Item 1.01 Entry into a Material Definitive Agreement.
On April 25, 2023, Ares Capital Corporation (the "Company") its investment
adviser, Ares Capital Management LLC ("Ares Capital Management") and its
administrator, Ares Operations LLC ("Ares Operations") entered into separate
equity distribution agreements, with each of Truist Securities, Inc. ("Truist"),
Regions Securities LLC ("Regions") and SMBC Nikko Securities America, Inc.
("SMBC," and together with Truist and Regions, the "Sales Agents"). The equity
distribution agreements with the Sales Agents described in the preceding
sentences are collectively referred to herein as the "Equity Distribution
Agreements."
The Equity Distribution Agreements provide that the Company may from time to
time issue and sell shares of its common stock, par value $0.001 per share
("Shares"), having an aggregate offering price of up to $1,000,000,000, through
the Sales Agents, or to them as principal for their own respective accounts.
The sales of Shares, if any, may be made in negotiated transactions or
transactions that are deemed to be "at the market," as defined in
Rule 415(a)(4) under the Securities Act of 1933, as amended, including sales
made directly on The NASDAQ Global Select Market or similar securities exchange
or sales made to or through a market maker other than on an exchange, at prices
related to the prevailing market prices or at negotiated prices. The Sales
Agents will receive a commission from the Company of up to 1.5% of the gross
sales price of any Shares sold through the Sales Agents under the Equity
Distribution Agreements.
Although the Company has filed with the Securities and Exchange Commission a
prospectus supplement, dated as of April 25, 2023, pursuant to which the Company
may issue and sell Shares having an aggregate offering price of up to
$1,000,000,000 (the "Prospectus Supplement"), the Company has no obligation to
sell any Shares under the Equity Distribution Agreements, and may at any time
suspend the offering of Shares under the Equity Distribution Agreements. Actual
sales will depend on a variety of factors to be determined by the Company from
time to time, including, among others, market conditions, the trading price of
the Company's common stock and determinations by the Company of its need for and
the appropriate sources of additional capital.
The Equity Distribution Agreements contain customary representations, warranties
and agreements of the Company, conditions to closing, indemnification rights and
termination provisions.
The foregoing description is only a summary of the material provisions of the
Equity Distribution Agreements and does not purport to be complete and is
qualified in its entirety by reference to the full text of each of the Equity
Distribution Agreements, filed as Exhibit 10.1, Exhibit 10.2 and Exhibit 10.3,
respectively, to this Current Report on Form 8-K and incorporated by reference
herein.
The Shares, if any, will be issued and sold pursuant to the Prospectus
Supplement and the Registration Statement.
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 1.02 Termination of a Material Definitive Agreement.
Effective as of April 25, 2023, the Company and each of the Sales Agents
terminated the following agreements, which have been superseded by the Equity
Distribution Agreements: (i) the Equity Distribution Agreement, dated as of
May 27, 2022, by and among the Company, Ares Capital Management, Ares Operations
and Truist, (ii) the Equity Distribution Agreement, dated as of May 27, 2022, by
and among the Company, Ares Capital Management, Ares Operations and Regions and
(iii) the Equity Distribution Agreement, dated as of May 27, 2022, by and among
the Company, Ares Capital Management, Ares Operations and SMBC in accordance
with their respective terms.
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Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
5.1 Opinion of Venable LLP, dated April 25, 2023
10.1 Equity Distribution Agreement, dated as of April 25, 2023, among Ares
Capital Corporation, Ares Capital Management LLC, Ares Operations LLC
and Regions Securities LLC
10.2 Equity Distribution Agreement, dated as of April 25, 2023, among Ares
Capital Corporation, Ares Capital Management LLC, Ares Operations LLC
and Truist Securities, Inc.
10.3 Equity Distribution Agreement, dated as of April 25, 2023, among Ares
Capital Corporation, Ares Capital Management LLC, Ares Operations LLC
and SMBC Nikko Securities America, Inc.
23.1 Consent of Venable LLP (included in Exhibit 5.1)
104 Cover Page Interactive Data File (embedded within the Inline XBRL
document)
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