As filed with the Securities and Exchange Commission on November 10, 2016
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
FBR & Co.
(Exact Name of Registrant as Specified in Its Charter)
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Virginia
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20-5164223
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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1300 North Seventeenth Street
Arlington, VA 22209
(703) 312-9500
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Gavin A.
Beske
Senior Vice President and General Counsel
1300 North Seventeenth Street
Arlington, VA 22209
(703) 312-9568
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Approximate
date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following
box. ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D.
filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Securities Exchange Act of 1934. (Check one):
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Large accelerated filer
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☐
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Accelerated filer
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☒
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Non-accelerated filer
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☐ (Do not check if a smaller reporting company)
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Smaller reporting company
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☐
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of
Securities to be Registered
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Amount
to be
Registered(1)
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Proposed
Maximum
Offering Price
Per Share
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration Fee
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Common Stock, par value $0.001 per share
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(4)
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(4)
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Preferred Stock, par value $0.001 per share
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(4)
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(4)
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Depositary Shares (2)
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(4)
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(4)
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Debt Securities
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(4)
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(4)
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Units (3)
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(4)
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(4)
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Warrants
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(4)
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(4)
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Stock Purchase Contracts
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(4)
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(4)
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Total
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$200,000,000(6)
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$23,180 (7)
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(1)
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We are registering such indeterminate number of principal amount and number of each identified class of our securities as we may offer and sell from time to time, which will have an aggregate initial offering price not
to exceed $200,000,000.
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(2)
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Such indeterminate number of Depositary Shares to be evidenced by depositary receipts issued pursuant to a deposit agreement and representing a fraction of a share of certain securities registered hereunder.
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(3)
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Any securities registered hereunder may be sold as units with other securities registered hereunder; each unit will be issued under a unit agreement and will represent an interest in two or more securities, which may or
may not be separable from one another.
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(4)
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Omitted pursuant to General Instruction II.D of Form S-3 under the Securities Act. The proposed maximum aggregate offering price per class of security will be determined from time to time by the registrant in connection
with the issuance of the securities registered hereunder.
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(5)
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Includes an unspecified number of securities that may be offered or sold by affiliates of FBR & Co. in market-making transactions.
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(6)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act at a rate equal to $115.90 per $1,000,000 of the proposed maximum aggregate offering price.
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(7)
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In accordance with Rule 457(p) under the Securities Act, FBR & Co. is carrying over $23,180 of unutilized registration fees relating to $200,000,000 aggregate offering price of unsold securities of
FBR & Co. that were registered under Registration Statement No. 333-192336 filed on November 14, 2013. Pursuant to Rule 457(p) under the Securities Act, such unutilized registration fees may be applied to the registration fees
payable pursuant to this registration statement. Accordingly, no additional registration fees are due and payable concurrently with the filing of this registration statement.
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The Registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on
such date as the Commission, acting pursuant to said Section 8(a), shall determine.
The information in this prospectus is not complete and may be changed. These securities may
not be sold until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell nor does it seek an offer to buy these securities in any jurisdiction where the offer or sale is not
permitted.
Subject to
completion, dated November 10, 2016
PROSPECTUS
FBR & Co.
COMMON STOCK
PREFERRED
STOCK
DEPOSITARY SHARES
DEBT SECURITIES
UNITS
WARRANTS
STOCK
PURCHASE CONTRACTS
FBR & Co. (which may be referred to as “we,” “us,” “our” or the “Issuer”) may offer and sell
from time to time common stock, preferred stock, depositary shares, debt securities (including debt securities that may be convertible or exchangeable for common stock), units, warrants and stock purchase contracts having an aggregate initial
offering price not exceeding $200,000,000. Our common stock, preferred stock, depositary shares, debt securities, units, warrants and stock purchase contracts may be offered separately or together, in multiple series, in amounts, at prices and on
terms that will be set forth in one or more prospectus supplements to this prospectus.
The specific terms and manner of offering of the
securities will be described in a supplement to this prospectus. The prospectus supplement may also add, update, or change information contained in this prospectus. You should read this prospectus and the related prospectus supplement carefully
before you invest in our securities. This prospectus may not be used to consummate sales of shares of securities unless accompanied by a prospectus supplement.
Our common stock is listed and traded on the NASDAQ Global Select Market under the symbol “FBRC.” The aggregate market value of our
common stock held by non-affiliates is approximately $66.3 million based on the closing price of such common stock on the NASDAQ Global Select Market of $13.90 per share on October 31, 2016. We have not offered any of our securities pursuant to
General Instruction 1.B.6 of Form S-3 during the 12 calendar months prior to and including the date of this prospectus.
Investing in our common
stock involves risks. See “
Risk Factors
” beginning on page 4 of this prospectus and the risk factors that are incorporated into this prospectus by reference to our Annual Report on Form
10-K
for the fiscal year ended December 31, 2015 and our other periodic reports and other information that we file with the Securities and Exchange Commission before you invest in our securities.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of
this prospectus is , 2016.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission (the “SEC”) using a
“shelf” registration or continuous offering process. Under this shelf process, we may from time to time sell our securities in one or more offerings.
This prospectus provides you with information you should know before making a decision to purchase our securities. Each time we sell
securities under this prospectus we will provide a prospectus supplement containing specific information about the terms of the securities being offered. The prospectus supplement may include a discussion of any risk factors or other special
considerations that apply to those securities. The prospectus supplement may also add, update, or change the information in this prospectus. If there is any inconsistency between the information in this prospectus and the applicable prospectus
supplement, you should rely on the information in that prospectus supplement. You should read both this prospectus and the applicable prospectus supplement together with additional information described under the headings “Where You Can Find
More Information” and “Information Incorporated by Reference.”
The registration statement containing this prospectus,
including exhibits to the registration statement, provides additional information about us and the securities offered under this prospectus. The registration statement can be read at the SEC website or at the SEC offices mentioned under the heading
“Where You Can Find More Information.”
We have not authorized any person to provide any information or represent anything about
us other than what is contained or incorporated by reference in this prospectus or the applicable prospectus supplement prepared by or on behalf of us or to which we have referred you. We do not take any responsibility for, and can provide no
assurance as to the reliability of, information that others may provide you. This prospectus may only be used to sell our securities if it is accompanied by a prospectus supplement which includes the specific terms of that offering. Such shares of
our securities are only being offered for sale in jurisdictions where the offer is permitted. You should not assume that the information in this prospectus or the applicable prospectus supplement is accurate as of any date other than the dates on
the front of those documents.
The prospectus supplement will contain the names of the underwriters, dealers, or agents, if any, together
with the terms of offering, the compensation of those underwriters, dealers, or agents, and the net proceeds of the offering. Any underwriters, dealers, or agents participating in the offering may be deemed “underwriters” within the
meaning of the Securities Act.
1
FORWARD-LOOKING STATEMENTS
This prospectus and any accompanying prospectus supplement contains, or will contain, or incorporates, or will incorporate, by reference
forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Forward-looking statements are predictive in
nature and can be identified by the use of forward-looking words such as “anticipate,” “believe,” “could,” “estimate,” “expect,” “intend,” “may,” “plan,”
“goal,” “objective,” “potential,” “project,” “should,” “will” and “would” or the negative of these terms or other comparable terminology. Statements concerning projections, future
performance developments, events, revenues, expenses, earnings, run rates, and any other guidance on present or future periods constitute forward-looking statements. Such statements include, but are not limited to, those relating to the effects of
growth, our principal investing activities, levels of assets under management and our current equity capital levels. Forward-looking statements involve risks and uncertainties. You should be aware that a number of important factors could cause our
actual results to differ materially from those in our forward-looking statements. These factors include, but are not limited to:
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the risks identified under the section captioned “Risk Factors” in our Annual Report on Form 10-K for the year ended December 31, 2015;
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volatility of the capital markets and in economic conditions generally;
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deterioration in the business environment in the specific sectors of the economy in which we focus or a decline in the market for securities of companies within these sectors;
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substantial fluctuations in our financial results;
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our ability to retain our senior professionals;
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pricing and other competitive pressures;
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changes in laws and regulations and industry practices that adversely affect our business;
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incurrence of losses in the future;
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the singular nature of our capital markets and strategic advisory engagements;
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competition among financial services firms for business and personnel;
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larger and more frequent capital commitments in our trading and underwriting businesses;
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limitations on our access to capital;
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malfunctioning or failure in our operations and infrastructure;
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our entry into new business areas, including entry through strategic investments, acquisitions and joint ventures;
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failure to achieve and maintain effective internal controls;
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declines in the market value and/or net asset value of our principal investments;
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the loss of our exemption from registration as an investment company under the Investment Company Act of 1940, as amended;
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the overall environment for interest rates;
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changes in our business strategy; and
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availability, terms and deployment of capital.
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We encourage you to understand forward-looking
statements to be strategic objectives rather than absolute forecasts of future performance. Forward-looking statements speak only as of the date they are made and are inherently subject to uncertainties, risks and changes in circumstances that are
difficult to predict. We are not under any obligation and do not intend to publicly update or review any of these forward-looking statements, whether as a result of new information, future events or otherwise, even if experience or future events
make it clear that any expected results expressed or implied by those forward-looking statements will not be realized. Please carefully review and consider the various disclosures made in this document, in the accompanying prospectus and in our
other reports filed with the SEC for more information about the risks and other factors that may affect our business, results of operations, financial condition or prospects.
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FBR & CO.
We are a full-service investment banking and institutional brokerage firm with a deep expertise and focus on the equity capital markets. Since
the founding of certain predecessor companies, we have grown from a boutique investment bank with primary expertise in financial institutions into a full-service U.S. investment bank for middle-market companies.
Through our broker-dealer operating subsidiaries, we have focused our business on providing:
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capital raising services, including underwriting and placement of public and private equity, equity-linked and debt;
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financial advisory services, including merger and acquisition (“M&A”) advisory, restructuring, liability management, recapitalization and strategic alternative analysis;
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institutional sales and trading services focused on equities, equity-linked securities, listed options, high-yield bonds, senior debt and bank loans, as well as securities lending activities; and
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Differentiated securities research focused on the core issues driving performance of our covered companies and industry sectors.
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We focus our capital markets business (investment banking and institutional brokerage) in the following industry sectors—consumer,
energy and natural resources, financial institutions, healthcare, industrials, insurance, real estate, and technology, media and telecommunications. Approximately 70% of the companies included in the S&P 500 Index conduct business in the
industry sectors in which we focus. We also make principal investments, including merchant banking investments, with our own capital.
In
June 2007 we became a publicly-traded company listed on The NASDAQ Global Select Market
SM
(NASDAQ: FBRC). We are a Virginia corporation formed in June 2006 and headquartered in Arlington, Virginia
and also have offices in Boston, Dallas, Houston, Los Angeles, New York and San Francisco. The address of our principal executive offices is 1300 North Seventeenth Street, Arlington, Virginia 22209. Our telephone number is (703) 312-9500.
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RISK FACTORS
An investment in our securities involves a high degree of risk. Prior to making any investment decision, prospective investors should
carefully consider the specific factors set forth under the caption “Risk Factors” in the applicable prospectus supplement and in our periodic reports filed with the SEC that are incorporated by reference herein, together with all of the
other information appearing in this prospectus or in the applicable prospectus supplement or incorporated by reference into this prospectus in light of their particular investment objectives and financial circumstances, including our Annual Report
on Form 10-K for the fiscal year ended December 31, 2015. The risks and uncertainties described in the prospectus supplement and the documents we incorporate by reference into this prospectus are not the only ones we face. Additional risks and
uncertainties that we are unaware of or that we believe are not material at the time could also materially adversely affect our business, financial condition or results of operations. In any case, the value of our securities could decline, and you
could lose all or part of your investment. See also the information contained under the heading “Forward-Looking Statements.”
4
RATIO OF EARNINGS TO FIXED CHARGES
Our consolidated ratios of earnings to fixed charges for the last five fiscal years, and for the latest interim period for which financial
statements are presented in this document, are indicated below. We have not presented a ratio of earnings to fixed charges and preferred stock dividends because we did not have preferred stock outstanding as of the date of this prospectus. The
following table should be read in conjunction with our consolidated financial statements and related notes and Management’s Discussion and Analysis of Financial Condition and Results of Operations included in our Annual Report on Form 10-K for
the fiscal year ended December 31, 2015, and our Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2016, June 30, 2016 and September 30, 2016, each of which is incorporated by reference herein.
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Nine Months
Ended
September 30,
2016
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Year Ended December 31,
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2015
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2014
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2013
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2012
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2011
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Ratio of Earnings to Fixed Charges
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1.8
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33.1
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2.4
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*
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Earnings for the nine months ended September 30, 2016 and for the years ended December 31, 2015 and 2011 were inadequate to cover all fixed charges. For the nine months ended September 30, 2016 and for
the years ended December 31, 2015 and 2011, the coverage deficiency was $32,908, $15,758 and $51,328, respectively (dollars in thousands).
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5
USE OF PROCEEDS
Unless the applicable prospectus supplement states otherwise, we anticipate using the net proceeds from the sale of our securities will be
added to our general funds and will be available for general corporate purposes, including, among other things:
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the repayment of existing indebtedness;
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the repurchase of our common stock;
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investments in, or extensions of credit to, our existing or future subsidiaries; and
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the financing of possible acquisitions.
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Pending such use, we may temporarily invest the net
proceeds in short-term securities or reduce our short-term indebtedness.
Based upon our historical and anticipated future growth and our
financial needs, we may engage in additional financings of a character and amount that we determine as the need arises.
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DESCRIPTION OF CAPITAL STOCK
The rights of our stockholders are governed by the Virginia Stock Corporation Act (the “VSCA”), our amended and restated articles of
incorporation, as amended (our “articles of incorporation”), and our amended and restated bylaws (our “bylaws”). The following is a summary of the material provisions of our capital stock and certain provisions of the VSCA. You
should refer to the full text of our articles of incorporation and bylaws filed as exhibits to the registration statement of which this prospectus is a part. See “Where You Can Find More Information.”
General
Our articles of incorporation
provide that we may issue up to 400,000,000 shares of capital stock, consisting of 300,000,000 shares of common stock, $0.001 par value per share, and 100,000,000 shares of preferred stock, $0.001 par value per share. As of September 30, 2016,
6,907,402 shares of our common stock are issued and outstanding and no shares of preferred stock are issued and outstanding. Under the VSCA, our shareholders generally are not personally liable for our debts and obligations solely as a result of
their status as shareholders.
Common Stock
Voting Rights
Holders of our
common stock are entitled to one vote per share on all matters to be voted upon by our shareholders. Except as otherwise provided by law, holders of our common stock vote together as a single voting group. Our articles of incorporation do not
provide for cumulative voting for the election of directors, which means that the holders of a majority of our outstanding shares of common stock have the ability to elect all of the members of our board of directors. Except as otherwise required by
law or with respect to any outstanding class or series of our preferred stock, the holders of our common stock have the sole power to vote for the election of directors and for all other purposes.
Dividend Rights
Subject to the
VSCA and any preferential dividend rights of holders of our preferred stock that may be outstanding, the holders of our common stock are entitled to share ratably on a per share basis in dividends and other distributions, as may be declared by our
board of directors out of assets legally available for distribution, when, as and if authorized and declared by our board of directors.
Other
Rights
Subject to any preferential liquidation rights of holders of our preferred stock that may be outstanding, the holders of
our common stock are entitled to participate ratably on a per share basis in our liquidation, dissolution or winding-up. Shares of our common stock have no preemptive or conversion rights or other subscription rights. There are no redemption or
sinking fund provisions applicable to our common stock.
Preferred Stock and Depositary Shares
Our articles of incorporation authorize our board of directors to designate and issue from time to time one or more series of preferred stock
without shareholder approval. Our board of directors may fix and determine the preferences, limitations and relative rights of each series of preferred stock issued. Because the board of directors has the power to establish the preferences and
rights of each series of our preferred stock, it may afford the holders of any series of our preferred stock preferences and rights, voting or otherwise, senior to the rights of holders of our common stock. It is not possible to state the actual
effect of the issuance of any shares of our preferred stock upon the rights of holders of our common stock until our board of directors determines the specific rights of the holders of our preferred stock. However, the effects might include:
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restricting dividends on our common stock;
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diluting the voting power of our common stock;
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impairing the liquidation rights of our common stock; or
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delaying or preventing a change in control of us without further action by our shareholders.
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If we issue and offer for sale shares of our preferred stock, we will describe in a prospectus supplement the specific designation, the
aggregate number of shares offered, the dividend rate or manner of calculating the dividend rate, the dividend periods or manner of calculating the dividend periods, the ranking of the shares of the series with respect to dividends, liquidation and
dissolution, the stated value of the shares of the series, the voting rights of the shares of the series, if any, whether and on what terms the shares of the series will be convertible or exchangeable, whether and on what terms we can redeem the
shares of the series, whether we will offer depositary shares representing shares of the series and if so, the fraction or multiple of a share of preferred stock represented by each depositary share, whether we will list the preferred stock or
depositary shares on a securities exchange and any other specific terms of the series of preferred stock.
7
Certain Anti-Takeover Provisions of the VSCA, Our Articles of Incorporation and Our Bylaws
General
The VSCA contains
provisions that may have the effect of impeding the acquisition of control of a Virginia corporation by means of a tender offer, a proxy contest, open market purchases or otherwise in a transaction not approved by the corporation’s board of
directors. These provisions are designed to reduce, or have the effect of reducing, the corporation’s vulnerability to coercive takeover practices and inadequate takeover bids.
Affiliated Transactions Statute
Pursuant to a provision in our articles of incorporation, we have opted out of the affiliated transactions provisions contained in the VSCA. In
general, these provisions prohibit a Virginia corporation from engaging in affiliated transactions with the beneficial owner of more than 10% of any class of its outstanding voting shares (an “interested shareholder”) for a period of three
years following the date that such person became an interested shareholder unless:
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a majority (but not less than two) of the disinterested directors of the corporation and the holders of two-thirds of the voting shares, other than the shares beneficially owned by the interested shareholder, approve
the affiliated transaction; or
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Before or contemporaneously with the date the person became an interested shareholder, a majority of disinterested directors approved the transaction that resulted in the shareholder becoming an interested shareholder.
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Affiliated transactions subject to this approval requirement include mergers, share exchanges, certain dispositions of
corporate assets not in the ordinary course of business, any dissolution of the corporation proposed by or on behalf of an interested shareholder or any reclassification, including reverse stock splits, recapitalizations or mergers of the
corporation with its subsidiaries, which increases the percentage of voting shares owned beneficially by an interested shareholder by more than 5%.
Control Share Acquisitions
Our
board of directors has adopted a bylaw opting out of the control share acquisition provisions of the VSCA. Control share acquisitions are transactions causing the voting power of any person acquiring beneficial ownership of shares of a Virginia
public corporation to meet or exceed certain threshold percentages (20%, 33 1/3% or 50%) of the total votes entitled to be cast for the election of directors. The VSCA provides that shares acquired in a control share acquisition have no voting
rights unless:
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the voting rights are granted by a majority vote of all outstanding shares other than those held by the acquiring person or any officer or employee director of the corporation; or
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At the time of such control share acquisition, the articles of incorporation or bylaws of the corporation provide that these provisions of the VSCA do not apply to acquisitions of its shares.
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The acquiring person may require that a special meeting of the shareholders be held within 50 days of the acquiring person’s request to
consider the grant of voting rights to the shares acquired in the control share acquisition. If voting rights are not granted and the corporation’s articles of incorporation or bylaws permit, the acquiring person’s shares may be
repurchased by the corporation, at its option, at a price per share equal to the acquiring person’s cost. The VSCA grants appraisal rights to any shareholder who objects to a control share acquisition that is approved by a vote of disinterested
shareholders and that gives the acquiring person control of a majority of the corporation’s voting shares.
Articles of Incorporation and Bylaw
Provisions
Number of Directors, Vacancies and Removal
. Our articles of incorporation provide that the number of directors shall be
determined in accordance with our bylaws or, in the absence of a bylaw fixing the number of directors, the number will be nine. Our bylaws provide that the number of directors on our board of directors will be eight. Our board of directors may amend
our bylaws to increase or decrease the number of directors on our board last elected by our shareholders.
Our bylaws provide that any
vacancies on the board of directors, including vacancies resulting from an increase in the number of directors, may be filled by the affirmative vote of a majority of the remaining directors, though the number of remaining directors may be less than
a quorum. Our articles of incorporation provide that directors may be removed with or without cause upon the affirmative vote of the holders of a majority of the voting power of all of the outstanding shares of our capital stock entitled to vote
generally in the election of directors, voting together as a single group.
Shareholder Meetings
. Our articles of incorporation and our bylaws
provide that our chairman of the board, any vice chairman of our board, our chief executive officer, our president, a majority of our board of directors or the holders of a majority of our outstanding shares of common stock may call a special
meeting of shareholders. Our articles of incorporation provide that the right of the holders of a majority of our outstanding shares of common stock to call a special meeting of our shareholders may only be amended, altered, modified or repealed
upon the affirmative vote of the holders of at least a majority of the voting power of all of the outstanding shares of our capital stock entitled to vote generally in the election of directors, voting together as a single group.
8
Advance Notice of Nominations and Shareholder Business
. Our bylaws establish advance notice procedures
with respect to shareholder proposals and the nomination of persons for election as directors at meetings of our shareholders, other than nominations made by or at the direction of the board of directors.
Preferred Stock
. Our articles of incorporation authorize our board of directors to establish one or more series of preferred stock and to determine,
with respect to any series of preferred stock, the preferences, rights and other terms of such series. Under this authority, our board of directors could create and issue a series of preferred stock with rights, preferences or restrictions that have
the effect of discriminating against an existing or prospective holder of our capital stock as a result of such holder beneficially owning or commencing a tender offer for a substantial amount of our common stock. One of the effects of authorized
but unissued and unreserved shares of preferred stock may be to render it more difficult for, or discourage an attempt by, a potential acquiror to obtain control of us by means of a merger, tender offer, proxy contest or otherwise, and thereby
protect the continuity of our management. The issuance of shares of preferred stock may have the effect of delaying, deferring or preventing a change in control of our company without any action by our stockholders.
Transfer Agent and Registrar
The
transfer agent and registrar for our common stock is American Stock Transfer & Trust Company, LLC.
9
DESCRIPTION OF DEBT SECURITIES
The following description, together with the additional information we may include in any applicable prospectus supplement, summarizes the
material terms and provisions of the debt securities that we may offer under this prospectus. While the terms summarized below will apply generally to any debt securities that we may offer, we will describe the particular terms of any debt
securities in more detail in the applicable prospectus supplement. The terms of any debt securities offered under a prospectus supplement may differ from the terms described below.
We have filed, as an exhibit to the registration statement of which this prospectus is a part, the form of indenture pursuant to which the
debt securities will be issued and will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, a form of debt security that describes the terms of
the particular debt securities we are offering before the issuance of the related debt securities. We may issue debt securities from time to time in one or more distinct series. The debt securities may be senior debt securities or subordinated debt
securities. Senior debt securities may be issued under a senior indenture and subordinated debt securities may be issued under a subordinated indenture. If we issue debt securities pursuant to an indenture, we will specify the trustee under such
indenture in the applicable prospectus supplement. We will include in a supplement to this prospectus the specific terms of debt securities being offered, including the terms, if any, on which debt securities may be convertible into or exchangeable
for common stock or other debt securities. The statements and descriptions in this prospectus or in any prospectus supplement regarding provisions of debt securities and any indentures are summaries of those provisions, do not purport to be complete
and are subject to, and are qualified in their entirety by reference to, all of the provisions of the debt securities and the indentures (including any amendments or supplements we may enter into from time to time which are permitted under the debt
securities or any indenture).
The applicable prospectus supplement will set forth the terms of the debt securities or any series thereof,
including, if applicable:
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the title of the debt securities and whether the debt securities will be unsubordinated debt securities or subordinated debt securities;
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any limit upon the aggregate principal amount of the debt securities;
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the date or dates on which the principal amount of the debt securities will mature;
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if the debt securities bear interest, the rate or rates at which the debt securities bear interest, or the method for determining the interest rate, and the date or dates from which interest will accrue;
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if the debt securities bear interest, the dates on which interest will be payable, or the method for determining such dates, and the regular record dates for interest payments;
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the place or places where the payment of principal, any premium and interest will be made, where the debt securities may be surrendered for transfer or exchange and where notices or demands to or upon us may be served;
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any optional redemption provisions, which would allow us to redeem the debt securities in whole or in part;
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any sinking fund or other provisions that would obligate us to redeem, repay or purchase the debt securities;
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if the currency in which the debt securities will be issuable is United States dollars, the denominations in which any registered securities will be issuable, if other than denominations of $2,000 and integral multiples
of $1,000 in excess thereof;
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if other than the entire principal amount, the portion of the principal amount of debt securities which will be payable upon a declaration of acceleration of the maturity of the debt securities;
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the events of default and covenants relevant to the debt securities, including, the inapplicability of any event of default or covenant set forth in the indenture relating to the debt securities, or the applicability of
any other events of defaults or covenants in addition to the events of default or covenants set forth in the indenture relating to the debt securities;
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the name and location of the corporate trust office of the applicable trustee under the indenture for such debt securities;
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if other than United States dollars, the currency in which the debt securities will be paid or denominated;
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if the debt securities are to be payable, at our election or the election of a holder of the debt securities, in a currency other than that in which the debt securities are denominated or stated to be payable, the terms
and conditions upon which that election may be made, and the time and manner of determining the exchange rate between the currency in which the debt securities are denominated or stated to be payable and the currency in which the debt securities are
to be so payable;
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the designation of the original currency determination agent, if any;
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if the debt securities are issuable as indexed securities, the manner in which the amount of payments of principal, any premium and interest will be determined;
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if the debt securities do not bear interest, the dates on which we will furnish to the applicable trustee the names and addresses of the holders of the debt securities;
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any provisions for the satisfaction and discharge or defeasance or covenant defeasance of the indenture under which the debt securities are issued;
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the date as of which any bearer securities and any global security will be dated if other than the date of original issuance of the first debt security of a particular series to be issued;
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whether and under what circumstances we will pay additional amounts to non-United States holders in respect of any tax assessment or government charge;
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whether the debt securities will be issued in whole or in part in the form of a global security or securities and, in that case, any depositary and global exchange agent for the global security or securities, whether
the global form shall be permanent or temporary;
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if debt securities are to be issuable initially in the form of a temporary global security, the circumstances under which the temporary global security can be exchanged for definitive debt securities and whether the
definitive debt securities will be registered securities and provisions relating to the payment of interest in respect of any portion of a global security payable in respect of an interest payment date prior to the exchange date;
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the extent and manner to which payment on or in respect of debt securities will be subordinated to the prior payment of our other liabilities and obligations;
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whether payment of any amount due under the debt securities will be guaranteed by one or more guarantors, including one or more of our subsidiaries;
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whether the debt securities will be secured or unsecured;
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whether the debt securities will be convertible and the terms of any conversion provisions;
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the forms of the debt securities;
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a discussion of any material United States federal income tax consequences of owning and disposing of the debt securities; and
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any other terms of the debt securities, which terms shall not be inconsistent with the requirements of the Trust Indenture Act of 1939, as amended.
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Unless indicated in a prospectus supplement, we may issue additional debt securities of a particular series without the consent of the holders
of the debt securities of such series outstanding at the time of the issuance. Any such additional debt securities, together with all other outstanding debt securities of that series, will constitute a single series of debt securities under the
applicable indenture. We intend to disclose any restrictive covenants for any issuance or series of debt securities in the applicable prospectus supplement.
11
DESCRIPTION OF UNITS
We may sell any combination of one or more of the other securities described in this prospectus, together as units. In a prospectus
supplement, we will describe the particular combination of securities constituting any units and any other specific terms of the units.
12
DESCRIPTION OF WARRANTS
The following description, together with the additional information we may include in any applicable prospectus supplement, summarizes the
material terms and provisions of the warrants that we may offer under this prospectus and the related warrant agreements and warrant certificates. While the terms summarized below will apply generally to any warrants that we may offer, we will
describe the particular terms of any series of warrants in more detail in the applicable prospectus supplement. The terms of any warrants offered under a prospectus supplement may differ from the terms described below.
We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that
we file with the SEC, the form of warrant agreement, including a form of warrant certificate, that describes the terms of the particular warrants we are offering before the issuance of the related warrants. The following summaries of material
provisions of the warrants and the warrant agreements are subject to, and qualified in their entirety by reference to, all the provisions of the warrant agreement and warrant certificate applicable to the warrants that we may offer under this
prospectus. We urge you to read the applicable prospectus supplements related to the warrants that we may offer under this prospectus, as well as any related free writing prospectuses, and the complete warrant agreements and warrant certificates
that contain the terms of the warrants.
General
We may issue warrants for the purchase of our securities in one or more series. We may issue warrants independently or together with other
securities, and the warrants may be attached to or separate from these securities. We may evidence each series of warrants by warrant certificates that we will issue under a separate agreement. We may enter into a warrant agreement with a warrant
agent. We will indicate the name and address and other information regarding the warrant agent in the applicable prospectus supplement relating to a particular series of warrants.
If we decide to issue warrants pursuant to this prospectus, we will specify in a prospectus supplement the terms of the warrants, including,
if applicable, the following:
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the offering price and aggregate number of warrants offered;
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the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each such security or each principal amount of such security;
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the date on and after which the warrants and the related securities will be separately transferable;
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the number of securities purchasable upon the exercise of one warrant and the price at which these securities may be purchased upon such exercise;
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the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreement and the warrants;
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the terms of any rights to redeem or call the warrants;
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any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants;
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the dates on which the right to exercise the warrants will commence and expire;
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the manner in which the warrant agreement and warrants may be modified;
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a discussion of any material U.S. federal income tax considerations of owning or exercising the warrants;
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the terms of the securities issuable upon exercise of the warrants; and
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any other specific terms, preferences, rights or limitations of or restrictions on the warrants.
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Before exercising their warrants, holders of warrants may have no rights of holders of the securities purchasable upon such exercise,
including, in the case of warrants to purchase our common stock, the right to receive dividends, if any, or payments upon our liquidation, dissolution or winding up or to exercise voting rights, if any.
Exercise of Warrants
Each warrant will
entitle the holder to purchase our securities at the exercise price that we describe in the applicable prospectus supplement. Holders of the warrants may exercise the warrants at any time up to the specified time on the expiration date that we set
forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will become void.
Holders of the warrants may exercise the warrants by delivering the warrant certificate representing the warrants to be exercised together
with specified information, and paying the required amount to the warrant agent in immediately available funds, as provided in the applicable prospectus supplement. If we so indicate in the applicable prospectus supplement, the warrants may also
provide that they may be exercised on a “cashless” or net basis. We will set forth on the reverse side of the warrant certificate, if applicable, and in the applicable prospectus supplement the information that the holder of the warrant
will be required to deliver to us or a warrant agent in order to exercise a warrant.
13
Upon receipt of the required payment and the warrant certificate properly completed and duly
executed at our offices, the corporate trust office of a warrant agent or any other office indicated in the applicable prospectus supplement, we will issue and deliver the securities purchasable upon such exercise. If fewer than all of the warrants
represented by the warrant certificate are exercised, then we will issue a new warrant certificate for the remaining amount of warrants. If we so indicate in the applicable prospectus supplement, holders of the warrants may surrender our securities
as all or part of the exercise price for warrants.
Enforceability of Rights by Holders of Warrants
Any warrant agent will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship of
agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants. A warrant agent will have no duty or responsibility in case of any default by us under the applicable
warrant agreement or warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may, without the consent of the related warrant agent or the holder of any
other warrant, enforce by appropriate legal action its right to exercise, and receive the securities purchasable upon exercise of, its warrants.
14
DESCRIPTION OF STOCK PURCHASE CONTRACTS
The following description, together with the additional information that we include in any applicable prospectus supplement, summarizes the
material terms and provisions of the stock purchase contracts that we may offer under this prospectus. While the terms we have summarized below will apply generally to any stock purchase contracts that we may offer under this prospectus, we will
describe the particular terms of any series of stock purchase contracts in more detail in the applicable prospectus supplement. The terms of any stock purchase contracts offered under a prospectus supplement may differ from the terms described
below.
We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from
reports that we file with the SEC, the form of stock purchase contract that describes the terms of the particular stock purchase contract we are offering before the issuance of the related stock purchase contract. The following summaries of material
provisions of the stock purchase contracts are subject to, and qualified in their entirety by reference to, all the provisions of the stock purchase contracts applicable to the stock purchase contracts that we may offer under this prospectus. We
urge you to read the applicable prospectus supplements related to the stock purchase contracts that we may offer under this prospectus and the complete stock purchase contracts that contain the terms of the stock purchase contracts.
We may issue stock purchase contracts, including contracts obligating holders to purchase from us and us to sell to the holders, a specified
number of securities at a future date or dates. Alternatively, the stock purchase contracts may obligate us to purchase from holders, and obligate holders to sell to us, a specified or varying number of securities. The consideration per security may
be fixed at the time the stock purchase contracts are issued or may be determined by a specific reference to a formula set forth in the stock purchase contracts. The stock purchase contracts may provide for settlement by delivery by us or on our
behalf of shares of the underlying security, or they may provide for settlement by reference or linkage to the value, performance or trading price of the underlying security. The stock purchase contracts may require us to make periodic payments to
the holders of certain of our securities or vice versa, and such payments may be unsecured or prefunded on some basis and may be paid on a current or on a deferred basis. The stock purchase contracts may require holders to secure their obligations
thereunder in a specified manner and may provide for the prepayment of all or part of the consideration payable by holders in connection with the purchase of the underlying security or other property pursuant to the stock purchase contracts.
The securities related to the stock purchase contracts may be pledged to a collateral agent for our benefit pursuant to a pledge agreement to
secure the obligations of holders of stock purchase contracts to purchase the underlying security or property under the related stock purchase contracts. The rights of holders of stock purchase contracts to the related pledged securities will be
subject to our security interest therein created by the pledge agreement. No holder of stock purchase contracts will be permitted to withdraw the pledged securities related to such stock purchase contracts from the pledge arrangement.
15
PLAN OF DISTRIBUTION
We may offer and sell our securities being offered hereby in one or more of the following ways from time to time:
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to or through underwriters, brokers or dealers;
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directly to one or more other purchasers;
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through a block trade in which the broker or dealer engaged to handle the block trade will attempt to sell the securities as agent, but may position and resell a portion of the block as principal to facilitate the
transaction;
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through agents on a best-efforts basis; or
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otherwise through a combination of any of the above methods of sale.
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In addition, we may
enter into option, share lending or other types of transactions that require us to deliver securities to an underwriter, broker or dealer, who will then resell or transfer the securities under this prospectus. We may enter into hedging transactions
with respect to our securities. For example, we may:
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enter into transactions involving short sales of the securities by underwriters, brokers or dealers;
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sell securities and deliver the shares to close out short positions;
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enter into option or other types of transactions that require us to deliver securities to an underwriter, broker or dealer, who will then resell or transfer the securities under this prospectus; or
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loan or pledge the securities to an underwriter, broker or dealer, who may sell the loaned shares or, in the event of default, sell the pledged securities.
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The prospectus supplement will state the terms of the offering of securities, including:
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the offering terms, including the name or names of any underwriters, dealers or agents;
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the purchase price of the securities and the net proceeds to be received from the sale;
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any underwriting discounts or agency fees and other items constituting underwriters’ or agents’ compensation;
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any public offering price; and
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any discounts or concessions allowed or reallowed or paid to dealers.
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If we use underwriters
or dealers in the sale, the securities will be acquired by the underwriters or dealers for their own account and may be resold from time to time in one or more transactions, including:
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at a fixed price or prices, which may be changed;
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at market prices prevailing at the time of sale;
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at prices related to such prevailing market prices;
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at varying prices determined at the time of sale; or
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We are the parent company of FBR Capital Markets & Co. and
MLV & Co. LLC, each members of the Financial Industry Regulatory Authority, Inc. (“FINRA”). Rule 5121 of the Conduct Rules of FINRA imposes certain requirements when a member of FINRA, such as FBR Capital Markets & Co.
and MLV & Co. LLC, distributes an affiliated company’s securities. Each of FBR Capital Markets & Co. and MLV & Co. LLC has advised us that any particular offering of shares of our common stock under this prospectus in
which it participates will comply with the applicable requirements of Rule 5121, including the requirement that no sales may be made to discretionary accounts by any FINRA member without the prior specific written approval of the customer. In
compliance with the guidelines of FINRA as of the date of this prospectus, should a FINRA member be participating in the offering of the common stock, the maximum discount or commission to be received by any FINRA member or independent broker-dealer
may not exceed 8% of the offering proceeds.
This prospectus, together with any applicable prospectus supplement, may also be used by any
of our broker-dealer subsidiaries in connection with offers and sales of the offered securities in market-making transactions, including block positioning and block trades, at negotiated prices related to prevailing market prices at the time of
sale. Any of our broker-dealer subsidiaries may act as principal or agent in such transactions. None of our broker-dealer subsidiaries have any obligation to make a market in any of the offered securities and may discontinue any market-making
activities at any time without notice, at its sole discretion.
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LEGAL MATTERS
In connection with particular offerings of the securities in the future, and if stated in the applicable prospectus supplement, the validity
of those securities may be passed upon for us by Hunton & Williams LLP and Wachtell, Lipton, Rosen & Katz, each special counsel to the Company.
EXPERTS
The financial statements as of December 31, 2015 and 2014, and for each of the two years in the period ended December 31, 2015, and
management’s assessment of the effectiveness of internal control over financial reporting as of December 31, 2015, incorporated by reference in this Prospectus have been so incorporated in reliance on the reports of BDO USA, LLP, an independent
registered public accounting firm, incorporated herein by reference, given on the authority of said firm as experts in auditing and accounting.
The consolidated financial statements for the year ended December 31, 2013 incorporated in this prospectus by reference to our Annual
Report on Form 10-K, as amended, for the year ended December 31, 2015 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as
experts in auditing and accounting.
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly, and current reports, proxy statements, and other information with the SEC. Our SEC filings are available to the
public over the internet at the SEC’s website at
http://www.sec.gov
and on the investor relations page of our website at
http://www.fbr.com
. Except for those SEC filings incorporated by reference in this prospectus, none of the
other information on our website is part of this prospectus. You may also read and copy any document we file with the SEC at its public reference facilities at 100 F Street N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for
further information on the operation of the public reference facilities.
This prospectus omits some information contained in the
registration statement in accordance with SEC rules and regulations. You should review the information and exhibits included in the registration statement for further information about us and the securities offered by us. Statements in this
prospectus concerning any document filed as an exhibit to the registration statement or otherwise filed with the SEC are not intended to be comprehensive and are qualified by reference to these filings. You should review the complete document to
evaluate these statements.
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INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to incorporate by reference into this prospectus the information that we file with it, which means that we can disclose
important information to you by referring you to those publicly available documents. The information that we incorporate by reference is an important part of this prospectus. Some information contained in this prospectus updates the information
incorporated by reference, and information that we file in the future with the SEC will automatically modify, supersede or update this prospectus. In other words, in the case of a conflict or inconsistency between information in this prospectus
and/or information incorporated by reference into this prospectus, you should rely on the information contained in the document that was filed later.
This prospectus incorporates by reference the documents listed below and any filings we make with the SEC under Sections 13(a), 13(c), 14, or
15(d) of the Exchange Act (other than those “furnished” pursuant to Item 2.02 or Item 7.01 in any Current Report on Form 8-K or other information deemed to have been “furnished” rather than filed in accordance with the
SEC’s rules) after the initial filing of the registration statement related to this prospectus until the termination of the offering of the securities covered by the applicable prospectus supplement:
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Our Annual Report on Form 10-K for the fiscal year ended December 31, 2015, filed with the SEC on March 15, 2016, as amended by our Annual Report on Form 10-K/A for the fiscal year ended December 31,
2015, filed with the SEC on April 29, 2016;
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Our Quarterly Reports on Form 10-Q for the periods ended March 31, 2016, filed with the SEC on May 5, 2016, June 30, 2016, filed with the SEC on August 9, 2016 and September 30, 2016, filed with
the SEC on November 9, 2016;
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Our Current Reports on Form 8-K, filed with the SEC on February 12, 2016, April 28, 2016 (only with respect to Item 5.02 thereof), June 17, 2016 (only with respect to Item 5.07 thereof) and
November 4, 2016 (only with respect to Item 5.02 thereof); and
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The description of our common stock contained in Form 8-A, filed with the SEC on June 5, 2007, and any amendment or report filed under the Exchange Act for the purpose of updating such description.
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Notwithstanding the foregoing, we are not incorporating any document or information deemed to have been furnished and not
filed in accordance with SEC rules.
Upon written or oral request, we will provide—at no cost to the requester—a copy of any or
all of the information that has been incorporated by reference in this prospectus but not delivered with this prospectus. You may make a request by writing to the following address or calling the following telephone number:
FBR & Co.
1300 North
Seventeenth Street
Arlington, Virginia 22209
(703) 312-9500
Attention: Investor
Relations
19
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
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ITEM 14.
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OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
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The following is an estimate, subject to
future contingencies, of the expenses to be incurred by the Registrant in connection with the issuance and distribution of the securities being registered:
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Registration Fee
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$
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23,180
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Legal Fees and Expenses
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*
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Accounting Fees and Expenses
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*
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FINRA Filing Fee
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$
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500
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Trustee Fees and Expenses
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*
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Blue Sky Fees and Expenses
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*
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Printing Fees
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*
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Rating Agency Fees
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*
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Miscellaneous
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*
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TOTAL
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*
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*
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These fees are calculated based on the number of issuances and amount of securities offered and accordingly cannot be estimated at this time.
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ITEM 15.
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INDEMNIFICATION OF DIRECTORS AND OFFICERS
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The Virginia Stock Corporation Act permits a
Virginia corporation to include in its articles of incorporation a provision limiting the liability of its directors and officers to the corporation and its shareholders for money damages except for liability resulting from willful misconduct or a
knowing violation of the criminal law or any federal or state securities law. The articles of incorporation of the registrant contain such a provision.
The registrant’s articles of incorporation provide that it will indemnify (1) any person who was or is a party to any proceeding,
including a proceeding brought by a shareholder in the right of the registrant or brought by or on behalf of its shareholders, by reason of the fact that he is or was a director or officer of the registrant, or (2) any director or officer who
is or was serving at the request of the registrant as a director, trustee, partner, member or officer of another enterprise, against any liability incurred by him or her in connection with the proceeding if the conduct in question was in the best
interests of the registrant and he or she was acting on behalf of the registrant or performing services for the registrant, unless he or she engaged in willful misconduct or a knowing violation of the criminal law or any federal or state securities
law. The registrant will pay for or reimburse the reasonable expenses incurred by any applicant who is a party to a proceeding in advance of final disposition if the applicant furnishes to the registrant (1) a written statement of his or her
good faith belief that he or she has met the standard of conduct described above and (2) a written undertaking, executed personally or on his or her behalf, to repay the advance if it is ultimately determined that he or she did not meet this
standard of conduct.
The registrant’s board of directors is empowered, by majority vote of a quorum consisting of disinterested
directors, to cause the registrant to indemnify or contract to indemnify any individual not described in the paragraph above who was, is or may become a party to any proceeding, by reason of the fact that he or she is or was an employee or agent of
the registrant, or is or was serving at the request of the registrant as director, officer, employee or agent of another enterprise, to the same extent as if that individual was an individual described in the paragraph above.
The foregoing is only a general summary of certain aspects of Virginia law dealing with indemnification of directors and officers and does
not purport to be complete. It is qualified in its entirety by reference to the relevant statutes, which contain detailed specific provisions regarding the circumstances under which and the persons for whose benefit indemnification shall or may be
made.
The following Exhibits are filed as part of this Registration Statement:
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Exhibit
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Description
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1.1.
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Form of Underwriting Agreement.*
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3.1
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Articles of Amendment to the Amended and Restated Articles of Incorporation of the Registrant and Amended and Restated Articles of Incorporation of the Registrant, as amended – previously filed as Exhibit 3.1 to Annual Report
on Form 10-K for the year ended December 31, 2012, and incorporated herein by reference.
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3.2
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Amended and Restated Bylaws of the Registrant – previously filed as an exhibit to the Registrant’s Current Report on Form 8-K, which was filed with the Commission on February 12, 2016, and incorporated by reference
herein.
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3.3
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Form of Articles of Amendment to the Articles of Incorporation setting forth the terms of preferred stock.*
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4.1
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Form of Common Stock Certificate.
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4.2
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Form of Debt Indenture.
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4.3
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Form of Preferred Stock Certificate.*
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4.4
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Form of Depositary Agreement including Form of Depositary Receipt.*
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4.5
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Form of Warrant Agreement, including Form of Warrant Certificate.*
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4.6
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Form of Stock Purchase Contract.*
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5.1
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Opinion of Hunton & Williams LLP as to the legality of the common stock and preferred stock to be issued by FBR & Co. and as to certain other matters (including the consent of such counsel).
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5.2
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Opinion of Wachtell, Lipton, Rosen & Katz as to the legality of the depositary shares, debt securities, units, warrants and stock purchase contracts to be issued by FBR & Co. (including the consent of such
counsel).
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10.1
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Consulting Services Agreement, dated November 1, 2016, by and between the Registrant and James Neuhauser (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, filed on November 4,
2016)†
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12.1
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Computation of Ratio of Earnings to Fixed Charges.
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23.1
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Consent of Hunton & Williams LLP (included in Exhibit 5.1).
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23.2
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Consent of Wachtell, Lipton, Rosen & Katz (included in Exhibit 5.2).
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23.3
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Consent of PricewaterhouseCoopers LLP.
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23.4
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Consent of BDO USA, LLP.
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24.1
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Power of Attorney (included on signature page to this Registration Statement).
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25.1
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Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, of , as Trustee under the Indenture.*
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*
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To be filed, if necessary, by amendment or as an exhibit to a Current Report on Form 8-K and incorporated by reference herein.
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†
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Management contract or compensatory plan or arrangement.
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(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made of securities registered hereby, a
post-effective
amendment to this registration statement:
(A) to include any prospectus required
by Section 10(a)(3) of the Securities Act of 1933;
(B) to reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may
be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(C) to include any
material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided
,
however
, that paragraphs (A), (B) and (C) above do not apply if the information
required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Securities and Exchange Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(A) Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as
of the date the filed prospectus was deemed part of and included in the registration statement; and
(B) Each prospectus required to
be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required
by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
Provided
,
however
, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability
of the Registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
(A) The
Registrant undertakes that in a primary offering of securities of the Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to
such purchaser by means of any of the following communications, the Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the Registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the Registrant or used or referred to by the
Registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about
the Registrant or its securities provided by or on behalf of the Registrant; and
(iv) Any other communication that is an offer in
the offering made by the Registrant to the purchaser.
(B) The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Registrant’s annual reports pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(C) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted
to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant 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, the Registrant 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 of whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and
will be governed by the final adjudication of such issue.
(6) The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest annual report, to security holders that is incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule
14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and, where interim financial information required to be presented by Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or cause to be delivered to each person
to whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information.
(7) The Registrant hereby undertakes to file an application for the purposes of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act (“Trust Indenture Act”) in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, FBR & Co. certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Arlington, State of Virginia, on November 10,
2016.
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FBR & CO.
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/s/ Bradley J. Wright
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Name:
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Bradley J. Wright
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Title:
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Executive Vice President,
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Chief Financial Officer and Chief
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Administrative Officer
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(Principal Financial Officer)
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POWER OF ATTORNEY
Each person whose signature appears below, hereby names, constitutes and appoints Richard J. Hendrix, Gavin A. Beske, Bradley J. Wright, or
any of them, as his or her attorney-in-fact, to sign, in his or her name, place, stead and behalf, and in any and all capacities stated below, and to cause to be filed with the Securities and Exchange Commission any and all amendments, including
post-effective amendments, to this Registration Statement on Form S-3, hereby granting to such attorneys, and to each of them, individually, full power and authority to do and perform in the name and on behalf of each of the undersigned, and in any
and all such capacities, every act and thing whatsoever necessary to be done in and about the premises as fully as any of the undersigned could or might do in person, hereby granting to each such attorney-in-fact full power of substitution and
revocation and hereby ratifying all that any such attorney-in-fact or his substitute may do by virtue hereof.
Pursuant to the
requirements of the Securities Act of 1933, this Registration Statement has been signed on November 10, 2016 by the following persons in the capacities with FBR & Co. indicated:
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Signature:
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Title:
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/s/ Richard J. Hendrix
Richard J. Hendrix
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Chief Executive Officer and Director (Principal Executive Officer)
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/s/ Bradley J. Wright
Bradley J. Wright
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Executive Vice President, Chief Financial Officer and Chief Administrative Officer (Principal Financial Officer)
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/s/ Robert J. Kiernan
Robert J. Kiernan
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Senior Vice President, Controller and Chief Accounting Officer (Principal Accounting Officer)
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/s/ Dr. Reena Aggarwal
Dr. Reena Aggarwal
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|
Director
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/s/ Thomas J. Hynes, Jr.
Thomas J. Hynes, Jr.
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Director
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/s/ Allison M. Leopold Tilley
Allison M. Leopold Tilley
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Director
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/s/ Richard A. Kraemer
Richard A. Kraemer
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|
Director
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/s/ Mark R. Patterson
Mark R. Patterson
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Director
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/s/ Arthur J. Reimers
Arthur J. Reimers
|
|
Director
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/s/ William F. Strome
William F. Strome
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Director
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EXHIBIT INDEX
|
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Exhibit
|
|
Description
|
|
|
|
|
1.1.
|
|
Form of Underwriting Agreement.*
|
|
|
|
|
3.1
|
|
Articles of Amendment to the Amended and Restated Articles of Incorporation of the Registrant and Amended and Restated Articles of Incorporation of the Registrant, as amended – previously filed as Exhibit 3.1 to Annual Report
on Form 10-K for the year ended December 31, 2012, and incorporated herein by reference.
|
|
|
|
|
3.2
|
|
Amended and Restated Bylaws of the Registrant – previously filed as an exhibit to the Registrant’s Current Report on Form 8-K, which was filed with the Commission on February 12, 2016, and incorporated by reference
herein.
|
|
|
|
|
3.3
|
|
Form of Articles of Amendment to the Articles of Incorporation setting forth the terms of preferred stock.*
|
|
|
|
|
4.1
|
|
Form of Common Stock Certificate.
|
|
|
|
|
4.2
|
|
Form of Debt Indenture.
|
|
|
|
|
4.3
|
|
Form of Preferred Stock Certificate.*
|
|
|
|
|
4.4
|
|
Form of Depositary Agreement including Form of Depositary Receipt.*
|
|
|
|
|
4.5
|
|
Form of Warrant Agreement, including Form of Warrant Certificate.*
|
|
|
|
|
4.6
|
|
Form of Stock Purchase Contract.*
|
|
|
|
|
5.1
|
|
Opinion of Hunton & Williams LLP as to the legality of the common stock and preferred stock to be issued by FBR & Co. and as to certain other matters (including the consent of such counsel).
|
|
|
|
|
5.2
|
|
Opinion of Wachtell, Lipton, Rosen & Katz as to the legality of the depositary shares, debt securities, units, warrants and stock purchase contracts to be issued by FBR & Co. (including the consent of such
counsel).
|
|
|
|
|
10.1
|
|
Consulting Services Agreement, dated November 1, 2016, by and between the Registrant and James Neuhauser (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, filed on November 4,
2016)†
|
|
|
|
|
12.1
|
|
Computation of Ratio of Earnings to Fixed Charges.
|
|
|
|
|
23.1
|
|
Consent of Hunton & Williams LLP (included in Exhibit 5.1).
|
|
|
|
|
23.2
|
|
Consent of Wachtell, Lipton, Rosen & Katz (included in Exhibit 5.2).
|
|
|
|
|
23.3
|
|
Consent of PricewaterhouseCoopers LLP.
|
|
|
|
|
23.4
|
|
Consent of BDO USA, LLP.
|
|
|
|
|
24.1
|
|
Power of Attorney (included on signature page to this Registration Statement).
|
|
|
|
|
25.1
|
|
Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, of , as Trustee under the Indenture.*
|
|
*
|
To be filed, if necessary, by amendment or as an exhibit to a Current Report on Form 8-K and incorporated by reference herein.
|
|
†
|
Management contract or compensatory plan or arrangement.
|
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