FS KKR Capital Corp. II 8-K


  


 Exhibit 4.1



 


 





 


 


SECOND
AMENDED AND RESTATED DISTRIBUTION REINVESTMENT PLAN OF FS KKR CAPITAL CORP. II


FS
KKR Capital Corp. II, a Maryland corporation (the “Company”), hereby adopts the following plan (the
“Plan”) with respect to cash dividends or distributions (each, a “Distribution”)
declared by its Board of Directors (the “Board of Directors”) on shares of its common stock, par value
$0.001 per share (the “Common Stock”):


1.       


Unless
a stockholder specifically elects to receive cash in accordance with the Plan, all Distributions declared after the effective
date hereof by the Board of Directors shall be payable in shares of Common Stock, and no action shall be required on such stockholder’s
part to receive a Distribution in shares of Common Stock. DST Systems, Inc., the plan administrator and the Company’s transfer
agent and registrar (collectively the “Plan Administrator”), will establish an account for shares of
Common Stock received pursuant to the Plan for each stockholder who has not affirmatively elected to receive Distributions in
cash (each a “Participant”). The Plan Administrator may hold each Participant’s shares of Common
Stock, together with the shares of Common Stock of other Participants in the Plan Administrator’s name or that of its nominee.
Notwithstanding anything herein to the contrary and subject to certain limitations and exceptions, a stockholder who was not a
participant in the Amended and Restated Distribution Reinvestment Plan (effective as of March 26, 2014) may continue to receive
Distributions in cash until such time as such stockholder otherwise notifies the Plan Administrator in accordance with Section
4.


2.       


Such
Distributions shall be payable on such date or dates (each, a “Payment Date”) as may be fixed from time
to time by the Board of Directors to stockholders of record at the close of business on the record date(s) established by the
Board of Directors for such Distribution.


3.       


With
respect to each Distribution pursuant to the Plan, the Company reserves the right to either issue new shares of Common Stock or
purchase shares of Common Stock in the open market for the accounts of Participants in connection with implementation of the Plan.
Unless the Company, in its sole discretion, otherwise directs the Plan Administrator:


(A)       


if
the Market Price (as defined below) is equal to or greater than NAV (as defined below), then the Company shall issue shares of
Common Stock at the greater of (i) NAV or (ii) 95% of the Market Price; or


(B)       


if
the Market Price is less than NAV, then, in the sole discretion of the Company, (i) shares of Common Stock shall be purchased
in open market transactions for the accounts of Participants to the extent practicable, or (ii) the Company shall issue shares
of Common Stock at NAV.


The
number of shares of Common Stock to be issued to a Participant is determined by dividing the total dollar amount of the Distribution
payable to the Participant by the price at which the Company issues such shares of Common Stock pursuant to Section 3.(A)(i),
3.(A)(ii) or 3.(B)(ii), as applicable. Shares of Common Stock purchased in open market transactions pursuant to Section 3.(B)(i)
will be allocated to a Participant based on the average purchase price, excluding any brokerage charges or other charges, of all
shares of Common Stock purchased in the open market with respect to such Distribution. “Market Price”
means the market price per share of the Common Stock at the close of regular trading on the New York Stock Exchange or any
other exchange or inter-dealer quotation system that represents the principal trading market for the shares of Common Stock (the
“Principal Trading Market”) on the Payment Date, or if no sale is reported for such day, the average
of the reported bid and asked prices. “NAV” means the net asset value per share (as estimated in good
faith by the Company and rounded up to the nearest whole cent) of Common Stock on the Payment Date.






     

    	 



    

 


4.       





A
stockholder may, however, affirmatively elect to receive such stockholder’s Distributions in cash. Except as may otherwise
be permitted by the Company in its sole discretion, the election will be effective immediately if such stockholder notifies the
Plan Administrator in writing not less than 10 days prior to the record date fixed by the Board of Directors for the next Distribution;
otherwise, such election will be effective only with respect to any subsequent Distribution. Such election shall remain in effect
until the stockholder shall notify the Plan Administrator in writing of such stockholder’s withdrawal of the election, which
withdrawal will be effective immediately if such stockholder notifies the Plan Administrator in writing not less than 10 days
prior to the record date fixed by the Board of Directors for the next Distribution; otherwise, such withdrawal will be effective
only with respect to any subsequent Distribution.


5.       


The
Plan Administrator will confirm to each Participant each issuance or acquisition made pursuant to the Plan on such Participant’s
behalf as soon as practicable, but not later than 30 days after the date thereof. Although each Participant may from time to time
have a fractional interest (computed to three decimal places) in a share of Common Stock of the Company, no certificates for a
fractional share will be issued. However, Distributions on fractional shares will be credited to each Participant’s account.


6.       


The
Plan Administrator or another agent designated by the Company will forward to each Participant any proxy solicitation materials
related to the Company and each report or other communication of the Company delivered to stockholders, and will vote any shares
of Common Stock held by it under the Plan in accordance with the instructions set forth on proxies returned to the Company by
Participants.


7.       


In
the event that the Company makes available to its stockholders rights to purchase additional shares of Common Stock or other securities,
the shares of Common Stock held by the Plan Administrator for each Participant under the Plan will be added to any other shares
of Common Stock held by the Participant in calculating the number of rights to be issued to the Participant.


8.       


There
will be no brokerage charges or other sales charges on newly-issued shares of Common Stock acquired by a stockholder under the
Plan. The Plan Administrator’s service fee, if any, and expenses for administering the Plan will be paid by the Company.
If a Participant elects by written notice to the Plan Administrator to have the Plan Administrator sell part or all of the shares
of Common Stock held by the Plan Administrator in the Participant’s account and remit the proceeds to the Participant, whether
upon termination of the Plan by the Company, termination by a Participant of such Participant’s account under the Plan or
otherwise, the Plan Administrator shall be authorized to deduct from the proceeds a $20.00 transaction fee for each transaction
requested by a Participant, plus any applicable brokerage commission.


9.       


The
Plan Administrator or applicable brokerage firm will be responsible for generating or providing a Form 1099-DIV or any related
tax forms associated with any Distributions that are reinvested or paid out.


10.       


Each
Participant may terminate such Participant’s account under the Plan by so notifying the Plan Administrator in writing. Such
termination will be effective immediately if the Participant’s notice is received by the Plan Administrator not less than
10 days prior to the record date fixed by the Board of Directors for the next Distribution; otherwise, such termination will be
effective only with respect to any subsequent Distribution. The Plan may be terminated or suspended from time to time by the Company
upon notice in writing mailed to each Participant or by including the notice in a Form 8-K filed with the Securities and Exchange
Commission (the “SEC”), in each case at least 30 days prior to any record date for the payment of any
Distribution by the Company; if such notice is mailed or filed fewer than 30 days prior to such record date, such termination
or suspension will be effective immediately following the Payment Date for such Distribution. During any suspension of the Plan,
all Distributions declared by the Board of Directors shall be payable in cash. The Plan may be reactivated following any suspension
by the Company upon notice of such reactivation in a Form 8-K filed with the SEC. Upon any termination of the Plan by the Company
or by a Participant of such Participant’s account under the Plan, the Plan Administrator will cause whole shares of Common
Stock held for the Participant under the Plan to be credited to the Participant in book-entry form with
the Company’s transfer agent and a cash adjustment for any fractional shares to be paid to the Participant at the market
price per share of Common Stock at the close of regular trading on the Principal Trading Market on the date of such termination.
If no sale is reported on the Principal Trading Market on the date of such termination, then the market price for the purpose
of the payment of the cash adjustment for any fractional shares shall be the average of their electronically-reported bid and
asked prices on the Principal Trading Market on such termination date. The Plan Administrator shall be authorized to deduct a
$20.00 transaction fee, plus any applicable brokerage commission.




     

    	 



    




11.       


These
terms and conditions may be amended or supplemented by the Company at any time but, except when necessary or appropriate to comply
with applicable law or the rules, regulations or policies of the SEC or any other regulatory authority, only by mailing to each
Participant appropriate written notice or by including the amendment or supplement in a current report on Form 8-K filed with
the SEC, in each case at least 30 days prior to the effective date thereof. The amendment or supplement shall be deemed to be
accepted by each Participant unless, prior to the effective date thereof, the Plan Administrator receives written notice of the
termination of such Participant’s account under the Plan. Any such amendment or supplement may include an appointment by
the Plan Administrator in its place and stead of a successor agent under these terms and conditions, with full power and authority
to perform all or any of the acts to be performed by the Plan Administrator under the terms and conditions agreed upon by the
Company. Upon any such appointment of any agent for the purpose of receiving Distributions, the Company shall be authorized to
pay to such successor agent, for each Participant’s account, all Distributions payable on shares of Common Stock held in
the Participant’s name or under the Plan for retention or application by such successor agent as provided in these terms
and conditions.


12.       


The
Plan Administrator will at all times act in good faith and use its best efforts within reasonable limits to ensure its full and
timely performance of all services to be performed by it under the Plan and to comply with applicable law, but assumes no responsibility
and shall not be liable for loss or damage due to errors unless such error is caused by the Plan Administrator’s negligence,
bad faith, or willful misconduct or that of its employees or agents.


13.       


These
terms and conditions of the Plan shall be governed by and construed in accordance with the laws of the State of Maryland, without
regard to any conflict of laws principals or rules thereof, to the extent such principals would require or permit the application
of the laws of another jurisdiction, and the Investment Company Act of 1940, as amended (the “1940 Act”).
In the event of a conflict, the applicable provisions of the 1940 Act shall control.


Effective
Date: June 17, 2020