<PAGE> 1
As filed with the Securities and Exchange Commission on July 17, 1997
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Allied Capital Corporation
(Exact name of registrant as specified in its charter)
Maryland 53-0245085
------------------------------- ----------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1666 K Street, N.W.
Washington, D.C. 20006
---------------------------------------- ---------
(Address of principal executive offices) (Zip Code)
Allied Capital Corporation Stock Option Plan
(Full title of the plan)
William L. Walton, Chief Executive Officer
c/o Allied Capital Advisers, Inc.
1666 K Street, N.W.
Washington, D.C. 20006
(Name and address of agent for service)
(202) 331-1112
(Telephone number, including area code, of agent for service)
Calculation of Registration Fee
<TABLE>
<CAPTION>
========================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities to be Amount to Offering Price Per Aggregate Offering Amount of
Registered be Registered Unit Price Registration Fee
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common stock 530,356 $16.00 $8,485,696.00* $2,571.42
========================================================================================================================
</TABLE>
* Included solely for the purpose of calculating the registration fee. Such
estimate has been calculated in accordance with Rule 457(h) and Rule 457(c)
under the Securities Act of 1933 and is based upon the average of the high and
low price per share of Allied Capital Corporation Common Stock on the Nasdaq
National Market System on July 11, 1997.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan(s) described herein.
Pursuant to Rule 429 of the Securities Act of 1933, as amended, the prospectus
constituting Part I of this registration statement also relates to
unexercised options on 535,335 shares of the registrant's common stock
previously registered
<PAGE> 2
on Form S-8 (Commission File No.33-78394) but unsold as of the date hereof.
The filing fee previously paid in connection with such securities is $2,445.92.
This registration statement is being filed solely in order to register an
additional 530,356 shares of the registrant's common stock to be issued upon
the exercise of options granted under the Allied Capital Corporation Stock
Option Plan (the "Plan"). A registration statement on Form S-8 has previously
been filed with the Securities and Exchange Commission (Commission File No.
33-78394) in connection with shares issuable under the Plan, and the contents
of that registration statement are incorporated herein by reference thereto.
PART II
Item 8. Exhibits
See Exhibit Index.
<PAGE> 3
POWERS OF ATTORNEY
LET IT BE KNOWN that each officer or director whose signature appears
in paragraph (b) under "SIGNATURES" below appoints G. Cabell Williams, III and
Joan M. Sweeney, jointly and severally, his/her attorneys-in-fact, with power
of substitution, for him/her in all capacities, to sign amendments and
post-effective amendments to the Registration Statement of the Allied Capital
Corporation Stock Option Plan and to file such amendments with exhibits with
the Securities and Exchange Commission, hereby ratifying all that each
attorney-in-fact may do or cause to be done by virtue of this power.
SIGNATURES
(a) THE REGISTRANT. Pursuant to the requirements of the Securities
Act of 1933, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Washington, District of
Columbia, on the 26th day of June, 1997.
ALLIED CAPITAL CORPORATION
By: /s/ G. Cabell Williams III
-------------------------------------
Name: G. Cabell Williams, III
Title: Managing Director
(b) Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
/s/ William L. Walton Chairman and June 26, 1997
- -------------------------------------------- Chief Executive Officer
William L. Walton (Principal Executive Officer)
/s/ George C. Williams Director June 26, 1997
- -------------------------------------------
George C. Williams
/s/ G. Cabell Williams, III Director and June 26, 1997
- ------------------------------------------- Managing Director
G. Cabell Williams, III
/s/ Joseph A. Clorety, III Director June 26, 1997
- --------------------------------------------
Joseph A. Clorety, III
/s/ Michael I. Gallie Director June 26, 1997
- -----------------------------------------------
Michael I. Gallie
</TABLE>
- 2 -
<PAGE> 4
<TABLE>
<S> <C> <C>
/s/ Warren K. Montouri Director June 26, 1997
- ------------------------------------------
Warren K. Montouri
/s/ Guy T. Steuart, II Director June 26, 1997
- ----------------------------------------
Guy T. Steuart, II
/s/ T. Murray Toomey Director June 26, 1997
- ------------------------------------
T. Murray Toomey
/s/ Jon A. DeLuca Principal and June 26, 1997
- ---------------------------------------- Chief Financial Officer
Jon A. DeLuca (Principal Financial and
Accounting Officer)
</TABLE>
- 3 -
<PAGE> 5
SIGNATURES
THE PLAN. Pursuant to the requirements of the Securities Act of 1933, the
Compensation Committee of the Company's Board of Directors has duly caused this
Registration Statement to be signed by the undersigned on behalf of the Allied
Capital Corporation Stock Option Plan, thereunto duly authorized in the City of
Washington, District of Columbia, on the 26th day of June, 1997.
Allied Capital Corporation Stock Option Plan
By: /s/ Guy T. Steuart, II
-------------------------------------
Guy T. Steuart, II, Chairman of Allied Capital
Corporation Compensation Committee
- 4 -
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Exhibit Name
-------------- ------------
<S> <C>
4 Allied Capital Corporation Stock Option Plan,
as amended
5 Opinion of Sutherland Asbill & Brennan LLP
15 Omitted -- Not applicable
23 (a) Consent of Matthews Carter & Boyce PC
(b) Consent of Counsel -- See Exhibit 5.
24 Powers of Attorney
These documents form part of the
Signature Pages.
</TABLE>
- 5 -
<PAGE> 1
EXHIBIT 4
ALLIED CAPITAL CORPORATION
STOCK OPTION PLAN
1. PURPOSE OF THE PLAN
The purpose of this Stock Option Plan (this "Plan") is to
advance the interests of Allied Capital Corporation (the "Company") by
providing to directors of the Company and to officers of the Company who have
substantial responsibility for the direction and management of the Company with
additional incentives to exert their best efforts on behalf of the Company, to
increase their proprietary interest in the success of the Company, to reward
outstanding performance and to provide a means to attract and retain persons of
outstanding ability to the service of the Company. It is recognized that the
Company cannot attract or retain these officers and directors without this
compensation. Options granted under this Plan may qualify as "incentive stock
options," as defined in Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code").
2. ADMINISTRATION
This Plan shall be administered by a Compensation Committee
(the "Committee") comprised of at least two (2) members of the Company's Board
of Directors who each shall (a) be a "disinterested person," as defined in Rule
16b-3 promulgated under the Securities Exchange Act of 1934, as amended, (b)
have no financial interest in grants of stock options to officers of the
Company under this Plan and (c) not be an "interested person," as defined in
Section 2(a)(19) of the Investment Company Act of 1940, as amended (the "Act"),
of the Company. The Committee shall interpret this Plan and, to the extent and
in the manner contemplated herein, shall exercise the discretion reserved to it
hereunder. The Committee may prescribe, amend and rescind rules and
regulations relating to this Plan and to make all other determinations
necessary for its administration. The decision of the Committee on any
interpretation of this Plan or administration hereof, if in compliance with the
provisions of the Act and regulations promulgated thereunder, shall be final
and binding with respect to the Company, any optionee or any person claiming to
have rights as, or on behalf of, any optionee.
3. SHARES SUBJECT TO THE PLAN
The shares subject to option and the other provisions of this
Plan shall be shares of the Company's common stock, par value $1.00 per share
("shares"). Subject to the provisions hereof concerning adjustment, the total
number of shares which may be purchased upon the exercise or surrender of stock
options granted under this Plan shall not exceed 1,790,248 shares, which
includes all shares with respect to which options have been granted or
surrendered for payment in cash or other consideration pursuant to this Plan or
predecessor forms of this Plan. In the event any option shall cease to be
exercisable in whole or in part for any reason, the shares which were covered
by such option, but as to which the option had not been exercised, shall again
be available under this Plan. Shares may be made available from authorized,
unissued or reacquired stock or partly from each.
4. PARTICIPANTS
(a) Officers. The Committee shall determine and designate
from time to time those key officers of the Company who shall be eligible to
participate in this Plan. The Committee shall also determine the number of
shares to be offered from time to time to each optionee. In making these
determinations, the Committee shall take into account the past service of each
such officer to the Company, the present and potential contributions of such
officer to the success of the Company and such other factors as the Committee
shall deem relevant in connection with accomplishing the purposes of this Plan;
provided that the Committee shall determine that each grant of options to an
optionee, the number of shares offered thereby and the terms of such option are
in the best interests of the Company and its shareholders. The date on which
the Committee approves a grant of options to an officer of the Company shall be
the date of issuance of such option; provided, however, that if (1) any such
action by the Committee does not constitute approval thereof by both (A) a
majority of the Company's directors who each has no financial interest in such
action and (B) a majority of the Company's directors who each is not an
"interested person," as defined in Section 2(a)(19) of the Act, of the Company
and (2) such approval is then required by Section 61(a)(3)(B)(I)(I) of the Act,
the grant of any option by such action shall not be effective until there has
been approval of such action by a majority of the Company's directors who each
has no financial interest in such action and a majority of the Company's
directors who each is not
<PAGE> 2
an "interested person" of the Company on the basis that such action is in the
best interests of the Company and its shareholders, and the last date on which
such required approval is obtained shall be the date of issuance of such
option. The agreement documenting the award of any option granted pursuant to
this paragraph 4(a) shall contain such terms and conditions as the Committee
shall deem advisable, including but not limited to being exercisable only in
such installments as the Committee may determine.
(b) Non-Officer Directors. A one-time grant of options in
accordance with the provisions of this paragraph (b) shall be made to each
director of the Company who is not an officer of the Company or of the
Company's investment adviser (a "non-officer director"). A one-time grant of
options in accordance with the provisions of this paragraph shall be made to
each non-officer director other than any non-officer director who received a
grant pursuant to the first sentence of this paragraph (b) upon his or her
initial election as a director of the Company. Each grant pursuant to this
paragraph (b) shall award the non-officer director an option to purchase ten
thousand (10,000) shares at a price equal to the current fair market value of
the shares at the date of issuance of such option; provided, that if any
non-officer director then holds ten percent (10%) or more of the outstanding
shares, the exercise price of such option shall not be less than one hundred
ten percent (110%) of such current fair market value. The agreement
documenting the award of any option granted pursuant to this paragraph 4(b)
shall contain such terms and conditions as the Committee shall deem advisable;
provided, however, that any such option shall vest in three annual installments
(so that the recipient can first exercise the option with respect to not more
than 3,333 shares on or after the date of issuance of such option, can exercise
the option with respect to not more than an additional 3,333 shares on or after
the first anniversary of the date of issuance of such option and can exercise
such option with respect to the all of the shares covered thereby on or after
the second anniversary of the date of issuance of such option).
(c) General. Agreements evidencing options granted to
different optionees or at different times need not contain similar provisions.
5. OPTION PRICE
Shares shall be optioned from time to time at a exercise price
not less than the current fair market value, as defined in paragraph 15(d) of
this Plan, of the shares at the date of issuance of an option; provided, that
the exercise price of any option granted to a holder of 10% or more of the
Company's shares shall not be less than 110% of such current fair market value.
6. OPTION PERIOD
Each option agreement shall state the period or periods of
time within which the subject option may be exercised, in whole or in part, by
the optionee which shall be such period or periods of time as may be determined
by the Committee; provided, that the option period shall not exceed ten years
from the date of issuance of the option and shall not exceed five years if the
option is granted to a holder of 10% or more of the Company's shares.
7. PAYMENT FOR SHARES
Full payment for shares purchased shall be made at the time of
exercising the option in whole or in part. Payment of the purchase price shall
be made in cash (including check, bank draft or money order) or, if authorized
pursuant to paragraph 9 hereof, by a loan from the Company in accordance with
paragraph 9.
8. TRANSFERABILITY OF OPTIONS
Options shall not be transferable other than by will or the
laws of descent and distribution, and during an optionee's lifetime shall be
exercisable only by the optionee.
9. LOANS BY THE COMPANY
Upon the exercise of any option by an officer-optionee, the
Company, at the request of the officer-optionee, and subject to the approval of
both (a) a majority of the Company's directors who each has no financial
interest in such loan and (b) a majority of the Company's directors who each is
not an "interested person," as defined in Section 2(a)(19) of the Act, of the
Company, on the basis that such loan is in the best interests of the Company
and its stockholders (whether such approval is by the Committee or otherwise),
may lend to such officer-optionee, as of the date of exercise, an
<PAGE> 3
amount equal to the exercise price of such option; provided, that such loan (a)
shall have a term of not more than ten years, (b) shall become due within sixty
days after the recipient of the loan ceases to be an officer of the Company,
(c) shall bear interest at a rate no less than the prevailing rate applicable
to 90-day United States Treasury bills at the time the loan is made, and (d)
shall be fully collateralized at all times, which collateral may include
securities issued by the Company. Loan terms and conditions may be changed by
the Committee to comply with applicable IRS and SEC regulations.
10. TERMINATION OF OPTION
All rights to exercise options shall terminate sixty days
after any optionee ceases to be a director or an officer of the Company for any
cause other than death or total and permanent disability.
11. RIGHTS IN THE EVENT OF TERMINATION OF SERVICE
If an optionee's service as a director or officer is
terminated for any reason other than death or total and permanent disability
prior to expiration of his or her option and before such option is fully
exercised, the optionee shall have the right to exercise the option during the
balance of the 60-day period referred to in paragraph 10.
12. RIGHTS IN THE EVENT OF TOTAL AND PERMANENT DISABILITY OR DEATH
If an optionee becomes totally and permanently disabled or
dies prior to expiration of the option without having fully exercised it, he or
the executors or administrators or legatees or distributees of the estate, as
the case may be, shall, have the right, from time to time within one year after
the optionee's total and permanent disability or death and prior to the
expiration of the term of the option, to exercise the option in whole or in
part, as provided in the respective option agreement.
13. EFFECT OF CHANGE IN STOCK SUBJECT TO THE PLAN
Subject to any required action by the shareholders of the
Company and the provisions of applicable corporate law, the number of shares
represented by the unexercised portion of an option, the number of shares which
has been authorized or reserved for issuance hereunder, and the number of
shares covered by any applicable vesting schedule hereunder, as well as the
exercise price of a share represented by the unexercised portion of an option,
shall be proportionately adjusted for (a) a division, combination or
reclassification of any of the shares of common stock of the Company or (b) a
dividend payable in shares of common stock of the Company.
14. GENERAL RESTRICTION
Each option shall be subject to the requirement that, if at
any time the Board of Directors shall determine, at its discretion, that the
listing, registration or qualification of the shares subject to such option
upon any securities exchange or under any state or federal law, or the consent
or approval of any government regulatory body, is necessary or desirable as a
condition of, or in connection with, the granting of such option or the issue
or purchase of the shares thereunder, such option may not be exercised in whole
or in part unless such listing, registration, qualification, consent or
approval shall have been effected or obtained free of any conditions not
acceptable to the Company. Subject to the limitations of paragraph 6, no
option shall expire during any period when exercise of such option has been
prohibited by the Board of Directors, but shall be extended for such further
period so as to afford the optionee a reasonable opportunity to exercise his
option.
15. MISCELLANEOUS PROVISIONS
(a) No optionee shall have rights as a shareholder with
respect to shares covered by his option until the date of exercise of his
option.
(b) The granting of any option shall not impose upon the
Company any obligation to appoint or to continue to appoint as a director or
officer any optionee, and the right of the Company to terminate the employment
of any officer or other employee, or service of any director, shall not be
diminished or affected by reason of the fact that an option has been granted to
such optionee.
(c) Options shall be evidenced by stock option agreements in
such form and subject to the terms and conditions of this Plan as the Committee
shall approve from time to time, consistent with the provisions of this Plan.
Such stock
<PAGE> 4
option agreements may contain such other provisions as the Committee in its
discretion may deem advisable.
(d) For purposes of this Plan, the fair market value of the
shares shall be the closing sales price of the stock as quoted on the National
Association of Securities Dealers Automated Quotation System for the date of
issuance of such option, as provided herein. If the Company's shares are
traded on an exchange, the price shall be the closing price of the Company's
stock as reported in The Wall Street Journal for such date of issuance of an
option.
(e) Any option issued hereunder before January 1, 1987 shall
not be exercisable while there is outstanding any stock option which was
granted before the granting of such option to the same optionee to purchase
shares of the Company or of any corporation which (at the time of the granting
of such option) was a parent or subsidiary corporation of the Company, or any
predecessor of any of any such corporations.
(f) (1) The aggregate fair market value (determined as of the
date of issuance of an option) of the shares for which any optionee may be
granted options before January 1, 1987 in any calendar year (under all
incentive stock option plans of the Company and its parent and subsidiary
corporations) shall not exceed $100,000 plus any unused limit carryover to such
year, calculated in accordance with the provisions of Section 422A(c)(4) of the
Code as it existed before enactment of the Tax Reform Act of 1986, P.L. No.
99-514.
(f) (2) The aggregate fair market value (determined as of the
date of issuance of an option) of the shares with respect to which an option,
or portion thereof, intended to be an incentive stock option and granted after
December 31, 1986 are exercisable for the first time by any optionee during any
calendar year (under all incentive stock option plans of the Company and
subsidiary corporations) shall not exceed $100,000.
(g) All options issued pursuant to this Plan shall be granted
within ten years from the earlier of the date of adoption of this Plan (or any
amendment thereto requiring shareholder approval pursuant to the Code) or the
date this Plan (or any amendment thereto requiring shareholder approval
pursuant to the Code) is approved by the shareholders of the Company.
(h) No option may be issued if exercise of all warrants,
options and rights of the Company outstanding immediately after issuance of
such option would result in the issuance of voting securities in excess of 20%
of the Company's outstanding voting securities.
(i) A leave of absence granted to an employee does not
constitute an interruption in continuous employment for purposes of this Plan
as long as the leave of absence does not extend beyond one year.
(j) Any notices given in writing shall be deemed given if
delivered in person or by certified mail; if given to the Company at Allied
Capital Corporation, 1666 K Street, N.W., 9th Floor, Washington, D.C. 20006;
and, if to an optionee, in care of the optionee at his or her last known
address.
(k) This Plan and all actions taken by those acting under this
Plan shall be governed by the substantive laws of Maryland without regard to
any rules regarding conflict-of-law or choice-of-law.
(l) All costs and expenses incurred in the operation and
administration of this Plan shall be borne by the Company.
16. CHANGE OF CONTROL
In the event of a Change of Control (as hereinafter defined),
all then-outstanding options will become fully vested and exercisable as of the
Change of Control. For purposes of the Plan, "Change of Control" means the
sale of substantially all of the Company's assets or the acquisition, whether
directly, indirectly, beneficially (within the meaning of Rule 13d-3 of the
1934 Act, or of record, of securities of the Company representing twenty
percent (20%) or more in the aggregate voting power of the Company's
then-outstanding Common Stock by any "person" (within the meaning of Sections
13(d) and 14(d) of the 1934 Act), including any corporation or group of
associated persons acting in concert, other than (i) the Company or its
subsidiaries and/or (ii) any employee pension benefit plan (within the meaning
of
<PAGE> 5
Section 3(2) of the Employee Retirement Income Security Act of 1974) of the
Company or its subsidiaries, including a trust established pursuant to any such
plan.
17. AMENDMENT AND TERMINATION
The Board of Directors may modify, revise or terminate this
Plan at any time and from time to time; provided, however, that no modification
or revision of any material provision of this Plan may be made without
shareholder approval except for such modifications or revisions which are
necessary in order to ensure the options issued as incentive stock options
under this Plan comply with Section 422 or any successor provision of the Code,
applicable provisions of the Act or any exemptive order therefrom issued to the
Company in connection with this Plan, Rule 16b-3 promulgated under the
Securities Exchange Act of 1934, as amended, or other applicable law. This
Plan shall terminate when all shares reserved for issuance hereunder have been
issued upon the exercise of options, by action of the Board of Directors
pursuant to this paragraph, or on February 12, 2007, whichever shall first
occur.
18. EFFECTIVE DATE OF THE PLAN
This Plan shall become effective upon (1) adoption by the
Board of Directors and (2) approval of this Plan by the shareholders of the
Company.
<PAGE> 1
EXHIBIT 5
SUTHERLAND, ASBILL & BRENNAN, L.L.P.
1275 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
July 17, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Allied Capital Corporation Stock Option Plan:
Registration on Form S-8
Ladies and Gentlemen:
Reference is made to the Registration Statement on Form S-8
(the "Registration Statement") of Allied Capital Corporation, a Maryland
corporation (the "Company"), filed on the date hereof with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, in connection
with a proposed offering by the Company to certain of its employees, officers
and non-officer directors of an additional 530,356 shares of the Company's
common stock, $1.00 par value per share (the "Shares"), under the Allied
Capital Corporation Stock Option Plan (the "Plan").
As counsel for the Company, we have examined originals, or
copies certified or otherwise identified to our satisfaction, of such corporate
records and other documents as we have deemed relevant as a basis for our
opinion hereinafter expressed. Where factual matters material to this opinion
letter were not independently established, we have relied upon certificates
and representations of current executive officers and responsible employees
and agents of the Company and upon such other data as we deemed to be
appropriate under the circumstances.
This opinion is limited to the corporate laws of the State of
Maryland and we express no opinion with respect to the laws of any other
jurisdiction. With respect to the corporate laws of the State of Maryland, we
have examined and relied upon the General Corporation Law of the State of
Maryland.
Based upon and subject to the foregoing, it is our opinion
that the Shares have been duly and validly authorized and, when issued and paid
for pursuant to the offering and in the manner contemplated by the Registration
Statement, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement.
SUTHERLAND, ASBILL & BRENNAN LLP
By: /s/ Steven B. Boehm
------------------------------------
Steven B. Boehm
- 6 -
<PAGE> 1
EXHIBIT 23(a)
[MATTHEWS, CARTER AND BOYCE]
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent accountants, we hereby consent to the incorporation by reference
in the registration statement on Form S-8 of our report dated February 4, 1997
incorporated by reference in Allied Capital Corporation's Form 10-K for the
year ended December 31, 1996.
/s/ MATTHEWS, CARTER AND BOYCE
McLean, Virginia
July 14, 1997
