Securities Exchange Act of 1934
October 8, 2015
Response of the Office of Chief Counsel
Division of Corporation Finance
Carlyle GMS Finance, Inc.
Incoming letter dated August 5, 2015
Based on the facts presented, the Division’s view is as follows. Capitalized terms have the same meanings defined in your letter.
For a business development company, a plan sponsored by its investment adviser that offers plan participants equity securities of the business development company is “an employee benefit plan sponsored by the issuer” for purposes of applying Exchange Act Rule 16b-3.
The approvals of the shareholders, the board of directors, or a committee of directors composed solely of two or more Non-Employee Directors, that are conditions for the exemptions applicable to acquisitions from the issuer provided by the Exchange Act Rules 16b-3(d)(1) and 16b-3(d)(2) and dispositions to the issuer provided by Exchange Act Rule 16b-3(e), would be satisfied only by the approval of the shareholders, the board of directors, or a committee of two or more Non-Employee Directors (as defined in Exchange Act Rule 16b-3(b)(3)(ii)) of the business development company whose equity securities are acquired or disposed.
Persons who are directors of the issuer business development company, as defined in Investment Company Act Section 2(a)(12), would be eligible for the Rule 16b-3 exemption as directors.
- Persons who are officers of the issuer business development company, applying the Exchange Act Rule 16a-1(f) definition of “officer,” would be eligible for the Rule 16b-3 exemption as officers.
This position is based on the representations made to the Division in your letter. Different facts or conditions might require different conclusions.
 Exchange Act Rule 16b-3(b)(3)(ii) defines a Non-Employee Director of a closed-end investment company to mean “a director who is not an ‘interested person’ of the issuer, as that term is defined in Section 2(a)(19) of the Investment Company Act of 1940.”
The Incoming Letter is in Acrobat format.