exv10w23wb







Exhibit 10.23(b)




SECOND AMENDMENT TO EMPLOYMENT AGREEMENT




     THIS SECOND AMENDMENT (the “Second Amendment”) is entered into by and between Penni F. Roll,
(“you”) and Allied Capital Corporation, a Maryland corporation (the “Company”), on December 15,
2008. This Second Amendment shall be effective for all purposes as of December 15, 2008 (the
“Effective Date”).



     WHEREAS, you and the Company entered into an employment agreement effective as of January 1,
2004 (“Employment Agreement”);



     WHEREAS, the Employment Agreement was amended effective March 29, 2007 (the “First
Amendment”) to comply with Section 409A of the Internal Revenue Code of 1986 and address other
related tax issues;



     WHEREAS, the Employment Agreement and the First Amendment, together, shall be referred to as
the “2007 Employment Agreement;”



     WHEREAS final regulations implementing Section 409A have been issued since the First
Amendment became effective; and



     WHEREAS, the parties are amending the 2007 Employment Agreement for their mutual benefit to
comply with Section 409A and its implementing regulations and address other related issues;



     NOW THEREFORE, for good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, you and the Company, intending legally and equitably to be bound, hereby
amend the 2007 Employment Agreement as follows:


1. You and the Company hereby delete in its entirety Section 7(c) of the 2007 Employment Agreement
and substitute the following language in its place:





     (c) In the event that the Company terminates your employment without Cause, or you
terminate your employment for Good Reason or your employment terminates due to your death
or Disability, or the Term expires in accordance with this Agreement after the delivery of
a Non-renewal Notice by either party, you (or your personal or legal representatives)
shall receive a termination payment equal to the amount of $43,500 to be paid on the
later of (A) the first business day following the expiration of six months after your
Separation from Service, or (B) ten (10) days after you (or in the event of your death,
your personal or legal representative) deliver to the Company the Release, regardless of
whether the Company has signed the Release. Such amount shall be increased by ten percent
(10%) annually on the anniversary of the effective date of this Second Amendment. Such
payment shall be in lieu of certain post-termination health and welfare benefits.



 









 




2. You and the Company hereby delete in its entirety Section 8 of the 2007 Employment
Agreement and substitute the following language in its place:





8. Tax Equalization Payment. In addition to the amounts payable under Section 7
hereof, if it shall be determined that any event or any payment, vesting, distribution, or
transfer by the Company (or any successor, affiliate or by any other person) to you or for
your benefit under the terms of this Agreement or otherwise (including, without limitation,
the Stock Option Agreement(s), the Split Dollar Life Insurance Agreement or any employee
benefit plan) (collectively, a “Payment”) would be subject to or result in the imposition of
the excise tax under Section 4999 of the Internal Revenue Code of 1986, as amended (the
“Code”) (and any regulations issued thereunder, any successor provision, and any similar
provision of state or local income tax law) (collectively, the “Excise Tax”), then the
Company shall pay to you a lump sum (“Tax Equalization Payment”) in an amount sufficient
that, after payment of the federal, state or local income, employment or other required
taxes (other than taxes that may be imposed by Section 409A of the Code) (“Regular Taxes”),
you shall receive an amount equal to the Excise Tax. Such payment shall be made within 15
days of the date which you remit such Excise Tax. In determining the amount of any Regular
Taxes, the maximum applicable marginal rate of tax for the year in which the Tax
Equalization Payment is payable shall be used. The amount of this Tax Equalization Payment
shall be determined by the Company’s independent accountants.


3. Knowing and Voluntary. Each party has read and fully understands this Second
Amendment and has consulted with counsel of its own choosing before entering into this Second
Amendment. Each party has had a reasonable time to consider this Second Amendment and is entering
into it knowingly and voluntarily without any duress or coercion.



4. Complete Agreement. This Second Amendment constitutes the entire agreement between you
and the Company regarding the amendment of Sections 7(c) and 8 of the 2007 Employment Agreement
and supersedes all prior agreements and understandings between you and the Company regarding
Sections 7(c) and 8 of the 2007 Employment Agreement. In making this Second Amendment, the parties
warrant that they did not rely on any representations or statements other than those contained in
this Second Amendment. This Second Amendment may not be amended except by an instrument in
writing signed by you and by the Chair of Company’s Compensation Committee on behalf of the
Company.



5. Conflict of Terms. In the event of a conflict or inconsistency between the 2007
Employment Agreement and this Second Amendment, this Second Amendment shall control and govern the
rights and obligations of the parties.



6. Construction. In the event an ambiguity or question of intent or interpretation arises,
this Second Amendment shall be construed as if drafted joined by the parties and no presumption or
burden of proof shall arise favoring or disfavoring either party by virtue of the authorship of any
of the provisions of this Second Amendment.



7. Execution. This Second Amendment may be executed in two or more counterparts, each
of which shall be deemed an original but all of which together shall constitute one and the same
instrument. This Second Amendment may be executed by facsimile signatures.




 









 







IN WITNESS WHEREOF, each of the parties has executed this Second Amendment, in the case of the
Company by its authorized officer, as of the day and year set forth under their signatures below.




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	ALLIED CAPITAL CORPORATION	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	/s/
Penni F. Roll	 	 	 	BY:	 	/s/
Anthony T. Garcia	 	 
	Penni F. Roll	 	 	 	Anthony T. Garcia	 	 
	 	 	 	 	 	 	Compensation Committee Chair	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Date:

	 	December 15, 2008	 	 	 	Date:	 	December 15, 2008