
[Federal Register: May 15, 2008 (Volume 73, Number 95)]
[Notices]               
[Page 28175-28178]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15my08-95]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. IC-28265; 812-13438]

 
Main Street Capital Corporation, et al.; Notice of Application

May 8, 2008.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice of application for an order under section 57(i) of the 
Investment Company Act of 1940 (the ``Act'') and rule 17d-1 under the 
Act to permit certain joint transactions otherwise prohibited by 
section 57(a)(4) of the Act and under section 17(d) of the Act and rule 
17d-1 under the Act authorizing certain joint transactions.

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Summary of Application:  Applicants request an order to permit a 
business development company (``BDC'') and its wholly-owned small 
business investment company (``SBIC'') to co-invest with certain 
affiliates in portfolio companies.

Applicants:  Main Street Capital Corporation (the ``Company''), Main 
Street Mezzanine Fund, LP (``MSMF''), Main Street Capital II, LP 
(``MSC'') and Main Street Capital Partners, LLC (the ``Investment 
Adviser'').

Filing Dates: The application was filed on October 12, 2007, and 
amended on April 28, 2008.

Hearing or Notification of Hearing: An order granting the requested 
relief will be issued unless the Commission orders a hearing. 
Interested persons may request a hearing by writing to the Commission's 
Secretary and serving applicants with a copy of the request, personally 
or by mail. Hearing requests should be received by the Commission by 
5:30 p.m. on June 2, 2008, and should be accompanied by proof of 
service on applicants, in the form of an affidavit or, for lawyers, a 
certificate of service. Hearing requests should state the nature of the 
writer's interest, the reason for the request, and the issues 
contested. Persons who wish to be notified of a hearing may request 
notification by writing to the Commission's Secretary.

ADDRESSES: Secretary, U.S. Securities and Exchange Commission, 100 F 
St., NE., Washington, DC 20549-1520. Applicants: c/o Mr. Vincent D. 
Foster, Main Street Capital Corporation, 1300 Post Oak Boulevard, Suite 
800, Houston, TX 77056.

FOR FURTHER INFORMATION CONTACT: Jean E. Minarick, Senior Counsel, at 
(202) 551-6811, or Nadya B. Roytblat, Assistant Director, at (202) 551-
6821 (Office of Investment Company Regulation, Division of Investment 
Management).

SUPPLEMENTARY INFORMATION: The following is a summary of the 
application. The complete application may be obtained for a fee at the 
Commission's Public Reference Branch, 100 F St., NE., Washington, DC 
20549-1520 (tel. 202-551-5850).

Applicants' Representations

    1. The Company is an internally managed, non-diversified, closed-
end management investment company that has elected to be regulated as a 
BDC under the Act.\1\ The Company's

[[Page 28176]]

investment objective is to maximize total return by generating current 
income from debt investments and realizing capital appreciation from 
equity-related investments. The Company's investments are managed by an 
investment committee (``Investment Committee''). The Company has a six-
member board of directors (``Board'') of which four members are not 
interested persons of the Company within the meaning of section 
2(a)(19) of the Act (``Independent Directors'').
    2. MSMF is organized as a limited partnership that operates as an 
SBIC, and is excluded from the definition of investment company by 
section 3(c)(7) of the Act. MSMF is a wholly-owned subsidiary of the 
Company. MSMF has the same investment objective and strategies as the 
Company. Main Street Mezzanine Management, LLC is the general partner 
of MSMF and a wholly-owned subsidiary of the Company. The Investment 
Adviser, a wholly-owned subsidiary of the Company, acts as MSMF's 
manager and investment adviser.
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    \1\ Section 2(a)(48) defines a BDC to be any closed-end 
investment company that operates for the purpose of making 
investments in securities described in sections 55(a)(1) through 
55(a)(3) of the Act and makes available significant managerial 
assistance with respect to the issuers of such securities.
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    3. MSC is a limited partnership that operates as an SBIC, and is 
excluded from the definition of investment company by section 3(c)(7) 
of the Act. MSC has the same investment objective and strategies as the 
Company and MSMF. The general partner of MSC is Main Street Capital II 
GP, LLC (``MSIIGP''). Certain individuals who comprise the management 
of the Company are also members of MSIIGP. Since its inception MSC has, 
and it will continue to have, the same investment objective and 
strategies as MSMF and the Company. As a result, prior to the Company's 
election to be regulated as a BDC, MSC and MSMF, as a general practice, 
invested jointly in portfolio companies (the ``Existing Co-
Investments''). As of December 31, 2007, MSC had debt and equity 
investments in 17 portfolio companies with an aggregate fair market 
value of $67 million. In addition, MSC had $40 million of outstanding 
indebtedness guaranteed by the Small Business Administration, which had 
a weighted average annualized interest cost of 6.4% (exclusive of 
deferred financing costs) as of September 30, 2007. MSMF is also 
invested in 13 of the 17 portfolio companies in which MSC is 
invested.\2\ The Investment Adviser manages the investment activities 
of MSC.
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    \2\ The one time that MSMF and MSC did not co-invest is during a 
period when MSMF was fully invested, excluding a reasonable cash 
cushion.
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    4. The Investment Adviser is a wholly owned subsidiary of the 
Company and is exempt from registration under the Investment Advisers 
Act of 1940. The management of the Investment Adviser is comprised of 
the same individuals who comprise the Investment Committee of the 
Company. The Investment Adviser may in the future advise other entities 
that are affiliated persons of the Company as defined in sections 
2(a)(3)(C) and (D) of the Act (the ``Future Co-Investment Affiliates,'' 
and together with MSMF, MSC and the Company, the ``Co-Investment 
Affiliates'').\3\ Applicants request relief permitting the Co-
Investment Affiliates to co-invest in portfolio companies (the ``Co-
Investment Program'' and each investment, a ``Co-Investment 
Transaction''). Under the Co-Investment Program, co-investment between 
the Company, MSMF and MSC would be the norm, rather than the exception. 
In selecting investments for the Company, the Investment Committee will 
consider only the investment objective, investment policies, investment 
position, capital available for investment, and other pertinent factors 
applicable to the Company. Under the Co-Investment Program, each co-
investment would be allocated among the Company and MSMF, on the one 
hand, and MSC, on the other hand, based upon the relative total capital 
of each group (total capital being equal to raised equity plus 
available debt). These relative allocation percentages (``Relative 
Allocation Percentages'') would be approved each quarter or, as 
necessary or appropriate, between quarters by both the full Board and 
the required majority (within the meaning of Section 57(o)) (the 
``Required Majority'').\4\ Because MSMF and MSC are subject to SBIC 
regulation while the Company is not, some deviation from the Relative 
Allocation Percentages may be necessary (the ``SBIC Exceptions''). For 
example, if the Investment Committee has selected an investment for the 
Company and that investment does not qualify under SBIC regulations, 
only the Company would pursue the investment. The Co-Investment Program 
as a whole has been approved by both the full Board and the Required 
Majority. The Relative Allocation Percentages will be approved by both 
the full Board and the Required Majority prior to the implementation of 
the Co-Investment Program, and any deviations from the Relative 
Allocation Percentages for any investment, by any of the Company, MSMF, 
or MSC, except for the SBIC Exception, would require prior approval by 
both the full Board and the Required Majority.
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    \3\ Sections 2(a)(3)(C) and 2(a)(3)(D) define an ``affiliated 
person'' of another person as: (C) Any person directly or indirectly 
controlling, controlled by, or under common control with, such other 
person; (D) any officer, director, partner, copartner, or employee 
of such other person.
    \4\ The term ``Required Majority,'' when used with respect to 
the approval of a proposed transaction, plan, or arrangement, means 
both a majority of a BDC's directors or general partners who have no 
financial interest in such transaction, plan, or arrangement and a 
majority of such directors or general partners who are not 
interested persons of such company.
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Applicants' Legal Analysis

    1. Section 57(a)(4) of the Act prohibits certain affiliated persons 
of a BDC from participating in a joint transaction with the BDC in 
contravention of rules as prescribed by the Commission. In addition, 
under section 57(b)(2) of the Act, any person who is directly or 
indirectly controlling, controlled by or under common control with a 
BDC is subject to section 57(a)(4). Because certain individuals who are 
the members of MSIIGP also comprise the Investment Committee and are 
the principals of the Investment Adviser, and collectively own 
approximately 18% of the outstanding voting securities of the Company, 
the Company, MSMF and MSC are affiliated persons within the meaning of 
section 2(a)(3) by reason of common control. Thus, MSC could be deemed 
to be a person related to the Company in a manner described by section 
57(b) and therefore, is prohibited by section 57(a)(4) and rule 17d-1 
under the Act from participating in the Co-Investment Program. Section 
57(i) of the Act provides that, until the Commission prescribes rules 
under section 57(a)(4), the Commission's rules under section 17(d) of 
the Act applicable to registered closed-end investment companies will 
be deemed to apply. Because the Commission has not adopted any rules 
under section 57(a)(4), rule 17d-1 applies.
    2. Section 17(d) of the Act and rule 17d-1 under the Act prohibit 
affiliated persons of a registered investment company from 
participating in joint transactions with the company unless the 
Commission has granted an order permitting such transactions. Rule 17d-
1, as made applicable to BDCs by section 57(i), prohibits any person 
who is related to a BDC in a manner described in section 57(b), as 
modified by rule 57b-1, acting as principal, from participating in, or 
affecting any transaction in connection with, any joint enterprise or 
other joint arrangement or profit-sharing plan in which the BDC is a 
participant, absent

[[Page 28177]]

an order from the Commission. In passing upon applications under rule 
17d-1, the Commission considers whether the company's participation in 
the joint transaction is consistent with the provisions, policies, and 
purposes of the Act and the extent to which such participation is on a 
basis different from or less advantageous than that of other 
participants.
    3. Applicants state that allowing co-investment in portfolio 
companies by the Company, MSMF and MSC will increase favorable 
investment opportunities for the Company and MSMF. The Co-Investment 
Program has been approved by the Board and the Required Majority on the 
basis that it would be mutually advantageous for the Company and MSMF 
to have the additional capital from MSC available to meet the funding 
requirements of attractive investments in portfolio companies.
    4. Applicants state that the formulae for the allocation of co-
investment opportunities among the Company and MSMF on the one hand and 
MSC on the other, and the protective conditions set forth below will 
ensure that the Company will be treated fairly. Applicants state that 
the proposed relief is consistent with rule 17d-1 in that the 
participation of the Company and MSMF will not be on a basis different 
from or less advantageous than that of MSC.

Applicants' Conditions

    Applicants agree that any order granting the requested relief will 
be subject to the following conditions:
    1. Each time the Investment Adviser considers an investment for 
MSC, the Investment Committee, for the Company, and the Investment 
Adviser, for MSMF, will make an independent determination of the 
appropriateness of the investment for the Company and MSMF.
    2. (a) If the Investment Committee, for the Company, and the 
Investment Adviser, for MSMF, deem that each entity's participation in 
the investment is appropriate, then such investment will be made 
pursuant to the Relative Allocation Percentages, unless either the 
Investment Committee or the Investment Adviser determines that 
investment pursuant to the Relative Allocation Percentages is not 
appropriate for that investment. The Relative Allocation Percentages 
will be determined by both the full Board and the Required Majority in 
advance and will be based upon the relative total capital of the 
Company and MSMF, on the one hand, and MSC, on the other hand (total 
capital being equal to raised equity plus available debt). The Relative 
Allocation Percentages will be approved each quarter, or as necessary 
or appropriate, between quarters, by both the full Board and the 
Required Majority, and may be adjusted, for subsequent transactions, in 
their sole discretion for any reason, including, among other things, 
changes in the relative aggregate capital of the Company and MSMF vis-
[agrave]-vis the capital of MSC.
    (b) If the Investment Committee, for the Company, and the 
Investment Adviser, for MSMF, deem that each entity's participation in 
the Co-Investment Transaction is appropriate, but that investment 
pursuant to the Relative Allocation Percentages is not appropriate, 
then the Investment Committee, for the Company, and the Investment 
Adviser, for MSMF, will recommend an appropriate level of investment 
for each entity. If the aggregate amount recommended by the Investment 
Committee, for the Company, and the Investment Adviser, for MSMF, to be 
invested in such Co-Investment Transaction, together with the amount 
proposed to be invested by MSC in the same transaction, exceeds the 
amount of the investment opportunity, the amount proposed to be 
invested by each such party will be allocated among them pro rata based 
on the ratio of the Company's and MSMF's total assets, on one hand, and 
MSC's total assets, on the other hand, to the aggregated total assets 
of the three parties, up to the amount proposed to be invested by each. 
The Investment Adviser will provide the Required Majority with 
information concerning MSC's total assets to assist the Required 
Majority with their review of the Company's and MSMF's investments for 
compliance with these allocation procedures. After making the 
determinations required in this paragraph (b), the Investment Committee 
and the Investment Adviser will distribute written information 
concerning the Co-Investment Transaction, including the amount proposed 
to be invested by MSC, to the Independent Directors for their 
consideration. Outside of the Relative Allocation Percentages, the 
Company and MSMF will co-invest with MSC only if, prior to the 
Company's and MSC's participation in the Co-Investment Transaction, a 
Required Majority concludes that:
    (i) The terms of the transaction, including the consideration to be 
paid, are reasonable and fair and do not involve overreaching of the 
Company or its stockholders or MSMF on the part of any person 
concerned;
    (ii) The transaction is consistent with
    (A) The interests of the stockholders of the Company; and
    (B) The Company's investment objectives and strategies (as 
described in the Company's registration statements on Form N-2 and 
other filings made with the Commission by the Company under the 
Securities Act of 1933, as amended (``Securities Act''), reports filed 
by the Company with the Commission under the Securities Exchange Act of 
1934, as amended, and the Company's reports to stockholders);
    (iii) The investment by MSC would not disadvantage the Company or 
MSMF, and participation by the Company and MSMF is not on a basis 
different from or less advantageous than that of MSC; provided, that if 
MSC, but not the Company or MSMF, gains the right to nominate a 
director for election to a portfolio company's board of directors or 
the right to have a board observer or any similar right to participate 
in the governance or management of the portfolio company, such event 
shall not be interpreted to prohibit the Required Majority from 
reaching the conclusions required by this condition (2)(b)(iii), if
    (A) The Required Majority shall have the right to ratify the 
selection of such director or board observer, if any, and
    (B) The Investment Adviser agrees to, and does, provide, periodic 
reports to the Company's Board with respect to the actions of such 
director or the information received by such board observer or obtained 
through the exercise of any similar right to participate in the 
governance or management of the portfolio company; and;
    (iv) The proposed investment by the Company and MSMF will not 
benefit the Investment Adviser or MSC or any affiliated person of 
either of them (other than the Company, MSMF, and MSC), except to the 
extent permitted under sections 17(e) and 57(k) of the Act.
    3. The Company and MSMF have the right to decline to participate in 
any Co-Investment Transaction or to invest less than the amount 
proposed.
    4. Except for follow-on investments made pursuant to condition 7 
below, the Company and MSC will not invest in any portfolio company in 
which MSC or any affiliated person of MSC is an investor.
    5. The Company and MSMF will not participate in any Co-Investment 
Transaction unless the terms, conditions, price, class of securities to 
be purchased, settlement date, and registration rights will be the same 
for the Company and MSMF as for MSC. The grant to MSC, but not the 
Company

[[Page 28178]]

or MSMF, of the right to nominate a director for election to a 
portfolio company's board of directors, the right to have an observer 
on the board of directors or similar rights to participate in the 
governance or management of the portfolio company will not be 
interpreted so as to violate this condition 5, if conditions 
2(c)(iii)(A) and (B) are met.
    6. Any sale, exchange, or other disposition by the Company, MSMF, 
or MSC of an interest in a security that was acquired in a Co-
Investment Transaction or that is an Existing Co-Investment will be 
accomplished pro rata based on the original investment of each 
participant unless the Investment Adviser and/or the Investment 
Committee formulate a recommendation for participation in a disposition 
on a non-pro rata basis and such recommendation is approved by the 
Required Majority on the basis that such non-pro rata disposition is in 
the best interest of the Company and MSMF. The Company, MSMF, and MSC 
will each bear its own expenses in connection with any disposition, and 
the terms and conditions of any disposition will apply equally to all 
participants.
    7. Any ``follow-on investment'' (i.e., an additional investment in 
the same entity) by the Company, MSMF, or MSC, or any exercising of 
warrants or other rights to purchase securities of the issuer in a 
portfolio company whose securities were acquired as an Existing Co-
Investment or in a Co-Investment Transaction will be accomplished pro 
rata based on the original investment of each participant unless the 
Investment Adviser and/or the Investment Committee formulate a 
recommendation for participation in the proposed transaction on a non-
pro rata basis and such recommendation is approved by the Required 
Majority on the basis that such non-pro rata participation is in the 
best interest of the Company and MSMF. The acquisition of follow-on 
investments as permitted by this condition will be subject to the other 
conditions set forth in the application.
    8. The Independent Directors will be provided quarterly for review 
all information concerning (1) all investments made by MSC during the 
preceding quarter and (2) Co-Investment Transactions during the 
preceding quarter, including investments made by MSC which the Company 
and/or MSMF considered but declined to participate in, so that the 
Independent Directors may determine whether the conditions of the order 
have been met. In addition, the Independent Directors will consider at 
least annually the continued appropriateness of the standards 
established for co-investments by the Company and MSMF, including 
whether the use of the standards continues to be in the best interests 
of the Company and its shareholders and does not involve overreaching 
on the part of any person concerned.
    9. The Company and MSMF will maintain the records required by 
section 57(f)(3) of the Act as if each of the investments permitted 
under these conditions were approved by the Independent Directors under 
section 57(f).
    10. No Independent Directors will also be a director, general 
partner or principal, or otherwise an ``affiliated person'' (as defined 
in the Act) of, MSC.
    11. The expenses, if any, associated with acquiring, holding or 
disposing of any securities acquired in a Co-Investment Transaction 
(including, without limitation, the expenses of the distribution of any 
such securities registered for sale under the Securities Act) shall, to 
the extent not payable by the Investment Adviser under its investment 
advisory agreements with MSMF and MSC, be shared by the Company, MSMF, 
and MSC in proportion to the relative amounts of their securities to be 
acquired or disposed of, as the case may be.
    12. Any transaction fee (including break-up or commitment fees but 
excluding broker's fees contemplated by section 17(e)(2) of the Act) 
received in connection with a Co-Investment Transaction will be 
distributed to the Company, MSMF, and MSC on a pro rata basis based on 
the amount they invested or committed, as the case may be, in such Co-
Investment Transaction. MSC or any affiliated person of the Company 
will not receive additional compensation or remuneration of any kind 
(other than (i) the pro rata transaction fees described above and (ii) 
investment advisory fees paid in accordance with investment advisory 
agreements with MSMF and MSC) as a result of or in connection with a 
Co-Investment Transaction.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E8-10802 Filed 5-14-08; 8:45 am]

BILLING CODE 8010-01-P
