UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

SCHEDULE 13D/A

(Amendment No. 6)

 

Under the Securities Exchange Act of 1934

 

MVC CAPITAL, INC.

 

 

(Name of Issuer)

 

Common Stock, $0.01 par value

 

 

(Title of Class of Securities)

 

553829102

 

 

(CUSIP Number)

 

Wynnefield Partners Small Cap Value, L.P I.

450 Seventh Avenue, Suite 509

New York, New York 10123

Attention: Mr. Nelson Obus

 

Copy to:

Jeffrey S. Tullman, Esq.

Kane Kessler, P.C.

666 Third Ave, 23rd Floor

New York, New York 10017

(212) 519-5101

 


(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

 

August 10, 2020

 

 

(Date of Event which requires Filing of this Statement)

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box ¨

 

 

 

 

 

1

NAME OF REPORTING PERSON

S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON

 

Wynnefield Partners Small Cap Value, L.P. I 13-3953291

 

2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)

(a) ¨

 

(b) x

3

SEC USE ONLY

 

 

4

SOURCE OF FUNDS*

 

WC

5

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)

 

¨

6

CITIZENSHIP OR PLACE OF ORGANIZATION

 

Delaware

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

7

SOLE VOTING POWER

 

615,649                     (See Item 5)

8

SHARED VOTING POWER

 

0                                (See Item 5)

9

SOLE DISPOSITIVE POWER

 

615,649                     (See Item 5)

10

SHARED DISPOSITIVE POWER

 

0                                (See Item 5)

11

 

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

615,649                               (See Item 5)

12

 

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*

 

¨

13

 

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

3.5%

14

 

TYPE OF REPORTING PERSON*

 

PN

       

 

 

 

 

1

NAME OF REPORTING PERSON

S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON

 

Wynnefield Partners Small Cap Value, L.P. 13-3688497

 

2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)

(a) ¨

 

(b) x

3

SEC USE ONLY

 

 

4

SOURCE OF FUNDS*

 

WC

5

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)

 

¨

6

CITIZENSHIP OR PLACE OF ORGANIZATION

 

Delaware

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

7

SOLE VOTING POWER

 

619,083                     (See Item 5)

8

SHARED VOTING POWER

 

0                                (See Item 5)

9

SOLE DISPOSITIVE POWER

 

619,083                     (See Item 5)

10

SHARED DISPOSITIVE POWER

 

0                                (See Item 5)

11

 

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

619,083                               (See Item 5)

12

 

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*

 

¨

13

 

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

3.5%

14

 

TYPE OF REPORTING PERSON*

 

PN

       

 

 

 

 

1

NAME OF REPORTING PERSON

S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON

 

Wynnefield Small Cap Value Offshore Fund, Ltd. (No IRS Identification No.)

2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)

(a) ¨

 

(b) x

3

SEC USE ONLY

 

 

4

SOURCE OF FUNDS*

 

WC

5

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)

 

¨

6

CITIZENSHIP OR PLACE OF ORGANIZATION

 

Cayman Islands

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

7

SOLE VOTING POWER

 

289,138                     (See Item 5)

8

SHARED VOTING POWER

 

0                                 (See Item 5)

9

SOLE DISPOSITIVE POWER

 

289,138                     (See Item 5)

10

SHARED DISPOSITIVE POWER

 

0                                (See Item 5)

11

 

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

289,138                             (See Item 5)

12

 

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*

¨

13

 

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

1.6%

14

 

TYPE OF REPORTING PERSON*

 

CO

       

 

 

 

 

 

1

NAME OF REPORTING PERSON

S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON

 

Wynnefield Capital, Inc. Profit Sharing & Money Purchase Plan

2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)

(a) ¨

 

(b) x

3

SEC USE ONLY

 

 

4

SOURCE OF FUNDS*

 

N/A

5

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)

 

¨

6

CITIZENSHIP OR PLACE OF ORGANIZATION

 

Delaware

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

7

SOLE VOTING POWER

 

35,400         (See Item 5)

8

SHARED VOTING POWER

 

0                  (See Item 5)

9

SOLE DISPOSITIVE POWER

 

35,400         (See Item 5)

10

SHARED DISPOSITIVE POWER

 

0                  (See Item 5)

11

 

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

35,400                    (See Item 5)

12

 

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*

 

¨

13

 

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

0.2%

14

 

TYPE OF REPORTING PERSON*

 

EP

       

 

 

 

1

NAME OF REPORTING PERSON

S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON

 

Wynnefield Capital Management, LLC 13-4018186

2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)

(a) ¨

 

(b) x

3

SEC USE ONLY

 

 

4

SOURCE OF FUNDS*

 

N/A

5

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)

 

¨

6

CITIZENSHIP OR PLACE OF ORGANIZATION

 

New York

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

7

SOLE VOTING POWER

 

1,234,732    (See Item 5)

8

SHARED VOTING POWER

 

0                  (See Item 5)

9

SOLE DISPOSITIVE POWER

 

1,234,732    (See Item 5)

10

SHARED DISPOSITIVE POWER

 

0                  (See Item 5)

11

 

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

1,234,732                 (See Item 5)

12

 

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*

 

¨

13

 

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

7.0%

14

 

TYPE OF REPORTING PERSON*

 

OO

       

 

 

  

1

NAME OF REPORTING PERSON

S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON

 

Wynnefield Capital, Inc. 13-3688495

2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)

(a) ¨

 

(b) x

3

SEC USE ONLY

 

 

4

SOURCE OF FUNDS*

 

N/A

5

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)

 

¨

6

CITIZENSHIP OR PLACE OF ORGANIZATION

 

Delaware

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

7

SOLE VOTING POWER

 

289,138       (See Item 5)

8

SHARED VOTING POWER

 

0                  (See Item 5)

9

SOLE DISPOSITIVE POWER

 

289,138       (See Item 5)

10

SHARED DISPOSITIVE POWER

 

0                  (See Item 5)

11

 

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

289,138                    (See Item 5)

12

 

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*

 

¨

13

 

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

1.6%

14

 

TYPE OF REPORTING PERSON*

 

CO

       

 

 

 

1

NAME OF REPORTING PERSON

S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON

 

Nelson Obus

2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)

(a) ¨

 

(b) x

3

SEC USE ONLY

 

 

4

SOURCE OF FUNDS*

 

N/A

5

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)

 

¨

6

CITIZENSHIP OR PLACE OF ORGANIZATION

 

United States

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

7

SOLE VOTING POWER

 

0                (See Item 5)

8

SHARED VOTING POWER

 

1,559,270  (See Item 5)

9

SOLE DISPOSITIVE POWER

 

0                (See Item 5)

10

SHARED DISPOSITIVE POWER

 

1,559,270  (See Item 5)

11

 

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

1,559,270                 (See Item 5)

12

 

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*

 

¨

13

 

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

8.8%

14

 

TYPE OF REPORTING PERSON*

 

IN

       

 

 

 

1

NAME OF REPORTING PERSON

S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON

 

Joshua Landes

2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)

(a)  ¨

 

(b)  x

3

SEC USE ONLY

 

 

4

SOURCE OF FUNDS*

 

N/A

5

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)

 

¨

6

CITIZENSHIP OR PLACE OF ORGANIZATION

United States

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

7

SOLE VOTING POWER

 

0                (See Item 5)

8

SHARED VOTING POWER

 

1,559,270  (See Item 5)

9

SOLE DISPOSITIVE POWER

 

0                (See Item 5)

10

SHARED DISPOSITIVE POWER

 

1,559,270  (See Item 5)

11

 

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

1,559,270 (See Item 5)

12

 

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*

 

¨       

13

 

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

8.8%

14

 

TYPE OF REPORTING PERSON*

 

IN

       

 

 

 

 

 

 

Item 1. Security and Issuer.

 

This Amendment No. 6 amends the Statement of Beneficial Ownership on Schedule 13D originally filed with the Securities and Exchange Commission (the “Commission”) on June 1, 2016, as amended by Amendment No. 1, filed on April 27, 2019, Amendment No. 2 filed on January 22, 2020, Amendment No. 3 filed on April 21, 2020, Amendment No. 4 filed on April 27, 2020, and Amendment No. 5 filed on June 1, 2020 (collectively the “Schedule 13D”) by the Wynnefield Reporting Persons (as defined in the Schedule 13D) with respect to the shares of common stock, $0.01 par value per share (the “Common Stock”) of MVC Capital, Inc., a Delaware corporation (the “Issuer”). The Issuer maintains its principal executive office at 287 Bowman Avenue, 2nd Floor, Purchase, NY 10577.

 

Item 3. Source and Amount of Funds or Other Consideration.

 

Item 3 of the Schedule 13D is hereby amended and restated as follows:

 

The securities reported in this Schedule 13D as directly beneficially owned by the Wynnefield Reporting Persons were acquired with funds of approximately $12,260,184 (including brokerage commissions). All such funds were provided from the working capital or personal funds of the Wynnefield Reporting Persons who directly beneficially own such securities.

 

Item 4. Purpose of the Transaction

 

Item 4 of the Schedule 13D is hereby amended by the addition of the following:

 

On August 10, 2020, each of Wynnefield Partners, Wynnefield Partners I, Wynnefield Offshore and the Plan (the “Voting Agreement Parties”) entered into an agreement (the “Voting Agreement”) with Barings BDC, Inc., a Maryland corporation (“Parent”), in connection with that certain Agreement and Plan of Merger (the “Merger Agreement”) by and between the Issuer, Parent, Mustang Acquisition Sub, Inc., a Delaware corporation and wholly owned subsidiary of Parent (“Acquisition Sub”) and Barings LLC, a Delaware limited liability company, providing for, among other things, the merger of Acquisition Sub with and into the Issuer pursuant to the terms and conditions of the Merger Agreement (the “Merger”). Capitalized terms used herein and not otherwise defined in this Item 4 shall have the meanings assigned to them in the Voting Agreement.

 

Pursuant to the Voting Agreement, the Voting Agreement Parties agreed, among other things, to vote the Shares beneficially owned by the Voting Agreement Parties in favor of the adoption of the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement, on the terms and subject to the conditions set forth in the Voting Agreement. The Voting Agreement, subject to certain limitations, will terminate upon the earlier of (i) the effective time of the Merger, (ii) the date on which the Merger Agreement is validly terminated in accordance with its terms, (iii) the termination of the Voting Agreement by mutual written consent of the parties and (iv) a Company Adverse Recommendation Change (as defined in the Merger Agreement). In addition, under the terms of the Voting Agreement, the Voting Agreement Parties agreed (i) from the Effective Date until December 15, 2020, not to Transfer Beneficial Ownership in the Shares; and (ii) after December 15, 2020 and until the Expiration Time (if applicable), not to Transfer a number of Shares, individually or in the aggregate, that is greater than two-thirds (2/3rds) of the number of Shares Beneficially Owned by Stockholder as of December 15, 2020.

 

A copy of the Voting Agreement is attached to this Schedule 13D as Exhibit 8, and is incorporated herein by reference as if fully set forth herein. The foregoing summary description of the Voting Agreement is not intended to be complete and is qualified in its entirety by the complete text of the Voting Agreement. In addition, reference is made to the Merger Agreement, which is attached as Exhibit 2.1 to the Issuer’s Current Report on Form 8-K filed with the Securities and Exchange Commission on August 11, 2020.

 

 

 

 

Item 5. Interest in Securities of the Issuer.

 

Item 5 of the Schedule 13D is hereby amended and restated as follows:

 

(a), (b) and (c) As of August 10, 2020, the Wynnefield Reporting Persons beneficially owned in the aggregate 1,559,270 shares of Common Stock, constituting approximately 8.8% of the outstanding shares of Common Stock. The percentage of shares of Common Stock reported as being beneficially owned by the Wynnefield Reporting Persons is based upon 17,725,118 shares outstanding as of March 9, 2020, as set forth in the Issuer’s Quarterly Report on Form 10-Q for the period ended April 30, 2020, filed with the Securities and Exchange Commission (the “Commission”) on June 9, 2020.

 

The following table sets forth certain information with respect to shares of Common Stock directly beneficially owned by the Wynnefield Reporting Persons listed below:

 

Name  Number of Common Stock   Percentage of Outstanding
Common Stock
 
Wynnefield Partners I   615,649    3.5%
Wynnefield Partners   619,083    3.5%
Wynnefield Offshore   289,138    1.6%
Plan   35,400    0.2%

 

WCM is the sole general partner of Wynnefield Partners and Wynnefield Partners I and, accordingly, may be deemed to be the indirect beneficial owner (as that term is defined under Rule 13d-3 under the Exchange Act) of the Common Stock that Wynnefield Partners and Wynnefield Partners I beneficially own. WCM, as the sole general partner of Wynnefield Partners and Wynnefield Partners I, has the sole power to direct the voting and disposition of the Common Stock that Wynnefield Partners and Wynnefield Partners I beneficially own. Messrs. Obus and Landes are the co-managing members of WCM and, accordingly, each of Messrs. Obus and Landes may be deemed to be the indirect beneficial owner (as that term is defined under Rule 13d-3 under the Exchange Act) of the Common Stock that WCM may be deemed to beneficially own. Each of Messrs. Obus and Landes, as co-managing members of WCM, share the power to direct the voting and disposition of the shares of Common Stock that WCM may be deemed to beneficially own.

 

WCI is the sole investment manager of Wynnefield Offshore and, accordingly, may be deemed to be the indirect beneficial owner (as that term is defined under Rule 13d-3 under the Exchange Act) of the Common Stock that Wynnefield Offshore beneficially owns. WCI, as the sole investment manager of Wynnefield Offshore, has the sole power to direct the voting and disposition of the Common Stock that Wynnefield Offshore beneficially owns. Messrs. Obus and Landes are executive officers of WCI and, accordingly, each may be deemed to be the indirect beneficial owner (as that term is defined under Rule 13d-3 under the Exchange Act) of the Common Stock that WCI may be deemed to beneficially own. Messrs. Obus and Landes, as executive officers of WCI, share the power to direct the voting and disposition of the shares of Common Stock that WCI may be deemed to beneficially own.

 

 

 

 

The Plan is an employee profit sharing plan. Messrs. Obus and Landes are the co-trustees of the Plan and accordingly, Messrs. Obus and Landes may be deemed to be the indirect beneficial owner (as that term is defined under Rule 13d-3 under the Exchange Act) of the shares of Common Stock that the Plan may be deemed to beneficially own. Each of Messrs. Obus and Landes, as the trustees of the Plan, shares with the other the power to direct the voting and disposition of the shares of Common Stock beneficially owned by the Plan.

 

Beneficial ownership of the Common Stock shown on the cover pages of and set forth elsewhere in this Schedule 13D for each member of the Wynnefield Reporting Persons assumes that they have not formed a group for purposes of Section 13(d)(3) under the Exchange Act, and Rule 13d-5(b)(1) promulgated thereunder. If the members of the Wynnefield Reporting Persons were deemed to have formed a group for purposes of Section 13(d)(3) and Rule 13d-5(b)(1), the group would be deemed to own beneficially (and may be deemed to have shared voting and dispositive power over) in the aggregate 1,559,270 shares of Common Stock, constituting approximately 8.8% of the outstanding shares of Common Stock. The percentage of shares of Common Stock reported as being beneficially owned by the Wynnefield Reporting Persons is 17,725,118 shares outstanding as of June 9, 2020, as set forth in the Issuer’s Quarterly Report on Form 10-Q for the period ended April 30, 2020, filed with the Commission on June 9, 2020.

 

The filing of this Schedule 13D and any future amendment by the Wynnefield Reporting Persons, and the inclusion of information herein and therein with respect to WCM, WCI and Messrs. Obus and Landes, shall not be considered an admission that any of such persons, for the purpose of Section 16(b) of the Exchange Act, are the beneficial owners of any shares in which such persons do not have a pecuniary interest. Each of WCM, WCI and Messrs. Obus and Landes disclaims any beneficial ownership of the shares covered by this Schedule 13D.

 

The Wynnefield Reporting Persons have acquired shares of Common Stock during the last 60 days as follows:

 

Name  Date  Number of Shares   Price 
Wynnefield Partners I  7/13/2020   7,028   $6.15 
Wynnefield Partners I  7/15/2020   4,520   $6.23 
Wynnefield Partners  7/13/2020   7,028   $6.15 
Wynnefield Partners  7/15/2020   1,605   $6.23 

 

(d) and (e). Not Applicable.

 

Item 6. Contracts, Arrangements, Understandings or Relationships with respect to Securities of the Issuer

 

Item 6 of the Schedule 13D is hereby amended by the addition of the following:

 

The information set forth in Item 4 of the Schedule 13D is incorporated by reference herein.

 

Item 7. Material to be Filed as Exhibits.

 

Item 7 of the Schedule 13D is hereby amended by the addition of the following:

 

Exhibit 99.8  

Voting Agreement dated August 10, 2020, by and among Barings BDC, Inc. and each of, Wynnefield Partners Small Cap Value, L.P.; Wynnefield Partners Small Cap Value, L.P. I; Wynnefield Small Cap Value Offshore Fund, Ltd.; and Wynnefield Capital, Inc. Profit Sharing & Money Purchase Plan.

 

 

 

 

 

SIGNATURE

 

After reasonable inquiry and to the best of their knowledge and belief, the undersigned certify that the information set forth in this Schedule 13D is true, complete and correct.

 

  Dated: August 14, 2020
   
  WYNNEFIELD PARTNERS SMALL CAP VALUE, L.P. I
   
  By: Wynnefield Capital Management, LLC,
    its General Partner
   
  By:  /s/ Nelson Obus
    Nelson Obus, Co-Managing Member
   
  WYNNEFIELD PARTNERS SMALL CAP VALUE, L.P.
   
  By: Wynnefield Capital Management, LLC,
    its General Partner
   
  By: /s/ Nelson Obus
    Nelson Obus, Co-Managing Member
   
  WYNNEFIELD SMALL CAP VALUE OFFSHORE FUND, LTD.
   
  By: Wynnefield Capital, Inc.,
    its Investment Manager
   
  By: /s/ Nelson Obus
    Nelson Obus, President
   
  WYNNEFIELD CAPITAL INC. PROFIT SHARING & MONEY PURCHASE PLAN
   
  By: /s/ Nelson Obus
    Nelson Obus, Co-Trustee
   
  WYNNEFIELD CAPITAL MANAGEMENT, LLC
   
  By: /s/ Nelson Obus
    Nelson Obus, Co-Managing Member
   
  WYNNEFIELD CAPITAL, INC.
   
  By: /s/ Nelson Obus
    Nelson Obus, President
   
    /s/ Nelson Obus
    Nelson Obus, Individually
   
    /s/ Joshua Landes
    Joshua Landes, Individually

 

 

 

 

Exhibit 99.8

 

Voting Agreement

 

This Voting Agreement (this "Agreement"), dated as of August 10, 2020 (the “Effective Date”) is entered into by and among the undersigned stockholders (collectively, "Stockholder") of MVC Capital, Inc., a Delaware corporation (the "Company"), Barings BDC, Inc., a Maryland corporation ("Parent"). Parent and Stockholder are each sometimes referred to herein individually as a "Party" and collectively as the "Parties."

 

WHEREAS, concurrently with or following the execution of this Agreement, the Company, Parent, Mustang Acquisition Sub, Inc., a Delaware corporation and wholly owned subsidiary of Parent ("Acquisition Sub"), and Barings LLC, a Delaware limited liability company, have entered, or will enter, into an Agreement and Plan of Merger (as the same may be amended from time to time, the "Merger Agreement"), providing for, among other things, the merger (the "Merger") of Acquisition Sub with and into the Company pursuant to the terms and conditions of the Merger Agreement;

 

WHEREAS, in order to induce Parent to enter into the Merger Agreement, Stockholder is willing to make certain representations, warranties, covenants, and agreements as set forth in this Agreement with respect to the shares of common stock, par value $0.01 per share, of the Company ("Company Common Stock") Beneficially Owned by Stockholder and set forth below Stockholder's signature on the signature page hereto (the "Original Shares" and, together with any additional shares of Company Common Stock pursuant to Section 6 hereof, the "Shares"); and

 

WHEREAS, as a condition to its willingness to enter into the Merger Agreement, Parent has required that Stockholder, and Stockholder has agreed, subject to the limitations herein, to, execute and deliver this Agreement.

 

NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants, and agreements set forth below and for other good and valuable consideration, the receipt, sufficiency, and adequacy of which are hereby acknowledged, the Parties hereto, intending to be legally bound, do hereby agree as follows:

 

1.            Definitions.

 

For purposes of this Agreement, capitalized terms used and not otherwise defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement. When used in this Agreement, the following terms in all of their tenses, cases, and correlative forms shall have the meanings assigned to them in this Section 1.

 

(a)           Beneficially Own” or “Beneficial Ownership” has the meaning assigned to such term in Rule 13d-3 under the Exchange Act, and a Person’s beneficial ownership of securities shall be calculated in accordance with the provisions of such rule (in each case, irrespective of whether or not such rule is actually applicable in such circumstance). For the avoidance of doubt, "Beneficially Own" and "Beneficial Ownership" shall also include record ownership of securities.

 

(b)           "Beneficial Owner" shall mean the Person who Beneficially Owns the referenced securities.

 

2.            Representations of Stockholder.

 

Stockholder represents and warrants to Parent that:

 

(a)           Ownership of Shares. Stockholder: (i) is the Beneficial Owner of all of the Original Shares free and clear of any proxy or voting restriction, other than those created by this Agreement or under applicable federal or state securities laws; and (ii) has the sole and/or shares with its Affiliates voting power over all of the Original Shares. Except pursuant to this Agreement, there are no options, warrants, or other voting rights, agreements, arrangements, or commitments of any character to which Stockholder is a party relating to voting of any of the Original Shares and there are no voting trusts or voting agreements with respect to the Original Shares.

 

(b)           Disclosure of All Shares Owned. Stockholder does not Beneficially Own any shares of Company Common Stock other than the Original Shares.

 

 

 

 

(c)           Power and Authority; Binding Agreement. Stockholder has full power and authority and legal capacity to enter into, execute, and deliver this Agreement and to perform fully Stockholder's obligations hereunder. This Agreement has been duly and validly executed and delivered by Stockholder and constitutes the legal, valid, and binding obligation of Stockholder, enforceable against Stockholder in accordance with its terms except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally.

 

(d)           No Conflict. Except as to compliance with Section 13 and Section 16 of the Securities Exchange Act of 1934, as amended (“Exchange Act”), the execution and delivery of this Agreement by Stockholder does not, and the consummation of the transactions contemplated hereby and the compliance with the provisions hereof will not, conflict with or violate any Law applicable to Stockholder or result in any breach of or violation of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration, or cancellation of, or result in the creation of any Lien on any of the Shares pursuant to, any agreement or other instrument or obligation including organizational documents, if applicable, binding upon Stockholder or any of the Shares.

 

(e)           No Consents. No consent, approval, Order, or authorization of, or registration, declaration, or filing with, any Governmental Authority or any other Person on the part of Stockholder is required in connection with the valid execution and delivery of this Agreement, except for disclosures required pursuant to the Exchange Act. No consent of Stockholder's spouse is necessary under any "community property" or other laws in order for Stockholder to enter into and perform its obligations under this Agreement.

 

(f)           No Litigation. There is no Proceeding pending against, or, to the knowledge of Stockholder, threatened against or affecting, Stockholder that could reasonably be expected to materially impair or materially adversely affect the ability of Stockholder to perform Stockholder’s obligations hereunder or to consummate the transactions contemplated by this Agreement on a timely basis.

 

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3.            Agreement to Vote Shares and Approve. Stockholder irrevocably and unconditionally agrees during the term of this Agreement, at any annual or special meeting of the Company called with respect to the following matters, and at every adjournment or postponement thereof, and on every action or approval by written consent or consents of the Company stockholders with respect to any of the following matters, to vote or cause the holder of record to vote the Shares: (i) in favor of (1) the adoption of the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement, and (2) any proposal to adjourn or postpone such meeting of stockholders of the Company to a later date if there are not sufficient votes to approve the Merger; and (ii) against (1) any Competing Proposal, Alternative Acquisition Agreement, or any of the transactions contemplated thereby, (2) any action, proposal, transaction or agreement which could reasonably be expected to result in a breach of any covenant, representation or warranty, or any other obligation or agreement of the Company under the Merger Agreement or of Stockholder under this Agreement and (3) any action, proposal, transaction, or agreement that could reasonably be expected to impede, interfere with, delay, discourage, adversely affect, or inhibit the timely consummation of the Merger or the fulfillment of Parent's, the Company's, or Acquisition Sub's conditions under the Merger Agreement or change in any manner the voting rights of any class of shares of the Company (including any amendments to the Company organizational documents); provided, however, that, notwithstanding the foregoing, the Stockholder shall not be required to vote in favor of the adoption of the Merger Agreement, the Merger or the other transactions contemplated by the Merger Agreement or taking any other action set forth in sections (i) and (ii) herein at any meeting of the stockholders of the Company or by written consent of the stockholders of the Company if, and only if, (x) in response to an Intervening Event, a Company Adverse Recommendation Change is made after the date of this Agreement and prior to the Company Stockholders’ Meeting in accordance with Section 6.6 of the Merger Agreement and (y) the Company Stockholders’ Meeting occurs as contemplated by Section 6.3(b) of the Merger Agreement.

 

4.            No Voting Trusts or Other Arrangement. Stockholder agrees that during the term of this Agreement Stockholder will not, and will not permit any entity under Stockholder's control to, deposit any of the Shares in a voting trust, grant any proxies with respect to the Shares, or subject any of the Shares to any arrangement with respect to the voting of the Shares other than agreements entered into with Parent.

 

5.            Transfer and Encumbrance. Stockholder agrees that (i) from the Effective Date until December 15, 2020, Stockholder will not, directly or indirectly, transfer, sell, offer, exchange, assign, pledge, convey any legal or Beneficial Ownership interest in or otherwise dispose of (by merger (including by conversion into securities or other consideration), by tendering into any tender or exchange offer, by testamentary disposition, by operation of law or otherwise), or encumber ("Transfer") any of the Shares or enter into any contract, option, or other agreement with respect to, or consent to, a Transfer of, any of the Shares or Stockholder's voting or economic interest therein and (ii) after December 15, 2020 and until the Expiration Time (if applicable), Stockholder will not Transfer a number of Shares, individually or in the aggregate, that is greater than two-thirds (2/3rds) of the number of Shares Beneficially Owned by Stockholder as of December 15, 2020. Any attempted Transfer of Shares or any interest therein in violation of this Section 5 shall be null and void. This Section 5 shall not prohibit a Transfer of the Shares by Stockholder to any Affiliate of the Stockholder or any member of Stockholder's immediate family, or to a trust for the benefit of Stockholder or any member of Stockholder's immediate family, or upon the death of Stockholder or to an Affiliate of Stockholder; provided, that a Transfer referred to in this sentence shall be permitted only if, as a precondition to such Transfer, the transferee agrees in a writing, reasonably satisfactory in form and substance to Parent, to be bound by all of the terms of this Agreement. For avoidance of doubt, a Transfer permitted by clause (ii) of this Section 5 shall not be conditioned on the transferee agreeing in writing to be bound by the terms of this Agreement.

 

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6.            Additional Shares. Stockholder agrees that all shares of Company Common Stock that Stockholder purchases, acquires the right to vote, or otherwise acquires Beneficial Ownership of after the execution of this Agreement and prior to the Expiration Time shall be subject to the terms and conditions of this Agreement and shall constitute Shares for all purposes of this Agreement. In the event of any stock split, stock dividend, merger, reorganization, recapitalization, reclassification, combination, exchange of shares, or the like of the capital stock of the Company affecting the Shares, the terms of this Agreement shall apply to the resulting securities and such resulting securities shall be deemed to be "Shares" for all purposes of this Agreement.

 

7.            Waiver of Appraisal and Dissenters' Rights and Certain Other Actions.

 

(a)            Waiver of Appraisal and Dissenters' Rights. To the extent permitted by Law, Stockholder hereby irrevocably and unconditionally waives, and agrees not to assert or perfect, any rights of appraisal or rights to dissent in connection with the Merger that Stockholder may have by virtue of ownership of the Shares.

 

(b)            Waiver of Certain Other Actions. Stockholder hereby agrees not to commence or participate in, and to take all actions necessary to opt out of any class in any class action with respect to, any Proceeding, derivative or otherwise, against the Parent, the Company, or any of their respective Subsidiaries or successors: (a) challenging the validity of, or seeking to enjoin or delay the operation of, any provision of this Agreement or the Merger Agreement (including any claim seeking to enjoin or delay the Closing; or (b) to the fullest extent permitted under Law, alleging a breach of any duty of the Company Board in connection with the Merger Agreement, this Agreement, or the transactions contemplated thereby or hereby.

 

8.            Termination. This Agreement and all obligations of the Parties shall terminate upon the earliest to occur of (the "Expiration Time"): (a) the Effective Time; (b) the date on which the Merger Agreement is validly terminated in accordance with its terms (including after any extension thereof); (c) the termination of this Agreement by mutual written consent of the Parties; or (d) a Company Adverse Recommendation Change. Nothing in this Section 8 shall relieve or otherwise limit the liability of any Party for any intentional breach of this Agreement prior to such termination.

 

9.            No Solicitation. Subject to Section 10, Stockholder shall not, and shall cause its Subsidiaries not to, and shall use it reasonable best efforts to cause its Affiliates' and Representatives not to take any action the Company is otherwise prohibited from taking under Section 6.6 of the Merger Agreement. Notwithstanding the foregoing, Stockholder may (and may permit its Affiliates and its and its Affiliates’ Representatives to: participate in discussions and negotiations with any Person making a Competing Proposal (or its Representatives) with respect to such Competing Proposal if: (i) the Company is engaging in discussions or negotiations with such Person in accordance with Section 6.6 of the Merger Agreement; and (ii) Stockholder’s negotiations and discussions are in conjunction with and ancillary to the Company’s discussions and negotiations.

 

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10.            Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in the Company and/or the Parent any direct or indirect ownership or incidence of ownership of or with respect to the Shares. All rights, ownership and economic benefits of and relating to the Shares shall remain vested in and belong to the Stockholder, and neither the Company nor the Parent shall have the authority to direct the Stockholder in the voting or disposition of any Shares, except as otherwise expressly provided herein.

 

11.            Further Assurances. Stockholder agrees, from time to time, and without additional consideration, to execute and deliver such additional proxies, documents, and other instruments and to take all such further action as Parent may reasonably request to consummate and make effective the transactions contemplated by this Agreement.

 

12.            Most Favored Nations. The Parent hereby represents and warrants that as of the date hereof, the Parent has not entered into a voting agreement with any other Person that is a Beneficial Owner of shares of the Company’s Common Stock that includes terms, rights or other benefits that are more favorable in the aggregate to such other Person than the terms, rights and benefits in favor of the Stockholder under this Agreement, and the Parent will not amend in any material respect the terms, rights or benefits in, or waive any material obligation under, any of the agreements with such other Persons unless, in any such case, the Stockholder has been offered in writing the opportunity to concurrently receive the benefits of any such terms, rights and benefits or waiver to the extent applicable to this Agreement.

 

13.            Specific Performance. Each Party hereto acknowledges that it will be impossible to measure in money the damage to the other Party if a Party hereto fails to comply with any of the obligations imposed by this Agreement, that every such obligation is material and that, in the event of any such failure, the other Party will not have an adequate remedy at Law or damages. Accordingly, each Party hereto agrees that injunctive relief or other equitable remedy, in addition to remedies at Law or damages, is the appropriate remedy for any such failure and will not oppose the seeking of such relief on the basis that the other Party has an adequate remedy at Law. Each Party hereto agrees that it will not seek, and agrees to waive any requirement for, the securing or posting of a bond in connection with the other Party's seeking or obtaining such equitable relief.

 

14.            Entire Agreement. This Agreement (including the exhibits, annexes and appendices hereto) constitutes the entire agreement, and supersedes all other prior agreements and understandings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof.

 

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15.            Notices. All notices, consents and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by hand delivery (with concurrent email delivery), by prepaid overnight courier (providing written proof of delivery) (with concurrent email delivery) or by confirmed electronic mail, addressed as follows:

 

if to Parent:

 

Barings BDC, Inc.

300 South Tryon Street, Suite 2500
Charlotte, North Carolina
Email:           jonathan.bock@barings.com

jonathan.landsberg@barings.com
Attention:     Jonathan Bock

Jonathan Landsberg

 

with a copy (which shall not constitute notice) to:

 

Dechert LLP
1900 K Street NW
Washington, DC 20006
Phone:          (202) 261-3300
Email:           harry.pangas@dechert.com

gregory.schernecke@dechert.com
Attention:      Harry Pangas, Esq.

Gregory A. Schernecke, Esq.

 

If to Stockholder:

 

Wynnefield Capital, Inc,

450 Seventh Avenue, Suite 509

New York, New York 10123

Phone:             

Email:                nobus@wynncap.com

Attention: Mr.    Nelson Obus

 

Copy to:

 

Kane Kessler, P.C.
666 Third Avenue, 23rd Floor
New York, NY 10022

Phone:             (212) 541-6222
Email:              jtullman@kanekessler.com
Attention:        Jeffrey S. Tullman, Esq.

 

or to such other address, electronic mail address for a party as shall be specified in a notice given in accordance with this Section 15; provided that any notice received by facsimile transmission or electronic mail or otherwise at the addressee’s location on any Business Day after 5:00 p.m. (addressee’s local time) or on any day that is not a Business Day shall be deemed to have been received at 9:00 a.m. (addressee’s local time) on the next Business Day; provided, further, that notice of any change to the address or any of the other details specified in or pursuant to this Section 15 shall not be deemed to have been received until, and shall be deemed to have been received upon, the later of the date specified in such notice or the date that is five (5) Business Days after such notice would otherwise be deemed to have been received pursuant to this Section 15.

 

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16.            Miscellaneous.

 

(a)            Governing Law; Jurisdiction; Waiver of Jury Trial. This Agreement shall be governed and construed in accordance with the Laws of the State of Delaware applicable to contracts made and performed entirely within such state, without regard to any applicable conflicts of law principles that would cause the application of the Laws of another jurisdiction, except to the extent governed by the Investment Company Act, in which case the latter shall control. The Parties hereto agree that any Proceeding brought by any Party to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby shall be brought in the Delaware Court of Chancery, or if jurisdiction over the matter is vested exclusively in federal courts, the United States District Court for the District of Delaware, and the appellate courts to which orders and judgments therefore may be appealed (collectively, the “Acceptable Courts”). Each of the Parties hereto submits to the jurisdiction of any Acceptable Court in any Proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby, and hereby irrevocably waives the benefit of jurisdiction derived from present or future domicile or otherwise in such Proceeding. Each Party hereto irrevocably waives, to the fullest extent permitted by Law, any objection that it may now or hereafter have to the laying of the venue of any Proceeding in any such Acceptable Court or that any such Proceeding brought in any such Acceptable Court has been brought in an inconvenient forum. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY. Each Party hereto (a) certifies that no representative of any other Party has represented, expressly or otherwise, that such other Party would not, in the event of any action, suit or proceeding, seek to enforce the foregoing waiver, (b) certifies that it makes this waiver voluntarily and (c) acknowledges that it and the other Parties hereto have been induced to enter into this Agreement, by, among other things, the mutual waiver and certifications in this Section 16(a).

 

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(b)            Expenses. All costs and expenses incurred in connection with this Agreement shall be paid by the Party incurring such cost or expense, whether or not the Merger is consummated.

 

(c)            Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void, unenforceable or against its regulatory policy, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.

 

(d)            Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument. Delivery of an executed signature page to this Agreement by electronic transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.

 

(e)            Section Headings. All section headings in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

 

(f)            Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the Parties hereto (whether by operation of Law or otherwise) without the prior written consent of the other Parties. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the Parties and their respective permitted successors and assigns. Any attempted assignment in violation of this Section 16(f) shall be null and void.

 

(g)           No Third-Party Beneficiaries. This Agreement is not intended to and shall not confer upon any Person other than the Parties hereto any rights or remedies hereunder.

 

[Remainder of page intentionally left blank; signature page follows.]

 

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IN WITNESS WHEREOF, the Parties hereto have executed and delivered this Agreement as of the date first written above.

 

  BARINGS BDC, INC.
   
  By /s/Jonathan Bock
  Name:   Jonathan Bock
  Title: Chief Financial Officer
   

 

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IN WITNESS WHEREOF, the Parties hereto have executed and delivered this Agreement as of the date first written above.

 

WYNNEFIELD PARTNERS SMALL CAP VALUE, L.P. I  WYNNEFIELD PARTNERS SMALL CAP VALUE, L.P.
    
By: Wynnefield Capital Management, LLC,  By: Wynnefield Capital Management, LLC,
  its General Partner    its General Partner
    
By: /s/ Nelson Obus  By:  /s/ Nelson Obus
  Name: Nelson Obus    Name: Nelson Obus
  Title: Co-Managing Member    Title: Co-Managing Member
    
Number of Shares of Company Common Stock Beneficially Owned as of the date of this Agreement: 615,649  Number of Shares of Company Common Stock Beneficially Owned as of the date of this Agreement: 619,083

 

WYNNEFIELD PARTNERS SMALL CAP VALUE OFFSHORE FUND, LTD.   WYNNEFIELD CAPITAL, INC. PROFIT SHARING & MONEY PURCHASE PLAN

 

By: Wynnefield Capital, Inc,    
  its Investment Manager    

    By:  /s/ Nelson Obus
      Name: Nelson Obus
      Title: Co-Trustee

 

By:/ s/ Nelson Obus    
  Name: Nelson Obus    
  Title: Co-Managing Member    
     
Number of Shares of Company Common Stock Beneficially Owned as of the date of this Agreement: 289,138   Number of Shares of Company Common Stock Beneficially Owned as of the date of this Agreement: 35,400

 

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