UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
10-K/A
(Amendment
No. 1)
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x
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ANNUAL
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
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For
the fiscal year ended December 31, 2008
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o
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TRANSITION
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
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For
the transition period from
to
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Commission
File No. 814-00735
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Kohlberg
Capital Corporation
(Exact
name of Registrant as specified in its charter)
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Delaware
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20-5951150
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(State
or other jurisdiction of
incorporation
or organization)
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(I.R.S.
Employer
Identification
Number)
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295
Madison Avenue, 6th Floor
New
York, New York 10017
(Address
of principal executive offices)
(212)
455-8300
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(Registrant’s
telephone number, including area code)
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Securities
registered pursuant to Section 12(b) of the Act:
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Title
of
each
class
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Name
of exchange on which registered
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Common
Shares, par value $0.01 per share
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The
NASDAQ Global Select
Market
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Securities
registered pursuant to Section 12(g) of the Act: None
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Indicate
by check mark if the registrant is a well-known seasoned issuer, as defined in
Rule 405 of the Securities
Act. Yes o No
x
Indicate
by check mark if the registrant is not required to file reports pursuant to
Section 13 or 15(d) of the
Act. Yes o No
x
Indicate
by check mark whether the Registrant (1) has filed all reports required to
be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the Registrant
was required to file such reports), and (2) has been subject to such filing
requirements for the past 90
days: YES x NO
o
Indicate
by check mark if disclosure of delinquent filers pursuant to Item 405 of
Regulation S-K (§229.405 of this chapter) is not contained herein, and will not
be contained, to the best of registrant’s knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form 10-K
or any amendment to this Form 10-K. o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, or a non-accelerated filer. See definition of “accelerated
filer” and “large accelerated filer” in Rule 12b-2 of the Exchange Act. (Check
one):
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Large accelerated filer o
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Accelerated filer x
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Non-accelerated filer o
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Smaller Reporting Company o
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(Do not check if a
smaller reporting company)
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Indicate
by check mark whether the registrant is a shell company (as defined in Rule
12b-2 of the Act). Yes o No
x
The
aggregate market value of the voting and non-voting common stock held by
non-affiliates of the registrant as of June 30, 2008 was approximately $180
million based upon a closing price of $10.00 reported for such date by The
NASDAQ Global Select Market. Common shares held by each executive officer and
director and by each person who owns 5% or more of the outstanding common shares
have been excluded in that such persons may be deemed to be affiliates. This
determination of affiliate status is not necessarily a conclusive determination
for other purposes.
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The
number of outstanding shares of common stock of the registrant as
of March 16, 2009 was
21,570,869.
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EXPLANATORY NOTE
This Amendment No. 1 (“Amendment”) is being filed to amend our Annual Report on
Form 10-K for the fiscal year ended December 31, 2008, which Kohlberg
Capital Corporation filed with the SEC on March 16, 2009 (“Annual
Report”). This Amendment is being filed solely for the purpose of including
Exhibit 21.1 which was inadvertently omitted as part of the exhibits included
under Item 15 of Part IV of the Annual Report. All other Items of the
2008 Annual Report on Form 10-K are unaffected by the change described above and
have been omitted from this amendment. No other revisions or amendments have
been made to Part IV, Item 15 or to any other portion of the Annual Report. This
Amendment does not
otherwise update information in the Annual Report to reflect facts or events
occurring subsequent to the date of the Annual Report. Currently-dated
certifications from Kohlberg Capital Corporation's Chief Executive Officer and
Chief Financial Officer have been included as exhibits to this
Amendment.
PART
IV
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Item 15.
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Exhibits
and Financial Statement Schedules
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1.
Financial Statements
The
following financial statements of Kohlberg Capital Corporation (the “Company” or
the “Registrant”) were included in the Annual Report and are unaffected by this
Amendment:
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Balance
Sheets as of December 31, 2008 and December 31, 2007
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Statements
of Operations for the years ended December 31, 2008, December
31, 2007 and for the period from December 11, 2006 (inception) through
December 31, 2006
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Statements
of Changes in Net Assets for the years ended December 31, 2008, December
31, 2007 and for the period from December 11, 2006 (inception) through
December 31, 2006
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Statements
of Cash Flows for the years ended December 31, 2008, December 31, 2007 and
for the period from December 11, 2006 (inception) through December 31,
2006
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Schedules
of Investments as of December 31, 2008 and December 31,
2007
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Financial
Highlights for the years ended December 31, 2008, December 31, 2007 and
for the period from December 11, 2006 (inception) through December 31,
2006
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Notes
to Financial Statements
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2
2.
Exhibits
Exhibit
Index
Exhibits
designated by the symbol “*” are filed with this Annual Report on Form 10-K/A.
All exhibits not so designated are incorporated by reference to a prior filing
as indicated.
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Exhibit
Number
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Description
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3.1
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Form
of Certificate of Incorporation of Kohlberg Capital Corporation (the
“Company”). (1)
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3.2
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Form
of Bylaws of the Company. (2)
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4.1
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Specimen
Certificate of the Company’s common stock, par value $0.01 per share.
(1)
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4.2
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Form
of Registration Rights Agreement. (3)
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4.3
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Form
of Dividend Reinvestment Plan. (3)
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10.1
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Form
of the Amended and Restated 2006 Equity Incentive Plan. (9)
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10.2
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Form
of Company Non-Qualified Stock Option Certificate. (3)
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10.3
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Form
of Custodian Agreement by and among Kohlberg Capital Corporation and U.S.
Bank National Association. (3)
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10.4
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Form
of License and Referral Agreement between the Company and Kohlberg &
Company, LLC. (1
)
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10.5
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Form
of Overhead Allocation Agreement between the Company and Katonah Debt
Advisors, LLC. (3)
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10.6
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Form
of Employment Agreement between the Company and Dayl W. Pearson. (3)
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10.7
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Form
of Employment Agreement between the Company and Michael I. Wirth. (3)
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10.8
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Form
of Employment Agreement between the Company and R. Jon Corless. (3)
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10.9
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Form
of Employment Agreement between the Company and E.A. Kratzman.
(3)
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10.10
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Form
of Employment Agreement between Katonah Debt Advisors and E.A.
Kratzman.
(3)
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10.11
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Form
of Indemnification Agreement for Officers and Directors of the Company.
(4)
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10.12
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Execution
Copy of Loan Funding and Servicing Agreement dated as of February 14,
2007, by and among Kohlberg Capital Funding LLC I, Kohlberg Capital
Corporation, each of the conduit lenders and institutional lenders from
time to time party thereto, each of the lender agents from time to time
party thereto, BMO Capital Markets Corp., as the Agent, Lyon Financial
Services, Inc. (d/b/a U.S. Bank Portfolio Services), as the Backup
Services, and U.S. Bank National Association, as Trustee. (5)
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10.13
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Execution
Copy of First Amendment to Loan Funding and Servicing Agreement, dated as
of May 30, 2007, by and among Kohlberg Capital Funding LLC I, the Company,
each of the conduit lenders and institutional lenders from time to time
party thereto, each of the lender agents from time to time party thereto,
BMO Capital Markets Corp., as the Agent, Lyon Financial Services, Inc.
(d/b/a U.S. Bank Portfolio Services), as the Backup Servicer, and U.S.
Bank National Association, as Trustee. (6)
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3
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10.14
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Execution
Copy of Second Amendment to Loan Funding and Servicing Agreement, dated as
of October 1, 2007, by and among Kohlberg Capital Funding LLC I, the
Company, each of the conduit lenders and institutional lenders from time
to time party thereto, each of the lender agents from time to time party
thereto, BMO Capital Markets Corp., as the Agent, Lyon Financial Services,
Inc. (d/b/a U.S. Bank Portfolio Services), as the Backup Servicer, and
U.S. Bank National Association, as Trustee. (6)
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10.15
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Execution
Copy of Third Amendment to Loan Funding and Servicing Agreement, dated as
of November 21, 2007, by and among Kohlberg Capital Funding LLC I, the
Company, each of the conduit lenders and institutional lenders from time
to time party thereto, each of the lender agents from time to time party
thereto, BMO Capital Markets Corp., as the Agent, Lyon Financial Services,
Inc. (d/b/a U.S. Bank Portfolio Services), as the Backup Servicer, and
U.S. Bank National Association, as Trustee.
(8)
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10.16
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Execution
Copy of Purchase and Sale Agreement dated as of February 14, 2007, by and
among Kohlberg Capital Funding LLC I and the Company. (7)
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10.17
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Form
of 2008 Non-Employee Director Plan. (10)
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21.1
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List
of Subsidiaries. *
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23.1
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Consent
of Deloitte & Touche LLP, Independent Registered Public Accounting
Firm. (11)
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31.1
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Chief
Executive Officer Certification Pursuant to Rule 13a-14 of the Securities
Exchange Act of 1934, as adopted pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002. *
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31.2
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Chief
Financial Officer Certification Pursuant to Rule 13a-14 of the Securities
Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act
of 2002. *
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32.1
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Chief
Executive Officer Certification pursuant to Section 1350, Chapter 63 of
Title 18, United States Code, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002. *
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32.2
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Chief
Financial Officer Certification pursuant to Section 1350, Chapter 63 of
Title 18, United States Code, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002. *
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(1)
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Incorporated
by reference to the exhibit included in Pre-Effective Amendment No. 1
on Form N-2, as filed on October 6, 2006 (File
No. 333-136714).
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(2)
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Incorporated
by reference to the exhibit included on Form N-2, as filed on
March 16, 2007 (File
No. 333-141382).
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(3)
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Incorporated
by reference to the exhibit included in Pre-Effective Amendment No. 2
on Form N-2, as filed on November 20, 2006 (File
No. 333-136714).
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(4)
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Incorporated
by reference to the exhibit included in Pre-Effective Amendment No. 3
on Form N-2, as filed on November 24, 2006 (File
No. 333-136714).
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(5)
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Incorporated
by reference to Exhibit 10.15 of the Annual Report on Form 10-K, as filed
on March 29, 2007 (File
No. 814-00735).
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(6)
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Incorporated
by reference to the exhibit included in Pre-Effective Amendment No. 1
on Form N-2, as filed on October 18, 2007 (File
No. 333-146190).
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(7)
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Incorporated
by reference to Exhibit 10.2 of the Current Report on Form 8-K, as filed
on February 16, 2007 (File
No. 814-00735).
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(8)
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Incorporated
by reference to Exhibit 10.15 of the Annual Report on Form 10-K, as filed
on March 14, 2008 (File
No. 814-00735).
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(9)
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Incorporated
by reference to Exhibit 10.1 of the Current Report on Form 8-K, as filed
on June 19, 2008 (File No.
814-00735).
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(10)
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Incorporated
by reference to the exhibit included in Pre-Effective Amendment No. 1
on Form N-2, as filed on June 30, 2008 (File
No. 333-151268).
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(11)
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Incorporated
by reference to the Exhibit 23.1 of the Annual Report on Form 10-K, as
filed on March 16, 2009 (File No.
814-00735).
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4
SIGNATURES
Pursuant
to the requirements of Section 13 or 15(d) of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned, thereunto duly authorized.
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KOHLBERG
CAPITAL CORPORATION
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Date:
March 25, 2009
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By
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/s/ Dayl
W. Pearson
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Dayl
W. Pearson
President
and Chief Executive
Officer
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5
Exhibit
21.1
List
of Subsidiaries(1)
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Jurisdiction
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Katonah
Debt Advisors, L.L.C.(2)
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Delaware
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Kohlberg
Capital Funding LLC I
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Delaware
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Katonah
Management Holdings LLC(2)
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Delaware
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Katonah
X Management LLC(2)(3)
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Delaware
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Katonah
2007-I Management LLC(2)(3)
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Delaware
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Katonah
2008-II Management LLC(2)(3)
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Delaware
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Katonah
Scott’s Cove Management LLC(2)(3)
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Delaware
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KPKSI
Management Holdings LLC(2)
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Delaware
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KPKSI
Holdings LLC(2)(4)
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Delaware
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(1)
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Excludes
a 35% interest in PKSIL LLC.
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(2)
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Represents
a wholly-owned portfolio company that is not consolidated for financial
reporting purposes.
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(3)
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A
wholly-owned subsidiary of Katonah Management Holdings
LLC.
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(4)
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A
wholly-owned subsidiary of KPKSI Management Holdings
LLC.
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Exhibit
31.1
CERTIFICATION
PURSUANT TO
RULE
13a-14(a) and 15d-14(a) UNDER THE SECURITIES EXCHANGE ACT OF 1934,
AS
AMENDED
I, Dayl
W. Pearson, certify that:
1. I have
reviewed this annual report on Form 10-K/A of Kohlberg Capital Corporation (the
“registrant”);
2. Based
on my knowledge, this report does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made, not misleading
with respect to the period covered by this report;
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Date:
March 25, 2009
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By
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/
S / Dayl W. Pearson
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Dayl
W. Pearson
President
and Chief Executive Officer
(Principal
Executive
Officer)
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Exhibit
31.2
CERTIFICATION
PURSUANT TO
RULE
13a-14(a) and 15d-14(a) UNDER THE SECURITIES EXCHANGE ACT OF 1934,
AS
AMENDED
I,
Michael I. Wirth, certify that:
1. I have
reviewed this annual report on Form 10-K/A of Kohlberg Capital Corporation (the
“registrant”);
2. Based
on my knowledge, this report does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made, not misleading
with respect to the period covered by this report;
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Date:
March 25, 2009
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By
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/
S / Michael I. Wirth
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Michael
I. Wirth
Chief
Financial Officer and Chief Compliance Officer
(Principal
Financial
Officer)
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Exhibit
32.1
CERTIFICATION
PURSUANT TO
SECTION
1350, CHAPTER 63 OF TITLE 18, UNITED STATES CODE,
AS
ADOPTED PURSUANT TO
SECTION
906 OF THE SARBANES-OXLEY ACT OF 2002
In
connection with the accompanying Annual Report of Kohlberg Capital Corporation
(the “Company”) on Form 10-K/A for the year ended December 31, 2008 (the
“Report”), I, Dayl W. Pearson, President and Chief Executive Officer of the
Company, certify, pursuant to 18 U.S.C. §1350, as adopted pursuant to §906 of
the Sarbanes-Oxley Act of 2002, that:
(1) The
Report fully complies with the requirements of Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934, as amended;
and
(2) The
information contained in the Report fairly presents, in all material respects,
the financial condition and results of operations of the Company.
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Date:
March 25, 2009
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By
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/
S / Dayl W. Pearson
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Dayl
W. Pearson
President
and Chief Executive Officer
(Principal
Executive
Officer)
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Exhibit
32.2
CERTIFICATION
PURSUANT TO
SECTION
1350, CHAPTER 63 OF TITLE 18, UNITED STATES CODE,
AS
ADOPTED PURSUANT TO
SECTION
906 OF THE SARBANES-OXLEY ACT OF 2002
In
connection with the accompanying Quarterly Report of Kohlberg Capital
Corporation (the “Company”) on Form 10-K/A for the year ended December 31, 2008
(the “Report”), I, Michael I. Wirth, Chief Financial Officer of the Company,
certify, pursuant to 18 U.S.C. §1350, as adopted pursuant to §906 of the
Sarbanes-Oxley Act of 2002, that:
(1) The
Report fully complies with the requirements of Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934, as amended;
and
(2) The
information contained in the Report fairly presents, in all material respects,
the financial condition and results of operations of the Company.
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Date:
March 25, 2009
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By
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/
S / Michael I. Wirth
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Michael
I. Wirth
Chief
Financial Officer and Chief Compliance Officer
(Principal
Financial
Officer)
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