SEC Division of Trading and Markets no-action letter: FS Investment Corporation

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION·
WASHINGTON, D.C. 20549
DIVISION OF
TRADING AND MAR.KETS
Steven B. Boehm

Sutherland Asbill and Brennan LLP

1275 Pennsylvania Avenue, NW

Washington, DC 20004-2415

Re:FS Investment Corporation
Request for Exemptive Reliefunder Rule 102 ofRegulation M TP File No. 09-36 Dear Mr. Boehm:
. In your letter datedApril 20, 2009, as supplemente4 by conversations with the staff, you request that the Commission grant an exemption from Rule 102 ofRegulation M to permit FS Investment Corporation ("Company") to effect repurchasesofshares ofits common stockpursuant to its proposed Repurchase Program. We have attached a copy ofyour letter to thisresponse to .avoid reCiting the facts. Unless otherwise noted, terms in this letter have the same meaning as in yourletteL As a consequence ofthe continuous offering ofthe Company's shares ofcommon stock, the Company will be engaged in a distributiori ofshares ofitscominon stock pursuant to Rule· 102 of Regulation M. As a result, bids for or purchases ofshares ofits common stock or any reference seCurity by the Company or any affiliated purchaser ofthe ComPaIlY are prohibited during the restricted period specified in Rule 102, unless specifically excepted by or exempted from Rule 102. Response:
On the basis ofyour representations and the facts presented, but without necessarily concurring in your analysis, the Commission hereby grants an exemption from Rule 102 of Regulation M to permit the Company to repurchase shares ofits COmmon stock underits Repurchase Program whilethe Company is· engaged in a distribution ofshares ofcommon stock. .In granting this exemption, we considered the following facts, among others: ~:

• There is no trading market for the Company's common stock;
• The Company will terminate its Repurchase Program in the event a secondary market for its
  common stock develops;