Filed pursuant to Rule 424(b)(2)
File No. 333-272578
PROSPECTUS SUPPLEMENT
(to Prospectus dated August 16, 2023)
Up to $150,000,000
Common Stock
We are an internally managed, non-diversified
closed-end management investment company that has elected to be regulated as a business development company (“BDC”) under
the Investment Company Act of 1940, as amended (the “1940 Act”). We have also elected to be treated as a regulated investment
company (“RIC”) under Subchapter M of the Internal Revenue Code of 1986, as amended (the “Code”), and expect to
continue to operate in a manner so as to qualify for the tax treatment applicable to RICs. We commenced operations upon completion of
our initial public offering (“IPO”) in May 2011.
Our investment objective is to maximize our
portfolio’s total return, principally by seeking capital gains on our equity and equity-related investments, and to a lesser
extent, income from debt investments. We invest principally in the equity securities of what we believe to be rapidly growing
venture capital-backed emerging companies. We acquire our investments through direct investments in prospective portfolio companies,
secondary marketplaces for private companies, negotiations with selling stockholders, or through investment funds or special purpose vehicles established for the purpose of investing in the securities of a single private
issuer. In addition, we may invest in private
credit and in founders equity, founders warrants, and private investment in public equity transactions
of special purpose acquisition companies. We may also invest on an opportunistic basis in select publicly traded equity securities
or certain non-U.S. companies that otherwise meet our investment criteria, subject to applicable requirements of the 1940 Act.
We seek to deploy capital primarily in the form
of non-controlling equity and equity-related investments, including common stock, warrants, preferred stock, and similar forms of senior
equity, which may or may not be convertible into a portfolio company’s common equity, and convertible debt securities with a significant
equity component. Typically, our preferred stock investments are non-income producing, have different voting rights than our common stock
investments, and are generally convertible into common stock at our discretion. As our investment strategy is focused on equity positions,
our investments generally do not produce current income, and therefore, we may be dependent on future capital raising to meet our operating
needs if no other source of liquidity is available. We seek to create a low-turnover portfolio that includes investments in companies
representing a broad range of investment themes.
On July 29, 2020, we entered into a sales
agreement with BTIG, LLC, Citizens JMP Securities, LLC (f/k/a JMP Securities LLC) and Ladenburg Thalmann & Co. Inc. (together
with Barrington Research Associates, Inc., collectively the “Agents,” and each, an “Agent”) relating to the
sale of shares of our common stock offered by this prospectus supplement and the accompanying prospectus. In accordance with the terms
of the sales agreement, as amended on September 23, 2020 and November 8, 2024, we may offer and sell shares of our common
stock having an aggregate offering price of up to $150,000,000 from time to time through the Agents (such program, the “ATM Program”).
From July 29, 2020 through November 7,
2024, we issued and sold 3,832,686 shares under the ATM Program for gross proceeds of approximately $51.2 million and net proceeds of
approximately $50.2 million, after deducting commissions to the Agents on the shares sold and offering expenses. As a result, as of November 7,
2024, up to approximately $98.8 million in aggregate amount of the shares remain available for sale under the ATM Program.
Our common stock is listed on the Nasdaq Global
Select Market under the symbol “SSSS.” On November 7, 2024, the last reported sale price of our common stock on the
Nasdaq Global Select Market was $5.40 per share.
Sales of our common stock, if any, under this
prospectus supplement and the accompanying prospectus will be made in sales deemed to be “at-the-market” offerings as defined
in Rule 415 promulgated under the Securities Act of 1933, as amended (the “Securities Act”). The Agents are not required
to sell any specific amount of securities, but will act as our sales agents using commercially reasonable efforts, consistent with its
normal trading and sales practices, on mutually agreed terms between the Agents and us. There is no arrangement for funds to be received
in any escrow, trust or similar arrangement.
The compensation to the Agents for sales of
common stock sold pursuant to the sales agreement will be an amount equal to 2% of the proceeds of any shares of common stock sold
under the sales agreement. See “Plan of Distribution” on page S-10 for additional information regarding
compensation to be paid to the Agents. In connection with the sale of our common stock on our behalf, each Agent may be deemed to be
an “underwriter” within the meaning of the Securities Act, and the compensation of the Agents will be deemed to be
underwriting commissions or discounts. Pursuant to the sales agreement, we have also agreed to provide indemnification and
contribution to the Agents with respect to certain liabilities, including liabilities under the Securities Act and the Securities
Exchange Act of 1934, as amended (the “Exchange Act”).
The Agents are not required to sell any specific
number or dollar amount of common stock, but will use commercially reasonable efforts consistent with their normal sales and trading practices
to sell the shares of our common stock offered by this prospectus supplement and the accompanying prospectus. We may also sell shares
of our common stock to an Agent, as principal for its own respective account, at a price agreed upon at the time of sale. If we sell shares
to an Agent as principal, we will enter into a separate agreement with the Agent setting forth the terms of such transaction, and we will
describe such agreement in a separate prospectus supplement.
This prospectus supplement and the accompanying
prospectus, including the information incorporated by reference, contain important information about us that a prospective investor should
know before investing in our common stock. We may also authorize one or more free writing prospectuses to be provided to you in connection
with this offering. You should carefully read this prospectus supplement, the accompanying prospectus, and any related free writing prospectus,
and the documents incorporated by reference, before investing in our common stock. We file annual, quarterly and current reports, proxy
statements and other information with the U.S. Securities and Exchange Commission (the “SEC”). This information is available
free of charge by contacting us by mail at 640 Fifth Avenue, 12th Floor, New York, New York, 10019,
on our website at www.surocap.com, by telephone at (212) 931-6331 or by email
at IR@surocap.com. Information contained on our website is not incorporated by reference into this prospectus supplement or the accompanying
prospectus, and you should not consider that information to be part of this prospectus supplement or the accompanying prospectus. The
SEC also maintains a website at www.sec.gov that contains information about us.
INVESTING IN OUR COMMON STOCK INVOLVES A HIGH
DEGREE OF RISK, AND SHOULD BE CONSIDERED HIGHLY SPECULATIVE. SEE “RISK FACTORS” ON PAGE S-7 OF THIS PROSPECTUS SUPPLEMENT,
PAGE 13 OF THE ACCOMPANYING PROSPECTUS, IN PART I, ITEM 1A OF OUR MOST RECENT ANNUAL
REPORT ON FORM 10-K, PART II, ITEM 1A OF OUR MOST RECENT QUARTERLY REPORT ON FORM 10-Q AND UNDER SIMILAR HEADINGS
IN THE OTHER DOCUMENTS THAT ARE FILED AFTER THE DATE HEREOF AND INCORPORATED BY REFERENCE INTO THIS PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING
PROSPECTUS, TO READ ABOUT FACTORS YOU SHOULD CONSIDER, INCLUDING THE RISK OF LEVERAGE AND DILUTION, BEFORE INVESTING IN OUR COMMON
STOCK.
Neither the Securities and Exchange Commission
nor any state securities commission, nor any other regulatory body, has approved or disapproved of these securities or determined if this
prospectus supplement or the accompanying prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
| BTIG |
Citizens JMP |
Ladenburg Thalmann |
Barrington Research |
The date of this prospectus supplement is November 8,
2024.
Prospectus Supplement
Prospectus
ABOUT THIS PROSPECTUS SUPPLEMENT
This document is in two parts.
The first part is this prospectus supplement, which describes the specific details regarding this offering of our common stock and also
adds to and updates information contained in the accompanying prospectus and the documents incorporated by reference into this prospectus
supplement and the accompanying prospectus. The second part is the accompanying prospectus, which provides general information about us
and the securities we may offer from time to time, some of which may not apply to this offering. To the extent the information contained
in this prospectus supplement differs from the information contained in the accompanying prospectus or the information included in any
document filed prior to the date of this prospectus supplement and incorporated by reference, the information in this prospectus supplement
shall control. Generally, when we refer to this “prospectus,” we are referring to both this prospectus supplement and the
accompanying prospectus combined, together with any free writing prospectus that we have authorized for use in connection with this offering.
You should rely only on
the information included or incorporated by reference in this prospectus supplement, the accompanying prospectus, or in any free writing
prospectuses prepared by or on behalf of us that relates to this offering of common stock. Neither we nor the Agents have authorized any
other person to provide you with different information or to make representations as to matters not stated in this prospectus supplement,
the accompanying prospectus or in any free writing prospectus prepared by or on behalf of us that relates to this offering of common stock.
We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you.
If anyone provides you with different or inconsistent information, you should not rely on it. This prospectus supplement, the accompanying
prospectus and any free writing prospectus prepared by or on behalf of us that relates to this offering of common stock do not constitute
an offer to sell, or a solicitation of an offer to buy, any shares of our common stock by any person in any jurisdiction where it is unlawful
for that person to make such an offer or solicitation or to any person in any jurisdiction to whom it is unlawful to make such an offer
or solicitation. You should not assume that the information included in this prospectus supplement, the accompanying prospectus or in
any free writing prospectus is complete and accurate as of any date other than their respective dates, or that any information incorporated
by reference herein or therein is complete and accurate as of any date other than the date of the document incorporated by reference containing
such information, regardless of the time of delivery of this prospectus supplement or of any of our common stock.
PROSPECTUS SUPPLEMENT SUMMARY
This summary highlights
the information included elsewhere, or incorporated by reference in this prospectus supplement or the accompanying prospectus. It is
not complete and may not contain all of the information that you should consider before making your investment decision to invest in
the common stock offered hereby. To understand the terms of the common stock offered hereby before making your investment decision, you
should carefully read this entire prospectus supplement, the accompanying prospectus, any free writing prospectus relating to this offering
and the documents incorporated by reference in this prospectus supplement and the accompanying prospectus, as provided in sections titled
“Incorporation of Certain Information by Reference” and “Available Information”
beginning on page S-13 in this prospectus supplement and on page 75 of the accompanying prospectus. In this prospectus
supplement and the accompanying prospectus, unless where the context suggests otherwise, the terms “we,” “us,”
“our,” the “Company” and “SuRo Capital” refer to SuRo Capital Corp.
SuRo Capital
We are an internally managed,
non-diversified, closed-end management investment company that formed in 2010 as a Maryland corporation. We have elected to be regulated
as a BDC under the 1940 Act, and have elected to be treated, qualify, and intend to qualify annually as a RIC under Subchapter M of the
Code.
Our date of inception was
January 6, 2011, which is the date we commenced development stage activities, and we commenced operations as a BDC upon completion
of our IPO in May 2011. Our common stock is currently listed on the Nasdaq Global Select Market under the symbol “SSSS.”
We began our investment operations during the second quarter of 2011. See “Part II, Item 7. Management’s Discussion
and Analysis of Financial Condition and Results of Operations” in our most recent Annual Report on Form 10-K and “Part I, Item
2. Management’s Discussion and Analysis of Financial Condition and Results of Operations” in our most recent Quarterly Report
on Form 10-Q for more information.
Our investment objective
is to maximize our portfolio’s total return, principally by seeking capital gains on our equity and equity-related
investments, and to a lesser extent, income from debt investments. We invest principally in the equity securities of what we believe
to be rapidly growing venture capital-backed emerging companies. We acquire our investments through direct investments in
prospective portfolio companies, secondary marketplaces for private companies, negotiations with selling stockholders, or through investment funds or special purpose vehicles established for the purpose of investing in the securities of a single private
issuer. In
addition, we may invest in private credit and in founders equity, founders warrants, and private
investment in public equity transactions of special purpose acquisition companies. We may also invest on an opportunistic basis in
select publicly traded equity securities or certain non-U.S. companies that otherwise meet our investment criteria. To the extent we
make investments in private equity funds and hedge funds that are excluded from the definition of “investment company”
under the 1940 Act by Section 3(c)(1) or 3(c)(7) of the 1940 Act, we will limit such investments to no more than 15%
of our net assets.
Our investment philosophy
is based on a disciplined approach of identifying promising investments in high-growth, venture-backed companies across several key industry
themes, which may include, among others, Software-as-a-Service, Artificial Intelligence, Consumer Goods & Services, Education Technology,
Logistics & Supply Chain, Financial Technology & Services, and SuRo Sports. Our investment decisions are based on a disciplined
analysis of available information regarding each potential portfolio company’s business operations, focusing on the portfolio company’s
growth potential, the quality of recurring revenues, and path to profitability, as well as an understanding of key market fundamentals.
Venture capital funds or other institutional investors have invested in the vast majority of companies that we evaluate.
Corporate Information
Our principal executive offices
are located at 640 Fifth Avenue, 12th Floor, New York, NY 10019, and our telephone number is (212) 931-6331. Our corporate website is
located at www.surocap.com. Information on our website is not incorporated into or a part of this prospectus supplement or the
accompanying prospectus.
Risk Factors
Our business is subject to
numerous risks, as described in the section titled “Risk Factors” in this prospectus supplement, the accompanying prospectus
and in any free writing prospectuses we have authorized for use in connection with a specific offering, and under similar headings in
the documents that are incorporated by reference into this prospectus supplement and the accompanying prospectus, including the section
titled “Risk Factors” included in our most recent Annual Report on Form 10-K, in our most recent Quarterly Report on
Form 10-Q, as well as in any of our subsequent SEC filings.
THE OFFERING
| Common stock offered by us |
|
Shares of our common stock having an aggregate offering price of up to $150,000,000. |
| |
|
|
| Common stock outstanding as of November 7, 2024 |
|
23,378,002 shares |
| |
|
|
| Manner of offering |
|
“At-the-market offering” that
may be made from time to time through BTIG, LLC, Citizens JMP Securities, LLC, Ladenburg Thalmann & Co. Inc., and Barrington
Research Associates, Inc., using commercially reasonable efforts. See “Plan of Distribution” on page S-10 of this
prospectus supplement.
On July 29, 2020, we established an “at-the-market”
program to which this prospectus supplement relates and entered into a sales agreement with BTIG, LLC, Citizens JMP Securities, LLC (f/k/a
JMP Securities LLC) and Ladenburg Thalmann & Co. Inc. On November 8, 2024, we amended the sales agreement governing the
ATM Program to include Barrington Research Associates, Inc. as an Agent. |
| |
|
|
| Use of proceeds |
|
If we sell shares of our
common stock available under this “at-the-market” offering assuming an aggregate offering price of $150,000,000, we anticipate
that our net proceeds, after deducting the Agents’ commissions and estimated offering expenses payable by us, will be approximately
$145.5 million. We intend to use the net proceeds from this offering to make investments in portfolio companies in accordance with our
investment objective and strategies described in the accompanying prospectus and for general corporate purposes.
See “Use of Proceeds” on page S-9 of this prospectus supplement for more information. |
| |
|
|
| Nasdaq Global Select Market symbol |
|
Our common stock is listed on the Nasdaq Global Select Market under the symbol “SSSS.” |
| |
|
|
| Distributions |
|
The timing and amount of our dividends, if any, will be determined by our Board of Directors. Any dividends to our stockholders will be declared out of assets legally available for distribution. As we focus on making primarily capital gains-based investments in equity securities, we do not anticipate that we will pay dividends on a quarterly basis or become a predictable distributor of dividends, and we expect that our dividends, if any, will be less consistent than the dividends of other BDCs that primarily make debt investments. |
| |
|
|
| Taxation |
|
We have elected to be treated, qualify, and intend to qualify annually as a RIC under Subchapter M of the Code. So long as we maintain our qualification for taxation a RIC, we generally will not be subject to U.S. federal income tax on any ordinary income or capital gains that we timely distribute to our stockholders as dividends. To qualify for taxation as a RIC, we must, among other things, meet certain source-of-income and asset diversification requirements. In addition, in order to qualify for the special treatment accorded to RICs, we generally are required to distribute to our stockholders on a timely basis each year at least 90% of our “investment company taxable income,” which is generally our net ordinary income plus the excess of realized net short-term capital gains over realized net long-term capital losses. See “Certain U.S. Federal Income Tax Considerations” in the accompanying prospectus for more information. |
| |
|
|
| Risk Factors |
|
An investment in our common
stock is subject to risks and involves a heightened risk of total loss of investment. In addition, the companies in which we invest are
subject to special risks. See “Risk Factors” on page S-7 of this prospectus supplement, in Part I, Item
1A of our most recent Annual Report on Form 10-K and in Part II, Item 1A of our most recent Quarterly Report on Form 10-Q
incorporated by reference in this prospectus supplement and the accompanying prospectus, and in any free writing prospectuses
we have authorized for use in connection with this offering, and under similar headings in the documents that are filed with the SEC
on or after the date hereof and are incorporated by reference into this prospectus supplement and the accompanying prospectus, to read
about factors you should consider, including the risk of leverage, before investing in our common stock. |
FEES AND EXPENSES
The following table is intended
to assist you in understanding the costs and expenses that an investor in an offering will bear directly or indirectly. We caution you
that some of the percentages indicated in the table below are estimates and may vary. The following table should not be considered a representation
of our future expenses. Actual expenses may be greater or less than shown. Except where the context suggests otherwise, whenever this
prospectus supplement and the accompanying prospectus contains a reference to fees or expenses paid by “us” or “SuRo
Capital,” or that “we” will pay fees or expenses, you will indirectly bear such fees or expenses as an investor in SuRo
Capital Corp., however, your responsibility for such fees or expenses is limited to your investment in SuRo Capital Corp. The fee table
and example below include all fees and expenses of our consolidated subsidiaries.
| Stockholder transaction expenses: |
|
|
|
| Sales load (as a percentage of offering price) |
|
|
2.00 |
%(1) |
| Offering expenses (as a percentage of offering price) |
|
|
1.00 |
%(2) |
| Dividend reinvestment plan expenses |
|
|
— |
%(3) |
| Total stockholder transaction expenses (as a percentage of offering price) |
|
|
3.00 |
% |
| Annual expenses (as a percentage of net assets attributable to common stock for the quarter ended September 30, 2024): |
|
|
|
|
| Operating expenses |
|
|
6.93 |
%(4) |
| Interest payments on borrowed funds |
|
|
2.85 |
%(5) |
| Other expenses |
|
|
1.00 |
%(6) |
| Total annual expenses |
|
|
10.78 |
% |
| (1) |
Represents the Agents’ commission with respect to the shares of common stock being sold in this offering. There is no guarantee that there will be any sales of our common stock pursuant to this prospectus supplement and the accompanying prospectus. |
| (2) |
The offering expenses of
this offering are estimated to be approximately $1.5 million, and assumes that we sell all $150.0 million of shares of common
stock under the sales agreement with the Agents. |
| (3) |
Under our dividend reinvestment plan (“DRIP”), the plan administrator’s fees will be paid by us. There will be no brokerage charges or other charges to stockholders who participate in the DRIP, except that if a participant elects by his, her or its written or telephonic notice to the plan administrator in advance of termination to have the plan administrator sell part or all of his, her or its shares and remit the proceeds to the participant, the plan administrator is authorized to deduct a $15 transaction fee plus brokerage commission from the proceeds. For additional information, see “Dividend Reinvestment Plan” in the accompanying prospectus. The expenses of our DRIP are included in “Other Expenses.” |
| (4) |
Operating expenses in this table represent the estimated annual operating expenses of SuRo Capital and its consolidated subsidiaries based on annualized operating expenses for the nine months ended September 30, 2024. We do not have an investment adviser and are internally managed by our executive officers under the supervision of our Board of Directors. As a result, we do not pay investment advisory fees, but instead we pay the operating costs associated with employing investment management professionals including, without limitation, compensation expenses related to salaries, discretionary bonuses and restricted stock grants. |
| (5) |
We are exposed to the risks of leverage, which may be considered a speculative investment technique. The use of leverage magnifies the potential for gain and loss on amounts invested and, therefore, increases the risks associated with an investment in us. Interest payments on borrowed funds represents our estimated annual interest payments based on actual interest rate terms under our outstanding 6.00% Notes due December 30, 2026 (the “6.00% Notes due 2026”) and our outstanding 6.50% Convertible Notes due August 14, 2029 as of September 30, 2024. |
| (6) |
“Other
expenses,” which we calculate to equal approximately $1.7 million, are based upon estimates for the twelve months ending
September 30, 2025. |
Example
The following example demonstrates
the projected dollar amount of total cumulative expenses that would be incurred over various periods with respect to a hypothetical investment
in our common stock. In calculating the following expense amounts, we have assumed that our annual operating expenses would remain at
the levels set forth in the table above. See footnote 5 above for additional information regarding certain assumptions regarding our level
of leverage.
| |
|
1
Year |
|
|
3
Years |
|
|
5
Years |
|
|
10
Years |
|
| You would pay the following expenses on a $1,000 investment, assuming a 5% annual return |
|
$ |
103 |
|
|
$ |
289 |
|
|
$ |
433 |
|
|
$ |
706 |
|
The example and the expenses
in the tables above should not be considered a representation of our future expenses, and actual expenses may be greater or less than
those shown. While the example assumes, as required by the SEC, a 5.0% annual return, our performance will vary and may result in a return
greater or less than 5.0%. In addition, while the example assumes reinvestment of all dividends at net asset value participants in our
DRIP will receive a number of shares of our common stock, determined by dividing the total dollar amount of the dividend payable to a
participant by the market price per share of our common stock at the close of trading on the dividend payment date, which may be at, above
or below net asset value. See “Dividend Reinvestment Plan” in the accompanying prospectus for additional information regarding
our DRIP.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Information included or
incorporated by reference in this prospectus supplement, the accompanying prospectus and in any free writing prospectus relating to this
offering of common stock may contain forward-looking statements, which can be identified by the use of forward-looking terminology such
as “anticipates,” “expects,” “intends,” “plans,” “will,” “may,”
“continue,” “believes,” “seeks,” “estimates,” “would,” “could,”
“should,” “targets,” “projects,” or the negative of these words or other variations on these words
or comparable terminology. The matters described in the section titled “Risk Factors” in Part I, Item 1A of our
most recent Annual Report on Form 10-K and in Part II, Item 1A of our most recent Quarterly Report on Form 10-Q, which
are incorporated by reference in this prospectus supplement and the accompanying prospectus, as well as subsequent filings with the SEC,
or in any free writing prospectus relating to this offering and certain other factors noted throughout or incorporated by reference in
this prospectus supplement, the accompanying prospectus and in any free writing prospectus relating to this offering constitute cautionary
statements identifying important factors with respect to any such forward-looking statements, including certain risks and uncertainties
that could cause actual results to differ materially from those in such forward-looking statements. We undertake no obligation to revise
or update any forward-looking statements but advise you to consult any additional disclosures that we may make directly to you or through
reports that we may file in the future with the SEC, including annual reports on Form 10-K, quarterly reports on Form 10-Q and
current reports on Form 8-K. Accordingly, there are or will be important factors that could cause our actual results to differ materially
from those expressed or implied by the forward-looking statements. The forward-looking statements included or incorporated by reference
in this prospectus supplement, the accompanying prospectus, and in any free writing prospectus relating to this offering of common stock
may include statements as to:
| · | our future operating results; |
| · | our business prospects and the prospects of our portfolio companies; |
| · | the impact of investments that we expect to make; |
| · | our contractual arrangements and relationships with third parties; |
| · | the dependence of our future success on the general economy and its impact on the industries in which
we invest; |
| · | the ability of our portfolio companies to achieve their objective; |
| · | our expected financings and investments; |
| · | the adequacy of our cash resources and working capital; and |
| · | the timing of cash flows, if any, from the operations of our portfolio companies. |
These statements are not guarantees
of future performance and are subject to risks, uncertainties, and other factors, some of which are beyond our control and difficult to
predict and could cause actual results to differ materially from those expressed or forecasted in the forward-looking statements, including
without limitation:
| · | an economic downturn could impair our portfolio companies’ ability to continue to operate, which
could lead to the loss of some or all of our investments in such portfolio companies; |
| · | an economic downturn could disproportionately impact the market sectors in which a significant portion
of our portfolio is concentrated, causing us to suffer losses in our portfolio; |
| · | a contraction of available credit and/or an inability to access the equity markets could impair our investment
activities; |
| · | interest rate volatility could adversely affect our results, particularly because we use leverage as part
of our investment strategy; and |
| · | the risks, uncertainties and other factors we identify in the section titled “Risk Factors”
in this prospectus supplement, the accompanying prospectus, in Part I, Item 1A of our most recent Annual Report on Form 10-K,
in Part II, Item 1A of our most recent Quarterly Report on Form 10-Q, and those discussed in other documents we file with
the SEC. |
You should not place undue
reliance on our forward-looking statements because the matters they describe are subject to known and unknown risks, uncertainties and
other unpredictable factors, many of which are beyond our control. In addition to other information included or incorporated by reference
in this prospectus supplement, please read carefully the sections titled “Business,” “Risk Factors” and “Management’s
Discussion and Analysis of Financial Condition and Results of Operations” in our most recent Annual Report on Form 10-K and
in other documents that we may file with the SEC, as well as the section entitled “Cautionary Statement Regarding Forward-Looking
Statements” in the accompanying prospectus, before making any investment in our common stock.
RISK FACTORS
Investing in our common stock
involves a high degree of risk. Before deciding whether to invest in our common stock, you should carefully consider the risks and uncertainties
described in the section titled “Risk Factors” in Part I, Item 1A of our most recent Annual Report on Form 10-K,
the section titled “Risk Factors” in Part II, Item 1A of our most recent Quarterly Report on Form 10-Q, and
any subsequent filings we have made with the SEC, which are incorporated by reference into this prospectus supplement and the accompanying
prospectus in their entirety, together with other information in this prospectus supplement, the accompanying prospectus, the documents
incorporated by reference in this prospectus supplement and the accompanying prospectus, and any free writing prospectus that we may authorize
for use in connection with this offering. The risks described below and in these documents are not the only ones we face. Additional risks
and uncertainties that we are unaware of, or that we currently believe are not material, may also become important factors that adversely
affect our business. Past financial performance may not be a reliable indicator of future performance, and historical trends should not
be used to anticipate results or trends in future periods. If any of these risks actually occurs, our business, reputation, financial
condition, results of operations, revenue, and future prospects could be seriously harmed. This could cause our net asset value and the
trading price of our common stock to decline, resulting in a loss of all or part of your investment. Please also read carefully the sections
titled “Special Note Regarding Forward-Looking Statements” and “Cautionary Statement Regarding Forward-Looking Statements”
in this prospectus supplement and the accompanying prospectus, respectively.
Risks Relating to this Offering
Management will have broad discretion as
to the use of proceeds from this offering and may invest or spend the proceeds in ways with which you do not agree and in ways that may
not increase the value of your investment.
Our management will have broad
discretion over the use of proceeds from this offering, including for any of the purposes described in the section of this prospectus
supplement titled “Use of Proceeds.” You may not agree with our decisions, and our use of the proceeds may not yield any return
on your investment. If we fail to apply the net proceeds from this offering effectively or in a timely manner, we might not be able to
yield a significant return, if any, on our investment of these net proceeds. You will not have the opportunity to influence our decisions
on how to use our net proceeds from this offering.
You may experience future dilution as a
result of future equity offerings.
In order to raise additional
capital, we may in the future offer additional shares of our common stock or other securities convertible into or exchangeable for our
common stock. We cannot assure you that we will be able to sell shares or other securities in any other offering at a price per share
that is equal to or greater than the price per share paid by investors in this offering, and investors purchasing shares or other securities
in the future could have rights superior to existing stockholders. The price per share at which we sell additional shares of our common
stock or other securities convertible into or exchangeable for our common stock in future transactions may be higher or lower than the
price per share in this offering. A significant portion of our total outstanding shares are eligible to be sold into the market, which
could cause the market price of our common stock to drop significantly, even if our business is doing well.
Sales of a substantial number of shares
of our common stock in the public market could occur at any time. These sales, or the perception in the market that the holders of a large
number of shares of our common stock intend to sell shares, could cause the market price of our common stock to decline significantly.
Upon completion of this offering,
based on 23,378,002 shares of our common stock outstanding as of September 30, 2024 and the assumed public offering price of $6.73
per share (the net asset value of our common stock at September 30, 2024), we will have outstanding a total of approximately 45,666,264
shares of common stock. Other than any shares held by our directors, officers and certain existing investors, all of these shares of
our common stock are currently freely tradable and the shares to be sold in this offering will be freely tradable, without restriction,
in the public market immediately following this offering.
As of September 30, 2024,
we had an aggregate of approximately 426,240 shares of common stock reserved for issuance under our Amended and Restated 2019 Equity Incentive
Plan, which would result in additional dilution.
Our common stock price may be volatile and
may decrease substantially.
The trading price of our common
stock may fluctuate substantially. The price of our common stock that will prevail in the market after this offering and any future offering
may be higher or lower than the price you pay, depending on many factors, some of which are beyond our control and may not be directly
related to our operating performance. These factors include, but are not limited to, the following:
| · | price and volume fluctuations in the overall stock market from time to time; |
| · | investor demand for our shares; |
| · | significant volatility in the market price and trading volume of securities of RICs, BDCs or other financial
services companies; |
| · | changes in regulatory policies or tax guidelines with respect to RICs or BDCs; |
| · | failure to qualify as a RIC for a particular taxable year, or the loss of RIC status; |
| · | actual or anticipated changes in our earnings or fluctuations in our operating results or changes in the
expectations of securities analysts; |
| · | general economic conditions and trends; |
| · | fluctuations in the valuation of our portfolio investments; |
| · | operating performance of companies comparable to us; |
| · | market sentiment against technology-related companies; or |
| · | departures of any of the senior members of our management team. |
In the past, following periods
of volatility in the market price of a company’s securities, securities class action litigation has often been brought against that
company. Due to the potential volatility of our stock price, we may therefore be the target of securities litigation in the future. Securities
litigation could result in substantial costs and divert management’s attention and resources from our business.
USE OF PROCEEDS
Sales of our common stock,
if any, under this prospectus supplement and the accompanying prospectus may be made in negotiated transactions or transactions that are
deemed to be part of an “at-the-market” offering as defined in Rule 415 under the Securities Act, including sales made
directly on the Nasdaq Global Select Market or sales made to or through a market maker other than on an exchange, at market prices prevailing
at the time of sale, at prices related to prevailing market prices or at other negotiated prices. There is no guarantee that there will
be any sales of our common stock pursuant to this prospectus supplement and the accompanying prospectus. Actual sales, if any, of our
common stock under this prospectus supplement and the accompanying prospectus may be less than as set forth in this paragraph depending
on, among other things, the market price of our common stock at the time of any such sale. As a
result, the actual net proceeds we receive may be more or less than the amount of net proceeds estimated in this prospectus supplement.
Assuming the sale of all $150.0 million of common stock offered under this prospectus supplement and the accompanying prospectus, we anticipate
that the net proceeds of this offering will be approximately $145.5 million, after deducting the sales commission payable to the Agents
and our estimated offering expenses.
We intend to use the net
proceeds from this offering to make investments in portfolio companies in accordance with our investment objective and strategies described
in the accompanying prospectus and for general corporate purposes.
PLAN OF DISTRIBUTION
We have entered into a sales
agreement with the Agents, under which we may issue and sell from time to time up to $150.0 million of our common stock through the Agents.
From July 29, 2020 through November 7, 2024, we issued and sold 3,832,686 shares under the ATM Program for gross proceeds
of approximately $51.2 million and net proceeds of approximately $50.2 million, after deducting commissions to the Agents on the shares
sold and offering expenses. As a result, as of November 7, 2024, up to approximately $98.8 million in aggregate amount of the shares
remain available for sale under the ATM Program.
Sales of our common stock,
if any, will be made by any method that is deemed to be an “at the market” offering as defined in Rule 415 under the
Securities Act, including sales made directly on the Nasdaq Global Select Market or any other trading market for our common stock or through
block trades. After consultation with us, the Agents may also sell shares in privately negotiated transactions. In addition, if authorized
by us in writing, the Agents may purchase shares of our common stock as principal.
The Agents may offer our common
stock subject to the terms and conditions of the sales agreement on a daily basis or as otherwise agreed upon by us and the Agents. Upon
instructions from us, we will designate the maximum amount of common stock to be sold through the Agents or otherwise determine such maximum
amount together with the Agents. Subject to the terms and conditions of the sales agreement, the Agents will use their commercially reasonable
efforts to sell on our behalf all of the shares of common stock requested to be sold by us. We will instruct the Agents to sell common
stock if the sales can be effected at or above the price designated by us in any such instruction. The Agents or we may suspend the offering
of our common stock being made through the Agents under the sales agreement upon proper notice to the other party. Each of the Agents
and the Company has the right, by giving written notice as specified in the sales agreement, to terminate the sales agreement in each
party’s sole discretion at any time.
The aggregate compensation
payable to the Agents as sales agents will be an amount equal to 2.0% of the gross sales price of the shares sold through them pursuant
to the sales agreement. We have also agreed to reimburse the Agents for (i) fifty percent (50%) of the reasonable out-of-pocket expenses
incurred by the Agents, including the fees and disbursements of counsel to the Agents in connection with the transactions contemplated
by the sales agreement, in an amount not to exceed $37,500, plus up to $3,750 per calendar quarter, and (ii) the fees and disbursements
of counsel to the Agents (up to $25,000) in connection with an amendment to the sales agreement and/or the filing of an additional prospectus
supplement.
The sales proceeds, after
deducting the Agents’ commissions and estimated offering expenses payable by us, will equal our net proceeds for the sale of such
common stock.
The Agents will provide written
confirmation to us following the close of trading on the Nasdaq Global Select Market on each day in which common stock is sold through
them as sales agents under the sales agreement. Each confirmation will include the number of shares of common stock sold through such
Agent on that day, the compensation payable by the Company to such Agent with respect to the shares of common stock sold on that day,
and the net proceeds to us.
Under the terms of the sales
agreement, we may also sell shares of our common stock to the Agents as principal for their own accounts at a price agreed upon at the
time of sale. The Agents may offer the common stock sold to them as principals from time to time through public or private transactions
at market prices prevailing at the time of sale, at fixed prices, at negotiated prices, at various prices determined at the time of sale
or at prices related to prevailing market prices. If we sell shares to an Agent as principal, we will enter into a separate agreement
with the Agent setting forth the terms of such transaction, and we will describe the agreement in a separate prospectus supplement.
We will report at least quarterly
the number of shares of common stock sold through the Agents under the sales agreement, the net proceeds to us and the compensation paid
by us to the Agents with respect to the sales of common stock.
Settlement for sales of common
stock will occur, unless the parties agree otherwise, on the second business day that is also a trading day following the date on which
any sales were made in return for payment of the net proceeds to us. There is no arrangement for funds to be received in an escrow, trust
or similar arrangement.
In connection with the sales
of our common stock on our behalf, the Agents may be deemed to be an “underwriter” within the meaning of the Securities Act,
and the compensation paid to the Agents may be deemed to be underwriting commissions or discounts. We have agreed in the sales agreement
to provide indemnification and contribution to the Agents against certain liabilities, including liabilities under the Securities Act.
As sales agents, the Agents will not engage in any transaction that stabilizes our common stock.
Our common stock is listed
on the Nasdaq Global Select Market and trades under the symbol “SSSS.” The transfer agent of our common stock is Equiniti
Trust Company, LLC.
The Agents and/or their respective
affiliates have provided, and may in the future provide, various investment banking and other financial services for us for which services
they have received and, may in the future receive, customary fees.
On May 3, 2011, the Company
closed its initial public offering of 3,335,000 shares of its common stock. Ladenburg served as an underwriting syndicate member and sold
1,730,000 shares of the Company’s common stock and received an underwriting discount and commissions equal to 7% of the initial
offering price.
On October 3, 2011, the
Company closed a follow-on offering of 2,185,000 shares of its common stock. Ladenburg served as an underwriting syndicate member and
sold 190,000 shares of the Company’s common stock and received an underwriting discount and commissions equal to 4% of the initial
offering price.
On February 15, 2012,
the Company closed a follow-on equity offering of 6,900,000 shares of its common stock. Ladenburg served as an underwriting syndicate
member and sold 660,000 shares of the Company’s common stock and received underwriting discount and commissions equal to 7% of the
initial offering price.
On May 16, 2012, the
Company closed a follow-on equity offering of 6,900,000 shares of its common stock. Ladenburg served as an underwriting syndicate member
and sold 600,000 shares of the Company’s common stock and received an underwriting discount and commissions equal to 6% of the initial
offering price.
On March 28, 2018, the
Company issued $40.0 million aggregate principal amount of 4.75% Convertible Senior Notes due 2023, which bore interest at a fixed rate
of 4.75% per year. BTIG served as the sole bookrunner in the offering and received an underwriting discount and commissions equal to 4%
of the initial offering price.
On December 17, 2021,
the Company issued $70.0 million aggregate principal amount of 6.00% Notes due 2026, and on December 21, 2021, the Company issued
an additional $5.0 million aggregate principal amount of 6.00% Notes due 2026 in connection pursuant to an overallotment option. The 6.00%
Notes due 2026 bear interest at a fixed rate of 6.00% per year. Ladenburg served as representative of the underwriters in the offering
and Barrington served as an underwriting syndicate member. Both of Ladenburg and Barrington received an underwriting discount and commissions
equal to 3.125% of the initial offering price.
The principal business address
of BTIG, LLC is 350 Bush Street, 9th Floor, San Francisco, CA 94104. The principal business address of Citizens JMP Securities, LLC is
600 Montgomery Street, 11th Floor, San Francisco, CA 94111. The principal business address of Ladenburg Thalmann & Co. Inc.
is 277 Park Avenue, 26th Floor, New York, NY 10172. The principal business address of Barrington Research Associates, Inc. is 161
N. Clark Street, Suite 2950, Chicago, IL 60601.
LEGAL MATTERS
Certain legal matters regarding
this offering will be passed upon for us by Eversheds Sutherland (US) LLP, Washington, DC. Certain legal matters in connection with this
offering will be passed upon for the Agents by Blank Rome LLP, New York, NY.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
We incorporate by reference
in this prospectus supplement the documents listed below and any reports and other documents we file with the SEC pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of this offering (such reports and other documents deemed
to be incorporated by reference into this prospectus supplement and to be part hereof from the date of filing of such reports and other
documents); provided, however, that information “furnished” under Item 2.02 or Item 7.01 of Form 8-K, or other information
“furnished” to the SEC pursuant to the Exchange Act will not be incorporated by reference into this prospectus supplement:
| · | Current Report on Form 8-K (other than information furnished rather than filed in accordance with
SEC rules) filed on April 16, 2024, May 8, 2024, June 6, 2024, July 11, 2024, August 7, 2024, October 10, 2024, and November 7, 2024; |
| · | The description of our common stock contained in Exhibit 4.5 of our Annual Report on Form 10-K
for the year ended December 31, 2023, which updated the description thereof in our Registration Statement on Form 8-A (File No. 001-35156), as filed with the SEC on April 27, 2011, including any amendment or report filed for the purpose of updating
such description prior to the termination of the offering of the common stock registered hereby. |
To obtain copies of these
filings, see “Available Information” in this prospectus supplement, or you may request a copy of these filings (other than
exhibits, unless the exhibits are specifically incorporated by reference into these documents) at no cost by writing or calling the following
address and telephone number:
SuRo Capital Corp.
640 Fifth Avenue, 12th Floor
New York, NY 10019
(212) 931-6331
You should rely only on the
information incorporated by reference or provided in this prospectus supplement and the accompanying prospectus. We have not authorized
anyone to provide you with different or additional information, and you should not rely on such information if you receive it. We are
not making an offer of or soliciting an offer to buy any securities in any state or other jurisdiction where such offer or sale is not
permitted. You should not assume that the information in this prospectus supplement, the accompanying prospectus or in the documents incorporated
by reference is accurate as of any date other than the date on the front of this prospectus supplement.
AVAILABLE INFORMATION
This prospectus supplement
and the accompanying prospectus constitute part of a shelf registration statement on Form N-2 that we have filed with the SEC, together
with any and all amendments and related exhibits, under the Securities Act. This prospectus supplement and the accompanying prospectus
do not contain all of the information set forth in the registration statement, some of which is contained in exhibits to the registration
statement as permitted by the rules and regulations of the SEC. For further information with respect to us and the common stock we
are offering under this prospectus supplement and the accompanying prospectus, we refer you to the registration statement, including the
exhibits filed as a part of the registration statement. Statements contained in this prospectus supplement and the accompanying prospectus
concerning the contents of any contract or any other document are not necessarily complete. If a contract or other document has been filed
as an exhibit to the registration statement, please see the copy of the contract or document that has been filed. Each statement in this
prospectus supplement and the accompanying prospectus relating to a contract or document filed as an exhibit is qualified in all respects
by the filed exhibit.
We are required to file with
or submit to the SEC annual, quarterly and current reports, proxy statements and other information meeting the informational requirements
of the Exchange Act. The SEC maintains a website that contains reports, proxy and information statements and other information filed electronically
by us with the SEC, which are available free of charge on the SEC’s website at www.sec.gov. This information will also be
available free of charge by contacting us at 640 Fifth Avenue, 12th Floor, New York, NY 10019, by telephone at (212) 931-6331, or on our
website at www.surocap.com. Information contained on our website or on the SEC’s web site about us is not incorporated into
this prospectus supplement or the accompanying prospectus and you should not consider information contained on our website or on the SEC’s
website to be part of this prospectus supplement or the accompanying prospectus.
PROSPECTUS
$400,000,000
SuRo Capital Corp.
Common Stock
Preferred Stock
Subscription Rights
Debt Securities
Warrants
We are an internally managed,
non-diversified, closed-end management investment company that has elected to be regulated as a business development company (“BDC”)
under the Investment Company Act of 1940, as amended (the “1940 Act”). We have also elected to be treated as a regulated investment
company (“RIC”) under subchapter M of the Internal Revenue Code of 1986, as amended (the “Code”), and expect to
continue to operate in a manner so as to qualify for the tax treatment applicable to RICs. We commenced operations upon completion of
our initial public offering (“IPO”) in May 2011.
Our investment objective is
to maximize our portfolio’s total return, principally by seeking capital gains on our equity and equity-related investments, and
to a lesser extent, income from debt investments. We invest principally in the equity securities of what we believe to be rapidly growing
venture capital-backed emerging companies. We acquire our investments through direct investments in prospective portfolio companies, secondary
marketplaces for private companies, and negotiations with selling stockholders. In addition, we may invest in private credit and in founders
equity, founders warrants, forward purchase agreements, and private investment in public equity transactions of special purpose acquisition
companies. We may also invest on an opportunistic basis in select publicly traded equity securities or certain non-U.S. companies that
otherwise meet our investment criteria, subject to applicable requirements of the 1940 Act.
We seek to deploy capital
primarily in the form of non-controlling equity and equity-related investments, including common stock, warrants, preferred stock, and
similar forms of senior equity, which may or may not be convertible into a portfolio company’s common equity, and convertible debt
securities with a significant equity component. Typically, our preferred stock investments are non-income producing, have different voting
rights than our common stock investments, and are generally convertible into common stock at our discretion. As our investment strategy
is focused on equity positions, our investments generally do not produce current income, and therefore, we may be dependent on future
capital raising to meet our operating needs if no other source of liquidity is available. We seek to create a low-turnover portfolio that
includes investments in companies representing a broad range of investment themes.
We may offer, from time to
time, in one or more offerings, up to $400,000,000 of our common stock, preferred stock, subscription rights to purchase shares of our
common stock, debt securities, and warrants representing rights to purchase shares of our common stock, preferred stock or debt securities,
which we refer to, collectively, as our “securities.” The preferred stock, subscription rights, warrants and debt securities
offered hereby may be convertible or exchangeable into shares of our common stock. The securities may be offered at prices and on terms
to be described in one or more supplements to this prospectus.
The offering price per share
of our common stock, less any underwriting commissions or discounts, will generally not be less than the net asset value per share of
our common stock at the time we make the offering. However, we may in the future seek to issue shares of our common stock pursuant to
this prospectus at a price per share that is less than our net asset value per share (i) with the prior approval of the majority
of our common stockholders or (ii) under such other circumstances as the U.S. Securities and Exchange Commission (the “SEC”)
may permit. In addition, even if we seek and obtain stockholder approval to sell our common stock at a price below our net asset value
per share, we cannot do so unless our board of directors (the “Board of Directors”) determines that it would be in our and
our stockholders’ best interests to do so.
Our securities may be offered
directly to one or more purchasers, or through agents designated from time to time by us, or to or through underwriters or dealers. The
prospectus supplement relating to an offering will identify any agents or underwriters involved in the sale of our securities, and will
disclose any applicable purchase price, fee, commission or discount arrangement between us and our agents or underwriters or among our
underwriters or the basis upon which such amount may be calculated. See “Plan of Distribution” in this prospectus. We may
not sell any of our securities through agents, underwriters or dealers or otherwise without delivery of this prospectus and a prospectus
supplement describing the method and terms of the offering of securities.
Our common stock is listed
on the Nasdaq Global Select Market under the symbol “SSSS.” As of August 15, 2023, the last reported sales price on the
Nasdaq Global Select Market for our common stock was $3.73 per share.
This prospectus describes
some of the general terms that may apply to an offering of our securities. We will provide the specific terms of these offerings and securities
in one or more supplements to this prospectus. We may also authorize one or more free writing prospectuses to be provided to you in connection
with these offerings. The prospectus supplement and any related free writing prospectus may also add, update, or change information contained
in this prospectus. You should carefully read this prospectus, the applicable prospectus supplement, and any related free writing prospectus,
and the documents incorporated by reference, before buying any of the securities being offered under this prospectus and the aforementioned
documents. We file annual, quarterly and current reports, proxy statements, and other information with the SEC (http://www.sec.gov),
which are available free of charge by contacting us by mail at 640 Fifth Avenue, 12th Floor, New York, NY 10019, on our website at http://www.surocap.com,
by telephone at (212) 931-6331, or by email at IR@surocap.com. This prospectus should be retained for future reference. Information contained
on our website is not incorporated by reference into this prospectus or any supplements to this prospectus, and you should not consider
that information to be part of this prospectus or any supplements to this prospectus. The contact information provided above may be used
by you to make investor inquiries.
An investment in our
securities is very risky and highly speculative. Shares of closed-end investment companies, including BDCs, frequently trade at a discount
to their net asset value. In addition, the companies in which we invest are subject to special risks. See “Risk Factors” beginning
on page 13 of this prospectus, in Part I, Item 1A of our most recent Annual Report on Form 10-K, in Part II, Item
1A of our most recent Quarterly Report on Form 10-Q and in, or incorporated by reference into, the applicable prospectus supplement
and in any free writing prospectuses we may authorize for use in connection with a specific offering, and under similar headings in the
other documents that are incorporated by reference into this prospectus, to read about factors you should consider, including the risk
of leverage, before investing in our securities.
Neither the SEC nor any
state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete.
Any representation to the contrary is a criminal offense.
This prospectus may not
be used to consummate sales of securities unless accompanied by a prospectus supplement.
The date of this prospectus is ,
2023.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of
a registration statement that we have filed with the SEC using the “shelf” registration process. Under this shelf registration
statement, we may offer, from time to time, in one or more offerings, up to $400,000,000 of our common stock, preferred stock, subscription
rights to purchase shares of our common stock, debt securities or warrants representing rights to purchase shares of our common stock,
preferred stock or debt securities, on terms to be determined at the time of the offering. Our securities may be offered at prices and
on terms described in one or more supplements to this prospectus. This prospectus provides you with a general description of our securities
and the offerings thereof that we may make pursuant to this prospectus. Each time we use this prospectus to offer our securities, we will
provide a prospectus supplement that will contain specific information about the terms of that offering. We may also authorize one or
more free writing prospectuses to be provided to you that may contain material information relating to such offerings. In a prospectus
supplement or free writing prospectus, we may also add, update, or change any of the information contained in this prospectus or in the
documents we have incorporated by reference into this prospectus. This prospectus, together with the applicable prospectus supplement,
any related free writing prospectus, and the documents incorporated by reference into this prospectus and the applicable prospectus supplement,
will include all material information relating to the applicable offering. Before buying any of the securities being offered, you should
carefully read both this prospectus and the applicable prospectus supplement and any related free writing prospectus, together with any
exhibits and the additional information described in the sections titled “Available Information,” “Incorporation of
Certain Information by Reference,” “Prospectus Summary” and “Risk Factors” in this prospectus.
This prospectus may contain
estimates and information concerning our industry, including market size and growth rates of the markets in which we participate, that
are based on industry publications and reports. This information involves many assumptions and limitations, and you are cautioned not
to give undue weight to these estimates. We have not independently verified the accuracy or completeness of the data contained in these
industry publications and reports. The industry in which we operate is subject to a high degree of uncertainty and risk due to a variety
of factors, including those described in the section titled “Risk Factors” in this prospectus, in Part I, Item
1A of our most recent Annual Report on Form 10-K and in Part II, Item 1A of our most recent Quarterly Report on Form 10-Q,
that could cause results to differ materially from those expressed in these publications and reports.
This prospectus includes summaries
of certain provisions contained in some of the documents described in this prospectus, but reference is made to the actual documents for
complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred
to herein have been filed, will be filed, or will be incorporated by reference as exhibits to the registration statement of which this
prospectus is a part, and you may obtain copies of those documents as described in the section titled “Available Information”
in this prospectus.
You should rely only on
the information included or incorporated by reference in this prospectus, any prospectus supplement, or in any free writing prospectus
prepared by or on behalf of us or to which we have referred you. We have not authorized any dealer, salesperson or other person to provide
you with different information or to make representations as to matters not stated in this prospectus or in any free writing prospectus
prepared by or on behalf of us or to which we have referred you. We take no responsibility for, and can provide no assurance as to the
reliability of, any other information that others may give you. If anyone provides you with different or inconsistent information, you
should not rely on it. This prospectus, any applicable prospectus supplement and any free writing prospectus prepared by or on behalf
of us or to which we have referred you do not constitute an offer to sell, or a solicitation of an offer to buy, any securities by any
person in any jurisdiction where it is unlawful for that person to make such an offer or solicitation or to any person in any jurisdiction
to whom it is unlawful to make such an offer or solicitation. You should not assume that the information included or incorporated by reference
in this prospectus or any prospectus supplement or in any such free writing prospectus is accurate as of any date other than their respective
dates.
PROSPECTUS SUMMARY
The following summary
contains basic information about offerings pursuant to this prospectus. It may not contain all the information that is important to you.
For a more complete understanding of offerings pursuant to this prospectus, we encourage you to read this entire prospectus and the documents
to which we have referred in this prospectus, together with any accompanying prospectus supplements or free writing prospectuses, including
the risks set forth under the caption “Risk Factors” in Part I, Item 1A of our most recent Annual Report on Form 10-K,
in Part II, Item 1A of our most recent Quarterly Report on Form 10-Q, in this prospectus, the applicable prospectus supplement
and any related free writing prospectus, and under similar headings in any other documents that are incorporated by reference into this
prospectus and the applicable prospectus supplement, and the information set forth under the caption “Available Information”
in this prospectus.
Except where the context
suggests otherwise, the terms “we,” “us,” “our,” the “Company” and “SuRo Capital”
refer to SuRo Capital Corp.
SuRo Capital
We are an internally managed,
non-diversified, closed-end management investment company that formed in 2010 as a Maryland corporation. We have elected to be regulated
as a BDC under the 1940 Act, and have elected to be treated, qualify, and intend to qualify annually as a RIC under Subchapter M of the
Code.
Our date of inception was
January 6, 2011, which is the date we commenced development stage activities, and we commenced operations as a BDC upon completion
of our IPO in May 2011. Our common stock is currently listed on the Nasdaq Global Select Market under the symbol “SSSS.”
We began our investment operations during the second quarter of 2011. On and effective June 22, 2020, we changed our name to “SuRo
Capital Corp.” from “Sutter Rock Capital Corp.”
Our investment objective is
to maximize our portfolio’s total return, principally by seeking capital gains on our equity and equity-related investments, and
to a lesser extent, income from debt investments. In addition, we may invest in private credit and in founders equity, founders warrants,
forward purchase agreements, and private investment in public equity transactions of special purpose acquisition companies. We invest
principally in the equity securities of what we believe to be rapidly growing venture capital-backed emerging companies. We acquire our
investments through direct investments in prospective portfolio companies, secondary marketplaces for private companies, and negotiations
with selling stockholders. We may also invest on an opportunistic basis in select publicly traded equity securities or certain non-U.S.
companies that otherwise meet our investment criteria. To the extent we make investments in private equity funds and hedge funds that
are excluded from the definition of “investment company” under the 1940 Act by Section 3(c)(1) or 3(c)(7) of
the 1940 Act, we will limit such investments to no more than 15% of our net assets.
Our investment philosophy
is based on a disciplined approach of identifying promising investments in high-growth, venture-backed companies across several key industry
themes, which may include, among others, social/mobile, cloud computing and big data, internet commerce, financial technology, mobility,
and enterprise software. Our investment decisions are based on a disciplined analysis of available information regarding each potential
portfolio company’s business operations, focusing on the portfolio company’s growth potential, the quality of recurring revenues,
and path to profitability, as well as an understanding of key market fundamentals. Venture capital funds or other institutional investors
have invested in the vast majority of companies that we evaluate.
We seek to deploy capital
primarily in the form of non-controlling equity and equity-related investments, including common stock, warrants, preferred stock, and
similar forms of senior equity, which may or may not be convertible into a portfolio company’s common equity, and convertible debt
securities with a significant equity component. Typically, our preferred stock investments are non-income producing, have different voting
rights than our common stock investments, and are generally convertible into common stock at our discretion. As our investment strategy
is primarily focused on equity positions, our investments generally do not produce current income, and therefore, we may be dependent
on future capital raising to meet our operating needs if no other source of liquidity is available.
We seek to create a low-turnover
portfolio that includes investments in companies representing a broad range of investment themes.
Operating and Regulatory Structure
We formed in 2010 as Maryland
corporation that operates as an internally managed, non-diversified closed-end management investment company. As an internally managed
BDC, we are managed by our employees, rather than the employees of an external investment adviser, thereby allowing for greater transparency
to stockholders through robust disclosure regarding our compensation structure. Our investment activities are supervised by our Board
of Directors and managed by our executive officers and investments professionals, all of which are our employees.
As a BDC, we are subject to
certain regulatory requirements. See “Part I, Item 1 — Business — Regulation as a Business Development Company”
in our most recent Annual Report on Form 10-K. Further, while we are permitted to finance investments using debt, our ability to
use debt is limited in certain significant aspects. With certain limited exceptions, we may issue “senior securities,” including
borrowing money from banks or other financial institutions only in amounts such that the ratio of our total assets (less total liabilities
other than indebtedness represented by senior securities) to our total indebtedness represented by senior securities plus preferred stock,
if any, is at least 200% (or 150% if certain conditions are met) after such incurrence or issuance. This means that generally, we can
borrow up to $1 for every $1 of investor equity (or, if certain conditions are met, we can borrow up to $2 for every $1 of investor equity).
In March 2018, the Small Business Credit Availability Act modified the 1940 Act by allowing a BDC to increase the maximum amount
of leverage it may incur by decreasing the asset coverage percentage from 200% to 150%, if certain requirements under the 1940 Act are
met. Under the 1940 Act, we are allowed to increase our leverage capacity if stockholders representing at least a majority of the votes
cast, when a quorum is present, approve a proposal to do so. If we receive stockholder approval, we would be allowed to increase our leverage
capacity on the first day after such approval. Alternatively, the 1940 Act allows the majority of our independent directors to approve
an increase in our leverage capacity, and such approval would become effective after the one-year anniversary of such approval. In either
case, we would be required to make certain disclosures on our website and in SEC filings regarding, among other things, the receipt of
approval to increase our leverage, our leverage capacity and usage, and risks related to leverage. The Company currently does not intend
to seek stockholder approval or board approval to increase its leverage capacity as set forth above. See “Risk Factors” in
Part I, Item 1A in our most recent Annual Report on Form 10-K and in Part II, Item 1A of our most recent Quarterly
Report on Form 10-Q for more information.
We have elected to be treated
as a RIC under Subchapter M of the Code and expect to continue to operate in a manner so as to qualify for the tax treatment applicable
to RICs. See “Certain U.S. Federal Income Tax Considerations” in this prospectus and “Part II, Item 8 —
Financial Statements and Supplementary Data — Note 2 — Significant Accounting Policies — U.S. Federal and State Income
Taxes” and “Part II, Item 8 — Financial Statements and Supplementary Data — Note 9 — Income Taxes”
in our most recent Annual Report on Form 10-K.
As of August 15, 2023,
we had 11 employees, each of whom was directly employed by us. These employees include our executive officers, investment and finance
professionals, and administrative staff. Our principal office is located at 640 Fifth Avenue, 12th Floor, New York, NY 10019, and we maintain
a satellite office at One Sansome Street, Suite 730, San Francisco, CA 94104. Our telephone number is (212) 931-6331. We maintain
a website at http://www.surocap.com. Information contained on our website is not incorporated by reference into this prospectus,
and you should not consider information contained on our website to be part of this prospectus.
Investment Opportunity
We believe that society is
experiencing a convergence of numerous disruptive trends, producing new high-growth markets.
At the same time, we believe
that the IPO markets have experienced substantial structural changes which have made it significantly more challenging for private companies
to go public. Volatile equity markets, a lack of investment research coverage for private and smaller companies, and investor demand for
a longer history of revenue and earnings growth have resulted in companies staying private significantly longer than in the past. In addition,
increased public company compliance obligations, such as those imposed by the Sarbanes-Oxley Act of 2002, as amended, and the Dodd-Frank
Wall Street Reform and Consumer Protection Act, have made it more costly and less attractive to become a public company. As a result,
there are significantly fewer IPOs today than there were during the 1990s, with prospective public companies taking longer to come to
market.
Investment Strategy
We seek to maintain our portfolio
of potentially high-growth emerging private companies via a repeatable and disciplined investment approach, as well as to provide investors
with access to such companies through our publicly traded common stock.
Our investment objective is
to maximize our portfolio’s total return, principally by seeking capital gains on our equity and equity-related investments, and
to a lesser extent, income from debt investments. In addition, we may invest in private credit and in the founders equity, founders warrants,
forward purchase agreements, and private investment in public equity (“PIPE”) transactions of special purpose acquisition
companies (“SPACs”). We have adopted the following business strategies to achieve our investment objective:
| · | Identify high quality growth
companies. Based on our extensive experience in analyzing technology trends and markets, we have identified several technology
sub-sectors, including social mobile, big data and cloud, marketplaces, and education technology, as opportunities where we believe companies
are capable of producing substantial growth. We rely on our collective industry knowledge as well as an understanding of where leading
venture capitalists and other institutional investors are investing. |
We leverage a combination
of our relationships throughout Silicon Valley and our independent research to identify leaders in our targeted sub-sectors that we believe
are differentiated and best positioned for sustained growth. Our team continues to expand our sourcing network in order to evaluate a
wide range of investment opportunities in companies that demonstrate strong operating fundamentals. We are targeting businesses that have
been shown to provide scaled valuation growth before a potential IPO or strategic exit.
| · | Acquire positions in targeted
investments. We seek to selectively add to our portfolio by sourcing investments at an acceptable price through our disciplined
investing strategy. To this end, we utilize multiple methods to acquire equity stakes in private companies that are not available to
many individual investors. |
Direct equity investments.
We seek direct investments in private companies. There is a large market among emerging private companies for equity capital investments.
Many of these companies, particularly within the technology sector, lack the necessary cash flows to sustain substantial amounts of debt,
and therefore have viewed equity capital as a more attractive long-term financing tool. We seek to be a source of such equity capital
as a means of investing in these companies and look for opportunities to invest alongside other venture capital and private equity investors
with whom we have established relationships.
Private secondary marketplaces
and direct share purchases. We also utilize private secondary marketplaces as a means to acquire equity and equity-related interests
in privately held companies that meet our investment criteria and that we believe are attractive candidates for investment. We believe
that such markets offer new channels for access to equity investments in private companies and provide a potential source of liquidity
should we decide to exit an investment. In addition, we also purchase shares directly from stockholders, including current or former employees.
As certain companies grow and experience significant increased value while remaining private, employees and other stockholders may seek
liquidity by selling shares directly to a third party or to a third party via a secondary marketplace. Sales of shares in private companies
are typically restricted by contractual transfer restrictions and may be further restricted by provisions in company charter documents,
investor rights of first refusal and co-sale and company employment and trading policies, which may impose strict limits on transfer.
We believe that the reputation of our investment professionals within the industry and established history of investing affords us a favorable
position when seeking approval for a purchase of shares subject to such limitations.
| · | Create access to a varied
investment portfolio. We seek to hold a varied portfolio of non-controlling equity investments, which we believe will minimize
the impact on our portfolio of a negative downturn at any one specific company. We believe that our relatively varied portfolio will
provide a convenient means for accredited and non-accredited individual investors to obtain access to an asset class that has generally
been limited to venture capital, private equity and similar large institutional investors. |
Starting in 2017, we began
to focus our investment strategy to increase the size of our investments in individual portfolio companies. While this will likely have
the effect of reducing the number of companies in which we hold investments, we believe that the shift towards larger positions will better
allow our investment professionals to focus our investments in companies and industries that are more likely to result in beneficial returns
to our stockholders.
Competitive Advantages
We believe that we benefit
from the following competitive advantages in executing our investment strategy:
| · | Capable team of investment
professionals. Our executive officers, investment professionals, and Board of Directors have significant experience researching
and investing in the types of high-growth venture-capital-backed companies we are targeting for investment. Through our proprietary company
evaluation process, including our identification of technology trends and themes and company research, we believe we have developed important
insight into identifying and valuing emerging private companies. |
| · | Disciplined and repeatable
investment process. We have established a disciplined and repeatable process to locate and acquire available shares at attractive
valuations by utilizing multiple sources. In contrast to industry “aggregators” that accumulate stock at market prices, we
conduct valuation analysis and make acquisitions only when we can invest at valuations that we believe are attractive to our investors. |
| · | Deep relationships with significant
credibility to source and complete transactions. Our executive officers and investment professionals are strategically located
in New York, New York and at our additional office in San Francisco, California, allowing us to fully engage in the technology and innovation
ecosystem. Our wide network of venture capital and technology professionals supports our sourcing efforts and helps provide access to
promising investment opportunities. Our executive officers and investment professionals have also developed strong relationships in the
financial, investing and technology-related sectors. |
| · | Source of permanent investing
capital. As a publicly traded corporation, we have access to a source of permanent equity capital that we can use to invest in
portfolio companies. This permanent equity capital is a significant differentiator from other potential investors that may be required
to return capital to stockholders on a defined schedule. We believe that our ability to invest on a long-term time horizon makes us attractive
to companies looking for strong, stable owners of their equity. |
| · | Early mover advantage.
We believe we are one of the few publicly traded BDCs with a specific focus on investing in high-growth venture-backed companies. The
transactions that we have executed to date since our IPO have helped to establish our reputation with the types of secondary sellers
and emerging companies that we target for investment. We have leveraged a number of relationships and channels to acquire the equity
of private companies. As we continue to grow our portfolio with attractive investments, we believe that our reputation as a committed
partner will be further enhanced, allowing us to source and close investments that would otherwise be unavailable. We believe that these
factors collectively differentiate us from other potential investors in private company securities and will serve our goal to complete
equity transactions in compelling private companies at attractive valuations. |
Our primary competitors include
specialty finance companies including late-stage venture capital funds, private equity funds, other crossover funds, public funds investing
in private companies and public and private BDCs. Many of these entities have greater financial and managerial resources than we will
have. In addition, some of our competitors may have higher risk tolerances or different risk assessments, which could allow them to consider
more investments and establish more relationships than we do. Furthermore, many of our competitors are not subject to the regulatory restrictions
the 1940 Act imposes on us as a BDC. For additional information concerning the competitive risks we face, see “Part I, Item
1A — Risk Factors — Risks Related to Our Business and Structure” in our most recent Annual Report on Form 10-K
and “Part II, Item 1A—Risk Factors” in our most recent Quarterly Report on Form 10-Q.
Investment Process
Concentrated Technology-Related Focus
Our executive officers and
investment professionals have identified five key investment themes from which we have seen significant numbers of high-growth companies
emerge: social and mobile, financial technology and services, big data and cloud, marketplaces, and education. However, the opportunity
set of high-growth venture-backed technology companies extends beyond these key investment themes into much broader markets. These broad
markets have the potential to produce disruptive technologies, reach a large addressable market, and provide significant commercial opportunities.
Within these areas, we have identified trends that could create significant positive effects on growth such as globalization, consolidation,
branding, convergence and network effects. Thus, while we remain focused on selecting market leaders within the key investment themes
identified, our executive officers and investment professionals actively seek out promising investments across a diverse selection of
new technology subsectors.
Investment Targeting and Screening
We identify prospective portfolio
companies through an extensive network of relationships developed by our executive officers and investment professionals, supplemented
by the knowledge and relationships of our Board of Directors. Investment opportunities that fall within our identified themes are validated
against the observed behavior of leading venture capitalists and institutional investors, as well as through our own internal and external
research. We evaluate potential portfolio companies across a spectrum of criteria, including industry positioning and leadership, stage
of growth, path to profitability, the uniqueness and defensibility of the portfolio company’s strategy, investor sponsorship, and
the portfolio company’s potential access to capital to continue to fund its growth that collectively characterize our proprietary
investment process. We typically seek to invest our assets under management in the equity of well-established and growth stage companies,
and debt investments of emerging companies that fit within our targeted areas. Based on our initial screening, we identify a select set
of companies that we evaluate in greater depth.
Research and Due Diligence Process
Once we identify those companies
that we believe warrant more in-depth analysis, we focus on their total addressable market, revenue growth and sustainability, and earnings
growth, as well as other metrics that may be strongly correlated with higher valuations. We also focus on the company’s management
team and any significant financial sponsor, their current business model, competitive positioning, regulatory and legal issues, the quality
of any intellectual property and other investment-specific due diligence. Each prospective portfolio company that passes our initial due
diligence review is given a qualitative ranking to allow us to evaluate it against others in our pipeline, and we review and update these
companies on a regular basis.
Our due diligence process
will vary depending on whether we are investing through a private secondary transaction on a marketplace or with a selling stockholder
or by direct equity investment. We access information on our potential investments through a variety of sources, including information
made available on secondary marketplaces, publications by private company research firms, industry publications, commissioned analysis
by third-party research firms, and, to a limited extent, directly from the company or financial sponsor. We utilize a combination of each
of these sources to help us set a target value for the companies we ultimately select for investment.
Portfolio Construction and Sourcing
Upon completion of our research
and due diligence process, we select investments for inclusion in our portfolio based on their value proposition, addressable market,
fundamentals and valuation. We seek to create a relatively varied portfolio that we expect will include investments in companies representing
a broad range of investment themes. We generally choose to pursue specific investments based on the availability of shares and valuation
expectations. We utilize a combination of secondary marketplaces, direct purchases from stockholders and direct equity investments in
order to make investments in our portfolio companies. Once we have established an initial position in a portfolio company, we may choose
to increase our stake through subsequent purchases. Maintaining a balanced portfolio is a key to our success, and as a result we constantly
evaluate the composition of our investments and our pipeline to ensure we are exposed to a diverse set of companies within our target
segments.
Transaction Execution
We enter into purchase agreements
for substantially all of our private company portfolio investments. Private company securities are typically subject to contractual transfer
limitations, which may, among other things, give the issuer, its assignees and/or its stockholders a particular period of time, often
30 days or more, in which to exercise a veto right, or a right of first refusal over, the sale of such securities. Accordingly, the purchase
agreements we enter into for secondary transactions typically require the lapse or satisfaction of these rights as a condition to closing.
Under these circumstances, we may be required to deposit the purchase price into escrow upon signing, with the funds released to the seller
at closing or returned to us if the closing conditions are not met.
Risk Management and Monitoring
We monitor the financial trends
of each portfolio company to assess our exposure to individual companies as well as to evaluate overall portfolio quality. We establish
valuation targets at the portfolio level and for gross and net exposures with respect to specific companies and industries within our
overall portfolio. In cases where we make a direct investment in a portfolio company, we may also obtain board positions, board observation
rights and/or information rights from that portfolio company in connection with our equity investment. We regularly monitor our portfolio
for compliance with the diversification requirements for purposes of maintaining our status as a BDC and a RIC for tax purposes.
Risk Associated with Our Business
Our business is subject to
numerous risks, as described in the section titled “Risk Factors” in the applicable prospectus supplement and in any free
writing prospectuses we have authorized for use in connection with a specific offering, and under similar headings in the documents that
are incorporated by reference into this prospectus, including the section titled “Risk Factors” included in our most recent
Annual Report on Form 10-K, in our most recent Quarterly Report on Form 10-Q, as well as in any of our subsequent SEC filings.
THE OFFERING
We may offer, from time to
time, up to $400,000,000 of our common stock, preferred stock, subscription rights to purchase shares of our common stock, debt securities,
or warrants representing rights to purchase shares of our common stock, preferred stock, or debt securities on terms to be determined
at the time of each offering and set forth in one or more supplements to this prospectus. We will offer our securities at prices and on
terms to be set forth in one or more supplements to this prospectus and any related free writing prospectus.
Our securities may be offered
directly to one or more purchasers, including to existing stockholders in a rights offering, by us or through agents designated from time
to time by us, or to or through underwriters or dealers. The prospectus supplement relating to an offering and any related free writing
prospectus will disclose the terms of such offering, including the name or names of any agents or underwriters involved in the sale of
our securities, the purchase price, and any fee, commission or discount arrangement between us and our agents or underwriters or among
our underwriters, or the basis upon which such amount may be calculated. See “Plan of Distribution” in this prospectus for
further information. We may not sell any of our securities through agents, underwriters or dealers without delivery of this prospectus
and a prospectus supplement describing the method and terms of the offering of our securities.
Set forth below is additional
information regarding offerings of our securities pursuant to this prospectus:
| Use of Proceeds |
|
Unless otherwise specified in a prospectus supplement, we plan to invest the net proceeds from the sale of our securities pursuant to this prospectus and any accompanying prospectus supplement in portfolio companies in accordance with our investment objective and strategies described in this prospectus. We will also use a portion of any such net proceeds to pay operating expenses and other expenses, such as due diligence expenses relating to potential new investments. We anticipate that substantially all of the net proceeds of any such offering will be used for the above purposes within six to twelve months, depending on the availability of investment opportunities that are consistent with our investment objectives and market conditions, except for such amounts as may be retained for purposes of funding our ongoing operations subsequent to the completion of such offering. Each supplement to this prospectus or free writing prospectus relating to an offering will more fully identify the use of the proceeds from such offering. See “Use of Proceeds” in this prospectus for further information. |
| |
|
|
| Nasdaq Global Select Market symbol |
|
Our common stock is listed on the Nasdaq Global Select Market under the symbol “SSSS.” |
| |
|
|
| Distributions |
|
The timing and amount of our dividends, if any, will be determined by our Board of Directors. Any dividends to our stockholders will be declared out of assets legally available for distribution. As we focus on making primarily capital gains-based investments in equity securities, we do not anticipate that we will pay dividends on a quarterly basis or become a predictable distributor of dividends, and we expect that our dividends, if any, will be less consistent than the dividends of other BDCs that primarily make debt investments. |
| |
|
|
| Taxation |
|
We have elected to be treated, qualify, and intend to comply with the requirements so to continue to qualify annually as a RIC under Subchapter M of the Code. As a RIC, we generally will not be subject to U.S. federal income tax on any ordinary income or capital gains that we timely distribute to our stockholders as dividends. To continue to maintain our RIC tax treatment, we must meet specified source-of-income and asset diversification requirements and distribute annually at least 90% of our ordinary income and realized net short-term capital gains in excess of realized net long-term capital losses, if any. See “Certain U.S. Federal Income Tax Considerations” in this prospectus for further information. |
| Leverage |
|
We may use leverage to make investments. As a result, to the extent we use leverage to make investments, we may be exposed to the risks of leverage. Leverage may be considered a speculative investment technique. The use of leverage magnifies the potential for gain and loss on amounts we invest, and therefore, indirectly increases the risks associated with investing in shares of our common stock. With certain limited exceptions, we may issue “senior securities,” including borrowing money from banks or other financial institutions, only in amounts such that the ratio of our total assets (less total liabilities other than indebtedness represented by senior securities) to our total indebtedness represented by senior securities plus preferred stock, if any, is at least 200% (or 150% if certain conditions are met) after such incurrence or issuance. This means that generally, we can borrow up to $1 for every $1 of investor equity (or, if certain conditions are met, we can borrow up to $2 for every $1 of investor equity). The costs associated with our borrowings are borne by our stockholders. In connection with this offering, neither our Board of Directors nor our shareholders are being asked to approve a reduced asset coverage ratio. See “Risk Factors” in this prospectus, in Part I, Item 1A of our most recent Annual Report on Form 10-K, and in Part II, Item 1A of our most recent Quarterly Report on Form 10-Q for more information. |
| |
|
|
| Trading at a Discount |
|
Shares of closed-end investment companies frequently trade at a discount to their net asset value. The possibility that our common stock may trade at a discount to our net asset value per share is separate and distinct from the risk that our net asset value per share may decline. We cannot predict whether our common stock will trade above, at or below net asset value. |
| |
|
|
| Sales of Common Stock Below Net Asset Value |
|
The offering price per share of our common stock,
less any underwriting commissions or discounts, will not be less than the net asset value per share of our common stock at the time of
the offering, except (i) with the requisite approval of our common stockholders or (ii) under such other circumstances as the
SEC may permit. In addition, we cannot issue shares of our common stock below net asset value unless our Board of Directors determines
that it would be in our and our stockholders’ best interests to do so. We did not seek stockholder authorization to issue common
stock at a price below net asset value per share at our 2023 annual meeting of stockholders.
Sales by us of our common stock at a discount
from our net asset value pose potential risks for our existing stockholders whether or not they participate in the offering, as well as
for new investors who participate in the offering. See “Sales of Common Stock Below Net Asset Value” in this prospectus for
further information. |
| |
|
|
| Dividend Reinvestment Plan |
|
We have adopted an “opt out” dividend reinvestment plan (the “DRIP”). If your shares of common stock are registered in your own name, your distributions will automatically be reinvested under our DRIP in additional shares of common stock, unless you “opt out” of our DRIP so as to receive cash dividends by delivering a written notice to our dividend paying agent. If your shares are held in the name of a broker or other nominee, you should contact the broker or nominee for details regarding opting out of our DRIP. Stockholders who receive distributions in the form of stock will be subject to the same U.S. federal, state and local tax consequences as stockholders who elect to receive their distributions in cash. See “Dividend Reinvestment Plan” in this prospectus for further information. |
| |
|
|
| Certain Anti-Takeover Measures |
|
Our charter and bylaws, as well as certain statutory and regulatory requirements, contain certain provisions that may have the effect of discouraging a third party from making an acquisition proposal for us. These anti-takeover provisions may inhibit a change in control in circumstances that could give the holders of our securities the opportunity to realize a premium over the market price for our securities. See “Description of Our Capital Stock” in this prospectus for further information. |
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|
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| Available Information |
|
We have filed with the SEC a registration statement
on Form N-2 together with all amendments and related exhibits under the Securities Act. The registration statement contains additional
information about us and the securities being offered by this prospectus.
We are required to file annual, quarterly and
current reports, proxy statements, and other information with the SEC under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”). The SEC maintains an Internet site that contains reports, proxy and information statements, and other information regarding
registrants that are filed electronically, which are available free of charge on the SEC’s website at http://www.sec.gov.
This information is also available free of charge by contacting us at SuRo Capital Corp., 640 Fifth Avenue, 12th Floor, New York, NY 10019,
by telephone at (212) 931-6331, or on our website at http://www.surocap.com. |
| |
|
|
| Incorporation of Certain Information by Reference |
|
This prospectus is part of a registration statement that we have filed with the SEC. In accordance with the Small Business Credit Availability Act, we are allowed to “incorporate by reference” the information that we file with the SEC, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to comprise a part of this prospectus from the date we file that information. Any reports filed by us with the SEC subsequent to the date of this prospectus until we have sold all of the securities offered by this prospectus or the offering is otherwise terminated will automatically update and, where applicable, supersede any information contained in this prospectus or incorporated by reference in this prospectus. See “Incorporation of Certain Information by Reference” in this prospectus for further information. |
FEES AND EXPENSES
The following table is intended
to assist you in understanding the costs and expenses that an investor in an offering will bear directly or indirectly. We caution you
that some of the percentages indicated in the table below are estimates and may vary. The following table should not be considered a representation
of our future expenses. Actual expenses may be greater or less than shown. Except where the context suggests otherwise, whenever this
prospectus contains a reference to fees or expenses paid by “us” or “SuRo Capital,” or that “we” will
pay fees or expenses, you will indirectly bear such fees or expenses as an investor in SuRo Capital Corp., however, your responsibility
for such fees or expenses is limited to your investment in SuRo Capital Corp. The fee table and example below include all fees and expenses
of our consolidated subsidiaries.
| Stockholder transaction expenses: |
|
|
|
|
| Sales load (as a percentage of offering price) |
|
|
— |
%(1) |
| Offering expenses (as a percentage of offering price) |
|
|
— |
%(2) |
| Dividend reinvestment plan expenses |
|
|
— |
%(3) |
| Total stockholder transaction expenses (as a percentage of offering price) |
|
|
— |
%(4) |
| |
|
|
|
|
| Annual expenses (as a percentage of net assets attributable to common stock):(8) |
|
|
|
|
| Operating expenses |
|
|
7.26 |
%(5) |
| Interest payments on borrowed funds |
|
|
2.53 |
%(6) |
| Other expenses |
|
|
1.20 |
%(7) |
| Total annual expenses |
|
|
10.99 |
% |
| (1) |
In the event that our securities are sold to or through underwriters, a corresponding prospectus supplement will disclose the applicable sales load. |
| (2) |
In the event that we conduct an offering of our securities, a corresponding prospectus supplement will disclose the estimated offering expenses. Our common stockholders will bear, directly or indirectly, the expenses of any offering of our securities, including debt securities. |
| (3) |
Under the DRIP, we will pay the plan administrator’s fees. There will be no brokerage charges or other charges to stockholders who participate in the DRIP, except that if a participant elects, by his or its written or telephonic notice to the plan administrator in advance of termination, to have the plan administrator sell part or all of his, her, or its shares and remit the proceeds to the participant, the plan administrator is authorized to deduct a $15 transaction fee plus brokerage commission from the proceeds. For additional information, see “Dividend Reinvestment Plan” in this prospectus. The expenses of our DRIP are included in “Other Expenses.” |
| (4) |
The total stockholder transaction expenses may include sales load and will be disclosed in a future prospectus supplement, if any. |
| (5) |
Operating expenses in this table represent the
estimated annual operating expenses of SuRo Capital and its consolidated subsidiaries based on annualized operating expenses for the six
months ended ended June 30, 2023. The estimate provided in this table is inclusive of certain non-recurring and one-time expenses
specific to the six months ended and June 30, 2023, including annual stock-based compensation grants, that, as annualized, may not
accurately reflect a true estimate of SuRo Capital’s annual expenses.
We do not have an investment adviser and are internally
managed by our executive officers under the supervision of our Board of Directors. As a result, we do not pay investment advisory fees;
instead, we pay the operating costs associated with employing investment management professionals, including, without limitation, compensation
expenses related to salaries, discretionary bonuses, and restricted stock grants. |
| (6) |
We are exposed to the risks of leverage, which may be considered a speculative investment technique. The use of leverage magnifies the potential for gain and loss on amounts invested and, therefore, increases the risks associated with an investment in us. Interest payments on borrowed funds represents our estimated annual interest payments based on actual interest rate terms under our outstanding 6.00% Notes due 2026 (the “6.00% Notes due 2026”) as of June 30, 2023. |
| (7) |
“Other expenses,” which we calculate to equal $2.3 million, are based upon estimates for the twelve months ending June 30, 2024. |
| (8) |
Net assets attributable to common stock, which we calculate to equal $194.7 million, reflects our June 30, 2023 net asset value increased to reflect an assumed annual return of 8.0% on our $160.3 million of portfolio investments as of June 30, 2023. |
Example
The following example demonstrates
the projected dollar amount of total cumulative expenses that would be incurred over various periods with respect to a hypothetical investment
in our common stock. In calculating the following expense amounts, we have assumed that our annual operating expenses would remain at
the levels set forth in the table above. See footnote 6 above for additional information regarding certain assumptions regarding our level
of leverage.
| | |
1 Year | | |
3 Years | | |
5 Years | | |
10 Years | |
| You would pay the following expenses on a $1,000 investment, assuming a 5% annual return | |
$ | 107 | | |
$ | 301 | | |
$ | 455 | | |
$ | 747 | |
The example and the expenses
in the tables above should not be considered a representation of our future expenses, and actual expenses may be greater or less than
those shown. While the example assumes, as required by the SEC, a 5.0% annual return, our performance will vary and may result in a return
greater or less than 5.0%. In addition, while the example assumes reinvestment of all dividends at net asset value participants in our
DRIP will receive a number of shares of our common stock, determined by dividing the total dollar amount of the dividend payable to a
participant by the market price per share of our common stock at the close of trading on the dividend payment date, which may be at, above
or below net asset value. See “Dividend Reinvestment Plan” in this prospectus for additional information regarding our DRIP.
FINANCIAL HIGHLIGHTS
The financial data as of
and for each of the ten years ended December 31, 2022 through December 31, 2013 is set forth in Note 8 to our consolidated
financial statements appearing in our most recent Annual
Report on Form 10-K, as amended on August 15, 2023, our Annual
Report on Form 10-K for the fiscal year ended December 31, 2019, and our Annual
Report on Form 10-K for the fiscal year ended December 31, 2017, all of which are incorporated by reference herein. Annualized
financial data as of June 30, 2023 is set forth in Note 8 to our condensed consolidated financial statements appearing in our most
recent Quarterly Report on Form 10-Q and is incorporated by reference herein. The financial data for the fiscal years ended December 31,
2022, 2021, 2020 and 2019 has been audited by Marcum LLP, an independent registered public accounting firm whose reports thereon are
incorporated by reference in this prospectus. A copy of our Annual Reports on Form 10-K filed with the SEC may be obtained from
www.sec.gov or upon request. You should read these financial highlights in conjunction with our consolidated financial statements
and notes thereto and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” incorporated
by reference into this prospectus, any documents incorporated by reference in this prospectus or the accompanying prospectus supplement,
or our Annual Reports on Form 10-K filed with the SEC.
RISK FACTORS
Investing in our securities
involves a high degree of risk. Before deciding whether to invest in our securities, you should carefully consider the risks and uncertainties
described in the section titled “Risk Factors” in the applicable prospectus supplement and any related free writing prospectus,
and discussed in the section titled “Risk Factors” in Part I, Item 1A of our most recent Annual Report on Form 10-K,
the section titled “Risk Factors” in Part II, Item 1A of our most recent Quarterly Report on Form 10-Q, and
any subsequent filings we have made with the SEC that are incorporated by reference into this prospectus or any prospectus supplement,
together with other information in this prospectus, the documents incorporated by reference in this prospectus or any prospectus supplement,
and any free writing prospectus that we may authorize for use in connection with this offering. The risks described in these documents
are not the only ones we face. Additional risks and uncertainties that we are unaware of, or that we currently believe are not material,
may also become important factors that adversely affect our business. Past financial performance may not be a reliable indicator of future
performance, and historical trends should not be used to anticipate results or trends in future periods. If any of these risks actually
occurs, our business, reputation, financial condition, results of operations, revenue, and future prospects could be seriously harmed.
This could cause our net asset value and the trading price of our securities to decline, resulting in a loss of all or part of your investment.
Please also read carefully the section titled “Cautionary Statement Regarding Forward-Looking Statements” in this prospectus.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING
STATEMENTS
This prospectus contains forward-looking
statements that involve substantial risks and uncertainties. These forward-looking statements are not historical facts, but rather are
based on current expectations, estimates and projections about us, our current and prospective portfolio investments, our industry, our
beliefs, and our assumptions. Words such as “anticipates,” “expects,” “intends,” “plans,”
“will,” “may,” “continue,” “believes,” “seeks,” “estimates,” “would,”
“could,” “should,” “targets,” “projects,” and variations of these words and similar expressions
are intended to identify forward-looking statements.
The forward-looking statements
contained in this prospectus involve risks and uncertainties, including, without limitation, statements as to:
| · |
our future operating results; |
| |
|
| · |
our business prospects and the prospects of our portfolio companies; |
| |
|
| · |
the impact of investments that we expect to make; |
| |
|
| · |
our contractual arrangements and relationships with third parties; |
| |
|
| · |
the dependence of our future success on the general economy and its impact on the industries in which we invest; |
| |
|
| · |
the ability of our portfolio companies to achieve their objectives; |
| |
|
| · |
our expected financings and investments; |
| |
|
| · |
the adequacy of our cash resources and working capital; and |
| |
|
| · |
the timing of cash flows, if any, from the operations of our portfolio companies. |
These statements are not
guarantees of future performance and are subject to risks, uncertainties, and other factors, some of which are beyond our control and
difficult to predict and could cause actual results to differ materially from those expressed or forecasted in the forward-looking statements,
including without limitation:
| |
· |
an economic downturn could impair our portfolio companies’ ability to continue to operate, which could lead to the loss of some or all of our investments in such portfolio companies; |
| |
|
|
| |
· |
an economic downturn could disproportionately impact the market sectors in which a significant portion of our portfolio is concentrated, causing us to suffer losses in our portfolio; |
| |
|
|
| |
· |
a contraction of available credit and/or an inability to access the equity markets could impair our investment activities; |
| |
|
|
| |
· |
increases in inflation or an inflationary economic environment could adversely affect our portfolio companies’ operating results, causing us to suffer losses in our portfolio; |
| |
|
|
| |
· |
interest rate volatility could adversely affect our results, particularly because we use leverage as part of our investment strategy; and |
| |
|
|
| |
· |
the risks, uncertainties and other factors we identify in the sections entitled “Risk Factors” in our quarterly reports on Form 10-Q, our annual report on Form 10-K, and in our other filings with the SEC. |
Although we believe that the
assumptions on which these forward-looking statements are based are reasonable, any of those assumptions could prove to be inaccurate,
and as a result, the forward-looking statements based on those assumptions also could be inaccurate. Important assumptions include our
ability to originate new investments, certain margins and levels of profitability and the availability of additional capital. In light
of these and other uncertainties, the inclusion of a projection or forward-looking statement in this prospectus should not be regarded
as a representation by us that our plans and objectives will be achieved. These risks and uncertainties include those described or identified
in “Risk Factors” in Part I, Item 1A of our most recent Annual Report on Form 10-K, in Part II, Item
1A of our most recent Quarterly Report on Form 10-Q, and elsewhere in this prospectus, any applicable prospectus supplement or free
writing prospectus, including the documents we incorporate by reference. You should not place undue reliance on these forward-looking
statements, which are based on information available to us as of the applicable date of this prospectus, any applicable prospectus supplement
or free writing prospectus, including any documents incorporated by reference, and while we believe such information forms, or will form,
a reasonable basis for such statements, such information may be limited or incomplete, and our statements should not be read to indicate
that we have conducted an exhaustive inquiry into, or review of, all potentially available relevant information. These statements are
inherently uncertain and investors are cautioned not to unduly rely on these statements. The forward-looking statements in this prospectus
are excluded from the safe harbor protection provided by Section 27A of the Securities Act and Section 21E of the Exchange Act.
USE OF PROCEEDS
We intend to use the net proceeds
from the sale of our securities pursuant to this prospectus for general corporate purposes, which may include investing in securities
consistent with our investment objective, repayment of outstanding indebtedness, and other general corporate purposes. We are continuously
identifying, reviewing and, to the extent consistent with our investment objective, funding new investments. As a result, we typically
raise capital as we deem appropriate to fund such new investments. The applicable prospectus supplement or a free writing prospectus that
we have authorized for use relating to an offering will more fully identify the use of the proceeds from such offering. We will also use
a portion of any such proceeds to pay operating expenses, and other expenses such as due diligence expenses relating to potential new
investments. We anticipate that substantially all of the net proceeds of any such offering will be used for the above purposes within
six to twelve months, depending on the availability of investment opportunities that are consistent with our investment objectives and
market conditions, except for such amounts as may be retained for purposes of funding our ongoing operations subsequent to the completion
of any such offering. We cannot assure you we will achieve our targeted investment pace. If proceeds are not immediately used for investments,
then we will invest the net proceeds of any such offering primarily in cash, cash equivalents, U.S. government securities and other high-quality
debt investments that mature in one year or less from the date of investment.
PRICE RANGE OF COMMON STOCK AND DISTRIBUTIONS
Our common stock is traded
on the Nasdaq Global Select Market under the symbol “SSSS.” The following table sets forth the high and low closing sale price
for our common stock, and the closing sale price as a percentage of NAV for each fiscal quarter during the last two most recently completed
fiscal years and any subsequent interim periods.
| |
|
Price Range |
|
|
High Close
Price as a
Premium/
(Discount) |
|
|
Low Close Price
as a Premium/
(Discount) |
|
| |
|
NAV(1) |
|
|
High |
|
|
Low |
|
|
to NAV(2) |
|
|
to NAV(2) |
|
| Fiscal 2023 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Third Quarter (through August 15, 2023) |
|
|
* |
|
|
$ |
4.31 |
|
|
$ |
3.19 |
|
|
|
* |
|
|
|
* |
|
| Second Quarter |
|
|
7.35 |
|
|
|
3.93 |
|
|
|
3.20 |
|
|
|
(46.5 |
)% |
|
|
(56.5 |
)% |
| First Quarter |
|
$ |
7.59 |
|
|
|
4.64 |
|
|
|
2.93 |
|
|
|
(38.9 |
)% |
|
|
(61.4 |
)% |
| Fiscal 2022 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Fourth Quarter |
|
$ |
7.39 |
|
|
$ |
4.38 |
|
|
$ |
3.67 |
|
|
|
(40.7 |
)% |
|
|
(50.3 |
)% |
| Third Quarter |
|
|
7.83 |
|
|
|
6.81 |
|
|
|
3.87 |
|
|
|
(13.0 |
) |
|
|
(50.6 |
) |
| Second Quarter |
|
|
9.24 |
|
|
|
8.94 |
|
|
|
6.33 |
|
|
|
(3.2 |
) |
|
|
(31.5 |
) |
| First Quarter |
|
|
12.22 |
|
|
|
13.36 |
|
|
|
8.27 |
|
|
|
9.3 |
|
|
|
(32.3 |
) |
| Fiscal 2021 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Fourth Quarter |
|
$ |
11.72 |
|
|
$ |
15.60 |
|
|
$ |
11.41 |
|
|
|
33.1 |
% |
|
|
(2.6 |
)% |
| Third Quarter |
|
|
14.79 |
|
|
|
16.25 |
|
|
|
12.19 |
|
|
|
9.9 |
|
|
|
(17.6 |
) |
| Second Quarter |
|
|
16.56 |
|
|
|
15.52 |
|
|
|
13.07 |
|
|
|
(6.3 |
) |
|
|
(21.1 |
) |
| First Quarter |
|
|
18.01 |
|
|
|
15.43 |
|
|
|
12.33 |
|
|
|
(14.3 |
) |
|
|
(31.5 |
) |
| (1) |
NAV per share is determined as of the last day in the relevant quarter and therefore may not reflect the NAV per share on the date of the high and low close prices. The NAV per share figures shown are based on outstanding shares at the end of each period. |
| (2) |
Calculated as the respective high or low close sales price divided by net asset value and subtracting 1. |
| * |
Not determinable as of the date of this prospectus. |
On August 15, 2023, the
last reported sales price of our common stock was $3.73 per share. As of August 15, 2023, we had approximately 7 registered shareholders
(including Cede & Co.).
Shares of BDCs may trade at
a market price that is less than the value of the net assets attributable to those shares. The possibility that our shares of common stock
will trade at premiums that are unsustainable over the long-term or at a discount from net asset value are separate and distinct from
the risk that our net asset value will decrease. Since the completion of our IPO in May 2011, our shares of common stock have traded
at both a discount and a premium to the net assets attributable to those shares. As of August 15, 2023, our shares of common stock
traded at a discount equal to approximately 49.3% of the net assets attributable to those shares based upon our $7.35 NAV per share as
of June 30, 2023. It is not possible to predict whether the shares offered hereby will trade at, above, or below net asset value.
Shareholder Value Accretion Efforts
We have undertaken certain
efforts to mitigate the historical discount of the trading price of our shares of common stock comparable to our net asset value per share.
Share Repurchase Program
On August 8, 2017, we
announced the commencement of a $5.0 million discretionary open-market share repurchase program of shares of our common stock, $0.01 par
value per share, of up to $5.0 million until the earlier of (i) August 6, 2018 or (ii) the repurchase of $5.0 million in
aggregate amount of our common stock (the “Share Repurchase Program”). Our Board of Directors has authorized various extensions
to the term of, and increases in the amount of shares of our common stock that may be repurchased under, the Share Repurchase Program.
Most recently, on August 7, 2023, our Board of Directors approved an extension of, and an increase in the amount of shares that may
be repurchased under, our discretionary Share Repurchase Program until the earlier of (i) October 31, 2024 or (ii) the
repurchase of $60.0 million in aggregate amount of our common stock. As of August 15, 2023, the dollar value of shares that remained
available to be repurchased under the Share Repurchase Program was approximately $21.4 million.
The timing and number of shares
to be repurchased pursuant to the discretionary Share Repurchase Program depends on a number of factors, including market conditions and
alternative investment opportunities. The Share Repurchase Program may be suspended, terminated or modified at any time for any reason
and does not obligate us to acquire any specific number of shares of our common stock. Under the Share Repurchase Program, we may repurchase
our outstanding common stock in the open market, provided that we comply with the prohibitions under our insider trading policies and
procedures and the applicable provisions of the 1940 Act and the Exchange Act.
We believe the continuation
of the Share Repurchase Program represents an efficient and accretive deployment of capital to our shareholders, with the net effect of
mitigating the historical discount at which our shares have traded comparable to our net asset value per share.
Modified “Dutch Auction” Tender
Offers
On August 8, 2022, we
commenced a modified “Dutch Auction” tender offer (the “2022 Modified Dutch Auction Tender Offer”) to purchase
up to 2,000,000 shares of our common stock from our shareholders, which expired on September 2, 2022. In accordance with the terms
of the 2022 Modified Dutch Auction Tender Offer, we selected the lowest price per share of not less than $6.00 per share and not greater
than $7.00 per share for such repurchase. Pursuant to the 2022 Modified Dutch Auction Tender Offer, on September 12, 2022, we repurchased
2,000,000 shares, or 6.6% of our outstanding shares at the time of such repurchase, at a price of $6.60 per share. We used available cash
to fund the purchases of our shares of common stock in the 2022 Modified Dutch Auction Tender Offer and to pay for all related fees and
expenses.
On March 21, 2023, we
commenced another modified “Dutch Auction” tender offer (the “2023 Modified Dutch Auction Tender Offer”) to purchase
up to 3,000,000 shares of our common stock from our shareholders, which expired on April 17, 2023. In accordance with the terms of
the 2023 Modified Dutch Auction Tender Offer, we selected the lowest price per share of not less than $3.00 per share and not greater
than $4.50 per share for such repurchase. Pursuant to the 2023 Modified Dutch Auction Tender Offer, on April 21, 2023, we repurchase
3,000,000 shares, or 10.6% of our outstanding shares at the time of such repurchase, at a price of $4.50 per share. We used available
cash to fund the purchases of our shares of common stock in the 2023 Modified Dutch Auction Tender Offer and to pay for all related fees
and expenses.
We believe our employment
of modified “Dutch Auction” tender offers, including the 2022 Modified Dutch Auction Tender Offer and the 2023 Modified Dutch
Auction Tender Offer, represents an efficient and accretive deployment of capital to our shareholders, with the net effect of mitigating
the historical discount at which our shares have traded comparable to our net asset value per share.
The following table lists
the distributions, including dividends and returns of capital, if any, per share that we have declared since our formation. The table
is divided by fiscal year according to record date:
| Date Declared |
|
Record Date |
|
|
Payment Date |
|
|
Amount per Share |
|
| Fiscal 2015: |
|
|
|
|
|
|
|
|
|
|
|
|
| November 4, 2015(1) |
|
|
November 16, 2015 |
|
|
|
December 31, 2015 |
|
|
$ |
2.76 |
|
| Fiscal 2016: |
|
|
|
|
|
|
|
|
|
|
|
|
| August 3, 2016(2) |
|
|
August 16, 2016 |
|
|
|
August 24, 2016 |
|
|
|
0.04 |
|
| Fiscal 2019: |
|
|
|
|
|
|
|
|
|
|
|
|
| November 5, 2019(3) |
|
|
December 2, 2019 |
|
|
|
December 12, 2019 |
|
|
|
0.20 |
|
| December 20, 2019(4) |
|
|
December 31, 2019 |
|
|
|
January 15, 2020 |
|
|
|
0.12 |
|
| Fiscal 2020: |
|
|
|
|
|
|
|
|
|
|
|
|
| July 29, 2020(5) |
|
|
August 11, 2020 |
|
|
|
August 25, 2020 |
|
|
|
0.15 |
|
| September 28, 2020(6) |
|
|
October 5, 2020 |
|
|
|
October 20, 2020 |
|
|
|
0.25 |
|
| October 28, 2020(7) |
|
|
November 10, 2020 |
|
|
|
November 30, 2020 |
|
|
|
0.25 |
|
| December 16, 2020(8) |
|
|
December 30, 2020 |
|
|
|
January 15, 2021 |
|
|
|
0.22 |
|
| Fiscal 2021: |
|
|
|
|
|
|
|
|
|
|
|
|
| January 26, 2021(9) |
|
|
February 5, 2021 |
|
|
|
February 19, 2021 |
|
|
|
0.25 |
|
| March 8, 2021(10) |
|
|
March 30, 2021 |
|
|
|
April 15, 2021 |
|
|
|
0.25 |
|
| May 4, 2021(11) |
|
|
May 18, 2021 |
|
|
|
June 30, 2021 |
|
|
|
2.50 |
|
| August 3, 2021(12) |
|
|
August 18, 2021 |
|
|
|
September 30, 2021 |
|
|
|
2.25 |
|
| November 2, 2021(13) |
|
|
November 17, 2021 |
|
|
|
December 30, 2021 |
|
|
|
2.00 |
|
| December 20, 2021(14) |
|
|
December 31, 2021 |
|
|
|
January 14, 2022 |
|
|
|
0.75 |
|
| Fiscal 2022: |
|
|
|
|
|
|
|
|
|
|
|
|
| March 8, 2022(15) |
|
|
March 25, 2022 |
|
|
|
April 15, 2022 |
|
|
|
0.11 |
|
| Total |
|
|
|
|
|
|
|
|
|
$ |
12.10 |
|
| (1) |
The distribution was paid in cash or shares of our common stock at the election of stockholders, although the total amount of cash distributed to all stockholders was limited to approximately 50% of the total distribution to be paid to all stockholders. As a result of stockholder elections, the distribution consisted of 2,860,903 shares of common stock issued in lieu of cash, or approximately 14.8% of our outstanding shares prior to the distribution, as well as cash of $26,358,885. The number of shares of common stock comprising the stock portion was calculated based on a price of $9.425 per share, which equaled the average of the volume weighted-average trading price per share of our common stock on December 28, 29 and 30, 2015. None of the $2.76 per share distribution represented a return of capital. |
| (2) |
Of the total distribution of $887,240 on August 24, 2016, $820,753 represented a distribution from realized gains, and $66,487 represented a return of capital. |
| (3) |
All of the $3,512,849 distribution paid on December 12, 2019 represented a distribution from realized gains. None of the distribution represented a return of capital. |
| (4) |
All of the $2,107,709 distribution paid on January 15, 2020 represented a distribution from realized gains. None of the distribution represented a return of capital. |
| (5) |
All of the $2,516,452 distribution paid on August 25, 2020 represented a distribution from realized gains. None of the distribution represented a return of capital. |
| (6) |
All of the $5,071,326 distribution paid on October 20, 2020 represented a distribution from realized gains. None of the distribution represented a return of capital. |
| (7) |
All of the $4,978,504 distribution paid on November 30, 2020 represented a distribution from realized gains. None of the distribution represented a return of capital. |
| (8) |
All of the $4,381,084 distribution paid on January 15, 2021 represented a distribution from realized gains. None of the distribution represented a return of capital. |
| (9) |
All of the $4,981,131 distribution paid on February 19, 2021 represented a distribution from realized gains. None of the distribution represented a return of capital. |
| (10) |
All of the $6,051,304 distribution paid on April 15, 2021 represented a distribution from realized gains. None of the distribution represented a return of capital. |
| (11) |
The distribution was paid in cash or shares of our common stock at the election of stockholders, although the total amount of cash distributed to all stockholders was limited to approximately 50% of the total distribution to be paid to all stockholders. As a result of stockholder elections, the distribution consisted of 2,335,527 shares of common stock issued in lieu of cash, or approximately 9.6% of our outstanding shares prior to the distribution, as well as cash of $29,987,589. The number of shares of common stock comprising the stock portion was calculated based on a price of $13.07 per share, which equaled the average of the volume weighted-average trading price per share of our common stock on May 12, 13, and 14, 2021. None of the $2.50 per share distribution represented a return of capital. |
| (12) |
The distribution was paid in cash or shares of our common stock at the election of stockholders, although the total amount of cash distributed to all stockholders was limited to approximately 50% of the total distribution to be paid to all stockholders. As a result of stockholder elections, the distribution consisted of 2,225,193 shares of common stock issued in lieu of cash, or approximately 8.4% of our outstanding shares prior to the distribution, as well as cash of $29,599,164. The number of shares of common stock comprising the stock portion was calculated based on a price of $13.55 per share, which equaled the average of the volume weighted-average trading price per share of our common stock on August 11, 12, and 13, 2021. None of the $2.25 per share distribution represented a return of capital. |
| (13) |
The distribution was paid in cash or shares of our common stock at the election of stockholders, although the total amount of cash distributed to all stockholders was limited to approximately 50% of the total distribution to be paid to all stockholders. As a result of stockholder elections, the distribution consisted of 2,170,807 shares of common stock issued in lieu of cash, or approximately 7.5% of our outstanding shares prior to the distribution, as well as cash of $28,494,812. The number of shares of common stock comprising the stock portion was calculated based on a price of $13.39 per share, which equaled the average of the volume weighted-average trading price per share of our common stock on November 11, 12, and 13, 2021. None of the $2.00 per share distribution represented a return of capital. |
| (14) |
All of the $23,338,915 distribution paid on January 14, 2022 represented a distribution from realized gains. None of the distribution represented a return of capital. |
| (15) |
All of the $3,441,824 distribution paid on April 15, 2022 represented a distribution from realized gains. None of the distribution represented a return of capital. |
We intend to focus on making
capital gains-based investments from which we will derive primarily capital gains. As a consequence, we do not anticipate that we will
pay distributions on a quarterly basis or become a predictable distributor of distributions, and we expect that our distributions, if
any, will be much less consistent than the distributions of other BDCs that primarily make debt investments. If there are earnings or
realized capital gains to be distributed, we intend to declare and pay a distribution at least annually. The amount of realized capital
gains available for distribution to stockholders will be impacted by our tax status.
Our current intention is
to make any future distributions out of assets legally available therefrom in the form of additional shares of our common stock under
our DRIP, except in the case of stockholders who elect to receive dividends and/or long-term capital gains distributions in cash. Under
the DRIP, if a stockholder owns shares of common stock registered in its own name, the stockholder will have all cash distributions (net
of any applicable withholding) automatically reinvested in additional shares of common stock unless the stockholder opts out of our DRIP
by delivering a written notice to our dividend paying agent prior to the record date of the next dividend or distribution. Any distributions
reinvested under the plan will nevertheless be treated as received by the U.S. stockholder for U.S. federal income tax purposes, although
no cash distribution has been made. As a result, if a stockholder does not elect to opt out of the DRIP, it will be required to pay applicable
U.S. federal, state and local taxes on any reinvested dividends even though such stockholder will not receive a corresponding cash distribution.
Stockholders that hold shares in the name of a broker or financial intermediary should contact the broker or financial intermediary regarding
any election to receive distributions in cash.
So long as we qualify and
maintain our tax treatment as a RIC, we generally will not be subject to U.S. federal and state income taxes on any ordinary income or
capital gains that we distribute at least annually to our stockholders as dividends. Rather, any tax liability related to income earned
by the RIC will represent obligations of our investors and will not be reflected in our consolidated financial statements. See “Note
2—Significant Accounting Policies—U.S. Federal and State Income Taxes” of our most recent Annual Report on Form 10-K
and “Note 9—Income Taxes” to our condensed consolidated financial statements as of June 30, 2023 of our most recent
Quarterly Report on Form 10-Q for more information. Certain of our subsidiaries (“taxable subsidiaries”) are treated
as Corporations for U.S. federal income tax purposes. These subsidiaries are subject to U.S. federal income tax at corporate rates, regardless
of whether we are taxed as a RIC. These taxable subsidiaries are not consolidated for U.S. federal income tax purposes and may generate
income tax expenses as a result of their ownership of the portfolio companies. Such income tax expenses and deferred taxes, if any, will
be reflected in our consolidated financial statements.
SENIOR SECURITIES
Information about our senior
securities as of the fiscal years ended December 31, 2022 to December 31, 2013 is located in Part II, Item 5 in our
most recent Annual Report on Form 10-K, and is incorporated by reference into the registration statement of which this prospectus
is a part. The report of Marcum, LLP, our independent registered public accounting firm, on the audited consolidated financial statements
as of December 31, 2022 and December 31, 2021 and for each of the three years ended December 31, 2022, December 31,
2021 and December 31, 2020 is included in our most recent Annual Report on Form 10-K filed on March 16,
2023, as amended on August 15,
2023, both of which are incorporated by reference into the registration statement of which this prospectus is a part.
Information about our senior
securities is shown in the following table for the most recent quarter ended June 30, 2023.
| As of | |
Total Amount
Outstanding
Exclusive of
Treasury
Securities(1) | | |
Asset
Coverage
Ratio Per
Unit(2) | | |
Involuntary
Liquidation
Preference
Per Unit(3) | | |
Average
Market
Value
Per Unit | |
| June 30, 2023 (Unaudited) | |
| | | |
| | | |
| | | |
| | |
| 6.00% Notes due 2026 | |
$ | 75,000,000 | | |
$ | 3,489 | | |
| -- | | |
$ | 23.61 | |
| 4.75% Convertible Senior Notes due 2023 | |
| -- | | |
| 3,489 | | |
| -- | | |
| N/A | |
| 5.25% Convertible Senior Notes due 2018 | |
| -- | | |
| 3,489 | | |
| -- | | |
| N/A | |
| Credit Facility | |
| -- | | |
| 3,489 | | |
| -- | | |
| N/A | |
| (1) |
Total gross amount of each class of senior securities outstanding at the end of the period presented, before deduction of discount and debt issuance costs. |
| (2) |
Asset coverage per unit for a class of senior securities is the ratio of the carrying value of our total consolidated assets, less all liabilities and indebtedness not represented by senior securities, to the aggregate amount of senior securities representing indebtedness. Asset coverage per unit is expressed in terms of dollar amounts per $1,000 of indebtedness. |
| (3) |
The amount to which such class of senior security would be entitled upon the voluntary liquidation of the issuer in preference to any security junior to it. The “-” in this column indicates that the SEC expressly does not require this information to be disclosed for the types of senior securities representing indebtedness issued by the Company as of the stated time periods. |
BUSINESS
Our business is described
in “Part I — Item 1 – Business” of our most recent Annual Report on Form 10-K, which is incorporated
by reference herein.
PORTFOLIO COMPANIES
The tables which set forth
certain information as of June 30, 2023 and December 31, 2022 regarding each portfolio company in which we had a debt or equity
investment are in our most recent Quarterly Report on Form 10-Q and our most recent Annual Report on Form 10-K, respectively,
which are incorporated by reference herein. The general terms of our expected investments are described in “Part I, Item
1 — Business — Investment Strategy” in our most recent Annual Report on Form 10-K. Other than these investments,
our only formal relationships with our portfolio companies will be the managerial assistance we may provide upon request and the board
observer or participation rights we may receive in connection with our investment.
PORTFOLIO MANAGEMENT
The management of our investment
portfolio is the responsibility of our management and its investment committee. The member of the investment committee who is primarily
responsible for the day-to-day management of our portfolio is Mark D. Klein. For more information regarding the business experience of
Mr. Klein, see “Part III, Item 10 — Directors, Executive Officers and Corporate Governance” in our most
recent Annual Report on Form 10-K.
Our investment committee is
led by Mr. Klein, Chairman of our Board of Directors, Chief Executive Officer and President. We consider Mr. Klein to be our
portfolio manager.
The table below shows the
dollar range of shares of our common stock beneficially owned by each of our portfolio managers as of August 15, 2023.
| Name of Portfolio Manager | |
Dollar Range of Equity
Securities in SuRo Capital(1)(2) |
| Mark Klein | |
Over $1,000,000 |
| (1) |
The dollar range of equity securities beneficially owned in us is based on a price per share of our common stock of $3.73, which is the closing price of our common stock on the Nasdaq Global Select Market on August 15, 2023. |
| (2) |
The dollar ranges are: None, $1 – $10,000, $10,001 – $50,000, $50,001 – $100,000, $100,001 – $500,000, $500,001 – $1,000,000, or Over $1,000,000. |
The following information
pertains to members of our investment committee who are not executive officers or directors of SuRo Capital Corp.
Please also refer to “Information
about the Nominees and Directors” and “Information about the Executive Officers Who Are Not Directors” in our most
recent definitive proxy statement, which is incorporated by reference into this prospectus, for more information relating to the management
of the Company. For a discussion of the potential conflicts of interests associated with operating an internally managed BDC, see “Related
Party Transactions and Certain Relationships” in our most recent definitive proxy statement, which is incorporated by reference
into this prospectus.
CORPORATE GOVERNANCE
Please refer to “Corporate
Governance” in our most recent definitive proxy statement, which is incorporated by reference into this prospectus, for information
relating to the management of the Company.
EXECUTIVE COMPENSATION
Please refer to “Compensation
of Executive Officers” in our most recent definitive proxy statement, which is incorporated by reference into this prospectus,
for information relating to the management of the Company.
RELATED PARTY TRANSACTIONS AND CERTAIN RELATIONSHIPS
Please refer to “Related
Party Transactions and Certain Relationships” in our most recent definitive proxy statement, which is incorporated by reference
into this prospectus, for information relating to the management of the Company.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
AND MANAGEMENT
The following table sets
forth, as of August 15, 2023, the beneficial ownership of each current director and executive officer of the Company, as well as
each person known to us to beneficially own 5% or more of the outstanding shares of our common stock, and the executive officers and directors
as a group.
Beneficial ownership is determined
in accordance with the rules of the SEC and includes voting or investment power with respect to the securities. Ownership information
for those persons who beneficially own 5% or more of our shares of common stock is based upon Schedule 13G or Schedule 13D filings by
such persons with the SEC and other information obtained from such persons, if available.
Unless otherwise indicated,
the Company believes that each beneficial owner set forth in the table has sole voting and investment power and has the same address as
the Company. Our address is 640 Fifth Avenue, 12th Floor, New York, NY 10019.
| Name and Address of Beneficial Owner | |
Type of Ownership | |
Number of
Shares Owned
Beneficially(1) | | |
Percentage
of Class | |
| Interested Directors | |
| |
| | | |
| | |
| Mark D. Klein(2) | |
Direct | |
| 957,496 | | |
| 3.77 | % |
| Independent Directors(3) | |
| |
| | | |
| | |
| Leonard A. Potter | |
Direct | |
| 82,419 | | |
| * | |
| Marc Mazur | |
Direct | |
| 45,554 | | |
| * | |
| Ronald M. Lott | |
Direct | |
| 27,263 | | |
| * | |
| Lisa Westley | |
Direct | |
| 35,435 | | |
| * | |
| Executive Officers | |
| |
| | | |
| | |
| Allison Green(4) | |
Direct | |
| 109,547 | | |
| * | |
| Executive officers and directors as a group (6 persons)(5) | |
| |
| 1,257,714 | | |
| 4.95 | % |
* Represents less than one percent (1.0%)
| (1) |
Beneficial ownership has been determined in accordance with Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). |
| |
|
| (2) |
Includes (i) 2,659 shares owned by Mr. Klein’s spouse, which may be deemed to be beneficially owned by Mr. Klein, and (ii) 294,012 restricted shares granted under the SuRo Capital Corp. Amended and Restated 2019 Equity Incentive Plan (the “Amended Equity Incentive Plan”) on February 10, 2021, December 10, 2021 and February 9, 2022, including shares acquired in connection with dividends thereon that are deemed restricted shares, all of which are subject to certain vesting schedules. |
| |
|
| (3) |
Includes 15,015 restricted shares granted under the Amended Equity Incentive Plan, including shares acquired in connection with dividends thereon that are deemed restricted shares, all of which vest in full on the date of the Annual Meeting. |
| |
|
| (4) |
Includes 47,871 restricted shares granted under the Amended Equity Incentive Plan on February 10, 2021 and February 9, 2022, including shares acquired in connection with dividends thereon that are deemed restricted shares, all of which are subject to certain vesting schedules. |
| |
|
| (5) |
The address for each of the directors and officers is c/o SuRo Capital Corp., 640 Fifth Avenue, 12th Floor, New York, New York 10019. |
REGULATION AS A BUSINESS DEVELOPMENT COMPANY
We are subject to regulation
as described in “Part I, Item 1 – Business” of our most recent Annual Report on Form 10-K, which is
incorporated by reference herein.
DETERMINATION OF NET ASSET VALUE
We determine the net asset
value of our investment portfolio after the conclusion of each fiscal quarter in connection with the preparation of our annual and quarterly
reports filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or more frequently if required under
the 1940 Act.
Securities that are publicly
traded are generally valued at the close price on the valuation date; however, if they remain subject to lock-up restrictions they are
discounted accordingly. Securities that are not publicly traded or for which there are no readily available market quotations, including
securities that trade on secondary markets for private securities, are valued at fair value as determined in good faith by our Board of
Directors and in accordance with Rule 2a-5 as promulgated under the 1940 Act. In connection with that determination, our executive
officers and investment professionals will prepare portfolio company valuations using, when available, the most recent portfolio company
financial statements and forecasts. We also engage an independent valuation firm to perform independent valuations of our investments
that are not publicly traded or for which there are no readily available market quotations. We may also engage an independent valuation
firm to perform independent valuations of any securities that trade on private secondary markets, but are not otherwise publicly traded,
where there is a lack of appreciable trading or a wide disparity in recently reported trades.
For those securities that
are not publicly traded or for which there are no readily available market quotations, our Board of Directors, with the assistance of
its valuation committee (the “Valuation Committee”), will use the recommended valuations as prepared by our executive officers
and investment professionals and the independent valuation firm, respectively, as a component of the foundation for its final fair value
determination. Due to the uncertainty inherent in the valuation process, such estimates of fair value may differ significantly from the
values that would have resulted had others made the determination using the same or different procedures or had a readily available market
for the securities existed, and the differences could be material. Additionally, changes in the market environment and other events that
may occur over the life of the investments may cause the gains or losses ultimately realized on these investments to be different than
the gains or losses implied by the valuation currently assigned to such investments. For those investments that are publicly traded, we
generally record unrealized appreciation or depreciation based on changes in the market value of the securities as of the valuation date.
Publicly traded securities that remain subject to lock-up restrictions are discounted accordingly. For those investments that are not
publicly traded and for which there are no readily available market quotations, we record unrealized depreciation on such investments
when we believe that an investment has become impaired and record unrealized appreciation if we believe that the underlying portfolio
company has appreciated in value and our equity security has also appreciated in value. Changes in fair value are recorded in the consolidated
statement of operations as the net change in unrealized appreciation or depreciation.
We generally determine the
fair value of our investments by considering a number of factors. The following represent factors that, among others, could impact our
fair value determinations:
| 1. |
Public trading of our portfolio securities, taking into consideration lock-up requirements and liquidity; |
| |
|
| 2. |
Active trading of our portfolio securities on a private secondary market, where we have determined that there is meaningful volume and the transactions are considered arm’s length by sophisticated investors; |
| |
|
| 3. |
Qualified funding rounds in the companies in which we invested, where there is meaningful and reputable information available on size, valuation and investors; and |
| |
|
| 4. |
Additional investments by us in current portfolio companies, where the price of the new investment differs materially from prior investments. |
There is inherent subjectivity
in determining the fair value of our investments. We expect that most of our portfolio investments, other than those for which market
quotations are readily available and that may be sold without restriction, will be valued at fair value as determined in good faith by
our Board of Directors, with the assistance of our valuation committee. Furthermore, when calculating net asset value, we also consider
our recognition of a deferred tax liability for unrealized gains on investments for those investments held in our taxable subsidiaries.
The following list sets forth
each of our consolidated subsidiaries, the state or country under whose laws the subsidiary is organized, and the percentage of voting
securities or membership interests owned by us in such subsidiary:
| GSV Capital Lending, LLC (Delaware) | |
| 100 | % |
| GSVC AE Holdings, Inc. (Delaware) | |
| 100 | % |
| GSVC AV Holdings, Inc. (Delaware) | |
| 100 | % |
| GSVC SW Holdings, Inc. (Delaware) | |
| 100 | % |
| GSVC SVDS Holdings, Inc. (Delaware) | |
| 100 | % |
| SuRo Capital Sports, LLC (Delaware) | |
| 100 | % |
The principal investment strategies
of GSVC AE Holdings, Inc., GSVC AV Holdings, Inc., GSVC SW Holdings, Inc., and GSVC SVDS Holdings, Inc. are substantially
similar to our principal investment strategies. The principal investment strategies of GSV Capital Lending, LLC are substantially similar
to our principal investment strategies, with exception for that entity’s formative purpose to originate portfolio loan investments
within the state of California pursuant to its California lending license. The principal investment strategies of SuRo Capital Sports,
LLC are substantially similar to our principal investment strategies, with exception for that entity’s formative purpose to originate
investments specifically centered in the sports betting market. The principal investment risks for each of our subsidiaries are substantially
similar to our principal investment risks. We do not currently intend to create or acquire primary control of any entity which primarily
engages in investment activities in securities or other assets other than entities that we wholly own.
Currently, each of our subsidiaries
is consolidated with us for financial reporting purposes. We comply with the provisions of the 1940 Act governing capital structure and
leverage (Section 18 and Section 61) on an aggregate basis such that we treat the debt of any such subsidiary as our own for
purposes of Section 18 and Section 61. Additionally, we and our subsidiaries comply with provisions of the 1940 Act relating
to affiliated transactions and custody.
Determinations in Connection with Offerings
In connection with future
offerings of shares of our common stock, our Board of Directors, or an authorized committee thereof, will be required to make a determination
of our net asset value and a good faith determination that we are not selling shares of our common stock at a price below the then current
net asset value of our common stock at the time at which the sale is made. Our Board of Directors, or an authorized committee thereof,
will consider the following factors, among others, in making such a determination:
| · |
the net asset value of our common stock disclosed in the most recent periodic report that we filed with the SEC; |
| |
|
| · |
our management’s assessment of whether any material change in the net asset value of our common stock has occurred (including through the realization of gains on the sale of our portfolio securities) during the period beginning on the date of the most recently disclosed net asset value of our common stock and ending as of a time within 48 hours (excluding Sundays and holidays) of the sale of our common stock; and |
| |
|
| · |
the magnitude of the difference between (i) a value that our Board of Directors or an authorized committee thereof has determined reflects the current (as of a time within 48 hours, excluding Sundays and holidays) net asset value of our common stock, which is generally based upon the net asset value of our common stock disclosed in the most recent periodic report that we filed with the SEC, as adjusted to reflect our management’s assessment of any material change in the net asset value of our common stock since the date of the most recently disclosed net asset value of our common stock, and (ii) the offering price of the shares of our common stock in the proposed offering. |
These processes and procedures
are part of our compliance policies and procedures. Records will be made contemporaneously with all determinations described in this section
and these records will be maintained with other records that we are required to maintain under the 1940 Act.
SALES OF COMMON STOCK BELOW NET ASSET VALUE
Our stockholders may, from
time to time, vote to allow us to issue common stock at a price below the net asset value per share of our common stock. In such an approval,
our stockholders may not specify a maximum discount below net asset value at which we are able to issue our common stock. In order to
sell shares pursuant to such a stockholder authorization:
| · |
a majority of our independent directors who have no financial interest in the sale must have approved the sale; and |
| |
|
| · |
a majority of such directors who are not interested persons of SuRo Capital, in consultation with the underwriter or underwriters of the offering if it is to be underwritten, must have determined in good faith, and as of a time immediately prior to the first solicitation by us or on our behalf of firm commitments to purchase such shares or immediately prior to the issuance of such shares, that the price at which such shares are to be sold is not less than a price which closely approximates the market value of those shares, less any underwriting commission or discount. |
Any offering of common stock
below net asset value per share will be designed to raise capital for investment in accordance with our investment objectives and business
strategies.
In making a determination
that an offering below net asset value per share is in our and our stockholders’ best interests, our Board of Directors would consider
a variety of factors including:
| · |
The effect that an offering below net asset value per share would have on our stockholders, including the potential dilution they would experience as a result of the offering; |
| |
|
| · |
The amount per share by which the offering price per share and the net proceeds per share are less than the most recently determined net asset value per share; |
| |
|
| · |
The relationship of recent market prices of our common stock to our net asset value per share and the potential impact of the offering on the market price per share of our common stock; |
| |
|
| · |
Whether the proposed offering price would closely approximate the market value of our shares; |
| |
|
| · |
The potential market impact of being able to raise capital during the current financial market difficulties; |
| |
|
| · |
The nature of any new investors anticipated to acquire shares in the offering; |
| |
|
| · |
The anticipated rate of return on and quality, type and availability of investments to be funded with the proceeds from the offering, if any; and |
| |
|
| · |
The leverage available to us, both before and after any offering, and the terms thereof. |
Sales by us of our common
stock at a discount from our net asset value per share pose potential risks for our existing stockholders whether or not they participate
in the offering, as well as for new investors who participate in the offering.
The following three headings
and accompanying tables will explain and provide hypothetical examples on the impact of an offering at a price less than net asset value
per share on three different sets of investors:
| · |
existing stockholders who do not purchase any shares in the offering; |
| |
|
| · |
existing stockholders who purchase a relatively small amount of shares in the offering or a relatively large amount of shares in the offering; and |
| |
|
| · |
new investors who become stockholders by purchasing shares in the offering. |
Impact on Existing Stockholders who do not
Participate in the Offering
Our existing stockholders
who do not participate in an offering below net asset value per share or who do not buy additional shares in the secondary market at the
same or lower price we obtain in the offering (after expenses and commissions) face the greatest potential risks. These stockholders will
experience an immediate decrease (often called dilution) in the net asset value of the shares they hold and their net asset value per
share. These stockholders will also experience a disproportionately greater decrease in their participation in our earnings and assets
and their voting power than the increase we will experience in our assets, potential earning power and voting interests due to the offering.
These stockholders may also experience a decline in the market price of their shares, which often reflects to some degree announced or
potential decreases in net asset value per share. This decrease could be more pronounced as the size of the offering and level of discount
to net asset value increases.
The following table illustrates
the level of net asset value dilution that would be experienced by a nonparticipating stockholder in four different hypothetical offerings
of different sizes and levels of discount from NAV per share. Actual sales prices and discounts may differ from the presentation below.
The examples assume that the
Company has 1,000,000 common shares outstanding, $15,000,000 in total assets and $5,000,000 in total liabilities. The current NAV and
net asset value per share are thus $10,000,000 and $10.00, respectively. The table illustrates the dilutive effect on nonparticipating
Stockholder A of (1) an offering of 50,000 shares (5% of the outstanding shares) at $9.50 per share after offering expenses and commissions
(a 5% discount from net asset value), (2) an offering of 100,000 shares (10% of the outstanding shares) at $9.00 per share after
offering expenses and commissions (a 10% discount from NAV) and (3) an offering of 250,000 shares (25% of the outstanding shares)
at $8.00 per share after offering expenses and commissions (a 20% discount from net asset value). The prospectus supplement pursuant to
which any discounted offering is made will include a chart based on the actual number of shares in such offering and the actual discount
to the most recently determined net asset value.
| | |
Prior to | | |
Example 1
5% Offering at 5%
Discount | | |
Example 2
10% Offering at 10%
Discount | | |
Example 2
10% Offering at 10%
Discount | |
| | |
Sale
Below NAV | | |
Following
Sale | | |
%
Change | | |
Following
Sale | | |
%
Change | | |
Following
Sale | | |
%
Change | |
| Offering Price | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| Price per Share to Public(1) | |
| | | |
$ | 10.00 | | |
| | | |
$ | 9.47 | | |
| | | |
$ | 8.42 | | |
| | |
| Net Proceeds per Share to Issuer | |
| | | |
$ | 9.50 | | |
| | | |
$ | 9.00 | | |
| | | |
$ | 8.00 | | |
| | |
| Increase in Shares and Decrease to NAV | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| Total Shares Outstanding | |
| 1,000,000 | | |
| 1,050,000 | | |
| 5.00 | % | |
| 1,100,000 | | |
| 10.00 | % | |
| 1,250,000 | | |
| 25.00 | % |
| NAV per Share | |
$ | 10.00 | | |
$ | 9.98 | | |
| (0.24 | )% | |
$ | 9.91 | | |
| (0.91 | )% | |
$ | 9.60 | | |
| (4.00 | )% |
| Dilution to Nonparticipating Stockholder A | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| Share Dilution | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| Shares Held by Stockholder A | |
| 10,000 | | |
| 10,000 | | |
| | | |
| 10,000 | | |
| | | |
| 10,000 | | |
| | |
| Percentage Outstanding Held by Stockholder A | |
| 1.00 | % | |
| 0.95 | % | |
| (4.76 | )% | |
| 0.91 | % | |
| (9.09 | )% | |
| 0.80 | % | |
| (20.00 | )% |
| NAV Dilution | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| Total NAV Held by Stockholder A | |
$ | 100,000 | | |
$ | 99,762 | | |
| (0.24 | )% | |
$ | 99,091 | | |
| (0.91 | )% | |
$ | 96,000 | | |
| (4.00 | )% |
| Total Investment by Stockholder A (Assumed to be $10 per Share) | |
$ | 100,000 | | |
$ | 100,000 | | |
| | | |
$ | 100,000 | | |
| | | |
$ | 100,000 | | |
| | |
| Total Dilution to Stockholder A (Total NAV Less Total Investment) | |
$ | — | | |
$ | (238 | ) | |
| | | |
$ | (909 | ) | |
| | | |
$ | (4,000 | ) | |
| | |
| NAV Dilution per Share | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| NAV per Share Held by Stockholder A | |
| | | |
$ | 9.98 | | |
| | | |
$ | 9.91 | | |
| | | |
$ | 9.60 | | |
| | |
| Investment per Share Held by Stockholder A (Assumed to be $10 per Share on Shares Held Prior to Sale) | |
$ | 10.00 | | |
$ | 10.00 | | |
| | | |
$ | 10.00 | | |
| | | |
$ | 10.00 | | |
| | |
| NAV Dilution per Share Experienced by Stockholder A (NAV per Share Less Investment per Share) | |
| | | |
$ | (0.02 | ) | |
| | | |
$ | (0.09 | ) | |
| | | |
$ | (0.40 | ) | |
| | |
| Percentage NAV Dilution per Share Experienced by Stockholder A (NAV Dilution per Share Divided by Investment per Share) | |
| | | |
| | | |
| (0.24 | )% | |
| | | |
| (0.91 | )% | |
| | | |
| (4.00 | )% |
(1) Assumes 5% in selling compensation and
expenses paid by us.
Impact on Existing Stockholders who do Participate
in the Offering
Our existing stockholders
who participate in an offering below net asset value per share or who buy additional shares in the secondary market at the same or lower
price as we obtain in the offering (after expenses and commissions) will experience the same types of net asset value dilution as the
nonparticipating stockholders, albeit at a lower level, to the extent they purchase less than the same percentage of the discounted offering
as their interest in our shares immediately prior to the offering. The level of net asset value dilution to such stockholders will decrease
as the number of shares such stockholders purchase increases. Existing stockholders who buy more than their proportionate percentage will
experience net asset value dilution but will, in contrast to existing stockholders who purchase less than their proportionate share of
the offering, experience an increase (often called accretion) in net asset value per share over their investment per share and will also
experience a disproportionately greater increase in their participation in our earnings and assets and their voting power than our increase
in assets, potential earning power and voting interests due to the offering. The level of accretion will increase as the excess number
of shares purchased by such stockholder increases. Even a stockholder who over-participates will, however, be subject to the risk that
we may make additional discounted offerings in which such stockholder does not participate, in which case such a stockholder will experience
net asset value dilution as described above in such subsequent offerings. These stockholders may also experience a decline in the market
price of their shares, which often reflects to some degree announced or potential decreases in net asset value per share. This decrease
could be more pronounced as the size of the offering and the level of discount to NAV increases.
The following chart illustrates
the level of dilution and accretion in the hypothetical 25% offering at a 20% discount from the prior chart (Example 3) for a stockholder
that acquires shares equal to (1) 50% of its proportionate share of the offering (i.e., 1,250 shares, which is 0.5% of an offering
of 250,000 shares rather than its 1.0% proportionate share) and (2) 150% of such percentage (i.e., 3,750 shares, which is 1.5% of
an offering of 250,000 shares rather than its 1.0% proportionate share). The prospectus supplement pursuant to which any discounted offering
is made will include a chart for this example based on the actual number of shares in such offering and the actual discount from the most
recently determined net asset value per share.
| | |
Prior to | | |
50% Participation | | |
150% Participation | |
| | |
Sale
Below NAV | | |
Following
Sale | | |
% Change | | |
Following
Sale | | |
% Change | |
| Offering Price | |
| | | |
| | | |
| | | |
| | | |
| | |
| Price per Share to Public(1) | |
| | | |
$ | 8.42 | | |
| | | |
$ | 8.42 | | |
| | |
| Net Proceeds per Share to Issuer | |
| | | |
$ | 8.00 | | |
| | | |
$ | 8.00 | | |
| | |
| Increase in Shares and Decrease to NAV | |
| | | |
| | | |
| | | |
| | | |
| | |
| Total Shares Outstanding | |
| 1,000,000 | | |
| 1,250,000 | | |
| 25.00 | % | |
| 1,250,000 | | |
| 25.00 | % |
| NAV per Share | |
$ | 10.00 | | |
$ | 9.60 | | |
| (4.00 | )% | |
$ | 9.60 | | |
| (4.00 | )% |
| Dilution to Nonparticipating Stockholder A | |
| | | |
| | | |
| | | |
| | | |
| | |
| Share Dilution | |
| | | |
| | | |
| | | |
| | | |
| | |
| Shares Held by Stockholder A | |
| 10,000 | | |
| 11,250 | | |
| 12.50 | % | |
| 13,750 | | |
| 37.50 | % |
| Percentage Outstanding Held by Stockholder A | |
| 1.00 | % | |
| 0.90 | % | |
| (10.00 | )% | |
| 1.10 | % | |
| 10.00 | % |
| NAV Dilution | |
| | | |
| | | |
| | | |
| | | |
| | |
| Total NAV Held by Stockholder A | |
$ | 100,000 | | |
$ | 108,000 | | |
| 8.00 | % | |
$ | 132,000 | | |
| 32.00 | % |
| Total Investment by Stockholder A (Assumed to be $10 per Share) | |
$ | 100,000 | | |
$ | 110,525 | | |
| | | |
$ | 131,575 | | |
| | |
| Total Dilution to Stockholder A (Total NAV Less Total Investment) | |
$ | — | | |
$ | (2,525 | ) | |
| | | |
$ | 425 | | |
| | |
| NAV Dilution per Share | |
| | | |
| | | |
| | | |
| | | |
| | |
| NAV per Share Held by Stockholder A | |
| | | |
$ | 9.60 | | |
| | | |
$ | 9.60 | | |
| | |
| Investment per Share Held by Stockholder A (Assumed to be $10 per Share on Shares Held Prior to Sale) | |
$ | 10.00 | | |
$ | 9.82 | | |
| (1.76 | )% | |
$ | 9.57 | | |
| (4.31 | )% |
| NAV Dilution per Share Experienced by Stockholder A (NAV per Share Less Investment per Share) | |
| | | |
$ | (0.22 | ) | |
| | | |
$ | 0.03 | | |
| | |
| Percentage NAV Dilution per Share Experienced by Stockholder A (NAV Dilution per Share Divided by Investment per Share) | |
| | | |
| | | |
| (2.28 | )% | |
| | | |
| 0.32 | % |
(1) Assumes 5% in selling compensation and
expenses paid by us.
Impact on New Investors
Investors who are not currently
stockholders, but who participate in an offering below net asset value and whose investment per share is greater than the resulting net
asset value per share due to selling compensation and expenses paid by us will experience an immediate decrease, albeit small, in the
net asset value of their shares and their net asset value per share compared to the price they pay for their shares (Example 1 below).
On the other hand, investors who are not currently stockholders, but who participate in an offering below net asset value per share and
whose investment per share is also less than the resulting net asset value per share will experience an immediate increase in the net
asset value of their shares and their net asset value per share compared to the price they pay for their shares (Examples 2 and 3 below).
These latter investors will experience a disproportionately greater participation in our earnings and assets and their voting power than
our increase in assets, potential earning power and voting interests. These investors will, however, be subject to the risk that we may
make additional discounted offerings in which such new stockholder does not participate, in which case such new stockholder will experience
dilution as described above in such subsequent offerings. These investors may also experience a decline in the market price of their shares,
which often reflects to some degree announced or potential decreases in net asset value per share. This decrease could be more pronounced
as the size of the offering and level of discount to net asset value increases.
The following chart illustrates
the level of dilution or accretion for new investors that would be experienced by a new investor in the same hypothetical discounted offerings
as described in the first chart above. The illustration is for a new investor who purchases the same percentage (1.00%) of the shares
in the offering as Stockholder A in the prior examples held immediately prior to the offering. The prospectus supplement pursuant to which
any discounted offering is made will include a chart for these examples based on the actual number of shares in such offering and the
actual discount from the most recently determined NAV per share.
| | |
Prior to | | |
Example 1
5% Offering at 5%
Discount | | |
Example 2
10% Offering at 10%
Discount | | |
Example 2
10% Offering at 10%
Discount | |
| | |
Sale
Below NAV | | |
Following
Sale | | |
%
Change | | |
Following
Sale | | |
%
Change | | |
Following
Sale | | |
%
Change | |
| Offering Price | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| Price per Share to Public(1) | |
| | | |
$ | 10.00 | | |
| | | |
$ | 9.47 | | |
| | | |
$ | 8.42 | | |
| | |
| Net Proceeds per Share to Issuer | |
| | | |
$ | 9.50 | | |
| | | |
$ | 9.00 | | |
| | | |
$ | 8.00 | | |
| | |
| Increase in Shares and Decrease to NAV | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| Total Shares Outstanding | |
| 1,000,000 | | |
| 1,050,000 | | |
| 5.00 | % | |
| 1,100,000 | | |
| 10.00 | % | |
| 1,250,000 | | |
| 25.00 | % |
| NAV per Share | |
$ | 10.00 | | |
$ | 9.98 | | |
| (0.24 | )% | |
$ | 9.91 | | |
| (0.91 | )% | |
$ | 9.60 | | |
| (4.00 | )% |
| Dilution to Nonparticipating Stockholder A | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| Share Dilution | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| Shares Held by Stockholder A | |
| — | | |
| 500 | | |
| | | |
| 1,000 | | |
| | | |
| 2,500 | | |
| | |
| Percentage Outstanding Held by Stockholder A | |
| — | % | |
| 0.05 | % | |
| | | |
| 0.09 | % | |
| | | |
| 0.20 | % | |
| | |
| NAV Dilution | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| Total NAV Held by Stockholder A | |
$ | — | | |
$ | 4,988 | | |
| | | |
$ | 9,909 | | |
| | | |
$ | 24,000 | | |
| | |
| Total Investment by Stockholder A (Assumed to be $10 per Share) | |
$ | — | | |
$ | 5,000 | | |
| | | |
$ | 9,470 | | |
| | | |
$ | 21,050 | | |
| | |
| Total Dilution to Stockholder A (Total NAV Less Total Investment) | |
$ | — | | |
$ | (12 | ) | |
| | | |
$ | 439 | | |
| | | |
$ | 2,950 | | |
| | |
| NAV Dilution per Share | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| NAV per Share Held by Stockholder A | |
| | | |
$ | 9.98 | | |
| | | |
$ | 9.91 | | |
| | | |
$ | 9.60 | | |
| | |
| Investment per Share Held by Stockholder A (Assumed to be $10 per Share on Shares Held Prior to Sale) | |
| | | |
$ | 10.00 | | |
| | | |
$ | 9.47 | | |
| | | |
$ | 8.42 | | |
| | |
| NAV Dilution per Share Experienced by Stockholder A (NAV per Share Less Investment per Share) | |
| | | |
$ | (0.02 | ) | |
| | | |
$ | 0.44 | | |
| | | |
$ | 1.18 | | |
| | |
| Percentage NAV Dilution per Share Experienced by Stockholder A (NAV Dilution per Share Divided by Investment per Share) | |
| | | |
| | | |
| (0.20 | )% | |
| | | |
| 4.64 | % | |
| | | |
| 14.01 | % |
DIVIDEND REINVESTMENT PLAN
We have adopted a DRIP, through
which all dividends are paid to stockholders in the form of additional shares of our common stock, unless a stockholder elects to receive
cash as provided below. In this way, a stockholder can maintain an undiluted investment in us and still allow us to pay out the required
distributable income.
No action is required on the
part of a registered stockholder to receive a distribution in shares of our common stock. A registered stockholder may elect to receive
an entire distribution in cash by notifying American Stock Transfer & Trust Company, the plan administrator and our transfer
agent and registrar, in writing so that such notice is received by the plan administrator no later than 10 days prior to the record date
for distributions to stockholders. The plan administrator will set up an account for shares acquired through the plan for each stockholder
who has not elected to receive distributions in cash and hold such shares in non-certificated form. Upon request by a participant, received
in writing not less than 10 days prior to the record date, the plan administrator will, instead of crediting shares to the participant’s
account, issue a certificate registered in the participant’s name for the number of whole shares of our common stock and a check
for any fractional share.
Those stockholders whose shares
are held by a broker or other financial intermediary may receive distributions in cash by notifying their broker or other financial intermediary
of their election.
We intend to use only newly
issued shares to implement the plan if our shares are trading at a premium to net asset value. The number of shares to be issued to a
stockholder is determined by dividing the total dollar amount of the distribution payable to such stockholder by the market price per
share of our common stock at the close of regular trading on the Nasdaq Global Select Market on the valuation date for such distribution.
Market price per share on that date will be the closing price for such shares on the Nasdaq Global Select Market or, if no sale is reported
for such day, at the average of their electronically-reported bid and asked prices. The number of shares of our common stock to be outstanding
after giving effect to payment of the distribution cannot be established until the value per share at which additional shares will be
issued has been determined and elections of our stockholders have been tabulated.
There is no charge to stockholders
for receiving their distributions in the form of additional shares of our common stock. The plan administrator’s fees for handling
distributions in stock are paid by us. There are no brokerage charges with respect to shares we have issued directly as a result of distributions
payable in stock. If a participant elects by written or telephonic notice to the plan administrator to have the plan administrator sell
part or all of the shares held by the plan administrator in the participant’s account and remit the proceeds to the participant,
the plan administrator is authorized to deduct a $15 transaction fee plus brokerage commissions from the proceeds.
Stockholders who receive distributions
in the form of stock are subject to the same U.S. federal, state and local tax consequences as are stockholders who elect to receive their
distributions in cash. A stockholder’s adjusted tax basis for determining gain or loss upon the sale of stock received in a distribution
from us will be equal to the total dollar amount of the distribution payable to the stockholder. As a result, if you do not elect to opt
out of the DRIP, you will be required to pay applicable U.S. federal, state and local taxes on any reinvested dividends even though you
will not receive a corresponding cash distribution.
The plan may be terminated
by us upon notice in writing mailed to each participant at least 30 days prior to any record date for the payment of any dividend or distribution
by us. All correspondence concerning the plan should be directed to the plan administrator by mail at 6201 15th Avenue, Brooklyn, New
York 11219 or by phone at (800) 937-5449.
CERTAIN U.S. FEDERAL INCOME TAX CONSIDERATIONS
The following discussion is
a general summary of certain U.S. federal income tax considerations relating to our qualification and taxation as a RIC under subchapter
M of the Code, and the acquisition, ownership and disposition of our common stock. This summary does not purport to be a complete description
of the income tax considerations applicable to such an investment. For example, we have not described tax consequences that we assume
to be generally known by investors or certain considerations that may be relevant to certain types of holders subject to special treatment
under U.S. federal income tax laws, including stockholders subject to the alternative minimum tax, tax-exempt organizations, insurance
companies, dealers in securities, traders in securities that elect to use a market-to-market method of accounting for their securities
holdings, pension plans and trusts, financial institutions, U.S. stockholders (as defined below) whose functional currency is not the
U.S. dollar, persons who mark-to-market our shares, persons who hold our shares as part of a “straddle,” “hedge”
or “conversion” transaction, partnerships or other pass-through entities, RICs, real estate investment trusts, personal holding
companies, persons who acquire our common stock in connection with the performance of services, persons who have ceased to be U.S. citizens
or to be taxed as resident aliens, and individual non-U.S. stockholders present in the United States for 183 days or more during a taxable
year. This summary is limited to beneficial owners of our common stock that will hold such common stock as capital assets (within the
meaning of the Code). The discussion is based upon the Code, Treasury regulations, and administrative and judicial interpretations, each
as of the date of this prospectus and all of which are subject to change, possibly retroactively, which could affect the continuing validity
of this discussion. We have not sought and will not seek any ruling from the Internal Revenue Service (“IRS”) regarding the
offering of the common stock. This summary does not discuss any aspects of U.S. estate or gift tax or foreign, state or local tax. It
does not discuss the special treatment under U.S. federal income tax laws that could result if we invested in tax-exempt securities or
certain other investment assets.
This summary does not discuss
the consequences of an investment in our preferred stock, subscription rights to purchase shares of our common stock, debt securities
or warrants representing rights to purchase shares of our common stock, preferred stock or debt securities. The U.S. federal income tax
consequences of such an investment will be discussed in the relevant prospectus supplement.
As used herein, a “U.S.
stockholder” generally is a beneficial owner of common stock who is for U.S. federal income tax purposes:
| · |
a citizen or individual resident of the United States; |
| |
|
| · |
a corporation or other entity treated as a corporation created or organized in or under the laws of the United States, any state thereof or the District of Columbia; |
| |
|
| · |
a trust, if a court within the United States has primary supervision over its administration and one or more U.S. persons have the authority to control all of its substantive decisions, or if the trust has a valid election in effect under applicable U.S. Treasury regulations to be treated as a U.S. person; or |
| |
|
| · |
an estate, the income of which is subject to U.S. federal income taxation regardless of its source. |
As used herein, the term “Non-U.S.
stockholder” means a beneficial owner of common stock that is neither a U.S. stockholder nor a partnership for U.S. federal income
tax purposes.
If a partnership (including
an entity treated as a partnership for U.S. federal income tax purposes) holds the shares of our common stock, the tax treatment of a
partner in the partnership generally will depend upon the status of the partner, the activities of the partnership and certain determinations
made at the partner level. Investors treated as a partnership for U.S. federal income tax purposes (or investors that are partners in
such a partnership), are encouraged to consult with their own tax advisers with respect to the tax consequences relating to the acquisition,
ownership and disposition of our common stock.
Tax matters are complicated
and the tax consequences to an investor of an investment in our common stock will depend on the facts of his, her or its particular situation.
We encourage investors to consult their own tax advisers regarding the specific consequences of such an investment, including tax reporting
requirements, the applicability of federal, state, local and foreign tax laws, eligibility for the benefits of any applicable tax treaty
and the effect of any possible changes in the tax laws.
Taxation of the Company
Election to be Treated as a RIC
We elected to be taxed as
a RIC under the Code beginning with our taxable year ended December 31, 2014, and qualified for taxation as a RIC for such taxable
year and each of the subsequent taxable years. We intend to operate in a manner so as to qualify for taxation as a RIC. So long as we
maintain our qualification for taxation a RIC, we generally will not be subject to U.S. federal income tax on any ordinary income or capital
gains that we timely distribute to our stockholders as dividends. To qualify for taxation as a RIC, we must, among other things, meet
certain source-of-income and asset diversification requirements (as described below). In addition, in order to qualify for the special
treatment accorded to RICs, we generally are required to distribute to our stockholders on a timely basis each year at least 90% of our
“investment company taxable income,” which is generally our net ordinary income plus the excess of realized net short-term
capital gains over realized net long-term capital losses (the “Annual Distribution Requirement”).
Taxation of the Company as a RIC
If we:
| · |
qualify as a RIC; and |
| |
|
| · |
satisfy the Annual Distribution Requirement, |
then we will not be subject to U.S. federal income
tax on the portion of our income and capital gains that we timely distribute (or are deemed to distribute) to stockholders. We will be
subject to U.S. federal income tax at the regular corporate rates on any income, including capital gains not distributed (or deemed distributed)
to our stockholders.
We will be subject to a 4%
nondeductible U.S. federal excise tax on certain undistributed income unless we distribute in a timely manner each calendar year an amount
equal to at least the sum of (1) 98% of our net ordinary income for each calendar year, (2) 98.2% of our capital gains in excess
of capital losses for the one-year period ending October 31 in that calendar year and (3) any ordinary income and net capital
gains that we recognized for preceding years, but were not distributed during such years and on which we paid no U.S. federal income tax
(the “Excise Tax Avoidance Requirement”). While we intend to timely distribute our income and capital gains in order to avoid
imposition of this 4% U.S. federal excise tax, we may not be successful in avoiding entirely the imposition of this tax. In that case,
we will be liable for the tax only on the amount by which we do not meet the foregoing distribution requirement.
In order to qualify as a RIC
for U.S. federal income tax purposes, we must, among other things:
| · |
have in effect an election to be regulated as a BDC under the 1940 Act at all times during each taxable year; |
| |
|
| · |
derive in each taxable year at least 90% of our gross income from dividends, interest, payments with respect to loans of certain securities, gains from the sale of stock or other securities or foreign currencies, other income derived with respect to our business of investing in such stock or securities and net income from “qualified publicly traded partnerships” (the “90% Income Test”); |
| · |
diversify our holdings so that at the end of each quarter of the taxable year: |
| |
· |
at least 50% of the value of our assets consists of cash, cash equivalents, U.S. Government securities, securities of other RICs, and other securities if such other securities of any one issuer do not represent more than 5% of the value of our assets or more than 10% of the outstanding voting securities of the issuer (the “50% Diversification Test”); and |
| |
|
|
| |
· |
no more than 25% of the value of our assets is invested in (i) the securities, other than U.S. Government securities or securities of other RICs, of one issuer, (ii) the securities, other than securities of other RICs, of two or more issuers that are controlled, as determined under applicable Code rules, by us and that are engaged in the same or similar or related trades or businesses, or (iii) the securities of certain “qualified publicly traded partnerships” (the “25% Diversification Test,” and together with the 50% Diversification Test, the “Diversification Tests”). |
If we satisfy the Diversification
Tests as of the close of any quarter, we will not fail the Diversification Tests as of the close of a subsequent quarter as a consequence
of a discrepancy between the value of our assets and the requirements of the Diversification Tests that is attributable solely to fluctuations
in the value of our assets. Rather, we will fail the Diversification Tests as of the end of a subsequent quarter only if such a discrepancy
existed immediately after our acquisition of any asset and such discrepancy is wholly or partly the result of that acquisition. In addition,
if we fail the Diversification Tests as of the end of any quarter, we will not lose our status as a RIC if we eliminate the discrepancy
within thirty days of the end of such quarter and, if we eliminate the discrepancy within that thirty-day period, we will be treated as
having satisfied the Diversification Tests as of the end of such quarter for purposes of applying the rule described in the preceding
sentence.
We may be required to recognize
taxable income in circumstances in which we do not receive cash. For example, if we hold debt obligations that are treated under applicable
tax rules as having original issue discount (which may arise if we receive warrants in connection with the origination of a loan
or possibly in other circumstances), we must include in income each year a portion of the original issue discount that accrues over the
life of the obligation, regardless of whether we receive cash representing such income is received by us in the same taxable year. We
may also have to include in income other amounts that we have not yet received in cash, such as contractual payment-in-kind, or PIK, interest
(which represents contractual interest added to the loan balance and due at the end of the loan term) dividends and deferred loan origination
fees that are paid after origination of the loan or are paid in non-cash compensation such as warrants or stock. Because any original
issue discount or other amounts accrued will be included in our investment company taxable income for the year of accrual, we may be required
to make a distribution to our stockholders in order to satisfy the Annual Distribution Requirement and the Excise Tax Avoidance Requirement,
even though we will not have received any corresponding cash amount.
We will be subject to certain
asset coverage ratio requirements under the 1940 Act and financial covenants under loan and credit agreements that could, under certain
circumstances, restrict us from making distributions necessary to satisfy the Annual Distribution Requirement. See “Part I, Item
1 — Business — Regulation as a Business Development Company — Senior Securities” in our most recent Annual Report
on Form 10-K. Moreover, our ability to dispose of assets to meet our distribution requirements may be limited by (1) the illiquid
nature of our portfolio and/or (2) other requirements relating to our status as a RIC, including the Diversification Tests. If we
dispose of assets in order to meet the Annual Distribution Requirement or the Excise Tax Avoidance Requirement, we may make such dispositions
at times that, from an investment standpoint, are not advantageous.
We may be required to sell
assets in order to satisfy the Diversification Tests. However, our ability to dispose of assets to meet the Diversification Tests may
be limited by the illiquid nature of our portfolio. If we dispose of assets in order to meet the Diversification Tests, we may make such
dispositions at times that, from an investment standpoint, are not advantageous and may result in substantial losses.
We may invest in partnerships,
including qualified publicly traded partnerships, which may result in our being subject to state, local or foreign income taxes, franchise
taxes, or withholding liabilities. To the extent that we invest in entities treated as partnerships for U.S. federal income tax purposes
(other than a “qualified publicly-traded partnership”), we generally must include the items of gross income derived by the
partnerships for purposes of the 90% Income Test, and the income that is derived from a partnership (other than a “qualified publicly-traded
partnership”) will be treated as qualifying income for purposes of the 90% Income Test only to the extent that such income is attributable
to items of income of the partnership which would be qualifying income if realized by us directly.
In order to meet the 90% Income
Test, we may establish one or more special purpose corporations to hold assets from which we do not anticipate earning dividend, interest
or other qualifying income described in the 90% Income Test. Any investments held through a special purpose corporation would generally
be subject to U.S. federal income and other taxes, and therefore we can expect to achieve a reduced after-tax yield on such investments.
Certain of our investment
practices may be subject to special and complex U.S. federal income tax provisions that may, among other things: (i) disallow, suspend
or otherwise limit the allowance of certain losses or deductions; (ii) convert lower-taxed long-term capital gain into higher-taxed
short-term capital gain or ordinary income; (iii) convert an ordinary loss or a deduction into a capital loss (the deductibility
of which is more limited); (iv) cause us to recognize income or gain without a corresponding receipt of cash; (v) adversely
affect the time as to when a purchase or sale of securities is deemed to occur; (vi) adversely alter the characterization of certain
complex financial transactions; and (vii) produce income that will not be qualifying income for purposes of the 90% Income Test described
above. We will monitor our transactions and may make certain tax elections in order to mitigate the potential adverse effect of these
provisions.
A portfolio company may face
financial difficulty that requires us to work-out, modify or otherwise restructure our investment in the portfolio company. Any such restructuring
may result in unusable capital losses and future non-cash income. Any restructuring may also result in our recognition of a substantial
amount of non-qualifying income for purposes of the 90% Income Test.
Gain or loss that realized
by us from the sale or exchange of warrants acquired by us, as well as any loss attributable to the lapse of such warrants, generally
will be treated as capital gain or loss. The treatment of such gain or loss as long-term or short-term will depend on how long we held
a particular warrant. Upon the exercise of a warrant acquired by us, our adjusted tax basis in the stock purchased under the warrant will
equal the sum of the amount paid for the warrant plus the strike price paid on the exercise of the warrant.
As a RIC, we are generally
limited in our ability to deduct expenses in excess of our “investment company taxable income” (which is, generally, ordinary
income plus the excess of net short-term capital gains over net long-term capital losses). If our expenses in a given year exceed investment
company taxable income, we would experience a net operating loss for that year. However, a RIC is not permitted to carry forward net operating
losses to subsequent years. In addition, expenses can be used only to offset investment company taxable income, not net capital gain.
Due to these limits on the deductibility of expenses, we may, for tax purposes, may have aggregate taxable income or net capital gains
for several years that we are required to distribute and that is taxable to our stockholders even if such income or net capital gains
is greater than the aggregate net income we actually earned during those years. Such required distributions may be made from the Company’s
cash assets or by liquidation of investments, if necessary. We may realize gains or losses from such liquidations. In the event we realize
net capital gains from such transactions, a stockholder may receive a larger capital gain distribution than it would have received in
the absence of such transactions.
U.S. federal income tax law
generally permits RICs to carry forward net capital losses indefinitely. However, future Company transactions may limit its ability to
use any capital loss carryforwards, and unrealized losses once realized, under Section 382 of the Code.
Our investment in non-U.S.
securities may be subject to non-U.S. income, withholding and other taxes. In that case, our yield on those securities would be decreased.
Stockholders will generally not be entitled to claim a credit or deduction with respect to non-U.S. taxes paid by us.
If we purchase shares in a
“passive foreign investment company” (a “PFIC”), we may be subject to U.S. federal income tax on our allocable
share of a portion of any “excess distribution” received on, or any gain from the disposition of, such shares even if our
allocable share of such income is distributed to our stockholder as a taxable dividend. Additional charges in the nature of interest generally
will be imposed on us in respect of deferred taxes arising from any such excess distribution or gain. If we invest in a PFIC and elect
to treat the PFIC as a “qualified electing fund” under the Code (a “QEF”), in lieu of the foregoing requirements,
we will be required to include in income each year our proportionate share of the ordinary earnings and net capital gain of the QEF, even
if such income is not distributed by the QEF. Alternatively, we may be able to elect to mark-to-market at the end of each taxable year
its shares in a PFIC; in this case, we will recognize as ordinary income our allocable share of any increase in the value of such shares,
and as ordinary loss our allocable share of any decrease in such value to the extent that any such decrease does not exceed prior increases
included in our income. Under either election, we may be required to recognize in a year income in excess of distributions from PFICs
and proceeds from dispositions of PFIC stock during that year, and such income will nevertheless be subject to the Annual Distribution
Requirement and will be taken into account for purposes of the 4% U.S. federal excise tax.
Failure to Maintain our Qualification as
a RIC
If we fail to satisfy the
90% Income Test or the Diversification Tests for any taxable year, we may nevertheless continue to qualify as a RIC for such year if certain
relief provisions are applicable (which may, among other things, require us to pay certain U.S. federal income tax or to dispose of certain
assets).
If we were unable to qualify
for treatment as a RIC and the foregoing relief provisions are not applicable, we would be subject to U.S. federal income tax on all of
our taxable income at regular corporate rates, regardless of whether we make any distributions to our stockholders. Distributions would
not be required, and any distributions would be taxable to our stockholders as ordinary dividend income that, subject to certain limitations,
may be eligible for the 20% maximum rate to the extent of our current and accumulated earnings and profits provided certain holding period
and other requirements were met. Subject to certain limitations under the Code, corporate distributees would be eligible for the dividends-received
deduction. Distributions in excess of our current and accumulated earnings and profits would be treated first as a return of capital that
would reduce the stockholder’s adjusted tax basis in its common stock (and correspondingly increase such stockholder’s gain,
or reduce such stockholder’s loss, on disposition of such common stock), and any remaining distributions would be treated as a capital
gain. To requalify as a RIC in a subsequent taxable year, we would be required to satisfy the RIC qualification requirements for that
year and dispose of any earnings and profits from any year in which we failed to qualify as a RIC. Subject to a limited exception applicable
to RICs that qualified as such under Subchapter M of the Code for at least one year prior to disqualification and that requalify as a
RIC no later than the second year following the nonqualifying year, we could be subject to U.S. federal income tax on any unrealized net
built-in gains in the assets held by us during the period in which we failed to qualify as a RIC that are recognized within the subsequent
5 years, unless we made a special election to pay U.S. federal income tax at corporate rates on such built-in gain at the time of our
requalification as a RIC.
The remainder of this discussion
assumes that we will qualify for taxation as a RIC and satisfy the Annual Distribution Requirement for the current taxable year and each
future taxable year.
Taxation of U.S. Stockholders
Distributions by us generally
are taxable to U.S. stockholders as ordinary income or capital gains. Distributions of our “investment company taxable income”
(which is, generally, our net ordinary income plus realized net short-term capital gains in excess of realized net long-term capital losses)
will be taxable as ordinary income to U.S. stockholders to the extent of our current or accumulated earnings and profits, whether paid
in cash or reinvested in additional common stock. To the extent such distributions paid by us to non-corporate U.S. stockholders (including
individuals) are attributable to dividends from U.S. corporations and certain qualified foreign corporations, such distributions (“Qualifying
Dividends”) may be eligible for a maximum tax rate of 20%. In this regard, it is anticipated that distributions paid by us generally
will not be attributable to dividends and, therefore, generally will not qualify for the 20% maximum rate applicable to Qualifying Dividends.
Distributions of our net capital gains (which are generally our realized net long-term capital gains in excess of realized net short-term
capital losses) properly reported by us as “capital gain dividends” will be taxable to a U.S. stockholder as long-term capital
gains which are currently taxable at a maximum rate of 20% in the case of individuals or estates, regardless of the U.S. stockholder’s
holding period for his, her or its common stock and regardless of whether paid in cash or reinvested in additional common stock. Distributions
in excess of our current and accumulated earnings and profits first will reduce a U.S. stockholder’s adjusted tax basis in such
U.S. stockholder’s common stock and, after the adjusted basis is reduced to zero, will constitute capital gains to such U.S. stockholder.
Under the DRIP, our U.S. stockholders
who have not “opted out” of our DRIP will have their cash distributions automatically reinvested in additional shares of our
common stock, rather than receiving the cash distributions. Any distributions reinvested under the plan will nevertheless be treated as
received by the U.S. stockholders for U.S. federal income tax purposes. A U.S. stockholder’s adjusted tax basis in the additional
common stock purchased through the plan is equal to the amount of the reinvested distribution. The additional shares will have a new holding
period commencing on the day following the day on which the shares are credited to the U.S. stockholder’s account.
We may retain some or all
of our realized net long-term capital gains in excess of realized net short-term capital losses, but designate the retained net capital
gain as a “deemed distribution.” In that case, among other consequences, we will pay U.S. federal income tax on the retained
amount, each U.S. stockholder will be required to include his, her or its share of the deemed distribution in income as if it had been
actually distributed to the U.S. stockholder, and the U.S. stockholder will be entitled to claim a credit equal to his, her or its allocable
share of the tax paid thereon by us. If the amount of tax that a U.S. stockholder is treated as having paid exceeds the tax they owe on
the deemed capital gain distribution, such excess generally may be claimed as a credit against the U.S. stockholder’s other U.S.
federal income tax obligations or may be refunded to the extent it exceeds a U.S. stockholder’s liability for U.S. federal income
tax. The U.S. stockholder’s adjusted tax basis for his, her or its common stock will be increased by the amount of the deemed distribution
net of such tax. In order to utilize the deemed distribution approach, we must provide written notice to our U.S. stockholders within
60 days after the close of the relevant taxable year. We cannot treat any of our investment company taxable income as a “deemed
distribution.”
We may distribute taxable
distributions that are payable in cash or shares of our common stock at the election of each stockholder. Under certain applicable provisions
of the Code and the U.S. Treasury regulations and certain IRS guidance, distributions by RICs that are payable in cash or in shares of
stock at the election of stockholders are treated as taxable distributions. The IRS has published a revenue procedure indicating that,
in the case of publicly offered RICs, this rule will apply where the total amount of cash to be distributed is not less than 20%
of the total distribution. Under this revenue procedure, if too many stockholders elect to receive their distributions in cash, the cash
available for distribution must be allocated among the stockholders electing to receive cash (with the balance of the distribution paid
in stock). In no event will any stockholder electing to receive cash, receive less than the lesser of (a) the portion of the distribution
such stockholder has elected to receive in cash or (b) an amount equal to his, her or its entire distribution times the percentage
limitation on cash available for distribution. If the Company decides to make any distributions consistent with this guidance that are
payable in part in its stock, taxable U.S. stockholders receiving such distributions will be required to include the full amount of the
distribution (whether received in cash, our stock, or a combination thereof) as ordinary income (or as long-term capital gain to the extent
such distribution is properly reported as a capital gain distribution) to the extent of our current and accumulated earnings and profits
for U.S. federal income tax purposes. As a result, a U.S. stockholder may be required to pay tax with respect to such distributions in
excess of any cash received. If a U.S. stockholder sells the stock it receives as a distribution in order to pay this tax, the sales proceeds
may be less than the amount included in income with respect to the distribution, depending on the market price of our stock at the time
of the sale.
For purposes of determining
(1) whether the Annual Distribution Requirement is satisfied for any year and (2) the amount of capital gain dividends paid
for that year, we may, under certain circumstances, elect to treat a dividend that is paid during the following taxable year as if it
had been paid during the taxable year in question. If we make such an election, U.S. stockholders will nonetheless be treated as receiving
the dividend in the taxable year in which the distribution is made. However, any dividend declared by us in October, November or
December of any calendar year, payable to stockholders of record on a specified date in such a month and actually paid during January of
the following year, will be treated as if it had been received by our U.S. stockholders on December 31 of the year in which the dividend
was declared.
If an investor purchases shares
of our common stock shortly before the record date of a distribution, the price of the shares will include the value of the distribution
and the investor will be subject to tax on the distribution even though economically it may represent a return of his, her or its investment.
A U.S. stockholder generally
will recognize taxable gain or loss if the U.S. stockholder sells or otherwise disposes of his, her or its shares of our common stock.
The amount of gain or loss will be measured by the difference between such U.S. stockholder’s adjusted tax basis in the common stock
sold and the amount of the proceeds received in exchange. Any gain or loss arising from such sale or disposition generally will be treated
as long-term capital gain or loss if the U.S. stockholder has held his, her or its shares for more than one year. Otherwise, it will be
classified as short-term capital gain or loss. However, any capital loss arising from the sale or disposition of shares of our common
stock held for six months or less will be treated as long-term capital loss to the extent of the amount of capital gain dividends received,
or undistributed capital gain deemed received, with respect to such shares. In addition, all or a portion of any loss recognized by a
U.S. stockholder upon a disposition of shares of our common stock will generally be disallowed if the U.S. stockholder purchases other
shares of our common stock (whether through reinvestment of distributions or otherwise) within 30 days before or after the disposition.
The maximum U.S. federal income
tax rate on long-term capital gains for non-corporate taxpayers is 20%. In addition, individuals with modified adjusted gross incomes
in excess of $200,000 ($250,000 in the case of married individuals filing jointly) and certain estates and trusts are subject to an additional
3.8% tax on their “net investment income,” which generally includes net income from interest, dividends, annuities, royalties,
and rents, and net capital gains (other than certain amounts earned from trades or businesses). Corporate U.S. stockholders currently
are subject to U.S. federal income tax on net capital gain at the maximum 21% rate also applied to ordinary income. Non-corporate U.S.
stockholders with net capital losses for a year (i.e., capital losses in excess of capital gains) generally may deduct up to $3,000 of
such losses against their ordinary income that year; any net capital losses of a non-corporate U.S. stockholder in excess of $3,000 generally
may be carried forward and used in subsequent years as provided in the Code. Corporate U.S. stockholders generally may not deduct any
net capital losses for a year, but may carry back such losses for three years or carry forward such losses for five years.
We or the applicable withholding
agent will send to each of our U.S. stockholders, as promptly as possible after the end of each calendar year, a notice detailing the
amounts includible in such U.S. stockholder’s taxable income for such year as ordinary income, Qualifying Dividends and as long-term
capital gain. In addition, the federal tax status of each year’s distributions generally will be reported to the IRS. Distributions
may also be subject to additional state, local and foreign taxes depending on a U.S. stockholder’s particular situation.
Taxation of Non-U.S. Stockholders
Whether an investment in the
shares is appropriate for a Non-U.S. stockholder will depend upon that person’s particular circumstances. An investment in the shares
by a Non-U.S. stockholder may have adverse tax consequences. Non-U.S. stockholders should consult their tax advisers before investing
in our common stock.
In general, distributions
by us to a Non-U.S. stockholder of our “investment company taxable income” generally are subject to withholding of U.S. federal
tax at a 30% rate (or lower rate provided by an applicable treaty) to the extent of our current or accumulated earnings and profits unless
an applicable exception applies. No withholding is required with respect to certain distributions if (i) the distributions are properly
reported to our stockholders as “interest-related dividends” or “short-term capital gain dividends,” (ii) the
distributions are derived from sources specified in the Code for such dividends and (iii) certain other requirements are satisfied.
Currently, we do not anticipate that a significant amount of our distributions would be reported as eligible for this exemption from withholding.
No assurance can be provided that any of our distributions will qualify for this exemption.
In addition, if the distributions
are effectively connected with the Non-U.S. stockholder’s conduct of a trade or business in the United States (and, if a treaty
applies, are attributable to a U.S. permanent establishment maintained by the Non-U.S. stockholder in the United States), we will not
be required to withhold U.S. federal tax if the Non-U.S. stockholder complies with applicable certification and disclosure requirements,
although the distributions will be subject to U.S. federal income tax at the rates applicable to U.S. stockholders. Special certification
requirements apply to a Non-U.S. stockholder that is a foreign partnership or a foreign trust, and such entities are urged to consult
their own tax advisers.
Actual or deemed distributions
of our net capital gains to a Non-U.S. stockholder, and gains realized by a Non-U.S. stockholder upon the sale or redemption of our common
stock, will not be subject to U.S. federal income tax if properly reported by us as capital gain dividends unless the distributions or
gains, as the case may be, are effectively connected with the Non-U.S. stockholder’s conduct of a trade or business within the United
States (and, if an income tax treaty applies, are attributable to a permanent establishment maintained by the Non-U.S. stockholder in
the United States) or, in the case of an individual, the Non-U.S. stockholder was present in the United States for 183 days or more during
the taxable year and certain other conditions are met.
If we distribute our net capital
gains in the form of deemed rather than actual distributions, a Non-U.S. stockholder will be entitled to a U.S. federal income tax credit
or tax refund equal to the stockholder’s allocable share of the U.S. federal income tax we pay on the capital gains deemed to have
been distributed; however, in order to obtain the refund, the Non-U.S. stockholder must obtain a U.S. taxpayer identification number and
file a U.S. federal income tax return even if the Non-U.S. stockholder would not otherwise be required to obtain a U.S. taxpayer identification
number or file a U.S. federal income tax return.
If any actual or deemed distributions
of our net capital gains, or any gains realized upon the sale or redemption of our common stock, are effectively connected with a Non-U.S.
stockholder’s conduct of a trade or business within the United States (and, if an income tax treaty applies, are attributable to
a U.S. permanent establishment maintained by the Non-U.S. stockholder), such amounts will be subject to U.S. federal income tax, on a
net income basis, in the same manner, and at the graduated rates applicable to, a U.S. stockholder. For a corporate Non-U.S. stockholder,
the after-tax amount of distributions (both actual and deemed) and gains realized upon the sale or redemption of our common stock that
are effectively connected to the Non-U.S. stockholder’s conduct of a trade or business within the United States (and, if a treaty
applies, are attributable to a U.S. permanent establishment), may, under certain circumstances, be subject to an additional “branch
profits tax” at a 30% rate (or at a lower rate if provided for by an applicable treaty). Accordingly, investment in shares of our
common stock may not be appropriate for certain Non-U.S. stockholders.
Under the DRIP, our stockholders
who have not “opted out” of our DRIP will have their cash distributions automatically reinvested in additional shares of our
common stock, rather than receiving the cash distributions. If the distribution is a distribution of our investment company taxable income
and is not properly reported by us as a short-term capital gains dividend or interest-related dividend (assuming an extension of the exemption
discussed above), the amount distributed (to the extent of our current and accumulated earnings and profits) will be subject to U.S. federal
withholding tax as described above and only the net after-tax amount will be reinvested in our common stock. If the distribution is effectively
connected with the Non-U.S. stockholder’s conduct of a trade or business in the United States (and, if a treaty applies, is attributable
to a U.S. permanent establishment), generally the full amount of the distribution will be reinvested in the plan and will nevertheless
be subject to U.S. federal income tax at the ordinary income rates applicable to U.S. stockholders. The Non-U.S. stockholder will have
an adjusted tax basis in the additional common stock purchased through the plan equal to the amount reinvested. The additional shares
will have a new holding period commencing on the day following the day on which the shares are credited to the Non-U.S. stockholder’s
account.
The tax consequences to Non-U.S.
stockholders entitled to claim the benefits of an applicable tax treaty or that are individuals that are present in the U.S. for 183 days
or more during a taxable year may be different from those described herein. Non-U.S. stockholders are urged to consult their tax advisers
with respect to the procedure for claiming the benefit of a lower treaty rate and the applicability of foreign taxes.
Non-U.S. persons should
consult their own tax advisers with respect to the U.S. federal income tax and withholding tax, and state, local and foreign tax consequences
of an investment in the shares.
If we were unable to qualify
for treatment as a RIC, any distributions by us would be treated as dividends to the extent of our current and accumulated earnings and
profits. We would not be eligible to report any such dividends as interest-related dividends, short-term capital gain dividends, or capital
gain dividends. As a result, any such dividend paid to a Non-U.S. stockholder that is not effectively connected with the Non-U.S. stockholder’s
conduct of a trade or business within the United States (and, if an income tax treaty applies, attributable to a permanent establishment
maintained by the Non-U.S. stockholder in the United States) would be subject to the 30% (or reduced applicable treaty rate) withholding
tax discussed above regardless of the source of the income giving rise to such distribution. Distributions in excess of our current and
accumulated earnings and profits would be treated first as a return of capital to the extent of the Non-U.S. stockholder’s adjusted
tax basis, and any remaining distributions would be treated as a gain from the sale of the Non-U.S. stockholder’s shares subject
to taxation as discussed above. For the consequences to the Company for failing to qualify as a RIC, see “Failure to Qualify as
a RIC” above.
Backup Withholding and Information Reporting
U.S. stockholders.
Information returns are required to be filed with the IRS in connection with dividends on the common stock and proceeds received from
a sale or other disposition of the common stock to a U.S. stockholder unless the U.S. stockholder is an exempt recipient. U.S. stockholders
may also be subject to backup withholding on these payments in respect of the common stock unless such U.S. stockholder provides its taxpayer
identification number and otherwise complies with applicable requirements of the backup withholding rules or provides proof of an
applicable exemption.
Non-U.S. stockholders.
The amount of taxable distributions that we pay to any Non-U.S. stockholder with respect to our common stock will be reported to the Non-U.S.
stockholder and to the IRS annually on an IRS Form 1042-S, regardless of the amount of U.S. federal income tax withheld. Copies of
these information returns may also be made available under the provisions of a specific income tax treaty or agreement with the tax authorities
of the country in which the Non-U.S. stockholder resides. However, a Non-U.S. stockholder generally will not be subject to backup withholding
and certain other information reporting with respect to payments that we make to the Non-U.S. stockholder, provided that we do not have
actual knowledge or reason to know that such Non-U.S. stockholder is a “United States person” within the meaning of the Code,
and the Non-U.S. stockholder complies with applicable certification and disclosure requirements and furnishes to us the requisite information.
Amounts withheld under the
backup withholding rules are not additional taxes and may be refunded or credited against a U.S. stockholder’s or Non-U.S.
stockholder’s U.S. federal income tax liability, if any, provided the required information is timely furnished to the IRS.
Foreign Account Tax Compliance Act
Legislation commonly referred
to as the “Foreign Account Tax Compliance Act,” or “FATCA,” generally imposes a 30% withholding tax on payments
of certain types of income to foreign financial institutions (“FFIs”) unless such FFIs either: (i) enter into an agreement
with the U.S. Treasury to report certain required information with respect to accounts held by certain specified U.S. persons (or held
by foreign entities that have certain specified U.S. persons as substantial owners) or (ii) reside in a jurisdiction that has entered
into an intergovernmental agreement (“IGA”) with the United States to collect and share such information and are in compliance
with the terms of such IGA and any enabling legislation or regulations. The types of income subject to the tax include U.S. source interest
and dividends. While the Code would also require withholding or payments of the gross proceeds from the sale of any property that could
produce U.S. source interest or dividends, the U.S. Treasury department has indicated its intent to eliminate this requirement in subsequent
proposed regulations, which state that taxpayers may rely on the proposed regulations until final regulations are issued. The information
required to be reported includes the identity and taxpayer identification number of each account holder that is a specified U.S. person
and transaction activity within the holder’s account. In addition, subject to certain exceptions, FATCA also imposes a 30% withholding
on certain payments to certain foreign entities that are not FFIs unless such foreign entities certify that they do not have a greater
than 10% owner that is a specified U.S. person or provide the withholding agent with identifying information on each greater than 10%
owner that is a specified U.S. person. Depending on the status of a Non-U.S. stockholder and the status of the intermediaries through
which they hold their shares, Non-U.S. stockholders could be subject to this 30% withholding tax with respect to distributions on their
shares. Under certain circumstances, a Non-U.S. stockholder might be eligible for refunds or credits of such taxes.
DESCRIPTION OF OUR SECURITIES
This prospectus contains a
summary of the common stock, preferred stock, subscription rights, warrants and debt securities that may be offered hereunder. These summaries
are not meant to be a complete description of each security. However, this prospectus and the accompanying prospectus supplement will
contain the material terms and conditions for each security.
DESCRIPTION OF OUR CAPITAL STOCK
This prospectus contains a
summary of our capital stock and is not meant to be a complete description. However, this prospectus and any accompanying prospectus supplement
will contain the material terms and conditions for each security sold thereunder. The following description is based on relevant portions
of the Maryland General Corporation Law (the “MGCL”) and on our charter and bylaws.
Stock
The authorized stock of SuRo
Capital as of August 15, 2023 consists of 100,000,000 shares of stock, par value $0.01 per share, all of which are initially designated
as common stock. Our common stock is listed on the Nasdaq Global Select Market under the ticker symbol “SSSS.” As of August 15,
2023, there are no outstanding options or warrants to purchase our stock. Under the Company’s Amended and Restated 2019 Equity Incentive
Plan (the “Amended Equity Incentive Plan”), and subject to the terms therein, the Company may issue (i) restricted shares
to its employees, officers and all directors, including non-employee directors, and (ii) options to its employees, officers, and
directors, excluding non-employee directors. Under the Amended Equity Incentive Plan, the maximum aggregate number of our common stock
that may be authorized for issuance is 1,627,967.
Under the MGCL, our stockholders
generally are not personally liable for our debts or obligations.
The following are our outstanding
classes of equity securities as of August 15, 2023:
| Title of Class | |
Amount Authorized | | |
Amount Held by Us or
for Our Account | | |
Amount Outstanding | |
| Common stock | |
| 100,000,000 | | |
| — | | |
| 25,398,640 | |
Under our Articles of Amendment
and Restatement (the “Charter”), our Board of Directors is authorized to classify and reclassify any unissued shares of stock
into other classes or series of stock without obtaining stockholder approval. As permitted by the MGCL, our Charter provides that the
Board of Directors, without any action by our stockholders, may amend the charter from time to time to increase or decrease the aggregate
number of shares of stock or the number of shares of stock of any class or series that we have authority to issue.
Common Stock
All shares of our common stock
have equal rights as to earnings, assets, voting, and dividends and, when they are issued, will be duly authorized, validly issued, fully
paid and nonassessable. Distributions may be paid to the holders of our common stock if, as and when authorized by our Board of Directors
and declared by us out of assets legally available therefor. Shares of our common stock have no preemptive, conversion or redemption rights
and are freely transferable, except where their transfer is restricted by federal and state securities laws or by contract. In the event
of our liquidation, dissolution or winding up, each share of our common stock would be entitled to share ratably in all of our assets
that are legally available for distribution after we pay all debts and other liabilities and subject to any preferential rights of holders
of our preferred stock, if any preferred stock is outstanding at such time. Each share of our common stock is entitled to one vote on
all matters submitted to a vote of stockholders, including the election of directors. Except as provided with respect to any other class
or series of stock, the holders of our common stock will possess exclusive voting power. There is no cumulative voting in the election
of directors, which means that holders of a majority of the outstanding shares of common stock can elect all of our directors, and holders
of less than a majority of such shares will be unable to elect any director.
Preferred Stock
Our Charter authorizes our
Board of Directors to classify and reclassify any unissued shares of stock into other classes or series of stock, including preferred
stock. The cost of any such reclassification would be borne by our existing common stockholders. Prior to issuance of shares of each class
or series, the Board of Directors is required by the MGCL and by our charter to set the terms, preferences, conversion or other rights,
voting powers, restrictions, limitations as to dividends or other distributions, qualifications and terms or conditions of redemption
for each class or series. Thus, the Board of Directors could authorize the issuance of shares of preferred stock with terms and conditions
which could have the effect of delaying, deferring or preventing a transaction or a change in control that might involve a premium price
for holders of our common stock or otherwise be in their best interest. Any issuance of preferred stock must comply with the requirements
of the 1940 Act. The 1940 Act requires, among other things, that (1) immediately after issuance and before any dividend or other
distribution is made with respect to our common stock and before any purchase of common stock is made, such preferred stock together with
all other senior securities must not exceed an amount equal to 50% of our gross assets after (or 66 2/3%, if certain requirements are
met) deducting the amount of such dividend, distribution or purchase price, as the case may be, and (2) the holders of shares of
preferred stock, if any are issued, must be entitled as a class to elect two directors at all times and to elect a majority of the directors
if dividends on such preferred stock are in arrears by two full years or more. Certain matters under the 1940 Act require the separate
vote of the holders of any issued and outstanding preferred stock. For example, holders of preferred stock would vote separately from
the holders of common stock on a proposal to cease operations as a BDC. We expect that the availability for issuance of preferred stock
will provide us with increased flexibility in structuring future financings and acquisitions. However, we do not currently have any plans
to issue preferred stock.
Limitation on Liability of Directors and Officers;
Indemnification and Advance of Expenses
The MGCL permits a Maryland
corporation to include in its charter a provision limiting the liability of its directors and officers to the corporation and its stockholders
for money damages except for liability resulting from (a) actual receipt of an improper benefit or profit in money, property or services
or (b) active and deliberate dishonesty established by a final judgment as being material to the cause of action. Our charter contains
such a provision which eliminates directors’ and officers’ liability to the maximum extent permitted by the MGCL, subject
to the requirements of the 1940 Act.
Our charter authorizes us,
to the maximum extent permitted by the MGCL and subject to the requirements of the 1940 Act, to indemnify any present or former director
or officer or any individual who, while serving as our director or officer and at our request, serves or has served another corporation,
real estate investment trust, partnership, joint venture, trust, employee benefit plan or other enterprise as a director, officer, partner
or trustee, from and against any claim or liability to which that person may become subject or which that person may incur by reason of
his or her service in any such capacity and to pay or reimburse their reasonable expenses in advance of final disposition of a proceeding.
Our bylaws obligate us, to the maximum extent permitted by the MGCL and subject to the requirements of the 1940 Act, to indemnify any
present or former director or officer or any individual who, while serving as our director or officer and at our request, serves or has
served another corporation, real estate investment trust, partnership, joint venture, trust, employee benefit plan or other enterprise
as a director, officer, partner or trustee and who is made, or threatened to be made, a party to the proceeding by reason of his or her
service in that capacity from and against any claim or liability to which that person may become subject or which that person may incur
by reason of his or her service in any such capacity and to pay or reimburse his or her reasonable expenses in advance of final disposition
of a proceeding. The charter and bylaws also permit us to indemnify and advance expenses to any person who served a predecessor of us
in any of the capacities described above and any of our employees or agents or any employees or agents of our predecessor. In accordance
with the 1940 Act, we will not indemnify any person for any liability to which such person would be subject by reason of such person’s
willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of his or her office.
The MGCL requires a corporation
(unless its charter provides otherwise, which our charter does not) to indemnify a director or officer who has been successful in the
defense of any proceeding to which he or she is made, or threatened to be made, a party by reason of his or her service in that capacity.
The MGCL permits a corporation to indemnify its present and former directors and officers, among others, against judgments, penalties,
fines, settlements and reasonable expenses actually incurred by them in connection with any proceeding to which they may be made, or threatened
to be made, a party by reason of their service in those or other capacities unless it is established that (a) the act or omission
of the director or officer was material to the matter giving rise to the proceeding and (1) was committed in bad faith or (2) was
the result of active and deliberate dishonesty, (b) the director or officer actually received an improper personal benefit in money,
property or services or (c) in the case of any criminal proceeding, the director or officer had reasonable cause to believe that
the act or omission was unlawful. However, under the MGCL, a Maryland corporation may not indemnify for an adverse judgment in a suit
by or in the right of the corporation or for a judgment of liability on the basis that a personal benefit was improperly received unless,
in either, case a court orders indemnification, and then only for expenses. In addition, the MGCL permits a corporation to advance reasonable
expenses to a director or officer in advance of final disposition of a proceeding upon the corporation’s receipt of (a) a written
affirmation by the director or officer of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification
by the corporation and (b) a written undertaking by him or her or on his or her behalf to repay the amount paid or reimbursed by
the corporation if it is ultimately determined that the standard of conduct was not met.
We have entered into indemnification
agreements with our directors and executive officers. The indemnification agreements provide our directors and executive officers the
maximum indemnification permitted under the MGCL and the 1940 Act.
Certain Provisions of the MGCL and Our Charter
and Bylaws
The MGCL and our charter and
bylaws contain provisions that could make it more difficult for a potential acquirer to acquire us by means of a tender offer, proxy contest
or otherwise, the material ones of which are discussed below. These provisions are expected to discourage certain coercive takeover practices
and inadequate takeover bids and to encourage persons seeking to acquire control of us to negotiate first with our Board of Directors.
We expect the benefits of these provisions to outweigh the potential disadvantages of discouraging any such acquisition proposals because,
among other things, the negotiation of such proposals may improve their terms.
Classified Board of Directors
Our Board of Directors is
divided into three classes of directors serving staggered three-year terms. The current terms of the first, second and third classes will
expire in 2024, 2025, and 2023 respectively, and in each case, those directors will serve until their successors are elected and qualify.
Upon expiration of their terms, directors of each class will be elected to serve for three-year terms and until their successors are duly
elected and qualify and each year one class of directors will be elected by the stockholders. A classified Board may render a change in
control of us or removal of our incumbent management more difficult. We believe, however, that the longer time required to elect a majority
of a classified Board of Directors will help to ensure the continuity and stability of our management and policies.
Election of Directors
Our bylaws, as authorized
by our charter, provide that a plurality of all the votes cast at a meeting of stockholders duly called and at which a quorum is present
is required to elect a director. Pursuant to our charter our Board of Directors may amend the bylaws to alter the vote required to elect
directors.
Number of Directors; Vacancies; Removal
Our charter provides that
the number of directors will be set only by the Board of Directors in accordance with our bylaws. Our bylaws provide that a majority of
our entire Board of Directors may at any time increase or decrease the number of directors. However, unless our bylaws are amended, the
number of directors may never be less than one nor more than nine. Our charter provides that, at such time as we have at least three independent
directors and our common stock is registered under the Exchange Act, as amended, we elect to be subject to the provision of Subtitle 8
of Title 3 of the MGCL regarding the filling of vacancies on the Board of Directors. Accordingly, at such time, except as may be provided
by the Board of Directors in setting the terms of any class or series of preferred stock, any and all vacancies on the Board of Directors
may be filled only by the affirmative vote of a majority of the remaining directors in office, even if the remaining directors do not
constitute a quorum, and any director elected to fill a vacancy will serve for the remainder of the full term of the directorship in which
the vacancy occurred and until a successor is elected and qualifies, subject to any applicable requirements of the 1940 Act.
Our charter provides that
a director may be removed only for cause, as defined in our charter, and then only by the affirmative vote of at least two-thirds of the
votes entitled to be cast in the election of directors.
Action by Stockholders
Under the MGCL, stockholder
action can be taken only at an annual or special meeting of stockholders or (unless the charter provides for stockholder action by less
than unanimous written consent, which our charter does not) by unanimous written consent in lieu of a meeting. These provisions, combined
with the requirements of our bylaws regarding the calling of a stockholder-requested special meeting of stockholders discussed below,
may have the effect of delaying consideration of a stockholder proposal until the next annual meeting.
Advance Notice Provisions for Stockholder
Nominations and Stockholder Proposals
Our bylaws provide that with
respect to an annual meeting of stockholders, nominations of persons for election to the Board of Directors and the proposal of business
to be considered by stockholders may be made only (1) pursuant to our notice of the meeting, (2) by the Board of Directors or
(3) by a stockholder who is entitled to vote at the meeting and who has complied with the advance notice procedures of our bylaws.
With respect to special meetings of stockholders, only the business specified in our notice of the meeting may be brought before the meeting.
Nominations of persons for election to the Board of Directors at a special meeting may be made only (1) pursuant to our notice of
the meeting, (2) by the Board of Directors or (3) provided that the Board of Directors has determined that directors will be
elected at the meeting, by a stockholder who is entitled to vote at the meeting and who has complied with the advance notice provisions
of the bylaws.
The purpose of requiring stockholders
to give us advance notice of nominations and other business is to afford our Board of Directors a meaningful opportunity to consider the
qualifications of the proposed nominees and the advisability of any other proposed business and, to the extent deemed necessary or desirable
by our Board of Directors, to inform stockholders and make recommendations about such qualifications or business, as well as to provide
a more orderly procedure for conducting meetings of stockholders. Although our bylaws do not give our Board of Directors any power to
disapprove stockholder nominations for the election of directors or proposals recommending certain action, they may have the effect of
precluding a contest for the election of directors or the consideration of stockholder proposals if proper procedures are not followed
and of discouraging or deterring a third party from conducting a solicitation of proxies to elect its own slate of directors or to approve
its own proposal without regard to whether consideration of such nominees or proposals might be harmful or beneficial to us and our stockholders.
Calling of Special Meetings of Stockholders
Our bylaws provide that special
meetings of stockholders may be called by our Board of Directors and certain of our officers. Additionally, our bylaws provide that, subject
to the satisfaction of certain procedural and informational requirements by the stockholders requesting the meeting, a special meeting
of stockholders will be called by the secretary of the corporation upon the written request of stockholders entitled to cast not less
than a majority of all the votes entitled to be cast at such meeting.
Approval of Extraordinary Corporate Action;
Amendment of Charter and Bylaws
Under the MGCL, a Maryland
corporation generally cannot dissolve, amend its charter, merge, sell all or substantially all of its assets, engage in a share exchange
or engage in similar transactions outside the ordinary course of business, unless approved by the affirmative vote of stockholders entitled
to cast at least two-thirds of the votes entitled to be cast on the matter. However, a Maryland corporation may provide in its charter
for approval of these matters by a lesser percentage, but not less than a majority of all of the votes entitled to be cast on the matter.
Our charter generally provides for approval of charter amendments and extraordinary transactions by the stockholders entitled to cast
at least a majority of the votes entitled to be cast on the matter. Our charter also provides that the following matters require the approval
of stockholders entitled to cast at least 80% of the votes entitled to be cast: (i) certain charter amendments; (ii) any proposal
for our conversion, whether by merger or otherwise, from a closed-end company to an open-end company; (iii) any proposal for our
liquidation or dissolution; or (iv) any proposal regarding a merger, consolidation, share exchange or sale or exchange of all or
substantially all of our assets that the MGCL requires to be approved by our stockholders. However, if such amendment or proposal is approved
by a majority of our continuing directors (in addition to approval by our Board of Directors), such amendment or proposal may be approved
by a majority of the votes entitled to be cast on such a matter. The “continuing directors” are defined in our charter as
(1) our current directors, (2) those directors whose nomination for election by the stockholders or whose election by the directors
to fill vacancies is approved by a majority of our current directors then on our Board of Directors or (3) any successor directors
whose nomination for election by the stockholders or whose election by the directors to fill vacancies is approved by a majority of continuing
directors or the successor continuing directors then in office.
Our charter and bylaws provide
that the Board of Directors will have the exclusive power to make, alter, amend or repeal any provision of our bylaws.
No Appraisal Rights
Except with respect to appraisal
rights arising in connection with the Control Share Act discussed below, as permitted by the MGCL, our charter provides that stockholders
will not be entitled to exercise appraisal rights unless a majority of the Board of Directors shall determine such rights apply.
Control Share Acquisitions
The MGCL, pursuant to the
Control Share Act, provides that control shares of a Maryland corporation acquired in a control share acquisition have no voting rights
except to the extent approved by a vote of two-thirds of the votes entitled to be cast on the matter. Shares owned by the acquiror, by
officers or by directors who are employees of the corporation are excluded from shares entitled to vote on the matter. Control shares
are voting shares of stock which, if aggregated with all other shares of stock owned by the acquiror or in respect of which the acquiror
is able to exercise or direct the exercise of voting power (except solely by virtue of a revocable proxy), would entitle the acquiror
to exercise voting power in electing directors within one of the increasing ranges of voting power listed in the Control Share Act. The
requisite stockholder approval must be obtained each time an acquiror crosses one of the thresholds of voting power. Control shares do
not include shares the acquiring person is then entitled to vote as a result of having previously obtained stockholder approval. A control
share acquisition means the acquisition of control shares, subject to certain exceptions.
Our bylaws contain a provision
exempting from the Control Share Act any and all acquisitions by any person of our shares of stock. There can be no assurance that such
provision will not be amended or eliminated at any time in the future. However, we will amend our bylaws to be subject to the Control
Share Act only if our Board of Directors determines that it would be in our best interests and if the SEC staff does not object to our
determination that our being subject to the Control Share Act does not conflict with the 1940 Act.
Business Combinations
Under the MGCL, “business
combinations” between a Maryland corporation and an interested stockholder or an affiliate of an interested stockholder are prohibited
for five years after the most recent date on which the interested stockholder becomes an interested stockholder. These business combinations
include a merger, consolidation, share exchange or, in circumstances specified in the statute, an asset transfer or issuance or reclassification
of equity securities. An interested stockholder is defined as:
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any person who beneficially owns 10% or more of the voting power of the corporation’s outstanding voting stock; or |
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an affiliate or associate of the corporation who, at any time within the two-year period prior to the date in question, was the beneficial owner of 10% or more of the voting power of the then outstanding voting stock of the corporation. |
A person is not an interested
stockholder under this statute if the Board of Directors approved in advance the transaction by which the stockholder otherwise would
have become an interested stockholder. However, in approving a transaction, the Board of Directors may provide that its approval is subject
to compliance, at or after the time of approval, with any terms and conditions determined by the Board of Directors.
After the five-year prohibition,
any business combination between the Maryland corporation and an interested stockholder generally must be recommended by the Board of
Directors of the corporation and approved by the affirmative vote of at least:
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80% of the votes entitled to be cast by holders of outstanding shares of voting stock of the corporation; and |
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two-thirds of the votes entitled to be cast by holders of voting stock of the corporation other than shares held by the interested stockholder with whom or with whose affiliate the business combination is to be effected or held by an affiliate or associate of the interested stockholder. |
These super-majority vote
requirements do not apply if the corporation’s common stockholders receive a minimum price, as defined under the MGCL, for their
shares in the form of cash or other consideration in the same form as previously paid by the interested stockholder for its shares.
The statute permits various
exemptions from its provisions, including business combinations that are exempted by the Board of Directors before the time that the interested
stockholder becomes an interested stockholder. Our Board of Directors has adopted a resolution that any business combination between us
and any other person is exempted from the provisions of the Model Business Corporation Act (the “MBCA”), provided that the
business combination is first approved by the Board of Directors, including a majority of the directors who are not “interested
persons” as defined in the 1940 Act. This resolution may be altered or repealed in whole or in part at any time; however, our Board
of Directors will adopt resolutions so as to make us subject to the provisions of the MBCA only if the Board of Directors determines that
it would be in our best interests and if the SEC staff does not object to our determination that our being subject to the MBCA does not
conflict with the 1940 Act. If this resolution is repealed, or the Board of Directors does not otherwise approve a business combination,
the statute may discourage others from trying to acquire control of us and increase the difficulty of consummating any offer.
Conflict with 1940 Act
Our bylaws provide that, if
and to the extent that any provision of the MGCL, including the Control Share Act (if we amend our bylaws to be subject to such Act) and
the MBCA, or any provision of our charter or bylaws conflicts with any provision of the 1940 Act, the applicable provision of the 1940
Act will control.
DESCRIPTION OF OUR PREFERRED STOCK
In addition to shares of common
stock, our charter authorizes the issuance of preferred stock. If we offer preferred stock under this prospectus, we will issue an appropriate
prospectus supplement. We may issue preferred stock from time to time in one or more classes or series, without stockholder approval.
Prior to issuance of shares of each class or series, our Board of Directors is required by the MGCL and by our charter to set the terms,
preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications
and terms or conditions of redemption for each class or series. Any such an issuance must adhere to the requirements of the 1940 Act,
the MGCL and any other limitations imposed by law.
The 1940 Act currently requires,
among other things, that (a) immediately after issuance and before any distribution is made with respect to common stock, the liquidation
preference of the preferred stock, together with all other senior securities, must not exceed an amount equal to 50% (or 66 2/3% if certain
requirements are met) of our total assets (taking into account such distribution), (b) the holders of shares of preferred stock,
if any are issued, must be entitled as a class to elect two directors at all times and to elect a majority of the directors if dividends
on the preferred stock are in arrears by two years or more and (c) such class of stock have complete priority over any other class
of stock as to distribution of assets and payment of dividends, which dividends shall be cumulative.
For any series of preferred
stock that we may issue, our Board of Directors will determine and the articles supplementary and the prospectus supplement relating to
such series will describe:
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the designation and number of shares of such series; |
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the rate and time at which, and the preferences and conditions under which, any dividends will be paid on shares of such series, as well as whether such dividends are participating or non-participating; |
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any provisions relating to convertibility or exchangeability of the shares of such series, including adjustments to the conversion price of such series; |
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the rights and preferences, if any, of holders of shares of such series upon our liquidation, dissolution or winding up of our affairs; |
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the voting powers, if any, of the holders of shares of such series; |
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any provisions relating to the redemption of the shares of such series; |
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any limitations on our ability to pay dividends or make distributions on, or acquire or redeem, other securities while shares of such series are outstanding; |
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any conditions or restrictions on our ability to issue additional shares of such series or other securities; |
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if applicable, a discussion of certain U.S. federal income tax considerations; and |
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any other relative powers, preferences and participating, optional or special rights of shares of such series, and the qualifications, limitations or restrictions thereof. |
All shares of preferred stock
that we may issue will be identical and of equal rank except as to the particular terms thereof that may be fixed by our Board of Directors,
and all shares of each series of preferred stock will be identical and of equal rank except as to the dates from which dividends, if any,
thereon will be cumulative.
DESCRIPTION OF OUR SUBSCRIPTION RIGHTS
General
We may issue subscription
rights to our stockholders to purchase common stock. Subscription rights may be issued independently or together with any other offered
security and may or may not be transferable by the person purchasing or receiving the subscription rights. In connection with a subscription
rights offering to our stockholders, we would distribute certificates evidencing the subscription rights and a prospectus supplement to
our stockholders on the record date that we set for receiving subscription rights in such subscription rights offering. We will not offer
transferable subscription rights to our stockholders at a price equivalent to less than the then current net asset value per share of
common stock, excluding underwriting commissions, unless we first file a post-effective amendment that is declared effective by the SEC
with respect to such issuance and the common stock to be purchased in connection with the rights represents no more than one-third of
our outstanding common stock at the time such rights are issued (i.e., the right to purchase one new share for a minimum of every
three rights held). In connection with a subscription rights offering to our stockholders, we would distribute certificates evidencing
the subscription rights and a prospectus supplement to our stockholders on the record date that we set for receiving subscription rights
in such subscription rights offering. Our common stockholders will indirectly bear the expenses of such subscription rights offerings,
regardless of whether our common stockholders exercise any subscription rights.
The applicable prospectus
supplement would describe the following terms of subscription rights in respect of which this prospectus is being delivered:
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the period of time the offering would remain open (which shall be open a minimum number of days such that all record holders would be eligible to participate in the offering and shall not be open longer than 120 days); |
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the title of such subscription rights; |
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the exercise price for such subscription rights (or method of calculation thereof); |
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the ratio of the offering (which, in the case of transferable rights, will require a minimum of three shares to be held of record before a person is entitled to purchase an additional share); |
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the number of such subscription rights issued to each stockholder; |
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the extent to which such subscription rights are transferable and the market on which they may be traded if they are transferable; |
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if applicable, a discussion of certain U.S. federal income tax considerations applicable to the issuance or exercise of such subscription rights; |
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the date on which the right to exercise such subscription rights shall commence, and the date on which such right shall expire (subject to any extension); |
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the extent to which such subscription rights include an over-subscription privilege with respect to unsubscribed securities and the terms of such over-subscription privilege; |
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any termination right we may have in connection with such subscription rights offering; and |
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any other terms of such subscription rights, including exercise, settlement and other procedures and limitations relating to the transfer and exercise of such subscription rights. |
Exercise of Subscription Rights
Each subscription right would
entitle the holder of the subscription right to purchase for cash such amount of shares of common stock at such exercise price as shall
in each case be set forth in, or be determinable as set forth in, the prospectus supplement relating to the subscription rights offered
thereby. Subscription rights may be exercised at any time up to the close of business on the expiration date for such subscription rights
set forth in the prospectus supplement. After the close of business on the expiration date, all unexercised subscription rights would
become void.
Subscription rights may be
exercised as set forth in the prospectus supplement relating to the subscription rights offered thereby. Upon receipt of payment and the
subscription rights certificate properly completed and duly executed at the corporate trust office of the subscription rights agent or
any other office indicated in the prospectus supplement we will forward, as soon as practicable, the shares of common stock purchasable
upon such exercise. To the extent permissible under applicable law, we may determine to offer any unsubscribed offered securities directly
to persons other than stockholders, to or through agents, underwriters or dealers or through a combination of such methods, as set forth
in the applicable prospectus supplement.
Dilutive Effects
Any stockholder who chooses
not to participate in a rights offering should expect to own a smaller interest in us upon completion of such rights offering. Any rights
offering will dilute the ownership interest and voting power of stockholders who do not fully exercise their subscription rights. Further,
because the net proceeds per share from any rights offering may be lower than our then current net asset value per share, the rights offering
may reduce our net asset value per share. The amount of dilution that a stockholder will experience could be substantial, particularly
to the extent we engage in multiple rights offerings within a limited time period. In addition, the market price of our common stock could
be adversely affected while a rights offering is ongoing as a result of the possibility that a significant number of additional shares
may be issued upon completion of such rights offering. All of our stockholders will also indirectly bear the expenses associated with
any rights offering we may conduct, regardless of whether they elect to exercise any rights.
DESCRIPTION OF OUR DEBT SECURITIES
We may issue debt securities
in one or more series. The specific terms of each series of debt securities will be described in the particular prospectus supplement
relating to that series. The prospectus supplement may or may not modify the general terms found in this prospectus and will be filed
with the SEC. For a complete description of the terms of a particular series of debt securities, you should read both this prospectus
and the prospectus supplement relating to that particular series.
As required by federal law
for all bonds and notes of companies that are publicly offered, the debt securities are governed by a document called an “indenture.”
An indenture is a contract between us and the financial institution acting as trustee on your behalf, and is subject to and governed by
the Trust Indenture Act of 1939, as amended. The trustee has two main roles. First, the trustee can enforce your rights against us if
we default. There are some limitations on the extent to which the trustee acts on your behalf, described in the second paragraph under
“— Events of Default — Remedies if an Event of Default Occurs.” Second, the trustee performs certain administrative
duties for us with respect to our debt securities.
This section includes a description
of the material provisions of the indenture. Because this section is a summary, however, it does not describe every aspect of the debt
securities and the indenture. We urge you to read the indenture because it, and not this description, defines your rights as a holder
of debt securities. A copy of the form of indenture is attached as an exhibit to the registration statement of which this prospectus is
a part. We will file a supplemental indenture with the SEC in connection with any debt offering, at which time the supplemental indenture
would be publicly available. See “Available Information” in this prospectus for information on how to obtain a copy of the
indenture.
The prospectus supplement,
which will accompany this prospectus, will describe the particular series of debt securities being offered by including:
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the designation or title of the series of debt securities; |
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the total principal amount of the series of debt securities; |
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the percentage of the principal amount at which the series of debt securities will be offered; |
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the date or dates on which principal will be payable; |
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the rate or rates (which may be either fixed or variable) and/or the method of determining such rate or rates of interest, if any; |
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the date or dates from which any interest will accrue, or the method of determining such date or dates, and the date or dates on which any interest will be payable; |
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whether any interest may be paid by issuing additional securities of the same series in lieu of cash (and the terms upon which any such interest may be paid by issuing additional securities); |
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the terms for redemption, extension or early repayment, if any; |
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the currencies in which the series of debt securities are issued and payable; |
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whether the amount of payments of principal, premium or interest, if any, on a series of debt securities will be determined with reference to an index, formula or other method (which could be based on one or more currencies, commodities, equity indices or other indices) and how these amounts will be determined; |
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the place or places, if any, other than or in addition to the Borough of Manhattan in the City of New York, of payment, transfer, conversion and/or exchange of the debt securities; |
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the denominations in which the offered debt securities will be issued (if other than $1,000 and any integral multiple thereof); |
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the provision for any sinking fund; |
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any restrictive covenants; |
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any Events of Default (as defined in “Events of Default” below); |
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whether the series of debt securities are issuable in certificated form; |
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any provisions for defeasance or covenant defeasance; |
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any special U.S. federal income tax implications, including, if applicable, U.S. federal income tax considerations relating to original issue discount; |
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whether and under what circumstances we will pay additional amounts in respect of any tax, assessment or governmental charge and, if so, whether we will have the option to redeem the debt securities rather than pay the additional amounts (and the terms of this option); |
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any provisions for convertibility or exchangeability of the debt securities into or for any other securities; |
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whether the debt securities are subject to subordination and the terms of such subordination; |
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whether the debt securities are secured and the terms of any security interest; |
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the listing, if any, on a securities exchange; and |
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The debt securities may be
secured or unsecured obligations. Unless the prospectus supplement states otherwise, principal (and premium, if any) and interest, if
any, will be paid by us in immediately available funds.
We are permitted, under specified
conditions, to issue multiple classes of indebtedness if our asset coverage, as defined in the 1940 Act, is at least equal to 200% (or
150% if certain requirements are met) immediately after each such issuance after giving effect to any exemptive relief granted to us by
the SEC. In addition, while any indebtedness and senior securities remain outstanding, we must make provisions to prohibit the distribution
to our stockholders or the repurchase of such securities or shares unless we meet the applicable asset coverage ratios at the time of
the distribution or repurchase. For a discussion of the risks associated with leverage, see “Risk Factors — Risks Related
to Our Business and Structure — Regulations governing our operation as a business development company affect our ability to, and
the way in which we, raise additional capital, which may expose us to risks, including the typical risks associated with leverage”
in our most recent Annual Report on Form 10-K.
General
The indenture provides that
any debt securities proposed to be sold under this prospectus and the accompanying prospectus supplement (“offered debt securities”)
and any debt securities issuable upon the exercise of warrants or upon conversion or exchange of other offered securities (“underlying
debt securities”) may be issued under the indenture in one or more series.
For purposes of this prospectus,
any reference to the payment of principal of, or premium or interest, if any, on, debt securities will include additional amounts if required
by the terms of the debt securities.
The indenture does not limit
the amount of debt securities that may be issued thereunder from time to time. Debt securities issued under the indenture, when a single
trustee is acting for all debt securities issued under the indenture, are called the “indenture securities.” The indenture
also provides that there may be more than one trustee thereunder, each with respect to one or more different series of indenture securities.
See “— Resignation of Trustee” below. At a time when two or more trustees are acting under the indenture, each with
respect to only certain series, the term “indenture securities” means the one or more series of debt securities with respect
to which each respective trustee is acting. In the event that there is more than one trustee under the indenture, the powers and trust
obligations of each trustee described in this prospectus will extend only to the one or more series of indenture securities for which
it is trustee. If two or more trustees are acting under the indenture, then the indenture securities for which each trustee is acting
would be treated as if issued under separate indentures.
The indenture does not contain
any provisions that give you protection in the event we issue a large amount of debt or we are acquired by another entity.
We refer you to the prospectus
supplement for information with respect to any deletions from, modifications of or additions to the Events of Default or our covenants
that are described below, including any addition of a covenant or other provision providing event risk protection or similar protection.
We have the ability to issue
indenture securities with terms different from those of indenture securities previously issued and, without the consent of the holders
thereof, to reopen a previous issue of a series of indenture securities and issue additional indenture securities of that series unless
the reopening was restricted when that series was created.
Conversion and Exchange
If any debt securities are
convertible into or exchangeable for other securities, the prospectus supplement will explain the terms and conditions of the conversion
or exchange, including the conversion price or exchange ratio (or the calculation method), the conversion or exchange period (or how the
period will be determined), if conversion or exchange will be mandatory or at the option of the holder or us, provisions for adjusting
the conversion price or the exchange ratio and provisions affecting conversion or exchange in the event of the redemption of the underlying
debt securities. These terms may also include provisions under which the number or amount of other securities to be received by the holders
of the debt securities upon conversion or exchange would be calculated according to the market price of the other securities as of a time
stated in the prospectus supplement.
Issuance of Securities in Registered Form
We may issue the debt securities
in registered form, in which case we may issue them either in book-entry form only or in “certificated” form. Debt securities
issued in book-entry form will be represented by global securities. We expect that we will usually issue debt securities in book-entry
only form represented by global securities.
Book-Entry Holders
We will issue registered debt
securities in book-entry form only, unless we specify otherwise in the applicable prospectus supplement. This means debt securities will
be represented by one or more global securities registered in the name of a depositary that will hold them on behalf of financial institutions
that participate in the depositary’s book-entry system. These participating institutions, in turn, hold beneficial interests in
the debt securities held by the depositary or its nominee. These institutions may hold these interests on behalf of themselves or customers.
Under the indenture, only
the person in whose name a debt security is registered is recognized as the holder of that debt security. Consequently, for debt securities
issued in book-entry form, we will recognize only the depositary as the holder of the debt securities and we will make all payments on
the debt securities to the depositary. The depositary will then pass along the payments it receives to its participants, which in turn
will pass the payments along to their customers who are the beneficial owners. The depositary and its participants do so under agreements
they have made with one another or with their customers; they are not obligated to do so under the terms of the debt securities.
As a result, investors will
not own debt securities directly. Instead, they will own beneficial interests in a global security, through a bank, broker or other financial
institution that participates in the depositary’s book-entry system or holds an interest through a participant. As long as the debt
securities are represented by one or more global securities, investors will be indirect holders, and not holders, of the debt securities.
Street Name Holders
In the future, we may issue
debt securities in certificated form or terminate a global security. In these cases, investors may choose to hold their debt securities
in their own names or in “street name.” Debt securities held in street name are registered in the name of a bank, broker or
other financial institution chosen by the investor, and the investor would hold a beneficial interest in those debt securities through
the account he or she maintains at that institution.
For debt securities held in
street name, we will recognize only the intermediary banks, brokers and other financial institutions in whose names the debt securities
are registered as the holders of those debt securities, and we will make all payments on those debt securities to them. These institutions
will pass along the payments they receive to their customers who are the beneficial owners, but only because they agree to do so in their
customer agreements or because they are legally required to do so. Investors who hold debt securities in street name will be indirect
holders, and not holders, of the debt securities.
Legal Holders
Our obligations, as well as
the obligations of the applicable trustee and those of any third parties employed by us or the applicable trustee, run only to the legal
holders of the debt securities. We do not have obligations to investors who hold beneficial interests in global securities, in street
name or by any other indirect means. This will be the case whether an investor chooses to be an indirect holder of a debt security or
has no choice because we are issuing the debt securities only in book-entry form.
For example, once we make
a payment or give a notice to the holder, we have no further responsibility for the payment or notice even if that holder is required,
under agreements with depositary participants or customers or by law, to pass it along to the indirect holders but does not do so. Similarly,
if we want to obtain the approval of the holders for any purpose (for example, to amend an indenture or to relieve us of the consequences
of a default or of our obligation to comply with a particular provision of an indenture), we would seek the approval only from the holders,
and not the indirect holders, of the debt securities. Whether and how the holders contact the indirect holders is up to the holders.
When we refer to you in this
Description of Debt Securities, we mean those who invest in the debt securities being offered by this prospectus, whether they are the
holders or only indirect holders of those debt securities. When we refer to your debt securities, we mean the debt securities in which
you hold a direct or indirect interest.
Special Considerations for Indirect Holders
If you hold debt securities
through a bank, broker or other financial institution, either in book-entry form or in street name, we urge you to check with that institution
to find out:
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how it handles securities payments and notices; |
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whether it imposes fees or charges; |
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how it would handle a request for the holders’ consent, if ever required; |
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whether and how you can instruct it to send you debt securities registered in your own name so you can be a holder, if that is permitted in the future for a particular series of debt securities; |
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how it would exercise rights under the debt securities if there were a default or other event triggering the need for holders to act to protect their interests; and |
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if the debt securities are in book-entry form, how the depositary’s rules and procedures will affect these matters. |
Global Securities
As noted above, we usually
will issue debt securities as registered securities in book-entry form only. A global security represents one or any other number of individual
debt securities. Generally, all debt securities represented by the same global securities will have the same terms.
Each debt security issued
in book-entry form will be represented by a global security that we deposit with and register in the name of a financial institution or
its nominee that we select. The financial institution that we select for this purpose is called the depositary. Unless we specify otherwise
in the applicable prospectus supplement, The Depository Trust Company, New York, New York, known as DTC, will be the depositary for all
debt securities issued in book-entry form.
A global security may not
be transferred to or registered in the name of anyone other than the depositary or its nominee, unless special termination situations
arise. We describe those situations below under “— Termination of a Global Security.” As a result of these arrangements,
the depositary, or its nominee, will be the sole registered owner and holder of all debt securities represented by a global security,
and investors will be permitted to own only beneficial interests in a global security. Beneficial interests must be held by means of an
account with a broker, bank or other financial institution that in turn has an account with the depositary or with another institution
that has an account with the depositary. Thus, an investor whose security is represented by a global security will not be a holder of
the debt security, but only an indirect holder of a beneficial interest in the global security.
Special Considerations for Global Securities
As an indirect holder, an
investor’s rights relating to a global security will be governed by the account rules of the investor’s financial institution
and of the depositary, as well as general laws relating to securities transfers. The depositary that holds the global security will be
considered the holder of the debt securities represented by the global security.
If debt securities are issued
only in the form of a global security, an investor should be aware of the following:
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an investor cannot cause the debt securities to be registered in his or her name and cannot obtain certificates for his or her interest in the debt securities, except in the special situations we describe below; |
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an investor will be an indirect holder and must look to his or her own bank or broker for payments on the debt securities and protection of his or her legal rights relating to the debt securities, as we describe under “— Issuance of Securities in Registered Form” above; |
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an investor may not be able to sell interests in the debt securities to some insurance companies and other institutions that are required by law to own their securities in non-book-entry form; |
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an investor may not be able to pledge his or her interest in a global security in circumstances where certificates representing the debt securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to be effective; |
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the depositary’s policies, which may change from time to time, will govern payments, transfers, exchanges and other matters relating to an investor’s interest in a global security. We and the trustee have no responsibility for any aspect of the depositary’s actions or for its records of ownership interests in a global security. We and the trustee also do not supervise the depositary in any way; |
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if we redeem less than all the debt securities of a particular series being redeemed, DTC’s practice is to determine by lot the amount to be redeemed from each of its participants holding that series; |
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an investor is required to give notice of exercise of any option to elect repayment of its debt securities, through its participant, to the applicable trustee and to deliver the related debt securities by causing its participant to transfer its interest in those debt securities, on DTC’s records, to the applicable trustee; |
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DTC requires that those who purchase and sell interests in a global security deposited in its book-entry system use immediately available funds, your broker or bank may also require you to use immediately available funds when purchasing or selling interests in a global security; and |
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financial institutions that participate in the depositary’s book-entry system, and through which an investor holds its interest in a global security, may also have their own policies affecting payments, notices and other matters relating to the debt securities; there may be more than one financial intermediary in the chain of ownership for an investor, we do not monitor and are not responsible for the actions of any of those intermediaries. |
Termination of a Global Security
If a global security is terminated
for any reason, interests in it will be exchanged for certificates in non-book-entry form (certificated securities). After that exchange,
the choice of whether to hold the certificated debt securities directly or in street name will be up to the investor. Investors must consult
their own banks or brokers to find out how to have their interests in a global security transferred on termination to their own names,
so that they will be holders. We have described the rights of legal holders and street name investors under “— Issuance of
Securities in Registered Form” above.
The prospectus supplement
may list situations for terminating a global security that would apply only to the particular series of debt securities covered by the
prospectus supplement. If a global security is terminated, only the depositary, and not we or the applicable trustee, is responsible for
deciding the investors in whose names the debt securities represented by the global security will be registered and, therefore, who will
be the holders of those debt securities.
Payment and Paying Agents
We will pay interest to the
person listed in the applicable trustee’s records as the owner of the debt security at the close of business on a particular day
in advance of each due date for interest, even if that person no longer owns the debt security on the interest due date. That day, usually
about two weeks in advance of the interest due date, is called the “record date.” Because we will pay all the interest for
an interest period to the holders on the record date, holders buying and selling debt securities must work out between themselves the
appropriate purchase price. The most common manner is to adjust the sales price of the debt securities to prorate interest fairly between
buyer and seller based on their respective ownership periods within the particular interest period. This prorated interest amount is called
“accrued interest.”
Payments on Global Securities
We will make payments on a
global security in accordance with the applicable policies of the depositary as in effect from time to time. Under those policies, we
will make payments directly to the depositary, or its nominee, and not to any indirect holders who own beneficial interests in the global
security. An indirect holder’s right to those payments will be governed by the rules and practices of the depositary and its
participants, as described under “— Special Considerations for Global Securities.”
Payments on Certificated Securities
We will make payments on a
certificated debt security as follows. We will pay interest that is due on an interest payment date to the holder of debt securities as
shown on the trustee’s records as of the close of business on the regular record date at our office and/or at other offices that
may be specified in the prospectus supplement. We will make all payments of principal and premium, if any, by check at the office of the
applicable trustee and/or at other offices that may be specified in the prospectus supplement or in a notice to holders against surrender
of the debt security.
Alternatively, at our option,
we may pay any cash interest that becomes due on the debt security by mailing a check to the holder at his, her or its address shown on
the trustee’s records as of the close of business on the regular record date or by transfer to an account at a bank in the United
States, in either case, on the due date.
Payment When Offices Are Closed
If any payment is due on a
debt security on a day that is not a business day, we will make the payment on the next day that is a business day. Payments made on the
next business day in this situation will be treated under the indenture as if they were made on the original due date, except as otherwise
indicated in the attached prospectus supplement. Such payment will not result in a default under any debt security or the indenture, and
no interest will accrue on the payment amount from the original due date to the next day that is a business day.
Book-entry and other indirect
holders should consult their banks or brokers for information on how they will receive payments on their debt securities.
Events of Default
You will have rights if an
Event of Default occurs in respect of the debt securities of your series and is not cured, as described later in this subsection.
The term “Event of Default”
in respect of the debt securities of your series means any of the following:
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we do not pay the principal of, or any premium on, a debt security of the series within five days of its due date; |
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we do not pay interest on a debt security of the series within 30 days of its due date; |
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we do not deposit any sinking fund payment in respect of debt securities of the series within five days of its due date; |
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we remain in breach of a covenant in respect of debt securities of the series for 60 days after we receive a written notice of default stating we are in breach (the notice must be sent by either the trustee or holders of at least 25% of the principal amount of the outstanding debt securities of the series); |
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we file for bankruptcy or certain other events of bankruptcy, insolvency or reorganization occur and remain undischarged or unstayed for a period of 90 days; |
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the series of debt securities has an asset coverage, as such term is defined in the 1940 Act, of less than 100 per centum on the last business day of each of twenty-four consecutive calendar months, giving effect to any exemptive relief granted to the Company by the SEC; or |
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any other Event of Default in respect of debt securities of the series described in the prospectus supplement occurs. |
An Event of Default for a
particular series of debt securities does not necessarily constitute an Event of Default for any other series of debt securities issued
under the same or any other indenture. The trustee may withhold notice to the holders of debt securities of any default, except in the
payment of principal, premium, interest, or sinking or purchase fund installment, if it in good faith considers the withholding of notice
to be in the interest of the holders.
Remedies if an Event of Default Occurs
If an Event of Default has
occurred and is continuing, the trustee or the holders of not less than 25% in principal amount of the outstanding debt securities of
the affected series may (and the trustee shall at the request of such holders) declare the entire principal amount of all the debt securities
of that series to be due and immediately payable. This is called a declaration of acceleration of maturity. A declaration of acceleration
of maturity may be canceled by the holders of a majority in principal amount of the outstanding debt securities of the affected series
if (1) we have deposited with the trustee all amounts due and owing with respect to the securities (other than principal that has
become due solely by reason of such acceleration) and certain other amounts, and (2) any other Events of Default have been cured
or waived.
Except in cases of default,
where the trustee has some special duties, the trustee is not required to take any action under the indenture at the request of any holders
unless the holders offer the trustee reasonable protection from expenses and liability (called an “indemnity”). If reasonable
indemnity is provided, the holders of a majority in principal amount of the outstanding debt securities of the relevant series may direct
the time, method and place of conducting any lawsuit or other formal legal action seeking any remedy available to the trustee. The trustee
may refuse to follow those directions in certain circumstances. No delay or omission in exercising any right or remedy will be treated
as a waiver of that right, remedy or Event of Default.
Before you are allowed to
bypass your trustee and bring your own lawsuit or other formal legal action or take other steps to enforce your rights or protect your
interests relating to the debt securities, the following must occur:
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you must give the trustee written notice that an Event of Default with respect to the relevant series of debt securities has occurred and remains uncured; |
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the holders of at least 25% in principal amount of all outstanding debt securities of the relevant series must make a written request that the trustee take action because of the default and must offer reasonable indemnity, security or both to the trustee against the costs, expenses and other liabilities of taking that action; |
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the trustee must not have taken action for 60 days after receipt of the above notice and offer of indemnity and/or security; and |
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the holders of a majority in principal amount of the outstanding debt securities of that series must not have given the trustee a direction inconsistent with the above notice during that 60-day period. |
However, you are entitled
at any time to bring a lawsuit for the payment of money due on your debt securities on or after the due date.
Book-entry and other indirect holders should
consult their banks or brokers for information on how to give notice or direction to or make a request of the trustee and how to declare
or cancel an acceleration of maturity.
Each year, we will furnish
to each trustee a written statement of certain of our officers certifying that to their knowledge we are in compliance with the indenture
and the debt securities, or else specifying any default.
Waiver of Default
Holders of a majority in principal
amount of the outstanding debt securities of the affected series may waive any past defaults other than:
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the payment of principal, any premium or interest; or |
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in respect of a covenant that cannot be modified or amended without the consent of each holder. |
Merger or Consolidation
Under the terms of the indenture,
we are generally permitted to consolidate or merge with another entity. We are also permitted to sell all or substantially all of our
assets to another entity. However, we may not take any of these actions unless all the following conditions are met:
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where we merge out of existence or sell substantially all our assets, the resulting entity or transferee must agree to be legally responsible for our obligations under the debt securities; |
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the merger or sale of assets must not cause a default on the debt securities and we must not already be in default (unless the merger or sale would cure the default). For purposes of this no-default test, a default would include an Event of Default that has occurred and has not been cured, as described under “Events of Default” above. A default for this purpose would also include any event that would be an Event of Default if the requirements for giving us a notice of default or our default having to exist for a specific period of time were disregarded; |
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we must deliver certain certificates and documents to the trustee; and |
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we must satisfy any other requirements specified in the prospectus supplement relating to a particular series of debt securities. |
Modification or Waiver
There are three types of changes
we can make to the indenture and the debt securities issued thereunder.
Changes Requiring Your Approval
First, there are changes that
we cannot make to your debt securities without your specific approval. The following is a list of those types of changes:
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change the stated maturity of the principal of or interest on a debt security or the terms of any sinking fund with respect to any security; |
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reduce any amounts due on a debt security; |
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reduce the amount of principal payable upon acceleration of the maturity of an original issue discount or indexed security following a default or upon the redemption thereof or the amount thereof provable in a bankruptcy proceeding; |
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adversely affect any right of repayment at the holder’s option; |
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change the place or currency of payment on a debt security (except as otherwise described in the prospectus or prospectus supplement); |
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impair your right to sue for payment; |
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adversely affect any right to convert or exchange a debt security in accordance with its terms; |
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modify the subordination provisions in the indenture in a manner that is adverse to outstanding holders of the debt securities; |
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reduce the percentage of holders of debt securities whose consent is needed to modify or amend the indenture; |
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reduce the percentage of holders of debt securities whose consent is needed to waive compliance with certain provisions of the indenture or to waive certain defaults; |
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modify any other aspect of the provisions of the indenture dealing with supplemental indentures with the consent of holders, waiver of past defaults, changes to the quorum or voting requirements or the waiver of certain covenants; and |
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change any obligation we have to pay additional amounts. |
Changes Not Requiring Approval
The second type of change
does not require any vote by the holders of the debt securities. This type is limited to clarifications, establishment of the form or
terms of new securities of any series as permitted by the indenture and certain other changes that would not adversely affect holders
of the outstanding debt securities in any material respect. We also do not need any approval to make any change that affects only debt
securities to be issued under the indenture after the change takes effect.
Changes Requiring Majority Approval
Any other change to the indenture
and the debt securities would require the following approval:
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if the change affects only one series of debt securities, it must be approved by the holders of a majority in principal amount of that series; and |
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if the change affects more than one series of debt securities issued under the same indenture, it must be approved by the holders of a majority in principal amount of all of the series affected by the change, with all affected series voting together as one class for this purpose. |
In each case, the required
approval must be given by written consent.
The holders of a majority
in principal amount of a series of debt securities issued under the indenture, voting together as one class for this purpose, may waive
our compliance with some of our covenants applicable to that series of debt securities. However, we cannot obtain a waiver of a payment
default or of any of the matters covered by the bullet points included above under “— Changes Requiring Your Approval.”
Further Details Concerning Voting
When taking a vote, we will
use the following rules to decide how much principal to attribute to a debt security:
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for original issue discount securities, we will use the principal amount that would be due and payable on the voting date if the maturity of these debt securities were accelerated to that date because of a default; |
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for debt securities whose principal amount is not known (for example, because it is based on an index), we will use the principal face amount at original issuance or a special rule for that debt security described in the prospectus supplement; and |
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for debt securities denominated in one or more foreign currencies, we will use the U.S. dollar equivalent. |
Debt securities will not be
considered outstanding, and therefore not eligible to vote, if we have deposited or set aside in trust money for their payment or redemption
or if we, any other obligor, or any affiliate of us or any obligor own such debt securities. Debt securities will also not be eligible
to vote if they have been fully defeased as described later under “— Defeasance — Full Defeasance.”
We will generally be entitled
to set any day as a record date for the purpose of determining the holders of outstanding indenture securities that are entitled to vote
or take other action under the indenture. However, the record date may not be more than 30 days before the date of the first solicitation
of holders to vote on or take such action. If we set a record date for a vote or other action to be taken by holders of one or more series,
that vote or action may be taken only by persons who are holders of outstanding indenture securities of those series on the record date
and must be taken within eleven months following the record date.
Book-entry and other indirect holders should
consult their banks or brokers for information on how approval may be granted or denied if we seek to change the indenture or the debt
securities or request a waiver.
Defeasance
The following provisions will
be applicable to each series of debt securities unless we state in the applicable prospectus supplement that the provisions of covenant
defeasance and full defeasance will not be applicable to that series.
Covenant Defeasance
Under current U.S. federal
tax law and the indenture, we can make the deposit described below and be released from some of the restrictive covenants in the indenture
under which the particular series was issued. This is called “covenant defeasance.” In that event, you would lose the protection
of those restrictive covenants but would gain the protection of having money and government securities set aside in trust to repay your
debt securities. If we achieved covenant defeasance and your debt securities were subordinated as described under “— Indenture
Provisions — Subordination” below, such subordination would not prevent the trustee under the indenture from applying the
funds available to it from the deposit described in the first bullet below to the payment of amounts due in respect of such debt securities
for the benefit of the subordinated debt holders. In order to achieve covenant defeasance, we must do the following:
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we must deposit in trust for the benefit of all holders of a series of debt securities a combination of cash (in such currency in which such securities are then specified as payable at stated maturity) or government obligations applicable to such securities (determined on the basis of the currency in which such securities are then specified as payable at stated maturity) that will generate enough cash to make interest, principal and any other payments on the debt securities on their various due dates and any mandatory sinking fund payments or analogous payments; |
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we must deliver to the trustee a legal opinion of our counsel confirming that, under current U.S. federal income tax law, we may make the above deposit without causing you to be taxed on the debt securities any differently than if we did not make the deposit; |
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we must deliver to the trustee a legal opinion of our counsel stating that the above deposit does not require registration by us under the 1940 Act, as amended, and a legal opinion and officers’ certificate stating that all conditions precedent to covenant defeasance have been complied with; |
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defeasance must not result in a breach or violation of, or result in a default under, of the indenture or any of our other material agreements or instruments; |
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no default or event of default with respect to such debt securities shall have occurred and be continuing and no defaults or events of default related to bankruptcy, insolvency or reorganization shall occur during the next 90 days; and |
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satisfy the conditions for covenant defeasance contained in any supplemental indentures. |
If we accomplish covenant
defeasance, you can still look to us for repayment of the debt securities if there were a shortfall in the trust deposit or the trustee
is prevented from making payment. For example, if one of the remaining Events of Default occurred (such as our bankruptcy) and the debt
securities became immediately due and payable, there might be such a shortfall. However, there is no assurance that we would have sufficient
funds to make payment of the shortfall.
Full Defeasance
If there is a change in U.S.
federal tax law or we obtain an IRS ruling, as described in the second bullet below, we can legally release ourselves from all payment
and other obligations on the debt securities of a particular series (called “full defeasance”) if we put in place the following
other arrangements for you to be repaid:
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we must deposit in trust for the benefit of all holders of a series of debt securities a combination of cash (in such currency in which such securities are then specified as payable at stated maturity) or government obligations applicable to such securities (determined on the basis of the currency in which such securities are then specified as payable at stated maturity) that will generate enough cash to make interest, principal and any other payments on the debt securities on their various due dates and any mandatory sinking fund payments or analogous payments. |
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we must deliver to the trustee a legal opinion confirming that there has been a change in current U.S. federal tax law or an IRS ruling that allows us to make the above deposit without causing you to be taxed on the debt securities any differently than if we did not make the deposit. Under current U.S. federal tax law, the deposit and our legal release from the debt securities would be treated as though we paid you your share of the cash and notes or bonds at the time the cash and notes or bonds were deposited in trust in exchange for your debt securities and you would recognize gain or loss on the debt securities at the time of the deposit. |
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we must deliver to the trustee a legal opinion of our counsel stating that the above deposit does not require registration by us under the 1940 Act, as amended, and a legal opinion and officers’ certificate stating that all conditions precedent to defeasance have been complied with. |
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defeasance must not result in a breach or violation of, or constitute a default under, of the indenture or any of our other material agreements or instruments. |
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no default or event of default with respect to such debt securities shall have occurred and be continuing and no defaults or events of default related to bankruptcy, insolvency or reorganization shall occur during the next 90 days. |
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satisfy the conditions for full defeasance contained in any supplemental indentures. |
If we ever did accomplish
full defeasance, as described above, you would have to rely solely on the trust deposit for repayment of the debt securities. You could
not look to us for repayment in the unlikely event of any shortfall. Conversely, the trust deposit would most likely be protected from
claims of our lenders and other creditors if we ever became bankrupt or insolvent. If your debt securities were subordinated as described
later under “— Indenture Provisions — Subordination”, such subordination would not prevent the trustee under the
indenture from applying the funds available to it from the deposit referred to in the first bullet of the preceding paragraph to the payment
of amounts due in respect of such debt securities for the benefit of the subordinated debt holders.
Form, Exchange and Transfer of Certificated
Registered Securities
If registered debt securities
cease to be issued in book-entry form, they will be issued:
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only in fully registered certificated form; |
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without interest coupons; and |
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unless we indicate otherwise in the prospectus supplement, in denominations of $1,000 and amounts that are multiples of $1,000. |
Holders may exchange their
certificated securities for debt securities of smaller denominations or combined into fewer debt securities of larger denominations, as
long as the total principal amount is not changed and as long as the denomination is greater than the minimum denomination for such securities.
Holders may exchange or transfer
their certificated securities at the office of the trustee. We have appointed the trustee to act as our agent for registering debt securities
in the names of holders transferring debt securities. We may appoint another entity to perform these functions or perform them ourselves.
Holders will not be required
to pay a service charge to transfer or exchange their certificated securities, but they may be required to pay any tax or other governmental
charge associated with the transfer or exchange. The transfer or exchange will be made only if our transfer agent is satisfied with the
holder’s proof of legal ownership.
If we have designated additional
transfer agents for your debt security, they will be named in the prospectus supplement. We may appoint additional transfer agents or
cancel the appointment of any particular transfer agent. We may also approve a change in the office through which any transfer agent acts.
If any certificated securities
of a particular series are redeemable and we redeem less than all the debt securities of that series, we may block the transfer or exchange
of those debt securities during the period beginning 15 days before the day we mail the notice of redemption and ending on the day of
that mailing, in order to freeze the list of holders to prepare the mailing. We may also refuse to register transfers or exchanges of
any certificated securities selected for redemption, except that we will continue to permit transfers and exchanges of the unredeemed
portion of any debt security that will be partially redeemed.
If a registered debt security
is issued in book-entry form, only the depositary will be entitled to transfer and exchange the debt security as described in this subsection,
since it will be the sole holder of the debt security.
Resignation of Trustee
Each trustee may resign or
be removed with respect to one or more series of indenture securities provided that a successor trustee is appointed to act with respect
to these series and has accepted such appointment. In the event that two or more persons are acting as trustee with respect to different
series of indenture securities under the indenture, each of the trustees will be a trustee of a trust separate and apart from the trust
administered by any other trustee.
Indenture Provisions — Subordination
Upon any distribution of our
assets upon our dissolution, winding up, liquidation or reorganization, the payment of the principal of (and premium, if any) and interest,
if any, on any indenture securities denominated as subordinated debt securities is to be subordinated to the extent provided in the indenture
in right of payment to the prior payment in full of all Senior Indebtedness (as defined below), but our obligation to you to make payment
of the principal of (and premium, if any) and interest, if any, on such subordinated debt securities will not otherwise be affected. In
addition, no payment on account of principal (or premium, if any), sinking fund or interest, if any, may be made on such subordinated
debt securities at any time unless full payment of all amounts due in respect of the principal (and premium, if any), sinking fund and
interest on Senior Indebtedness has been made or duly provided for in money or money’s worth.
In the event that, notwithstanding
the foregoing, any payment by us is received by the trustee in respect of subordinated debt securities or by the holders of any of such
subordinated debt securities, upon our dissolution, winding up, liquidation or reorganization before all Senior Indebtedness is paid in
full, the payment or distribution received by the trustee in respect of such subordinated debt securities or by the holders of any such
subordinated debt securities must be paid over to the holders of the Senior Indebtedness or on their behalf for application to the payment
of all the Senior Indebtedness remaining unpaid until all the Senior Indebtedness has been paid in full, after giving effect to any concurrent
payment or distribution to the holders of the Senior Indebtedness. Subject to the payment in full of all Senior Indebtedness upon this
distribution by us, the holders of such subordinated debt securities will be subrogated to the rights of the holders of the Senior Indebtedness
to the extent of payments made to the holders of the Senior Indebtedness out of the distributive share of such subordinated debt securities.
By reason of this subordination,
in the event of a distribution of our assets upon our insolvency, certain of our senior creditors may recover more, ratably, than holders
of any subordinated debt securities or the holders of any indenture securities that are not Senior Indebtedness. The indenture provides
that these subordination provisions will not apply to money and securities held in trust under the defeasance provisions of the indenture.
Senior Indebtedness is defined
in the indenture as the principal of (and premium, if any) and unpaid interest on:
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our indebtedness (including indebtedness of others guaranteed by us), whenever created, incurred, assumed or guaranteed, for money borrowed, that we have designated as “Senior Indebtedness” for purposes of the indenture and in accordance with the terms of the indenture (including any indenture securities designated as Senior Indebtedness), and |
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renewals, extensions, modifications and refinancings of any of this indebtedness. |
If this prospectus is being
delivered in connection with the offering of a series of indenture securities denominated as subordinated debt securities, the accompanying
prospectus supplement will set forth the approximate amount of our Senior Indebtedness and of our other Indebtedness outstanding as of
a recent date.
Secured Indebtedness and Ranking
Certain of our indebtedness,
including certain series of indenture securities, may be secured. The prospectus supplement for each series of indenture securities will
describe the terms of any security interest for such series and will indicate the approximate amount of our secured indebtedness as of
a recent date. Any unsecured indenture securities will effectively rank junior to any secured indebtedness, including any secured indenture
securities, that we incur in the future to the extent of the value of the assets securing such future secured indebtedness. The debt securities,
whether secured or unsecured, of the Company will rank structurally junior to all existing and future indebtedness (including trade payables)
incurred by our subsidiaries, financing vehicles or similar facilities.
In the event of our bankruptcy,
liquidation, reorganization or other winding up, any of our assets that secure secured debt will be available to pay obligations on unsecured
debt securities only after all indebtedness under such secured debt has been repaid in full from such assets. We advise you that there
may not be sufficient assets remaining to pay amounts due on any or all unsecured debt securities then outstanding after fulfillment of
this obligation. As a result, the holders of unsecured indenture securities may recover less, ratably, than holders of any of our secured
indebtedness.
The Trustee under the Indenture
U.S. Bank National Association
will serve as the trustee under the indenture.
Certain Considerations Relating to Foreign
Currencies
Debt securities denominated
or payable in foreign currencies may entail significant risks. These risks include the possibility of significant fluctuations in the
foreign currency markets, the imposition or modification of foreign exchange controls and potential illiquidity in the secondary market.
These risks will vary depending upon the currency or currencies involved and will be more fully described in the applicable prospectus
supplement.
DESCRIPTION OF OUR WARRANTS
The following is a general
description of the terms of the warrants we may issue from time to time. Particular terms of any warrants we offer will be described in
the prospectus supplement relating to such warrants.
We may issue warrants to purchase
shares of our common stock, preferred stock or debt securities. Such warrants may be issued independently or together with shares of common
stock, preferred stock or debt securities and may be attached or separate from such securities. We will issue each series of warrants
under a separate warrant agreement to be entered into between us and a warrant agent. The warrant agent will act solely as our agent and
will not assume any obligation or relationship of agency for or with holders or beneficial owners of warrants.
A prospectus supplement will
describe the particular terms of any series of warrants we may issue, including the following:
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the title of such warrants; |
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the aggregate number of such warrants; |
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the price or prices at which such warrants will be issued; |
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the currency or currencies, including composite currencies, in which the price of such warrants may be payable; |
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if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each such security or each principal amount of such security; |
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in the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one warrant and the price at which and the currency or currencies, including composite currencies, in which this principal amount of debt securities may be purchased upon such exercise; |
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in the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock purchasable upon exercise of one warrant and the price at which and the currency or currencies, including composite currencies, in which these shares may be purchased upon such exercise; |
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the date on which the right to exercise such warrants shall commence and the date on which such right will expire; |
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whether such warrants will be issued in registered form or bearer form; |
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if applicable, the minimum or maximum amount of such warrants which may be exercised at any one time; |
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if applicable, the date on and after which such warrants and the related securities will be separately transferable; |
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information with respect to book-entry procedures, if any; |
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the terms of the securities issuable upon exercise of the warrants; |
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if applicable, a discussion of certain U.S. federal income tax considerations; and |
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any other terms of such warrants, including terms, procedures and limitations relating to the exchange and exercise of such warrants. |
We and the warrant agent may
amend or supplement the warrant agreement for a series of warrants without the consent of the holders of the warrants issued thereunder
to effect changes that are not inconsistent with the provisions of the warrants and that do not materially and adversely affect the interests
of the holders of the warrants.
Each warrant will entitle
the holder to purchase for cash such common stock or preferred stock at the exercise price or such principal amount of debt securities
as shall in each case be set forth in, or be determinable as set forth in, the prospectus supplement relating to the warrants offered
thereby. Warrants may be exercised as set forth in the prospectus supplement beginning on the date specified therein and continuing until
the close of business on the expiration date set forth in the prospectus supplement. After the close of business on the expiration date,
unexercised warrants will become void.
Upon receipt of payment and
a warrant certificate properly completed and duly executed at the corporate trust office of the warrant agent or any other office indicated
in the prospectus supplement, we will, as soon as practicable, forward the securities purchasable upon such exercise. If less than all
of the warrants represented by such warrant certificate are exercised, a new warrant certificate will be issued for the remaining warrants.
If we so indicate in the applicable prospectus supplement, holders of the warrants may surrender securities as all or part of the exercise
price for warrants.
Prior to exercising their
warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise, including,
in the case of warrants to purchase debt securities, the right to receive principal, premium, if any, or interest payments, on the debt
securities purchasable upon exercise or to enforce covenants in the applicable indenture or, in the case of warrants to purchase common
stock or preferred stock, the right to receive dividends or other distributions, if any, or payments upon our liquidation, dissolution
or winding up or to exercise any voting rights.
Under the 1940 Act, we may
generally only offer warrants provided that (1) the warrants expire by their terms within ten years; (2) the exercise or conversion
price is not less than the current market value at the date of issuance; (3) our stockholders authorize the issuance of such warrants,
and our Board of Directors approves such issuance on the basis that the issuance is in the best interests of the Company and its stockholders;
and (4) if the warrants are accompanied by other securities, the warrants are not separately transferable unless no class of such
warrants and the securities accompanying them has been publicly distributed. The 1940 Act also provides that the amount of our voting
securities that would result from the exercise of all outstanding warrants at the time of issuance may not exceed 25% of our outstanding
voting securities. As of the date of this prospectus, our stockholders have not authorized any issuance of warrants beyond those that
would otherwise be permitted without stockholder approval under the 1940 Act.
PLAN OF DISTRIBUTION
We may offer, from time to
time, in more than one offering, up to $400,000,000 of common stock, preferred stock, subscription rights to purchase shares of common
stock, warrants and debt securities, in one or more underwritten public offerings, at-the-market offerings to or through a market maker
or into an existing trading market for our securities, on an exchange or otherwise, negotiated transactions, block trades, best efforts
or a combination of these methods. The holders of our common stock will indirectly bear any fees and expenses in connection with any such
offering.
We may sell our securities
through underwriters or dealers, directly to one or more purchasers, through agents or through a combination of any such methods of sale.
In the case of a rights offering, the applicable prospectus supplement will set forth the number of shares of our common stock issuable
upon the exercise of each right and the other terms of such rights offering. Any underwriter or agent involved in the offer and sale of
our securities will be named in the applicable prospectus supplement. A prospectus supplement or supplements will also describe the terms
of the offering of our securities, including: the purchase price and the proceeds we will receive from the sale; any over-allotment options
under which underwriters may purchase additional securities from us; any agency fees or underwriting discounts and other items constituting
agents’ or underwriters’ compensation; the public offering price; any discounts or concessions allowed or re-allowed or paid
to dealers; and any securities exchange or market on which our securities may be listed. Only underwriters or agents named in the prospectus
supplement will be underwriters or agents of securities offered by the prospectus supplement.
The distribution of the securities
may be effected from time to time in one or more transactions at a fixed price or prices, which may be changed, at prevailing market prices
at the time of sale, at prices related to such prevailing market prices, or at negotiated prices, provided, however, that the offering
price per share of our common stock, less any underwriting commissions or discounts, must equal or exceed the net asset value per share
of our common stock at the time of the offering except (i) in connection with a rights offering to our existing stockholders, (ii) with
the prior approval of the majority of our common stockholders, or (iii) under such other circumstances as the SEC may permit. Any
offering of securities by us that requires the consent of the majority of our common stockholders, must occur, if at all, within one year
after receiving such consent. The price at which our securities may be distributed may represent a discount from prevailing market prices.
As an investor in our securities, you will indirectly bear the expenses incurred in connection with all of the distribution activities
described herein.
In connection with the sale
of our securities, underwriters or agents may receive compensation from us or from purchasers of our securities, for whom they may act
as agents, in the form of discounts, concessions or commissions. Underwriters may sell our securities to or through dealers and such dealers
may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers
for whom they may act as agents. Underwriters, dealers and agents that participate in the distribution of our securities may be deemed
to be underwriters under the Securities Act, and any discounts and commissions they receive from us and any profit realized by them on
the resale of our securities may be deemed to be underwriting discounts and commissions under the Securities Act. Any such underwriter
or agent will be identified and any such compensation received from us will be described in the applicable prospectus supplement. The
maximum aggregate commission or discount to be received by any member of FINRA or independent broker-dealer will not be greater than 10%
of the gross proceeds of the sale of our securities offered pursuant to this prospectus and any applicable prospectus supplement. We may
also reimburse the underwriter or agent for certain fees and legal expenses incurred by it.
Any underwriter may engage
in over-allotment, stabilizing transactions, short-covering transactions and penalty bids in accordance with Regulation M under the Exchange
Act. Over-allotment involves sales in excess of the offering size, which create a short position. Stabilizing transactions permit bids
to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum price. Syndicate-covering or other
short-covering transactions involve purchases of our securities, either through exercise of the option to purchase additional shares from
us or in the open market after the distribution is completed, to cover short positions. Penalty bids permit the underwriters to reclaim
a selling concession from a dealer when our securities originally sold by the dealer are purchased in a stabilizing or covering transaction
to cover short positions. Those activities may cause the price of our securities to be higher than it would otherwise be. If commenced,
the underwriters may discontinue any of the activities at any time.
Any underwriters that are
qualified market makers on the Nasdaq Global Select Market may engage in passive market making transactions in our common stock on the
Nasdaq Global Select Market in accordance with Regulation M under the Exchange Act, during the business day prior to the pricing of the
offering, before the commencement of offers or sales of our common stock. Passive market makers must comply with applicable volume and
price limitations and must be identified as passive market makers. In general, a passive market maker must display its bid at a price
not in excess of the highest independent bid for such security; if all independent bids are lowered below the passive market maker’s
bid, however, the passive market maker’s bid must then be lowered when certain purchase limits are exceeded. Passive market making
may stabilize the market price of our common stock at a level above that which might otherwise prevail in the open market and, if commenced,
may be discontinued at any time.
We may sell our securities
directly or through agents we designate from time to time. We will name any agent involved in the offering and sale of our securities
and we will describe any commissions we will pay the agent in the prospectus supplement. Unless the prospectus supplement states otherwise,
our agent will act on a best-efforts basis for the period of its appointment.
Unless otherwise specified
in the applicable prospectus supplement, each class or series of securities will be a new issue with no trading market, other than our
common stock and the 6.00% Notes due 2026, both of which are traded on the Nasdaq Global Select Market. We may elect to list any other
class or series of securities on any exchanges, but we are not obligated to do so. We cannot guarantee the liquidity of the trading markets
for any securities.
Under agreements that we may
enter, underwriters, dealers and agents who participate in the distribution of our securities may be entitled to indemnification by us
against certain liabilities, including liabilities under the Securities Act, or contribution with respect to payments that the agents
or underwriters may make with respect to these liabilities. Underwriters, dealers and agents may engage in transactions with, or perform
services for, us in the ordinary course of business.
If so indicated in the applicable
prospectus supplement, we will authorize underwriters or other persons acting as our agents to solicit offers by certain institutions
to purchase our securities from us pursuant to contracts providing for payment and delivery on a future date. Institutions with which
such contracts may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational
and charitable institutions and others, but in all cases such institutions must be approved by us. The obligations of any purchaser under
any such contract will be subject to the condition that the purchase of our securities shall not at the time of delivery be prohibited
under the laws of the jurisdiction to which such purchaser is subject. The underwriters and such other agents will not have any responsibility
in respect of the validity or performance of such contracts. Such contracts will be subject only to those conditions set forth in the
prospectus supplement, and the prospectus supplement will set forth the commission payable for solicitation of such contracts.
We may enter into derivative
transactions with third parties or sell securities not covered by this prospectus to third parties in privately negotiated transactions.
If the applicable prospectus supplement indicates, in connection with those derivatives, the third parties may sell securities covered
by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party may use securities
pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and may use securities
received from us in settlement of those derivatives to close out any related open borrowings of stock. The third parties in such sale
transactions will be underwriters and, if not identified in this prospectus, will be identified in the applicable prospectus supplement.
In order to comply with the
securities laws of certain states, if applicable, our securities offered hereby will be sold in such jurisdictions only through registered
or licensed brokers or dealers.
CUSTODIAN, TRANSFER AND DISTRIBUTION PAYING
AGENT AND REGISTRAR
Our investments are held under
a custody agreement with Western Alliance Bank Trust Company, National Association. The address of the custodian is One East Washington
Street, Ste. 400, Phoenix, Arizona 85004. American Stock Transfer & Trust Company acts as our transfer agent, distribution paying
agent and registrar. The principal business address of our transfer agent is 6201 15th Avenue, Brooklyn, New York 11219 or by phone at
(800) 937-5449.
BROKERAGE ALLOCATION AND OTHER PRACTICES
Though we generally acquire
and dispose of our investments in privately negotiated transactions, including in connection with private secondary market transactions,
we also use brokers in the normal course of our business. We paid $49,669, $248,145 and $184,642 in brokerage commissions for the fiscal
years ended December 31, 2022, 2021 and 2020, respectively, for an aggregate sum of $482,456. Subject to policies established by
our Board of Directors, our investment team is primarily responsible for the execution of the publicly traded securities portion of our
portfolio transactions and the allocation of brokerage commissions. We do not expect to execute transactions through any particular broker
or dealer, but will seek to obtain the best net results for us, taking into account such factors as price (including the applicable brokerage
commission or dealer spread), size of order, difficulty of execution, and operational facilities of the firm and the firm’s risk
and skill in positioning blocks of securities. While we will generally seek reasonably competitive trade execution costs, we will not
necessarily pay the lowest spread or commission available. Subject to applicable legal requirements, we may select a broker based partly
upon brokerage or research services provided to us. In return for such services, we may pay a higher commission than other brokers would
charge if we determine in good faith that such commission is reasonable in relation to the services provided.
LEGAL MATTERS
Certain legal matters in connection
with the securities offered hereby will be passed upon for us by Eversheds Sutherland (US) LLP, Washington, D.C. Certain legal matters
in connection with any offering pursuant to this prospectus, will be passed upon for the underwriters, if any, by counsel named in the
applicable prospectus supplement.
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The audited consolidated financial
statements for the years ended December 31, 2022, 2021, and 2020 of SuRo Capital Corp. and subsidiaries incorporated by reference
in this prospectus and elsewhere in the registration statement have been so included in reliance upon the report of Marcum LLP, independent
registered public accountants, as stated in their report incorporated by reference.
The senior securities table
as of December 31, 2022, 2021, 2020, and 2019 of SuRo Capital Corp. and subsidiaries included in this prospectus and elsewhere in
the registration statement have been so included in reliance upon the report of Marcum LLP, independent registered public accountants,
as stated in their report appearing herein. The senior securities table as of December 31, 2018 of SuRo Capital Corp. and subsidiaries
included in this prospectus and elsewhere in the registration statement have been so included in reliance upon the report of the Company’s
former independent registered public accounting firm, as stated in their report incorporated by reference herein.
Marcum LLP’s principal
business address is 1 Montgomery Street, Suite 1700, San Francisco, California 94104.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
This prospectus is part of
a registration statement that we have filed with the SEC. Pursuant to the Small Business Credit Availability Act, we are allowed to “incorporate
by reference” the information that we file with the SEC, which means that we can disclose important information to you by referring
you to those documents. The information incorporated by reference is considered to comprise a part of this prospectus from the date we
file that document. Any reports filed by us with the SEC subsequent to the date of this prospectus and before the date that any offering
of any securities by means of this prospectus and any accompanying prospectus supplement is terminated will automatically update and,
where applicable, supersede any information contained in this prospectus or incorporated by reference in this prospectus.
We incorporate by reference
into this prospectus our filings listed below and any future filings that we may file with the SEC under Section 13(a), 13(c), 14
or 15(d) of the Exchange Act, subsequent to the date of this prospectus until all of the securities offered by this prospectus and
any accompanying prospectus supplement have been sold or we otherwise terminate the offering of these securities; provided, however, that
information “furnished” under Item 2.02 or Item 7.01 of Form 8-K or other information “furnished” to the
SEC which is not deemed filed is not incorporated by reference in this prospectus and any accompanying prospectus supplement. Information
that we file with the SEC subsequent to the date of this prospectus will automatically update and may supersede information in this prospectus,
any accompanying prospectus supplement and information previously filed with the SEC.
This prospectus and any accompanying
prospectus supplement incorporate by reference the documents set forth below that have previously been filed with the SEC:
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our Annual Report on Form 10-K for the fiscal year ended December 31, 2022 filed with the SEC on March 16, 2023, and Amendment No. 1 thereto filed with the SEC on August 15, 2023, our Annual Report on Form 10-K for the fiscal year ended December 31, 2019 filed with the SEC on March 13, 2020, and our Annual Report on Form 10-K for the fiscal year ended December 31, 2017 filed with the SEC on March 16, 2018; |
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our Quarterly Reports on Form 10-Q for the fiscal quarters ended
March 31, 2023 and June 30, 2023, filed with the SEC on May 10,
2023 and August 9,
2023, respectively; |
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our Current Reports on Form 8-K (other than information furnished rather than filed in accordance with SEC rules) filed on January 17, 2023, April 10, 2023, April 20, 2023, and May 31, 2023; |
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our Definitive Proxy Statement on Schedule 14A, filed with the SEC on April 20, 2023 (to the extent incorporated by reference into Part III of our Annual Report on Form 10-K for the fiscal year ended December 31, 2022); and |
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the description of our common stock contained in Exhibit 4.5 of our Annual Report on Form 10-K for the year ended December 31, 2022, which updated the description thereof in our Registration Statement on Form 8-A (File No. 001-35156), as filed with the SEC on April 27, 2011, including any amendment or report filed for the purpose of updating such description prior to the termination of the offering of the common stock registered hereby. |
To obtain copies of these
filings, see “Available Information” in this prospectus, or you may request a copy of these filings (other than exhibits,
unless the exhibits are specifically incorporated by reference into these documents) at no cost by writing or calling the following address
and telephone number:
SuRo Capital Corp.
640 Fifth Avenue, 12th
Floor
New York, NY 10019
(212) 931-6331
You should rely only on the
information incorporated by reference or provided in this prospectus or any prospectus supplement. We have not authorized anyone to provide
you with different or additional information, and you should not rely on such information if you receive it. We are not making an offer
of or soliciting an offer to buy any securities in any state or other jurisdiction where such offer or sale is not permitted. You should
not assume that the information in this prospectus or in the documents incorporated by reference is accurate as of any date other than
the date on the front of this prospectus or those documents.
AVAILABLE INFORMATION
This prospectus is part of
a registration statement on Form N-2 we filed with the SEC under the Securities Act. This prospectus does not contain all of the
information set forth in the registration statement, some of which is contained in exhibits to the registration statement as permitted
by the rules and regulations of the SEC. For further information with respect to us and the securities we are offering under this
prospectus, we refer you to the registration statement, including the exhibits filed as a part of the registration statement. Statements
contained in this prospectus concerning the contents of any contract or any other document are not necessarily complete. If a contract
or other document has been filed as an exhibit to the registration statement, please see the copy of the contract or document that has
been filed. Each statement in this prospectus relating to a contract or document filed as an exhibit is qualified in all respects by the
filed exhibit.
We are required to file with
or submit to the SEC annual, quarterly and current reports, proxy statements and other information meeting the informational requirements
of the Exchange Act. The SEC maintains a website that contains reports, proxy and information statements and other information filed electronically
by us with the SEC, which are available free of charge on the SEC’s website at http://www.sec.gov. This information will
also be available free of charge by contacting us at 640 Fifth Avenue, 12th Floor, New York, NY 10019, by telephone at (212) 931-6331,
or on our website at http://www.surocap.com. Information contained on our website or on the SEC’s web site about us is not
incorporated into this prospectus and you should not consider information contained on our website or on the SEC’s website to be
part of this prospectus.
Up to $150,000,000
Common Stock
PROSPECTUS SUPPLEMENT
November 8, 2024
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