UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported): May 21, 2024
(Exact Name Of Registrant As Specified In Charter)
| (State or Other Jurisdiction of Incorporation) | (Commission File Number) | (IRS Employer Identification No.) | ||||||
(Address of Principal Executive Offices) (Zip Code)
Registrant’s telephone number, including area code: (214 ) 238-5700
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |||||||||||
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |||||||||||
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |||||||||||
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) | |||||||||||
Securities registered pursuant to Section 12(b) of the Act:
| Title of Each Class | Trading Symbol(s) | Name of Each Exchange on Which Registered | ||||||
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
| Emerging growth company | |||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry into a Material Definitive Agreement.
On March 4, 2019, Capital Southwest Corporation (the “Company”) established an “at-the-market” offering (the “ATM Program”) through which the Company may sell, from time to time through sales agents, shares of the Company’s common stock, par value $0.25 per share (the “Shares”).
On May 21, 2024, the Company increased the maximum amount of Shares to be sold through the ATM Program to $1,000,000,000 from $650,000,000 and amended the term “Settlement Date” to reflect that, on or after May 28, 2024, the settlement of shares will occur on the first trading day following the date on which such sales were made. In connection therewith, on May 21, 2024, the Company entered into separate fourth amendments (the “Fourth Amendments”) to (i) the third amended and restated equity distribution agreements, each dated May 26, 2021 (the “Third Amended and Restated Agreements”) with each of Jefferies LLC (“Jefferies”) and Raymond James & Associates, Inc. (“Raymond James”), and (ii) the amended and restated equity distribution agreements, each dated May 26, 2021 (together with the Third Amended and Restated Agreements, each as amended on each of August 3, 2021, November 2, 2021, and August 2, 2022, collectively, the “Equity Distribution Agreements”) with each of Citizens JMP Securities, LLC (f/k/a JMP Securities LLC) (“Citizens JMP”) and B. Riley Securities, Inc. (“B. Riley” and, together with Jefferies, Raymond James and Citizens JMP, the “Sales Agents”). The Equity Distribution Agreements with each of the Sales Agents, each as amended by the respective Fourth Amendments, are on substantially the same terms and conditions as one another. Under the Equity Distribution Agreements, each as amended by the respective Fourth Amendments, the Company may, but has no obligation to, issue and sell up to $1.0 billion in aggregate amount of Shares in the ATM Program, from time to time through Sales Agents, or to them, as principal for their own account. As of May 21, 2024, after giving effect to the Fourth Amendments, up to approximately $471.1 million in aggregate amount of the Shares remained available for sale under the ATM Program.
Further details regarding the Equity Distribution Agreements, each as amended by the respective Fourth Amendments, and the ATM Program are set forth in the Company’s prospectus supplement, dated November 2, 2021 (the “ATM Prospectus Supplement”), supplement no. 1 to the ATM Prospectus Supplement, dated February 1, 2022 (“Supplement No. 1”), supplement no. 2 to the ATM Prospectus Supplement, dated May 24, 2022 (“Supplement No. 2”), supplement no. 3 to the ATM Prospectus Supplement, dated August 2, 2022 (“Supplement No. 3”), supplement no. 4 to the ATM Prospectus Supplement, dated November 1, 2022 (“Supplement No. 4”), supplement no. 5 to the ATM Prospectus Supplement, dated January 31, 2023 (“Supplement No. 5”), supplement no. 6 to the ATM Prospectus Supplement, dated May 23, 2023 (“Supplement No. 6”), supplement no. 7 to the ATM Prospectus Supplement, dated October 31, 2023 (“Supplement No. 7”), supplement no. 8 to the ATM Prospectus Supplement, dated January 30, 2024 (“Supplement No. 8”), and supplement no. 9 to the ATM Prospectus Supplement, dated May 21, 2024 (“Supplement No. 9” and together with the ATM Prospectus Supplement, Supplement No. 1, Supplement No. 2, Supplement No. 3, Supplement No. 4, Supplement No. 5, Supplement No. 6, Supplement No. 7, and Supplement No. 8, and, including, in each case, any information incorporated by reference therein, the “Prospectus”), filed by the Company with the Securities and Exchange Commission.
The foregoing description of the Fourth Amendments is not complete and is qualified in its entirety by reference to the full text of the Fourth Amendments, forms of which are attached hereto as Exhibits 10.1 and 10.2 and are incorporated herein by reference. A copy of the opinion of Eversheds Sutherland (US) LLP relating to the legality of the issuance and sale of the Shares pursuant to the Prospectus is attached as Exhibit 5.1 hereto.
The Shares, if any, will be issued pursuant to the Company’s shelf registration statement on Form N-2 (File No. 333-259455), the prospectus, dated October 29, 2021, contained therein, and the Prospectus, as supplemented from time to time.
This Current Report on Form 8-K shall not constitute an offer to sell or a solicitation of an offer to buy any securities, nor shall there be any sale of these securities in any state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or other jurisdiction.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits
| Exhibit No. | Description | |||||||
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) | |||||||
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: May 21, 2024
| By: | /s/ Michael S. Sarner | |||||||
| Name: Michael S. Sarner | ||||||||
| Title: Chief Financial Officer | ||||||||
Exhibit 5.1
[Letterhead of Eversheds Sutherland (US) LLP]
May 21, 2024
Capital Southwest Corporation
8333 Douglas Avenue, Suite 1100
Dallas, Texas 75225
Ladies and Gentlemen:
We have acted as counsel to Capital Southwest Corporation, a Texas corporation (the “Company”), in connection with the preparation and filing of the Registration Statement on Form N-2 (File No. 333-259455) filed under the Securities Act of 1933, as amended (the “Securities Act”), which Registration Statement was initially filed with the Securities and Exchange Commission (the “Commission”) on September 10, 2021 (as amended as of its most recent effective date, including the exhibits and schedules thereto, all documents incorporated or deemed to be incorporated into the Registration Statement by reference, any information contained in a prospectus supplement relating to the Shares (as defined below) subsequently filed with the Commission pursuant to Rule 424 under the Securities Act and deemed to be a part of the Registration Statement at the time of effectiveness pursuant to Rule 430B under the Securities Act, any registration statement filed pursuant to Rule 462(b) under the Securities Act, and any post-effective amendment thereto, is hereinafter referred to as the “Registration Statement”). The Registration Statement relates to the public offering of securities of the Company that may be offered by the Company from time to time as set forth in the prospectus dated October 29, 2021, which forms a part of the Registration Statement (the “Base Prospectus”), and as may be set forth from time to time in one or more supplements to the Prospectus.
This opinion letter is rendered in connection with the issuance and sale from time to time, of shares of the Company’s common stock, par value $0.25 per share (the “Shares”), having an aggregate offering price of up to $1,000,000,000, as described in the prospectus supplement, dated as of November 2, 2021, relating to the Shares (together with the Base Prospectus included therein, the “ATM Prospectus Supplement”), supplement no. 1 to the ATM Prospectus Supplement, dated February 1, 2022 (“Supplement No. 1”), supplement no. 2 to the ATM Prospectus Supplement, dated May 24, 2022 (“Supplement No. 2”), supplement no. 3 to the ATM Prospectus Supplement dated August 2, 2022 (“Supplement No. 3”), supplement no. 4 to the ATM Prospectus Supplement, dated November 1, 2022 (“Supplement No. 4”), supplement no. 5 to the ATM Prospectus Supplement, dated January 31, 2023 (“Supplement No. 5”), supplement no. 6 to the ATM Prospectus Supplement, dated May 23, 2023 (“Supplement No. 6”), supplement no. 7 to the ATM Prospectus Supplement, dated October 31, 2023 (“Supplement No. 7”), supplement no. 8 to the ATM Prospectus Supplement, dated January 30, 2024 (“Supplement No. 8”), and supplement no. 9 to the ATM Prospectus Supplement (“Supplement No. 9” and together with the ATM Prospectus Supplement, Supplement No. 1, Supplement No. 2, Supplement No. 3, Supplement No. 4, Supplement No. 5, Supplement No. 6, Supplement No. 7, and Supplement No. 8, and including, in each case, any information incorporated by reference therein (the “Prospectus”), each filed with the Commission pursuant to Rule 424 under the Securities Act, of which $471,098,990 in aggregate amount of Shares remain available for sale pursuant to the Sales Agreements (as defined herein). The Shares are to be sold by the Company pursuant to (i) the third amended and restated equity distribution agreements, each dated as of May 26, 2021 and as amended on each of August 3, 2021, November 2, 2021, August 2, 2022, and May 21, 2024, by and between the Company and each of Jefferies LLC and Raymond James & Associates, Inc. (the “Third Amended and Restated Agreements”) and (ii) the amended and restated equity distribution agreements, each dated as of May 26, 2021 and as amended on each of August 3, 2021, November 2, 2021, August 2, 2022, and May 21, 2024, by and between the Company and each of Citizens JMP Securities, LLC (f/k/a JMP Securities LLC) and B. Riley Securities, Inc. (together with the Third Amended and Restated Agreements, the “Sales Agreements”).
As counsel to the Company, we have participated in the preparation of the Registration Statement and the Prospectus and have examined the originals or copies of the following:
(i)the Articles of Incorporation of the Company, as amended, certified as of the date hereof by an officer of the Company;
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(ii)the Second Amended and Restated Bylaws of the Company, as amended, certified as of the date hereof by an officer of the Company;
(iii)a Certificate of Fact with respect to the Company issued by the Texas Secretary of State as of a recent date; and
(iv)the resolutions of the board of directors of the Company relating to, among other things, (a) the authorization and approval of the preparation and filing of the Registration Statement and the Prospectus, and (b) the authorization, issuance, offer and sale of the Shares pursuant to the Sales Agreements and the Prospectus, certified as of the date hereof by an officer of the Company.
With respect to such examination and our opinion expressed herein, we have assumed, without any independent investigation or verification, (i) the genuineness of all signatures on all documents submitted to us for examination, (ii) the legal capacity of all natural persons, (iii) the authenticity of all documents submitted to us as originals, (iv) the conformity to original documents of all documents submitted to us as conformed or reproduced copies and the authenticity of the originals of such copied documents, (v) that all certificates issued by public officials or Company officers have been properly issued and that such certificates remain accurate on the date of this letter, and (vi) the accuracy and completeness of all corporate records made available to us by the Company.
As to certain matters of fact relevant to the opinions in this opinion letter, we have relied on certificates and/or representations of officers of the Company. We also have relied on certificates and confirmations of public officials. We have not independently established the facts, or in the case of certificates or confirmations of public officials, the other statements, so relied upon.
The opinion set forth below is limited to the effect of the Texas Business Organizations Code, as in effect as of the date hereof, and we express no opinion as to the applicability or effect of any other laws of such jurisdiction or the laws of any other jurisdictions. Without limiting the preceding sentence, we express no opinion as to any state securities or broker-dealer laws or regulations thereunder relating to the offer, issuance and sale of the Shares. This opinion letter has been prepared, and should be interpreted, in accordance with customary practice followed in the preparation of opinion letters by lawyers who regularly give, and such customary practice followed by lawyers who on behalf of their clients regularly advise opinion recipients regarding, opinion letters of this kind.
On the basis of and subject to the foregoing, and in reliance thereof, and subject to the assumptions, qualifications and limitations set forth in this opinion letter, we are of the opinion that the Shares have been duly authorized and, when issued and delivered against payment thereof in accordance with the terms of the Sales Agreements, the Shares will be validly issued, fully paid and non-assessable.
The opinion expressed in this opinion letter is (i) strictly limited to the matters stated in this opinion letter, and without limiting the foregoing, no other opinions are to be inferred and (ii) only as of the date of this opinion letter, and we are under no obligation, and do not undertake, to advise the Company or any other person or entity either of any change of law or fact that occurs, or of any fact that comes to our attention, after the date of this opinion letter, even though such change or such fact may affect the legal analysis or a legal conclusion in this opinion letter.
We hereby consent to the filing of this opinion letter as an exhibit to the Company’s Current Report on Form 8-K filed with the Commission for incorporation by reference in the Registration Statement and to the reference to our firm in the “Legal Matters” section in the ATM Prospectus Supplement. We do not admit by giving this consent that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
| Very truly yours, | |||||
| /s/ Eversheds Sutherland (US) LLP | |||||
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Exhibit 10.1
Capital Southwest Corporation
FOURTH AMENDMENT TO THIRD AMENDED AND RESTATED EQUITY DISTRIBUTION AGREEMENT
FOURTH AMENDMENT TO THIRD AMENDED AND RESTATED EQUITY DISTRIBUTION AGREEMENT, dated as of May 21, 2024 (this “Fourth Amendment”), by and between Capital Southwest Corporation, a Texas corporation (the “Company”), and [ ] (the “Manager”).
W I T N E S S E T H:
WHEREAS, the Company and the Manager are parties to that certain Third Amended and Restated Equity Distribution Agreement, dated as of May 26, 2021, as amended by (i) that certain First Amendment to Third Amended and Restated Equity Distribution Agreement, dated August 3, 2021, (ii) that certain Second Amendment to Third Amended and Restated Equity Distribution Agreement, dated November 2, 2021 and (iii) that certain Third Amendment to Third Amended and Restated Equity Distribution Agreement, dated August 2, 2022 (as amended, restated, and modified to date, the “Equity Distribution Agreement”); and
WHEREAS, the Company and the Manager have agreed to amend the Equity Distribution Agreement solely to increase the Maximum Amount from $650,000,000 to $1,000,000,000 and to amend the definition of the term Settlement Date.
NOW, THEREFORE, in consideration of the premises herein contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1.Effective as of May 21, 2024, the first paragraph of Section 1 of the Equity Distribution Agreement shall be, and it hereby is, amended and restated in its entirety as follows:
“Description of Securities. The Company proposes to issue and sell through or to the Manager (or any Alternative Manager (as defined below)), as sales agent and/or principal, shares of the Company’s common stock, par value $0.25 per share (the “Common Stock”), having an aggregate offering price of up to $1,000,000,000 (such amount, as reduced on a dollar-for-dollar basis by the aggregate gross sales proceeds received by the Company from the sale of Common Stock prior to the date hereof pursuant to the Prior Agreements and those certain prior alternative equity distribution agreements listed on Schedule A hereto, the “Maximum Amount”) on the terms set forth in Section 3 of this Agreement. The shares of Common Stock to be sold through or to the Manager pursuant hereto or pursuant to a Terms Agreement (as defined below) or through or to an Alternative Manager pursuant to an Alternative Equity Distribution Agreement or Alternative Terms Agreement (each term as defined below) are referred to herein as the “Shares.””
2.Effective as of May 21, 2024, the first sentence of Section 3(a)(vi) of the Equity Distribution Agreement shall be, and it hereby is, amended and restated in its entirety as follows:
“Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second Trading Day (and on and after May 28, 2024, the first Trading Day) following the date on which such sales are made, unless another date shall be agreed upon by the Company and the Manager (provided that, if such Trading Day is not a business day, then settlement will occur on the next succeeding Trading Day that is also a business day) (each such date, a “Settlement Date”).”
Except as expressly provided hereby, the parties further agree that all of the terms and provisions of the Equity Distribution Agreement are and shall remain in full force and effect.
This Fourth Amendment may be executed in any number of counterparts, each of which shall be deemed to be an original, and all such counterparts shall together constitute one and the same instrument.
This Fourth Amendment shall be governed by and construed in accordance with the laws of the State of New York, including without limitation Section 5-1401 of the New York General Obligations Law.
Capitalized terms used herein and not defined herein shall have the same meanings as in the Equity Distribution Agreement.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the undersigned has entered into this Fourth Amendment to Third Amended and Restated Equity Distribution Agreement as of the date first written above.
CAPITAL SOUTHWEST CORPORATION
By:
Name: Michael S. Sarner
Title: Chief Financial Officer
Title: Chief Financial Officer
[Signature Page to Fourth Amendment to Third Amended and Restated EDA]
ACCEPTED as of the date first above written.
[ ]
By:
Name:
Title:
[Signature Page to Fourth Amendment to Third Amended and Restated EDA]
Exhibit 10.2
Capital Southwest Corporation
FOURTH AMENDMENT TO AMENDED AND RESTATED EQUITY DISTRIBUTION AGREEMENT
FOURTH AMENDMENT TO AMENDED AND RESTATED EQUITY DISTRIBUTION AGREEMENT, dated as of May 21, 2024 (this “Fourth Amendment”), by and between Capital Southwest Corporation, a Texas corporation (the “Company”), and [ ] (the “Manager”).
W I T N E S S E T H:
WHEREAS, the Company and the Manager are parties to that certain Amended and Restated Equity Distribution Agreement, dated as of May 26, 2021, as amended by (i) that certain First Amendment to Amended and Restated Equity Distribution Agreement, dated August 3, 2021, (ii) that certain Second Amendment to Amended and Restated Equity Distribution Agreement, dated November 2, 2021 and (iii) that certain Third Amendment to Amended and Restated Equity Distribution Agreement, dated August 2, 2022 (as amended, restated, and modified to date, the “Equity Distribution Agreement”); and
WHEREAS, the Company and the Manager have agreed to amend the Equity Distribution Agreement solely to increase the Maximum Amount from $650,000,000 to $1,000,000,000 and to amend the definition of the term Settlement Date.
NOW, THEREFORE, in consideration of the premises herein contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1.Effective as of May 21, 2024, the first paragraph of Section 1 of the Equity Distribution Agreement shall be, and it hereby is, amended and restated in its entirety as follows:
“Description of Securities. The Company proposes to issue and sell through or to the Manager (or any Alternative Manager (as defined below)), as sales agent and/or principal, shares of the Company’s common stock, par value $0.25 per share (the “Common Stock”), having an aggregate offering price of up to $1,000,000,000 (such amount, as reduced on a dollar-for-dollar basis by the aggregate gross sales proceeds received by the Company from the sale of Common Stock prior to the date hereof pursuant to the Prior Agreements and those certain prior alternative equity distribution agreements listed on Schedule A hereto, the “Maximum Amount”) on the terms set forth in Section 3 of this Agreement. The shares of Common Stock to be sold through or to the Manager pursuant hereto or pursuant to a Terms Agreement (as defined below) or through or to an Alternative Manager pursuant to an Alternative Equity Distribution Agreement or Alternative Terms Agreement (each term as defined below) are referred to herein as the “Shares.””
2. Effective as of May 21, 2024, the first sentence of Section 3(a)(vi) of the Equity Distribution Agreement shall be, and it hereby is, amended and restated in its entirety as follows:
“Settlement for sales of the Shares pursuant to this Section 3(a) will occur on the second Trading Day (and on and after May 28, 2024, the first Trading Day) following the date on which such sales are made, unless another date shall be agreed upon by the Company and the Manager (provided that, if such Trading Day is not a business day, then settlement will occur on the next succeeding Trading Day that is also a business day) (each such date, a “Settlement Date”).”
Except as expressly provided hereby, the parties further agree that all of the terms and provisions of the Equity Distribution Agreement are and shall remain in full force and effect.
This Fourth Amendment may be executed in any number of counterparts, each of which shall be deemed to be an original, and all such counterparts shall together constitute one and the same instrument.
This Fourth Amendment shall be governed by and construed in accordance with the laws of the State of New York, including without limitation Section 5-1401 of the New York General Obligations Law.
Capitalized terms used herein and not defined herein shall have the same meanings as in the Equity Distribution Agreement.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the undersigned has entered into this Fourth Amendment to Amended and Restated Equity Distribution Agreement as of the date first written above.
CAPITAL SOUTHWEST CORPORATION
By:
Name: Michael S. Sarner
Title: Chief Financial Officer
Title: Chief Financial Officer
[Signature Page to Fourth Amendment to Amended and Restated EDA]
ACCEPTED as of the date first above written.
[ ]
By:
Name:
Title:
[Signature Page to Fourth Amendment to Amended and Restated EDA]