Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Notices 30875 

1Hercules Technology Growth Capital, Inc., 

Investment Company Act Release Nos. 27815 (May 

2, 2007) (notice) and 27838 (May 23, 2007) (order) 

and Hercules Technology Growth Capital, Inc., 

Investment Company Act Release Nos. 27968 (Sept. 

12, 2007) (notice) and 28011 (Oct. 10, 2007) (order) 

(collectively, the ‘‘Prior Orders’’). 

2All Employees and Non-Employee Directors 

who participate in the Plans or the Amended Plans 

are referred to as ‘‘Participants.’’ 

3Net share settlement allows the Company to 

deliver only gain shares (i.e., shares of its common 

stock with a current market value, as the term is 

defined in the Amended Plans, equal to the option 

spread upon exercise) directly to the optionee 

without the need for the optionee to sell shares of 

the Company’s common stock on the open market 

or borrow cash from third parties in order to 

exercise his or her options. 

4 During the restriction period (i.e., prior to the 

lapse of the forfeiture restrictions), the Restricted 

Stock may not be sold, transferred, pledged, 

hypothecated, margined, or otherwise encumbered 

by a Participant. 

Nanotechnology Coordination Office. Email: strategy@nnco.nano.gov. 

Rachael L. Leonard, 

General Counsel, OSTP. 

[FR Doc. 2010–13157 Filed 6–1–10; 8:45 am] 

BILLING CODE P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Investment Company Act Release No. 

29287; File No. 812–13716] 

Hercules Technology Growth Capital, 

Inc.; Notice of Application 

May 26, 2010. 

AGENCY: Securities and Exchange 

Commission (‘‘Commission’’). 

ACTION: Notice of an application for an 

order under section 23(c)(3) of the 

Investment Company Act of 1940 (the 

‘‘Act’’) for an exemption from section 

23(c) of the Act. 

SUMMARY: Summary of the Application: 

Hercules Technology Growth Capital, 

Inc. (‘‘Company’’ or ‘‘Applicant’’) 

requests an order to amend prior orders 

that permit the Company to issue 

restricted shares of its common stock 

(‘‘Restricted Stock’’) and to issue stock 

options to the Company’s executive 

officers, employee directors, and other 

key employees (together, ‘‘Employees’’) 

and non-employee directors (‘‘Nonemployee Directors’’) under the terms of 

its employee and director compensation 

plans, the Amended and Restated 2004 

Equity Incentive Plan and the Amended 

and Restated 2006 Non-employee 

Director Plan (each as amended and 

restated on June 21, 2007, a ‘‘Plan,’’ and 

together, the ‘‘Plans’’).1 Applicant seeks 

to amend the Prior Orders to permit the 

Company to engage in certain 

transactions in connection with the 

Plans that may constitute purchases by 

the Company of its own securities 

within the meaning of section 23(c) of 

the Act. Such transactions are provided 

for in the 2009 Amendment and 

Restatement to each Plan (each, an 

‘‘Amended Plan,’’ and together, the 

‘‘Amended Plans’’). 

DATES: Filing Dates: The application was 

filed on November 9, 2009, and 

amended on March 22, 2010, and May 

25, 2010. 

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 June 21, 2010, and 

should be accompanied by proof of 

service on applicant, 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. Applicant, c/o Mr. Manuel A. 

Henriquez, Chief Executive Officer, 

Hercules Technology Growth Capital, 

Inc., 400 Hamilton Avenue, Suite 310, 

Palo Alto, CA 94301. 

FOR FURTHER INFORMATION CONTACT: Jean 

E. Minarick, Senior Counsel, at (202) 

551–6811, or Julia Kim Gilmer, Branch 

Chief, 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 via the Commission’s 

Web site by searching for the file 

number, or 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. The 

Company is currently permitted to (i) 

issue shares of Restricted Stock to 

certain of its Employees and Nonemployee Directors, and (ii) issue 

options to purchase shares of the 

Company’s common stock to certain of 

its Employees and Non-employee 

Directors, under the terms of the Plans 

in reliance on the Prior Orders. 

Applicant seeks to amend the Prior 

Orders in order to permit the Company, 

pursuant to the Amended Plans, to 

withhold shares of the Company’s 

common stock or purchase shares of the 

Company’s common stock from its 

Employees and Non-employee Directors 

to satisfy tax withholding obligations 

related to the vesting of Restricted Stock 

that were or will be granted pursuant to 

the Plans or the Amended Plans.2 In 

addition, the Company seeks to amend 

the Prior Orders to permit Participants 

to pay the exercise price of options to 

purchase shares of the Company’s 

common stock that were or will be 

granted to them pursuant to the Plans or 

the Amended Plans with shares of the 

Company’s common stock already held 

by them or pursuant to a net share 

settlement feature.3 The Company will 

continue to comply with all of the terms 

and conditions of the Prior Orders. 

2. The Plans and the Amended Plans 

authorize the issuance to Participants of 

shares of Restricted Stock, subject to 

certain forfeiture restrictions, and 

options that may be subject to forfeiture 

conditions to purchase shares of the 

Company’s common stock. On the date 

that any Restricted Stock vests, such 

vested shares of the Restricted Stock are 

released to the Participant and are 

available for sale or transfer.4 For 

Participants who are Employees, the 

value of the vested shares is deemed to 

be wage compensation for the 

Employee. As discussed more fully in 

the application, upon the exercise of 

certain options the amount by which the 

current market value of the shares of the 

Company’s common stock, determined 

as of the date of exercise, exceeds the 

exercise price will be treated as ordinary 

income to the recipient of the option in 

the year of exercise. Applicant states 

that any compensation income 

recognized by an employee generally is 

subject to Federal withholding for 

income and employment tax purposes. 

The Amended Plans provide that each 

grant or exercise of an Award is subject 

to the Participant making arrangements 

to satisfy all applicable Federal, State, 

and local or other income and 

employment tax withholding 

obligations. 

3. The Amended Plans will be subject 

to approval by the Company’s board of 

directors (‘‘Board’’) as well as the 

required majority of the Company’s 

directors with the meaning of section 

57(o) of the Act. The Amended Plans 

explicitly permit the Company to 


sroberts on DSKD5P82C1PROD with NOTICES
30876 Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Notices 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

3See Securities Exchange Act Release No. 60315 

(July 15, 2009), 74 FR 36294 (‘‘Original Notice’’) (the 

‘‘original proposed rule change’’). 

withhold shares of the Company’s 

common stock or purchase shares of the 

Company’s common stock from the 

Participants to satisfy tax withholding 

obligations related to the vesting of 

Restricted Stock and the exercise of 

options to purchase shares of the 

Company’s common stock granted 

pursuant to the Plans or the Amended 

Plans. The Amended Plans further 

provide the Company’s Board with 

discretion to permit the Participants to 

pay the exercise price of options to 

purchase shares of the Company’s stock 

with shares of the Company’s stock 

already held by such Participants or 

pursuant to net share settlement. 

Applicant’s Legal Analysis 

1. 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 tender offers or 

under other circumstances as the 

Commission may permit to ensure that 

the purchase is made 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. 

2. Section 23(c)(3) provides that the 

Commission may issue an order that 

would permit a BDC to repurchase its 

shares 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 states that it 

believes that the requested relief meets 

the standards of section 23(c)(3). 

3. Applicant states that these 

purchases will be made on a basis 

which does not unfairly discriminate 

against the stockholders of the Company 

because all purchases of the Company’s 

stock will be at the closing price of the 

common stock on the NASDAQ Global 

Select Market (or any other such 

exchange on which the shares may be 

traded in the future) on the date of the 

transaction. Applicant further states that 

no transactions will be conducted 

pursuant to the requested order on days 

where there are no reported market 

transactions involving the Company’s 

shares. Applicant submits that because 

all transactions would take place at the 

public market price for the Company’s 

common stock, the transactions would 

not be significantly different than could 

be achieved by any stockholder selling 

in a market transaction. 

4. Applicants submit that the 

proposed purchases do not raise 

concerns about preferential treatment of 

the Company’s insiders because the 

Amended Plans are bona fide 

compensation plans of the type that is 

common among corporations generally. 

Further, 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 Amended Plans. 

Applicant argues that granting the 

requested relief would be consistent 

with policies underlying the provisions 

of the Act permitting the use of equity 

compensation as well as prior 

exemptive relief granted by the 

Commission for relief under section 

23(c) of the Act. 

For the Commission, by the Division of 

Investment Management, pursuant to 

delegated authority. 

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. 2010–13154 Filed 6–1–10; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

Sunshine Act Meeting 

Notice is hereby given, pursuant to 

the provisions of the Government in the 

Sunshine Act, Public Law 94–409, that 

the Securities and Exchange 

Commission will hold a Closed Meeting 

on Thursday, June 3, 2010 at 2 p.m. 

Commissioners, Counsel to the 

Commissioners, the Secretary to the 

Commission, and recording secretaries 

will attend the Closed Meeting. Certain 

staff members who have an interest in 

the matters also may be present. 

The General Counsel of the 

Commission, or his designee, has 

certified that, in his opinion, one or 

more of the exemptions set forth in 5 

U.S.C. 552b(c)(3), (5), (7), (8), 9(B) and 

(10) and 17 CFR 200.402(a)(3), (5), (7), 

(8), 9(ii) and (10), permit consideration 

of the scheduled matters at the Closed 

Meeting. 

Commissioner Paredes, as duty 

officer, voted to consider the items 

listed for the Closed Meeting in a closed 

session. 

The subject matter of the Closed 

Meeting scheduled for Thursday, June 3, 

2010 will be: 

Institution and settlement of injunctive 

actions; 

Institution and settlement of 

administrative proceedings; 

A regulatory matter regarding a financial 

institution; and 

Other matters relating to enforcement 

proceedings. 

At times, changes in Commission 

priorities require alterations in the 

scheduling of meeting items. 

For further information and to 

ascertain what, if any, matters have been 

added, deleted or postponed, please 

contact: 

The Office of the Secretary at (202) 

551–5400. 

Dated: May 27, 2010. 

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. 2010–13329 Filed 5–28–10; 4:15 pm] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–62183, File No. SR–MSRB– 

2009–10] 

Self-Regulatory Organizations; 

Municipal Securities Rulemaking 

Board; Notice of Filing of Amendment 

No. 2 and Order Granting Accelerated 

Approval of Proposed Rule Change, as 

Modified by Amendment Nos. 1 and 2 

Thereto, Relating to Additional 

Voluntary Submissions by Issuers to 

the MSRB’s Electronic Municipal 

Market Access System (EMMA®) 

May 26, 2010. 

I. Introduction 

On July 14, 2009, the Municipal 

Securities Rulemaking Board (‘‘MSRB’’), 

filed with the Securities and Exchange 

Commission (‘‘Commission’’ or ‘‘SEC’’), 

pursuant to Section 19(b)(1) of the 

Securities Exchange Act of 1934 

(‘‘Exchange Act’’),1 and Rule 19b–4 

thereunder,2 a proposed rule change 

relating to additional voluntary 

submissions by issuers to the MSRB’s 

Electronic Municipal Market Access 

System (‘‘EMMA’’). The proposed rule 

change was published for comment in 

the Federal Register on July 22, 2009.3

The Commission received 27 comment 


sroberts on DSKD5P82C1PROD with NOTICES