Item 2.01. Completion of Acquisition or Disposition of Assets.
On June 16, 2021, FS KKR Capital Corp., a Maryland corporation (“FSK”), completed its previously announced merger with FS KKR Capital Corp. II, a Maryland corporation (“FSKR,” and together with FSK, the “Funds”), pursuant to that certain Agreement and Plan of Merger (the “Merger Agreement”), dated as of November 23, 2020, by and among FSK, FSKR, Rocky Merger Sub, Inc., a Delaware corporation and wholly-owned subsidiary of FSK (“Merger Sub”), and FS/KKR Advisor, LLC (the “Advisor”).
Pursuant to the Merger Agreement, Merger Sub was first merged with and into FSKR, with FSKR continuing as the surviving company (the “First Merger”), and, immediately following the First Merger, FSKR was then merged with and into FSK, with FSK as the surviving company (together with the First Merger, the “Merger”).
In the Merger, each share of FSKR common stock issued and outstanding immediately prior to the effective time of the First Merger was converted into 0.9498 shares of FSK common stock. The exchange ratio was determined based on the net asset value per share of FSKR common stock, divided by the net asset value per share of FSK common stock (determined, in each case, no earlier than 48 hours (excluding Sundays and holidays) prior to the closing date of the Merger). As a result of the Merger, FSK issued an aggregate of approximately 161,374,027 shares of FSK common stock to former FSKR stockholders. As part of the closing of the Merger, FSK will not be paying cash in lieu of fractional shares.
The foregoing description of the Merger and the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement, a copy of which was filed by FSKR as Exhibit 2.1 to its Current Report on Form 8-K filed on November 24, 2020 and is incorporated into this Current Report on Form 8-K by reference.
Item 3.03. Material Modification to Rights of Security Holders.
The information contained in Item 2.01 is incorporated herein by reference.
Item 5.01. Changes in Control of Registrant
As a result of the First Merger, a change in control of FSKR occurred. The information contained in Item 2.01 is incorporated herein by reference.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Pursuant to the Merger Agreement, as of the effective time of the First Merger, (i) each of the named executive officers and directors of FSKR ceased to be named executive officers and directors of FSKR and (ii) the directors and officers of Merger Sub as of immediately prior to the effective time of the First Merger became the directors and officers of FSKR.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
Pursuant to the terms of the Merger Agreement, at the effective time of the First Merger, the certificate of incorporation of FSKR was amended and restated to be substantially in the form of the certificate of incorporation of Merger Sub prior to the First Merger, and the bylaws of Merger Sub, as in effect immediately prior to the effective time of the First Merger, became the bylaws of FKSR (as the surviving corporation in the First Merger). The amended and restated certificate of incorporation and bylaws of FSKR (as the surviving corporation in the First Merger), each as in effect immediately following the effective time of the First Merger, are attached hereto as Exhibits 3.1 and 3.2, respectively, and are incorporated into this Current Report on Form 8-K by reference.
Item 7.01 Regulation FD.
On June 16, 2021, the Advisor issued a press release announcing, among other things, the closing of the Merger. The press release is furnished herewith as Exhibit 99.1.
The information in Item 7.01 and Exhibit 99.1 attached hereto shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall such information be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended (the “Securities Act”), or the Exchange Act, except as shall be expressly set forth by specific reference in such a filing.
