As filed with the Securities and Exchange Commission on February 5, 2013
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM N-2
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
o Pre-Effective Amendment No.
o Post-Effective Amendment No.
KCAP FINANCIAL, INC.
(Exact Name of Registrant as Specified in Charter)
295 Madison Avenue, 6th Floor
New York, New York 10017
(212) 455-8300
(Address and Telephone Number of Principal Executive Offices)
Dayl W. Pearson
President and Chief Executive Officer
KCAP Financial, Inc.
295 Madison Avenue, 6th Floor
New York, New York 10017
(Name and Address of Agent for Service)
Copy to:
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| Harry S. Pangas, Esq. Sutherland Asbill & Brennan LLP 1275 Pennsylvania Avenue, N.W. Washington, DC 20004-2415 Telephone: (202) 383-0100 Facsimile: (202) 637-3593 |
Stuart H. Gelfond, Esq. Fried, Frank, Harris, Shriver & Jacobson LLP One New York Plaza New York, NY 10004 Telephone: (212) 859-8000 Facsimile: (212) 859-4000 |
Approximate Date of Proposed Public Offering:
As soon as practicable after the effective date of this Registration Statement.
If any securities being registered on this form will be offered on a delayed or continuous basis in reliance on Rule 415 under the Securities Act of 1933, other than securities offered in connection with a dividend reinvestment plan, check the following box. o
It is proposed that this filing will become effective (check appropriate box):
| o | When declared effective pursuant to Section 8(c) of the Securities Act of 1933. |
| x | This Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act of 1933 and the Securities Act registration statement number of the earlier effective registration statement for the same offering is 333-185559. |
CALCULATION OF REGISTRATION FEE UNDER THE SECURITIES ACT OF 1933
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| Title of Securities Being Registered | Proposed Maximum Aggregate Offering Price(1)(2) | Amount of Registration Fee(3) |
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| Common Stock, $0.01 par value per share | $ | 5,000,000 | $ | 682 | ||||
| (1) | Estimated pursuant to Rule 457(o) under the Securities Act of 1933 solely for the purpose of determining the registration fee. |
| (2) | Includes shares that may be issued pursuant to the underwriters’ option to purchase additional shares. |
| (3) | The Registrant previously paid $23,220 in connection with its Registration Statement on Form N-2 (File No. 333-175939) filed with the Securities and Exchange Commission on August 1, 2011, pursuant to which no securities were issued. Pursuant to Rule 457(p) of the Securities Act, $682 of the previously paid fee amount is offset against the currently due filing fee. As a result, no filing fee is due in connection with this filing. |
Incorporation of Certain Information by Reference
This Registration Statement is being filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, by KCAP Financial, Inc. (the “Registrant”) with the Securities and Exchange Commission, and hereby incorporates by reference into this Registration Statement the contents of the Registration Statement on Form N-2 (File No. 333-185559 ), including the exhibits thereto, filed on December 19, 2012, as amended by a pre-effective amendment thereto, and declared effective on February 4, 2013.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement on Form N-2 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, and State of New York, on the 5th day of February, 2013.
KCAP FINANCIAL, INC.
| By: | /s/ Dayl W. Pearson Name: Dayl W. Pearson Title: President and Chief Executive Officer |
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form N-2 has been signed by the following persons in the capacities and on the dates indicated.
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| Signature | Title | Date | ||
| /s/ Dayl W. Pearson Dayl W. Pearson |
President and Chief Executive Officer; Director (principal executive officer) | February 5, 2013 | ||
| /s/ Edward U. Gilpin Edward U. Gilpin |
Chief Financial Officer, Secretary and Treasurer (principal financial and accounting officer) | February 5, 2013 | ||
| * Christopher Lacovara |
Director | February 5, 2013 | ||
| * Gary Cademartori |
Director | February 5, 2013 | ||
| * C. Michael Jacobi |
Director | February 5, 2013 | ||
| * Albert G. Pastino |
Director | February 5, 2013 | ||
| * C. Turney Stevens, Jr. |
Director | February 5, 2013 | ||
| * Jay R. Bloom |
Director | February 5, 2013 | ||
| * Dean C. Kehler |
Director | February 5, 2013 |
| * | Signed by Edward U. Gilpin pursuant to a power of attorney signed by each individual on December 19, 2012. |
EXHIBIT INDEX
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| l | Opinion and Consent of Sutherland, Asbill & Brennan LLP* | |
| n.1 | Consent of Grant Thornton LLP, Independent Registered Public Accounting Firm, with respect to report dated March 15, 2012, relating to KCAP Financial, Inc.* | |
| n.2 | Consent of Grant Thornton LLP, Independent Certified Public Accountants, with respect to report dated March 15, 2012, relating to Katonah Debt Advisors, L.L.C* | |
| n.3 | Consent of Grant Thornton LLP, Independent Certified Public Accountants, with respect to report dated May 14, 2012, relating to Trimaran Advisors, L.L.C.* | |
| n.4 | Report of Grant Thornton LLP, Independent Registered Public Accounting Firm, with respect to the debt obligations and indebtedness of KCAP Financial, Inc. (Incorporated by reference exhibit n.4 included in the Registration Statement on Form N-2 (File No. 333-183032), as filed on August 2, 2012.) |
| * | Filed herewith |
Exhibit l
[Letterhead of Sutherland Asbill & Brennan LLP]
February 5, 2013
KCAP Financial, Inc.
295 Madison Avenue, 6th Floor
New York, New York 10017
Ladies and Gentlemen:
We have acted as counsel to KCAP Financial, Inc., a Delaware corporation (the “Company”), in connection with the registration statement on Form N-2 (the “Registration Statement”) filed by the Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the offer and sale of up to $5 million of shares of the Company’s common stock, par value $0.01 per share (the “Shares”), in connection with the offering described in the Registration Statement.
As counsel to the Company, we have participated in the preparation of the Registration Statement, and have examined the originals or copies, certified or otherwise identified to our satisfaction as being true copies of such records, documents or other instruments as we in our judgment have deemed to be necessary or appropriate to enable us to render the opinions hereinafter expressed including, without limitation, the following:
| (i) | The Certificate of Incorporation of the Company, as amended, certified as of the date of this opinion letter by an officer
of the Company (the “Certificate of Incorporation”); |
| (ii) | The Bylaws of the Company, certified as of the date hereof by an officer of the Company; |
| (iii) | A Certificate of Good Standing with respect to the Company issued by the Delaware Secretary of State as of a recent date; and |
| (iv) | The resolutions (the “Resolutions”) adopted by the Board of Directors of the Company (the “Board”) relating to, among other things, (a) the authorization and approval of the preparation and filing of the Registration Statement, and (b) the authorization, issuance, offer and sale of the Shares pursuant to the Registration Statement, certified as of the date of this opinion letter by an officer of the Company. |
As to certain matters of fact relevant to the opinions in this opinion letter, we have relied on certificates of officers of the Company. We have also relied on certificates of public officials. We have not independently established the facts, or in the case of certificates of public officials, the other statements, so relied upon.
For purposes of our opinions in this opinion letter, we have assumed, without any independent investigation or verification, that: (a) each document that we have reviewed is accurate and complete, is either an authentic original or a copy that conforms to an authentic original, and the signatures on it are genuine; (b) each governmental or officer’s certificate has been properly issued and it is accurate, complete and authentic (and we have assumed that such certificates remain accurate on the date of this letter); (c) all natural persons have sufficient legal capacity; and (d) the accuracy and completeness of all corporate records made available to us by the Company. We have also assumed that prior to the issuance of the Shares, the Board, or a duly authorized committee thereof, will determine the number, and certain terms of issuance, of the Shares in accordance with the Resolutions (the “Board Action”).
This opinion letter is limited to the effect of the General Corporation Law of the State of Delaware, as in effect on the date hereof, and reported judicial decisions interpreting the foregoing, and we express no opinion as to the applicability or effect of any other laws of such jurisdiction or the laws of any other jurisdictions. Without limiting the preceding sentence, we express no opinion as to any state securities or broker-dealer laws or regulations thereunder relating to the offer, issuance and sale of the Shares. This opinion letter has been prepared, and should be interpreted, in accordance with customary practice followed in the preparation of opinion letters by lawyers who regularly give, and such customary practice followed by lawyers who on behalf of their clients regularly advise opinion recipients regarding, opinion letters of this kind.
On the basis of and subject to the foregoing, and in reliance thereon, and subject to the limitations and qualifications set forth in this opinion letter, we are of the opinion that the Shares have been duly authorized and, when issued and paid for in accordance with the terms of the Board Action and the Registration Statement, the Shares will be validly issued, fully paid and nonassessable.
The opinions expressed in this opinion letter (a) are strictly limited to the matters stated in this opinion letter, and without limiting the foregoing, no other opinions are to be implied and (b) are only as of the date of this opinion letter, and we are under no obligation, and do not undertake, to advise the addressee of this opinion letter or any other person or entity either of any change of law or fact that occurs, or of any fact that comes to our attention, after the date of this opinion letter, even though such change or such fact may affect the legal analysis or a legal conclusion in this opinion letter.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our firm in the “Legal Matters” section in the Registration Statement. We do not admit by giving this consent that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
Very truly yours,
/s/ Sutherland Asbill & Brennan LLP
Exhibit n.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We have issued our reports dated March 15, 2012, with respect to the financial statements and financial highlights and internal control over financial reporting contained in the Registration Statement and Prospectus and our report dated August 2, 2012, with respect to the debt obligations and indebtedness included in the Registration Statement and Prospectus of KCAP Financial, Inc. (formerly, Kohlberg Capital Corporation), as amended (File No. 333-185559, effective February 4, 2013). We consent to the incorporation by reference of the aforementioned reports in this Registration Statement, and to the use of our name as it appears under the caption “Independent Registered Public Accounting Firm” in the prospectus incorporated by reference in this Registration Statement.
/s/ GRANT THORNTON LLP
New York, New York
February 5, 2013
Exhibit n.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated March 15, 2012, with respect to the combined financial statements of Katonah Debt Advisors, L.L.C. and affiliates as of December 31, 2011 and 2010, and the related combined statements of operations, cash flows, and members’ equity for the years then ended, included in the Registration Statement and Prospectus of KCAP Financial, Inc., as amended (File No. 333-185559, effective February 4, 2013). We hereby consent to the incorporation by reference of said report in the Registration Statement and Prospectus of KCAP Financial, Inc.
/s/ GRANT THORNTON LLP
New York, New York
February 5, 2013
Exhibit n.3
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated May 14, 2012, with respect to the consolidated financial statements of Trimaran Advisors, L.L.C. and affiliates as of December 31, 2011 and 2010, and the related consolidated statements of operations, cash flows, and members’ equity for each of the three years ended December 31, 2011, contained in the Registration Statement and Prospectus of KCAP Financial, Inc., as amended (File No. 333-185559, effective February 4, 2013). We hereby consent to the incorporation by reference of said report in the Registration Statement and Prospectus of KCAP Financial, Inc.
/s/ GRANT THORNTON LLP
New York, New York
February 5, 2013