restated 2004 Plan.
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    6. The Amended and Restated Plans will authorize the issuance of 
shares of Restricted Stock subject to certain forfeiture restrictions. 
These restrictions may relate to continued employment or service on the 
Board, as the case may be (lapsing either on an annual or other 
periodic basis or on a ``cliff'' basis, i.e., at the end of a stated 
period of time), the performance of HTGC, or other restrictions deemed 
by the Board from time to time to be appropriate and in the best 
interests of HTGC and its stockholders. The Restricted Stock will not 
be transferable except for disposition by gift, will or intestacy. 
Except to the extent restricted under the terms of an Amended and 
Restated Plan, a Restricted Stock Participant granted Restricted Stock 
will have all the rights of any other stockholder, including the right 
to vote the Restricted Stock and the right to receive dividends. During 
the restriction period (i.e., prior to the lapse of applicable 
forfeiture restrictions), the Restricted Stock generally may not be 
sold, transferred, pledged, hypothecated, margined, or otherwise 
encumbered by the Restricted Stock Participant. Except as the Board 
otherwise determines, upon termination of a Restricted Stock 
Participant's employment or service on the Board during the applicable 
restriction period, Restricted Stock for which forfeiture restrictions 
have not lapsed at the time of such termination shall be forfeited.
    7. The maximum amount of shares that may be issued under the 
Amended and Restated Plan will be 10% of the outstanding shares of 
common stock of HTGC on the effective date of the Amended and Restated 
Plans plus 10% of the outstanding number of shares of HTGC's common 
stock issued or delivered by HTGC (other than pursuant to compensation 
plans) during the term of the Amended and Restated Plans.\4\ In 
addition, no Restricted Stock Participant may be granted more than 25% 
of the shares of common stock reserved for issuance under the Amended 
and Restated Plans. The Board would award shares of Restricted Stock to 
the Restricted Stock Participants from time to time as part of the 
Restricted Stock Participant's compensation based on a Restricted Stock 
Participant's actual or expected performance and value to HTGC. The 
Board would have the responsibility to ensure that the Amended and 
Restated Plans are operated in a manner that best serves the interests 
of HTGC and its stockholders.
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    \4\ For purposes of calculating compliance with this limit, HTGC 
will count as Restricted Stock all shares of HTGC's common stock 
that are issued pursuant to the Amended and Restated Plans less any 
shares that are forfeited back to HTGC and cancelled as a result of 
forfeiture restrictions not lapsing.
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    8. Subject to HTGC's stockholders' approval of the Amended and 
Restated 2006 Plan and issuance of the order, the Amended and Restated 
2006 Plan will provide for the grant of 3,333 shares of Restricted 
Stock to Non-employee Directors upon their initial election to the 
Board, for which forfeiture restrictions would lapse as to one-half of 
such shares on the anniversary of the grant for each of the first two 
years of service, and an additional grant of 5,000 shares of Restricted 
Stock at the time of such Non-employee Directors' re-election to the 
Board, for which forfeiture restrictions would lapse as to one-third of 
such shares on the anniversary of such grant over three years. Subject 
to HTGC's stockholders' approval of the Amended and Restated 2006 Plan, 
Non-employee Directors who hold office on the date of the order will 
receive a grant at the 2007 annual meeting of HTGC's stockholders equal 
to the pro rata portion of such grant of 5,000 shares of Restricted 
Stock based on the length of the Non-employee Directors' remaining 
current term, for which forfeiture restrictions would lapse as to one-
third of such shares on the anniversary of the grant over three years. 
The grants of Restricted Stock to Non-employee Directors under the 
Amended and Restated 2006 Plan will be automatic and will not be 
changed without Commission approval.
    9. Each issuance of Restricted Stock under the Amended and Restated 
2004 Plan will be approved by the required majority, as defined in 
Section 57(o) of the Act,\5\ of HTGC's directors on the basis that the 
issuance is in the best interests of HTGC and its stockholders. The 
date on which the required majority approves an issuance of Restricted 
Stock will be deemed the date on which the subject Restricted Stock is 
granted. The Amended and Restated Plans will be submitted for approval 
to HTGC's stockholders, and will become effective upon such approval, 
subject to the issuance of the order.
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    \5\ The term ``required majority,'' when used with respect to 
the approval of a proposed transaction, plan, or arrangement, means 
both a majority of a BDC's directors or general partners who have no 
financial interest in such transaction, plan, or arrangement and a 
majority of such directors or general partners who are not 
interested persons of such company.
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Applicant's Legal Analysis

Sections 23(a) and (b), Section 63

    1. Under section 63 of the Act, the provisions of section 23(a) of 
the Act generally prohibiting a registered closed-end investment 
company from issuing securities for services or for property other than 
cash or securities are made applicable to BDCs. This provision would 
prohibit the issuance of Restricted Stock as a part of the Amended and 
Restated Plans.
    2. Section 23(b) generally prohibits a closed-end management 
investment company from selling its common stock at a price below its 
current net asset value (``NAV''). Section 63(2) makes section 23(b) 
applicable to BDCs unless certain conditions are met. Because 
Restricted Stock that would be granted under the Amended and Restated 
Plans would not meet the terms of section 63(2), sections 23(b) and 63 
prohibit the issuance of the Restricted Stock.

[[Page 25801]]

    3. Section 6(c) provides, in part, that the Commission may, by 
order upon application, conditionally or unconditionally exempt any 
person, security, or transaction, or any class or classes thereof, from 
any provision of the Act, if and to the extent that the exemption is 
necessary or appropriate in the public interest and consistent with the 
protection of investors and the purposes fairly intended by the policy 
and provisions of the Act.
    4. HTGC requests an order pursuant to section 6(c) of the Act 
granting an exemption from the provisions of sections 23(a) and (b) and 
section 63 of the Act. HTGC states that the concerns underlying those 
sections include: (i) Preferential treatment of investment company 
insiders and the use of options and other rights by insiders to obtain 
control of the investment company; (ii) complication of the investment 
company's structure that makes it difficult to determine the value of 
the company's shares; and (iii) dilution of stockholders' equity in the 
investment company. HTGC states that the Amended and Restated Plans do 
not raise the concern about preferential treatment of HTGC's insiders 
because the Amended and Restated Plans are bona fide compensation plans 
of the type that are common among corporations generally. In addition, 
section 61(a)(3) of the Act permits a BDC to issue to its officers, 
directors and employees, pursuant to an executive compensation plan, 
warrants, options and rights to purchase the BDC's voting securities, 
subject to certain requirements. HTGC states that, for reasons that are 
unclear, section 61 and its legislative history do not address the 
issuance by a BDC of restricted stock as incentive compensation. HTGC 
states, however, that the issuance of Restricted Stock is substantially 
similar, for purposes of investor protection under the Act, to the 
issuance of warrants, options, and rights as contemplated by section 
61. HTGC also asserts that the Amended and Restated Plans would not 
become a means for insiders to obtain control of HTGC because the 
maximum number of HTGC's voting securities that are represented by 
shares of Restricted Stock and that may be issued to an individual 
Restricted Stock Participant will be limited as set forth in the 
conditions to the order.
    5. HTGC further states that the Amended and Restated Plans will not 
unduly complicate HTGC's structure because equity-based employee 
compensation arrangements are widely used among corporations and 
commonly known to investors. HTGC notes that the Amended and Restated 
Plans will be submitted to HTGC's stockholders for their approval. HTGC 
represents that a concise, ``plain English'' description of the Amended 
and Restated Plans, including their potential dilutive effect, will be 
provided in the proxy materials that will be submitted to HTGC's 
stockholders. HTGC also states that it will comply with the proxy 
disclosure requirements in Item 10 of Schedule 14A under the Securities 
Exchange Act of 1934. HTGC further notes that the Amended and Restated 
Plans will be disclosed to investors in accordance with the 
requirements of the Form N-2 registration statements for closed-end 
investment companies, and pursuant to the standards and guidelines 
adopted by the Financial Accounting Standards Board for operating 
companies. In addition, HTGC is subject to the same executive 
disclosure requirements that the Commission has adopted for operating 
companies.\6\ HTGC thus concludes that the Amended and Restated Plans 
will be adequately disclosed to investors and appropriately reflected 
in the market value of HTGC's shares.
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    \6\ See Executive Compensation and Related Person Disclosure, 
Release No. 33-8732A (Aug. 29, 2006), as amended by, Executive 
Compensation Disclosure, Release No. 33-8765 (Dec. 22, 2006) 
(adopted as interim final rules).
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    6. HTGC acknowledges that, while awards granted under the Amended 
and Restated Plans would have a dilutive effect on the stockholders' 
equity in HTGC, that effect would be outweighed by the anticipated 
benefits of the Amended and Restated Plans to HTGC and its 
stockholders. HTGC asserts that it needs the flexibility to provide the 
requested equity-based employee compensation in order to be able to 
compete effectively with other financial services firms for talented 
professionals. These professionals, HTGC suggests, in turn are likely 
to increase HTGC's performance and stockholder value. HTGC also asserts 
that equity-based compensation would more closely align the interests 
of the Non-employee Directors and HTGC's employees with those of HTGC's 
stockholders. HTGC believes that the granting of shares of Restricted 
Stock to Non-employee Directors under the Amended and Restated 2006 
Plan is fair and reasonable because of the skills and experience that 
such directors provide to HTGC. Such skills and experience are 
necessary for the management and oversight of HTGC's investments and 
operations. HTGC believes that granting the shares of Restricted Stock 
will provide significant incentives for Non-employee Directors to 
remain on the Board and to devote their best efforts to the success of 
HTGC's business in the future, as they have done in the past. The 
issuance of shares of Restricted Stock will also provide a means for 
HTGC's Non-employee Directors to increase their ownership interest in 
HTGC, thereby helping to ensure a close identification of their 
interests with those of HTGC and its stockholders.

Section 57(a)(4), Rule 17d-1

    7. Section 57(a) proscribes certain transactions between a BDC and 
persons related to the BDC in the manner described in section 57(b) 
(``57(b) persons''), absent a Commission order. Section 57(a)(4) 
generally prohibits a 57(b) person from effecting a transaction in 
which the BDC is a joint participant absent such an order. Rule 17d-1, 
made applicable to BDCs by section 57(i), proscribes participation in a 
``joint enterprise or other joint arrangement or profit-sharing plan,'' 
which includes a stock option or purchase plan. Employees and directors 
of a BDC are 57(b) persons. Thus, the issuance of shares of Restricted 
Stock could be deemed to involve a joint transaction involving a BDC 
and a 57(b) person in contravention of section 57(a)(4). Rule 17d-1(b) 
provides that, in considering relief pursuant to the rule, the 
Commission will consider (i) whether the participation of the company 
in a joint enterprise is consistent with the Act's policies and 
purposes and (ii) the extent to which that participation is on a basis 
different from or less advantageous than that of other participants.
    8. HTGC requests an order pursuant to section 57(a)(4) and rule 
17d-1 to permit the Amended and Restated Plans. HTGC states that the 
Amended and Restated Plans, although benefiting the Restricted Stock 
Participants and HTGC in different ways, are in the interests of HTGC's 
stockholders because the Amended and Restated Plans will help HTGC 
attract and retain talented professionals, help align the interests of 
HTGC's employees with those of its stockholders, and in turn help 
produce a better return to HTGC's stockholders.

Applicant's Conditions

    HTGC agrees that the order granting the requested relief will be 
subject to the following conditions:
    1. The Amended and Restated Plans will be authorized by HTGC's 
stockholders.
    2. Each issuance of Restricted Stock to an employee will be 
approved by the required majority, as defined in Section

[[Page 25802]]

57(o) of the Act, of HTGC's directors on the basis that such issuance 
is in the best interests of HTGC and its stockholders.
    3. The amount of voting securities that would result from the 
exercise of all of HTGC's outstanding warrants, options, and rights, 
together with any Restricted Stock issued pursuant to the Amended and 
Restated Plans, at the time of issuance shall not exceed 25% of the 
outstanding voting securities of HTGC, except that if the amount of 
voting securities that would result from the exercise of all of HTGC's 
outstanding warrants, options, and rights issued to HTGC's directors, 
officers, and employees, together with any Restricted Stock issued 
pursuant to the Amended and Restated Plans, would exceed 15% of the 
outstanding voting securities of HTGC, then the total amount of voting 
securities that would result from the exercise of all outstanding 
warrants, options, and rights, together with any Restricted Stock 
issued pursuant to the Amended and Restated Plans, at the time of 
issuance shall not exceed 20% of the outstanding voting securities of 
HTGC.
    4. The maximum amount of shares of Restricted Stock that may be 
issued under the Amended and Restated Plans will be 10% of the 
outstanding shares of common stock of HTGC on the effective date of the 
Amended and Restated Plans plus 10% of the number of shares of HTGC's 
common stock issued or delivered by HTGC (other than pursuant to 
compensation plans) during the term of the Amended and Restated Plans.
    5. The Board will review the Amended and Restated Plans at least 
annually. In addition, the Board will review periodically the potential 
impact that the issuance of Restricted Stock under the Amended and 
Restated Plans could have on HTGC's earnings and NAV per share, such 
review to take place prior to any decisions to grant Restricted Stock 
under the Amended and Restated Plans, but in no event less frequently 
than annually. Adequate procedures and records will be maintained to 
permit such review. The Board will be authorized to take appropriate 
steps to ensure that the grant of Restricted Stock under the Amended 
and Restated Plans would not have an effect contrary to the interests 
of HTGC's stockholders. This authority will include the authority to 
prevent or limit the granting of additional Restricted Stock under the 
Amended and Restated Plans. All records maintained pursuant to this 
condition will be subject to examination by the Commission and its 
staff.

    For the Commission, by the Division of Investment Management, 
pursuant to delegated authority.
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E7-8683 Filed 5-4-07; 8:45 am]

BILLING CODE 8010-01-P
