Securities Registration: Employee Benefit Plan (s-8)
September 13 2019 - 4:25PM
Edgar (US Regulatory)
As filed with the Securities and Exchange
Commission on September 13, 2019
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SUTTER
ROCK CAPITAL CORP.
(Exact name of registrant as specified
in its charter)
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Maryland
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27-4443543
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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One Sansome Street
Suite 730
San Francisco, CA
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94104
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(Address of Principal Executive Offices)
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(Zip code)
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Sutter Rock Capital Corp. 2019 Equity
Incentive Plan
(Full title of the plan)
Mark D. Klein
Chief Executive Officer and President
Sutter Rock Capital Corp.
One Sansome Street
Suite 730
San Francisco, CA 94104
(Name and address of agent for service)
(650) 235-4769
(Telephone number, including area code,
of agent for service)
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions
of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging
growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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¨
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Accelerated filer
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x
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Non-accelerated filer
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¨
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Smaller reporting company
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¨
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Emerging growth company
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¨
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If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards
provided pursuant to Section 13(a) of the Exchange Act. ¨
CALCULATION OF REGISTRATION FEE
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Title
of securities to be registered
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Amount to be
Registered(1)
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Proposed maximum
offering price
per share(2)
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Proposed maximum
aggregate
offering
price(2)
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Amount of
registration
fee
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Common
Stock, $0.01 par value per share
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1,976,264 shares
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$
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6.36
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$
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12,569,039.04
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$
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1,523.37
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(1)
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Pursuant to Rule 416 under the Securities Act of 1933, as amended, (the “Securities Act”), this registration statement also covers additional common stock as may be offered or issued as a result of adjustment by reason of share dividend, share split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of outstanding shares of the Registrant's common stock.
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(2)
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Estimated in accordance with Rule 457(c) and (h) solely for purposes of calculating the registration fee. The maximum price per share and the maximum aggregate offering price are based on the average of the $6.45 (high) and $6.26 (low) sale price of the Registrant’s common stock as reported on the Nasdaq Capital Market on September 10, 2019, which is within five business days prior to filing this Registration Statement.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
The documents containing the information
required in Part I of Form S-8 will be sent or given to participants in the Sutter Rock Capital Corp. 2019 Equity Incentive Plan
as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”). In accordance with
Rule 428 under the Securities Act and the requirements of Part I of Form S-8, such documents are not being filed
with the Securities and Exchange Commission (“SEC”) either as part of this registration statement on Form S-8 (this
“Registration Statement”) or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.
Sutter Rock Capital Corp. (the “Company,” “us” or “we”) will maintain a file of such documents
in accordance with the provisions of Rule 428 under the Securities Act. Upon request, the Company will furnish to the SEC
or its staff a copy or copies of all of the documents included in that file. These documents and the documents incorporated by
reference in this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute
a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by the Company with
the SEC are incorporated herein by reference and made a part hereof:
(b) the Company’s Definitive Proxy Statement, filed with the SEC on April 23, 2019 (but only with respect to information required by Part III of the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2018); and
All documents filed with the SEC by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (excluding any information furnished pursuant to Item 2.02
or Item 7.01 on any current report on Form 8-K) subsequent to the date of this Registration Statement and prior to the
filing of a post-effective amendment to this Registration Statement that indicates that all securities offered hereby have been
sold, or that deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents.
Any statement contained in this Registration
Statement or in a document incorporated or deemed to be incorporated herein by reference 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 subsequently filed document
that also is, or is deemed to be, incorporated herein by reference, modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Maryland law permits a Maryland corporation
to include in its charter a provision limiting the liability of its directors and officers to the corporation and its stockholders
for money damages except for liability resulting from (a) actual receipt of an improper benefit or profit in money, property or
services or (b) active and deliberate dishonesty established by a final judgment as being material to the cause of action. The
Company’s charter contains such a provision that eliminates directors’ and officers’ liability to the maximum
extent permitted by Maryland law, subject to the requirements of the 1940 Act.
The Company’s charter authorizes
the Company, to the maximum extent permitted by Maryland law and subject to the requirements of the 1940 Act, to indemnify any
present or former director or officer or any individual who, while serving as the Company’s director or officer and at the
Company’s request, serves or has served another corporation, real estate investment trust, partnership, joint venture, trust,
employee benefit plan or other enterprise as a director, officer, partner or trustee, from and against any claim or liability to
which that person may become subject or which that person may incur by reason of his or her service in any such capacity and to
pay or reimburse their reasonable expenses in advance of final disposition of a proceeding. The Company’s bylaws obligate
the Company, to the maximum extent permitted by Maryland law and subject to the requirements of the 1940 Act, to indemnify any
present or former director or officer or any individual who, while serving as the Company’s director or officer and at the
Company’s request, serves or has served another corporation, real estate investment trust, partnership, joint venture, trust,
employee benefit plan or other enterprise as a director, officer, partner or trustee and who is made, or threatened to be made,
a party to the proceeding by reason of his or her service in that capacity from and against any claim or liability to which that
person may become subject or which that person may incur by reason of his or her service in any such capacity and to pay or reimburse
his or her reasonable expenses in advance of final disposition of a proceeding. The Company’s charter and bylaws also permit
the Company to indemnify and advance expenses to any person who served a predecessor of the Company in any of the capacities described
above and any of the Company’s employees or agents or any employees or agents of the Company’s predecessor. In accordance
with the 1940 Act, the Company will not indemnify any person for any liability to which such person would be subject by reason
of such person’s willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct
of his or her office.
Maryland law requires a corporation (unless
its charter provides otherwise, which the Company’s charter does not) to indemnify a director or officer who has been successful
in the defense of any proceeding to which he or she is made, or threatened to be made, a party by reason of his or her service
in that capacity. Maryland law permits a corporation to indemnify its present and former directors and officers, among others,
against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any proceeding
to which they may be made, or threatened to be made, a party by reason of their service in those or other capacities unless it
is established that (a) the act or omission of the director or officer was material to the matter giving rise to the proceeding
and (1) was committed in bad faith or (2) was the result of active and deliberate dishonesty, (b) the director or officer actually
received an improper personal benefit in money, property or services or (c) in the case of any criminal proceeding, the director
or officer had reasonable cause to believe that the act or omission was unlawful. However, under Maryland law, a Maryland corporation
may not indemnify for an adverse judgment in a suit by or in the right of the corporation or for a judgment of liability on the
basis that a personal benefit was improperly received unless, in either case, a court orders indemnification, and then only for
expenses. In addition, Maryland law permits a corporation to advance reasonable expenses to a director or officer in advance of
final disposition of a proceeding upon the corporation’s receipt of (a) a written affirmation by the director or officer
of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification by the corporation
and (b) a written undertaking by him or her or on his or her behalf to repay the amount paid or reimbursed by the corporation if
it is ultimately determined that the standard of conduct was not met.
Item 7. Exemption from Registration
Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
No.
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Description
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4.1
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Articles of Amendment and Restatement (previously filed in connection with Pre-Effective Amendment No. 2 to the Registrant’s Registration Statement on Form N-2 (File No. 333-171578) filed on March 30, 2011, and incorporated by reference herein)
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4.2
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Articles of Amendment (previously filed in connection with the Registrant’s Current Report on Form 8-K (File No. 814-00852) filed on June 1, 2011, and incorporated by reference herein)
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4.3
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Articles of Amendment (previously filed in connection with the Registrant’s Current Report on Form 8-K (814-00852) filed on August 1, 2019, and incorporated by reference herein)
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4.4
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Bylaws (previously filed in connection with Pre-Effective Amendment No. 2 to the Registrant’s Registration Statement on Form N-2 (File No. 333-171578) filed on March 30, 2011, and incorporated by reference herein)
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4.5
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Amended and Restated Bylaws (previously filed in connection with the Registrant’s Current Report on Form 8-K (814-00852) filed on August 1, 2019, and incorporated by reference herein)
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4.6
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Sutter Rock Capital Corp. 2019 Equity Incentive Plan*
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4.7
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Form of Sutter Rock Capital Corp. Non-Qualified Stock Option Award*
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5.1
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Opinion of Eversheds Sutherland (US) LLP*
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23.1
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Consent of Eversheds Sutherland (US) LLP (included in Exhibit 5.1 hereto)*
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23.2
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Consent of Deloitte & Touche LLP*
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24.1
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Power of Attorney (included on signature page)*
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* Filed
herewith.
Item 9. Undertakings.
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(a)
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The undersigned registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment
to this registration statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act;
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(ii)
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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 SEC
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum
aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
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(iii)
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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;
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provided, however, that paragraphs
(a)(1)(i) and (a)(1)(ii) of this section do not apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.
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(2)
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That, for the purpose of determining any liability under the Securities Act, 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.
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(3)
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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.
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(b)
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The undersigned registrant hereby undertakes that, for purposes of determining any liability under
the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d)
of the Exchange Act) 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 securities at that time shall be deemed to be the initial
bona fide offering thereof.
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(c)
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Insofar as indemnification for liabilities arising under the Securities Act 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 SEC 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.
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SIGNATURES
Pursuant to the requirements of the Securities
Act, 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 San Francisco, State of California, on September 13, 2019.
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SUTTER ROCK CAPITAL CORP.
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By:
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/s/ Mark D. Klein
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Name: Mark D. Klein
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Title: Chief Executive Officer and President
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POWER OF ATTORNEY
Each person whose signature appears below
hereby constitutes and appoints Mark D. Klein with full power to act as such person’s true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and
all capacities, to sign this registration statement, and any and all amendments thereto (including post-effective amendments),
and to file the same, with exhibits and schedules thereto, and other documents in connection therewith, with the SEC, granting
unto such attorney-in-fact and agent, full power and authority to do and perform each and every act and thing necessary or desirable
to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying
and confirming all that such attorney-in-fact and agent or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities
Act, this registration statement has been signed by the following persons in the capacities and on the date indicated.
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Signature
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Title
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Date
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By:
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/s/ Mark D. Klein
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Chief Executive Officer and President
(Principal Executive Officer)
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September 13, 2019
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Mark D. Klein
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By:
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/s/ Allison Green
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Chief Financial Officer, Treasurer, and
Secretary
(Principal Financial Officer and
Accounting Officer)
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September 13, 2019
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Allison Green
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By:
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/s/ Leonard A. Potter
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Director
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September 13, 2019
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Leonard A. Potter
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By:
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/s/ Ronald M. Lott
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Director
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September 13, 2019
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Ronald M. Lott
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By:
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/s/ Marc Mazur
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Director
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September 13, 2019
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Marc Mazur
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By:
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/s/ Lisa Westley
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Director
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September 13, 2019
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Lisa Westley
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