As filed with the Securities and Exchange Commission on July 5, 2016
Securities Act File No. 333-203511
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM N-2
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
(Check appropriate box or boxes)
Pre-Effective Amendment No.
Post-Effective Amendment No. 7
HERCULES CAPITAL, INC.
(Exact name of Registrant as specified in charter)
400 Hamilton Avenue, Suite 310
Palo Alto, CA 94301
(Address of Principal Executive Offices)
Registrants Telephone Number, including Area Code: (650) 289-3060
Manuel A. Henriquez
Chief Executive Officer
Hercules Capital, Inc.
400 Hamilton Avenue, Suite 310
Palo Alto, CA 94301
(Name and address of agent for service)
COPIES TO:
William Bielefeld
Ian Hartman
Jay Alicandri
Dechert LLP
1095 Avenue of the Americas
New York, NY 10036
APPROXIMATE DATE OF PROPOSED PUBLIC OFFERING:
As soon as practicable after the effective date of this Registration Statement.
If any securities being registered on this form will be offered on a delayed or continuous basis in reliance on Rule 415 under the Securities Act of 1933, other than securities offered in connection with a dividend reinvestment plan, check the following box. x
EXPLANATORY NOTE
This Post-Effective Amendment No. 7 to the Registration Statement on Form N-2 (File No. 333-203511) of Hercules Capital, Inc. (the Registration Statement) is being filed pursuant to Rule 462(d) under the Securities Act of 1933, as amended (the Securities Act), solely for the purpose of filing exhibits to the Registration Statement. Accordingly, this Post-Effective Amendment No. 7 consists only of a facing page, this explanatory note and Part C of the Registration Statement on Form N-2 setting forth the exhibits to the Registration Statement. This Post-Effective Amendment No. 7 does not modify any other part of the Registration Statement. Pursuant to Rule 462(d) under the Securities Act, this Post-Effective Amendment No. 7 shall become effective immediately upon filing with the Securities and Exchange Commission. The contents of the Registration Statement are hereby incorporated by reference.
PART COTHER INFORMATION
Item 25. Financial Statements and Exhibits
1. Financial Statements
The following financial statements of Hercules Capital, Inc. (the Company or the Registrant) are included in this registration statement in Part AInformation Required in a Prospectus:
AUDITED FINANCIAL STATEMENTS |
||||
Reports of Independent Registered Public Accounting Firm |
F-2 | |||
Consolidated Statements of Assets and Liabilities as of December 31, 2014 and 2013 |
F-3 | |||
Consolidated Statements of Operations for the three years ended December 31, 2014 |
F-5 | |||
Consolidated Statements of Changes in Net Assets for the three years ended December 31, 2014 |
F-6 | |||
Consolidated Statements of Cash Flows for the three years ended December 31, 2014 |
F-7 | |||
Consolidated Schedule of Investments as of December 31, 2014 |
F-8 | |||
Consolidated Schedule of Investments as of December 31, 2013 |
F-25 | |||
Notes to Consolidated Financial Statements |
F-40 | |||
Schedule 12-14 Investments In and Advances to Affiliates |
F-78 | |||
UNAUDITED CONSOLIDATED INTERIM FINANCIAL STATEMENTS |
||||
Consolidated Statements of Assets and Liabilities as of June 30, 2015 (unaudited) and December 31, 2014 |
F-79 | |||
Consolidated Statements of Operations for the three and six month periods ended June 30, 2015 and 2014 (unaudited) |
F-81 | |||
Consolidated Statements of Changes in Net Assets for the six month periods ended June 30, 2015 and 2014 (unaudited) |
F-82 | |||
Consolidated Statements of Cash Flows for the six month periods ended June 30, 2015 and 2014 (unaudited) |
F-83 | |||
Consolidated Schedule of Investments as of June 30, 2015 (unaudited) |
F-84 | |||
Consolidated Schedule of Investments as of December 31, 2014 |
F-104 | |||
Notes to Consolidated Financial Statements (unaudited) |
F-121 | |||
Schedule 12-14 Investments In and Advances to Affiliates |
F-156 |
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2. Exhibits
Exhibit
|
Description |
|
a.1 | Articles of Amendment and Restatement. (2) | |
a.2 | Articles of Amendment, dated March 6, 2007. (10) | |
a.3 | Articles of Amendment, dated April 5, 2011. (16) | |
a.4 | Articles of Amendment, dated April 3, 2015. (29) | |
a.5 | Articles of Amendment, dated February 25, 2016. (35) | |
b.1 | Amended and Restated Bylaws of Hercules Capital, Inc. (35) | |
d.1 | Specimen certificate of the Companys common stock, par value $.001 per share. (3) | |
d.2 | Form of Indenture and related exhibits. (17) | |
d.3 | Form of Warrant Agreement. (17) | |
d.4 | Form of Subscription Agent Agreement. (17) | |
d.5 | Form of Subscription Certificate. (17) | |
d.6 | Statement of Eligibility of Trustee on Form T-1. (30) | |
d.7 | Indenture, dated March 6, 2012 between the Registrant and U.S. Bank National Association. (18) | |
d.8 | First Supplemental Indenture, dated April 17, 2012 between the Registrant and U.S. Bank, National Association. (18) | |
d.9 | Second Supplemental Indenture, dated as of September 24, 2012, between the Registrant and U.S. Bank, National Association. (20) | |
d.10 | Third Supplemental Indenture, dated as of July 14, 2014, between the Registrant and U.S. Bank, National Association. (27) | |
d.11 | Form of 7.00% Senior Note due 2019, dated as of April 17, 2012 (Existing April 2019 Note) (included as part of Exhibit (d)(8)). (18) | |
d.12 | Form of 7.00% Senior Note due 2019, dated as of July 6, 2012 (Additional April 2019 Note). (19) | |
d.13 | Form of 7.00% Senior Note due 2019, dated as of July 12, 2012 (Over-Allotment April 2019 Note). (22) | |
d.14 | Form of 7.00% Senior Note due 2019, dated as of September 24, 2012 (September 2019 Note) (included as part of Exhibit (d)(9)). (20) | |
d.15 | Form of 7.00% Senior Note due 2019, dated as of October 2, 2012 (Over-Allotment September 2019 Note). (21) | |
d.16 | Form of 7.00% Senior Note due 2019, dated as of October 17, 2012 (Over-Allotment II September 2019 Note). (23) | |
d.17 | Form of 6.25% Note due 2024, dated July 14, 2014 (July 2024 Note) (included as part of Exhibit (d)(10)). (26) | |
d.18 | Form of 6.25% Note due 2024, dated August 11, 2014 (Over-Allotment July 2024 Note). (27) | |
d.19 | Form of 6.25% Note due 2024, dated May 2, 2016 (Additional July 2024 Note). (41) | |
d.20 | Form of 6.25% Note due 2024, June 27, 2016 (Additional July 2024 Note). (43) | |
d.21* | Form of 6.25% Note due 2024, July 5, 2016 (Additional July 2024 Note). |
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e | Form of Dividend Reinvestment Plan. (4) | |
f.1 | Loan Sale Agreement between Hercules Funding LLC and Hercules Technology Growth Capital, Inc. dated as of August 1, 2005. (5) | |
f.2 | Indenture between Hercules Funding Trust I and U.S. Bank National Association dated as of August 1, 2005. (5) | |
f.3 | Note Purchase Agreement among Hercules Funding Trust I, Hercules Funding I LLC, Hercules Technology Growth Capital, Inc. and Citigroup Global Markets Realty Corp. dated as of August 1, 2005. (5) | |
f.4 | First Omnibus Amendment by and among Hercules Funding Trust I, Hercules Funding I, LLC, Hercules Technology Growth Capital, Inc., U.S. Bank National Association, Lyon Financial Services, Inc. and Citigroup Global Markets Realty Corp. dated March 6, 2006. (6) | |
f.5 | Intercreditor Agreement among Hercules Technology Growth Capital, Inc., Alcmene Funding, L.L.C. and Citigroup Global Markets Realty Corp. dated as of March 6, 2006. (6) | |
f.6 | Warrant Participation Agreement between the Company and Citigroup Global Markets Realty Corp. dated as of August 1, 2005. (7) | |
f.7 | Second Amendment to Warrant Participation Agreement dated as of October 16, 2006. (7) | |
f.8 | Second Omnibus Amendment by and among Hercules Funding Trust I, Hercules Funding I, LLC, Hercules Technology Growth Capital, Inc., U.S. Bank National Association, Lyon Financial Services, Inc. and Citigroup Global Markets Realty Corp. dated December 6, 2006. (8) | |
f.9 | Amended and Restated Sale and Servicing Agreement by and among Hercules Funding Trust I, Hercules Funding I LLC, the Company, U.S. Bank National Association, Lyon Financial Services, Inc., Citigroup Global Markets Inc., and Deutsche Bank AG dated as of May 2, 2007. (11) | |
f.10 | Fourth Amendment to the Warrant Participation Agreement by and among Hercules Technology Growth Capital, Inc. and Citigroup Global Markets Realty Corp., dated as of May 2, 2007. (12) | |
f.11 | Amended and Restated Note Purchase Agreement by and among Hercules Funding Trust I, Hercules Funding I LLC, Hercules Technology Growth Capital, Inc. and Citigroup Global Markets, Inc. dated as of May 2, 2007. (12) | |
f.12 | First Amendment to Amended and Restated Note Purchase Agreement by and among Hercules Funding Trust I, Hercules Funding I LLC, Hercules Technology Growth Capital, Inc. and Citigroup Global Markets, Inc. dated as of May 7, 2008. (13) | |
f.13 | Second Amendment to Amended and Restated Sale and Servicing Agreement by and among Hercules Funding Trust I, Hercules Funding I LLC, Hercules Technology Growth Capital, Inc., U.S. Bank National Association, Lyon Financial Services, Inc., Citigroup Global Markets Inc., and Deutsche Bank AG dated as of May 7, 2008. (13) | |
f.14 | Form of SBA Debenture. (14) | |
f.15 | Amended and Restated Loan and Security Agreement by and among Hercules Funding II, LLC, the Lenders thereto and Wells Fargo Capital Finance, LLC, dated as of June 29, 2015. (31) | |
f.16 | Amended and Restated Sales and Servicing Agreement among Hercules Funding II, LLC, Hercules Technology Growth Capital, Inc. and Wells Fargo Capital Finance, LLC, dated as of June 29, 2015. (31) | |
f.17 | Amended and Restated Loan and Security Agreement by and between Hercules Technology Growth Capital, Inc. and Union Bank, N.A. dated November 2, 2011. (15) | |
f.18 | Indenture by and between Hercules Capital Funding Trust 2012-1 and U.S. Bank National Association, dated as of December 19, 2012. (24) |
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f.19 | Amended and Restated Trust Agreement by and between Hercules Capital Funding 2012-1 LLC and Wilmington Trust, National Association, dated as of December 19, 2012. (24) | |
f.20 | Sale and Servicing Agreement by and between Hercules Capital Funding 2012-1 LLC, Hercules Capital Funding Trust 2012-1 LLC, Hercules Technology Growth Capital, Inc. and U.S. Bank National Association, dated as of December 19, 2012. (24) | |
f.21 | Sale and Contribution Agreement by and between Hercules Technology Growth Capital, Inc. and Hercules Capital Funding 2012-1 LLC, dated as of December 19, 2012. (24) | |
f.22 | Note Purchase Agreement by and between the Hercules Technology Growth Capital, Inc., Hercules Capital Funding 2012-1 LLC, as Trust Depositor, Hercules Capital Funding Trust 2012-1, as Issuer, and Guggenheim Securities, LLC, as Initial Purchaser, dated as of December 12, 2012. (24) | |
f.23 | Administration Agreement by and between Hercules Capital Funding Trust 2012-1LLC, Hercules Technology Growth Capital, Inc, Wilmington Trust, National Association, and U.S. Bank National Association, dated as of December 19, 2012. (24) | |
f.24 | Indenture by and among Hercules Capital Funding Trust 2014-1 and U.S. Bank National Association, dated as of November 13, 2014. (28) | |
f.25 | Amended and Restated Trust Agreement by and among Hercules Capital Funding 2014-1 LLC and Wilmington Trust, National Association, dated as of November 13, 2014. (28) | |
f.26 | Sale and Servicing Agreement by and among Hercules Capital Funding Trust 2014-1, Hercules Technology Growth Capital, Inc., Hercules Capital Funding 2014-1 LLC and U.S. Bank National Association, dated as of November 13, 2014. (28) | |
f.27 | Sale and Contribution Agreement by and among Hercules Technology Growth Capital, Inc. and Hercules Capital Funding 2014-1 LLC, dated as of November 13, 2014. (28) | |
f.28 | Note Purchase Agreement among Hercules Technology Growth Capital, Inc., Hercules Capital Funding 2014-1 LLC, Hercules Capital Funding Trust 2014-1 and Guggenheim Securities, LLC, dated as of November 4, 2014. (28) | |
f.29 | Administration Agreement among Hercules Technology Growth Capital, Inc., Hercules Capital Funding Trust 2014-1, Wilmington Trust National Association and U.S. Bank National Association, dated November 13, 2014. (28) | |
f.30 | First Amendment to Amended and Restated Loan and Security Agreement by and among Hercules Funding II LLC and Wells Fargo Capital Finance, LLC (f/k/a Wells Fargo Foothill, LLC), dated as of December 16, 2015. (34) | |
f.31 | First Amendment and Waiver to Second Amended and Restated Loan and Security Agreement by and among Hercules Technology Growth Capital, Inc. and MUFG Union Bank, N.A., dated as of November 3, 2015. (33) | |
f.32 | Second Amendment to Amended and Restated Loan and Security Agreement by and among Hercules Funding II LLC and Wells Fargo Capital Finance, LLC (f/k/a Wells Fargo Foothill, LLC), dated as of March 8, 2016. (37) | |
f.33 | Third Amendment to Amended and Restated Loan and Security Agreement by and among Hercules Funding II LLC and Wells Fargo Capital Finance, LLC (f/k/a Wells Fargo Foothill, LLC), dated as of April 7, 2016. (39) | |
f.34 | Loan and Security Agreement by and among Hercules Funding III, LLC, as borrower, MUFG Union Bank, N.A., as the arranger and administrative agent, and the lenders party thereto from time to time, dated as of May 5, 2016. (40) | |
f.35 | Sale and Servicing Agreement by and among Hercules Funding III LLC, as borrower, Hercules Capital, Inc., as originator and servicer, and MUFG Union Bank, N.A., as agent, dated as of May 5, 2016. (40) |
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h.1 | Form of Equity Underwriting Agreement. (30) | |
h.2 | Form of Debt Underwriting Agreement. (30) | |
h.3 | Amended and Restated Equity Distribution Agreement, dated as of March 7, 2016, by and among the Registrant and JMP Securities LLC. (38) | |
h.4 | Underwriting Agreement, dated as of June 22, 2016, by and among the Registrant and the Underwriters named therein. (43) | |
i.1 | Hercules Technology Growth Capital, Inc. 2004 Equity Incentive Plan (2015 Amendment and Restatement). (25) | |
i.2 | Hercules Technology Growth Capital, Inc. 2006 Non-Employee Director Plan (2007 Amendment and Restatement). (13) | |
i.3 | Form of Incentive Stock Option Award under the 2004 Equity Incentive Plan. (2) | |
i.4 | Form of Nonstatutory Stock Option Award under the 2004 Equity Incentive Plan. (2) | |
i.5 | Form of Restricted Stock Award under the 2004 Equity Incentive Plan. (14) | |
j | Form of Custody Agreement between the Company and Union Bank of California. (2) | |
k.1 | Form of Registrar Transfer Agency and Service Agreement between the Company and American Stock Transfer & Trust Company. (2) | |
k.2 | Warrant Agreement dated June 22, 2004 between the Company and American Stock Transfer & Trust Company, as warrant agent. (1) | |
k.3 | Lease Agreement dated June 13, 2006 between the Company and 400 Hamilton Associates. (9) | |
k.4 | Form of Indemnification Agreement. (29) | |
l.1 | Opinion of Dechert LLP. (42) | |
l.2 | Opinion of Dechert LLP. (43) | |
l.3* | Opinion of Dechert LLP. | |
n.1* | Consent of PricewaterhouseCoopers LLP. | |
n.2 | Report of PricewaterhouseCoopers LLP. (36) | |
n.3 | Consent of Dechert LLP (included in Exhibit l). (42) | |
p | Subscription Agreement dated February 2, 2004 between the Company and the subscribers named therein. (2) | |
r | Code of Ethics. (2) | |
s.1 | Form of Prospectus Supplement For Common Stock Offerings. (30) | |
s.2 | Form of Prospectus Supplement For Preferred Stock Offerings. (30) | |
s.3 | Form of Prospectus Supplement For Debt Offerings. (30) | |
s.4 | Form of Prospectus Supplement For Rights Offerings. (30) | |
s.5 | Form of Prospectus Supplement For Warrant Offerings. (30) | |
s.6 | Form of Prospectus For At-the-Market Offerings. (30) | |
99.1 | Statement of Computation of Ratios of Earnings to Fixed Charges. (32) |
* | Filed herewith. |
(1) | Previously filed as part of the Registration Statement on Form N-2 of the Company, as filed on February 22, 2005. |
(2) | Previously filed as part of Pre-Effective Amendment No. 1, as filed on May 17, 2005 (File No. 333-122950) to the Registration Statement on Form N-2 of the Company. |
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(3) | Previously filed as part of Pre-Effective Amendment No. 2, as filed on June 8, 2005 (File No. 333-122950) to the Registration Statement on Form N-2 of the Company. |
(4) | Previously filed as part of Post-Effective Amendment No. 1, as filed on June 10, 2005 (File No. 333-122950) to the Registration Statement on Form N-2 of the Company. |
(5) | Previously filed as part of the Current Report on Form 8-K of the Company, as filed on August 5, 2005. |
(6) | Previously filed as part of Post-Effective Amendment No. 3, as filed on March 9, 2006 (File No. 333-126604) to the Registration Statement on Form N-2 of the Company. |
(7) | Previously filed as part of the Pre-Effective Amendment No. 1, as filed on October 17, 2006 (File No. 333-136918) to the Registration Statement on Form N-2 of the Company. |
(8) | Previously filed as part of the Current Report on Form 8-K of the Company, as filed on December 6, 2006. |
(9) | Previously filed as part of the Current Report on Form 8-K of the Company, as filed on August 1, 2006. |
(10) | Previously filed as part of the Current Report on Form 8-K of the Company, as filed March 9, 2007. |
(11) | Previously filed as part of the Current Report on Form 8-K of the Company, as filed May 4, 2007. |
(12) | Previously filed as part of the Pre-Effective Amendment No. 1, as filed May 15, 2007 (File No. 333-141828), to the Registration Statement on Form N-2 of the Company. |
(13) | Previously filed as part of the Pre-Effective Amendment No. 2, as filed June 5, 2008 (File No. 333-150403), to the Registration Statement on Form N-2 of the Company. |
(14) | Previously filed as part of the Annual Report on Form 10-K of the Company, as filed on March 16, 2009. |
(15) | Previously filed as part of the Current Report on Form 8-K of the Company, as filed on November 4, 2011. |
(16) | Previously filed as part of the Current Report on Form 8-K of the Company, as filed on April 11, 2011. |
(17) | Previously filed as part of the Registration Statement on Form N-2 of the Company, as filed on February 8, 2012 (File No. 333-179431). |
(18) | Previously filed as part of Post-Effective Amendment No. 1, as filed on April 17, 2012 (File No. 333-179431), to the Registration Statement on Form N-2 of the Company. |
(19) | Previously filed as part of Post-Effective Amendment No. 2, as filed on July 6, 2012 (File No. 333-179431), to the Registration Statement on Form N-2 of the Company. |
(20) | Previously filed as part of Post-Effective Amendment No. 5, as filed on September 24, 2012 (File No. 333-179431), to the Registration Statement on Form N-2 of the Company. |
(21) | Previously filed as part of Post-Effective Amendment No. 7, as filed on October 2, 2012 (File No. 333-179431), to the Registration Statement on Form N-2 of the Company. |
(22) | Previously filed as part of the Quarterly Report on Form 10-Q of the Company, as filed on May 8, 2012. |
(23) | Previously filed as part of Post-Effective Amendment No. 8, as filed on October 17, 2012 (File No. 333-179431), to the Registration Statement on Form N-2 of the Company. |
(24) | Previously filed as part of the Current Report on Form 8-K of the Company, as filed on December 20, 2012. |
(25) | Previously filed as part of the Securities to be Offered to Employees in Employee Benefit Plans on Form S-8, as filed on August 28, 2015. |
(26) | Previously filed as part of Post-Effective Amendment No. 5, as filed on July 14, 2014 (File No. 333-187447), to the Registration Statement on Form N-2 of the Company. |
(27) | Previously filed as part of Post-Effective Amendment No. 6, as filed on August 11, 2014 (File No. 333-187447), to the Registration Statement on Form N-2 of the Company. |
(28) | Previously filed as part of Post-Effective Amendment No. 8, as filed on March 25, 2015 (File No. 333-187447), to the Registration Statement on Form N-2 of the Company. |
(29) | Previously filed as part of the Registration Statement on Form N-2, as filed on April 20, 2015 (File No. 333-203511). |
(30) | Previously filed as part of Pre-Effective Amendment No. 1 to the Registration Statement on Form N-2, as filed on June 8, 2015 (File No 333-203511). |
(31) | Previously filed as part of the current report on Form 8-K of the Company, as filed on June 30, 2015. |
(32) | Previously filed as part of Pre-Effective Amendment No. 2, as filed on September 29, 2015 (File No. 333-203511), to the Registration Statement on Form N-2 of the Company. |
(33) | Previously filed as part of the Current Report on Form 8-K of the Company, as filed on November 13, 2015. |
(34) | Previously filed as part of the Current Report on Form 8-K of the Company, as filed on December 18, 2015. |
(35) | Previously filed as part of the Current Report on Form 8-K of the Company, as filed on February 25, 2016. |
(36) | Previously filed as part of Post-Effective Amendment No. 1, as filed on March 7, 2016 (File No. 333-203511), to the Registration Statement on Form N-2 of the Company. |
(37) | Previously filed as part of the Current Report on Form 8-K of the Company, as filed on March 8, 2016 |
(38) | Previously filed as part of Post-Effective Amendment No. 2, as filed on March 22, 2016 (File No. 333-203511), to the Registration Statement on Form N-2 of the Company. |
(39) | Previously filed as part of the Current Report on Form 8-K of the Company, as filed on April 11, 2016 |
(40) | Previously filed as part of the Current Report on Form 8-K of the Company, as filed on May 10, 2016. |
(41) | Previously filed as part of Post-Effective Amendment No. 3, as filed on May 2, 2016 (File No. 333-203511), to the Registration Statement on Form N-2 of the Company. |
(42) | Previously filed as part of Post-Effective Amendment No. 5, as filed on June 3, 2016 (file No. 333-203511), to the Registration Statement on Form N-2 of the Company. |
(43) | Previously filed as part of Post-Effective Amendment No. 6, as filed on June 27, 2016 (File No. 333-203511), to the Registration Statement on Form N-2 of the Company. |
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Item 26. Marketing Arrangements
The information contained under the heading Plan of Distribution of the prospectus is incorporated herein by reference, and any information concerning any underwriters will be contained in any prospectus supplement if any, accompanying this prospectus.
Item 27. Other Expenses of Issuance and Distribution
The following table sets forth the estimated expenses payable by us in connection with the offering (excluding placement fees):
Amount | ||||
SEC registration fee |
$ | 58,100 | * | |
FINRA filing fee |
47,510 | |||
NYSE listing fee |
136,190 | |||
Accounting fees and expenses |
108,000 | |||
Legal fees and expenses |
310,000 | |||
Printing expenses |
65,000 | |||
Miscellaneous |
5,200 | |||
|
|
|||
Total |
$ | 730,000 | ||
|
|
Note: Except the SEC registration fee and the FINRA filing fee, all listed amounts are estimates.
* | This amount has been offset against filing fees associated with unsold securities registered under a previous registration statement. |
Item 28. Persons Controlled by or Under Common Control
Hercules Technology SBIC Management, LLC is a wholly owned subsidiary of the Company. Hercules Technology SBIC Management, LLC is the general partner of Hercules Technology II, L.P., Hercules Technology III, LP and Hercules Technology IV, LP and the Company owns substantially all of the limited partnership interests in Hercules Technology II, L.P. Hercules Technology III, L.P. and Hercules Funding II, LLC, Hercules Funding III, LLC, Hercules Technology Management Co. II, Inc., Hercules Technology Management Co. III, Inc., Hercules Technology Management Co. V, Inc., Hercules Technology I, LLC, Hercules Technology II, LLC, Hydra Ventures LLC, Hercules Capital Funding Trust 2014-1, Hercules Capital Funding 2014-1 LLC, Achilles Technology Management Co., Inc., Achilles Technology Management Co I, Inc. and Achilles Technology Management Co II, Inc. are wholly owned subsidiaries of the Company. Accordingly, the Company may be deemed to control, directly or indirectly, the following entities:
Name |
Jurisdiction of Organization | |||
Hercules Technology II, L.P. |
Delaware | |||
Hercules Technology III, L.P. |
Delaware | |||
Hercules Technology IV, L.P. |
Delaware | |||
Hercules Technology SBIC Management, LLC |
Delaware | |||
Hercules Funding II, LLC |
Delaware | |||
Hercules Funding III, LLC |
Delaware | |||
Hercules Technology Management Co II, Inc. |
Delaware | |||
Hercules Technology Management Co III, Inc. |
Delaware | |||
Hercules Technology Management Co V, Inc. |
Delaware | |||
Hercules Technology I, LLC |
Delaware | |||
Hercules Technology II LLC |
Delaware | |||
Hydra Ventures LLC |
Delaware | |||
Hercules Capital Funding Trust 2014-1 |
Delaware | |||
Hercules Capital Funding 2014-1 LLC |
Delaware |
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Name |
Jurisdiction of Organization | |||
Achilles Technology Management Co., Inc. |
Delaware | |||
Achilles Technology Management Co I, Inc. |
Delaware | |||
Achilles Technology Management Co II, Inc. |
Delaware |
Item 29. Number of Holder of Securities
The following table sets forth the approximate number of shareholders of the Companys common stock as of May 26, 2016:
Title of Class |
Number of
Record Holders |
|||
Common stock, par value $.001 per share |
44,200 |
Item 30. Indemnification
Maryland law permits a Maryland corporation to include in its charter a provision limiting the liability of its directors and officers to the corporation and its stockholders for money damages except for liability resulting from (a) actual receipt of an improper benefit or profit in money, property or services or (b) active and deliberate dishonesty established by a final judgment as being material to the cause of action. The Registrants charter contains such a provision which eliminates directors and officers liability to the maximum extent permitted by Maryland law, subject to the requirements of the 1940 Act.
The Registrants charter authorizes the Registrant, to the maximum extent permitted by Maryland law and subject to the requirements of the 1940 Act, to obligate itself to indemnify any present or former director or officer or any individual who, while a director or officer of the Registrant and at its request, serves or has served another corporation, real estate investment trust, partnership, joint venture, trust, employee benefit plan or other enterprise as a director, officer, partner or trustee, from and against any claim or liability to which that person may become subject or which that person may incur by reason of his or her service in any such capacity and, under certain circumstances and provided certain conditions have been met, to pay or reimburse their reasonable expenses in advance of final disposition of a proceeding. The Registrants bylaws obligate the Registrant, to the maximum extent permitted by Maryland law and subject to the requirements of the 1940 Act, to indemnify any present or former director or officer or any individual who, while a director or officer of the Registrant and at its request, serves or has served another corporation, real estate investment trust, partnership, joint venture, trust, employee benefit plan or other enterprise as a director, officer, partner or trustee and who is made, or threatened to be made, a party to the proceeding by reason of his or her service in any such capacity from and against any claim or liability to which that person may become subject or which that person may incur by reason of his or her service in any such capacity and, under certain circumstances and provided certain conditions have been met, to pay or reimburse their reasonable expenses in advance of final disposition of a proceeding. The charter and bylaws also permit the Registrant to indemnify and, under certain circumstances and provided certain conditions have been met, advance expenses to any person who served a predecessor of the Registrant in any of the capacities described above and any of the Registrants employees or agents or any employees or agents of its predecessor. In accordance with the 1940 Act, the Registrant will not indemnify any person for any liability to which such person would be subject by reason of such persons willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of his office. Additionally, the Registrant will not indemnify any person with respect to any matter as to which such person shall have been finally adjudicated in any proceeding not to have acted in good faith in the reasonable belief that their action was in the best interests of the Registrant.
Maryland law requires a corporation (unless its charter provides otherwise, which the Registrants charter does not) to indemnify a director or officer who has been successful, on the merits or otherwise, in the defense of any proceeding to which he or she is made, or threatened to be made, a party by reason of his or her service in that capacity. Maryland law permits a corporation to indemnify its present and former directors and officers,
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among others, against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any proceeding to which they may be made, or threatened to be made, a party by reason of their service in those or other capacities unless it is established that (a) the act or omission of the director or officer was material to the matter giving rise to the proceeding and (1) was committed in bad faith or (2) was the result of active and deliberate dishonesty, (b) the director or officer actually received an improper personal benefit in money, property or services or (c) in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful. However, under Maryland law, a Maryland corporation may not indemnify for an adverse judgment in a suit by or in the right of the corporation or for a judgment of liability on the basis that a personal benefit was improperly received, unless in either case a court orders indemnification, and then only for expenses. In addition, Maryland law permits a corporation to advance reasonable expenses to a director or officer upon the corporations 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.
Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, may be permitted to directors, officers and controlling persons of the Company pursuant to the provisions described above, or otherwise, the Company has been advised that in the opinion of the SEC 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 Company of expenses incurred or paid by a director, officer or controlling person in the successful defense of an action, suit or proceeding) is asserted by a director, officer or controlling person in connection with the securities being registered, the Company 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.
The Company carries liability insurance for the benefit of its directors and officers (other than with respect to claims resulting from the willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of his or her office) on a claims-made basis of up to $3,000,000, subject to a $250,000 retention and the other terms thereof.
The Company has agreed to indemnify the underwriters against specified liabilities for actions taken in their capacities as such, including liabilities under the Securities Act of 1933, as amended.
Item 31. Business and Other Connections of Investment Advisor
Not applicable.
Item 32. Location of Accounts and Records
The Company maintains at its principal office physical possession of each account, book or other document required to be maintained by Section 31(a) of the 1940 Act and the rules thereunder.
Item 33. Management Services
Not applicable.
Item 34. Undertakings
The Registrant undertakes:
1. |
to suspend the offering of shares until the prospectus is amended if (a) subsequent to the effective date of its registration statement, the net asset value declines more than ten percent from its net asset value |
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as of the effective date of the registration statement or (b) the net asset value increases to an amount greater than the net proceeds (if applicable) as stated in the prospectus. |
2. | Not applicable. |
3. | Not applicable. |
4. |
a. | to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
i. | to include any prospectus required by Section 10(a)(3) of the Securities Act; |
ii. | to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; and |
iii. | to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. |
b. | that, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of the securities at that time shall be deemed to be the initial bona fide offering thereof; |
c. | to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering; |
d. | that, for the purpose of determining liability under the Securities Act to any purchaser, if the Registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 497(b), (c), (d) or (e) under the Securities Act as part of a registration statement relating to an offering, other than prospectus filed in reliance on Rule 430A under the Securities Act, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness, provided, however , that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, |
as to a purchaser with a time of contract of sale prior to such first use, supercede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use;
e. | that for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution of securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to the purchaser: |
i. | any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 497 under the Securities Act; |
ii. | the portion of any advertisement pursuant to Rule 482 under the Securities Act relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and |
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iii. | any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser. |
f. | to file a post-effective amendment to the registration statement, and to suspend any offers or sales pursuant the registration statement until such post-effective amendment has been declared effective under the Securities Act, in the event the shares of the Registrant are trading below its net asset value per share and either (a) the Registrant receives, or has been advised by its independent registered accounting firm that it will receive, an audit report reflecting substantial doubt regarding the Registrants ability to continue as a going concern or (b) the Registrant has concluded that a fundamental change has occurred in its financial position or results of operations; and |
5. | Not applicable. |
6. | Not applicable. |
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Post-Effective Amendment No. 7 to the Registration Statement on Form N-2 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Palo Alto, and State of California, on the 5th day of July 2016.
H ERCULES C APITAL , I NC . |
/ S / M ANUEL A. H ENRIQUEZ Manuel A. Henriquez Chairman of the Board, President and Chief Executive Officer |
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signature |
Title |
Date |
||
/ S / M ANUEL A. H ENRIQUEZ Manuel A. Henriquez |
Chairman of the Board, President and Chief Executive Officer (principal executive officer) | July 5, 2016 | ||
/ S / M ARK H ARRIS Mark Harris |
Chief Financial Officer (principal financial and accounting officer) | July 5, 2016 | ||
/ S / A LLYN C. W OODWARD , J R . Allyn C. Woodward, Jr. |
Director | July 5, 2016 | ||
/ S / R OBERT P. B ADAVAS Robert P. Badavas |
Director | July 5, 2016 | ||
/ S / T HOMAS J. F ALLON Thomas J. Fallon |
Director | July 5, 2016 | ||
/ S / S USANNE D. L YONS Susanne D. Lyons |
Director | July 5, 2016 | ||
/ S / J OSEPH F. H OFFMAN Joseph F. Hoffman |
Director | July 5, 2016 | ||
/ S / R ODNEY F ERGUSON Rodney Ferguson |
Director |
July 5, 2016 |
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EXHIBIT INDEX
Exhibit
|
Description |
|
d.21* | Form of 6.25% Note due 2024, dated July 5, 2016 (Additional July 2024 Note). | |
l.3* | Opinion of Dechert LLP | |
n.1* | Consent of PricewaterhouseCoopers LLP. |
* | Filed herewith. |
Exhibit d.21
This Security is a Global Note within the meaning of the Indenture hereinafter referred to and is registered in the name of The Depository Trust Company or a nominee thereof. This Security may not be exchanged in whole or in part for a Security registered, and no transfer of this Security in whole or in part may be registered, in the name of any Person other than The Depository Trust Company or a nominee thereof, except in the limited circumstances described in the Indenture.
Unless this certificate is presented by an authorized representative of The Depository Trust Company to the issuer or its agent for registration of transfer, exchange or payment and such certificate issued in exchange for this certificate is registered in the name of Cede & Co., or such other name as requested by an authorized representative of The Depository Trust Company, any transfer, pledge or other use hereof for value or otherwise by or to any person is wrongful, as the registered owner hereof, Cede & Co., has an interest herein.
Hercules Capital, Inc.
No. 5 | $9,000,000 | |||||
CUSIP No. 427096 862 | ||||||
ISIN No. US4270968625 |
6.25% Notes due 2024
Hercules Capital, Inc., a corporation duly organized and existing under the laws of Maryland (herein called the Company, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of NINE MILLION U.S. DOLLARS (U.S. $9,000,000) on July 30, 2024, and to pay interest thereon from July 14, 2014 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, quarterly on January 30, April 30, July 30 and October 30 in each year, commencing July 30, 2016, at the rate of 6.25% per annum, until the principal hereof is paid or made available for payment. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security is registered at the close of business on the Regular Record Date for such interest, which shall be January 15, April 15, July 15 and October 15 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture. This Security may be issued as part of a series.
Payment of the principal of (and premium, if any, on) and any such interest on this Security will be made at the office of the Trustee located at 100 Wall Street, Suite 1600, New York, New York, 10005, Attention: Hercules Capital, Inc. (6.25% Notes Due 2024) and at such other address as designated by the Trustee, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided , however , that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register; provided, further, however , that so long as this Security is registered to Cede & Co., such payment will be made by wire transfer in accordance with the procedures established by The Depository Trust Company and the Trustee.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated: July 5, 2016
HERCULES CAPITAL, INC. | ||
By: |
||
Name: Mark Harris | ||
Title: Chief Financial Officer |
Attest
By: | ||
Name: Melanie Grace | ||
Title: General Counsel, Chief Compliance Officer and Secretary |
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Dated: July 5, 2016
U.S. BANK NATIONAL ASSOCIATION as Trustee | ||
By: |
||
Authorized Signatory |
Hercules Capital, Inc.
6.25% Notes due 2024
This Security is one of a duly authorized issue of Senior Securities of the Company (herein called the Securities), issued and to be issued in one or more series under an Indenture, dated as of March 6, 2012 (herein called the Base Indenture, which term shall have the meaning assigned to it in such instrument), between the Company and U.S. Bank National Association, as Trustee (herein called the Trustee, which term includes any successor trustee under the Base Indenture), and reference is hereby made to the Base Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee, and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered, as amended and supplemented by the Third Supplemental Indenture relating to the Securities, dated as of July 14, 2014, by and between the Company and the Trustee (herein called the Third Supplemental Indenture; and together with the Base Indenture, the Indenture). In the event of any conflict between the Base Indenture and the Third Supplemental Indenture, the Third Supplemental Indenture shall govern and control.
This Security is one of the series designated on the face hereof. Under a Board Resolution, Officers Certificate pursuant to Board Resolutions or an indenture supplement, the Company may from time to time, without the consent of the Holders of Securities, issue additional Securities of this series (in any such case Additional Securities) having the same ranking and the same interest rate, maturity and other terms as the Securities. Any Additional Securities and the existing Securities will constitute a single series under the Indenture and all references to the relevant Securities herein shall include the Additional Securities unless the context otherwise requires. The aggregate amount of outstanding Securities represented hereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions.
The Securities of this series are subject to redemption in whole or in part at any time or from time to time, at the option of the Company, on or after July 30, 2017, at a redemption price per security 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 the date fixed for redemption.
Notice of redemption shall be given in writing and mailed, first-class postage prepaid or by overnight courier guaranteeing next-day delivery, provided that so long as the Securities are registered to Cede & Co., such notice shall be given in accordance with the Trustees and the Depositarys standard practices and procedures, to each Holder of the Securities to be redeemed, not less than thirty (30) nor more than sixty (60) days prior to the Redemption Date, at the Holders address appearing in the Security Register. All notices of redemption shall contain the information set forth in Section 11.04 of the Base Indenture.
Any exercise of the Companys option to redeem the Securities will be done in compliance with the Indenture and the Investment Company Act, to the extent applicable.
If the Company elects to redeem only a portion of the Securities, the Trustee or, with respect to Global Notes, the Depositary will determine the method for selecting the particular Securities to be redeemed, in accordance with the Indenture and the Investment Company Act, to the extent applicable. In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.
Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on the Notes called for redemption.
Holders of Securities do not have the option to have the Securities repaid prior to July 30, 2024.
The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Security or certain restrictive covenants and Events of Default with respect to this Security, in each case upon compliance with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of not less than a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee indemnity reasonably satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such request, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for sixty (60) days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in denominations of $25 and any integral multiples of $25 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Company or Trustee may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and construed in accordance with the laws of the State of New York, without regard to principles of conflicts of laws.
Exhibit 1.3
|
Cira Centre 2929 Arch Street Philadelphia, PA 19104-2808 +1 215 994 4000 Main +1 215 994 2222 Fax www.dechert.com
|
July 5, 2016
Hercules Capital, Inc.
400 Hamilton Avenue, Suite 310
Palo Alto, CA 94301
Re: Registration Statement on Form N-2
Ladies and Gentlemen:
We have acted as counsel to Hercules Capital, Inc., a Maryland corporation (the Company ), in connection with the preparation and filing of a Registration Statement on Form N-2, originally filed on November 3, 2015 with the U.S. Securities and Exchange Commission (the Commission ) under the Securities Act of 1933, as amended (the Securities Act ) and as subsequently amended on March 7, 2016, March 22, 2016, May 2, 2016, May 10, 2016 and June 27, 2016 (as amended, the Registration Statement ) and the final prospectus supplement, dated June 23, 2016 (including the base prospectus filed therewith, the Prospectus Supplement ), filed with the Commission on June 23, 2016 pursuant to Rule 497 under the Securities Act, relating to the proposed issuance by the Company of $9,000,000 aggregate principal amount of 6.25% notes due 2024 (the Notes ), to be sold to underwriters in connection with the over-allotment option exercised pursuant to an underwriting agreement substantially in the form filed as Exhibit (h)(4) to the Registration Statement (the Underwriting Agreement ). This opinion letter is being furnished to the Company in accordance with the requirements of Item 25 of Form N-2 under the Investment Company Act of 1940, as amended, and we express no opinion herein as to any matter other than as to the legality of the Notes.
The Notes are to be issued pursuant to the indenture dated as of March 6, 2012 (the Base Indenture ), between the Company and U.S. Bank National Association, as trustee (the Trustee ), as supplemented by the third supplemental indenture dated as of July 14, 2014 (the Third Supplemental Indenture and together with the Base Indenture, the Indenture ), between the Company and the Trustee.
In rendering the opinions expressed below, we have examined and relied on originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records and other instruments and such agreements, certificates and receipts of public officials, certificates of officers or other representatives of the Company and others, and such other documents as we have deemed necessary or appropriate as a basis for the opinions set forth below, including the following documents:
(i) | the Registration Statement; |
(ii) | the Prospectus Supplement; |
(iii) | the Underwriting Agreement; |
(iv) | the Indenture; |
(v) | a specimen copy of the form of the Notes to be issued pursuant to the Indenture; |
(vi) | the Articles of Amendment and Restatement of the Company, dated as of June 8, 2005 (the Articles of Amendment and Restatement ); |
(vii) | the Articles of Amendment of the Company dated as of March 8, 2007 ( Amendment 1 ); |
|
Hercules Capital, Inc. July 5, 2016 Page 2 |
(viii) | the Articles of Amendment of the Company dated as of April 6, 2011 ( Amendment 2 ); |
(ix) | the Articles of Amendment of the Company dated as of April 6, 2015 ( Amendment 3 ); |
(x) | the Articles of Amendment of the Company dated as of February 23, 2016 ( Amendment 4 , collectively, with Amendment 1, Amendment 2, Amendment 3 and the Articles of Amendment and Restatement, the Articles ); |
(xi) | the Amended and Restated Bylaws of the Company dated as of February 25, 2016; |
(xii) | a certificate of good standing with respect to the Company issued by the State Department of Assessments and Taxation of Maryland as of a recent date; and |
(xiii) | the unanimous written consent of the Companys board of directors (the Board ) as of June 22, 2016, which approved the minutes of a meeting of the Board held on June 9, 2016 and resolutions approved by the pricing committee of the Board dated June 22, 2016. |
As to the facts upon which this opinion is based, we have relied upon certificates of public officials and certificates and written statements of agents, officers, directors and representatives of the Company without having independently verified such factual matters.
In our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as original documents, the conformity to original documents of all documents submitted to us as copies, the legal capacity of natural persons who are signatories to the documents examined by us and the legal power and authority of all persons signing on behalf of the parties to such documents.
On the basis of the foregoing and subject to the assumptions, qualifications and limitations set forth in this letter, we are of the opinion that:
1. | The Base Indenture constitutes the valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms. |
2. | The Third Supplemental Indenture is duly authorized, executed and delivered by the Company and constitutes the valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms. |
3. | When duly executed by the Company and authenticated by the Trustee in accordance with the terms of the Indenture and delivered to the underwriters against payment therefor in accordance with the terms of the Underwriting Agreement, the Notes will constitute the legal and binding obligations of the Company, enforceable against the Company in accordance with their terms. |
The opinions set forth herein are subject to the following assumptions, qualifications, limitations and exceptions being true and correct at or before the time of the Notes:
(i) | the Company is duly incorporated and validly existing in good standing under the laws of the State of Maryland; |
(ii) | the Indenture and the Notes have been duly authorized, executed and delivered by each party thereto (other than the Company); |
(iii) | the final terms of the Notes have been duly established and approved by all necessary corporate action on the part of the Company; |
(iv) | the terms of the Notes as established comply with the requirements of the Investment Company Act of 1940, as amended; and |
(v) | the Notes have been duly executed by the Company and authenticated by the Trustee in accordance with the Indenture and delivered to and paid for by the purchasers thereof. |
|
Hercules Capital, Inc. July 5, 2016 Page 3 |
The opinions set forth herein as to enforceability of obligations of the Company are subject to: (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar laws now or hereinafter in effect affecting the enforcement of creditors rights generally, and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and the discretion of the court or other body before which any proceeding may be brought; (ii) the unenforceability under certain circumstances under law or court decisions of provisions providing for the indemnification of, or contribution to, a party with respect to a liability where such indemnification or contribution is contrary to public policy; (iii) provisions of law which may require that a judgment for money damages rendered by a court in the United States be expressed only in U.S. dollars; (iv) requirements that a claim with respect to any debt securities denominated other than in U.S. dollars (or a judgment denominated other than in U.S. dollars in respect of such claim) be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law; and (v) governmental authority to limit, delay or prohibit the making of payments outside the United States or in foreign currency or composite currency.
We express no opinion as to the validity, legally binding effect or enforceability of any provision in any agreement or instrument that (i) requires or relates to payment of any interest at a rate or in an amount which a court may determine in the circumstances under applicable law to be commercially unreasonable or a penalty or forfeiture or (ii) relates to governing law and submission by the parties to the jurisdiction of one or more particular courts.
The opinions expressed herein are limited to the laws of the State of New York.
This opinion letter has been prepared for your use solely in connection with the Registration Statement. We assume no obligation to advise you of any changes in the foregoing subsequent to the date of this opinion.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to this firm under the caption Legal Matters in the Registration Statement and the Prospectus Supplement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ Dechert LLP
Exhibit n.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the use in this Registration Statement on Form N-2 of Hercules Capital, Inc. (formerly known as Hercules Technology Growth Capital, Inc.) of our report dated February 25, 2016 relating to the consolidated financial statements, financial statement schedule and the effectiveness of internal control over financial reporting of Hercules Capital, Inc., and our report dated March 7, 2016 relating to the senior securities table, which appear in Post-Effective Amendment No. 7 to the Registration Statement on Form N-2 (No. 333-203511) of Hercules Capital, Inc. We also consent to the references to us under the headings Experts, Selected Consolidated Financial Data, and Senior Securities in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
San Francisco, California
July 5, 2016