As filed with the Securities and Exchange Commission on
August 28, 2006
Securities Act Registration
No. 333-
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
Form N-2
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REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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PRE-EFFECTIVE AMENDMENT NO.
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POST-EFFECTIVE AMENDMENT NO.
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Tortoise Capital Resources
Corporation
10801 Mastin Boulevard, Suite 222
Overland Park, Kansas 66210
(913) 981-1020
AGENT FOR SERVICE
David J. Schulte
10801 Mastin Boulevard, Suite 222
Overland Park, Kansas 66210
Copies of Communications to:
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Steven F. Carman, Esq.
Blackwell Sanders Peper Martin LLP
4801 Main Street, Suite 1000
Kansas City, MO 64112
(816) 983-8000
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Cynthia M. Krus, Esq.
Sutherland Asbill & Brennan LLP
1275 Pennsylvania Avenue, NW
Washington, DC 20004-2415
(202) 383-0100
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Valerie Ford
Jacob, Esq.
Fried, Frank, Harris, Shriver & Jacobson LLP
One New York Plaza
New York, NY 10004-1980
(212) 859-8000
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Approximate Date of Proposed Public
Offering: As soon as practicable after the
effective date of this Registration Statement.
If any of the 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. o
It is proposed that this filing will become effective (check
appropriate box):
o when declared
effective pursuant to Section 8(c).
CALCULATION
OF REGISTRATION FEE UNDER THE SECURITIES ACT OF 1933
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Proposed Maximum
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Title of Securities
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Aggregate
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Amount of
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Being Registered
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Offering Price(1)
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Registration Fee
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Common Stock
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$75,000,000
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$8,025
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(1) |
Estimated solely for the purpose of calculating the registration
fee.
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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 or until the Registration
Statement shall become effective on such dates as the Securities
and Exchange Commission, acting pursuant to said
Section 8(a), may determine.
The
information in this prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these
securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not
permitted.
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Subject to Completion
Preliminary Prospectus dated
August 28, 2006
PROSPECTUS
Shares
Tortoise Capital Resources
Corporation
Common Stock
We invest primarily in privately-held and micro-cap public
companies focused on the midstream and downstream segments, and
to a lesser extent the upstream segment, of the U.S. energy
infrastructure sector. Our investment objective is to provide
stockholders with current income and capital appreciation. We
focus our investments on unsecured, subordinated debt securities
and equity securities that will generally be expected to pay us
interest or dividends on a current basis. We seek to obtain
enhanced returns through warrants or other equity conversion
features and from growth in dividends in our equity investments.
Since the completion of our private placement of approximately
$46.3 million of common stock and warrants in January 2006,
we have invested a total of $22.5 million in three
portfolio companies in the U.S. energy infrastructure
sector.
We are managed by Tortoise Capital Advisors, L.L.C., a
registered investment advisor specializing in the energy
infrastructure sector. As of July 31, 2006, Tortoise
Capital Advisors, L.L.C. managed investments of approximately
$1.8 billion in the energy infrastructure sector, including
the assets of three publicly traded closed-end management
investment companies focused on the energy infrastructure sector.
We expect the public offering price of our common shares to be
between $ and
$ per share. We intend to apply
for listing of our common shares on the New York Stock Exchange
under the symbol TTO. Currently, no public market
exists for our common shares.
We are an externally managed, non-diversified closed-end
management investment company that intends to elect to be
regulated as a business development company under the Investment
Company Act of 1940 and intends to elect to be treated as a
regulated investment company under the Internal Revenue Code of
1986, as amended, effective as of December 1, 2006.
Investing in our common shares involves risks, including the
risk of leverage, that are described in the Risk
Factors section of this prospectus beginning on
page 15.
Shares of closed-end investment companies have in the past
frequently traded at a discount to their net asset value. If our
common shares trade at a discount to net asset value, it may
increase the risk of loss for purchasers in this offering.
Purchasers in this offering will experience immediate dilution.
See Dilution.
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Per Share
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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 (sales load)
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$
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$
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Proceeds, before expenses, to us(1)
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$
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$
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(1)
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Before deducting expenses payable
by us related to this offering, estimated at
$
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The underwriters may also purchase up to an
additional
common shares from us at the public offering price, less the
underwriting discount (sales load), within 30 days from the
date of this prospectus to cover overallotments. If the
underwriters exercise this option in full, the total public
offering price will be $ , the
total underwriting discount (sales load) paid by us will be
$ , and total proceeds, before
expenses, to us will be $ .
Please read this prospectus before investing, and keep it for
future reference. The prospectus contains important information
about us that a prospective investor should know before
investing in our common shares.
After the completion of this offering, we will be required to
file annual, quarterly and current reports, proxy statements and
other information about us with the Securities and Exchange
Commission. This information will be available free of charge by
contacting us at 10801 Mastin Boulevard, Suite 222,
Overland Park, Kansas 66210 or by telephone
at or
on our website at www.tortoiseadvisors.com/tcrc.cfm. The
Securities and Exchange Commission also maintains a website at
www.sec.gov that contains such information.
Neither the Securities and Exchange Commission nor any state
securities commission have approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The underwriters expect that our common shares will be ready for
delivery to purchasers on or
about ,
2006.
Merrill Lynch &
Co.
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Stifel
Nicolaus |
Wachovia
Securities |
The date of this prospectus
is ,
2006.
TABLE OF
CONTENTS
You should rely only on the information contained in this
prospectus. We have not, and the underwriters have not,
authorized any other person to provide you with different
information or to make any representations not contained in this
prospectus. If anyone provides you with different or
inconsistent information, you should not rely on it. We are not,
and the underwriters are not, making an offer to sell these
securities in any jurisdiction where the offer or sale is not
permitted. You should assume that the information contained in
this prospectus is accurate only as of the date on the front
cover of this prospectus. Our business, financial condition,
results of operations and prospects may have changed since that
date.
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PROSPECTUS
SUMMARY
This summary may not contain all of the information that you
may want to consider. You should read carefully the information
set forth under Risk Factors and other information
included in this prospectus. The following summary is qualified
by the more detailed information and financial statements
appearing elsewhere in this prospectus. Except where the context
suggests otherwise, the terms we, us,
our, the Company and Tortoise
Capital refer to Tortoise Capital Resources Corporation
and its subsidiaries; Tortoise Capital Advisors and
the Advisor refers to Tortoise Capital Advisors,
L.L.C.
The
Company
We invest primarily in privately-held and micro-cap public
companies (companies with a market capitalization of less than
$100 million) focused on the midstream and downstream
segments, and to a lesser extent the upstream segment, of the
U.S. energy infrastructure sector. We believe companies in
the energy infrastructure sector generally produce stable cash
flows as a result of their fee-based revenues and limited direct
commodity price risk. Our investment objective is to provide
stockholders with current income and capital appreciation. We
focus our investments on unsecured, subordinated debt securities
and equity securities that will generally be expected to pay us
interest or dividends on a current basis. We expect to make
certain investments through taxable subsidiaries in order to
comply with certain federal income tax rules. We seek to obtain
enhanced returns through warrants or other equity conversion
features and from growth in dividends from our equity
investments.
Companies in the midstream and downstream segments of the energy
infrastructure sector engage in the business of transporting,
processing, storing, distributing or marketing natural gas,
natural gas liquids, coal, crude oil, refined petroleum products
and renewable energy resources. Companies in the upstream
segment of the energy infrastructure sector engage in exploring,
developing, managing or producing such commodities. Our
investments are expected to range between $5 million and
$15 million per investment, although investment sizes may
be smaller or larger than this targeted range.
We raised approximately $46.3 million of gross proceeds
($42.5 million of net proceeds) in a private placement of
common shares and warrants completed in January 2006. Since then
we have invested a total of $22.5 million in three
portfolio companies in the U.S. energy infrastructure
sector. Of the $22.5 million, we have invested
$18.0 million in the midstream and downstream segments of
the U.S. energy infrastructure sector and $4.5 million
in the upstream segment of the U.S. energy infrastructure
sector.
The following table summarizes our investments in portfolio
companies as of August 24, 2006.
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Company (Segment)
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Principal Business
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Funded Investment
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Minimum Yield
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Eagle Rock Pipeline, L.P.
(Midstream)
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Gatherer and processor of natural
gas in north and east Texas
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$12.5 million in LP Interests
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7.8
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%(1)(2)
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Mowood, LLC (Downstream)
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Local natural gas distribution
with Department of Defense contract through 2014
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$1.0 million in LLC Units
$4.5 million in unsecured subordinated debt
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N/A
12.0
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Legacy Reserves LP (Upstream)
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Oil and natural gas exploitation
and development in the Permian Basin
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$4.5 million in LP Interests
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9.6
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%(2)
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Total Investments
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$22.5 million
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(1)
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In the event an initial public offering has not occurred on or
prior to September 30, 2007, the minimum distribution yield
will be 8.5% commencing on October 1, 2007 and continuing
until the occurrence of the initial public offering.
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(2)
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Actual distributions to us are based on each companys
available cash flow. Distributions can exceed the minimum
distribution yield and are subject to arrearages if below such
minimum yield.
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In addition, as of August 24, 2006, we had extended
non-binding term sheets to two prospective new portfolio
companies representing approximately $10.0 million of
prospective investments. These prospective investments are
currently expected to be in the form of debt instruments and are
both in the midstream and downstream segments of the energy
infrastructure sector. We currently expect to fund the
investments described in these non-binding agreements using a
portion of the remaining proceeds from our private placement.
The consummation of each investment will depend upon
satisfactory completion of our due diligence investigation of
the prospective portfolio company, our confirmation and
acceptance of the investment terms, structure and financial
covenants, the execution and delivery of final binding
agreements in a form mutually satisfactory to the parties, the
absence of any material adverse change and the receipt of any
necessary consents. At this time, the final forms of our
investments remain subject to additional negotiations with these
companies.
We are an externally managed, non-diversified closed-end
management investment company that intends to elect to be
regulated as a business development company (a BDC)
under the Investment Company Act of 1940 (the 1940
Act) and intends to elect to be treated as a regulated
investment company (a RIC) under the Internal
Revenue Code of 1986, as amended (the Code),
effective as of December 1, 2006. Following our intended
elections to be regulated as a BDC and to be treated as a RIC,
we will be subject to numerous regulations and restrictions.
Since our incorporation, we have been taxed as a general
business corporation under the Code and, prior to the effective
date of our intended election to be treated as a RIC, we will
continue to be taxed as a general business corporation under the
Code.
Our
Advisor
We are managed by Tortoise Capital Advisors, a registered
investment advisor specializing in the energy infrastructure
sector. As of July 31, 2006, our Advisor managed
investments of approximately $1.8 billion in the energy
infrastructure sector, including the assets of three publicly
traded closed-end management investment companies focused on the
energy infrastructure sector. Our Advisors aggregate
managed capital is among the largest of investment advisors
managing closed-end management investment companies focused on
the energy infrastructure sector. Our Advisor created the first
publicly traded closed-end management investment company focused
primarily on investing in master limited partnerships
(MLPs) in the energy infrastructure sector, Tortoise
Energy Infrastructure Corporation (TYG). Our Advisor
also manages Tortoise Energy Capital Corporation
(TYY), a publicly traded closed-end management
investment company focused primarily on investing in MLPs and
their affiliates in the energy infrastructure sector, and
Tortoise North American Energy Corporation (TYN), a
publicly traded closed-end management investment company focused
primarily on energy infrastructure investments in public
companies in the United States and in Canada. Our Advisor is
controlled by Kansas City Equity Partners, L.C.
(KCEP) and Fountain Capital Management, L.L.C.
(Fountain Capital).
Our Advisor has 20 full time employees. Four of our
Advisors senior investment professionals are responsible
for the origination, negotiation, structuring and managing of
our investments. These four senior investment professionals have
almost 70 years of combined experience in energy, leveraged
finance and private equity investing. Each of our Advisors
investment decisions will be reviewed and approved by its
investment committee, which also acts as the investment
committee for TYG, TYY and TYN.
Our Advisor has retained Kenmont Investments Management, L.P.
(Kenmont) as a sub-advisor. Kenmont is a Houston,
Texas based registered investment advisor with experience
investing in privately-held and public companies in the
U.S. energy and power sectors. Kenmont provides additional
contacts to us and enhances our number and range of potential
investment opportunities. The principals of Kenmont have
collectively created and managed private equity portfolios in
excess of $1.5 billion and have over 50 years of
experience working for investment banks, commercial banks,
accounting firms, operating companies and money management
firms. Our Advisor compensates Kenmont for the services it
provides to us. Our Advisor also indemnifies and holds us
harmless from any obligation to pay or reimburse Kenmont for any
fees or expenses incurred by Kenmont in providing such services
to us. An affiliate of Kenmont is expected to own
approximately % of the
Companys outstanding common shares upon completion of this
offering.
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U.S. Energy
Infrastructure Sector Focus
We pursue our investment objective by investing principally in a
portfolio of privately-held and micro-cap public companies in
the U.S. energy infrastructure sector. The energy
infrastructure sector can be broadly categorized into the
midstream, downstream and upstream segments. We focus our
investments in the midstream and downstream segments, but may
also have limited investments in the upstream segment, of the
U.S. energy infrastructure sector. We also intend to
diversify our investments among asset types and geographic
regions within the U.S. energy infrastructure sector.
We believe that the midstream and downstream segments of the
U.S. energy infrastructure sector will provide attractive
investment opportunities as a result of the following factors:
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Strong Supply and Demand Fundamentals. The
U.S. is the largest consumer of crude oil and natural gas
products, the third largest producer of crude oil and the second
largest producer of natural gas products in the world. The
United States Department of Energys Energy Information
Administration, or EIA, projects that domestic natural gas and
refined petroleum products consumption will increase annually by
0.8% and 1.1%, respectively, through 2030.
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Substantial Capital Requirements. We believe,
based on industry sources, that approximately $20 billion
of capital will be required by the midstream segment of the
U.S. energy infrastructure sector during 2006 and that
additional capital expenditures will occur in the future. We
also believe that existing downstream infrastructure will
require new capital investment to maintain an aging asset base,
as well as to upgrade the asset base to respond to the evolution
of supply and environmental regulations.
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Substantial Asset Ownership Realignment. We
believe that in the midstream and downstream segments of the
U.S. energy infrastructure sector, the acquisition and
divestiture market has averaged approximately $28 billion
of annual transactions between 2001 and 2005 and that such
activity, particularly in the midstream segment, will continue.
We also believe that the substantial number of domestic
companies in the downstream segment of the U.S. energy
infrastructure sector provides for attractive consolidation
opportunities.
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Renewable Energy Resources Opportunities. We
believe that the demand for project financing relating to
renewable energy resources is expected to be significant and
will provide investment opportunities consistent with our
investment objective.
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Although not part of our core focus, we believe the upstream
segment of the U.S. energy infrastructure sector will
benefit from strong long-term demand fundamentals and will
provide attractive investment opportunities as a result of the
following factors:
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Substantial Asset Ownership Realignment. We
believe that in the upstream segment of the U.S. energy
infrastructure sector, the property acquisition and divestiture
market has averaged approximately $31 billion of annual
transactions between 2001 and 2005 and that the level of
activity will remain consistent with historical levels for the
foreseeable future.
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Substantial Number of Small and Middle Market
Companies. We believe that there are more than
900 private domestic exploration and production businesses and
more than 140 publicly-listed domestic exploration and
production companies.
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Market
Opportunity
We believe the environment for investing in privately-held and
micro-cap public companies in the U.S. energy
infrastructure sector is attractive for the following reasons:
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Debt Portion of Energy Finance Market is Underserved by Many
Capital Providers. We believe that many lenders
have, in recent years, de-emphasized their service and product
offerings to small and middle market energy companies in favor
of lending to large corporate clients and managing capital
markets transactions. We believe, in addition, that many capital
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providers lack the necessary technical expertise to evaluate the
quality of the underlying assets of small and middle market
private companies and micro-cap public companies in the energy
infrastructure sector and lack a network of relationships with
such companies.
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Increased Demand Among Small and Middle Market Private
Companies for Capital. We believe many private
and micro-cap public companies have faced increased difficulty
accessing the capital markets due to a continuing preference by
investors for issuances in larger companies with more liquid
securities. Such difficulties have been magnified in
asset-focused and capital intensive industries such as the
energy infrastructure sector. We believe that the
U.S. energy infrastructure sectors high level of
projected capital expenditures and continuing acquisition and
divestiture activity will provide us with numerous attractive
investment opportunities.
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Investment Activity of Private Equity Capital
Sponsors. We believe there is a large pool of
uninvested private equity capital available for private and
micro-cap public companies, including those involved in the
U.S. energy infrastructure sector. Given the anticipated
positive long-term supply and demand dynamics of the energy
industry and the current and expected public market valuations
for companies involved in certain sectors of the energy
industry, private equity capital has been increasingly attracted
to the U.S. energy infrastructure sector. In particular, we
believe that the public market valuations of many MLPs will
continue to attract private equity capital focused on
aggregating smaller U.S. energy infrastructure assets in
order to meet the minimum size requirements for a public entity.
We expect private equity firms will seek to leverage their
investments by combining capital with senior secured loans and
mezzanine debt from other sources such as ourselves.
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Attractive Companies with Limited Access to Other
Capital. We believe there are, and will continue
to be, attractive companies that will benefit from private
equity investments prior to a public offering of their equity,
whether as an MLP or otherwise. We also believe that there are a
number of companies in the midstream and downstream segments of
the U.S. energy infrastructure sector with the same stable
cash flow characteristics as those being acquired by MLPs or
funded by private equity capital in anticipation of contribution
to an MLP. We believe that many such companies are not being
acquired by MLPs or attracting private equity capital because
they do not produce income that qualifies for inclusion in an
MLP pursuant to the Code, are perceived by such investors as too
small, or are in areas of the midstream energy infrastructure
segment in which most MLPs do not have specific expertise. We
believe that these companies represent attractive investment
candidates for us.
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Competitive
Advantages
We believe that we are uniquely suited to meet the financing
needs of companies within the U.S. energy infrastructure
sector for the following reasons:
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Existing Investment Platform and Focus on the Energy
Infrastructure Sector. We believe that our
Advisors current investment platform provides us with
significant advantages in sourcing, evaluating, executing and
managing investments. As of July 31, 2006, our Advisor
managed investments of approximately $1.8 billion in the
energy infrastructure sector, including the assets of three
publicly traded closed-end management investment companies
focused on the energy infrastructure sector. Our Advisor created
the first publicly traded closed-end management company focused
primarily on investing in MLPs involved in the energy
infrastructure sector, and its aggregate managed capital is
among the largest of those closed-end management company
advisors focused on the energy infrastructure sector.
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Experienced Management Team. The members of
our Advisors investment committee have an average of over
20 years of financial investment experience. Our
Advisors four senior investment professionals are
responsible for the negotiation, structuring and managing of our
investments and have almost 70 years of combined experience
in energy, leveraged finance and private equity investing. We
believe that the members of our Advisors investment
committee
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and the Advisors senior investment professionals have
developed strong reputations in the capital markets,
particularly in the energy infrastructure sector, that we
believe affords us a competitive advantage in identifying and
investing in energy infrastructure companies.
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Disciplined Investment Philosophy. In making
its investment decisions, our Advisor intends to continue the
disciplined investment approach that it has used since its
founding. That investment approach emphasizes current income
with the potential for enhanced returns through capital
appreciation, low volatility and minimization of downside risk.
Our Advisors investment process involves an assessment of
the overall attractiveness of the specific subsector of the
energy infrastructure sector in which a company is involved, the
prospective portfolio companys specific competitive
position within that subsector, potential commodity price,
supply and demand and regulatory concerns, the stability and
potential growth of the prospective portfolio companys
cash flows, the prospective portfolio companys management
track record and incentive structure and our Advisors
ability to structure an attractive investment.
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Flexible Transaction Structuring. We are not
subject to many of the regulatory limitations that govern
traditional lending institutions such as commercial banks. As a
result, we can be flexible in structuring investments and
selecting the types of securities in which we invest. Our
Advisors senior investment professionals have substantial
experience in structuring investments expected to balance the
needs of energy infrastructure companies with appropriate risk
control.
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Extended Investment Horizon. Unlike private
equity and venture capital funds, we are not subject to standard
periodic capital return requirements. These provisions often
force private equity and venture capital funds to seek returns
on their investments through mergers, public equity offerings or
other liquidity events more quickly than may otherwise be
desirable, potentially resulting in both a lower overall return
to investors and an adverse impact on their portfolio companies.
We believe our flexibility to make investments with a long-term
view and without the capital return requirements of traditional
private investment funds enhances our ability to generate
attractive returns on invested capital.
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Targeted
Investment Characteristics
We anticipate that our targeted investments will have the
following characteristics:
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Long-Life Assets with Stable Cash Flows and Limited Commodity
Price Sensitivity. We anticipate that most of our
investments will be made in companies with assets having the
potential to generate stable cash flows over long periods of
time. We intend to invest a portion of our assets in companies
that own and operate assets with long useful lives and that
generate cash flows by providing critical services primarily to
the producers or end-users of energy. We expect to limit the
direct exposure to energy commodity price risk in our portfolio.
We intend to target companies that have a majority of their cash
flows generated by contractual obligations.
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Experienced Management Teams with Energy Infrastructure
Focus. We target investments in companies with
management teams that have a track record of success and that
often have substantial knowledge and focus in particular
segments of the energy infrastructure sector or with certain
types of assets. We expect that our management teams
extensive experience and network of business relationships in
the energy infrastructure sector will allow us to identify and
attract portfolio company management teams that meet these
criteria.
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Fixed Asset-Intensive Investments. We
anticipate that most of our investments will be made in
companies with a relatively significant base of fixed assets
that we believe will provide for reduced downside risk compared
to making investments in companies with lower relative fixed
asset levels. As fixed asset-intensive companies typically have
less variable cost requirements, we expect they will generate
attractive cash flow growth even with limited demand-driven or
supply-driven growth.
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Limited Technological Risk. We do not intend
to target investment opportunities involving the application of
new technologies or significant geological, drilling or
development risk.
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Exit Opportunities. We focus our investments
on prospective portfolio companies that we believe will generate
a steady stream of cash flow to repay our loans or pay us equity
dividends, as well as reinvest in their respective businesses.
We expect that such internally generated cash flow will lead to
the payment of dividends or interest on, and the repayment of
the principal of, our investments in portfolio companies and
will be a key means by which we exit from our investments over
time. In addition, we seek to invest in companies whose business
models and expected future cash flows offer attractive exit
possibilities. These companies include candidates for strategic
acquisition by other industry participants and companies that
may repay our investments through an initial public offering of
common stock or other capital markets transactions. We believe
our Advisors investment experience will help us identify
such companies.
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Corporate
Information
Our offices are located at 10801 Mastin Boulevard,
Suite 222, Overland Park, Kansas 66210, our telephone
number is
(913) 981-1020
and our website is www.tortoiseadvisors.com/tcrc.cfm.
Information posted to our website should not be considered part
of this prospectus.
6
THE
OFFERING
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Common shares offered by us |
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of
our common shares,
excluding
of our common shares issuable pursuant to the overallotment
option granted to the underwriters. |
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Common shares outstanding after this offering |
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of
our common shares,
excluding
of our common shares issuable pursuant to the overallotment
option granted to the underwriters and 772,124 shares
issuable pursuant to outstanding warrants. See
Description of Capital Stock. |
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Proposed NYSE symbol |
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TTO |
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Use of proceeds |
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We intend to use the net proceeds of this offering to fund
investments in prospective portfolio companies in accordance
with our investment objectives and the strategies described in
this prospectus and for general corporate purposes. We expect to
invest the proceeds of this offering within nine months;
however, it could take a longer time to invest substantially all
of the net proceeds, depending on the availability of
appropriate investment opportunities and market conditions.
Pending such investments, we expect to invest the net proceeds
primarily in cash, cash equivalents, U.S. government
securities and other high-quality debt investments that mature
in one year or less from the date of investment. See
Use of Proceeds. |
|
Regulatory status |
|
We intend to elect to be regulated as a BDC under the 1940 Act
and intend to elect to be treated as a RIC under the Code,
effective as of December 1, 2006. |
|
Dividends |
|
We intend to distribute quarterly dividends to our stockholders
out of assets legally available for distribution. The amount of
our quarterly dividends will be determined by our board of
directors. On August 4, 2006, our board of directors
declared a $0.05 per common share special dividend and a
$0.09 per common share quarterly dividend. Both dividends
are payable to our current stockholders on September 1,
2006. See Dividends and Managements
Discussion and Analysis of Financial Condition and Results of
Operation Determining Dividends Distributed to
Stockholders. |
|
Taxation |
|
Since our incorporation, we have been taxed as a general
business corporation under Subchapter C of the Code. We intend
to elect to be treated, for federal income tax purposes, as a
RIC, effective as of December 1, 2006. As a RIC, we
generally will not pay corporate-level federal income taxes on
any ordinary income or capital gains that we distribute to our
stockholders as dividends although, if we use taxable
subsidiaries to invest in non-traded limited partnerships, such
taxable subsidiaries will pay corporate-level federal income
taxes. We may also be required to pay corporate-level federal
income taxes on gains built into our assets as of the effective
date of our RIC election. See Certain U.S. Federal
Income Tax Considerations Intended Election to be
Taxed as a RIC. To obtain and maintain the federal income
tax benefits of RIC status, we must meet specified
source-of-income
and asset diversification |
7
|
|
|
|
|
requirements and distribute annually an amount equal to at least
90% of the sum of our net ordinary income and realized net
short-term capital gains in excess of realized net long-term
capital losses, if any, out of assets legally available for
distribution. See Dividends. |
|
Investment advisor |
|
Tortoise Capital Advisors, a Delaware limited liability company
and registered investment advisor, serves as our investment
advisor. See Portfolio Management,
Management and Advisor. |
|
Fees |
|
Pursuant to our investment advisory agreement, we pay our
Advisor a fee consisting of two components a base
management fee and an incentive fee. The base management fee is
paid quarterly in arrears and is equal to 0.375% (1.5%
annualized) of our total assets (including any assets purchased
with any borrowed funds) at the end of such quarter. |
|
|
|
The incentive fee consists of two parts. The first part, the
investment income fee, is calculated and payable quarterly in
arrears and will equal 15% of the excess, if any, of our net
investment income for the quarter over a quarterly hurdle rate
equal to 2% (8% annualized) of our net assets. No investment
income fee will be paid or earned until December 8, 2006. |
|
|
|
The second part of the incentive fee, the capital gains fee,
will be determined and payable in arrears as of the end of each
calendar year (or upon termination of the investment advisory
agreement, as of the termination date), and will equal
(i) 15% of (a) our net realized capital gains on a
cumulative basis from December 8, 2005 to December 31,
2006 and thereafter during each subsequent calendar year, less
(b) any unrealized capital depreciation at the end of such
calendar year, less (ii) the aggregate amount of all
capital gains fees paid to our Advisor in prior years. Our
Advisor will use at least 25% of any capital gains fees received
from us at any time on or prior to December 8, 2007 to
purchase our common shares in the open market. See
Advisor Investment Advisory Agreement,
which also contains a discussion of our expenses. |
|
Sub-advisor |
|
Kenmont serves as our sub-advisor. Kenmont is a Houston, Texas
based registered investment advisor with experience investing in
privately-held and public companies in the U.S. energy and power
sectors. See Advisor
Sub-Advisor
Arrangement. |
|
Leverage |
|
We may borrow funds to make additional investments, and we may
grant a security interest in our assets to a lender in
connection with any such borrowings, including any borrowings by
any of our subsidiaries. We may use this practice, which is
known as leverage, to attempt to increase returns to
our stockholders. However, leverage involves significant risks.
See Risk Factors. With certain limited exceptions,
we are only allowed to borrow amounts such that our asset
coverage, as defined in the 1940 Act, equals at least 200% after
such borrowing. The amount of leverage that we may employ will
depend on our assessment of market conditions and other factors
at the time of any proposed borrowing. |
8
|
|
|
Dividend reinvestment plan |
|
We intend to have a dividend reinvestment plan for our
stockholders that will be effective after completion of this
offering. Our plan will be an opt out dividend
reinvestment plan. As a result, if we declare a dividend after
the plan is effective, stockholders cash dividends will be
automatically reinvested in additional common shares, unless
they specifically opt out of the dividend
reinvestment plan so as to receive cash dividends. Stockholders
who receive dividends in the form of common shares will
generally be subject to the same federal, state and local tax
consequences as stockholders who elect to receive their
dividends in cash. See Dividend Reinvestment Plan
and Certain U.S. Federal Income Tax
Considerations Taxation of
U.S. Stockholders. |
|
Trading at a discount |
|
Shares of closed-end investment companies frequently trade at a
discount to their net asset value. The possibility that our
shares may trade at a discount to our net asset value is
separate and distinct from the risk that our net asset value per
share may decline. Our net asset value immediately following
this offering will reflect reductions resulting from the
underwriting discount (sales load) and the amount of the
offering expenses paid. This risk may have a greater effect on
investors expecting to sell their shares soon after completion
of this offering. We cannot predict whether our shares will
trade above, at, or below net asset value. |
|
Anti-takeover provisions |
|
Our board of directors is divided into three classes of
directors serving staggered three-year terms. This structure is
intended to provide us with a greater likelihood of continuity
of management, which may be necessary for us to realize the full
value of our investments. A staggered board of directors also
may deter hostile takeovers or proxy contests, as may certain
provisions of Maryland law, our Charter or Bylaws or other
measures adopted by us. See Certain Provisions of Our
Charter and Bylaws and the Maryland General Corporation
Law. |
|
Risk factors |
|
Investing in our common shares involves certain risks relating
to our structure and our investment objective that you should
consider before deciding whether to invest in our common shares.
In addition, we expect that our portfolio will consist primarily
of securities issued by privately-held energy infrastructure
companies. These investments may involve a high degree of
business and financial risk, and they are generally illiquid.
Our portfolio companies typically will require additional
outside capital beyond our investment in order to succeed. A
large number of entities compete for the same kind of investment
opportunities as we seek. We may borrow funds to make our
investments in portfolio companies. As a result, we would be
exposed to the risks of leverage, which may be considered a
speculative investment technique. Borrowings magnify the
potential for gain and loss on amounts invested and, therefore
increase the risks associated with investing in our common
shares. Also, we are subject to certain risks associated with
valuing our portfolio, changing interest rates, accessing
additional capital, fluctuating quarterly results and operating
in a regulated environment. See Risk Factors for a
discussion of factors you should carefully consider before
deciding whether to invest in our common shares. |
9
|
|
|
Available information |
|
We have filed with the Securities and Exchange Commission, or
SEC, a registration statement on
Form N-2,
including any amendments thereto and related exhibits, under the
Securities Act of 1933, which we refer to as the Securities Act,
with respect to our common shares offered by this prospectus.
The registration statement contains additional information about
us and our common shares being offered by this prospectus. |
|
|
|
After completion of this offering, our common shares will be
registered under the Securities Exchange Act of 1934, which we
refer to as the Exchange Act, and we will be required to file
reports, proxy statements and other information with the SEC.
This information will be available at the SECs public
reference room at 100 F Street, N.E., Washington, D.C.
20549. You may obtain information about the operation of the
SECs public reference room by calling the SEC at
1-800-SEC-0330.
In addition, the SEC maintains an Internet website, at
http://www.sec.gov, that contains reports, proxy and information
statements, and other information regarding issuers, including
us, that file documents electronically with the SEC. |
10
FEES AND
EXPENSES
The following table is intended to assist you in understanding
the various costs and expenses that an investor in this offering
will bear directly or indirectly. We caution you that some of
the percentages indicated in the table below are estimates and
may vary.
|
|
|
|
|
Stockholder transaction
expenses (as a percentage of offering price):
|
|
|
|
|
Sales load
|
|
|
7.0
|
%(1)
|
Offering expenses
|
|
|
|
%(2)
|
Dividend reinvestment plan expenses
|
|
|
0.0
|
%(3)
|
|
|
|
|
|
Total stockholder transaction
expenses paid
|
|
|
|
%
|
|
|
|
|
|
Estimated annual expenses
following this offering (as a percentage of consolidated net
assets attributable to common
shares) (4):
|
|
|
|
|
Management fee payable under
advisory agreement
|
|
|
|
%(5)
|
Incentive fees payable under
investment advisory agreement
|
|
|
0.0
|
%(6)
|
Interest payments on borrowed funds
|
|
|
|
%(7)
|
Other expenses
|
|
|
|
%(8)
|
|
|
|
|
|
Total annual expenses (estimated)
|
|
|
|
%
|
|
|
|
|
|
|
|
(1)
|
The sales load (underwriting discounts) for shares sold in this
offering, which is a one-time fee paid to the underwriters, is
the only sales load paid in this offering.
|
|
(2)
|
The percentage reflects estimated offering expenses of
approximately
$
and is based on
the shares
offered in this offering (excluding shares issuable pursuant to
the overallotment option granted to the underwriters).
|
|
(3)
|
The expenses associated with the administration of our dividend
reinvestment plan are included in Other expenses.
The participants in our dividend reinvestment plan will pay a
pro rata share of brokerage commissions incurred with respect to
open market purchases, if any, made by the Plan Agent under the
Plan. For more details about the plan, see Dividend
Reinvestment Plan.
|
|
(4)
|
Net assets attributable to common shares equals net
assets (i.e., total assets less total liabilities) of
$ million
at ,
2006 plus the anticipated net proceeds from this offering and
the leverage assumptions reflected in footnote (7) below.
|
|
(5)
|
Our management fee is 1.5% of our Managed Assets. See
Advisor Investment Advisory
Agreement Management Fee.
|
|
(6)
|
We pay our Advisor a fee consisting of two
components a base management fee and an incentive
fee. The base management fee is paid quarterly in arrears and is
equal to 0.375% (1.5% annualized) of our Managed Assets at the
end of such quarter. The incentive fee consists of two parts.
The first part, the investment income fee, is calculated and
payable quarterly in arrears and will equal 15% of the excess,
if any, of our net investment income for the quarter over a
quarterly hurdle rate equal to 2% (8% annualized) of our net
assets. No investment income fee will be paid or earned until
December 8, 2006. The second part of the incentive fee, the
capital gains fee, will be determined and payable in arrears as
of the end of each calendar year (or upon termination of the
investment advisory agreement, as of the termination date), and
will equal (i) 15% of (a) our net realized capital
gains on a cumulative basis from December 8, 2005 to
December 31, 2006 and thereafter during each subsequent
calendar year, less (b) any unrealized capital depreciation
at the end of such calendar year, less (ii) the aggregate
amount of all capital gains fees paid to our Advisor in prior
years. Upon completion of this offering, our Advisor will use at
least 25% of any capital gains fee received on or prior to
December 8, 2007 to purchase our common shares in the open
market. We may have capital gains and interest income that could
result in the payment of an incentive fee to our Advisor in the
first year after completion of this offering. However, as we
cannot predict whether we will meet the necessary performance
targets, we have assumed a base incentive fee of 0% in this
table.
|
11
|
|
(7) |
We may borrow funds to make investments, including before we
have fully invested the proceeds of this offering, to the extent
we determine that additional capital would allow us to take
advantage of additional investment opportunities, if the market
for debt financing presents attractively priced debt financing
opportunities, or if our board of directors determines that
leveraging our portfolio would be in our best interests and the
best interests of our stockholders, though we have not decided
whether, and to what extent, we will finance portfolio
investments using debt. The table above assumes we borrow for
investment purposes an amount equal to 33.3% of our total assets
(including such borrowed funds) and that the annual interest
rate on the amount borrowed is %. The table presented
above estimates what our annual expenses would be, stated as a
percentage of our consolidated net assets attributable to our
common shares. The table presented below, unlike the table
presented above, assumes we do not use any form of leverage and,
as a result, our total annual expenses (estimated) would be as
follows:
|
|
|
|
|
|
Management fee
|
|
|
1.5
|
%
|
Incentive fees payable under our
Investment Advisory Agreement
|
|
|
0.0
|
%
|
Other expenses
|
|
|
|
%
|
|
|
|
|
|
Total annual expenses (estimated)
|
|
|
|
%
|
|
|
|
|
|
|
|
(8) |
Other expenses includes our estimated overhead
expenses, including payments to our transfer agent, our
administrative agent, and legal and accounting expenses. The
holders of our common shares indirectly bear the cost associated
with such other expenses.
|
Example
The following example demonstrates the projected dollar amount
of total cumulative expenses that would be incurred over various
periods with respect to a hypothetical investment in our common
shares. These amounts are based upon payment of an assumed 7.0%
sales load (the sales load paid with respect to our common
shares sold in this offering) and our payment of annual
operating expenses at the levels set forth in the table above.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1 Year
|
|
|
3 Years
|
|
|
5 Years
|
|
|
10 Years
|
|
|
You would pay the following
expenses on a $1,000 investment, assuming a 5% annual return
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
The example and the expenses in the tables above should not be
considered a representation of our future expenses, and actual
expenses may be greater or lesser than those shown. Moreover,
while the example assumes, as required by the applicable rules
of the SEC, a 5% annual return, our performance will vary and
may result in a return greater or less than 5%. In addition,
while the example assumes reinvestment of all dividends and
distributions at net asset value, participants in our dividend
reinvestment plan may receive common shares valued at the market
price in effect at that time. This price may be at, above or
below net asset value. See Dividend Reinvestment
Plan for additional information regarding our dividend
reinvestment plan.
12
SELECTED
FINANCIAL DATA
The selected financial data set forth below should be read in
conjunction with Managements Discussion and Analysis
of Financial Condition and Results of Operations and the
financial statements and related notes included in this
prospectus. Financial information for the period from
December 8, 2005 to May 31, 2006 presented below and
for the fiscal quarters ended February 28, 2006 and
May 31, 2006 have been derived from our unaudited financial
statements included elsewhere herein. The historical data is not
necessarily indicative of results to be expected for any future
period.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Period from
|
|
|
|
|
|
|
|
|
|
December 8, 2005 to
|
|
|
Fiscal Quarter Ended
|
|
|
|
May 31,
|
|
|
February 28,
|
|
|
May 31,
|
|
|
|
2006(1)
|
|
|
2006(2)
|
|
|
2006
|
|
|
Statement of operations
data:
|
|
|
|
|
|
|
|
|
|
|
|
|
Investment income
|
|
$
|
751,001
|
|
|
$
|
403,505
|
|
|
$
|
347,496
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Advisory fees
|
|
|
306,163
|
|
|
|
136,796
|
|
|
|
169,367
|
|
All other expenses
|
|
|
179,855
|
|
|
|
97,925
|
|
|
|
81,930
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses
|
|
$
|
486,018
|
|
|
$
|
234,721
|
|
|
$
|
251,297
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current tax expense
|
|
|
95,955
|
|
|
|
61,100
|
|
|
|
34,855
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Increase in net assets resulting
from operations
|
|
$
|
169,028
|
|
|
$
|
107,684
|
|
|
|
$61,344
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of
|
|
|
|
February 28,
|
|
|
May 31,
|
|
|
|
2006(2)
|
|
|
2006
|
|
|
Statement of assets and
liabilities data:
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
|
$42,845,831
|
|
|
$
|
25,758,402
|
|
Investments
|
|
|
0
|
|
|
|
16,999,991
|
|
Other assets
|
|
|
160,044
|
|
|
|
124,730
|
|
|
|
|
|
|
|
|
|
|
Total assets
|
|
|
$43,005,875
|
|
|
$
|
42,883,123
|
|
Total liabilities
|
|
|
494,720
|
|
|
|
271,608
|
|
|
|
|
|
|
|
|
|
|
Total net assets
|
|
|
$42,511,155
|
|
|
$
|
42,611,515
|
|
|
|
|
|
|
|
|
|
|
Net asset value per share
|
|
|
$13.76
|
|
|
|
$13.80
|
|
|
|
(1)
|
We were incorporated on September 8, 2005 but did not
commence operations until December 8, 2005. As a result, we
have not completed our first full fiscal year.
|
|
(2)
|
We did not commence operations until December 8, 2005. As a
result, the fiscal quarter ended February 28, 2006 was not
a full fiscal quarter.
|
13
FORWARD-LOOKING
STATEMENTS
The matters discussed in this prospectus, as well as in future
oral and written statements by our management, that are
forward-looking statements are based on current management
expectations that involve substantial risks and uncertainties
that could cause actual results to differ materially from the
results expressed in, or implied by, these forward-looking
statements. Forward-looking statements relate to future events
or our future financial performance. We generally identify
forward-looking statements by terminology such as
may, will, should,
expects, plans, anticipates,
could, intends, target,
projects, contemplates,
believes, estimates,
predicts, potential, or
continue or the negative of these terms or other
similar words. Important assumptions include our ability to
originate new investments, achieve certain levels of return, the
availability of additional capital, and the ability to maintain
certain debt to asset ratios. In light of these and other
uncertainties, the inclusion of a projection or forward-looking
statement in this prospectus should not be regarded as a
representation by us that our plans or objectives will be
achieved. The forward-looking statements contained in this
prospectus include statements as to:
|
|
|
|
|
our future operating results;
|
|
|
|
our business prospects and the prospects of our existing and
prospective portfolio companies;
|
|
|
|
the impact of investments that we expect to make;
|
|
|
|
our informal relationships with third parties;
|
|
|
|
the dependence of our future success on the general economy and
the domestic energy infrastructure sector;
|
|
|
|
the ability of our portfolio companies to achieve their
objectives;
|
|
|
|
our ability to make investments consistent with our investment
objective, including with respect to the size, nature and terms
of our investments;
|
|
|
|
our expected financings;
|
|
|
|
our regulatory structure and tax status;
|
|
|
|
our ability to operate as a business development company and a
regulated investment company;
|
|
|
|
our ability to cause a subsidiary to become a licensed Small
Business Investment Company;
|
|
|
|
the adequacy of our cash resources and working capital and our
anticipated use of proceeds;
|
|
|
|
the timing of cash flows, if any, from the operations of our
portfolio companies; and
|
|
|
|
the size or growth prospects of the energy infrastructure sector
or any category thereof.
|
For a discussion of factors that could cause our actual results
to differ from forward-looking statements contained in this
prospectus, please see the discussion under Risk
Factors. You should not place undue reliance on these
forward-looking statements. The forward-looking statements made
in this prospectus relate only to events as of the date on which
the statements are made. We undertake no obligation to update
any forward-looking statement to reflect events or circumstances
occurring after the date of this prospectus.
14
RISK
FACTORS
An investment in our common shares should not constitute a
complete investment program for any investor and involves a high
degree of risk. Due to the uncertainty in our investments, there
can be no assurance that we will achieve our investment
objective. You should carefully consider the risks described
below before making an investment decision.
Risks
Related to Our Operations
We are
a new company with limited operating history.
We were incorporated in Maryland on September 8, 2005. We
completed our private placement of common shares and warrants on
January 9, 2006. We are subject to all of the business
risks and uncertainties associated with any new business,
including the risk that we will not achieve our investment
objective and that the value of an investment in our common
shares could decline substantially.
Our
Advisor has a limited operating history and will serve as
investment advisor to other funds, which may create conflicts of
interest not in the best interest of us or our stockholders.
Our Advisor was formed in October 2002 to provide portfolio
management services to institutional and high-net worth
investors seeking professional management of their energy
infrastructure investments. Our Advisor has been managing
investments in portfolios of MLPs and other issuers in the
energy infrastructure sector since that time, including
management of the investments of TYG since February 7,
2004, TYY since May 31, 2005 and TYN since October 31,
2005. From time to time the Advisor may pursue areas of
investments in which the Advisor has more limited experience.
We, TYG, TYY and TYN have the same investment advisor, rely on
some of the same personnel and will use the same investment
committee. Our Advisors services under the investment
advisory agreement are not exclusive, and it is free to furnish
the same or similar services to other entities, including
businesses that may directly or indirectly compete with us so
long as its services to us are not impaired by the provision of
such services to others. In addition, the publicly traded funds
and private accounts managed by our Advisor may make investments
similar to investments that we may pursue. Although we currently
are not generally targeting similar investment opportunities as
other entities advised by our Advisor, this may change in the
future. Accordingly, our Advisor and the members of its
investment committee may have obligations to other investors,
the fulfillment of which might not be in the best interests of
us or our stockholders, and it is possible that our Advisor
might allocate investment opportunities to other entities, and
thus might divert attractive investment opportunities away from
us. However, our Advisor intends to allocate investment
opportunities in a fair and equitable manner consistent with our
investment objectives and strategies, and in accordance with our
written allocation policies and procedures, so that we will not
be disadvantaged in relation to any other client.
In addition, three of the five members of our investment
committee are affiliates of, but not employees of, our Advisor,
and each has other significant responsibilities with Fountain
Capital, and which conducts businesses and activities of its own
in which our Advisor has no economic interest. If these separate
activities become significantly greater or have greater profit
potential than our Advisors activities, there could be
material competition for the efforts of these members of the
investment committee.
We are
dependent upon our Advisors key personnel for our future
success.
We depend on the diligence, expertise and business relationships
of the senior management of our Advisor. The Advisors
senior investment professionals and senior management will
evaluate, negotiate, structure, close and monitor our
investments. Our future success will depend on the continued
service of the senior management team of our Advisor. The
departure of one or more senior investment professionals of our
Advisor, and particularly Terry Matlack, Abel Mojica III,
Ed Russell or David Schulte could have a material adverse effect
on our ability to achieve our investment objective and on the
value of our common shares and warrants. We will rely on certain
employees of the Advisor, especially Messrs. Matlack and
Schulte, who will
15
be devoting significant amounts of their time to non-Company
related activities of the Advisor. To the extent Mssrs. Matlack
or Schulte and other employees of the Advisor who are not
committed exclusively to us are unable to, or do not, devote
sufficient amounts of their time and energy to our affairs, our
performance may suffer.
The
incentive fee payable to our Advisor may create conflicting
incentives.
The incentive fee payable by us to our Advisor may create an
incentive for our Advisor to make investments on our behalf that
are riskier or more speculative than would be the case in the
absence of such a compensation arrangement. Because a portion of
the incentive fee payable to our Advisor is calculated as a
percentage of the amount of our net investment income that
exceeds a hurdle rate, our Advisor may imprudently use leverage
to increase the return on our investments. Under some
circumstances, the use of leverage may increase the likelihood
of default, which would disfavor the holders of our common
shares. In addition, our Advisor will receive an incentive fee
based, in part, upon net realized capital gains on our
investments. Unlike the portion of the incentive fee based on
net investment income, there is no hurdle rate applicable to the
portion of the incentive fee based on net capital gains. As a
result, our Advisor may have an incentive to pursue investments
that are likely to result in capital gains as compared to income
producing securities. Such a practice could result in our
investing in more speculative or long term securities than would
otherwise be the case, which could result in higher investment
losses, particularly during economic downturns or longer return
cycles.
We may be required to pay an incentive fee even in a fiscal
quarter in which we have incurred a loss. For example, if we
have
pre-incentive
fee net investment income above the hurdle rate and realized
capital losses, we will be required to pay the investment income
portion of the incentive fee.
The investment income portion of the incentive fee payable by us
will be computed and paid on income that may include interest
that has been accrued but not yet received in cash, and the
collection of which is uncertain or deferred. 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 investment income portion of the
incentive fee will become uncollectible. Our Advisor will not be
required to reimburse us for any such incentive fee payments.
There
is no assurance that we will become a RIC, and our Advisor has
no experience in managing a BDC and has limited experience
managing a RIC.
Although we intend to elect to be treated as a RIC under the
Code effective as of December 1, 2006, we will not, at
least initially, be a RIC. There is no assurance that we will
become a RIC. We have no operating results under either the BDC
or RIC regulatory frameworks that can demonstrate either their
effect on our business or our ability to manage our business
within these frameworks. In addition, our Advisor has no
experience in establishing or managing a BDC and has limited
experience managing a RIC. Our Advisor has no experience serving
as investment advisor to a BDC. Additionally, the time required
to establish or maintain a BDC or RIC could distract our Advisor
from its other duties. See Certain U.S. Federal
Income Tax Considerations and Regulation.
Because
we intend to distribute substantially all of our income to our
stockholders upon our intended election to be treated as a RIC,
we will continue to need additional capital to finance our
growth. If additional funds are unavailable or not available on
favorable terms, our ability to grow and execute our business
plan will be impaired.
In order to satisfy the tax requirements applicable to a RIC, to
avoid payment of excise taxes and to minimize or avoid payment
of income taxes, we intend to distribute to our stockholders
substantially all of our net ordinary income and realized net
capital gains except for certain net long-term capital gains
recognized after we become a RIC, which we intend to retain, pay
applicable income taxes with respect thereto, and elect to treat
as deemed distributions to our stockholders.
16
Our business will require a substantial amount of capital in
addition to the proceeds of this offering if we are to grow. We
may acquire additional capital from the issuance of securities
senior to our common shares, including borrowings or other
indebtedness or the issuance of additional securities. However,
we may not be able to raise additional capital in the future on
favorable terms or at all. Following our intended election to be
regulated as a BDC, we may issue debt securities, other
instruments of indebtedness or preferred stock, and we may
borrow money from banks or other financial institutions, which
we refer to collectively as senior securities, up to
the maximum amount permitted by the 1940 Act. The 1940 Act
permits us to issue senior securities in amounts such that our
asset coverage, as defined in the 1940 Act, equals at least 200%
after each issuance of senior securities. Our ability to pay
dividends or issue additional senior securities is restricted if
our asset coverage ratio is not at least 200%. If the value of
our assets declines, we may be unable to satisfy this test. If
that happens, we may be required to liquidate a portion of our
investments and repay a portion of our indebtedness at a time
when such sales may be disadvantageous. As a result of issuing
senior securities, we will also be exposed to typical risks
associated with leverage, including increased risk of loss. If
we issue preferred securities which will rank senior
to our common shares in our capital structure, the holders of
such preferred securities may have separate voting rights and
other rights, preferences or privileges more favorable than
those of our common shares, and the issuance of such preferred
securities could have the effect of delaying, deferring or
preventing a transaction or a change of control that might
involve a premium price for securityholders or otherwise be in
our best interest.
To the extent our ability to issue debt or other senior
securities is constrained, we will depend on issuances of
additional common shares to finance our operations. As a BDC, we
generally will not be able to issue additional common shares at
a price below net asset value without first obtaining required
approvals of our stockholders and our independent directors
which could constrain our ability to issue additional equity. If
we raise additional funds by issuing more of our common shares
or senior securities convertible into, or exchangeable for, our
common shares, the percentage ownership of our stockholders at
that time would decrease, and you may experience dilution.
We
will continue to be subject to corporate level income tax if we
are unable to qualify as a RIC and as a result of our expected
use of taxable subsidiaries if we do qualify as a
RIC.
To qualify as a RIC, by the end of our first taxable year as a
RIC we must eliminate any earnings and profits
accumulated while we were taxed as a general business
corporation. We intend to accomplish this by paying to our
stockholders one or more cash dividends representing
substantially all of our accumulated earnings and profits, if
any, for the period from our inception through the date on which
our intended RIC election becomes effective. We will need to
manage our cash or have access to cash to enable us to pay such
dividend or dividends. A delay in our RIC election increases the
likelihood that we will hold assets with built-in
gains as of the effective date of our RIC election. See
Certain U.S. Federal Income Tax
Considerations Intended Election to be Taxed as a
RIC.
Following our intended election to be treated as a RIC, we will
have to meet certain income source, asset diversification and
annual distribution requirements to maintain our status as a RIC
and to obtain the benefits of RIC status.
To satisfy the annual distribution requirement, we will have to
distribute to our stockholders at least 90% of our ordinary
income and realized net short-term capital gains in excess of
realized net long-term capital losses, if any, reduced by
deductible expenses. We might have difficulty satisfying the
distribution requirement because in certain cases we may have to
recognize income for tax purposes before or without receiving
cash representing such income. Certain features of the debt
instruments that we may hold, such as contracted
payment-in-kind
interest, which represents contractual interest added to the
loan balance and due at the end of the loan term, will cause
such instruments to generate original issue discount
for tax purposes. We will be required to recognize for tax
purposes original issue discount as ordinary income prior to the
receipt of cash representing such income. In addition, any
warrants that we receive in connection with our debt investments
will generally be valued as part of the negotiation process with
the particular portfolio company. As a result, a portion of the
aggregate purchase price for the debt investments and warrants
will be allocated to the warrants we receive. This also will
generally result in original issue discount. It is possible
17
that original issue discount arising from these warrants may be
significant and these warrants may not produce distributable
cash for us at the same time as we would be required to make
distributions with respect to the related original issue
discount. We may be required to include in income for tax
purposes certain other amounts that we may not receive in cash.
If we do not have sufficient distributable cash, we may have to
sell some of our assets at times not considered advantageous,
raise additional debt or equity capital, or reduce new
investment originations to meet the distribution requirement. In
addition, due to the asset coverage test applicable to us after
an election to be regulated as a BDC, we may be limited in our
ability to make distributions. Also, restrictions and provisions
in any future credit facilities or debt securities may limit our
ability to make distributions. If we are limited in our ability
to make distributions or are unable to obtain cash from other
sources to satisfy the distribution requirement, we may fail to
obtain the benefits of RIC status.
To satisfy the asset diversification requirement we will have to
diversify our holdings so that at the end of each quarter of the
taxable year: (i) at least 50% of the value of our assets
consists of cash, cash items, U.S. government securities,
securities of other RICs, and other securities if such other
securities of any one issuer do not represent more than 5% of
the value of our assets or more than 10% of the outstanding
voting securities of the issuer; and (ii) no more than 25%
of the value of our assets is invested in the securities, other
than U.S. government securities or securities of other
RICs, of (a) one issuer, (b) two or more issuers that
are controlled, as determined under applicable Code rules, by us
and that are engaged in the same similar or related trades or
business or (c) one or more qualified publicly traded
partnerships.
Equity securities issued by certain non-traded limited
partnerships in which we may invest may not produce qualifying
income for purposes of determining our compliance with the 90%
gross income test applicable to RICs. As a result, we expect to
form one or more wholly owned taxable subsidiaries to make and
hold certain investments in accordance with our investment
objective. The dividends received from such taxable subsidiaries
will be qualifying income for purposes of the 90% gross income
test. In general, the amount of cash received from such wholly
owned subsidiaries will equal the amount of cash received from
the limited partnerships as reduced by income taxes paid by such
subsidiaries.
Although we intend that any investment in such taxable
subsidiaries and non-traded limited partnerships will be within
the 25% limit set forth above, it is possible that the IRS will
not respect our determinations that certain taxable subsidiaries
and non-traded limited partnerships are not engaged in the same
or similar trades or businesses or related trades or businesses.
If any such controlled entities are determined to be engaged in
related trades or businesses, our ownership in them would be
aggregated, possibly causing a violation of the 25% limit set
forth above. Failure to meet the diversification tests may
result in our having to quickly dispose of certain investments
or raise additional capital at times we would not consider
advantageous in order to prevent the loss of RIC status. Since
most of our investments will be illiquid, such dispositions,
even if possible, may not be made at prices advantageous to us
and could result in substantial losses.
If we fail to maintain our qualification as a RIC for any
reason, we would become subject to corporate level income taxes
on all of our income, regardless of whether or not the income
was distributed. Even if we were able to maintain our
qualification as a RIC, we generally would be subject to a
corporate level tax on income we do not distribute. Moreover, if
we are a RIC and do not distribute at least 98% of our income,
we generally would be subject to a 4% excise tax on certain
undistributed income. Any such corporate level federal income
tax or excise tax would not be deductible by us or our
stockholders and would reduce the funds otherwise available to
us for use in our operations or for distribution to our
stockholders. See Certain U.S. Federal Income Tax
Considerations Taxation as a RIC.
As a
BDC, we will be subject to limitations on our ability to engage
in certain transactions with affiliates.
As a result of our intended election to be regulated as a BDC,
we will be prohibited under the 1940 Act from knowingly
participating in certain transactions with our affiliates
without the prior approval of our independent directors or the
SEC. Any person that owns, directly or indirectly, 5% or more of
our outstanding voting securities is our affiliate for purposes
of the 1940 Act and we are generally prohibited from buying or
selling any security from or to such affiliate, absent the prior
approval of our independent directors.
18
The 1940 Act also prohibits joint transactions
with an affiliate, which could include investments in the same
portfolio company (whether at the same or different times),
without prior approval of our independent directors. If a person
acquires more than 25% of our voting securities, we will be
prohibited from buying or selling any security from or to such
person, or entering into joint transactions with such person,
absent the prior approval of the SEC. Our Advisor and TYG have
previously applied to the SEC for exemptive relief to permit
TYG, TYY, TYN and other clients of our Advisor, including us, to
co-invest in negotiated private placements of securities. Unless
and until such an exemptive order is obtained, we will not
co-invest with affiliates in negotiated private placement
transactions.
If our
investments are deemed not to be qualifying assets, we could
lose our status as a BDC or be precluded from investing
according to our current business plan.
Following our intended election to be regulated as a BDC, we
must not acquire any assets other than qualifying
assets unless, at the time of and after giving effect to
such acquisition, at least 70% of our total assets are
qualifying assets. If we acquire debt or equity securities from
an issuer that has outstanding marginable securities at the time
we make such an investment, these acquired assets cannot be
treated as qualifying assets. This result is dictated by the
definition of eligible portfolio company under the
1940 Act, which in part looks to whether a company has
outstanding marginable securities.
Amendments promulgated in 1998 by the Federal Reserve expanded
the definition of a marginable security under the Federal
Reserves margin rules to include any non-equity security.
Thus, any debt securities issued by any entity are marginable
securities under the Federal Reserves current margin
rules. As a result, the staff of the SEC has raised the question
as to whether a private company that has outstanding debt
securities would qualify as an eligible portfolio
company under the 1940 Act.
Until the question raised by the staff of the SEC pertaining to
the Federal Reserves 1998 change to its margin rules has
been addressed by legislative, administrative or judicial
action, we intend to treat as qualifying assets only those debt
and equity securities that are issued by a private company that,
based on our interpretation, has no marginable securities
outstanding at the time we purchase such securities or those
that otherwise qualify as an eligible portfolio
company under the 1940 Act.
The SEC has issued proposed rules to correct the unintended
consequence of the Federal Reserves 1998 margin rule
amendments of apparently limiting the investment opportunities
of BDCs. In general, the SECs proposed rules would define
an eligible portfolio company as any company that does not have
securities listed on a national securities exchange or
association. We do not believe that these proposed rules, if
adopted, will have a material adverse effect on our operations.
If there were a court ruling or regulatory decision that
conflicts with our interpretations, our status as a BDC may be
jeopardized or we may be precluded from investing in the manner
described in this prospectus, either of which would have a
material adverse effect on our business, financial condition and
results of operations. Such a ruling or decision also may
require that we dispose of investments, which could have a
material adverse effect on us and our stockholders, because even
if we were successful in finding a buyer, we may have difficulty
in finding a buyer to purchase such investments on favorable
terms or in a sufficient time frame.
We may
choose to invest a portion of our portfolio in investments that
may be considered highly speculative and that could negatively
impact our ability to pay dividends and cause you to lose part
of your investment.
The 1940 Act permits a BDC to invest up to 30% of its assets in
investments that do not meet the test for qualifying
assets. Such investments may be made by us with the
expectation of achieving a higher rate of return or increased
cash flow with a portion of our portfolio and may fall outside
of our targeted investment criteria. These investments may be
made even though they may expose us to greater risks than our
other investments and may consequently expose our portfolio to
more significant losses than may arise from our other
investments. We may invest up to 30% of our total assets in
assets that are non qualifying assets in among other things,
high yield bonds, bridge loans, distressed debt, commercial
loans, private equity, securities
19
of public companies or secondary market purchases of securities
of target portfolio companies. Such investments could impact
negatively our ability to pay you dividends and cause you to
lose part of your investment.
If we
incur debt, it could increase the risk of investing in
us.
We may incur debt to increase our ability to make investments.
Lenders from whom we may borrow money or holders of our debt
securities will have fixed dollar claims on our assets that are
superior to the claims of our stockholders, and we may grant a
security interest in our assets in connection with our debt. In
the case of a liquidation event, those lenders or note holders
would receive proceeds before our stockholders. In addition,
debt, 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. Leverage is
generally considered a speculative investment technique. If the
value of our assets increases, then leveraging would cause the
net asset value attributable to our common shares to increase
more than it otherwise would have had we not leveraged.
Conversely, if the value of our assets decreases, leveraging
would cause the net asset value attributable to our common
shares to decline more than it otherwise would have had we not
leveraged. Similarly, any increase in our revenue in excess of
interest expense on our borrowed funds would cause our net
income to increase more than it would without the leverage. Any
decrease in our revenue would cause our net income to decline
more than it would have had we not borrowed funds and could
negatively affect our ability to make distributions on our
common shares. Our ability to service any debt that we incur
will depend largely on our financial performance and the
performance of our portfolio companies and will be subject to
prevailing economic conditions and competitive pressures.
We
operate in a highly competitive market for investment
opportunities.
We compete with public and private funds, commercial and
investment banks and commercial financing companies to make the
types of investments that we plan to make in the U.S. energy
infrastructure sector. Many of our competitors are substantially
larger and have considerably greater financial, technical and
marketing resources than us. For example, some competitors may
have a lower cost of funds and access to funding sources that
are not available to us. In addition, some of our competitors
may have higher risk tolerances or different risk assessments,
allowing them to consider a wider variety of investments and
establish more relationships than us. Furthermore, many of our
competitors are not subject to the regulatory restrictions that
the 1940 Act would impose on us as a result of our election to
be regulated as a BDC and that we will be required to comply
with in order to qualify as a RIC.
We may
not be able to invest the proceeds of this offering as quickly
as expected in the energy infrastructure sector, and our interim
investments will generate lower rates of return.
We anticipate that it may take nine months to invest
substantially all of the net proceeds of this offering in
securities meeting our investment objective. Pending investment,
we expect the proceeds of this offering will be invested in
cash, cash equivalents, U.S. government securities and
other high quality debt instruments that mature within one year
or less from the date of investment. As our temporary
investments may generate lower projected returns than our core
investment strategy, we may experience lower returns during this
period and may not be able to pay dividends during this period
comparable to the dividends that we may be able to pay when the
net proceeds of this offering are fully invested in securities
meeting our investment objective. See Use of
Proceeds.
We may
allocate the net proceeds from this offering in ways with which
you may not agree.
We will have significant flexibility in investing the net
proceeds of this offering and may use the net proceeds from this
offering in ways with which investors may not agree or for
purposes other than those contemplated at the time of this
offering or that are not consistent with our targeted investment
characteristics.
20
We
have not identified specific investments in which to invest all
of the proceeds of this offering.
As of the date of this prospectus, we have not entered into
definitive agreements for any specific investments in which to
invest the net proceeds of this offering. As a result, you will
not be able to evaluate the manner in which we invest or the
economic merits of any investments we make with the net proceeds
of this offering prior to your purchase of common shares in this
offering.
Our
quarterly results may fluctuate.
We could experience fluctuations in our quarterly operating
results due to a number of factors, including the interest rates
payable on the debt investments or the dividend rates on the
equity investments we make, the default rates on such
investments, the level of our expenses, variations in and the
timing of the recognition of realized and unrealized gains or
losses and the degree to which we encounter competition in our
markets and general economic conditions. As a result of these
factors, results for any period should not be relied upon as
being indicative of performance in future periods.
Our
portfolio may be concentrated in a limited number of portfolio
companies.
We currently have investments in a limited number of portfolio
companies. One or two of our portfolio companies may constitute
a significant percentage of our total portfolio. An inherent
risk associated with this investment concentration is that we
may be adversely affected if one or two of our investments
perform poorly or if we need to write down the value of any one
investment. Financial difficulty on the part of any single
portfolio company will expose us to a greater risk of loss than
would be the case if we were a diversified company
holding numerous investments.
Our
anticipated investments in privately-held companies present
certain challenges, including the lack of available information
about these companies and a greater inability to liquidate our
investments in an advantageous manner.
We primarily make investments in privately-held companies.
Generally, little public information will exist about these
companies, and we will be required to rely on the ability of our
Advisor to obtain adequate information to evaluate the potential
risks and returns involved in investing in these companies. If
our Advisor is unable to obtain all material information about
these companies, including with respect to operational,
regulatory, environmental, litigation and managerial risks, our
Advisor may not make a fully-informed investment decision, and
we may lose some or all of the money invested in these
companies. In addition, our Advisor may inappropriately value
the prospects of an investment, causing us to overpay for such
investment and fail to receive an expected or projected return
on its investment. Substantially all of these securities will be
subject to legal and other restrictions on resale or will
otherwise be less liquid than publicly-traded securities. The
illiquidity of these investments may make it difficult for us to
sell such investments at advantageous times and prices or in a
timely manner. In addition, if we are required to liquidate all
or a portion of our portfolio quickly, we may realize
significantly less than the value at which we previously have
recorded our investments. We also may face other restrictions on
our ability to liquidate an investment in a portfolio company to
the extent that we or one of our affiliates have material
non-public information regarding such portfolio company.
Most
of our portfolio investments are and will continue to be
recorded at fair value as determined in good faith by our board
of directors. As a result, there is and will continue to be
uncertainty as to the value of our portfolio
investments.
Most of our investments are and will be in the form of
securities or loans that are not publicly traded. The fair value
of these investments may not be readily determinable. We will
value these investments quarterly at fair value as determined in
good faith by our board of directors. We expect that our board
of directors may retain an independent valuation firm, as
requested from time to time by the independent directors, to
help them in making fair value determinations. The types of
factors that may be considered in fair value pricing of an
investment include the nature and realizable value of any
collateral, the portfolio companys earnings and
21
ability to make payments, the markets in which the portfolio
company does business, comparison to publicly traded companies,
discounted cash flow and other relevant factors. Because such
valuations are inherently uncertain, our determinations of fair
value may differ materially from the values that would have been
used if a ready market for these securities existed. As a
result, we may not be able to dispose of our holdings at a price
equal to or greater than the determined fair value, which could
have a negative impact our net asset value.
Unrealized
decreases in the value of investments in our portfolio may
impact the value of our common shares and may reduce our income
for distribution.
As a result of our becoming a regulated investment company, we
will be required to carry our investments at market value or, if
no market value is ascertainable, at the fair value as
determined in good faith by our board of directors. Decreases in
the market values or fair values of our investments will be
recorded as unrealized depreciation. Any unrealized depreciation
in our investment portfolio could be an indication of a
portfolio companys inability to meet its repayment
obligations to us with respect to the loans whose market values
or fair values decreased. This could result in realized losses
in the future and ultimately in reductions of our income
available for distribution in future periods.
When
we are a debt or minority equity investor in a portfolio
company, we may not be in a position to control that portfolio
company.
When we make minority equity investments or invest in debt, we
will be subject to the risk that a portfolio company may make
business decisions with which we may disagree, and that the
stockholders and management of such company may take risks or
otherwise act in ways that do not serve our interests. As a
result, a portfolio company may make decisions that could
decrease the value of our investments.
Our
portfolio companies may incur debt that ranks equally with, or
senior to, our investments in such companies.
Portfolio companies in which we intend to invest usually will
have, or may be permitted to incur, debt that ranks senior to,
or equally with, our investments, including debt investments. As
a result, payments on such securities may have to be made before
we receive any payments on our investments. For example, these
debt instruments may provide that the holders are entitled to
receive payment of interest or principal on or before the dates
on which we are entitled to receive payments with respect to our
investments. These debt instruments will usually prohibit the
portfolio companies from paying interest on or repaying our
investments in the event and during the continuance of a default
under such debt. In the event of 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 in
respect of our investment. After repaying its senior creditors,
a portfolio company may not have any remaining assets to use to
repay its obligation to us. In the case of debt ranking equally
with our investments, 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.
We
expect our debt investments will generally be unsecured and even
if we make a secured loan, if the assets securing a loan we make
decrease in value, we may not have sufficient collateral to
cover losses.
We believe our portfolio companies generally will be able to
repay our debt investments from their available capital, from
future capital-raising transactions or from cash flow from
operations. We expect generally that our debt investments that
we make will be unsecured. However, in the event we take a
security interest in the available assets of a portfolio
company, there is a risk that the collateral securing our
investment 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, a deterioration in a portfolio
companys financial
22
condition and prospects, including its inability to raise
additional capital, may be accompanied by a deterioration in the
value of the collateral for the investment. Moreover, we may not
have a first lien position on the collateral. Consequently, the
fact that investment is secured does not guarantee that we will
receive principal and interest payments according to the
investments terms or that we will be able to collect on
the investment should we be forced to enforce our remedies. In
addition, a portion of the assets securing our investment may be
in the form of intellectual property, if any, inventory and
equipment and, to a lesser extent, cash and accounts receivable.
Intellectual property, if any, that is securing our investment
could lose value if, among other things, the companys
rights to the intellectual property are challenged or if the
companys license to the intellectual property is revoked
or expires. Inventory may not be adequate to secure our
investment if our valuation of the inventory at the time we made
the loan was not accurate or if there is a reduction in the
demand for the inventory. Similarly, any equipment securing our
loan may not provide us with the anticipated security if there
are changes in technology or advances in new equipment that
render the particular equipment obsolete or of limited value or
if the company fails to adequately maintain or repair the
equipment. Any one or more of the preceding factors could
materially impair our ability to recover principal in a
foreclosure.
If our
investments do not meet our performance expectations, you may
not receive distributions.
We intend to make distributions on a quarterly basis to our
stockholders out of assets legally available for distribution.
We may not be able to achieve operating results that will allow
us to make distributions at a specific level or to increase the
amount of these distributions from time to time. In addition,
due to the asset coverage test applicable to us as a BDC, we may
be limited in our ability to make distributions. See
Regulation. Also, restrictions and provisions in any
future credit facilities and debt securities may limit our
ability to make distributions. If we do not distribute a certain
percentage of our income annually, we will suffer adverse tax
consequences, including failure to obtain, or possible loss of,
the federal income tax benefits allowable to RICs. See
Certain U.S. Federal Income Tax
Considerations Taxation as a RIC. We cannot
assure you that you will receive distributions at a particular
level or at all.
The
lack of liquidity in our investments may adversely affect our
business, and if we need to sell any of our investments, we may
not be able to do so at a favorable price. As a result, we may
suffer losses.
We generally expect to invest in debt securities with terms of 5
to 10 years and hold such investments until maturity, and
we do not expect that our related holdings of equity securities
will provide us with liquidity opportunities in the near-term.
We expect to invest in companies whose securities are not
publicly-traded, and whose securities will be subject to legal
and other restrictions on resale or will otherwise be less
liquid than publicly-traded securities. The illiquidity of these
investments may make it difficult for us to sell these
investments when desired. In addition, if we are required to
liquidate all or a portion of our portfolio quickly, we may
realize significantly less than the value at which we had
previously recorded these investments. As a result, we do not
expect to achieve liquidity in our investments in the near-term.
However, to maintain our intended election to be regulated as a
BDC and as a RIC, we may have to dispose of investments if we do
not satisfy one or more of the applicable criteria under the
respective regulatory frameworks. Our investments are usually
subject to contractual or legal restrictions on resale or are
otherwise illiquid because there is usually no established
trading market for such investments. The illiquidity of most of
our investments may make it difficult for us to dispose of them
at a favorable price, and, as a result, we may suffer losses.
We
will be exposed to risks associated with changes in interest
rates.
Generally, when market interest rates rise, the values of debt
securities decline, and vice versa. During periods of declining
interest rates, the issuer of a security may exercise its option
to prepay principal earlier than scheduled, forcing us to
reinvest in lower yielding securities. This is known as call or
prepayment risk. Lower grade securities frequently have call
features that allow the issuer to repurchase the security prior
to its stated maturity. An issuer may redeem a lower grade
obligation if the issuer can refinance the debt at a lower cost
due to declining interest rates or an improvement in the credit
standing of the issuer.
23
We may
not have the funds to make additional investments in our
portfolio companies.
After our initial investment in a portfolio company, we may be
called upon from time to time to provide additional funds to
such company or have the opportunity to increase our investment
through the exercise of a warrant to purchase common stock.
There is no assurance that we will make, or will have sufficient
funds to make, follow-on investments. Any decisions not to make
a follow-on investment or any inability on our part to make such
an investment may have a negative impact on a portfolio company
in need of such an investment, may result in a missed
opportunity for us to increase our participation in a successful
operation or may reduce the expected yield on the investment.
It is
likely that the terms of any long-term or revolving credit
facility we may enter into in the future could constrain our
ability to grow our business.
While there can be no assurance that we will be able to borrow
from banks or other financial institutions, we expect that we
will at some time in the future obtain a long-term or revolving
credit facility. We expect such a facility to contain customary
default provisions, such as a minimum net worth amount, a
profitability test, and a restriction on changing our business
and loan quality standards. An event of default under any credit
facility would likely result, among other things, in termination
of the availability of further funds under that facility and an
accelerated maturity date for all amounts outstanding under the
facility, which would likely disrupt our business and,
potentially, the portfolio companies whose loans we financed
through the facility. This could reduce our revenues and, by
delaying any cash payment allowed to us under our facility until
the lender has been paid in full, reduce our liquidity and cash
flow and impair our ability to grow our business and maintain
our expected status as a RIC.
If a
wholly-owned subsidiary of ours becomes licensed by the SBA, we,
and that subsidiary, will be subject to SBA
regulations.
We are currently seeking qualification as a small business
investment company (SBIC) for a to-be-formed
wholly-owned subsidiary which will be regulated by the U.S.
Small Business Administration (SBA). Under current
SBA regulations, a licensed SBIC can provide capital to those
entities that have a tangible net worth not exceeding
$18 million and an average annual fully taxed net income
not exceeding $6 million for the two most recent fiscal
years. In addition, a licensed SBIC must devote 20% of its
investment activity to those entities that have a tangible net
worth not exceeding $6 million and an average fully taxed
net income not exceeding $2 million for the two most recent
fiscal years. The SBA regulations also provide alternative size
standard criteria to determine eligibility, which depend on the
industry in which the business is engaged and are based on
factors such as the number of employees and gross sales. The SBA
regulations permit licensed SBICs to make long term loans to
small businesses, invest in the equity securities of such
businesses, and provide them with consulting and advisory
services. Further, the SBA regulations require that a licensed
SBIC be periodically examined and audited by the SBA staff to
determine its compliance with the relevant SBA regulations.
Failure to comply with the SBA regulations could result in the
loss of the SBIC license and the resulting inability to
participate in the SBA-sponsored debenture program. The SBA also
imposes a limit on the maximum amount that may be borrowed by
any single SBIC. The SBA prohibits, without prior SBA approval,
a change of control of a SBIC or transfers that
would result in any person (or a group of persons acting in
concert) owning 10% or more of a class of capital stock of a
licensed SBIC.
Changes
in laws or regulations or in the interpretations of laws or
regulations could significantly affect our operations and cost
of doing business.
We are subject to federal, state and local laws and regulations
and are subject to judicial and administrative decisions that
affect our operations, including loan originations, maximum
interest rates, fees and other charges, disclosures to portfolio
companies, the terms of secured transactions, collection and
foreclosure procedures and other trade practices. If these laws,
regulations or decisions change, we may have to incur
significant expenses in order to comply, or we may have to
restrict our operations. In addition, if we do not comply with
applicable laws, regulations and decisions, or fail to obtain
licenses that may become
24
necessary for the conduct of our business, we may be subject to
civil fines and criminal penalties, any of which could have a
material adverse effect upon our business, results of operations
or financial condition.
Our
internal controls over financial reporting may not be adequate
and our independent auditors may not be able to certify as to
their adequacy, which could have a significant and adverse
effect on our business and reputation.
We are evaluating our internal controls over financial
reporting. We plan to design enhanced processes and controls to
address any issues that might be identified. As a result, we
expect to incur significant additional expenses in the near
term, which will negatively impact our financial performance and
our ability to make distributions. This process also will result
in a diversion of managements time and attention. We
cannot be certain as to the timing of completion of our
evaluation, testing and remediation actions or the impact of the
same on our operations and may not be able to ensure that the
process is effective or that the internal controls are or will
be effective in a timely manner. Beginning with our fiscal year
ending November 30, 2007, our management will be required
to report on our internal controls over financial reporting
pursuant to Sections 302 and 404 of the Sarbanes-Oxley Act
of 2002 and rules and regulations of the SEC thereunder. We will
then be required to review on an annual basis our internal
controls over financial reporting, and on a quarterly and annual
basis to evaluate and disclose changes in our internal controls
over financial reporting. There can be no assurance that we will
successfully identify and resolve all issues required to be
disclosed prior to becoming a public company or that our
quarterly reviews will not identify additional material
weaknesses.
Risks
Related to an Investment in the U.S. Energy Infrastructure
Sector
Our
portfolio is and will continue to be concentrated in the energy
infrastructure sector, which will subject us to more risks than
if we were broadly diversified.
We invest primarily in privately-held and micro-cap public
companies in the U.S. energy infrastructure sector. Because
we are specifically focused on the energy infrastructure sector,
investments in our common shares may present more risks than if
we were broadly diversified over numerous sectors of the
economy. Therefore, a downturn in the U.S. energy
infrastructure sector would have a larger impact on us than on
an investment company that does not concentrate in one sector of
the economy. The energy infrastructure sector can be
significantly affected by the supply of and demand for specific
products and services, the supply and demand for crude oil,
natural gas, and other energy commodities, the price of crude
oil, natural gas, and other energy commodities, exploration,
production and other capital expenditures, government
regulation, world and regional events and economic conditions.
At times, the performance of securities of companies in the
energy infrastructure sector may lag the performance of
securities of companies in other sectors or the broader market
as a whole.
The
portfolio companies in which we invest are subject to variations
in the supply and demand of various energy
commodities.
A decrease in the production of natural gas, natural gas
liquids, crude oil, coal, refined petroleum products or other
energy commodities, or a decrease in the volume of such
commodities available for transportation, mining, processing,
storage or distribution, may adversely impact the financial
performance of companies in the energy infrastructure sector.
Production declines and volume decreases could be caused by
various factors, including catastrophic events affecting
production, depletion of resources, labor difficulties,
political events, OPEC actions, environmental proceedings,
increased regulations, equipment failures and unexpected
maintenance problems, failure to obtain necessary permits,
unscheduled outages, unanticipated expenses, inability to
successfully carry out new construction or acquisitions, import
supply disruption, increased competition from alternative energy
sources or related commodity prices. Alternatively, a sustained
decline in demand for such commodities could also adversely
affect the financial performance of companies in the energy
infrastructure sector. Factors that could lead to a decline in
demand include economic recession or other adverse economic
conditions, higher fuel taxes or governmental regulations,
increases in fuel economy, consumer shifts to the use of
alternative fuel sources, changes in commodity prices or weather.
25
Many
companies in the energy infrastructure sector are subject to the
risk that they, or their customers, will be unable to replace
depleted reserves of energy commodities.
Many companies in the energy infrastructure sector are either
engaged in the production of natural gas, natural gas liquids,
crude oil, refined petroleum products or coal, or are engaged in
transporting, storing, distributing and processing these items
on behalf of producers. To maintain or grow their revenues, many
customers of these companies need to maintain or expand their
reserves through exploration of new sources of supply, through
the development of existing sources, through acquisitions, or
through long-term contracts to acquire reserves. The financial
performance of companies in the energy infrastructure sector may
be adversely affected if the companies to whom they provide
service are unable to cost-effectively acquire additional
reserves sufficient to replace the natural decline.
Our
portfolio companies are and will be subject to extensive
regulation because of their participation in the energy
infrastructure sector.
Companies in the energy infrastructure sector are subject to
significant federal, state and local government regulation in
virtually every aspect of their operations, including how
facilities are constructed, maintained and operated,
environmental and safety controls, and the prices they may
charge for the products and services they provide. Various
governmental authorities have the power to enforce compliance
with these regulations and the permits issued under them, and
violators are subject to administrative, civil and criminal
penalties, including civil fines, injunctions or both. Stricter
laws, regulations or enforcement policies could be enacted in
the future that likely would increase compliance costs and may
adversely affect the financial performance of companies in the
energy infrastructure sector and the value of our investments in
those companies.
Our
portfolio companies are and will be subject to the risk of
fluctuations in commodity prices.
The operations and financial performance of companies in the
energy infrastructure sector may be directly affected by energy
commodity prices, especially those companies in the energy
infrastructure sector owning the underlying energy commodity.
Commodity prices fluctuate for several reasons, including
changes in market and economic conditions, the impact of weather
on demand or supply, levels of domestic production and imported
commodities, energy conservation, domestic and foreign
governmental regulation and taxation and the availability of
local, intrastate and interstate transportation systems.
Volatility of commodity prices, which may lead to a reduction in
production or supply, may also negatively impact the performance
of companies in the energy infrastructure sector that are solely
involved in the transportation, processing, storing,
distribution or marketing of commodities. Volatility of
commodity prices may also make it more difficult for companies
in the energy infrastructure sector to raise capital to the
extent the market perceives that their performance may be tied
directly or indirectly to commodity prices. Historically, energy
commodity prices have been cyclical and exhibited significant
volatility.
Our
portfolio companies are and will be subject to the risk of
extreme weather patterns.
Extreme weather patterns, such as hurricane Ivan in 2004 and
hurricanes Katrina and Rita in 2005, could result in significant
volatility in the supply of energy and power. This volatility
may create fluctuations in commodity prices and earnings of
companies in the energy infrastructure sector. Moreover, any
extreme weather patterns, such as hurricanes Katrina and Rita,
could adversely impact the assets and valuation of our portfolio
companies.
Acts
of terrorism may adversely affect us.
The value of our common shares and our investments could be
significantly and negatively impacted as a result of terrorist
activities, such as the terrorist attacks on the World Trade
Center on September 11, 2001; war, such as the war in Iraq
and its aftermath; and other geopolitical events, including
upheaval in the Middle East or other energy producing regions.
The U.S. government has issued warnings that energy assets,
specifically those related to pipeline infrastructure,
production facilities and transmission and distribution
26
facilities, might be specific targets of terrorist activity.
Such events have led, and in the future may lead, to short-term
market volatility and may have long-term effects on the
U.S. economy and markets. Such events may also adversely
affect our business and financial condition.
Risks
Related to this Offering
The
price of our common shares may be volatile and may decrease
substantially.
The trading price of our common shares following this offering
may fluctuate substantially. The price of the common shares that
will prevail in the market after this offering may be higher or
lower than the price you pay and the liquidity of our common
shares may be limited, in each case depending on many factors,
some of which are beyond our control and may not be directly
related to our operating performance. These factors include the
following:
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changes in the value of our portfolio of investments;
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price and volume fluctuations in the overall stock market from
time to time;
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significant volatility in the market price and trading volume of
securities of RICs, BDCs or other financial services companies;
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our dependence on the domestic energy infrastructure sector;
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our inability to deploy or invest our capital;
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fluctuations in interest rates;
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any shortfall in revenue or net income or any increase in losses
from levels expected by investors or securities analysts;
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operating performance of companies comparable to us;
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changes in regulatory policies or tax guidelines with respect to
RICs or BDCs;
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not electing or losing BDC or RIC status;
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actual or anticipated changes in our earnings or fluctuations in
our operating results or changes in the expectations of
securities analysts;
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general economic conditions and trends; or
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departures of key personnel.
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Investing
in our common shares may involve an above average degree of
risk.
The investments we make may result in a higher amount of risk,
volatility or loss of principal than alternative investment
options. Our investments in portfolio companies may be highly
speculative and aggressive, and therefore, an investment in our
common shares may not be suitable for investors with lower risk
tolerance.
Prior
to this offering, there has been no public market for our common
shares, and we cannot assure you that the market price of our
common shares will not decline following the
offering.
Before this offering, there was no public trading market for our
common shares, and we cannot assure you that one will develop or
be sustained after this offering. We cannot predict the prices
at which our common shares will trade. The initial public
offering price for our common shares will be determined through
our negotiations with the underwriters and may not bear any
relationship to the market price at which it will trade after
this offering or to any other established criteria of our value.
Shares of companies offered in an initial public offering often
trade at a discount to the initial offering price due to
underwriting discounts (sales loads) and related offering
expenses. In addition, shares of closed-end investment companies
have in the past frequently traded at discounts to their net
asset values and our stock may also be discounted in the market.
27
This characteristic of closed-end investment companies is
separate and distinct from the risk that our net asset value per
share may decline. We cannot predict whether our common shares
will trade above, at or below our net asset value. The risk of
loss associated with this characteristic of closed-end
investment companies may be greater for investors expecting to
sell common shares purchased in this offering soon after the
offering. In addition, if our common shares trade below their
net asset value, we will generally not be able to issue
additional common shares at their market price without first
obtaining the approval of our stockholder and our independent
directors to such issuance.
Provisions
of the Maryland General Corporation Law and our charter and
bylaws could deter takeover attempts and have an adverse impact
on the price of our common shares.
The Maryland General Corporation Law and our charter and bylaws
contain provisions that may have the effect of discouraging,
delaying or making difficult a change in control of our company
or the removal of our incumbent directors. We will be covered by
the Business Combination Act of the Maryland General Corporation
Law to the extent that such statute is not superseded by
applicable requirements of the 1940 Act. However, our board of
directors has adopted a resolution exempting us from the
Business Combination Act any business combination between us and
any person to the extent that such business combination receives
the prior approval of our board, including a majority of our
directors who are not interested persons as defined in the 1940
Act.
Under our charter, our board of directors is divided into three
classes serving staggered terms, which will make it more
difficult for a hostile bidder to acquire control of us. In
addition, our board of directors may, without stockholder
action, authorize the issuance of shares of stock in one or more
classes or series, including preferred stock. See
Description of Capital Stock. Subject to compliance
with the 1940 Act, our board of directors may, without
stockholder action, amend our charter to increase the number of
shares of stock of any class or series that we have authority to
issue. The existence of these provisions, among others, may have
a negative impact on the price of our common shares and may
discourage third party bids for ownership of our company. These
provisions may prevent any premiums being offered to you for
shares of our common shares.
If a
substantial number of our common shares becomes available for
sale and are sold in a short period of time, the market price of
our common shares could decline.
If our stockholders sell substantial amounts of our common
shares in the public market following this offering, the market
price of our common shares could decrease. Upon completion of
this offering we will
have common
shares outstanding. Of these shares, the shares sold in this
offering will be freely tradeable. We and our executive officers
and directors will be subject to agreements with the
underwriters that restrict our and their ability to transfer our
stock for a period of 180 days from the date of this
prospectus. The
180-day
restricted period will be automatically extended if
(1) during the last 17 days of the
180-day
restricted period the Company issues an earning release to
material news or a material event relating to the Company occurs
or (2) prior to the expiration of the
180-day
restricted period, the Company announces that it will release
earnings results or becomes aware that material news or a
material event will occur during the
16-day
period beginning on the last day of the
180-day
restricted period, in which case the restrictions described
above will continue to apply until the expiration of the
18-day
period beginning on the issuance of the earnings release or the
occurrence of the material news or material event. Our other
current stockholders will be subject to agreements that restrict
their ability to transfer our stock for a period of 90 days
from the date of this offering, subject to limited exceptions,
including our filing of a registration statement. See
Shares Eligible for Future Resale and
Underwriting. After the
lock-up
agreements expire, an aggregate of additional common shares will
be eligible for sale in the public market in accordance with
Rule 144 under the Securities Act. See
Shares Eligible for Future Sale.
If you
purchase our common shares in this offering, you will experience
immediate dilution.
If you purchase our common shares in this offering, you will
experience immediate dilution of
$ per share because the price
that you pay will be greater than the pro forma net asset value
per share of
28
the shares you acquire. This dilution is in large part due to
the expenses incurred by us in connection with the consummation
of this offering and the fact that our earlier investors paid,
on average, less than the initial public offering price per
share when they purchased their shares.
There
will be dilution of the value of our common shares when the
warrants are exercised.
As a result of our private placement completed in January 2006,
772,124 warrants were sold, permitting the holders thereof to
acquire a like number of our common shares upon payment of the
exercise price. The warrants we have sold represent the right to
purchase, in the aggregate, % of our common shares
upon completion of this offering. These warrants will become
exercisable upon the completion of this offering of our common
shares. The issuance of additional common shares upon the
exercise of the warrants, if the warrants are exercised at a
time when the exercise price is less than the net asset value
per share of our common shares, will have a dilutive effect on
the value of our common shares sold in this offering.
29
ELECTION
TO BE REGULATED AS A BUSINESS DEVELOPMENT COMPANY
AND A REGULATED INVESTMENT COMPANY
We intend to elect to be regulated as a BDC under the 1940 Act.
Since our incorporation, we have been taxed as a general
business corporation under Subchapter C of the Code. We intend
to elect to be treated as a RIC under Subchapter M of the Code
effective as of December 1, 2006. There can be no assurance
that we will be successful in becoming a BDC or a RIC.
Our intended elections to be regulated as a BDC and to be
treated as a RIC will require certain actions and effect a
number of changes to our activities and policies.
Investment
Reporting
In accordance with the requirements of Article 6 of
Regulation S-X,
we will report all of our investments, including loans, at
market value or, for investments that do not have a readily
available market value, their fair value as
determined in good faith by our board of directors. Subsequent
changes in these values will be reported through our
consolidated statement of operations under the caption of
unrealized appreciation (depreciation) on
investments. See Determination of Net Asset
Value.
Income
Tax
We intend to elect to be treated as a RIC under Subchapter M of
the Code effective as of December 1, 2006. This election
should reduce or eliminate the federal corporate-level income
tax we will be required to pay after the effective date of such
election. So long as we meet certain minimum distribution,
source-of-income
and asset diversification requirements, we generally will be
required to pay federal income taxes only on the portion of our
taxable income we do not distribute (actually or constructively)
and certain built-in gains. However, if we use taxable
subsidiaries to invest in non-traded limited partnerships, such
taxable subsidiaries will pay federal income taxes on their
respective taxable incomes. From the completion of this offering
through the end of our current tax year, we will continue to be
taxed as a general business corporation under Subchapter C of
the Code. Any capital gains we recognize after completion of
this offering and prior to the effective date of our intended
election to be taxed as a RIC will, when distributed to you, be
taxed as ordinary income and not as capital gains, as would have
been the case had we been taxed as a RIC as of the date of this
offering. Our current tax year will end on November 30,
2006 unless we adopt a fiscal tax year ending before that date
in order to elect to be treated as a RIC prior to
December 1, 2006. See Certain U.S. Federal
Income Tax Considerations.
In addition, by the end of our first taxable year as a RIC, we
also must eliminate any earnings and profits
accumulated while we were taxable as a general business
corporation. We intend to accomplish this by paying to our
stockholders one or more cash dividends representing
substantially all of our accumulated earnings and profits, if
any, for the period from our inception through the date on which
our intended RIC election becomes effective. The amount of these
dividends will be based on a number of factors, including our
results of operations through the date on which our intended RIC
election becomes effective. We will need to manage our cash or
have access to cash to enable us to pay such dividend or
dividends. Any dividend of accumulated earnings and profits
would be taxable to U.S. stockholders in the manner
described under Certain U.S. Federal Income Tax
Considerations Current Federal Income Taxation of
the Company.
Dividend
Policy
As a general business corporation taxed under Subchapter C of
the Code, we have not made distributions to our stockholders,
but have instead retained all of our income, including capital
gains. On August 4, 2006, our board of directors declared a
$0.05 per common share special dividend and a
$0.09 per common share quarterly dividend. Both dividends
are payable to our current stockholders on September 1,
2006. We intend to pay quarterly dividends. Following our
intended election to be treated as a RIC under the Code, we
intend to distribute to our stockholders all or substantially
all of our income, except for certain realized net long-term
capital gains.
30
After the effective date of our intended RIC election, we intend
to make deemed distributions to our stockholders of any retained
net long-term capital gains. If this happens, you will be
treated as if you received an actual distribution of the capital
gains and reinvested the net after-tax proceeds in us. You also
may be eligible to claim a tax credit (or, in certain
circumstances, a tax refund) equal to your allocable share of
the tax we pay on the retained net long-term capital gains
deemed distributed. See Dividends and
Managements Discussion and Analysis of Financial
Condition and Results of Operation Determining
Dividends Distributed to Stockholders.
Warrants
Our outstanding warrants are exercisable upon the completion of
this offering, subject to a
lock-up
period with respect to common shares received upon exercise of
warrants of 90 calendar days immediately following this
offering. Each warrant will entitle the holder thereof to
purchase one common share at the exercise price per common share
of the greater of (i) $15.00 per common share or
(ii) the net asset value of our common shares on the date
of our election to become a BDC. All warrants will expire on the
day before the sixth anniversary of this offering. No fractional
warrant shares will be issued upon exercise of the warrants. We
will pay to the holder of the warrant at the time of exercise an
amount in cash equal to the current market value of any such
fractional warrant shares.
Exemptive
Relief
In connection with this offering and our intended election to be
regulated as a BDC, we expect to file a request with the SEC for
exemptive relief to allow us to take certain actions that would
otherwise be prohibited by the 1940 Act, as applicable to BDCs.
Although we cannot provide any assurance that we will receive
any such exemptive relief, we expect to request that the SEC
allow us to exclude any indebtedness issued to the SBA by a
to-be-formed wholly-owned subsidiary for which we are seeking
qualification as a SBIC, from the 200% asset coverage
requirements applicable to us.
Our Advisor and TYG have applied to the SEC for exemptive relief
to permit TYG, TYY, TYN, us and our and their respective
affiliates to make such investments. Unless and until we obtain
an exemptive order, we will not co-invest with our affiliates in
negotiated private placement transactions. We cannot guarantee
that the requested relief will be granted by the SEC. Unless and
until we obtain an exemptive order, our Advisor will not
co-invest its proprietary accounts or other clients assets
in negotiated private transactions in which we invest. Until we
receive exemptive relief, our Advisor will observe a policy for
allocating opportunities among its clients that takes into
account the amount of each clients available cash and its
investment objectives. As a result of one or more of these
situations, we may not be able to invest as much as we otherwise
would in certain investments or may not be able to liquidate a
position as quickly.
31
USE OF
PROCEEDS
The net proceeds of this offering will be approximately
$
after deducting the underwriting discount (sales load) and
estimated offering expenses of
$
paid by us. We will use the net proceeds to make investments in
accordance with our investment objective and to pay our
operating expenses. We anticipate that substantially all of the
net proceeds of this offering will be used, as described above,
within nine months but in no event longer than two years. We
have not allocated any portion of the net proceeds of this
offering to any particular investment.
Pending investment, we expect the net proceeds of this offering
will initially be invested in cash, cash equivalents,
U.S. government securities and other high-quality debt
investments that mature in one year or less from the date of
investment.
DIVIDENDS
On August 4, 2006, our board of directors declared a
$0.05 per common share special dividend and a
$0.09 per common share quarterly dividend. The special
dividend was declared for the period from our inception through
our second fiscal quarter and the quarterly dividend was
declared for our third fiscal quarter. Both dividends are
payable to our current stockholders on September 1, 2006.
We intend to distribute quarterly dividends to our stockholders
out of assets legally available for distribution. The amount of
our future quarterly distributions will be determined by our
board of directors.
Following our intended RIC election, we intend to distribute to
our stockholders with respect to each taxable year at least 90%
of our ordinary income and realized net short-term capital gains
in excess of realized net long-term capital losses, if any,
reduced by deductible expenses. In addition, in order to avoid
certain excise taxes to which we will be subject once we have
elected to be treated as a RIC, we expect to distribute (or be
deemed to distribute) during each calendar year an amount at
least equal to the sum of (i) 98% of our ordinary income
for the calendar year, (ii) 98% of our capital gain net
income (i.e., realized capital gains in excess of realized
capital losses, if any, subject to certain adjustments) for the
one-year period ending on October 31 of that calendar year
(or possibly November 30, if we so elect), and
(iii) any ordinary income and capital gain net income for
preceding years that were not distributed during such years. If
we become a RIC, we will not be subject to excise taxes on
amounts on which we pay corporate income tax (such as retained
net capital gains). We intend to have an opt out
dividend reinvestment plan following the completion of this
offering. As a result, after the plan is effective, unless a
stockholder opts out, distributions will be reinvested in our
common shares pursuant to our dividend reinvestment plan. See
Certain U.S. Federal Income Tax Considerations
and Dividend Reinvestment Plan.
As a result of our intended election to be regulated as a BDC,
we will be prohibited from paying dividends if doing so would
cause us to fail to maintain the asset coverage ratios
stipulated by the 1940 Act. Dividends also may be limited by the
terms of any of our borrowings. It is our objective to invest
our assets and structure our borrowings so as to permit stable
and consistently growing dividends. However, there can be no
assurances that we will achieve that objective or that our
results will permit the payment of any cash dividends. For a
more detailed discussion, see Regulation. See also
Certain U.S. Federal Income Tax
Considerations Taxation as a RIC.
32
CAPITALIZATION
The following table sets forth (i) our actual
capitalization as of May 31, 2006 and (ii) our
capitalization as adjusted to reflect the effects of the sale of
our common shares in this offering at an assumed public offering
price of
$
per share, after deducting the underwriting discounts (sales
load) and offering expenses payable by us. You should read this
table together with Use of Proceeds and our
statement of assets and liabilities included elsewhere in this
prospectus.
|
|
|
|
|
|
|
|
|
|
|
As of May 31, 2006
|
|
|
|
Actual
|
|
|
As Adjusted
|
|
|
Cash and cash equivalents
|
|
|
$25,758,402
|
|
|
$
|
|
|
Investments
|
|
|
16,999,991
|
|
|
|
|
|
Net assets applicable to common
stockholders:
|
|
|
|
|
|
|
|
|
Common shares, par value
$0.001 per share, 100,000,000 common shares authorized,
3,088,596 common shares outstanding,
actual; common
shares outstanding, as adjusted(1)
|
|
|
$3,089
|
|
|
$
|
|
|
Additional paid in capital
|
|
|
42,533,453
|
|
|
|
|
|
Accumulated net investment income
|
|
|
74,973
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net assets applicable to common
stockholders
|
|
|
$42,611,515
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
Excludes common shares that may be issued pursuant to
underwriters overallotment option and that are issuable
upon the exercise of outstanding warrants.
|
33
DILUTION
Our net asset value as of May 31, 2006 was approximately
$42.6 million, or $13.80 per common share. Net asset
value per share represents the amount of our total assets minus
our total liabilities, divided by the 3,088,596 common
shares that were outstanding on May 31, 2006, excluding the
effect of any warrants.
After giving effect to the sale
of
common shares in this offering at the initial public offering
price of $ per share and after
deducting the sales load and estimated offering expenses payable
by us, our net asset value as of May 31, 2006 would have
been approximately
$ million,
or $ per share. This
represents an immediate increase in net asset value of
$ per share to our existing
stockholders and an immediate dilution of
$ per share to new investors who
purchase common shares in the offering at the assumed initial
public offering price. The following table shows this immediate
per share dilution:
|
|
|
|
|
|
|
|
|
Assumed initial public offering
price per common share
|
|
|
|
|
|
$
|
|
|
Net asset value per common share
as of May 31, 2006, before giving effect to this offering
|
|
$
|
13.80
|
|
|
|
|
|
Increase in net asset value per
common share attributable to new investors in this offering
|
|
$
|
|
|
|
|
|
|
Net asset value per common share
after this offering
|
|
|
|
|
|
$
|
|
|
Dilution per common share to new
investors
|
|
|
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
The following table summarizes, as of May 31, 2006, the
number of common shares purchased from us, the total
consideration paid to us and the average price per share paid by
existing stockholders and to be paid by new investors purchasing
common shares in this offering, at the initial public offering
price of $ per share and before
deducting the sales load and estimated offering expenses payable
by us. This table does not assume the exercise of any
outstanding warrants or the exercise of the underwriters
overallotment option.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common Shares Purchased
|
|
|
Total Consideration
|
|
|
Average Price
|
|
|
|
Number
|
|
|
Percent
|
|
|
Amount
|
|
|
Percent
|
|
|
Per Share
|
|
|
Existing stockholders
|
|
|
3,088,596
|
|
|
|
|
%
|
|
$
|
46,340,446
|
|
|
|
|
%
|
|
$
|
15.00
|
|
New investors
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
|
|
|
|
|
%
|
|
$
|
|
|
|
|
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
To the extent the underwriters overallotment option is
exercised, or any outstanding warrants are exercised, there will
be further reduction in the percentage of our common shares held
by new investors.
The following table summarizes, as of May 31, 2006, the
same information set forth in the table above, except, that the
table below assumes the exercise of all outstanding warrants at
the price of $ per share and the
full exercise of the underwriters overallotment option.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common Shares Purchased
|
|
|
Total Consideration
|
|
|
Average Price
|
|
|
|
Number
|
|
|
Percent
|
|
|
Amount
|
|
|
Percent
|
|
|
Per Share
|
|
|
Existing stockholders
|
|
|
3,088,596
|
|
|
|
|
%
|
|
$
|
46,340,446
|
|
|
|
|
%
|
|
$
|
15.00
|
|
New investors
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
|
|
|
|
|
%
|
|
$
|
|
|
|
|
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
34
MANAGEMENTS
DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion should be read in conjunction with
our financial statements and related notes and other financial
information appearing elsewhere in this prospectus. In addition
to historical information, the following discussion and other
parts of this prospectus contain forward-looking information
that involves risks and uncertainties. Our actual results could
differ materially from those anticipated by such forward-looking
information due to the factors discussed under Risk
Factors, Forward-Looking Statements and
elsewhere in this prospectus.
Overview
We invest primarily in privately-held and micro-cap public
companies (companies with a market capitalization of less than
$100,000,000) focused on the midstream and downstream segments,
and to a lesser extent the upstream segment, of the
U.S. energy infrastructure sector. We believe companies in
the energy infrastructure sector generally produce stable cash
flows as a result of their fee-based revenues and have limited
direct commodity price risk. Our investment objective is to
provide stockholders with current income and capital
appreciation. We focus our investments on unsecured,
subordinated debt securities and equity securities that will
generally be expected to pay us interest or dividends on a
current basis. We seek to obtain capital appreciation through
warrants or other equity conversion features and from growth in
dividends in our equity investments.
We intend to elect to be regulated as a BDC under the 1940 Act
and intend to elect to be treated as a RIC under the Code
effective as of December 1, 2006. Following our intended
elections to be regulated as a BDC and to be treated as a RIC,
we will be subject to numerous regulations and restrictions.
Prior to the effective date of our election to be treated as a
RIC, we have been and will be taxed as a general business
corporation under the Code.
Critical
Accounting Policies
The financial statements included in this prospectus are based
on the selection and application of critical accounting
policies, which require management to make significant estimates
and assumptions. Critical accounting policies are those that are
both important to the presentation of our financial condition
and results of operations and require managements most
difficult, complex or subjective judgments. While our critical
accounting policies are discussed below, Note 2 in the
notes to our financial statements included in this prospectus
provides more detailed disclosure of all of our significant
accounting policies.
Valuation
of Portfolio Investments
The Company intends to invest primarily in illiquid securities
that generally will be subject to restrictions on resale, will
have no established trading market and will be valued on a
quarterly basis. Fair value is intended to be the amount for
which an investment could be exchanged in an orderly disposition
over a reasonable period of time between willing parties other
than in a forced liquidation or sale. Because of the inherent
uncertainty of valuation, the fair values of such investments,
which will be determined in accordance with procedures approved
by the Companys Board of Directors, may differ materially
from the values that would have been used had a ready market
existed for the investments. See Determination of Net
Asset Value.
Interest
and Fee Income Recognition
Interest income will be recorded on an accrual basis to the
extent that such amounts are expected to be collected. When
investing in instruments with an original issue discount or
payment-in-kind
interest, the Company will accrue interest income during the
life of the investment, even though the Company will not
necessarily be receiving cash as the interest is accrued.
Commitment and facility fees generally will be recognized as
income over the life of the underlying loan, whereas due
diligence, structuring, transaction
35
service, consulting and management service fees for services
rendered to portfolio companies generally will be recognized as
income when services are rendered.
Dividends
to Stockholders
The character of dividends paid during the year from net
investment income or net realized gains may differ from their
ultimate characterization for federal income tax purposes.
Portfolio
and Investment Activity
We were formed as a Maryland corporation on September 8,
2005, commenced business operations December 8, 2005 and
completed our private placement of common shares and warrants on
January 9, 2006. As of May 31, 2006, our investment
portfolio included private equity investments in two portfolio
companies representing approximately $17.0 million of
invested capital. As of July 31, 2006, our investment
portfolio totaled $22.5 million, including private equity
investments in three portfolio companies representing
approximately $18.0 million and a subordinated debt
investment in one of those portfolio companies representing
$4.5 million.
In addition, as of May 31, 2006, we had extended
non-binding term sheets to two prospective new portfolio
companies representing approximately $10.0 million of debt
investments. These investments are subject to finalization of
our due diligence and approval process, as well as negotiation
of definitive agreements with each prospective portfolio company
and, as a result, may not result in completed investments. See
Portfolio Companies.
Our investments are expected to range between $5 million
and $15 million per investment, although investment sizes
may be smaller or larger than this targeted range. We currently
expect our debt investments generally to have a term of five to
ten years and to bear interest at either a fixed or floating
rate.
Results
of Operations
Distributions
Received from Investments
We generate revenues in the form of interest payable on the debt
investments that we hold, and in the form of capital gains and
dividends on dividend-paying equity securities, warrants,
options, or other equity interests that we have acquired in our
portfolio companies. We currently intend to structure our debt
investments to provide for quarterly interest payments. In
addition to the cash yields received on our loans, in some
instances, our loans may also include any of the following: end
of term payments, exit fees, balloon payment fees or prepayment
fees, any of which may be required to be included in income
prior to receipt. In some cases we may structure debt
investments to provide that interest is not payable in cash, or
not entirely in cash, but is instead payable in securities of
the issuer or is added to the principal of the debt. The
amortization of principal on our debt investments may be
deferred until maturity. We intend to acquire equity securities
that pay cash dividends on a recurring or customized basis. We
also expect to generate revenue in the form of commitment,
origination, structuring or diligence fees, fees for providing
managerial assistance and possibly consulting fees.
After our formation on September 8, 2005, we completed our
private placement of common shares and warrants on
January 9, 2006. As a result, there is no period with which
to compare our results of operations for the period from
September 8, 2005 through November 30, 2005 or the
fiscal quarter ended May 31, 2006.
Total distributions received from our investments for the period
from inception to May 31, 2006 were $751,001. All of this
amount was received from short term investments held pending our
anticipated investments in portfolio companies. We expect to
generate additional investment income as we invest the net
proceeds of this offering in U.S. energy infrastructure
companies.
36
Expenses
As an externally managed investment company, our operating
expenses consist primarily of the advisory fee, other
administrative operating expenses and income taxes. Expenses
during the period from December 8, 2005 through
May 31, 2006 totaled $486,018. This amount consisted
mainly of advisory fees of $306,163, professional fees of
$83,597, directors fees of $43,743 and other general and
administrative expenses. The tax expense during the period from
December 8, 2005 through May 31, 2006 totaled $95,955.
Determining
Dividends Distributed to Stockholders
Our portfolio generates cash flow to us in the form of interest,
dividends, and gain, loss and return of capital. When our board
of directors determines the amount of any dividend we expect to
pay our stockholders, it will review amounts generated by our
investments, less our total expenses. The total amounts
generated by our investments consists of both total income and
return of capital, as we expect to invest in some entities
generating distributions to us that include a return of capital
component for accounting and tax purposes on our books. The
total income received from our investments includes the amount
received by us as cash distributions from equity investments,
paid-in-kind
distributions, and dividend and interest payments. Our total
expenses includes current or anticipated operating expenses, and
total leverage costs, if any.
On August 4, 2006, our board of directors declared a
$0.05 per common share special dividend and a
$0.09 per common share quarterly dividend. The special
dividend was declared for the period from our inception through
our second fiscal quarter and the quarterly dividend was
declared for our third fiscal quarter. Both dividends are
payable to our current stockholders on September 1, 2006.
Our Board of Directors will review the dividend rate quarterly,
and may adjust the quarterly dividend throughout the year. See
Dividends.
Taxation
of our Distributions
We invest a portion of our portfolio in partnerships and limited
liability companies (whether directly or indirectly through
taxable subsidiaries), which generally have larger distributions
of cash than the accounting income which they generate.
Accordingly, the distributions we receive typically include a
return of capital component for accounting and tax purposes.
Dividends declared and paid by us in any year generally will
differ from our taxable income for that year, as such dividends
may include the distribution of current year taxable income or
returns of capital.
We are currently taxed as a general business corporation for
federal income tax purposes, but we intend to elect to be
treated as a RIC effective as of December 1, 2006. As long
as we qualify as a RIC, we will not be taxed on our net ordinary
income or our realized net capital gains, to the extent that
such taxable income and gains are distributed to stockholders on
a timely basis. We may be required, however, to pay federal
income taxes on any unrealized net built-in gains in the assets
held by us during the period in which we were not (or in which
we fail to qualify as) a RIC that are recognized within the
10-year
period following the effective date of our intended RIC
election, unless we either make a special election to pay
corporate-level tax on such built-in gain at the time of our RIC
election or an exception applies. See Certain
U.S. Federal Income Tax Considerations Intended
Election to be Taxed as a RIC. We intend to take all steps
necessary to qualify for the federal tax benefits allowable to
RICs. Unless a stockholder elects otherwise, following
completion of this offering, our dividends will be reinvested in
additional common shares through our dividend reinvestment plan.
See Dividend Reinvestment Plan.
By the end of our first taxable year as a RIC, we also must
eliminate any earnings and profits accumulated while we were
taxable as a general business corporation. We intend to
accomplish this by paying to our stockholders one or more cash
dividends representing substantially all of our accumulated
earnings and profits, if any, for the period from our inception
through the date on which our intended RIC election becomes
effective. The amount of these dividends will be based on a
number of factors, including our results of operations through
the date on which our intended RIC election becomes effective.
We will need to manage our cash or have access to cash to enable
us to pay such dividend or dividends. Any dividend of
accumulated earnings and profits would be taxable to U.S.
stockholders in the manner described above under Certain
U.S.
37
Federal Income Tax Considerations. These dividends, if
any, would be in addition to the dividends we intend to pay of
at least 90% of our investment company taxable income to satisfy
the Annual Distribution Requirements.
While we are a RIC, we generally intend to retain any realized
net long-term capital gains in excess of realized net short-term
capital losses and to deem such net long-term capital gain as
distributed to our stockholders. We then will pay taxes on such
retained net long-term capital gain that is deemed distributed,
and expect such tax payment to generally give rise to a credit
that our U.S. individual stockholders can use against their
U.S. federal income tax obligations or that may be refunded
to the extent it exceeds the U.S. stockholders
liability for federal income tax. We believe that reinvesting
gains inside our company will enable us to grow our dividends to
our stockholders, which will offer them an opportunity for an
attractive total return. We may, in the future, make actual
distributions to our stockholders of some or all of such net
long-term capital gains. See Certain U.S. Federal
Income Tax Considerations. There can be no assurance that
we will qualify for treatment as a RIC or be able to maintain
RIC status.
Liquidity
and Capital Resources
At the completion of our private placement in January 2006, we
were capitalized with approximately $46.3 million of gross
proceeds ($42.5 million of net proceeds) from the sale of
3,088,596 units. Each unit consisted of four of our common
shares and one warrant to purchase one common share. Since the
completion of the private placement, we have invested a total of
$22.5 million in three portfolio companies and paid
expenses related to our private placement of $549,372. As of
August 24, 2006, we had extended term sheets to two
prospective portfolio companies representing approximately
$10.0 million of prospective investments. After we have
used the net proceeds of our private placement and this
offering, we expect to raise additional capital to support our
future growth through future equity offerings, issuances of
senior securities or future borrowings, to the extent permitted
by the 1940 Act.
Borrowings
In the future we may fund a portion of our investments through
borrowings from banks or other lenders, issuing debt securities,
or by creating a wholly-owned subsidiary that issues debentures
to the SBA through an SBA program. On March 31, 2006, an
application to be licensed by the SBA as a SBIC under
Section 301(c) of the Small Business Investment Company Act
of 1958 was filed on behalf of our to-be-formed wholly-owned
subsidiary. If we are able to obtain financing under such
program, we will be subject to regulation and oversight by the
SBA, including requirements that we maintain certain minimum
financial ratios, that our subsidiary invest in portfolio
companies that do not exceed certain average net income or net
worth guidelines established by the SBA, and other covenants
imposed by the SBA. There can be no assurances that we will be
able to incur debt on terms acceptable to us, obtain a SBIC
license or be able to participate in the SBA-sponsored debenture
program. See Risk Factors If a wholly-owned
subsidiary of ours becomes licensed by the SBA, we, and that
subsidiary, will be subject to SBA regulations. We do not
expect to incur indebtedness until the proceeds of this offering
have been substantially invested in securities that meet our
investment objective, although we may incur indebtedness earlier
under the SBA-sponsored debenture program.
Contractual
Obligations
We have entered into an investment advisory agreement with our
Advisor pursuant to which our Advisor has agreed to:
(i) serve as our investment advisor in exchange for the
consideration set forth therein; (ii) furnish us with the
facilities and administrative services necessary to conduct our
day-to-day
operations and to provide on our behalf managerial assistance to
certain of our portfolio companies; and (iii) grant us a
non-exclusive royalty-free license to use the
Tortoise name and other intellectual property. See
Advisor Investment Advisory Agreement.
Payments under the investment advisory agreement in future
periods will consist of: (i) a base management fee based on
a percentage of the value of our managed assets, and
(ii) an incentive fee, based on
38
our investment income and our net capital gains. Our Advisor has
waived the portion of the incentive fee based on investment
income until December 8, 2006. Our Advisor, and not us,
pays the compensation and allocable routine overhead expenses of
all investment professionals of its staff. We pay our Advisor an
amount equal to our allocable portion of overhead and certain
other expenses incurred by our Advisor in performing its
obligations under the investment advisory agreement. No payments
are due with respect to the license granted to us under the
investment advisory agreement. See Advisor
Investment Advisory Agreement Management Fees.
The investment advisory agreement may be
terminated: (i) by us without penalty upon not more
than 60 days written notice to the Advisor, or (ii) by
the Advisor without penalty upon not less than 60 days
written notice to us.
Our Advisor has also entered into a sub-advisory agreement with
Kenmont. Kenmont is an investment advisor with experience
investing in privately-held and public companies in the
U.S. energy and power sectors. Kenmont provides additional
contacts and enhances the number and range of potential
investment opportunities in which we have the opportunity to
invest. Kenmont Special Opportunities Master Fund LP
purchased 666,666 of our common shares and 166,666 of our
warrants in our private placement. Pursuant to the sub-advisory
agreement with Kenmont, Kenmont (i) assists in identifying
potential investment opportunities, subject to the right of
Kenmont to first show investment opportunities that it
identifies to other funds or accounts for which Kenmont is the
primary advisor, (ii) assists, as requested by our Advisor
but subject to a limit of 20 hours per month, in the
analysis of investment opportunities, and (iii) if
requested by our Advisor, will assist in hiring an additional
investment professional for the Advisor who will be located in
Houston, Texas and for whom Kenmont will make office space
available. Kenmont does not make any investment decisions on our
behalf, but will recommend potential investments to, and assist
in the investment analysis undertaken by, our Advisor. Our
Advisor compensates Kenmont for the services it provides to us.
Our Advisor indemnifies and holds us harmless from any
obligation to pay or reimburse Kenmont for any fees or expenses
incurred by Kenmont in providing such services to us. Kenmont
will be indemnified by the Advisor for certain claims related to
the services it provides and obligations assumed under the
sub-advisory agreement. In addition to any termination rights we
may have under the 1940 Act, the sub-advisory agreement between
the Advisor and Kenmont may be terminated by our Advisor in
limited circumstances.
Other than the investment advisory agreement with our Advisor,
we do not have any off-balance sheet arrangement that has or is
reasonably likely to have a current or future effect on our
financial condition, changes in financial condition, revenues or
expenses, results of operations, liquidity, capital
expenditures, or capital resources.
Quantitative
and Qualitative Disclosure About Market Risk
Our business activities contain elements of market risk. We
consider changes in interest rates to be our principal market
risk. We consider the management of risk essential to conducting
our businesses. Accordingly, our risk management systems and
procedures are designed to identify and analyze our risks, to
set appropriate policies and limits and to continually monitor
these risks and limits by means of reliable administrative and
information systems and other policies and programs. Our
investment income is affected by changes in various interest
rates, including LIBOR and prime rates. As of July 31,
2006, approximately 20% of our investment portfolio bore
interest at fixed rates.
39
THE
COMPANY
We invest primarily in privately-held and micro-cap public
companies focused on the midstream and downstream segments, and
to a lesser extent the upstream segment, of the U.S. energy
infrastructure sector. We believe companies in the energy
infrastructure generally produce stable cash flows as a result
of their fee-based revenue and limited direct commodity price
risk. Our investment objective is to provide stockholders with
current income and capital appreciation. We focus our
investments on unsecured, subordinated debt securities and
equity securities that will generally be expected to pay us
interest or dividends on a current basis. We expect to make
certain investments through taxable subsidiaries in order to
comply with certain federal income tax rules. We seek to obtain
enhanced returns through warrants or other equity conversion
features and from growth in dividends in our equity investments.
Companies in the midstream and downstream segments of the energy
infrastructure sector engage in the business of transporting,
processing, storing, distributing, or marketing natural gas,
natural gas liquids, coal, crude oil, refined petroleum products
and renewable energy resources. Companies in the upstream
segment of the energy infrastructure sector engage in exploring,
developing, managing, or producing such commodities. Our
investments are expected to range between $5 million and
$15 million per investment, although investment sizes may
be smaller or larger than this targeted range.
We raised approximately $46.3 million of gross proceeds
($42.5 million of net proceeds) in a private placement of
common shares and warrants completed in January 2006. Since the
completion of that private placement, we have invested a total
of $22.5 million in three companies in the U.S. energy
infrastructure sector. Of the $22.5 million, we have
invested $18.0 million in the midstream and downstream
segments of the U.S. energy infrastructure sector and
$4.5 million in the upstream segment of the
U.S. energy infrastructure sector.
The following table summarizes our investments in portfolio
companies as of August 24, 2006.
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Company (Segment)
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Principal Business
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Funded Investment
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Minimum Yield
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Eagle Rock Pipeline, L.P.
(Midstream)
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Gatherer and processor of natural
gas in north and east Texas
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$12.5 million in LP Interests
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7.8
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%(1)(2)
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Mowood, LLC (Downstream)
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Local natural gas distribution
with Department of Defense contract through 2014
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$1.0 million in LLC Units
$4.5 million in unsecured subordinated debt
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N/A
12.0
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%
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Legacy Reserves LP (Upstream)
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Oil and natural gas exploitation
and development in the Permian Basin
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$4.5 million in LP Interests
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9.6
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%(2)
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Total Investments
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$22.5 million
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(1) |
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In the event an initial public offering has not occurred on or
prior to September 30, 2007, the minimum distribution yield
will be 8.5% commencing on October 1, 2007 and continuing
until the occurrence of the initial public offering. |
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(2) |
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Actual distributions to us are based on each companys
available cash flow. Distributions can exceed the minimum
distribution yield and are subject to arrearages if below such
minimum yield. |
In addition, as of August 24, 2006, we had extended
non-binding term sheets to two prospective new portfolio
companies representing approximately $10.0 million of
prospective investments. These prospective investments are
currently expected to be in the form of debt instruments and are
both in the midstream and downstream segments of the energy
infrastructure sector. We currently expect to fund the
investments described in these non-binding agreements using a
portion of the remaining proceeds from our private placement.
The consummation of each investment will depend upon
satisfactory completion of our due
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diligence investigation of the prospective portfolio company,
our confirmation and acceptance of the investment terms,
structure and financial covenants, the execution and delivery of
final binding agreements in a form mutually satisfactory to the
parties, the absence of any material adverse change and the
receipt of any necessary consents. At this time, the final forms
of our investments remain subject to additional negotiations
with these companies.
We are an externally managed, non-diversified closed end
investment company that intends to elect to be regulated as a
BDC under the 1940 Act and intends to elect to be treated as a
RIC under the Code effective as of December 1, 2006.
Following our intended elections to be regulated as a BDC and to
be treated as a RIC, we will be subject to numerous regulations
and restrictions. Prior to the effective date of our election to
be treated as a RIC, we have been and will be taxed as a general
business corporation under the Code. There can be no assurance
that we will be successful in becoming a RIC.
Our
Advisor
We are managed by Tortoise Capital Advisors, a registered
investment advisor specializing in the energy infrastructure
sector. As of July 31, 2006, our Advisor managed
investments of approximately $1.8 billion in the energy
infrastructure, including the assets of three publicly traded
closed-end management investment companies focused on the energy
infrastructure sector. Our Advisors aggregate managed
capital is among the largest of investment advisors managing
closed-end management companies focused on the energy
infrastructure sector. Our Advisor created TYG, the first
publicly traded closed-end management company focused primarily
on investing in MLPs in the energy infrastructure sector. Our
Advisor also manages TYY, a publicly traded closed-end
management company focused primarily on investing in MLPs and
their affiliates in the energy infrastructure sector, and TYN, a
publicly traded closed-end management company focused primarily
on energy infrastructure investments in public companies in the
United States and in Canada. The members of our Advisors
investment committee have an average of 20 years of
financial investment experience.
Our Advisor is controlled by KCEP and Fountain Capital.
Our Advisor has 20 full time employees. Four of our
Advisors senior investment professionals are responsible
for the origination, negotiation, structuring and managing of
our investments. These four senior investment professionals have
almost 70 years of combined experience in energy, leveraged
finance and private equity investing. Each of our Advisors
investment decisions will be reviewed and approved by its
investment committee, which also acts as the investment
committee for TYG, TYY and TYN.
Our Advisor has retained Kenmont as a sub-advisor. Kenmont is a
Houston, Texas based registered investment advisor with
experience investing in privately-held and public companies in
the U.S. energy and power sectors. Kenmont provides
additional contacts to us and enhances our number and range of
potential investment opportunities. The principals of Kenmont
have collectively created and managed private equity portfolios
in excess of $1.5 billion and have over 50 years of
experience working for investment banks, commercial banks,
accounting firms, operating companies and money management
firms. Our Advisor compensates Kenmont for the services it
provides to us. Our Advisor also indemnifies and holds us
harmless from any obligation to pay or reimburse Kenmont for any
fees or expenses incurred by Kemont in providing such services
to us. An affiliate of Kenmont is expected to own
approximately % of the
Companys outstanding common shares upon completion of this
offering. See Advisor Sub-Advisor
Arrangement.
U.S. Energy
Infrastructure Sector Focus
We pursue our investment objective by investing principally in a
portfolio of privately-held and micro-cap public companies in
the U.S. energy infrastructure sector. The energy
infrastructure sector can be broadly categorized as follows:
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Midstream the gathering, processing, storing
and transmission of energy resources and their byproducts in a
form that is usable by wholesale power generation, utility,
petrochemical,
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industrial and gasoline customers, including pipelines, gas
processing plants, liquefied natural gas facilities and other
energy infrastructure.
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Downstream the refining, marketing and
distribution of refined energy sources, such as customer-ready
natural gas, natural gas liquids, propane and gasoline, to
end-user customers, and customers engaged in the generation,
transmission and distribution of power and electricity.
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Upstream the development and extraction of
energy resources, including natural gas, crude oil and coal from
onshore and offshore geological reservoirs as well as from
renewable sources, including agricultural, thermal, solar, wind
and biomass.
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We focus our investments in the midstream and downstream
segments, and to a lesser extent the upstream segment, of the
U.S. energy infrastructure sector. We also intend to
diversify our investments among asset types and geographic
regions within the U.S. energy infrastructure sector.
We believe that the midstream segment of the U.S. energy
infrastructure sector will provide attractive investment
opportunities as a result of the following factors:
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Strong Supply and Demand Fundamentals. The
U.S. is the largest consumer of crude oil and natural gas
products, the third largest producer of crude oil and the second
largest producer of natural gas products in the world. The
United States Department of Energys Energy Information
Administration, or EIA, annually projects that domestic natural
gas and refined petroleum products consumption will increase by
0.8% and 1.1%, respectively, through 2030. The midstream energy
infrastructure segment provides the critical link between the
suppliers of crude oil, natural gas, refined products and other
forms of energy, whether domestically-sourced or imported, and
the end-user. Midstream energy infrastructure companies are
typically asset-intensive, with minimal variable cost
requirements, providing operating leverage that allows them to
generate attractive cash flow growth even with limited
demand-driven or supply-driven growth.
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Substantial Capital Requirements. We believe,
based on industry sources, that approximately $20 billion
of capital will be invested in the midstream segment of the
U.S. energy infrastructure sector during 2005. We believe
that additional capital expenditures in the U.S. energy
infrastructure sector will result from the signing of the Energy
Policy Act of 2005 on August 8, 2005, which incorporates a
number of incentives for additional investments in the energy
infrastructure sector including business investment tax credits
and accelerated tax depreciation.
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Substantial Asset Ownership Realignment. We
believe that in the midstream and downstream segments of the
U.S. energy infrastructure sector, the acquisition and
divestiture market has averaged approximately $28 billion
of annual transactions between 2001 and 2005. We believe that
such activity, particularly in the midstream segment, will
continue as: larger integrated companies with high cost
structures continue to divest energy infrastructure assets to
smaller, more entrepreneurial companies; MLPs continue to pursue
acquisitions to drive distribution growth; and private equity
firms seek to aggregate midstream U.S. energy
infrastructure assets for contribution to existing or
newly-formed MLPs or other public or private entities.
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We believe the downstream segment of the U.S. energy
infrastructure sector also will provide attractive investment
opportunities as a result of the following factors:
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Strong Demand Fundamentals. We believe that
long-term projected growth in demand for the natural gas and
refined petroleum products delivered to end-users by the
downstream segment of the U.S. energy infrastructure
sector, combined with the 1.5% annual growth in domestic power
consumption projected by the EIA through 2030, will result in
continued capital expenditures and investment opportunities in
the downstream segment of the U.S. energy infrastructure
sector.
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Requirements to Develop New Downstream
Infrastructure. With the trend towards increased
heavy crude supply, high light-heavy crude oil
pricing differentials and the impact of recent
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domestic capital-intensive environmental mandates, we believe
that existing downstream infrastructure will require new capital
investment to maintain an aging asset base as well as to upgrade
the asset base to respond to the evolution of supply and
environmental regulations.
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Substantial Number of Downstream
Companies. There are numerous domestic companies
in the downstream segment of the U.S. energy infrastructure
sector. For example, it is estimated by industry sources that
over 8,000 retail propane companies operate in the U.S., and the
EIA reports there are 114 domestic natural gas local
distribution companies. We believe the substantial number of
domestic companies in the downstream segment of the
U.S. energy infrastructure sector provides consolidation
opportunities, particularly among propane distributors.
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Renewable Energy Resources Opportunities. The
increasing domestic demand for energy, recently passed energy
legislation and the rising cost of carbon-based energy supplies
have all encouraged a renewed and growing interest in renewable
energy resources. We believe that downstream renewable energy
resource assets will be brought on-line, particularly for
producing and processing ethanol. The demand for related project
financing is expected to be significant and we believe will
provide investment opportunities consistent with our investment
objective.
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Although not part of our core focus, we believe the upstream
segment of the U.S. energy infrastructure sector will
benefit from strong long-term demand fundamentals and will
provide attractive investment opportunities as a result of the
following factors:
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Substantial Asset Ownership Realignment. We
believe that in the upstream segment of the U.S. energy
infrastructure sector, the property acquisition and divestiture
market has averaged $31 billion of annual transactions
between 2001 and 2005. During such period, of those transactions
for which values have been reported, more than 78% have a value
of less than $100 million. We believe this activity has
been largely independent of commodity price fluctuations, and
instead, has been driven by a combination of strategic business
decisions and the desire to efficiently deploy capital. We
believe that the fundamental factors that drive the upstream
segment of the U.S. energy infrastructure sector
acquisition and divestiture market will cause the level of
activity to remain consistent with historical levels for the
foreseeable future.
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Substantial Number of Small and Middle Market
Companies. We believe that there are more than
900 private domestic exploration and production businesses and
more than 140 publicly-listed domestic exploration and
production companies. Small and middle market exploration and
production companies play an important role in the upstream
segment of the U.S. energy infrastructure sector, with a
significant share of all domestic natural gas production and
crude oil and natural gas drilling activity.
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Market
Opportunity
We believe the environment for investing in privately-held and
micro-cap public companies in the U.S. energy
infrastructure sector is attractive for the following reasons:
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Debt Portion of Energy Finance Market is Underserved by Many
Capital Providers. We believe that many lenders
have, in recent years, de-emphasized their service and product
offerings to small and middle market energy companies in favor
of lending to large corporate clients and managing capital
markets transactions. We believe, in addition, that many capital
providers lack the necessary technical expertise to evaluate the
quality of the underlying assets of small and middle market
private companies and micro-cap public companies in the energy
infrastructure sector and lack a network of relationships with
such companies.
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Increased Demand Among Small and Middle Market Private
Companies for Capital. We believe many private
and micro-cap public companies have faced increased difficulty
accessing the capital markets due to a continuing preference by
investors for issuances in larger companies with more liquid
securities. Such difficulties have been magnified in
asset-focused and capital
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intensive industries such as the U.S. energy infrastructure
sector. We believe that the energy infrastructure sectors
high level of projected capital expenditures and continuing
acquisition and divestiture activity will provide us with
numerous attractive investment opportunities.
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Investment Activity Private Equity Capital
Sponsors. We believe there is a large pool of
uninvested private equity capital available for private and
micro-cap public companies, including those involved in the
energy infrastructure sector. Given the anticipated positive
long-term supply and demand dynamics of the energy industry and
the current and expected public market valuations for companies
involved in certain sectors of the energy industry, private
equity capital has been increasingly attracted to the energy
infrastructure sector. In particular, we believe that the public
market valuations of many MLPs will continue to attract private
equity capital focused on aggregating smaller energy
infrastructure assets in order to meet the minimum size
requirements for a public entity. We expect private equity firms
will seek to leverage their investments by combining capital
with senior secured loans and mezzanine debt from other sources
such as ourselves.
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Attractive Companies with Limited Access to Other
Capital. We believe there are, and will continue
to be, attractive companies that will benefit from private
equity investments prior to a public offering of their equity,
whether as an MLP or otherwise. We also believe that there are a
number of companies in the midstream and downstream segments of
the U.S. energy infrastructure sector with the same stable
cash flow characteristics as those being acquired by MLPs or
funded by private equity capital in anticipation of contribution
to an MLP. We believe that many such companies are not being
acquired by MLPs or attracting private equity capital because
they do not produce income that qualifies for inclusion in an
MLP pursuant to the Internal Revenue Code, are perceived by such
investors as too small, or are in areas of the midstream energy
infrastructure segment in which most MLPs do not have specific
expertise. We believe that these companies represent attractive
investment candidates for us.
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Competitive
Advantages
We believe that we are uniquely suited to meet the financing
needs of the U.S. energy infrastructure sector for the
following reasons:
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Existing Investment Platform with Experience and Focus on the
Energy Infrastructure Sector. We believe that our
Advisors current investment platform provides us with
significant advantages in sourcing, evaluating, executing and
managing investments. As of July 31, 2006, our Advisor
managed investments of approximately $1.8 billion in the
energy infrastructure sector, including the assets of three
publicly traded closed-end management investment companies
focused on the energy infrastructure sector. Our Advisor created
the first publicly traded closed-end management investment
company focused primarily on investing in MLPs involved in the
energy infrastructure sector, and its aggregate managed capital
is among the largest of those closed-end management investment
company advisors focused on the energy infrastructure sector.
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Experienced Management Team. The members of
our Advisors investment committee have an average of over
20 years of financial investment experience. Our
Advisors four senior investment professionals are
responsible for the negotiation, structuring and managing of our
investments and have almost 70 years of combined experience
in energy, leveraged finance and private equity investing. We
believe that as a result of this extensive experience, the
members of our Advisors investment committee and the
Advisors senior investment professionals have developed
strong reputations in the capital markets, particularly in the
energy infrastructure sector, that we believe affords us a
competitive advantage in identifying and investing in energy
infrastructure companies.
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Disciplined Investment Philosophy. In making
its investment decisions, our Advisor intends to continue the
disciplined investment approach that it has utilized since its
founding. That
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investment approach emphasizes significant current income with
the potential for enhanced returns through capital appreciation,
low volatility and minimization of downside risk. Our
Advisors investment process involves an assessment of the
overall attractiveness of the specific subsector of the energy
infrastructure segment in which a company is involved, the
prospective portfolio companys specific competitive
position within that subsector, potential commodity price,
supply and demand and regulatory concerns, the stability and
potential growth of the prospective portfolio companys
cash flows, the prospective portfolio companys management
track record and incentive structure and our Advisors
ability to structure an attractive investment.
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Flexible Transaction Structuring. We are not
subject to many of the regulatory limitations that govern
traditional lending institutions such as commercial banks. As a
result, we can be flexible in structuring investments and
selecting the types of securities in which we invest. Our
Advisors senior investment professionals have substantial
experience in structuring investments expected to balance the
needs of energy infrastructure companies with appropriate risk
control.
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Extended Investment Horizon. Unlike private
equity and venture capital funds, we are not subject to standard
periodic capital return requirements. These provisions often
force private equity and venture capital funds to seek returns
on their investments through mergers, public equity offerings or
other liquidity events more quickly than may otherwise be
desirable, potentially resulting in both a lower overall return
to investors and an adverse impact on their portfolio companies.
We believe our flexibility to make investments with a long-term
view and without the capital return requirements of traditional
private investment funds enhances our ability to generate
attractive returns on invested capital.
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Targeted
Investment Characteristics
We anticipate that our targeted investments will have the
following characteristics:
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Long-Life Assets with Stable Cash Flows and Limited Commodity
Price Sensitivity. We anticipate that most of our
investments will be made in companies with assets having the
potential to generate stable cash flows over long periods of
time. We intend to invest a portion of our assets in companies
that own and operate assets with long useful lives and that
generate cash flows by providing critical services primarily to
the producers or end-users of energy. We expect to limit the
direct exposure to commodity price risk in our portfolio. We
intend to target companies that have a majority of their cash
flows generated by contractual obligations.
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Experienced Management Teams with Energy Infrastructure
Focus. We intend to make investments in companies
with management teams that have a track record of success and
who often have substantial knowledge and focus in particular
segments of the energy infrastructure sector or with certain
types of assets. We expect that our management teams
extensive experience and network of business relationships in
the energy infrastructure sector will allow us to identify and
attract portfolio company management teams that meet these
criteria.
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Fixed Asset-Intensive. We anticipate that most
of our investments will be made in companies with a relatively
significant base of fixed assets that we believe will provide
for reduced downside risk compared to making investments in
companies with lower relative fixed asset levels. As fixed
asset-intensive companies typically have less variable cost
requirements, we expect they will generate attractive cash flow
growth even with limited demand-driven or supply-driven growth.
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Limited Technological Risk. We do not intend
to target investment opportunities involving the application of
new technologies or significant geological, drilling or
development risk.
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Exit Opportunities. We focus our investments
on prospective portfolio companies that we believe will generate
a steady stream of cash flow to repay our loans or pay us equity
dividends, as well as reinvest in their respective businesses.
We expect that such internally generated cash
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flow will lead to the payment of dividends or interest on, and
the repayment of the principal of, our investments in portfolio
companies and will be a key means by which we exit from our
investments over time. In addition, we seek to invest in
companies whose business models and expected future cash flows
offer attractive exit possibilities. These companies include
candidates for strategic acquisition by other industry
participants and companies that may repay our investments
through an initial public offering of common stock or other
capital markets transactions. We believe our Advisors
investment experience will help us identify such companies.
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Investment
Overview
Our portfolio primarily is, and we expect it to continue to be,
comprised of debt and equity securities acquired through
individual investments of approximately $5 million to
$15 million in privately-held and micro-cap public
companies in the U.S. energy infrastructure sector. It is
anticipated that any publicly-traded companies in which we
invest will have a market capitalization of less than
$100 million.
Investment
Selection
Our Advisor uses an investment selection process modeled after
the investment selection process utilized by our Advisor in
connection with the publicly traded closed-end funds it manages,
TYG, TYY and TYN. Four of our Advisors senior investment
professionals, Messrs. Matlack, Mojica, Russell and
Schulte, will be responsible for the negotiation, structuring
and managing of our investments, and will operate under the
oversight of our Advisors investment committee.
Target
Portfolio Company Characteristics
We have identified several quantitative, qualitative and
relative value criteria that we believe are important in
identifying and investing in prospective portfolio companies.
While these criteria provide general guidelines for our
investment decisions, we caution you that not all of these
criteria may be met by each prospective portfolio company in
which we choose to invest. Generally, we intend to utilize our
access to information generated by our Advisors investment
professionals to identify prospective portfolio companies and to
structure investments efficiently and effectively.
Midstream
and Downstream Segment Focus
We focus on prospective companies in the midstream and
downstream segments, and to a lesser extent the upstream
segment, of the U.S. energy infrastructure sector.
Qualified
Management Team
We generally require that our portfolio companies have an
experienced management team with a verifiable track record in
the relevant product or service industry. We will seek companies
with management teams having strong technical, financial,
managerial and operational capabilities, established appropriate
governance policies, and proper incentives to induce management
to succeed and act in concert with our interests as investors,
including having meaningful equity investments.
Current
Yield Plus Growth Potential
We focus on prospective portfolio companies with a distinct
value orientation in which we can invest at relatively low
multiples of operating cash flow, that generate a current cash
return at the time of investment and that possess good prospects
for growth. Typically, we would not expect to invest in
start-up
companies or companies having speculative business plans.
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Distributions
Received from Investments
We generate revenues in the form of interest payable on the debt
investments that we hold, and in the form of capital gains and
dividends on dividend-paying equity securities, warrants,
options, or other equity interests that we have acquired in our
portfolio companies. We currently intend to structure our debt
investments to provide for quarterly or other periodic interest
payments. In addition to the cash yields received on our
investments, in some instances, our investments may also include
any of the following: end of term payments, exit fees, balloon
payment fees or prepayment fees, any of which may be required to
be included in income prior to receipt. In some cases we may
structure debt investments to provide that interest is not
payable in cash, or not entirely in cash, but is instead payable
in securities of the issuer or is added to the principal of the
debt. The amortization of principal on our debt investments may
be deferred until maturity. We also intend to acquire equity
securities that pay cash dividends on a recurring or customized
basis. We also expect to generate revenue in the form of
commitment, origination, structuring, or diligence fees, fees
for providing managerial assistance, and possibly consulting
fees.
Strong
Competitive Position
We focus on prospective portfolio companies that have developed
strong market positions within their respective markets and that
are well positioned to capitalize on growth opportunities. We
seek to invest in companies that demonstrate competitive
advantages that should help to protect their market position and
profitability.
Sensitivity
Analyses
We generally perform sensitivity analyses to determine the
effects of changes in market conditions on any proposed
investment. These sensitivity analyses may include, among other
things, simulations of changes in energy commodity prices,
changes in interest rates, changes in economic activity and
other events that would affect the performance of our
investment. In general, we will not commit to any proposed
investment that will not provide at least a minimum return under
any of these analyses and, in particular, the sensitivity
analysis relating to changes in energy commodity prices.
Investment
Process and Due Diligence
Although our Advisor uses research provided by third parties
when available, primary emphasis is placed on proprietary
analysis and valuation models conducted and maintained by our
Advisors in-house investment professionals.
In conducting due diligence, our Advisor uses available public
information and information obtained from its relationships with
former and current management teams, vendors and suppliers to
prospective portfolio companies, investment bankers, consultants
and other advisors.
The due diligence process followed by our Advisors
investment professionals is highly detailed and structured. Our
Advisor exercises discipline with respect to company valuation
and institutes appropriate structural protections in our
investment agreements. After our Advisors investment
professionals undertake initial due diligence of a prospective
portfolio company, our Advisors investment committee will
approve the initiation of more extensive due diligence by our
Advisors investment professionals. At the conclusion of
the diligence process, our Advisors investment committee
is informed of critical findings and conclusions. The due
diligence process typically includes:
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review of historical and prospective financial information;
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review and analysis of financial models and projections;
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for many midstream and upstream investments, review of third
party engineering reserve reports and internal engineering
reviews;
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on-site
visits;
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legal reviews of the status of the potential portfolio
companys title to any assets serving as collateral and
liens on such assets;
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environmental diligence and assessments;
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interviews with management, employees, customers and vendors of
the prospective portfolio company;
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research relating to the prospective portfolio companys
industry, regulatory environment, products and services and
competitors;
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review of financial, accounting and operating systems;
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review of relevant corporate, partnership and other loan
documents; and
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research relating to the prospective portfolio companys
management and contingent liabilities, including background and
reference checks using our Advisors industry contact base
and commercial data bases and other investigative sources.
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Additional due diligence with respect to any investment may be
conducted on our behalf by our legal counsel and accountants, as
well as by other outside advisors and consultants, as
appropriate.
Upon the conclusion of the due diligence process, our
Advisors investment professionals present a detailed
investment proposal to our Advisors investment committee.
The Advisors four senior investment professionals have
almost 70 years of combined experience in energy, leveraged
finance and private equity investing. The members of our
Advisors investment committee have an average of over
20 years of financial investment experience. All decisions
to invest in a portfolio company must be approved by the
unanimous decision of our Advisors investment committee.
Investment
Structure and Types of Investments
Once our Advisors investment committee has determined that
a prospective portfolio company is suitable for investment, we
work with the management of that company and its other capital
providers, including other senior and junior debt and equity
capital providers, if any, to structure an investment. We
negotiate among these parties to agree on how our investment is
expected to perform relative to the other capital in the
portfolio companys capital structure. We may invest up to
30% of our total assets in assets that are non qualifying assets
in among other things, high yield bonds, bridge loans,
distressed debt, commercial loans, private equity, securities of
public companies or secondary market purchases of securities of
target portfolio companies.
The types of securities in which we may invest include, but are
not limited to, the following:
Debt
Investments
Our debt investments may be secured or unsecured. In general,
our debt investments will not be control-oriented investments
and we may acquire debt securities as a part of a group of
investors in which we are not the lead investor. We anticipate
structuring a significant amount of our debt investments as
mezzanine loans. Mezzanine loans typically are unsecured, and
usually rank subordinate in priority of payment to senior debt,
such as senior bank debt, but senior to common and preferred
equity, in a borrowers capital structure. We expect to
invest in a range of debt investments generally having a term of
five to ten years and bearing interest at either a fixed or
floating rate. These loans typically will have interest-only
payments in the early years, with amortization of principal
deferred to the later years of the term of the loan.
In addition to bearing fixed or variable rates of interest,
mezzanine loans also may provide an opportunity to participate
in the capital appreciation of a borrower through an equity
interest. We expect this equity interest will typically be in
the form of a warrant. Due to the relatively higher risk profile
and often less restrictive covenants, as compared to senior
loans, mezzanine loans generally earn a higher return than
senior loans. The warrants associated with mezzanine loans are
typically detachable, which allows lenders to receive repayment
of principal while retaining their equity interest in the
borrower. In some cases, we
48
anticipate that mezzanine loans may be collateralized by a
subordinated lien on some or all of the assets of the borrower.
In some cases, our debt investments may provide for a portion of
the interest payable to be
payment-in-kind
interest. To the extent interest is
payment-in-kind,
it will likely be payable through the increase of the principal
amount of the loan by the amount of interest due on the
then-outstanding aggregate principal amount of such loan.
We tailor the terms of our debt investments to the facts and
circumstances of the transaction and the prospective portfolio
company, negotiating a structure that aims to protect our rights
and manage risk while creating incentives for the portfolio
company to achieve its business plan and improve its
profitability. For example, in addition to seeking a position
senior to common and preferred equity in the capital structure
of our portfolio companies, we will seek, where appropriate, to
limit the downside potential of our debt investments by:
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requiring a total return on our investments (including both
interest and potential equity appreciation) that compensates us
for our credit risk;
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incorporating put rights and call protection into
the investment structure; and
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negotiating covenants in connection with our investments that
afford portfolio companies as much flexibility in managing their
businesses as possible, consistent with preservation of our
capital. Such restrictions may include affirmative and negative
covenants, default penalties, lien protection, change of control
provisions and board rights, including either observation or
participation rights.
|
As described above, our debt investments may include equity
features, such as warrants or options to buy a minority interest
in the portfolio company. Warrants we receive in connection with
an investment in debt may require only a nominal cost to
exercise, and thus, as a portfolio company appreciates in value,
we may achieve additional investment return from this equity
interest. We may structure the warrants to provide provisions
protecting our rights as a minority-interest holder, as well as
puts, or rights to sell such securities back to the portfolio
company, upon the occurrence of specified events. In certain
cases, we also may obtain registration rights in connection with
these equity interests, which may include demand and
piggyback registration rights.
Equity
Investments
Our equity investments will likely consist of preferred equity
that is expected to pay dividends on a current basis, preferred
equity that does not pay current dividends or common equity.
Preferred equity generally has a preference over common equity
as to distributions on liquidation and dividends. In general,
our equity investments will not be control-oriented investments
and we may acquire equity securities as part of a group of
private equity investors in which we are not the lead investor.
In many cases, we also may obtain registration rights in
connection with these equity interests, which may include demand
and piggyback registration rights.
In addition to common and preferred stock, we may purchase
limited liability company interests, limited partner interests,
convertible securities, warrants and depository receipts of
companies that are organized as corporations, limited liability
companies or limited partnerships.
Taxable
Subsidiaries
We expect to form one or more directly or indirectly
wholly-owned taxable subsidiaries to make investments in
accordance with our investment objective, generally with respect
to investments in non-traded limited partnerships, in order to
comply with federal income tax rules.
We will value our investment in such a subsidiary based on the
net asset value of the subsidiary. The net asset value of the
subsidiary will be computed by subtracting from the value of all
of the subsidiarys assets all of its liabilities,
including but not limited to taxes. The subsidiarys
portfolio securities will be valued
49
in accordance with the same valuation procedures applied to our
portfolio companies. See Determination of Net Asset
Value.
Investments
We believe that our Advisors expertise in investing in
small and middle market companies in the midstream and
downstream segments of the U.S. energy infrastructure
sector, and our Advisors experience as an investment
advisor in the energy infrastructure sector, positions our
Advisor to identify and capitalize on desirable investment
opportunities. In addition, we believe that our Advisors
regular contact with companies in the energy infrastructure
sector, investment bankers engaged in financing and merger and
acquisition advisory work, and other professionals providing
services to growth companies in the energy infrastructure
sector, will contribute to the number of quality investment
opportunities that we can evaluate.
Since the completion of our approximately $46.3 million
private placement in January 2006, we have invested
approximately $22.5 million in three portfolio companies in
the energy infrastructure sector through the acquisition of
limited liability company units, limited partnership interests
and a debenture. For a more detailed description of these
investments, see Portfolio Companies.
Ongoing
Relationships with Portfolio Companies
Monitoring
The investment professionals of our Advisor monitor each
portfolio company to determine progress relative to meeting the
companys business plan and to assess the appropriate
strategic and tactical courses of action for the company. This
monitoring may be accomplished by attendance at board of
directors meetings, the review of periodic operating reports and
financial reports, an analysis of relevant reserve information
and capital expenditure plans, and periodic consultations with
engineers, geologists, and other experts. The performance of
each portfolio company is also periodically compared to
performance of similarly sized companies with comparable assets
and businesses to assess performance relative to peers. Our
Advisors monitoring activities are expected to provide it
with the necessary access to monitor compliance with existing
covenants, to enhance its ability to make qualified valuation
decisions, and to assist its evaluation of the nature of the
risks involved in each individual investment. In addition, these
monitoring activities should permit our Advisor to diagnose and
manage the common risk factors held by our total portfolio, such
as sector concentration, exposure to a single financial sponsor,
or sensitivity to a particular geography.
As part of the monitoring process, our Advisor continually
assesses the risk profile of each of our investments and rates
them on a scale of 1 to 3 based on the following categories:
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(1)
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The portfolio company is performing at or above expectations and
the trends and risk factors are generally favorable to neutral.
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(2)
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The portfolio company is performing below expectations and the
investments risk has increased materially since
origination. The portfolio company is generally out of
compliance with various covenants; however, payments are
generally not more than 120 days past due.
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(3)
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The portfolio company is performing materially below
expectations and the investment risk has substantially increased
since origination. Most or all of the covenants are out of
compliance and payments are substantially delinquent. Investment
is not expected to provide a full repayment of the amount
invested.
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As of the date of this prospectus, all of our portfolio
companies have a rating of (1).
Managerial
Assistance
The investment professionals of our Advisor make available, and
will provide upon request, significant managerial assistance to
our portfolio companies. This assistance may involve, among
other things, monitoring the operations of our portfolio
companies, participating in board and management meetings,
50
consulting with and advising the management teams of our
portfolio companies, assisting in the formulation of their
strategic plans, and providing other operational, organizational
and financial consultation. Involvement with each portfolio
company will vary based on a number of factors.
Valuation
Process
We value our portfolio in accordance with generally accepted
accounting principles and will rely on multiple valuation
techniques, reviewed on a quarterly basis by our board of
directors. As most of our investments are not expected to have
market quotations, our board of directors will undertake a
multi-step valuation process each quarter, as described below:
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Investment Team Valuation. Each portfolio
company or investment will initially be valued by the investment
professionals of the Advisor responsible for the portfolio
investment. As a part of this process, materials will be
prepared containing their supporting analysis.
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Third Party Valuation Activity. We expect that
our board of directors will retain an independent valuation firm
to review, as requested from time to time by the independent
directors, the valuation report provided by our investment team.
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Investment Committee Valuation. The investment
committee of our Advisor will review the investment team
valuation report and the analysis of the independent valuation
firm, if applicable, and determine valuations to be considered
by the board of directors.
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Final Valuation Determination. Our board of
directors will consider the investment committee valuations,
including supporting documentation, and analysis of the
independent valuation firm, if applicable, and determine the
fair value of each investment in our portfolio in good faith.
|
Competition
We compete with public and private funds, commercial and
investment banks and commercial financing companies to make the
types of investments that we plan to make in the U.S. energy
infrastructure sector. Many of our competitors are substantially
larger and have considerably greater financial, technical and
marketing resources than us. For example, some competitors may
have a lower cost of funds and access to funding sources that
are not available to us. In addition, some of our competitors
may have higher risk tolerances or different risk assessments,
allowing them to consider a wider variety of investments and
establish more relationships than us. Furthermore, many of our
competitors are not subject to the regulatory restrictions that
the 1940 Act would impose on us as a result of our election to
be regulated as a BDC and that we will be required to comply
with in order to qualify as a RIC. These competitive conditions
may adversely affect our ability to make investments in the
energy infrastructure sector and could adversely affect our
distributions to stockholders.
Brokerage
Allocation and Other Practices
Since we will generally acquire and dispose of our investments
in privately negotiated transactions, we infrequently will use
brokers in the normal course of our business. Subject to
policies established by our board of directors, we do not expect
to execute transactions through any particular broker or dealer,
but will seek to obtain the best net results for us, taking into
account such factors as price (including the applicable
brokerage commission or dealer spread), size of order,
difficulty of execution and operational facilities of the firm
and the firms risk and skill in positioning blocks of
securities. While we will generally seek reasonably competitive
trade execution costs, we will not necessarily pay the lowest
spread or commission available. Subject to applicable legal
requirements, we may select a broker based partly on brokerage
or research services provided to us. In return for such
services, we may pay a higher commission than other brokers
would charge if it determines in good faith that such commission
is reasonable in relation to the services provided.
51
Proxy
Voting Policies
We, along with our Advisor have adopted proxy voting policies
and procedures (Proxy Policy), that we believe are
reasonably designed to ensure that proxies are voted in our best
interests and the best interests of our stockholders. Subject to
its oversight, the board of directors has delegated
responsibility for implementing the Proxy Policy to our Advisor.
In the event requests for proxies are received with respect to
the voting of equity securities, on routine matters, such as
election of directors or approval of auditors, the proxies
usually will be voted with management unless our Advisor
determines it has a conflict or our Advisor determines there are
other reasons not to vote with management. On non-routine
matters, such as amendments to governing instruments, proposals
relating to compensation and stock option and equity
compensation plans, corporate governance proposals and
stockholder proposals, our Advisor will vote, or abstain from
voting if deemed appropriate, on a case by case basis in a
manner it believes to be in the best economic interest of our
stockholders. In the event requests for proxies are received
with respect to debt securities, our Advisor will vote on a case
by case basis in a manner it believes to be in the best economic
interest of our stockholders.
Our Chief Executive Officer is responsible for monitoring our
actions and ensuring that (i) proxies are received and
forwarded to the appropriate decision makers, and
(ii) proxies are voted in a timely manner upon receipt of
voting instructions. We are not responsible for voting proxies
we do not receive, but will make reasonable efforts to obtain
missing proxies. Our Chief Executive Officer will implement
procedures to identify and monitor potential conflicts of
interest that could affect the proxy voting process, including
(i) significant client relationships, (ii) other
potential material business relationships, and
(iii) material personal and family relationships. All
decisions regarding proxy voting will be determined by our
Advisors investment committee and will be executed by our
Chief Executive Officer. Every effort will be made to consult
with the portfolio manager and/or analyst covering the security.
We may determine not to vote a particular proxy, if the costs
and burdens exceed the benefits of voting (e.g., when securities
are subject to loan or to share blocking restrictions).
If a request for proxy presents a conflict of interest between
our stockholders on one hand, and our Advisor, the principal
underwriters, or any affiliated persons of ours, on the other
hand, our management may (i) disclose the potential
conflict to the board of directors and obtain consent, or
(ii) establish an ethical wall or other informational
barrier between the persons involved in the conflict and the
persons making the voting decisions.
Staffing
We do not currently have or expect to have any employees.
Services necessary for our business will be provided by
individuals who are employees of our Advisor, pursuant to the
terms of the investment advisory agreement. Each of our
executive officers described under Management is an
employee of our Advisor or Fountain Capital.
Properties
Our office is located at 10801 Mastin Boulevard, Suite 222,
Overland Park, Kansas 66210.
Legal
Proceedings
Neither we nor our Advisor are currently subject to any material
legal proceedings.
52
PORTFOLIO
COMPANIES
As of August 24, 2006, we had invested a total of
$22.5 million in three portfolio companies in the
U.S. energy infrastructure sector. The following table sets
forth a brief description of each portfolio company and a
description of the investment we have made in each such company.
We may on occasion hold seats on the board of directors of a
portfolio company and endeavor to obtain board observation
rights with respect to our portfolio companies.
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Fair Value of
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Investment
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Name of Portfolio
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Nature of its
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Title of Securities
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Percentage of
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Funded
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as of
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Company (Segment)
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Principal Business
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Held by Us
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Class Held
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Investment
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May 31, 2006
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Eagle Rock Pipeline, L.P.
(Midstream)
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Gatherer and processor of natural
gas
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LP Interests
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1.2
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%
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$12.5 million
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$12.5 million
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Mowood, LLC(1) (Downstream)
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Local natural gas
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LLC Units
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100
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%
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$1.0 million
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N/A
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distribution
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Subordinated Debt
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100
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%
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$4.5 million
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N/A
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Legacy Reserves LP (Upstream)
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Oil and gas exploitation and
development
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LP Interests
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1.5
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%
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$4.5 million
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$4.5 million
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(1) |
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We currently have the right to appoint both members of the
Management Committee of Mowood. |
Portfolio
Company Descriptions
Eagle
Rock Pipeline, L.P. (Eagle Rock)
Eagle Rock was formed by a management team with significant
midstream operating experience in companies such as Enbridge
Inc. and Dynegy Inc. and funded by their equity sponsor, Natural
Gas Partners, LLC. The Company identifies, purchases and
improves under-performing gathering and processing assets. We
purchased $12.5 million of LP Interests in Eagle Rock on
March 27, 2006. On June 5, 2006, Eagle Rock filed a
registration statement with the SEC to register the sale of its
units in an initial public offering. The offering is intended
primarily to provide Eagle Rock with liquidity for additional
acquisitions, but a portion of the proceeds will be used to fund
a distribution to existing unitholders, including us.
Contemporaneous with the anticipated closing of its initial
public offering, Eagle Rock is expected to merge into a new
entity to be called Eagle Rock Energy Partners, L.P. Eagle
Rocks principal office is located at 14950 Heathrow Forest
Pkwy., Suite 111, Houston, TX 77032.
Mowood,
LLC (Mowood)
We purchased 100% ownership in Mowood, a holding company whose
sole asset is a wholly-owned operating company, Omega Pipeline,
LLC (Omega). Omega is a natural gas local
distribution company located on Fort Leonard Wood in
southwest Missouri. Omega is in the second year of a ten-year
contract with the Department of Defense pursuant to which it
provides natural gas to Fort Leonard Wood. We invested
$1.0 million in LLC units and purchased a $4.5 million
subordinated debenture on June 1, 2006. Mowoods
principal office is located at P.O. Box 2861, Ordinance
Street, Building 2570, Fort Leonard Wood, MO 65473.
Legacy
Reserves LP (Legacy)
Legacy has purchased, and expects to continue to purchase,
mature properties in the Permian Basin that generate stable
volumes of oil and natural gas with low rates of decline. Legacy
focuses on the exploitation of proved developed reserves,
instead of the more risky exploration of undeveloped reserves
and has hedged over 60% of production volumes expected over the
next five years. We purchased $4.5 million of LP Interests
in Legacy on March 6, 2006. Legacys principal office
is located at 303 West Wall, Suite 1500, Midland,
TX 79701.
53
PORTFOLIO
MANAGEMENT
Our board of directors provides the overall supervision and
review of our affairs. Management of our portfolio is the
responsibility of our Advisors investment committee. Our
Advisors investment committee is composed of five senior
investment professionals, all of whom are managers of our
Advisor. Our Advisor has four senior investment professionals
who are responsible for the negotiation, structuring and
managing of our investments. Those senior investment
professionals are Messrs. Matlack, Mojica, Russell and
Schulte, of whom Messrs. Mojica and Russell are exclusively
dedicated to our activities. The Advisors four senior
investment professionals have almost 70 years of combined
experience in energy, leveraged finance and private equity
investing. For biographical information about our Advisors
investment professionals, see Advisor.
Investment
Committee
Management of our portfolio will be the responsibility of our
Advisors investment committee. Our Advisors
investment committee is comprised of its five Managing
Directors: H. Kevin Birzer, Zachary A. Hamel, Kenneth P. Malvey,
Terry C. Matlack and David J. Schulte. All decisions to invest
in a portfolio company must be approved by the unanimous
decision of our Advisors investment committee and any one
member of our Advisors investment committee can require
our Advisor to sell a security. Biographical information about
each member of our Advisors investment committee is set
forth under Management Directors and
Officers, below.
The following table provides information about the other
accounts managed on a
day-to-day
basis by each member of our Advisors investment committee
as of July 31, 2006:
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Number of
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Total Assets
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Accounts
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of Accounts
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Total
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Paying a
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Paying a
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Number of
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Assets of
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Performance
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Performance
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Name of Manager
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Accounts
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Accounts
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Fee
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Fee
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H. Kevin Birzer
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Registered investment companies
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3
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$
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1,602,084,846
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0
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Other pooled investment vehicles
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7
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$
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210,659,721
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4
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$
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14,197,279
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Other accounts
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204
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$
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1,892,007,501
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0
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Zachary A. Hamel
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Registered investment companies
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3
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$
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1,602,084,846
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0
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Other pooled investment vehicles
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7
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$
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210,659,721
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4
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$
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14,197,279
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Other accounts
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204
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$
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1,892,007,501
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0
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Kenneth P. Malvey
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Registered investment companies
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3
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$
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1,602,084,846
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0
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Other pooled investment vehicles
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7
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$
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210,659,721
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4
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$
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14,197,279
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Other accounts
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204
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$
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1,892,007,501
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0
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Terry C. Matlack
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Registered investment companies
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3
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$
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1,602,084,846
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0
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Other pooled investment vehicles
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4
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$
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41,197,279
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5
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$
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41,197,279
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Other accounts
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182
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$
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161,133,011
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0
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David J. Schulte
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Registered investment companies
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3
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$
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1,602,084,846
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0
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|
|
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|
Other pooled investment vehicles
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|
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4
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$
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41,197,279
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|
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5
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$
|
41,197,279
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|
Other accounts
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|
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182
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$
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161,133,011
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|
|
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0
|
|
|
|
|
|
None of Messrs. Birzer, Hamel, Malvey, Matlack or Schulte
receives any direct compensation from the Company or any other
of the managed accounts reflected in the table above. All such
accounts are managed by the Advisor, Fountain Capital or KCEP.
Messrs. Schulte and Matlack are full-time employees of the
Advisor and receive a fixed salary for the services they
provide. Fountain Capital is paid a fixed monthly fee, subject
to adjustment, for the services of Messrs. Birzer, Hamel or
Malvey. Each of Messrs. Birzer, Hamel, Malvey, Matlack and
Schulte own an equity interest in either KCEP or Fountain
Capital, the two entities that control the Advisor, and each
thus benefits from increases in the net income of the Advisor,
KCEP or Fountain Capital.
54
MANAGEMENT
Directors
and Officers
Our business and affairs are managed under the direction of our
board of directors. Accordingly, our board of directors provides
broad supervision over our affairs, including supervision of the
duties performed by our Advisor. Certain employees of our
Advisor are responsible for our
day-to-day
operations. The names, ages and addresses of our directors and
officers and specified employees of our Advisor, together with
their principal occupations and other affiliations during the
past five years, are set forth below. Each director and officer
will hold office for the term to which he is elected and until
his successor is duly elected and qualifies, or until he resigns
or is removed in the manner provided by law. Unless otherwise
indicated, the address of each director and officer is 10801
Mastin Boulevard, Suite 222, Overland Park, Kansas 66210.
Our board of directors consists of a majority of directors who
are not interested persons (as defined in the 1940
Act) of our Advisor or its affiliates. The directors who are
interested persons (as defined in the 1940 Act) are
referred to as Interested Directors. Under our
Charter, the board is divided into three classes. Each class of
directors will hold office for a three year term. However, the
initial members of the three classes have initial terms of one,
two and three years, respectively. At each annual meeting of our
stockholders, the successors to the class of directors whose
terms expire at such meeting will be elected to hold office for
a term expiring at the annual meeting of stockholders held in
the third year following the year of their election and until
their successors are duly elected and qualify.
The directors and officers of the Company and their principal
occupations and other affiliations during the past five years
are set forth below. Each director and officer will hold office
until his successor is duly elected and qualified, or until he
resigns or is removed in the manner provided by law. The address
of each director and officer is 10801 Mastin Boulevard,
Suite 222, Overland Park, Kansas 66210.
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Position(s) Held
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Number of
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with Company,
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Portfolios in
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Term of Office
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Fund Complex
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|
Other Board
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|
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and Length of
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Principal Occupation
|
|
Overseen by
|
|
Positions
|
Name and Age
|
|
Time Served
|
|
During Past Five Years
|
|
Director(1)
|
|
Held by Director
|
|
Independent Directors
|
|
|
|
|
|
|
|
|
Conrad S. Ciccotello, 45
|
|
Class III Director
since 2005
|
|
Tenured Associate Professor of Risk
Management and Insurance, Robinson College of Business, Georgia
State University (faculty member since 1999); Director of
Graduate Personal Financial Planning Programs; Editor,
Financial Services Review, (an academic journal
dedicated to the study of individual financial management);
formerly, faculty member, Pennsylvania State University.
|
|
4
|
|
None
|
55
|
|
|
|
|
|
|
|
|
|
|
Position(s) Held
|
|
|
|
Number of
|
|
|
|
|
with Company,
|
|
|
|
Portfolios in
|
|
|
|
|
Term of Office
|
|
|
|
Fund Complex
|
|
Other Board
|
|
|
and Length of
|
|
Principal Occupation
|
|
Overseen by
|
|
Positions
|
Name and Age
|
|
Time Served
|
|
During Past Five Years
|
|
Director(1)
|
|
Held by Director
|
|
Independent Directors
(continued)
|
|
|
|
|
|
|
|
|
John R. Graham, 60
|
|
Class II Director
since 2005
|
|
Executive-in-Residence
and Professor of Finance, College of Business Administration,
Kansas State University (has served as a professor or adjunct
professor since 1970); Chairman of the Board, President and CEO,
Graham Capital Management, Inc., primarily a real estate
development and investment company and a venture capital
company; Owner of Graham Ventures, a business services and
venture capital firm; formerly, CEO, Kansas Farm Bureau
Financial Services, including seven affiliated insurance or
financial service companies (1979-2000).
|
|
4
|
|
Erie Indemnity
Company; Erie
Family Life
Insurance Company;
Kansas State
Bank
|
Charles E. Heath, 63
|
|
Class I Director
since 2005
|
|
Retired in 1999. Formerly, Chief
Investment Officer, GE Capitals Employers Reinsurance
Corporation (1989-1999). Chartered Financial Analyst
(CFA) since 1974.
|
|
4
|
|
None
|
Interested Directors and
Officers(2)
|
|
|
|
|
|
|
|
|
H. Kevin Birzer, 46
|
|
Class II Director
and Chairman of
the Board since
2005
|
|
Managing Director of the Advisor
since 2002; Partner/Senior Analyst, Fountain Capital
(1990-present); Vice President, Corporate Finance Department,
Drexel Burnham Lambert (1986-1989); formerly, Vice President, F.
Martin Koenig & Co., an investment management firm
(1983-1986).
|
|
4
|
|
None
|
Terry C. Matlack, 50
|
|
Class I Director
and Chief Financial
Officer since 2005
|
|
Managing Director of the Advisor
since 2002; Managing Director, KCEP (2001-present); formerly,
President, GreenStreet Capital, a private investment firm
(1998-2001).
|
|
4
|
|
None
|
David J. Schulte, 46
|
|
President and Chief
Executive Officer
since 2005
|
|
Managing Director of the Advisor
since 2002; Managing Director, KCEP (1993-present); CFA since
1992.
|
|
N/A
|
|
None
|
56
|
|
|
|
|
|
|
|
|
|
|
Position(s) Held
|
|
|
|
Number of
|
|
|
|
|
with Company,
|
|
|
|
Portfolios in
|
|
|
|
|
Term of Office
|
|
|
|
Fund Complex
|
|
Other Board
|
|
|
and Length of
|
|
Principal Occupation
|
|
Overseen by
|
|
Positions
|
Name and Age
|
|
Time Served
|
|
During Past Five Years
|
|
Director(1)
|
|
Held by Director
|
|
Interested Directors and
Officers (2)
(continued)
|
|
|
|
|
|
|
|
|
Zachary A. Hamel, 40
|
|
Senior Vice
President and
Secretary since
2005
|
|
Managing Director of the Advisor
since 2002; Partner/Senior Analyst with Fountain Capital
(1997-present).
|
|
N/A
|
|
None
|
Kenneth P. Malvey, 41
|
|
Senior Vice
President and
Treasurer since
November 2005
|
|
Managing Director of the Advisor
since 2002; Partner/Senior Analyst, Fountain Capital Management
(2002-present); formerly, Investment Risk Manager and member of
the Global Office of Investments, GE Capitals
Employers Reinsurance Corporation
(1996-2002).
|
|
N/A
|
|
None
|
|
|
|
(1) |
|
This number includes TYG, TYY, TYN and us. Our Advisor also
serves as the investment advisor to TYG, TYY and TYN. |
|
(2) |
|
As a result of their respective positions held with the Advisor
or is affiliates, these individuals are considered
interested persons within the meaning of the 1940
Act. |
Audit
Committee
Our board of directors has a standing Audit Committee that
consists of three directors of the Company who are not
interested persons (within the meaning of the 1940
Act) (Independent Directors). The Audit
Committees function is to select independent accountants
to conduct the annual audit of our financial statements, review
with the independent accountants the outline, scope and results
of this annual audit and review the performance and approval of
all fees charged by the independent accountants for audit,
audit-related and other professional services. In addition, the
Audit Committee meets with the independent accountants and
representatives of management to review accounting activities
and areas of financial reporting and control. For purposes of
the Sarbanes-Oxley Act, the Audit Committee has at least one
member who is deemed to be a financial expert. The Audit
Committee operates under a written charter approved by the Board
of Directors. The Audit Committee meets periodically, as
necessary, but has not yet held a meeting. The Audit Committee
members are Mr. Ciccotello (Chairman), Mr. Graham, and
Mr. Heath.
Nominating
Committee
We have a Nominating Committee that consists exclusively of
three Independent Directors. The Nominating Committees
function is to (1) identify individuals qualified to become
Board members and recommend to the Board the director nominees
for the next annual meeting of stockholders and to fill any
vacancies; (2) monitor the structure and membership of
Board committees; recommend to the Board director nominees for
each committee; (3) review issues and developments related
to corporate governance issues and develop and recommend to the
Board corporate governance guidelines and procedures, to the
extent necessary or desirable; and (4) actively seek
individuals who meet the standards for directors set forth in
our Bylaws, who meet the requirements of any applicable laws or
exchange requirements and who are otherwise qualified to become
board members for recommendation to the Board. The Nominating
Committee will consider stockholder recommendations for nominees
for membership to the Board so long as such recommendations are
57
made in accordance with the Companys Bylaws. The
Nominating Committee members are Conrad S. Ciccotello, John R.
Graham (Chairman), and Charles E. Heath.
Compensation
Table
Our directors and officers who are interested persons receive no
salary or fees from us. Each Independent Director receives from
us an annual retainer of $20,000 and a fee of $4,000 (and
reimbursement for related expenses) for each meeting of the
Board or Audit Committee he or she attends in person (or $1,000
for each Board or Audit Committee meeting attended
telephonically, or for each Audit Committee meeting attended in
person that is held on the same day as a Board meeting). Except
as noted for Audit Committee members, Independent Director also
receives $1,000 for each other committee meeting attended in
person or telephonically. The Chairman of the Audit Committee
receives an additional annual retainer of $10,000.
The table below sets forth the compensation paid to our board of
directors by TYG, TYY, TYN and us during fiscal 2006. We do not
compensate our officers. No director or officer is entitled to
receive pension or retirement benefits from us.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Compensation
|
|
|
|
|
|
|
from Fund and Fund
|
|
|
|
Aggregate
|
|
|
Complex Paid to
|
|
|
|
Compensation
|
|
|
Directors
|
|
Name and Position with the Company
|
|
from the Company(1)
|
|
|
(4 Companies)
|
|
|
Independent Directors
|
|
|
|
|
|
|
|
|
Conrad S. Ciccotello
|
|
$
|
19,030
|
|
|
$
|
101,500
|
|
John R. Graham
|
|
$
|
16,030
|
|
|
$
|
89,500
|
|
Charles E. Heath
|
|
$
|
15,030
|
|
|
$
|
85,500
|
|
|
|
|
|
|
|
|
|
|
Interested Directors
|
|
|
|
|
|
|
|
|
H. Kevin Birzer
|
|
|
$0
|
|
|
|
$0
|
|
Terry C. Matlack
|
|
|
$0
|
|
|
|
$0
|
|
|
|
|
(1) |
|
Because we have not completed our first full fiscal year,
compensation is estimated based upon payments to be made by us
during the current fiscal year. |
58
ADVISOR
Tortoise Capital Advisors, a registered investment advisor, will
serve as our investment advisor. Our Advisor was formed in
October 2002 and has been managing investments in portfolios of
MLPs in the energy infrastructure sector since that time. Our
Advisor also manages the investments of TYG, TYY and TYN. TYG is
a non-diversified, closed-end management investment company that
was created to invest principally in MLPs in the energy
infrastructure sector. TYY is a non-diversified, closed-end
management investment company that was created to invest
primarily in MLPs and their affiliates in the energy
infrastructure sector. TYN is a non-diversified, closed-end
management investment company that was created to invest
primarily in energy infrastructure investments in public
companies in the United States and Canada. As of July 31,
2006, our Advisor had client assets under management of
approximately $1.8 billion.
|
|
|
|
|
|
|
|
|
|
Company
|
|
|
|
Inception
|
|
Targeted
|
|
Total Assets
|
Name
|
|
Ticker/Private
|
|
Date
|
|
Investments
|
|
($ in millions)
|
|
Tortoise Capital Resources
Corp.
|
|
Proposed NYSE: TTO
|
|
Dec. 2005
|
|
Privately-Held and Micro-Cap
U.S. Energy Infrastructure
|
|
$
|
43
|
Tortoise Energy Infrastructure
Corp.
|
|
NYSE: TYG
|
|
Feb. 2004
|
|
U.S. Energy Infrastructure,
More Diversified in MLPs
|
|
$
|
798
|
Tortoise Energy Capital Corp.
|
|
NYSE: TYY
|
|
May 2005
|
|
U.S. Infrastructure, More
Concentrated
|
|
$
|
628
|
Tortoise North America Energy
Corp.
|
|
NYSE: TYN
|
|
Oct. 2005
|
|
Canadian and
U.S. Infrastructure, Diversified
|
|
$
|
174
|
Separately Managed Accounts and
Private Partnerships
|
|
Private
|
|
Nov. 2002
|
|
U.S. Energy Infrastructure
|
|
$
|
161
|
Our Advisor is controlled equally by KCEP and Fountain Capital.
|
|
|
|
|
KCEP was formed in 1993 and currently manages a private equity
fund with committed capital of $55 million invested in a
variety of companies in diverse industries, including a private
financing for a propane retail and wholesale company, Inergy,
L.P. KCEP I, a
start-up and
early-stage venture capital fund launched in 1994 and previously
managed by KCEP, is in the process of winding down. As a part of
that process, KCEP I has entered into a consensual order of
receivership, which is necessary to allow KCEP I to distribute
its remaining $1.3 million of assets to creditors and the
SBA. The consensual order acknowledges a capital impairment
condition and the resulting nonperformance by KCEP I of its
agreement with the SBA, both of which are violations of the
provisions requiring repayment of capital under the Small
Business Investment Act of 1958 and the regulations thereunder.
We do not currently expect the consensual order or the
performance of KCEP I to prevent the wholly-owned subsidiary we
may create from becoming licensed by the SBA as a SBIC or
prevent its participation in the SBA-sponsored debenture program.
|
|
|
|
Fountain Capital was formed in 1990 and focuses primarily on
providing investment advisory services to institutional
investors with respect to below investment grade debt. Fountain
Capital had approximately $1.7 billion of client assets
under management as of July 31, 2006, of which
approximately $237 million was invested in 29 energy
companies.
|
|
|
|
Our Advisor was formed by KCEP and Fountain Capital to provide
portfolio management services in the energy infrastructure
sector in advance of an investment of client funds in Markwest
Energy Partner, L.P., a micro-cap public natural gas processing
and pipeline company in the midstream segment of the energy
infrastructure sector.
|
59
Our Advisor currently has four senior investment professionals
who are responsible for the origination, negotiation,
structuring and managing of our investments. Two of those senior
investment professionals are Messrs. Matlack and Schulte,
who are also Managing Directors of KCEP. The other two senior
investment professionals are Messrs. Mojica and Russell,
both of whom are dedicated to our activities. The Advisors
four senior investment professionals have almost 70 years
of combined experience in energy, leveraged finance and private
equity investing. Their biographical information is set forth
below.
|
|
|
|
|
Terry Matlack Mr. Matlack was a founder
of, and is a Managing Director of, our Advisor. Since 2001,
Mr. Matlack has been a Managing Director of KCEP. Prior to
joining KCEP, Mr. Matlack was President of GreenStreet
Capital and its affiliates, which invested primarily in the
telecommunications service industry. Prior to 1995, he was
Executive Vice President and a member of the board of directors
of W. K. Communications, Inc., a cable television acquisition
company, and Chief Operating Officer of W. K. Cellular, a rural
cellular service area operator. Mr. Matlack also serves on
the board of directors of Kansas Venture Capital, an SBIC.
|
|
|
|
Abel Mojica III Prior to joining our
Advisor in 2005 and since 1999, Mr. Mojica was a Principal
of KCEP. While at KCEP, Mr. Mojica, together with
Mr. Schulte, led KCEPs investment in the private
company predecessor to Inergy, L.P., from an early stage of
development through its initial public offering and was also
involved in the structuring of an investment in MarkWest Energy
Partners, L.P. Mr. Mojica has been in the private equity
and finance industry since 1996. Mr. Mojica represented the
interests of KCEP by serving on the boards of directors of three
portfolio companies. Prior to joining KCEP in 1999,
Mr. Mojica worked in investment banking at First Chicago
Capital Markets (now J.P. Morgan Chase) and in commercial
banking at Citicorp (now Citigroup).
|
|
|
|
Edward Russell Prior to joining our Advisor
in March of 2006, Mr. Russell was a Managing Director in
the investment banking department of Stifel, Nicolaus &
Company, Inc. (Stifel Nicolaus) since 1999. While a
Managing Director at Stifel Nicolaus, Mr. Russell was
responsible for all of the energy and power transactions,
including all of the debt and equity transactions for the three
closed-end public funds managed by our Advisor, starting with
the first public equity offering in February of 2004. Prior to
jointing Stifel Nicolaus, Mr. Russell worked in commercial
banking for over 10 years as a lender with Magna Group and
South Side National Bank.
|
|
|
|
David J. Schulte Mr. Schulte was a
founder of, and is a Managing Director of, our Advisor. Since
1994, Mr. Schulte has been a Managing Director of KCEP.
While a partner at KCEP, Mr. Schulte led private financings
for two growth MLPs in the energy infrastructure sector, Inergy,
L.P., where he served as a director, and MarkWest Energy
Partners, L.P., where he was a board observer. Prior to joining
KCEP, Mr. Schulte had over five years of experience
completing acquisition and public equity financings as an
investment banker at the predecessor of Oppenheimer &
Co., Inc. Mr. Schulte also serves on the investment
committee of Diamond State Ventures, an SBIC. Mr. Schulte
is a past President of the Midwest Region of SBICs and a former
director of the National Association of SBICs.
|
Our Advisor has 20 full time employees, but also relies to
a significant degree on the officers, employees, and resources
of Fountain Capital. Three of the five members of the investment
committee of our Advisor are affiliates of, but not employees
of, our Advisor, and each has other significant responsibilities
with Fountain Capital, which conducts businesses and activities
of its own in which our Advisor has no economic interest. If
these separate activities are significantly greater than our
Advisors activities, there could be material competition
for the efforts of key personnel.
Each of our Advisors investment decisions will be reviewed
and approved for us by its investment committee, which also acts
as the investment committee for TYG, TYY and TYN. Our
Advisors investment committee is comprised of its five
Managing Directors: H. Kevin Birzer, Zachary A. Hamel, Kenneth
P. Malvey, Terry C. Matlack and David J. Schulte.
Messrs. Birzer, Hamel and Malvey are each Partners/Senior
60
Analysts with Fountain Capital. The members of our
Advisors investment committee have an average of over
20 years of financial investment experience.
Conflicts
of Interests
Our senior professionals have a conflict of interest in
allocating potentially more favorable investment opportunities
to us and other funds and clients that pay our Advisor an
incentive or performance fee. Performance and incentive fees
also create the incentive to allocate potentially riskier, but
potentially better performing, investments to us in an effort to
increase the incentive fee. Our Advisor may also have an
incentive to make investments by one fund, having the effect of
increasing the value of a security in the same issuer held by
another fund, which in turn may result in an incentive fee being
paid to our Advisor by that other fund. However, senior
professionals of our Advisor manage potential conflicts of
interest by allocating investment opportunities in accordance
with written allocation policies and procedures.
Investment
Advisory Agreement
Management
Services
Pursuant to an investment advisory agreement, our Advisor will
be subject to the overall supervision and review of our board of
directors, provide us with investment research, advice and
supervision and will furnish us continuously with an investment
program, consistent with our investment objective and policies.
Our Advisor also will determine from time to time what
securities we shall purchase, and what securities shall be held
or sold, what portions of our assets shall be held uninvested as
cash, short duration high yield securities or in other liquid
assets, will maintain books and records with respect to all of
our transactions, and will report to our board of directors on
our investments and performance.
Our Advisors services to us under the investment advisory
agreement will not be exclusive, and our Advisor is free to
furnish the same or similar services to other entities,
including businesses which may directly or indirectly compete
with us, so long as our Advisors services to us are not
impaired by the provision of such services to others. Under the
investment advisory agreement and to the extent permitted by the
1940 Act, our Advisor will also provide on our behalf
significant managerial assistance to portfolio companies to
which we are required to provide such assistance under the 1940
Act and who require such assistance from us.
Administration
Services
Pursuant to the investment advisory agreement, our Advisor also
furnishes us with office facilities and clerical and
administrative services necessary for our operation (other than
services provided by our custodian, accounting agent,
administrator, dividend and interest paying agent and other
service providers). Our Advisor is authorized to cause us to
enter into agreements with third parties to provide such
services. To the extent we request, our Advisor will
(i) oversee the performance and payment of the fees of our
service providers and make such reports and recommendations to
the board of directors concerning such matters as the parties
deem desirable, (ii) respond to inquiries and otherwise
assist such service providers in the preparation and filing of
regulatory reports, proxy statements, and stockholder
communications, and the preparation of materials and reports for
the board of directors; (iii) establish and oversee the
implementation of borrowing facilities or other forms of
leverage authorized by the board of directors and
(iv) supervise any other aspect of our administration as
may be agreed upon by us and our Advisor. We have agreed,
pursuant to the investment advisory agreement, to reimburse our
Advisor or its affiliate for all
out-of-pocket
expenses incurred in providing the foregoing services.
Management
Fee
Pursuant to the investment advisory agreement, we will pay our
Advisor a fee consisting of two components a base
management fee and an incentive fee in return for the management
and administration services described above. For a discussion
regarding the basis for our board of directors approval of
the investment advisory agreement, see Advisor
Board Approval of Investment Advisory Agreement. This
discussion will also be available in our annual report to
stockholders.
61
The base management fee is 0.375% (1.5% annualized) of our
Managed Assets, calculated and paid quarterly in arrears within
15 days of the end of each calendar quarter. The term
Managed Assets as used in the calculation of the
management fee means our average monthly total assets (including
any assets purchased with any borrowed funds). The base
management fee for any partial quarter will be appropriately
prorated.
The incentive fee consists of two parts. The first part, the
investment income fee, is calculated and payable quarterly in
arrears and will equal 15% of the excess, if any, of our Net
Investment Income for the quarter over a quarterly hurdle rate
equal to 2% (8% annualized) of our Net Assets at the end of such
quarter (defined as our managed assets minus our indebtedness).
For purposes of calculating the investment income fee, Net
Investment Income shall mean interest income, dividend
income, and any other income (including any fees such as
commitment, origination, syndication, structuring, diligence,
monitoring, and consulting fees or other fees that we receive
from portfolio companies) accrued during the calendar quarter,
minus our operating expenses for the quarter (including the base
management fee, expenses payable by us, any interest expense,
any tax expense and dividends paid on issued and outstanding
preferred stock, if any, but excluding the incentive fees
payable to our Advisor). Accordingly, we may pay an incentive
fee based partly on accrued interest, the collection of which is
uncertain or deferred. Net Investment Income also includes, in
the case of investments with a deferred interest feature (such
as original issue discount, debt instruments with
payment-in-kind
interest, and zero coupon securities), accrued income that we
have not yet received in cash. Net Investment Income does not
include any realized capital gains, realized capital losses, or
unrealized capital appreciation or depreciation. The investment
income fee is payable within fifteen days of the end of each
calendar quarter but no investment income fee will be paid or
earned until December 8, 2006. The investment income fee
for any partial quarter will be appropriately prorated.
The second part of the incentive fee payable to our Advisor, the
capital gains fee, is calculated and payable in arrears as of
the end of each calendar year (or upon termination of the
investment advisory agreement, as of the termination date), and
equals: (i) 15% of (a) our net realized capital gains
(realized capital gains less realized capital losses) on a
cumulative basis from the closing of this offering to the end of
each calendar year, less (b) any unrealized capital
depreciation at the end of such calendar year, less
(ii) the aggregate amount of all capital gains fees paid to
our Advisor in prior years. Realized capital gains on a security
will be calculated as the excess of the net amount realized from
the sale or other disposition of such security over the original
cost for that security. Realized capital losses on a security
will be calculated as the amount by which the net amount
realized from the sale or other disposition of such security is
less than the original cost of such security. Unrealized capital
depreciation on a security will be calculated as the amount by
which our original cost of such security exceeds the fair value
of such security at the end of a calendar year. Our Advisor will
use at least 25% of any capital gains fees received from us at
any time on or prior to December 8, 2007 to purchase our
common shares. We will determine all fiscal year-end valuations
in accordance with generally accepted accounting principles, the
1940 Act, and our policies and procedures to the extent
consistent therewith. In the event the investment advisory
agreement is terminated, the capital gains fee calculation will
be undertaken as of, and any resulting capital gains fee will be
paid within fifteen days of, the date of termination.
The payment of the investment income fee portion of the
incentive compensation on a quarterly basis may lead our Advisor
to accelerate or defer interest payable by our portfolio
companies in a manner that could result in fluctuations in the
timing and amount of dividends.
The following examples are intended to assist in an
understanding of the two components of the incentive fee. These
examples are not intended as an indication of our expected
performance.
62
Examples
of Quarterly Incentive Fee Calculation
Example
1: Income Related Portion of Incentive Fee(1):
Assumptions
|
|
|
|
|
The following calculations only apply from December 8,
2006, as our Advisor is not entitled to any income-related
portion of the incentive fee in any earlier period
|
|
|
|
|
|
Management fee(3) = 0.375%
|
|
|
|
Other expenses (legal, accounting, custodian, transfer agent,
etc.)(4) = 0.20%
|
Alternative
1
Additional
Assumptions
|
|
|
|
|
Investment income (including interest, dividends, fees, etc.) =
1.25%
|
|
|
|
|
|
Pre-incentive fee net investment income (investment
income (management fee + other expenses)) = 0.675%
|
Pre-incentive fee net investment income does not exceed hurdle
rate, therefore there is no incentive fee.
Alternative
2
Additional
Assumptions
|
|
|
|
|
Investment income (including interest, dividends, fees, etc.) =
3.50%
|
|
|
|
Pre-incentive fee net investment income (investment
income (management fee + other expenses)) = 2.925%
|
Pre-incentive fee net investment income exceeds hurdle rate,
therefore there is an incentive fee.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Incentive Fee
|
|
|
=
|
|
|
|
15% x (pre-incentive fee net investment income
2.00%)
|
|
|
|
|
=
|
|
|
|
15% x (2.925% 2.00%)
|
|
|
|
|
=
|
|
|
|
15% x 0.925%
|
|
|
|
|
=
|
|
|
|
0.13875%
|
|
(1) The hypothetical amount of pre-incentive fee net
investment income shown is based on a percentage of our net
assets.
(2) Represents 8.0% annualized hurdle rate.
(3) Represents 1.5% annualized management fee. For
the purposes of this example, we have assumed that we have not
incurred any indebtedness and that we maintain no cash or cash
equivalents.
(4) Excludes organizational and offering expenses.
63
Example
2: Capital Gains Portion of Incentive Fee:
Alternative
1
Assumptions
|
|
|
|
|
Year 1: $20 million investment made and
November 30 fair market value (FMV) of
investment determined to be $20 million
|
|
|
|
Year 2: November 30 FMV of investment
determined to be $22 million
|
|
|
|
Year 3: November 30 FMV of investment
determined to be $17 million
|
|
|
|
Year 4: Investment sold for $21 million
|
The impact, if any, on the capital gains portion of the
incentive fee would be:
|
|
|
|
|
Year 1: No impact
|
|
|
|
Year 2: No impact
|
|
|
|
Year 3: Reduce base amount on which the
capital gains portion of the incentive fee is calculated by
$3 million
|
|
|
|
Year 4: Increase base amount on which the
capital gains portion of the incentive fee is calculated by
$4 million (less the amount, if any, of the unrealized
capital depreciation from Year 3 that did not actually reduce
the capital gains portion of the incentive fee that would
otherwise have been payable to our Advisor in Year 3)
|
Alternative
2
Assumptions
|
|
|
|
|
Year 1: $20 million investment made and
November 30 FMV of investment determined to be
$20 million
|
|
|
|
Year 2: November 30 FMV of investment
determined to be $17 million
|
|
|
|
Year 3: November 30 FMV of investment
determined to be $17 million
|
|
|
|
Year 4: November 30 FMV of investment
determined to be $21 million
|
|
|
|
Year 5: November 30 FMV of investment
determined to be $18 million
|
|
|
|
Year 6: Investment sold for $15 million
|
The impact, if any, on the capital gains portion of the
incentive fee would be:
|
|
|
|
|
Year 1: No impact
|
|
|
|
Year 2: Reduce base amount on which the second
part of the incentive fee is calculated by $3 million
|
|
|
|
Year 3: No impact
|
|
|
|
Year 4: No impact
|
|
|
|
Year 5: No impact
|
|
|
|
Year 6: Reduce base amount on which the second
part of the incentive fee is calculated by $2 million (plus
the amount, if any, of the unrealized capital depreciation from
Year 2 that did not actually reduce the second part of the
incentive fee that would otherwise have been payable to our
Advisor in prior years)
|
64
Alternative
3
Assumptions
|
|
|
|
|
Year 1: $20 million investment made in
company A (Investment A), and $20 million
investment made in company B (Investment B) and
November 30 FMV of each investment determined to be
$20 million
|
|
|
|
Year 2: November 30 FMV of Investment A
is determined to be $21 million, and Investment B is sold
for $18 million
|
|
|
|
Year 3: Investment A is sold for
$23 million
|
The impact, if any, on the capital gains portion of the
incentive fee would be:
|
|
|
|
|
Year 1: No impact
|
|
|
|
Year 2: Reduce base amount on which the
capital gains portion of the incentive fee is calculated by
$2 million (realized capital loss on Investment B)
|
|
|
|
Year 3: Increase base amount on which the
capital gains portion of the incentive fee is calculated by
$3 million (realized capital gain on Investment A)
|
Alternative
4
Assumptions
|
|
|
|
|
Year 1: $20 million investment made in
company A (Investment A), and $20 million
investment made in company B (Investment B) and
November 30 FMV of each investment determined to be
$20 million
|
|
|
|
Year 2: November 30 FMV of Investment A
is determined to be $21 million and FMV of Investment B is
determined to be $17 million
|
|
|
|
Year 3: November 30 FMV of Investment A
is determined to be $18 million and FMV of Investment B is
determined to be $18 million
|
|
|
|
Year 4: November 30 FMV of Investment A
is determined to be $19 million and FMV of Investment B is
determined to be $21 million
|
|
|
|
Year 5: Investment A is sold for
$17 million and Investment B is sold for $23 million
|
The impact, if any, on the capital gains portion of the
incentive fee would be:
|
|
|
|
|
Year 1: No impact
|
|
|
|
Year 2: Reduce base amount on which the
capital gains portion of the incentive fee is calculated by
$3 million (unrealized capital depreciation on Investment B)
|
|
|
|
Year 3: Reduce base amount on which the
capital gains portion of the incentive fee is calculated by
$2 million (unrealized capital depreciation on Investment A)
|
|
|
|
Year 4: No impact
|
|
|
|
Year 5: Increase base amount on which the
second part of the incentive fee is calculated by
$5 million ($6 million of realized capital gain on
Investment B partially offset by $1 million of realized
capital loss on Investment A) (less the amount, if any, of the
unrealized capital depreciation on Investment A from Year 3 and
the unrealized capital depreciation on Investment B from Year 2
that did not actually reduce the capital gains portion of
incentive fees that would otherwise have been payable to our
Advisor in prior years)
|
65
Payment
of Our Expenses
We will bear all expenses not specifically assumed by our
Advisor and incurred in our operations, we have borne the
expenses related to the private placement of our common shares
and warrants and we will bear the expenses related to this
offering. The compensation and allocable routine overhead
expenses of all investment professionals of our Advisor and its
staff, when and to the extent engaged in providing us investment
advisory services, is provided and paid for by our Advisor and
not us. The compensation and expenses borne by us include, but
are not limited to, the following:
|
|
|
|
|
other than as provided in the paragraph above, expenses of
maintaining and continuing our existence and related overhead,
including, to the extent such services are provided by personnel
of our Advisor or its affiliates, office space and facilities
and personnel compensation, training and benefits,
|
|
|
|
commissions, spreads, fees and other expenses connected with the
acquisition, holding and disposition of securities and other
investments including placement and similar fees in connection
with direct placements entered into on our behalf,
|
|
|
|
auditing, accounting and legal expenses (including costs
associated with the implementation of our Sarbanes-Oxley
internal controls and procedures over financial reporting),
|
|
|
|
taxes and interest,
|
|
|
|
governmental fees,
|
|
|
|
expenses of listing our shares with a stock exchange, and
expenses of issue, sale, repurchase and redemption (if any) of
our interests, including expenses of conducting tender offers
for the purpose of repurchasing our securities,
|
|
|
|
expenses of registering and qualifying us and our securities
under federal and state securities laws and of preparing and
filing registration statements and amendments for such purposes,
|
|
|
|
expenses of communicating with stockholders, including website
expenses and the expenses of preparing, printing and mailing
press releases, reports and other notices to stockholders and of
meetings of stockholders and proxy solicitations therefor,
|
|
|
|
expenses of reports to governmental officers and commissions,
|
|
|
|
insurance expenses,
|
|
|
|
association membership dues,
|
|
|
|
fees, expenses and disbursements of custodians and subcustodians
for all services to us (including without limitation safekeeping
of funds, securities and other investments, keeping of books,
accounts and records, and determination of net asset values),
|
|
|
|
fees, expenses and disbursements of transfer agents, dividend
and interest paying agents, stockholder servicing agents and
registrars for all services to us,
|
|
|
|
compensation and expenses of our directors who are not members
of our Advisors organization,
|
|
|
|
pricing, valuation and other consulting or analytical services
employed in considering and valuing our actual or prospective
investments,
|
|
|
|
all expenses incurred in leveraging of our assets through a line
of credit or other indebtedness or issuing and maintaining
preferred shares,
|
|
|
|
all expenses incurred in connection with our organization and
any offering of our common shares, including our private
placement and this offering, and
|
66
|
|
|
|
|
such non-recurring items as may arise, including expenses
incurred in litigation, proceedings and claims and our
obligation to indemnify our directors, officers and stockholders
with respect thereto.
|
Duration
and Termination
The investment advisory agreement was approved by our board of
directors on September 12, 2005. Unless terminated earlier
as described below, it will continue in effect for a period of
two years from its effective date. It will remain in effect from
year to year thereafter if approved annually by our board of
directors or by the affirmative vote of the holders of a
majority of our outstanding voting securities, and, in either
case, upon approval by a majority of our directors who are not
interested persons or parties to the investment advisory
agreement. The investment advisory agreement will automatically
terminate in the event of its assignment. The investment
advisory agreement may be terminated by us without penalty upon
not more than 60 days written notice to our Advisor.
The investment advisory agreement may also be terminated by our
Advisor without penalty upon not less than 60 days
written notice to us.
Liability
of Advisor
The investment advisory agreement provides that our Advisor will
not be liable to us in any way for any default, failure or
defect in any of the securities comprising our portfolio if it
has satisfied the duties and the standard of care, diligence and
skill set forth in the investment advisory agreement. However,
our Advisor will be liable to us for any loss, damage, claim,
cost, charge, expense or liability resulting from our
Advisors willful misconduct, bad faith or gross negligence
or disregard by our Advisor of its duties or standard of care,
diligence and skill set forth in the investment advisory
agreement or a material breach or default of our Advisors
obligations under that agreement.
Board
Approval of the Investment Advisory Agreement
Our board of directors, including a majority of the independent
directors, reviewed and approved the investment advisory
agreement on September 12, 2005.
In considering the approval of the investment advisory
agreement, our board of directors evaluated information provided
by our Advisor and their legal counsel and considered various
factors, including the following:
|
|
|
|
|
Services. Our board of directors reviewed the
nature, extent and quality of the investment advisory and
administrative services proposed to be provided to us by our
Advisor and found them sufficient to encompass the range of
services necessary for our operation.
|
|
|
|
Comparison of Management Fee to Other
Firms. Our board of directors reviewed and
considered to the extent publicly available, the management fee
arrangements of companies with similar business models,
including business development companies.
|
|
|
|
Experience of Management Team and
Personnel. Our board of directors considered the
extensive experience of the members of our Advisors
investment committee with respect to the specific types of
investments we propose to make, and their past experience with
similar kinds of investments. Our board of directors discussed
numerous aspects of the investment strategy with members of our
Advisors investment committee and also considered the
potential flow of investment opportunities resulting from the
numerous relationships of our Advisors investment
committee and investment professionals within the investment
community.
|
|
|
|
Provisions of Investment Advisory
Agreement. Our board of directors considered the
extent to which the provisions of the investment advisory
agreement (other than the fee structure which is discussed
above) were comparable to the investment advisory agreements and
administration agreements of companies with similar business
models, including, peer group business development companies,
and concluded that its terms were satisfactory and in line with
market norms. In addition, our board of directors concluded that
the services to be provided under the
|
67
|
|
|
|
|
investment advisory agreement were reasonably necessary for our
operations, the services to be provided were at least equal to
the nature and quality of those provided by others, and the
payment terms were fair and reasonable in light of usual and
customary charges.
|
|
|
|
|
|
Payment of Expenses. Our board of directors
considered the manner in which our Advisor would be reimbursed
for its expenses at cost and the other expenses for which it
would be reimbursed under the investment advisory agreement. The
board of directors discussed how this structure was comparable
to that of companies with similar business models, including
existing business development companies.
|
Based on the information reviewed and the discussions among the
members of our board of directors, our board of directors,
including all of our independent directors, approved the
investment advisory agreement and the administration agreement
and concluded that the management fee rates were reasonable in
relation to the services to be provided.
License
Agreement
Pursuant to the investment advisory agreement, our Advisor has
consented to our use on a non-exclusive, royalty-free basis, of
the name Tortoise in our name. We will have the
right to use the Tortoise name so long as our
Advisor or one of its approved affiliates remains our investment
advisor. Other than with respect to this limited right, we will
have no legal right to the Tortoise name. This right
will remain in effect for so long as the investment advisory
agreement with our Advisor is in effect and will automatically
terminate if the investment advisory agreement were to terminate
for any reason, including upon its assignment.
Sub-Advisor
Arrangement
The investment advisory agreement authorizes our Advisor to
delegate any or all of its rights, duties and obligations to one
or more sub-advisors upon receipt of approval of such
sub-advisor by our board of directors and stockholders (unless
such approval is not required by the relevant statutes, rules,
regulations, interpretations, orders, or similar relief). Our
Advisor has entered into a sub-advisory agreement with Kenmont.
Kenmont is a Houston, Texas based registered an investment
advisor with experience investing in privately-held and public
companies in the U.S. energy and power sectors. Kenmont
provides additional contacts and enhances the number and range
of potential investment opportunities in which we have the
opportunity to invest. Kenmont Special Opportunities Master
Fund LP purchased 666,666 of our common shares and 166,666
of our warrants in the initial closing of our offering of common
shares and warrants on December 8, 2005. Pursuant to the
sub-advisory agreement with Kenmont, Kenmont (i) assists in
identifying potential investment opportunities, subject to the
right of Kenmont to first show investment opportunities that it
identifies to other funds or accounts for which Kenmont is the
primary advisor, (ii) assists, as requested but subject to
a limit of 20 hours per month, in the analysis of
investment opportunities as requested by our Advisor, and
(iii) if requested by our Advisor, assists in hiring an
additional investment professional for the Advisor who will be
located in Houston, Texas and for whom Kenmont will make office
space available. Kenmont will not make any investment decisions
on our behalf, but will recommend potential investments to, and
assist in the investment analysis undertaken by, our Advisor.
Our Advisor compensates Kenmont for the services it provides to
us. Our Advisor indemnifies and holds us harmless from any
obligation to pay or reimburse Kenmont for any fees or expenses
incurred by Kenmont in providing such services to us. Kenmont
will be indemnified by us for certain claims related to the
services it provides. In addition to any termination rights we
may have under the 1940 Act, the sub-advisory agreement between
the Advisor and Kenmont may be terminated by our Advisor in
limited circumstances.
Kenmont is a Texas limited partnership that serves as investment
advisor to pooled investment vehicles and managed accounts. The
principals of Kenmont have collectively created and managed
private equity portfolios in excess of $1.5 billion and
have over 50 years of experience working for investment
banks, commercial banks, accounting firms, operating companies
and money management firms.
68
CERTAIN
RELATIONSHIPS AND RELATED TRANSACTIONS
We have entered into the investment advisory agreement with our
Advisor, an entity in which certain of our officers and
directors have ownership and financial interests. Our
Advisors services under the investment advisory agreement
will not be exclusive, and it is free to furnish the same or
similar services to other entities, including businesses that
may directly or indirectly compete with us so long as its
services to us are not impaired by the provision of such
services to others. In addition, the publicly traded funds and
private accounts managed by our Advisor may make investments
similar to investments that we may pursue. Although we currently
are not generally targeting similar investment opportunities as
other entities advised by our Advisor, this may change in the
future. It is thus possible that our Advisor might allocate
investment opportunities to other entities, and thus might
divert attractive investment opportunities away from us.
However, our Advisor intends to allocate investment
opportunities in a fair and equitable manner consistent with our
investment objectives and strategies, so that we will not be
disadvantaged in relation to any other client.
Our independent directors will review any investment decisions
that may present potential conflicts of interest among our
Advisor and its affiliates and us in accordance with specific
procedures and policies adopted by our board of directors.
Pursuant to the investment advisory agreement, our Advisor has
consented to our use on a non-exclusive, royalty-free basis, of
the name Tortoise in our name. We will have the
right to use the Tortoise name so long as our
Advisor or one of its approved affiliates remains our investment
advisor. Other than with respect to this limited right, we will
have no legal right to the Tortoise name. This right
will remain in effect for so long as the investment advisory
agreement with our Advisor is in effect and will automatically
terminate if the investment advisory agreement were to terminate
for any reason, including upon its assignment.
Our Advisor has entered into a sub-advisory agreement with
Kenmont. Kenmont is an investment advisor with experience
investing in privately-held and public companies in the
U.S. energy and power sectors. Kenmont provides additional
contacts and enhances the number and range of potential
investment opportunities in which we have the opportunity to
invest. Our Advisor compensates Kenmont for the services it
provides to us. Our Advisor also indemnifies and holds us
harmless from any obligation to pay or reimburse Kenmont for any
fees or expenses incurred by Kenmont in providing such services
to us. Kenmont will be indemnified by the Advisor for certain
claims related to the services it provides and obligations
assumed under the sub-advisory agreement. Kenmont Special
Opportunities Master Fund LP, an affiliate of Kenmont,
purchased 666,666 of our common shares and 166,666 of our
warrants in the initial closing of our offering of common shares
and warrants on December 8, 2005.
69
CONTROL
PERSONS AND PRINCIPAL STOCKHOLDERS
The following table sets forth certain beneficial ownership
information with respect to our common shares for those persons
who directly or indirectly own, control or hold with the power
to vote, 5% or more of our common shares prior to this offering
and all our officers and directors and the managing directors of
our Advisor, as a group. One of the beneficial owners of more
than 5% of our common shares is Kenmont Special Opportunities
Master Fund LP, an affiliate of our sub-advisor Kenmont.
Except as otherwise noted, the address for all stockholders in
the table below is c/o Tortoise Capital Advisors, 10801
Mastin Boulevard, Suite 222, Overland Park, Kansas 66210.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Percentage of
|
|
|
Percentage of
|
|
|
|
|
|
|
|
|
|
Common Shares
|
|
|
Common Shares
|
|
|
|
Common Shares
|
|
|
Warrants
|
|
|
Outstanding Before
|
|
|
Outstanding After
|
|
Name
|
|
Owned
|
|
|
Owned
|
|
|
Offering(1)
|
|
|
Offering(2)
|
|
|
Beneficial Owners of more than
5%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Kenmont Special Opportunities
Master Fund, L.P.(3)
|
|
|
666,666
|
|
|
|
166,666
|
|
|
|
21.58
|
%
|
|
|
|
%
|
Rockbay Capital Management, L.P.(4)
|
|
|
466,666
|
|
|
|
116,666
|
|
|
|
15.11
|
%
|
|
|
|
%
|
Delta Onshore, LP(5)
|
|
|
182,466
|
|
|
|
45,616
|
|
|
|
5.91
|
%
|
|
|
|
%
|
Directors and Executive
Officers:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interested
Directors
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
H. Kevin Birzer(6)
|
|
|
5,300
|
|
|
|
1,325
|
|
|
|
|
*
|
|
|
|
*
|
Terry Matlack(7)
|
|
|
2,467
|
|
|
|
616
|
|
|
|
|
*
|
|
|
|
*
|
Independent
Directors
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Conrad S. Ciccotello(8)
|
|
|
1,000
|
|
|
|
250
|
|
|
|
|
*
|
|
|
|
*
|
John R. Graham(9)
|
|
|
4,000
|
|
|
|
1,000
|
|
|
|
|
*
|
|
|
|
*
|
Charles E. Heath(10)
|
|
|
3,000
|
|
|
|
750
|
|
|
|
|
*
|
|
|
|
*
|
Executive
Officers
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
David J. Schulte
|
|
|
4,517
|
|
|
|
1,128
|
|
|
|
|
*
|
|
|
|
*
|
Zachary A. Hamel
|
|
|
1,667
|
|
|
|
416
|
|
|
|
|
*
|
|
|
|
*
|
Kenneth P. Malvey
|
|
|
1,392
|
|
|
|
347
|
|
|
|
|
*
|
|
|
|
*
|
Directors and Executive
Officers as a Group (8 persons)
|
|
|
23,343
|
|
|
|
5,832
|
|
|
|
|
*
|
|
|
|
*
|
|
|
|
* |
|
Indicates less than 1%. |
|
|
|
(1) |
|
Based on 3,088,596 common shares and 772,124 warrants
outstanding. Each persons percentage includes all warrants
owned, which warrants become exercisable upon the completion of
this offering. |
|
(2) |
|
Based
on
common shares and 772,124 warrants outstanding. Each
persons percentage includes all warrants owned, which
warrants become exercisable upon the completion of this offering. |
|
(3) |
|
The address of Kenmont Special Opportunities Master Fund, L.P.
is 711 Louisiana, Suite 1750, Houston, TX 77002. |
|
(4) |
|
Rockbay Capital Management, L.P. is the investment manager for
Rockbay Capital Institutional Fund, LLC, Rockbay Capital
Offshore Fund, Ltd. and Rockbay Capital Fund, LLC. Rockbay
Capital Management, L.P. shares voting and dispositive power
with these entities with respect to these securities and, as a
result, beneficially owns these securities. The address of
Rockbay Capital Management, L.P. is 600 Fifth Avenue,
24th Floor, New York, NY 10020. Rockbay Capital Management,
L.P. is controlled by Atul Khanna and Jonathan Baron. |
|
(5) |
|
The address of Delta Onshore, LP is 900 Third Avenue,
5th Floor, New York, NY 10022. |
|
(6) |
|
Of the total number of shares and warrants shown,
Mr. Birzer holds 3,600 shares and 900 warrants jointly
with his wife, Michele Birzer. |
|
(7) |
|
These shares and warrants are held of record by the Matlack
Living Trust dtd 12/30/2004, Terry Matlack, Trustee. |
70
|
|
|
(8) |
|
Mr. Ciccotello holds these shares and warrants jointly with
his wife, Elizabeth Ciccotello. |
|
(9) |
|
These shares and warrants are held of record by the John R.
Graham Trust U/A dtd 1/3/92, John R. Graham, Trustee. |
|
(10) |
|
These shares are held of record by the Charles E. Heath
Trust No. 1 dtd U/A 2/1/92, Charles E. Heath and
Kathleen M. Heath, Trustees. |
The following table sets forth the dollar range of equity
securities beneficially owned by each of our directors as of
May 31, 2006.
|
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|
|
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|
|
Aggregate Dollar Range of
|
|
|
|
|
|
|
Equity Securities in All
|
|
|
|
Aggregate Dollar Range of
|
|
|
Registered Investment Companies
|
|
|
|
Company Securities Beneficially
|
|
|
Overseen by Director in Family of
|
|
Name of Director
|
|
Owned by Director(1)
|
|
|
Investment Companies(2)
|
|
|
Independent Directors
|
|
|
|
|
|
|
|
|
Conrad S. Ciccotello
|
|
$
|
10,001 $50,000
|
|
|
|
Over $100,000
|
|
John R. Graham
|
|
$
|
50,001 $100,000
|
|
|
|
Over $100,000
|
|
Charles E. Heath
|
|
$
|
10,001 $50,000
|
|
|
|
Over $100,000
|
|
Interested Directors
|
|
|
|
|
|
|
|
|
H. Kevin Birzer
|
|
$
|
50,001 $100,000
|
|
|
|
Over $100,000
|
|
Terry C. Matlack
|
|
$
|
10,001 $50,000
|
|
|
|
Over $100,000
|
|
|
|
|
(1) |
|
The value of the securities is determined by reference to the
net asset value of our common shares on May 31, 2006
($13.80 per common share), and includes the net value of
all warrants to purchase common shares held by each director. |
|
(2) |
|
Includes TYG, TYY and TYN and us. Amounts based on the
calculation for us referenced in footnote (1) above and the
closing price of the common shares of TYG, TYY and TYN on the
NYSE on July 31, 2006. |
The following table sets forth the dollar range of equity
securities of the Company beneficially owned by each member of
our Advisors investment committee as of May 31, 2006.
The value of the securities is determined by reference to the
net asset value of our common shares on May 31, 2006
($13.80 per common share), and includes the net value of all
warrants to purchase common shares held by members of our
Advisors investment committee.
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|
|
|
|
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Aggregate Dollar Range
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|
|
|
of Company Securities
|
|
Name
|
|
Beneficially Owned by Manager
|
|
|
H. Kevin Birzer
|
|
$
|
50,001 $100,000
|
|
Zachary A. Hamel
|
|
$
|
10,001 $50,000
|
|
Kenneth P. Malvey
|
|
$
|
10,001 $50,000
|
|
Terry C. Matlack
|
|
$
|
10,001 $50,000
|
|
David J. Schulte
|
|
$
|
50,001 $100,000
|
|
DIVIDEND
REINVESTMENT PLAN
If a stockholders shares are registered directly with us
or with a brokerage firm that participates in our Automatic
Dividend Reinvestment Plan (Plan) through the
facilities of DTC and such stockholders account is coded
dividend reinvestment by such brokerage firm, all distributions
are automatically reinvested for stockholders by the Plan Agent,
Computershare Trust Company, Inc., in additional common shares
(unless a stockholder is ineligible or elects otherwise). If a
stockholders shares are registered with a brokerage firm
that participates in the Plan through the facilities of DTC, but
such stockholders account is not coded dividend
reinvestment by such brokerage firm or if a stockholders
shares are registered with a brokerage firm that does not
participate in the Plan through the facilities of DTC, a
stockholder will need to ask their investment
71
executive to determine what arrangements can be made to set up
their account to participate in the Plan. In either case, until
such arrangements are made, a stockholder will receive
distributions in cash.
Stockholders who elect not to participate in the Plan will
receive all distributions payable in cash paid by check mailed
directly to the stockholder of record (or, if the shares are
held in street or other nominee name, then to such nominee) by
Computershare Trust Company, Inc., as dividend paying agent.
Participation in the Plan is completely voluntary and may be
terminated or resumed at any time without penalty by giving
notice in writing to, or by calling, the Plan Agent; such
termination will be effective with respect to a particular
distribution if notice is received prior to the record date for
the next dividend.
Whenever we declare a distribution payable either in common
shares or in cash, non-participants in the Plan will receive
cash, and participants in the Plan will receive the equivalent
in common shares. The shares are acquired by the Plan Agent for
the participants account, depending upon the circumstances
described below, either (i) through receipt of additional
common shares from the Company or (ii) by purchase of
outstanding common shares on the open market (open-market
purchases) on the NYSE or elsewhere. If, on the payment
date, the net asset value per share of the common shares is
equal to or less than the market price per common share plus
estimated brokerage commissions (such condition being referred
to herein as market premium), the Plan Agent will
receive Additional common shares from the Company for each
participants account. The number of additional common
shares to be credited to the participants account will be
determined by dividing the dollar amount of the dividend or
distribution by the greater of (i) the net asset value per
common share on the payment date, or (ii) % of
the market price per common share on the payment date.
If, on the payment date, the net asset value per common share
exceeds the market price plus estimated brokerage commissions
(such condition being referred to herein as market
discount), the Plan Agent has until the last business day
before the next date on which the shares trade on an
ex-dividend basis or in no event more than
90 days after the payment date (last purchase
date) to invest the distribution amount in shares acquired
in open-market purchases. It is contemplated that we will
declare and pay quarterly distributions. Therefore, the period
during which open-market purchases can be made will exist only
from the payment date on the distribution through the date
before the next ex-dividend date. The weighted average price
(including brokerage commissions) of all common shares purchased
by the Plan Agent as Plan Agent will be the price per common
share allocable to each participant. If, before the Plan Agent
has completed its open-market purchases, the market price of a
common share plus estimated brokerage commissions exceeds the
net asset value per share, the average per share purchase price
paid by the Plan Agent may exceed the net asset value of our
common shares, resulting in the acquisition of fewer common
shares than if the distribution had been paid in additional
common shares on the payment date. Because of the foregoing
difficulty with respect to open-market purchases, the Plan
provides that if the Plan Agent is unable to invest the full
dividend amount in open-market purchases during the purchase
period or if the market discount shifts to a market premium
during the purchase period, the Plan Agent will cease making
open-market purchases and will invest the uninvested portion of
the distribution amount in Additional common shares at the close
of business on the last purchase date.
The Plan Agent maintains all stockholders accounts in the
Plan and furnishes written confirmation of each acquisition made
for the participants account as soon as practicable, but
in no event later than 60 days after the date thereof.
Shares in the account of each Plan participant will be held by
the Plan Agent in non-certificated form in the Plan Agents
name or that of its nominee, and each stockholders proxy
will include those shares purchased or received pursuant to the
Plan. The Plan Agent will forward all proxy solicitation
materials to participants and vote proxies for shares held
pursuant to the Plan first in accordance with the instructions
of the participants then with respect to any proxies not
returned by such participant, in the same proportion as the Plan
Agent votes the proxies returned by the participants.
There will be no brokerage charges with respect to shares issued
directly by us as a result of distributions payable either in
shares or in cash. However, each participant will pay a pro rata
share of brokerage commissions incurred with respect to the Plan
Agents open-market purchases in connection with the
reinvestment of distributions. If a participant elects to have
the Plan Agent sell part or all of his or her
72
common shares and remit the proceeds, such participant will be
charged his or her pro rata share of brokerage commissions on
the shares sold plus a
$
transaction fee. The automatic reinvestment of distributions
will not relieve participants of any federal, state or local
income tax that may be payable (or required to be withheld) on
such distributions. See Certain U.S. Federal Income Tax
Considerations.
Stockholders participating in the Plan may receive benefits not
available to stockholders not participating in the Plan. If the
market price plus commissions of our common shares is higher
than the net asset value, participants in the Plan will receive
common shares at less than they could otherwise purchase such
shares and will have shares with a cash value greater than the
value of any cash distribution they would have received on their
shares. If the market price plus commissions is below the net
asset value, participants will receive distributions of common
shares with a net asset value greater than the value of any cash
distribution they would have received on their shares. However,
there may be insufficient shares available in the market to make
distributions in shares at prices below the net asset value.
Also, because we do not redeem our common shares, the price on
resale may be more or less than the net asset value. See
Certain U.S. Federal Income Tax Considerations for a
discussion of tax consequences of the Plan.
Experience under the Plan may indicate that changes are
desirable. Accordingly, we reserve the right to amend or
terminate the Plan if in the judgment of the Board of Directors
such a change is warranted. The Plan may be terminated by the
Plan Agent or us upon notice in writing mailed to each
participant at least 60 days prior to the effective date of
the termination. Upon any termination, the Plan Agent will cause
a certificate or certificates to be issued for the full shares
held by each participant under the Plan and cash adjustment for
any fraction of a common share at the then current market value
of the common shares to be delivered to him or her. If
preferred, a participant may request the sale of all of the
common shares held by the Plan Agent in his or her Plan account
in order to terminate participation in the Plan. If such
participant elects in advance of such termination to have the
Plan Agent sell part or all of his or her shares, the Plan Agent
is authorized to deduct from the proceeds a $15.00 fee plus the
brokerage commissions incurred for the transaction. If a
participant has terminated his or her participation in the Plan
but continues to have common shares registered in his or her
name, he or she may re-enroll in the Plan at any time by
notifying the Plan Agent in writing at the address below. The
terms and conditions of the Plan may be amended by the Plan
Agent or us at any time, except when necessary or appropriate to
comply with applicable law or the rules or policies of the SEC
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 shall be
deemed to be accepted by each participant unless, prior to the
effective date thereof, the Plan Agent receives notice of the
termination of the participants account under the Plan.
Any such amendment may include an appointment by the Plan Agent
of a successor Plan Agent, subject to the prior written approval
of the successor Plan Agent by us.
All correspondence concerning the Plan should be directed to
Computershare Trust Company, Inc. at 2 North LaSalle Street,
Chicago, Illinois 60602 or
1-800-727-0254.
DETERMINATION
OF NET ASSET VALUE
We will determine our net asset value per common share on a
quarterly basis. For purposes of determining the net asset value
of our common shares, we will calculate the net asset value,
which will equal the value of our total assets (the value of the
securities we hold plus cash or other assets, including interest
accrued but not yet received) less all of our liabilities,
including but not limited to (i) accrued and unpaid
interest on any outstanding indebtedness, (ii) the
aggregate principal amount of any outstanding indebtedness, and
(iii) any distributions payable on our common shares. Our
net asset value per common share will equal our net asset value
divided by the number of outstanding common shares.
We will use the 1940 Acts definition of value in
calculating the value of our total assets. The 1940 Act
defines value as (i) the market price for those securities
for which a market quotation is readily available and
(ii) for all other securities and assets, fair value as
determined in good faith by our board of directors.
73
Valuation
Methodology Public Finance
Our process for determining the market price of an investment
will be as follows. For equity securities, we will first use
readily available market quotations and will obtain direct
written broker-dealer quotations if a security is not traded on
an exchange or quotations are not available from an approved
pricing service. For fixed income securities, we will use
readily available market quotations based upon the last updated
sale price or market value from a pricing service or by
obtaining a direct written broker-dealer quotation from a dealer
who has made a market in the security. If no sales are reported
on any exchange or OTC market, we will use the calculated mean
based on bid and asked prices obtained from the primary exchange
or OTC market. Other assets will be valued at market value
pursuant to written valuation procedures.
Valuation
Methodology Private Finance
Because we expect to invest principally in private companies,
there generally will not be a readily available market price for
these investments. Therefore, we will value substantially all of
our investments at fair value in good faith. There is no single
standard for determining fair value in good faith. As a result,
determining fair value requires that judgment be applied to the
specific facts and circumstances of each investment while
employing a consistently applied valuation process for the types
of investments we make. Unlike banks, we are not permitted to
provide a general reserve for anticipated loan losses. Instead,
we will specifically value each individual investment on a
quarterly basis. We will record unrealized depreciation on
investments when we believe that an investment has become
impaired, including where collection of a loan or realization of
an equity security is doubtful, or when our estimate of the
enterprise value of an investment does not currently support the
cost of our debt or equity investment. We will record unrealized
appreciation if we believe that the underlying company has
appreciated in value and, therefore, our equity security also
has appreciated in value. Changes in fair value are recorded in
our statement of operations as net change in unrealized
appreciation or depreciation.
We expect our investments to include many terms governing
interest rate, repayment terms, prepayment penalties, financial
covenants, operating covenants, ownership parameters, dilution
parameters, liquidation preferences, voting rights, and put or
call rights. Our investments are generally subject to
restrictions on resale and generally have no established trading
market. Because of the type of investments that we make and the
nature of our business, our valuation process requires an
analysis of various factors. Our fair value methodology includes
the examination of, among other things, the underlying
investment performance, financial condition, and market changing
events that impact valuation.
Our process for determining the fair value of a security of a
private investment will begin with determining the enterprise
value of the company that issued the security. The fair value of
our investment will be based on the enterprise value at which a
company could be sold in an orderly disposition over a
reasonable period of time between willing parties other than in
a forced or liquidation sale.
There is no one methodology to determine enterprise value and,
in fact, for any one company, enterprise value may best be
expressed as a range of fair values, from which we will derive a
single estimate of enterprise value. To determine the enterprise
value of a company, we will analyze its historical and projected
financial results. We will generally require companies in which
we invest to provide us with annual audited, and quarterly and
monthly unaudited, financial statements, as well as annual
projections for the upcoming fiscal year. We expect to value
companies on discounted cash flow analysis and multiples of
EBITDA, cash flow, net income, revenues or, in some instances,
book value. We expect to use financial measures such as EBITDA
or EBITDAM (Earnings Before Interest, Taxes, Depreciation,
Amortization and, in some instances, management fees) in order
to assess a portfolio companys financial performance and
to value a portfolio company. EBITDA and EBITDAM are not
intended to represent cash flow from operations as defined by
U.S. generally accepted accounting principles and such
information should not be considered as an alternative to net
income, cash flow from operations, or any other measure of
performance prescribed by U.S. generally accepted
accounting principles. When using EBITDA to determine enterprise
value, we may adjust EBITDA for non-recurring items. Such
adjustments are intended to normalize EBITDA to reflect a
74
portfolio companys earning power. Adjustments to EBITDA
may include acquisition, recapitalization, or restructuring
related items or one-time non-recurring income or expense items.
In determining a multiple to use for valuation purposes, we will
look to private merger and acquisition statistics, discounted
public trading multiples or industry practice. In estimating a
reasonable multiple, we will consider not only the fact that the
portfolio company may be a private company relative to a peer
group of public companies, but we also will consider the size
and scope of the company and its specific strengths and
weaknesses. If a company is distressed, a liquidation analysis
may provide the best indication of enterprise value.
If the portfolio company has an adequate enterprise value to
support the repayment of our debt, the fair value of our loan or
debt security normally correspond to cost unless the portfolio
companys condition or other factors lead to a
determination of fair value at a different amount. When we
receive nominal cost warrants or free equity securities
(nominal cost equity), we will allocate our cost
basis in our investment between debt securities and nominal cost
equity at the time of origination. At that time, the original
issue discount basis of the nominal cost equity is recorded by
increasing the cost basis in the equity and decreasing the cost
basis in the related debt securities. The fair value of equity
interests in portfolio companies is determined based on various
factors, including the enterprise value remaining for equity
holders after the repayment of our debt and other preference
capital, and other pertinent factors such as recent offers to
purchase a company, recent transactions involving the purchase
or sale of the equity securities of the company, or other
liquidation events. The determined equity values are generally
discounted when we have a minority position, are subject to
restrictions on resale, have specific concerns about the
receptivity of the capital markets to a specific company at a
certain time, or other comparable factors exist.
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Investment Team Valuation. Each portfolio
company or investment will initially be valued by the investment
professionals of the Advisor responsible for the portfolio
investment. As a part of this process, materials will be
prepared containing their supporting analysis.
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Third Party Valuation Activity. We expect that
our board of directors will retain an independent valuation firm
to review, as requested from time to time by the independent
directors, the valuation report provided by our investment team.
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Investment Committee Valuation. The investment
committee of our Advisor will review the investment team
valuation report and the analysis of the independent valuation
firm, if applicable, and determine valuations to be considered
by the board of directors.
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Final Valuation Determination. Our board of
directors will consider the investment committee valuations,
including supporting documentation, and analysis of the
independent valuation firm, if applicable, and determine the
fair value of each investment in our portfolio in good faith.
|
There will typically be no readily available market value for
our investments. Because of the inherent uncertainty in
determining the fair value of investments that do not have a
readily available market value, the fair value of our
investments determined in good faith by our board of directors
may be materially different from the values that would have been
used had a ready market existed for the investments.
We expect to invest in one or more taxable subsidiaries formed
by us to make and hold certain investments in accordance with
our investment objective. We will value our investment in such a
subsidiary based on the net asset value of the subsidiary. The
net asset value of the subsidiary will be computed by
subtracting from the value of all of the subsidiarys
assets all of its liabilities, including but not limited to
taxes. The subsidiarys portfolio securities will be valued
in accordance with the same valuation procedures applied to our
portfolio companies.
Determination of fair value involves subjective judgments and
estimates not susceptible to substantiation by auditing
procedures. Accordingly, under current auditing standards, the
notes to our financial statements will refer to the uncertainty
with respect to the possible effect of such valuations, and any
change in such valuations, on our financial statements.
75
CERTAIN
U.S. FEDERAL INCOME TAX CONSIDERATIONS
The following discussion is a general summary of the material
U.S. federal income tax considerations that are applicable
to us and to an investment in our common shares by a
U.S. stockholder (as defined below). This summary does not
purport to be a complete description of the income tax
considerations applicable to such an investment. For example,
the following discussion does not describe income tax
consequences that are assumed to be generally known by
U.S. stockholders or certain considerations that may be
relevant to certain types of U.S. stockholders subject to
special treatment under U.S. federal income tax laws,
including tax-exempt organizations, insurance companies, dealers
in securities, pension plans and trusts and financial
institutions. This summary assumes that U.S. stockholders
hold our common shares as capital assets (within the meaning of
the Code). The discussion is based upon the Code, Treasury
regulations, and administrative and judicial interpretations,
each as of the date of this prospectus and all of which are
subject to change, possibly retroactively, which could affect
the continuing validity of this discussion. We have not and will
not seek any ruling from the Internal Revenue Service (the
Service) regarding this offering. This summary does
not discuss any aspects of U.S. estate or gift tax or
foreign, state or local tax and does not discuss any tax
consequences to investors that are not U.S. stockholders.
It does not discuss the special treatment under
U.S. federal income tax laws that could result if we
invested in tax-exempt securities or certain other investment
assets.
A U.S. stockholder generally is a beneficial
owner of our common shares that is, for U.S. federal income
tax purposes, any one of the following:
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a citizen or resident of the United States;
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a corporation, partnership or other entity created in or
organized under the laws of the United States or any political
subdivision thereof;
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an estate, the income of which is subject to U.S. federal
income taxation regardless of its source; or
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a trust subject to the supervision of a court within the United
States and the control of a United States person.
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A
Non-U.S. Stockholder
is a beneficial owner of our common shares that is not a
U.S. Stockholder.
If a partnership (including an entity or arrangement treated as
a partnership for U.S. federal income tax purposes) holds
our common shares, the tax treatment of a partner in the
partnership will generally depend upon the status of the partner
and the activities of the partnership. A prospective stockholder
that is a partnership holding our common shares or a partner of
such a partnership should consult his, her or its own tax
advisor with respect to the purchase, ownership and disposition
of our common shares.
Tax matters are very complicated and the tax consequences to a
U.S. stockholder of an investment in our common shares will
depend on the facts of his, her or its particular situation. We
encourage investors to consult their own tax advisors regarding
the specific consequences of such an investment, including tax
reporting requirements, the applicability of federal, state,
local and foreign tax laws and the effect of any possible
changes in the tax laws.
Current
Federal Income Taxation of the Company
We have been formed as a corporation under Maryland law. We
currently are, and have always been, treated as a general
business corporation for U.S. federal income tax purposes.
Thus, we have computed and paid federal income tax on our
taxable income without regard to the rules applicable to RICs.
Currently, the maximum marginal regular federal income tax rate
for a corporation is 35%. We may be subject to a 20% federal
alternative minimum tax on our federal alternative minimum
taxable income to the extent that our alternative minimum tax
exceeds our regular federal income tax.
If we make a distribution on the common shares, the distribution
will be treated as a taxable dividend to a U.S. stockholder
to the extent of our current or accumulated earnings and
profits, whether the distribution
76
is paid in cash or in additional common shares. If the
distribution exceeds our earnings and profits, the distribution
will be treated as a tax-free return of capital to the
U.S. stockholder, to the extent of the
U.S. stockholders adjusted tax basis in its common
shares, and then as capital gain. Generally, our earnings and
profits are computed based upon taxable income, with certain
specified adjustments. During the periods in which we are taxed
as a general business corporation, a corporate
U.S. stockholder generally will be eligible for the
dividends-received deduction generally allowed
U.S. corporations in respect of dividends received from
U.S. corporations. During the periods in which we are taxed
as a general business corporation, dividends paid by us in
taxable years beginning before January 1, 2011 to a
non-corporate U.S. stockholder that meet certain holding
period and other requirements will be subject to federal income
taxation at a reduced rate of 15% or lower.
Intended
Election to be Taxed as a RIC
Although we were formed as a general business corporation, we
intend to elect to be treated as a RIC effective as of
December 1, 2006. If we qualify as a RIC, we generally will
not have to pay corporate-level federal income taxes on any
ordinary income or capital gains that we distribute to our
stockholders as dividends. From the date hereof through the
effective date of our intended RIC election, we will continue to
be taxed as a general business corporation as described above.
Any capital gains we recognize from now through the effective
date of our intended RIC election will, when distributed to our
stockholders, be taxed as ordinary income (and not as capital
gains, as would have been the case had we been taxed as a RIC as
of the date hereof).
To qualify as a RIC, we must, among other things, qualify as a
BDC and meet certain
source-of-income
and asset diversification requirements (as described below). In
addition, in order to obtain the benefits of RIC status, we must
distribute to our stockholders, for each taxable year, at least
90% of our investment company taxable income, which
is generally our ordinary income plus the excess of realized net
short-term capital gains over realized net long-term capital
losses, reduced by deductible expenses (the Annual
Distribution Requirement).
By the end of our first taxable year as a RIC, we also must
eliminate any earnings and profits accumulated while we were
taxable as a general business corporation. We intend to
accomplish this by paying to our stockholders one or more cash
dividends representing substantially all of our accumulated
earnings and profits, if any, for the period from our inception
through the date on which our intended RIC election becomes
effective. The amount of these dividends will be based on a
number of factors, including our results of operations through
the date on which our intended RIC election becomes effective.
We will need to manage our cash or have access to cash to enable
us to pay such dividend or dividends. Any dividend of
accumulated earnings and profits would be taxable to
U.S. stockholders in the manner described above under
Current Federal Income Taxation of the Company.
These dividends, if any, would be in addition to the dividends
we intend to pay of at least 90% of our investment company
taxable income to satisfy the Annual Distribution Requirement.
We anticipate that, on the effective date of that election, we
may hold assets (including intangible assets not reflected on
the balance sheet, such as goodwill) with built-in
gain, which are assets whose fair market value as of the
effective date of the election exceeds their tax basis. In
general, a corporation that converts to taxation as a RIC must
pay corporate-level federal income tax on any of the net
built-in gains it recognizes during the
10-year
period beginning on the effective date of its election to be
treated as a RIC. Alternatively, the corporation may elect to
recognize all of its built-in gain at the time of its conversion
and pay such tax on the built-in gain at that time. We may or
may not make this election. If we do make this election, we will
mark our portfolio to market at the time of our intended RIC
election, pay corporate-level federal income tax on any
resulting taxable income, and distribute resulting earnings at
that time or before the end of the first tax year in which we
qualify as a RIC. If we do not make this election, we will pay
such corporate-level federal income tax as is payable at the
time the built-in gains are recognized (which generally will be
the years in which the built-in gain assets are actually sold in
taxable transactions). The amount of this tax will vary
depending on the assets that are actually sold by us in this
10-year
period, the actual amount of the net built-in gain or loss
present in those assets as of the effective date of our election
to be treated as a
77
RIC and effective tax rates. Recognized built-in gains that are
ordinary in character and the excess of short-term capital gains
over long-term capital losses will be included in our investment
company taxable income, and generally we must distribute
annually at least 90% of any such amounts (net of corporate
taxes we pay on those gains) in order to be eligible for RIC tax
treatment. Any such amount distributed will be taxable to
stockholders as ordinary income. Built-in gains (net of taxes)
that are recognized within the
10-year
period and that are long-term capital gains will also be
distributed (or deemed distributed) annually to our
stockholders. Any such amount distributed (or deemed
distributed) will be taxable to stockholders as capital gains.
Taxation
as a RIC
If we:
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qualify as a RIC; and
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satisfy the Annual Distribution Requirement.
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then we will not be subject to U.S. federal income tax on
the portion of our investment company taxable income and net
capital gain (i.e., net long-term capital gains in
excess of net short-term capital losses) we distribute to our
stockholders, other than any built-in gain recognized within
10 years after the effective date of our RIC
election (as discussed above). We will be subject to
U.S. federal income tax at the regular corporate rate on
any income or capital gain not distributed (or deemed
distributed) to our stockholders.
We will be subject to a 4% nondeductible U.S. federal
excise tax on certain of our undistributed income unless we
distribute in a timely manner an amount at least equal to the
sum of (i) 98% of our ordinary income for each calendar
year, (ii) 98% of our capital gain net income for the
one-year period ending October 31 in that calendar year (or
possibly by November 30, if we so elect), and
(iii) any income realized, but not distributed, in prior
years (the Excise Tax Avoidance Requirement).
Following our intended RIC election, we generally will endeavor
in each taxable year to make sufficient distributions to satisfy
the Excise Tax Avoidance Requirement.
In order to qualify as a RIC for federal income tax purposes, we
must, among other things:
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qualify as a BDC under the 1940 Act at all times during each
taxable year;
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derive in each taxable year at least 90% of our gross income
from dividends, interest, payments with respect to securities
loans, gains from the sale of stocks or other securities, other
income derived with respect to our business of investing in such
stocks or securities or net income derived from an interest in a
qualified publicly traded partnership (the 90% Income
Test); and
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diversify our holdings so that at the end of each quarter of the
taxable year:
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at least 50% of the value of our assets consists of cash, cash
items, U.S. government securities, securities of other
RICs, and other securities if such other securities of any one
issuer do not represent more than 5% of the value of our assets
or more than 10% of the outstanding voting securities of the
issuer; and
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no more than 25% of the value of our assets is invested in the
securities, other than U.S. government securities or
securities of other RICs, of (i) one issuer, (ii) two
or more issuers that are controlled, as determined under
applicable Code rules, by us and that are engaged in the same or
similar or related trades or businesses or (iii) one or
more qualified publicly traded partnerships (the
Diversification Tests).
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Equity securities issued by certain non-traded limited
partnerships in which we may invest may not produce qualifying
income for purposes of determining our compliance with the 90%
gross income test applicable to RICs. As a result, we expect to
form one or more wholly owned taxable subsidiaries to make and
hold certain investments in accordance with our investment
objective. The dividends received from such taxable subsidiaries
will be qualifying income for purposes of the 90% gross income
test. In general, the
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amount of cash received from such wholly owned subsidiaries will
equal the amount of cash received from the limited partnerships
as reduced by income taxes paid by such subsidiaries.
Although we intend that any investment in such taxable
subsidiaries and non-traded limited partnerships will be within
the 25% limit set forth above, it is possible that the IRS will
not respect our determinations that certain taxable subsidiaries
and non-traded limited partnerships are not engaged in the same
or similar trades or businesses or related trades or businesses.
If any such controlled entities are determined to be engaged in
related trades or businesses, our ownership in them would be
aggregated, possibly causing a violation of the 25% limit set
forth above. Failure to meet the Diversification Tests may
result in our having to dispose of certain investments at times
we would not consider advantageous in order to prevent the loss
of RIC status.
Following our intended RIC election, we may be required to
recognize taxable income in circumstances in which we do not
receive cash. For example, if we hold debt obligations that are
treated under applicable tax rules as having original issue
discount (such as debt instruments with
payment-in-kind
interest or, in certain cases, increasing interest rates, or
issued with warrants), we must include in income each year a
portion of the original issue discount that accrues over the
life of the obligation, regardless of whether cash representing
such income is received in the same taxable year. We also may
have to include in income other amounts that we have not yet
received in cash. Because any original issue discount or other
amounts accrued will be included in our investment company
taxable income for the year of accrual, we may be required to
make a distribution to our stockholders in the amount of that
non-cash income in order to satisfy the Annual Distribution
Requirement, even though we will not have received any cash
representing such income.
Thus, we may be required to borrow funds or sell assets to
satisfy distribution requirements. Although we are authorized to
borrow funds and to sell assets in order to satisfy distribution
requirements, certain limitations may exist on our ability to
borrow additional funds or to sell assets due to (i) the
illiquid nature of our portfolio and/or (ii) other
requirements relating to our status as a RIC, including the
Diversification Tests. If we dispose of assets in order to meet
the Annual Distribution Requirement or the Excise Tax Avoidance
Requirement, we may make such dispositions at times that, from
an investment standpoint, are not advantageous. In addition, due
to the asset coverage test applicable to us as a BDC, we may be
limited in our ability to make distributions. See
Regulation. Also, restrictions and provisions in any
future credit facilities or debt securities may limit our
ability to make distributions. Limits on our payment of
dividends may prevent us from meeting the Annual Distribution
Requirement and may, therefore, jeopardize our qualification for
RIC tax benefits or subject us to the 4% excise tax.
If, following our intended RIC election, we fail to satisfy the
Annual Distribution Requirement or otherwise fail to qualify as
a RIC in any taxable year, we will be subject to tax in that
year on all of our taxable income, regardless of whether we make
any distributions to our stockholders. In that case, all of our
income will be subject to corporate-level federal income tax,
reducing the amount available to be distributed to our
stockholders, and all of our distributions to our stockholders
will be characterized as ordinary income (to the extent of our
current and accumulated earnings and profits), which would be
treated as described above under Current Federal Income
Taxation of the Company. In contrast, following the
effective date of our intended RIC election, our corporate-level
federal income tax should be substantially reduced or eliminated
and, as explained below, a portion of our distributions or
deemed distributions may be characterized as long-term capital
gain in the hands of our stockholders. See Intended
Election to be Taxed as a RIC above.
The remainder of this discussion assumes that we qualify as a
RIC and have satisfied the Annual Distribution Requirement.
Taxation
of U.S. Stockholders
Distributions paid from our investment company taxable income,
which include realized net short-term capital gain, generally
are taxable to U.S. stockholders as ordinary income to the
extent of our earnings and profits, whether paid in cash or in
common shares. Such distributions (if designated by us) may
qualify (provided holding period and certain other requirements
are met) (i) for the dividends received deduction available
to corporations (treated as received from a non-20% owned
corporation), but only to the extent that
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our income consists of dividends received from
U.S. corporations, excluding distributions from Code
section 501 tax-exempt organizations, exempt farmers
cooperatives or REITs and (ii) in the case of non-corporate
U.S. stockholders (generally effective for taxable years
beginning on or before December 31, 2010), as qualified
dividend income eligible to be taxed at the reduced maximum rate
of generally 15% (5% for such stockholders in lower tax
brackets) to the extent that we receive qualified dividend
income. Qualified dividend income is, in general, dividend
income from taxable domestic corporations and qualified foreign
corporations (generally, foreign corporations incorporated in a
possession of the United States or in certain countries with a
comprehensive tax treaty with the United States, or the stock of
which is readily tradable on an established securities market in
the United States). A qualified foreign corporation generally
excludes any foreign corporation which for the taxable year of
the corporation in which the dividend was paid, or the preceding
taxable year, is a passive foreign investment company. We do not
know the portion, if any, of such distributions that will
qualify for the dividends received deduction or will constitute
qualified dividends.
Distributions of our net capital gain (which generally are our
realized net long-term capital gains in excess of realized net
short-term capital losses), properly designated by us as capital
gain dividends, if any, are taxable to U.S. stockholders at
rates applicable to long-term capital gain, whether paid in cash
or in common shares, and regardless of how long the
U.S. stockholder has held the common shares. Capital gain
dividends are not eligible for the dividends received deduction.
The maximum tax rate on net capital gain of non-corporate
U.S. stockholders is generally 15% (5% for such
non-corporate stockholders in lower brackets) for such gain
recognized before January 1, 2011. Distributions in excess
of our earnings and profits first reduce the adjusted tax basis
of a U.S. stockholders common shares and, after such
adjusted tax basis is reduced to zero, constitute capital gain
to such U.S. stockholder (assuming the stockholders
common shares are held as a capital asset). For non-corporate
taxpayers, distributions of investment company taxable income
(other than qualified dividend income) will currently be taxed
at a maximum rate of 35%. For corporate taxpayers, both
investment company taxable income and net capital gain are taxed
at a maximum rate of 35%.
We intend to retain for reinvestment some or all of our net
capital gains, but designate the retained amount as a
deemed distribution. If any such gain is retained,
we will be subject to a federal income tax of 35% of such
amount. In that event, we expect to designate the retained
amount as undistributed capital gain in a notice to our
stockholders, and each U.S. stockholder (i) will be
required to include in income for tax purposes as long-term
capital gain its share of such undistributed amounts,
(ii) will be entitled to credit its proportionate share of
the tax paid by us against its U.S. federal income tax
liability and to claim a refund to the extent that the credit
exceeds such liability and (iii) will increase its basis in
its common shares by an amount equal to deemed distribution,
less the tax paid by us. Since we expect to pay tax on any
retained capital gains at our regular corporate capital gain tax
rate, and since that rate is in excess of the maximum rate
currently payable by individuals on long-term capital gains, the
amount of tax that individual U.S. stockholders will be
treated as having paid and for which they will receive a credit
will exceed the tax they owe on the retained net capital gain.
Such excess generally may be claimed as a credit against the
U.S. stockholders other U.S. federal income tax
obligations or may be refunded to the extent it exceeds the
U.S. stockholders liability for federal income tax. A
U.S. stockholder that is not subject to U.S. federal
income tax or otherwise required to file a U.S. federal
income tax return would be required to file a U.S. federal
income tax return on the appropriate form in order to claim a
refund for the taxes we paid. In order to utilize the deemed
distribution approach, we must provide written notice to our
stockholders prior to the expiration of 60 days after the
close of the relevant tax year. Investment company taxable
income may not be treated as part of a deemed
distribution.
U.S. stockholders may be entitled to offset their capital
gain dividends with capital loss. There are a number of
statutory provisions affecting when capital loss may be offset
against capital gain, and limiting the use of loss from certain
investments and activities. Non-corporate U.S. stockholders
with net capital losses for a year (i.e., capital losses in
excess of capital gains) generally may deduct up to $3,000 of
such losses against their ordinary income each year; any net
capital losses of a non-corporate U.S. stockholder in
excess of $3,000 generally may be carried forward and used in
subsequent years as provided in the Code. Corporate
U.S. stockholders generally may not deduct any net capital
losses for a year, but may carry back such losses for three
years or carry forward such losses for five years.
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For purposes of determining (i) whether the Annual
Distribution Requirement is satisfied for any year and
(ii) the amount of capital gains dividends paid for that
year, we may, under certain circumstances, elect to treat a
dividend that is paid during the following taxable year as if it
had been paid during the taxable year in question. If such an
election is made, the U.S. stockholder will be treated as
receiving the dividend in the taxable year in which the
distribution is made and any capital gain dividend will be
treated as a capital gain dividend to the U.S. stockholder.
However, any dividend we declare in October, November, or
December of any calendar year, payable to stockholders of record
on a specified date in such a month and actually paid during
January of the following year, will be treated as if it had been
received by our U.S. stockholders on December 31 of
the year in which the dividend was declared.
We may be subject to the alternative minimum tax
(AMT). In determining our AMT liability, any items
that are treated differently for AMT purposes must be
apportioned between us and our stockholders. Any such items
apportioned to our U.S. stockholders must be included by
them for purposes of determining their AMT liability and may
affect their AMT liabilities. Although regulations providing for
the precise apportionment method have not yet been issued by the
Service, we intend to apportion these items in the same
proportion that dividends paid to each stockholder bear to our
taxable income (determined without regard to the dividends paid
deduction), unless we determine that a different method for a
particular item is warranted under the circumstances.
As indicated above, one requirement to qualify as a RIC is that,
by the end of our first taxable year as a RIC, we must eliminate
the earnings and profits accumulated while we were taxable as a
general business corporation. We intend to accomplish this by
paying to our stockholders one or more cash dividends
representing all of our accumulated earnings and profits, if
any, for the period from our inception through the effective
date of our intended RIC election. The amount of any such
dividends will be treated as ordinary income by our
U.S. stockholders, and our U.S. stockholders will
include such dividends in their income when received (or
constructively received). Such dividends will be treated in the
manner described above under Certain U.S. Federal
Income Tax Considerations Current Federal Income
Taxation of the Company.
The price of our common shares purchased at any time may reflect
the amount of a forthcoming distribution. U.S. stockholders
purchasing our common shares just prior to a distribution will
receive a distribution which may be taxable to them even though
it represents, in part, a return of their invested capital.
Upon a sale or exchange of our common shares, a
U.S. stockholder will recognize a taxable gain or loss
depending upon his, her or its basis in our common shares. Such
gain or loss will be treated as long-term capital gain or loss
if our common shares have been held for more than one year. All
or a portion of any loss recognized on a sale or exchange of our
common shares generally will be disallowed if other of our
common shares are purchased (whether through reinvestment of
distributions or otherwise) within a
61-day
period beginning 30 days before and ending 30 days
after the date of the sale or exchange. In such a case, the
basis of our common shares acquired will be adjusted to reflect
the disallowed loss.
Any loss recognized by a U.S. stockholder on the sale of
our common shares held by the stockholder for six months or less
will be treated for tax purposes as a long-term capital loss to
the extent of any capital gain dividends received by the
stockholder (or amounts credited to the stockholder as an
undistributed capital gain deemed distribution) with respect to
such common shares.
We will send to each of our U.S. stockholders, as promptly
as possible after the end of each calendar year, a notice
detailing the amounts includible in such
U.S. stockholders taxable income for such year as
ordinary income and as long-term capital gain. In addition, the
U.S. federal tax status of each years distributions
generally will be reported to the Service. Distributions may
also be subject to additional state, local, and foreign taxes
depending on a U.S. stockholders particular
situation. U.S. stockholders are urged to consult their own
tax advisors regarding specific questions about
U.S. federal (including the application of the alternative
minimum tax rules), state, local or foreign tax consequences to
them of investing in our common shares.
We may be required to withhold U.S. federal income tax
(backup withholding) at a 28%-rate from all taxable
distributions to any non-corporate U.S. stockholder
(i) who fails to furnish a correct taxpayer
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identification number or a certificate that such stockholder is
exempt from backup withholding, or (ii) with respect to
whom the Service has notified us that such stockholder has
failed to properly report certain interest and dividend income
to the Service and to respond to notices to that effect. An
individuals taxpayer identification number is his or her
social security number. Any amount withheld under backup
withholding is allowed as a credit against the
U.S. stockholders U.S. federal income tax
liability, provided that proper information is provided to the
Service.
Under Treasury regulations, if a U.S. stockholder
recognizes a loss with respect to its common shares of
$2 million or more for a non-corporate
U.S. stockholder or $10 million or more for a
corporate U.S. stockholder in any single taxable year (or a
greater loss over a combination of years), the stockholder must
file with the IRS a disclosure statement on Form 8886.
Direct stockholders of portfolio securities are in many cases
excepted from this reporting requirement, but under current
guidance, stockholders of a RIC are not excepted. Future
guidance may extend the current exception from this reporting
requirement to stockholders of most or all RICs. The fact that a
loss is reportable under these regulations does not affect the
legal determination of whether the taxpayers treatment of
the loss is proper. The American Jobs Creation Act of 2004
imposes significant monetary penalties for failure to comply
with this reporting requirement. States may also have a similar
reporting requirement. U.S. stockholders should consult
their tax advisors to determine the applicability of these
regulations in light of their individual circumstances.
Taxation
of
Non-U.S. Stockholders
Whether an investment in the shares is appropriate for a
Non-U.S. stockholder
will depend on that persons particular circumstances. An
investment in the shares by a
Non-U.S. stockholder
may have adverse tax consequences.
Non-U.S. stockholders
should consult their tax advisors before investing in our common
shares.
In general, dividend distributions (other than certain
distributions derived from net long-term capital gains) paid by
us to a
Non-U.S. stockholder
are subject to withholding of U.S. federal income tax at a
rate of 30% (or lower applicable treaty rate) even if they are
funded by income or gains (such as portfolio interest,
short-term capital gains, or foreign-source dividend and
interest income) that, if paid to a
Non-U.S. stockholder
directly, would not be subject to withholding. If the
distributions are effectively connected with a U.S. trade
or business of the
Non-U.S. stockholder
(and, if an income tax treaty applies, attributable to a
permanent establishment in the United States), we will not be
required to withhold federal tax if the
Non-U.S. stockholder
complies with applicable certification and disclosure
requirements, although the distributions will be subject to
federal income tax at the rates applicable to
U.S. stockholders. (Special certification requirements
apply to a
Non-U.S. stockholder
that is a foreign partnership or a foreign trust, and such
entities are urged to consult their own tax advisors.)
For taxable years beginning prior to January 1, 2008,
except as provided below, we generally will not be required to
withhold any amounts with respect to certain distributions of
(i) U.S.-source
interest income, and (ii) net short-term capital gains in
excess of net long-term capital losses, in each case to the
extent we properly designate such distributions. We may or may
not make any such designations. In respect of distributions
described in clause (i) above, we will be required to
withhold amounts with respect to distributions to a
Non-U.S. stockholder:
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that has not provided a satisfactory statement that the
beneficial owner is not a U.S. person;
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to the extent that the dividend is attributable to interest on
an obligation if the
Non-U.S. stockholder
is the issuer or is a 10% stockholder of the issuer;
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that is within certain foreign countries that have inadequate
information exchange with the United States; or
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to the extent the dividend is attributable to interest paid by a
person that is a related person of the
Non-U.S. stockholder
and the
Non-U.S. stockholder
is a controlled foreign corporation for United
States federal income tax purposes.
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The cash dividend(s) we intend to pay to our stockholders
representing all of our accumulated earnings and profits, if
any, for the period from our inception through the effective
date of our election to be treated as a RIC, generally will be
taxable to
Non-U.S. stockholders
in the same manner as other dividend distributions described
above.
Actual or deemed distributions of our net capital gains to a
Non-U.S. stockholder,
and gains realized by a
Non-U.S. stockholder
upon the sale of our common shares, will not be subject to
federal withholding tax and generally will not be subject to
federal income tax unless the distributions or gains, as the
case may be, are effectively connected with a U.S. trade or
business of the
Non-U.S. stockholder
(and, if an income tax treaty applies, are attributable to a
permanent establishment maintained by the
Non-U.S. stockholder
in the U.S.), or in the case of an individual stockholder, the
stockholder is present in the U.S. for a period or periods
aggregating 183 days or more during the year of the sale or
capital gain dividend and certain other conditions are met.
If we distribute our net capital gains in the form of deemed
rather than actual distributions, a
Non-U.S. stockholder
will be entitled to a federal income tax credit or tax refund
equal to the stockholders allocable share of the tax we
pay on the capital gains deemed to have been distributed. In
order to obtain the refund, the
Non-U.S. stockholder
must obtain a U.S. taxpayer identification number and file
a federal income tax return even if the
Non-U.S. stockholder
would not otherwise be required to obtain a U.S. taxpayer
identification number or file a federal income tax return. For a
corporate
Non-U.S. stockholder,
distributions (both actual and deemed), and gains realized upon
the sale of our common shares that are effectively connected to
a U.S. trade or business may, under certain circumstances,
be subject to an additional branch profits tax at a
30% rate (or at a lower rate if provided for by an applicable
treaty). Accordingly, investment in the shares may not be
appropriate for a
Non-U.S. stockholder.
A
Non-U.S. stockholder
who is a non-resident alien individual, and who is otherwise
subject to withholding of federal income tax, may be subject to
information reporting and backup withholding of federal income
tax on dividends unless the
Non-U.S. stockholder
provides us or the dividend paying agent with an IRS
Form W-8BEN
(or an acceptable substitute or successor form) or otherwise
meets documentary evidence requirements for establishing that it
is a
Non-U.S. stockholder
or otherwise establishes an exemption from backup withholding.
Non-U.S. persons
should consult their own tax advisors with respect to the United
States federal income tax and withholding tax, and state, local
and foreign tax consequences of an investment in the shares.
Failure
to Qualify as a RIC
If we do not elect to be treated as a RIC, or if after having
made such election, we fail to qualify for treatment as a RIC,
then we and our U.S. stockholders would be subject to
U.S. federal income taxation in the manner discussed above
under Certain U.S. Federal Income Tax
Considerations Current Federal Income Taxation of
the Company. In addition, if we were treated as a RIC for
at least one taxable year, and then failed to qualify as a RIC
for more than two consecutive taxable years and subsequently
re-elected to be treated as a RIC, any built-in gain in our
assets at the time of the re-election generally would be taxed
under the rules discussed above under Intended
Election to be Taxed as a RIC.
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REGULATION
We intend to elect to be regulated as a BDC under the 1940 Act
and intend to elect to be treated as a RIC under the Code
effective as of December 1, 2006. We cannot provide any
assurances as to when we will become a BDC or a RIC. Upon our
election to be regulated as a BDC, we will be subject to the
regulations and restrictions described below.
A BDC is a unique kind of investment company that primarily
focuses on investing in or lending to private companies and
providing managerial assistance to them. A BDC generally
provides stockholders with the ability to retain the liquidity
of a publicly-traded security, while sharing in the possible
benefits of investing in privately-held or thinly traded public
and privately-owned companies. The 1940 Act contains
prohibitions and restrictions relating to transactions between
business development companies and their directors and officers
and principal underwriters and certain other related persons,
and the 1940 Act requires that a majority of the directors be
persons other than interested persons as defined
under the 1940 Act.
Qualifying
Assets
Under the 1940 Act, we may not acquire any asset other than
assets of the type listed in Section 55(a) of the 1940 Act,
or qualifying assets, unless at the time the
acquisition is made qualifying assets represent at least 70% of
our total assets. The principal categories of qualifying assets
relevant to our proposed businesses are the following:
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Securities purchased in transactions not involving any public
offering from the issuer of the securities, which issuer
(subject to certain limited exceptions) is an eligible portfolio
company, or from any person who is, or has been during the
preceding 13 months, an affiliated person of an eligible
portfolio company. An eligible portfolio company is
defined in the 1940 Act as any issuer that:
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is organized under the laws of, and has its principal place of
business in, the United States; and
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is not an investment company (other than a SBIC wholly owned by
the BDC) or a company that would be an investment company but
for certain exceptions under the 1940 Act; and
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satisfies any of the following:
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does not have any class of securities with respect to which a
broker or dealer may extend margin credit;
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is controlled by a BDC or a group of companies including a BDC,
and the BDC has an affiliated person who is a director of the
eligible portfolio company; or
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is a small and solvent company having total assets of not more
than $4 million and capital and surplus of not less than
$2 million.
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Securities of any eligible portfolio company that we control.
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Securities purchased in a private transaction from a
U.S. issuer that is not an investment company and is in
bankruptcy and subject to reorganization.
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Securities of an eligible portfolio company purchased from any
person in a private transaction if there is no ready market for
such securities and we already own 60% of the outstanding equity
of the eligible portfolio company.
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Securities received in exchange for, or distributed on or with
respect to, securities described above, or pursuant to the
exercise of warrants or rights relating to such securities.
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Cash, cash equivalents, U.S. government securities or
high-quality debt securities maturing in one year or less from
the time of investment.
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We may invest up to 30% of our total assets in assets that are
non-qualifying assets and are not subject to the limitations
referenced above. These investments may include, among other
things, investments in high yield bonds, bridge loans,
distressed debt, commercial loans, private equity, securities of
public companies or secondary market purchases of otherwise
qualifying assets. If the value of non-qualifying assets should
at any time exceed 30% of our total assets, we will be precluded
from acquiring any additional non-qualifying assets until such
time as the value of our qualifying assets again equals at least
70% of our total assets. See Risk Factors If
our investments are deemed not to be qualifying assets, we could
lose our status as a BDC or be precluded from investing
according to our current business plan.
Significant
Managerial Assistance
A BDC must be organized and have its principal place of business
in the United States and must be operated for the purpose of
making investments in the types of securities described above.
However, in order to count portfolio securities as qualifying
assets for the purpose of the 70% test, a BDC must either
control the issuer of the securities or must offer to make
available to the issuer of the securities (other than small and
solvent companies described above) significant managerial
assistance. Making available significant managerial assistance
means, among other things, any arrangement whereby a BDC,
through its directors, officers or employees, offers to provide,
and, if accepted, does so provide, significant guidance and
counsel concerning the management, operations or business
objectives and policies of a portfolio company through
monitoring or portfolio company operations, selective
participation in board and management meetings, consulting with
and advising a portfolio companys officers, or other
organizational or financial guidance. Although not required to
do so at this time, we anticipate offering to provide
significant managerial assistance to each of our portfolio
companies.
Temporary
Investments
Pending investments in other types of qualifying assets, as
described above, a BDCs 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. There is no other percentage restriction on
the proportion of our assets that may be so invested, other than
the restrictions necessary to meet the diversification tests
imposed on us by the Code in order to qualify as a RIC for
federal income tax purposes. See Certain U.S. Federal
Income Tax Considerations Taxation as a RIC.
Determination
of Net Asset Value
The net asset value per security of our outstanding common
securities will be determined quarterly, as soon as practicable
after, and as of the end of, each calendar quarter. The net
asset value per security will be equal to the value of our total
assets minus liabilities and any preferred securities
outstanding divided by the total number of common shares
outstanding at the date as of which such determination is made.
Fair value will be determined in good faith by our board of
directors pursuant to a valuation policy. See
Determination of Net Asset Value.
Senior
Securities; Coverage Ratio
We are permitted, only under specified conditions, to issue
multiple classes of indebtedness and one class of security
senior to our common securities if our asset coverage, as
defined in the 1940 Act, is at least equal to 200% immediately
after each such issuance. In addition, while any senior
securities remain outstanding, we must make provisions to
prohibit any distribution to our stockholders or the repurchase
of such securities unless we meet the applicable asset coverage
ratios at the time of the distribution or repurchase. For a
discussion of the risks associated with the resulting leverage,
see Risk Factors Risks Related to Our
Operations.
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Derivative
Securities
The 1940 Act limits the amount of derivative securities that we
may issue and the terms of such securities. Apart from our
772,124 warrants issued as part of our private placement, we do
not have, and do not anticipate having, outstanding derivative
securities relating to our common shares.
Code of
Ethics
We are required to maintain a code of ethics pursuant to
Rule 17j-1
under the 1940 Act that establishes procedures for personal
investments and restricts certain personal securities
transactions. Personnel subject to the code of ethics may invest
in securities for their personal investment accounts, including
securities that may be purchased or held by us, so long as such
investments are made in accordance with the code of ethics. Our
code of ethics does not permit investments by our employees in
securities that we may purchase or hold.
Privacy
Principles
We are committed to maintaining the privacy of our stockholders
and safeguarding their non-public 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 non-public personal information
relating to our stockholders, although certain non-public
personal information of our stockholders may become available to
us. We do not disclose any non-public personal information about
our stockholders or former stockholders to anyone, except as
required by law or as is necessary in order to service
stockholder accounts (for example, to a transfer agent).
We restrict access to non-public personal information about our
stockholders to employees of our Advisor with a legitimate
business need for the information. We maintain physical,
electronic and procedural safeguards designed to protect the
non-public personal information of our stockholders.
Affiliate
Transactions
Under the 1940 Act, we and our affiliates may be precluded from
co-investing in private placements of securities. Our Advisor
and TYG have applied to the SEC for exemptive relief to permit
TYG, TYY, TYN, us and our and their respective affiliates to
make such investments. Unless and until we obtain an exemptive
order, we will not co-invest with our affiliates in negotiated
private placement transactions. We cannot guarantee that the
requested relief will be granted by the SEC. Unless and until we
obtain an exemptive order, our Advisor will not co-invest its
proprietary accounts or other clients assets in negotiated
private transactions in which we invest. Until we receive
exemptive relief, our Advisor will observe a policy for
allocating opportunities among its clients that takes into
account the amount of each clients available cash and its
investment objectives. As a result of one or more of these
situations, we may not be able to invest as much as we otherwise
would in certain investments or may not be able to liquidate a
position as quickly.
Compliance
Policies and Procedures
We have written policies and procedures reasonably designed to
prevent violation of the federal securities laws, and are
required to review these compliance policies and procedures
annually for adequacy and effective implementation and to
designate a Chief Compliance Officer to be responsible for
administering the policies and procedures.
Securities
Exchange Act Compliance
Following this offering we will be subject to the reporting and
disclosure requirements of the Securities Exchange Act of 1934
(the Exchange Act), including the filing of
quarterly, annual and current reports, proxy statements and
other required items. In addition, beginning with our fiscal
year ending
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November 30, 2007, we will be subject to the provisions of
the Sarbanes-Oxley Act of 2002, including its required reports
on disclosure controls and procedures and internal control over
financial reporting and the required certifications of the Chief
Executive Officer and Chief Financial Officer regarding our
financial disclosure.
Sarbanes-Oxley
Act of 2002
The Sarbanes-Oxley Act of 2002 imposes a wide variety of new
regulatory requirements on publicly-held companies and their
insiders. Many of these requirements affect us. For example:
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pursuant to Rule 13a-14 of the 1934 Act, our Chief
Executive Officer and Chief Financial Officer must certify the
accuracy of the financial statements contained in our periodic
reports;
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pursuant to Item 307 of Regulation S-K, our periodic
reports must disclose our conclusions about the effectiveness of
our disclosure controls and procedures;
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pursuant to Rule 13a-15 of the 1934 Act, our management
must prepare a report regarding its assessment of our internal
control over financial reporting, which must be audited by our
independent registered public accounting firm; and
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pursuant to Item 308 of Regulation S-K and Rule 13a-15 of
the 1934 Act, our periodic reports must disclose whether there
were significant changes in our internal controls or in other
factors that could significantly affect these controls
subsequent to the date of their evaluation, including any
corrective actions with regard to significant deficiencies and
material weaknesses.
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The Sarbanes-Oxley Act requires us to review our current
policies and procedures to determine whether we comply with the
Sarbanes-Oxley Act and the regulations promulgated thereunder.
We will continue to monitor our compliance with all regulations
that are adopted under the Sarbanes-Oxley Act and will take
actions necessary to ensure that we are in compliance therewith.
Withdrawal
Following our intended election to be regulated as a BDC, 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
defined in the 1940 Act. The 1940 Act defines a majority
of the outstanding voting securities as the lesser of
(i) 67% or more of the voting securities present at such
meeting if the holders of more than 50% of our outstanding
voting securities are present or represented by proxy, or
(ii) 50% of our voting securities.
Other
Following our intended election to be regulated as a BDC, we
will be periodically examined by the SEC for compliance with the
1940 Act.
We maintain a bond issued by a reputable fidelity insurance
company to protect us against larceny and embezzlement. We will
not protect any director or officer against any liability to our
stockholders arising from willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the
conduct of such persons office.
Small
Business Administration Regulations
We have filed an application to have a to-be-formed wholly owned
subsidiary be licensed by the SBA as a SBIC under
Section 301(c) of the Small Business Investment Act of
1958. The SBA regulations currently limit the amount that is
available to borrow by any SBIC controlled by our Advisor to
$124.4 million.
SBICs are designed to stimulate the flow of private equity
capital to eligible small businesses. Under present regulations,
eligible small businesses include businesses that have a
tangible net worth not exceeding $18 million and have
average annual fully taxed net income not exceeding
$6 million for the two most recent
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fiscal years. In addition, a SBIC must devote 20% of its
investment activity to smaller concerns as defined
by the SBA. A smaller concern is one that has a tangible net
worth not exceeding $6 million and has average annual fully
taxed net income not exceeding $2 million for the two most
recent fiscal years. SBA regulations also provide alternative
size standard criteria to determine eligibility, which depend on
the industry in which the business is engaged and are based on
such factors as the number of employees and gross sales.
According to SBA regulations, SBICs may make long-term loans to
small businesses, invest in the equity securities of such
businesses and provide them with consulting and advisory
services. Through our to-be-formed wholly-owned subsidiary, we
anticipate providing long-term loans to qualifying small
businesses and make related equity investments.
If our to-be-formed subsidiary receives a SBIC license, it will
be periodically examined and audited by the SBAs staff to
determine its compliance with SBIC regulations. In addition, it
will be subject to any other regulations and restrictions
applicable to a SBIC. The SBA prohibits, without prior SBA
approval, a change of control of a SBIC or transfers
that would result in any person (or a group of persons acting in
concert) owning 10% or more of a class of capital stock of a
licensed SBIC.
Although we cannot provide any assurance that we will receive
any exemptive relief, we expect to request that the SEC allow us
to exclude any indebtedness issued to the SBA by a to-be-formed
wholly-owned subsidiary for which we are seeking qualification
as a SBIC, from the 200% asset coverage requirements applicable
to us as a BDC.
DESCRIPTION
OF CAPITAL STOCK
We are authorized to issue up to 100,000,000 shares of
common stock, $.001 par value per share, and up to
10,000,000 shares of preferred stock, $.001 par value per
share. We currently have 3,088,596 of our common shares, 772,124
warrants, and no preferred shares issued and outstanding. Our
board of directors may, without any action by our stockholders,
amend our 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.
Additionally, our Charter authorizes our board of directors,
without any action by our stockholders, to classify and
reclassify any unissued common shares and preferred shares into
other classes or series of stock from time to time by setting or
changing the preferences, conversion or other rights, voting
powers, restrictions, limitations as to dividends and other
distributions, qualifications and terms or conditions of
redemption for each class or series. Although there is no
present intention of doing so, we could issue a class or series
of stock that could delay, defer or prevent a transaction or a
change in control that might otherwise be in our
stockholders best interests. Under Maryland law, our
stockholders generally are not liable for our debts or
obligations.
Common
Shares
All common shares offered by this prospectus will be duly
authorized, fully paid and nonassessable. Our stockholders are
entitled to receive dividends if and when authorized by our
board of directors and declared by us out of assets legally
available for the payment of dividends. Our stockholders are
also entitled to share ratably in the assets legally available
for distribution to our stockholders in the event of
liquidation, dissolution or winding up, after payment of or
adequate provision for all known debts and liabilities. These
rights are subject to the preferential rights of any other class
or series of our capital stock.
In the event that we have preferred shares outstanding, and so
long as we remain subject to the 1940 Act, holders of our
common shares will not be entitled to receive any net income of
or other distributions from us unless all accumulated dividends
on preferred shares have been paid and the asset coverage (as
defined in the 1940 Act) with respect to preferred shares and
any outstanding debt is at least 200% after giving effect to
such distributions.
Each outstanding common share entitles the holder to one vote on
all matters submitted to a vote of our stockholders, including
the election of directors. The presence of the holders of shares
of our stock entitled to cast a majority of the votes entitled
to be cast shall constitute a quorum at a meeting of our
stockholders.
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Our Charter provides that, except as otherwise provided in our
Bylaws, each director shall be elected by the affirmative vote
of the holders of a majority of the shares of stock outstanding
and entitled to vote thereon. Our Bylaws provide that each
director shall be elected by a plurality of all the votes cast
at a meeting of stockholders duly called and at which a quorum
is present. There is no cumulative voting in the election of
directors. Consequently, at each annual meeting of our
stockholders, the holders of a majority of the outstanding
shares of capital stock entitled to vote will be able to elect
all of the successors of the class of directors whose terms
expire at that meeting. Pursuant to our Charter and Bylaws, our
board of directors may amend the Bylaws to alter the vote
required to elect directors.
Holders of our common shares have no preference, conversion,
exchange, sinking fund, redemption or appraisal rights and have
no preemptive rights to subscribe for any of our securities. All
of our common shares will have equal dividend, liquidation and
other rights.
If we offer additional common shares, the offering will require
approval of our board of directors and, so long as we remain
subject to the 1940 Act, the offering will be subject to the
requirement that shares may not be sold at a price below the
then-current net asset value, exclusive of underwriting
discounts and commissions, except in limited circumstances,
including in connection with an offering to our existing
stockholders.
Preferred
Shares
We may, but are not required to, issue preferred shares. So long
as we remain subject to the 1940 Act, we will be subject to
the restriction that currently limits the aggregate liquidation
preference of all outstanding preferred stock to 50% of the
value of our total assets less our liabilities and indebtedness.
We also believe the liquidation preference, voting rights and
redemption provisions of the preferred shares will be similar to
those stated below.
So long as we remain subject to the 1940 Act, the holders of any
preferred shares, voting separately as a single class, will have
the right to elect at least two directors at all times. The
remaining directors will be elected by holders of common shares
and preferred stock, voting together as a single class. In
addition, subject to the prior rights, if any, of the holders of
any other class of senior securities outstanding, the holders of
any preferred stock will have the right to elect a majority of
the directors at any time accumulated dividends on any preferred
stock have not been paid for at least two years. The 1940 Act
also requires that, in addition to any approval by stockholders
that might otherwise be required, the approval of the holders of
a majority of any outstanding preferred stock, voting separately
as a class, would be required to adopt any plan of
reorganization that would adversely affect the preferred stock.
See Certain Provisions of Our Charter and Bylaws and the
Maryland General Corporation Law. As a result of these
voting rights, our ability to take any such actions may be
impeded to the extent that any of our Preferred Shares are
outstanding.
The affirmative vote of the holders of a majority of the
outstanding preferred shares, voting as a separate class, will
be required to amend, alter or repeal any of the preferences,
rights or powers of holders of preferred shares so as to affect
materially and adversely such preferences, rights or powers. The
class vote of holders of preferred shares described above will
in each case be in addition to any other vote required to
authorize the action in question.
The terms of the preferred shares, if issued, are expected to
provide that (i) they are redeemable in whole or in part at
the original purchase price per share plus accrued dividends per
share, (ii) we may tender for or repurchase our preferred
shares and (iii) we may subsequently resell any shares so
tendered for or repurchased by us. Any redemption or purchase of
our preferred shares will reduce the leverage applicable to our
common shares, while any resale of our shares will increase that
leverage.
The discussion above describes the possible offering of our
preferred shares. If our board of directors determines to
proceed with such an offering, the terms of our preferred shares
may be the same as, or different from, the terms described
above, subject to applicable law and our Charter. Our board of
directors, without the approval of the holders of our common
shares, may authorize an offering of preferred shares or may
determine not to authorize such an offering, and may fix the
terms of our preferred shares to be offered.
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The information contained under this heading is subject to the
provisions contained in our Charter and Bylaws and the laws of
the State of Maryland.
Warrants
We have 772,124 warrants issued and outstanding. Each
warrant entitles the holder thereof to purchase one common share
at the exercise price per common share of the greater of
(i) $15.00 per common share or (ii) the net asset
value of our common shares on the date of our intended election
to be regulated as a BDC. Warrants are exercisable upon the
completion of this offering, subject to a
lock-up
period with respect to common shares received upon exercise of
warrants of 90 calendar days immediately following this
offering. All warrants expire on the day before the sixth
anniversary of this offering. No fractional warrant shares will
be issued upon exercise of the warrants. We will pay to the
holder of the warrant at the time of exercise an amount in cash
equal to the current market value of any such fractional warrant
shares.
The warrants are afforded standard anti-dilution protection. As
a part of that protection, the number of common shares issuable
upon exercise of the warrants (or any shares of stock or other
securities at the time issuable upon exercise of such warrants)
and the warrant exercise price shall be appropriately adjusted
to reflect any and all stock dividends (other than cash
dividends), stock splits, combinations of shares,
reclassifications, recapitalizations or other similar events
affecting the number of outstanding common shares (or such other
stock or securities) so as to cause the holder thereafter
exercising warrants to receive the number of common shares or
other capital stock such holder would have received if such
warrant had been exercised immediately prior to such event.
If we make an extraordinary dividend on the outstanding common
shares (excluding any ordinary quarterly cash dividends and cash
dividends paid in conjunction with our anticipated election to
be treated as a RIC), each holder will be entitled to receive
the extraordinary dividend made on the outstanding common shares
the holder would have received if such warrant had been
exercised immediately prior to such extraordinary dividend.
Following our intended RIC election under the Code, we expect to
distribute to our stockholders (as an ordinary quarterly cash
dividend), with respect to each taxable year, at least 90% of
our ordinary income and realized net short-term capital gains in
excess of realized net long-term capital losses, if any, reduced
by deductible expenses.
In addition, if the common shares issuable upon the exercise of
the warrants shall be changed into the same or different number
of shares of any class or classes of common shares, whether by
capital reorganization, reclassification or otherwise (other
than a reorganization, merger, consolidation or sale of assets),
then, in and as a condition to the effectiveness of each such
event, the holder of a warrant has the right thereafter to
exercise such warrant for the kind and amount of common shares
and other securities and property receivable upon such
reorganization, reclassification or other change by the holder
of the number of common shares for which such warrant might have
been exercised immediately prior to such reorganization,
reclassification or change.
In the case of a dividend or distribution paid pursuant to a
plan of consolidation or merger by us with another person (other
than a merger or consolidation in which we are the continuing
person and the common shares are not exchanged for securities,
property or assets issued, delivered or paid by another person),
or in case of any lease, sale or conveyance to another person
(other than a wholly-owned subsidiary) of all or substantially
all of our property or assets, warrants shall thereafter (until
the end of the exercise period) evidence the right to receive,
upon exercise, in lieu of common shares, deliverable upon such
exercise immediately prior to such consolidation, merger, lease,
sale or conveyance, the kind and amount of shares
and/or other
securities and/or property and assets and/or cash that a holder
would have been entitled to receive upon such consolidation,
merger, lease, sale or conveyance had the holder exercised its
warrants immediately prior to such consolidation, merger, lease,
sale or conveyance, provided that to the extent a stockholder
would have had an opportunity to elect the form of
consideration, any holder not exercising its warrants shall be
entitled to the same consideration that a holder of such common
shares failing to make any such election would have been
entitled to receive upon such transaction.
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Our warrants are separate instruments from our common shares and
are permitted to be transferred independently from our common
shares, subject to certain transfer restrictions. The warrants
have no voting rights and the common shares underlying the
unexercised warrants will have no voting rights until such
common shares are received upon exercise of warrants.
CERTAIN
PROVISIONS OF OUR CHARTER AND BYLAWS AND
THE MARYLAND GENERAL CORPORATION LAW
The following description of certain provisions of our Charter
and Bylaws is only a summary. For a complete description, please
refer to our Charter and Bylaws, a copy of which are obtainable
upon request.
Our Charter and Bylaws include provisions that could delay,
defer or prevent other entities or persons from acquiring
control of us, causing us to engage in certain transactions or
modifying our structure. These provisions, all of which are
summarized below, may be regarded as anti-takeover
provisions. Such provisions could limit the ability of
stockholders to sell their shares at a premium over the
then-current market prices by discouraging a third party from
seeking to obtain control of us. In addition to these
provisions, we are incorporated in Maryland and therefore expect
to be subject to the Maryland Control Share Acquisition Act and
the Maryland General Corporation Law. Also, certain provisions
of the 1940 Act may serve to discourage a third party from
seeking to obtain control of us.
Number
and Classification of our Board of Directors; Election of
Directors
Our Charter and Bylaws provide that the number of directors may
be established only by our board of directors pursuant to the
Bylaws, but may not be less than one. Our Bylaws provide that
the number of directors may not be greater than nine. Pursuant
to our Charter, our board of directors is divided into three
classes: Class I, Class II and Class III. The
term of each class of directors expires in a different
successive year. Upon the expiration of their term, directors of
each class are elected to serve for three-year terms and until
their successors are duly elected and qualify. Each year, only
one class of directors is elected by the stockholders. The
classification of our board of directors should help to assure
the continuity and stability of our strategies and policies as
determined by our board of directors.
Our classified board provision could have the effect of making
the replacement of incumbent directors more time-consuming and
difficult. At least two annual meetings of our stockholders,
instead of one, will generally be required to effect a change in
a majority of our board of directors. Thus, the classification
of our board of directors could increase the likelihood that
incumbent directors will retain their positions and may delay,
defer or prevent a change in control of the board of directors,
even though a change in control might be in the best interests
of our stockholders.
Vacancies
on Board of Directors; Removal of Directors
Our Charter provides that, 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 of directors. Accordingly, except as may be provided
by the board of directors in setting the terms of any class or
series of preferred shares, any and all vacancies on the board
of directors may be filled only by the affirmative vote of a
majority of the remaining directors in office, even if the
remaining directors do not constitute a quorum, and any director
elected to fill a vacancy shall serve for the remainder of the
full term of the directorship in which the vacancy occurred and
until a successor is elected and qualifies, subject to any
applicable requirements of the 1940 Act.
The Charter provides that, subject to the rights of holders of
one or more classes of our preferred stock, a director may be
removed only for cause and only by the affirmative vote of at
least two-thirds of the votes entitled to be cast in the
election of our directors. This provision, when coupled with the
provisions in our Charter and Bylaws regarding the filling of
vacancies on the board of directors, precludes our stockholders
from removing incumbent directors, except for cause and by a
substantial affirmative vote, and filling the vacancies created
by the removal with nominees of our stockholders.
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Approval
of Extraordinary Corporate Action; Amendment of Charter and
Bylaws
Under Maryland law, a Maryland corporation generally cannot
dissolve, amend its charter, merge, sell all or substantially
all of its assets, engage in a share exchange or engage in
similar transactions outside the ordinary course of business,
unless approved by the affirmative vote of stockholders entitled
to cast at least two-thirds of the votes entitled to be cast on
the matter. However, a Maryland corporation may provide in its
charter for approval of these matters by a lesser percentage,
but not less than a majority of all of the votes entitled to be
cast on the matter. Our Charter generally provides for approval
of Charter amendments and extraordinary transactions by the
stockholders entitled to cast at least a majority of the votes
entitled to be cast on the matter.
Our Charter and Bylaws provide that the board of directors will
have the exclusive power to make, alter, amend or repeal any
provision of our Bylaws.
Advance
Notice of Director Nominations and New Business
Our Bylaws provide that with respect to an annual meeting of our
stockholders, nominations of persons for election to our board
of directors and the proposal of business to be considered by
our stockholders may be made only (i) pursuant to our
notice of the meeting, (ii) by or at the direction of our
board of directors or (iii) by a stockholder who is
entitled to vote at the meeting and who has complied with the
advance notice procedures of the Bylaws. With respect to special
meetings of our stockholders, only the business specified in our
notice of the meeting may be brought before the meeting.
Nominations of persons for election to our board of directors at
a special meeting may be made only (i) pursuant to our
notice of the meeting, (ii) by or at the direction of our
board of directors, or (iii) by a stockholder who is
entitled to vote at the meeting and who has complied with the
advance notice provisions of our Bylaws, provided that our board
of directors has determined that directors will be elected at
the meeting.
Limitation
of Liability of Directors and Officers; Indemnification and
Advance of Expenses
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 (i) actual
receipt of an improper benefit or profit in money, property or
services or (ii) active and deliberate dishonesty
established by a final judgment as being material to the cause
of action. Our Charter contains such a provision which
eliminates directors and officers liability to the
maximum extent permitted by Maryland law, subject to the
requirements of the 1940.
Our Charter authorizes us, and our Bylaws obligate us, to the
maximum extent permitted by Maryland law and subject to the
requirements of the 1940 Act, to indemnify any present or former
director or officer or any individual who, while a director or
officer and at our request, serves or has served another
corporation, real estate investment trust, partnership, joint
venture, trust, employee benefit plan or other enterprise as a
director, officer, partner or trustee and who is made, or
threatened to be made, a party to the proceeding by reason of
his or her service in any such capacity from and against any
claim or liability to which that person may become subject or
which that person may incur by reason of his or her service in
any such capacity and to pay or reimburse their reasonable
expenses in advance of final disposition of a proceeding.
Maryland law requires a corporation (unless its charter provides
otherwise, which our Charter does not) to indemnify a director
or officer who has been successful in the defense of any
proceeding to which he or she is made, or threatened to be made,
a party by reason of his or her service in that capacity.
Maryland law permits a corporation to indemnify its present and
former directors and officers, among others, against judgments,
penalties, fines, settlements and reasonable expenses actually
incurred by them in connection with any proceeding to which they
may be made, or threatened to be made, a party by reason of
their service in those or other capacities unless it is
established that (i) 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, (ii) the
director or officer actually received an improper personal
benefit in money, property or services or (iii) 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
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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 (i) 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 (ii) 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.
These provisions do not limit or eliminate our rights or the
rights of any of our stockholders to seek nonmonetary relief
such as an injunction or rescission in the event any of our
directors or officers breaches his or her duties. These
provisions will not alter the liability of our directors or
officers under federal securities laws.
Control
Share Acquisitions
Following this offering we will be covered by the Maryland
Control Share Acquisition Act (the Control Share
Act), which provides that control shares of a Maryland
corporation acquired in a control share acquisition have no
voting rights except to the extent approved by a vote of
two-thirds of the votes entitled to be cast on the matter.
Shares owned by the acquiror, and by officers or by directors
who are employees of the corporation are excluded from shares
entitled to vote on the matter. Control shares are voting shares
of stock which, if aggregated with all other shares of stock
owned by the acquiror or in respect of which the acquiror is
able to exercise or direct the exercise of voting power (except
solely by virtue of a revocable proxy), would entitle the
acquiror to exercise voting power in electing directors within
one of the following ranges of voting power:
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one-tenth or more but less than one-third;
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one-third or more but less than a majority; or
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a majority or more of all voting power.
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The requisite stockholder approval must be obtained each time an
acquiror crosses one of the thresholds of voting power set forth
above. Control shares do not include shares the acquiring person
is then entitled to vote as a result of having previously
obtained stockholder approval. A control share acquisition means
the acquisition of control shares, subject to certain exceptions.
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 certain conditions, including an
undertaking to pay the expenses of the meeting. If no request
for a meeting is made, the corporation may 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 repurchase
for fair value any or all of the control shares, except those
for which voting rights have previously been approved. The right
to repurchase control shares is subject to certain conditions
and limitations. 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 acquiror or of any
meeting of stockholders at which the voting rights of the shares
are considered and not approved. If voting rights for control
shares are approved at a stockholders meeting and the acquiror
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 acquiror in the control share acquisition.
The Control Share Act does not apply (i) to shares acquired
in a merger, consolidation or share exchange if we are a party
to the transaction or (ii) to acquisitions approved or
exempted by our Charter or Bylaws.
93
Our Bylaws contain a provision exempting from the Control Share
Act any and all acquisitions by any person of our shares of
stock. There can be no assurance that such provision will not be
otherwise amended or eliminated at any time in the future.
However, we will amend our Bylaws to be subject to the Control
Share Act only if our board of directors determines that it
would be in our best interests and if the staff of the SEC does
not object to our determination that our being subject to the
Control Share Act does not conflict with the 1940 Act.
Business
Combinations
Following this offering we will be covered by the Maryland
Business Combination Act (the Business Combination
Act), which provides that 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 corporations shares; 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 of directors approved in advance the transaction by
which such stockholder otherwise would have become an interested
stockholder. However, in approving a transaction, the board of
directors may provide that its approval is subject to
compliance, at or after the time of approval, with any terms and
conditions determined by the board.
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 shares held by the
interested stockholder with whom or with whose affiliate the
business combination is to be effected or held by an affiliate
or associate of the interested stockholder.
|
These super-majority vote requirements do not apply if the
corporations common stockholders receive a minimum price,
as defined under Maryland law, for their shares in the form of
cash or other consideration in the same form as previously paid
by the interested stockholder for its shares.
The statute permits various exemptions from its provisions,
including business combinations that are exempted by the board
of directors before the time that the interested stockholder
becomes an interested stockholder. Our board of directors has
adopted a resolution exempting any business combination between
us and any other person from the provisions of the Business
Combination Act, provided that the business combination is first
approved by our board of directors, including a majority of the
directors who are not interested persons as defined in the 1940
Act. This resolution, however, may be altered or repealed in
whole or in part at any time. If this resolution is repealed, or
our board of directors does not otherwise approve a business
combination, the statute may discourage others from trying to
acquire control of us and increase the difficulty of
consummating any offer.
94
SHARES
ELIGIBLE FOR FUTURE SALE
Prior to the completion of this offering, there has been no
public market for our common shares. Future sales of a
substantial amount of our common shares in the public market, or
the perception that such sales may occur, could adversely affect
the market price of our common shares and could impair our
future ability to raise capital through the sale of our equity
securities.
Upon the completion of this offering, as a result of the
issuance
of
common shares, we will
have
common shares outstanding, of which 3,088,596 shares will
be restricted securities under the meaning of
Rule 144 promulgated under the Securities Act and may not
be sold in the absence of registration under the Securities Act
unless an exemption from registration is available, including
exemptions contained in Rule 144. However, we have agreed,
and are permitted pursuant to the terms of the
lock-up
agreements described below, to file a registration statement
covering all of our common shares outstanding prior to this
offering and all of our currently outstanding warrants (and all
of the common shares underlying the warrants) on or prior to
June 8, 2007. See Shares Eligible for Future
Sale Registration Rights.
In general, under Rule 144, if one year has elapsed since
the date of acquisition of restricted securities from us or any
of our affiliates, the holder of such restricted securities can
sell such securities; provided that the number of securities
sold by such person within any three-month period cannot exceed
the greater of:
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|
|
1% of the total number of securities then outstanding, or
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|
|
the average weekly trading volume of our securities during the
four calendar weeks preceding the date on which notice of the
sale is filed with the SEC.
|
Sales under Rule 144 also are subject to certain manner of
sale provisions, notice requirements and the availability of
current public information about us. If two years have elapsed
since the date of acquisition of restricted securities from us
or any of our affiliates and the holder is not one of our
affiliates at any time during the three months preceding the
proposed sale, such person can sell such securities in the
public market under Rule 144(k) without regard to the
volume limitations, manner of sale provisions, public
information requirements or notice requirements. No assurance
can be given as to (1) the likelihood that an active market
for our common shares will develop, (2) the liquidity of
any such market, (3) the ability of our stockholders to
sell our securities or (4) the prices that stockholders may
obtain for any of our securities. No prediction can be made as
to the effect, if any, that future sales of securities, or the
availability of securities for future sale, will have on the
market price prevailing from time to time. Sales of substantial
amounts of our securities, or the perception that such sales
could occur, may affect adversely prevailing market prices of
our common shares. See Risk Factors Risks
Related to this Offering.
Lock-Up
Agreements
Our directors and executive officers and each member of our
Advisors senior investment professionals have agreed with
the underwriters not to sell any common shares they own for a
period of 180 days from the date of this offering, subject
to extension in certain circumstances. This agreement, referred
to as a
lock-up
agreement, may be waived by Merrill Lynch as
representative of the underwriters. In addition, our current
stockholders have separately agreed not to sell any common
shares for a period of 90 days from the date of this
offering. After the
lock-up
agreements expire, an aggregate
of additional common shares will be
eligible for sale in the public market in accordance with
Rule 144 under the Securities Act. The
lock-up
agreements provide that these persons will not offer, sell,
contract to sell, pledge (other than to us), hedge or otherwise
dispose of our common shares or any securities convertible into
or exchangeable for our common shares, owned by them for a
period specified in the agreement without the prior written
consent of our underwriters. The filing of the registration
statement described above pursuant to the registration rights
agreement will be an exception to our
lock-up
agreement, although certain stockholders whose shares are
registered in the registration statement may still be subject to
lock-up
agreements.
95
Registration
Rights
We have entered into registration rights agreements with each of
our current stockholders. The registration rights agreements
provide, among other things, that, after we consummate this
offering, we will use our best efforts to file with the SEC on
or prior to June 8, 2007, a shelf registration statement to
cover resales of our common shares held by our current
stockholders, including our common shares into which the
warrants are exercisable, and to use our best efforts to keep
such registration statement effective until all securities
covered thereby have been sold pursuant to such registration
statement, the date on which the securities covered thereby are
no longer held by the parties thereto or the date on which such
securities are no longer required to be registered.
96
UNDERWRITING
We intend to offer the common shares through the underwriters
named below. Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Stifel, Nicolaus & Company, Incorporated
and Wachovia Capital Markets, LLC are acting as representatives
of the underwriters. Subject to the terms and conditions
described in a purchase agreement among us and the underwriters,
we have agreed to sell to the underwriters, and the underwriters
severally have agreed to purchase from us, the number of common
shares listed opposite their names below.
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Number
|
Underwriter
|
|
of Shares
|
|
Merrill Lynch, Pierce, Fenner
& Smith
Incorporated
|
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Stifel, Nicolaus &
Company, Incorporated
|
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|
|
|
Wachovia Capital Markets, LLC
|
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|
|
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Total
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|
|
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|
|
|
The underwriters have agreed that they must purchase all of the
common shares sold under the purchase agreement if they purchase
any of them. However, the underwriters are not required to take
or pay for the shares covered by the underwriters
overallotment option described below. If an underwriter
defaults, the purchase agreement provides that the purchase
commitments of the nondefaulting underwriters may be increased
or the purchase agreement may be terminated.
We have agreed to indemnify the underwriters 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 are offering the common shares, subject to
prior sale, when, as and if issued to and accepted by them,
subject to approval of legal matters by their counsel, including
the validity of the common shares, and other conditions
contained in the purchase agreement, such as the receipt by the
underwriters of officers certificates and legal opinions.
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 Discounts
The representatives have advised us that the underwriters
propose initially to offer the common shares to the public at
the public offering price on the cover page of this prospectus
and to dealers at that price less a concession not in excess of
$ per share. The underwriters may
allow, and the dealers may reallow, a discount not in excess of
$ per share to other dealers.
After the public offering, the public offering price, concession
and discount may be changed.
The following table shows the per share and total underwriting
discounts and commissions we will pay to the underwriters
assuming both no exercise and full exercise of the
underwriters overallotment option to purchase up to an
additional shares.
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|
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|
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|
Per Share
|
|
|
Without Option
|
|
|
With Option
|
|
|
Public offering price
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
Underwriting discount (sales load)
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
Proceeds, before expenses, to us
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
We estimate that the total expenses of the offering payable by
us, not including underwriting discounts and commissions, will
be approximately $ .
Overallotment
Option
We have granted an option to the underwriters to purchase up
to additional common shares at the
public offering price less the underwriting discount. The
underwriters may exercise this option for 30 days from the
date of this prospectus solely to cover any overallotments. If
the underwriters exercise this option,
97
each will be obligated, subject to conditions contained in the
purchase agreement, to purchase a number of additional common
shares proportionate to that underwriters initial amount
reflected in the above table.
No Sales
of Similar Securities
We, our executive officers and directors, our Advisor and our
Advisors senior investment professionals have agreed, with
exceptions, not to sell or transfer any common shares for
180 days after the date of this prospectus without first
obtaining the written consent of Merrill Lynch. Specifically, we
and these other individuals and entities have agreed not to
directly or indirectly:
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|
|
offer, pledge, sell or contract to sell any common shares;
|
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|
|
sell any option or contract to purchase any common shares;
|
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|
|
purchase any option or contract to sell any common shares;
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|
|
grant any option, right or warrant for the sale of any common
shares other than pursuant to our contractual requirements under
our existing registration rights agreements;
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|
lend or otherwise dispose of or transfer any common shares;
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|
|
request or demand that we file a registration statement related
to the common shares; or
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|
enter into any swap or other agreement that transfers, in whole
or in part, the economic consequence of ownership of any common
shares whether any such swap or transaction is to be settled by
delivery of shares or other securities, in cash or otherwise.
|
The 180-day
restricted period will be automatically extended if
(1) during the last 17 days of the
180-day
restricted period the Company issues an earning release to
material news or a material event relating to the Company occurs
or (2) prior to the expiration of the
180-day
restricted period, the Company announces that it will release
earnings results or becomes aware that material news or a
material event will occur during the
16-day
period beginning on the last day of the
180-day
restricted period, in which case the restrictions described
above will continue to apply until the expiration of the
18-day
period beginning on the issuance of the earnings release or the
occurrence of the material news or material event.
This lockup provision applies to common shares and to securities
convertible into or exchangeable or exercisable for or repayable
with common shares. It also applies to common shares owned now
or acquired later by the person executing the agreement or for
which the person executing the agreement later acquires the
power of disposition.
New York
Stock Exchange Listing
We intend to apply for listing of our common shares on the New
York Stock Exchange under the symbol TTO. In order
to meet the requirements for listing on that exchange, the
underwriters have undertaken to sell a minimum number of shares
to a minimum number of beneficial owners as required by that
exchange.
Price
Stabilization and Short Positions
Until the distribution of the common shares is completed, SEC
rules may limit underwriters and selling group members from
bidding for and purchasing our common shares. However, the
representatives may engage in transactions that stabilize the
price of the common shares, such as bids or purchases to peg,
fix or maintain that price.
If the underwriters create a short position in our common shares
in connection with the offering, i.e., if they sell more common
shares than are listed on the cover of this prospectus, the
representatives may reduce that short position by purchasing
common shares in the open market. The representatives may also
elect to reduce any short position by exercising all of part of
the overallotment option described above. Purchases of
98
the common shares to stabilize price or to reduce a short
position may cause the price of our common shares to be higher
than it might be in the absence of such purchases.
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
our common shares. In addition, neither we nor any of the
representatives makes any representation that the
representatives will engage in these transactions or that these
transactions, once commenced, will not be discontinued without
notice.
Electronic
Distribution
Merrill Lynch will be facilitating electronic distribution for
this offering to certain of its Internet subscription customers.
Merrill Lynch intends to allocate a limited number of shares for
sale to its online brokerage customers. An electronic prospectus
is available on a web site maintained by Merrill Lynch. Other
than the prospectus in electronic format, the information on the
Merrill Lynch website is not part of this prospectus.
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 our Advisor, Tortoise Capital or our portfolio
companies for which they will be entitled to receive separate
fees. In particular, the underwriters or their affiliates may
execute transactions with Tortoise Capital or on behalf of
Tortoise Capital or any of our portfolio companies.
The underwriters or their respective 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
Tortoise Capital or any of our portfolio companies.
We may purchase securities of third parties from some of the
underwriters or their respective affiliates after the offering.
However, we have not entered into any agreement or arrangement
regarding the acquisition of any such securities, and we may not
purchase any such securities. We would only purchase any such
securities if among other things we
identified securities that satisfied our investment needs and
completed our due diligence review of such securities.
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 these
underwriters and their respective affiliates in the ordinary
course of their business and not in connection with the offering
of our common shares. In addition, after the offering period for
the sale of our common shares, the underwriters or their
affiliates may develop analyses or opinions related to Tortoise
Capital 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
Tortoise Capital to our stockholders.
The principal business address of Merrill Lynch, Pierce,
Fenner & Smith Incorporated is 4 World Financial
Center, New York, New York 10080.
The principal business address of Stifel, Nicolaus &
Company, Incorporated is 501 North Broadway,
St. Louis, Missouri 63102.
The principal business address of Wachovia Capital Markets, LLC
is 301 South College Street, Charlotte, North Carolina
28288.
99
INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM
Ernst & Young LLP, 1200 Main Street, Kansas City,
Missouri 64105, serves as our independent registered public
accounting firm. Ernst & Young LLP will provide audit
and audit-related services, tax return preparation and
assistance and consultation in connection with review of our
filings with the SEC.
ADMINISTRATOR,
CUSTODIAN, TRANSFER AND DIVIDEND PAYING AGENT AND
REGISTRAR
We have
engaged
to serve as the Companys administrator. The address of the
administrator
is .
Our common shares are held under a custody agreement with
U.S. Bank National Association, 425 Walnut Street,
Cincinnati, Ohio 45202. The transfer agent and registrar for our
common shares is Computershare Investor Services, LLC, 2 North
LaSalle Street, Chicago, Illinois 60602. Computershare Trust
Company, Inc., 2 North LaSalle Street, Chicago, Illinois 60602,
serves as our dividend paying agent and Plan Agent for our
Dividend Reinvestment Plan.
LEGAL
MATTERS
Certain legal matters in connection with the securities offered
hereby will be passed upon for us by Blackwell Sanders Peper
Martin LLP, Kansas City, Missouri and Sutherland
Asbill & Brennan LLP, Washington, D.C. Certain
legal matters in connection with the offering will be passed
upon for the underwriters by Fried, Frank, Harris,
Shriver & Jacobson LLP, New York, New York. Certain
matters of Maryland law will be passed upon by Venable LLP.
AVAILABLE
INFORMATION
We have filed with the SEC a registration statement on
Form N-2,
together with all amendments and related exhibits, under the
Securities Act, with respect to our common shares offered by
this prospectus. The registration statement contains additional
information about us and our common shares being offered by this
prospectus.
Upon completion of this offering, we will file with or submit to
the SEC annual, quarterly and current periodic reports, proxy
statements and other information meeting the informational
requirements of the Securities Exchange Act. You may inspect and
copy these reports, proxy statements and other information, as
well as the registration statement of which this prospectus
forms a part and the related exhibits and schedules, at the
Public Reference Room of the SEC at 100 F. Street, N.E.,
Washington, D.C. 20549. You may obtain information on the
operation of the Public Reference Room by calling the SEC at
1-800-SEC-0330.
The SEC maintains an Internet website that contains reports,
proxy and information statements and other information filed
electronically by us with the SEC which are available on the
SECs Internet website at
http://www.sec.gov.
Copies of these reports, proxy and information statements and
other information may be obtained, after paying a duplicating
fee, by electronic request at the following
E-mail
address: publicinfo@sec.gov, or by writing the SECs Public
Reference Section, Washington, D.C.
20549-0102.
100
TORTOISE
CAPITAL RESOURCES CORPORATION
STATEMENT OF ASSETS & LIABILITIES
F-3
TORTOISE
CAPITAL RESOURCES CORPORATION
STATEMENT OF OPERATIONS
F-4
TORTOISE
CAPITAL RESOURCES CORPORATION
NOTES TO FINANCIAL STATEMENTS
F-5
TORTOISE
CAPITAL RESOURCES CORPORATION
SCHEDULE OF INVESTMENTS
|
|
|
|
|
|
|
|
|
|
|
May 31, 2006
|
|
|
|
Shares
|
|
|
Value
|
|
|
|
(Unaudited)
|
|
|
Limited
Partnerships
39.9%(1)
|
|
|
|
|
|
|
|
|
Natural Gas
Gathering/Processing 29.3%(1)
|
|
|
|
|
|
|
|
|
Eagle Rock Pipeline, L.P.(3)
|
|
|
693,674
|
|
|
$
|
12,500,006
|
|
Natural Gas and Oil
Exploitation 10.6%(1)
|
|
|
|
|
|
|
|
|
Legacy Reserves, L.P.(3)
|
|
|
264,705
|
|
|
$
|
4,499,985
|
|
|
|
|
|
|
|
|
|
|
Total Limited Partnerships
(Cost $16,999,991)
|
|
|
|
|
|
$
|
16,999,991
|
|
|
|
|
|
|
|
|
|
|
Short-Term
Investments
60.5%(1)
|
|
|
|
|
|
|
|
|
First American Prime Obligations
Money Market Fund
Class Z, 4.86% (Cost $25,758,402)(2)
|
|
|
25,758,402
|
|
|
$
|
25,758,402
|
|
|
|
|
|
|
|
|
|
|
Total
Investments
100.4%(1) (Cost $42,758,393)
|
|
|
|
|
|
|
42,758,393
|
|
Liabilities in Excess of Cash and
Other Assets (.4%)(1)
|
|
|
|
|
|
|
(146,878
|
)
|
|
|
|
|
|
|
|
|
|
Total Net Assets Applicable to
Common
Stockholders
100.0%(1)
|
|
|
|
|
|
$
|
42,611,515
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Calculated as a percentage of net assets applicable to common
stockholders. |
|
(2) |
|
Rate indicated is the
7-day
effective yield. |
|
(3) |
|
Fair valued securities have a total market value of $16,999,991,
which represents 39.9% of net assets. |
See Accompanying Notes to the Financial Statements
F-6
TORTOISE
CAPITAL RESOURCES CORPORATION
STATEMENT OF ASSETS & LIABILITIES
|
|
|
|
|
|
|
May 31, 2006
|
|
|
|
(Unaudited)
|
|
|
ASSETS
|
Investments at value (cost
$42,758,393)
|
|
$
|
42,758,393
|
|
Dividends receivable
|
|
|
104,941
|
|
Prepaid expenses and other assets
|
|
|
19,789
|
|
|
|
|
|
|
Total assets
|
|
|
42,883,123
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES
|
Payable to Adviser
|
|
|
106,802
|
|
Current Tax liability
|
|
|
95,955
|
|
Accrued expenses and other
liabilities
|
|
|
68,851
|
|
|
|
|
|
|
Total liabilities
|
|
|
271,608
|
|
|
|
|
|
|
Net assets applicable to common
stockholders
|
|
$
|
42,611,515
|
|
|
|
|
|
|
Net Assets Applicable to Common
Stockholders Consist of
|
|
|
|
|
Warrants, no par value; 772,124
issued and outstanding
(5,000,000 authorized)
|
|
|
|
|
Capital stock, $0.001 par
value; 3,088,596 shares issued and outstanding
(100,000,000 shares authorized)
|
|
$
|
3,089
|
|
Additional paid-in capital
|
|
|
42,533,453
|
|
Accumulated net investment income
|
|
|
74,973
|
|
|
|
|
|
|
Net assets applicable to common
stockholders
|
|
$
|
42,611,515
|
|
|
|
|
|
|
Net Asset Value per common share
outstanding (net assets applicable to common shares, divided by
common shares outstanding)
|
|
$
|
13.80
|
|
|
|
|
|
|
See Accompanying Notes to the Financial Statements
F-7
TORTOISE
CAPITAL RESOURCES CORPORATION
STATEMENT OF OPERATIONS
|
|
|
|
|
|
|
Period from
|
|
|
|
December 8, 2005(1)
|
|
|
|
through May 31,
|
|
|
|
2006
|
|
|
|
(Unaudited)
|
|
|
Total Investment
Income
|
|
$
|
751,001
|
|
|
|
|
|
|
Expenses
|
|
|
|
|
Advisory fees
|
|
|
306,163
|
|
Professional fees
|
|
|
83,597
|
|
Directors fees
|
|
|
43,743
|
|
Reports to stockholders
|
|
|
15,810
|
|
Fund accounting fees
|
|
|
12,409
|
|
Stock transfer agent fees
|
|
|
10,009
|
|
Custodian fees and expenses
|
|
|
3,438
|
|
Other expenses
|
|
|
10,849
|
|
|
|
|
|
|
Total Expenses
|
|
|
486,018
|
|
|
|
|
|
|
Net Investment Income, before
income taxes
|
|
|
264,983
|
|
Current tax expense
|
|
|
(95,955
|
)
|
|
|
|
|
|
Net Investment Income
|
|
|
169,028
|
|
|
|
|
|
|
Net Increase in Net Assets
Applicable to Common Stockholders Resulting from
Operations
|
|
$
|
169,028
|
|
|
|
|
|
|
|
|
|
(1) |
|
Commencement of operations. |
See Accompanying Notes to the Financial Statements
F-8
TORTOISE
CAPITAL RESOURCES CORPORATION
STATEMENT OF CHANGES IN NET ASSETS
|
|
|
|
|
|
|
Period from
|
|
|
|
December 8, 2005(1)
|
|
|
|
through May 31,
|
|
|
|
2006
|
|
|
|
(Unaudited)
|
|
|
Operations
|
|
|
|
|
Net investment income
|
|
$
|
169,028
|
|
|
|
|
|
|
Net increase in net assets
applicable to common stockholders resulting from operations
|
|
|
169,028
|
|
|
|
|
|
|
Capital Share
Transactions
|
|
|
|
|
Proceeds from initial offering of
3,066,667 common shares
|
|
|
46,000,005
|
|
Underwriting discounts and
offering expenses associated with the issuance of common shares
|
|
|
(3,769,372
|
)
|
|
|
|
|
|
Net increase in net assets,
applicable to common stockholders, from capital share
transactions
|
|
|
42,230,633
|
|
|
|
|
|
|
Total increase in net assets
applicable to common stockholders
|
|
|
42,399,661
|
|
Net Assets
|
|
|
|
|
Beginning of period
|
|
|
211,854
|
|
|
|
|
|
|
End of period
|
|
$
|
42,611,515
|
|
|
|
|
|
|
Accumulated net investment income,
at end of period
|
|
$
|
74,973
|
|
|
|
|
|
|
|
|
|
(1) |
|
Commencement of operations. |
See Accompanying Notes to the Financial Statements
F-9
TORTOISE
CAPITAL RESOURCES CORPORATION
STATEMENT OF CASH FLOWS
|
|
|
|
|
|
|
Period from
|
|
|
|
December 8, 2005(1)
|
|
|
|
through May 31,
|
|
|
|
2006
|
|
|
|
(Unaudited)
|
|
|
Cash Flows From Operating
Activities
|
|
|
|
|
Dividend income received
|
|
$
|
646,060
|
|
Purchases of long-term investments
|
|
|
(16,999,991
|
)
|
Net purchases of short-term
investments
|
|
|
(25,758,402
|
)
|
Operating expenses paid
|
|
|
(424,210
|
)
|
|
|
|
|
|
Net cash used in operating
activities
|
|
|
(42,536,543
|
)
|
|
|
|
|
|
Cash Flows from Financing
Activities
|
|
|
|
|
Issuance of common stock
|
|
|
46,000,005
|
|
Common stock issuance costs
|
|
|
(3,769,372
|
)
|
|
|
|
|
|
Net cash provided by financing
activities
|
|
|
42,230,633
|
|
|
|
|
|
|
Net decrease in cash
|
|
|
(305,910
|
)
|
Cash beginning of
period
|
|
|
(305,910
|
)
|
|
|
|
|
|
Cash end of period
|
|
$
|
|
|
|
|
|
|
|
Reconciliation of net increase
in net assets applicable to common stockholders resulting from
operations to net cash used in operating activities
|
|
|
|
|
Net increase in net assets
applicable to common stockholders resulting from operations
|
|
$
|
169,028
|
|
Adjustments to reconcile net
increase in net assets applicable to common stockholders
resulting from operations to net cash used in operating
activities
|
|
|
|
|
Purchases of long-term investments
|
|
|
(16,999,991
|
)
|
Net purchases of short term
investments
|
|
|
(25,758,402
|
)
|
Changes in operating assets and
liabilities
|
|
|
|
|
Increase in dividend receivable
|
|
|
(104,941
|
)
|
Increase in prepaid expenses and
other assets
|
|
|
(19,789
|
)
|
Increase in payable to Adviser
|
|
|
106,802
|
|
Increase in current tax liability
|
|
|
95,955
|
|
Decrease in accrued expenses and
other liabilities
|
|
|
(25,205
|
)
|
|
|
|
|
|
Total adjustments
|
|
|
(42,705,571
|
)
|
|
|
|
|
|
Net cash used in operating
activities
|
|
$
|
(42,536,543
|
)
|
|
|
|
|
|
|
|
|
(1) |
|
Commencement of operations. |
See Accompanying Notes to the Financial Statements
F-10
TORTOISE
NORTH AMERICAN ENERGY CORPORATION
FINANCIAL
HIGHLIGHTS
|
|
|
|
|
|
|
Period from
|
|
|
|
December 8, 2005(1)
|
|
|
|
through May 31,
|
|
|
|
2006
|
|
|
Per Common Share
Data(2)
|
|
|
|
|
Net Asset Value, beginning of
period
|
|
$
|
|
|
Initial offering price
|
|
|
15.00
|
|
Underwriting discounts and
offering costs on initial offering
|
|
|
(1.22
|
)
|
Income from Investment Operations:
|
|
|
|
|
Net investment income
|
|
|
0.01
|
|
|
|
|
|
|
Net Asset Value, end of period
|
|
$
|
13.79
|
|
|
|
|
|
|
Supplemental Data and
Ratios
|
|
|
|
|
Net assets applicable to common
stockholders, end of period (000s)
|
|
$
|
42,597
|
|
Ratio of expenses (including
current income tax expense) to average net assets:(3)(4)
|
|
|
2.88
|
%
|
Ratio of expenses (excluding
current income tax expense) to average net assets:(3)(4)
|
|
|
2.40
|
%
|
Ratio of net investment income to
average net assets before current income tax expense:(3)(4)
|
|
|
1.31
|
%
|
Ratio of net investment income to
average net assets after current income tax expense:(3)(4)
|
|
|
0.84
|
%
|
Portfolio turnover rate
|
|
|
0.00
|
%
|
|
|
|
(1) |
|
Commencement of operations. |
|
(2) |
|
Information presented relates to a share of common stock
outstanding for the entire period. |
|
(3) |
|
Annualized for periods less than one full year. |
|
(4) |
|
The Company accrued $95,955 for the period ended May 31,
2006 in current income tax expense. |
See Accompanying Notes to the Financial Statements
F-11
TORTOISE
CAPITAL RESOURCES CORPORATION
May 31,
2006
Tortoise Capital Resources Corp. (the Company),
organized as a Maryland corporation on September 8, 2005,
was created to invest primarily in privately-held and micro-cap
public companies in the U.S. energy infrastructure sector.
The Company plans to elect to be regulated as a business
development company (BDC) under the Investment
Company Act of 1940, as amended (the 1940 Act), and
to be treated as a Regulated Investment Company
(RIC) under the Internal Revenue Code of 1986, as
amended (the Code). Until such time as these
elections are made, the Company will be taxed as a general
business corporation under the Code.
|
|
2.
|
Significant
Accounting Policies
|
A. Use
of Estimates
The preparation of financial statements in conformity with
accounting principles generally accepted in the United States
requires management to make estimates and assumptions that
affect the reported amount of assets and liabilities and
disclosure of contingent assets and liabilities at the date of
the financial statements. Actual results could differ from those
estimates.
B.
Investment Valuation
The Company intends to invest primarily in illiquid securities
including debt and equity securities of privately-held
companies. The investments generally will be subject to
restrictions on resale, will have no established trading market
and will be fair valued, on a quarterly basis. Fair value is
intended to be the amount for which an investment could be
exchanged in an orderly disposition over a reasonable period of
time between willing parties other than in a forced liquidation
or sale. Because of the inherent uncertainty of valuation, the
fair values of such investments, which will be determined in
accordance with procedures approved by the Companys Board
of Directors, may differ materially from the values that would
have been used had a ready market existed for the investments.
The process for determining the fair value of a security of a
private investment begins with determining the enterprise value
of the company that issued the security. The fair value of the
investment will be based on the enterprise value at which a
company could be sold in an orderly disposition over a
reasonable period of time between willing parties. There is no
one methodology to determine enterprise value and for any one
company, enterprise value may best be expressed as a range of
fair values, from which a single estimate of enterprise value
will be derived.
If the portfolio company has an adequate enterprise value to
support the repayment of our debt, the fair value of our loan or
debt security will normally correspond to cost unless the
portfolio companys condition or other factors lead to a
determination of fair value at a different amount. When
receiving nominal cost warrants or free equity securities
(nominal cost equity), we will allocate the cost
basis in the investment between debt securities and nominal cost
equity at the time of origination. The fair value of equity
interests in portfolio companies is determined based on various
factors, including the enterprise value remaining for equity
holders after repayment of debt and other preference capital,
and other pertinent factors such as recent offers to purchase a
company, recent transactions involving the purchase or sale of
equity securities, or other liquidation events. The determined
equity values are generally discounted when holding a minority
position, when restrictions on resale are present, when there
are specific concerns about the receptivity of the capital
markets to a specific company at a certain time, or when other
factors are present.
The equity investments in Eagle Rock Pipeline, L.P. and Legacy
Reserves, LP were valued at cost as of May 31, 2006.
F-12
TORTOISE
CAPITAL RESOURCES CORPORATION
NOTES TO
FINANCIAL STATEMENTS
(Unaudited) (Continued)
For equity and equity-related securities that are listed on a
securities exchange, the Company will value those securities at
the closing price on that exchange on the valuation date.
The Companys Board of Directors may consider other methods
of valuing investments as appropriate and in conformity with
accounting principles generally accepted in the United States.
The Company may engage an independent valuation firm from time
to time to assist in determining the fair value of investments.
C.
Interest and Fee Income
Interest income will be recorded on the accrual basis to the
extent that such amounts are expected to be collected. When
investing in instruments with an original issue discount or
payment-in-kind
interest, the Company will accrue interest income during the
life of the investment, even though the Company will not
necessarily be receiving cash as the interest is accrued. Fee
income will include fees, if any, for due diligence,
structuring, commitment and facility fees, transaction services,
consulting services and management services rendered to
portfolio companies and other third parties. Commitment and
facility fees generally will be recognized as income over the
life of the underlying loan, whereas due diligence, structuring,
transaction service, consulting and management service fees
generally will be recognized as income when services are
rendered.
D.
Security Transactions
Security transactions will be accounted for on the date the
securities are purchased or sold (trade date). Realized gains
and losses will be reported on an identified cost basis.
E.
Dividends to Stockholders
The amount of any quarterly dividends will be determined by the
Board of Directors. Distributions to stockholders are recorded
on the ex-dividend date. The character of distributions made
during the year from net investment income or net realized gains
may differ from their ultimate characterization for federal
income tax purposes.
F.
Federal and State Income Taxation
Initially, the Company will be treated as a general business
corporation for U.S. federal and state income tax purposes.
Thus, the Company will compute and pay federal and state income
tax on its taxable income without regard to the rules applicable
to RICs. Currently, the maximum marginal regular federal income
tax rate for a corporation is 35 percent. The Company may
be subject to a 20 percent federal alternative minimum tax
on its federal alternative minimum taxable income to the extent
that its alternative minimum tax exceeds its regular federal
income tax.
The Companys tax expense or benefit will be included in
the Statement of Operations based on the component of income or
gains (losses) to which such expense or benefit relates.
Deferred income taxes reflect the net tax effects of temporary
differences between the carrying amounts of assets and
liabilities for financial reporting purposes and the amounts
used for income tax purposes.
Although the Company was formed as a general business
corporation, it intends to elect to be regulated as a BDC under
the 1940 Act and to be treated as a RIC.
If the Company qualifies as a RIC and satisfies the annual
distribution requirement, then it will not be subject to
U.S. federal and state income tax on the portion of its
investment company taxable income and net capital gain (i.e.,
net long-term capital gains in excess of net short-term capital
losses) it distributes to its stockholders, other than any
built-in gain recognized within 10 years after the
effective date of its RIC election. It will be subject to
U.S. federal income tax at the regular corporate rate on
any income or capital
F-13
TORTOISE
CAPITAL RESOURCES CORPORATION
NOTES TO
FINANCIAL STATEMENTS
(Unaudited) (Continued)
gain not distributed (or deemed distributed) to its
stockholders. The Company will be subject to a 4 percent
nondeductible U.S. federal excise tax on certain
undistributed income unless the Company makes sufficient
distributions to satisfy the excise tax avoidance requirement.
G.
Organization Expenses and Offering Costs
The Company is responsible for paying all organization and
offering expenses. Offering costs paid by the Company were
charged as a reduction of paid-in capital at the completion of
the Companys initial offering, and amounted to $549,372
(excluding initial purchasers discount and placement
fees). Organizational costs were expensed as incurred, and in
total amounted to $88,906.
H.
Indemnifications
Under the Companys organizational documents, its officers
and directors are indemnified against certain liabilities
arising out of the performance of their duties to the Company.
In addition, in the normal course of business, the Company may
enter into contracts that provide general indemnification to
other parties. The Companys maximum exposure under these
arrangements is unknown as this would involve future claims that
may be made against the Company that have not yet occurred, and
may not occur.
The Companys investment objective is to provide
stockholders with current income and capital appreciation. The
Company anticipates focusing investments on unsecured,
subordinated debt securities and equity securities within the
U.S. energy infrastructure sector that will generally be
expected to pay interest or dividends on a current basis. The
Company intends to seek to obtain enhanced returns through
warrants or other equity conversion features within certain
subordinated debt securities in which the Company intends to
invest and from growth in dividends from its equity investments.
The Company may, for defensive purposes, temporarily invest all
or a significant portion of its assets in investment grade
securities, short-term debt securities and cash or cash
equivalents. To the extent the Company uses this strategy, it
may not achieve its investment objectives.
The Company has entered into an Investment Advisory Agreement
with Tortoise Capital Advisors, LLC (the Adviser).
Under the terms of the agreement, the Adviser will be paid a fee
consisting of two components: a base management fee and an
incentive fee.
The base management fee will be a quarterly fee of
0.375 percent (1.5 percent annualized) of the
Companys Managed Assets at the end of each quarter.
Managed Assets means the total assets of the Company
(including any assets purchased with or attributable to any
borrowed funds). The base management fee will be calculated and
paid quarterly in arrears within 15 days of the end of each
calendar quarter. The Companys Managed Assets shall be
computed in accordance with any applicable policies and
determinations of the Board of Directors. The base management
fee for any partial quarter will be appropriately prorated.
The incentive fee consists of two parts. The first part, the
investment income fee, is equal to 15 percent of the
excess, if any, of the Companys Net Investment Income for
the quarter over a quarterly hurdle rate equal to 2 percent
(8 percent annualized), and multiplied, in either case, by
the Companys Net Assets at the end of the quarter.
Net Assets means the Managed Assets less
indebtedness of the Company. Net Investment Income
means interest income, dividend income and any other income
(including any fees such as commitment, origination,
syndication, structuring, diligence, monitoring and consulting
fees or other fees that the Company is entitled to receive from
portfolio companies) accrued during the calendar quarter, minus
the Companys operating expenses accrued for such quarter
(including the Base Management Fee, any
F-14
TORTOISE
CAPITAL RESOURCES CORPORATION
NOTES TO
FINANCIAL STATEMENTS
(Unaudited) (Continued)
interest expense, any tax expense, and dividends paid on issued
and outstanding preferred stock, if any, but excluding the
Incentive Fee payable hereunder). Net Investment Income also
includes, in the case of investments with a deferred interest
feature (such as original issue discount, debt instruments with
payment-in-kind
interest, and zero coupon securities), accrued income that the
Company has not yet received in cash. Net Investment Income does
not include any realized capital gains, realized capital losses,
or unrealized capital appreciation or depreciation. The
Investment Income Fee shall be calculated and payable quarterly
in arrears within fifteen (15) days of the end of each
calendar quarter, with the fee accruing from the first
anniversary of the day the Company receives the proceeds from
its initial offering of common shares (the Commencement of
Operations). The Investment Income Fee calculation shall
be adjusted appropriately on the basis of the number of calendar
days in the first quarter the fee accrues or the calendar
quarter during which the Agreement is in effect in the event of
termination of the Agreement during any calendar quarter.
The second part of the fee, the capital gains fee, is equal to
(a) 15 percent of (i) the Companys net
realized capital gains (realized capital gains less realized
capital losses) on a cumulative basis from the Commencement of
Operations to the end of each calendar year, less (ii) any
unrealized capital depreciation at the end of such calendar
year, less (b) the aggregate amount of all capital gains
fees paid to the Advisor in prior fiscal years. Except as set
forth below, the capital gains fee shall be calculated and
payable annually within fifteen (15) days of the end of
each calendar year. For the purposes of this section, realized
capital gains on a security will be calculated as the amount by
which the net amount realized from the sale or other disposition
of such security is less than the original cost of such
security. Unrealized capital depreciation on a security will be
calculated as the amount by which the Companys original
cost of such security exceeds the fair value of such security at
the end of a fiscal year. All fiscal year-end valuations will be
determined by the Company in accordance with accounting
principles generally accepted in the United States, the 1940 Act
(even if such valuation is made prior to the date on which the
Company has elected to be regulated as a BDC), and the policies
and procedures of the Company to the extent consistent therewith.
If the Companys common stock becomes listed on any
national securities exchange or automated dealer quotation
system, then the Adviser will use at least 25 percent of
any capital gains fee received on or prior to the second
anniversary of the day it receives the proceeds from the initial
private offering to purchase such common stock in the open
market. In the event the investment advisory agreement is
terminated, the capital gains fee calculation will be undertaken
as of, the date of termination. The Adviser may, from time to
time waive or defer all or any part of the base management fee
or the incentive fee.
The Adviser has entered into a sub-advisory agreement with
Fountain Capital, an affiliated entity, pursuant to which
Fountain Capital will provide investment advisory services
relating to the portion of liquid assets that are expected from
time to time to be invested in short duration high yield bonds
in the Company. The Adviser is responsible for all fees and
expenses payable to Fountain Capital as a result of such
agreement. The Company is not a party to such agreement and will
not be responsible for any fees payable to Fountain Capital for
providing such services.
The Adviser has also entered into a sub-advisory agreement with
Kenmont Investments Management, L.P. (Kenmont), an
investment adviser with experience investing in privately-held
and public companies in the U.S. energy and power sectors.
Kenmont will (i) assist in identifying potential investment
opportunities, subject to the right of Kenmont to first show
investment opportunities that it identifies to other funds or
accounts for which Kenmont is the primary adviser,
(ii) assist, as requested but subject to a limit of
20 hours per month,