[Federal Register Volume 87, Number 78 (Friday, April 22, 2022)]
[Notices]
[Pages 24210-24214]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-08662]


-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 34560; 812-15213]


 Capital Southwest Corporation

April 19, 2022.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice.

-----------------------------------------------------------------------

    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 pursuant sections 57(a)(4) 
and 57(i) of the Act and rule 17d-1 under the Act permitting certain 
joint transactions otherwise prohibited by section 57(a)(4) of the Act, 
and pursuant section 23(c)(3) of the Act for an exemption from section 
23(c) of the Act.

Summary of the Application: Capital Southwest Corporation (``Company'' 
or ``Applicant''), requests an order (``Order'') to (a) permit it to 
issue restricted shares of its common stock (``Restricted Stock'') 
under the terms of its 2021 Employee Restricted Stock Award Plan (the 
``2021 Employee Plan'') and its 2021 Non-Employee Director Restricted 
Stock Award Plan (the ``2021 Non-Employee Director Plan'') as part of 
the compensation package for Employee Participants (as defined below) 
and Non-Employee Director Participants (as defined below), respectively 
and (b) to allow the Company to withhold shares of the Company's common 
stock or purchase shares of the Company's common stock from the 
Employee Participants and Non-Employee Director Participants to satisfy 
tax withholding obligations relating to the vesting of Restricted Stock 
pursuant to the 2021 Employee Plan and the 2021 Non-Employee Director 
Plan, respectively.

Applicant: Capital Southwest Corporation.

Filing Dates: The application was filed on March 29, 2021 and amended 
on January 21, 2022.

Hearing or Notification of Hearing: An order granting the requested 
relief will be issued unless the Commission orders a hearing. 
Interested persons may request a hearing by emailing the Commission's 
Secretary at [email protected] and serving applicants with a 
copy of the request by email. Hearing requests should be received by 
the Commission by 5:30 p.m. on May 15, 2022, and should be accompanied 
by proof of service on the applicants, in the form of an affidavit, or, 
for lawyers, a certificate of service. Pursuant to rule 0-5 under the 
Act, hearing requests should state the nature of the writer's interest, 
any facts bearing upon the desirability of a hearing on the matter, the 
reason for the request, and the issues contested. Persons who wish to 
be notified of a hearing may request notification by emailing the 
Commission's Secretary at [email protected].

ADDRESSES: The Commission: [email protected]. Applicant: 
[email protected]; [email protected]; 
sutherland.com">[email protected]sutherland.com.

FOR FURTHER INFORMATION CONTACT: Asen Parachkevov, Senior Counsel or 
Lisa Reid Ragen, Branch Chief, at (202) 551-6825 (Division of 
Investment Management, Chief Counsel's Office).

SUPPLEMENTARY INFORMATION: The following is a summary of the 
application. The complete application may be obtained via the 
Commission's website by searching for the file number, or for an 
applicant using the Company name box, at http://www.sec.gov/search/search.htm or by calling (202) 551-8090.

Applicant's Representations

    1. The Company, a Texas 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\ 
The Company's investment objective is to produce attractive risk-
adjusted returns by generating current income from its debt investments 
and capital appreciation from its equity and equity related 
investments.
---------------------------------------------------------------------------

    \1\ Capital Southwest was incorporated in Texas in 1961. On 
March 30, 1988 Capital Southwest elected to be regulated as a BDC. 
Section 2(a)(48) of the Act 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.
---------------------------------------------------------------------------

    2. Shares of the Company's common stock are traded on the NASDAQ 
Global Select Market under the symbol ``CSWC.'' As of March September 
30, 2021, there were 25,680,551 and 23,341,039 shares of the Company's

[[Page 24211]]

common stock issued and outstanding, respectively. As of September 30, 
2021, the Company had an aggregate of 24 employees.
    3. The Company currently has a seven-member board of directors (the 
``Board'') of whom one is an ``interested person'' of the Company 
within the meaning of section 2(a)(19) of the Act and six are not 
interested persons (the ``Non-interested Directors''). The Company has 
six directors who are neither officers nor employees of the Company.
    4. The Company believes that its successful performance depends on 
its ability to offer fair compensation packages to its professionals 
that are competitive with those offered by other investment management 
businesses. The Company believes the highly specialized nature of its 
business, the competitiveness of its market and the small size of its 
employee base relative to its assets and revenue make such retentions 
even more critical for the Company, and that the ability to offer 
equity-based compensation to its professionals is vital to the 
Company's future growth and success.
    5. The Commission previously issued a certain exemptive order (the 
``Prior Order''), which, among other things, (i) permits the Company to 
issue restricted shares of its common stock under the terms of the 
Company's 2021 Employee Plan as part of the compensation packages for 
certain of its employees and certain employees of its wholly-owned 
subsidiaries (``Employee Participants''), and (ii) allows the Company 
to withhold shares of the Company's common stock or purchase shares of 
the Company's common stock from the Employee Participants to satisfy 
tax withholding obligations relating to the vesting of Restricted Stock 
(as defined in the 2021 Employee Plan) pursuant to the 2021 Employee 
Plan.\2\
---------------------------------------------------------------------------

    \2\ ``Prior Order'' refers to the exemptive order issued by the 
Commission on July 19, 2021 (see Capital Southwest Corporation, 
Investment Company Act Release Nos. 34309 (notice) (June 22, 2021) 
and 34335 (order) (July 19, 2021)).
---------------------------------------------------------------------------

    6. The Company states that the relief it is seeking under the 
requested Order is the same type of relief previously provided by the 
Commission under the Prior Order, but the requested Order will cover 
both Employee Participants and non-employee directors of the Board 
(``Non-Employee Director Participants'', and together with Employee 
Participants, the ``Participants''). The Order would supersede the 
Prior Order, with the result that the Company will no longer rely on 
the Prior Order if the Order is granted.
    7. The 2021 Employee Plan will authorize the issuance of shares of 
Restricted Stock by the Company to certain of its employees. The 
Company states that the Restricted Stock will be subject to 
restrictions on transferability and other restrictions as required by 
the compensation committee of the Board, which will be comprised solely 
of ``non-employee directors'' within the meaning of rule 16b-3 under 
the Securities Exchange Act of 1934 (the ``Exchange Act''), each of 
whom also is not an ``interested person'' of the Company within the 
meaning of section 2(a)(19) of the Act (``Compensation Committee). The 
Company states that except to the extent restricted under the terms of 
the 2021 Employee Plan, an Employee Participant who is granted 
Restricted Stock will have all the rights of any other shareholder, 
including the right to vote the Restricted Stock and the right to 
receive dividends. The Company states that during the restriction 
period (i.e., prior to the lapse of the applicable forfeiture 
restrictions), the Restricted Stock generally may not be sold, 
transferred, pledged, hypothecated, margined or otherwise encumbered by 
the Employee Participant. The Company states that except as the Board 
otherwise determines, upon termination of a Participant's employment 
during the applicable restriction period, Restricted Stock for which 
forfeiture restrictions have not lapsed at the time of such termination 
shall be forfeited.
    8. The 2021 Non-Employee Director Plan will authorize the issuance 
of shares of Restricted Stock by the Company to Non-Employee Director 
Participants. The Company states that the Restricted Stock will be 
subject to restrictions on transferability and other restrictions as 
required by the Compensation Committee of the Board. The Company states 
that except to the extent restricted under the terms of the 2021 Non-
Employee Director Plan, a Non-Employee Director Participant who is 
granted Restricted Stock will have all the rights of any other 
shareholder, including the right to vote the Restricted Stock and the 
right to receive dividends. The Company states that during the 
restriction period (i.e., prior to the lapse of the applicable 
forfeiture restrictions), the Restricted Stock generally may not be 
sold, transferred, pledged, hypothecated, margined or otherwise 
encumbered by the Non-Employee Director Participant. The Company states 
that unless otherwise specified in the award agreement or the Board 
determines in any individual case, Restricted Stock awards to Non-
Employee Director Participants vest at the end of each one-year term of 
service on the Board.
    9. The Company states that the value of Restricted Stock generally 
will be taxable to the recipient as ordinary income in the years in 
which the restrictions on the shares lapse and that such value will be 
the fair market value of the shares on the dates the restrictions 
lapse. The Company states that each of the 2021 Employee Plan and the 
2021 Non-Employee Director Plan authorizes the Company to withhold 
common stock (in whole or in part) from any award of restricted shares 
granted at the time the Restricted Stock is taxed in satisfaction of a 
Participant's tax obligations.
    10. The Company states that maximum amount of Restricted Stock that 
may be issued and outstanding will not at the time of issuance of any 
Restricted Stock exceed 10% of the Company's outstanding voting 
securities.\3\ In addition, the Company states that no Employee 
Participant may be granted more than 25% of the shares reserved for 
issuance under the 2021 Employee Plan and no Non-Employee Director 
Participant may be granted more than 25% of the shares reserved for 
issuance under the 2021 Non-Employee Director Plan.
---------------------------------------------------------------------------

    \3\ For purposes of calculating compliance with this limit, 
Capital Southwest counts as Restricted Stock all shares of its 
common stock that are issued pursuant to the 2021 Employee Plan and 
the 2021 Non-Employee Director Plan, less any shares that are 
forfeited back to Capital Southwest and cancelled as a result of 
forfeiture restrictions not lapsing.
---------------------------------------------------------------------------

    11. The Company states that each issuance of Restricted Stock under 
the 2021 Employee Plan or the 2021 Non-Employee Director Plan will be 
approved by the required majority, as defined in section 57(o) of the 
Act,\4\ of the Company's directors on the basis that the issuance is in 
the best interests of the Company and its shareholders. The Company 
states that 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.
---------------------------------------------------------------------------

    \4\ Section 57(o) of the Act provides that 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.
---------------------------------------------------------------------------

    12. The Company states that the 2021 Employee Plan was approved by 
the Board as a whole, including the required majority as defined in 
section 57(o) of the Act, on March 26, 2021 and was approved by the 
Company's shareholders on July 28, 2021. In

[[Page 24212]]

addition, the Company states that the 2021 Non-Employee Director Plan 
was approved by the Board as a whole, including the required majority 
as defined in section 57(o) of the Act, on March 26, 2021. The Company 
states that if the Commission issues the Order, the 2021 Non-Employee 
Director Plan will become effective upon receipt of the approval of the 
Company's shareholders.

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 2021 
Employee Plan and the 2021 Non-Employee Director Plan.
    2. Section 23(b) generally prohibits a registered 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 2021 Employee 
Plan and the 2021 Non-Employee Director Plan would not meet the terms 
of section 63(2), sections 23(b) and 63 prohibit the issuance of the 
Restricted Stock.
    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 of persons, 
securities or transactions, 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. The Company 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. The Company states that the concerns 
underlying those sections include: (a) Preferential treatment of 
investment company insiders and the use of options and other rights by 
insiders to obtain control of the investment company; (b) complication 
of the investment company's structure that makes it difficult to 
determine the value of the company's shares; and (c) dilution of 
shareholders' equity in the investment company. The Company states that 
the 2021 Employee Plan and the 2021 Non-Employee Director Plan do not 
raise concerns about preferential treatment of the Company's insiders 
because each of the 2021 Employee Plan and the 2021 Non-Employee 
Director Plan is a bona fide compensation plan of the type common among 
corporations generally. In addition, section 61(a)(4)(B) 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. The Company states that while it is not aware of any 
specific discussion in the legislative history of section 61 of the Act 
regarding the use of direct grants of stock as incentive compensation, 
the legislative history recognizes the crucial role that equity-based 
compensation played in the operation of a private equity fund and its 
ability to attract and retain employees. The Company believes 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 of the Act. The 
Company also asserts that the 2021 Employee Plan and the 2021 Non-
Employee Director Plan would not become a means for Participants to 
obtain control of the Company because the number of shares of the 
Company issuable under the 2021 Employee Plan and the 2021 Non-Employee 
Director Plan would be limited as set forth in the application.
    5. The Company further states that the 2021 Employee Plan and the 
2021 Non-Employee Director Plan will not unduly complicate the 
Company's structure because equity-based compensation arrangements are 
widely used among corporations and commonly known to investors. The 
Company notes that the 2021 Non-Employee Director Plan will be 
submitted to its shareholders for their approval. The Company 
represents that a concise, ``plain English'' description of the 2021 
Non-Employee Director Plan, including its potential dilutive effect, 
will be provided in the proxy materials that will be submitted to the 
Company's shareholders. The Company also states that it will comply 
with the proxy disclosure requirements in Item 10 of Schedule 14A under 
the Exchange Act. The Company further notes that the 2021 Employee Plan 
and the 2021 Non-Employee Director Plan will be disclosed to investors 
in accordance with the requirements of the Form N-2 registration 
statement for closed-end investment companies, and pursuant to the 
standards and guidelines adopted by the Financial Accounting Standards 
Board for operating companies. In addition, the Company will comply 
with the disclosure requirements for executive compensation plans 
applicable to BDCs.\5\ The Company thus concludes that the 2021 
Employee Plan and the 2021 Non-Employee Director Plan will be 
adequately disclosed to investors and appropriately reflected in the 
market value of the Company's shares.
---------------------------------------------------------------------------

    \5\ See Executive Compensation and Related Party Disclosure, 
Securities Act Release No. 8655 (Jan. 27, 2006) (proposed rule); 
Executive Compensation and Related Party Disclosure, Securities Act 
Release No. 8732A (Aug. 29, 2006) (final rule and proposed rule), as 
amended by Executive Compensation Disclosure, Securities Act Release 
No. 8765 (Dec. 22, 2006) (adopted as interim final rules with 
request for comments).
---------------------------------------------------------------------------

    6. The Company acknowledges that, while awards granted under the 
2021 Employee Plan and the 2021 Non-Employee Director Plan may have a 
dilutive effect on the shareholders' equity in the Company, that effect 
would be outweighed by the anticipated benefits of the 2021 Employee 
Plan and the 2021 Non-Employee Director Plan to the Company and its 
shareholders. The Company 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, the Company suggests, in 
turn are likely to increase the Company's performance and shareholder 
value. The Company also asserts that equity-based compensation would 
more closely align the interests of the Company's employees with those 
of its shareholders. In addition, the Company states that its 
shareholders will be further protected by the conditions to the 
requested order that assure continuing oversight of the operation of 
the 2021 Employee Plan and the 2021 Non-Employee Director Plan by the 
Company's Board.

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.

[[Page 24213]]

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. The Company requests an order pursuant to section 57(a)(4) and 
57(i) of the Act and rule 17d-1 to permit the Company to issue 
Restricted Stock under the 2021 Employee Plan and the 2021 Non-Employee 
Director Plan. The Company states that the 2021 Employee Plan and the 
2021 Non-Employee Director Plan, although benefiting the Participants 
and the Company in different ways, is in the interests of the Company's 
shareholders because the 2021 Employee Plan and the 2021 Non-Employee 
Director Plan will help align the interests of the Company's employees 
and directors with those of its shareholders, which will encourage 
conduct on the part of those employees, officers and directors designed 
to produce a better return for the Company's shareholders. 
Additionally, section 57(j)(1) of the Act expressly permits any 
director, officer or employee of a BDC to acquire warrants, options and 
rights to purchase voting securities of such BDC, and the securities 
issued upon the exercise or conversion thereof, pursuant to an 
executive compensation plan which meets the requirements of section 
61(a)(4)(B) of the Act. Applicant submits that the issuance of 
Restricted Stock pursuant to the 2021 Employee Plan and the 2021 Non-
Employee Director Plan poses no greater risk to stockholders than the 
issuances permitted by section 57(j)(1) of the Act.

Section 23(c)

    9. Section 23(c) of the Act, which is made applicable to BDCs by 
section 63 of the Act, generally prohibits a BDC from purchasing any 
securities of which it is the issuer except in the open market pursuant 
to tenders, or under other circumstances as the Commission may permit 
to ensure that the purchases are made in a manner or on a basis that 
does not unfairly discriminate against any holders of the class or 
classes of securities to be purchased. Applicant states that to the 
extent that the transactions between Applicant and the respective 
Participants described in the application with respect to the 2021 
Employee Plan and the 2021 Non-Employee Director Plan constitute 
``purchases'' by Applicant of its own securities, Section 23(c), absent 
relief, would prohibit such transactions.
    10. Section 23(c)(3) of the Act permits a BDC to purchase 
securities of which it is the issuer in circumstances in which the 
repurchase is made in a manner or on a basis that does not unfairly 
discriminate against any holders of the class or classes of securities 
to be purchased. Applicant believes that the requested relief meets the 
standards of section 23(c)(3).
    11. Applicant submits that these purchases will be made in a manner 
that does not unfairly discriminate against Applicant's stockholders 
because all purchases of Applicant's stock will be at the closing price 
of the common stock on the Nasdaq Global Select Market (or any primary 
exchange on which its shares of common stock may be traded in the 
future) on the relevant date (i.e., the public market price on the date 
of grant of Restricted Stock). Applicant submits that because all 
transactions with respect to the 2021 Employee Plan and the 2021 Non-
Employee Director Plan will take place at the public market price for 
the Applicant's common stock, these transactions will not be 
significantly different than could be achieved by any stockholder 
selling in a market transaction. Applicant represents that no 
transactions will be conducted pursuant to the requested order on days 
where there are no reported market transactions involving Applicant's 
shares.
    12. Applicant represents that the withholding provisions in the 
2021 Employee Plan and the 2021 Non-Employee Director Plan do not raise 
concerns about preferential treatment of Applicant's insiders because 
each of the 2021 Employee Plan and the 2021 Non-Employee Director Plan 
is a bona fide compensation plan of the type that is common among 
corporations generally. Furthermore, the vesting schedule is determined 
at the time of the initial grant of the Restricted Stock. Applicant 
represents that all purchases may be made only as permitted by the 2021 
Employee Plan, which was approved by both the Board prior to any 
application and by shareholders on July 28, 2021, and the 2021 Non-
Employee Director Plan, which will be approved by the Applicant's 
stockholders prior to any application of the relief. Applicant believes 
that granting the requested relief would be consistent with the 
policies underlying the provisions of the Act permitting the use of 
equity compensation as well as prior exemptive relief granted by the 
Commission under section 23(c) of the Act.

Applicant's Conditions

    Applicant agrees that the order granting the requested relief will 
be subject to the following conditions:
    1. The 2021 Non-Employee Director Plan will be authorized by the 
Company's shareholders.\6\
---------------------------------------------------------------------------

    \6\ The 2021 Employee Plan was approved by Capital Southwest's 
shareholders on July 28, 2021.
---------------------------------------------------------------------------

    2. Each issuance of Restricted Stock to Employee Participants and 
Non-Employee Director Participants will be approved by the required 
majority, as defined in section 57(o) of the Act, of the Company's 
directors on the basis that such grant is in the best interests of the 
Company and its shareholders.
    3. The amount of voting securities that would result from the 
exercise of all of the Company's outstanding warrants, options, and 
rights, together with any Restricted Stock issued and outstanding 
pursuant to the 2021 Employee Plan, the 2021 Non-Employee Director Plan 
and any other compensation plans of the Company, at the time of 
issuance shall not exceed 25% of the outstanding voting securities of 
the Company, except that if the amount of voting securities that would 
result from the exercise of all of the Company's outstanding warrants, 
options, and rights issued to the Company's directors, officers, and 
employees, together with any Restricted Stock issued pursuant to the 
2021 Employee Plan, the 2021 Non-Employee Director Plan and any other 
compensation plans of the Company, would exceed 15% of the outstanding 
voting securities of the Company, 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 2021 Employee Plan, the 2021 Non-Employee 
Director Plan and any other compensation plans of the Company, at the 
time of issuance shall not exceed 20% of the outstanding voting 
securities of the Company.
    4. The amount of Restricted Stock issued and outstanding will not 
at the time of issuance of any Restricted Stock exceed 10% of the 
Company's outstanding voting securities.
    5. The Board will review the 2021 Employee Plan and the 2021 Non-
Employee Director Plan at least annually. In addition, the Board will 
review periodically the potential impact that the issuance of 
Restricted Stock under the 2021 Employee Plan and the

[[Page 24214]]

2021 Non-Employee Director Plan could have on the Company's earnings 
and NAV per share, such review to take place prior to any decisions to 
grant Restricted Stock under the 2021 Employee Plan and the 2021 Non-
Employee Director Plan, 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 issuance of Restricted Stock under the 2021 Employee 
Plan and the 2021 Non-Employee Director Plan will be in the best 
interests of the Company's shareholders. This authority will include 
the authority to prevent or limit the granting of additional Restricted 
Stock under the 2021 Employee Plan and the 2021 Non-Employee Director 
Plan. 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, 
under delegated authority.
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2022-08662 Filed 4-21-22; 8:45 am]
BILLING CODE 8011-01-P


