threatened to be made a party to a proceeding by reason of his or her service in that capacity, or (b) while a director or officer of FSIC and at FSICs request, serves or has served as
a director, officer, partner, member, manager or trustee of any corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or other enterprise and who is made or threatened to be made a party to a proceeding by
reason of his or her service in such capacity and from and against any claim or liability to which such person may become subject or such person may incur, in each case to the fullest extent permitted by Maryland law and the 1940 Act. The FSIC
Charter and bylaws also permit FSIC to provide such indemnification and advancement for expenses to a person who served a predecessor of FSIC in any of the capacities described in (a) or (b) above and to any employee or agent of FSIC or a
predecessor of FSIC. In accordance with the 1940 Act, FSIC will not indemnify any person for any liability to which such person would be subject by reason of such persons willful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of his or her office.
The Investment Advisory Agreement provides that the Advisor (and
its officers, managers, partners, members (and their members, including the owners of their members), agents, employees, controlling persons and any other person or entity affiliated with, or acting on behalf of, the Advisor) shall be entitled to
indemnification (including reasonable attorneys fees and amounts reasonably paid in settlement) for any liability or loss suffered by the Advisor, and the Advisor shall be held harmless for any loss or liability suffered by FSIC, arising out
of the performance of any of its duties or obligations under the Investment Advisory Agreement or otherwise as FSICs investment adviser; provided, however, that the Advisor cannot be indemnified for any liability arising out of willful
misfeasance, bad faith, or negligence in the performance of the Advisors duties or by reason of the reckless disregard of the Advisors duties and obligations under the Investment Advisory Agreement.
The Administration Agreement provides that the Advisor (and its officers, managers, partners, members (and their members, including the
owners of their members), agents, employees, controlling persons and any other person or entity affiliated with, or acting on behalf of, the Advisor) shall be entitled to indemnification (including reasonable attorneys fees and amounts
reasonably paid in settlement) for any liability or loss suffered by the Advisor, and the Advisor shall be held harmless for any loss or liability suffered by FSIC, arising out of the performance of any of its duties or obligations under the
Administration Agreement or otherwise as FSICs administrator; provided, however, that the Advisor cannot be indemnified for any liability arising out of willful misfeasance, bad faith, or negligence in the performance of the Advisors
duties or by reason of the reckless disregard of the Advisors duties and obligations under the Administration Agreement.
Insofar as indemnification for liability arising under the Securities Act may be permitted to directors, officers and controlling persons
of FSIC pursuant to the foregoing provisions, or otherwise, FSIC has been advised that in the opinion of the SEC 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 FSIC of expenses incurred or paid by a director, officer or controlling person of FSIC 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, FSIC 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.
Item 16. Exhibits.
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(1)
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Second Articles of Amendment and Restatement of the Registrant.
(Incorporated by reference to Exhibit 3.1 to the Registrants Current Report on Form
8-K
filed on April
16, 2014.)
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(1)(a)
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Articles of Amendment to the Second Articles of Amendment and Restatement of FS Investment Corporation
(Incorporated by reference to Exhibit 3.1 of the Registrants Current
Report on
Form 8-K
filed on December 3, 2018)
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E-2