As filed with the Securities and Exchange Commission on August 23, 2001
Registration No. 333-63700
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM N-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
[X] PRE-EFFECTIVE AMENDMENT NO. 3
[ ] POST-EFFECTIVE AMENDMENT NO.
GLADSTONE CAPITAL CORPORATION
(Exact Name of Registrant as Specified in Charter)
1750 Tysons Blvd., 4th Floor
McLean, VA 22102
(703) 744-1165
(Address and Telephone Number, including Area Code, of Principal Executive
Offices)
David Gladstone
Chairman of the Board and Chief Executive Officer
Gladstone Capital Corporation
1750 Tysons Blvd., 4th Floor
McLean, VA 22102
(703) 744-1165
(Name, Address and Telephone Number of Agent for Service)
Copies of information to:
Thomas R. Salley, Esq. William G. Farrar, Esq.
Darren K. DeStefano, Sullivan & Cromwell
Esq. 125 Broad Street
Lisa W. Fitch, Esq. New York, NY 10004-2498
Cooley Godward LLP (212) 558-4000
One Freedom Square
Reston Town Center
11951 Freedom Drive
Reston, VA 20190
(703) 456-8000
Approximate Date of Proposed Public Offering: As soon as practicable after the
effective date of this Registration Statement.
If any securities being registered on this form will be offered on a delayed or
continuous basis in reliance on Rule 415 under the Securities Act of 1933, other
than securities offered in connection with a dividend reinvestment plan, check
the following box. / /
If appropriate, check the following box:
/ / This [post-effective amendment] designates a new effective date for a
previously filed [post-effective amendment][registration statement]
/ / This form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act and the Securities Act
registration statement number of the earlier effective registration statement
for the same offering is .
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION
8(a), MAY DETERMINE.
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PART C OTHER INFORMATION
ITEM 24. FINANCIAL STATEMENTS AND EXHIBITS
1. FINANCIAL STATEMENTS
The following financial statements of Gladstone Capital Corporation (the
"Company" or the "Registrant") are included in this registration statement in
"Part A: Information Required in a Prospectus":
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Balance Sheet of Registrant, dated as of May 30, 2001. F-3
2. EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
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a.1* Articles of Incorporation.
a.2* Articles of Amendment and Restatement of the Articles of
Incorporation.
b* Bylaws.
c Not applicable.
d.1* Form of Direct Registration Transaction Advice for the
Company's common stock, par value $0.001 per share, the
rights of holders of which are defined in Exhibits a and b.
d.2+ Specimen Stock Certificate.
e* Dividend Reinvestment Plan.
f Not applicable.
g Not applicable.
h+ Form of Underwriting Agreement.
i.1* Amended and Restated 2001 Equity Incentive Plan.
i.2* Form of Stock Option Agreement.
i.3* First Amendment to Amended and Restated 2001 Equity
Incentive Plan.
i.4+ Form of Early Exercise Stock Purchase Agreement.
j* Form of Custody Agreement with First Union National Bank
with respect to safekeeping.
k.1* Form of Stock Transfer Agency Agreement between the Company
and the Bank of New York.
k.2* Employment Agreement dated June 25, 2001 between the Company
and David Gladstone.
k.3* Employment Agreement dated July 23, 2001 between the Company
and Terry Lee Brubaker.
k.4* Amendment to Employment Agreement dated August 8, 2001,
between the Company and David Gladstone.
l+ Opinion of Cooley Godward LLP.
m Not applicable.
n.1* Consent of Ernst & Young LLP, independent public
accountants.
n.2+ Consent of Cooley Godward LLP (included in Exhibit l).
n.3* Consent of David A.R. Dullum to be named as director.
n.4* Consent of George Stelljes, III to be named as director.
n.5* Consent of Anthony W. Parker to be named as director.
o Not applicable.
p* Subscription Agreement dated May 30, 2001.
q Not applicable.
r* Code of Ethics.
* PREVIOUSLY FILED.
+ FILED HEREWITH.
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PART C OTHER INFORMATION
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ITEM 25. MARKETING ARRANGEMENTS
The information contained under the heading "Underwriting" on page 51 of the
prospectus is incorporated herein by reference, and any information concerning
any underwriters will be contained in the accompanying prospectus supplement, if
any.
ITEM 26. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Commission registration fee................................. $ 53,475
NASD filing fee............................................. 21,890
Nasdaq National Market Listing Application Fee.............. 69,375
Accounting fees and expenses*............................... 90,000
Legal fees and expenses.*................................... 550,000
Transfer Agency fees*....................................... 25,000
Printing and engraving*..................................... 150,000
Miscellaneous fees and expenses*............................ 40,260
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Total....................................................... $1,000,000
==========
* ESTIMATED FOR FILING PURPOSES.
All of the expenses set forth above shall be borne by the Company.
ITEM 27. PERSONS CONTROLLED BY OR UNDER COMMON CONTROL
Gladstone Advisers, Inc., a Virginia corporation ("Advisers"), is the Company's
only subsidiary. Gladstone Capital Corporation owns 100% of the voting
securities of Advisers. Advisers is consolidated with the Company for financial
reporting purposes.
ITEM 28. NUMBER OF HOLDERS OF SECURITIES
The following table sets forth the approximate number of record holders of the
Company's common stock at August 22, 2001.
NUMBER OF
TITLE OF CLASS RECORD HOLDERS
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Common stock, $0.001 par value.............................. 1
ITEM 29. INDEMNIFICATION
The Annotated Code of Maryland, Corporations and Associations (the "Maryland
Law"), Section 2-418 provides that a Maryland corporation may indemnify any
director of the corporation and any person who, while a director of the
corporation, is or was serving at the request of the corporation as a director,
officer, partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, other enterprise or employee
benefit plan, made a party to any proceeding by reason of service in that
capacity unless it is established that the act or omission of the director was
material to the matter giving rise to the proceeding and was committed in bad
faith or was the result of active and deliberate dishonesty; or the director
actually received an improper personal benefit in money, property or services;
or, in the case of any criminal proceeding, the director had reasonable cause to
believe that the act or omission was unlawful. Indemnification may be made
against judgments, penalties, fines, settlements, and reasonable expenses
actually incurred by the director in connection with the proceeding, but if the
proceeding was one by or in
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PART C OTHER INFORMATION
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the right of the corporation, indemnification may not be made in respect of any
proceeding in which the director shall have been adjudged to be liable to the
corporation. Such indemnification may not be made unless authorized for a
specific proceeding after a determination has been made, in the manner
prescribed by the law, that indemnification is permissible in the circumstances
because the director has met the applicable standard of conduct. On the other
hand, the director must be indemnified for expenses if he or she has been
successful in the defense of the proceeding or as otherwise ordered by a court.
The law also prescribes the circumstances under which the corporation may
advance expenses to, or obtain insurance or similar cover for, directors.
The law also provides for comparable indemnification for corporate officers and
agents.
The Articles of Incorporation of the Company provide that its directors and
officers shall, and its agents in the discretion of the board of directors may,
be indemnified to the fullest extent permitted from time to time by the laws of
Maryland (with such power to indemnify officers and directors limited to the
scope provided for in Section 2-418 as currently in force), provided, however,
that such indemnification is limited by the Investment Company Act of 1940 or by
any valid rule, regulation or order of the Securities and Exchange Commission
thereunder. The Company's Bylaws provide that the Company may not indemnify any
director or officer against liability to the Company or its security holders to
which he or she might otherwise be subject by reason of such person's willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of his or her office unless a determination is made by
final decision of a court, by vote of a majority of a quorum of directors who
are disinterested, non-party directors or by independent legal counsel that the
liability for which indemnification is sought did not arise out of such
disabling conduct.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the provisions described above, or otherwise, the Company
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person in the successful defense of
an action, suit or proceeding) is asserted by a director, officer or controlling
person in connection with the securities being registered, the Company will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of the court of the issue.
The underwriting agreement provides for each of the parties thereto, including
the Company and the underwriters, to indemnify the others, their partners,
directors and officers and persons who control them against certain liabilities
in connection with the offering described herein, including liabilities under
the federal securities laws, the common law, or otherwise, and to contribute to
payments that a party entitled to such indemnification may be required to make
in respect thereof.
The Company carries liability insurance for the benefit of its directors and
officers on a claims-made basis of up to $10,000,000, subject to a retention of
up to $200,000 for certain claims.
ITEM 30. BUSINESS AND OTHER CONNECTIONS OF INVESTMENT ADVISER
Not applicable.
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PART C OTHER INFORMATION
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ITEM 31. LOCATION OF ACCOUNTS AND RECORDS
The Company maintains at its principal office physical possession of each
account, book or other document required to be maintained by Section 31(a) of
the 1940 Act and the rules thereunder.
ITEM 32. MANAGEMENT SERVICES
Not applicable.
ITEM 33. UNDERTAKINGS
1. The Registrant undertakes to suspend the offering of shares until the
prospectus is amended if, subsequent to the effective date of its registration
statement, (1) the net asset value declines more than ten percent from its net
asset value as of the effective date of the registration statement; or (2) the
net asset value increases to an amount greater than the net proceeds as stated
in the prospectus.
2. The Registrant undertakes that:
(a) For purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(b) For the purpose of determining any liability under the Securities Act, each
post-effective amendment that contains a form of prospectus shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant has
duly caused this Amendment No. 3 to the Registration Statement on Form N-2 to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of McLean, in the Commonwealth of Virginia, on the 22nd day of August, 2001.
GLADSTONE CAPITAL CORPORATION
By: /s/ DAVID GLADSTONE
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David Gladstone
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 3 to the Registration Statement has been signed by the following persons in
the capacities indicated on August 22, 2001.
SIGNATURE TITLE
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/s/ DAVID GLADSTONE Chairman of the Board and Chief Executive Officer
------------------------------------------- (principal executive officer)
David Gladstone
* President, Chief Operating Officer and Director
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Terry Lee Brubaker
* Chief Financial Officer (principal financial and
------------------------------------------- accounting officer)
Harry Brill
/s/ DAVID GLADSTONE
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David Gladstone
*By: (attorney-in-fact)
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