As
filed with the Securities and Exchange Commission on June 16, 2023
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
N-2
☒
Registration Statement under the Securities Act of 1933
☐
Pre-Effective Amendment No.
☐
Post-Effective Amendment No.
☐
Registration Statement under the Investment Company Act of 1940
☐
Amendment No.
GREAT
ELM CAPITAL CORP.
(Registrant’s
Exact Name as Specified in Charter)
800
South Street, Suite 230
Waltham,
Massachusetts 02453
(Address
of Principal Executive Offices)
(617)
375-3006
(Registrant’s
Telephone Number, including Area Code)
Matt
Kaplan
President
and Chief Executive Officer
Great
Elm Capital Corp.
800
South Street, Suite 230
Waltham,
Massachusetts 02453
(Name
and Address of Agent for Service)
COPIES
TO:
|
Rory
T. Hood
Jones
Day
250
Vesey Street
New
York, New York 10281
(212)
326-3939 |
| |
William
J. Tuttle, P.C.
Matthew
D. Turner
Kirkland
& Ellis LLP
1301
Pennsylvania Ave, N.W.
Washington,
DC 20004
(202)
389-5000 |
Approximate
Date of Commencement of Proposed Public Offering: As soon as practicable after the effective date of this Registration Statement.
|
☐ |
Check
box if the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans. |
|
☐ |
Check
box 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 (“Securities Act”), other than securities offered in connection
with a dividend reinvestment plan. |
|
☐ |
Check
box if this Form is a registration statement pursuant to General Instruction A.2 or a post-effective amendment thereto. |
|
☐ |
Check
box if this Form is a registration statement pursuant to General Instruction B or a post-effective amendment thereto that will become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act. |
|
☐ |
Check
box if this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction B to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act. |
It
is proposed that this filing will become effective (check appropriate box):
|
☐ |
when
declared effective pursuant to Section 8(c) of the Securities Act. |
If
appropriate, check the following box:
|
☐ |
This
[post-effective] amendment designates a new effective date for a previously filed [post-effective amendment] [registration statement]. |
|
☐ |
This
Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, and the Securities Act
registration statement number of the earlier effective registration statement for the same offering
is: . |
|
☐ |
This
Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, and the Securities Act registration statement
number of the earlier effective registration statement for the same offering is: . |
|
☐ |
This
Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, and the Securities Act registration statement
number of the earlier effective registration statement for the same offering is: . |
Check
each box that appropriately characterizes the Registrant:
|
☐ |
Registered
Closed-End Fund (closed-end company that is registered under the Investment Company Act of 1940 (“Investment Company Act”)). |
|
☒ |
Business Development Company
(closed-end company that intends or has elected to be regulated as a business development company under the Investment Company Act). |
|
☐ |
Interval
Fund (Registered Closed-End Fund or a Business Development Company that makes periodic repurchase offers under Rule 23c-3 under the Investment
Company Act). |
|
☒ |
A.2 Qualified (qualified
to register securities pursuant to General Instruction A.2 of this Form). |
|
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Well-Known
Seasoned Issuer (as defined by Rule 405 under the Securities Act). |
|
☐ |
Emerging
Growth Company (as defined by Rule 12b-2 under the Securities Exchange Act of 1934 (“Exchange Act”). |
|
☐ |
If
an Emerging Growth Company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B)
of Securities Act. |
|
☐ |
New
Registrant (registered or regulated under the Investment Company Act for less than 12 calendar months preceding this filing). |
THE
REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE
WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS
THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
The information in this preliminary prospectus
is not complete and may be changed. A registration statement relating to these securities has been filed with the Securities and Exchange
Commission. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective.
This preliminary prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any
jurisdiction where the offer or sale is not permitted.
PRELIMINARY PROSPECTUSSUBJECT
TO COMPLETION, DATED JUNE 16, 2023
PROSPECTUS
$
GREAT
ELM CAPITAL CORP.
%
NOTES DUE 2028
We
are an externally 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 “Investment Company Act”). We seek to
generate current income and capital appreciation through debt and income-generating equity investments, including investments in specialty
finance businesses. Our external investment manager, Great Elm Capital Management, Inc. (“GECM”) provides the administrative
services necessary for us to operate.
We
are offering $ in aggregate principal amount of % notes due 2028 (the “Notes”).
The Notes will mature on , 2028. We will pay interest on the Notes on , ,
and of each year, beginning , 2023. We may redeem the Notes in whole
or in part at any time or from time to time on or after , 2025 at our option, at the redemption price equal to 100%
of the aggregate principal amount, plus any accrued and unpaid interest, as discussed under “Description of the Notes—Optional
Redemption” in this prospectus. Holders of the Notes will not have the option to have the Notes repaid prior to the stated maturity
date. The Notes will be issued in minimum denominations of $25 and integral multiples of $25 in excess thereof.
The
Notes will be our direct unsecured obligations and rank pari passu, or equal, with all outstanding
and future unsecured unsubordinated indebtedness issued by us. The Notes will be effectively subordinated, or junior in right of payment,
to indebtedness under our credit facility and any future secured indebtedness that we may incur and structurally subordinated to all future
indebtedness and other obligations of our subsidiaries.
We
intend to list the Notes on The Nasdaq Global Market (“Nasdaq”) and we expect trading to commence thereon within 30 days
of the original issue date under the trading symbol “GECCZ.” The Notes are expected to trade “flat.” This means
that purchasers will not pay, and sellers will not receive, any accrued and unpaid interest on the Notes that is not included in the trading
price. Currently, there is no public market for the Notes.
Investing in our securities involves a high degree of risk. See “Risk Factors”
beginning on page 14 of this prospectus to read about factors you should consider, including the risk of leverage,
before investing in the Notes.
This
prospectus sets forth concisely important information you should know before investing in the Notes. Please read it and the documents
we refer you to carefully in their entirety before you invest and keep it for future reference. We file annual, quarterly and current
reports, proxy statements and other information about us with the Securities and Exchange Commission. We maintain a website at http://www.greatelmcc.com
and we make all of our annual, quarterly and current reports, proxy statements and other publicly filed information, and all information
incorporated by reference herein, available, free of charge, on or through such website. Information on our website is not incorporated
or a part of this prospectus. You may also obtain free copies of our annual and quarterly reports and make stockholder inquiries by contacting
us at Great Elm Capital Corp., 800 South Street, Suite 230, Waltham, Massachusetts 02453 or by calling us collect at (617) 375-3006.
The Securities and Exchange Commission maintains a website at http://www.sec.gov where such information is available without charge.
Neither
the Securities and Exchange Commission 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.
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Per
Note |
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Total |
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Public
Offering Price |
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$ |
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$ |
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Underwriting
Discount and Commissions (sales load) |
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$ |
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$ |
|
Proceeds
to us, before expenses(1) |
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$ |
| |
$ |
|
(1) |
Before deducting expenses
payable by us related to this offering, estimated at $ , or approximately $ per Note. See “Underwriting.”
The underwriters may also purchase up to an additional $ aggregate principal amount of the Notes offered hereby,
to cover over-allotments, if any, within 30 days of the date of this prospectus. If the underwriters exercise this option in full, the
total public offering price would be $ , the total underwriting discount and commissions (sales load) paid by us would
be $ , and total proceeds to us, before expenses, would be $ . |
THE
NOTES ARE NOT DEPOSITS OR OTHER OBLIGATIONS OF A BANK AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENT
AGENCY.
Delivery
of the Notes in book-entry form only through The Depository Trust Company will be made on or about , 2023.
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This
prospectus is dated , 2023.
TABLE
OF CONTENTS
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i
ABOUT
THIS PROSPECTUS
You
should read this prospectus carefully before you invest in the Notes. This prospectus and the exhibits to the registration statement to
which this prospectus relates contain the terms of the Notes we are offering. It is important for you to read and consider all of the
information contained in this prospectus before making your investment decision. See “Where You Can Find More Information”
in this prospectus.
You
should rely only on the information contained, or incorporated by reference, in this prospectus. We and the underwriters have not
authorized any other person to provide you with additional information, or with information different from that contained in this prospectus.
We and the underwriters take no responsibility for, and provide no assurance as to the reliability of, any other information that others
may give to you. We and the underwriters are not making an offer to sell the Notes in any jurisdiction where the offer or sale is not
permitted. This prospectus does not constitute an offer to sell or a solicitation of any offer to buy any security other than the securities
to which it relates. You should assume that the information appearing in this prospectus is accurate only as of the date on its front
cover. Our business, financial condition, results of operations and prospects may have changed since such date. To the extent required
by law, we will amend or supplement the information contained in this prospectus. We encourage you to consult your own counsel, accountant
and other advisors for legal, tax, business, financial and related advice regarding an investment in our securities.
The
terms “we,” “us,” “our,” “the Company” and “GECC” in this prospectus refer
to Great Elm Capital Corp., a Maryland corporation, and its subsidiaries for the periods after our consummation of the formation transactions
and the merger of Full Circle Capital Corporation, a Maryland corporation (“Full Circle”), with and into us (the “Merger”).
See “The Company—Formation Transactions and Merger.”
ii
PROSPECTUS
SUMMARY
This
summary highlights some of the information in this prospectus. It is not complete and may not contain all of the information that you
may want to consider. You should read carefully the more detailed information set forth under “Risk Factors” in this prospectus
and the other information included in this prospectus and the documents to which we have referred.
Unless
otherwise noted, the information contained in this prospectus assumes that the underwriters’ over-allotment option is not exercised.
Great
Elm Capital Corp.
We
are a Maryland corporation that was formed in April 2016. We operate as a closed-end, externally managed, non-diversified management investment
company that has elected to be regulated as a BDC under the Investment Company Act. In addition, for tax purposes, we elected to be treated
as a regulated investment company (“RIC”) under the Internal Revenue Code of 1986, as amended (the “Code”), beginning
with our tax year starting October 1, 2016.
We
seek to generate current income and capital appreciation through debt and income-generating equity investments, including investments
in specialty finance businesses.
To
achieve our investment objective, we invest in secured and senior secured debt instruments of middle market companies, as well as income-generating
equity investments in specialty finance companies, that we believe offer sufficient downside protection and have the potential to generate
attractive returns. We generally define middle market companies as companies with enterprise values between $100 million and $2 billion.
We
also make investments throughout other portions of a company’s capital structure, including subordinated debt, mezzanine debt, and
equity or equity-linked securities.
We
source these transactions directly with issuers and in the secondary markets through relationships with industry professionals.
Great
Elm Capital Management, Inc.
We
are managed by GECM, whose investment team has an aggregate of more than 100 years of experience in financing and investing in leveraged
middle-market companies. GECM’s team is led by Matt Kaplan, GECM’s Portfolio Manager and our Chief Executive Officer. GECM’s
investment committee includes Matt Kaplan, Adam M. Kleinman, Jason W. Reese and Nichole Milz. Great Elm Group, Inc. (“GEG”)
is the parent company of GECM.
GECM
has entered into a shared services agreement with Imperial Capital Asset Management, LLC (“ICAM”), pursuant to which ICAM
makes available to GECM certain employees of ICAM, including Matt Kaplan, to provide services to GECM in exchange for reimbursement by
GECM of the allocated portion of such employees’ time.
We
entered into an investment management agreement with GECM, dated as of September 27, 2016 and subsequently amended and restated as of August 1, 2022 (the “Investment
Management Agreement”), pursuant to which and subject to the overall supervision of the Board, GECM provides investment advisory
services to GECC. For providing these services, GECM receives a fee from us, consisting of two components: (1) a base management fee and
(2) an incentive fee.
The
base management fee is calculated at an annual rate of 1.50% based on the average value of our total assets (determined in conformity
with generally accepted accounting principles in the United States (“GAAP”) (other than cash or cash equivalents but including
assets purchased with borrowed funds or other forms of leverage)) at the end of the two most recently completed calendar quarters. The
base management fee is payable quarterly in arrears.
The
incentive fee consists of two components that are independent of each other, with the result that one component may be payable even if
the other is not. One component of the incentive fee is based on income (the “Income Incentive Fee”) and the other component
is based on capital gains (the “Capital Gains Incentive Fee”). See “The Company—Investment Management Agreement.”
Pursuant
to the administration agreement, dated as of September 27, 2016 (the “Administration Agreement”), by and between us and
GECM, GECM furnishes us with administrative services and we pay GECM our allocable
1
portion
of overhead and other expenses incurred by GECM in performing its obligations under the Administration Agreement, including our allocable
portion of the cost of our Chief Financial Officer and Chief Compliance Officer and their respective staffs.
Investment
Portfolio
The
following is a reconciliation of the investment portfolio for the three months ended March 31, 2023 and the year ended December 31,
2022. Investments in short-term securities, including U.S. Treasury Bills and money market mutual funds, are excluded from the table below.
|
(in
thousands) |
| |
For
the Three Months
Ended
March 31, 2023 |
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For
the Year
Ended
December 31,
2022 |
|
Beginning
Investment Portfolio, at fair value |
| |
$224,957 |
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$212,149 |
|
Portfolio
Investments acquired(1) |
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53,293 |
| |
150,128 |
|
Amortization
of premium and accretion of discount, net |
| |
541 |
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1,328 |
|
Portfolio
Investments repaid or sold(2) |
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(57,175) |
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(112,628) |
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Net
change in unrealized appreciation (depreciation) on investments |
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3,473 |
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100,016 |
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Net
realized gain (loss) on investments |
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1,850 |
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(126,036) |
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Ending
Investment Portfolio, at fair value |
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$226,939 |
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$224,957 |
|
(1) |
Includes new investments,
additional fundings (inclusive of those on revolving credit facilities), refinancings, and capitalized payment-in-kind (“PIK”)
income. |
|
(2) |
Includes scheduled principal
payments, prepayments, sales, and repayments (inclusive of those on revolving credit facilities). |
The
following table shows the fair value of our portfolio of investments by industry as of March 31, 2023 and December 31, 2022
(in thousands):
|
|
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March 31,
2023 |
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December 31,
2022 | ||||||
|
Industry |
| |
Investments
at
Fair
Value |
| |
Percentage
of
Fair
Value |
| |
Investments
at
Fair
Value |
| |
Percentage
of
Fair
Value |
|
Specialty
Finance |
| |
$56,589 |
| |
24.94% |
| |
$58,250 |
| |
25.89% |
|
Chemicals |
| |
26,204 |
| |
11.55% |
| |
31,702 |
| |
14.09% |
|
Insurance |
| |
14,591 |
| |
6.43% |
| |
2,340 |
| |
1.04% |
|
Oil
& Gas Exploration & Production |
| |
13,139 |
| |
5.79% |
| |
15,136 |
| |
6.74% |
|
Energy
Midstream |
| |
12,248 |
| |
5.40% |
| |
22,559 |
| |
10.03% |
|
Internet
Media |
| |
12,216 |
| |
5.38% |
| |
12,247 |
| |
5.44% |
|
Shipping |
| |
12,042 |
| |
5.31% |
| |
7,206 |
| |
3.20% |
|
Transportation
Equipment Manufacturing |
| |
11,064 |
| |
4.87% |
| |
11,803 |
| |
5.25% |
|
Consumer
Products |
| |
11,042 |
| |
4.86% |
| |
8,413 |
| |
3.74% |
|
Energy
Services |
| |
9,764 |
| |
4.30% |
| |
2,877 |
| |
1.28% |
|
Casinos
& Gaming |
| |
8,601 |
| |
3.79% |
| |
9,301 |
| |
4.13% |
|
Closed-End
Fund |
| |
6,232 |
| |
2.75% |
| |
5,825 |
| |
2.59% |
|
Metals
& Mining |
| |
6,027 |
| |
2.66% |
| |
6,046 |
| |
2.69% |
|
Industrial |
| |
5,476 |
| |
2.41% |
| |
5,498 |
| |
2.44% |
|
Food
& Staples |
| |
5,330 |
| |
2.35% |
| |
3,660 |
| |
1.63% |
|
Aircraft |
| |
3,939 |
| |
1.73% |
| |
3,577 |
| |
1.59% |
|
Oil
& Gas Refining |
| |
3,920 |
| |
1.73% |
| |
5,388 |
| |
2.40% |
|
Restaurants |
| |
3,447 |
| |
1.52% |
| |
3,110 |
| |
1.38% |
|
Hospitality |
| |
3,128 |
| |
1.38% |
| |
4,988 |
| |
2.22% |
|
Apparel |
| |
2,168 |
| |
0.95% |
| |
2,371 |
| |
1.05% |
|
Retail |
| |
44 |
| |
0.02% |
| |
5 |
| |
—% |
|
Special
Purpose Acquisition Company |
| |
35 |
| |
0.02% |
| |
19 |
| |
0.01% |
|
IT
Services |
| |
2 |
| |
—% |
| |
— |
| |
—% |
|
Auto
Manufacturer |
| |
2 |
| |
—% |
| |
2 |
| |
—% |
2
|
|
| |
March 31,
2023 |
| |
December 31,
2022 | ||||||
|
Industry |
| |
Investments
at
Fair
Value |
| |
Percentage
of
Fair
Value |
| |
Investments
at
Fair
Value |
| |
Percentage
of
Fair
Value |
|
Communications
Equipment |
| |
1 |
| |
—% |
| |
— |
| |
—% |
|
Biotechnology |
| |
1 |
| |
—% |
| |
1 |
| |
—% |
|
Technology |
| |
(313) |
| |
(0.14)% |
| |
(365) |
| |
(0.16)% |
|
Household
& Personal Products |
| |
— |
| |
—% |
| |
1 |
| |
—% |
|
Wireless
Telecommunications Services |
| |
— |
| |
—% |
| |
2,997 |
| |
1.33% |
|
Total |
| |
$226,939 |
| |
100.00% |
| |
$224,957 |
| |
100.00% |
Risk
Factors
Investment
in our securities involves a number of significant risks relating to our investments and our business and structure that you should consider
before investing in our securities.
Our
business is subject to a number of risks and uncertainties, including the following:
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• |
We face competition for
investment opportunities. Limited availability of attractive investment opportunities in the market could cause us to hold a larger percentage
of our assets in liquid securities until market conditions improve. |
|
• |
Our portfolio is limited
in the number of portfolio companies which may subject us to a risk of significant loss if one or more of these companies defaults on
its obligations under any of its debt instruments. |
|
• |
Our portfolio is concentrated
in a limited number of industries, which subjects us to a risk of significant loss if there is a downturn in a particular industry in
which a number of our investments are concentrated. |
|
• |
Defaults by our portfolio
companies may harm our operating results. |
|
• |
By investing in companies
that are experiencing significant financial or business difficulties, we are exposed to distressed lending risks. |
|
• |
Certain of the companies
we target may have difficulty accessing the capital markets to meet their future capital needs, which may limit their ability to grow
or to repay their outstanding indebtedness upon maturity. |
|
• |
Investing in middle market
companies involves a high degree of risk and our financial results may be affected adversely if one or more of our portfolio investments
defaults on its loans or notes or fails to perform as we expect. |
|
• |
An investment strategy that
includes privately held companies presents challenges, including the lack of available information about these companies, a dependence
on the talents and efforts of only a few key portfolio company personnel and a greater vulnerability to economic downturns. |
|
• |
Investments in foreign securities
may involve significant risks in addition to the risks inherent in U.S. investments. |
|
• |
Economic recessions or downturns
could impair our portfolio companies and harm our operating results. |
|
• |
Our failure to maintain
our status as a BDC would reduce our operating flexibility. |
|
• |
Regulations governing our
operations as a BDC affect our ability to raise additional capital and the way in which we do so. As a BDC, the necessity of raising additional
capital may expose us to risks, including the typical risks associated with leverage. |
|
• |
We will be subject to corporate
level U.S. federal income tax if we are unable to qualify as a RIC under the Code. |
|
• |
We may incur additional
debt, which could increase the risk in investing in our Company. |
3
|
• |
The failure in cyber security
systems, as well as the occurrence of events unanticipated in our disaster recovery systems and management continuity planning, could
impair our ability to conduct business effectively. |
|
• |
There are significant potential
conflicts of interest that could impact our investment returns. |
As
a BDC with less than $100 million in annual investment income, we are not subject to the auditor attestation requirements of Section
404 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”). Some investors may find our securities less attractive because
we are not subject to such auditor attestation requirement, which could lead to a less active and more volatile trading market for our
securities.
See
“Risk Factors” and the other information included in this prospectus for a discussion of factors you should carefully consider
before deciding to invest in our securities.
Conflicts
of Interest
Certain
of our executive officers and directors, and the members of the investment committee of GECM, serve or may serve as officers, directors
or principals of entities, including ICAM or funds managed by ICAM, that operate in the same or related lines of business as GECC or of
investment funds managed by our affiliates. Accordingly, they may have obligations to investors in those entities that may require them
to devote time to services for other entities, which could interfere with the time available to provide services to us. Further, we may
not be given the opportunity to participate in certain investments made by investment funds managed by advisers affiliated with GECM and
any advisers that may in the future become affiliated with GEG. Our participation in any negotiated co-investment opportunities (other
than those in which the only term negotiated is price) with investment funds managed by investment managers under common control with
GECM is subject to compliance with the Securities and Exchange Commission (the “SEC”) order dated May 12, 2020 (Release
No. 33864) (the “Exemptive Relief Order”). See “Risk Factors—There are significant potential conflicts of
interest that could impact our investment returns.”
Although
funds managed by GECM may have different primary investment objectives than us, they may from time to time invest in asset classes similar
to those we target. GECM is not restricted from raising an investment fund with investment objectives similar to ours. Any such funds
may also, from time to time, invest in asset classes similar to those we target. GECM will endeavor to allocate investment opportunities
in a fair and equitable manner, and in any event consistent with any duties owed to us and such other funds. Nevertheless, it is possible
that we may not be given the opportunity to participate in investments made by investment funds managed by investment managers affiliated
with GECM. We have received exemptive relief from the SEC that allows us to co-invest, together with other investment vehicles managed
by GECM, in specific investment opportunities in accordance with the terms of the Exemptive Relief Order.
We
pay management and incentive fees to GECM, and reimburse GECM for certain expenses it incurs. In addition, investors in our common stock
will invest on a gross basis and receive distributions on a net basis after expenses, resulting in, among other things, a lower rate of
return than one might achieve through direct investments. GECM’s management fee is based on a percentage of our total assets (other
than cash or cash equivalents but including assets purchased with borrowed funds and other forms of leverage) and GECM may have conflicts
of interest in connection with decisions that could affect our total assets, such as decisions as to whether to incur indebtedness.
The
part of the incentive fee payable by us that relates to our pre-incentive fee net investment income is computed and paid on income that
may include interest that is accrued but not yet received in cash. If a portfolio company defaults on a loan that is structured to provide
accrued interest, it is possible that accrued interest previously used in the calculation of the incentive fee will become uncollectible.
The
Investment Management Agreement renews for successive annual periods if approved by our Board or by the affirmative vote of the holders
of a majority of our outstanding voting securities, including, in either case, approval by a majority of our directors who are not interested
persons. However, we and GECM each have the right to terminate the agreement without penalty upon 60-days’ written notice to the
other party. Moreover, conflicts of interest may arise if GECM seeks to change the terms of the Investment Management Agreement,
4
including,
for example, the terms for compensation. Except in limited circumstances, any material change to the Investment Management Agreement must
be submitted to our stockholders for approval under the Investment Company Act, and we may from time to time decide it is appropriate
to seek stockholder approval to change the terms of the agreement.
As
a result of the arrangements described above, there may be times when our management team has interests that differ from those of our
stockholders, giving rise to a conflict.
Our
stockholders may have conflicting investment, tax and other objectives with respect to their investments in us. The conflicting interests
of individual stockholders may relate to or arise from, among other things, the nature of our investments, the structure or the acquisition
of our investments, and the timing of disposition of our investments. As a consequence, conflicts of interest may arise in connection
with decisions we make, including with respect to the nature or structuring of our investments, that may be more beneficial for one stockholder
than for another stockholder, especially with respect to stockholders’ individual tax situations. In selecting and structuring investments
appropriate for us, GECM will consider our investment and tax objectives and our stockholders, as a whole, not the investment, tax or
other objectives of any stockholder individually.
We
may also have conflicts of interest arising out of the investment advisory activities of GECM. GECM may in the future manage other investment
funds, accounts or investment vehicles that invest or may invest in assets eligible for purchase by us. To the extent that we compete
with entities managed by GECM or any of its affiliates for a particular investment opportunity, GECM will allocate investment opportunities
across the entities for which such opportunities are appropriate, consistent with (1) its internal investment allocation policies, (2)
the requirements of the Investment Advisers Act of 1940, as amended (the “Advisers Act”), and (3) restrictions under the Investment
Company Act regarding co-investments with affiliates, including the requirements of the Exemptive Relief Order.
Our
Corporate Information
Our
and GECM’s offices are located at 800 South Street, Suite 230, Waltham, Massachusetts 02453 and our phone number is (617) 375-3006.
We maintain a website located at http://www.greatelmcc.com. Information on our website is not incorporated into or a part of this prospectus.
Recent
Developments
Distributions
Our
board set distributions for the quarter ending June 30, 2023 at a rate of $0.35 per share. The full amount of each distribution will
be from distributable earnings. The schedule of distribution payments will be established by GECC pursuant to authority granted by our
Board. The distribution will be paid in cash.
5
FINANCIAL
HIGHLIGHTS
Information
regarding our financial highlights is incorporated by reference herein from our Annual Report on Form 10-K for the fiscal year ended December 31,
2022, filed on March 2, 2023, and our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2023, filed on
May 4, 2023.
6
THE
OFFERING
This
section outlines the specific legal and financial terms of the Notes. You should read this section together with the more general description
of the Notes under the heading “Description of the Notes” before investing in the Notes. Capitalized terms used in this prospectus
and not otherwise defined shall have the meanings ascribed to them in the indenture governing the Notes.
Issuer
Great
Elm Capital Corp.
Title
of the Securities
%
Notes due 2028
Initial
Aggregate Principal Amount Offered
$
Over-allotment
Option
The
underwriters may also purchase from us up to an additional $ aggregate principal amount of Notes within 30 days of
the date of this prospectus solely to cover over-allotments, if any.
Initial
Public Offering Price
%
of the aggregate principal amount of Notes.
Principal
Payable at Maturity
100%
of the aggregate principal amount; the principal amount of each Note will be payable on its stated maturity date at the office of the
Trustee, Paying Agent, and Security Registrar for the Notes or at such other office in New York, New York as we may designate.
Type
of Note
Fixed-rate
note
Interest
Rate
%
per year
Day
Count Basis
360-day
year of twelve 30-day months
Original
Issue Date
,
2023
Stated
Maturity Date
,
2028
Date
Interest Starts Accruing
,
2023
Interest
Payment Dates
Each
, , and , beginning ,
2023. If an interest payment date falls on a non-business day, the applicable interest payment will be made on the next business day and
no additional interest will accrue as a result of such delayed payment.
Interest
Periods
The
initial interest period will be the period from, and including, , 2023, to, but excluding, the initial interest payment
date, and the subsequent interest periods will be the periods from, and including, an interest payment date to, but excluding, the next
interest payment date or the stated maturity date, as the case may be.
Regular
Record Dates for Interest
Each
, , and , beginning ,
2023.
Specified
Currency
United
States Dollars
Place
of Payment
New
York, New York and/or such other places that may be specified in the indenture or a notice to holders.
7
Ranking
of Notes
The
Notes will be our direct unsecured obligations and will rank:
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• |
pari
passu, or equal, with our existing and future unsecured indebtedness, including, without limitation, the $45.6 million in
aggregate principal amount of 6.75% unsecured notes that mature on January 31, 2025 (the “GECCM Notes”), the $42.8 million
in aggregate principal amount of 6.50% unsecured notes that mature on June 30, 2024 (the “GECCN Notes”) and the $57.5 million
in aggregate principal amount of 5.875% unsecured notes that mature on June 30, 2026 (the “GECCO Notes”); |
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• |
effectively subordinated
to all of our existing and future secured indebtedness, including any amounts outstanding under the Loan, Guarantee and Security Agreement,
as amended (the “Loan Agreement”), with City National Bank (“CNB”) and any indebtedness that is initially unsecured
to which we subsequently grant security, to the extent of the value of the assets securing such indebtedness (as of March 31, 2023,
there were $5.0 million in borrowings outstanding under the Loan Agreement); |
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• |
structurally subordinated
to all existing and future indebtedness and other obligations of any of our subsidiaries; and |
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senior to any of our future
indebtedness that expressly provides it is subordinated to the Notes. |
Effective
subordination means that in any liquidation, dissolution, bankruptcy or other similar proceeding, the holders of any of our existing or
future secured indebtedness and the secured indebtedness of our subsidiaries may assert rights against the assets pledged to secure that
indebtedness in order to receive full payment of their indebtedness before the assets may be used to pay other creditors. Structural subordination
means that creditors of a parent entity are subordinate to creditors of a subsidiary entity with respect to the subsidiary’s assets.
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.
Listing
We
intend to list the Notes on Nasdaq within 30 days of the original issue date under the symbol “GECCZ.”
Denominations
We
will issue the Notes in denominations of $25 and integral multiples of $25 in excess thereof.
8
Business
Day
Each
Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in New York City are authorized or required
by law or executive order to close.
Optional
Redemption
The
Notes may be redeemed in whole or in part at any time or from time to time at our option on or after , 2025 upon
not less than 30 days’ nor more than 60 days’ written notice by mail prior to the date fixed for redemption thereof, at a
redemption price equal to 100% of the outstanding principal amount thereof plus accrued and unpaid interest payments otherwise payable
for the then-current quarterly interest period accrued to, but excluding, the date fixed for redemption.
You
may be prevented from exchanging or transferring the Notes when they are subject to redemption. In case any Notes are to be redeemed in
part only, the redemption notice will provide that, upon surrender of such Note, you will receive, without a charge, a new Note or Notes
of authorized denominations representing the principal amount of your remaining unredeemed Notes.
Any
exercise of our option to redeem the Notes will be done in compliance with the Investment Company Act to the extent applicable.
If
we redeem only some of the Notes, the Trustee or, with respect to global securities, The Depositary Trust Company (“DTC”)
will determine the method for selection of the particular Notes to be redeemed, in accordance with the indenture governing the Notes,
and in accordance with the rules of any national securities exchange or quotation system on which the Notes are listed, in such case,
to the extent applicable. Unless we default in payment of the redemption price, on and after the date of redemption, interest will cease
to accrue on the Notes called for redemption.
Sinking
Fund
The
Notes will not be subject to any sinking fund.
A
sinking fund is a fund established by us by periodically setting aside money for the gradual repayment of a debt. No amounts will be set
aside for the express purpose of repayment of principal and any unpaid interest on the Notes, and repayment of the Notes will depend upon
our financial condition as of the maturity date of the Notes.
Repayment
at Option of Holders
Holders
will not have the option to have the Notes repaid prior to the stated maturity date.
Defeasance
The
Notes are subject to defeasance by us.
“Defeasance”
means that, by depositing with a trustee an amount of cash and/or government securities sufficient to pay all principal and interest,
if any, on the Notes when due and satisfying any additional
9
conditions
required under the indenture relating to the Notes, we will be deemed to have been discharged from our obligations under the indenture
relating to the Notes. We are under no obligation to exercise any rights of defeasance.
Covenant
Defeasance
The
Notes are subject to covenant defeasance by us.
In
the event of a “covenant defeasance,” upon depositing such funds and satisfying conditions similar to those for defeasance,
we would be released from certain covenants under the indenture relating to the Notes. The consequences to the holders of the Notes would
be that, while they would no longer benefit from certain covenants under the indenture, and while the Notes could not be accelerated for
any reason, the holders of Notes nonetheless would be guaranteed to receive the principal and interest owed to them. We are under no obligation
to exercise any rights of covenant defeasance.
Form
of Notes
The
Notes will be represented by global securities that will be deposited and registered in the name of DTC or its nominee. This means that,
except in limited circumstances, you will not receive certificates for the Notes. Beneficial interests in the Notes will be represented
through book-entry accounts of financial institutions acting on behalf of beneficial owners as direct and indirect participants in DTC.
Investors may elect to hold interests in the Notes through either DTC, if they are a participant, or indirectly through organizations
that are participants in DTC. See “Description of the Notes—Book-Entry Procedures.”
Trustee,
Paying Agent, and Security Registrar
American
Stock Transfer & Trust Company, LLC
Events
of Default
You
will have rights if an Event of Default occurs with respect to the Notes and is not cured.
The
term “Event of Default” in respect of the Notes means any of the following:
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• |
We do not pay the principal
of any Note when due and payable. |
|
• |
We do not pay interest on
any Note when due, and such default is not cured within 30 days. |
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• |
We remain in breach of any
other covenant with respect to the Notes 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 Notes. |
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• |
We file for bankruptcy or
certain other events of bankruptcy, insolvency or reorganization occur |
10
and
in the case of certain orders or decrees entered against us under any bankruptcy law, such order or decree remains undischarged or unstayed
for a period of 90 days.
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• |
If, pursuant to Sections
18(a)(1)(c)(ii) and 61 of the Investment Company Act, or any successor provisions thereto of the Investment Company Act, on the last
business day of each of 24 consecutive calendar months, the Notes have an asset coverage (as such term is used in the Investment Company
Act) of less than 100%, as such obligation may be amended or superseded but giving effect to any exemptive relief that may be granted
to us by the SEC. |
Other
Covenants
In
addition to any covenants described elsewhere in this prospectus, the following covenants shall apply to the Notes:
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• |
We agree that for the period
of time during which the Notes are outstanding, we will not violate, whether or not we are subject to, Section 18(a)(1) (A) as modified
by Sections 61(a)(1) and (2) of the Investment Company Act or any successor provisions thereto of the Investment Company Act, as such
obligation may be amended or superseded but giving effect to any exemptive relief that may be granted to us by the SEC. Currently, these
provisions generally prohibit us from making additional borrowings, including through the issuance of additional debt securities, unless
our asset coverage, as defined in the Investment Company Act, equals at least 150% after such borrowings. See “Risk Factors—Risks
Relating to Indebtedness—Incurring additional indebtedness could increase the risk in investing in our Company.” |
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• |
We agree that for the period
of time during which the Notes are outstanding, we will not declare any dividend (except a dividend payable in our stock), or declare
any other distribution, upon a class of our capital stock, or purchase any such capital stock, unless, in every such case, at the time
of the declaration of any such dividend or distribution, or at the time of any such purchase, we have an asset coverage (as defined in
the Investment Company Act) of at least the threshold specified in pursuant to Section 18(a)(1)(B) as modified by Sections 61(a)(1) and
(2) of the Investment Company Act or any successor provisions thereto of the Investment Company Act, as such obligation may be amended
or superseded (regardless of whether we are subject thereto), after deducting the amount of such dividend, distribution or purchase price,
as the |
11
case
may be, and giving effect, in each case, (i) to any exemptive relief granted to us by the SEC and (ii) to any no-action relief
granted by the SEC to another BDC (or to us if we determine to seek such similar no-action or other relief) permitting the BDC to declare
any cash dividend or distribution notwithstanding the prohibition contained in Section 18(a)(1)(B) as modified by Sections 61(a)(1) and
(2) of the Investment Company Act, as such obligation may be amended or superseded, in order to maintain such BDC’s status as a
RIC under Subchapter M of the Code.
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• |
If, at any time, we are
not subject to the reporting requirements of Sections 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), to file any periodic reports with the SEC, we agree to furnish to holders of the Notes and the Trustee, for the period of
time during which the Notes are outstanding, our audited annual consolidated financial statements, within 90 days of our fiscal year end,
and unaudited interim consolidated financial statements, within 45 days of our fiscal quarter end (other than our fourth fiscal quarter).
All such financial statements will be prepared, in all material respects, in accordance with GAAP. |
Notwithstanding
the restrictions on indebtedness and dividends described above, the indenture under which the Notes will be issued may not prohibit us
from paying distributions to our stockholders if we incur indebtedness in excess of the limits set forth in Sections 61(a)(1) and (2)
of the Investment Company Act or any successor provision if we determine that such indebtedness, which may include indebtedness under
a bank credit facility, is not a “senior security” for purposes of determining asset coverage under the Investment Company
Act.
Further
Issuances
We
have the ability to issue additional debt securities under the indenture with terms different from the Notes and, without consent of the
holders thereof, to reopen the Notes and issue additional Notes. If we issue additional debt securities, these additional debt securities
could have a lien or other security interest that results in such debt securities being effectively senior to the Notes.
Global
Clearance and Settlement Procedures
Interests
in the Notes will trade in DTC’s Same Day Funds Settlement System, and any permitted secondary market trading activity in such Notes
will, therefore, be required by DTC to be settled in immediately available funds. None of GECC, the Trustee or the Paying Agent will have
any responsibility for the
12
performance
by DTC or its participants or indirect participants of their respective obligations under the rules and procedures governing their operations.
Use
of Proceeds
We
expect to use the net proceeds of this offering to redeem all of our outstanding $42.8 million aggregate principal amount of the
GECCN Notes, to pay related fees and expenses, and for general corporate purposes. We may also elect to (i) redeem a portion of our outstanding
$45.6 million aggregate principal amount of the GECCM Notes, (ii) redeem a portion of our outstanding $57.5 million aggregate principal amount of the GECCO Notes or (iii) repay all or a portion of the $5.0 million in borrowings outstanding under the Loan Agreement with proceeds of this offering. See “Use of Proceeds.”
13
RISK
FACTORS
Investing
in our securities involves a number of significant risks. Before you invest in the Notes, you should be aware of various risks, including
those described below. You should carefully consider these risk factors, together with all of the other information included in this prospectus,
before you decide whether to make an investment in the Notes. These are not the only risks we face. The risks described below, as well
as additional risks and uncertainties presently unknown by us or currently not deemed significant, could negatively affect our business,
financial condition and results of operations and the value of the Notes and our ability to perform our obligations under the Notes. Additional
risks and uncertainties not presently known to us or not presently deemed material by us may also impair our operations and performance.
If any of the following events occur, our business, financial condition, results of operations and cash flows could be materially and
adversely affected. In such case, our net asset value (“NAV”) and the trading price of our securities could decline, and you
may lose all or part of your investment.
Risk
Factors Related to the Notes and the Offering
The
Notes will be unsecured and therefore will be effectively subordinated to any secured indebtedness we have currently incurred or may incur
in the future.
The
Notes will not be secured by any of our assets or any of the assets of our subsidiaries. As a result, the Notes are effectively subordinated
to any secured indebtedness we or our subsidiaries have currently incurred or may incur in the future, including under the Loan Agreement,
and any indebtedness that is initially unsecured to which we subsequently grant security, to the extent of the value of the assets securing
such indebtedness. In any liquidation, dissolution, bankruptcy or other similar proceeding, the holders of any of our existing or future
secured indebtedness and the secured indebtedness of our subsidiaries may assert rights against the assets pledged to secure that indebtedness
in order to receive full payment of their indebtedness before the assets may be used to pay other creditors, including the holders of
the Notes. As of March 31, 2023, there were $5.0 million in borrowings outstanding under the Loan Agreement.
The
Notes will be structurally subordinated to the indebtedness and other liabilities of our subsidiaries.
The
Notes are obligations exclusively of GECC and not of any of our subsidiaries. None of our subsidiaries is a guarantor of the Notes and
the Notes are not required to be guaranteed by any subsidiary we may acquire or create in the future. Any assets of our subsidiaries will
not be directly available to satisfy the claims of our creditors, including holders of the Notes. Except to the extent we are a creditor
with recognized claims against our subsidiaries, all claims of creditors of our subsidiaries will have priority over our equity interests
in such subsidiaries (and therefore the claims of our creditors, including holders of the Notes) with respect to the assets of such subsidiaries.
Even if we are recognized as a creditor of one or more of our subsidiaries, our claims would still be effectively subordinated to any
security interests in the assets of any such subsidiary and to any indebtedness or other liabilities of any such subsidiary senior to
our claims. Consequently, the Notes will be structurally subordinated to all indebtedness and other liabilities of any of our subsidiaries
and any subsidiaries that we may in the future acquire or establish. Although our subsidiaries currently do not have any indebtedness
outstanding, they may incur substantial indebtedness in the future, all of which would be structurally senior to the Notes.
The
indenture under which the Notes will be issued contains limited protection for holders of the Notes.
The
indenture under which the Notes will be issued offers limited protection to holders of the Notes. The terms of the indenture and the Notes
do not restrict our or any of our subsidiaries’ ability to engage in, or otherwise be a party to, a variety of corporate transactions,
circumstances or events that could have an adverse impact on your investment in the Notes. The indenture and the Notes will not place
any restrictions on our or our subsidiaries’ ability to:
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• |
issue securities or otherwise
incur additional indebtedness or other obligations, including (1) any indebtedness or other obligations that would be equal in right of
payment to the Notes, (2) any indebtedness or other obligations that would be secured and therefore rank effectively senior in right of
payment to the Notes to the extent of the values of the assets securing such debt, (3) indebtedness of ours that is guaranteed by one
or more of our subsidiaries and which therefore is structurally senior to the Notes and (4) securities, indebtedness or obligations issued
or incurred by our subsidiaries that |
14
would
be senior to our equity interests in our subsidiaries and therefore rank structurally senior to the Notes with respect to the assets of
our subsidiaries, in each case other than an incurrence of indebtedness or other obligation that would cause a violation of Section 18(a)(1)(A)
as modified by Sections 61(a)(1) and (2) of the Investment Company Act or any successor provisions;
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• |
pay dividends on, or purchase
or redeem or make any payments in respect of, capital stock or other securities ranking junior in right of payment to the Notes, except
that we have agreed that for the period of time during which the Notes are outstanding, we will not declare any dividend (except a dividend
payable in our stock), or declare any other distribution, upon a class of our capital stock, or purchase any such capital stock, unless,
in every such case, at the time of the declaration of any such dividend or distribution, or at the time of any such purchase, we have
an asset coverage (as defined in the Investment Company Act) of at least the threshold specified in pursuant to Section 18(a)(1)(B)
as modified by Sections 61(a)(1) and (2) of the Investment Company Act or any successor provisions thereto of the Investment Company Act,
as such obligation may be amended or superseded (regardless of whether we are subject thereto), after deducting the amount of such dividend,
distribution or purchase price, as the case may be, and giving effect, in each case, (i) to any exemptive relief granted to us by
the SEC and (ii) to any no-action relief granted by the SEC to another BDC (or to us if we determine to seek such similar no-action
or other relief) permitting the BDC to declare any cash dividend or distribution notwithstanding the prohibition contained in Section
18(a)(1)(B) as modified by Sections 61(a)(1) and (2) of the Investment Company Act, as such obligation may be amended or superseded, in
order to maintain such BDC’s status as a RIC under Subchapter M of the Code; |
|
• |
sell assets (other than
certain limited restrictions on our ability to consolidate, merge or sell all or substantially all of our assets); |
|
• |
enter into transactions
with affiliates; |
|
• |
create liens (including
liens on the stock of our subsidiaries) or enter into sale and leaseback transactions; |
|
• |
make investments; or |
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• |
create restrictions on the
payment of dividends or other amounts to us from our subsidiaries. |
Notwithstanding
the restrictions on indebtedness and dividends described above, the indenture under which the Notes will be issued may not prohibit us
from paying distributions to our stockholders if we incur indebtedness in excess of the limits set forth in Sections 61(a)(1) and (2)
of the Investment Company Act or any successor provision if we determine that such indebtedness, which may include indebtedness under
a bank credit facility, is not a “senior security” for purposes of determining asset coverage under the Investment Company
Act.
In
addition, the indenture will not require us to offer to purchase the Notes in connection with a change of control or any other event.
Furthermore,
the terms of the indenture and the Notes do not protect holders of the Notes if we experience changes (including significant adverse changes)
in our financial condition, results of operations or credit ratings, as they do not require that we or our subsidiaries adhere to any
financial tests or ratios or specified levels of net worth, revenues, income, cash flow, or liquidity other than as described under “Description
of the Notes—Events of Default.” Any such changes could affect the terms of the Notes.
Our
ability to recapitalize, incur additional debt and take a number of other actions that are not limited by the terms of the Notes may have
important consequences for you as a holder of the Notes, including making it more difficult for us to satisfy our obligations with respect
to the Notes or negatively affecting the trading value of the Notes.
Other
debt we issue or incur in the future could contain more protections for its holders than the indenture and the Notes, including additional
covenants and events of default. The indenture under which the Notes will be issued does not contain cross-default provisions. The issuance
or incurrence of any such debt with incremental protections could affect the market for and trading levels and prices of the Notes.
15
An
active trading market for the Notes may not develop, which could limit the market price of the Notes or your ability to sell them.
The
Notes are a new issue of debt securities for which there currently is no trading market. We intend to list the Notes on Nasdaq within
30 days of the original issue date under the symbol “GECCZ.” We cannot assure you that the Notes will be listed or that
an active trading market will develop for the Notes or that you will be able to sell your Notes. If the Notes are traded after their initial
issuance, they may trade at a discount from their initial offering price depending on prevailing interest rates, the market for similar
securities, our credit ratings, general economic conditions, our financial condition, performance and prospects and other factors. Certain
of the underwriters have advised us that they intend to make a market in the Notes, but they are not obligated to do so. Such underwriters
may discontinue any market-making in the Notes at any time at their sole discretion. Accordingly, we cannot assure you that a liquid trading
market will develop for the Notes, that you will be able to sell your Notes at a particular time or that the price you receive when you
sell will be favorable. To the extent an active trading market does not develop, the liquidity and trading price for the Notes may be
harmed. Accordingly, you may be required to bear the financial risk of an investment in the Notes for an indefinite period of time.
If
we default on our obligations to pay our other indebtedness, we may not be able to make payments on the Notes.
Any
default under the agreements governing our indebtedness, including our current indebtedness, which is composed of the GECCM Notes, the
GECCN Notes, the GECCO Notes and borrowings under the Loan Agreement, and any future indebtedness under the Loan Agreement or other agreements
to which we may be a party, that is not waived by the required lenders, and the remedies sought by the holders of such indebtedness could
make us unable to pay principal, premium, if any, and interest on the Notes and substantially decrease the market value of the Notes.
If we are unable to generate sufficient cash flow and are otherwise unable to obtain funds necessary to meet required payments of principal,
premium, if any, and interest on our indebtedness, or if we otherwise fail to comply with the various covenants, including financial and
operating covenants, in the instruments governing our indebtedness, we could be in default under the terms of the agreements governing
such indebtedness. In the event of such default, the holders of such indebtedness could elect to declare all the funds borrowed thereunder
to be due and payable, together with accrued and unpaid interest, the lenders under other debt we may incur in the future could elect
to terminate their commitments, cease making further loans and institute foreclosure proceedings against our assets, and we could be forced
into bankruptcy or liquidation. If our operating performance declines, we may in the future need to seek to obtain waivers from the required
lenders under other debt that we may incur in the future to avoid being in default. If we breach our covenants under other debt and seek
a waiver, we may not be able to obtain a waiver from the required lenders. If this occurs, we would be in default under the other debt,
the lenders could exercise their rights as described above, and we could be forced into bankruptcy or liquidation. If we are unable to
repay debt, lenders having secured obligations could proceed against the collateral securing the debt. Because any future credit facilities
would likely have customary cross-default provisions, if we have a default under the terms of the Notes, the obligations under any future
credit facility may be accelerated and we may be unable to repay or finance the amounts due.
We
may be subject to certain corporate-level taxes which could adversely affect our cash flow and consequently adversely affect our ability
to make payments on the Notes.
We
currently are a RIC under Subchapter M of the Code for U.S. federal income tax purposes and intend to continue to qualify each year as
a RIC. In order to qualify for tax treatment as a RIC, we generally must satisfy certain source-of-income, asset diversification and distribution
requirements. As long as we so qualify, we will not be subject to U.S. federal income tax to the extent that we distribute investment
company taxable income and net capital gain on a timely basis.
We
may, nonetheless, be subject to certain corporate-level taxes regardless of whether we continue to qualify as a RIC. Additionally, should
we fail to qualify as a RIC, we would be subject to corporate-level taxes on all of our taxable income. The imposition of corporate-level
taxes could adversely affect our cash flow and consequently adversely affect our ability to make payments on the Notes.
16
A
downgrade, suspension or withdrawal of the credit rating assigned by a rating agency to us or our securities, if any, could cause the
liquidity or market value of the Notes to decline significantly.
Our
credit ratings are an assessment by rating agencies of our ability to pay our debts when due. Consequently, real or anticipated changes
in our credit ratings will generally affect the market value of the Notes. These credit ratings may not reflect the potential impact of
risks relating to the structure or marketing of the Notes. Credit ratings are not a recommendation to buy, sell or hold any security,
and may be revised or withdrawn at any time by the issuing organization in its sole discretion. Neither we nor any underwriter undertakes
any obligation to maintain our credit ratings or to advise holders of Notes of any changes in our credit ratings. Private rating agencies
may rate the Notes. An explanation of the significance of ratings may be obtained from any such rating agency. Generally, rating agencies
base their ratings on such material and information, and such of their own investigations, studies and assumptions, as they deem appropriate.
Neither we nor any underwriter undertakes any obligation to maintain our credit ratings or to advise holders of Notes of any changes in
our credit ratings. There can be no assurance that our credit ratings will remain for any given period of time or that such credit ratings
will not be lowered or withdrawn entirely by the rating agency if in their judgment future circumstances relating to the basis of the
credit ratings, such as adverse changes in our company, so warrant.
The
optional redemption provision may materially adversely affect your return on the Notes.
The
Notes are redeemable in whole or in part upon certain conditions at any time or from time to time at our option on or after ,
2025. We may choose to redeem the Notes at times when prevailing interest rates are lower than the interest rate paid on the Notes. In
this circumstance, you may not be able to reinvest the redemption proceeds in a comparable security at an effective interest rate as high
as the Notes being redeemed.
Our
redemption right also may adversely impact your ability to sell the Notes as the optional redemption date or period approaches.
Risks
Relating to Our Investments
Our
portfolio companies may experience financial distress and our investments in such companies may be restructured.
Our
portfolio companies may experience financial distress from time to time. Debt investments in such companies may cease to be income-producing,
may require us to bear certain expenses to protect our investment and may subject us to uncertainty as to when, in what manner and for
what value such distressed debt will eventually be satisfied, including through liquidation, reorganization or bankruptcy. Any restructuring
can fundamentally alter the nature of the related investment, and restructurings may not be subject to the same underwriting standards
that GECM employs in connection with the origination of an investment. In addition, we may write-down the value of our investment in any
such company to reflect the status of financial distress and future prospects of the business. Any restructuring could alter, reduce or
delay the payment of interest or principal on any investment, which could delay the timing and reduce the amount of payments made to us.
For example, if an exchange offer is made or plan of reorganization is adopted with respect to the debt securities we currently hold,
there can be no assurance that the securities or other assets received by us in connection with such exchange offer or plan of reorganization
will have a value or income potential similar to what we anticipated when our original investment was made or even at the time of restructuring.
Restructurings of investments might also result in extensions of the term thereof, which could delay the timing of payments made to us,
or we may receive equity securities, which may require significantly more of our management’s time and attention or carry restrictions
on their disposition.
As
an example, during the year ended December 31, 2022, we wrote down the value of our investments in Avanti Communications Group plc
(“Avanti Communications”) and our net realized losses on investments were primarily driven by the April 2022 restructuring
of Avanti Communications on which we realized approximately $111 million of previously recognized unrealized losses. We cannot assure
you that we will not have to restructure any of our other investments, or that any particular restructuring strategy will recover value
equal to our original investment cost.
17
We
face increasing competition for investment opportunities. Limited availability of attractive investment opportunities in the market could
cause us to hold a larger percentage of our assets in liquid securities until market conditions improve.
We
compete for investments with other BDCs and investment funds (including specialty finance companies, private equity funds, mezzanine funds
and small business investment companies), as well as traditional financial services companies such as commercial banks and other sources
of funding. Many of our competitors are substantially larger and have considerably greater financial, technical and marketing resources
than we do. For example, some competitors have a lower cost of capital and access to funding sources that are not available to us, including
from the Small Business Administration. In addition, increased competition for attractive investment opportunities allows debtors to demand
more favorable terms and offer fewer contractual protections to creditors. Some of our competitors have higher risk tolerances or different
risk assessments than we do. These characteristics could allow our competitors to consider a wider variety of investments, establish more
relationships and offer better pricing and more flexible structuring than we are able to offer. We may lose investment opportunities if
we do not match our competitors’ pricing, terms and structure. If we are forced to match our competitors’ pricing, terms and
structure, we may not be able to achieve acceptable returns on our investments or may bear substantial risk of capital loss. A significant
part of our competitive advantage stems from the fact that the market for investments in lower middle-market companies is underserved
by traditional commercial banks and other financing sources. A significant increase in the number and/or the size of our competitors in
this target market would force us to accept less attractive investment terms. GECM may, at its discretion, decide to pursue such opportunities
if it believes that they are in our best interest; however, GECM may decline to pursue available investment opportunities that, although
otherwise consistent with our investment policies and objectives, in GECM’s view present unacceptable risk/return profiles. Under
such circumstances, we may hold a larger percentage of our assets in liquid securities until market conditions improve in order to avoid
having assets remain uninvested. Furthermore, many of our competitors have greater experience operating under, or are not subject to,
the regulatory restrictions that the Investment Company Act imposes on us as a BDC. We believe that competitors will make first and second
lien loans with interest rates and returns that are lower than the rates and returns that we target. Therefore, we do not seek to compete
solely on the interest rates and returns offered to prospective portfolio companies.
We
are invested in a limited number of portfolio companies which may subject us to a risk of significant loss if one or more of these companies
defaults on its obligations under any of its debt instruments.
Our
portfolio is likely to hold a limited number of portfolio companies. Beyond the asset diversification requirements associated with qualifying
as a RIC, we do not have fixed guidelines for diversification, and our investments are likely to be concentrated in relatively few companies.
As our portfolio is less diversified than the portfolios of some funds, we are more susceptible to failure if a single investment fails.
Similarly, the aggregate returns we realize may be significantly adversely affected if a small number of investments perform poorly or
if we need to write down the value of any one investment.
Our
portfolio is subject to change over time and may be concentrated in a limited number of industries, which subjects us to a risk of significant
loss if there is a downturn in a particular industry in which a number of our investments are concentrated.
Our
portfolio is likely to be concentrated in a limited number of industries. A downturn in any particular industry in which we are invested
could significantly impact our aggregate realized returns.
In
addition, we may from time to time invest a relatively significant percentage of our portfolio in industries in which GECM does not necessarily
have extensive historical research coverage. If an industry in which we have significant investments suffers from adverse business or
economic conditions, as these industries have to varying degrees, a material portion of our investment portfolio could be affected adversely,
which, in turn, could adversely affect our financial position and results of operations.
Any
unrealized losses we experience in our portfolio may be an indication of future realized losses, which could reduce our income available
for distribution.
As
a BDC, we are required to carry our investments at fair value as determined in good faith by our Board. Decreases in the fair values of
our investments are recorded as unrealized depreciation. Any unrealized losses in our portfolio could be an indication of a portfolio
company’s inability to meet its repayment obligations to us with
respect to the affected investments. This could result in realized losses in the future and ultimately in reductions of our income available
for distribution in future periods.
18
Prepayments
of our debt investments by our portfolio companies could adversely impact our results of operations and reduce our returns on equity.
We
are subject to the risk that investments intended to be held over long periods are, instead, repaid prior to maturity. When this occurs,
we will generally reinvest these proceeds in temporary investments, repay debt or repurchase our common stock, depending on expected future
investment opportunities. These temporary investments will typically have substantially lower yields than the debt being prepaid and we
could experience significant delays in reinvesting these amounts. Any future investment may also be at lower yields than the debt that
was repaid. As a result, our results of operations could be materially adversely affected if one or more of our portfolio companies elects
to prepay amounts owed by them.
We
are not in a position to exercise control over certain of our portfolio companies or to prevent decisions by management of such portfolio
companies that could decrease the value of our investments.
We
generally do not hold controlling equity positions in our portfolio companies. As a result, we are subject to the risk that a portfolio
company may make business decisions with which we disagree, and that the management and/or stockholders of a portfolio company may take
risks or otherwise act in ways that are adverse to our interests. Due to the lack of liquidity of the debt and equity investments that
we hold in certain of our portfolio companies, we may not be able to dispose of such investments if we disagree with the actions of a
portfolio company and may therefore suffer a decrease in the value of such investments.
We
have made, and in the future intend to pursue additional, investments in specialty finance businesses, which may require reliance on the
management teams of such businesses.
We
have made, and may make additional, investments in companies and operating platforms that originate and/or service commercial specialty
finance businesses, including factoring, equipment finance, inventory leasing, merchant cash advance and hard money real estate lending
and may also invest directly (including via participation) in the investments made by such businesses. The form of investment may vary
and may require reliance on management teams to provide the resources necessary to originate new receivables, manage portfolios of performing
receivables, and work-out portfolios of stressed or non-performing receivables.
Defaults
by our portfolio companies may harm our operating results.
A
portfolio company’s failure to satisfy financial or operating covenants imposed by us or other lenders could lead to defaults and,
potentially, termination of our investments and foreclosure on our secured assets, which could trigger cross-defaults under other agreements
and jeopardize a portfolio company’s ability to meet its obligations under the debt or equity securities that we hold. We may incur
expenses to the extent necessary to seek recovery upon default or to negotiate new terms, which may include the waiver of financial covenants,
with a defaulting portfolio company. If any of these occur, it could materially and adversely affect our operating results and cash flows.
If
we invest in companies that experience significant financial or business difficulties, we may be exposed to certain distressed lending
risks.
As
part of our lending activities, we may purchase notes or loans from companies that are experiencing significant financial or business
difficulties, including companies involved in bankruptcy or other reorganization and liquidation proceedings. Although the terms of such
financing may result in significant financial returns to us, they involve a substantial degree of risk. The level of analytical sophistication,
both financial and legal, necessary for successful financing to companies experiencing significant business and financial difficulties
is unusually high. We cannot assure you that we will correctly evaluate the value of the assets collateralizing our investments or the
prospects for a successful reorganization or similar action. In any reorganization or liquidation proceeding relating to a portfolio company,
we may lose all or part of the amounts advanced to the borrower or may be required to accept collateral with a value less than the amount
of the investment advanced by us to the borrower.
19
Certain
of the companies in which we invest may have difficulty accessing the capital markets to meet their future capital needs, which may limit
their ability to grow or to repay their outstanding indebtedness upon maturity.
Senior
Secured Loans and Notes. There is a risk that the collateral securing our loans and notes may decrease
in value over time, may be difficult to sell in a timely manner, may be difficult to appraise
and may fluctuate in value based upon the success of the business and market conditions, including
as a result of the inability of the portfolio company to raise additional capital, and, in some
circumstances, our lien could be subordinated to claims of other creditors. In addition, deterioration
in a portfolio company’s financial condition and prospects, including its inability to
raise additional capital, may be accompanied by deterioration in the value of the collateral
for the loan or note. Consequently, the fact that a loan or note is secured does not guarantee that we will
receive principal and interest payments according to the loan’s or note’s terms, or at all, or that we will be able
to collect on the loan or note should we be forced to enforce our remedies.
Mezzanine
Loans. Our mezzanine debt investments will be generally subordinated to senior loans and will be generally
unsecured. As such, other creditors may rank senior to us in the event of an insolvency, which could likely
result in a substantial or complete loss on such investment in the case of such insolvency. This may result in
an above average amount of risk and loss of principal.
Unsecured
Loans and Notes. We may invest in unsecured loans and notes. If the issuer defaults or has an event
of insolvency, other creditors may rank senior, be structurally senior or have lien protection
that effectively renders their claim superior to our rights under our unsecured notes or loans,
which could likely result in a substantial or complete loss on such investment in the case of
such insolvency. This may result in an above average amount of risk and loss of principal.
Unfunded
Commitments. From time to time, we purchase revolving credit loans with unfunded commitments in the
ordinary course of business. In the event multiple borrowers of such revolving credit loans were to draw these
commitments at the same time, including during a market downturn, it could have an adverse impact on our
cash reserves and liquidity position at a time when it may be more difficult for us to sell other assets.
Equity
Investments. When we invest in senior secured loans or mezzanine loans, we may acquire equity securities,
including warrants, as well. In addition, we may invest directly in the equity securities of portfolio companies.
The equity interests we receive may not appreciate in value and, in fact, may decline in value. Accordingly,
we may not be able to realize gains from our equity interests, and any gains that we realize on the disposition
of any equity interests may not be sufficient to offset any other losses we experience.
In
addition, investing in middle-market companies involves a number of significant risks, including:
|
• |
these companies may have
limited financial resources and may be unable to meet their obligations under their debt securities that we hold, which may be accompanied
by a deterioration in the value of any collateral and a reduction in the likelihood of us realizing any guarantees we may have obtained
in connection with our investment; |
|
• |
they typically have shorter
operating histories, narrower product lines and smaller market shares than larger businesses, which tend to render them more vulnerable
to competitors’ actions and market conditions, as well as general economic downturns; |
|
• |
they are more likely to
depend on the management talents and efforts of a small group of persons; therefore, the death, disability, resignation or termination
of one or more of these persons could have a material adverse impact on our portfolio company and, in turn, on you; |
|
• |
they generally have less
predictable operating results, may from time to time be parties to litigation, may be engaged in rapidly changing businesses with products
subject to a substantial risk of obsolescence, and may require substantial additional capital to support their operations, finance expansion
or maintain their competitive position. In addition, our executive officers, directors and GECM may be named as defendants in litigation
arising from our investments in the portfolio companies; |
|
• |
they may have difficulty
accessing the capital markets to meet future capital needs, which may limit their ability to grow or to repay their outstanding indebtedness
upon maturity; and |
20
|
• |
a portion of our income
may be non-cash income, such as contractual PIK interest, which represents interest added to the debt balance and due at the end of the
instrument’s term, in the case of loans, or issued as additional notes in the case of bonds. Instruments bearing PIK interest typically
carry higher interest rates as a result of their payment deferral and increased credit risk. When we recognize income in connection with
PIK interest, there is a risk that such income may become uncollectable if the borrower defaults. |
Investing
in middle-market companies involves a high degree of risk and our financial results may be affected adversely if one or more of our portfolio
investments defaults on its loans or notes or fails to perform as we expect.
A
portion of our portfolio consists of debt and equity investments in privately owned middle-market companies. Investing in middle-market
companies involves a number of significant risks. Compared to larger publicly owned companies, these middle-market companies may be in
a weaker financial position and experience wider variations in their operating results, which may make them more vulnerable to economic
downturns and other business disruptions. Typically, these companies need more capital to compete; however, their access to capital is
limited and their cost of capital is often higher than that of their competitors. Our portfolio companies face intense competition from
larger companies with greater financial, technical and marketing resources and their success typically depends on the managerial talents
and efforts of an individual or a small group of persons.
Therefore,
the loss of any of their key employees, as well as increased competition in the labor market, could affect a portfolio company’s
ability to compete effectively and harm its financial condition. Further, some of these companies conduct business in regulated industries
that are susceptible to regulatory changes. These factors could impair the cash flow of our portfolio companies and result in other events,
such as bankruptcy. These events could limit a portfolio company’s ability to repay its obligations to us. Deterioration in a borrower’s
financial condition and prospects may be accompanied by deterioration in the value of the loan’s collateral and the fair market
value of the loan. Most of the loans in which we invest are not structured to fully amortize during their lifetime. In order to create
liquidity to pay the final principal payment, borrowers typically must raise additional capital or sell their assets, which could potentially
result in the collateral being sold for less than its fair market value. If they are unable to raise sufficient funds to repay us, the
loan will go into default, which will require us to foreclose on the borrower’s assets, even if the loan was otherwise performing
prior to maturity. This will deprive us from immediately obtaining full recovery on the loan and prevent or delay the reinvestment of
the loan proceeds in other, more profitable investments. Moreover, there are no assurances that any recovery on such loan will be obtained.
Most of these companies cannot obtain financing from public capital markets or from traditional credit sources, such as commercial banks.
Accordingly, loans made to these types of companies pose a higher default risk than loans made to companies that have access to traditional
credit sources.
An
investment strategy that includes privately held companies presents challenges, including the lack of available information about these
companies, a dependence on the talents and efforts of only a few key portfolio company personnel and a greater vulnerability to economic
downturns.
We
invest in privately held companies. Generally, little public information exists about these companies, and we are required to rely on
GECM’s or our specialty finance partners’ ability to obtain adequate information to evaluate the potential returns from investing
in these companies. If we are unable to uncover all material information about these companies, we may not make a fully informed investment
decision, and may lose money on our investments. Also, privately held companies frequently have less diverse product lines and smaller
market presence than larger competitors. These factors could adversely affect our investment returns as compared to companies investing
primarily in the securities of public companies.
We
are exposed to risks relating to our specialty finance products.
There is no guarantee that our controls to monitor and detect fraud with respect to our specialty finance business will be effective and, as a result, we could face
exposure to the credit risk associated with such products. With respect to our asset-based loans, we generally limit our lending to a
percentage of the customer’s borrowing base assets that we believe can be readily liquidated in the event of financial distress of the
borrower. With respect to our factoring products, we purchase the underlying invoices of our customers and become the direct payee under
such invoices, thus transferring the credit risk in such transactions from our customers to the underlying account debtors on such invoices.
In the event one or more of our customers fraudulently represents the existence or valuation of borrowing base assets in the case of an
asset-based loan, or the existence or validity of an invoice we purchase in the case of a factoring transaction, we may advance more funds
to such customer than we otherwise would and lose the benefit of the structural protections of our products with respect to such advances.
In such event we could be exposed to material additional losses with respect to such loans or factoring products.
21
Our
portfolio companies may incur debt that ranks equally with, or senior to, our investments in such companies.
Our
portfolio companies may have, or may be permitted to incur, other debt that ranks equally with, or in some cases senior to, the debt in
which we invest. By their terms, such debt instruments may entitle the holders to receive payment of interest or principal on or before
the dates on which we are entitled to receive payments with respect to the debt instruments in which we invested. Also, in insolvency,
liquidation, dissolution, reorganization or bankruptcy of a portfolio company, holders of debt instruments ranking senior to our investment
in that portfolio company would typically be entitled to receive payment in full before we receive any distribution. After repaying such
senior creditors, such portfolio company may not have any remaining assets to use for repaying its obligation to us. In the case of debt
ranking equally with debt instruments in which we invest, we would have to share on an equal basis any distributions with other creditors
holding such debt in the event of an insolvency, liquidation, dissolution, reorganization or bankruptcy of the relevant portfolio company.
There
may be circumstances where our debt investments could be subordinated to claims of other creditors or we could be subject to lender liability
claims.
Even
though we may have structured investments as secured investments, if one of our portfolio companies were to go bankrupt, depending on
the facts and circumstances, and based upon principles of equitable subordination as defined by existing case law, a bankruptcy court
could subordinate all or a portion of our claim to that of other creditors and transfer any lien securing such subordinated claim to the
bankruptcy estate. The principles of equitable subordination defined by case law have generally indicated that a claim may be subordinated
only if its holder is guilty of misconduct or where the senior investment is re-characterized as an equity investment and the senior lender
has actually provided significant managerial assistance to the bankrupt debtor. We may also be subject to lender liability claims for
actions taken by us with respect to a borrower’s business or instances where we exercise control over the borrower. It is possible
that we could become subject to a lender’s liability claim, including as a result of actions taken in rendering managerial assistance
or actions to compel and collect payments from the borrower outside the ordinary course of business. To the extent GECC provides significant
managerial assistance to the portfolio companies, this risk is exacerbated.
Second
priority liens on collateral securing loans and notes that we invest in may be subject to control by senior creditors with first priority
liens. If there is a default, the value of the collateral may not be sufficient to repay in full both the first priority creditors and
us.
We
may purchase loans or notes that are secured by a second priority security interest in the same collateral pledged by a portfolio company
to secure senior debt owed by the portfolio company to commercial banks or other traditional lenders. Often the senior lender has procured
covenants from the portfolio company prohibiting the incurrence of additional secured debt without the senior lender’s consent.
Prior to and as a condition of permitting the portfolio company to borrow money from us secured by the same collateral pledged to the
senior lender, the senior lender will require assurances that it will control the disposition of any collateral in the event of bankruptcy
or other default. In many such cases, the senior lender will require us or the indenture trustee to enter into an “intercreditor
agreement” prior to permitting the portfolio company to borrow. Typically the intercreditor agreements expressly subordinate our
second lien debt instruments to those held by the senior lender and further provide that the senior lender shall control: (1) the commencement
of foreclosure or other proceedings to liquidate and collect on the collateral; (2) the nature, timing and conduct of foreclosure or other
collection proceedings; (3) the amendment of any collateral document; (4) the release of the security interests in respect of any collateral;
and (5) the waiver of defaults under any security agreement. Because of the control we may cede to senior lenders under intercreditor
agreements we may enter, we may be unable to realize the proceeds of any collateral securing some of our loans and notes.
22
The
reference rates for our loans may be manipulated or changed.
Actions
by market participants or by government agencies, including central banks, may affect prevailing interest rates and the reference rates
for loans to our portfolio companies. Actions by governments may create inflation in asset prices that over-state the value of our portfolio
companies and their assets and drive cycles of capital market activities (like mergers and acquisitions) at a rate and at prices in excess
of those that would prevail in an unaffected market.
We
cannot assure you that actions by market participants or by government agencies will not materially adversely affect trading markets or
our portfolio companies or us or our and our portfolio companies’ respective business, prospects, financial condition or results
of operations.
The
discontinuation of the London Interbank Offered Rate (“LIBOR”) may adversely affect the value of the LIBOR-indexed, floating
rate debt securities in our portfolio or the cost of our borrowings.
National
and international regulators and law enforcement agencies have conducted investigations into a number of rates or indices that are deemed
to be “reference rates.” Actions by such regulators and law enforcement agencies may result in changes to the manner in which
certain reference rates are determined, their discontinuance, or the establishment of alternative reference rates. In particular, on July 27,
2017, the Chief Executive of the U.K. Financial Conduct Authority (the “FCA”), which regulates LIBOR, announced that the FCA
will no longer persuade or compel banks to submit rates for the calculation of LIBOR after 2021. As of the date of this prospectus, USD
LIBOR is available in five settings (overnight, one-month, three-month, six-month and 12-month). The ICE Benchmark Administration (“IBA”)
has stated that it will cease to publish all remaining USD LIBOR settings immediately following their publication on June 30, 2023,
absent subsequent action by the relevant authorities. There can be no assurance that non USD synthetic LIBOR or USD LIBOR will remain
available in the future.
The
U.S. Federal Reserve, in conjunction with the Alternative Reference Rates Committee (the “ARRC”), a steering committee
comprised of large U.S. financial institutions, has identified the Secured Overnight Financing Rate (“SOFR”) as its preferred
alternative rate for LIBOR. On December 6, 2021, the ARRC released a statement selecting and recommending forms of SOFR, along with
associated spread adjustments and conforming changes, to replace references to 1-week and 2-month USD LIBOR. We expect that a substantial
portion of our future floating rate investments will be linked to SOFR. At this time, it is not possible to predict the effect of the
transition to SOFR. Although there have been an increasing number of issuances utilizing SOFR or the Sterling Over Night Index Average
(the GBP-LIBOR nominated replacement alternative reference rate that is based on transactions), it is unknown whether SOFR or any other
alternative reference rates will attain market acceptance as replacements for LIBOR.
Given
the inherent differences between LIBOR and SOFR, or any other alternative reference rates that may be established, the transition from
LIBOR may disrupt the overall financial markets and adversely affect the market for LIBOR-based securities, including our portfolio of
LIBOR-indexed, floating rate debt securities, or the cost of our borrowings. In addition, changes or reforms to the determination or supervision
of LIBOR may result in a sudden or prolonged increase or decrease in reported LIBOR, which could have an adverse impact on the market
for LIBOR-based securities, including the value and/or transferability of the LIBOR-indexed, floating rate debt securities in our portfolio,
or the cost of our borrowings. Additionally, if as currently expected LIBOR ceases to exist, we may need to renegotiate the credit agreements
extending beyond June 30, 2023, with our credit facility lenders and our portfolio companies that utilize LIBOR as a factor in determining
the interest rate to replace LIBOR with SOFR or other alternative reference rates, which could require us to incur significant time and
expense and may subject us to disputes or litigation over the appropriateness or comparability to the relevant replacement reference index.
The transition from LIBOR to SOFR or other alternative reference rates may also introduce operational risks in our accounting, financial
reporting, loan servicing, liability management and other aspects of our business. We are in the process of transitioning our investments
and our borrowings from LIBOR to SOFR and we do not expect that the transition will have a material impact on our business, financial
condition or results of operations.
We
may mismatch the interest rate and maturity exposure of our assets and liabilities.
Our
net investment income depends, in part, upon the difference between the rate at which we borrow funds and the rate at which we invest
those funds. We cannot assure you that a significant change in market interest rates will not have a material adverse effect on our net
investment income. In periods of rising interest rates, our cost
23
of
funds could increase, which could reduce our net investment income. Typically, our fixed-rate investments are financed primarily with
equity and/or long-term debt. We may use interest rate risk management techniques in an effort to limit our exposure to interest rate
fluctuations. Such techniques may include various interest rate hedging activities to the extent permitted by the Investment Company Act.
If we do not implement these techniques properly, we could experience losses on our hedging positions, which could be material.
If
interest rates fall, our portfolio companies are likely to refinance their obligations to us at lower interest rates. Our proceeds from
these refinancings are likely to be reinvested at lower interest rates than our refinanced loans resulting in a material decrease in our
net investment income.
We
may not realize gains from our equity investments.
Our
portfolio may include common stock, warrants or other equity securities. We may also take back equity securities in exchange for our debt
investments in workouts of troubled investments. Investments in equity securities involve a number of significant risks, including the
risk of further dilution as a result of additional issuances, inability to access additional capital and failure to pay current distributions.
Investments in preferred securities involve special risks, such as the risk of deferred distributions, credit risk, illiquidity and limited
voting rights. In addition, we may from time to time make non-control, equity investments in portfolio companies. The equity interests
we invest in may not appreciate in value and, in fact, may decline in value. Accordingly, we may not be able to realize gains from our
equity interests, and any gains that we do realize on the disposition of any equity interests may not be sufficient to offset any other
losses we experience. We also may be unable to realize any value if a portfolio company does not have a liquidity event, such as a sale
of the business, recapitalization or public offering, which would allow us to sell the underlying equity interests. We may seek puts or
similar rights to give it the right to sell our equity securities back to the portfolio company. We may be unable to exercise these put
rights if the issuer is in financial distress or otherwise lacks sufficient liquidity to purchase the underlying equity investment.
Investments
in foreign securities may involve significant risks in addition to the risks inherent in U.S. investments.
Our
investment strategy contemplates investments in debt securities of foreign companies. Investing in foreign companies may expose us to
additional risks not typically associated with investing in U.S. companies. These risks include changes in exchange control regulations,
political and social instability, expropriation, imposition of foreign taxes, less liquid markets and less available information than
is generally the case in the United States, higher transaction costs, less government supervision of exchanges, brokers and issuers, less
developed bankruptcy laws, difficulty in enforcing contractual obligations, lack of uniform accounting and auditing standards and greater
price volatility. Such investments will generally not represent “qualifying assets” under Section 55(a) of the Investment
Company Act.
Any
investments denominated in a foreign currency will be subject to the risk that the value of a particular currency will change in relation
to one or more other currencies. Among the factors that may affect currency values are trade balances, the level of short-term interest
rates, differences in relative values of similar assets in different currencies, long-term opportunities for investment and capital appreciation,
and political developments. We may employ hedging techniques to minimize these risks, but we offer no assurance that we will, in fact,
hedge currency risk, or that if it does, such strategies will be effective.
We
may hold a significant portion of our portfolio assets in cash, cash equivalents, money market mutual funds, U.S. government securities,
repurchase agreements and high-quality debt instruments maturing in one year or less, which may have a negative impact on our business
and operations.
We
may hold a significant portion of our portfolio assets in cash, cash equivalents, money market mutual funds, U.S. government securities,
repurchase agreements and high-quality debt instruments maturing in one year or less for many reasons, including, among others:
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• |
as part of GECM’s
strategy in order to take advantage of investment opportunities as they arise; |
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when GECM believes that
market conditions are unfavorable for profitable investing; |
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when GECM is otherwise unable
to locate attractive investment opportunities; |
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• |
as a defensive measure in
response to adverse market or economic conditions; or |
|
• |
to meet RIC qualification
requirements. |
24
We
may also be required to hold higher levels of cash, money market mutual funds or other short-term securities in order to pay our expenses
or make distributions to stockholders in the ordinary course of business given the relatively high percentage of our total investment
income represented by non-cash income, including PIK income and accretion of original issue discount (“OID”). During periods
when we maintain exposure to cash, money market mutual funds, or other short-term securities, we may not participate in market movements
to the same extent that it would if we were fully invested, which may have a negative impact on our business and operations and, accordingly,
our returns may be reduced.
Risks
Relating to Our Business and Structure
Capital
markets experience periods of disruption and instability. These market conditions have historically materially and adversely affected
debt and equity capital markets in the United States and abroad, which had, and may in the future have, a negative impact on our business
and operations.
The
global capital markets are subject to disruption, which may result from, among other things, a lack of liquidity in the debt capital markets,
significant write-offs in the financial services sector, the re-pricing of credit risk in the broadly syndicated credit market or the
failure of major financial institutions. Despite actions of the U.S. federal government and foreign governments, such events have historically materially and adversely impacted the broader financial and credit markets
and reduced the availability of debt and equity capital for the market as a whole and financial services firms in particular. Equity capital may be difficult to raise because, as a BDC,
we are generally not able to issue additional shares of our common stock at a price less than NAV. In addition, our ability to incur indebtedness
or issue preferred stock is limited by applicable regulations such that our asset coverage, as defined in the Investment Company Act,
must equal at least 150% immediately after each time we incur indebtedness or issue preferred stock. The debt capital that may be available,
if at all, may be at a higher cost and on less favorable terms and conditions in the future. Any inability to raise capital could have
a negative effect on our business, financial condition and results of operations.
Market
conditions may in the future make it difficult to extend the maturity of or refinance our existing indebtedness, and any failure to do
so could have a material adverse effect on our business. The expected illiquidity of our investments may make it difficult for us to sell
such investments if required. As a result, we may realize significantly less than the value at which we have recorded our investments.
In
addition, significant changes in the capital markets, including recent volatility and disruption, have had, and may in the future have,
a negative effect on the valuations of our investments and on the potential for liquidity events involving our investments. An inability
to raise capital, and any required sale of our investments for liquidity purposes, could have a material adverse impact on our business,
financial condition and results of operations.
We
may experience fluctuations in our quarterly results.
Our
quarterly operating results will fluctuate due to a number of factors, including the level of expenses, variations in and the timing of
the recognition of realized and unrealized gains or losses, the degree to which we encounter competition in our markets and general economic
conditions. Our quarterly operating results will also fluctuate due to a number of other factors, including the interest rates payable
on the debt investments we make and the default rates on such investments. As a result of these factors, results for any period should
not be relied upon as being indicative of performance in future periods.
Our
success depends on the ability of our investment adviser to attract and retain qualified personnel in a competitive environment.
Our
growth requires that GECM retain and attract new investment and administrative personnel in a competitive market. GECM’s ability
to attract and retain personnel with the requisite credentials, experience and skills depends on several factors, including, but not limited
to, its ability to offer competitive wages, benefits and professional growth opportunities. Many of the entities, including investment
funds (such as private equity funds and mezzanine funds) and traditional financial services companies, which compete for experienced personnel
with GECM, have greater resources than GECM.
25
Our
ability to grow depends on our ability to raise equity capital and/or access debt financing.
We
intend to periodically access the capital markets to raise cash to fund new investments. We expect to continue to elect to be treated
as a RIC and operate in a manner so as to qualify for the U.S. federal income tax treatment applicable to RICs. Among other things, in
order to maintain our RIC status, we must distribute to our stockholders on a timely basis generally an amount equal to at least 90% of
our investment company taxable income (as defined by the Code), and, as a result, such distributions will not be available to fund new
investments. As a result, we must borrow from financial institutions or issue additional securities to fund our growth. Unfavorable economic
or capital market conditions, including interest rate volatility, may increase our funding costs, limit our access to the capital markets
or could result in a decision by lenders not to extend credit to us. There has been and will continue to be uncertainty in the financial
markets in general. An inability to successfully access the capital or credit markets for either equity or debt could limit our ability
to grow our business and fully execute our business strategy and could decrease our earnings, if any.
If
the fair value of our assets declines substantially, we may fail to maintain the asset coverage ratios imposed upon us by the Investment
Company Act or our lenders. Any such failure, or a tightening or general disruption of the credit markets, would affect our ability to
issue senior securities, including borrowings, and pay dividends or other distributions, which could materially impair our business.
In
addition, with certain limited exceptions we are only allowed to borrow or issue debt securities or preferred stock such that our asset
coverage, as defined in the Investment Company Act, equals at least 150% immediately after such borrowing, which, in certain circumstances,
may restrict our ability to borrow or issue debt securities or preferred stock. The amount of leverage that we may employ will depend
on GECM’s and our Board’s assessments of market and other factors at the time of any proposed borrowing or issuance of debt
securities or preferred stock. We cannot assure you that we will be able to obtain lines of credit at all or on terms acceptable to us.
Economic
recessions or downturns could impair our portfolio companies and harm our operating results.
The
economy is subject to periodic downturns that, from time to time, result in recessions or more serious adverse macroeconomic events. Our
portfolio companies are susceptible to economic slowdowns or recessions and may be unable to repay loans or notes during these periods.
Therefore, our non-performing assets may increase and the value of our portfolio may decrease during these periods as we are required
to record the market value of our investments. Adverse economic conditions may also decrease the value of collateral securing some of
our investments and the value of our equity investments. Economic slowdowns or recessions could lead to financial losses in our portfolio
and a decrease in revenues, net income and assets. Unfavorable economic conditions also could increase our funding costs, limit our access
to the capital markets or result in a decision by lenders not to extend credit to us. These events could prevent us from increasing investments
and harm our operating results.
A
portfolio company’s failure to satisfy financial or operating covenants in its agreements with us or other lenders could lead to
defaults and, potentially, acceleration of the time when the debt obligations are due and foreclosure on its secured assets, which could
trigger cross-defaults under other agreements and jeopardize the portfolio company’s ability to meet its obligations under the debt
that we hold. We may incur additional expenses to the extent necessary to seek recovery upon default or to negotiate new terms with a
defaulting portfolio company. In addition, if one of our portfolio companies were to go bankrupt, depending on the facts and circumstances,
including the extent to which we actually provided significant managerial assistance to that portfolio company, a bankruptcy court might
re-characterize our debt holding and subordinate all or a portion of our claim to that of other creditors.
Global
economic, political and market conditions may adversely affect our business, results of operations and financial condition, including
our revenue growth and profitability.
The
condition of the global financial market, as well as various social and political tensions in the United States and around the world,
may contribute to increased market volatility, may have long-term effects on the U.S. and worldwide financial markets, may cause economic
uncertainties or deterioration in the United States and worldwide, and may subject our investments to heightened risks.
These
heightened risks could also include to: increased risk of default; greater social, trade, economic and political instability (including
the risk of war or terrorist activity); greater governmental involvement in the
26
economy;
greater governmental supervision and regulation of the securities markets and market participants resulting in increased expenses related
to compliance; greater fluctuations in currency exchange rates; controls or restrictions on foreign investment and/or trade, capital controls
and limitations on repatriation of invested capital and on the ability to exchange currencies; inability to purchase and sell investments
or otherwise settle transactions (i.e., a market freeze); and unavailability of hedging techniques. During times of political uncertainty
and/or change, global markets often become more volatile. Markets experiencing political uncertainty and/or change could have substantial,
and in some periods extremely high, rates of inflation for many years. Inflation and rapid fluctuations in inflation rates typically have
negative effects on such countries’ economies and markets. Tax laws could change materially, and any changes in tax laws could have
an unpredictable effect on us, our investments and our investors.
Our
debt investments may be risky, and we could lose all or part of our investments.
Our
debt portfolios, including those held by our specialty finance companies, are subject to credit and interest rate risk. “Credit
risk” refers to the likelihood that an issuer will default in the payment of principal and/or interest on an instrument. Financial
strength and solvency of an issuer are the primary factors influencing credit risk. In addition, subordination, lack or inadequacy of
collateral or credit enhancement for a debt instrument may affect its credit risk. Credit risk may change over the life of an instrument,
and securities which are rated by rating agencies are often reviewed and may be subject to downgrade. “Interest rate risk”
refers to the risks associated with market changes in interest rates. Factors that may affect market interest rates include, without limitation,
inflation, slow or stagnant economic growth or recession, unemployment, money supply and the monetary policies of the Federal Reserve
Board and central banks throughout the world, international disorders and instability in domestic and foreign financial markets. The Federal
Reserve Board has since raised the federal funds rate and has indicated it may continue to raise the federal funds rate in the near future.
These developments, along with domestic and international debt and credit concerns, could cause interest rates to be volatile, which may
negatively impact our ability to access the debt markets on favorable terms. Interest rate changes may also affect the value of a debt
instrument indirectly (especially in the case of fixed rate securities) and directly (especially in the case of instruments whose rates
are adjustable). In general, rising interest rates will negatively impact the price of a fixed-rate debt instrument and falling interest
rates will have a positive effect on price. Adjustable rate instruments may also react to interest rate changes in a similar manner although
generally to a lesser degree (depending, however, on the characteristics of the reset terms, including, among other factors, the index
chosen, frequency of reset and reset caps or floors). Interest rate sensitivity is generally more pronounced and less predictable in instruments
with uncertain payment or prepayment schedules. We expect that we will periodically experience imbalances in the interest rate sensitivities
of our assets and liabilities and the relationships of various interest rates to each other. In a changing interest rate environment,
we may not be able to manage this risk effectively, which in turn could adversely affect our performance.
We
may acquire other funds, portfolios of assets or pools of debt and those acquisitions may not be successful.
We
may acquire other funds, portfolios of assets or pools of debt investments. Any such acquisition program has a number of risks, including
among others:
|
• |
management’s attention
will be diverted from running our existing business by efforts to source, negotiate, close and integrate acquisitions; |
|
• |
our due diligence investigation
of potential acquisitions may not reveal risks inherent in the acquired business or assets; |
|
• |
we may over-value potential
acquisitions resulting in dilution to stockholders, incurrence of excessive indebtedness, asset write downs and negative perception of
our common stock; |
|
• |
the interests of our existing
stockholders may be diluted by the issuance of additional shares of our common stock or preferred stock; |
|
• |
we may borrow to finance
acquisitions, and there are risks associated with borrowing as described in this prospectus; |
|
• |
GECM has an incentive to
increase our assets under management in order to increase its fee stream, which may not be aligned with your interests; |
|
• |
we and GECM may not successfully
integrate any acquired business or assets; and |
|
• |
GECM may compensate the
existing managers of any acquired business or assets in a manner that results in the combined company taking on excessive risk. |
27
Our
failure to maintain our status as a BDC would reduce our operating flexibility.
We
elected to be regulated as a BDC under the Investment Company Act. The Investment Company Act imposes numerous constraints on the operations
of BDCs and their external advisers. For example, BDCs are required to invest at least 70% of their gross assets in specified types of
securities, primarily in private companies or illiquid U.S. public companies below a certain market capitalization, cash, cash equivalents,
U.S. government securities and other high-quality debt investments that mature in one year or less. Furthermore, any failure to comply
with the requirements imposed on BDCs by the Investment Company Act could cause the SEC to bring an enforcement action against us and/or
expose us to claims of private litigants. In addition, upon approval of a majority of our voting securities (as defined under the Investment
Company Act), we may elect to withdraw our status as a BDC. If we decide to withdraw our BDC election, or if we otherwise fail to qualify,
or to maintain our qualification, as a BDC, we may be subject to substantially greater regulation under the Investment Company Act as
a closed-end management investment company. Compliance with such regulations would significantly decrease our operating flexibility and
would significantly increase our costs of doing business.
Regulations
governing our operations as a BDC affect our ability to raise additional capital and the way in which we do so. As a BDC, the necessity
of raising additional capital may expose us to risks, including the typical risks associated with leverage.
We
may issue debt securities or preferred stock and/or borrow money from banks or other financial institutions, referred to collectively
as “senior securities,” up to the maximum amount permitted under the Investment Company Act. Under the provisions of the Investment
Company Act applicable to BDCs, we are permitted to issue senior securities (e.g., notes and preferred stock) in amounts such that our
asset coverage ratio, as defined in the Investment Company Act, equals at least 150% of gross assets less all liabilities and indebtedness
not represented by senior securities, after each issuance of senior securities. If the value of our assets declines, we may be unable
to satisfy this test. If that happens, we may be required to sell a portion of our investments and, depending on the nature of our leverage,
repay a portion of our indebtedness at a time when such sales may be disadvantageous. Also, any amounts that we use to service our indebtedness
would not be available for distributions to our stockholders. Furthermore, as a result of issuing senior securities, we would also be
exposed to typical risks associated with leverage, including an increased risk of loss.
Our
Board may change our investment objectives, operating policies and strategies without prior notice or stockholder approval, the effects
of which may be adverse.
Our
Board has the authority to modify or waive our investment objectives, current operating policies, investment criteria and strategies without
prior notice and without stockholder approval. We cannot predict the effect any changes to our current operating policies, investment
criteria and strategies would have on our business, NAV and operating results.
We
may have difficulty paying our required distributions under applicable tax rules if we recognize income before or without receiving cash
representing such income.
For
U.S. federal income tax purposes, we may be required to include in income certain amounts before our receipt of the cash attributable
to such amounts, such as OID, which may arise if we receive warrants in connection with the making of a loan or possibly in other circumstances,
or PIK interest, which represents contractual interest added to the loan balance and due at the end of the loan term. For example, such
OID or increases in loan balances as a result of PIK interest will be included in income before we receive any corresponding cash payments.
Also, we may be required to include in income other amounts that we will not receive in cash, including, for example, non-cash income
from PIK securities, deferred payment securities and hedging and foreign currency transactions. In addition, we intend to seek debt investments
in the secondary market that represent attractive risk-adjusted returns, taking into account both stated interest rates and current market
discounts to par value. Such market discount may be included in income before we receive any corresponding cash payments. Certain of our
debt investments earn PIK interest.
Since
we may recognize income before or without receiving cash representing such income, we may have difficulty meeting the U.S. federal income
tax requirement to distribute generally an amount equal to at least 90% of our investment company taxable income to maintain our status
as a RIC. Accordingly, we may have to sell some of our investments at times we would not consider advantageous, raise additional debt
or equity capital
28
or
reduce new investment originations to meet these distribution requirements. If we are not able to obtain cash from other sources, we may
fail to qualify as a RIC and thus be subject to additional corporate-level income taxes.
However,
in order to satisfy the Annual Distribution Requirement for a RIC, we may, but have no current intention to, declare a large portion of
a dividend in shares of our common stock instead of in cash. As long as a portion of such dividend is paid in cash (which portion may
be as low as 20% of such dividend, or 10% with respect to distributions declared on or before June 30, 2022) and certain requirements
are met, the entire distribution will be treated as a dividend for U.S. federal income tax purposes.
We
may expose ourselves to risks associated with the inclusion of non-cash income prior to receipt of cash.
To
the extent we invest in OID instruments, including PIK loans, zero coupon bonds, and debt securities with attached warrants, investors
will be exposed to the risks associated with the inclusion of such non-cash income in taxable and accounting income prior to receipt of
cash.
The
deferred nature of payments on PIK loans creates specific risks. Interest payments deferred on a PIK loan are subject to the risk that
the borrower may default when the deferred payments are due in cash at the maturity of the loan. Since the payment of PIK income does
not result in cash payments to us, we may also have to sell some of our investments at times we would not consider advantageous, raise
additional debt or equity capital or reduce new investment originations (and thus hold higher cash or cash equivalent balances, which
could reduce returns) to pay our expenses or make distributions to stockholders in the ordinary course of business, even if such loans
do not default. An election to defer PIK interest payments by adding them to principal increases our gross assets and, thus, increases
future base management fees to GECM and, because interest payments will then be payable on a larger principal amount, the PIK election
also increases GECM’s future Income Incentive Fees at a compounding rate. The deferral of interest on a PIK loan increases its loan-to-value
ratio, which is a measure of the riskiness of a loan.
More
generally, market prices of OID instruments are more volatile because they are impacted to a greater extent by interest rate changes than
instruments that pay interest periodically in cash. Ordinarily, OID would also create the risk of non-refundable cash payments to GECM
based on non-cash accruals that may never be realized; however, this risk is mitigated since the Investment Management Agreement requires
GECM to defer any incentive fees on Accrued Unpaid Income (as defined below), the effect of which is that Income Incentive Fees otherwise
payable with respect to Accrued Unpaid Income become payable only if, as, when and to the extent cash is received by us or our consolidated
subsidiaries in respect thereof.
Additionally,
we may be required to make distributions of non-cash income to stockholders without receiving any cash so as to satisfy certain requirements
necessary to maintain our RIC status for U.S. federal income tax purposes. Such required cash distributions may have to be paid from the
sale of our assets without investors being given any notice of this fact. The required recognition of non-cash income, including PIK and
OID interest, for U.S. federal income tax purposes may have a negative impact on liquidity because it represents a non-cash component
of our taxable income that must, nevertheless, be distributed to investors to avoid us being subject to corporate level taxation.
We
may choose to pay distributions in our own stock, in which case stockholders may be required to pay tax in excess of the cash they receive.
We
may distribute a portion of our taxable distributions in the form of shares of our stock. In accordance with certain applicable U.S. Treasury
regulations and other related administrative pronouncements issued by the Internal Revenue Service, a RIC may be eligible to treat a distribution
of its own stock as fulfilling its RIC distribution requirements if each stockholder is permitted to elect to receive his or her entire
distribution in either cash or stock of the RIC, subject to the satisfaction of certain guidelines. If too many stockholders elect to
receive cash, each stockholder electing to receive cash must receive a pro rata amount of cash (with the balance of the distribution paid
in stock). If these and certain other requirements are met, for U.S. federal income tax purposes, the amount of the distribution paid
in stock generally will be equal to the amount of cash that could have been received instead of stock. Taxable stockholders receiving
such distributions will be required to include the full amount of the distribution as ordinary income (or as long-term capital gain to
the extent such distribution is properly reported as a capital gain dividend) to the extent of their share of our current and accumulated
earnings and profits for U.S. federal income tax purposes. As a result, a U.S. stockholder may be subject to 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. Furthermore, with respect to non-U.S. stockholders, we may be required to withhold
U.S. tax with respect to such distributions, including in respect of all or a portion of such distribution that is payable in stock. In
addition, if a significant number of our stockholders determine to sell shares of our stock in order to pay taxes owed on distributions,
such sales may put downward pressure on the trading price of our stock.
29
We
may expose our self to risks if we engage in hedging transactions.
If
we engage in hedging transactions, we may expose our self to risks associated with such transactions. We may utilize instruments such
as forward contracts, currency options and interest rate swaps, caps, collars and floors to seek to hedge against fluctuations in the
relative values of our portfolio positions from changes in currency exchange rates and market interest rates. Hedging against a decline
in the values of our portfolio positions does not eliminate the possibility of fluctuations in the values of such positions or prevent
losses if the values of such positions decline. Such hedging transactions may also limit the opportunity for gain if the values of the
underlying portfolio positions increase. It may not be possible to hedge against an exchange rate or interest rate fluctuation that is
generally anticipated because we may not be able to enter into a hedging transaction at an acceptable price. Moreover, for a variety of
reasons, we may not seek to establish a perfect correlation between such hedging instruments and the portfolio holdings being hedged.
Any
such imperfect correlation may prevent us from achieving the intended hedge and expose us to risk of loss. In addition, it may not be
possible to hedge fully or perfectly against currency fluctuations affecting the value of securities denominated in non-U.S. currencies
because the value of those securities is likely to fluctuate as a result of factors not related to currency fluctuations.
We
will be subject to corporate-level U.S. federal income tax if we are unable to qualify as a RIC under the Code.
No
assurance can be given that we will be able to qualify for and maintain RIC status. To maintain RIC tax treatment under the Code, we must
meet certain annual distribution, source of income and asset diversification requirements.
The
Annual Distribution Requirement for a RIC will be satisfied if we distribute to our stockholders on an annual basis at least 90% of our
net ordinary income and realized net short-term capital gains in excess of realized net long-term capital losses, if any. Because we may
use debt financing, we may be subject to asset coverage ratio requirements under the Investment Company Act and financial covenants under
loan and credit agreements that could, under certain circumstances, restrict us from making distributions necessary to satisfy the distribution
requirement. If we are unable to make the required distributions, we could fail to qualify for RIC tax treatment and thus become subject
to corporate-level U.S. federal income tax.
The
source of income requirement will be satisfied if we obtain at least 90% of our income for each year from dividends, interest, gains from
the sale of stock or securities or similar sources.
The
asset diversification requirement will be satisfied if we meet asset diversification requirements at the end of each quarter of our taxable
year. Failure to meet the asset diversification requirements could result in us having to dispose of investments quickly in order to prevent
the loss of RIC status. Because most of our investments will be relatively illiquid, any such dispositions could be made at disadvantageous
prices and could result in substantial losses. Further, the illiquidity of our investments may make them difficult or impossible to dispose
of in a timely manner.
If
we fail to qualify for RIC tax treatment for any reason and become subject to corporate U.S. federal income tax, the resulting corporate
taxes could substantially reduce our net assets, the amount of income available for distribution and the amount of our distributions and
the value of our shares of common stock.
We
cannot predict how tax reform legislation will affect us, our investments, or our stockholders, and any such legislation could adversely
affect our business.
Legislative
or other actions relating to taxes could have a negative effect on us. The rules dealing with U.S. federal income taxation are constantly
under review by persons involved in the legislative process and by the Internal Revenue Service and the U.S. Treasury Department. Recent
legislation has made many changes to the
30
Code,
including significant changes to the taxation of business entities, the deductibility of interest expense, and the tax treatment of capital
investment. We cannot predict with certainty how any changes in the tax laws might affect us, our stockholders, or our portfolio investments.
New legislation and any U.S. Treasury regulations, administrative interpretations or court decisions interpreting such legislation could
significantly and negatively affect our ability to qualify for tax treatment as a RIC or the U.S. federal income tax consequences to us
and our stockholders of such qualification, or could have other adverse consequences. Investors are urged to consult with their tax adviser
regarding tax legislative, regulatory or administrative developments and proposals and their potential effect on an investment in our
securities.
The
incentive fee structure and the formula for calculating the management fee may incentivize GECM to pursue speculative investments, advise
us to use leverage when it may be unwise to do so, or advise us to refrain from reducing debt levels when it would otherwise be appropriate
to do so.
The
incentive fee payable by us to GECM creates an incentive for GECM to pursue investments on our behalf that are riskier or more speculative
than would be the case in the absence of such a compensation arrangement. The incentive fee payable to GECM is calculated based on a percentage
of our return on invested capital. In addition, GECM’s base management fee is calculated on the basis of our gross assets, including
assets acquired through the use of leverage. This may encourage GECM to use leverage to increase the aggregate amount of and the return
on our investments, even when it may not be appropriate to do so, and to refrain from reducing debt levels when it would otherwise be
appropriate to do so. The use of leverage increases our likelihood of default, which would impair the value of our securities. In addition,
GECM will receive the incentive fee based, in part, upon net capital gains realized on our investments. Unlike that portion of the incentive
fee based on income, there will be no hurdle rate applicable to the portion of the incentive fee based on net capital gains. As a result,
GECM may have a tendency to invest more capital in investments that are likely to result in capital gains as compared to income producing
securities. Such a practice could result in us investing in more speculative securities than would otherwise be the case, which could
result in higher investment losses, particularly during economic downturns.
We
may invest in the securities and instruments of other investment companies, including private funds, and we will bear our ratable share
of any such investment company’s expenses, including management and performance fees. We will also remain obligated to pay management
and incentive fees to GECM with respect to the assets invested in the securities and instruments of other investment companies. With respect
to each of these investments, each of our stockholders will bear its share of the management and incentive fee payable to GECM, as well
as indirectly bearing the management and performance fees and other expenses of any investment companies in which we invest.
In
addition, if we purchase our debt instruments and such purchase results in our recording a net gain on the extinguishment of debt for
financial reporting and tax purposes, such net gain will be included in our pre-incentive fee net investment income for purposes of determining
the Income Incentive Fee payable to GECM under the Investment Management Agreement.
Finally,
the incentive fee payable by us to GECM also may create an incentive for GECM to invest on our behalf in instruments that have a deferred
interest feature, such as investments with PIK provisions. Under these investments, we would accrue the interest over the life of the
investment but would typically not receive the cash income from the investment until the end of the term or upon the investment being
called by the issuer. Our net investment income used to calculate the income portion of our incentive fee, however, includes accrued interest.
The portion of the incentive fee that is attributable to deferred interest, such as PIK, will not be paid to GECM until we receive such
interest in cash. Even though such portion of the incentive fee will be paid only when the accrued income is collected, the accrued income
is capitalized and included in the calculation of the base management fee. In other words, when deferred interest income (such as PIK)
is accrued, a corresponding Income Incentive Fee (if any) is also accrued (but not paid) based on that income. After the accrual of such
income, it is capitalized and added to the debt balance, which increases our total assets and thus the base management fee paid following
such capitalization. If any such interest is reversed in connection with any write-off or similar treatment of the investment, we will
reverse the Income Incentive Fee accrual and an Income Incentive Fee will not be payable with respect to such uncollected interest. If
a portfolio company defaults on a loan, it is possible that accrued interest previously used in the calculation of whether GECM met the
hurdle rate to earn the incentive fee will become uncollectible.
31
A
general increase in interest rates will likely have the effect of making it easier for GECM to receive incentive fees, without necessarily
resulting in an increase in our net earnings.
Given
the structure of the Investment Management Agreement, any general increase in interest rates will likely have the effect of making it
easier for GECM to meet the quarterly hurdle rate for payment of Income Incentive Fees under the Investment Management Agreement without
any additional increase in relative performance on the part of GECM. In addition, in view of the catch-up provision applicable to Income
Incentive Fees under the Investment Management Agreement, GECM could potentially receive a significant portion of the increase in our
investment income attributable to such a general increase in interest rates. If that were to occur, our increase in net earnings, if any,
would likely be significantly smaller than the relative increase in GECM’s Income Incentive Fee resulting from such a general increase
in interest rates.
GECM
has the right to resign on 60 days’ notice, and we may not be able to find a suitable replacement within that time, resulting in
a disruption in our operations that could adversely affect our financial condition, business and results of operations.
GECM
has the right, under the Investment Management Agreement, to resign at any time upon not more than 60 days’ written notice, whether
we have found a replacement or not. If GECM resigns, we may not be able to find a new investment adviser or hire internal management with
similar expertise and ability to provide the same or equivalent services on acceptable terms within 60 days, or at all. If we are unable
to do so quickly, our operations are likely to experience a disruption; our financial condition, business and results of operations, as
well as our ability to pay distributions, are likely to be adversely affected; and the market price of our common stock may decline. In
addition, the coordination of our internal management and investment activities is likely to suffer if we are unable to identify and reach
an agreement with a single institution or group of executives having the expertise possessed by our investment adviser and its affiliates.
Even if we are able to retain comparable management, whether internal or external, the integration of such management and their lack of
familiarity with our investment objective and current investment portfolio may result in additional costs and time delays that may adversely
affect our financial condition, business and results of operations.
We
incur significant costs as a result of being a publicly traded company.
As
a publicly traded company, we incur legal, accounting and other expenses, including costs associated with the periodic reporting requirements
applicable to a company whose securities are registered under Exchange Act, as well as additional corporate governance requirements, including
requirements under the Sarbanes-Oxley Act, the Dodd-Frank Act and other rules implemented by our government.
Changes
in laws or regulations governing our operations may adversely affect our business or cause us to alter our business strategy.
We
and our portfolio companies are subject to applicable local, state and federal laws and regulations. New legislation may be enacted or
new interpretations, rulings or regulations could be adopted, including those governing the types of investments we are permitted to make,
any of which could harm us and you, potentially with retroactive effect. Additionally, any changes to the laws and regulations governing
our operations relating to permitted investments may cause us to alter our investment strategy in order to avail ourself of new or different
opportunities. Such changes could result in material differences to the strategies and plans and may result in our investment focus shifting
from the areas of expertise of GECM to other types of investments in which the investment committee may have less expertise or little
or no experience. Thus, any such changes, if they occur, could have a material adverse effect on our results of operations.
In
October 2020, the SEC adopted a revised version of Rule 18f-4, which is designed to modernize the regulation of the use of derivatives
by registered investment companies and BDCs. Among other things, Rule 18f-4 limits a fund’s derivatives exposure through a value-at-risk
test and requires the adoption and implementation of a derivatives risk management program subject to certain exceptions. Additionally,
subject to certain conditions, funds that do not invest heavily in derivatives may be deemed limited derivatives users and are not subject
to the full requirements of Rule 18f-4. In connection with the adoption of Rule 18f-4, the SEC also eliminated the asset segregation and
cover framework arising from prior SEC guidance for covering derivatives and certain financial instruments. Rule 18f-4 could limit our
ability to engage in certain derivatives and other transactions and/or increase the costs of such transactions, which could adversely
affect our value or performance.
32
There
is, and will be, uncertainty as to the value of our portfolio investments.
Under
the Investment Company Act, we are required to carry our portfolio investments at market value or, if there is no readily available market
value, at fair value as determined by us in accordance with our written valuation policy, with our Board having final responsibility for
overseeing, reviewing and approving, in good faith, our estimate of fair value. Often, there will not be a public market for the securities
of the privately held companies in which we invest. As a result, we will value these securities on a quarterly basis at fair value based
on input from management, third-party independent valuation firms and our audit committee, with the oversight, review and approval of
our Board. We consult with an independent valuation firm in valuing all securities in which we invest classified as “Level 3,”
other than investments which are less than 1% of NAV as of the applicable quarter end. See “Management’s Discussion and Analysis
of Financial Condition and Results of Operations—Critical Accounting Policies and Estimates—Valuation of Portfolio Investments.”
The
determination of fair value and consequently, the amount of unrealized gains and losses in our portfolio, are subjective and dependent
on a valuation process approved and overseen by our Board. Factors that may be considered in determining the fair value of our investments
include, among others, estimates of the collectability of the principal and interest on our debt investments and expected realization
on our equity investments, as well as external events, such as private mergers, sales and acquisitions involving comparable companies.
Because such valuations, and particularly valuations of private securities and private companies and small cap public companies, are inherently
uncertain, they may fluctuate over short periods of time and may be based on estimates. Our determinations of fair value may differ materially
from the values that would have been used if a ready market for these securities existed. Due to this uncertainty, our fair value determinations
may cause our NAV on a given date to materially misstate the value that we may ultimately realize on one or more of our investments. As
a result, investors purchasing our securities based on an overstated NAV would pay a higher price than the value of our investments might
warrant. Conversely, investors selling securities during a period in which the NAV understates the value of our investments will receive
a lower price for their securities than the value of our investments might otherwise warrant.
Our
financial condition and results of operations depend on our ability to effectively manage and deploy capital.
Our
ability to achieve our investment objective depends on our ability to effectively manage and deploy capital, which depends, in turn, on
GECM’s ability to identify, evaluate and monitor, and our ability to finance and invest in, companies that meet our investment criteria.
Accomplishing
our investment objective on a cost-effective basis is largely a function of GECM’s handling of the investment process, its ability
to provide competent, attentive and efficient services and its access to investments offering acceptable terms. In addition to monitoring
the performance of our existing investments, GECM may also be called upon, from time to time, to provide managerial assistance to some
of our portfolio companies. These demands on their time may distract them or slow the rate of investment.
Even
if we are able to grow and build out our investment operations, any failure to manage our growth effectively could have a material adverse
effect on our business, financial condition, results of operations and prospects. Our results of operations will depend on many factors,
including the availability of opportunities for investment, readily accessible short and long-term funding alternatives in the financial
markets and economic conditions.
We
may hold assets in cash or short-term treasury securities in situations where we or GECM expects downward pricing in the high yield market.
Our strategic decision not to be fully invested may, from time to time, reduce funds available for distribution and cause downward pressure
on the price of our common stock.
The
failure in cyber security systems, as well as the occurrence of events unanticipated in our disaster recovery systems and management continuity
planning, could impair our ability to conduct business effectively.
The
occurrence of a disaster such as a cyber-attack, a natural catastrophe, an epidemic or pandemic, an industrial accident, a terrorist attack
or war, events anticipated or unanticipated in our disaster recovery systems, or a failure in externally provided data systems, could
have an adverse effect on our ability to conduct business and on our results of operations and financial condition, particularly if those
events affect our computer-based data
33
processing,
transmission, storage and retrieval systems or destroy data. Our ability to effectively conduct our business could be severely compromised.
The financial markets we operate in are dependent upon third-party data systems to link buyers and sellers and provide pricing information.
We
depend heavily upon computer systems to perform necessary business functions. Our computer systems could be subject to cyber-attacks and
unauthorized access, such as physical and electronic break-ins or unauthorized tampering. Like other companies, we expect to experience
threats to our data and systems, including malware and computer virus attacks, unauthorized access, system failures and disruptions. These
failures and disruptions may be more likely to occur as a result of employees working remotely. If one or more of these events occurs,
it could potentially jeopardize the confidential, proprietary and other information processed and stored in, and transmitted through,
our computer systems and networks, or otherwise cause interruptions or malfunctions in our operations, which could result in damage to
our reputation, financial losses, litigation, increased costs, regulatory penalties and/or customer dissatisfaction or loss, respectively.
Terrorist
attacks, acts of war, natural disasters or an epidemic or pandemic may affect the market for our securities, impact the businesses in
which we invest and harm our business, operating results and financial condition.
Terrorist
acts, acts of war, natural disasters or an epidemic or pandemic may disrupt our operations, as well as the operations of the businesses
in which we invest. Such acts, including, for example, Russia’s February 2022 invasion of Ukraine, have created, and continue to
create, economic and political uncertainties and have contributed to global economic instability. Additionally, a public health epidemic
or pandemic, including, for example, COVID-19, poses the risk that we, GECM, our portfolio companies or other business partners may be
prevented from conducting business activities for an indefinite period of time, including due to shutdowns that may be requested or mandated
by governmental authorities. While it is not possible at this time to estimate the impact that any such event could have on our business,
the continued occurrence thereof and the measures taken by the governments of countries affected in response thereto could disrupt the
supply chain and the manufacture or shipment of products and adversely impact our business, financial condition or results of operations.
Future
terrorist activities, military or security operations, or natural disasters could further weaken the domestic/global economies and create
additional uncertainties, which may negatively impact the businesses in which we invest directly or indirectly and, in turn, could have
a material adverse impact on our business, operating results and financial condition. Losses from terrorist attacks and natural disasters
are generally uninsurable.
There
are significant potential conflicts of interest that could impact our investment returns.
Certain
of our executive officers and directors, and members of the investment committee of GECM, serve or may serve as officers, directors or
principals of other entities, including ICAM or funds managed by ICAM, and affiliates of GECM and investment funds managed by our affiliates.
Accordingly, they may have obligations to investors in those entities, the fulfillment of which might not be in our or our stockholders’
best interests or that may require them to devote time to services for other entities, which could interfere with the time available to
provide services to us. For example, Matt Kaplan, our President and Chief Executive Officer, is a portfolio manager at GECM and a member
of its investment committee.
Although
funds managed by GECM may have different primary investment objectives than we do, they may from time to time invest in asset classes
similar to those targeted by us. GECM is not restricted from raising an investment fund with investment objectives similar to ours. Any
such funds may also, from time to time, invest in asset classes similar to those targeted by us. It is possible that we may not be given
the opportunity to participate in certain investments made by investment funds managed by investment managers affiliated with GECM. GECC’s
participation in any negotiated co-investment opportunities (other than those in which the only term negotiated is price) with investment
funds managed by investment managers under common control with GECM is subject to compliance with the SEC order dated May 12, 2020
(Release No. 33864).
We
will pay management and incentive fees to GECM and will reimburse GECM for certain expenses it incurs. In addition, investors in our common
stock will invest on a gross basis and receive distributions on a net basis after expenses, resulting in, among other things, a lower
rate of return than one might achieve through direct investments.
34
GECM’s
management fee is based on a percentage of our total assets (other than cash or cash equivalents but including assets purchased with borrowed
funds) and GECM may have conflicts of interest in connection with decisions that could affect our total assets, such as decisions as to
whether to incur indebtedness.
The
part of the incentive fee payable by us that relates to our pre-incentive fee net investment income is computed and paid on income that
may include interest that is accrued but not yet received in cash. If a portfolio company defaults on a loan or note that is structured
to provide accrued interest, it is possible that accrued interest previously used in the calculation of the incentive fee will become
uncollectible.
The
Investment Management Agreement renews for successive annual periods if approved by our Board or by the affirmative vote of the holders
of a majority of our outstanding voting securities, including, in either case, approval by a majority of our directors who are not interested
persons. However, both we and GECM have the right to terminate the agreement without penalty upon 60 days’ written notice to the
other party. Moreover, conflicts of interest may arise if GECM seeks to change the terms of the Investment Management Agreement, including,
for example, the terms for compensation.
Pursuant
to the Administration Agreement, we pay GECM our allocable portion of overhead and other expenses incurred by GECM in performing its obligations
under the Administration Agreement, including our allocable portion of the cost of our Chief Financial Officer and Chief Compliance Officer
and their respective staffs.
As
a result of the arrangements described above, there may be times when our management team has interests that differ from those of our
stockholders, giving rise to a conflict.
Our
stockholders may have conflicting investment, tax and other objectives with respect to their investments in us. The conflicting interests
of individual stockholders may relate to or arise from, among other things, the nature of our investments, the structure or the acquisition
of our investments, and the timing of disposition of our investments. As a consequence, conflicts of interest may arise in connection
with decisions made by GECM, including with respect to the nature or structuring of our investments, that may be more beneficial for one
stockholder than for another stockholder, especially with respect to stockholders’ individual tax situations. In selecting and structuring
investments appropriate for us, GECM will consider the investment and tax objectives of us and our stockholders, as a whole, not the investment,
tax or other objectives of any stockholder individually.
Risks
Relating to Indebtedness
We
may borrow additional money, which would magnify the potential for loss on amounts invested and may increase the risk of investing with
us.
We
have existing indebtedness and may in the future borrow additional money, including borrowings under the Loan Agreement, each of which
magnifies the potential for loss on amounts invested and may increase the risk of investing with us. Our ability to service our existing
and potential future debt depends largely on our financial performance and is subject to prevailing economic conditions and competitive
pressures. The amount of leverage that we could employ at any particular time will depend on GECM’s and our Board’s assessment
of market and other factors at the time of any proposed borrowing.
Borrowings,
also known as leverage, magnify the potential for gain or loss on amounts invested and, therefore, increase the risks associated with
investing in our securities. Holders of such debt securities would have fixed dollar claims on our consolidated assets that would be superior
to the claims of our common stockholders or any preferred stockholders.
If
the value of our consolidated assets decreases while we have debt outstanding, leveraging would cause our NAV to decline more sharply
than it otherwise would have had we not leveraged. Similarly, any decrease in our consolidated income while we have debt outstanding would
cause net income to decline more sharply than it would have had we not borrowed. Such a decline could negatively affect our ability to
make common stock distributions. We cannot assure you that our leveraging strategy will be successful.
Illustration.
The following tables illustrate the effect of leverage on returns from an investment in our common stock
assuming various annual returns, net of expenses. The first table assumes the actual amount of senior securities
outstanding as of December 31, 2022. The second table assumes the maximum amount of senior securities
outstanding as permitted under our asset coverage ratio of 150%. The calculations in the tables below are
hypothetical and actual returns may be higher or lower than those appearing below.
35
Table
1
|
Assumed
Return on Our Portfolio(1)(2) (net of expenses) |
| |
(10.0)% |
| |
(5.0)% |
| |
0.0% |
| |
5.0% |
| |
10.0% |
|
Corresponding
net return to common stockholder |
| |
(14.46)% |
| |
(9.46)% |
| |
(4.46)% |
| |
0.54% |
| |
5.54% |
|
(1) |
Assumes $225.0 million
in total portfolio assets, excluding short term investments, $155.9 million in senior securities outstanding, $84.8 million
in net assets, and an average cost of funds of 6.43%. Actual interest payments may be different. |
|
(2) |
In order for us to cover
our annual interest payments on indebtedness, we must achieve annual returns on our December 31, 2022 total portfolio assets of at
least 4.46%. |
Table
2
|
Assumed
Return on Our Portfolio(1)(2) (net of expenses) |
| |
(10.0)% |
| |
(5.0)% |
| |
0.0% |
| |
5.0% |
| |
10.0% |
|
Corresponding
net return to common stockholder |
| |
(14.57)% |
| |
(9.57)% |
| |
(4.57)% |
| |
0.43% |
| |
5.43% |
|
(1) |
Assumes $238.6 million
in total portfolio assets, excluding short term investments, $169.6 million in senior securities outstanding, $84.8 million
in net assets, and an average cost of funds of 6.43%. Actual interest payments may be different. |
|
(2) |
In order for us to cover
our annual interest payments on indebtedness, we must achieve annual returns on our December 31, 2022 total portfolio assets of at
least 4.57%. |
Incurring
additional indebtedness could increase the risk in investing in our Company.
In
2018, our stockholders approved of the reduction of our required minimum asset coverage ratio from 200% to 150%, permitting us to incur
additional leverage. The use of leverage magnifies the potential for gain or loss on amounts invested. The use of leverage is generally
considered a speculative investment technique and increases the risks associated with investing in our securities.
As
March 31, 2023, we had approximately $150.9 million of total outstanding indebtedness in the aggregate under the Loan Agreement
and three series of senior securities (unsecured notes)—the GECCM Notes, the GECCN Notes and the GECCO Notes—and our asset
coverage ratio was 159.8%.
On
May 5, 2021, we entered into the Loan Agreement, which provides for a senior secured revolving line of credit of up to $25 million
(subject to a borrowing base). As of March 31, 2023, there were $5.0 million in borrowings outstanding under the revolving line.
We may request to increase the revolving line in an aggregate amount not to exceed $25 million, which increase is subject to the
sole discretion of CNB.
If
we are unable to meet the financial obligations under any of the Loan Agreement or any series of our outstanding unsecured notes, the
holders of such indebtedness would have a superior claim to our assets over our common stockholders, and the lender or noteholders may
seek to recover against our assets in the event of a default by us. If the value of our assets decreases, leveraging would cause NAV to
decline more sharply than it otherwise would have had we not leveraged, thereby magnifying losses. Similarly, any decrease in our revenue
or income will cause our net income to decline more sharply than it would have had we not borrowed. Such a decline would also negatively
affect our ability to make distributions with respect to our common stock. Our ability to service any debt depends largely on our financial
performance and is subject to prevailing economic conditions and competitive pressures. Moreover, as the base management fee payable to
GECM, our investment advisor, is payable based on the average value of our total assets, including those assets acquired through the use
of leverage, GECM will have a financial incentive to incur leverage, which may not be consistent with our stockholders’ interests.
In addition, our common stockholders bear the burden of any increase in our fees or expenses as a result of our use of leverage, including
interest expenses and any increase in the base management fee payable to GECM.
If
our asset coverage ratio falls below the required limit, we will not be able to incur additional debt until we are able to comply with
the asset coverage ratio applicable to us. This could have a material adverse effect on our operations, and we may not be able to make
distributions to stockholders. The actual amount of leverage that we employ will depend on GECM’s and our Board’s assessment
of market and other factors at the time of any proposed borrowing. We cannot assure you that we will be able to obtain credit at all or
on terms acceptable to us.
36
Incurring
additional leverage may magnify our exposure to risks associated with changes in interest rates, including fluctuations in interest rates
which could adversely affect our profitability.
If
we incur additional leverage, including through the offering of Notes hereby, general interest rate fluctuations may have a more significant
negative impact on our financial condition and results of operations than they would have absent such additional incurrence, and, accordingly,
may have a material adverse effect on our investment objectives and rate of return on investment capital. A portion of our income will
depend upon the difference between the rate at which we borrow funds and the interest rate on the debt securities in which we invest.
Because we may borrow money to make investments and may issue debt securities, preferred stock or other securities, our net investment
income is dependent upon the difference between the rate at which we borrow funds or pay interest or dividends on such debt securities,
preferred stock or other securities and the rate at which we invest these borrowed funds.
We
expect that a majority of our investments in debt will continue to be at floating rates with a floor. As a result, significant increase
in market interest rates could result in an increase in our non-performing assets and a decrease in the value of our portfolio because
our floating-rate loan portfolio companies may be unable to meet higher payment obligations. In periods of rising interest rates, our
cost of funds would increase, resulting in a decrease in our net investment income. Incurring additional leverage will magnify the impact
of an increase to our cost of funds. In addition, a decrease in interest rates may reduce net income, because new investments may be made
at lower rates despite the increased demand for our capital that the decrease in interest rates may produce. To the extent our additional
borrowings are in fixed-rate instruments, we may be required to invest in higher-yield securities in order to cover our interest expense
and maintain our current level of return to stockholders, which may increase the risk of an investment in our securities.
37
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING INFORMATION
Some
of the statements in this prospectus (including in the following discussion) constitute forward-looking statements, which relate to future
events or our future performance or financial conditions. The forward-looking statements contained in this prospectus involve a number
of risks and uncertainties, including statements concerning:
|
• |
our, or our portfolio companies’,
future business, operations, operating results or prospects; |
|
• |
the return or impact of
current and future investments; |
|
• |
the impact of a protracted
decline in the liquidity of credit markets on our business; |
|
• |
the impact of fluctuations
in interest rates on our business; |
|
• |
the impact of changes in
laws or regulations governing our operations or the operations of our portfolio companies; |
|
• |
our contractual arrangements
and relationships with third parties; |
|
• |
our current and future management
structure; |
|
• |
the general economy, including
recessionary trends, and its impact on the industries in which we invest; |
|
• |
the financial condition
of and ability of our current and prospective portfolio companies to achieve their objectives; |
|
• |
serious disruptions and
catastrophic events, including the impact of the novel coronavirus pandemic on the global economy; |
|
• |
our expected financings
and investments, including interest rate volatility; |
|
• |
the adequacy of our financing
resources and working capital; |
|
• |
the ability of our investment
adviser to locate suitable investments for us and to monitor and administer our investments; |
|
• |
the timing of cash flows,
if any, from the operations of our portfolio companies; |
|
• |
the timing, form and amount
of any dividend distributions; |
|
• |
the valuation of any investments
in portfolio companies, particularly those having no liquid trading market; and |
|
• |
our ability to maintain
our qualification as a RIC and as a BDC. |
We
use words such as “anticipate,” “believe,” “expect,” “intend,” “will,” “should,”
“could,” “may,” “plan” and similar words to identify forward-looking statements. The forward-looking
statements contained in this prospectus involve risks and uncertainties. Our actual results could differ materially from those implied
or expressed in the forward-looking statements for any reason, including the factors set forth under “Risk Factors.”
We
have based the forward-looking statements included in this prospectus on information available to us on the date of this prospectus, and
we assume no obligation to update any such forward-looking statements. Although we undertake no obligation to revise or update any forward-looking
statements, whether as a result of new information, future events or otherwise, you are advised to consult any additional disclosures
that we may make directly to you or through reports that we have filed or in the future may file with the SEC.
You
should understand that, under Sections 27A(b)(2)(B) of the Securities Act and Section 21E(b)(2)(B) of the Exchange Act, the “safe
harbor” provisions of the Private Securities Litigation Reform Act of 1995 do not apply to statements made in connection with any
offering of securities pursuant to this prospectus or in any report that we file under the Exchange Act.
38
USE
OF PROCEEDS
The
net proceeds of the offering are estimated to be approximately $ (or approximately $ if the
underwriters exercise their over-allotment option in full) after deducting the underwriting discount and commissions and estimated offering
expenses of approximately $ payable by us.
We
expect to use the net proceeds of this offering to redeem all of our outstanding $42.8 million aggregate principal amount of the
GECCN Notes and to pay related fees and expenses and for general corporate purposes. We may also elect to (i) redeem a portion of our outstanding
$45.6 million aggregate principal amount of the GECCM Notes, (ii) redeem a portion of our outstanding $57.5 million aggregate principal amount of the GECCO Notes or (iii) repay all or a portion of the $5.0 million in borrowings outstanding under the Loan Agreement with proceeds of this offering. The GECCN Notes bear interest at 6.50% per
annum and have a stated maturity of June 30, 2024. The GECCM Notes bear interest at 6.75% per annum and have a stated maturity of
January 31, 2025. The GECCO Notes bear interest of 5.875% per annum and have a stated maturity of June 30, 2026. The Loan Agreement provides for a senior secured revolving line of credit that matures on May 5, 2024. Borrowings under the Loan Agreement bear interest at a rate equal to (i) SOFR plus 3.50%, (ii) a base rate plus 2.00% or (iii) a combination thereof, as determined by us.
We
intend to use a portion of the net proceeds from the sale of the Notes for general corporate purposes, which may include making investments
consistent with our investment objectives. We do not intend to use any proceeds of the offering to pay required distributions, management
fees or other expenses. Nevertheless, to the extent that our current cash and cash equivalents holdings are invested in other investment
opportunities before we receive the proceeds of this offering, some portion of the proceeds from this offering may be used to pay required
distributions, management fees and other expenses. We anticipate that it will take approximately three to six months after completion
of this offering to invest substantially all of the net proceeds in investments consistent with our investment objectives or to otherwise
utilize such proceeds. Pending the investment of the net proceeds in investments consistent with our investment objectives, we may invest
the net proceeds of this offering in cash, cash equivalents, U.S. Government securities, money market mutual funds and other high-quality
debt instruments that mature in one year or less, or “temporary investments,” as appropriate. These securities may have lower
yields than our other investments and accordingly result in lower distributions, if any, by us during such period.
39
CAPITALIZATION
The
following table sets forth our capitalization as of March 31, 2023:
|
• |
On an actual basis; and |
|
• |
On an as adjusted basis
to give effect to (i) the assumed sale of $ aggregate principal amount of the Notes at a public offering price
of $25.00 per Note, after deducting underwriting discounts and commissions of approximately $ million and estimated
offering expenses of $ million payable by us and (ii) the use of such net proceeds to redeem all of the outstanding
GECCN Notes. |
This
table should be read in conjunction with our “Management’s Discussion and Analysis of Financial Condition and Results of Operations”
and our financial statements and notes thereto included in this prospectus.
|
|
| |
As
of March 31, 2023 | |||
|
Dollar
amounts in thousands (except per share amounts) |
| |
Actual |
| |
As
Adjusted(1) |
|
Cash
and cash equivalents |
| |
$1,641 |
| |
$ |
|
Total
assets |
| |
314,065 |
| |
|
|
GECCM
Notes(2) |
| |
45,141 |
| |
45,141 |
|
GECCN
Notes(2) |
| |
42,276 |
| |
— |
|
GECCO
Notes(2) |
| |
56,018 |
| |
56,018 |
|
The
Notes(3) |
| |
— |
| |
|
|
Revolving Credit Facility |
| |
5,000 |
| |
5,000 |
|
Total
liabilities |
| |
$223,757 |
| |
$ |
|
NET
ASSETS |
| |
|
| |
|
|
Common
stock, par value $0.01 per share, 100,000,000 shares of common stock authorized, 7,601,958 shares issued and outstanding |
| |
$76 |
| |
$76 |
|
Additional
paid in capital |
| |
284,107 |
| |
284,107 |
|
Accumulated
losses |
| |
(193,875) |
| |
(193,875) |
|
Total
net assets |
| |
90,308 |
| |
90,308 |
|
Total
liabilities and net assets |
| |
$314,065 |
| |
$ |
|
(1) |
Excludes
up to $ million in aggregate principal amount of Notes issuable by us upon exercise of the underwriters’ over-allotment
option. |
|
(2) |
Including
unamortized discount of $470, $547 and $1,482 relating to the GECCM Notes, GECCN Notes
and GECCO Notes, respectively. |
|
(3) |
Net
of deferred offering costs. |
40
SENIOR
SECURITIES
Information
about our senior securities is shown in the following table. Dollar amounts are presented in thousands.
|
As
of |
| |
Total
Amount
Outstanding
Exclusive
of Treasury
Securities(1) |
| |
Asset
Coverage Per
Unit(2) |
| |
Involuntary
Liquidating
Preference
Per Unit(3) |
| |
Average
Market
Value
Per Unit(4) |
|
December 31,
2016 |
| |
|
| |
|
| |
|
| |
|
|
8.25%
Notes due 2020 |
| |
$33,646 |
| |
$6,168 |
| |
N/A |
| |
$1.02 |
|
December 31,
2017 |
| |
|
| |
|
| |
|
| |
|
|
6.50%
Notes due 2022 (“GECCL Notes”) |
| |
$32,631 |
| |
$5,010 |
| |
N/A |
| |
$1.02 |
|
December 31,
2018 |
| |
|
| |
|
| |
|
| |
|
|
GECCL
Notes |
| |
$32,631 |
| |
$2,393 |
| |
N/A |
| |
$1.01 |
|
GECCM
Notes |
| |
$46,398 |
| |
$2,393 |
| |
N/A |
| |
$0.98 |
|
December 31,
2019 |
| |
|
| |
|
| |
|
| |
|
|
GECCL
Notes |
| |
$32,631 |
| |
$1,701 |
| |
N/A |
| |
$1.01 |
|
GECCM
Notes |
| |
$46,398 |
| |
$1,701 |
| |
N/A |
| |
$1.01 |
|
GECCN
Notes |
| |
$45,000 |
| |
$1,701 |
| |
N/A |
| |
$1.00 |
|
December 31,
2020 |
| |
|
| |
|
| |
|
| |
|
|
GECCL
Notes |
| |
$30,293 |
| |
$1,671 |
| |
N/A |
| |
$0.89 |
|
GECCM
Notes |
| |
$45,610 |
| |
$1,671 |
| |
N/A |
| |
$0.84 |
|
GECCN
Notes |
| |
$42,823 |
| |
$1,671 |
| |
N/A |
| |
$0.84 |
|
December 31,
2021 |
| |
|
| |
|
| |
|
| |
|
|
GECCM
Notes |
| |
$45,610 |
| |
$1,511 |
| |
N/A |
| |
$1.00 |
|
GECCN
Notes |
| |
$42,823 |
| |
$1,511 |
| |
N/A |
| |
$1.00 |
|
GECCO
Notes |
| |
$57,500 |
| |
$1,511 |
| |
N/A |
| |
$1.02 |
|
December 31,
2022 |
| |
|
| |
|
| |
|
| |
|
|
GECCM
Notes |
| |
$45,610 |
| |
$1,544 |
| |
N/A |
| |
$0.99 |
|
GECCN
Notes |
| |
$42,823 |
| |
$1,544 |
| |
N/A |
| |
$1.00 |
|
GECCO
Notes |
| |
$57,500 |
| |
$1,544 |
| |
N/A |
| |
$1.00 |
|
Revolving
Credit Facility |
| |
$10,000 |
| |
$1,544 |
| |
N/A |
| |
— |
|
March 31,
2023 (Unaudited) |
| |
|
| |
|
| |
|
| |
|
|
GECCM
Notes |
| |
$45,610 |
| |
$1,598 |
| |
N/A |
| |
$0.98 |
|
GECCN
Notes |
| |
$42,823 |
| |
$1,598 |
| |
N/A |
| |
$0.99 |
|
GECCO
Notes |
| |
$57,500 |
| |
$1,598 |
| |
N/A |
| |
$0.96 |
|
Revolving
Credit Facility |
| |
$5,000 |
| |
$1,598 |
| |
N/A |
| |
— |
|
(1) |
Total amount of each class
of senior securities outstanding at the end of the period presented. |
|
(2) |
Asset coverage per unit 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. |
|
(4) |
The average market value
per unit for the notes, as applicable, is based on the average daily prices of such notes and is expressed per $1 of indebtedness. |
41
DESCRIPTION
OF THE NOTES
The
Notes will be issued under an indenture, dated as of September 18, 2017, and the fifth supplemental indenture thereto, to be entered
into between us and American Stock Transfer & Trust Company, LLC, as trustee. We refer to the indenture, as supplemented by the fifth
supplemental indenture, as the indenture and to American Stock Transfer & Trust Company, LLC as the Trustee. The Notes are governed
by the indenture, as required by federal law for all bonds and notes of companies that are publicly offered. 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 Notes.
This
section includes a description of the material terms of the Notes and the indenture. Because this section is a summary, however, it does
not describe every aspect of the Notes and the indenture. We urge you to read the indenture because it, and not this description, defines
your rights as a holder of the Notes. The indenture has been attached as an exhibit to the registration statement of which this prospectus
is a part and filed with the SEC. See “Where You Can Find More Information” for information on how to obtain a copy of the
indenture.
We
are permitted, under specified conditions, to issue multiple classes of indebtedness if our asset coverage, as defined in the Investment
Company Act, is at least equal to 150% immediately after each such issuance, as such obligation may be amended or superseded and giving
effect to any exemptive relief that may be 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 common stock
in certain cases, unless we meet the applicable asset coverage ratios at the time of the distribution or repurchase. We may also borrow
amounts up to 5% of the value of our total assets for temporary purposes without regard to asset coverage.
General
The
Notes will mature on , 2028. The principal payable at maturity will be 100.0% of the aggregate principal amount.
The interest rate of the Notes is % per year, and interest will be paid every , , and ,
beginning , 2023, and the regular record dates for interest payments will be every ,
, and , commencing , 2023. If an interest payment date falls on a non-business day, the
applicable interest payment will be made on the next business day and no additional interest will accrue as a result of such delayed payment.
The initial interest period will be the period from and including , 2023 to, but excluding, the initial interest
payment date, and the subsequent interest periods will be the periods from and including an interest payment date to, but excluding, the
next interest payment date or the stated maturity date, as the case may be.
We
will issue the Notes in minimum denominations of $25 and integral multiples of $25 in excess thereof. The Notes will not be subject to
any sinking fund and holders of the Notes will not have the option to have the Notes repaid prior to the stated maturity date.
The
indenture does not limit the amount of debt (including secured debt) that may be issued by us or our subsidiaries under the indenture
or otherwise, but does contain a covenant regarding our asset coverage that would have to be satisfied at the time of our incurrence of
additional indebtedness. See “—Other Covenants.” Other than the foregoing and as described under “—Other
Covenants,” the indenture does not contain any financial covenants and does not restrict us from paying dividends or issuing or
repurchasing our other securities. Other than restrictions described under “—Merger, Consolidation or Sale of Assets”
below, the indenture does not contain any covenants or other provisions designed to afford holders of the Notes protection in the event
of a highly leveraged transaction involving us or if our credit rating declines as the result of a takeover, recapitalization, highly
leveraged transaction or similar restructuring involving us that could adversely affect your investment in us.
We
have the ability to issue indenture securities with terms different from the Notes and, without the consent of the holders thereof, to
reopen the Notes and issue additional Notes.
42
Optional
Redemption
The
Notes may be redeemed in whole or in part at any time or from time to time at our option on or after , 2025 upon
not less than 30 days nor more than 60 days written notice by mail prior to the date fixed for redemption thereof, at a redemption price
equal to 100% of the outstanding principal amount of the Notes to be redeemed plus accrued and unpaid interest payments otherwise payable
for the then-current quarterly interest period accrued to, but excluding, the date fixed for redemption.
You
may be prevented from exchanging or transferring the Notes when they are subject to redemption. In case any Notes are to be redeemed in
part only, the redemption notice will provide that, upon surrender of such Note, you will receive, without a charge, a new Note or Notes
of authorized denominations representing the principal amount of your remaining unredeemed Notes, with the same terms as the redeemed
Notes. Any exercise of our option to redeem the Notes will be done in compliance with the Investment Company Act, to the extent applicable.
If
we redeem only some of the Notes, the Trustee or, with respect to global securities, DTC will determine the method for selection of the
particular Notes to be redeemed, in accordance with the indenture and the Investment Company Act, to the extent applicable, and in accordance
with the rules of any national securities exchange or quotation system on which the Notes are listed. Unless we default in payment of
the redemption price, on and after the date of redemption, interest will cease to accrue on the Notes called for redemption.
Global
Securities
Each
Note will be issued in book-entry form and represented by a global security that we deposit with and register in the name of DTC, New
York, New York, or its nominee. 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. As a result of these arrangements, the depositary, or its nominee, will be
the sole registered owner and holder of all the Notes represented by a global security, and investors will be permitted to own only beneficial
interests in a global security. For more information about these arrangements, see “—Book-Entry Procedures” below.
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 Notes 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.
Payment
and Paying Agents
We
will pay interest to the person listed in the Trustee’s records as the owner of the Notes 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 Notes 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 the Notes must work out between themselves the appropriate
purchase price. The most common manner is to adjust the sales price of the Notes 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 the Notes so long as they are represented by 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 “—Book-Entry Procedures.”
Payments
on Certificated Securities
In
the event the Notes become represented by certificated securities, we will make payments on the Notes as follows. We will pay interest
that is due on an interest payment date to the holder of the Notes as shown on the
43
Trustee’s
records as of the close of business on the regular record date at our office in Waltham, Massachusetts. We will make all payments of principal
and premium, if any, by check at the office of the Trustee in New York, New York and/or at other offices that may be specified in a notice
to holders against surrender of the Note.
Alternatively,
at our option, we may pay any cash interest that becomes due on the Notes 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 the Notes 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. Such payment will not result in a default under the Notes 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 the Notes.
Events
of Default
You
will have rights if an Event of Default occurs with respect to the Notes and the Event of Default is not cured, as described later in
this subsection.
The
term “Event of Default” with respect to the Notes means any of the following:
|
• |
We do not pay the principal
of any Note when due and payable. |
|
• |
We do not pay interest on
any Note when due, and such default is not cured within 30 days. |
|
• |
We remain in breach of any
other covenant with respect to the Notes 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 Notes. |
|
• |
We file for bankruptcy or
certain other events of bankruptcy, insolvency or reorganization occur and, in the case of certain orders or decrees entered against us
under any bankruptcy law, such order or decree remains undischarged or unstayed for a period of 90 days. |
|
• |
If, pursuant to Sections
18(a)(1)(c)(ii) and 61 of the Investment Company Act, or any successor provisions thereto of the Investment Company Act, on the last
business day of each of 24 consecutive calendar months the Notes have an asset coverage (as such term is used in the Investment Company
Act) of less than 100%, as such obligation may be amended or superseded but giving effect to any exemptive relief that may be granted
to us by the SEC. |
An
Event of Default for the Notes 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 the Notes of any default, except in the payment of
principal or interest, if it in good faith considers the withholding of notice to be in the best interests of the holders.
Remedies
if an Event of Default Occurs
If
an Event of Default has occurred and has not been cured, the Trustee or the holders of at least 25% in principal amount of the Notes may
declare the entire principal amount of all the Notes to be due and immediately payable. If an Event of Default referred to in the second
to last bullet point above with respect to us has occurred, the entire principal amount of all the Notes will automatically become due
and immediately payable. This is called a declaration of acceleration of maturity. In certain circumstances, a declaration of acceleration
of maturity may be canceled by the holders of a majority in principal amount of the Notes if (1) we have deposited with the Trustee all
amounts due and owing with respect to the Notes (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 protection reasonably
44
satisfactory
to it from expenses and liability (called an “indemnity”). If reasonable indemnity is provided, the holders of a majority
in principal amount of the Notes 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 the 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 Notes, the following must occur:
|
• |
You must give the Trustee
written notice that an Event of Default has occurred with respect to the Notes and remains uncured. |
|
• |
The holders of at least
25% in principal amount of all the Notes must make a written request that the Trustee take action because of the default and must offer
reasonable indemnity to the Trustee against the cost and other liabilities of taking that action. |
|
• |
The Trustee must not have
taken action for 60 days after receipt of the above notice and offer of indemnity. |
|
• |
The holders of a majority
in principal amount of the Notes 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 Notes 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 the Trustee a written statement of certain of our officers certifying that to their knowledge we are in compliance
with the indenture and the Notes, or else specifying any default.
Waiver
of Default
Holders
of a majority in principal amount of the Notes may waive any past defaults other than a default:
|
• |
in the payment of principal
or interest; or |
|
• |
in respect of a covenant
that cannot be modified or amended without the consent of each holder of the Notes. |
Merger,
Consolidation or Sale of Assets
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:
|
• |
Where we merge out of existence
or convey or transfer substantially all of our assets, the resulting entity must agree to be legally responsible for our obligations under
the Notes; |
|
• |
The merger or sale of assets
must not cause a default on the Notes 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 specified period of time were disregarded; and |
|
• |
We must deliver certain
certificates and documents to the Trustee. |
45
Modification
or Waiver
There
are three types of changes we can make to the indenture and the Notes issued thereunder.
Changes
Requiring Your Approval
First,
there are changes that we cannot make to the Notes without approval from each affected holder. The following is a list of those types
of changes:
|
• |
change the stated maturity
of the principal of or interest on the Notes; |
|
• |
reduce any amounts due on
the Notes; |
|
• |
reduce the amount of principal
payable upon acceleration of the maturity of the Notes following a default; |
|
• |
change the place or currency
of payment on the Notes; |
|
• |
impair your right to sue
for payment; |
|
• |
reduce the percentage of
holders of Notes whose consent is needed to modify or amend the indenture; and |
|
• |
reduce the percentage of
holders of Notes whose consent is needed to waive compliance with certain provisions of the indenture or to waive certain defaults. |
Changes
Not Requiring Approval
The
second type of change does not require any vote by the holders of the Notes. This type is limited to clarifications and certain other
changes that would not adversely affect holders of the Notes in any material respect.
Changes
Requiring Majority Approval
Any
other change to the indenture and the Notes would require the following approval:
|
• |
If the change affects only
the Notes, it must be approved by the holders of a majority in principal amount of the Notes. |
|
• |
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. |
The
holders of a majority in principal amount of all of the series of debt securities issued under an indenture, voting together as one class
for this purpose, may waive our compliance with some of our covenants in that indenture. 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 (including the Notes):
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. Debt securities will also not be eligible to vote if they have been fully defeased as described below 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. 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.
46
Defeasance
The
following defeasance provisions will be applicable to the Notes. “Defeasance” means that, by depositing with a trustee an
amount of cash and/or government securities sufficient to pay all principal and interest, if any, on the Notes when due and satisfying
any additional conditions noted below, we will be deemed to have been discharged from our obligations under the Notes. In the event of
a “covenant defeasance,” upon depositing such funds and satisfying similar conditions discussed below, we would be released
from certain covenants under the indenture relating to the Notes. The consequences to the holders of the Notes would be that, while they
would no longer benefit from certain covenants under the indenture, and while the Notes could not be accelerated for any reason, the holders
of Notes nonetheless would be guaranteed to receive the principal and interest owed to them.
Covenant
Defeasance
Under
current U.S. federal tax law, 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 applicable, you also would be released from the subordination provisions described under “—Indenture Provisions—Ranking”
below. In order to achieve covenant defeasance, we must do the following:
|
• |
Since the Notes are denominated
in U.S. dollars, we must deposit in trust for the benefit of all holders of the Notes a combination of money and U.S. government or U.S.
government agency notes or bonds that will generate enough cash to make interest, principal and any other payments on the Notes on their
due dates. |
|
• |
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 Notes any differently than if we did not make the deposit and just repaid the Notes ourselves at maturity. |
|
• |
Defeasance must not result
in a breach or violation of, or result in a default under, the indenture or any of our other material agreements or instruments. |
|
• |
No default or Event of Default
with respect to the Notes 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. |
|
• |
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 Investment Company Act and
a legal opinion and officers’ certificate stating that all conditions precedent to covenant defeasance have been complied with. |
If
we accomplish covenant defeasance, you can still look to us for repayment of the Notes 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 Notes became immediately due and payable, there might be a shortfall. Depending on the event causing the default, you may not
be able to obtain payment of the shortfall.
Full
Defeasance
If
there is a change in U.S. federal tax law, as described below, we can legally release ourselves from all payment and other obligations
on the Notes of a particular series (called “full defeasance”) if the following conditions are satisfied in order for you
to be repaid:
|
• |
Since the Notes are denominated
in U.S. dollars, we must deposit in trust for the benefit of all holders of the Notes a combination of money and U.S. government or U.S.
government agency notes or bonds that will generate enough cash to make interest, principal and any other payments on the Notes on their
various due dates. |
|
• |
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 Notes any differently than if we did not make the deposit and just repaid the Notes ourselves
at maturity. Under current U.S. federal tax law, the deposit and our legal release from the |
47
Notes
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 the Notes and you would recognize a gain or loss on the Notes at the time of the deposit.
|
• |
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 Investment Company Act and
a legal opinion and officers’ certificate stating that all conditions precedent to defeasance have been complied with. |
|
• |
Defeasance must not result
in a breach or violation of, or constitute a default under, the indenture or any of our other material agreements or instruments. |
|
• |
No default or Event of Default
with respect to the Notes 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. |
If
we ever did accomplish full defeasance, as described above, you would have to rely solely on the trust deposit for repayment of the Notes.
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 Notes were subordinated as described later
under “—Indenture Provisions—Ranking,” 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 Notes for the benefit of the subordinated debtholders.
Other
Covenants
In
addition to any other covenants described in this prospectus, as well as standard covenants relating to payment of principal and interest,
maintaining an office where payments may be made or securities can be surrendered for payment, our payment of taxes and related matters,
the following covenants will apply to the Notes:
|
• |
We agree that for the period
of time during which the Notes are outstanding, we will not violate, whether or not it is subject to, Section 18 (a)(1)(A) as modified
by Sections 61(a)(1) and (2) of the Investment Company Act or any successor provisions thereto of the Investment Company Act, as such
obligation may be amended or superseded but giving effect to any exemptive relief that may be granted to us by the SEC. Currently, these
provisions generally prohibit us from making additional borrowings, including through the issuance of additional debt securities, unless
our asset coverage, as defined in the Investment Company Act, equals at least 150% after such borrowings. |
|
• |
We agree that for the period
of time during which the Notes are outstanding, we will not declare any dividend (except a dividend payable in our stock), or declare
any other distribution, upon a class of our capital stock, or purchase any such capital stock, unless, in every such case, at the time
of the declaration of any such dividend or distribution, or at the time of any such purchase, we have an asset coverage (as defined in
the Investment Company Act) of at least the threshold specified in pursuant to Section 18(a)(1) (B) as modified by Sections 61(a)(1) and
(2) of the Investment Company Act or any successor provisions thereto of the Investment Company Act, as such obligation may be amended
or superseded (regardless of whether we are subject thereto), after deducting the amount of such dividend, distribution or purchase price,
as the case may be, and giving effect, in each case, (i) to any exemptive relief granted to us by the SEC and (ii) to any no-action
relief granted by the SEC to another BDC (or to us if we determine to seek such similar no-action or other relief) permitting the BDC
to declare any cash dividend or distribution notwithstanding the prohibition contained in Section 18(a)(1)(B) as modified by Sections
61(a)(1) and (2) of the Investment Company Act, as such obligation may be amended or superseded, in order to maintain such BDC’s
status as a RIC under Subchapter M of the Code. |
|
• |
If, at any time, we are
not subject to the reporting requirements of Sections 13 or 15(d) of the Exchange Act to file any periodic reports with the SEC, we will
furnish to holders of the Notes and the Trustee, for the period of time during which the Notes are outstanding, our audited annual consolidated
financial statements, within 90 days of our fiscal year end, and unaudited interim consolidated financial statements, within 45 days of
our fiscal quarter end (other than our fourth fiscal quarter). All such financial statements will be prepared, in all material respects,
in accordance with applicable GAAP. |
48
Notwithstanding
the restrictions on indebtedness and dividends described above, the indenture under which the Notes will be issued may not prohibit us
from paying distributions to our stockholders if we incur indebtedness in excess of the limits set forth in Sections 61(a)(1) and (2)
of the Investment Company Act or any successor provision if we determine that such indebtedness, which may include indebtedness under
a bank credit facility, is not a “senior security” for purposes of determining asset coverage under the Investment Company
Act.
Form,
Exchange and Transfer of Certificated Registered Securities
If
registered Notes cease to be issued in book-entry form, they will be issued:
|
• |
only in fully registered
certificated form; |
|
• |
without interest coupons;
and |
|
• |
unless we indicate otherwise,
in denominations of $25 and amounts that are multiples of $25. |
Holders
may exchange their certificated securities for Notes of smaller denominations or combined into fewer Notes of larger denominations, as
long as the total principal amount is not changed and as long as the denomination is equal to or greater than $25.
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 Notes in the names of holders transferring Notes. 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.
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.
Concerning
the Trustee
The
Trustee serves as trustee for the GECCM Notes, the GECCN Notes and GECCO Notes and as transfer agent for our common stock and agent for
our dividend reinvestment plan. We will appoint the Trustee as registrar and paying agent under the indenture.
Resignation
of Trustee
The
Trustee may resign or be removed with respect to the Notes provided that a successor trustee is appointed to act with respect to the Notes.
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—Ranking
The
Notes will be our direct unsecured obligations and will rank:
|
• |
pari
passu, or equal, with our existing and future unsecured indebtedness, including, without limitation, the GECCM Notes, the GECCN
Notes and the GECCO Notes; |
|
• |
effectively subordinated
to all of our existing and future secured indebtedness, including any amounts outstanding under the Loan Agreement, and any indebtedness
that is initially unsecured to which we subsequently grant security, to the extent of the value of the assets securing such indebtedness;
|
49
|
• |
structurally subordinated
to all existing and future indebtedness and other obligations of any of our subsidiaries; and |
|
• |
senior to our common stock
and any of our future indebtedness that expressly provides it is subordinated to the Notes. |
Effective
subordination means that in any liquidation, dissolution, bankruptcy or other similar proceeding, the holders of any of our existing or
future secured indebtedness and the secured indebtedness of our subsidiaries may assert rights against the assets pledged to secure that
indebtedness in order to receive full payment of their indebtedness before the assets may be used to pay other creditors. Structural subordination
means that creditors of a parent entity are subordinate to creditors of a subsidiary entity with respect to the subsidiary’s assets.
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). 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 the
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 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
or subordinated debt securities. 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:
|
• |
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 |
|
• |
renewals, extensions, modifications
and refinancings of any of this indebtedness. |
Book-Entry
Procedures
The
Notes will be represented by global securities that will be deposited and registered in the name of DTC or its nominee. This means that,
except in limited circumstances, you will not receive certificates for the Notes. Beneficial interests in the Notes will be represented
through book-entry accounts of financial institutions acting on behalf of beneficial owners as direct and indirect participants in DTC.
Investors may elect to hold interests in the Notes through either DTC, if they are a participant, or indirectly through organizations
that are participants in DTC.
The
Notes will be issued as fully registered securities registered in the name of Cede & Co. (DTC’s partnership nominee) or such
other name as may be requested by an authorized representative of DTC, and will be deposited with DTC. Interests in the Notes will trade
in DTC’s Same Day Funds Settlement System, and any permitted secondary market trading activity in such Notes will, therefore, be
required by DTC to be settled in immediately available funds. None of us, the Trustee or the Paying Agent will have any responsibility
for the performance by DTC or its participants or indirect participants of their respective obligations under the rules and procedures
governing their operations.
50
DTC
is a limited-purpose trust company organized under the New York Banking Law, a “banking organization” within the meaning of
the New York Banking Law, a member of the Federal Reserve System, a “clearing corporation” within the meaning of the New York
Uniform Commercial Code, and a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act.
DTC holds and provides asset servicing for over 3.5 million issues of U.S. and non-U.S. equity, corporate and municipal debt issues,
and money market instruments from over 100 countries that DTC’s participants (“Direct Participants”) deposit with DTC.
DTC also facilitates the post-trade settlement among Direct Participants of sales and other securities transactions in deposited securities
through electronic computerized book-entry transfers and pledges between Direct Participants’ accounts. This eliminates the need
for physical movement of securities certificates. Direct Participants include both U.S. and non-U.S. securities brokers and dealers, banks,
trust companies, clearing corporations, and certain other organizations. DTC is a wholly-owned subsidiary of The Depository Trust &
Clearing Corporation (“DTCC”).
DTCC
is the holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered
clearing agencies. DTCC is owned by the users of its regulated subsidiaries. Access to the DTC system is also available to others such
as both U.S. and non-U.S. securities brokers and dealers, banks, trust companies and clearing corporations that clear through or maintain
a custodial relationship with a Direct Participant, either directly or indirectly (“Indirect Participants”). DTC has a Standard
& Poor’s rating of AA+. The DTC Rules applicable to its participants are on file with the SEC. More information about DTC can
be found at www.dtcc.com and www.dtc.org. The information
on such website is not incorporated by reference into this prospectus.
Purchases
of the Notes under the DTC system must be made by or through Direct Participants, which will receive a credit for the Notes on DTC’s
records. The ownership interest of each actual purchaser of each security, or the “Beneficial Owner,” is in turn to be recorded
on the Direct and Indirect Participants’ records. Beneficial Owners will not receive written confirmation from DTC of their purchase.
Beneficial Owners are, however, expected to receive written confirmations providing details of the transaction, as well as periodic statements
of their holdings, from the Direct or Indirect Participant through which the Beneficial Owner entered into the transaction. Transfers
of ownership interests in the Notes are to be accomplished by entries made on the books of Direct and Indirect Participants acting on
behalf of Beneficial Owners. Beneficial Owners will not receive certificates representing their ownership interests in the Notes, except
in the event that use of the book-entry system for the Notes is discontinued.
To
facilitate subsequent transfers, all Notes deposited by Direct Participants with DTC are registered in the name of DTC’s partnership
nominee, Cede & Co. or such other name as may be requested by an authorized representative of DTC. The deposit of the Notes with DTC
and their registration in the name of Cede & Co. or such other DTC nominee do not affect any change in beneficial ownership. DTC has
no knowledge of the actual Beneficial Owners of the Notes; DTC’s records reflect only the identity of the Direct Participants to
whose accounts the Notes are credited, which may or may not be the Beneficial Owners. The Direct and Indirect Participants will remain
responsible for keeping account of their holdings on behalf of their customers.
Conveyance
of notices and other communications by DTC to Direct Participants, by Direct Participants to Indirect Participants, and by Direct Participants
and Indirect Participants to Beneficial Owners will be governed by arrangements among them, subject to any statutory or regulatory requirements
as may be in effect from time to time.
Redemption
notices shall be sent to DTC. If less than all of the Notes within an issue are being redeemed, DTC’s practice is to determine by
lot the amount of the interest of each Direct Participant in such issue to be redeemed.
Redemption
proceeds, distributions, and interest payments on the Notes will be made to Cede & Co., or such other nominee as may be requested
by an authorized representative of DTC. DTC’s practice is to credit Direct Participants’ accounts upon DTC’s receipt
of funds and corresponding detail information from us or the Trustee on the payment date in accordance with their respective holdings
shown on DTC’s records. Payments by Participants to Beneficial Owners will be governed by standing instructions and customary practices,
as is the case with securities held for the accounts of customers in bearer form or registered in “street name,” and will
be the responsibility of such Participant and not of DTC nor its nominee, the Trustee, or us, subject to any statutory or regulatory requirements
as may be in effect from time to time. Payment of redemption proceeds, distributions,
51
and
interest payments to Cede & Co. (or such other nominee as may be requested by an authorized representative of DTC) is the responsibility
of us or the Trustee, but disbursement of such payments to Direct Participants will be the responsibility of DTC, and disbursement of
such payments to the Beneficial Owners will be the responsibility of Direct and Indirect Participants.
DTC
may discontinue providing its services as securities depository with respect to the Notes at any time by giving reasonable notice to us
or to the Trustee. Under such circumstances, in the event that a successor securities depository is not obtained, certificates are required
to be printed and delivered. We may decide to discontinue use of the system of book-entry-only transfers through DTC (or a successor securities
depository). In that event, certificates will be printed and delivered to DTC.
The
information in this section concerning DTC and DTC’s book-entry system has been obtained from sources that we believe to be reliable,
but we take no responsibility for the accuracy thereof.
52
PORTFOLIO
COMPANIES
The
following table sets forth certain information as of March 31, 2023, for each portfolio company in which we had an investment. Other
than these investments, our only formal relationships with our portfolio companies are the significant managerial assistance that we may
provide upon request and the board observation or participation rights we may receive in connection with our investment. As defined by
the Investment Company Act, we are deemed to “control” Great Elm Healthcare Finance, LLC, Lenders Funding, LLC (“Lenders
Funding”), Prestige Capital Finance, LLC (“Prestige”) and Sterling Commercial Credit, LLC (“Sterling”) because
we own more than 25% of the common equity of those portfolio companies. In general, under the Investment Company Act, we would be presumed
to “control” a portfolio company if we owned more than 25% of its voting securities and would be an “affiliate”
of a portfolio company if we owned more than 5% of its outstanding voting securities. See “The Company—Our Portfolio at March 31,
2023” for a brief description of each company representing greater than 5% of our assets at March 31, 2023.
|
Dollar
amounts in thousands | ||||||||||||||||||||||||||||||
|
Portfolio
Company |
| |
Industry |
| |
Security(1) |
| |
Notes |
| |
Interest
Rate(2) |
| |
Initial
Acquisition
Date |
| |
Maturity |
| |
Par
Amount
/
Quantity |
| |
Cost |
| |
Fair
Value |
| |
Percentage
of
Class(3) |
|
Investments
at Fair Value | ||||||||||||||||||||||||||||||
|
ANGUS
Chemical Company 1500 E Lake Cook Rd Buffalo Grove,
IL
60089 |
| |
Chemicals |
| |
2nd
Lien, Secured Loan |
| |
2,
6 |
| |
1M
L + 7.75%, 8.50% Floor (12.59%) |
| |
09/21/2022 |
| |
11/24/2028 |
| |
$1,625 |
| |
$1,506 |
| |
$1,543 |
| |
|
|
APTIM
Corp. 4171 Essen Lane Baton Rouge,
LA
70809 |
| |
Industrial |
| |
1st
Lien, Secured Bond |
| |
11 |
| |
7.75% |
| |
03/28/2019 |
| |
06/15/2025 |
| |
5,000 |
| |
4,200 |
| |
3,500 |
| |
|
|
Avanti
Space Limited Cobham House 20 Black Friars Lane London,
UK
EC4V 6EB |
| |
Wireless
Telecommunications Services |
| |
Junior
Priority E2 Notes |
| |
6,
7, 9, 10 |
| |
12.50% |
| |
04/13/2022 |
| |
04/13/2024 |
| |
1,333 |
| |
1,138 |
| |
— |
| |
|
|
Avanti
Space Limited Cobham House 20 Black Friars Lane London,
UK
EC4V 6EB |
| |
Wireless
Telecommunications Services |
| |
Junior
Priority F Notes |
| |
6,
7, 9, 10 |
| |
12.50% |
| |
04/13/2022 |
| |
04/13/2024 |
| |
5,282 |
| |
4,552 |
| |
— |
| |
|
|
Avanti
Space Limited Cobham House 20 Black Friars Lane London,
UK
EC4V 6EB |
| |
Wireless
Telecommunications Services |
| |
Junior
Priority G Notes |
| |
6,
7, 9, 10 |
| |
12.50% |
| |
04/13/2022 |
| |
10/13/2024 |
| |
1,554 |
| |
1,339 |
| |
— |
| |
|
|
Avanti
Space Limited Cobham House 20 Black Friars Lane London,
UK
EC4V 6EB |
| |
Wireless
Telecommunications Services |
| |
Common
Equity |
| |
6,
8, 10 |
| |
n/a |
| |
04/13/2022 |
| |
n/a |
| |
1,722 |
| |
— |
| |
— |
| |
1.39% |
|
Avation
Capital SA 65 Kampong Bahru Road, #01-01
Singapore
169370 |
| |
Aircraft |
| |
2nd
Lien, Secured Bond |
| |
7,
10 |
| |
9.00%,
(6.50% cash + 2.50% PIK) |
| |
02/04/2022 |
| |
10/31/2026 |
| |
4,556 |
| |
4,025 |
| |
3,939 |
| |
|
|
Blackstone
Secured Lending 345 Park Avenue
New
York, NY 10154 |
| |
Closed-End
Fund |
| |
Common
Stock |
| |
10 |
| |
n/a |
| |
08/18/2022 |
| |
n/a |
| |
190,000 |
| |
4,405 |
| |
4,737 |
| |
* |
|
Blue
Ribbon, LLC 110 E Houston St. San Antonio, TX 78205 |
| |
Food
& Staples |
| |
1st
Lien, Secured Loan |
| |
2 |
| |
1M
L + 6.00%, 6.75% Floor (10.66%) |
| |
02/06/2023 |
| |
05/08/2028 |
| |
1,973 |
| |
1,516 |
| |
1,450 |
| |
|
|
Eagle
Point Credit Company Inc 600 Steamboat Road, Suite 202 Greenwich,
CT
06830 |
| |
Closed-End
Fund |
| |
Common
Stock |
| |
10 |
| |
n/a |
| |
08/18/2022 |
| |
n/a |
| |
133,844 |
| |
1,509 |
| |
1,495 |
| |
* |
|
ECL
Entertainment, LLC 8978 Spanish Ridge Ave Las Vegas, NV 89148 |
| |
Casinos
& Gaming |
| |
1st
Lien, Secured Loan |
| |
2 |
| |
1M
L + 7.50%, 8.25% Floor (12.42%) |
| |
03/31/2021 |
| |
04/30/2028 |
| |
4,671 |
| |
4,637 |
| |
4,627 |
| |
|
|
Enservco
/ Heat Waves 14133 County Rd 9 1/2 Longmont, CO 80504 |
| |
Specialty
Finance |
| |
Term
Loan |
| |
6 |
| |
29.44% |
| |
03/24/2022 |
| |
06/24/2026 |
| |
1,786 |
| |
1,808 |
| |
1,965 |
| |
|
|
Equitrans
Midstream Corp. 2200 Energy Drive Canonsburg, PA 15317 |
| |
Energy
Midstream |
| |
Preferred
Equity |
| |
6,
10 |
| |
9.75% |
| |
07/01/2021 |
| |
n/a |
| |
250,000 |
| |
5,275 |
| |
5,068 |
| |
* |
53
54
55
56
57
58
59
|
(1) |
Our
investments are generally acquired in private transactions exempt from registration under the Securities Act and, therefore, are generally
subject to limitations on resale, and may be deemed to be “restricted securities” under the Securities Act. |
|
(2) |
Certain
of our variable rate debt investments bear interest at a rate that is determined by reference to LIBOR, or L, prime rate (“Prime”)
or SOFR, which are reset periodically. For each debt investment, we have provided the interest rate in effect as of period end.
A floor is the minimum rate that will be applied in calculating an interest rate. A cap is the maximum rate that will be applied in calculating
an interest rate. The one-month (“1M”) LIBOR as of period end was 4.86%. The three-month (“3M”) LIBOR as of period
end was 5.19%. The six-month (“6M”) LIBOR as of period end was 5.31%. The prime rate
as of period end was 8.00%. The SOFR as of period end was 4.87%. |
|
(3) |
Percentage
of class held refers only to equity held, if any, calculated on a fully diluted basis. |
60
|
(4) |
“Controlled
Investments” are investments in those companies that are “Controlled Investments” of ours, as defined in the Investment
Company Act. A company is deemed to be a “Controlled Investment” of ours if we own more
than 25% of the voting securities of such company. |
|
(5) |
“Affiliate
Investments” are investments in those companies that are “Affiliated Companies” of ours, as defined in the Investment
Company Act, which are not “Controlled Investments.” A company is deemed to be an “Affiliate”
of ours if we own 5% or more, but less than 25%, of the voting securities of such company. |
|
(6) |
Investments
classified as Level 3 whereby fair value was determined by our Board. |
|
(7) |
Security
pays, or has the option to pay, some or all of its interest in kind. As of March 31, 2023, the Avation Capital SA secured bond, Nice-Pak
Products, Inc. secured loan B, Ruby Tuesday Operations, LLC secured loans, Sterling subordinated note and each of the Universal
Fiber Systems term loans pay all or a portion of their interest in-kind and the rates above reflect the PIK interest rates. As of March 31,
2023, each tranche of the Avanti Space Limited secured debt pay in kind and the rates above reflect the PIK interest rates, however,
each position is on non-accrual. |
|
(8) |
Non-income
producing security. |
|
(9) |
Investment
was on non-accrual status as of period end. |
|
(10) |
Indicates
assets that we believe do not represent “qualifying assets” under Section 55(a) of the Investment Company Act. Qualifying
assets must represent at least 70% of our total assets at the time of acquisition of any additional
non-qualifying assets. Of our total assets, 24.91% were non-qualifying assets as of period end. |
|
(11) |
Security
exempt from registration pursuant to Rule 144A under the Securities Act. Such security may be sold in certain transactions (normally
to qualified institutional buyers) and remain exempt from registration. |
|
(12) |
As
a practical expedient, we use NAV to determine the fair value of this investment. |
|
(13) |
As
of period end, the aggregate gross unrealized appreciation for all securities in which there was an excess of value over tax cost was
$13,166; the aggregate gross unrealized depreciation for all securities in which there was an excess
of tax cost over value was $35,925; the net unrealized depreciation was $22,759; the aggregate cost
of securities for Federal income tax purposes was $330,258. |
61
MANAGEMENT’S
DISCUSSION AND ANALYSIS OF
FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
The
following analysis of our financial condition and results of operations should be read in conjunction with our financial statements and
the notes thereto contained elsewhere in this prospectus.
Overview
We
are a BDC that seeks to generate both current income and capital appreciation through debt and income-generating equity investments, including
investments in specialty finance businesses. To achieve our investment objective, we invest in secured and senior secured debt instruments
of middle market companies, as well as income-generating equity investments in specialty finance companies, that we believe offer sufficient
downside protection and have the potential to generate attractive returns. We generally define middle market companies as companies with
enterprise values between $100 million and $2 billion. We also make investments throughout other portions of a company’s
capital structure, including subordinated debt, mezzanine debt, and equity or equity-linked securities. We source these transactions directly
with issuers and in the secondary markets through relationships with industry professionals.
In
December 2021, GESF, a wholly-owned subsidiary of GECC, was formed to oversee specialty finance related investments, and Michael Keller,
a seasoned professional with significant experience in specialty finance, was appointed President of GESF. We believe investments in specialty
finance companies along the “continuum of lending” provide durable risk adjusted returns that are expected to be largely uncorrelated
to the liquid credit markets. The “continuum of lending” as seen by GECM is the various stages of capital that are provided
to under-banked small and medium sized businesses and includes, but is not limited to inventory and purchase order financing, receivables
factoring, asset-based and asset-backed lending, and equipment financing. GECM believes that ownership interests in multiple specialty
finance companies will create a natural competitive advantage for each business and generate both revenue and cost synergies across companies.
On
September 27, 2016, we and GECM, our external investment manager, entered into an investment management agreement and the Administration
Agreement, and we began to accrue obligations to our external investment manager.
We
have elected to be treated as a RIC for U.S. federal income tax purposes. As a RIC, we will not be taxed on our income to the extent that
we distribute such income each year and satisfy other applicable income tax requirements. To qualify as a RIC, we must, among other things,
meet source-of-income and asset diversification requirements and annually distribute to our stockholders generally at least 90% of our
investment company taxable income on a timely basis. If we qualify as a RIC, we generally will not have to pay corporate level taxes on
any income that we distribute to our stockholders.
Investments
Our
level of investment activity can and does vary substantially from period to period depending on many factors, including, among others,
the amount of debt and equity capital available from other sources to middle-market companies, the level of merger and acquisition activity,
pricing in the high yield and leveraged loan credit markets, our expectations of future investment opportunities, the general economic
environment as well as the competitive environment for the types of investments we make.
As
a BDC, our investments and the composition of our portfolio are required to comply with regulatory requirements. See “The Company—Regulation
as a Business Development Company” and “The Company—Certain U.S. Federal Income Tax Matters.”
Revenues
We
generate revenue primarily from interest on the debt investments that we hold. We may also generate revenue from dividends on the equity
investments that we hold, capital gains on the disposition of investments, and lease, fee, and other income. Our investments in fixed
income instruments generally have an expected maturity of three to five years, although we have no lower or upper constraint on maturity.
Our debt investments generally pay interest quarterly or semi-annually. Payments of principal of our debt investments may be amortized
over the stated term of the investment, deferred for several years or due entirely at maturity. In some cases, our debt
62
investments
and preferred stock investments may defer payments of cash interest or dividends or PIK. In addition, we may generate revenue in the form
of prepayment fees, commitment, origination, due diligence fees, end-of-term or exit fees, fees for providing significant managerial assistance,
consulting fees and other investment-related income.
Expenses
Our
primary operating expenses include the payment of a base management fee, administration fees (including the allocable portion of overhead
under the Administration Agreement), and, depending on our operating results, an incentive fee. The base management fee and incentive
fee remunerates GECM for work in identifying, evaluating, negotiating, closing and monitoring our investments. The Administration Agreement
provides for reimbursement of costs and expenses incurred for office space rental, office equipment and utilities allocable to us under
the Administration Agreement, as well as certain costs and expenses incurred relating to non-investment advisory, administrative or operating
services provided by GECM or its affiliates to us. We also bear all other costs and expenses of our operations and transactions. In addition,
our expenses include interest on our outstanding indebtedness.
Critical
Accounting Policies and Estimates
Valuation
of Portfolio Investments
We
value our portfolio investments at fair value based upon the principles and methods of valuation set forth in policies adopted by our
Board. Fair value is defined as the price that would be received to sell an asset in an orderly transaction between market participants
at the measurement date. Market participants are buyers and sellers in the principal (or most advantageous) market for the asset that
(1) are independent of us; (2) are knowledgeable, having a reasonable understanding about the asset based on all available information
(including information that might be obtained through due diligence efforts that are usual and customary); (3) are able to transact for
the asset; and (4) are willing to transact for the asset (that is, they are motivated but not forced or otherwise compelled to do so).
Investments
for which market quotations are readily available are valued at such market quotations unless the quotations are deemed not to represent
fair value. Debt and equity securities for which market quotations are not readily available or for which market quotations are deemed
not to represent fair value, are valued at fair value using a valuation process consistent with our Board-approved policy.
Our
Board approves in good faith the valuation of our portfolio as of the end of each quarter. Due to the inherent uncertainty and subjectivity
of determining the fair value of investments that do not have a readily available market value, the fair value of our investments may
differ significantly from the values that would have been used had a readily available market value existed for such investments and may
differ materially from the values that we may ultimately realize. In addition, changes in the market environment and other events may
impact the market quotations used to value some of our investments.
Those
investments for which market quotations are not readily available or for which market quotations are deemed not to represent fair value
are valued utilizing a market approach, an income approach, or both approaches, as appropriate. The market approach uses prices and other
relevant information generated by market transactions involving identical or comparable assets or liabilities (including a business).
The income approach uses valuation techniques to convert future amounts (for example, cash flows or earnings) to a single present amount
(discounted). The measurement is based on the value indicated by current market expectations about those future amounts. In following
these approaches, the types of factors that we may take into account in determining the fair value of our investments include, as relevant
and among other factors: available current market data, including relevant and applicable market trading and transaction comparables;
applicable market yields and multiples, security covenants, call protection provisions, information rights and the nature and realizable
value of any collateral, the portfolio company’s ability to make payments, its earnings and discounted cash flows, the markets in
which the portfolio company does business, comparisons of financial ratios of peer companies that are public, and merger and acquisition
comparables; and enterprise values.
We
prefer the use of observable inputs and minimize the use of unobservable inputs in our valuation process. Inputs refer broadly to the
assumptions that market participants would use in pricing an asset. Observable inputs are inputs that reflect the assumptions market participants
would use in pricing an asset developed based on
63
market
data obtained from sources independent of us. Unobservable inputs are inputs that reflect our assumptions about the assumptions market
participants would use in pricing an asset developed based on the best information available in the circumstances.
Both
observable and unobservable inputs are subject to some level of uncertainty and assumptions used bear the risk of change in the future.
We utilize the best information available to us, including the factors listed above, in preparing the fair valuations. In determining
the fair value of any individual investment, we may use multiple inputs or utilize more than one approach to calculate the fair value
to assess the sensitivity to change and determine a reasonable range of fair value. In addition, our valuation procedures include an assessment
of the current valuation as compared to the previous valuation for each investment and where differences are material understanding the
primary drivers of those changes, incorporating updates to our current valuation inputs and approaches as appropriate.
Revenue
Recognition
Interest
and dividend income, including PIK income, is recorded on an accrual basis. Origination, structuring, closing, commitment and other upfront
fees, including OID, earned with respect to capital commitments are generally amortized or accreted into interest income over the life
of the respective debt investment, as are end-of- term or exit fees receivable upon repayment of a debt investment if such fees are fixed
in nature. Other fees, including certain amendment fees, prepayment fees and commitment fees on broken deals, and end-of-term or exit
fees that have a contingency feature or are variable in nature are recognized as earned. Prepayment fees and similar income due upon the
early repayment of a loan or debt security are recognized when earned and are included in interest income.
We
may purchase debt investments at a discount to their face value. Discounts on the acquisition of corporate debt instruments are generally
amortized using the effective-interest or constant-yield method unless there are material questions as to collectability.
We
assess the outstanding accrued income receivables for collectability at least quarterly, or more frequently if there is an event that
indicates the underlying portfolio company may not be able to make the expected payments. If it is determined that amounts are not likely
to be paid we may establish a reserve against or reverse the income and put the investment on non-accrual status.
Net
Realized Gains (Losses) and Net Change in Unrealized Appreciation (Depreciation)
We
measure realized gains or losses by the difference between the net proceeds from the repayment or sale of an investment and the amortized
cost basis of the investment, without regard to unrealized appreciation or depreciation previously recognized. Realized gains and losses
are computed using the specific identification method.
Net
change in unrealized appreciation or depreciation reflects the net change in portfolio investment fair values and portfolio investment
cost bases during the reporting period, including the reversal of previously recorded unrealized appreciation or depreciation when gains
or losses are realized.
64
Portfolio
and Investment Activity
The
following is a summary of our investment activity for the years ended December 31, 2022 and 2021 and the three months ended March 31,
2023:
|
(in
thousands) |
| |
Acquisitions(1) |
| |
Dispositions(2) |
| |
Weighted
Average
Yield
End of
Period(3) |
|
Quarter
ended March 31, 2021 |
| |
$58,429 |
| |
$(28,268) |
| |
10.91% |
|
Quarter
ended June 30, 2021 |
| |
49,904 |
| |
(35,583) |
| |
11.10% |
|
Quarter
ended September 30, 2021 |
| |
72,340 |
| |
(31,640) |
| |
11.27% |
|
Quarter
ended December 31, 2021 |
| |
34,184 |
| |
(40,270) |
| |
10.81% |
|
For
the year ended December 31, 2021 |
| |
214,857 |
| |
(135,761) |
| |
|
|
Quarter
ended March 31, 2022 |
| |
27,578 |
| |
(29,723) |
| |
10.38% |
|
Quarter
ended June 30, 2022 |
| |
44,750 |
| |
(34,014) |
| |
10.27% |
|
Quarter
ended September 30, 2022 |
| |
40,212 |
| |
(28,430) |
| |
11.59% |
|
Quarter
ended December 31, 2022 |
| |
37,588 |
| |
(20,461) |
| |
12.43% |
|
For
the year ended December 31, 2022 |
| |
150,128 |
| |
(112,628) |
| |
|
|
Quarter
ended March 31, 2023 |
| |
53,293 |
| |
(57,175) |
| |
13.06% |
|
(1) |
Includes
new investments, additional fundings (inclusive of those on revolving credit facilities), refinancings and capitalized PIK income.
Investments in short-term securities, including U.S. Treasury Bills and money market mutual funds, were excluded. |
|
(2) |
Includes
scheduled principal payments, prepayments, sales, and repayments (inclusive of those on revolving credit facilities). Investments
in short-term securities, including U.S. Treasury Bills and money market mutual funds, were excluded. |
|
(3) |
Weighted
average yield is based upon the stated coupon rate and fair value of outstanding debt securities at the measurement date. Debt securities
on non-accrual status are included in the calculation and are treated as having 0% as their applicable interest rate for purposes
of this calculation, unless such debt securities are valued at zero. |
Portfolio
Reconciliation
The
following is a reconciliation of the investment portfolio for the three months ended March 31, 2023 and the years ended December 31,
2022 and 2021. Investments in short-term securities, including U.S. Treasury Bills and money market mutual funds, are excluded from the
table below.
|
|
| |
For
the Three
Months
Ended
March 31,
2023 |
| |
For
the Year Ended December 31, | |||
|
(in
thousands) |
| |
2022 |
| |
2021 | |||
|
Beginning
Investment Portfolio, at fair value |
| |
$ 224,957 |
| |
$212,149 |
| |
$151,648 |
|
Portfolio
Investments acquired(1) |
| |
53,293 |
| |
150,128 |
| |
214,857 |
|
Amortization
of premium and accretion of discount, net |
| |
541 |
| |
1,328 |
| |
3,958 |
|
Portfolio
Investments repaid or sold(2) |
| |
(57,175) |
| |
(112,628) |
| |
(135,761) |
|
Net
change in unrealized appreciation (depreciation) on investments |
| |
3,473 |
| |
100,016 |
| |
(12,922) |
|
Net
realized gain (loss) on investments |
| |
1,850 |
| |
(126,036) |
| |
(9,631) |
|
Ending
Investment Portfolio, at fair value |
| |
$ 226,939 |
| |
$224,957 |
| |
$212,149 |
|
(1) |
Includes
new investments, additional fundings (inclusive of those on revolving credit facilities), refinancings and capitalized PIK income. |
|
(2) |
Includes
scheduled principal payments, prepayments, sales, and repayments (inclusive of those on revolving credit facilities). |
65
Portfolio
Classification
The
following table shows the fair value of our portfolio of investments by industry as of March 31, 2023 and December 31, 2022
and 2021 (in thousands):
|
|
| |
March 31,
2023 |
| |
December 31,
2022 |
| |
December 31,
2021 | |||||||||
|
Industry |
| |
Investments
at
Fair Value |
| |
Percentage
of
Fair
Value |
| |
Investments
at
Fair Value |
| |
Percentage
of
Fair
Value |
| |
Investments
at
Fair Value |
| |
Percentage
of
Fair
Value |
|
Specialty
Finance |
| |
$56,589 |
| |
24.94% |
| |
$58,250 |
| |
25.89% |
| |
$47,952 |
| |
22.60% |
|
Chemicals |
| |
26,204 |
| |
11.55% |
| |
31,702 |
| |
14.09% |
| |
15,058 |
| |
7.10% |
|
Insurance |
| |
14,591 |
| |
6.43% |
| |
2,340 |
| |
1.04% |
| |
— |
| |
—% |
|
Oil
& Gas Exploration & Production |
| |
13,139 |
| |
5.79% |
| |
15,136 |
| |
6.74% |
| |
9,849 |
| |
4.64% |
|
Energy
Midstream |
| |
12,248 |
| |
5.40% |
| |
22,559 |
| |
10.03% |
| |
31,815 |
| |
15.00% |
|
Internet
Media |
| |
12,216 |
| |
5.38% |
| |
12,247 |
| |
5.44% |
| |
11,870 |
| |
5.60% |
|
Shipping |
| |
12,042 |
| |
5.31% |
| |
7,206 |
| |
3.20% |
| |
— |
| |
—% |
|
Transportation
Equipment Manufacturing |
| |
11,064 |
| |
4.87% |
| |
11,803 |
| |
5.25% |
| |
6,030 |
| |
2.84% |
|
Consumer
Products |
| |
11,042 |
| |
4.86% |
| |
8,413 |
| |
3.74% |
| |
— |
| |
—% |
|
Energy
Services |
| |
9,764 |
| |
4.30% |
| |
2,877 |
| |
1.28% |
| |
— |
| |
—% |
|
Casinos
& Gaming |
| |
8,601 |
| |
3.79% |
| |
9,301 |
| |
4.13% |
| |
5,291 |
| |
2.49% |
|
Closed-End
Fund |
| |
6,232 |
| |
2.75% |
| |
5,825 |
| |
2.59% |
| |
— |
| |
—% |
|
Metals
& Mining |
| |
6,027 |
| |
2.66% |
| |
6,046 |
| |
2.69% |
| |
13,711 |
| |
6.46% |
|
Industrial |
| |
5,476 |
| |
2.41% |
| |
5,498 |
| |
2.44% |
| |
7,551 |
| |
3.56% |
|
Food
& Staples |
| |
5,330 |
| |
2.35% |
| |
3,660 |
| |
1.63% |
| |
2,724 |
| |
1.28% |
|
Aircraft |
| |
3,939 |
| |
1.73% |
| |
3,577 |
| |
1.59% |
| |
— |
| |
—% |
|
Oil
& Gas Refining |
| |
3,920 |
| |
1.73% |
| |
5,388 |
| |
2.40% |
| |
3,030 |
| |
1.43% |
|
Restaurants |
| |
3,447 |
| |
1.52% |
| |
3,110 |
| |
1.38% |
| |
8,310 |
| |
3.92% |
|
Hospitality |
| |
3,128 |
| |
1.38% |
| |
4,988 |
| |
2.22% |
| |
4,085 |
| |
1.93% |
|
Apparel |
| |
2,168 |
| |
0.95% |
| |
2,371 |
| |
1.05% |
| |
2,929 |
| |
1.38% |
|
Retail |
| |
44 |
| |
0.02% |
| |
5 |
| |
—% |
| |
4,267 |
| |
2.01% |
|
Special
Purpose Acquisition Company |
| |
35 |
| |
0.02% |
| |
19 |
| |
0.01% |
| |
3,044 |
| |
1.43% |
|
IT
Services |
| |
2 |
| |
—% |
| |
— |
| |
—% |
| |
7 |
| |
0.01% |
|
Auto
Manufacturer |
| |
2 |
| |
—% |
| |
2 |
| |
—% |
| |
— |
| |
—% |
|
Communications
Equipment |
| |
1 |
| |
—% |
| |
— |
| |
—% |
| |
1,057 |
| |
0.50% |
|
Biotechnology |
| |
1 |
| |
—% |
| |
1 |
| |
—% |
| |
11 |
| |
0.01% |
|
Technology |
| |
(313) |
| |
(0.14)% |
| |
(365) |
| |
(0.16)% |
| |
(158) |
| |
(0.07)% |
|
Household
& Personal Products |
| |
— |
| |
—% |
| |
1 |
| |
—% |
| |
— |
| |
—% |
|
Wireless
Telecommunications Services |
| |
— |
| |
—% |
| |
2,997 |
| |
1.33% |
| |
8,137 |
| |
3.84% |
|
Construction
Materials Manufacturing |
| |
— |
| |
—% |
| |
— |
| |
—% |
| |
10,461 |
| |
4.93% |
|
Home
Security |
| |
— |
| |
—% |
| |
— |
| |
—% |
| |
5,590 |
| |
2.63% |
|
Commercial
Printing |
| |
— |
| |
—% |
| |
— |
| |
—% |
| |
2,025 |
| |
0.95% |
|
Healthcare
Supplies |
| |
— |
| |
—% |
| |
— |
| |
—% |
| |
2,869 |
| |
1.35% |
|
Consumer
Services |
| |
— |
| |
—% |
| |
— |
| |
—% |
| |
2,640 |
| |
1.24% |
|
Software
Services |
| |
— |
| |
—% |
| |
— |
| |
—% |
| |
1,994 |
| |
0.94% |
|
Total |
| |
$226,939 |
| |
100.00% |
| |
$224,957 |
| |
100.00% |
| |
$212,149 |
| |
100.0% |
66
Results
of Operations
Investment
Income
|
|
| |
For
the Three Months Ended March 31, |
| |
For
the Year Ended December 31, | ||||||||||||||||||
|
|
| |
2023 |
| |
2022 |
| |
2022 |
| |
2021 | ||||||||||||
|
|
| |
In
Thousands |
| |
Per
Share(1) |
| |
In
Thousands |
| |
Per
Share(1) |
| |
In
Thousands |
| |
Per
Share(2) |
| |
In
Thousands |
| |
Per
Share(2) |
|
Total
Investment Income |
| |
$8,410 |
| |
$1.11 |
| |
$5,558 |
| |
$1.22 |
| |
$24,429 |
| |
$3.91 |
| |
$25,254 |
| |
$6.20 |
|
Interest
income |
| |
6,630 |
| |
0.87 |
| |
4,041 |
| |
0.89 |
| |
18,684 |
| |
2.99 |
| |
19,917 |
| |
4.89 |
|
Dividend
income |
| |
934 |
| |
0.13 |
| |
1,267 |
| |
0.28 |
| |
4,354 |
| |
0.70 |
| |
4,347 |
| |
1.07 |
|
Other
income |
| |
846 |
| |
0.11 |
| |
250 |
| |
0.05 |
| |
1,391 |
| |
0.22 |
| |
990 |
| |
0.24 |
|
(1) |
The
per share amounts are based on a weighted average of 7,601,958 outstanding common shares for the three months ended March 31,
2023 and a weighted average of 4,558,451 outstanding common shares for the three months ended March 31, 2022. These weighted
average share amounts have been retroactively adjusted for the 6-for-1 reverse stock split effected on February 28, 2022. |
|
(2) |
The
per share amounts are based on a weighted average of 6,251,391 outstanding common shares for the year ended December 31, 2022
and a weighted average of 4,073,454 outstanding common shares for the year ended December 31, 2021. These weighted average share
amounts have been retroactively adjusted for the 6-for-1 reverse stock split effected on February 28, 2022. |
Investment
income consists of interest income, including net amortization of premium and accretion of discount on loans and debt securities, dividend
income and other income, which primarily consists of amendment fees, commitment fees and funding fees on loans. For the years ended December 31,
2022 and 2021, income includes non-cash PIK income of $1.3 million and $5.5 million, respectively.
Interest
income increased $2.6 million for the three months ended March 31, 2023 as compared to the three months ended March 31,
2022 primarily due to growth of the portfolio and rising interest rates. As of March 31, 2023, the debt investment portfolio had
an average coupon rate of 11.8% on approximately $204.2 million in principal as compared to 10.3% on $146.4 million of principal
as of March 31, 2022, excluding positions on non-accrual in each period.
Dividend
income for the three months ended March 31, 2023 decreased as compared to the corresponding period in the prior year primarily due
to a lower current quarter distribution from our investments in specialty finance portfolio companies and exits from certain preferred
equity positions.
The
decrease in interest income for the year ended December 31, 2022 as compared to the year ended December 31, 2021 is primarily
attributable to our investments in Avanti Communications which were put on non-accrual status at the end of fiscal year 2021 and in early
fiscal year 2022 and subsequently restructured in April 2022. As a result, we recognized only $0.1 in interest income on our investments
in Avanti Communications for the year ended December 31, 2022 as compared to $6.2 million for the year ended December 31,
2021. This decrease was partially offset by interest income earned on new positions in the portfolio.
Other
income increased for the year ended December 31, 2022 as compared to the year ended December 31, 2021 as a result of earning
approximately $1.2 million in fees in connection with the extensions of certain revolver commitments. This increase was partially
offset by a decrease of $0.8 million in other funding and consent fees earned in the year ended December 31, 2022 as compared
to the year ended December 31, 2021.
67
Expenses
|
|
| |
For
the Three Months Ended March 31, |
| |
For
the Year Ended December 31, | ||||||||||||||||||
|
|
| |
2023 |
| |
2022 |
| |
2022 |
| |
2021 | ||||||||||||
|
|
| |
In
Thousands |
| |
Per
Share(1) |
| |
In
Thousands |
| |
Per
Share(2) |
| |
In
Thousands |
| |
Per
Share(3) |
| |
In
Thousands |
| |
Per
Share(3) |
|
Total
Expenses |
| |
$5,543 |
| |
$0.73 |
| |
$(497) |
| |
$(0.11) |
| |
$13,716 |
| |
$2.19 |
| |
$12,921 |
| |
$3.17 |
|
Management
fees |
| |
869 |
| |
0.11 |
| |
780 |
| |
0.17 |
| |
3,205 |
| |
0.51 |
| |
3,182 |
| |
0.78 |
|
Incentive
fees |
| |
710 |
| |
0.09 |
| |
— |
| |
— |
| |
565 |
| |
0.10 |
| |
(4,323) |
| |
(1.06) |
|
Incentive
fee waiver |
| |
— |
| |
— |
| |
(4,854) |
| |
(1.06) |
| |
(4,854) |
| |
(0.78) |
| |
— |
| |
— |
|
Total
advisory and
management
fees |
| |
1,579 |
| |
0.20 |
| |
(4,074) |
| |
(0.89) |
| |
(1,084) |
| |
(0.17) |
| |
(1,141) |
| |
(0.28) |
|
Administration
fees |
| |
295 |
| |
0.04 |
| |
221 |
| |
0.05 |
| |
938 |
| |
0.15 |
| |
673 |
| |
0.17 |
|
Directors’
fees |
| |
52 |
| |
0.01 |
| |
63 |
| |
0.01 |
| |
215 |
| |
0.03 |
| |
233 |
| |
0.06 |
|
Interest
expense |
| |
2,821 |
| |
0.38 |
| |
2,670 |
| |
0.59 |
| |
10,690 |
| |
1.71 |
| |
10,428 |
| |
2.56 |
|
Professional
services |
| |
536 |
| |
0.07 |
| |
418 |
| |
0.09 |
| |
1,967 |
| |
0.31 |
| |
1,937 |
| |
0.48 |
|
Custody
fees |
| |
22 |
| |
0.00 |
| |
14 |
| |
0.00 |
| |
53 |
| |
0.01 |
| |
54 |
| |
0.01 |
|
Other |
| |
238 |
| |
0.03 |
| |
191 |
| |
0.04 |
| |
937 |
| |
0.15 |
| |
737 |
| |
0.17 |
|
Income
Tax Expense |
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
|
Excise
Tax Expense |
| |
28 |
| |
0.00 |
| |
101 |
| |
0.02 |
| |
252 |
| |
0.04 |
| |
48 |
| |
0.01 |
|
(1) |
The
per share amounts are based on a weighted average of 7,601,958 outstanding common shares for the three months ended March 31,
2023. |
|
(2) |
The
per share amounts are based on a weighted average of 4,558,451 outstanding common shares for the three months ended March 31,
2022. This weighted average share amount has been retroactively adjusted for the 6-for-1 reverse stock split effected on February 28,
2022. |
|
(3) |
The
per share amounts are based on a weighted average of 6,251,391 outstanding common shares for the year ended December 31, 2022
and a weighted average of 4,073,454 outstanding common shares for the year ended December 31, 2021. These weighted average share
amounts have been retroactively adjusted for the 6-for-1 reverse stock split effected on February 28, 2022. |
Expenses
are largely comprised of advisory fees and administration fees paid to GECM and interest expense on our outstanding notes payable. See
“—Liquidity and Capital Resources.” Advisory fees include management fees and incentive fees calculated in accordance
with the Investment Management Agreement, and administration fees include direct costs reimbursable to GECM under the Administration Agreement
and fees paid for sub-administration services.
Incentive
fees for the three months ended March 31, 2023 were $0.7 million and no incentive fees were recognized in the corresponding
period in the prior year due to the incentive fee waiver. GECM waived all accrued and unpaid incentive fees pursuant to the Investment
Management Agreement as of March 31, 2022. As of March 31, 2022, there were approximately $4.9 million of accrued and unpaid
incentive fees held on our balance sheet. In connection with the incentive fee waiver, we recognized the reversal of these accrued and
unpaid incentive fees during the period ending March 31, 2022, resulting in a corresponding increase in net income and increase in
NAV in such period (subject to any offsetting additional expenses or losses). The incentive fee waiver is not subject to recapture.
Management
fees increased for the three months ended March 31, 2023 as compared to the corresponding period in the prior year due to increases
in the underlying management fee assets which primarily consists of the fair value of the portfolio of investments. Administration fees
increased in the three months ended March 31, 2023 as compared to the corresponding period in the prior year primarily due to increases
in allocable personnel time spent on GECC matters.
Professional
services costs for the three months ended March 31, 2023 increased as compared to the three months ended March 31, 2022, primarily
due to increased legal expenses associated with specific transaction matters, as well as general rate increases for professional services
including legal and accounting costs.
For
the three months ended March 31, 2023, interest expense increased as compared to the corresponding period in the prior year due to
the revolver which had an average outstanding balance of $8.4 million during the quarter ended March 31, 2023 but no outstanding
balance during the quarter ended March 31, 2022.
68
Overall
expenses for the year ended December 31, 2022 increased as compared to the year ended December 31, 2021 primarily driven by
increases in administration fees and other expenses. The $0.3 million increase in administration fees for the year ended December 31,
2022 as compared to the year ended December 31, 2021 is attributable to increased allocation of personnel costs from GECM as a result
of additional resource time spent on GECC matters.
Other
expenses include costs for insurance, transfer agent fees, shareholder materials and other compliance related expenses. The $0.2 million
increase in other expenses for the year ended December 31, 2022 as compared to the year ended December 31, 2021 was primarily
driven by increased costs associated with systems, travel and diligence expenses and a settlement payment related to a former investment.
For
the year ended December 31, 2022, GECC recognized $0.6 million in incentive fees which was offset by $4.9 million in previously
recognized incentive fees which were waived by GECM as of March 31, 2022 resulting in a net reversal of $4.3 million for incentive
fees for the year. For the year ended December 31, 2021, GECC recognized $1.2 million in incentive fees which were offset by
the reversal of $5.3 million in previously recognized incentive fees as a result of income reversals, realized losses where proceeds
did not cover the amortized cost basis, and the determination that previously recognized incentive fees earned on certain non-accrual
positions with significant write-downs should not be recognized as a liability.
Realized
Gain (Loss) on Investments
The
following table summarizes our realized gains (losses) resulting from investment activity and purchase accounting.
|
|
| |
For
the Three Months Ended March 31, |
| |
For
the Year Ended December 31, | ||||||||||||||||||
|
|
| |
2023 |
| |
2022 |
| |
2022 |
| |
2021 | ||||||||||||
|
|
| |
In
Thousands |
| |
Per
Share(1) |
| |
In
Thousands |
| |
Per
Share(2) |
| |
In
Thousands |
| |
Per
Share(3) |
| |
In
Thousands |
| |
Per
Share(3) |
|
Net
Realized Gain (Loss) |
| |
$1,845 |
| |
$0.24 |
| |
$(19,933) |
| |
$(4.37) |
| |
$(126,046) |
| |
$(20.16) |
| |
$(9,639) |
| |
$(2.37) |
|
Gross
realized gain |
| |
1,902 |
| |
0.25 |
| |
791 |
| |
0.17 |
| |
6,207 |
| |
0.99 |
| |
8,128 |
| |
2.00 |
|
Gross
realized loss |
| |
(57) |
| |
(0.01) |
| |
(20,724) |
| |
(4.54) |
| |
(132,253) |
| |
(21.15) |
| |
(17,767) |
| |
(4.37) |
|
(1) |
The
per share amounts are based on a weighted average of 7,601,958 outstanding common shares for the three months ended March 31,
2023. |
|
(2) |
The
per share amounts are based on a weighted average of 4,558,451 outstanding common shares for the three months ended March 31,
2022. This weighted average share amount has been retroactively adjusted for the 6-for-1 reverse stock split effected on February 28,
2022. |
|
(3) |
The
per share amounts are based on a weighted average of 6,251,391 outstanding common shares for the year ended December 31, 2022
and a weighted average of 4,073,454 outstanding common shares for the year ended December 31, 2021. These weighted average share
amounts have been retroactively adjusted for the 6-for-1 reverse stock split effected on February 28, 2022. |
During
the three months ended March 31, 2023, net realized gains were primarily driven by sales of our investments in Crestwood Equity Partners,
LP (“Crestwood”) preferred equity, ANGUS Chemical Company first lien secured loan, and Forum Energy Technologies, Inc. first
lien secured convertible bond resulting in realized gains of $0.7 million, $0.2 million, and $0.1 million, respectively.
In addition, the paydowns of our investments in Par Petroleum, LLC first lien secured loans and W&T Offshore, Inc. second lien secured
bond resulted in realized gains of $0.4 million and $0.2 million, respectively.
During
the three months ended March 31, 2022, net realized losses were primarily driven by the sales of our investment in Tru (UK) Asia
Limited (“Tru Taj”) common stock and California Pizza Kitchen, Inc. (“CPK”) common stock for which we recognized
realized losses of $15.9 million and $4.2 million, respectively. These realized losses were offset by the corresponding reversals
of previously recognized unrealized losses on these positions.
During
the year ended December 31, 2022, net realized losses on investments were primarily driven by the restructuring of Avanti Communications
on which we realized approximately $111 million of previously recognized unrealized losses as a result of the April 2022 restructuring.
In addition, we realized approximately
69
$15.9 million
and $4.2 million of previously recognized unrealized losses as a result of the sales of our positions in Tru Taj common stock and
CPK common stock, respectively. Such realized losses are offset by the relief of those previously recognized unrealized losses as discussed
under “—Unrealized Appreciation (Depreciation) on Investments” below.
During
the year ended December 31, 2022, gross realized gains included approximately $2.2 million on sales of our investment in Crestwood
preferred stock, $1.0 million on the sale of our investment in GAC HoldCo Inc. warrants and $0.9 million on the refinancing
of our investment in Tensar Corporation 2nd Lien secured loan.
During
the year ended December 31. 2021, net realized losses on investments were primarily driven by exits from our investments in Davidzon Radio,
Inc. (“Davidzon”), OPS Acquisitions Limited and Ocean Protection Services Limited (“OPS”), Boardriders, Inc. and
Best Western Luling, on which we recognized $5.7 million, $4.2 million, $2.9 million and $1.3 million, respectively,
in realized losses. We recognized realized gains of $4.0 million on sales of our investment in Crestwood and $1.2 million and
$0.4 million, respectively, on paydowns of our investments in Subcom, LLC revolver and CPK 1st Lien secured loan.
Unrealized
Appreciation (Depreciation) on Investments
The
following table summarizes the significant unrealized appreciation (depreciation) of our investment portfolio.
|
|
| |
For
the Three Months Ended March 31, |
| |
For
the Year Ended December 31, | ||||||||||||||||||
|
|
| |
2023 |
| |
2022 |
| |
2022 |
| |
2021 | ||||||||||||
|
|
| |
In
Thousands |
| |
Per
Share(1) |
| |
In
Thousands |
| |
Per
Share(2) |
| |
In
Thousands |
| |
Per
Share(3) |
| |
In
Thousands |
| |
Per
Share(3) |
|
Net
Change in Unrealized Appreciation/ (Depreciation) |
| |
$3,476 |
| |
$0.46 |
| |
$8,870 |
| |
$1.94 |
| |
$100,002 |
| |
$16.00 |
| |
$(12,921) |
| |
$(3.17) |
|
Unrealized
appreciation |
| |
7,465 |
| |
0.98 |
| |
20,762 |
| |
4.55 |
| |
130,699 |
| |
20.91 |
| |
54,377 |
| |
13.35 |
|
Unrealized
depreciation |
| |
(3,989) |
| |
(0.52) |
| |
(11,892) |
| |
(2.61) |
| |
(30,697) |
| |
(4.91) |
| |
(67,298) |
| |
(16.52) |
|
(1) |
The
per share amounts are based on a weighted average of 7,601,958 outstanding common shares for the three months ended March 31,
2023. |
|
(2) |
The
per share amounts are based on a weighted average of 4,558,451 outstanding common shares for the three months ended March 31,
2022. This weighted average share amount has been retroactively adjusted for the 6-for-1 reverse stock split effected on February 28,
2022. |
|
(3) |
The
per share amounts are based on a weighted average of 6,251,391 outstanding common shares for the year ended December 31, 2022
and a weighted average of 4,073,454 outstanding common shares for the year ended December 31, 2021. These weighted average share
amounts have been retroactively adjusted for the 6-for-1 reverse stock split effected on February 28, 2022. |
Net
unrealized appreciation for the three months ended March 31, 2023 is primarily due to the increases in fair value of our investments
in United Insurance Holding Corp. unsecured bonds and Prestige common equity of $3.0 million and $0.8 million, respectively.
This unrealized appreciation was partially offset by unrealized depreciation due to decreases in fair value of our investment in Maverick
Gaming, LLC first lien secured loan and First Brands, Inc. second lien secured loan of $0.9 million and $0.8 million, respectively.
During
the three months ended March 31, 2022, gross unrealized appreciation primarily consisted of the reversal of previously recognized
unrealized losses on our investments in Tru Taj common stock and CPK common stock, which were offset by corresponding realized losses
as discussed above. Gross unrealized depreciation was driven by the write downs on our investments in the Avanti Communications 1.125
lien secured loan, Avanti Communications 1.25 lien secured loan and 1.5 lien secured loan, on which we collectively recognized $7.7 million
in unrealized depreciation. In April 2022, Avanti Communications announced a series of restructuring transactions pursuant to which certain
creditors of Avanti Communications (excluding GECC) contributed additional senior debt financing to Avanti Communications, and the 2nd
lien secured bond and 1.5 lien secured loan were converted to equity.
For
the year ended December 31, 2022, net unrealized appreciation was attributable to the relief of previously recognized unrealized
depreciation as a result of sales of our investments in Tru Taj and CPK and the restructuring of our investments in Avanti Communications,
as discussed under Realized Gains (Losses) above.
70
Unrealized
depreciation for the year ended December 31, 2022 includes approximately $7.0 million in decrease in fair value of our investment
in Avanti Space Limited junior priority notes received in the April 2022 restructuring of Avanti Communications and $5.1 million
in decrease in fair value of our equity investment in Lenders Funding.
For
the year ended December 31, 2021, net unrealized depreciation was largely driven by decreases in portfolio company valuations as
compared to the prior year end. Most notably, we recognized unrealized depreciation of $32.0 million on our investments in Avanti
Communications and approximately $5.9 million on our investments in PFS Holdings Corp. These were offset by unrealized appreciation
of $6.0 million, $5.2 million, and $4.2 million on the investments in CPK common equity, Davidzon and OPS 1st lien secured
loan, respectively, due to exits from these positions resulting in reversing previously recognized unrealized depreciation.
Please
see “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations” in our Annual Report
on Form 10-K for the fiscal year ended December 31, 2021 for a discussion of fiscal year 2020.
Liquidity
and Capital Resources
We
generate liquidity through our operations with cash received from investment income and sales and paydowns on investments. Such proceeds
are generally reinvested in new investment opportunities, distributed to shareholders in the form of dividends, or used to pay operating
expenses. We also receive proceeds from our issuances of notes payable and our revolving credit facility and from time to time may raise
additional equity capital. See “—Revolver” and “—Notes Payable” below for more information regarding
our outstanding credit facility and notes.
At
March 31, 2023, we had approximately $1.6 million of cash and cash equivalents and approximately $10.8 million of money
market fund investments at fair value. At March 31, 2023, we had investments in 51 debt instruments across 42 companies, totaling
approximately $184.1 million at fair value and 65 equity investments in 64 companies, totaling approximately $42.9 million at
fair value.
In
the normal course of business, we may enter into investment agreements under which we commit to make an investment in a portfolio company
at some future date or over a specified period of time. As of March 31, 2023, we had approximately $21.0 million in unfunded
loan commitments, subject to our approval in certain instances, to provide debt financing to certain of our portfolio companies. We had
sufficient cash and other liquid assets on our March 31, 2023 balance sheet to satisfy the unfunded commitments.
For
the three months ended March 31, 2023, net cash provided by operating activities was approximately $8.7 million, reflecting
the purchases and repayments of investments offset by net investment income, including non-cash income related to accretion of discount
and PIK income and proceeds from sales of investments and principal payments received. Net cash provided by purchases and proceeds from
sales of investments was approximately $6.8 million, reflecting payments for additional investments of $50.4 million, offset
by proceeds from principal repayments and sales of $57.2 million. Such amounts include draws and repayments on investments in revolving
credit facilities.
For
the three months ended March 31, 2023, net cash used in financing activities was $7.7 million, consisting of $5.0 million
in net repayments on the revolving credit facility and $2.7 million in distributions to stockholders.
At
December 31, 2022, we had approximately $0.6 million of cash and cash equivalents and approximately $6.3 million of money
market fund investments at fair value. At December 31, 2022, we had investments in 52 debt instruments across 42 companies, totaling
approximately $185.0 million at fair value and 89 equity investments in 88 companies, totaling approximately $40.0 million at
fair value.
In
the normal course of business, we may enter into investment agreements under which we commit to make an investment in a portfolio company
at some future date or over a specified period of time. As of December 31, 2022, we had approximately $19.9 million in unfunded
loan commitments to provide debt financing to certain of our portfolio companies. We had sufficient cash and other liquid assets on our
December 31, 2022 balance sheet to satisfy the unfunded commitments.
For
the year ended December 31, 2022, net cash used in operating activities was approximately $41.8 million, reflecting the purchases
and repayments of investments offset by net investment income, including non-cash income related to accretion of discount and PIK income
and proceeds from sales of investments and principal
71
payments
received. Net cash used in purchases and proceeds from sales of investments was approximately $36.5 million, reflecting payments
for additional investments of $149.5 million, offset by proceeds from principal repayments and sales of $113.0 million. Such
amounts include draws and repayments on revolving credit facilities.
For
the year ended December 31, 2021, net cash used in operating activities was approximately $58.5 million, reflecting the purchases
and repayments of investments offset by net investment income, including non-cash income related to accretion of discount and PIK income
and proceeds from sales of investments and principal payments received. Net cash used in purchases and proceeds from sales of investments
was approximately $56.9 million, reflecting payments for additional investments of $191.9 million, offset by proceeds from principal
repayments and sales of $135.0 million. Such amounts include draws and repayments on revolving credit facilities.
For
the year ended December 31, 2022, cash provided by financing activities was $33.2 million, which consisted of $37.5 million
in proceeds from issuance of common stock and $10.0 million in borrowings under credit facility offset by $13.0 million in distributions
and $1.3 million in payments of deferred financing costs.
For
the year ended December 31, 2021, cash provided by financing activities was $14.5 million, which consisted of $55.2 million
in proceeds from the issuance of the GECCO Notes offset by $30.3 million in repayment on the GECCL Notes and payment of $9.9 million
in distributions.
We
believe we have sufficient liquidity available to meet our short-term and long-term obligations for at least the next 12 months and for
the foreseeable future thereafter.
Contractual
Obligations and Other Cash Requirements
A
summary of our material contractual payment obligations and other cash requirements as of March 31, 2023 is as follows:
|
(in
thousands) |
| |
Total |
| |
Less
than
1 year |
| |
1-3 years |
| |
3-5 years |
| |
More
than
5 years |
|
Contractual
Obligations and Other Cash
Requirements |
| |
|
| |
|
| |
|
| |
|
| |
|
|
GECCM
Notes |
| |
$45,610 |
| |
$— |
| |
$45,610 |
| |
$— |
| |
$— |
|
GECCN
Notes |
| |
42,823 |
| |
— |
| |
42,823 |
| |
— |
| |
— |
|
GECCO
Notes |
| |
57,500 |
| |
— |
| |
— |
| |
57,500 |
| |
— |
|
Revolving
Credit Facility |
| |
5,000 |
| |
— |
| |
5,000 |
| |
— |
| |
— |
|
Total |
| |
$150,933 |
| |
$— |
| |
$93,433 |
| |
$57,500 |
| |
$— |
See
“—Revolver” and “—Notes Payable” below for more information regarding our outstanding credit facility
and notes.
We
have certain contracts under which we have material future commitments. Under the Investment Management Agreement, GECM provides investment
advisory services to us. For providing these services, we pay GECM a fee, consisting of two components: (1) a base management fee based
on the average value of our total assets and (2) an incentive fee based on our performance.
We
are also party to the Administration Agreement with GECM. Under the Administration Agreement, GECM furnishes us with, or otherwise arranges
for the provision of, office facilities, equipment, clerical, bookkeeping, finance, accounting, compliance and record keeping services
at such office facilities and other such services as our administrator.
72
If
any of the contractual obligations discussed above are terminated, our costs under any new agreements that we enter into may increase.
In addition, we would likely incur significant time and expense in locating alternative parties to provide the services we expect to receive
under our Investment Management Agreement and our Administration Agreement. Any new investment management agreement would also be subject
to approval by our stockholders.
Both
the Investment Management Agreement and the Administration Agreement may be terminated by either party without penalty upon no fewer than
60 days’ written notice to the other.
Revolver
On
May 5, 2021, we entered into the Loan Agreement with CNB. The Loan Agreement provides for a senior secured revolving line of credit
of up to $25 million (subject to a borrowing base as defined in the Loan Agreement). We may request to increase the revolving line
in an aggregate amount not to exceed $25 million, which increase is subject to the sole discretion of CNB. The maturity date of the
revolving line is May 5, 2024. Borrowings under the revolving line bear interest at a rate equal to (i) SOFR plus 3.50%, (ii) a
base rate plus 2.00% or (iii) a combination thereof, as determined by us. As of March 31, 2023, there were $5.0 million
in borrowings outstanding under the revolving line.
Borrowings
under the revolving line are secured by a first priority security interest in substantially all of our assets, subject to certain specified
exceptions. We have made customary representations and warranties and are required to comply with various affirmative and negative covenants,
reporting requirements and other customary requirements for similar loan agreements. In addition, the Loan Agreement contains financial
covenants requiring (i) net assets of not less than $65 million, (ii) asset coverage equal to or greater than 150% and
(iii) bank asset coverage equal to or greater than 300%, in each case tested as of the last day of each fiscal quarter of the Company.
Borrowings are also subject to the leverage restrictions contained in the Investment Company Act. In May 2022, the Loan Agreement was
amended to require an asset coverage equal to or greater than 150% as of the last day of each fiscal quarter except for the fiscal quarters
ending March 31, 2022 and June 30, 2022. In addition, the interest rate was amended to replace LIBOR with SOFR.
Notes
Payable
On
January 11, 2018, we issued $43.0 million in aggregate principal amount of the GECCM Notes. On January 19, 2018 and February 9,
2018, we issued an additional $1.9 million and $1.5 million, respectively, of the GECCM Notes upon partial exercise of the underwriters’
over-allotment option. The aggregate principal balance of the GECCM Notes outstanding as of March 31, 2023 is $45.6 million.
On
June 18, 2019, we issued $42.5 million in aggregate principal amount of the GECCN Notes, which included $2.5 million of
GECCN Notes issued in connection with the partial exercise of the underwriters’ over-allotment option. On July 5, 2019, we
issued an additional $2.5 million of the GECCN Notes upon another partial exercise of the underwriters’ over-allotment option.
The aggregate principal balance of the GECCN Notes outstanding as of March 31, 2023 is $42.8 million.
On
June 23, 2021, we issued $50.0 million in aggregate principal amount of the GECCO Notes. On July 9, 2021, we issued an
additional $7.5 million of the GECCO Notes upon full exercise of the underwriters’ over-allotment option. The aggregate principal
balance of the GECCO Notes outstanding as of March 31, 2023 is $57.5 million.
The
GECCM Notes, GECCN Notes and GECCO Notes are our unsecured obligations and rank equal with all of our outstanding and future unsecured
unsubordinated indebtedness. The unsecured notes are effectively subordinated, or junior in right of payment, to indebtedness under our
Loan Agreement and any other future secured indebtedness that we may incur and structurally subordinated to all future indebtedness and
other obligations of our subsidiaries. We pay interest on the GECCM Notes, GECCN Notes and GECCO Notes on March 31, June 30,
September 30 and December 31 of each year. The GECCM Notes, GECCN Notes and GECCO Notes will mature on January 31, 2025, June 30,
2024 and June 30, 2026, respectively. The GECCM Notes and GECCN Notes are currently callable at the Company’s option and the
GECCO Notes can be called on, or after, June 30, 2023. Holders of the Notes do not have the option to have the Notes repaid prior
to the stated maturity date. The Notes were issued in minimum denominations of $25 and integral multiples of $25 in excess thereof.
73
We
may repurchase the GECCM Notes, GECCN Notes and GECCO Notes in accordance with the Investment Company Act and the rules promulgated thereunder.
As
of March 31, 2023, our asset coverage ratio was approximately 159.8%. Under the Investment Company Act, we are subject to a minimum
asset coverage ratio of 150%.
Recent
Developments
Our
Board set distributions for the quarter ending June 30, 2023 at a rate of $0.35 per share. The full amount of each distribution will
be from distributable earnings. The schedule of distribution payments will be established by GECC pursuant to authority granted by our
Board. The distribution will be paid in cash.
Interest
Rate Risk
We
are also subject to financial risks, including changes in market interest rates. As of March 31, 2023, approximately $117.3 million
in principal amount of our debt investments bore interest at variable rates, which are generally based on LIBOR, SOFR or US prime rate,
and many of which are subject to certain floors. Recently, interest rates have risen and a prolonged increase in interest rates will
increase our gross investment income and could result in an increase in our net investment income if such increases in interest rates
are not offset by a corresponding decrease in the spread over variable rates that we earn on any portfolio investments or an increase
in our operating expenses. See “Quantitative and Qualitative Disclosure About Market Risk” for an analysis of the impact
of hypothetical base rate changes in interest rates.
74
QUANTITATIVE
AND QUALITATIVE DISCLOSURE ABOUT MARKET RISK
We
are subject to financial market risks, including changes in interest rates. As of March 31, 2023, 23 debt investments in our portfolio
bore interest at a fixed rate, and the remaining 27 debt investments were at variable rates, representing approximately $112.8 million
and $117.3 million in aggregate principal amount, respectively. As of December 31, 2022, 31 debt investments in our portfolio
bore interest at a fixed rate, and the remaining 23 debt investments were at variable rates, representing approximately $129.3 million
and $100.8 million in aggregate principal amount, respectively. The variable rates are generally based upon the LIBOR, SOFR or US
prime rate.
To
illustrate the potential impact of a change in the underlying interest rate on our net investment income, we have assumed a 1%, 2%, and
3% increase and 1%, 2%, and 3% decrease in the underlying reference rate, and no other change in our portfolio as of March 31, 2023.
We have also assumed there are no outstanding floating rate borrowings by the Company. See the following table for the effect the rate
changes would have on net investment income.
|
Reference
Rate Increase (Decrease) |
| |
Increase
(decrease) of Net
Investment
Income
(in
thousands)(1) |
|
3.00% |
| |
$3,670 |
|
2.00% |
| |
2,447 |
|
1.00% |
| |
1,223 |
|
(1.00)% |
| |
(1,224) |
|
(2.00)% |
| |
(2,448) |
|
(3.00)% |
| |
(3,664) |
|
(1) |
Several
of our debt investments with variable rates contain a reference rate floor. The actual increase (decrease) of net investment income
reflected in the table above takes into account such floors to the extent applicable. |
Although
we believe that this analysis is indicative of our existing interest rate sensitivity at March 31, 2023, it does not adjust for changes
in the credit quality, size and composition of our portfolio, and other business developments, including borrowing under a credit facility,
that could affect the net increase (decrease) in net assets resulting from operations. Accordingly, no assurances can be given that actual
results would not differ materially from the results under this hypothetical analysis.
We
may in the future hedge against interest rate fluctuations by using standard hedging instruments such as futures, options and forward
contracts. While hedging activities may insulate us against adverse changes in interest rates, they may also limit our ability to participate
in the benefits of lower interest rates with respect to the investments in our portfolio with fixed interest rates.
75
THE
COMPANY
Overview
We
are a Maryland corporation that was formed in April 2016. We operate as a closed-end, externally managed, non-diversified management investment
company that has elected to be regulated as a BDC under the Investment Company Act. In addition, for tax purposes, we elected to be treated
as a RIC under the Code, beginning with our tax year starting October 1, 2016.
We
seek to generate both income and capital appreciation through debt and income-generating equity investments, including investments in
specialty finance businesses.
To
achieve our investment objective, we invest in secured and senior secured debt instruments of middle market companies, as well as income-generating
equity investments in specialty finance companies, that we believe offer sufficient downside protection and have the potential to generate
attractive returns. We generally define middle market companies as companies with enterprise values between $100 million and $2 billion.
We
also make investments throughout other portions of a company’s capital structure, including subordinated debt, mezzanine debt, and
equity or equity-linked securities. We source these transactions directly with issuers and in the secondary markets through relationships
with industry professionals.
Our
Portfolio at March 31, 2023
A
list of the industries in which we have invested as of March 31, 2023 may be found in “Management’s Discussion and Analysis
of Financial Condition and Results of Operations.” Set forth below is a brief description of each company representing greater than
5% of the fair market value of our portfolio, excluding short-term investments, at March 31, 2023.
Lenders
Funding, LLC
Lenders
Funding is a private funding and risk sharing source for factors and asset-based lenders. It purchases participations in their transactions
on a non-recourse basis or provides working capital to them under a variety of flexible programs. Since its formation, Lenders Funding
has worked with over 150 lenders and factors and has supplied several hundred million dollars in funding.
Prestige
Capital Finance, LLC
Prestige
is a commercial finance company specializing in providing spot factoring services, providing clients with an opportunity to sell individual
accounts receivable for an upfront payment. Prestige serves clients across a wide range of industries with between $100 thousand and $10 million
of accounts receivable. Prestige has been in business for over 30 years and factored over $6 billion in transactions during
that time.
Sterling
Commercial Credit, LLC
Sterling
is a specialty finance company providing asset based loans between $2 and $30 million. Sterling is an industry leading transparent
commercial lending partner for growth-minded entrepreneurs, private equity firms and M&A professionals.
United
Insurance Holdings Corp.
United
Insurance Holdings Corp. (“UIHC”) is the holding company for American Coastal Insurance Company, Interboro Insurance Company, and affiliated
companies. UIHC is primarily engaged in sourcing, writing and servicing personal and commercial residential property and casualty insurance
policies in the United States.
Universal
Fiber Systems
Universal
Fiber Systems (“Universal Fiber”) is a global leader in the production of uniquely colored and high-quality, solution-dyed
synthetic filament-based fibers. Universal Fiber serves customers in the flooring, transportation, medical and industrial fiber industries.
76
Investment
Manager and Administrator
GECM’s
investment team has more than 100 years of experience in the aggregate financing and investing in leveraged middle-market companies.
GECM’s investment committee includes Matt Kaplan, Adam M. Kleinman, Jason W. Reese and Nichole Milz. GEG is the parent company of
GECM.
Investment
Selection
GECM
employs a team of investment professionals with experience in leveraged and specialty finance. The research team performs fundamental
research at both the industry and company level. Through in-depth industry coverage, GECM’s investment team seeks to develop a thorough
understanding of the fundamental market, sector drivers, mergers and acquisition activity, security pricing and trading and new issue
trends. GECM’s investment team believes that understanding industry trends is an important element of investment success.
We
have recently expanded our investment allocation in specialty finance companies as well as in participation opportunities generated by
both unrelated and related specialty finance companies. GECM believes investments in specialty finance companies along the “continuum
of lending” provide attractive risk adjusted returns that are expected to be largely uncorrelated to the liquid credit markets.
The “continuum of lending” as seen by GECM is the various stages of capital that are provided to under-banked small and medium
sized businesses and includes inventory and purchase order financing, receivables factoring, asset-based and asset-backed lending, and
equipment financing. GECM believes that ownership interests in multiple specialty finance companies will create a natural competitive
advantage for each business and generate both revenue and cost synergies across companies. In December 2021, GECC’s wholly-owned
subsidiary, GESF, was formed to oversee specialty finance related investments, and Michael Keller, a seasoned professional with significant
experience in specialty finance, was appointed President of GESF.
Idea
Generation, Origination and Refinement
Idea
generation and origination is maximized through long-standing and extensive relationships with industry contacts, brokers, commercial
and investment bankers, as well as current and former clients, portfolio companies and investors. GECM’s investment team is expected
to supplement these lead sources by also utilizing broader research efforts, such as attendance at prospective borrower industry conferences
and an active calling effort to brokers and investment bankers. GECM’s investment team focuses their idea generation and origination
efforts on middle-market companies. In screening potential investments, GECM’s investment team utilizes a value-oriented investment
philosophy with analysis and research focused on the preservation of capital. GECM has identified several criteria that it believes are
important in identifying and investing in prospective portfolio companies. GECM’s process requires focus on the terms of the applicable
contracts and instruments. GECM’s criteria provide general guidelines for GECM’s investment committee’s decisions; however,
not all of these criteria will be met by each prospective portfolio company in which they choose to invest.
Asset
Based Investments. Investments in businesses based on the value of the collateral or the issuer’s
assets. This type of investment focuses on expected realizable value of the issuer’s assets.
Enterprise
Value Investments. Investments in businesses whose enterprise value represents the opportunity for principal
to be repaid by refinancing or in connection with a merger or acquisition transaction. These investments focus
on the going concern value of the enterprise.
Other
Debt Investments. Investments in businesses which have the ability to pay interest and principal on
outstanding debt out of expected free cash flow from their business. These investments focus
on the sustainability and defensibility of cash flows from the business.
Due
Diligence
GECM’s
due diligence typically includes:
|
• |
analysis of the credit documents
by GECM’s investment team (including the members of the team with legal training and years of professional experience). GECM will
engage outside counsel when necessary as well; |
|
• |
review of historical and
prospective financial information; |
77
|
• |
research relating to the
prospective portfolio company’s management, industry, markets, customers, products and services and competitors and customers; |
|
• |
verification of collateral
or assets; |
|
• |
interviews with management,
employees, customers and vendors of the prospective portfolio company; and |
|
• |
informal or formal background
and reference checks. |
Upon
the completion of due diligence and a decision to proceed with an investment in a company, the investment professionals leading the diligence
process present the opportunity to GECM’s investment committee, which then determines whether to pursue the potential investment.
Approval
of Investment Transactions
GECM’s
procedures call for each new investment under consideration by the GECM analysts to be preliminarily reviewed at periodic meetings of
GECM’s investment team. GECM’s investment team then prepares a summary of the investment, including a financial model and
risk cases and a legal review checklist. GECM’s investment committee then will hold a formal review meeting, and following approval
of a specific investment, authorization is given to GECM’s trader, including execution guidelines.
GECM’s
investment analysts provide regular updates of the positions for which they are responsible to members of GECM’s investment committee.
GECM’s
investment analysts and portfolio manager will jointly decide when to sell a position in consultation with members of the GECM investment
committee. The sale decision will then be given to GECM’s trader, who will execute the trade.
Ongoing
Relationship with Portfolio Companies
As
a BDC, we offer, and sometimes provide upon request, significant managerial assistance to certain of our portfolio companies. This assistance
could involve, among other things, monitoring the operations of our portfolio companies, participating in board and management meetings,
consulting with and advising officers of our portfolio companies and providing other organizational and financial guidance.
GECM’s
investment team monitors our portfolio companies on an ongoing basis. They monitor the financial trends of each portfolio company and
its respective industry to assess the appropriate course of action for each investment. GECM’s ongoing monitoring of a portfolio
company will include both a qualitative and quantitative analysis of the company and its industry.
Valuation
Procedures
We
value our assets, an essential input in the determination of our NAV consistent with GAAP and as required by the Investment Company Act.
See “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Critical Accounting Policies
and Estimates” for an extended discussion of our methodology.
Staffing
We
do not currently have any employees. Mr. Kaplan is our President and Chief Executive Officer and Portfolio Manager for GECM, as well
as a Managing Director of ICAM. Under the Administration Agreement, GECM provides the services of our Chief Financial Officer and Chief
Compliance Officer.
GECM
has entered into a shared services agreement with ICAM, pursuant to which ICAM will make available to GECM certain employees of ICAM,
including Mr. Kaplan, to provide services to GECM in exchange for reimbursement by GECM of the allocated portion of such employees’
time.
Competition
We
compete for investments with other BDCs and investment funds (including private equity funds, hedge funds, mutual funds, mezzanine funds
and small business investment companies), as well as traditional financial services companies such as commercial banks, direct lending
funds and other sources of funding. Additionally,
78
because
there is competition for investment opportunities among alternative investment vehicles, those entities have begun to invest in areas
they have not traditionally invested in, including making investments in the types of portfolio companies we target. Many of these entities
have greater financial and managerial resources than we do.
Formation
Transactions and Merger
On
June 23, 2016, we entered into an Agreement and Plan of Merger (the “Merger Agreement”), with Full Circle, that provided
for a stock-for-stock merger of Full Circle with and into GECC. The Merger was completed, and we commenced operations on November 3,
2016.
Exemptive
Relief
We
have received exemptive relief from the SEC that will allow us to co-invest, together with other investment vehicles managed by GECM,
in specific investment opportunities in accordance with the terms and conditions of the Exemptive Relief Order.
Investment
Management Agreement
Management
Services
GECM
serves as our investment adviser and is registered as an investment adviser under the Advisers Act. Subject to the overall supervision
of our Board, GECM manages our day-to-day operations and provides investment advisory and management services to us. Under the terms of
the Investment Management Agreement, GECM:
|
• |
determines the composition
of our portfolio, the nature and timing of the changes to our portfolio and the manner of implementing such changes; |
|
• |
identifies, evaluates and
negotiates the structure of our investments (including performing due diligence on our prospective portfolio companies); |
|
• |
closes and monitors our
investments; and |
|
• |
determines the securities
and other assets that we purchase, retain or sell. |
GECM’s
services to us under the Investment Management Agreement are not exclusive, and GECM is free to furnish similar services to other entities.
Management
and Incentive Fees
Under
the Investment Management Agreement, GECM receives a fee from us, consisting of two components: (1) a base management fee and (2)
an incentive fee.
The
base management fee is calculated at an annual rate of 1.50% of our average adjusted gross assets, including assets purchased with borrowed
funds. The base management fee is payable quarterly in arrears. The base management fee is calculated based on the average value of our
gross assets, excluding cash and cash equivalents, at the end of the two most recently completed calendar quarters, and appropriately
adjusted for any share issuances or repurchases during the then current calendar quarter. Base management fees for any partial quarter
are prorated.
The
incentive fee consists of two components that are independent of each other, with the result that one component may be payable even if
the other is not. One component of the incentive fee is the Income Incentive Fee and the other component is the Capital Gains Incentive
Fee.
Income
Incentive Fee
The
Income Incentive Fee is calculated and payable quarterly in arrears based on our pre-incentive fee net investment income for the quarter.
Pre-incentive fee net investment income means interest income, dividend income and any other income (including any other fees such as
commitment, origination, diligence and
79
consulting
fees or other fees that we receive from portfolio companies, but excluding fees for providing managerial assistance) accrued during the
calendar quarter, minus operating expenses for the quarter (including the base management fee, any expenses payable under the Administration
Agreement, and any interest expense and dividends paid on any outstanding preferred stock, but excluding the incentive fee). Pre-incentive
fee net investment income includes any accretion of original issue discount, market discount, PIK interest, PIK dividends or other types
of deferred or accrued income, including in connection with zero coupon securities, that we and our consolidated subsidiaries have recognized
in accordance with GAAP, but have not yet received in cash (collectively, “Accrued Unpaid Income”).
Pre-incentive
fee net investment income does not include any realized capital gains or unrealized capital appreciation or depreciation. Because of the
structure of the incentive fee, it is possible that we may pay an incentive fee in a quarter where we incur a loss. For example, if we
receive pre-incentive fee net investment income in excess of the hurdle rate (as defined below) for a quarter, we will pay the applicable
incentive fee even if we have incurred a loss in that quarter due to realized and unrealized capital losses.
Pre-incentive
fee net investment income, expressed as a rate of return on the value of our net assets (defined in accordance with GAAP) at the end of
the immediately preceding calendar quarter, is compared to a fixed “hurdle rate” of 1.75% per quarter (7.00% annualized).
If market interest rates rise, we may be able to invest in debt instruments that provide for a higher return, which would increase our
pre-incentive fee net investment income and make it easier for GECM to surpass the fixed hurdle rate and receive an incentive fee based
on such net investment income.
We
pay the incentive fee with respect to our pre-incentive fee net investment income in each calendar quarter as follows:
|
• |
no incentive fee in any
calendar quarter in which the pre-incentive fee net investment income does not exceed the hurdle rate; |
|
• |
100% of our pre-incentive
fee net investment income with respect to that portion of such pre-incentive fee net investment income, if any, that exceeds the hurdle
rate, but is less than 2.1875% in any calendar quarter (8.75% annualized). We refer to this portion of our pre-incentive fee net investment
income as the “catch up” provision. The “catch up” is meant to provide GECM with 20% of the pre-incentive fee
net investment income as if a hurdle rate did not apply if our net investment income exceeds 2.1875% in any calendar quarter; and |
|
• |
20% of the amount of our
pre-incentive fee net investment income, if any, that exceeds 2.1875% in any calendar quarter (8.75% annualized). |
The
following is a graphical representation of the calculation of the income related portion of the incentive fee:
These
calculations are adjusted for any share issuances or repurchases during the quarter and will be appropriately prorated for any period
of less than three months. Any Income Incentive Fee otherwise payable with respect to Accrued Unpaid Income (collectively, the “Accrued
Unpaid Income Incentive Fees”) will be deferred, on a security by security basis, and will become payable only if, as, when and
to the extent cash is received by us or our consolidated subsidiaries in respect thereof. Any Accrued Unpaid Income that is subsequently
reversed in connection with a write-down, write-off, impairment or similar treatment of the investment giving rise to such Accrued Unpaid
Income will, in the applicable period of reversal, (1) reduce pre-incentive fee net investment income and (2) reduce the amount of Accrued
Unpaid Income deferred pursuant to the terms of the Investment Management Agreement. Subsequent payments of Income Incentive Fees deferred
pursuant to this paragraph do not reduce the amounts payable for any quarter pursuant to the other terms of the Investment Management
Agreement.
We
will defer cash payment of any Income Incentive Fee otherwise payable to the investment adviser in any quarter (excluding Accrued Unpaid
Income Incentive Fees with respect to such quarter) that exceeds (1) 20% of the Cumulative Pre-Incentive Fee Net Return (as defined below)
during the most recent twelve full calendar
80
quarter
period ending on or prior to the date such payment is to be made (the “Trailing Twelve Quarters”) less (2) the aggregate incentive
fees that were previously paid to the investment adviser during such Trailing Twelve Quarters (excluding Accrued Unpaid Income Incentive
Fees during such Trailing Twelve Quarters and not subsequently paid). “Cumulative Pre-Incentive Fee Net Return” during the
relevant Trailing Twelve Quarters means the sum of (a) pre-incentive fee net investment income in respect of such Trailing Twelve Quarters
less (b) net realized capital losses and net unrealized capital depreciation, if any, in each case calculated in accordance with GAAP,
in respect of such Trailing Twelve Quarters.
Capital
Gains Incentive Fee
The
Capital Gains Incentive Fee is determined and payable in arrears as of the end of each calendar year (or upon termination of the Investment
Management Agreement, as of the termination date), commencing with the calendar year ended December 31, 2022, and is calculated at
the end of each applicable year by subtracting (a) the sum of our and our consolidated subsidiaries’ cumulative aggregate realized
capital losses (excluding, for the avoidance of doubt, any realized capital losses arising from unrealized capital depreciation occurring
prior to April 1, 2022) and aggregate unrealized capital depreciation from (b) our and our consolidated subsidiaries’ cumulative
aggregate realized capital gains, in each case calculated from and after April 1, 2022 (the “Capital Gains Commencement Date”).
If such amount is negative, then there is no Capital Gains Incentive Fee for such year. If such amount is positive at the end of such
year, then the Capital Gains Incentive Fee for such year is equal to 20% of such amount, less the aggregate amount of Capital Gains Incentive
Fees paid in all prior years.
The
cumulative aggregate realized capital gains are calculated as the sum of the differences, if positive, between (a) the net sales price
of each investment in our portfolio when sold and (b) the accreted or amortized cost basis of such investment. The cumulative aggregate
realized capital losses are calculated as the sum of the amounts by which (a) the net sales price of each investment in our portfolio
when sold is less than (b) the accreted or amortized cost basis of such investment. The aggregate unrealized capital depreciation is calculated
as the sum of the differences, if negative, between (a) the fair value of each investment in our portfolio as of the applicable Capital
Gains Incentive Fee calculation date and (b) the accreted or amortized cost basis of such investment.
Examples
of Quarterly Incentive Fee Calculations
The
following hypothetical calculations illustrate the calculation of the Income Incentive Fee under the Investment Management Agreement.
Amounts shown are a percentage of total net assets.
|
|
| |
Assumption
1 |
| |
Assumption
2 |
| |
Assumption
3 |
|
Investment
income(1) |
| |
4.94% |
| |
6.09% |
| |
6.94% |
|
Hurdle
rate (7% annualized) |
| |
1.75% |
| |
1.75% |
| |
1.75% |
|
“Catch
up” provision (8.75% annualized) |
| |
2.19% |
| |
2.19% |
| |
2.19% |
|
Pre-incentive
fee net investment income(2) |
| |
1.00% |
| |
2.15% |
| |
3.00% |
|
Incentive
fee |
| |
—%(3) |
| |
0.40%(4) |
| |
0.60%(5) |
|
(1) |
Investment
income includes interest income, dividends and other fee income. |
|
(2) |
Pre-incentive
fee net investment income is net of management fees and other expenses and excludes organizational and offering expenses.
In these examples, management fees are 0.38% (1.50% annualized) of net assets and other expenses are assumed to be 3.57% of
net assets. |
|
(3) |
The
pre-incentive fee net investment income is below the hurdle rate and thus no incentive fee is earned. |
|
(4) |
The
pre-incentive fee net investment income ratio of 2.15% is between the hurdle rate and the top of the “catch up” provision;
thus the corresponding incentive fee is calculated as 100% X (2.15% — 1.75%). |
|
(5) |
The
pre-incentive fee net investment income ratio of 3.00% is greater than both the hurdle rate and the “catch up” provision;
thus the corresponding incentive fee is calculated as (i) 100% X (2.1875% — 1.75%) or 0.4375%
(the “catch up”); plus (ii) 20% X (3.00% — 2.1875%). |
81
The
following hypothetical calculations illustrate the calculation of the Capital Gains Incentive Fee under the Investment Management Agreement.
|
|
| |
In
millions | |||
|
|
| |
Assumption
1 |
| |
Assumption
2 |
|
Year
1 |
| |
|
| |
|
|
Investment
in Company A |
| |
$20.0 |
| |
$20.0 |
|
Investment
in Company B |
| |
30.0 |
| |
30.0 |
|
Investment
in Company C |
| |
— |
| |
25.0 |
|
Year
2 |
| |
|
| |
|
|
Proceeds
from sale of investment in Company A |
| |
50.0 |
| |
50.0 |
|
Fair
market value (“FMV”) of investment in Company B |
| |
32.0 |
| |
25.0 |
|
FMV
of investment in Company C |
| |
— |
| |
25.0 |
|
Year
3 |
| |
|
| |
|
|
Proceeds
from sale of investment in Company C |
| |
— |
| |
30.0 |
|
FMV
of investment in Company B |
| |
25.0 |
| |
24.0 |
|
Year
4 |
| |
|
| |
|
|
Proceeds
from sale of investment in Company B |
| |
31.0 |
| |
— |
|
FMV
of investment in Company B |
| |
— |
| |
35.0 |
|
Year
5 |
| |
|
| |
|
|
Proceeds
from sale of investment in Company B |
| |
— |
| |
20.0 |
|
Capital
Gains Incentive Fee: |
| |
|
| |
|
|
Year
1 |
| |
—(1) |
| |
—(1) |
|
Year
2 |
| |
6.0(2) |
| |
5.0(6) |
|
Year
3 |
| |
—(3) |
| |
0.8(7) |
|
Year
4 |
| |
0.2(4) |
| |
1.2(8) |
|
Year
5 |
| |
—(5) |
| |
—(9) |
|
(1) |
There
is no Capital Gains Incentive Fee in Year 1 as there have been no realized capital gains. |
|
(2) |
Aggregate
realized capital gains are $30.0 million. There are no aggregate realized capital losses or aggregate unrealized capital depreciation.
Capital Gains Incentive Fee is calculated as $30.0 million x 20%. |
|
(3) |
Aggregate
realized capital gains are $30.0 million. There are no aggregate realized capital losses and there is $5.0 million in aggregate
unrealized capital depreciation. Capital Gains Incentive Fee is calculated as the greater of (i) zero
and (ii) ($30.0 million - $5.0 million) x 20% less $6.0 million (aggregate Capital
Gains Incentive Fee paid in prior years). |
|
(4) |
Aggregate
realized capital gains are $31.0 million. There are no aggregate realized capital losses or aggregate unrealized capital depreciation.
Capital Gains Incentive Fee is calculated as the greater of (i) zero and (ii) $31.0 million x 20% less $6.0 million (aggregate
Capital Gains Incentive Fee paid in prior years). |
|
(5) |
There
is no Capital Gains Incentive Fee in Year 5 as there are no aggregate realized capital gains for which Capital Gains Incentive Fee has
not already been paid in prior years. |
|
(6) |
Aggregate
realized capital gains are $30.0 million. There are no aggregate realized capital losses and there is $5.0 million in aggregate
unrealized capital depreciation. Capital Gains Incentive Fee is calculated as the greater of (i) zero
and (ii) ($30.0 million - $5.0 million) x 20%. There have been no Capital Gains Incentive
Fees paid in prior years. |
|
(7) |
Aggregate
realized capital gains are $35.0 million. There are no aggregate realized capital losses and there is $6.0 million in aggregate
unrealized capital depreciation. Capital Gains Incentive Fee is calculated as the greater of (i) zero
and (ii) ($35.0 million - $6.0 million) x 20% less $5.0 million (aggregate Capital
Gains Incentive Fee paid in prior years). |
|
(8) |
Aggregate
realized capital gains are $35.0 million. There are no aggregate realized capital losses or aggregate unrealized capital depreciation.
Capital Gains Incentive Fee is calculated as the greater of (i) zero and (ii) $35.0 million x 20% less $5.8 million (aggregate
Capital Gains Incentive Fee paid in prior years). |
|
(9) |
Aggregate
realized capital gains are $35.0 million. Aggregate realized capital losses are $10.0 million. There is no aggregate unrealized
capital depreciation. Capital Gains Incentive Fee is calculated as the greater of (i) zero and
(ii) ($35.0 million - $10.0 million) x 20% less $7.0 million (aggregate Capital Gains
Incentive Fee paid in prior years). |
As
illustrated in Year 3 of Assumption 1 above, if GECC were to be wound up on a date other than December 31 of any year, we may have
paid aggregate capital gain incentive fees that are more than the amount of such fees that would be payable if GECC had been wound up
on December 31 of such year.
For
the year ended December 31, 2022, we incurred $3.2 million in base management fees and $0.6 million in income based fees
accrued during the period, exclusive of the waiver granted by GECM of $4.9 million in incentive fees earned in
previous periods. The incentive fees are currently expected to be deferred
82
in
accordance with the Investment Management Agreement. There were no Capital Gains Incentive Fees earned by GECM as calculated under the
Investment Management Agreement for the year ended December 31, 2022.
For
the year ended December 31, 2021, we incurred $3.2 million in base management fees and $(4.3) million in income based fees accrued
during the period. The incentive fees were deferred in accordance with the Investment Management Agreement. There were no capital gains
incentive fees earned by GECM as calculated under the Investment Management Agreement for the year ended December 31, 2021.
For
the year ended December 31, 2020, we incurred $2.5 million in base management fees and $1.0 million in income-based fees
accrued during the period. The incentive fees were deferred in accordance with the Investment Management Agreement. There were no capital
gains incentive fees earned by GECM as calculated under the Investment Management Agreement for the year ended December 31, 2020.
Payment
of Expenses
The
services of all investment professionals and staff of GECM, when and to the extent engaged in providing investment advisory and management
services, and the compensation and routine overhead expenses of such personnel allocable to such services, are provided and paid for by
GECM. GECM has policies and procedures in place to calculate reimbursement of administrative expenses insofar as they relate to compensation
and overhead of administrator personnel and rent on a quarterly basis. Compensation of administrator personnel is allocated based on time
allocation for the period. Other overhead expenses are based on a combination of time allocation and total headcount. We bear all other
costs and expenses of our operations and transactions, including (without limitation):
|
• |
our organizational expenses; |
|
• |
fees and expenses, including
reasonable travel expenses, actually incurred by GECM or payable to third parties related to our investments, including, among others,
professional fees (including the fees and expenses of counsel, consultants and experts) and fees and expenses relating to, or associated
with, evaluating, monitoring, researching and performing due diligence on investments and prospective investments (including payments
to third party vendors for financial information services); |
|
• |
out-of-pocket fees and expenses,
including reasonable travel expenses, actually incurred by GECM or payable to third parties related to the provision of managerial assistance
to our portfolio companies that we agree to provide such services to under the Investment Company Act (exclusive of the compensation of
any investment professionals of GECM); |
|
• |
interest or other costs
associated with debt, if any, incurred to finance our business; |
|
• |
fees and expenses incurred
in connection with our membership in investment company organizations; |
|
• |
brokers’ commissions; |
|
• |
investment advisory and
management fees; |
|
• |
fees and expenses associated
with calculating our NAV (including the costs and expenses of any independent valuation firm); |
|
• |
fees and expenses relating
to offerings of our common stock and other securities; |
|
• |
legal, auditing or accounting
expenses; |
|
• |
federal, state and local
taxes and other governmental fees; |
|
• |
the fees and expenses of
GECM, in its role as the administrator, and any sub-administrator, our transfer agent or sub-transfer agent, and any other amounts payable
under the Administration Agreement, or any similar administration agreement or sub-administration agreement to which we may become a party; |
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the cost of preparing stock
certificates or any other expenses, including clerical expenses of issue, redemption or repurchase of our securities; |
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the expenses of and fees
for registering or qualifying our common stock for sale and of maintaining our registration and registering us as a broker or a dealer; |
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the fees and expenses of
our directors who are not interested persons (as defined in the Investment Company Act); |
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the cost of preparing and
distributing reports, proxy statements and notices to stockholders, the SEC and other governmental or regulatory authorities; |
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• |
costs of holding stockholders’
meetings; |
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listing fees; |
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the fees or disbursements
of custodians of our assets, including expenses incurred in the performance of any obligations enumerated by our bylaws or amended and
restated articles of incorporation insofar as they govern agreements with any such custodian; |
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our allocable portion of
the fidelity bond, directors and officers/errors and omissions liability insurance, and any other insurance premiums; |
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our allocable portion of
the costs associated with maintaining any computer software, hardware or information technology services (including information systems,
Bloomberg or similar terminals, cyber security and related consultants and email retention) that are used by us or by GECM or its respective
affiliates on our behalf (which allocable portion shall exclude any such costs related to investment professionals of GECM providing services
to us); |
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direct costs and expenses
incurred by us or GECM in connection with the performance of administrative services on our behalf, including printing, mailing, long
distance telephone, cellular phone and data service, copying, secretarial and other staff, independent auditors and outside legal costs; |
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all other expenses incurred
by us or GECM in connection with administering our business (including payments under the Administration Agreement) based upon our allocable
portion of GECM’s overhead in performing its obligations under the Administration Agreement, including rent and the allocable portion
of the cost of our Chief Financial Officer and Chief Compliance Officer and their respective staffs (including reasonable travel expenses);
and |
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costs incurred by us in
connection with any claim, litigation, arbitration, mediation, government investigation or dispute in connection with our business and
the amount of any judgment or settlement paid in connection therewith, or the enforcement of our rights against any person and indemnification
or contribution expenses payable by us to any person and other extraordinary expenses not incurred in the ordinary course of our business. |
Duration
and Termination
Our
Board initially approved the Investment Management Agreement on August 8, 2016, and most recently approved the Investment Management
Agreement on July 26, 2022. The Investment Management Agreement renews for successive annual periods subject to annual approval by
our Board or by the affirmative vote of the holders of a majority of our outstanding voting securities, including, in either case, approval
by a majority of our directors who are not “interested persons.” The Investment Management Agreement will automatically terminate
if it is assigned. The Investment Management Agreement may be terminated by either party without penalty upon 60 days’ written notice
to the other. The Investment Management Agreement is currently in effect.
Conflicts
of interest may arise if GECM seeks to change the terms of the Investment Management Agreement, including, for example, the terms for
compensation. Except in limited circumstances, any material change to the Investment Management Agreement must be submitted to stockholders
for approval under the Investment Company Act and we may from time to time decide it is appropriate to seek stockholder approval to change
the terms of the Investment Management Agreement.
Indemnification
We
agreed to indemnify GECM, its stockholders and their respective officers, managers, partners, agents, employees, controlling persons,
members and any other person affiliated with it, to the fullest extent permitted by law, 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, for any damages, liabilities,
costs and expenses (including
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reasonable
attorneys’ fees and amounts reasonably paid in settlement) arising from the rendering of GECM’s services under the Investment
Management Agreement or otherwise as our investment adviser.
Organization
of the Investment Adviser
GECM
is a Delaware corporation and is registered as an investment adviser under the Advisers Act. GECM’s principal executive offices
are located at 800 South Street, Suite 230, Waltham, Massachusetts 02453.
Board
Approval of the Investment Management Agreement
On
April 6, 2022, our Board and the independent directors approved an amendment (the “Amendment”)
to the Investment Management Agreement to eliminate $163.2 million of realized and unrealized
losses incurred prior to April 1, 2022 from the calculation of the Capital Gains Incentive Fee and reset the Capital Gains Commencement
Date and the mandatory deferral commencement date, effectively resetting the incentive fee total return hurdle, which
was subsequently approved by our stockholders on August 1, 2022. In considering approval of
the Amendment, the Board considered materials provided by GECM, in addition to meeting with senior personnel of GECM and discussing
a number of topics affecting their determination. No single factor was determinative to the decision of the Board. Such topics included
the fact that a large portion of the historical losses that would be eliminated by the Amendment related to our legacy portfolio under
prior executive and board leadership and do not reflect our current investment objectives, including our increased focus on its specialty
finance platform. In March 2022, we refreshed our management team and board by replacing our chief executive officer and three directors
and adding new members to our investment team. In light of these management changes and the modification of our investment strategy,
which focuses on quality credits, more cash income-generating securities and its specialty finance platform, the Board determined it
was appropriate to eliminate $163.2 million in past losses incurred prior to April 1, 2022 from the calculation of the Capital
Gains Incentive Fee and to reset the Capital Gains Incentive Fee calculation so as to best incentivize GECM to improve future performance,
which would benefit our stockholders. The Board also considered the fact that, although not contingent on subsequent stockholder approval
of the Amendment, GECM had previously waived $4.9 million of accrued incentives fees under the Investment
Management Agreement in part due its poor performance under prior leadership. Additionally, the Board considered certain GECC and stockholder
protections that are included in the Investment Management Agreement. Such protections include a mandatory deferral period (which is what
made GECM’s $4.9 million of prior incentive fees accrue without payment in prior periods) and that no incentive fees are payable
on payment-in-kind interest until we receive cash payment for settlement of such instruments. After weighing these factors, the Board,
including the independent directors, unanimously approved the Amendment as being in the best interests of us and our stockholders.
In
reaching a decision to approve the Amendment, our Board gave weight to each of the factors
described above, but did not identify any one particular factor as controlling its decision. Our Board concluded that the fees set forth
in the Amendment were reasonable in relation to the services to be provided and that the Investment
Management Agreement, as amended, including the fees and other amounts payable by us thereunder,
is in the best interest of us and our stockholders.
On
July 26, 2022, our Board approved the renewal of the Investment Management Agreement through September 26, 2023. In its consideration
of the Investment Management Agreement, our Board focused on information it had received relating to, among other things:
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the nature, quality and
extent of the advisory and other services to be provided to us by GECM; |
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the investment performance
of us and GECM; |
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the extent to which economies
of scale would be realized as we grow, and whether the fees payable under the Investment Management Agreement reflect these economies
of scale for the benefit of our stockholders; |
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comparative data with respect
to advisory fees or similar expenses paid by other BDCs with similar investment objectives; |
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our projected operating
expenses and expense ratio compared to BDCs with similar investment objectives; |
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existing and potential sources
of indirect income to GECM from its relationship with us and the profitability of those income sources; |
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information about the services
to be performed and the personnel performing such services under the Investment Management Agreement; |
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the organizational capability
and financial condition of GECM and its affiliates; and |
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the possibility of obtaining
similar services from other third party service providers or through an internally managed structure. |
In
connection with their consideration of the renewal of the Investment Management Agreement, our Board gave weight to each of the factors
described above, but did not identify any one particular factor as controlling their decision. After deliberation and consideration of
all of the information provided, including the factors described above, the Board, including all of its independent members, concluded
that the Investment Management Agreement should be approved and continued.
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Regulation
as a Business Development Company
We
may not change the nature of our business so as to cease to be, or withdraw our election as, a BDC unless authorized by vote of a majority
of the outstanding voting securities, as required by the Investment Company Act. A majority of the outstanding voting securities of a
company is defined under the Investment Company Act as the lesser of:
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67% or more of such company’s
voting securities present at a meeting if more than 50% of the outstanding voting securities of such company are present or represented
by proxy, or |
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more than 50% of the outstanding
voting securities of such company. |
A
majority of our directors must be persons who are not interested persons, as that term is defined in the Investment Company Act. Additionally,
we are required to provide and maintain a bond issued by a reputable fidelity insurance company to protect the BDC. Furthermore, as a
BDC, we are prohibited from protecting any director or officer against any liability to us or our stockholders arising from willful misfeasance,
bad faith, gross negligence or reckless disregard of the duties involved in the conduct of such person’s office.
We
are required to meet a coverage ratio of the value of total assets to total senior securities, which include all of our borrowings and
any preferred stock we may issue in the future, of at least 150%. We may also be prohibited under the Investment Company Act from knowingly
participating in certain transactions with our affiliates without the prior approval of our directors who are not interested persons and,
in some cases, prior approval by the SEC.
For
example, we may sell shares of our common stock at a price below the then current NAV of our common stock if our Board determines that
such sale is in our and our stockholders’ best interests, and our stockholders approve our policy and practice of making such sales.
In any such case, under such circumstances, the price at which shares of our common stock are sold may be the fair value of such shares
of common stock. We may be examined by the SEC for compliance with the Investment Company Act.
We
are generally unable to sell shares of our common stock at a price below NAV per share. As a BDC, the necessity of raising additional
capital may expose us to risks, including the typical risks associated with leverage. We may, however, sell shares of our common stock
at a price below NAV per share:
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in connection with a rights
offering to our existing stockholders, |
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with the consent of the
majority of our common stockholders, or |
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under such other circumstances
as the SEC may permit. |
We
may not acquire any assets other than “qualifying assets” unless, at the time we make such acquisition, the value of our qualifying
assets represents at least 70% of the value of our total assets. The principal categories of qualifying assets relevant to our business
are:
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• |
securities purchased in
transactions not involving any public offering, the issuer of which is an eligible portfolio company; |
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• |
securities received in exchange
for or distributed with respect to securities described in the bullet above or pursuant to the exercise of options, warrants or rights
relating to such securities; and |
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cash, cash items, government
securities or high quality debt securities (within the meaning of the Investment Company Act), maturing in one year or less from the time
of investment. |
An
eligible portfolio company is generally a domestic company that is not an investment company (other than a small business investment company
wholly owned by a BDC) and that:
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does not have a class of
securities with respect to which a broker may extend margin credit at the time the acquisition is made; |
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• |
is controlled by the BDC
and has an affiliate of the BDC on its board of directors; |
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does not have any class
of securities listed on a national securities exchange; |
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is a public company that
lists its securities on a national securities exchange with a market capitalization of less than $250.0 million; or |
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meets such other criteria
as may be established by the SEC. |
Control,
as defined by the Investment Company Act, is presumed to exist where a BDC beneficially owns more than 25% of the outstanding voting securities
of the portfolio company.
In
addition, a BDC must have been organized and have its principal place of business in the United States and must be operated for the purpose
of making investments in eligible portfolio companies, or in other securities that are consistent with its purpose as a BDC.
To
include certain securities described above as qualifying assets for the purpose of the 70% test, a BDC must offer to the issuer of those
securities managerial assistance such as providing guidance and counsel concerning the management, operations, or business objectives
and policies of a portfolio company. We offer to provide managerial assistance to our portfolio companies.
Pending
investment in other types of “qualifying assets,” as described above, our investments may consist of cash, cash equivalents,
U.S. government securities or high-quality debt securities maturing in one year or less from the time of investment, which are referred
to, collectively, as temporary investments, so that 70% of our assets, as applicable, are qualifying assets. We make purchases that are
consistent with our purpose of making investments in securities described in paragraphs 1 through 3 of Section 55(a) of the Investment
Company Act. We will invest in U.S. Treasury bills or in repurchase agreements that are fully collateralized by cash or securities issued
by the U.S. government or its agencies. A repurchase agreement involves the purchase by an investor of a specified security and the simultaneous
agreement by the seller to repurchase it at an agreed-upon future date and at a price which is greater than the purchase price by an amount
that reflects an agreed-upon interest rate. There is no percentage restriction on the proportion of our assets that may be invested in
such repurchase agreements. However, if more than 25% of our gross assets constitute repurchase agreements from a single counterparty,
we would not meet the diversification tests in order to qualify as a RIC for U.S. federal income tax purposes. Thus, we do not intend
to enter into repurchase agreements with a single counterparty in excess of this limit.
We
are permitted, under specified conditions, to issue multiple classes of indebtedness and one class of stock senior to our common stock,
if our asset coverage, as defined in the Investment Company Act, is at least equal to 150% immediately after each such issuance. In addition,
while any senior securities remain outstanding, we must make provisions to prohibit cash distributions to our stockholders or the repurchase
of our common stock unless we meet the applicable asset coverage ratios at the time of the distribution or repurchase. We may also borrow
amounts up to 5% of the value of our gross assets for temporary or emergency purposes without regard to asset coverage.
Code
of Ethics
We
and GECM have each adopted a code of ethics, which applies to the management at each company, respectively, pursuant to Rule 17j-1 under
the Investment Company Act and Rule 204A-1 under the Advisers Act, respectively, that establishes procedures for personal investments
and restricts certain transactions by our or GECM’s personnel, respectively. Each code of ethics is included as an exhibit to this
report and available on the EDGAR Database on the SEC’s Internet site at http://www.sec.gov. You may also obtain copies of the respective
codes of ethics, after paying a duplicating fee, by electronic request at the following email address: publicinfo@sec.gov.
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Proxy
Voting Policies and Procedures
We
have delegated our proxy voting responsibility to GECM. The Proxy Voting Policies and Procedures of GECM are set forth below. The guidelines
are reviewed periodically by GECM and our non-interested directors, and, accordingly, are subject to change. For purposes of these Proxy
Voting Policies and Procedures described below, “we,” “our” and “us” refers to GECM.
Introduction
As
an investment adviser registered under the Advisers Act, GECM has a fiduciary duty to act solely in the best interests of its clients.
As part of this duty, GECM recognizes that it must vote client securities in a timely manner free of conflicts of interest and in the
best interests of its clients.
These
policies and procedures for voting proxies for GECM’s investment advisory clients are intended to comply with Section 206 of, and
Rule 206(4)-6 under, the Advisers Act.
Proxy
Policies
GECM
votes proxies relating to our portfolio securities in what it perceives to be the best interest of its clients. GECM reviews on a case-by-case
basis each proposal submitted to a stockholder vote to determine its impact on the portfolio securities held by its clients. Although
GECM generally votes against proposals that may have a negative impact on its clients’ portfolio securities, GECM may vote for such
a proposal if there exists compelling long-term reasons to do so.
GECM
proxy voting decisions are made by the senior officers who are responsible for monitoring each of its clients’ investments. To ensure
that our vote is not the product of a conflict of interest, GECM requires that: (i) anyone involved in the decision-making process
disclose to our Chief Compliance Officer any potential conflict that he or she is aware of and any contact that he or she has had with
any interested party regarding a proxy vote; and (ii) employees involved in the decision-making process or vote administration are
prohibited from revealing how we intend to vote on a proposal in order to reduce any attempted influence from interested parties.
Proxy
Voting Records
You
may obtain information about how GECM voted proxies during the twelve-month period ended March 31, 2023 without charge, upon request,
by making a written request for proxy voting information to: Chief Compliance Officer, Great Elm Capital Corp., 800 South Street, Suite
230, Waltham, Massachusetts 02453, or by calling (617) 375-3006, and on the SEC’s website at http://www.sec.gov.
Certain
U.S. Federal Income Tax Matters
We
currently qualify as a RIC under the Code. To continue to qualify as a RIC, we must, among other things, (a) derive in each taxable
year at least 90% of our gross income from dividends, interest (including tax-exempt interest), payments with respect to certain securities
loans, gains from the sale or other disposition of stock, securities or foreign currencies, other income (including but not limited to
gain from options, futures and forward contracts) derived with respect to our business of investing in stock, securities or currencies,
or net income derived from an interest in a “qualified publicly traded partnership” (a “QPTP”); and (b) diversify
our holdings so that, at the end of each quarter of each taxable year (i) at least 50% of the market value of our total assets is
represented by cash and cash items, U.S. Government securities, the securities of other RICs and other securities, with other securities
limited, in respect of any one issuer, to an amount not greater than 5% of the value of our total assets and not more than 10% of the
outstanding voting securities of such issuer (subject to the exception described below), and (ii) not more than 25% of the market
value of our total assets is invested in the securities (other than U.S. Government securities and the securities of other regulated investment
companies) (A) of any one issuer, (B) of any two or more issuers that we control and that are determined to be engaged in the same business
or similar or related trades or businesses, or (C) of one or more QPTPs. We may generate certain income that might not qualify as good
income for purposes of the 90% annual gross income requirement described above. We will monitor our transactions to endeavor to prevent
our disqualification as a RIC.
If
we fail to satisfy the 90% annual gross income requirement or the asset diversification requirements discussed above in any taxable year,
we may be eligible for relief provisions if the failures are due to reasonable cause and
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not
willful neglect and if a penalty tax is paid with respect to each failure to satisfy the applicable requirements and the failures are
otherwise cured. Additionally, relief is provided for certain de minimis failures of the asset diversification requirements where we correct
the failure within a specified period. If the applicable relief provisions are not available or cannot be met, all of our income would
be subject to corporate-level U.S. federal income tax as described below. We cannot provide assurance that we would qualify for any such
relief should we fail the 90% annual gross income requirement or the asset diversification requirements discussed above.
As
a RIC, in any taxable year with respect to which we timely distribute at least 90% of the sum of:
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our investment company taxable
income (which includes, among other items, dividends, interest and the excess of any net short-term capital gain over net long-term capital
loss and other taxable income (other than any net capital gain), reduced by deductible expenses) determined without regard to the deduction
for dividends and distributions paid; and |
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net tax exempt interest
income (which is the excess of our gross tax exempt interest income over certain disallowed deductions) (the “Annual Distribution
Requirement”). |
We
(but not our stockholders) generally will not be subject to U.S. federal income tax on investment company taxable income and net capital
gain (generally, net long-term capital gain in excess of short-term capital loss) that we distribute to our stockholders. However, due
to limits on the deductibility of certain expenses, we may, in certain years, have aggregate taxable income subject to the Annual Distribution
Requirement that is in excess of the aggregate net income actually earned by us in those years.
We
intend to distribute annually all or substantially all of such income on a timely basis.
To
the extent that we retain our net capital gains for investment or any investment company taxable income, we will be subject to U.S. federal
income tax at the regular corporate income tax rates. We may choose to retain our net capital gains for investment or any investment company
taxable income, and pay the associated federal corporate income tax, including the federal excise tax described below.
Amounts
not distributed on a timely basis in accordance with a calendar year distribution requirement are subject to a nondeductible 4% U.S. federal
excise tax payable by us. To avoid this tax, we must distribute (or be deemed to have distributed) during each calendar year an amount
equal to the sum of:
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at least 98% of our ordinary
income (not taking into account any capital gains or losses) for the calendar year; |
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at least 98.2% of the amount
by which our capital gains exceed our capital losses (adjusted for certain ordinary losses) for a one-year period generally ending on
October 31 of the calendar year (unless an election is made by us to use our taxable year); and |
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certain undistributed amounts
from previous years on which we paid no U.S. federal income tax (the “Excise Tax Avoidance Requirement”). |
While
we intend to distribute any income and capital gains in the manner necessary to minimize imposition of the 4% federal excise tax, sufficient
amounts of our taxable income and capital gains may not be distributed to avoid entirely the imposition of the tax. In that event, we
will be liable for the tax only on the amount by which we do not meet the Excise Tax Avoidance Requirement.
If,
in any particular taxable year, we do not satisfy the Annual Distribution Requirement or otherwise were to fail to qualify as a RIC (for
example, because we fail the 90% annual gross income requirement described above), and relief is not available as discussed above, all
of our taxable income (including our net capital gains) will be subject to tax at regular corporate rates without any deduction for distributions
to stockholders, and distributions generally will be taxable to the stockholders as ordinary dividends to the extent of our current and
accumulated earnings and profits.
We
may decide to be taxed as a regular corporation even if we would otherwise qualify as a RIC if we determine that treatment as a corporation
for a particular year would be in our best interests.
If
we realize a net capital loss, the excess of our net short-term capital loss over our net long-term capital gain is treated as a short-term
capital loss arising on the first day of our next taxable year and the excess of our net long-term capital loss over our net short-term
capital gain is treated as a long-term capital loss arising on the first
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day
of our next taxable year. If future capital gain is offset by carried forward capital losses, such future capital gain is not subject
to fund-level U.S. federal income tax, regardless of whether amounts corresponding to such gain are distributed to stockholders. Accordingly,
we do not expect to distribute any such offsetting capital gain. A RIC cannot carry back or carry forward any net operating losses to
offset its investment company taxable income.
Our
Investments
Certain
of our investment practices are subject to special and complex U.S. federal income tax provisions that may, among other things:
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• |
disallow, suspend or otherwise
limit the allowance of certain losses or deductions, including the dividends received deduction, net capital losses, business interest
expense and certain underwriting and similar fees; |
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convert lower taxed long-term
capital gain and qualified dividend income into higher taxed, short-term capital gain or ordinary income; |
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convert ordinary loss or
a deduction into capital loss (the deductibility of which is more limited); |
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cause us to recognize income
or gain without a corresponding receipt of cash; |
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adversely affect the time
as to when a purchase or sale of stock or securities is deemed to occur; |
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adversely alter the characterization
of certain complex financial transactions; and |
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produce income that will
not qualify as “good income” for purposes of the 90% annual gross income requirement described above. |
We
will monitor our transactions and may make certain tax elections and may be required to borrow money or dispose of securities (even if
it is not advantageous to dispose of such securities) to mitigate the effect of these rules and prevent disqualification of us as a RIC.
However, no assurances can be given as to our eligibility for any such tax elections or that any such tax elections that are made will
fully mitigate the effects of these rules.
Investments
we make in securities issued at a discount or providing for deferred interest or PIK interest are subject to special tax rules that will
affect the amount, timing and character of distributions to stockholders. For example, with respect to securities issued at a discount,
we will generally be required to accrue daily as income a portion of the discount and to distribute such income on a timely basis each
year to maintain our qualification as a RIC and to avoid U.S. federal income and excise taxes. Since in certain circumstances we may recognize
income before or without receiving cash representing such income or incur expenses that are not fully deductible for tax purposes, we
may have difficulty making distributions in the amounts necessary to satisfy the requirements for maintaining RIC status and for avoiding
U.S. federal income and excise taxes. Accordingly, we may have to sell some of our investments at times we would not consider advantageous,
raise additional debt or equity capital or reduce new investment originations to meet these distribution requirements. If we are not able
to obtain cash from other sources, we may fail to qualify as a RIC and thereby be subject to corporate-level income tax.
Furthermore,
a portfolio company in which we invest 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 such
restructuring may also result in our recognition of a substantial amount of non-qualifying income for purposes of the 90% gross income
requirement or our receiving assets that would not count toward the asset diversification requirements.
Gain
or loss recognized by us from 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. Such gain or loss generally will be long-term or short-term, depending on how long we held a particular
warrant.
If
we invest in foreign securities, we may be subject to withholding and other foreign taxes with respect to those securities. Stockholders
will generally not be entitled to claim a U.S. foreign tax credit or deduction with respect to foreign taxes paid by us.
If
we acquire shares in a “passive foreign investment company” (a “PFIC”), we may be subject to U.S. federal income
tax on a portion of any “excess distribution” or gain from the disposition of such shares even if such
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income
is distributed as a taxable dividend by us to our stockholders. Additional charges in the nature of interest may be imposed on us in respect
of deferred taxes arising from such distributions or gains. 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 a portion of the ordinary earnings and net capital gain of the QEF, even if such income is not distributed to us. Alternatively,
we can elect to mark-to-market at the end of each taxable year our shares in a PFIC; in this case, we will recognize as ordinary income
any increase in the value of such shares, and as ordinary loss any decrease in such value to the extent it does not exceed prior increases
included in income. Our ability to make either election will depend on factors beyond our control. Under either election, we may be required
to recognize in a year income in excess of our distributions from PFICs and our 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% excise tax.
If
we hold more than 10% of the shares (by vote or value) in a foreign corporation that is treated as a controlled foreign corporation (“CFC”),
we may be required to include in our gross income our pro rata share of such CFC’s “subpart F income” and “global
intangible low-taxed income,” whether or not the corporation makes an actual distribution during such year. In general, a foreign
corporation will be classified as a CFC if more than 50% of the shares of the corporation, measured by reference to combined voting power
or value, is owned (directly, indirectly or by attribution) by U.S. Stockholders. A U.S. Stockholder, for purposes of this paragraph,
is any U.S. person that possesses (actually or constructively) 10% or more of the combined voting power of all classes of shares or 10%
or more of the value of a corporation. If we are treated as receiving a deemed distribution from a CFC, we will be required to include
such distribution in our investment company taxable income regardless of whether we receive any actual distributions from such CFC, and
we must distribute such income to satisfy the Annual Distribution Requirement and the Excise Tax Avoidance Requirement.
Although
the Code generally provides that income inclusions from QEFs and deemed distributions of subpart F income and global intangible low-taxed
income from CFCs will be “good income” for purposes of the 90% gross income requirement to the extent such income is distributed
to a RIC in the year it is included in the RIC’s income, the Code does not specifically provide whether income inclusions from a
QEF or deemed distributions from a CFC during the RIC’s taxable year with respect to which no distribution is received would be
“good income” for the 90% gross income requirement. The Department of the Treasury, however, has issued regulations that treat
such income as being “good income” for purposes of the 90% gross income requirement, provided the income is derived with respect
to a corporation’s business of investing in stock, securities or currencies.
Our
functional currency is the U.S. dollar for U.S. federal income tax purposes. Under Section 988 of the Code, gains or losses attributable
to fluctuations in exchange rates between the time we accrue income, expenses or other liabilities denominated in a foreign currency and
the time we actually collect such income or pay such expenses or liabilities are generally treated as ordinary income or loss. Similarly,
gains or losses on foreign currency forward contracts and the disposition of debt denominated in a foreign currency, to the extent attributable
to fluctuations in exchange rates between the acquisition and disposition dates, are also generally treated as ordinary income or loss.
If
we borrow money, we may be prevented by loan covenants from declaring and paying dividends in certain circumstances. Limits on our payment
of dividends may prevent us from meeting the Annual Distribution Requirement, and may, therefore, jeopardize our qualification for taxation
as a RIC, or subject us to the 4% excise tax.
Even
if we are authorized to borrow funds and to sell assets in order to satisfy distribution requirements, under the Investment Company Act,
we are not permitted to make distributions to our stockholders while our debt obligations and senior securities are outstanding unless
certain “asset coverage” tests are met. This may also jeopardize our qualification for taxation as a RIC or subject us to
the 4% excise tax.
Moreover,
our ability to dispose of assets to meet our distribution requirements may be limited by (1) the illiquid nature of our portfolio and
(2) other requirements relating to our status as a RIC, including the asset diversification requirements. If we dispose of assets to meet
the Annual Distribution Requirement, the asset diversification requirements, or the 4% excise tax, we may make such dispositions at times
that, from an investment standpoint, are not advantageous.
91
Some
of the income that we might otherwise earn, such as lease income, management fees, or income recognized in a work-out or restructuring
of a portfolio investment, may not satisfy the 90% gross income requirement. To manage the risk that such income might disqualify us as
a RIC for a failure to satisfy the 90% gross income requirement, one or more of our subsidiaries treated as U.S. corporations for U.S.
federal income tax purposes may be employed to earn such income. Such corporations will be required to pay U.S. corporate income tax (and
possible state or local tax) on their earnings, which ultimately will reduce the yield to our stockholders on such income and fees.
Failure
to Qualify as a RIC
If
we were unable to qualify for treatment as a RIC, and relief is not available as discussed above, we would be subject to tax on all of
our taxable income at regular corporate rates. We would not be able to deduct distributions to stockholders nor would we be required
to make distributions for tax purposes. Distributions would generally be taxable to our stockholders as ordinary dividend income eligible
for reduced maximum rates for non-corporate stockholders to the extent of our current and accumulated earnings and profits. Subject to
certain limitations under the Code, corporate U.S. stockholders 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 to the extent of the stockholder’s
tax basis, and any remaining distributions would be treated as a capital gain. If we were to fail to meet the RIC requirements for more
than two consecutive years and then to seek to requalify as a RIC, we would be required to recognize gain to the extent of any unrealized
appreciation in our assets unless we made a special election to pay corporate level tax on any such unrealized appreciation recognized
during the succeeding five-year period. Our qualification and taxation as a RIC depends upon our ability to satisfy on a continuing basis,
through actual, annual operating results, distribution, income and asset, and other requirements imposed under the Code. However, no
assurance can be given that we will be able to meet the complex and varied tests required to qualify as a RIC or to avoid corporate level
tax. In addition, because the relevant laws may change, compliance with one or more of the RIC requirements may become
impossible or impracticable.
Administration
Agreement
Our
Board approved the Administration Agreement on August 8, 2016. Pursuant to the Administration Agreement, GECM furnishes us with,
or otherwise arranges for the provision of, office facilities, equipment, clerical, bookkeeping, finance, accounting, compliance and record
keeping services at such office facilities and other such services as the administrator. Under the Administration Agreement, GECM will,
from time to time, provide, or otherwise arrange for the provision of, other services GECM determines to be necessary or useful to perform
its obligations under the Administration Agreement, including retaining the services of financial, compliance, accounting and administrative
personnel that perform services on our behalf, including personnel to serve as our Chief Financial Officer and Chief Compliance Officer.
Under the Administration Agreement, GECM also performs, or oversees the performance of, our required administrative services, which include,
among other things, being responsible for the financial records that we are required to maintain and preparing reports to our stockholders
and reports filed with the SEC. In addition, GECM assists us in determining and publishing our NAV, oversees the preparation and filing
of our tax returns and the printing and dissemination of reports to our stockholders, and generally oversees the payment of our expenses
and the performance of administrative and professional services rendered to us by others. Payments made by us to GECM under the Administration
Agreement are equal to an amount based upon our allocable portion of GECM’s overhead in performing its obligations under the Administration
Agreement, including our allocable portion of the cost of our officers (including our Chief Compliance Officer, Chief Financial Officer
and their respective staffs). The Administration Agreement may be terminated by either party without penalty upon 60 days’ written
notice to the other party.
We
bear all costs and expenses, including rental expenses, that are incurred in our operation and transactions and not specifically assumed
by GECM pursuant to the Investment Management Agreement.
The
Administration Agreement provides that, to the fullest extent permitted by law, 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, GECM, its stockholders and their
respective officers, managers, partners, agents, employees, controlling persons, members and any other person or entity affiliated with
it are entitled to indemnification from us for any damages, liabilities, costs and expenses (including reasonable attorneys’ fees
and amounts reasonably paid in settlement) arising from or otherwise based upon the rendering of GECM’s services under the Administration
Agreement or otherwise as our administrator.
92
Great
Elm License Agreement
We
have a license agreement with GEG pursuant to which GEG grants us a non-exclusive, royalty-free license to use the name “Great Elm
Capital Corp.” Under the license agreement, we have a right to use the Great Elm Capital Corp. name and the logo for so long as
GECM, or an affiliate thereof, remains our investment adviser. Other than with respect to this limited license, we have no legal right
to the “Great Elm Capital Corp.” name. The license agreement may be terminated by either party without penalty upon 60 days’
written notice to the other.
Brokerage
Allocation and Other Practices
Since
we acquire and dispose of many of our investments in privately negotiated transactions, many of the transactions that we engage in do
not require the use of brokers or the payment of brokerage commissions. Subject to policies established by our Board, GECM is primarily
responsible for selecting brokers and dealers to execute transactions with respect to the publicly traded securities portion of our portfolio
transactions and the allocation of brokerage commissions. GECM does not execute transactions through any particular broker or dealer,
but seeks to obtain the best net results for us under the circumstances, 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.
The
aggregate amount of brokerage commissions paid by us during the three most recent fiscal years is approximately $220. Such commissions
include approximately $134 in brokerage commissions paid to Imperial Capital, LLC, an affiliated person of ICAM, beginning when ICAM became
an affiliated person of the Company during the quarter ended December 31, 2020 through December 31, 2022. Brokerage commissions
paid to Imperial Capital, LLC represent 100% of our aggregate brokerage commissions during the most recent fiscal year and the dollar
amount of transactions on which such brokerage commissions were paid represents 100% of the aggregate dollar amount of transactions involving
the payment of commissions during such fiscal year.
Properties
Our
executive offices are located at 800 South Street, Suite 230, Waltham, Massachusetts 02453, and are provided by GECM in accordance with
the terms of the Administration Agreement.
Legal
Proceedings
From
time to time, we, our investment adviser or administrator may be a party to certain legal proceedings in the ordinary course of business,
including proceedings relating to the enforcement of our rights under contracts with our portfolio companies.
We
are named as a defendant in a lawsuit filed on March 5, 2016, and captioned Intrepid Investments, LLC v. London Bay Capital, which
is pending in the Delaware Court of Chancery. The plaintiff immediately agreed to stay the action in light of an ongoing mediation among
parties other than us. This lawsuit was brought by a member of Speedwell Holdings (formerly known as The Selling Source, LLC), one of
our portfolio investments, against various members of and lenders to Speedwell Holdings. The plaintiff asserts claims of aiding and abetting,
breaches of fiduciary duty, and tortious interference against us. In June 2018, Intrepid Investments, LLC (“Intrepid”) sent
notice to the court and defendants effectively lifting the stay and triggering defendants’ obligation to respond to the Intrepid
complaint. In September 2018, we joined the other defendants in a motion to dismiss on various grounds. In February 2019, Intrepid filed
a second amended complaint to which defendants filed a renewed motion to dismiss in March 2019. We intend to defend the matter as necessary.
In
July 2016, Full Circle filed suit in the District Court of Caldwell County, Texas against, among others, Willis Pumphrey for breach of
a guaranty agreement arising from a loan transaction with Full Circle. Dr. Pumphrey, a personal guarantor of the loan made by Full Circle,
the Company’s predecessor in interest, brought counterclaims in (i) the District Court of Caldwell County, Texas and (ii) the
District Court of Harris County, Texas against, among others, Justin Bonner, an employee of GECM, in each case, alleging breach of a confidentiality
agreement and tortious interference with Dr. Pumphrey’s attempted sale of a business in which he owned an interest. In August 2017,
Dr. Pumphrey voluntarily withdrew his complaint against Mr. Bonner and Full Circle in the District Court of Harris County, Texas.
In November 2017, Dr. Pumphrey voluntarily withdrew his complaint without prejudice against Full Circle in the District Court of Caldwell
County, Texas. On November 29, 2017,
93
Dr.
Pumphrey refiled his claims in the District Court of Harris County, Texas naming Full Circle, MAST Capital Management, LLC, GECC and GECM
as defendants. Dr. Pumphrey is seeking between $2 million and $6 million in damages. GECC believes Dr. Pumphrey’s claims
to be frivolous and intends to vigorously defend them. Furthermore, the Company continues to pursue the initial claims against Dr. Pumphrey
in the District Court of Caldwell County, Texas. In September 2019, the Company received a judgment in the Company’s favor from
the District Court of Caldwell County, Texas. On June 4, 2020, Dr. Pumphrey filed a Chapter 11 Bankruptcy Petition in the United
States Bankruptcy Court for the Southern District of Texas. The Company is pursuing claims against Dr. Pumphrey in the Chapter 11 proceeding.
Privacy
Principles
We
are committed to maintaining the privacy of our stockholders and to safeguarding their nonpublic personal information. The following information
is provided to help you understand what personal information we collect, how we protect that information and why, in certain cases, we
may share information with select other parties.
Generally,
we do not receive any nonpublic personal information relating to our stockholders, although certain nonpublic personal information of
our stockholders may become available to us. We do not disclose any nonpublic personal information about our stockholders or former stockholders
to anyone, except as permitted by law or as is necessary in order to service stockholder accounts (for example, to a transfer agent or
third-party administrator).
We
restrict access to nonpublic personal information about our stockholders to employees of GECM and its affiliates with a legitimate business
need for the information. We intend to maintain physical, electronic and procedural safeguards designed to protect the nonpublic personal
information of our stockholders.
94
MANAGEMENT
Board
of Directors
Our
Board is divided into three classes. Directors are elected for staggered terms, with the term of office of one of the three classes of
directors expiring at each annual meeting of stockholders. Each director is elected for a three- year term ending at the third annual
meeting of stockholders following his election and until his successor is duly elected and qualifies. Our directors have been divided
into two groups—interested directors and independent directors. An interested director is an “interested person” as
defined in Section 2(a)(19) of the Investment Company Act of the Company.
The
address for each of our directors is c/o Great Elm Capital Corp., 800 South Street, Suite 230, Waltham, Massachusetts 02453.
Independent
Directors
|
Name,
Address and
Age |
| |
Position(s)
Held
with
GECC |
| |
Term
of
Office
(Length
of
Time
Served) |
| |
Principal
Occupation(s)
During
Past 5 Years |
| |
Number
of
Portfolios
in Fund
Complex
Overseen
by
Director |
| |
Other
Directorships
Held
by
Director During
Past
5 Years |
|
Mark
Kuperschmid (60) |
| |
Director |
| |
Until
2026 (since inception) |
| |
Managing
Member – Benmark Investments LLC |
| |
N/A |
| |
None |
|
Richard
M. Cohen (72) |
| |
Director |
| |
Until
2026 (since 2022) |
| |
President
– Richard M. Cohen Consultants |
| |
N/A |
| |
Direct
Digital Holdings Ondas Network Smart For Life |
|
Chad
Perry (51) |
| |
Director |
| |
Until
2025 (since 2022) |
| |
Executive
Vice President and General Counsel – RLJ Lodging Trust; Executive Vice President and General Counsel – Tanger Factory Outlet
Centers, Inc. |
| |
N/A |
| |
DWS
Fund Complex |
Interested
Directors
|
Name,
Address and
Age |
| |
Position(s)
Held
with
GECC |
| |
Term
of
Office
(Length
of
Time
Served) |
| |
Principal
Occupation(s)
During
Past 5 Years |
| |
Number
of
Portfolios
in Fund
Complex
Overseen
by
Director |
| |
Other
Directorships
Held
by
Director During
Past
5 Years |
|
Matthew
A. Drapkin (50)(1) |
| |
Chairman
of the Board |
| |
Until
2024 (since 2022) |
| |
Chief
Executive Officer – Northern Right |
| |
N/A |
| |
Northern
Right GEG PRGX Intevac |
|
Erik
A. Falk (53)(2) |
| |
Director |
| |
Until
2024 (since 2021) |
| |
Head
of Strategy – Magnetar Capital |
| |
N/A |
| |
None. |
|
(1) |
Mr. Drapkin
is an interested person of the Company due to his and Northern Right Capital Management, L.P.’s (“Northern Right”) ownership
of GEG’s common stock and GEG’s Senior Convertible PIK Notes due 2030 (“GEG PIK Notes”). Mr. Drapkin is also
the managing member of the general partner of BC Advisors, LLC (“BCA”), the General Partner
of Northern Right. Northern Right is the general partner of Northern Right Capital (QP), L.P. (“Northern
Right QP”) and NRC Partners I, LP (“NRC”). Therefore, Northern Right has control
of both entities. Northern Right also has investment management agreements with two separately managed accounts giving
Northern Right the power to vote, acquire or dispose of securities. |
|
(2) |
Mr. Falk
is an interested person of the Company due to his ownership of GEG PIK Notes. |
95
Independent
Directors
Mark
Kuperschmid is our Lead Independent Director. Mr. Kuperschmid has served as managing member of
Benmark Investments LLC since May 2006 and has been a private investor/advisor across a variety
of industries, and has served in operating roles or provided strategic consulting services with
respect to several investments. He previously served as Co-Head of Technology Investment Banking
for Banc of America Securities and ran Trammell Crow Company’s Northern California commercial
real estate operation. He began his career as a financial analyst with Morgan Stanley in New
York. Mr. Kuperschmid holds a B.S./B.A. with honors from the University of Pennsylvania
(Wharton) and an M.B.A. from Stanford University.
Richard
Cohen has been the President of Richard M. Cohen Consultants since 1996, a company providing financial
consulting services to both public and private companies. He has served as a Director of Ondas Holdings
(NASDAQ: ONDS) since 2018, Direct Digital (NASDAQ: DRCT) since November 2021 and Smart For Life,
Inc. (NASDAQ: SMFL) from February 2022 to August 2022. From March 2012 to July 2015, he was the
Founder and Managing Partner of Chord Advisors, a firm providing outsourced CFO services to both public and
private companies. From May 2012 to August 2013, he was the Interim CEO and member of the Board of CorMedix
Inc. (NYSE: CRMD). From July 2008 to August 2012, Mr. Cohen was a member of the Audit Committee
of Rodman and Renshaw, an investment banking firm. From July 2001 to August 2012, he was a partner
with Novation Capital until its sale to a private equity firm. Mr. Cohen holds a B.S. with honors from the University
of Pennsylvania (Wharton), an M.B.A. from Stanford University and a CPA from New York State (inactive).
Chad
Perry currently serves as Executive Vice President and General Counsel at RLJ Lodging Trust. Mr. Perry
previously served at Tanger Factory Outlet Centers, Inc. from December 2011 to April 2023 as
Executive Vice President - General Counsel and was named Secretary in May 2012. His responsibilities
included corporate governance, compliance, management of the in-house legal department and other
legal matters, as well as Human Resources, Business Development and Real Estate Development.
He was Executive Vice President and Deputy General Counsel of LPL Financial Corporation from
May 2006 to December 2011. Previously, he was Senior Corporate Counsel of EMC Corporation. Mr. Perry
began his legal career with international law firm Ropes & Gray LLP. Mr. Perry is a
graduate of Princeton University, and earned a J.D. from Columbia University, where he was a
Harlan Fiske Stone Scholar. He is a member of both the Massachusetts and California bar associations.
Interested
Directors
Matthew
A. Drapkin is the Chairman of our Board. He has been a member of our Board since March 2022. Mr. Drapkin
is Chief Executive Officer & Portfolio Manager of Northern Right Capital, an alternative asset manager
focused on small and mid-cap public companies.
Mr. Drapkin
currently serves as Executive Chairman of Boardroom Alpha, Inc., an analytics company, and as the Vice Chairman of the board of directors
of GEG. Mr. Drapkin previously served on the board of directors of Intevac, a publicly-traded provider of equipment solutions to
the hard-disk drive industry and high-sensitivity imaging products, primarily for the defense market, as Chairman of the Board of Ruby
Tuesday, a restaurant operator, Lead Independent Director of Hot Topic, a specialty retailer, and a director of Xura (formerly known as
Comverse), a provider of telecommunications businesses solutions, Glu Mobile, a mobile gaming company, Plato Learning, a provider of curriculum
management, and Alloy, a diversified media company. Before joining Northern Right Capital in December 2009, Mr. Drapkin had extensive
investment experience, including his work as Head of Research, Special Situations, and Private Equity at ENSO Capital, a New York-based
hedge fund, and Senior VP of Corporate Development at MacAndrews & Forbes, where he participated in more than $3 billion of transactions,
including Scientific Games, Deluxe Entertainment Services, AM General, and Scantron. Prior to MacAndrews & Forbes, Mr. Drapkin
served as General Manager of two of Condé Nast publications’ wholly-owned Internet sites, Epicurious.com and Concierge.com,
and headed Conde Nast’s Internet venture investment effort. Mr. Drapkin began his career as an investment banker at Goldman,
Sachs and Co where he advised companies on corporate finance and M&A matters. He holds a J.D. from Columbia Law School, an M.B.A.
from Columbia Business School, and a B.A. in American History from Princeton University.
96
Erik
A. Falk currently serves as Head of Strategy at Magnetar Capital, an alternative asset manager with
approximately $13
billion in assets under management as of March 31,
2023. His primary focus is developing and implementing strategic initiatives within the
firm’s Alternative Credit and Fixed Income business. Mr. Falk has served on the boards of various companies on behalf of Deutsche
Bank. Mr. Falk holds a B.S. and an M.S. from Stanford University.
Executive
Officers
The
address for each executive officer is c/o Great Elm Capital Corp., 800 South Street, Suite 230, Waltham, Massachusetts 02453.
|
Name,
Address and Age |
| |
Position(s)
Held with
GECC |
| |
Term
of Office
(Length
of Time
Served) |
| |
Principal
Occupation(s) During Past 5 Years |
|
Matt
Kaplan (36) |
| |
President
and Chief Executive Officer |
| |
Since
March 2022 |
| |
President
and Chief Executive Officer – GECC Portfolio Manager – GECM
Managing
Director – ICAM
Analyst
– Citadel LLC |
|
Keri
A. Davis (39) |
| |
Chief
Financial Officer and Treasurer |
| |
Since
March 2019 |
| |
Chief
Financial Officer – GEG
SEC
Reporting Manager – GECM |
|
Adam
M. Kleinman (48) |
| |
Chief
Compliance Officer and Secretary |
| |
Since
October 2017 |
| |
President,
General Counsel and Chief Compliance Officer – GECM
President,
General Counsel and Chief
Compliance
Officer – GEG |
Matt
Kaplan has been our President and Chief Executive Officer since March 2022. Mr. Kaplan has served
as a Portfolio Manager for GECM, since October 2020, as well as a Managing Director of ICAM focused
on investment opportunities across the capital structure. Mr. Kaplan joined ICAM in 2020
after spending four years at Citadel LLC from 2015 to 2019 investing in special situations and
event-driven credit and equities. Previously, Mr. Kaplan served as a Senior Vice President
of Imperial Capital UK from 2014 to 2015, advising on special situations and complex transactions,
including the liquidation of a failed bank. Prior to Imperial Capital UK, Mr. Kaplan worked
in research with Imperial Capital US from 2007 to 2014. Mr. Kaplan earned a B.S. in Managerial
Economics from the University of California, Davis and holds the Chartered Financial Analyst designation
from the CFA Institute.
Keri
A. Davis has been our Chief Financial Officer and Treasurer since March 2019. Ms. Davis also has
been the Chief Financial Officer of GEG since May 2023. Prior to serving in these positions,
Ms. Davis served as SEC Reporting Manager of GECM since June 2018. Prior to joining GECC,
Ms. Davis served as a senior manager in the audit practice at PricewaterhouseCoopers LLP
(“PwC”), a multinational professional services firm focusing on audit and assurance,
tax and consulting services. She was employed in various capacities in the audit practice at
PwC from 2005 to 2017. Ms. Davis holds a B.B.A in Accounting from the University of Massachusetts Amherst.
Adam
M. Kleinman has been our Chief Compliance Officer and Secretary since September 2017. Mr. Kleinman
has served as GEG’s President, General Counsel and Chief Compliance Officer since March
2018, as GEG’s Chief Operating Officer from March 2018 to August 2022, and as GECM’s
President, General Counsel and Chief Compliance Officer since November 2016. Mr. Kleinman
was a Partner, Chief Operating Officer and General Counsel of MAST Capital from March 2009 to
September 2017. Prior to joining MAST Capital, Mr. Kleinman was an associate in the Banking
and Leverage Finance group at Bingham McCutchen LLP, where he represented financial institutions,
hedge funds and corporate borrowers in a broad range of commercial finance transactions. He holds
a J.D. from the University of Virginia School of Law and a B.A. in History from Haverford College.
Corporate
Governance
Code
of Business Conduct and Ethics
We
adopted a code of business conduct and ethics which applies to, among others, our executive officers, including our Chief Executive Officer
and our Chief Financial Officer. Our code of conduct can be accessed via
97
our
website at www.greatelmcc.com. Information on our website is not incorporated by reference in, and does not form a part of, this prospectus.
We intend to disclose any amendments to or waivers of required provisions of the code by filing reports on Form 8-K.
Director
Independence
The
Nasdaq Rules require listed companies to have a board of directors with at least a majority of “Independent Directors” (as
such term is defined in the Nasdaq Rules). Under the Nasdaq Rules, in order for a director to be deemed independent, the board of directors
must determine that the individual does not have a relationship that would interfere with the director’s exercise of independent
judgment in carrying out his or her responsibilities.
In
accordance with the Nasdaq Rules, our Board annually determines each director’s independence. We do not consider a director independent
unless our Board determines that he or she has no material relationship with us or GECM. We monitor the relationships of our directors
and officers through a questionnaire that each director completes no less frequently than annually and updates periodically as information
provided in the most recent questionnaire changes. In order to evaluate the materiality of any such relationship, our Board uses the definition
in Nasdaq Rule 5605(a)(2), which provides that a director of a BDC shall be considered to be independent if he or she is not an “interested
person” of the BDC, as defined in Section 2(a)(19) of the Investment Company Act. Our Board determined that each of the directors
is independent and has no relationship with us, except as a director and stockholder, with the exception of Mr. Drapkin and Mr. Falk.
Any
member of our Board who has previously been determined to be independent must inform the Chairman of our Board, the Chairman of the Nominating
and Corporate Governance Committee and our Corporate Secretary of any change in circumstance that may cause his or her status as an Independent
Director to change. Our Board limits membership on the Audit Committee and the Nominating and Corporate Governance Committee to Independent
Directors.
Risk
Oversight
As
is the case with virtually all investment companies, including externally managed BDCs such as GECC (as distinguished from operating companies),
service providers to GECC, primarily GECM (located at 800 South Street, Suite 230, Waltham, Massachusetts 02453), have responsibility
for the day-to-day management of GECC, which includes responsibility for risk management (including management of investment performance
and investment risk, valuation risk, issuer and counterparty credit risk, compliance risk and operational risk).
Our
Audit Committee (which consists only of Independent Directors) meets regularly, and between meetings the Audit Committee Chair maintains
contact with our independent registered public accounting firm and our Chief Financial Officer. In addition, our Audit Committee from
time to time meets with the independent valuation services that evaluate certain of our securities holdings for which there are not readily
available market values. Our Board also receives periodic presentations from senior personnel of GECM regarding risk management generally,
as well as periodic presentations regarding specific operational, compliance or investment areas such as business continuity, personal
trading, valuation, credit and investment research. In addition, our Board, GECM and our other service providers adopted a variety of
policies, procedures and controls designed to address particular risks to us. However, it is not possible to eliminate all of the risks.
Our Board also receives reports from our legal counsel or lawyers of GECM regarding regulatory compliance and governance matters. The
Board’s oversight role does not make our Board a guarantor of our investments or activities or the activities of any of our service
providers.
Our
Board also performs its risk oversight responsibilities with the assistance of the Chief Compliance Officer. Our Board annually reviews
a written report from our Chief Compliance Officer discussing the adequacy and effectiveness of our and our service providers’ respective
compliance policies and procedures.
Our
Board believes its role in risk oversight is effective and appropriate given the extensive regulation to which it is already subject as
a BDC. As a BDC, we are required to comply with regulatory requirements that control the levels of risk in our business and operations.
For example, our ability to incur indebtedness is limited such that our asset coverage must equal at least 150% immediately after each
time we incur indebtedness and we generally have to invest at least 70% of our gross assets in “qualifying assets.”
98
Board
Composition and Leadership Structure
The
Investment Company Act requires that at least a majority of the members of our Board be independent directors. Currently, three of our
five directors are independent directors. Our Board has designated Mark Kuperschmid as our Lead Independent Director. As Lead Independent
Director, Mr. Kuperschmid is responsible for coordinating the activities of the other independent directors and for such other responsibilities
as are assigned, from time to time, by our Board. Our Board determined that its leadership structure is appropriate in light of the services
that GECM and its affiliates provide to us and the potential conflicts of interest that could arise from these relationships.
Director
Experience, Qualifications, Attributes and Skills
Our
Board believes that the significance of each director’s experience, qualifications, attributes or skills is an individual matter
(meaning that experience that is important for one director may not have the same value for another) and that these factors are best evaluated
at the board level, with no single director, or particular factor, being indicative of board effectiveness. However, our Board believes
that directors need to have the ability to critically review, evaluate, question and discuss information provided to them, and to interact
effectively with our management, service providers and counsel, in order to exercise effective business judgment in the performance of
their duties - our Board believes that its members satisfy this standard. Experience relevant to having this ability may be achieved through
a director’s educational background; business, professional training or practice (e.g., finance, accounting or law), public service
or academic positions; experience from service as a board member (including our Board) or as an executive of investment funds, public
companies or significant private or not-for-profit entities or other organizations; and/or other life experiences. To assist them in evaluating
matters under federal and state law, the directors are counseled by our internal and outside legal counsel, who interact with GECM, and
also may benefit from information provided by our or GECM’s legal counsel. Our Board and its committees have the ability to engage
their own legal counsel and other experts as appropriate. The Board is required to evaluate its performance on an annual basis.
Board
Committees
As
of December 31, 2022, GECC maintains an Audit Committee, a Nominating and Corporate Governance Committee and a Compensation Committee.
Our standing committee charters, including our Audit, Nominating and Corporate Governance and Compensation Committee charters, are posted
on our website at www.greatelmcc.com. Paper copies may be obtained upon request by writing to: Corporate Secretary, Great Elm Capital
Corp., 800 South Street, Suite 230, Waltham, Massachusetts 02453.
For
the fiscal year ended December 31, 2022, our Board held eight board meetings, four Audit Committee meetings, two Nominating and Corporate
Governance Committee meetings and one Compensation Committee meeting. All directors who were directors during the fiscal year ended December 31,
2022 attended at least 75% of the meetings of our Board and of the committees on which they served, during the period in which they served.
No members of our Board, serving as of December 31, 2022, attended our 2022 annual meeting of stockholders.
We
require each director to make a diligent effort to attend all Board and committee meetings, and encourage directors to attend the annual
meeting of stockholders.
Audit
Committee
The
Audit Committee is a standing committee established in accordance with section 3(a)(58)(A) of the Exchange Act that operates pursuant
to an Audit Committee Charter approved by our Board. The Audit Committee Charter sets forth the responsibilities of the Audit Committee,
which include selecting or retaining each year an independent registered public accounting firm (the “auditors”) to audit
our annual financial statements; reviewing and discussing with management and the auditors our annual audited financial statements, including
disclosures made in management’s discussion and analysis, and recommending to our Board whether the audited financial statements
should be included in our annual report on Form 10-K; reviewing and discussing with management and the auditors our quarterly financial
statements prior to the filing of our quarterly reports on Form 10-Q; pre-approving our auditors’ engagement to render audit and/or
permissible non-audit services; evaluating the qualifications, performance and independence of the auditors; and reviewing preliminary
valuations of the investment adviser and independent valuation firms and recommending valuations to our Board.
99
Our
Audit Committee is currently composed of three persons: Mr. Cohen, Mr. Kuperschmid and Mr. Perry, all of whom are considered
independent directors under Nasdaq Rule 5605(a)(2). Mr. Cohen currently serves as Chair of the Audit Committee. Our Board determined
that Mr. Cohen qualifies as an “audit committee financial expert” as that term is defined under Item 407 of Regulation
S-K under the Exchange Act.
The
responsibilities and activities of our Audit Committee are described in greater detail in our Audit Committee charter.
Nominating
and Corporate Governance Committee
The
Nominating and Corporate Governance Committee is responsible for selecting qualified nominees to be elected to our Board by stockholders;
identifying, selecting or recommending qualified nominees to fill any vacancies on our Board or a committee hereof; developing and recommending
to our Board a set of corporate governance principles applicable to the Company; overseeing the evaluation of our Board and management;
and undertaking such other duties and responsibilities as may from time to time be delegated by our Board to the Nominating and Corporate
Governance Committee. The Nominating and Corporate Governance Committee is composed of three persons: Mr. Cohen, Mr. Kuperschmid
and Mr. Perry, all of whom are considered independent directors under Nasdaq Rule 5605(a)(2). Mr. Kuperschmid currently serves
as the Chair of the Nominating and Corporate Governance Committee.
The
Nominating and Corporate Governance Committee considers stockholder recommendations for possible nominees for election as directors when
such recommendations are submitted in accordance with our Bylaws, the Nominating and Corporate Governance Committee Charter and any applicable
law, rule or regulation regarding director nominations. Nominations should be sent to Corporate Secretary, Great Elm Capital Corp., 800
South Street, Suite 230, Waltham, Massachusetts 02453. To have a candidate considered by our Nominating and Corporate Governance Committee,
a stockholder should submit the recommendation in writing and must include the information required by, and follow the procedures specified
in, our Bylaws to the address in the previous sentence.
Criteria
considered by the Nominating and Corporate Governance Committee in evaluating the qualifications of individuals for election as members
of our Board include, to the extent required, compliance with the independence and other applicable requirements of the federal securities
laws, the Nasdaq Rules, and any other applicable laws, rules, or regulations; the ability to contribute to the effective management of
GECC, taking into account the ability to critically review, evaluate, question and discuss information provided to them, and to interact
effectively with our management, service providers and counsel, in order to exercise effective business judgment in the performance of
their duties; educational background, business, professional training or practice (e.g., finance, accounting or law), public service or
academic positions, experience from service as a board member (including our Board) or as an executive of investment funds, public companies
or significant private or not-for-profit entities or other organizations, and/or other life experiences; and personal and professional
integrity, character, time availability in light of other commitments, dedication, conflicts of interest and such other relevant factors
that the Nominating and Corporate Governance Committee considers appropriate. Our Board also believes it is appropriate for members of
our management to serve as a member of our Board. In addition, although our Nominating and Corporate Governance Committee does not have
a formal policy with regard to consideration of diversity in identifying director candidates, our Nominating and Corporate Governance
Committee may consider whether a potential candidate’s professional experience, education, skills and other individual qualities
and attributes, including gender, race or national origin, would provide beneficial diversity of skills, experience or perspective to
our Board’s membership and collective attributes. Such considerations will vary based on our Board’s existing membership and
other factors, such as the strength of a potential nominee’s overall qualifications relative to diversity considerations.
The
responsibilities and activities of our Nominating and Corporate Governance Committee are described in greater detail in our Nominating
and Corporate Governance Committee charter.
Compensation
Committee
The
Compensation Committee is responsible for determining, or recommending to our Board for determining, the compensation of our Chief Executive
Officer and all other executive officers, paid directly by us, if any. Additionally, the Compensation Committee assists our Board with
all matters related to compensation, as directed by our Board. The Compensation Committee may delegate any of its responsibilities to
a subcommittee
100
comprised
of one or more members of the Compensation Committee. The current members of the Compensation Committee are Mr. Cohen, Mr. Kuperschmid
and Mr. Perry, all of whom are considered independent directors under Nasdaq Rule 5605(a)(2). Mr. Perry currently serves as
the Chair of the Compensation Committee. None of our executive officers is directly compensated by us and, as a result, the Compensation
Committee does not produce and/or review and report on executive compensation practices. Our executive officers do not have a role in
determining or recommending director compensation.
The
responsibilities and activities of our Compensation Committee are described in greater detail in our Compensation Committee charter.
Compensation
of Directors
The
following table shows information regarding the compensation received by our directors for the fiscal year ended December 31, 2022.
No compensation is paid to Peter A. Reed in his former role as a director.
|
Name |
| |
Fees
Earned or
Paid
in Cash |
| |
All
Other Name
Fees
Earned or Paid
in
Cash
Compensation(1) |
| |
Total |
|
Independent
Directors |
| |
|
| |
|
| |
|
|
Mark
Kuperschmid |
| |
$65,153 |
| |
$ — |
| |
$65,153 |
|
Richard
Cohen |
| |
$53,806 |
| |
$— |
| |
$53,806 |
|
Chad
Perry |
| |
$51,820 |
| |
$— |
| |
$51,820 |
|
Randall
Revell Horsey(2) |
| |
$11,375 |
| |
$— |
| |
$11,375 |
|
Michael
C. Speller(3) |
| |
$11,375 |
| |
$— |
| |
$11,375 |
|
|
| |
|
| |
|
| |
|
|
Interested
Directors |
| |
|
| |
|
| |
|
|
Peter
A. Reed(4) |
| |
$— |
| |
$— |
| |
$— |
|
Matthew
A. Drapkin |
| |
$— |
| |
$— |
| |
$— |
|
Erik
A. Falk |
| |
$7,875 |
| |
$— |
| |
$7,875 |
|
(1) |
In
fiscal year 2022, we did not maintain a stock or option plan, non-equity incentive plan or pension plan or other retirement benefits for
our directors. |
|
(2) |
Mr. Horsey
resigned from the Board in March 2022. |
|
(3) |
Mr. Speller
resigned from the Board in March 2022. |
|
(4) |
Mr. Reed
resigned from the Board in March 2022. |
No
compensation is paid by us to Mr. Drapkin in his role as director. Mr. Falk received $7,875 in compensation for his role as
director from January 1, 2022 through March 4, 2022. No compensation will be paid by us to Mr. Falk in his role as director
after March 4, 2022. Our other directors receive an annual fee of $45,000. They also receive reimbursement of reasonable out-of-pocket
expenses incurred in connection with attending each board meeting and each committee meeting. In addition, the chairman of each of our
Board’s standing committees receives an annual fee of $10,000 for his additional services in these capacities. Each member of these
committees receives a $5,000 annual fee for serving on these committees. In addition, we purchased directors’ and officers’
liability insurance on behalf of our directors and officers.
Compensation
of Executive Officers
We
do not provide direct compensation to our officers. Ms. Davis and Mr. Kleinman are paid by GECM, subject to reimbursement by
us for our allocable portion of such compensation under the Administration Agreement, by and between us and GECM. Mr. Kaplan is paid
by ICAM, subject to reimbursement by GECM for the allocable portion of such compensation under a shared services agreement between ICAM
and GECM (the “Shared Services Agreement”).
Compensation
Committee Interlocks and Insider Participation
Mr. Kuperschmid,
Mr. Cohen and Mr. Perry served on our Compensation Committee during fiscal year 2022. Currently, none of our executive officers
are compensated by us, and as such, our Compensation Committee is not required to produce a report on executive officer compensation for
inclusion herein. No current or past executive officers or employees of ours or our affiliates serve on our Compensation Committee.
101
Our
Portfolio Managers
GECM
manages our portfolio. We consider Matt Kaplan, our Chief Executive Officer, to be our portfolio manager. GECM’s investment team
does not receive any direct compensation from us in connection with the management of our portfolio. GECM’s investment personnel
may be compensated through: (1) annual base salary; (2) cash bonuses; and (3) equity in GEG.
Matt
Kaplan. See “—Executive Officers” above.
Other
Accounts Managed
As
of December 31, 2022, GECM was primarily responsible for the day-to-day management of one pooled investment fund for an institutional
investor.
|
Name
of Investment
Committee
Voting Member |
| |
Type
of Accounts |
| |
Total
No. of
Other
Accounts
Managed |
| |
Total
Other
Assets
(in
millions) |
| |
No.
of Other
Accounts
where
Advisory
Fee
is
Based on
Performance |
| |
Total
Assets
in
Other
Accounts
where
Advisory
Fee
is
Based on
Performance
(in
millions) |
|
Matt
Kaplan |
| |
Registered
Investment Companies: |
| |
None |
| |
None |
| |
None |
| |
None |
|
|
| |
Other
Pooled Investment Vehicles: |
| |
1 |
| |
$7.7 |
| |
1 |
| |
$7.7 |
|
|
| |
Other
Accounts: |
| |
None |
| |
None |
| |
None |
| |
None |
Portfolio
Managers’ Material Conflicts of Interest
Certain
of our executive officers and directors, and the members of the investment committee of GECM, serve or may serve as officers, directors
or principals of entities, including ICAM or funds managed by ICAM, that operate in the same or related lines of business as GECC or of
investment funds managed by our affiliates. Accordingly, they may have obligations to investors in those entities that may require them
to devote time to services for other entities, which could interfere with the time available to provide services to us. Further, we may
not be given the opportunity to participate in certain investments made by investment funds managed by advisers affiliated with GECM and
any advisers that may in the future become affiliated with GEG. GECC’s participation in any negotiated co-investment opportunities
(other than those in which the only term negotiated is price) with investment funds managed by investment managers under common control
with GECM is subject to compliance with the Exemptive Relief Order.
Although
funds managed by GECM may have different primary investment objectives than us, they may from time to time invest in asset classes similar
to those we target. GECM is not restricted from raising an investment fund with investment objectives similar to ours. Any such funds
may also, from time to time, invest in asset classes similar to those we target. GECM will endeavor to allocate investment opportunities
in a fair and equitable manner, and in any event consistent with any duties owed to us and such other funds. Nevertheless, it is possible
that we may not be given the opportunity to participate in investments made by investment funds managed by investment managers affiliated
with GECM. We have received exemptive relief from the SEC that allows us to co-invest, together with other investment vehicles managed
by GECM, in specific investment opportunities in accordance with the Exemptive Relief Order.
We
pay management and incentive fees to GECM, and reimburse GECM for certain expenses it incurs. In addition, investors in our common stock
will invest on a gross basis and receive distributions on a net basis after expenses, resulting in, among other things, a lower rate of
return than one might achieve through direct investments. GECM’s management fee is based on a percentage of our total assets (other
than cash or cash equivalents but including assets purchased with borrowed funds and other forms of leverage) and GECM may have conflicts
of interest in connection with decisions that could affect our total assets, such as decisions as to whether to incur indebtedness.
The
part of the incentive fee payable by us that relates to our pre-incentive fee net investment income is computed and paid on income that
may include interest that is accrued but not yet received in cash. If a portfolio company defaults on a loan that is structured to provide
accrued interest, it is possible that accrued interest previously used in the calculation of the incentive fee will become uncollectible.
102
The
Investment Management Agreement renews for successive annual periods if approved by our Board or by the affirmative vote of the holders
of a majority of our outstanding voting securities, including, in either case, approval by a majority of our directors who are not interested
persons. However, we and GECM each have the right to terminate the agreement without penalty upon 60-days’ written notice to the
other party. Moreover, conflicts of interest may arise if GECM seeks to change the terms of the Investment Management Agreement, including,
for example, the terms for compensation. Except in limited circumstances, any material change to the Investment Management Agreement must
be submitted to our stockholders for approval under the Investment Company Act, and we may from time to time decide it is appropriate
to seek stockholder approval to change the terms of the agreement.
As
a result of the arrangements described above, there may be times when our management team has interests that differ from those of our
stockholders, giving rise to a conflict.
Our
stockholders may have conflicting investment, tax and other objectives with respect to their investments in us. The conflicting interests
of individual stockholders may relate to or arise from, among other things, the nature of our investments, the structure or the acquisition
of our investments, and the timing of disposition of our investments. As a consequence, conflicts of interest may arise in connection
with decisions we make, including with respect to the nature or structuring of our investments, that may be more beneficial for one stockholder
than for another stockholder, especially with respect to stockholders’ individual tax situations. In selecting and structuring investments
appropriate for us, GECM will consider our investment and tax objectives and our stockholders, as a whole, not the investment, tax or
other objectives of any stockholder individually.
We
may also have conflicts of interest arising out of the investment advisory activities of GECM. GECM may in the future manage other investment
funds, accounts or investment vehicles that invest or may invest in assets eligible for purchase by us. To the extent that we compete
with entities managed by GECM or any of its affiliates for a particular investment opportunity, GECM will allocate investment opportunities
across the entities for which such opportunities are appropriate, consistent with (1) its internal investment allocation policies, (2)
the requirements of the Advisers Act and (3) restrictions under the Investment Company Act regarding co-investments with affiliates, including
the requirements of the Exemptive Relief Order.
Ownership
of Securities
As
of December 31, 2022, Matt Kaplan owned between $10,001 and $50,000 of shares of our common stock, which is calculated based on the
closing price for shares of our common stock of $8.29 on December 30, 2022.
As
of March 31, 2023, Matt Kaplan owned over $100,000 of shares of our common stock, which is calculated based on the closing price
for shares of our common stock of $9.00 on March 31, 2023.
103
RELATED
PARTY TRANSACTIONS AND CERTAIN RELATIONSHIPS
Mr. Kaplan
serves as a Portfolio Manager for GECM. Mr. Drapkin serves as Vice Chairman of the board of directors of GEG. Mr. Kleinman
serves as President, General Counsel and Chief Compliance Officer of GECM and GEG, the parent company of GECM, in addition to being our
Chief Compliance Officer and Secretary. GEG owns approximately 20.2% of our outstanding shares of common stock as of June 16,
2023.
Certain
of our executive officers and directors, and the members of the investment committee of GECM, serve or may serve as officers, directors
or principals of entities, including ICAM or funds managed by ICAM, that operate in the same or related lines of business as GECC or of
investment funds managed by our affiliates. Accordingly, they may have obligations to investors in those entities that may require them
to devote time to services for other entities, which could interfere with the time available to provide services to us. Further, we may
not be given the opportunity to participate in certain investments made by investment funds managed by advisers affiliated with GECM and
any advisers that may in the future become affiliated with GEG. GECC’s participation in any negotiated co-investment opportunities
(other than those in which the only term negotiated is price) with investment funds managed by investment managers under common control
with GECM is subject to compliance with the Exemptive Relief Order.
Mr. Drapkin
is a director of GEG and the Chief Executive Officer & Portfolio Manager of Northern Right, a beneficial owner of more than 5% of
GEG’s common stock and an owner of GEG PIK notes. Mr. Drapkin does not receive compensation from us in his role as a director
and is an “interested person” as defined under Section 2(a)(19) of the Investment Company Act.
We
entered into a license agreement with GEG pursuant to which GEG granted us a non-exclusive, royalty-free license to use the name “Great
Elm Capital Corp.” Under the license agreement, we have a right to use the “Great Elm Capital Corp.” name and logo for
so long as GECM, or an affiliate thereof, remains our investment adviser.
We
are party to the Investment Management Agreement with GECM, which is wholly-owned by GEG. Subject to the overall supervision of our Board,
GECM manages our day-to-day operations and provides investment advisory and management services to us pursuant to the Investment Management
Agreement. We pay GECM a fee for investment management services, which consisted of (1) base management fees of $3.2 million and
$3.2 million for the years ended December 31, 2022 and 2021, respectively, and (2) an accrued and unpaid aggregate incentive
fee of approximately $1.3 million as of March 31, 2023. GECM waived all accrued and unpaid incentive fees pursuant to the Investment
Management Agreement as of March 31, 2022. For the year ended December 31, 2022, we incurred $0.6 million in Income Incentive
Fees accrued during the period, exclusive of the waiver granted by the investment manager of $4.9 million in incentive fees earned
in previous periods. There were no Capital Gains Incentive Fees earned by GECM as calculated under the Investment Management Agreement
for the year ended December 31, 2022. For the year ended December 31, 2021, we incurred $(4.3) million in Income Incentive Fees
accrued during the period. There were no Capital Gains Incentive Fees earned by GECM as calculated under the Investment Management Agreement
for the year ended December 31, 2021. In connection with the incentive fee waiver, we recognized the reversal of these accrued fees
during the period ending March 31, 2022, resulting in a corresponding increase in net income and increase in NAV in such period (subject
to any offsetting additional expenses or losses).
We
are also party to the Administration Agreement with GECM. Pursuant to the Administration Agreement, GECM furnishes us with, or otherwise
arranges for the provision of, office facilities, equipment, clerical, bookkeeping, finance, accounting, compliance and record keeping
services at such office facilities and other such services as our administrator. We bear all costs and expenses that are incurred in our
operation and transactions and not specifically assumed by GECM pursuant to the Investment Management Agreement. For the fiscal years
ended December 31, 2022 and 2021 we reimbursed GECM in the amount of $0.9 million and $0.7 million, respectively, for services
provided under the Administration Agreement. For the quarters ended March 31, 2023 and 2022, we reimbursed GECM in the amount of
$0.2 million and $0.2 million, respectively, for services provided under the Administration Agreement.
GECM
has entered into the Shared Services Agreement, pursuant to which ICAM makes available to GECM certain employees of ICAM, including Matt
Kaplan, to provide services to GECM in exchange for reimbursement by GECM of the allocated portion of such employees’ time. Mr. Kaplan
provides services to
104
GECM
under the Shared Services Agreement. Pursuant to the Shared Services Agreement, GECM also makes available to ICAM certain employees of
GECM to provide services to ICAM in exchange for reimbursement by ICAM of the allocated portion of such employees’ time. Affiliates
of ICAM beneficially own more than 5% of our Company’s outstanding common stock.
We
have established a written policy to govern the review of potential related party transactions. GECM, our Chief Compliance Officer, and
any other officers designated by us are required to review the facts and circumstances of transactions with certain affiliates, and to
screen any such transactions, for potential compliance issues under Section 57(h) of the Investment Company Act.
105
CONTROL
PERSONS AND PRINCIPAL STOCKHOLDERS
The
following table sets forth, as of the close of business on June 16, 2023, certain information
regarding the beneficial ownership of our common stock by:
|
• |
each of the directors and
executive officers; |
|
• |
all of our current executive
officers and directors as a group; and |
|
• |
each person known by us
to be beneficial owners of 5% or more of our outstanding common stock. |
Beneficial
ownership has been determined in accordance with Rule 13d-3 under the Exchange Act, and includes voting or investment power with respect
to the securities. Ownership information for those persons who beneficially own more than 5% of our common stock is based upon Schedule
13G and Schedule 13D filings filed by such persons with the SEC and other information obtained from such persons, if available. Unless
otherwise indicated, we believe that each beneficial owner set forth in the table has sole voting and investment power.
Except
as indicated in the footnotes to this table and under applicable community property laws, to our knowledge, the persons named in the
table have sole voting and investment power with respect to all shares of common stock. For the purposes of calculating percent ownership,
as of the close of business on June 16, 2023, 7,601,958 shares of common stock were issued
and outstanding.
The
address for each of our current directors and executive officers is c/o Great Elm Capital Corp., 800 South Street, Suite 230, Waltham,
Massachusetts 02453.
|
|
| |
Shares
Beneficially
Owned |
| |
Percent
of
Class |
|
Interested
Directors |
| |
|
| |
|
|
Erik
A. Falk |
| |
— |
| |
* |
|
Matthew
Drapkin(1) |
| |
860,088 |
| |
11.3% |
|
Independent
Directors |
| |
|
| |
|
|
Mark
Kuperschmid(2) |
| |
16,972 |
| |
* |
|
Richard
Cohen |
| |
— |
| |
* |
|
Chad
Perry |
| |
— |
| |
* |
|
Executive
Officers |
| |
|
| |
|
|
Matt
Kaplan |
| |
12,000 |
| |
* |
|
Adam
Kleinman |
| |
20,558 |
| |
|
|
Keri
Davis |
| |
9,034 |
| |
* |
|
Directors
and executive officers as a group (8 persons) |
| |
918,652 |
| |
12.1% |
|
5%
Beneficial Owners |
| |
|
| |
|
|
Great
Elm Group, Inc.(3) |
| |
1,532,519 |
| |
20.2% |
|
Entities
affiliated with Northern Right Capital Management, L.P.(4) |
| |
798,471 |
| |
10.5% |
|
Entities
affiliated with Imperial Capital Asset Management, LLC(5) |
| |
743,230 |
| |
9.8% |
|
* |
Less than one percent. |
|
(1) |
Includes
the 798,471 shares identified in footnote (4) below. |
|
(2) |
Includes
13,972 shares held by Benmark Investments LLC (1568 Columbus Ave., Burlingame, California 94010). Mr. Kuperschmid disclaims
beneficial ownership of these shares except to the extent of his pecuniary interest therein. |
|
(3) |
Based
on information provided to the Company and furnished in a Form 4 filed with the SEC on May 23, 2023 by GEG, who reported sole
voting and dispositive power over 1,569,787 shares of our common stock. The address for Great Elm Group, Inc. is 800 South Street,
Suite 230, Waltham, Massachusetts 02453. |
|
(4) |
Based
on information provided to the Company and furnished in a Schedule 13G/A filed with the SEC on June 21, 2022, jointly by Northern
Right, Northern Right QP, NRC, BCA and Matthew Drapkin. Each of Northern Right, BCA and Mr. Drapkin reported shared voting
and dispositive power over 798,471 shares of our common stock; Northern Right QP reported shared voting and dispositive power
over 220,399 shares of our common stock; and NRC reported shared voting and dispositive power over 208,932 shares of our common
stock. On March 1, 2023, NRC transferred 208,932 shares of our common stock to Northern Right QP, and, as a result, Northern
Right QP shares voting and dispositive power over 429,331 shares of our common stock. The address for Northern Right is 9 Old
Kings Hwy S., 4th Floor, Darien, CT 06820. |
106
|
(5) |
Based
on information provided to the Company and furnished in a Schedule 13G/A filed with the SEC on February 17, 2023, jointly by
ICAM, Long Ball Partners, LLC (“Long Ball”), IC Leverage Income Fund, LLC (“IC Leverage”), Imperial Capital Group
Holdings II, LLC (“Imperial Holdings II”), and Jason Reese. ICAM and Long Ball reported
shared voting and dispositive power over 145,189 shares of our common stock; IC Leverage reported
shared voting and dispositive power over 198,979 shares of our common stock; Imperial Holdings II
reported shared voting and dispositive power over 399,062 shares of our common stock; and Mr. Reese reported
shared voting and dispositive power over 743,230 shares of our common stock. The address for ICAM is 3801 PGA Boulevard,
Suite 603, Palm Beach Gardens, FL 33410. |
Set
forth below is the dollar range of equity securities beneficially owned by each of our directors as of December 31, 2022. We are
not part of a “family of investment companies,” as that term is defined in the Investment Company Act.
|
Name
of Director |
| |
Dollar
Range of Equity
Securities
of GECC(1)(2) |
|
Independent
Directors |
| |
|
|
Mark
Kuperschmid |
| |
$50,001
— $100,000 |
|
Richard
Cohen |
| |
None |
|
Chad
Perry |
| |
None |
|
Interested
Directors |
| |
|
|
Matthew
Drapkin |
| |
Over
$100,000 |
|
Erik
A. Falk |
| |
None |
|
(1) |
Dollar
ranges are as follows: None, $1-$10,000, $10,001-$50,000, $50,001-$100,000, or over $100,000. |
|
(2) |
The
dollar range of equity securities beneficially owned is based on the closing price for our common stock of $8.29 on December 30,
2022. |
107
DETERMINATION
OF NET ASSET VALUE
We
determine the NAV of GECC each quarter by subtracting our total liabilities from the fair value of our gross assets.
We
value our portfolio investments at fair value based upon the principles and methods of valuation set forth in policies adopted by our
Board. Fair value is defined as the price that would be received to sell an asset in an orderly transaction between market participants
at the measurement date. Market participants are buyers and sellers in the principal (or most advantageous) market for the asset that
(1) are independent of us; (2) are knowledgeable, having a reasonable understanding about the asset based on all available information
(including information that might be obtained through due diligence efforts that are usual and customary); (3) are able to transact for
the asset; and (4) are willing to transact for the asset (that is, they are motivated but not forced or otherwise compelled to do so).
Investments
for which market quotations are readily available are valued at such market quotations unless the quotations are deemed not to represent
fair value. We generally obtain market quotations from recognized exchanges, market quotation systems, independent pricing services or
one or more broker-dealers or market makers. However, short-term debt investments with remaining maturities within 90 days are generally
valued at amortized cost, which approximates fair value.
Debt
and equity securities for which market quotations are not readily available or for which market quotations are deemed not to represent
fair value, are valued at fair value using a valuation process consistent with our Board-approved policy. Our Board approves in good faith
the valuation of our portfolio as of the end of each quarter. Due to the inherent uncertainty and subjectivity of determining the fair
value of investments that do not have a readily available market value, the fair value of our investments may differ significantly from
the values that would have been used had a readily available market value existed for such investments and may differ materially from
the values that we may ultimately realize. In addition, changes in the market environment and other events may impact the market quotations
used to value some of our investments.
Determination
of fair value involves subjective judgments and estimates. Accordingly, the notes to our financial statements will express the uncertainty
with respect to the possible effect of such valuations, and any change in such valuations, on our financial statements.
108
DIVIDEND
REINVESTMENT PLAN
We
have adopted a dividend reinvestment plan that provides for reinvestment of our dividends and other distributions on behalf of our stockholders,
unless a stockholder elects to receive cash as provided below. As a result, if our Board authorizes, and we declare, a cash distribution,
our stockholders who have not opted out of our dividend reinvestment plan will have their cash distributions (net of any applicable withholding
tax) automatically reinvested in additional shares of our common stock, rather than receiving the cash distributions.
No
action will be required on the part of a registered stockholder to have his or her cash distribution reinvested in our common stock. A
registered stockholder may elect to receive an entire distribution in cash by notifying American Stock Transfer & Trust Company, LLC,
the plan administrator and our transfer agent and registrar, in writing so that such notice is received by the plan administrator no later
than the record date for distributions to stockholders. The plan administrator will set up an account for common stock acquired through
the plan for each stockholder who has not elected to receive distributions in cash and hold such common stock in non-certificated form.
Upon request by a stockholder participating in the plan, received in writing not less than 10 days prior to each applicable 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 common stock 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 primarily newly issued common stock to implement the plan to the extent our common stock is trading at a premium to NAV
per share of the common stock. In the case that such newly issued common stock is used to implement the plan, the number of common stock
to be issued to a stockholder is determined by dividing the total dollar amount of the distribution payable to such stockholder by 95%
of the market price per share of our common stock at the close of trading on the date fixed by the Board for such purposes. Market price
per share on that date will be the closing price for such common stock on the national securities exchange on which our common stock is
then listed or, if no sale is reported for such day, at the average of their electronically reported bid and asked prices. Notwithstanding
the foregoing, we reserve the right to instruct the plan administrator to purchase our common stock in the open market in connection with
our implementation of the plan. Shares purchased in open market transactions by the plan administrator will be allocated to each stockholder
who has not so elected to receive cash distributions in cash in the manner set forth above for issuance of new common stock, substituting
where applicable the average purchase price, excluding any brokerage charges or other charges, of all common stock purchased in the open
market in lieu of the market price per share. 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 common stock will be issued has been determined
and elections of our stockholders have been tabulated.
The
plan administrator’s fees under the plan will be paid by us. If a participant elects by written notice to the plan administrator
to have the plan administrator sell part or all of the common stock 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 transaction fee of $15 plus a per share brokerage
commission from the proceeds.
Stockholders
who receive distributions in the form of stock are generally subject to the same federal, state and local tax consequences as are stockholders
who elect to receive their distributions in cash. A stockholder’s basis for determining gain or loss upon the sale of stock received
in a distribution from us generally will be equal to the total dollar amount of the distribution payable to the stockholder. Any stock
received in a distribution will have a new holding period for tax purposes commencing on the day following the day on which the common
stock is credited to the U.S. stockholder’s account.
We
may terminate the plan upon notice in writing mailed to each participant at least 30 days prior to any record date for the payment of
any 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.
109
CERTAIN
U.S. FEDERAL INCOME TAX CONSIDERATIONS
The
following is a summary of certain material U.S. federal income tax consequences to U.S. Holders and Non-U.S. Holders (as defined below)
of the acquisition, ownership, and disposition of the Notes that we are offering. The following discussion is not exhaustive of all possible
tax consequences. This summary is based upon the Code, U.S. Treasury Department (the “U.S. Treasury”) regulations (including
proposed and temporary regulations), rulings, current administrative interpretations and official pronouncements of the IRS, and judicial
decisions, all as currently in effect and all of which are subject to differing interpretations or to change, possibly with retroactive
effect. No assurance can be given that the IRS would not assert, or that a court would not sustain, a position contrary to those discussed
below.
This
summary is for general information only, and does not purport to discuss all aspects of U.S. federal income taxation that may be important
to a particular holder in light of its investment or tax circumstances (such as the effects of Section 451(b) of the Code) or to holders
subject to special tax rules, such as partnerships, subchapter S corporations or other pass-through entities (and holders of interests
in such entities), any government (or instrumentality or agency thereof), banks, financial institutions, tax-exempt entities, insurance
companies, regulated investment companies, real estate investment trusts, controlled foreign corporations, passive foreign investment
companies and stockholders of such corporations, trusts and estates, dealers in securities or currencies, traders in securities that
have elected to use the mark-to-market method of accounting for their securities, persons holding the Notes as part of an integrated
investment, including a “straddle,” “hedge,” “constructive sale,” or “conversion transaction,”
persons (other than Non-U.S. Holders (as defined below)) whose functional currency for tax purposes is not the U.S. dollar, persons subject
to the alternative minimum tax provisions of the Code and persons who participate in this offering
and are also beneficial owners of the GECCN Notes, the GECCM Notes or the GECCO Notes which are redeemed with the proceeds of this offering as described
in “Use of Proceeds”. This summary does not include any discussion of the tax laws of any state, local or foreign
government that may be applicable to a particular holder nor does it discuss any U.S. federal tax consequences other than U.S. federal
income tax consequences (such as U.S. federal estate or gift tax consequences).
This
summary is directed solely to U.S. Holders and Non-U.S. Holders (as defined below) that will purchase the Notes offered in this prospectus
at their “issue price” (i.e., the first price at which a substantial amount of the Notes is sold for money to investors, other
than to bond houses, brokers, or similar persons or organizations acting in the capacity of underwriters, placement agents, or wholesalers)
and will hold such Notes as capital assets within the meaning of Section 1221 of the Code, which generally means as property held for
investment.
You
should consult your own tax advisor concerning the U.S. federal income tax consequences to you of acquiring, owning and disposing of the
Notes, as well as any tax consequences arising under the laws of any state, local, foreign, or other tax jurisdiction and the possible
effects of changes in U.S. federal or other tax laws.
As
used in this prospectus, the term “U.S. Holder” means a beneficial owner of a Note offered in this prospectus that is for
U.S. federal income tax purposes:
|
• |
an individual who is a citizen
or resident of the United States; |
|
• |
a corporation (including
an entity treated as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the United States,
any state therein or the District of Columbia; |
|
• |
an estate, the income of
which is subject to U.S. federal income taxation regardless of its source; or |
|
• |
a trust if (a) a court within
the United States is able to exercise primary supervision over the administration of the trust and one or more U.S. persons have the authority
to control all substantial decisions of the trust or (b) a valid election is in place under applicable U.S. Treasury regulations to treat
such trust as a United States person. |
If
an entity or arrangement treated as a partnership for U.S. federal income tax purposes holds the Notes offered in this prospectus, the
U.S. federal income tax treatment of a partner generally will depend upon the status of the partner and the activities of the partnership,
and accordingly, this summary does not apply to partnerships. A partner of a partnership holding the Notes should consult its own tax
advisor regarding the U.S. federal income tax consequences to the partner of the acquisition, ownership and disposition by the partnership
of the Notes.
110
U.S.
Holders
Payment
of Interest. Interest on a Note generally will be included in the income of a U.S. Holder as interest
income at the time it is accrued or is received in accordance with the U.S. Holder’s regular
method of accounting for U.S. federal income tax purposes and will be ordinary income.
If
the stated principal amount of the Notes exceeds their “issue price” (as defined above) by more than a statutorily defined
“de minimis” amount, a U.S. Holder (whether a cash method or accrual method taxpayer) will be required to include the excess
in gross income as original issue discount (“OID”), as it accrues, in accordance with a constant yield-to-maturity method
(unless otherwise accelerated), in advance of receipt of the cash payments to which such OID is attributable. U.S. Holders should consult
their own tax advisors regarding the possible application of the OID rules. It is expected, and the remainder of this discussion assumes,
that the Notes will not be treated as issued with OID of more than a de minimis amount for U.S. federal income tax purposes.
Sale,
Exchange, or Retirement of the Notes. Upon the sale, exchange, retirement, or other taxable disposition
of a Note, a U.S. Holder will recognize gain or loss equal to the difference between the amount
realized upon the sale, exchange, retirement, or other taxable disposition (other than amounts
attributable to accrued but unpaid interest, which will be taxed as such) and the U.S. Holder’s
adjusted tax basis in the Note. A U.S. Holder’s adjusted tax basis in a Note generally
will be the cost of the Note to such U.S. Holder. Gain or loss realized on the sale, exchange,
retirement, or other taxable disposition of a Note generally will be capital gain or loss and will
be long-term capital gain or loss if the Note has been held for more than one year. The deductibility of capital
losses is subject to limitations under the Code.
Additional
Medicare Tax on Unearned Income. A tax of 3.8% is imposed on certain “net investment income”
(or “undistributed net investment income”, in the case of estates and trusts) received
by taxpayers with adjusted gross income above certain threshold amounts. “Net investment
income” as defined for U.S. federal Medicare contribution purposes generally includes interest
payments on, and gain recognized from the sale or other disposition of, the Notes. U.S. Holders
should consult their own tax advisors regarding the effect, if any, of this tax on their ownership
and disposition of the Notes.
Non-U.S.
Holders
This
discussion applies to you if you are a “Non-U.S. Holder.” A “Non-U.S. Holder” is a beneficial owner of a Note
that is neither a U.S. Holder nor a partnership (or other entity treated as a partnership for U.S. federal income tax purposes).
Payments
of Interest. Subject to the discussions below concerning backup withholding and sections 1471 through
1474 of the Code and related U.S. Treasury guidance (collectively referred to as “FATCA”),
interest payments that a Non-U.S. Holder receives from us or our agent and that are not effectively
connected with the conduct by the Non-U.S. Holder of a trade or business within the United States,
or a permanent establishment maintained in the United States if certain tax treaties apply, generally
will not be subject to U.S. federal income or withholding tax unless:
|
• |
the Non-U.S. Holder is a
“10-percent shareholder” of us within the meaning of 871(h)(3) of the Code; |
|
• |
the Non-U.S. Holder is a
“controlled foreign corporation” for U.S. federal income tax purposes that is related to us (directly or indirectly) through
stock ownership; |
|
• |
the Non-U.S. Holder is a
bank extending credit under a loan agreement in the ordinary course of its trade or business; or |
|
• |
the Non-U.S. Holder does
not satisfy the certification requirements described below. |
A
Non-U.S. Holder generally will satisfy the certification requirements if it certifies, under penalties of perjury, that it is not a U.S.
person (on a properly executed IRS Form W-8BEN or W-8BEN-E or other applicable form), or holds its Notes through certain foreign intermediaries
and satisfies the certification requirements of applicable U.S. Treasury regulations.
Interest
payments not meeting the requirements set forth above may be subject to withholding tax at the rate of 30% (or lower applicable treaty
rate). Interest effectively connected with a Non-U.S. Holder’s conduct of a U.S. trade or business, however, would not be subject
to withholding tax as long as the Non-U.S. Holder provides us or our paying agent with an adequate certification (currently on IRS Form
W-8ECI). To claim
111
benefits
under an income tax treaty, a Non-U.S. Holder must obtain a taxpayer identification number and provide a properly executed IRS Form W-8BEN
or W-8BEN-E (or other applicable form) to us or our paying agent before the payment of interest. In addition, special rules may apply
to claims for treaty benefits made by Non-U.S. Holders that are entities rather than individuals. A Non-U.S. Holder that is eligible for
a reduced rate of U.S. federal withholding tax pursuant to an income tax treaty may obtain a refund of any excess amounts withheld by
filing an appropriate claim for refund with the IRS.
Sale,
Exchange, or Retirement of the Notes. A Non-U.S. Holder generally will not be subject to U.S. federal
income or withholding tax on any gain realized on the sale, exchange, retirement, or other taxable
disposition of the Notes (except with respect to accrued and unpaid interest, which would be
taxed as described under “— Payment of Interest” above), provided that:
|
• |
the gain is not effectively
connected with the conduct of a trade or business within the United States, or a permanent establishment maintained in the United States
if certain tax treaties apply; |
|
• |
in the case of a Non-U.S.
Holder that is an individual, the Non-U.S. Holder is not present in the United States for 183 days or more in the taxable year of the
sale, exchange, or other disposition of the Notes; and |
|
• |
the Non-U.S. Holder is not
subject to tax pursuant to certain provisions of U.S. federal income tax law applicable to certain expatriates. |
An
individual Non-U.S. Holder who is present in the United States for 183 days or more in the taxable year of sale, exchange, or other disposition
of a Note, and if certain other conditions are met, will be subject to U.S. federal income tax at a rate of 30% on the gain realized
on the sale, exchange, or other taxable disposition of such Note, which may be offset by U.S. source capital losses.
Income
Effectively Connected with a Trade or Business within the United States. If a Non-U.S. Holder of a Note
is engaged in the conduct of a trade or business within the United States and if interest on
a Note, or gain realized on the sale, exchange, or other taxable disposition of the Note, is
effectively connected with the conduct of such trade or business (and, if certain tax treaties
apply, is attributable to a permanent establishment maintained by the Non-U.S. Holder in the
United States), the Non-U.S. Holder generally will be subject to U.S. federal income tax
on such interest or gain on a net income basis in the same manner as if it were a U.S. Holder.
In addition, if any such Non-U.S. Holder is a foreign corporation, it may also be subject to a branch profits
tax equal to 30% (or lower applicable treaty rate) of its earnings and profits for the taxable year that are effectively
connected with its conduct of a trade or business in the United States, subject to certain adjustments.
Backup
Withholding and Information Reporting
Payments
of interest on, or the proceeds of the sale or other disposition of, a Note held by a U.S. Holder are generally subject to information
reporting unless the U.S. Holder is an exempt recipient (such as a corporation). Such payments, along with principal payments on the Note,
may also be subject to U.S. federal backup withholding at the applicable rate if the recipient of such payment fails to supply a taxpayer
identification number, certified under penalties of perjury, as well as certain other information or otherwise fails to establish an exemption
from backup withholding.
A
Non-U.S. Holder may be required to comply with certain certification procedures to establish that the holder is not a U.S. person in order
to avoid backup withholding with respect to our payment of principal and interest on, or the proceeds of the sale or other disposition
of, a Note. In certain circumstances, the name and address of the beneficial owner and the amount of interest paid on a Note, as well
as the amount, if any, of tax withheld, may be reported to the IRS. Copies of these information returns may also be made available under
the provisions of a specific treaty or agreement to the tax authorities of the country in which the Non-U.S. Holder resides.
Any
amounts withheld under the backup withholding rules may be allowed as a refund or a credit against a holder’s U.S. federal income
tax liability provided the required information is timely furnished to the IRS.
Foreign
Account Tax Compliance Act
FATCA
imposes U.S. federal withholding tax at a rate of 30% on payments to certain foreign entities of (i) U.S.-source interest (including
interest paid on the Notes) and (ii) subject to the proposed U.S. Treasury regulations described below, the gross proceeds from the
sale or other disposition of an obligation that produces
112
U.S.-source
interest (including a disposition of the Notes). This withholding tax applies to a foreign entity, whether acting as a beneficial owner
or an intermediary, unless such foreign entity complies with (i) certain information reporting requirements regarding its U.S. account
holders and its U.S. owners and (ii) certain withholding obligations regarding certain payments to its account holders and certain
other persons. Additionally, in order to be treated as FATCA compliant, a Non-U.S. Holder must provide certain documentation (usually
an IRS Form W-8BEN or W-8BEN-E) containing information about its identity, its FATCA Status, and if required, its direct and indirect
U.S. owners.
Accordingly,
the entity through which a U.S. Holder or a Non-U.S. Holder holds the Notes will affect the determination of whether such withholding
is required. Foreign entities located in jurisdictions that have an intergovernmental agreement with the United States with respect to
FATCA may be subject to different rules. We will not pay any additional amounts to U.S. Holders or Non-U.S. Holders in respect of any
amounts withheld, whether in respect of FATCA or otherwise. The U.S. Treasury has released proposed U.S. Treasury regulations which, if
finalized in their present form, would eliminate the application of this regime with respect to payments of gross proceeds (but not interest).
Pursuant to the preamble to these proposed U.S. Treasury regulations, the issuer and any other applicable withholding agent may (but is
not required to) rely on this proposed change to FATCA withholding until final regulations are issued or until such proposed U.S. Treasury
regulations are rescinded. U.S. Holders that own their interests in a Note through a foreign entity or intermediary, and Non-U.S. Holders,
should consult their tax advisors regarding the applicability of FATCA.
The
U.S. federal income tax discussion set forth above is included for general information only and may not be applicable depending upon a
holder’s particular situation. You should consult your own tax advisors with respect to the tax consequences to you of the acquisition,
ownership and disposition of the Notes, including the tax consequences under state, local, foreign and other tax laws and the possible
effects of changes in U.S. federal or other tax laws.
113
DESCRIPTION
OF OUR COMMON STOCK
The
following description is based on relevant portions of the Maryland General Corporation Law and our charter (“Charter”) and
bylaws (“Bylaws”). This summary is not necessarily complete, and we refer you to the Maryland General Corporation Law and
our charter and bylaws for a more detailed description of the provisions summarized below.
Our
authorized stock 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 Nasdaq under the ticker symbol “GECC.” There are no outstanding options or warrants to purchase
our common stock. No common stock has been authorized for issuance under any equity compensation plans. Our fiscal year-end is December
31. Under Maryland law, our stockholders generally are not personally liable for our debts or obligations.
The
following are our outstanding classes of securities as of March 31, 2023:
|
Title
of Class |
| |
Amount
Authorized |
| |
Amount
Held
by
GECC or for
GECC’s
Account |
| |
Amount
Outstanding
Exclusive
of
Amounts
Shown in
the
Adjacent
Column |
|
Common
Stock |
| |
|
| |
— |
| |
|
|
GECCM
Notes |
| |
— |
| |
— |
| |
$ million |
|
GECCN
Notes |
| |
— |
| |
— |
| |
$ million |
|
GECCO
Notes |
| |
— |
| |
— |
| |
$ million |
Under
our Charter, our Board is authorized to classify and reclassify any unissued stock into other classes or series of stock, including a
class or series of preferred stock, without obtaining stockholder approval. As permitted by the Maryland General Corporation Law, our
Charter provides that a majority of our entire Board, 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
of our common stock has 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 and declared by us out of assets legally available therefor. Shares of our common stock have no preemptive, conversion or
redemption rights, generally have no appraisal 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 common stock will be unable to elect any director.
Preferred
Stock
Our
Charter authorizes our Board to classify and reclassify any unissued common stock into other classes or series of stock, including preferred
stock. The cost of any such reclassification would be indirectly borne by our existing stockholders. Under the terms of our Charter, our
Board is authorized to issue preferred stock in one or more classes or series without stockholder approval. Prior to issuance of preferred
stock of each class or series, the Board is required by Maryland law 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 could authorize the issuance of preferred stock with terms and conditions which could have the
effect of delaying, deferring or preventing a transaction or a
114
change
in control that might involve a premium price for holders of our common stock or otherwise be in their best interest. You should note,
however, that any issuance of preferred stock must comply with the requirements of the Investment Company Act. The Investment Company
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 our common stock is made, the aggregate involuntary liquidation preference of such
preferred stock, together with the aggregate involuntary liquidation preference or aggregate value of all other senior securities, must
not exceed an amount equal to 50% of our gross assets after deducting the amount of such dividend, distribution or purchase price, as
the case may be, and (2) the holders 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 distributions on such preferred stock are in arrears by two full years or more. Certain
matters under the Investment Company Act require the separate vote of the holders of any issued and outstanding preferred stock. For example,
holders of preferred stock, if any, would vote as a separate class from the holders of common stock on a proposal to cease operations
as a BDC. We believe 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
Maryland
law permits a Maryland corporation to include in its charter a provision eliminating 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 and that is 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 Investment Company Act.
Our
Charter authorizes us, and our Bylaws obligate us, to the maximum extent permitted by Maryland law and subject to the requirements of
the Investment Company Act, to indemnify any present or former director or officer of GECC or any individual who, while a director or
officer of GECC and at our request, serves or has served another corporation, partnership, limited liability company, real estate investment
trust, joint venture, trust, employee benefit plan or other enterprise as a director, officer, partner, member, manager or trustee, who
is made, or threatened to be made, a party to, or witness in, a proceeding by reason of his or her service in 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 status as such and
to pay or reimburse his or her reasonable expenses in advance of final disposition of a proceeding. Our Charter and Bylaws also permit
us to indemnify and advance expenses to any person who served a predecessor of ours 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 Investment Company 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.
Maryland
law requires a corporation (unless its charter requires otherwise, which ours 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 or in which they may be made, or threatened to be made, a party or witness 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. Under Maryland law, a Maryland corporation may not indemnify
a director or officer in a suit by the corporation or in its right in which the director or officer was adjudged liable to the corporation
or in a suit in which the director or officer was adjudged liable on the basis that a personal benefit was improperly received. Nevertheless,
a court may order indemnification if it determines that the director or officer is fairly and reasonably entitled to indemnification,
even though the director or officer did not meet the prescribed standard of conduct or was adjudged liable on the basis that personal
benefit was improperly received. However, indemnification for an adverse judgment in a suit by the
115
corporation
or in its right, or for a judgment of liability on the basis that a personal benefit was improperly received, is limited to 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.
Our
insurance policy does not currently provide coverage for claims, liabilities and expenses that may arise out of activities that our present
or former directors or officers have performed for another entity at our request. There is no assurance that such entities will in fact
carry such insurance. However, in the event that our present or former directors or officers serve another entity as a director, officer,
partner or trustee, we expect to obtain insurance providing coverage for such persons for any claims, liabilities or expenses that may
arise out of their activities while serving in such capacities.
Certain
Provisions of the Maryland General Corporation Law and Our Charter and Bylaws
The
Maryland General Corporation Law 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. 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. We
believe that the benefits of these provisions 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 is divided into three classes of directors serving staggered three-year terms. Upon expiration of their terms, directors of each
class will be elected to serve for a three-year term ending at the third annual meeting of stockholders following his or her election
and until his or her successor is duly elected and qualifies. 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 will help to ensure the continuity and stability of our management
and policies.
Election
of Directors
Our
Charter and Bylaws provide that the affirmative vote of a plurality of the votes cast in the election of directors at a meeting of stockholders
duly called and at which a quorum is present will be required to elect a director. Our Board has the exclusive right to 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 in accordance with our Bylaws. Our Bylaws provide that a majority
of our entire Board 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. We have elected to be subject to the provision of Subtitle 8 of Title 3 of the
Maryland General Corporation Law regarding the filling of vacancies on the Board. Accordingly, except as may be provided by our Board
in setting the terms of any class or series of preferred stock, any and all vacancies on our Board 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 Investment Company Act.
Our
Charter provides that, subject to the rights of holders of preferred stock, 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 generally in the election of directors.
Action
by Stockholders
Under
the Maryland General Corporation Law, unless a corporation’s charter provides otherwise (which our Charter does not), stockholder
action can be taken only at an annual or special meeting of stockholders or by
116
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 our Board and the proposal
of business to be considered by stockholders may be made only (1) pursuant to our notice of the meeting, (2) by or at the direction of
our Board or (3) by a stockholder who was a stockholder of record at the record date set by our Board for the purpose of determining stockholders
entitled to vote at the meeting, at the time of giving notice by the stockholders as provided for in our Bylaws and at the time of the
meeting (and any postponement or adjournment thereof), who is entitled to vote at the meeting in the election of each individual so nominated
or on such other business and who has complied with the advance notice provisions 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 at a special meeting may be made only (1) by or at the direction of our Board or (2) provided that the meeting has been called for
the purpose of electing directors, by a stockholder who was a stockholder of record at the record date set by our Board for the purpose
of determining stockholders entitled to vote at the special meeting, at the time of giving notice as provided for in our Bylaws and at
the time of the meeting (and any postponement or adjournment thereof), who is entitled to vote at the meeting in the election of each
individual so nominated 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 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,
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 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. They may also have the effect 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 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
Maryland law, a Maryland corporation generally cannot dissolve, amend its charter, merge, convert to another form of entity, 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 amendments and extraordinary transactions
by stockholders entitled to cast a majority of the votes entitled to be cast on the matter.
However,
our Charter provides that approval of the following matters requires the affirmative vote of stockholders entitled to cast at least 80%
of the votes entitled to be cast on the matter:
|
• |
amendments to the provisions
of our Charter relating to the classification of our Board, the power of our Board to fix the number of directors and to fill vacancies
on our Board, the vote required to elect or remove a director, the vote required to approve our dissolution, amendments to our Charter
and extraordinary transactions and our Board exclusive power to amend our Bylaws; |
|
• |
Charter amendments that
would convert us from a closed-end company to an open-end company or make our common stock a redeemable security (within the meaning of
the Investment Company Act); |
117
|
• |
our liquidation or dissolution
or any amendment to our Charter to effect any such liquidation or dissolution; |
|
• |
any merger, consolidation,
conversion, share exchange or sale or exchange of all or substantially all of our assets that the Maryland General Corporation Law requires
be approved by our stockholders; or |
|
• |
any transaction between
us, on the one hand, and any person or group of persons acting together that is entitled to exercise or direct the exercise, or acquire
the right to exercise or direct the exercise, directly or indirectly (other than solely by virtue of a revocable proxy), of one-tenth
or more of the voting power in the election of our directors generally, or any person controlling, controlled by or under common control
with, employed by or acting as an agent of, any such person or member of such group, on the other hand. |
However,
if such amendment, proposal or transaction is approved by a majority of our continuing directors (in addition to approval by our Board),
such amendment, proposal or transaction may be approved by a majority of the votes entitled to be cast on such a matter, except that any
transaction that would not otherwise require stockholder approval under the Maryland General Corporation Law will not require further
stockholder approval unless our Charter, our Bylaws or the Maryland General Corporation Law requires such approval. In either event, in
accordance with the requirements of the Investment Company Act, any such amendment, proposal or transaction that would have the effect
of changing the nature of our business so as to cause us to cease to be, or to withdraw our election as, a BDC would be required to be
approved by a majority of our outstanding voting securities, as defined under the Investment Company Act. The “continuing directors”
are defined in our Charter as (1) certain of our current directors named therein or (2) 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 our Board 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 Maryland Control Acquisition Share Act discussed below, as permitted by
the Maryland General Corporation Law, our Charter provides that stockholders will not be entitled to exercise appraisal rights unless
a majority of our entire Board determines that such rights shall apply.
Control
Share Acquisitions
The
Maryland Control Share Acquisition 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 the affirmative vote of stockholders entitled to cast two-thirds of the votes entitled
to be cast on the matter. Shares owned by the acquirer, 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 acquirer or in respect of which the acquirer is able to exercise or direct the exercise of voting power (except solely by
virtue of a revocable proxy), would entitle the acquirer to exercise voting power in electing directors within one of the following ranges
of voting power:
|
• |
one-tenth or more but less
than one-third; |
|
• |
one-third or more but less
than a majority; or |
|
• |
a majority or more of all
voting power. |
The
requisite stockholder approval must be obtained each time an acquirer crosses one of the thresholds of voting power set forth above. Control
shares do not include shares that 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 issued and outstanding control shares, subject to certain exceptions.
A
person who has made or proposes to make a control share acquisition may compel the board of directors of the corporation to call a special
meeting of stockholders to be held within 50 days of demand to consider the voting rights of the shares. The right to compel the calling
of a special meeting is subject to the satisfaction of
118
certain
conditions, including an undertaking to pay the expenses of the meeting. If no request for a meeting is made, the corporation may itself
present the question at any stockholders meeting.
If
voting rights are not approved at the meeting or if the acquiring person does not deliver an acquiring person statement as required by
the statute, then the corporation may redeem for fair value any or all of the control shares, except those for which voting rights have
previously been approved. The right of the corporation to redeem control shares is subject to certain conditions and limitations, including,
as provided in our Bylaws, compliance with the Investment Company Act. Fair value is determined, without regard to the absence of voting
rights for the control shares, as of the date of the last control share acquisition by the acquirer or, if a meeting of stockholders at
which the voting rights of the shares are considered and not approved is held, as of the date of such meeting. If voting rights for control
shares are approved at a stockholders meeting and the acquirer becomes entitled to vote a majority of the shares entitled to vote, all
other stockholders may exercise appraisal rights. The fair value of the shares as determined for purposes of appraisal rights may not
be less than the highest price per share paid by the acquirer in the control share acquisition.
The
Maryland Control Share Acquisition Act does not apply (a) to stock acquired in a merger, consolidation or share exchange if the corporation
is a party to the transaction or (b) to acquisitions approved or exempted by the charter or bylaws of the corporation. Our Bylaws contain
a provision exempting from the Maryland Control Share Acquisition Act any and all acquisitions by any person of our common stock. There
can be no assurance that such provision will not be amended or eliminated at any time in the future.
Business
Combinations
Under
Maryland law, the Maryland Business Combination Act provides that certain “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:
|
• |
any person who beneficially
owns 10% or more of the voting power of the corporation’s outstanding voting stock; or |
|
• |
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 approved in advance the transaction by which the stockholder otherwise
would have become an interested stockholder. However, in approving a transaction, the Board 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.
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:
|
• |
80% of the votes entitled
to be cast by holders of outstanding shares of voting stock of the corporation; and |
|
• |
two-thirds of the votes
entitled to be cast by holders of voting stock of the corporation other than common stock 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
Maryland law, for their stock in the form of cash or other consideration in the same form as previously paid by the interested stockholder
for its stock.
The
Maryland Business Combination Act permits various exemptions from its provisions, including business combinations that are exempted by
the Board before the time that the interested stockholder becomes an interested stockholder. Our Board has adopted a resolution that any
business combination between us and any other person is exempted from the provisions of the Business Combination Act, provided that the
business
119
combination
is first approved by the Board, including a majority of the directors who are not interested persons as defined in the Investment Company
Act. This resolution may be altered or repealed in whole or in part at any time; however, our Board will adopt resolutions so as to make
us subject to the provisions of the Maryland Business Combination Act only if our Board determines that it would be in our best interests
and if the SEC staff does not object to our determination that GECC being subject to the Business Combination Act does not conflict with
the Investment Company Act. If this resolution is repealed, or the Board does not otherwise approve a business combination, the statute
may discourage others from trying to acquire control of GECC and increase the difficulty of consummating any offer.
Forum
Selection Clause
Our
Bylaws provide that, unless we consent in writing to the selection of an alternative forum, the sole and exclusive forum for (a) any derivative
action or proceeding brought on our behalf, (b) any action asserting a claim of breach of any duty owed by any of our directors or officers
or other employees to us or to our stockholders, (c) any action asserting a claim against us or any of our directors or officers or other
employees arising pursuant to any provision of the Maryland General Corporation Law or our Charter or Bylaws or (d) any action asserting
a claim against us or any of our directors or officers or other employees that is governed by the internal affairs doctrine shall be,
in each case, the Circuit Court for Baltimore City, Maryland, or, if that court does not have jurisdiction, the United States District
Court for the District of Maryland, Baltimore Division.
Waiver
of Corporate Opportunity Doctrine
Our
Charter provides that, we, by resolution of our Board, may renounce any interest or expectancy of ours in (or in being offered an opportunity
to participate in) business opportunities that are presented to us or developed by or presented to one of more of our directors or officers.
Conflict
with Investment Company Act
Our
Bylaws provide that, if and to the extent that any provision of the Maryland General Corporation Law, including, without limitation, the
Maryland Control Share Acquisition Act (if we amend our Bylaws to be subject to such Act) and the Maryland Business Combination Act, or
any provision of our Charter or Bylaws conflicts with any provision of the Investment Company Act, the applicable provision of the Investment
Company Act will control.
Privacy
Principles
We
are committed to maintaining the privacy of our stockholders and to safeguarding their nonpublic personal information. The following information
is provided to help you understand what personal information we collect, how we protect that information and why, in certain cases, we
may share information with select other parties.
Generally,
we do not receive any nonpublic personal information relating to our stockholders, although certain nonpublic personal information of
our stockholders may become available to us. We do not disclose any nonpublic personal information about our stockholders or former stockholders
to anyone, except as permitted by law or as is necessary in order to service stockholder accounts (for example, to a transfer agent or
third-party administrator).
We
restrict access to nonpublic personal information about our stockholders to employees of GECM and its affiliates with a legitimate business
need for the information. We intend to maintain physical, electronic and procedural safeguards designed to protect the nonpublic personal
information of our stockholders.
120
UNDERWRITING
Subject
to the terms and conditions set forth in an underwriting agreement dated , 2023 between us and , acting as representative of the several underwriters of this offering, we have agreed to sell to the underwriters, and the several
underwriters have severally agreed to purchase from us, the aggregate principal amount of Notes indicated in the table below:
|
Underwriters |
| |
Principal
Amount of
Notes |
|
|
| |
|
|
|
| |
|
|
|
| |
|
|
|
| |
|
|
Total |
| |
$ |
, , and
are acting
as book-running managers of this offering.
The
underwriting agreement provides that the obligations of the several underwriters are subject to certain conditions precedent such as the
receipt by the underwriters of officers’ certificates and legal opinions and approval of certain legal matters by their counsel.
The underwriting agreement provides that the underwriters will purchase all of the Notes if any of these Notes are purchased. If an underwriter
defaults, the underwriting agreement provides that, under the circumstances, the purchase commitments of the non-defaulting underwriters
may be increased or the underwriting agreement may be terminated. We have agreed to indemnify the underwriters and certain of their controlling
persons against certain liabilities, including liabilities under the Securities Act, or to contribute to payments the underwriters may
be required to make in respect of those liabilities.
The
underwriters have advised us that they currently intend to make a market in the Notes. However, the underwriters are not obligated to
do so and may discontinue any market-making activities at any time without notice. No assurance can be given as to the liquidity of the
trading market for the Notes.
The
underwriters are offering the Notes, subject to their acceptance of the Notes from us and subject to prior sale. The underwriters reserve
the right to withdraw, cancel or modify offers to the public and to reject orders in whole or in part.
Commissions
and Expenses
The
underwriters have advised us that they propose to offer the Notes to the public at the public offering price set forth on the cover page
of this prospectus and to certain dealers at a price less a concession not in excess of $ per Note. The underwriters
may allow, and the dealers may reallow, a discount from the concession not in excess of $ per Note to certain broker
dealers. After the public offering price, concessions and reallowance to dealers may be reduced by the representative. No such reduction
will change the amount of proceeds to be received by us as set forth on the cover page of this prospectus.
The
following table shows the public offering price, the underwriting discounts and commissions that we are to pay to the underwriters and
the proceeds, before expenses, to us in connection with this offering (expressed as a percentage of the principal amount of the Notes).
The information assumes either no exercise or full exercise of the underwriters’ over-allotment option.
|
|
| |
Per
Note |
| |
Without
Over-
allotment
Option |
| |
With
Over-
allotment
Option |
|
Public
offering price |
| |
$ |
| |
$ |
| |
$ |
|
Underwriting
discounts and commissions ( % of public offering price) |
| |
$ |
| |
$ |
| |
$ |
|
Proceeds
(before expenses) |
| |
$ |
| |
$ |
| |
$ |
We
estimate expenses payable by us in connection with this offering, other than the underwriting discounts and commissions referred to above,
will be approximately $ million.
121
Determination
of Offering Price
Prior
to the offering, there has not been a public market for the Notes. Consequently, the public offering price for the Notes will be determined
by negotiations between us and the underwriters. Among the factors to be considered in these negotiations will be prevailing market conditions,
our financial information, market valuations of other companies that we and the underwriters believe to be comparable to us, estimates
of our business potential, the present state of our development and other factors deemed relevant.
We
and the underwriters offer no assurances that the public offering price will correspond to the price at which the Notes will trade in
the public market subsequent to the offering or that an active trading market for the Notes will develop and continue after the offering.
Listing
We
intend to list the Notes on Nasdaq. We expect trading in the Notes on Nasdaq to begin within 30 days after the original issue date under
the trading symbol “GECCZ.”
Over-allotment
Option
We
have granted to the underwriters an option, exercisable for 30 days from the date of this prospectus, to purchase up to an additional
$ aggregate principal amount of the Notes at the public offering price set forth on the cover of this prospectus
less underwriting discounts and commissions solely to cover over-allotments, if any. If the underwriters exercise this option, each will
be obligated, subject to the specified conditions, to purchase an additional aggregate principal amount of Notes proportionate
to that underwriter’s initial principal amount reflected in the table above.
No
Sales of Similar Securities
Subject
to certain exceptions, we have agreed not to directly or indirectly, offer, pledge, sell, contract to sell, grant any option for the sale
of, or otherwise transfer or dispose of any debt securities issued by the Company or any securities convertible into or exercisable or
exchangeable for debt securities issued by the Company for a period of 90 days after the date of this prospectus without first obtaining
the written consent of . This consent may be given at any time without public notice.
Stabilization
Certain
of the underwriters have advised us that, pursuant to Regulation M under the Exchange Act, certain persons participating in the offering
may engage in transactions including over-allotment, covering transactions and stabilizing transactions, which may have the effect of
stabilizing or maintaining the market price of the Notes at a level above that which might otherwise prevail in the open market. Over-allotment
involves syndicate sales of securities in excess of the aggregate principal amount of securities to be purchased by the underwriters in
the offering, which creates a short position for the underwriters. Covering transactions involve purchases of the securities in the open
market after the distribution has been completed in order to cover short positions.
A
stabilizing bid is a bid for the purchase of Notes on behalf of the underwriters for the purpose of fixing or maintaining the price of
the Notes. A syndicate covering transaction is the bid for or the purchase of Notes on behalf of the underwriters to reduce a short position
incurred by the underwriters in connection with the offering. Similar to other purchase transactions, the underwriters’ purchases
to cover the syndicate short sales may have the effect of raising or maintaining the market price of our Notes or preventing or retarding
a decline in the market price of our Notes. As a result, the price of our Notes may be higher than the price that might otherwise exist
in the open market. A penalty bid is an arrangement permitting the underwriters to reclaim the selling concession otherwise accruing to
a syndicate member in connection with the offering if the Notes originally sold by such syndicate member are purchased in a syndicate
covering transaction and therefore have not been effectively placed by such syndicate member.
Neither
we, nor any of the underwriters makes any representation or prediction as to the direction or magnitude of any effect that the transactions
described above may have on the price of the Notes. The underwriters are not obligated to engage in these activities and, if commenced,
any of the activities may be discontinued at any time.
Electronic
Distribution
A
prospectus in electronic format may be made available by e-mail or on the web sites or through online services maintained by one or more
of the underwriters and/or selling group members participating in this
122
offering,
or by their affiliates. In those cases, prospective investors may view offering terms online and, depending upon the particular underwriter
or selling group member, prospective investors may be allowed to place orders online. The underwriters may agree with us to allocate a
limited principal amount of the Notes for sale to online brokerage account holders. Any such allocation for online distributions will
be made by the underwriters on the same basis as other allocations. Other than the prospectus in electronic format, information on the
underwriters’ web sites and any information contained in any other web site maintained by any of the underwriters or selling group
members is not part of this prospectus or the registration statement of which this prospectus forms a part, has not been approved and/or
endorsed by us or the underwriters and should not be relied on by investors.
Other
Relationships
Certain
of the underwriters and their affiliates have provided in the past and may provide from time to time in the future in the ordinary course
of their business certain commercial banking, financial advisory, investment banking and other services to us, our portfolio companies
or our affiliates for which they have received or will be entitled to receive separate fees. In particular, the underwriters or their
affiliates may execute transactions with us, on behalf of us, any of our portfolio companies or our affiliates. In addition, the underwriters
or their affiliates may act as arrangers, underwriters or placement agents for companies whose securities are sold to or whose loans are
syndicated to us, our portfolio companies or our affiliates. The underwriters or their affiliates may also trade in our securities, securities
of our portfolio companies or other financial instruments related thereto for their own accounts or for the account of others and may
extend loans or financing directly or through derivative transactions to us, any of our portfolio companies or our affiliates.
After
the date of this prospectus, the underwriters and their affiliates may from time to time obtain information regarding specific portfolio
companies or us that may not be available to the general public. Any such information is obtained by the underwriters and their affiliates
in the ordinary course of their business and not in connection with the offering of the Notes. In addition, after the offering period
for the sale of the Notes, the underwriters or their affiliates may develop analyses or opinions related to us or our portfolio companies
and buy or sell interests in one or more of our portfolio companies on behalf of their proprietary or client accounts and may engage in
competitive activities. There is no obligation on behalf of these parties to disclose their respective analyses, opinions or purchase
and sale activities regarding any portfolio company or regarding us to our noteholders or any other persons.
In
the ordinary course of their various business activities, the underwriters and their respective affiliates may make or hold a broad array
of investments and actively trade debt and equity securities (or related derivative securities) and financial instruments (including bank
loans) for their own account and for the accounts of their customers. Such investments and securities activities may involve securities
and/or instruments of ours or our affiliates. Certain of the underwriters and their affiliates that may have a lending relationship with
us may routinely hedge their credit exposure to us consistent with their customary risk management policies. Typically, such underwriters
and their affiliates would hedge such exposure by entering into transactions that consist of either the purchase of credit default swaps
or the creation of short positions in our securities, including potentially the Notes offered hereby. Any such short positions could adversely
affect future trading prices of the Notes offered hereby. The underwriters and their affiliates may also make investment recommendations
and/or publish or express independent research views in respect of such securities or financial instruments and may hold, or recommend
to clients that they acquire, long and/or short positions in such securities and instruments.
The
principal business addresses of the underwriters are: ;
;
;
.
Alternative
Settlement Cycle
We
expect that delivery of the Notes will be made against payment therefor on or about , 2023, which will be the
business day following the trade date for the issuance of the Notes (such settlement being herein referred to as “
”). Under Rule 15c6-1 promulgated under the Exchange Act, trades in the secondary market
generally are required to settle in two business days, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers
who wish to trade the Notes on the date hereof or the next succeeding
123
business
days will be required, by virtue of the fact that the Notes initially will settle in business days, to specify an alternative
settlement arrangement at the time of any such trade to prevent a failed settlement.
Other
Jurisdictions
The
Notes offered by this prospectus may not be offered or sold, directly or indirectly, nor may this prospectus or any other offering material
or advertisements in connection with the offer and sale of any such Notes be distributed or published in any jurisdiction, except under
circumstances that will result in compliance with the applicable rules and regulations of that jurisdiction. Persons into whose possession
this prospectus comes are advised to inform themselves about and to observe any restriction relating to the offering and the distribution
of this prospectus. This prospectus does not constitute an offer to sell or a solicitation of an offer to buy the Notes offered by this
prospectus in any jurisdiction in which such an offer or a solicitation is unlawful.
124
CUSTODIAN,
TRANSFER AND DISTRIBUTION PAYING AGENT AND REGISTRAR
Our
securities and cash are held in safekeeping by U.S. Bank National Association located at One Federal Street, Third Floor, Boston, Massachusetts
02110. American Stock Transfer & Trust Company, LLC 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.
125
LEGAL
MATTERS
Certain
legal matters with respect to the Notes offered hereby will be passed upon for us by Jones Day, New York, New York, and Venable LLP,
Baltimore, Maryland. Certain legal matters in connection with this offering will be passed upon for the underwriters by Kirkland &
Ellis LLP, Washington, D.C., who may rely as to certain matters of Maryland law upon the opinion of Venable LLP.
126
INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM
Our
consolidated statement of assets and liabilities, including the consolidated schedule of investments, as of December 31, 2022 and
December 31, 2021, and our related statements of operations, changes in net assets, cash flows for
the years ended December 31, 2022, December 31, 2021 and December 31, 2020 and financial highlights for each of the five years
in the period then ended, have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated
in their report, which is incorporated herein by reference from our Annual Report on Form 10-K for the fiscal year ended December 31,
2022, filed on March 2, 2023. Such financial statements are incorporated by reference
in reliance upon the report of such firm given upon their authority as experts in accounting and auditing. The principal business address
of Deloitte & Touche LLP is 200 Berkeley Street, Boston, MA 02116.
127
WHERE
YOU CAN FIND MORE 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, with respect to the Notes offered by this prospectus. The registration statement contains additional information about us and shares
of our common stock being offered by this prospectus.
We
file annual, quarterly and current reports, proxy statements and other information about us with the SEC. You may also obtain free copies
of our annual and quarterly reports and make stockholder inquiries by contacting us at Great Elm Capital Corp., 800 South Street, Suite
230, Waltham, Massachusetts 02453 or by calling us collect at (617) 375-3006. We maintain a website at http://www.greatelmcc.com and we
make all of our annual, quarterly and current reports, proxy statements and other publicly filed information, and all information incorporated
by reference herein, available, free of charge, on or through such website. Information on our website is not incorporated or a part of
this prospectus. The SEC also maintains a website at http://www.sec.gov where such information is available without charge.
128
INCORPORATION
BY REFERENCE
We
incorporate by reference the financial statements identified in the documents listed below:
|
• |
The GECC financial statements contained
in our Annual Report on Form 10-K for the fiscal year ended December 31, 2022 (File
No. 814-01211), which includes the Financial Highlights for years ended December 31, 2022, 2021,
2020, 2019, 2018, 2017, and 2016, filed on March 2,
2023; and |
|
• |
The GECC financial statements contained
in our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2023 (File
No. 814-01211), which includes the Financial Highlights for the three months ended March 31,
2023 and 2022, filed on May 4, 2023. |
We
will also provide to each person, including any beneficial owner, to whom this prospectus is delivered, a copy of any and all of the documents
that have been incorporated by reference, upon written or oral request at no charge.
You
should direct requests for documents by writing to Great Elm Capital Corp., 800 South Street, Suite 230, Waltham, Massachusetts 02453
or by calling us at (617) 375-3006. This prospectus and any documents incorporated by reference herein are also available on our website
at http://www.greatelmcc.com. Information on our website is not incorporated or a part of this prospectus.
129
$
GREAT
ELM CAPITAL CORP.
%
Notes due 2028
PRELIMINARY
PROSPECTUS
|
|
| |
|
| |
|
| |
|
,
2023
PART
C — OTHER INFORMATION
|
Item 25. |
Financial
Statements and Exhibits Financial Statements |
The
consolidated financial statements of Great Elm Capital Corp. (the “Registrant”) included in the Registrant’s Annual
Report on Form 10-K for the fiscal year ended December 31, 2022, which includes the Financial Highlights for years ended December 31,
2021, 2020, 2019, 2018, 2017, and 2016, and the Registrant’s Quarterly Report on Form 10- Q for the quarterly period ended March 31,
2023, which includes the Financial Highlights for the three months ended March 31, 2023 and 2022, are incorporated by reference in
Part A of this registration statement.
Exhibits
Unless
otherwise indicated, all references are to exhibits to the applicable filing by the Registrant under File No. 814-01211 with
the SEC.
|
Exhibit
Number |
| |
Description |
| | |
Amended
and Restated Articles of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 to the Form 8-K filed on November 7,
2016) | |
| | |
Amendment
to Amended and Restated Articles of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 to the Form 8-K filed on
March 2, 2022) | |
| | |
Bylaws
of the Registrant (incorporated by reference to Exhibit 2 to the Registration Statement on Form N-14 (File No. 333-212817) filed on August 1,
2016) | |
| | |
Form
of global certificate for the Notes (included in Exhibit (d)(3)) | |
| | |
Indenture,
dated as of September 18, 2017, by and between the Registrant and American Stock Transfer & Trust Company, LLC, as trustee (the
“Trustee”) (incorporated by reference to Exhibit 4.1 to the Form 8-K/A filed on September 21, 2017) | |
| | |
Form
of Fifth Supplemental Indenture, by and between the Registrant and the Trustee | |
| | |
Form
T-1 of the Trustee | |
| | |
Form
of certificate of the Registrant’s common stock (incorporated by reference to Exhibit 5 to the Registration Statement on Form N-14
(File No. 333-212817) filed on August 1, 2016) | |
| | |
Global
Note (6.75% Notes due 2025), dated January 19, 2018 (incorporated by reference to Exhibit (d)(1) to the post-effective amendment
to the Registration Statement on Form N-2 (File No. 333-221882) filed on January 19, 2018) | |
| | |
Second
Supplemental Indenture, dated as of January 19, 2018, by and between the Registrant and the Trustee (incorporated by reference to
Exhibit (d)(3) to the post-effective amendment to the Registration Statement on Form N-2 (File No. 333-221882) filed on January 19,
2018) | |
| | |
Global
Note (6.50% Notes due 2024), dated June 18, 2019 (incorporated by reference to Exhibit (d)(1) to the post-effective amendment
to the Registration Statement on Form N-2 (File No. 333-227605) filed on June 18, 2019) | |
| | |
Third
Supplemental Indenture, dated as of June 18, 2019, by and between the Registrant and the Trustee (incorporated by reference to Exhibit
(d)(3) to the post-effective amendment to the Registration Statement on Form N-2 (File No. 333-22706) filed on June 18, 2019) | |
| | |
Global
Note (5.875% Notes due 2026), dated as of June 23, 2021 (incorporated by reference to Exhibit 4.1 to the Form 8-K filed on June 23,
2021) | |
| | |
Fourth
Supplemental Indenture, dated as of June 23, 2021 by and between the Registrant and the Trustee (incorporated by reference to Exhibit
4.1 to the Form 8-K filed on June 23, 2021) | |
| | |
Description
of Registered Securities (incorporated by reference to Exhibit 4.9 to the Annual Report on Form 10-K filed on March 4, 2022) | |
| | |
Form
of Dividend Reinvestment Plan (incorporated by reference to Exhibit 13(d) to the pre-effective amendment to the Registration Statement
on Form N-14 (File No. 333-212817) filed on September 26, 2016) | |
| | |
Amended
and Restated Investment Management Agreement | |
|
(h)** |
| |
Form
of Underwriting Agreement |
| | |
Custody
Agreement, dated as of January 2, 2020, by and between the Registrant and U.S. Bank National Association (incorporated by reference
to Exhibit 10.1 to the Form 10-Q filed on May 11, 2020) |
C-1
|
Exhibit
Number |
| |
Description |
| | |
Administration
Agreement, dated as of September 27, 2016, by and between the Registrant and GECM (incorporated by reference to Exhibit 10.2 to the
Form 8-K filed on November 7, 2016) | |
| | |
Form
of Indemnification Agreement (incorporated by reference to Exhibit 10.4 to the Form 8-K filed on November 7, 2016) | |
| | |
Loan,
Guarantee and Security Agreement, dated May 5, 2021, between the Registrant and City National Bank (incorporated by reference to
Exhibit 10.1 to the Form 8-K filed on May 6, 2021) | |
| | |
Opinion
of Jones Day | |
| | |
Opinion
of Venable LLP | |
| | |
Consent
of Deloitte & Touche LLP, Registered Independent Accounting Firm | |
| | |
Consent
of Jones Day (included in Exhibit (l)(1)) | |
| | |
Consent
of Venable LLP (included in Exhibit (l)(2)) | |
| | |
Power
of Attorney (included on the signature page hereto) | |
| | |
Code
of Ethics of Registrant (incorporated by reference to Exhibit 14.1 to the Form 10-K filed on March 30, 2017) | |
| | |
Code
of Ethics of GECM (incorporated by reference to Exhibit 14.2 to the Form 10-K filed on March 30, 2017) | |
| | |
Calculation
of Filing Fee Table | |
|
101.INS |
| |
Inline
XBRL Instance Document |
|
101.SCH |
| |
Inline
XBRL Taxonomy Extension Schema Document |
|
101.CAL |
| |
Inline
XBRL Taxonomy Extension Calculation Linkbase Document |
|
101.DEF |
| |
Inline
XBRL Taxonomy Extension Definition Linkbase Document |
|
101.LAB |
| |
Inline
XBRL Taxonomy Extension Label Linkbase Document |
|
101.PRE |
| |
Inline
XBRL Taxonomy Extension Presentation Linkbase Document |
|
104 |
| |
Cover
Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101) |
|
* |
Filed herewith |
|
** |
To
be filed by amendment |
The
agreements included or incorporated by reference as exhibits to this registration statement contain representations and warranties by
each of the parties to the applicable agreement. These representations and warranties were made solely for the benefit of the other parties
to the applicable agreement and (i) were not intended to be treated as categorical statements of fact, but rather as a way of allocating
the risk to one of the parties if those statements prove to be inaccurate; (ii) may have been qualified in such agreement by disclosures
that were made to the other party in connection with the negotiation of the applicable agreement; (iii) may apply contract standards
of “materiality” that are different from “materiality” under the applicable securities laws; and (iv) were
made only as of the date of the applicable agreement or such other date or dates as may be specified in the agreement.
|
Item 26. |
Marketing
Arrangements |
The
information contained under the heading “Underwriting” in the prospectus is incorporated herein by reference.
|
Item 27. |
Other
Expenses of Issuance and Distribution** |
|
SEC
registration fee |
| |
$6,337 |
|
Nasdaq
Global Select Additional Listing Fees |
| |
39,500 |
|
Accounting
fees and expenses |
| |
47,500 |
|
Legal
fees and expenses |
| |
325,000 |
|
Printing
and engraving |
| |
22,000 |
|
Miscellaneous
fees and expenses |
| |
67,000 |
|
Total |
| |
$507,337 |
|
** |
These amounts (other than
the SEC registration fee and Nasdaq fee) are estimates. |
C-2
|
Item 28. |
Persons
Controlled by or Under Common Control |
|
Entity |
| |
Ownership |
| |
Jurisdiction
of Organization |
|
Great
Elm Healthcare Finance, LLC |
| |
87.5% |
| |
Delaware |
|
Prestige
Capital Finance, LLC |
| |
80% |
| |
Delaware |
|
Sterling
Commercial Credit, LLC |
| |
80% |
| |
Delaware |
|
Lenders
Funding, LLC |
| |
56.13% |
| |
New
York |
|
Item 29. |
Number
of Holders of Securities |
The
following table sets forth the number of record holders of our securities at April 28, 2023.
|
Title
of Class |
| |
Number
of Record Holders |
|
Common
Stock, par value $0.01 per share |
| |
9 |
|
6.75%
Notes due 2025 |
| |
1 |
|
6.50%
Notes due 2024 |
| |
1 |
|
5.875%
Notes due 2026 |
| |
1 |
|
Item 30. |
Indemnification |
Reference
is made to Section 2-418 of the Maryland General Corporation Law, Article VII of the Registrant’s Charter and Article XI of the
Registrant’s Bylaws.
Maryland
law permits a Maryland corporation to include in its charter a provision eliminating 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 and that is material to the cause
of action. The Registrant’s 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 Investment Company Act.
The
Registrant’s Charter authorizes the Registrant, and the Registrant’s Bylaws obligate the Registrant, to the maximum extent
permitted by Maryland law and subject to the requirements of the Investment Company Act, to indemnify any present or former director or
officer or any individual who, while serving as the Registrant’s director or officer and at the Registrant’s request, serves
or has served another corporation, partnership, limited liability company, real estate investment trust, joint venture, trust, employee
benefit plan or other enterprise as a director, officer, partner, member, manager or trustee and who is made, or threatened to be made,
a party to, or witness in 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 the Registrant to indemnify
and advance expenses to any person who served a predecessor of the Registrant in any of the capacities described above and any of the
Registrant’s employees or agents or any employees or agents of the Registrant’s predecessor. In accordance with the Investment
Company Act, the Registrant 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.
Maryland
law requires a corporation (unless its charter provides otherwise, which the Registrant’s 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. 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 or in which they may be made, or threatened to be made, a party or witness 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. Under Maryland law, a Maryland corporation may not indemnify
a director or officer in a suit by the corporation or in its right in which the director or officer was adjudged liable to the corporation
or in a suit in which the director or
C-3
officer
was adjudged liable on the basis that a personal benefit was improperly received. A court may order indemnification if it determines that
the director or officer is fairly and reasonably entitled to indemnification, even though the director or officer did not meet the prescribed
standard of conduct or was adjudged liable on the basis that personal benefit was improperly received. However, indemnification for an
adverse judgment in a suit by the corporation or in its right, or for a judgment of liability on the basis that a personal benefit was
improperly received, is limited to expenses. In addition, Maryland law 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.
The
Registrant has agreed to indemnify the underwriters and certain of their controlling persons in connection with this offering against
certain liabilities, including liabilities under the Securities Act, or to contribute to payments the underwriters may be required to
make in respect of those liabilities.
The
law also provides for comparable indemnification for corporate officers and agents. Insofar as indemnification for liability arising under
the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions,
or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication of such issue.
The
Registrant has entered into indemnification agreements with its directors. The indemnification agreements are intended to provide the
Registrant’s directors the maximum indemnification permitted under Maryland law and the Investment Company Act. Each indemnification
agreement provides that the Registrant shall indemnify the director who is a party to the agreement (an “Indemnitee”), including
the advancement of legal expenses, if, by reason of his or her corporate status, the Indemnitee is, or is threatened to be, made a party
to or a witness in any threatened, pending, or completed proceeding, other than a proceeding by or in the right of the Registrant.
Investment
Adviser, Administrator and Underwriters
The
Investment Management 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, GECM and its officers, managers, agents, employees, controlling
persons, members and any other person or entity affiliated with it are entitled to indemnification from the Registrant for any damages,
liabilities, costs and expenses (including reasonable attorneys’ fees and amounts reasonably paid in settlement) arising from the
rendering of GECM’s services under the Investment Management Agreement or otherwise as an investment adviser of the Registrant.
The
Administration 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, GECM and its officers, managers, agents, employees, controlling persons,
members and any other person or entity affiliated with it are entitled to indemnification from the Registrant for any damages, liabilities,
costs and expenses (including reasonable attorneys’ fees and amounts reasonably paid in settlement) arising from the rendering of
GECM’s services under the Administration Agreement or otherwise as administrator for the Registrant.
The
Underwriting Agreement provides that each underwriter severally agrees to indemnify and hold harmless the Registrant, its directors and
officers, and any person who controls the Registrant, within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any loss, liability, claim, damage or expense that the Registrant or any such person may incur, insofar
as the loss, liability, claim, damage or expense arises out of or is based upon any untrue statement or alleged untrue statement of a
material fact contained in and in conformity with information concerning such underwriter furnished in writing by or on behalf of such
expressly for use in the registration statement (or in the registration statement as amended by any post-effective amendment hereof by
the Registrant) or in the prospectus contained in the registration statement,
C-4
or
arises out of or is based upon any omission or alleged omission to state a material fact in connection with such information required
to be stated in the registration statement or such prospectus or necessary to make such information not misleading.
|
Item 31. |
Business
and Other Connections of Investment Adviser |
For
information as to the business, profession, vocation or employment of a substantial nature of each of the officers and directors of GECM,
reference is made to GECM’s Form ADV, filed with the SEC under the Investment Advisers Act of 1940, as amended, and incorporated
herein by reference upon filing.
|
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 and the rules thereunder
are maintained at the offices of:
|
1. |
the Registrant, 800 South
Street, Suite 230, Waltham, Massachusetts 02453; |
|
2. |
the Transfer Agent, American
Stock Transfer & Trust Company, LLC, 6201 15th Avenue, Brooklyn, New York 11219; |
|
3. |
the Custodian, U.S. Bank
National Association, One Federal Street, Third Floor, Boston, Massachusetts 02110; and |
|
4. |
GECM, 800 South Street,
Suite 230, Waltham, Massachusetts 02453. |
|
Item 33. |
Management
Services |
Not
applicable.
|
Item 34. |
Undertakings |
The
Registrant undertakes:
|
1. |
Not applicable. |
|
2. |
Not applicable. |
|
3. |
Not applicable. |
|
4. |
(a) for the purpose of determining
any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement
in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant under Rule 424(b)(1) under the Securities Act
shall be deemed to be part of this registration statement as of the time it was declared effective; and (b) for the purpose of determining
any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of the securities at that time shall be deemed to be the initial
bona fide offering thereof. |
|
5. |
Not applicable. |
|
6. |
Insofar as indemnification
for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. |
|
7. |
The Registrant hereby undertakes
to send by first class mail or other means designed to ensure equally prompt delivery, within two business days of receipt of a written
or oral request, any prospectus or Statement of Additional Information. |
C-5
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Waltham, and the Commonwealth of Massachusetts, on the 16th
day of June, 2023.
|
|
| |
GREAT
ELM CAPITAL CORP. | |||
|
|
| |
By: |
| |
/s/
Matt Kaplan |
|
|
| |
Name: |
| |
Matt
Kaplan |
|
|
| |
Title: |
| |
President
and Chief Executive Officer |
Each
person whose signature appears below constitutes and appoints Matt Kaplan and Keri Davis (with full power to each of them to act alone)
his or her true and lawful attorney-in-fact and agent, with full power of substitution and re-substitution, for him or her and in his
or her name, place and stead, in any and all capacities, to sign on his or her behalf individually and in each capacity stated below any
and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto
and other documents in connection therewith, with the SEC, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents and either of them, or their substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities
indicated as of June 16, 2023.
|
Name |
| |
Capacity |
|
/s/
Matt Kaplan |
| |
President
and Chief Executive Officer (Principal Executive Officer) |
|
Matt
Kaplan |
| ||
|
|
| |
|
|
/s/
Keri Davis |
| |
Chief
Financial Officer and Treasurer (Principal Financial Officer and Principal Accounting Officer) |
|
Keri
Davis |
| ||
|
|
| |
|
|
/s/
Mark Kuperschmid |
| |
Director |
|
Mark
Kuperschmid |
| ||
|
|
| |
|
|
/s/
Matthew Drapkin |
| |
Director |
|
Matthew
Drapkin |
| ||
|
|
| |
|
|
/s/
Richard Cohen |
| |
Director |
|
Richard
Cohen |
| ||
|
|
| |
|
|
/s/
Chad Perry |
| |
Director |
|
Chad
Perry |
| ||
|
|
| |
|
|
/s/
Erik A. Falk |
| |
Director |
|
Erik
A. Falk |
|
C-6
