As filed with the Securities and Exchange Commission on December 21, 1999
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
AMERICAN CAPITAL STRATEGIES, LTD.
-----------------------------------------------------
(Exact Name of registrant as specified in its charter)
Delaware 52-1451377
------------------------------ ------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2 Bethesda Metro Center, 14th Floor
Bethesda, Maryland 20814
------------------------------------------------------------
(Address, including zip code, of principal executive offices)
American Capital Strategies, Ltd. 1997 Disinterested Director Stock Option Plan
------------------------------------------------------------------------------
(Full title of the plan)
John Erickson
Chief Financial Officer
American Capital Strategies, Ltd.
2 Betheda Metro Center, 14th Floor
Bethesda, Maryland 20814
(301) 951-6122
-----------------------------------------------------------------
(Name, address, including zip code, and telephone number including
area code, of agent for service)
Copy to:
Samuel A. Flax, Esq.
Arnold & Porter
555 12th Street, N.W.
Washington, D.C. 20004
(202) 942-5730
---------------------
Calculation of Registration Fee
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
Title of securities to be Amount to be Proposed maximum Proposed maximum Amount of registration
registered registered offering price per aggregate offering fee
unit(1)(2) price(2)
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------
Common Stock 150,000 $21.50 $3,225,000 $838.50
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Calculated on the basis of the closing price of the Registrant's Common
Stock as reported on December 16, 1999 on the Nasdaq National Market which
date is within 5 business days prior to the date of the filing of this
Registration Statement.
(2) Estimated solely for the purpose of determining the registration fee in
accordance with Rule 457(h).
===============================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by American Capital Strategies, Ltd.
("Registrant" or "Company") with the Securities and Exchange Commission
("Commission") under the Securities Act of 1933, as amended ("Securities Act")
or the Securities Exchange Act of 1934, as amended ("Exchange Act"), are
incorporated herein by reference:
(a) The Company's latest annual report on Form 10-K/A for the
fiscal year ended December 31, 1998, filed with the Commission
on April 16, 1999.
(b) The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1999, June 30, 1999 and September 30, 1999.
(d) The description of the common stock of the Company, par value
$0.01 per share ("Common Stock"), contained in a registration
statement on Form 8-A filed with the Commission by the
Registrant on August 27, 1997.
All documents filed by the Registrant after the date of this
Registration Statement pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act, prior to the filing of the post-effective amendment that indicates
that all Common Stock offered hereby has been sold or which deregisters such
Common Stock then remaining unsold, shall be deemed to be incorporated in this
Registration Statement by reference and shall be a part hereof from the date of
filing of such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference in this Registration Statement shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference in
this Registration Statement modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or so superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
The financial statements of American Capital Strategies, Ltd. appearing
in the American Capital Strategies, Ltd. Annual Report (Form 10-K/A) for the
year ended December 31, 1998 have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon included therein and incorporated
herein by reference. Such financial statements are incorporated herein by
reference in reliance upon such report given on the authority of such firm as
experts in accounting and auditing.
II-2
<PAGE>
Arnold & Porter has delivered its legal opinion to the effect that the
issuance and sale of the Common Stock offered hereby have been duly authorized
and that, when issued in accordance with the terms of the 1997 Disinterested
Director Stock Option Plan, such Common Stock will be validly issued, fully paid
and nonassessable.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law ("DGCL"), permits,
under certain circumstances, the indemnification of any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit, or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving in a similar capacity for another
enterprise at the request of the corporation. To the extent that a director,
officer, employee or agent of the corporation has been successful in defending
any such proceeding, the DGCL provides that he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
With respect to a proceeding by or in the right of the corporation,
such person may be indemnified against expenses (including attorneys' fees),
actually and reasonably incurred, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation. The DGCL provides, however, that indemnification shall not be
permitted in such a proceeding if such person is adjudged liable to the
corporation unless, and only to the extent that, the court, upon application,
determines, that he is entitled to indemnification under the circumstances. With
respect to proceedings other than those brought by or in the right of the
corporation, notwithstanding the outcome of such a proceeding, such person may
be indemnified against judgments, fines, and amounts paid in settlement, as well
as expenses, if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation and, with respect
to any criminal action, had no reason to believe his conduct was unlawful.
Except with respect to mandatory indemnification of expenses to successful
defendants as described in the preceding paragraph or pursuant to a court order,
the indemnification described in this paragraph may be made only upon a
determination in each specific case (i) by majority vote of the directors that
are not parties to the proceeding, even though less than a quorum, or (ii) if
there are no such directors, or if such directors so direct, by independent
legal counsel in a written opinion, or (iii) by the stockholders.
The DGCL permits a corporation to advance expenses incurred by a
proposed indemnitee in advance of final disposition of the proceeding, provided
that the indemnitee undertakes to repay such advanced expenses if it is
ultimately determined that he is not entitled to indemnification. Also, a
corporation may purchase insurance on behalf of an indemnitee against any
liability asserted against him in his designated capacity, whether or not the
corporation itself would be empowered to indemnify him against such liability.
II-3
<PAGE>
The Company has adopted provisions in its Second Amended and Restated
Certificate of Incorporation and its Second Amended and Restated Bylaws that
provide for indemnification of its officers and directors to the maximum extent
permitted under the DGCL.
As authorized by the DGCL, the Company's Second Amended and Restated
Certificate of Incorporation limits the liability of directors of the
Corporation for monetary damages. The effect of this provision is to eliminate
the rights of the Company and its stockholders (through stockholders' derivative
suits on behalf of the Company) to recover monetary damages against a director
for breach of the fiduciary duty of care as a director (including breaches
resulting from negligent or grossly negligent behavior) except in certain
limited situations. This provision does not limit or eliminate the rights of the
Company or any stockholder to seek non-monetary relief such as an injunction or
rescission in the event of a breach of a director's duty of care. This provision
will not alter the liability of directors under federal securities laws.
The Company has purchased an insurance policy which purports to insure
the officers and directors of the Corporation against certain liabilities
incurred by them in the discharge of their functions as such officers and
directors, except for liabilities resulting from their own malfeasance.
The foregoing descriptions are general summaries only. Reference is
made to the full text of the Company's Second Amended and Restated Certificate
of Incorporation and its Second Amended and Restated Bylaws, both filed with the
Commission on August 12, 1997 as part of Pre-Effective Amendment Number 1 to the
Registration Statement on Form N-2 (File No. 333-29943), which are incorporated
herein by reference.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
The exhibits listed on the Exhibit Index on page II-9 of this
Registration Statement are filed herewith or are incorporated herein by
reference to other filings.
Item 9. Undertakings
The Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
II-4
<PAGE>
(i) To include any prospectus required by Section 10(a)
(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement.
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement.
Provided, however, that paragraphs (i) and (ii) do not apply if the
registration statement is on Form S-3, Form S-8 or From F-3, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement;
2. That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof;
3. To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering;
4. That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Company's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such new
securities at that time shall be deemed to be the initial bona fide
offering thereof.
II-5
<PAGE>
5. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of
expenses incurred or paid by a director, officer or controlling person
of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
II-6
<PAGE>
SIGNATURES
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 Bethesda, state of Maryland, on December 16, 1999.
AMERICAN CAPITAL STRATEGIES, LTD.
By: /s/ John R. Erickson
------------------------------
John R. Erickson
Vice President, Chief
Financial Officer and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
Director December 16, 1999
- ---------------------------
Robert L. Allbriton
* President, Chief Operating December 16, 1999
- --------------------------- Officer and Director
Adam Blumenthal
/s/ John R. Erickson Vice President, Chief December 16, 1999
- --------------------------- Financial Officer and
John R. Erickson Secretary (Principal
Accounting and Financial
Officer)
* Director and Vice Chairman December 16, 1999
- ---------------------------
David Gladstone
* Director December 16, 1999
- ---------------------------
Neil M. Hahl
* Director December 16, 1999
- ---------------------------
Philip R. Harper
Director December 16, 1999
- ---------------------------
Stan Lundine
II-7
<PAGE>
* Director December 16, 1999
- ---------------------------
Alvin N. Puryear
* Director December 16, 1999
- ---------------------------
Stephen P. Walko
/s/ Malon Wilkus Director, Chairman and Chief December 16, 1999
- --------------------------- Executive Officer (Principal
Malon Wilkus Executive Officer)
* By: /s/ John R. Erickson December 16, 1999
--------------------------
(Attorney-in-fact)
</TABLE>
II-8
<PAGE>
EXHIBIT INDEX
Exhibit Description
- ------- -----------
Exhibit 3.1 American Capital Strategies, Ltd. Second Amended and
Restated Certificate of Incorporation. Incorporated herein
by reference to Exhibit 2.a of the Pre-Effective Amendment
Number 1 to the Registration Statement on Form N-2 (File
No. 333-29943) filed on August 12, 1997. Certificate of
Amendment of Second Amended and Restated Certificate of
Incorporation dated as of May 17, 1999 is filed herewith.
Exhibit 3.2 American Capital Strategies, Ltd. Second Amended and
Restated Bylaws. Incorporated herein by reference to
Exhibit 2.b of the Pre-Effective Amendment Number 1 to the
Registration Statement on Form N-2 (File No. 333-29943)
filed on August 12, 1997.
Exhibit 4 American Capital Strategies, Ltd. 1997 Stock Option Plan.
Incorporated herein by reference to Exhibit i.2 of the
Pre-Effective Amendment Number 1 to the Registration
Statement on Form N-2 (File No. 333-29943), as amended,
filed on August 12, 1997.
Exhibit 5 Opinion of Arnold & Porter filed herewith.
Exhibit 23.1 Consent of Arnold & Porter, included in the opinion filed
as Exhibit 5 hereto.
Exhibit 23.2 Consent of Ernst & Young LLP, filed herewith.
Exhibit 24 Powers of Attorney of certain directors and officers
of American Capital Strategies, Ltd., filed herewith.
II-9
Exhibit 3
CERTIFICATE OF AMENDMENT
OF
SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
AMERICAN CAPITAL STRATEGIES, LTD., a corporation organized and existing
under the General Corporation Law of the State of Delaware (the "Corporation"),
DOES HEREBY CERTIFY AS FOLLOWS:
FIRST: The Board of Director of the Corporation duly adopted resolutions in
accordance with Section 242 of the General Corporation Law of the State
of Delaware proposing, declaring advisable and recommending this
amendment (the "Certificate of Amendment") to the Second Amended and
Restated Certificate of Incorporation (the "Certificate of
Incorporation") of the Corporation. Accordingly, Section 4.1 of Article
IV of the Certificate of Incorporation is deleted in its entirety and
replace as follows:
"Section 4.1 Total Number of Shares of Capital Stock.
The total number of shares of capital stock of all classes
that the Corporation shall have authority to issue is
75,000,000 shares. The authorized stock is divided into
5,000,000 shares of preferred stock, with the par value of
$0.1 each (the "Preferred Stock"), and 70,000,000 shares of
voting common stock, with the par value of $0.01 each (the
"Common Stock")."
SECOND: That the annual meeting of the stockholders of the Corporation was duly
called and held upon notice in accordance with Section 222 of the
General Corporation Law of the State of Delaware at which meeting the
necessary number of shares was voted in favor of said amendment.
THIRD: The aforesaid amendment and duly adopted in accordance with the
applicable provisions of Section 242 of the General Corporation Law of
the State of Delaware.
FOURTH: This Certificate of Amendment to the Certificate of Incorporation is
to become effective upon filing.
<PAGE>
IN WITNESS WHEREOF, the undersigned, AMERICAN CAPITAL STRATEGIES, LTD., has
caused this Certificate of Amendment to be executed on its behalf by its
President and attested to by its Secretary as of this 17th day of May, 1999.
AMERICAN CAPITAL STRATEGIES, LTD.
By: /s/ Malon Wilkus
-----------------------------
Name: Malon Wilkus
Title: President
Attest: /s/ Adam Blumenthal
-------------------------
Adam Blumenthal
Secretary
-2-
EXHIBIT 5
[ARNOLD & PORTER LETTERHEAD]
December 16, 1999
Board of Directors
American Capital Strategies, Ltd.
2 Bethesda Metro Center, 14th Floor
Bethesda, Maryland 20814
Re: Registration Statement on Form S-8
File No. 333-
----------------------------------
Gentlemen:
We have acted as your counsel in the preparation of a Registration
Statement on Form S-8 (the "Registration Statement") relating to the Company's
1997 Disinterested Director Stock Option Plan (the "Plan") filed by you with the
Securities and Exchange Commission covering 150,000 shares (the "Shares") of
common stock, $0.01 par value per share ("Common Stock"), issuable pursuant to
the Plan.
In connection with rendering the opinions set forth in this letter, we
have examined such corporate records of the Company, including forms of the
Company's Second Amended and Restated Certificate of Incorporation (as amended),
its Second Amended and Restated Bylaws, and resolutions of the Board of
Directors, as well as made such investigation of matters of fact and law and
examined such other documents as we deem necessary for rendering the opinions
hereinafter expressed.
The opinions set forth herein are subject to the following
qualifications, which are in addition to any other qualifications contained
herein:
A. We have assumed without verification the genuineness of all
signatures on all documents, the authority of the parties (other than the
Company) executing such documents, the authenticity of all documents submitted
to us as originals, and the conformity to original documents of all documents
submitted to us as copies.
B. The opinions set forth herein are based on existing laws,
ordinances, rules, regulations, court and administrative decisions as they
presently have been interpreted and we can give no assurances that our opinions
would not be different after any change in any of the foregoing occurring after
the date hereof.
C. We have assumed without verification that, with respect to the
minutes of any meetings of the Board of Directors or any committees thereof of
the Company that we have examined, due notice of the meetings was given or duly
waived, the minutes accurately and completely reflect all actions taken at the
meetings and a quorum was present and acting throughout the meetings.
<PAGE>
D. We have assumed without verification the accuracy and completeness
of all corporate records made available to us by the Company.
E. We express no opinion as to the effect or application of any laws or
regulations other than the general corporation law of the State of Delaware and
the federal laws of the United States. As to matters governed by the laws
specified in the foregoing sentence, we have relied exclusively on the latest
standard compilations of such statutes and laws as reproduced in commonly
accepted unofficial publications available to us.
Based on the foregoing, upon the assumptions that there will be no
material changes in the documents we have examined and the matters investigated
referred to above, we are of the opinion that the Shares, when issued and
delivered in the manner and on the terms described in the Plan, will be validly
issued, fully paid and nonassessable.
This letter does not address any matters other than those expressly
addressed herein. This letter is given for your sole benefit and use. No one
else is entitled to rely hereupon. This letter speaks only as of the date
hereof. We undertake no responsibility to update or supplement it after such
date.
We hereby consent to your filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
ARNOLD & PORTER
By: /s/ Samuel A. Flax
-------------------
Samuel A. Flax
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Item 5. Interests of
Named Experts and Counsel" in the Registration Statement (Form S-8 No.
333-_____) pertaining to the 1997 Disinterested Director Stock Option Plan of
American Capital Strategies, Ltd. and to the incorporation by reference therein
of our report dated February 2, 1999, with respect to the financial statements
of American Capital Strategies, Ltd. included in its Annual Report (Form 10-K/A)
for the year ended December 31, 1998, filed with the Securities and Exchange
Commission.
December 16, 1999 /s/ ERNST & YOUNG LLP
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and
officers of American Capital Strategies, Ltd., a corporation organized under the
laws of the state of Delaware (the "Corporation"), hereby constitute and appoint
John Erickson and Samuel A. Flax, and each of them (with full power to each of
them to act alone), his true and lawful attorneys-in-fact and agents for him and
on his behalf and in his name, place and stead, in all cases with full power of
substitution and resubstitution, in any hand and all capacities, to sign,
execute and affix his or her seal to and file with the Securities and Exchange
Commission (or any other governmental or regulatory authority) a Registration
Statement on Form S-8 or any other appropriate form and all amendments or
supplements (including post-effective amendments) thereto with all exhibits and
any and all documents required to be filed with respect thereto, relating to the
registration of up to 150,000 shares of common stock, $0.01 par value per share,
and grants to each of them full power and authority to do and to perform each
and every act and thing requisite and necessary to be done in and about the
premises in order to effectuate the same as fully and to all intents and
purposes as he himself might or could do if personally present, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or any of them, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS HEREOF, each of the undersigned directors and/or officers
have hereunto set his hand and seal, as of the date specified.
DATED: December 16, 1999 AMERICAN CAPITAL STRATEGIES, LTD.
/s/ Malon Wilkus
------------------------------------
Malon Wilkus
Chairman and Chief Executive Officer
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- -----
<S> <C> <C>
/s/ Malon Wilkus Director, Chairman and December 16, 1999
- --------------------------- Chief Executive Officer
Malon Wilkus (Principal Executive Officer)
/s/ David Gladstone Director and Vice Chairman December 16, 1999
- ---------------------------
David Gladstone
/s/ Adam Blumenthal President, Chief Operating December 16, 1999
- --------------------------- Officer and Director
Adam Blumenthal
Vice President, Chief December 16, 1999
- --------------------------- Financial Officer and
John Erickson Secretary (Principal
Accounting and Financial
Officer)
Director December 16, 1999
- ---------------------------
Robert L. Allbriton
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Neil M. Hahl Director December 16, 1999
- ------------------
Neil M. Hahl
/s/ Philip R. Harper Director December 16, 1999
- ---------------------------
Philip R. Harper
Director December 16, 1999
- ---------------------------
Stan Lundine
/s/ Stephen P. Walko Director December 16, 1999
- ---------------------------
Stephen P. Walko
</TABLE>
