As filed with the Securities and Exchange Commission on June 1, 2017
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
Tender Offer Statement under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 1)
FS ENERGY AND POWER FUND
(Name of Subject Company (Issuer))
FS ENERGY AND POWER FUND
(Names of Filing Persons (Offeror and Issuer))
Common Shares of Beneficial Interest,
Par Value $0.001 per share
(Title of Class of Securities)
30264D 109
(CUSIP Number of Class of Securities)
Michael C. Forman
President and Chief Executive Officer
FS Energy and Power Fund
201 Rouse Boulevard
Philadelphia, PA 19112
(215) 495-1150
(Name, address and telephone number of person authorized to receive
notices and communications on behalf of filing person)
Copies to:
James A. Lebovitz, Esq.
David J. Harris, Esq.
Dechert LLP
Cira Centre
2929 Arch Street
Philadelphia, PA 19104
Tel: (215) 994-4000
Fax: (215) 994-2222
CALCULATION OF FILING FEE
TRANSACTION VALUATION |
| AMOUNT OF FILING FEE |
$78,726,239.90 |
| $9,124.37* |
* The amount of the filing fee is calculated in accordance with Rule 0-11(b) of the Securities Exchange Act of 1934, as amended, and equals $115.90 for each $1,000,000 of the transaction valuation.
x Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
Amount Previously Paid: $9,124.37
Form or Registration No.: Schedule TO
Filing Party: FS Energy and Power Fund
Date Filed: May 22, 2017
o Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the statement relates:
o Third-party tender offer subject to Rule 14d-1.
x Issuer tender offer subject to Rule 13e-4.
o Going-private transaction subject to Rule 13e-3.
o Amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the results of the tender offer: o
AMENDMENT NO. 1 TO SCHEDULE TO-I
This Amendment No. 1 (“Amendment No. 1”) amends and supplements the Tender Offer Statement on Schedule TO (the “Schedule TO”), originally filed with the U.S. Securities and Exchange Commission on May 22, 2017 by FS Energy and Power Fund, an externally managed, non-diversified, closed-end management investment company that has elected to be regulated as a business development company under the Investment Company Act of 1940, as amended, and is formed as a Delaware statutory trust (the “Company”). This Amendment No. 1 relates to the offer by the Company to purchase up to the lesser of (i) 10,224,187 of the Company’s issued and outstanding common shares of beneficial interest, par value $0.001 per share (the “Shares”) (which number represents 2.5% of the weighted average number of Shares outstanding for the calendar year ended December 31, 2016), and (ii) the greater of (x) the number of Shares that the Company can repurchase with the aggregate proceeds it has received from the sale of Shares under its distribution reinvestment plan during the twelve-month period ending on the expiration of the Offer (as defined below) (less the amount of any such proceeds used to repurchase Shares on each previous repurchase date for tender offers conducted during such period) and (y) the number of Shares that the Company can repurchase with the proceeds it receives from the sale of Shares under its distribution reinvestment plan during three-month period ending on the expiration of the Offer. The offer is made upon the terms and subject to the conditions set forth in the Offer to Purchase and the related Letter of Transmittal (which, together with any amendments or supplements hereto or thereto, collectively constitute the “Offer”).
Except as amended hereby and to the extent specifically provided herein, all the terms of the Offer and all the other disclosure set forth in the Schedule TO and the exhibits thereto remain unchanged and are hereby expressly incorporated into this Amendment No. 1 by reference. This Amendment No. 1 should be read in conjunction with the Schedule TO and all exhibits thereto. Capitalized terms used in this Amendment No. 1 and not otherwise defined herein have the meanings given to them in the Schedule TO and the Offer to Purchase, as applicable.
Item 11. Additional Information
Item 11(c) of the Schedule TO and Section 12 of the Offer to Purchase are hereby amended and supplemented by adding the following:
On June 1, 2017, the Company filed a Current Report on Form 8-K, which is hereby incorporated by reference into the Schedule TO and the Offer to Purchase.
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Dated: June 1, 2017
|
| |
| FS ENERGY AND POWER FUND | |
|
| |
| By: | /S/ STEPHEN S. SYPHERD |
|
| Name: Stephen S. Sypherd |
|
| Title: Vice President, Treasurer and Secretary |
