As filed with the Securities and Exchange Commission on April 22, 2010
SECURITIES AND EXCHANGE
COMMISSION
WASHINGTON, D.C. 20549
1933 Act File No. 333- 161421
FORM N-2
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
PRE-EFFECTIVE AMENDMENT NO.
POST-EFFECTIVE AMENDMENT NO. 1
AMERICAN
CAPITAL, LTD.
(Exact name of registrant as specified in charter)
2 BETHESDA METRO CENTER
14TH FLOOR
BETHESDA, MD 20814
(Address of principal executive offices)
Registrant’s telephone number, including area code: (301) 951-6122
SAMUEL A. FLAX, ESQ.
EXECUTIVE VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
2 BETHESDA METRO CENTER
14TH FLOOR
BETHESDA, MD 20814
(Name and address of agent for service)
COPIES TO:
RICHARD E. BALTZ, ESQ.
Arnold & Porter LLP
555 Twelfth Street, N.W.
Washington, DC 20004-1206
(202) 942-5000
APPROXIMATE
DATE OF PROPOSED PUBLIC OFFERING:
From time to time after the effective date of this registration statement.
If any securities being registered on this form will be offered on a delayed or continuous basis in reliance on Rule 415 under the Securities Act of
1933, as amended, other than securities offered in connection with a dividend reinvestment plan, check the following box.
x
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 to the Registration Statement on Form N-2 (File No. 333- 161421) of American Capital,
Ltd. (as amended, the “Registration Statement”) is being filed pursuant to Rule 462(d) under the Securities Act of 1933, as amended (the “Securities Act”), solely for the purpose of filing exhibits to the Registration
Statement. Accordingly, this Post-Effective Amendment No. 1 consists only of a facing page, this explanatory note and Part C of the Registration Statement on Form N-2 setting forth the exhibits to the Registration Statement. This
Post-Effective Amendment No. 1 does not modify any other part of the Registration Statement. Pursuant to Rule 462(d) under the Securities Act, this Post-Effective Amendment No. 1 shall become effective immediately upon filing with the
Securities and Exchange Commission. The contents of the Registration Statement are hereby incorporated by reference.
Part C—Other Information
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Item 25.
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Financial Statements and Exhibits
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1.
Consolidated Financial Statements:
Included in Parts A and B of the registration statement:
AMERICAN CAPITAL, LTD.
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
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Report of Independent Registered Public Accounting Firm
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F-2
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Consolidated Balance Sheets as of December 31, 2008 and 2007
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F-3
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Consolidated Statements of Operations for the years ended December 31, 2008, 2007 and 2006
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F-4
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Consolidated Statements of Changes in Net Assets for the years ended December 31, 2008, 2007 and 2006
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F-5
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Consolidated Statements of Cash Flows for the years ended December 31, 2008, 2007 and 2006
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F-6
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Consolidated Financial Highlights for the years ended December 31, 2008, 2007, 2006, 2005 and 2004
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F-7
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Consolidated Schedules of Investments as of December 31, 2008 and 2007
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F-8
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Notes to Consolidated Financial Statements
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F-38
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Report of Independent Registered Public Accounting Firm
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F-80
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Schedule 12-14—Investments in and Advances to Affiliates for the year ended December 31, 2008
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F-81
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Consolidated Balance Sheets as of June 30, 2009 (unaudited) and December 31, 2008
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F-91
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Consolidated Statements of Operations (unaudited) for the three and six months ended June 30, 2009 and 2008
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F-92
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Consolidated Statements of Changes in Net Assets (unaudited) for the six months ended June 30, 2009 and 2008
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F-93
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Consolidated Statements of Cash Flows (unaudited) for the six months ended June 30, 2009 and 2008
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F-94
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Consolidated Financial Highlights (unaudited) for the six months ended June 30, 2009 and 2008
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F-95
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Consolidated Schedules of Investments as of June 30, 2009 (unaudited) and December 31, 2008
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F-96
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Notes to Consolidated Financial Statements (unaudited)
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F-126
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2. Exhibits:
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* 2.a.
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American Capital, Ltd. Third Amended and Restated Certificate of Incorporation, incorporated herein by reference to Exhibit 2.a of the Registration Statement on Form N-2 (File
No. 333-161421), filed on August 19, 2009.
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* 2.b.
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American Capital, Ltd. Second Amended and Restated Bylaws, as amended, incorporated herein by reference to Exhibit 3.2 of Form 10-Q for the quarter ended June 30, 2008 (File No.
814-00149), filed on August 8, 2008.
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* 2.d.1.
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Instruments defining the rights of holders of securities: See Article IV of our Third Amended and Restated Certificate of Incorporation, incorporated herein by reference to
Exhibit 2.d.1 of the Registration Statement on Form N-2 (File No. 333-161421), filed on August 19, 2009.
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* 2.d.2.
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Instruments defining the rights of holders of securities: See Section I of our Second Amended and Restated Bylaws, as amended, incorporated herein by reference to Exhibit 3.2 of
Form 10-Q for the quarter ended June 30, 2008 (File No. 814-00149), filed on August 8, 2008.
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* 2.d.3.
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Indenture between American Capital, Ltd. and Wilmington Trust Company, as successor trustee, dated as of April 26, 2007, incorporated herein by reference to Exhibit 2.d.3. of the
Registration Statement on Form N-2 (File No. 333-142398), filed on April 26, 2007.
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* 2.d.4.
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Form of First Supplemental Indenture by and between American Capital, Ltd. and Wilmington Trust Company, as successor trustee, dated as of July , 2007, incorporated herein by
reference to Exhibit d.4 of Post-Effective Amendment No. 1 to the Registration Statement on Form N-2 (File No. 333-142398), filed on July 18, 2007.
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* 2.d.5.
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Form of 6.85% Senior Note due 2012, incorporated herein by reference to Exhibit d.5 of Post-Effective Amendment No. 1 to the Registration Statement on Form N-2 (File No.
333-142398), filed on July 18, 2007.
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* 2.d.6.
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Statement of Eligibility of Trustee on Form T-1, incorporated herein by reference to Exhibit 25 of the Registration Statement on Form N-2 (File No. 333-142398), filed April 26,
2007.
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* 2.e.
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Third Amended and Restated Dividend Reinvestment Plan, incorporated herein by reference to Post-Effective Amendment No. 1 to the Registration Statement on Form S-3 (File No.
333-123340), filed on March 30, 2007.
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* 2.h.1.
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Form of Underwriting Agreement, incorporated herein by reference to Exhibit 2.h.1 of the Registration Statement on Form N-2 (File No. 333-161421), filed on August 19,
2009.
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* 2.h.2.
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Form of Underwriting Agreement for Debt Securities, incorporated herein by reference to Exhibit 2.h.2 of the Registration Statement on Form N-2 (File No. 333-161421), filed on
August 19, 2009.
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* 2.i.1.
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Form of American Capital Strategies, Ltd. Employee Investment and Stock Ownership Plan, incorporated herein by reference to Exhibit 4 to the Registration Statement on Form S-8
(File No. 333-34352), filed on April 7, 2000.
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* 2.i.2.
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Form of American Capital Strategies, Ltd. 1997 Stock Option Plan, incorporated herein by reference to Exhibit 2.i.2 of the Pre-Effective Amendment No. 1 to the Registration
Statement on Form N-2 (File No. 333-29943), filed on August 12, 1997, as further amended by Amendment No. 1 incorporated herein by reference to Attachment II to the Definitive Proxy Statement for the 1998 Annual Meeting (File No. 814-00149), filed
on April 15, 1998.
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* 2.i.3.
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Form of American Capital Strategies, Ltd. 1997 Disinterested Director Stock Option Plan, incorporated herein by reference to Attachment I to the Definitive Proxy Statement for
1998 Annual Meeting (File No. 814-00149), filed April 15, 1998.
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* 2.i.4.
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Form of American Capital Strategies, Ltd., 2000 Employee Stock Option Plan, incorporated herein by reference to Appendix II to the Definitive Proxy Statement for the 2000 Annual
Meeting filed on April 5, 2000, as amended by Amendment No. 1 incorporated herein by reference to Exhibit II to the Definitive Proxy Statement for the 2001 Annual Meeting (File No. 814-00149), filed on April 3, 2001.
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* 2.i.5.
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Form of American Capital Strategies, Ltd., 2000 Disinterested Director Stock Option Plan, incorporated by reference to Appendix III to the Definitive Proxy Statement for the 2000
Annual Meeting (File No. 814-00149), filed on April 5, 2000.
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* 2.i.6.
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Form of American Capital Strategies, Ltd. 2002 Employee Stock Option Plan, incorporated herein by reference to Exhibit I to the Definitive Proxy Statement for the 2002 Annual
Meeting (File No. 814-00149), filed on April 12, 2002.
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* 2.i.7.
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Form of American Capital Strategies, Ltd. 2003 Employee Stock Option Plan, incorporated by reference to Exhibit I to the Definitive Proxy Statement for the 2003 Annual Meeting
(File No. 814-00149), filed on April 10, 2003.
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* 2.i.8.
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Form of American Capital Strategies, Ltd. 2004 Employee Stock Option Plan, incorporated by reference herein to exhibit to the Definitive Proxy Statement for the 2004 Annual
Meeting (File No. 814-00149), filed March 26, 2004.
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* 2.i.9.
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Form of American Capital Strategies, Ltd. 2005 Employee Stock Option Plan, incorporated by reference to Exhibit III to the Definitive Proxy Statement for the 2004 Annual Meeting
(File No. 814-00149) filed on April 26, 2005.
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* 2.i.10.
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Form of American Capital Strategies, Ltd. 2006 Employee Stock Option Plan, incorporated by reference to Exhibit I to the Definitive Proxy Statement for the 2006 Annual Meeting
(File No. 814-00149) filed on April 11, 2006.
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* 2.i.11.
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Form of Amended and Restated American Capital Performance Incentive Plan, incorporated by reference to Exhibit II to the Definitive Proxy Statement for the 2006 Annual Meeting
(File No. 814-00149) filed on April 11, 2006, as amended by Amendment No. 1 to Amended and Restated American Capital Performance Incentive Plan, filed herewith, and Amendment No. 2 to American Capital Performance Incentive Plan, incorporated
herein by reference to Exhibit 10.2 of Form 10-Q for the quarter ended June 30, 2008.
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* 2.i.12.
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Form of Acceptance and Election Agreement for Amended and Restated American Capital Incentive Bonus Plan, incorporated by reference herein to Exhibit 2.i.12 of the Pre-Effective
Amendment No. 1 to the Registration Statement on Form N-2 (File No. 333-133571), filed June 26, 2006.
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* 2.i.13.
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Form of American Capital Strategies, Ltd. 2007 Stock Option Plan, incorporated herein by reference to Exhibit I to the Definitive Proxy Statement for the 2007 Annual Meeting
(File No. 814-00149), filed March 27, 2007.
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* 2.i.14.
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American Capital, Ltd. Disinterested Director Retention Plan, incorporated herein by reference to Exhibit 10.14 of Form 10-K for the year ended December 31, 2008 (File No.
814-00149), filed March 2, 2008.
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* 2.i.15.
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Form of American Capital Strategies, Ltd. 2008 Stock Option Plan, incorporated herein by reference to Exhibit I to the Definitive Proxy Statement for the 2008 Annual Meeting
(File No. 814-00149), filed April 4, 2008.
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* 2.i.16.
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Form of American Capital, Ltd. 2009 Stock Option Plan, incorporated herein by reference to Exhibit II to the Definitive Proxy Statement for the 2009 Annual Meeting (File No.
814-00149), filed April 30, 2009.
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* 2.j.1.
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Custodian Agreement between American Capital Strategies, Ltd. and Riggs Bank, N.A., dated as of August 27, 1997, incorporated herein by reference to Exhibit 2.j.2 of the
Pre-Effective Amendment No. 2 to the Registration statement on Form N-2 (File No. 333-29943) filed August 29, 1997.
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* 2.j.2.
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Amended and Restated Custodian Agreement between American Capital Strategies, Ltd.
and Wells Fargo Bank, National Association, dated as of February 2, 2007, incorporated
herein by reference to Exhibit 2.j.2 of the Registration Statement on Form N-2 (File No. 333-142398), filed on April 26, 2007.
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* 2.k.3.
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Amended and Restated Trust Agreement by and among ACAS Business Loan LLC, 2006-1, as the Trust Depositor, M&T Trust Company of Delaware, as the Owner Trustee, Certificate
Registrar, and Paying Agent, and American Capital Strategies, Ltd., as the Servicer, dated July 28, 2006, incorporated herein by reference to Exhibit 10.2 of Form 10-Q for the quarter ended September 30, 2006 (File No. 814-00149), filed November 9,
2006.
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* 2.k.4.
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Purchase and Sale Agreement, dated October 1, 2006, between American Capital Strategies, Ltd. and American Capital Equity I, LLC, incorporated herein by reference to Exhibit 1.0
of Form 8-K, dated October 5, 2006.
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* 2.k.5.
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ACAS Transfer Agreement between American Capital Strategies, Ltd., as the Originator, and ACAS Business Loan LLC, 2006-1, as the Trust Depositor, dated July 28, 2006,
incorporated herein by reference to Exhibit 10.3 of Form 10-Q for the quarter ended September 30, 2006 (File No. 814-00149), filed November 9, 2006.
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* 2.k.6.
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Transfer and Servicing Agreement by and among ACAS Business Loan Trust 2006-1, as the Issuer, ACAS Business Loan LLC, 2006-1, as the Trust Depositor, American Capital Strategies,
Ltd., as the Originator and Servicer, and Wells Fargo Bank, National Association, as the Indenture Trustee and the Backup Servicer, dated July 28, 2006, incorporated herein by reference to Exhibit 10.4 of Form 10-Q for the quarter ended September
30, 2006 (File No. 814-00149), filed November 9, 2006.
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* 2.k.7.
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Indenture, by and between ACAS Business Loan Trust 2006-1, as the Issuer, and Wells Fargo Bank, National Association, as the Indenture Trustee, dated July 28, 2006, incorporated
herein by reference to Exhibit 4.5 of Form 10-Q filed on November 9, 2006.
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* 2.k.8.
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Credit Agreement by and among American Capital Strategies, Ltd., as Borrower, Wachovia Bank, National Association, as the Administrative Agent, Swingline Lender, and Issuing
Lender, and the Lenders listed therein, dated May 16, 2007, incorporated herein by reference to Exhibit 10.1 of Form 8-K dated May 22, 2007, as amended by the First Amendment to Credit Agreement and Waiver, dated December 7, 2007, filed herewith,
and by the Second Amendment to Credit Agreement, dated September 29, 2008, incorporated herein by reference to Exhibit 10.1 of Form 8-K dated October 3, 2008.
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* 2.k.9.
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Fourth Amended and Restated Intercreditor and Lockbox Administration Agreement among American Capital Strategies, Ltd., Wells Fargo Bank, National Association, Wachovia Capital
Markets, LLC, Branch Banking and Trust Company, and Harris Nesbitt Corp., dated as of August 10, 2004, incorporated herein by reference to Exhibit 10.7 of Form 10-Q for the quarter ended September 30, 2004 (File No. 814-00149) filed November 9,
2004.
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* 2.k.10.
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ACAS Transfer Agreement between American Capital Strategies, Ltd. and ACAS Business Loan LLC, 2004-1, dated as of December 2, 2004, incorporated herein by reference to Exhibit
10.3 of Form 8-K dated December 8, 2004.
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* 2.k.11.
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Transfer and Servicing Agreement among ACAS Business Loan Trust 2004-1, ACAS Business Loan LLC, 2004-1, Wells Fargo Bank, National Association, and American Capital Strategies,
Ltd. dated as of December 2, 2004, incorporated herein by reference to Exhibit 10.2 of Form 8-K dated December 8, 2004, as amended by Amendment No. 1 to Transfer and Servicing Agreement, by and among ACAS Business Loan Trust 2004-1, ACAS Business
Loan LLC, 2004-1, American Capital Strategies, Ltd. and Wells Fargo Bank, National Association, dated as of September 22, 2005, incorporated by reference herein to Exhibit 10.18 of Form 10-Q for the quarter ended September 30, 2005 (File No.
814-00149), filed November 29, 2005.
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* 2.k.12.
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Indenture, between Wells Fargo Bank, National Association, as Indenture Trustee and ACAS Business Loan Trust 2004-1, as the Issuer, dated as of December 2, 2004, incorporated
herein by reference to Exhibit 4.1 of Form 8-K dated December 8, 2004.
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* 2.k.13.
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Amended And Restated Trust Agreement, by and among ACAS Business Loan LLC, 2005-1, Wachovia Bank of Delaware, National Association, and American Capital Strategies, Ltd., dated
as of October 4, 2005, incorporated herein by reference to Exhibit 10.23 of Form 10-Q for the quarter ended September 30, 2005 (File No. 814-00149), filed November 9, 2005.
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* 2.k.14.
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ACAS Transfer Agreement, between American Capital Strategies, Ltd. and ACAS Business Loan LLC, 2005-1, dated as of October 4, 2005, incorporated herein by reference to Exhibit
10.27 of Form 10-Q for the quarter ended September 30, 2005 (File No. 814-00149), filed November 9, 2005.
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* 2.k.15.
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Transfer And Servicing Agreement, by and among ACAS Business Loan Trust 2005-1, ACAS Business Loan LLC, 2005-1, American Capital Strategies, Ltd. and Wells Fargo Bank, National
Association, dated as of October 4, 2005, incorporated herein by reference to Exhibit 10.28 of Form 10-Q for the quarter ended September 30, 2005 (File No. 814-00149), filed November 9, 2005.
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* 2.k.16.
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Purchase Agreement, by and among American Capital Strategies, Ltd., ACAS Business Loan LLC, 2005-1, ACAS Business Loan Trust 2005-1, Wachovia Capital Markets, LLC, Citigroup
Global Markets Inc., Banc of America Securities LLC, BB&T Capital Markets, a division of Scott & Stringfellow, Inc., Harris Nesbitt Corp., and HVB Capital Markets, Inc., dated September 29, 2005, incorporated herein by reference to
Exhibit 10.29 of Form 10-Q for the quarter ended September 30, 2005 (File No. 814-00149), filed November 9, 2005.
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* 2.k.17.
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Class A-2A Note Purchase Agreement by and among ACAS Business Loan Trust 2005-1, Wells Fargo Bank, National Association, Centauri Corporation and Wachovia Bank, National
Association, dated October 4, 2005, incorporated herein by reference to Exhibit 10.30 of Form 10-Q for the quarter ended September 30, 2005 (File No. 814-00149), filed November 9, 2005.
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* 2.k.18.
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Class A-2A Note Purchase Agreement by and among ACAS Business Loan Trust 2005-1, Wells Fargo Bank, National Association, Five Finance Corporation and Wachovia Bank, National
Association, dated October 4, 2005, incorporated herein by reference to Exhibit 10.31 of Form 10-Q for the quarter ended September 30, 2005 (File No. 814-00149), filed November 9, 2005.
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* 2.k.19.
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Class A-2A Note Purchase Agreement by and among ACAS Business Loan Trust 2005-1, Wells Fargo Bank, National Association, Dorado Corporation and Wachovia Bank, National
Association, dated October 4, 2005, incorporated herein by reference to Exhibit 10.32 of Form 10-Q for the quarter ended September 30, 2005 (File No. 814-00149), filed November 9, 2005.
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* 2.k.20.
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Indenture, by and between ACAS Business Loan Trust 2005-1, as the Issuer, and Wells Fargo Bank, National Association, as the Indenture Trustee, dated as of October 4, 2005,
incorporated herein by reference to Exhibit 4.8 of Form 10-Q for the quarter ended June 30, 2005 (File No. 814-00149), filed November 9, 2005.
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* 2.k.21.
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Purchase Agreement, by and among American Capital Strategies, Ltd., ACAS Business Loan LLC, 2004-1, ACAS Business Loan Trust 2004-1, Wachovia Capital Markets, LLC, Citigroup
Global Markets Inc., J.P. Morgan Securities Inc., Harris Nesbitt Corp. and BB&T Capital Markets, a division of Scott & Stringfellow, dated as of November 22, 2004, incorporated herein by reference to Exhibit 10.1 of Form 8-K dated December
8, 2004.
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* 2.k.22.
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Amended and Restated Employment Agreement between American Capital, Ltd. and Malon Wilkus, entered into and effective as of March 27, 2009, incorporated herein by reference to
Exhibit 10.12 of Form 10-Q for the quarter ended March 31, 2009 (File No. 814-00149), filed May 11, 2009.
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* 2.k.23.
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Amended and Restated Employment Agreement between American Capital, Ltd. and John Erickson, entered into and effective as of March 27, 2009, incorporated herein by reference to
Exhibit 10.7 of Form 10-Q for the quarter ended March 31, 2009 (File No. 814-00149), filed May 11, 2009.
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* 2.k.24.
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Amended and Restated Employment Agreement between American Capital, Ltd. and Ira Wagner, executed as of December 23, 2008, incorporated herein by reference to Exhibit 10.11 of
Form 10-Q for the quarter ended March 31, 2009 (File No. 814-00149), filed May 11, 2009.
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* 2.k.25.
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Amended and Restated Employment Agreement between American Capital, Ltd. and Roland Cline, entered into and effective as of March 27, 2009 executed, incorporated herein by
reference to Exhibit 10.6 of Form 10-Q for the quarter ended March 31, 2009 (File No. 814-00149), filed May 11, 2009.
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* 2.k.26.
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Amended and Restated Employment Agreement between American Capital, Ltd. and Gordon O’Brien, entered into and effective as of March 27, 2009, incorporated herein by
reference to Exhibit 10.10 of Form 10-Q for the quarter ended March 31, 2009 (File No. 814-00149), filed May 11, 2009.
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* 2.k.27.
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Amended and Restated Employment Agreement between American Capital, Ltd. and Darin Winn, entered into and effective as of March 27, 2009, incorporated herein by reference to
Exhibit 10.13 of Form 10-Q for the quarter ended March 31, 2009 (File No. 814-00149), filed May 11, 2009.
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* 2.k.28.
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Amended and Restated Employment Agreement between American Capital, Ltd. and Samuel A. Flax, entered into and effective as of March 27, 2009 executed, incorporated herein by
reference to Exhibit 10.8 of Form 10-Q for the quarter ended March 31, 2009 (File No. 814-00149), filed May 11, 2009.
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* 2.k.29.
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Amended and Restated Employment Agreement between American Capital, Ltd. and Brian Graff, entered into and effective as of March 27, 2009, incorporated herein by reference to
Exhibit 10.9 of Form 10-Q for the quarter ended March 31, 2009 (File No. 814-00149), filed May 11, 2009.
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* 2.k.30.
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Amended and Restated Employment Agreement between American Capital, Ltd. and Steven W. Burge, entered into and effective as of March 27, 2009, incorporated herein by reference to
Exhibit 10.5 of Form 10-Q for the quarter ended March 31, 2009 (File No. 814-00149), filed May 11, 2009.
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* 2.k.31.
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Indenture, by and between ACAS Business Loan Trust 2007-1, as the Issuer, and Wells Fargo Bank, National Association, as the Indenture Trustee, dated April 24, 2007, incorporated
herein by reference to Exhibit 4.5 of Form 10-Q for the quarter ended June 30, 2007 (File No. 814000149), filed on August 9, 2007.
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* 2.k.32.
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Amended And Restated Trust Agreement, by and among ACAS Business Loan LLC, 2007-1, Wilmington Trust Company and American Capital Strategies, Ltd., dated as of April 24, 2007,
incorporated herein by reference to Exhibit 10.23 of Form 10-Q for the quarter ended June 30, 2007 (File No. 814-00149), filed August 9, 2007.
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* 2.k.33.
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ACAS Transfer Agreement, between American Capital Strategies, Ltd. and ACAS Business Loan LLC, 2007-1, dated as of April 24, 2007, incorporated herein by reference to Exhibit
10.2 of Form 10-Q for the quarter ended June 30, 2007 (File No. 814-00149), filed August 9, 2007.
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* 2.k.34.
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Transfer And Servicing Agreement, by and among ACAS Business Loan Trust 2007-1, ACAS Business Loan LLC, 2007-1, American Capital Strategies, Ltd. and Wells Fargo Bank, National
Association, dated as of April 24, 2007, incorporated herein by reference to Exhibit 10.3 of Form 10-Q for the quarter ended June 30, 2007 (File No. 814-00149), filed August 9, 2007.
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* 2.k.35.
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Note Purchase Agreement by and among American Capital Strategies, Ltd., The Prudential Assurance Company Limited (PAC), Panther CDO III B.V. and Panther CDO I B.V., dated
February 9, 2006 incorporated herein by reference to Exhibit 10.1 of Form 8-K (File No. 814-00149), dated February 15, 2006, as amended by the First Amendment, dated as of March 30, 2009, to the Note Purchase Agreement dated as of February 9, 2006
between American Capital, Ltd. (f/k/a American Capital Strategies, Ltd.) and each of the Noteholders listed on the signature pages thereto, incorporated herein by reference to Exhibit 10.4 of Form 10-Q for the quarter ended March 31, 2009 (File No.
814-00149) filed May 11, 2009.
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* 2.k.36.
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Note Purchase Agreement by and among American Capital Strategies, Ltd., Bear, Stearns & Co. Inc. and Merrill Lynch International, dated September 26, 2005, incorporated
herein by reference to Exhibit 10.10 of Form 8-K (File No. 814-00149), dated September 28, 2005 as amended by the First Amendment, dated as of March 30, 2009, to the Note Purchase Agreement dated as of September 26, 2005 between American
Capital, Ltd. (f/k/a American Capital Strategies, Ltd.) and each of the Noteholders listed on the signature pages thereto, incorporated herein by reference to Exhibit 10.3 of Form 10-Q for the quarter ended March 31, 2009 (File No. 814-00149) filed
May 11, 2009.
|
|
|
|
|
* 2.k.37.
|
|
Note Purchase Agreement by and among American Capital Strategies, Ltd., and the purchasers listed on Exhibit A attached thereto, dated as of August 1, 2005, incorporated herein
by reference to Exhibit 10.1 of Form 10-Q for the quarter ended June 30, 2005 (File No. 814-00149), filed August 9, 2005 as amended by the First Amendment, dated as of March 30, 2009, to the Note Purchase Agreement dated as of August 1, 2005
between American Capital, Ltd. (f/k/a American Capital Strategies, Ltd.) and each of the Noteholders listed on the signature pages thereto, incorporated herein by reference to Exhibit 10.2 of Form 10-Q for the quarter ended March 31, 2009 (File No.
814-00149) filed May 11, 2009.
|
|
|
|
|
* 2.k.38.
|
|
Note Purchase Agreement by and among American Capital Strategies, Ltd., and the purchasers listed on Exhibit A attached thereto, dated September 1, 2004, incorporated herein by
reference to Exhibit 10.12 of Form 10-Q for the quarter ended September 30, 2004 (File No. 814-00149), filed November 9, 2004, as amended by the First Amendment, dated as of March 30, 2009, to the Note Purchase Agreement dated as of September 1,
2004 between American Capital, Ltd. (f/k/a American Capital Strategies, Ltd.) and each of the Noteholders listed on the signature pages thereto, incorporated herein by reference to Exhibit 10.1 of Form 10-Q for the quarter ended March 31, 2009 (File
No. 814-00149) filed May 11, 2009.
|
|
|
|
|
|
**2.k.39
|
|
Form of Subscription Agreement, dated April 19, 2010, filed herewith.
|
|
|
|
|
**2.l.1.
|
|
Opinion and consent of Arnold & Porter LLP, filed herewith.
|
|
|
|
|
* 2.n.1.
|
|
Consent of Ernst & Young LLP, incorporated herein by reference to Exhibit 2.n.1 of the Registration Statement on Form N-2 (File No. 333-161421), filed on August 19, 2009.
|
|
|
|
|
* 2.n.2.
|
|
Opinion of Ernst & Young LLP, independent registered accounting firm, regarding “Senior Securities” table contained herein, incorporated herein by reference to
Exhibit 2.n.2 of the Registration Statement on Form N-2 (File No. 333-161421), filed on August 19, 2009.
|
|
|
|
|
* 2.r.
|
|
American Capital Strategies, Ltd. Code of Ethics and Conduct, incorporated herein by reference to Exhibit 2.r of the Registration Statement on Form N-2 (File No. 333-113859),
filed March 23, 2004 and American Capital Strategies, Ltd. Personal Investments Code, incorporated herein by reference to Exhibit 2.r of Pre-Effective Amendment No. 1 to Registration Statement on Form N-2 (File No. 333-125278), filed July 29, 2005.
|
|
|
|
|
* 24.
|
|
Power of Attorney of directors and officers, incorporated herein by reference to Exhibit 24 of the Registration Statement on Form N-2 (File No. 333-161421), filed on August 19,
2009.
|
|
|
|
|
* 99.1
|
|
Computation of Earnings to Fixed Charges, incorporated herein by reference to Exhibit 12.1 of Form 10-K for the year ended December 31, 2008 (File No. 814-00149), filed March 2,
2009.
|
|
*
|
Previously filed in whole or in part.
|
|
Item 26.
|
Marketing Arrangements
|
The information contained under the heading “Plan of Distribution” on page 126 of the prospectus is incorporated herein by
reference, and any information concerning any underwriters will be contained in the accompanying prospectus supplement, if any.
|
Item 27.
|
Other Expenses of Issuance and Distribution**
|
|
|
|
|
|
|
Commission Registration Fee
|
|
$
|
0
|
|
NASDAQ additional listing fee
|
|
|
65,000
|
|
Accounting fees and expenses
|
|
|
250,000
|
|
Legal fees and expenses
|
|
|
500,000
|
|
Printing and engraving
|
|
|
750,000
|
|
Registrar and transfer agent’s fees
|
|
|
10,000
|
|
Miscellaneous fees and expenses
|
|
|
15,000
|
|
|
|
|
|
|
Total
|
|
|
1,590,000
|
|
|
|
|
|
|
**
|
Estimated for filing purposes and excludes fees previously paid.
|
|
Item 28.
|
Persons Controlled By Or Under Common Control
|
Consolidated Subsidiaries
|
|
1)
|
American Capital Financial Services, Inc., a Delaware corporation (“ACFS”); we own 100% of the stock.
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|
|
2)
|
ACAS Business Loan LLC, 2004-1, a Delaware limited liability company (the “2004-1 LLC”). We are the sole regular member.
|
|
|
3)
|
ACAS Business Loan Trust 2004-1, a Delaware statutory trust. The 2004-1 LLC is the sole owner.
|
|
|
4)
|
ACAS Business Loan LLC, 2005-1, a Delaware limited liability company (the “2005-1 LLC”). We are the sole regular member.
|
|
|
5)
|
ACAS Business Loan Trust 2005-1, a Delaware statutory trust. The 2005-1 LLC is the sole owner.
|
|
|
6)
|
ACAS Business Loan LLC, 2006-1, a Delaware limited liability company (the “2006-1 LLC”). We are the sole regular member.
|
|
|
7)
|
ACAS Business Loan Trust 2006-1, a Delaware statutory trust. The 2006-1 LLC is the sole owner.
|
|
|
8)
|
ACAS Business Loan LLC, 2007-1, a Delaware limited liability company (the “2007-1 LLC”). We are the sole regular member.
|
|
|
9)
|
ACAS Business Loan Trust 2007-1, a Delaware statutory trust. The 2007-1 LLC is the sole owner.
|
|
|
10)
|
ACAS Master Business Loan LLC, a Delaware limited liability company (the “Master LLC”). We are the sole regular member.
|
|
|
11)
|
ACAS Business Loan Trust 2007-2, a Delaware statutory trust. The Master LLC is the sole owner.
|
|
|
12)
|
American Capital-Asia, Ltd., a Delaware corporation; we own 100% of the stock.
|
|
|
13)
|
Capital Placement Holdings, Inc., a Delaware corporation; we own 100% of the stock.
|
Other Controlled Entities
We have also established certain limited purpose entities to facilitate certain portfolio transactions. In addition, we may be deemed to
control certain portfolio companies. See “Portfolio Companies” in the prospectus.
|
Item 29.
|
Number of Holders of Securities
|
The following table sets forth the number of record holders of our securities at March 31, 2010.
|
|
|
|
|
Title of Class
|
|
Number of
Record Holders
|
|
Common Stock, par value $0.01 per share
|
|
924
|
|
Preferred Stock, par value $0.01 per share
|
|
0
|
|
Debt Securities
|
|
1
|
The
Delaware General Corporation Law (Section 102) allows a corporation to eliminate the personal liability of directors of a corporation to the corporation or to any of its shareholders for monetary damage for a breach of his fiduciary duty as a
director, except in the case where the director breached his duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law,
authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. Our Third Amended and Restated Certificate of
Incorporation, as amended, contains a provision that eliminates directors’ personal liability as set forth above, except in cases of a director’s willful misfeasance, bad faith, gross negligence or reckless disregard of such
director’s duties involved in the conduct of the office of director.
The Delaware General Corporation Law (Section 145)
gives Delaware corporations broad powers to indemnify their present and former directors and officers and those of affiliated corporations against expenses incurred in the defense of any lawsuit to which they are made parties by reason of being or
having been such directors or officers, subject to specified conditions and exclusions, gives a director or officer who successfully defends an action the right to be so indemnified. Such indemnification is not exclusive of any other right to which
those indemnified may be entitled under any bylaw, agreement, vote of shareholders or otherwise. Our Third Amended and Restated Certificate of Incorporation, as amended, provides for indemnification authorized by Section 145 of the Delaware
General Corporation Law, except to the extent that a person has committed willful misfeasance, bad faith, gross negligence or reckless disregard in the conduct of such person’s duties to or for us.
See Article VII of our Third Amended and Restated Certificate of Incorporation, as amended, and Section VI of our Second Amended and
Restated Bylaws.
Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended (the
“Securities Act”) may be permitted to our directors, officers and controlling persons pursuant to the provisions described above, or otherwise, we have been advised that in the opinion of the 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 us of expenses incurred or paid by a director, officer or
controlling person in the successful defense of an action, suit or proceeding) is asserted by a director, officer or controlling person in connection with the securities being registered, we will, unless in the opinion of our counsel the matter has
been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by us is against public policy as expressed in the Securities Act and will be governed by the final adjudication of the
court of the issue.
|
Item 31.
|
Business and Other Connections of Investment Adviser
|
Not applicable.
|
Item 32.
|
Location of Accounts and Records
|
We will maintain at our principal office physical possession of each account, book or other document required to be maintained by
Section 31(a) of the 1940 Act.
|
Item 33.
|
Management Services
|
Not
Applicable.
We hereby
undertake:
(1) to suspend the offering of shares until the prospectus is amended if (i) subsequent to the
effective date of this registration statement, our net asset value declines more than ten percent from our net asset value as of the effective date of this registration statement (ii) our net asset value increases to an amount greater than its
net proceeds as stated in the prospectus;
(2) to file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by
Section 10(a) (3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of this 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; and
(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 this registration statement.
(3)
that, for the purpose of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by
us under Rule 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective;
(4) 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;
(5) that, for the purpose of determining any liabilities under the
Securities Act, each post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of the securities at that time shall be deemed to be the initial bona fide offering
thereof;
(6) to send by first class mail or other means designed to ensure equally prompt delivery, within two
business days of receipt of a written or oral request, any Statement of Additional Information; and
(7) to
file a post-effective amendment to this registration statement if, subsequent to the effective date of this registration statement, the cumulative dilution to our net asset value per share from offerings under this registration statement, as
amended, exceeds 15 percent.
Subject to the terms and conditions of Section 15(d) of the Exchange Act, we hereby
undertake to file with the Commission such supplementary and periodic information, documents and reports as may be prescribed by any rule or regulation of the Commission heretofore or hereafter duly adopted pursuant to authority conferred in that
section.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, and the Investment Company Act of 1940, as amended, the
registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bethesda and State of Maryland, on the 22nd day of April 2010.
|
|
|
|
|
AMERICAN CAPITAL, LTD.
|
|
|
|
|
By:
|
|
/s/ S
AMUEL
A.
F
LAX
|
|
|
|
Samuel A. Flax
|
|
|
|
Executive Vice President,
General Counsel, Chief Compliance Officer
and Secretary
|
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the
following persons in the capacities and on the dates indicated:
|
|
|
|
|
|
|
Name
|
|
Title
|
|
Date
|
|
|
|
|
|
*
Malon Wilkus
|
|
Chairman and Chief Executive
Officer and President
|
|
April 22, 2010
|
|
|
|
|
|
*
John R. Erickson
|
|
President, Structured Finance and
Chief Financial Officer (Principal
Financial Officer)
|
|
April 22, 2010
|
|
|
|
|
|
*
Mary C. Baskin
|
|
Director
|
|
April 22, 2010
|
|
|
|
|
|
*
Neil M. Hahl
|
|
Director
|
|
April 22, 2010
|
|
|
|
|
|
*
Philip R. Harper
|
|
Director
|
|
April 22, 2010
|
|
|
|
|
|
*
John A. Koskinen
|
|
Director
|
|
April 22, 2010
|
|
|
|
|
|
*
Stan Lundine
|
|
Director
|
|
April 22, 2010
|
|
|
|
|
|
*
Alvin N. Puryear
|
|
Director
|
|
April 22, 2010
|
|
|
|
|
|
|
|
|
*By:
|
|
/s/ S
AMUEL
A.
F
LAX
|
|
|
|
Attorney-in-fact
|
INDEX TO EXHIBITS
Exhibit List
|
|
|
|
|
|
|
|
2.k.39
|
|
Form of Subscription Agreement, dated April 19, 2010
|
|
|
|
|
2.l.1
|
|
Opinion and consent of Arnold & Porter, LLP
|
American Capital Strategies (NASDAQ:ACAS)
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American Capital Strategies (NASDAQ:ACAS)
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