As
filed with the Securities and Exchange Commission on May 20, 2009
Registration
No. 333-143819
U.S.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
N-2
x REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
o PRE-EFFECTIVE AMENDMENT
NO.
PROSPECT
CAPITAL CORPORATION
(Exact
Name of Registrant as Specified in Charter)
10
East 40th Street, 44th Floor
New
York, NY 10016
(Address
of Principal Executive Offices)
Registrant's
Telephone Number, including Area Code: (212) 448-0702
John
F. Barry III
Brian
H. Oswald
c/o
Prospect Capital Management LLC
10
East 40th Street, 44th Floor
New
York, NY 10016
(212)
448-0702
(Name
and Address of Agent for Service)
Copies
of information to:
Richard
T. Prins
Skadden
Arps Slate Meagher & Flom LLP
4
Times Square
New
York, NY 10036
(212)
735-3000
Approximate
date of proposed public offering:
From
time to time after the effective date of this registration
statement
If
any securities being registered on this form will be offered on a delayed or
continuous basis in reliance on Rule 415 under the Securities Act of 1933, other
than securities offered in connection with dividend or interest reinvestment
plans, check the following box x
Explanatory
Note and Incorporation by Reference
This Post-Effective Amendment No. 13 to
the Registration Statement on Form N-2 (File No. 333-143819) of Prospect Capital
Corporation (the “Registration Statement”) is being filed pursuant to Rule
462(d) under the Securities Act of 1933, as amended (the “Securities Act”),
solely for the purpose of filing exhibits to the Registration Statement.
Accordingly, this Post-Effective Amendment No. 13 consists only of a facing
page, this explanatory note and Part C of the Registration Statement on Form N-2
setting forth the exhibits to the Registration Statement. This Post-Effective
Amendment No. 13 does not modify any other part of the Registration Statement.
Pursuant to Rule 462(d) under the Securities Act, this Post-Effective Amendment
No. 13 shall become effective immediately upon filing with the Securities and
Exchange Commission. The contents of the Registration Statement are hereby
incorporated by reference.
Part
C — Other Information
ITEM 25. FINANCIAL
STATEMENTS AND
EXHIBITS
(1)
Financial Statements
The
following statements of Prospect Capital Corporation (the "Company" or the
"Registrant") are included in Part A of this Registration
Statement:
INDEX
TO FINANCIAL STATEMENTS
Financial
Statements
|
|
UNAUDITED
FINANCIAL STATEMENTS
|
|
Consolidated
Statements of Assets and Liabilities as of September 30, 2008 (Unaudited)
and June 30, 2008
|
|
Consolidated
Statements of Operations (Unaudited) — For the Three Months Ended
September 30, 2008 and September 30, 2007
|
|
Consolidated
Statements of Changes in Net Assets (Unaudited) — For the Three Months
Ended September 30, 2008 and September 30, 2007
|
|
Consolidated
Statements of Cash Flows (Unaudited) — For the Three Months Ended
September 30, 2008 and September 30, 2007
|
|
Consolidated
Schedule of Investments as of September 30, 2008 (Unaudited) and June 30,
2008 (Audited)
|
|
Notes
to Consolidated Financial Statements (Unaudited)
|
|
|
|
AUDITED
FINANCIAL STATEMENTS
|
|
Report
of Independent Registered Public Accounting Firm
|
|
Consolidated
Statements of Assets and Liabilities as of June 30, 2008 and June 30,
2007
|
|
Consolidated
Statements of Operations — For the Years Ended June 30, 2008, June 30,
2007 and
June
30, 2006
|
|
Consolidated
Statements of Changes in Net Assets — For the Years Ended June 30, 2008,
June 30, 2007 and June 30, 2006
|
|
Consolidated
Statements of Cash Flows — For the Years Ended June 30, 2008, June 30,
2007 and
June
30, 2006
|
|
Consolidated
Schedule of Investments as of June 30, 2008
|
|
Consolidated
Schedule of Investments as of June 30, 2007
|
|
Notes
to Financial Statements
|
|
(2)
Exhibits
Exhibit
No.
|
Description
|
(a)(1)
|
Articles
of Incorporation1
|
(a)(2)
|
Articles
of Amendment and Restatement2
|
(a)(3)
|
Articles
of Amendment5
|
(b)(1)
|
Bylaws2
|
(b)(2)
|
Amended
and Restated Bylaws2
|
(c)
|
Not
Applicable
|
(d)(1)
|
Form
of Share Certificate2
|
(d)(2)
|
Form
of Indenture†
|
(e)
|
Form
of Dividend Reinvestment Plan2
|
(f)
|
Not
Applicable
|
(g)
|
Form
of Investment Advisory Agreement between Registrant and Prospect Capital
Management LLC2
|
Exhibit
No.
|
Description
|
|
|
(h)
|
Underwriting
Agreement†
|
(i)
|
Not
Applicable
|
(j)
|
Form
of Custodian Agreement3
|
(k)(1)
|
Form
of Administration Agreement between Registrant and Prospect Administration
LLC2
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(k)(2)
|
Form
of Transfer Agency and Registrar Services Agreement3
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(k)(3)
|
Form
of Trademark License Agreement between the Registrant and Prospect Capital
Management2
|
(k)(4)
|
Loan
and Servicing Agreement dated June 6, 2007 among Prospect Capital Funding,
LLC, Prospect Capital Corporation, and Coöperative Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland," New York Branch5
|
(k)(5)
|
First
Amendment to Loan and Servicing Agreement dated December 31, 2007
among Prospect Capital Funding LLC, Prospect Capital Corporation and
Coöperative Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland,"
New York Branch7
|
(l)(1)
|
Opinion
and Consent of Clifford Chance US LLP, counsel for Registrant5
|
(l)(2)
|
Opinion
and Consent of Venable LLP, as special Maryland counsel for
Registrant5
|
(m)
|
Not
Applicable
|
(n)
|
Consent
of independent registered public accounting firm for Registrant8
|
(o)
|
Not
Applicable
|
(p)
|
Not
Applicable
|
(q)
|
Not
Applicable
|
(r)
|
Code
of Ethics6
|
____________________
1
|
Incorporated
by reference to the corresponding exhibit number to the Registrant's
Registration Statement under the Securities Act of 1933, as amended, on
Form N-2 (File No. 333-114552), filed on April 16,
2004.
|
2
|
Incorporated
by reference to the corresponding exhibit number to the Registrant's
Pre-effective Amendment No. 2 to the Registration Statement under the
Securities Act of 1933, as amended, on Form N-2 (File
No. 333-114552), filed on July 6, 2004.
|
3
|
Incorporated
by reference to the corresponding exhibit number to the Registrant's
Pre-effective Amendment No. 3 to the Registration Statement under the
Securities Act of 1933, as amended, on Form N-2 (File
No. 333-114552), filed on July 23, 2004.
|
4
|
Incorporated
by reference to the corresponding exhibit number to the Registrant's Form
8-K under the Securities Act of 1933.
|
5
|
Incorporated
by reference to the corresponding exhibit number to the Registrant's
Pre-effective Amendment No. 3 to the Registration Statement under the
Securities Act of 1933, as amended, on Form N-2 (File
No. 333-143819), filed on September 5, 2007.
|
6
|
Incorporated
by reference to the corresponding exhibit number to the Registrant's
Pre-effective Amendment No. 2 to the Registration Statement under the
Securities Act of 1933, as amended, on Form N-2 (File
No. 333-114552), filed on July 6, 2004.
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7
|
Incorporated
by reference to Exhibit 10.8 of the Registrant's Form 10-Q filed
on February 11, 2008.
|
8
|
Incorporated
by reference to the corresponding exhibit number to the Registrant's
Post-effective Amendment No. 10 to the Registration Statement under
the Securities Act of 1933, as amended, on Form N-2 (File
No. 333-143819), filed on March 16, 2009.
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†
|
Filed
herewith.
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|
|
ITEM 26. MARKETING
ARRANGEMENTS
The
information contained under the heading "Plan of Distribution" on this
Registration Statement is incorporated herein by reference and any information
concerning any underwriters will be contained in the accompanying prospectus
supplement, if any.
ITEM 27. OTHER EXPENSES OF
ISSUANCE AND DISTRIBUTION**
|
|
|
|
Commission
registration
fee
|
|
$ |
15,350 |
|
NASDAQ
Global Select Additional Listing
Fees
|
|
|
22,500 |
|
FINRA
filing
fee
|
|
|
50,500 |
|
Accounting
fees and
expenses
|
|
|
50,000 |
|
Legal
fees and
expenses
|
|
|
750,000 |
|
Printing
and
engraving
|
|
|
700,000 |
|
Financial
advisory
fee
|
|
|
10,000 |
|
Miscellaneous
fees and
expenses
|
|
|
15,000 |
|
Total
|
|
$ |
1,613,350 |
|
____________________
** These
amounts are estimates.
All
of the expenses set forth above shall be borne by the Company.
ITEM 28. PERSONS CONTROLLED
BY OR UNDER COMMON CONTROL
As
of March 31, 2009, the Registrant owns a controlling interest in the following
companies: a 78.01% interest in Ajax Acquisitions Corp., a Delaware corporation;
a 40% interest in C&J Cladding, LLC, a Delaware limited liability company; a
100% interest in Change Clean Energy Holdings, Inc., a Delaware corporation (as
well as an indirect controlling interest in DownEast Power Company, LLC, a
Delaware limited liability company); a 51% interest in Worcester Energy
Corporation, a Maine limited liability company; a 100% interest in Worcester
Energy Holdings, Inc., a Maine corporation (as well as an indirect controlling
interest in Biochips LLC, a Maine corporation 51% owned by Worcester Energy
Holdings, Inc.); a 51% interest in Worcester Energy Partners, Inc., a Delaware
corporation (as well as an indirect controlling interest in Precision Logging
& Landclearing, Inc., a Delaware corporation 100% owned by Worcester Energy
Partners, Inc.); a 49% interest in Integrated Contract Services, Inc., a
Delaware corporation; a 100% interest in The Healing Staff, f/k/a Lisamarie
Fallon, Inc., a Texas corporation; a 100% interest in Vets
Securing America, Inc., a Delaware corporation; a 79.83%
interest in Iron Horse Coiled Tubing, Inc., an Alberta corporation; a 100%
interest in Gas Solutions Holdings, Inc., a Delaware corporation; a 80% interest
in NRG Manufacturing, Inc., a Texas corporation; a 74.51% interest in R-V
Industries, Inc., a Pennsylvania corporation; and a 100% interest in Yatesville
Coal Holdings, Inc., a Delaware corporation (as well as indirect controlling
interests in Eastern Kentucky Coal Holdings, Inc., a Delaware corporation, North
Fork Collieries LLC, a Delaware limited liability company, E&L Construction
Inc., a Kentucky corporation and C&A Construction Inc., a Kentucky
corporation, each of which is 100% owned by Yatesville, and Genesis Coal Corp.,
a Kentucky corporation 78% owned by Yatesville).
Prospect
Capital Management LLC, a Delaware limited liability company, owns shares of the
Registrant, representing 2.65% of the common stock
outstanding. Without conceding that Prospect Capital Management
controls the Registrant, an affiliate of Prospect Capital Management is the
general partner of, and may be deemed to control, the following
entities:
|
|
Jurisdiction
of
Organization
|
Prospect
Street Ventures I, LLC
|
|
Delaware
|
Prospect
Management Group LLC
|
|
Delaware
|
Prospect
Street Broadband LLC
|
|
Delaware
|
Prospect
Street Energy LLC
|
|
Delaware
|
Prospect
Administration LLC
|
|
Delaware
|
|
|
|
ITEM 29. NUMBER OF HOLDERS OF
SECURITIES
The
following table sets forth the approximate number of record holders of our
common stock at March 31, 2009.
|
|
|
Common
Stock, par value $.001 per share
|
|
46
|
|
|
|
ITEM
30. INDEMNIFICATION
Maryland
law 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 Maryland law, subject to the requirements of the 1940
Act.
Our
charter authorizes us, to the maximum extent permitted by Maryland law and
subject to the requirements of the 1940 Act, to obligate ourselves to indemnify
any present or former director or officer or any individual who, while a
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 Maryland law and subject to the requirements of the
1940 Act, to indemnify any present or
former
director or officer or any individual who, while a 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 any such 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 their 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 office.
Maryland
law requires a corporation (unless its charter provides otherwise, which our
charter does not) to indemnify a director or officer who has been successful, on
the merits or otherwise, 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. Maryland law 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 Maryland law, 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, Maryland law permits a
corporation to advance reasonable expenses to a director or officer 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.
The
Investment Advisory Agreement provides that, absent willful misfeasance, bad
faith or gross negligence in the performance of its duties or by reason of the
reckless disregard of its duties and obligations, Prospect Capital Management
LLC (the "Adviser") and its officers, managers, agents, employees, controlling
persons, members and any other person or entity affiliated with it are entitled
to indemnification from the Company for any damages, liabilities, costs and
expenses (including reasonable attorneys' fees and amounts reasonably paid in
settlement) arising from the rendering of the Adviser's services under the
Investment Advisory Agreement or otherwise as an Investment Adviser of the
Company.
The
Administration Agreement provides that, absent willful misfeasance, bad faith or
negligence in the performance of its duties or by reason of the reckless
disregard of its duties and obligations, Prospect Administration LLC and its
officers, manager, agents, employees, controlling persons, members and any other
person or entity affiliated with it are entitled to indemnification from the
Company for any damages, liabilities, costs and expenses (including reasonable
attorneys' fees and amounts reasonably paid in settlement) arising from the
rendering of Prospect Administration LLC's services under the Administration
Agreement or otherwise as administrator for the Company.
The
Administrator is authorized to enter into one or more sub-administration
agreements with other service providers (each a "Sub-Administrator") pursuant to
which the Administrator may obtain the services of the service providers in
fulfilling its responsibilities hereunder. Any such
sub-administration agreements shall be in accordance with the requirements of
the 1940 Act and other applicable U.S. Federal and state law and shall contain a
provision requiring the Sub-Administrator to comply with the same restrictions
applicable to the Administrator.
ITEM 31. BUSINESS AND OTHER
CONNECTIONS OF INVESTMENT ADVISER
A
description of any other business, profession, vocation or employment of a
substantial nature in which the Adviser, and each managing member, director or
executive officer of the Adviser, is or has been during the past two fiscal
years, engaged in for his or her own account or in the capacity of director,
officer, employee, partner or trustee, is set forth in Part A of this
Registration Statement in the section entitled "Management." Additional
information regarding the Adviser and
its
officers and directors is set forth in its Form ADV, as filed with the
Securities and Exchange Commission (SEC File No.801-62969), and is incorporated
herein by reference.
ITEM 32. LOCATION OF ACCOUNTS
AND RECORDS
All
accounts, books and other documents required to be maintained by Section 31(a)
of the Investment Company Act of 1940, and the rules thereunder are maintained
at the offices of:
(1)
the Registrant, Prospect Capital Corporation, 10 East 40th Street, 44th Floor,
New York, NY 10016;
(2)
the Transfer Agent, American Stock Transfer & Trust Company;
(3)
the Custodian, U.S. Bank National Association; and
(4)
the Adviser, Prospect Capital Management LLC, 10 East 40th Street, 44th Floor,
New York, NY 10016.
ITEM 33. MANAGEMENT
SERVICES
Not
Applicable.
ITEM
34. UNDERTAKINGS
1. The
Registrant undertakes to suspend the offering of shares until the prospectus is
amended if (1) subsequent to the effective date of its registration statement,
the net asset value declines more than ten percent from its net asset value as
of the effective date of the registration statement; or (2) the net asset value
increases to an amount greater than the net proceeds as stated in the
prospectus.
2. Any
securities not taken in a rights offering by stockholders are to be reoffered to
the public, an undertaking to supplement the prospectus, after the expiration of
the subscription period, to set forth the results of the subscription offer, the
transactions by underwriters during the subscription period, the amount of
unsubscribed securities to be purchased by underwriters, and the terms of any
subsequent reoffering thereof. If any public offering by the
underwriters of the securities being registered is to be made on terms differing
from those set forth on the cover page of the prospectus, we will file a
post-effective amendment to set forth the terms of such offering.
3. The
Registrant undertakes:
|
(a)
|
to
file, during any period in which offers or sales are being made, a
post-effective amendment to the registration
statement:
|
|
(1)
|
to
include any prospectus required by Section 10(a)(3) of the 1933
Act;
|
|
(2)
|
to
reflect in the prospectus any facts or events after the effective date of
the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental
change in the information set forth in the registration statement;
and
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(3)
|
to
include any material information with respect to the plan of distribution
not previously disclosed in the registration statement or any material
change to such information in the registration
statement.
|
|
(b)
|
that,
for the purpose of determining any liability under the 1933 Act, each such
post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
those securities at that time shall be deemed to be the initial bona fide
offering thereof;
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(c)
|
to
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering;
|
|
(d)
|
that,
for the purpose of determining liability under the 1933 Act to any
purchaser, each prospectus filed pursuant to Rule 497(b), (c), (d) or (e)
under the 1933 Act as part of a registration statement relating to an
offering, other than prospectuses filed in reliance on Rule 430A under the
1933 Act, shall be deemed to be part of and included in the registration
statement as of the date it is first used after
effectiveness. Provided, however, that no statement made in a
registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of
the registration statement will, as to a purchaser with a time of contract
of sale prior to such first use, supersede or modify any statement that
was made in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately prior to
such date of first use; and
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|
(e)
|
that,
for the purpose of determining liability of the Registrant under the 1933
Act to any purchaser in the initial distribution of securities: The
undersigned Registrant undertakes that in a primary offering of securities
of the undersigned Registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the securities to the
purchaser, if the securities are offered or sold to such purchaser by
means of any of the following communications, the undersigned Registrant
will be a seller to the purchaser and will be considered to offer or sell
such securities to the purchaser: (1) any preliminary prospectus or
prospectus of the undersigned Registrant relating to the offering required
to be filed pursuant to Rule 497 under the 1933 Act; (2) the portion of
any advertisement pursuant to Rule 482 under the 1933 Act relating to the
offering containing material information about the undersigned Registrant
or its securities provided by or on behalf of the undersigned Registrant;
and (3) any other communication that is an offer in the offering made by
the undersigned Registrant to the
purchaser.
|
|
(f)
|
to
file a post-effective amendment to the registration statement, and to
suspend any offers or sales pursuant the registration statement until such
post-effective amendment has been declared effective under the 1933 Act,
in the event the shares of Registrant are trading below its net asset
value and either (i) Registrant receives, or has been advised by its
independent registered accounting firm that it will receive, an audit
report reflecting substantial doubt regarding the Registrant's ability to
continue as a going concern or (ii) Registrant has concluded that a
material adverse change has occurred in its financial position or results
of operations that has caused the financial statements and other
disclosures on the basis of which the offering would be made to be
materially misleading.
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SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant has duly
caused this Registration Statement on Form N-2 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, in the State of
New York, on the 20th day of May, 2009.
|
PROSPECT
CAPITAL CORPORATION
|
|
By:
|
/s/
John F. Barry III |
|
|
|
John
F. Barry III
|
|
|
Chief
Executive Officer and
|
|
|
Chairman
of the Board of
Directors
|
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities indicated on May 20,
2009. This document may be executed by the signatories hereto on any
number of counterparts, all of which constitute one and the same
instrument.
Signature
|
|
Title
|
|
|
|
/s/ John F.
Barry III |
|
Chief
Executive Officer and Chairman of the Board of
|
John
F. Barry III
|
|
Directors
(principal executive officer)
|
|
|
|
/s/ M.
Grier Eliasek |
|
Chief
Operating Officer and Director
|
M.
Grier Eliasek
|
|
|
|
|
|
/s/ Brian
H. Oswald |
|
Chief
Financial Officer, Treasurer and Secretary
|
Brian
H. Oswald
|
|
(principal
financial and accounting officer)
|
|
|
|
/s/ Graham
D.S. Anderson |
|
Director
|
Graham
D.S. Anderson
|
|
|
|
|
|
/s/ Andrew
C. Cooper |
|
Director
|
Andrew
C. Cooper
|
|
|
|
|
|
/s/ Eugene
S. Stark |
|
Director
|
Eugene
S. Stark
|
|
|
INDEX
TO EXHIBITS
(h)
|
Underwriting
Agreement
|