81 FR 6905 - Medallion Financial Corp.; Notice of Application

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 81, Issue 26 (February 9, 2016)

Page Range		6905-6908
FR Document		2016-02442

Summary of the Application: Applicant, Medallion Financial Corp. (the ``Company''), requests an order to permit it to issue restricted shares of its common stock to its officers and employees under the terms of an employee compensation plan.

Federal Register, Volume 81 Issue 26 (Tuesday, February 9, 2016)

[Federal Register Volume 81, Number 26 (Tuesday, February 9, 2016)]
[Notices]
[Pages 6905-6908]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2016-02442]

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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 31980; 812-14433]

Medallion Financial Corp.; Notice of Application

February 3, 2016.
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 permitting certain
joint transactions otherwise prohibited by section 57(a)(4) of the Act.

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SUMMARY: Summary of the Application: Applicant, Medallion Financial
Corp. (the ``Company''), requests an order to permit it to issue
restricted shares of its common stock to its officers and

[[Page 6906]]

employees under the terms of an employee compensation plan.

DATES: Filing Dates: The application was filed on March 17, 2015, and
amended on July 15, 2015, September 24, 2015, and December 11, 2015.
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 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 February 29, 2016, 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 writing to the
Commission's Secretary.

ADDRESSES: Secretary, U.S. Securities and Exchange Commission, 100 F
Street NE., Washington, DC 20549-1090. Applicant, Marisa T. Silverman,
General Counsel, Medallion Financial Corp., 437 Madison Avenue, 38th
Floor, New York, NY 10022.

FOR FURTHER INFORMATION CONTACT: Laura L. Solomon, Senior Counsel, at
(202) 551-6915, or Daniele Marchesani, Branch Chief, at (202) 551-6821,
(Chief Counsel's Office, Division of Investment Management).

SUPPLEMENTARY INFORMATION: The following is a summary of the
application. The complete application may be obtained via the
Commission's Web site 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 Delaware 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 is a specialty finance company that has a leading position
in originating, acquiring, and servicing loans that finance taxicab
medallions and various types of commercial businesses. The Company
currently operates its business through three wholly-owned consolidated
subsidiaries and one wholly-owned unconsolidated portfolio company.
Shares of the Company's common stock are traded on the NASDAQ Global
Select Market under the symbol ``TAXI.'' As of March 10, 2015, there
were 24,771,864 shares of the Company's common stock outstanding. As of
that date, the Company had 151 employees, including employees of its
wholly-owned subsidiaries (``Wholly-Owned Subsidiaries'').
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\1\ The Company was incorporated in Delaware in 1995 and
commenced operations on May 29, 1996, in connection with the closing
of its initial public offering and simultaneous acquisition of three
established finance companies. 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.
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2. The Company currently has a eight-member board of directors (the
``Board'') of whom three are ``interested persons'' of the Company
within the meaning of section 2(a)(19) of the Act and five are not
interested persons (the ``Non-interested Directors''). The Company has
six directors who are neither officers nor employees of the Company.
3. 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 that the ability to offer equity-based
compensation to its professionals is vital to the Company's future
growth and success. The Company wishes to adopt the 2015 Employee
Restricted Stock Plan (the ``Plan'') providing for the periodic
issuance of shares of restricted stock (i.e., 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'') for its employees and officers,
and employees of its Wholly-Owned Subsidiaries (each a ``Participant,''
and collectively, the ``Participants'').\2\
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\2\ The Plan, except as noted in the application, will operate
in a manner identical to the operation of the 2009 Employee Plan
that is the subject of a prior order received by the Company. See
Medallion Financial Corp., Investment Company Act Release Nos. 29201
(Apr. 1, 2010) (notice) and 29258 (Apr. 26, 2010) (order).
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4. The Plan 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, achievement
of specified performance objectives, or other restrictions deemed by
the Committee (as defined below) to be appropriate.\3\ The Restricted
Stock will be subject to restrictions on transferability and other
restrictions as required by the Committee. Except to the extent
restricted under the terms of the Plan, a 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, the Restricted Stock
generally may not be sold, transferred, pledged, hypothecated,
margined, or otherwise encumbered by the Participant. Except as
otherwise provided for in a Participant's employment agreement or as
the Board may determine, upon termination of a 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.
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\3\ The Compensation Committee of the Board (the ``Committee'')
is comprised solely of the Non-interested Directors.
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5. The maximum amount of Restricted Stock that may be issued under
the Plan will be 10% of the outstanding shares of common stock of the
Company on the effective date of the Plan plus 10% of the number of
shares of the Company's common stock issued or delivered by the Company
(other than pursuant to compensation plans) during the term of the
Plan.\4\ The Plan limits the total number of shares that may be awarded
to any single Participant in a fiscal year to 200,000 shares. In
addition, no Restricted Stock Participant may be granted more than 25%
of the shares reserved for issuance under the Plan. The Plan will be
administered by the Committee, which, upon approval of the required
majority, as defined in section 57(o) of the Act,\5\ of the Board, will
award shares of Restricted Stock to the Participants from time to time
as part of the Participants' compensation based on a Participant's
actual or expected performance and value to the Company.
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\4\ For purposes of calculating compliance with this limit, the
Company will count as Restricted Stock all shares of its common
stock that are issued pursuant to the Plan less any shares that are
forfeited back to the Company and cancelled as a result of
forfeiture restrictions not lapsing.
\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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6. Each issuance of Restricted Stock under the Plan 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 the issuance

[[Page 6907]]

is in the best interests of the Company 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.
7. The Plan has been approved by the Committee, as well as the
Board, including the required majority as defined in section 57(o) of
the Act. The Plan will be submitted for approval to the Company's
stockholders, and will become effective upon such approval, subject to
and following receipt of the order.

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 Plan.
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 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 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.\6\ 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 made it difficult to
determine the value of the company's shares; and (c) dilution of
stockholders' equity in the investment company. The Company states that
the Plan does not raise concerns about preferential treatment of the
Company's insiders because the Plan is a bona fide compensation plan of
the type common among corporations generally. In addition, section
61(a)(3)(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, 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.
The Company 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. The Company also asserts that the Plan would not become
a means for insiders to obtain control of the Company because the
number of shares of the Company issuable under the Plan would be
limited as set forth in the application. Moreover, no individual
Restricted Stock Participant could be issued more than 25% of the
shares reserved for issuance under the Plan.
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\6\ The Company asks that the order apply also to any future
officers and employees of the Company and future employees of the
Company's Wholly-Owned Subsidiaries that are eligible to receive
Restricted Stock under the Plan. Additionally, to the extent that
the Company creates or acquires additional Wholly-Owned
Subsidiaries, and to the extent that such future Wholly-Owned
Subsidiaries have employees to whom the relief requested herein
would otherwise apply, the Company asks that such relief, if
granted, be extended to such employees of any future Wholly-Owned
Subsidiaries.
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5. The Company further states that the 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 Plan will be submitted to its
stockholders for their approval. The Company represents that a concise,
``plain English'' description of the Plan, including its potential
dilutive effect, will be provided in the proxy materials that will be
submitted to the Company's stockholders. The Company also states that
it will comply with the proxy disclosure requirements in Item 10 of
Schedule 14A under the Securities Exchange Act of 1934 (the ``Exchange
Act''). The Company further notes that the 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 operating companies under the Exchange
Act.\7\ The Company thus concludes that the Plan will be adequately
disclosed to investors and appropriately reflected in the market value
of the Company's shares.
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\7\ The Company will comply with the amendments to the
disclosure requirements for executive and director compensation,
related party transactions, director independence and other
corporate governance matters, and security ownership of officers and
directors to the extent adopted and applicable to BDCs. 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).
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6. The Company acknowledges that, while awards granted under the
Plan would have a dilutive effect on the stockholders' equity in the
Company, that effect would be outweighed by the anticipated benefits of
the Plan to the Company and its stockholders. 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 stockholder value. The Company also asserts
that equity-based compensation would more closely align the interests
of the Company's employees with those of its stockholders. In addition,
the Company states that its stockholders will be further protected by
the conditions to the requested order that assure continuing oversight
of the operation of the 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. Employees and directors
of a BDC are

[[Page 6908]]

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
rule 17d-1 to permit the Company to grant shares of Restricted Stock
pursuant to the Plan. The Company states that the Plan, although
benefiting the Participants and the Company in different ways, is in
the interests of the Company's stockholders because the Plan will help
align the interests of the Company's employees and officers with those
of its stockholders, which will encourage conduct on the part of those
employees and officers designed to produce a better return for the
Company's stockholders.

Applicant's Conditions

Applicant agrees that the order granting the requested relief will
be subject to the following conditions:
1. The Plan will be authorized by the Company's stockholders.
2. Each issuance of Restricted Stock to a Participant 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 issuance is in
the best interest of the Company and its stockholders.
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 pursuant to the Plan,
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 Plan, 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 Plan, at the time of issuance shall not exceed 20% of the
outstanding voting securities of the Company.
4. The maximum amount of shares of Restricted Stock that may be
issued under the Plan will be 10% of the outstanding shares of common
stock of the Company on the effective date of the Plan plus 10% of the
number of shares of the Company's common stock issued or delivered by
the Company (other than pursuant to compensation plans) during the term
of the Plan.
5. The Board will review the Plan at least annually. In addition,
the Board will review periodically the potential impact that the
issuance of Restricted Stock under the 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 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 grant of Restricted Stock under
the Plan would not have an effect contrary to the interests of the
Company's stockholders. This authority will include the authority to
prevent or limit the granting of additional Restricted Stock under the
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.
Robert W. Errett,
Deputy Secretary.
[FR Doc. 2016-02442 Filed 2-8-16; 8:45 am]
BILLING CODE 8011-01-P

Document Created: 2018-02-02 14:30:34
Document Modified: 2018-02-02 14:30:34

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
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 permitting certain joint transactions otherwise prohibited by section 57(a)(4) of the Act.
Dates		Filing Dates: The application was filed on March 17, 2015, and amended on July 15, 2015, September 24, 2015, and December 11, 2015.
Contact		Laura L. Solomon, Senior Counsel, at (202) 551-6915, or Daniele Marchesani, Branch Chief, at (202) 551-6821, (Chief Counsel's Office, Division of Investment Management).
FR Citation		81 FR 6905