SEC Company Response from PROSPECT CAPITAL CORP (PSEC, PSEC-PA) (CIK 0001287032) (PSEC) — Oct 22, 2009
PROSPECT CAPITAL CORP (PSEC, PSEC-PA) (CIK 0001287032)
Date: Oct. 22, 2009 · CIK: 0001287032 · Accession: 0000950123-09-052360
AI Filing Summary & Sentiment
File numbers found in text: 333-161764
Letter
Division of Investment Management Washington, D.C. 20549 Re: Preliminary Merger Proxy Statement/Prospectus on Form N-14 (File No. 333-161764) (the “Form N-14”) filed on September 4, 2009
Dear Mr. Greene:
We are submitting this letter to respond to comments orally issued by the staff of the Division of Investment Management (the “Staff”) of the Securities and Exchange Commission (the “SEC”) on October 21, 2009 regarding the Form N-14, which includes the preliminary merger proxy statement of Patriot Capital Funding, Inc. (“Patriot”) therein, filed by Prospect Capital Corporation (“Prospect”) with the SEC on September 4, 2009 and amended on October 20, 2009 in connection with the proposed merger of Patriot with and into Prospect.
Prospect and Patriot have considered your comments and have authorized us to make on their behalf the responses and amendments to the Form N-14 discussed below. These changes have been reflected in Pre-Effective Amendment No. 2 to the Form N-14. For ease of reference, the Staff’s comments are set forth below in italics and are followed by the responses of Prospect and/or Patriot. The captions and page numbers we use below generally correspond to those used in the Form N-14. Any capitalized terms used but not defined in this letter have the meaning given to them in the Form N-14.
Mr. Larry Greene
October 22, 2009
Page 2
General
Comment:
1.
Please confirm that the disclosure regarding FBR Capital Markets & Co. (“FBR”) comports with the requirements of Item 509 of Regulation S-K.
Response: We believe that the disclosure regarding FBR comports with the requirements of Item 509 of Regulation S-K. In that regard, we note the disclosure regarding the fees payable to FBR by Patriot on page 88 of the proxy/'prospectus, including the portion thereof that is contingent upon the consummation of the merger, and supplementally inform the staff that we have been advised by FBR that it does not have a substantial interest in Prospect or any of its parents or subsidiaries and is not connected with any such entities in any of the manners set forth in Item 509 of Regulation S-K.
Comment:
2.
We note that the legality opinion should be rendered in close time proximity to the declaration of effectiveness of the N-14 and that if it is not done so we may require the filing of an updated legality opinion.
Response: Your comment is noted. However, we do not necessarily agree that an updated legality opinion will be required in such a case. In the event the From N-14 is not declared effective in the near future, we will discuss this matter with you at such time.
Comment:
3.
Please clarify how proxies will treat abstentions and how broker-non votes will be treated in the instance there is a vote to adjourn the meeting.
Response: In accordance with the instructions on the proxy card, if a shareholder instructs a proxy to abstain from voting on a proposal to adjourn the meeting, then the proxy will abstain from voting on such a proposal. Since the holders of shares representing a majority of the votes present in person or by proxy at the special meeting are required to approve such a proposal, abstentions will be treated for purposes of the adjournment vote as votes cast “against” the adjournment. Disclosure to this effect is already included in the Form N-14 on page 53. In addition, Patriot has made revisions to the Form N-14 clarifying the effect of abstentions on the adjournment proposal.
Since the underlying matter that is being voted upon is not considered ordinary, Patriot does not expect that there will be any broker non-votes on a vote to adjourn the meeting.
Mr. Larry Greene
October 22, 2009
Page 3
Comment:
4.
Please add disclosure to the From N-14 regarding Prospect’s upcoming annual meeting and that Prospect’s shareholders will be voting on a proposal to authorize the issuances of shares below net asset value. In addition, please add the disclosure and dilution charts regarding below net asset value issuances contained in Prospect’s most recent definitive proxy statement to the Form N-14. Please be sure to include the discussion contained in the proxy statement regarding the separate voting standards for obtaining approval of below net asset value issuances (i.e., the Section 23(b) standard and the Section 63(2) standard) and please also note that Section 23(b) does not impose a one-year time limit or require that the board determine that the price at which the securities are to be offered “closely approximates the market value of those securities.”
Response: The requested changes have been made. Prospect had added a section entitled “Sales of Common Stock Below Net Asset Value by Prospect” to the Form N-14.
* * * * *
If you have any questions or comments or require any additional information in connection with the above, please telephone the undersigned at (212) 735-2790, Harry S. Pangas of Sutherland Asbill & Brennan LLP at (202) 383-0805 or Steven Boehm of Sutherland Asbill & Brennan LLP at (202) 383-0176.
Sincerely,
/s/ Richard T. Prins
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CORRESP
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Skadden, Arps, Slate, Meagher & Flom llp
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October 22, 2009
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VIA E-MAIL AND EDGAR
Mr. Larry Greene
Division of Investment Management
U.S. Securities and Exchange Commission
100 F Street, N.E.
Washington, D.C. 20549
Re:
Preliminary Merger Proxy Statement/Prospectus on Form N-14
(File No. 333-161764) (the “Form N-14”) filed on September 4, 2009
Dear Mr. Greene:
We are submitting this letter to respond to comments orally issued by the staff of the
Division of Investment Management (the “Staff”) of the Securities and Exchange Commission (the
“SEC”) on October 21, 2009 regarding the Form N-14, which includes the preliminary merger proxy
statement of Patriot Capital Funding, Inc. (“Patriot”) therein, filed by Prospect Capital
Corporation (“Prospect”) with the SEC on September 4, 2009 and amended on October 20, 2009 in
connection with the proposed merger of Patriot with and into Prospect.
Prospect and Patriot have considered your comments and have authorized us to make on their behalf
the responses and amendments to the Form N-14 discussed below. These changes have been reflected in
Pre-Effective Amendment No. 2 to the Form N-14. For ease of reference, the Staff’s comments are
set forth below in italics and are followed by the responses of Prospect and/or Patriot. The
captions and page numbers we use below generally correspond to those used in the Form N-14. Any
capitalized terms used but not defined in this letter have the meaning given to them in the Form
N-14.
Mr. Larry Greene
October 22, 2009
Page 2
General
Comment:
1.
Please confirm that the disclosure regarding FBR Capital Markets & Co. (“FBR”)
comports with the requirements of Item 509 of Regulation S-K.
Response: We believe that the disclosure regarding FBR comports with the
requirements of Item 509 of Regulation S-K. In that regard, we note the disclosure regarding the
fees payable to FBR by Patriot on page 88 of the proxy/'prospectus, including the portion thereof
that is contingent upon the consummation of the merger, and supplementally inform the staff that
we have been advised by FBR that it does not have a substantial interest in Prospect or any of
its parents or subsidiaries and is not connected with any such entities in any of the manners set
forth in Item 509 of Regulation S-K.
Comment:
2.
We note that the legality opinion should be rendered in close time proximity to
the declaration of effectiveness of the N-14 and that if it is not done so we may
require the filing of an updated legality opinion.
Response: Your comment is noted. However, we do not necessarily agree that
an updated legality opinion will be required in such a case. In the event the From
N-14 is not declared effective in the near future, we will discuss this matter with
you at such time.
Comment:
3.
Please clarify how proxies will treat abstentions and how broker-non votes will
be treated in the instance there is a vote to adjourn the meeting.
Response: In accordance with the instructions on the proxy card, if a
shareholder instructs a proxy to abstain from voting on a proposal to adjourn the
meeting, then the proxy will abstain from voting on such a proposal. Since the
holders of shares representing a majority of the votes present in person or by proxy
at the special meeting are required to approve such a proposal, abstentions will be
treated for purposes of the adjournment vote as votes cast “against” the
adjournment. Disclosure to this effect is already included in the Form N-14 on page
53. In addition, Patriot has made revisions to the Form N-14 clarifying the effect of
abstentions on the adjournment proposal.
Since the underlying matter that is being voted upon is not
considered ordinary, Patriot does not expect that there will be any broker non-votes on a vote to adjourn the
meeting.
Mr. Larry Greene
October 22, 2009
Page 3
Comment:
4.
Please add disclosure to the From N-14 regarding Prospect’s upcoming annual
meeting and that Prospect’s shareholders will be voting on a proposal to authorize the
issuances of shares below net asset value. In addition, please add the disclosure and
dilution charts regarding below net asset value issuances contained in Prospect’s most
recent definitive proxy statement to the Form N-14. Please be sure to include the
discussion contained in the proxy statement regarding the separate voting standards for
obtaining approval of below net asset value issuances (i.e., the Section 23(b) standard
and the Section 63(2) standard) and please also note that Section 23(b) does not impose
a one-year time limit or require that the board determine that the price at which the
securities are to be offered “closely approximates the market value of those
securities.”
Response: The requested changes have been made.
Prospect had added a section entitled “Sales of Common Stock Below Net
Asset Value by Prospect” to the Form N-14.
* * * * *
If you have any questions or comments or require any additional information in connection with
the above, please telephone the undersigned at (212) 735-2790, Harry S. Pangas of Sutherland Asbill
& Brennan LLP at (202) 383-0805 or Steven Boehm of Sutherland Asbill & Brennan LLP at (202)
383-0176.
Sincerely,
/s/ Richard T. Prins
Richard T. Prins