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As filed with the Securities and Exchange Commission on February 20, 1997
Registration No. 333-
-----
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Allied Capital Commercial Corporation
(Exact name of registrant as specified in its charter)
Maryland 52-1777868
- ------------------------------- ----------------------------------
(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 Commercial Corporation Incentive Stock Option Plan
(Full title of the plan)
John M. Scheurer, President
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)
<TABLE>
<CAPTION>
Calculation of Registration Fee
==================================================================================================================
Proposed Proposed
Title of Securities to Amount to Maximum Maximum Amount of
be Registered be Registered Offering Price Per Aggregate Offering Registration Fee
Unit Price
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
common stock 630,349 24.25 $15,285,963.25* $4,632.11
==================================================================================================================
</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 are based upon the average of the high and
low price per share of Allied Capital Commercial Corporation Common Stock on
the Nasdaq National Market System on February 18, 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 272,524
shares of the registrant's common stock previously registered on Form S-8
(Commission File No. 33-79422) but unsold as of the date hereof.
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This registration statement is being filed solely in order to register an
additional 630,349 shares of the registrant's common stock to be issued upon
the exercise of options granted under the Allied Capital Commericial
Corporation Incentive 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. 33-79422) 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.
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POWERS OF ATTORNEY
LET IT BE KNOWN that each officer or director whose signature appears in
paragraph (b) under "SIGNATURES" below appoints John M. Scheurer 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
Commercial Corporation Incentive 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 13th
day of February, 1997.
ALLIED CAPITAL COMMERCIAL CORPORATION
By: /s/ John M. Scheurer
-----------------------------------------
Name: John M. Scheurer
Title: President
(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 February 13, 1997
- ----------------------------------------- Chief Executive Officer
William L. Walton (Principal Executive Officer)
/s/ David Gladstone Director February 13, 1997
- -----------------------------------------
David Gladstone
/s/ George C. Williams Director February 13, 1997
- -----------------------------------------
George C. Williams
/s/ Anthony T. Garcia Director February 13, 1997
- -----------------------------------------
Anthony T. Garcia
/s/ Charles L. Palmer Director February 13, 1997
- -----------------------------------------
Charles L. Palmer
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ John D. Reilly Director February 13, 1997
- -------------------------------------
John D. Reilly
/s/ Laura W. van Roijen Director February 13, 1997
- -------------------------------------
Laura W. van Roijen
/s/ John M. Scheurer Director, President, February 13, 1997
- ------------------------------------- and Chief Operating
John M. Scheurer Officer
/s/ Jon A. DeLuca Executive Vice President February 13, 1997
- ------------------------------------- and Chief Financial
Jon A. DeLuca Officer (Principal
Financial and Accounting Officer)
</TABLE>
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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 Commercial Corporation Incentive Stock Option
Plan, thereunto duly authorized in the City of Washington, District of
Columbia, on the 13th day of February, 1997.
Allied Capital Commercial Corporation Incentive
Stock Option Plan
By: /s/ John D. Reilly
--------------------------------------------------
John D. Reilly, Chairman of Allied Capital Commercial
Corporation Compensation Committee
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<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Exhibit Name
<S> <C>
4 Allied Capital Commercial Corporation Incentive Stock
Option Plan, as amended
5 Opinion of Sutherland Asbill & Brennan
15 Omitted -- Not applicable
23 (a) Consent of Arthur Andersen LLP
(b) Consent of Matthews Carter & Boyce PC
(c) Consent of Counsel -- See Exhibit 5.
24 Powers of Attorney
These documents form part of the
Signature Pages.
</TABLE>
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Exhibit 4
ALLIED CAPITAL COMMERCIAL CORPORATION
INCENTIVE STOCK OPTION PLAN
1. PURPOSE OF THE PLAN
The purpose of this Incentive Stock Option Plan ("the Plan") is to
advance the interests of Allied Capital Commercial Corporation ("the Company")
by providing officers and directors 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 the Plan are intended to qualify as incentive stock options as defined in
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code").
2. ADMINISTRATION
(a) The Plan shall be administered by the Compensation Committee (the
"Committee") comprised of at least two (2) members of the Company's Board of
Directors who are "disinterested persons" as defined in Rule 16b-3 promulgated
under the Securities Exchange Act of 1934, as amended. The Committee shall
interpret the Plan, and to the extent and in the manner contemplated herein, it
shall exercise the discretion reserved to it hereunder. The Committee may
prescribe, amend and rescind rules and regulations relating to the Plan and to
make all other determinations necessary for its administration. The decision of
the Committee on any matter affecting the Plan or the rights and obligations
arising under the Plan or any option granted thereunder shall be final and
binding upon all persons.
(b) Notwithstanding any other provisions of this Plan, the Committee's
discretion hereunder shall not be applicable with respect to grants or awards
of options under this Plan to non-officer directors, who shall instead be
governed by the formula awards provision of paragraph 4(b) below and such other
provisions, if any, as may be necessary in order to classify the non-officer
directors as "disinterested persons" as defined in Rule 16b-3 promulgated under
the Securities Exchange Act of 1934, as amended.
3. SHARES SUBJECT TO THE PLAN
The stock subject to option and the other provisions of this Plan shall
be shares of the Company's common stock, par value $0.0001 per share
("shares"). Subject to the provisions hereof concerning adjustment, the total
number of shares that may be purchased upon the exercise or surrender of
options granted under this Plan shall not exceed 1,486,349 shares. 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 the Plan. Shares
may be made available from authorized and unissued or reacquired shares 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 the Plan. The Committee shall also determine the number of shares to be
offered from time to time to each officer. In making these determinations, the
Committee shall take into account the past service of the officer to the
Company, that officer's present and potential contributions to the success of
the Company and such other factors as the Committee shall deem
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relevant in connection with accomplishing the purposes of the Plan. Directors
of the Company who are not otherwise officers of the Company shall not be
eligible to participate in the Plan pursuant to this paragraph 4(a), but
instead are eligible pursuant to the provisions of paragraph 4(b) below. The
options 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. Shares shall be optioned from time
to time at a price equal to the current fair market value of the shares at the
time an option is granted, except with respect to options granted to any holder
of ten percent (10%) or more of the outstanding shares, in which case the price
shall not be less than one hundred ten percent (110%) of such current fair
market value. The day on which the Committee approves the granting of an
option shall be considered the date on which such option is granted.
(b) Non-Officer Directors. Grants to non-officer directors shall be
made exclusively pursuant to the following formula: each non-officer director,
upon his or her election as a director of the Company, shall receive a one-time
grant of ten thousand (10,000) shares at a price equal to the current fair
market value of the shares at the time the option is granted (except with
respect to options granted to any holder of ten percent (10%) or more of the
outstanding shares, in which case the price shall not be less that one hundred
ten percent (110%) of such current fair market value). To the extent any such
one-time grant of ten thousand (10,000) shares have a total fair market value
of more than One Hundred Thousand Dollars ($100,000), then such options shall
be exercisable in more than one (1) increment of One Hundred Thousand Dollars
($100,000), each exercisable in a different calendar year. The day on which
the non-officer directors are elected directors shall be considered the date on
which such option is granted. The provisions of this paragraph 4(b) shall not
be amended more than once every six (6) months, other than to comport with
changes in the Code, the Employee Retirement Income Security Act, or the rules
thereunder.
(c) Generally. Options granted to different optionees or at different
times need not contain similar provisions.
5. OPTION PERIOD
Each option shall state the period or periods of time within which the
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 (10) years from the date the option
is granted. The option period shall not exceed five (5) years if the options
are awarded to a holder of ten percent (10%) or more of the outstanding shares.
6. PAYMENT FOR STOCK
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 by the
Committee pursuant to paragraph 8 hereof, by a loan from the Company in
accordance with paragraph 8.
7. TRANSFERABILITY OF OPTIONS
Options shall not be transferable other than by will or the laws of
descent and distribution or pursuant to a qualified domestic relations order,
and during an optionee's lifetime shall be exercisable only by the optionee.
8. LOANS BY THE COMPANY
Upon the exercise of any option, the Company may, at the request of an
officer-optionee and subject to the approval of the Committee, lend to such
officer-optionee, as of the date of exercise, an amount equal to
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<PAGE> 3
the exercise price of such option, provided that such loan (a) has a term of
not more than ten years, (b) becomes due within sixty days after the recipient
of the loan ceases to be an officer of the Company, (c) bears interest at a
rate no less than the prevailing applicable federal rate at the time the loan
is made, and (d) is 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 regulations of the Internal
Revenue Service and Securities and Exchange Commission.
9. TERMINATION OF OPTION
All rights to exercise options shall terminate sixty (60) days after an
optionee ceases to be an officer or director of the Company for any cause other
than death, or total and permanent disability.
10. RIGHTS IN THE EVENT OF TERMINATION OF SERVICE
If an optionee's service as an officer or director is terminated for any
reason other than death or total and permanent disability prior to expiration
of his option and before he has fully exercised it, the optionee shall have the
right to exercise the option during the balance of the sixty day period
referred to in paragraph 9.
11. 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, the optionee or the
executors or administrators or legatees or distributees of the estate, as the
case may be, shall, as may be provided at the time of grant, have the right
from time to time, within one year after the optionee's total and permanent
disability or death, and only prior to the expiration of the term of the
option, to exercise the option in whole or in part.
12. EFFECT OF CHANGE IN SHARES SUBJECT TO THE PLAN
In the event there is any change in the outstanding shares through the
declaration of stock dividends, or through recapitalization resulting in stock
splits, or combinations or exchanges of shares, or otherwise, the number of
shares available for option and the shares subject to any option and the option
prices shall be appropriately adjusted by the Committee.
13. GENERAL RESTRICTION
Each option shall be subject to the requirement that, if at any time the
Committee 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 issuance 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 Committee.
Subject to the limitations of Section 5, no option shall expire during any
period when the rights reserved hereby are invoked by the Committee, but shall
be extended for such further period so as to afford the optionee a reasonable
opportunity to exercise his option.
14. 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 an officer or director any
optionee, and the right of the Company to terminate the
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<PAGE> 4
employment of any officer or other employee or discontinue the service of a
director shall not be diminished or affected by reason of the fact that an
option has been granted to him.
(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. Such stock option agreements shall 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 shares as quoted on the National Association
of Securities Dealers Automated Quotation System for the business day preceding
the date on which the option is awarded. If the shares are traded on a major
exchange, the price shall be the closing price of the shares as reported in The
Wall Street Journal for the business day preceding the date on which the option
is awarded.
(e) All options issued pursuant to the Plan shall be granted within ten
years from the date the Plan is adopted by the Board of Directors.
(f) The aggregate fair market value (determined at the time the option is
granted) of the shares with respect to which incentive stock options are
exercisable for the first time by any optionee during any calendar year (under
all incentive stock option plans of the Company, its parent and subsidiary
corporations) shall not exceed One Hundred Thousand Dollars ($100,000).
(g) 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
Commercial Corporation, 1666 K Street, N.W., Suite 901, Washington, D.C. 20006;
and, if to an optionee, in care of the optionee at his or her last known
address.
(h) This plan and all actions taken by those acting for the Plan shall be
governed by the laws of the State of Maryland.
(i) If an incentive stock option is issued and does not meet the terms of
this Plan, then it shall continue as a stock option but it will be a
non-qualified stock option.
(j) All costs and expenses incurred in the operation and administration
of the Plan shall be borne by the Company.
15. AMENDMENT AND TERMINATION
The Committee 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 the Plan may be made without shareholder approval except
for such modifications or revisions which are necessary in order to ensure the
Plan's compliance with Section 422 or any successor provision of the Code or
any other applicable law. The Plan shall terminate when the total amount of
stock with respect to which options may be granted shall have been issued, upon
the exercise of options or by action of the Committee pursuant to this
paragraph, whichever shall first occur.
16. EFFECTIVE DATE OF THE PLAN
This Plan shall become effective upon (1) adoption by the Board of
Directors, subject to (2) approval of the Plan by the shareholders of the
Company.
17. AMENDMENT HISTORY
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Date of Plan Adoption by the Board of Directors May 8, 1992
Date of Plan Amendment Adoption by the Board of Directors February 18, 1993
Date of Plan Amendment Approval by Shareholders May 26, 1993
Date of Plan Amendment Adoption by the Board of Directors February 16, 1995
Date of Plan Amendment Approval by Shareholders May 25, 1995
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Exhibit 5
SUTHERLAND, ASBILL & BRENNAN, L.L.P.
1275 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
February 20, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Allied Capital Commercial Corporation Incentive 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 Commercial 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 630,349 shares of the Company's
common stock, $.0001 par value per share (the "Shares"), under the Allied
Capital Commercial Corporation Incentive 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 or 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 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, L.L.P.
By: /s/ Steven B. Boehm
----------------------------------
Steven B. Boehm
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Exhibit 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 27, 1996
incorporated by reference in Allied Capital Commercial Corporation and its
subsidiaries Form 10-K for the years ended December 31, 1995 and 1994 and to
all references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
February 19, 1996
Washington DC
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EXHIBIT 23(b)
[MATTHEWS, CARTER AND BOYCE LETTERHEAD]
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent accountants we hereby consent to the incorporation by reference
in this registration statement on Form S-8, of our report dated March 3, 1994
incorporated by reference in Allied Capital Commercial Corporation's Form 10-K
for the year ended December 31, 1995 and to all references to our Firm included
in this registration statement.
/s/ MATTHEWS, CARTER AND BOYCE
------------------------------------------
MATTHEWS, CARTER AND BOYCE
Mclean, Virginia
February 19, 1996
