UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): October 13, 2016
FS Energy and Power Fund
(Exact name of Registrant as specified in its charter)
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Delaware (State or other jurisdiction of incorporation) |
814-00841 (Commission File Number) |
27-6822130 (I.R.S. Employer Identification No.) |
||
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201 Rouse Boulevard Philadelphia, Pennsylvania (Address of principal executive offices) |
19112 (Zip Code) |
Registrant’s telephone number, including area code: (215) 495-1150
None
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| Item 3.03. | Material Modification to Rights of Security Holders |
On October 13, 2016, FS Energy and Power Fund (the “Company”) further amended and restated its amended and restated distribution reinvestment plan (the “DRP” and, as further amended and restated, the “Amended DRP”). The Amended DRP will be effective as of, and will first apply to the reinvestment of cash distributions paid on or after, November 30, 2016.
Under the DRP, cash distributions to participating shareholders are reinvested in additional common shares of beneficial interest of the Company (“Shares”) at a purchase price equal to 90% of the public offering price per Share in effect as of the date of issuance.
Under the Amended DRP, cash distributions to participating shareholders will be reinvested in additional Shares at a purchase price determined by the board of trustees of the Company (the “Board”) or a committee thereof, in its sole discretion, that is (i) not less than the net asset value per Share determined in good faith by the Board or a committee thereof, in its sole discretion, immediately prior to the payment of the distribution (the “NAV Per Share”) and (ii) not more than 2.5% greater than the NAV Per Share as of such date. No other material terms of the DRP have been amended in connection with the Amended DRP.
The foregoing summary of the Amended DRP is qualified in its entirety by the full text of the Amended DRP, a copy of which is attached hereto as Exhibit 4.1 and is incorporated herein by reference.
| Item 8.01. | Other Events. |
Updated Timing of Anticipated Closing of Public Offering
Subject to market conditions and the pace of capital raising, FSEP now anticipates closing its public offering to new investors in November 2016.
Amendment to Share Repurchase Program
On October 13, 2016, the Company amended the terms of its share repurchase program. The amendments to the share repurchase program will be effective as of the commencement of the Company’s quarterly repurchase offer for the fourth quarter of 2016, which the Company expects will commence in late November 2016.
Under the existing share repurchase program, the Company offers to repurchase Shares on a quarterly basis at a repurchase price equal to 90% of the Share price in effect on each date of repurchase. Under the amended share repurchase program, the Company will offer to repurchase Shares at a repurchase price equal to the price at which Shares are issued pursuant to the Amended DRP on the distribution date coinciding with such Share repurchase date.
A detailed description of the share repurchase program can be found in the Company’s quarterly report on Form 10-Q for the quarterly period ended June 30, 2016, which was filed with the Securities and Exchange Commission (the “SEC”) on August 9, 2016, and its other public filings with the SEC.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits.
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EXHIBIT
NUMBER |
DESCRIPTION | |
| 4.1 | Second Amended and Restated Distribution Reinvestment Plan of FS Energy and Power Fund |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| FS Energy and Power Fund | |||
| Date: October 17, 2016 | By: | /s/ Stephen S. Sypherd | |
| Stephen S. Sypherd | |||
| Vice President, Treasurer and Secretary | |||
EXHIBIT INDEX
|
EXHIBIT
NUMBER |
DESCRIPTION | |
| 4.1 | Second Amended and Restated Distribution Reinvestment Plan of FS Energy and Power Fund |
Exhibit 4.1
SECOND AMENDED AND RESTATED DISTRIBUTION REINVESTMENT PLAN
OF
FS ENERGY AND POWER FUND
Effective as of November 30, 2016
FS Energy Power Fund, a Delaware statutory trust (the “ Company ”), hereby adopts the following plan (the “ Plan ”) with respect to distributions declared by its board of trustees (the “ Board of Trustees ”) on its common shares of beneficial interest (the “ Common Shares ”):
1.
Each shareholder of record may enroll in the Plan by providing the Plan Administrator (as defined below) with written notice, except that a shareholder may only participate in the Plan, and sales to a shareholder under the Plan may only occur, if the Company maintains its registration, or an exemption from registration is available, in the shareholder’s state of residence. To enroll in the Plan, such shareholder shall notify DST Systems, Inc., the Plan administrator and the Company’s transfer agent and registrar (collectively the “ Plan Administrator ”), in writing so that such notice is received by the Plan Administrator no later than the record date fixed by the Board of Trustees for the distribution involved. If a shareholder elects to enroll in the Plan, all distributions thereafter declared by the Board of Trustees shall be payable in Common Shares as provided herein, and no action shall be required on such shareholder’s part to receive a distribution in Common Shares. If a shareholder wishes to receive its distributions in cash, no action is required.
2.
Subject to the Board of Trustees’ discretion and applicable legal restrictions, the Company intends to authorize and declare ordinary cash distributions on a monthly basis or on such other date or dates as may be fixed from time to time by the Board of Trustees to shareholders of record as of the close of business on the record date for the distribution involved.
3.
The Company shall use newly-issued Common Shares to implement the Plan. The number of newly-issued Common Shares to be issued to a shareholder shall be determined by dividing the total dollar amount of the distribution payable to such shareholder by the Issuance Price. The “ Issuance Price ” shall mean a price per Common Share, determined by the Board of Trustees or a committee thereof, in its sole discretion, that is (i) not less than the net asset value per Common Share determined in good faith by the Board of Trustees or a committee thereof, in its sole discretion, immediately prior to the payment of the distribution (the “ NAV Per Share ”) and (ii) not more than 2.5% greater than the NAV Per Share as of such date. There will be no selling commissions, dealer manager fees or other sales charges on Common Shares issued to a shareholder under the Plan. The Company shall pay the Plan Administrator’s fees under the Plan.
4.
The Plan Administrator will set up an account for Common Shares acquired pursuant to the Plan for each shareholder who has elected to enroll in the Plan (each a “ Participant ”). The Plan Administrator may hold each Participant’s Common Shares, together with the Common Shares of other Participants, in non-certificated form in the Plan Administrator’s name or that of its nominee. If a Participant’s Common Shares are held by a broker or other financial intermediary, the Participant may “opt in” to the Plan by notifying its broker or other financial intermediary of its election.
5.
The Plan Administrator will confirm to each Participant each acquisition made pursuant to the Plan as soon as practicable but not later than 10 business days after the date thereof. Distributions on fractional Common Shares will be credited to each Participant’s account. In the event of termination of a Participant’s account under the Plan, the Plan Administrator will adjust for any such undivided fractional interest in cash at the Issuance Price of the Common Shares in effect at the time of termination.
6.
Common Shares issued pursuant to the Plan will have the same voting rights as the Common Shares issued pursuant to the Company’s public offering. The Plan Administrator will forward to each Participant any Company-related proxy solicitation materials and each Company report or other communication to shareholders, and will vote any Common Shares held by it under the Plan in accordance with the instructions set forth on proxies returned by Participants to the Company.
7.
In the event that the Company makes available to its shareholders rights to purchase additional Common Shares or other securities, the Common Shares held by the Plan Administrator for each Participant under the Plan will be used in calculating the number of rights to be issued to the Participant. Transaction processing may either be curtailed or suspended until the completion of any share dividend, share split or corporate action.
8.
The Plan Administrator’s service fee, if any, and expenses for administering the Plan will be paid for by the Company. Except as otherwise described herein, there will be no brokerage charges or other charges to shareholders who participate in the Plan.
9.
Each Participant may terminate his, her or its account under the Plan by sending written notice to the Plan Administrator at FS Energy and Power Fund, P.O. Box 219095, Kansas City, Missouri 64121-9095, or by calling the Plan Administrator’s Interactive Voice Response System at (877) 628-8575. Such termination will be effective immediately if the Participant’s notice is received by the Plan Administrator at least 2 days prior to any distribution record date; otherwise, such termination will be effective only with respect to any subsequent distribution. The Plan may be terminated by the Company upon notice in writing mailed to each Participant at least 30 days prior to any record date for the payment of any distribution by the Company. Upon termination, the Plan Administrator will credit the Participant’s account for the full Common Shares held for the Participant under the Plan and a cash adjustment for any fractional Common Shares to be delivered to the Participant without charge to the Participant. If a Participant elects by his, her or its written notice to the Plan Administrator in advance of termination to have the Plan Administrator sell part or all of his, her or its Common Shares and remit the proceeds to the Participant, the Plan Administrator is authorized to deduct a $15 transaction fee plus a $0.10 per share brokerage commission from the proceeds.
10.
These terms and conditions may be amended or supplemented by the Company at any time but, except when necessary or appropriate to comply with applicable law or the rules or policies of the Securities and Exchange Commission or any other regulatory authority, only by mailing to each Participant appropriate written notice at least 30 days prior to the effective date thereof. The amendment or supplement shall be deemed to be accepted by each Participant unless, prior to the effective date thereof, the Plan Administrator receives written notice of the termination of his, her or its account under the Plan. Any such amendment may include an appointment by the Plan Administrator in its place and stead of a successor agent under these terms and conditions, with full power and authority to perform all or any of the acts to be performed by the Plan Administrator under these terms and conditions. Upon any such appointment of any agent for the purpose of receiving dividends and distributions, the Company will be authorized to pay to such successor agent, for each Participant’s account, all dividends and distributions payable on Common Shares held in the Participant’s name or under the Plan for retention or application by such successor agent as provided in these terms and conditions.
11.
The Plan Administrator will at all times act in good faith and use its best efforts within reasonable limits to ensure its full and timely performance of all services to be performed by it under the Plan and to comply with applicable law, but assumes no responsibility and shall not be liable for loss or damage due to errors, unless such error is caused by the Plan Administrator’s negligence, bad faith, or willful misconduct or that of its employees or agents.
12.
These terms and conditions shall be governed by the laws of the State of Delaware.