As
filed
with the Securities and Exchange Commission on June 27, 2008
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
-----------------
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
-----------------
KOHLBERG
CAPITAL CORPORATION
(Exact
name of registrant as specified in its charter)
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DELAWARE
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20-5951150
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(State
or Other Jurisdiction
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(IRS
Employer
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of
Incorporation)
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Identification
No.)
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295
MADISON AVENUE, 6TH FLOOR, NEW YORK, NY
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10017
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(Address
of Principal Executive Offices)
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(Zip
Code)
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-----------------
Amended
and Restated 2006 Equity Incentive Plan
(Full
title of the Plan)
----------------
Dayl
W.
Pearson
Kohlberg
Capital Corporation
295
Madison Avenue, 6th Floor
New
York,
NY 10017
(name
and
address of agent for service)
(212)
455-8300
(Telephone
number, including area code, of agent for service)
Copy
to:
Craig
E.
Marcus, Esq.
Ropes
& Gray LLP
One
International Place
Boston,
MA 02110
617-951-7000
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CALCULATION
OF REGISTRATION FEE
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Title
of Securities
Being
Registered
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Amount
Being
Registered
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Proposed Maximum
Offering
Price Per Share(1)
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Proposed Maximum
Aggregate
Offering Price(2)
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Amount
of
Registration Fee
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Common
Stock, par value $0.01 per share
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2,000,000 shares
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$15.23
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$30,460,000
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$1,197
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(1)
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The
offering price for shares subject to options on the date hereof is
the
actual exercise price of such options. Of the 2,000,000 shares to
be
registered under the Kohlberg Capital Corporation Amended and Restated
2006 Equity Incentive Plan, 910,000 are subject to options at an
exercise
price of $15.00 per share, 240,000 are subject to options at an exercise
price of $16.36 per share, 25,000 are subject to options at an exercise
price of $17.37 per share, 80,000 are subject to options at an exercise
price of $17.98 per share, 25,000 are subject to options at an exercise
price of $15.39 per share, 20,000 are subject to options at an exercise
price of $16.50 per share and 20,000 are subject to options at an
exercise
price of $11.97 per share. The offering price for the remaining 680,000
shares not subject to options on the date hereof of $11.26 per share
has
been estimated solely for the purpose of determining the registration
fee
pursuant to Rule 457(h) of the Securities Act of 1933, as amended
(the
“Securities Act”), on the basis of the average of the high and low prices
of Kohlberg Capital Corporation Common Stock, par value $0.01 per
share,
reported on the Nasdaq Global Market on June 23, 2008.
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(2)
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The
maximum aggregate offering price for the Kohlberg Capital Corporation
Amended and Restated 2006 Equity Incentive Plan consists of $13,650,000
payable in respect of 910,000 shares subject to options at an exercise
price of $15.00 per share, $3,926,400 payable in respect of 240,000
shares
subject to options at an exercise price of $16.36 per share, $434,250
payable in respect of 25,000 shares subject to options at an exercise
price of $17.37 per share, $1,438,400 payable in respect of 80,000
shares
subject to options at an exercise price of $17.98 per share, $384,750
payable in respect of 25,000 shares subject to options at an exercise
price of $15.39 per share, $330,000 payable in respect of 20,000
shares
subject to options at an exercise price of $16.50 per share, $239,400
payable in respect of 20,000 shares subject to options at an exercise
price of $11.97 per share and $7,656,800 payable in respect of 680,000
shares not subject to options on the date hereof.
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(3)
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The
registration fee relating to this filing is $1,197, of which $710
has
previously been paid. In reliance on Rule 457(p) of the Securities
Act
the registrant is applying the fees paid in connection with its
Registration Statement on Form S-8 (Registration No.
333-141386).
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PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information
required by Part I to be contained in the Section 10(a) prospectus is omitted
from this registration statement in accordance with Rule 428 under the
Securities Act of 1933, as amended (the “Securities Act”), and the Note to Part
I of Form S-8.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3.
Incorporation of Documents by Reference.
The
following documents filed by Kohlberg Capital Corporation (the “Registrant”) are
incorporated herein by reference except to the extent any statement or
information therein is modified, superseded or replaced by a statement or
information contained in this document or in any other subsequently filed
document incorporated herein by reference:
(i)
The
Registrant’s Annual Report on Form 10-K filed with the Securities and Exchange
Commission (the “Commission) on March 14, 2008.
(ii)
The
Registrant’s Quarterly Report on Form 10-Q filed with the Commission on May 9,
2008 and the Registrant’s Current Reports on Form 8-K filed with the Commission
on March 17, 2008, April 29, 2008, May 8, 2008, June 16, 2008, June 19, 2008
and
June 27, 2008.
(iii)
The
description of the Common Stock, $0.01 par value per share, contained in the
Company's Registration Statement on Form 8-A, filed with the Commission pursuant
to Section 12(b) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) on December 4, 2006, including any further amendment or report
filed hereafter for the purpose of updating such description.
All
documents subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment to this registration statement that indicates that all securities
offered have been sold or that deregisters all securities then remaining unsold,
shall be deemed to be incorporated herein by reference from the date of filing
of such documents.
Any
statement contained in a document incorporated or deemed to be incorporated
by
reference herein shall be deemed to be modified or superseded for purposes
of
this registration statement to the extent that a statement contained herein,
or
in any other subsequently filed document which also is incorporated or deemed
to
be incorporated by reference herein, modifies or supersedes such statement.
Any
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.
The
Registrant is incorporated under the laws of the State of Delaware. Section
102(b)(7) of the Delaware General Corporation Law permits a corporation to
include in its certificate of incorporation a provision eliminating or limiting
the personal liability of a director to the corporation or its stockholders
for
monetary damages for breach of fiduciary duty as a director, provided, however,
that such provision shall not eliminate or limit the liability of a director
(i)
for any breach of the director’s duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174
of
the Delaware General Corporation Law, which relates to unlawful payment of
dividends and unlawful stock purchases and redemptions or (iv) for any
transaction from which the director derived an improper personal benefit.
Section
145 of the Delaware General Corporation Law provides that a corporation may
indemnify any persons who were, are or are threatened to be made, parties to
any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of such corporation), by reason of the fact that such person is or was
an
officer, director, employee or agent of such corporation, or is or was serving
at the request of such corporation as a director, officer, employee or agent
of
another corporation, partnership, joint venture, trust or other enterprise.
The
indemnity may include expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person
in
connection with such action, suit or proceeding, provided such person acted
in
good faith and in a manner he reasonably believed to be in or not opposed to
the
corporation’s best interests and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that his conduct was
unlawful.
Section
145 of the Delaware General Corporation Law further authorizes a corporation
to
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or was serving
at
the request of the corporation as a director, officer, employee or agent of
another corporation or enterprise, against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would otherwise have the power to indemnify
him
under Section 145 of the Delaware General Corporation Law.
The
Registrant’s certificate of incorporation provides that its directors shall not
be liable to it or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent that the exculpation from liabilities
is not permitted under the Delaware General Corporation Law as in effect at
the
time such liability is determined. In addition, the Registrant’s certificate of
incorporation provides that it shall indemnify its directors to the full extent
permitted by the laws of the State of Delaware.
The
Registrant’s directors and officers are covered by insurance policies maintained
by the Registrant against specified liabilities for actions taken in their
capacities as such, including liabilities under the Securities Act of 1933,
as
amended. In addition, the Registrant has entered into indemnification agreements
with each of its directors and executive officers that provide for
indemnification and expense advancement to the fullest extent permitted under
the Delaware General Corporation Law.
Item
7.
Exemption From Registration Claimed.
Not
applicable.
Item
8.
Exhibits.
4.1 Amended
and Restated 2006 Equity Incentive Plan (incorporated herein by reference to
Exhibit 10.1 of Kohlberg Capital Corporation’s Current Report on Form 8-K filed
June 19, 2008).
4.2 Form
of
Certificate of Incorporation of Kohlberg Capital Corporation (incorporated
herein by reference to Exhibit a of Kohlberg Capital Corporation’s Registration
Statement on Form N-2, as amended (File No. 333-136714)).
4.3 Form
of
Bylaws of Kohlberg Capital Corporation (incorporated herein by reference to
Exhibit b of Kohlberg Capital Corporation's Registration Statement on Form
N-2,
as amended (File No. 333-141382)).
4.4 Specimen
Certificate for shares of Common Stock, par value $0.01 per share, of Kohlberg
Capital Corporation (incorporated by reference to Exhibit d.1 of Kohlberg
Capital Corporation's Registration Statement on Form N-2, as amended (File
No.
333-136714)).
5.1 Opinion
of Ropes & Gray LLP (filed herewith).
23.1 Consent
of Deloitte & Touche LLP (filed herewith).
23.2 Consent
of Ropes & Gray LLP (included in the opinion filed as Exhibit
5.1).
24.1 Power
of
Attorney (included on the signature page of this registration
statement).
Item
9.
Undertakings.
(a)
The
undersigned Registrant hereby undertakes:
(1)
To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(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 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 a prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the
effective registration statement;
(iii)
To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
provided,
however,
that
paragraphs (a)(1)(i) and (a)(1)(ii) above shall not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by
the
Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2)
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.
(3)
To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(b)
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 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.
(c)
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 Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred
or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies
that
it has reasonable grounds to believe that it meets all of the requirements
for
filing on Form S-8 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
New
York, State of New York, on this 27th day of June, 2008
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KOHLBERG
CAPITAL CORPORATION
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By:
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/s/
Dayl W. Pearson
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Name:
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Dayl
W. Pearson
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Title:
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President
and Chief Executive Officer
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POWER
OF
ATTORNEY
KNOW
ALL
PERSONS BY THESE PRESENTS that each individual whose signature appears below
constitutes and appoints Dayl W. Pearson and Michael I. Wirth, and each of
them,
his or her 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 any and all amendments, including
post-effective amendments, to this registration statement, and to file the
same,
with all exhibits thereto and all documents in connection therewith, making
such
changes in this registration statement as such person or persons so acting
deems
appropriate, with the Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might or could
do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or his, her or their substitute or substitutes, may
lawfully do or cause to be done or by virtue hereof.
*
* * *
*
Pursuant
to the requirements of the Securities Act of 1933, as amended, this registration
statement has been signed by the following persons in the capacities and on
the
dates indicated:
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Signature
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Title
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Date
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/s/
Dayl W. Pearson
Dayl
W. Pearson
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President,
Chief Executive Officer (Principal Executive Officer) and
Director
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June
27, 2008
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/s/
Michael I. Wirth
Michael
I. Wirth
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Chief
Financial Officer, Chief Compliance Officer, Secretary and Treasurer
(Principal Financial and Accounting Officer)
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June
27, 2008
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/s/
Christopher Lacovara
Christopher
Lacovara
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Director
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June
27, 2008
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/s/
Samuel P. Frieder
Samuel
P. Frieder
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Director
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June
27, 2008
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/s/
Gary Cademartori
Gary
Cademartori
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Director
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June
27, 2008
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/s/
C. Michael Jacobi
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Director
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June
27, 2008
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C.
Michael Jacobi
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|||
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/s/
Albert Pastino
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Director
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June
27, 2008
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Albert
Pastino
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|||
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/s/
C. Turney Stevens
C.
Turney Stevens
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Director
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June
27, 2008
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EXHIBIT
INDEX
4.1 Amended
and Restated 2006 Equity Incentive Plan (incorporated herein by reference to
Exhibit 10.1 of Kohlberg Capital Corporation’s Current Report on Form 8-K filed
June 19, 2008).
4.2 Form
of
Certificate of Incorporation of Kohlberg Capital Corporation (incorporated
herein by reference to Exhibit a of Kohlberg Capital Corporation’s Registration
Statement on Form N-2, as amended (File No. 333-136714)).
4.3 Form
of
Bylaws of Kohlberg Capital Corporation (incorporated herein by reference to
Exhibit b of Kohlberg Capital Corporation's Registration Statement on Form
N-2,
as amended (File No. 333-141382)).
4.4 Specimen
Certificate for shares of Common Stock, par value $0.01 per share, of Kohlberg
Capital Corporation (incorporated by reference to Exhibit d.1 of Kohlberg
Capital Corporation's Registration Statement on Form N-2, as amended (File
No.
333-136714)).
5.1 Opinion
of Ropes & Gray LLP (filed herewith).
23.1 Consent
of Deloitte & Touche LLP (filed herewith).
23.2 Consent
of Ropes & Gray LLP (included in the opinion filed as Exhibit
5.1).
24.1 Power
of
Attorney (included on the signature page of this registration
statement).
[ROPES &
GRAY LLP - Letterhead]
June
27,
2008
Kohlberg
Capital Corporation
295
Madison Avenue, 6th Floor
New
York,
NY 10017
Ladies
and Gentlemen:
This
opinion is furnished to you in connection with a registration statement on
Form
S-8 (the “Registration Statement”), filed with the Securities and Exchange
Commission (the “Commission”) under the Securities Act of 1933, as amended, for
the registration of 2,000,000 shares of Common Stock, par value $0.01 per share
(the “Shares”), of Kohlberg Capital Corporation, a Delaware corporation (the
“Company”). The Shares are issuable under the Company’s Amended and Restated
2006 Equity Incentive Plan (the “Plan”).
We
are
familiar with the actions taken by the Company in connection with the adoption
of the Plan. For purposes of our opinion, we have examined and relied upon
such
documents, records, certificates and other instruments as we have deemed
necessary.
The
opinions expressed below are limited to the applicable provisions of the
Delaware General Corporation Law, including the applicable provisions of the
Delaware Constitution and the reported cases interpreting those laws.
Based
upon and subject to the foregoing, we are of the opinion that, when the Shares
have been issued and sold and consideration received therefor by the Company
in
accordance with the terms of the Plan, the Shares will be validly issued, fully
paid and nonassessable.
We
hereby
consent to the filing of this opinion as an exhibit to the Registration
Statement. In giving this consent we do not thereby admit that we are included
in the category of persons whose consent is required under Section 7 of the
Securities Act of 1933 or the rules and regulations of the Commission. It is
understood that this opinion is to be used only in connection with the offer
and
sale of Shares while the Registration Statement is in effect.
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Very
truly yours,
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/S/
ROPES & GRAY LLP
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Ropes &
Gray LLP
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CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
consent to the incorporation by reference in this Registration Statement on
Form
S-8 which is to be filed on or about June 27, 2008, of our reports, each dated
March 14, 2008, relating to the financial statements and financial
highlights of Kohlberg Capital Corporation for the year ended December 31,
2007 (which expresses an unqualified opinion and includes an explanatory
paragraph relating to the valuation of investments whose fair values have been
estimated by management in the absence of readily determinable fair values),
and
the effectiveness of Kohlberg Capital Corporation’s internal control over
financial reporting.
/s/
DELOITTE & TOUCHE LLP
New
York,
New York
June
27,
2008