What changed in this filing

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Item 9A. Controls and Procedures

2021-12-20 compared with 2020-12-11 · 139 added, 114 removed, 29 unchanged (90% of the section changed)

Controls and Procedures

(a) Evaluation of Disclosure Controls and Procedures

Our management, with the participation of our Chief Executive Officer and our Chief Financial Officer, evaluated the effectiveness of our disclosure controls and procedures as of September 30, 2020.

The term “disclosure controls and procedures” is defined under Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934 (the “Exchange Act”), as amended.

Based on the evaluation of our disclosure controls and procedures as of September 30, 2020, our Chief Executive Officer and Chief Financial Officer concluded that, as of such date, our disclosure controls and procedures were effective.

(b) Management’s Report on Internal Control Over Financial Reporting

Our management is responsible for establishing and maintaining adequate internal controls over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act).

Under the supervision of our Chief Executive Officer and Chief Financial Officer, our management conducted an evaluation of the effectiveness of our internal controls over financial reporting based on the criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO).

Based on our management’s evaluation under the framework in Internal Control—Integrated Framework , management concluded that our internal controls over financial reporting were effective as of September 30, 2020.

Because of its inherent limitations, internal controls over financial reporting may not prevent or detect misstatements.

Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

There has not been any change in our internal controls over financial reporting (as defined in Rule 13a-15 (f) under the Exchange Act) that occurred during the period covered by this report that has materially affected, or is reasonably likely to materially affect, our internal controls over financial reporting.

Evaluation of Disclosure Controls and Procedures

management, with the participation of our Chief Executive Officer and our Chief Financial Officer, evaluated the effectiveness of our

disclosure controls and procedures as of September 30, 2021.

The term “disclosure controls and procedures”

is defined under

Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934 (the “Exchange Act”), as amended.

Based on the evaluation

of our disclosure controls and procedures as of September 30, 2021, our Chief Executive Officer and Chief Financial Officer concluded

that, as of such date, our disclosure controls and procedures were effective.

Management’s Report on Internal Control Over Financial Reporting

management is responsible for establishing and maintaining adequate internal controls over financial reporting (as defined in Rules 13a-15(f)

and 15d-15(f) of the Exchange Act).

Under the supervision of our Chief Executive Officer and Chief Financial Officer, our management

conducted an evaluation of the effectiveness of our internal controls over financial reporting based on the criteria established in Internal

Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO).

our management’s evaluation under the framework in Internal Control—Integrated Framework , management concluded that

our internal controls over financial reporting were effective as of September 30, 2021.

of its inherent limitations, internal controls over financial reporting may not prevent or detect misstatements.

Also, projections of

any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions,

or that the degree of compliance with the policies or procedures may deteriorate.

Changes in Internal Controls Over Financial Reporting

November 18, 2020, the board of directors of the Company approved the adoption of an internalized management structure, effective January

In connection with the adoption of the internalized management structure, on November 19, 2020, the Company entered into a Fund

Accounting Servicing Agreement and an Administration Servicing Agreement on customary terms with U.S.

Prior to the internalization

of the management structure, we historically relied on MCC Advisors for our business functions, including investment origination, monitoring,

portfolio servicing, accounting and management functions.

These functions are now performed by the internal management team and U.S.

We consider the changes described above to be material changes in our internal controls over financial reporting.

than as described above, there were no changes in our internal controls over financial reporting (as defined in Rule 13a-15(f) under

the Exchange Act) that have materially affected, or are reasonably likely to materially affect, our internal controls over financial

Other Information

Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard;

Transfer of Listing

The Company's shares are currently listed on the NYSE.

On December 7, 2020, the board of directors authorized the Company to submit an application to list its shares on the NASDAQ Global Market tier of the NASDAQ Stock Market, followed by an application to delist from the NYSE.

Directors, Executive Officers and Corporate Governance

The information required by Item 10 is hereby incorporated by reference from our definitive Proxy Statement relating to our 2021 Annual Meeting of Stockholders, to be filed with the Securities and Exchange Commission within 120 days following the end of our fiscal year ended September 30, 2020.

information required by Item 10 is hereby incorporated by reference from our definitive Proxy Statement relating to our 2022 Annual Meeting

of Stockholders, to be filed with the Securities and Exchange Commission within 120 days following the end of our fiscal year ended September

Executive Compensation

The information required by Item 11 is hereby incorporated by reference from our definitive Proxy Statement relating to our 2021 Annual Meeting of Stockholders, to be filed with the Securities and Exchange Commission within 120 days following the end of our fiscal year ended September 30, 2020.

information required by Item 11 is hereby incorporated by reference from our definitive Proxy Statement relating to our 2022 Annual Meeting

of Stockholders, to be filed with the Securities and Exchange Commission within 120 days following the end of our fiscal year ended September

Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters

The information required by Item 12 is hereby incorporated by reference from our definitive Proxy Statement relating to our 2021 Annual Meeting of Stockholders, to be filed with the Securities and Exchange Commission within 120 days following the end of our fiscal year ended September 30, 2020.

information required by Item 12 is hereby incorporated by reference from our definitive Proxy Statement relating to our 2022 Annual Meeting

of Stockholders, to be filed with the Securities and Exchange Commission within 120 days following the end of our fiscal year ended September

Certain Relationships and Related Transactions, and Director Independence

The information required by Item 13 is hereby incorporated by reference from our definitive Proxy Statement relating to our 2021 Annual Meeting of Stockholders, to be filed with the Securities and Exchange Commission within 120 days following the end of our fiscal year ended September 30, 2020.

information required by Item 13 is hereby incorporated by reference from our definitive Proxy Statement relating to our 2022 Annual Meeting

of Stockholders, to be filed with the Securities and Exchange Commission within 120 days following the end of our fiscal year ended September

Principal Accountant Fees and Services

The information required by Item 14 is hereby incorporated by reference from our definitive Proxy Statement relating to our 2021 Annual Meeting of Stockholders, to be filed with the Securities and Exchange Commission within 120 days following the end of our fiscal year ended September 30, 2020.

information required by Item 14 is hereby incorporated by reference from our definitive Proxy Statement relating to our 2022 Annual Meeting

of Stockholders, to be filed with the Securities and Exchange Commission within 120 days following the end of our fiscal year ended September

Exhibits and Financial Statement Schedules

(a) The following documents are filed as part of this Annual Report:

The following financial statements are set forth in Item 8:

Report of Independent Registered Public Accounting Firm

Consolidated Statements of Assets and Liabilities as of September 30, 20 20 and 201 9

Consolidated Statements of Operations for the years ended September 30, 20 20 , 201 9 and 201 8

Consolidated Statements of Changes in Net Assets for the years ended September 30, 20 20 , 201 9 and 201 8

Consolidated Statements of Cash Flows for the years ended September 30, 20 20 , 201 9 and 201 8

Consolidated Schedules of Investments as of September 30, 20 20 and 201 9

Notes to Consolidated Financial Statements

(b) Exhibits:

3.1 Certificate of Incorporation (Incorporated by reference to Exhibit 99.A.3 to the Registrant’s Pre-effective Amendment No.

3 to the Registration Statement on Form N-2 (File No.

The following documents are filed as part of this Annual Report:

The following

financial statements are set forth in Item 8:

Report of Independent Registered Public

Accounting Firm

Consolidated Statements

of Assets and Liabilities as of September 30, 2021 and 2020

Consolidated Statements

of Operations for the years ended September 30, 2021, 2020 and 2019

Consolidated Statements

of Changes in Net Assets for the years ended September 30, 2021, 2020 and 2019

Consolidated Statements

of Cash Flows for the years ended September 30, 2021, 2020 and 2019

Consolidated Schedules

of Investments as of September 30, 2021 and 2020

Notes to Consolidated

Financial Statements

of Incorporation (Incorporated by reference to Exhibit 99.A.3 to the Registrant’s Pre-effective Amendment No.

3 to the Registration

Statement on Form N-2 (File No.

333-166491), filed on November 23, 2010).

3.2 Certificate of Amendment to the Certificate of Incorporation (Incorporated by reference to the Current Report on Form 8-K filed on July 13, 2020).

3.3 Form of Bylaws (Incorporated by reference to Exhibit 99.B.3 to the Registrant’s Pre-effective Amendment No.

3 to the Registration Statement on Form N-2 (File No.

of Amendment to the Certificate of Incorporation (Incorporated by reference to the Current Report on Form 8-K filed on July 13, 2020).

of Amendment to Certificate of Incorporation (Incorporated by reference to the Current Report on Form 8-K filed December 28, 2020).

of Bylaws (Incorporated by reference to Exhibit 99.B.3 to the Registrant’s Pre-effective Amendment No.

3 to the Registration

Statement on Form N-2 (File No.

333-166491), filed on November 23, 2010).

3.4 Amendment to Bylaws (Incorporated by reference to the Current Report on Form 8-K filed February 7, 2019).

4.1 Form of Stock Certificate (Incorporated by reference to Exhibit 99.D to the Registrant’s Pre-effective Amendment No.

3 to the Registration Statement on Form N-2 (File No.

1 to Bylaws (Incorporated by reference to the Current Report on Form 8-K filed February 7, 2019).

2 to Bylaws (Incorporated by reference to the Current Report on Form 8-K filed December 28, 2020).

3 to the Bylaws (Incorporated by reference to the Current Report on Form 8-K filed February 16, 2021.)

of Stock Certificate (Incorporated by reference to Exhibit 99.D to the Registrant’s Pre-effective Amendment No.

3 to the Registration

Statement on Form N-2 (File No.

333-166491), filed on November 23, 2010).

4.2 Indenture, dated February 7, 2012, between Medley Capital Corporation and U.S.

Bank National Association, as Trustee (Incorporated by reference to Exhibit 99.D.2 to the Registrant’s Pre-Effective Amendment No.

dated February 7, 2012, between Medley Capital Corporation and U.S.

Bank National Association, as Trustee (Incorporated by reference

to Exhibit 99.D.2 to the Registrant’s Pre-Effective Amendment No.

1 to the Registration Statement on Form N-2 (File No.

filed on February 13, 2012).

4.3 First Supplemental Indenture, dated March 21, 2012, between Medley Capital Corporation and U.S.

Bank National Association, as Trustee (Incorporated by reference to Exhibit 99.D.4 to the Registrant’s Post-Effective Amendment No.

2 to the Registration Statement on Form N-2 (File No.

Supplemental Indenture, dated March 21, 2012, between Medley Capital Corporation and U.S.

Bank National Association, as Trustee (Incorporated

by reference to Exhibit 99.D.4 to the Registrant’s Post-Effective Amendment No.

2 to the Registration Statement on Form N-2

333-179237), filed on March 21, 2012).

4.4 Second Supplemental Indenture, dated March 18, 2013, between Medley Capital Corporation and U.S.

Bank National Association, as Trustee (Incorporated by reference to Exhibit 99.D.4 to the Registrant’s Post-Effective Amendment No.

7 to the Registration Statement on Form N-2 (File No.

Supplemental Indenture, dated March 18, 2013, between Medley Capital Corporation and U.S.

Bank National Association, as Trustee (Incorporated

by reference to Exhibit 99.D.4 to the Registrant’s Post-Effective Amendment No.

7 to the Registration Statement on Form N-2

333-179237), filed on March 15, 2013).

4.5 Third Supplemental Indenture, dated December 17, 2015, between Medley Capital Corporation and U.S.

Bank National Association, as Trustee (Incorporated by reference to Exhibit 99.D.6 to the Registrant’s Post-Effective Amendment No.

11 to the Registration Statement on Form N-2 (File No.

Supplemental Indenture, dated December 17, 2015, between Medley Capital Corporation and U.S.

Bank National Association, as Trustee

(Incorporated by reference to Exhibit 99.D.6 to the Registrant’s Post-Effective Amendment No.

11 to the Registration Statement

on Form N-2 (File No.

333-187324), filed December 17, 2015).

4.6 Description of Medley Capital Corporation’s securities registered pursuant to Section 12 of the Securities Exchange Act of 1934*

10.1 Form of Amended and Restated Investment Management Agreement by and between Medley Capital Corporation and MCC Advisors LLC (Incorporated by reference to Exhibit 99.G to Registrant’s Post-Effective Amendment No.

3 to the Registration Statement on N-2 (File No.

333-187324), filed on December 10, 2013).

10.2 Amendment No.

1 to Amended and Restated Investment Management Agreement, dated June 12, 2020, by and between Medley Capital Corporation and MCC Advisors LLC (Incorporated by reference to the Current Report on Form 8-K filed on June 15, 2020).

10.3 Letter from MCC Advisors LLC re:

Waiver of Base Management Fee and Incentive Fee on Net Investment Income, dated February 8, 2016 (Incorporated by reference to Exhibit 99.K.5 to Registrant’s Pre-Effective Amendment No.

1 to the Registration Statement on Form N-2 (File No.

333-208746), filed on March 25, 2016).

10.4 Expense Support Agreement, dated June 12, 2020, between Medley Capital Corporation, Medley LLC, and MCC Advisors LLC (Incorporated by reference to the Current Report on Form 8-K filed on June 15, 2020).

10.5 Form of Custody Agreement (Incorporated by reference to Exhibit 99.J.1 to the Registrant’s Pre-effective Amendment No.

3 to the Registration Statement on Form N-2 (File No.

333-166491), filed on November 23, 2010).

10.6 Form of Administration Agreement (Incorporated by reference to Exhibit 99.K.2 to the Registrant’s Pre-effective Amendment No.

1 to the Registration Statement on Form N-2 (File No.

333-166491), filed on June 9, 2010).

10.7 Amendment No.

1 to Administration Agreement, dated June 12, 2020, by and between Medley Capital Corporation and MCC Advisors LLC (Incorporated by reference to the Current Report on Form 8-K filed on June 15, 2020).

10.8 Form of Sub-Administration Agreement (Incorporated by reference to Exhibit 99.K.4 to the Registrant’s Pre-effective Amendment No.

of PhenixFIN Corporation’s securities registered pursuant to Section 12 of the Securities Exchange Act of 1934 (Incorporated

by reference to the Registrant’s Pre-Effective Amendment No.

1 to the Registration Statement on Form N-2 (File No.

filed on October 15, 2021.

of Custody Agreement (Incorporated by reference to Exhibit 99.J.1 to the Registrant’s Pre-effective Amendment No.

Registration Statement on Form N-2 (File No.

333-166491), filed on November 23, 2010).

10.9 Trademark License Agreement (Incorporated by reference to Exhibit 99.K.3 to the Registrant’s Pre-effective Amendment No.

1 to the Registration Statement on Form N-2 (File No.

333-166491), filed on June 9, 2010).

10.10 Form of Dividend Reinvestment Plan (Incorporated by reference to Exhibit 99.E to the Registrant’s Pre-effective Amendment No.

of Dividend Reinvestment Plan (Incorporated by reference to Exhibit 99.E to the Registrant’s Pre-effective Amendment No.

to the Registration Statement on Form N-2 (File No.

333-166491), filed on November 23, 2010).

10.11 Limited Liability Company Operating Agreement of MCC Senior Loan Strategy JV I LLC, a Delaware Limited Liability Company, dated as of March 27, 2015 (Incorporated by reference to the Current Report on Form 8-K filed on March 30, 2015).

10.12 Settlement Term Sheet, dated April 15, 2019 (Incorporated by reference to the Current Report on Form 8-K, filed on April 17, 2019).

10.13 Stipulation of Settlement, dated July 29, 2019, by and among Medley Capital Corporation, Brook Taube, Seth Taube, Jeff Tonkel, Mark Lerdal, Karin Hirtler-Garvey, John E.

Term Sheet, dated April 15, 2019 (Incorporated by reference to the Current Report on Form 8-K, filed on April 17, 2019).

of Settlement, dated July 29, 2019, by and among Medley Capital Corporation, Brook Taube, Seth Taube, Jeff Tonkel, Mark Lerdal, Karin

Hirtler-Garvey, John E.

Mack, Arthur S.

Ainsberg, Medley Management Inc., MCC Advisors LLC, Medley LLC and Medley Group LLC, on the one hand, and FrontFour Capital Group LLC and FrontFour Master Fund, Ltd., on behalf of themselves and a class of similarly situated stockholders of Medley Capital Corporation, on the other hand, in connection with the action styled In re Medley Capital Corporation Stockholder Litigation, Cons.

Ainsberg, Medley Management Inc., MCC Advisors LLC, Medley LLC and Medley Group LLC, on the

one hand, and FrontFour Capital Group LLC and FrontFour Master Fund, Ltd., on behalf of themselves and a class of similarly situated

stockholders of Medley Capital Corporation, on the other hand, in connection with the action styled In re Medley Capital Corporation

Stockholder Litigation, Cons.

2019-0100-KSJM (Incorporated by reference to the Current Report on Form 8-K, filed on August

10.14 Governance Agreement, dated July 29, 2019, by and among, Medley Capital Corporation, on the one hand, and FrontFour Capital Group LLC, FrontFour Master Fund, Ltd., FrontFour Capital Corp., FrontFour Opportunity Fund, David A.

Agreement, dated July 29, 2019, by and among, Medley Capital Corporation, on the one hand, and FrontFour Capital Group LLC, FrontFour

Master Fund, Ltd., FrontFour Capital Corp., FrontFour Opportunity Fund, David A.

Lorber, Stephen E.

Loukas and Zachary R.

George, on the other hand (Incorporated by reference to the Current Report on Form 8-K, filed on August 2, 2019).

10.15 Standstill Agreement, dated as of August 19, 2020, by and between the Medley Capital Corporation and Howard Amster and the other persons and entities identified therein (Incorporated by reference the Current Report on Form 8-K filed on August 21, 2020).

10.16 Fund Accounting Servicing Agreement, dated November 19, 2020, by and between Medley Capital Corporation and U.S.

Bancorp Fund Services, LLC*

10.17 Administration Servicing Agreement, dated November 19, 2020, by and between Medley Capital Corporation and U.S.

Bancorp Fund Services, LLC*

14.1 Code of Business Conduct and Ethics of the Registrant (Incorporated by reference to Exhibit 14.1 to the Registrant’s 10-Q for the period ended June 30, 2011, filed on August 4, 2011).

14.2 Code of Business Ethics of MCC Advisors (Incorporated by reference to Exhibit 99.R.2 to the Registrant’s Pre-effective Amendment No.

1 to the Registration Statement on Form N-2 (File No.

333-166491), filed on June 9, 2010).

21.1 List of Subsidiaries*

24.0 Power of attorney (included on the signature page hereto).

31.1 Certification of Chief Executive Officer pursuant to Rule 13a-14 of the Securities Exchange Act of 1934, as amended.*

31.2 Certification of Chief Financial Officer pursuant to Rule 13a-14 of the Securities Exchange Act of 1934, as amended.*

32.1 Certification of Chief Executive Officer and Chief Financial Officer pursuant to section 906 of The Sarbanes-Oxley Act of 2002.*

* Filed herewith.

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this Annual Report on Form 10-K to be signed on its behalf by the undersigned, thereunto duly authorized.

December 11, 2020 Medley Capital Corporation

By /s/ Brook Taube

Chief Executive Officer

(Principal Executive Officer)

By /s/ Richard T.

on the other hand (Incorporated by reference to the Current Report on Form 8-K, filed on August 2, 2019).

Agreement, dated as of August 19, 2020, by and between the Medley Capital Corporation and Howard Amster and the other persons and

entities identified therein (Incorporated by reference to the Current Report on Form 8-K filed on August 21, 2020).

Accounting Servicing Agreement, dated November 19, 2020, by and between Medley Capital Corporation and U.S.

Bancorp Fund Services,

LLC (Incorporated by reference to Exhibit 10.16 to the Annual Report on Form 10-K filed on December 11, 2020).

Administration

Servicing Agreement, dated November 19, 2020, by and between Medley Capital Corporation and U.S.

Bancorp Fund Services, LLC (Incorporated

by reference to Exhibit 10.17 to the Annual Report on Form 10-K filed on December 11, 2020).

of Ethics & Insider Trading Policy of the Registrant (Incorporated by reference to Exhibit 99.R to the Registrant’s Registration

Statement on Form N-2 (File No.

333-258913), filed on August 19, 2021.

of Subsidiaries *

Certification

of Chief Executive Officer pursuant to Rule 13a-14 of the Securities Exchange Act of 1934, as amended.*

Certification

of Chief Financial Officer pursuant to Rule 13a-14 of the Securities Exchange Act of 1934, as amended.*

Certification

of Chief Executive Officer and Chief Financial Officer pursuant to section 906 of The Sarbanes-Oxley Act of 2002.*

to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this Annual Report

on Form 10-K to be signed on its behalf by the undersigned, thereunto duly authorized.

Chief Executive

(Principal Executive

Ellida McMillan

Chief Financial

(Principal Accounting

and Financial Officer)

accordance with the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant

and in the following capacities on December 20, 2021.

Chief Executive Officer and Chairman

Board of Directors (Principal Executive Officer)

Chief Financial Officer

Ellida McMillan

(Principal Accounting and Financial Officer)

In accordance with the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the following capacities on December 11, 2020.

/s/ Brook Taube Chief Executive Officer and Chairman of the

Brook Taube Board of Directors (Principal Executive Officer)

/s/ Richard T.

Chief Financial Officer

(Principal Financial and Accounting Officer)

/s/ Seth Taube Director

/s/ Arthur S.

Ainsberg Director

/s/ Karin Hirtler-Garvey Director

Hirtler-Garvey

Karin Hirtler-Garvey

/s/ David Lorber Director

/s/ Lowell Robinson Director

Lowell Robinson

/s/ Howard Amster Director

Howard Amster

Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.

What changed 10-K

Item 9A. Controls and Procedures