Item 7.01. Regulation FD Disclosure.
As part of the annual governance review by First Eagle Alternative Capital BDC, Inc.s (the Companys) Board of Directors (the
Board) in 2017, the Board reviewed the Companys Second Amended Certificate of Incorporation (the Second Amended Certificate) to confirm that the provisions therein are consistent with the Delaware General Corporation
Law (DGCL). In connection with such review, the Board determined that it was necessary to clarify the procedures by which a director may be removed by a stockholder vote and whether a director may be removed by the Board by adopting an
amendment removing Section 5.4 from our Second Amended Certificate.
At the Companys 2018 annual meeting of stockholders (the 2018 Annual
Meeting), stockholders were asked to approve amendments to the certificate of incorporation to revise Section 5.4 in order to remove any inconsistency with the DGCL. Although the proposed amendment did not receive a vote of the requisite
majority of outstanding shares necessary to amend the Second Amended Certificate under Delaware law, the Company stated its proxy statement that if the amendment was not approved our stockholders will continue to be entitled to the ability to
remove any or all of our directors by a vote of a majority of shares entitled to vote at an election of directors. The Companys shelf registration statement on Form N-2 filed on May 22, 2020 also explained that [u]nder
Delaware law and our certificate of incorporation, directors may be removed with or without cause by the affirmative vote of the holders of a majority of the then outstanding shares of our capital stock entitled to vote.
The Company filed a Third Amended and Restated Certificate of Incorporation (the Third Amended Certificate) on August 3, 2020 to facilitate
its name change from THL Credit, Inc. to First Eagle Alternative Capital BDC, Inc. The Third Amended Certificate was otherwise identical to the Second Amended Certificate.
Stockholder Joseph Tola (Plaintiff) filed a lawsuit on October 20, 2020 in the Court of Chancery of the State of Delaware against the Company
and the Board on behalf of a putative class of the Companys stockholders. The lawsuit is captioned Joseph Tola v. First Eagle Alternative Capital BDC, Inc., C.A. No. 2020-0905-SG (Del. Ch.). Plaintiff
sought a declaratory judgment that Section 5.4 of the Third Amended Certificate violated Section 141(k) of the DGCL and other principles of Delaware law. Plaintiff filed a motion for summary judgment on November 10, 2020. Since the
Board had already identified this issue and sought to remedy it through the 2018 Annual Meeting proxy process, the Company believes the claims in this lawsuit lack merit and filed a cross-motion for summary judgment on November 19, 2020.
Although the Company believes that no further action was required or necessary, on December 3, 2020, the Company nonetheless, in order to avoid the
uncertainty and expense of litigation, stated in a recent amendment to its shelf registration statement on Form N-2 to provide additional clarity that the Board has determined that it will not enforce
[the provisions of Section 5.4 of the Third Amended Certificate] because they are inconsistent with Delawares corporation law. Therefore, our stockholders have the right to remove any or all of our directors by a vote of a majority of the
outstanding shares of our capital stock entitled to vote and have the right to amend our bylaws as provided pursuant to Delawares corporation law and our bylaws, and our continuing directors will not have the right to remove other
directors. The Company further informed Plaintiff that it intends to again submit a proposal to stockholders to remove Section 5.4 at its 2021 annual meeting.
Plaintiff filed a stipulated dismissal of the lawsuit on December 31, 2020, which was granted on January 4, 2021. The lawsuit has now been
dismissed. The Company has agreed to pay $50,000.00 to Plaintiffs counsel for attorneys fees and expenses in full satisfaction of Plaintiffs claim for attorneys fees and expenses in the action brought on behalf of the
Companys stockholders. The Court has not been asked to review, and will pass no judgment on, the payment of attorneys fees or their reasonableness.
Further information about the proposed amendment will be provided in the Companys forthcoming proxy statement for the 2021 annual meeting of
stockholders.
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