10b5-1/10b-18 PURCHASE PLAN AGREEMENT
EXHIBIT C
|
|
December 9, 2021
|
|
|
|
|
KKR FSK Aggregator (UNLEV) L.P.
|
|
|
0 Xxxx 00xx Xxxxxx, Xxxxx 0000
|
|
|
Xxx Xxxx, XX 00000
|
This letter agreement (this “Letter Agreement”) confirms the terms and conditions under which KKR FSK Aggregator (UNLEV) L.P., a limited partnership organized under the laws of the state of Delaware (the “Purchaser”),
hereby establishes a plan (the “Plan”) to purchase shares of common stock, par value $0.001 (the “Securities”), of FS KKR Capital Corp. (the “Issuer”), and under which X.X. Xxxxxx Securities LLC (“JPMS”) will act as its exclusive agent to execute
the Plan.
| 1. |
Appointment of JPMS. The Purchaser hereby appoints JPMS as its exclusive agent to purchase Securities pursuant to the Plan. It is
the Purchaser’s intention that such purchases benefit from the safe harbor provided by Rule 10b-18 (“Rule 10b-18”) and the affirmative defense provided by Rule 10b5-1 (“Rule 10b5-1”) each promulgated by the Securities and Exchange
Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and that the Plan and the transactions contemplated hereby comply with the requirements of paragraph (c)(1)(i)(B) of Rule 10b5-1, and the
Purchaser acknowledges that the Purchaser may be deemed to be, and will act as if it is, an “affiliated purchaser” of the Issuer, as such term is defined in, and for purposes of, Rule 10b-18, and the Issuer has also entered into a
10b5-1/10b-18 Purchase Plan Agreement with JPMS, dated as of September 1, 2021, to purchase Securities (the “Issuer Agreement”). Accordingly, the Purchaser hereby agrees that the terms of this Letter Agreement and the Plan shall be
interpreted to comply with the requirements of such paragraph (c)(1)(i)(B) and that it shall not take, nor permit any person or entity under its control to take, any action that could jeopardize the availability of Rule 10b-18 for
purchases of Securities under the Plan or result in such purchases not so complying with the requirements of such paragraph (c)(1)(i)(B). JPMS agrees that it shall execute all purchases of Securities under this Letter Agreement in
accordance with the timing, price and volume restrictions contained in subparagraphs (2), (3) and (4) of paragraph (b) of Rule 10b-18, taking into account the rules and practices of the principal exchange on which the Securities are
traded (the “Principal Market”), it being understood that, except for any willful misconduct, bad faith or gross negligence on the part of JPMS, JPMS shall not be responsible for delays between the execution and reporting of a trade in
the Securities, any reporting errors of the Principal Market or third party reporting systems or other circumstances beyond JPMS’s control.
|
| 2. |
Term.
|
| (a) |
The Purchaser has entered into a 10b5-1/10b-18 Purchase Plan Agreement with JPMS, dated as of September 1, 2021, to purchase Securities (the “September 2021 Purchaser Agreement”). JPMS is authorized to commence purchasing Securities
under this Plan on the first Trading Day after the September 2021 Purchaser Agreement terminates pursuant to its terms (the “Start Date”), and this Letter Agreement and the Plan shall terminate upon the earliest of (the period from and
including the Start Date to such termination, the “Plan Period”):
|
| (i) |
4:00 p.m. (Eastern Time) on August 31, 2022;
|
| (ii) |
the completion of all purchases contemplated by the Plan;
|
| (ii) |
subject to Section 10 below, the receipt by either party from the other of written notice of termination;
|
| (iii) |
the existence of any legal or regulatory restriction that would prohibit any purchase pursuant to the Plan;
|
| (iv) |
the public announcement (as defined in Rule 165(f) under the Securities Act of 1933, as amended) of any merger, acquisition, or similar transaction relating to the Issuer (other than any such transaction in which the Issuer is the
acquiring party and the consideration consists solely of cash and there is no valuation period);
|
| (v) |
the commencement of any voluntary or involuntary case or other proceeding seeking liquidation, reorganization or other relief with respect to the Issuer or the Purchaser under any bankruptcy, insolvency or similar law or seeking the
appointment of a trustee, receiver or other similar official with respect to the Issuer or the Purchaser, or the taking of any corporate action by the Issuer or the Purchaser to authorize or commence any of the foregoing; and
|
| (vi) |
the failure of the Purchaser to comply with Section 7 hereof.
|
| (b) |
If, as contemplated by paragraph (a)(iii) of this Section 2, at any time during the term of this Letter Agreement, any legal or regulatory restriction that is applicable to the Issuer, the Purchaser or the affiliates of the Issuer or the
Purchaser would, to the knowledge of the Purchaser, prohibit any purchase pursuant to the Plan, the Purchaser shall give JPMS notice of such restriction as soon as practicable (such notice, a “Required Termination Notice”). Such notice
shall not include any information about the nature of the restriction or its applicability to the relevant entity.
|
| (c) |
The Purchaser shall be solely responsible for any purchases made by JPMS as the Purchaser’s agent prior to the termination of the Plan. In addition, if JPMS receives notice of termination (including any Required Termination Notice) or
of any of the termination events listed above, JPMS shall nevertheless be entitled to make, and the Purchaser shall be solely responsible for, a purchase hereunder pursuant to a bid made before such notice was received by JPMS.
|
| (d) |
Section 7 of this Letter Agreement shall survive any termination hereof.
|
| 3. |
Purchases Outside Plan. The Purchaser agrees that it shall not, and shall use commercially reasonable efforts to cause the Issuer
and any other “affiliated purchaser” (as defined in Rule 10b-18) of the Issuer not to without prior notice to JPMS (i) directly or indirectly purchase, offer to purchase or place any bid or limit order for the purchase of any Securities
or any securities convertible or exchangeable into or exercisable for, or the value of which is derived from, the Securities during the Plan Period except under the Plan pursuant to this Letter Agreement or the Issuer Agreement or (ii)
enter into any similar purchase plan (other than the Issuer Agreement) or any derivative transaction, accelerated share repurchase transaction or other transaction with a purchase period, valuation period, calculation period or similar
period during which the Purchaser’s, Issuer’s or other affiliated purchaser’s, as the case may be, counterparty to such plan or transaction could reasonably be expected to purchase Securities, which period overlaps with the Plan Period.
If the Purchaser becomes aware that the Issuer or any other affiliated purchaser of the Issuer has taken any such action during the Plan Period, the Purchaser shall so notify JPMS as soon as practicable. In addition and for the avoidance
of doubt, the Purchaser represents and warrants to JPMS that FSK Investments, L.P. is not an affiliated purchaser of the Issuer and that JPMS shall be entitled to rely on that fact in all dealings hereunder and under the Issuer Agreement.
|
| 4. |
Purchasing Procedures.
|
(a) On each Trading Day during the Plan Period on which no Market Disruption Event (as defined below) occurs, JPMS shall use commercially reasonable efforts to purchase as agent for the Purchaser and for the
account of the Purchaser the lesser of (i) the maximum number of Securities that the Purchaser could purchase on such Trading Day in accordance with the volume condition set forth in Rule 10b-18 and (ii) the number of Securities that JPMS is
able, subject to market conditions and principles of best execution, to purchase as agent for the Purchaser and for the account of the Purchaser on such Trading Day using commercially reasonable means in accordance with the Plan guidelines set
forth in Annex A hereto. JPMS may purchase Securities on the Principal Market, any national securities exchange, in the over-the-counter market, on an automated trading system or otherwise. Any numbers of Securities to be purchased (and any
corresponding purchase price limits or ranges) set forth in Annex A shall be adjusted automatically on a proportionate basis to take into account any stock split, reverse stock split or stock dividend with respect to the Securities or any change
in capitalization with respect to the Issuer or any similar event that occurs during the term of this Letter Agreement, as determined by JPMS in good faith and a commercially reasonable manner.
2
A “Trading Day” is any day during the Plan Period that the Principal Market is open for business and the Securities trade regular way on the Principal Market.
“Market Disruption Event” means that (i) there occurs any material (as reasonably determined by JPMS) suspension of or limitation on trading by the Principal Market, (ii) there occurs any event
that materially (as reasonably determined by JPMS) disrupts or impairs the ability of market participants in general to effect transactions in or obtain market values for the Securities or futures or options contracts on the Securities or (iii) the
Principal Market closes prior to its scheduled closing time for such Trading Day.
(b) In the event that JPMS, in its reasonable discretion, determines that it is appropriate with regard to any legal, regulatory or self-regulatory requirements or related written internal policies and
procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by JPMS) for JPMS to refrain from purchasing Securities or to purchase fewer than the number of Securities otherwise
specified in the instructions provided by the Purchaser on any day, then JPMS may, in its sole discretion, elect that the number of Securities purchased shall be reduced for such day to an amount determined by JPMS in its discretion necessary to
comply with such requirements, policies or procedures; provided, that, JPMS shall provide written notice to the Purchaser.
(c) Any Securities purchased pursuant to the Plan shall be purchased under ordinary principles of best execution at the then-prevailing market price. Subject to the terms of the Plan as set forth herein
(including Annex A hereto), JPMS shall have full discretion with respect to the execution of all purchases, and the Purchaser acknowledges and agrees that the Purchaser does not have, and shall not attempt to exercise, any influence over how,
when or whether purchases of Securities are affected pursuant to the Plan. The Purchaser acknowledges and agrees that, in purchasing Securities pursuant to the Plan, JPMS will be an independent contractor and shall have no trust or fiduciary
obligations or responsibilities as a result of entering into this Letter Agreement and performing its services hereunder.
| 5. |
Payment for and Delivery of Purchased Securities. Payment for Securities purchased, together with any applicable fees, shall be
made by the Purchaser within one standard settlement cycle after the purchase. Purchased Securities will be held or delivered in accordance with instructions to be furnished by the Purchaser. On any day on which JPMS purchases
Securities hereunder, JPMS shall provide a daily email report confirming purchases of Securities to the Purchaser and to such other persons or agents of the Purchaser as the Purchaser shall designate. Such report shall include the
specific price and number of shares purchased at each such specific price for the Purchaser and any affiliated purchasers of the Issuer who have directed JPMS to provide such information to the Purchaser.
|
| 6. |
Compensation. For the services provided in this Letter Agreement, the Purchaser agrees to pay to JPMS a fee of $0.02 per share
for the Securities purchased pursuant to the terms of this Letter Agreement.
|
| 7. |
Representations, Warranties and Agreements. The Purchaser represents and warrants to, and agrees with, JPMS as follows:
|
(a) This Letter Agreement and the transactions contemplated herein have been duly authorized by the Purchaser and, to the Purchaser’s knowledge, have been approved, to the extent required, pursuant to or under
any and all applicable policies and procedures of the Issuer applicable to purchases of Securities by its “affiliated purchasers”; this Letter Agreement is the valid and binding agreement of the Purchaser, enforceable against the Purchaser in
accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable
principles and except as rights to indemnification as may be limited by applicable law; performance of the transactions contemplated herein will not violate any law, rule, regulation, order, judgment or decree applicable to the Purchaser or
conflict with or result in a breach of or constitute a default under any agreement or instrument to which the Purchaser is a party or by which it or any of its property is bound or its certificate of incorporation or by-laws; and no governmental,
administrative or official consent, approval, authorization, notice or filing is required for performance of the transactions contemplated herein.
3
(b) As of the date of this Letter Agreement, the Purchaser is not aware of any material nonpublic information concerning the Securities or the business, operations or prospects of the Issuer.
(c) The Purchaser is engaging JPMS and entering into this Letter Agreement and the Plan in good faith and not as part of a plan or scheme to evade compliance with the federal securities laws, including, without
limitation, Rule 10b-5 under the Exchange Act. Until this Letter Agreement is terminated, the Purchaser agrees not to enter into or alter any corresponding or hedging transaction or position with respect to the Securities.
(d) The Purchaser is not entering into this Letter Agreement to create actual or apparent trading activity in the Securities (or any security convertible into or exchangeable for the Securities) or to raise or
depress the price of the Securities (or any security convertible into or exchangeable for the Securities) for the purpose of inducing others to buy or sell Securities, and will not engage in any other securities or derivative transaction to such
ends.
(e) During the term of this Letter Agreement, neither the Purchaser nor its officers or employees shall, directly or indirectly, disclose to any person at JPMS effecting purchases under the Plan any material
nonpublic information regarding the Issuer or the Securities or any information regarding the Issuer or the Securities that could reasonably be expected to influence the execution of the Plan. Notwithstanding the foregoing, this Plan shall not
limit or restrict the Issuer’s or the Purchaser’s ability to engage in discussions of material nonpublic information, including with respect to the Issuer, its results of operations, financial condition, business or prospects, with employees of
JPMS who are not responsible for effecting purchases pursuant to the Plan. JPMS acknowledges its obligations under the U.S securities laws.
(f) The Purchaser acknowledges that JPMS is a “financial institution” and “financial participant” within the meaning of Sections 101(22) and 101(22A), respectively, of Title 11 of the United States Code (the
“Bankruptcy Code”). The parties hereto further agree and acknowledge that each transaction under this Letter Agreement is intended to be a “securities contract” as defined in Section 741(7) of the Bankruptcy Code and each payment or delivery of
cash, Securities or other property or assets hereunder is a “settlement payment” within the meaning of Section 741(8) of the Bankruptcy Code, and the parties hereto are to be entitled to the protections afforded by, among other Sections, Sections
362(b)(6), 362(b)(27), 362(o), 546(e), 546(j), 555 and 561 of the Bankruptcy Code.
(g) Prior to 8:00 a.m., New York City time on the Start Date, the Purchaser shall provide to JPMS all information, other than publicly reported trading volumes, as may be reasonably requested by JPMS that is
necessary for JPMS to calculate the maximum number of Securities that may be purchased as of the Start Date in accordance with the volume condition set forth in Rule 10b-18, and JPMS shall be entitled to rely on such information so provided.
(h) [reserved].
(i) Except as otherwise provided herein, the Purchaser shall be solely responsible for compliance with all statutes, rules and regulations applicable to the Purchaser in connection with the transactions
contemplated hereby, including, without limitation, reporting and filing requirements. The Purchaser acknowledges and agrees that it is not relying, and has not relied, upon JPMS or any affiliate of JPMS with respect to the legal, accounting, tax
or other implications of the Plan and the transactions contemplated thereby. JPMS has made no representation and has no obligation with respect to whether the Plan or the transactions contemplated thereunder qualify for the safe harbor provided
by Rule 10b-18 or the affirmative defense provided by Rule 10b5-1. JPMS acknowledges its agreement in the last sentence in Section 1 hereunder.
| 8. |
Issuer Reliance. The Issuer and Issuer’s counsel may rely on the representations set forth in this Plan as if they were made
directly to the Issuer and Issuer’s counsel.
|
4
| 9. |
Other Purchases by JPMS. Nothing herein shall preclude the purchase by JPMS of Securities for JPMS’s own account, or the
solicitation or execution of purchase or sale orders of Securities for the account of JPMS’s clients.
|
| 10. |
Amendment, Modification, Waiver or Termination. Any amendment, modification or waiver of this Letter Agreement or the Plan must
be effected in accordance with the requirements for the amendment of a “plan” as defined in paragraph (c) of Rule 10b5-1. Without limiting the generality of the foregoing, any amendment, modification, waiver or termination shall be made
in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b-5 under the Exchange Act, and no such amendment or modification shall be made at any time at which the Purchaser is aware of any material nonpublic
information concerning the Issuer or the Securities. The Purchaser acknowledges and agrees that any action taken by it that results in the termination of the Plan pursuant to Section 2 is subject to the principles set forth in this
section.
|
| 11. |
Notices. Any written communication shall be sent to the address specified below: and shall become effective upon receipt:
|
(a) if to JPMS, to it at
X.X. Xxxxxx Securities LLC
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
or at such other address as may from time to time be designated by notice to the Purchaser in writing; and
(b) if to the Purchaser, to it at
KKR FSK Aggregator (UNLEV) L.P.
0 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: General Counsel
Telephone: (000) 000-0000
or at such other address as may from time to time be designated by notice to JPMS in writing.
| 12. |
Assignment. Neither party may assign its rights and obligations under this Letter Agreement to any other party; provided that JPMS may assign its rights and obligations under this Letter Agreement to any subsidiary of X.X. Xxxxxx Chase & Co.
|
| 13. |
Governing Law. This Letter Agreement and any claim, controversy or dispute arising under or related to this Letter Agreement
shall be governed by and construed in accordance with the law of the State of New York, without giving effect to the conflict of laws rules of such State that would apply the laws of any other jurisdiction. The parties hereto irrevocably
submit to the exclusive jurisdiction of the federal and state courts located in the Borough of Manhattan, in the City of New York in any suit or proceeding arising out of or relating to this Letter Agreement or the transactions
contemplated hereby. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS LETTER AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
|
5
If the foregoing correctly sets forth our agreement, please sign the form of acceptance below.
|
X.X. XXXXXX SECURITIES LLC
|
||
|
By:
|
/s/ Xxx Xxxxxxxxx
|
|
|
Name: Xxx Xxxxxxxxx
|
||
|
Title: Executive Director
|
||
|
Agreed to and accepted as of:
|
||
|
KKR FSK AGGREGATOR (UNLEV) L.P.
|
||
|
By:
|
KKR FSK AGGREGATOR (UNLEV) GP LLC, its General Partner
|
|
|
By:
|
/s/ Xxxx Xxxxxx
|
|
|
Name: Xxxx Xxxxxx
|
||
|
Title: Vice President
|
||
