[Federal Register Volume 86, Number 87 (Friday, May 7, 2021)]
[Notices]
[Pages 24682-24685]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-09650]


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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 34263; File No. 812-15111]


Trinity Capital, Inc.

May 3, 2021.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice.

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    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; under 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 
under section 23(c)(3) of the Act for an exemption from section 23(c) 
of the Act.

Summary of the Application:  Trinity Capital, Inc. (``Company'' or 
``Applicant'') requests an order that would permit Applicant to (i) 
issue restricted shares of its common stock (``Restricted Stock'') as 
part of the compensation package for its non-employee directors (the 
``Non-Employee Directors'') \1\ through its 2019 Company Non-Employee 
Director Restricted Stock Plan (the ``Non-Employee Director Plan''), 
(ii) issue Restricted Stock as part of the compensation package for 
Employee Participants, excluding the Non-Employee Directors, through 
its 2019 Company Long Term Incentive Plan (the ``Long Term Incentive 
Plan''), (iii) withhold shares of the Applicant's common stock or 
purchase shares of Applicant's common stock from Employee Participants 
to satisfy tax withholding obligations relating to the vesting of 
Restricted Stock or the exercise of options to purchase shares of 
Applicant's common stock (``Options'') that will be granted pursuant to 
the Long Term Incentive Plan \2\ and (iv) permit Employee Participants 
to pay the exercise price of Options that will be granted to them 
pursuant to the Long Term Incentive Plan with shares of Applicant's 
common stock.
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    \1\ Employees, officers and employee directors, together the 
``Employee Participants'' and each an ``Employee Participant.'' The 
Employee Participants and the Non-Employee Directors, together the 
``Participants'' and each, a ``Participant.''
    \2\ No relief is sought in the application for the grant of 
Options to Non-Employee Directors because Options will not be 
granted pursuant to the Non-Employee Director Plan.

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Applicant:  Trinity Capital, Inc.

Filing Dates:  The application was filed on March 19, 2020, and amended 
on July 29, 2020, January 6, 2021, and April 29, 2021.

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 applicant 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 24, 2021, and should be accompanied by proof of service on 
applicant, 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: Steven 
L. Brown, Chief Executive Officer, Trinity Capital, Inc., 3075 West Ray 
Road, Suite 525, Chandler, Arizona 85226, 
[email protected].

FOR FURTHER INFORMATION CONTACT: Stephan N. Packs, Senior Counsel, at 
(202) 551-6853, or David J. Marcinkus, 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 the 
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 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. Applicant provides debt, 
and to a lesser extent equipment lease financing, to growth stage 
companies. Applicant's investment objective is to generate current 
income and, to a lesser extent, capital appreciation. Applicant is a 
Maryland corporation that was formed in August 2019. Applicant had 
26,415,275 shares of Common Stock outstanding as of April 26, 2021.
    Applicant's common stock is listed on the Nasdaq Global Select 
Market under the symbol TRIN. As of December 31, 2020, Applicant had 34 
employees and Applicant's total assets were $559,708,000.
    2. Applicant currently has a five-member board of directors (the 
``Board'') of whom three are Non-Employee Directors and non-interested 
persons of Applicant within the meaning of section 2(a)(19).
    3. Applicant believes that, because the market for superior 
investment professionals is highly competitive, Applicant's 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. Applicant

[[Page 24683]]

states that the ability to offer equity-based compensation to its 
employees and Non-Employee Directors, which both aligns employee and 
Board behavior with stockholder interests and provides a retention 
tool, is vital to Applicant's future growth and success.
    4. The Applicant's 2019 Non-Employee Director Plan and 2019 Long 
Term Incentive Plan were adopted on October 17, 2019 by the Board, 
including the required majority as defined in Section 57(o) (the 
``Required Majority'').\3\
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    \3\ 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.
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    5. The Board, including the Required Majority, found that granting 
Restricted Stock Awards to each Non-Employee Director will allow the 
Applicant to align its business plan and stockholder interests based on 
the nature of the Applicant's business and the characteristics of 
Restricted Stock Awards. Applicant states that Restricted Stock Awards 
allow Participants, over time, to become owners of the Applicant's 
stock with a vested interest in value maintenance, income stream and 
stock appreciation, which interests align with those of the Applicant's 
stockholders.
    6. The Non-Employee Director Plan will be administered by a 
committee designated by the Board (``Compensation Committee''), the 
composition of which consists of ``non-employee directors'' within the 
meaning of rule 16b-3 under the Securities Exchange Act of 1934 
(``Exchange Act'') each of whom also is not an ``interested person'' of 
Applicant within the meaning of section 2(a)(19) of the Act.
    7. The Applicant's Non-Employee Director Plan provides that each 
Non-Employee Director may be granted shares of Restricted Stock at or 
about the beginning of each one-year term of service on the Board, 
subject to certain forfeiture restrictions. Applicant states that the 
number of such shares of Restricted Stock granted will be determined in 
the discretion of the Board. Applicant states that shares of Restricted 
Stock Awards will not be transferable except to a permitted transferee: 
The spouse or lineal descendants (including adopted children) of the 
Non-Employee Director, any trust for the benefit of the Non-Employee 
Director or the benefit of the spouse or lineal descendants (including 
adopted children) of the Non-Employee Director, or the guardian or 
conservator of the participant. Applicant states that any shares of 
Restricted Stock held by a Non-Employee Director or such director's 
permitted transferee that have not vested shall be terminated, returned 
to Applicant, and again be available for issuance under the Non-
Employee Director Plan. Applicant also states that any Restricted Stock 
Award granted pursuant to the Non-Employee Director Plan but that is 
forfeited pursuant to the terms of the Plan or an award agreement shall 
again be available under the Non-Employee Director Plan. Applicant 
states that the maximum aggregate number of shares of common stock that 
may be authorized for issuance as Restricted Stock Awards under the 
Non-Employee Director Plan is 60,000 shares.
    8. The Applicant's Long Term Incentive Plan provides for grants to 
Employee Participants of Restricted Stock and Options (``Plan 
Awards'').\4\ The maximum aggregate number of shares of common stock 
that may be authorized for issuance under Plan Awards granted under the 
Long Term Incentive Plan is 3,600,00 shares. The maximum number of 
shares of common stock that any Employee Participant may be granted in 
a calendar year is 300,000 shares. Applicant states that any shares of 
common stock pursuant to a Plan Award that expires or otherwise 
terminates shall revert to and again become available for issuance 
under the Long Term Incentive Plan.
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    \4\ Although its Long Term Incentive Plan also permits the grant 
of Restricted Stock Units, Other Stock-Based Awards, Performance 
Based Awards, or Dividend Equivalent Rights, Applicant is not 
seeking relief from the Commission at this time to grant such units, 
awards, or rights. Applicant will not grant such units, awards, or 
rights unless and until Applicant requests and receives the 
necessary exemptive relief from the Commission with respect to such 
units, awards, or rights.
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    9. Unless the Board expressly provides otherwise, immediately upon 
the cessation of an Employee Participant's continuous service, that 
portion, if any, (i) of any Restricted Stock Award held by the Employee 
Participant or the Employee Participant's permitted transferee that is 
not then vested will terminate, and, in the case of a Restricted Stock 
Award, the unvested shares will be returned to the Applicant and will 
be available to be issued as Plan Awards under the Long Term Incentive 
Plan and (ii) of any Option held by an Employee Participant or such 
Employee Participant's Permitted Transferee that is not yet exercisable 
will terminate and the balance will remain exercisable for the lesser 
of (x) a period of three months or (y) the period ending on the latest 
date on which such Option could have been exercised, and will thereupon 
terminate subject to certain provisions. Plan Awards will not be 
transferable except for disposition by will or the laws of descent and 
distribution. In addition, a Non-Statutory Stock Option is transferable 
by gift to a permitted transferee to the extent provided by the Board.

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 prohibit 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 Plans.
    2. Section 23(b) of the Act generally prohibits a registered 
closed-end investment company from selling any common stock of which it 
is the issuer at a price below its current net asset value. Section 
63(2) of the Act makes section 23(b) applicable to BDCs unless certain 
conditions are met. Because Restricted Stock that would be granted 
under the Plans would not meet the terms of section 63(2), sections 
23(b) and 63 would prevent the issuance of 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 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. Applicant requests an order pursuant to section 6(c) of the Act 
granting an exemption from the provisions of sections 23(a), 23(b) and 
63 of the Act. Applicant states that the Plans would not raise the 
concerns underlying these sections, which 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 made it 
difficult to determine the value of the company's shares; and (c) 
dilution of shareholders' equity in the investment company. Applicant 
asserts that the Restricted Stock element of the Plans does not raise 
concerns about preferential treatment of Applicant's insiders because 
this element is a bona

[[Page 24684]]

fide compensation plan of the type that is common among corporations 
generally. In addition, section 61(a)(4)(B) of the Act permits a BDC to 
issue to its directors, officers, employees, and general partners 
warrants, options, and rights to purchase the BDC's voting securities 
pursuant to an executive compensation plan, subject to certain 
conditions. Applicant states that section 61 and its legislative 
history do not address the issuance by a BDC of restricted stock as 
incentive compensation. Applicant believes, 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. Applicant also asserts that the 
issuance of Restricted Stock would not become a means for insiders to 
obtain control of Applicant because the maximum amount of Restricted 
Stock that may be issued under the Plans at any one time will be ten 
percent of the outstanding shares of common stock of Applicant.
    5. Applicant further states that the Restricted Stock feature will 
not unduly complicate Applicant's capital structure because equity-
based incentive compensation arrangements are widely used among 
corporations and commonly known to investors. Applicant notes that the 
Plans will be submitted for approval to the Applicant's stockholders. 
Applicant represents that the proxy materials submitted to Applicant's 
stockholders will contain a concise ``plain English'' description of 
the Plans and their potential dilutive effect. Applicant also states 
that it will comply with the proxy disclosure requirements in Item 10 
of Schedule 14A under the Exchange Act. Applicant further notes that 
the Plans 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. Applicant also will comply with the disclosure requirements 
for executive compensation plans applicable to BDCs.\5\ Applicant thus 
concludes that the Plans will be adequately disclosed to investors and 
appropriately reflected in the market value of Applicant's shares.
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    \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. 8756 (Dec. 22, 2006) (adopted as interim final rules with 
request for comments).
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    6. Applicant acknowledges that awards granted under the Plans may 
have a dilutive effect on the stockholders' equity per share in 
Applicant, but believes that effect would be outweighed by the 
anticipated benefits of the Plans to Applicant and its stockholders. 
Moreover, based on the manner in which the issuance of Restricted Stock 
pursuant to the Plans will be administered, the Restricted Stock will 
be no more dilutive than if Applicant were to issue only Options to 
Employee Participants, as is permitted by section 61(a)(4) of the Act. 
Applicant asserts that it needs the flexibility to provide the 
requested equity-based compensation in order to be able to compete 
effectively for talented personnel with commercial banks, investment 
banks, and other publicly traded companies that also are not investment 
companies registered under the Act. Applicant believes that awards of 
Restricted Stock will benefit Applicant's stockholders and business 
prospects. Applicant also asserts that equity-based compensation would 
more closely align the interests of Applicant's employees and Non-
Employee Directors with those of its stockholders. In addition, 
Applicant states that its stockholders will be further protected by the 
conditions to the requested order that assure continuing oversight of 
the operation of the Plans by the 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. 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 (a) whether the participation of the BDC in a 
joint enterprise is consistent with the policies and purposes of the 
Act and (b) the extent to which such participation is on a basis 
different from or less advantageous than that of other participants.
    8. Applicant requests an order pursuant to sections 57(a)(4) and 
57(i) of the Act and rule 17d-1 under the Act to permit Applicant to 
issue Restricted Stock under the Plans. Applicant acknowledges that its 
role is necessarily different from the other participants because the 
other participants are its directors, officers, and employees. It 
notes, however, that the Plans are in the interest of the Applicant's 
stockholders, because the Plans will help align the interests of 
Applicant's employees with those of its stockholders, which will 
encourage conduct on the part of those employees designed to produce a 
better return for Applicant's stockholders. 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 Plans 
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 the 
withholding or purchase of shares of Restricted Stock and common stock 
in payment of applicable withholding tax obligations or of common stock 
in payment for the exercise price of a stock option might be deemed to 
be purchases by the Company of its own securities within the meaning of 
section 23(c) and therefore prohibited by the Act.
    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

[[Page 24685]]

does not unfairly discriminate against Applicant's stockholders because 
all purchases of Applicant's stock will be at the closing price of the 
shares of its common stock on any applicable stock exchange or national 
market system on the relevant date (i.e., the public market price on 
the date of grant of Restricted Stock and the date of grant of 
Options). Applicant submits that because all transactions with respect 
to the Plans 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 
Plans do not raise concerns about preferential treatment of Applicant's 
insiders because each 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 and the option exercise price is determined at the 
time of the initial grant of the Options. Applicant represents that all 
purchases may be made only as permitted by the Plans, 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 Plans will be authorized by Applicant's stockholders.
    2. Each issuance of Restricted Stock to an officer, employee, or 
Non-Employee Director will be approved by the Required Majority of 
Applicant's directors on the basis that such grant is in the best 
interest of Applicant and its stockholders.
    3. The amount of voting securities that would result from the 
exercise of all of Applicant's outstanding warrants, options and 
rights, together with any Restricted Stock issued under the Plans, 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 Plans, 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 Plans, 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 shares of Restricted Stock exceed ten 
percent of Applicant's outstanding voting securities.
    5. The Board will review the Plans at least annually. In addition, 
the Board will review periodically the potential impact that the 
issuance of Restricted Stock under the Plans could have on Applicant's 
earnings and net asset value per share, such review to take place prior 
to any decisions to grant Restricted Stock under the 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 issuance of Restricted 
Stock under the Plans will be in the best interest of Applicant's 
stockholders. This authority will include the authority to prevent or 
limit the granting of additional Restricted Stock under the 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.
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-09650 Filed 5-6-21; 8:45 am]
BILLING CODE 8011-01-P