FILED PURSUANT TO RULE 424(B)(5)
REGISTRATION NO.: 333-212489
PROSPECTUS SUPPLEMENT
(To Prospectus dated August 2, 2016)
Up to $15,000,000 of Class A Common Stock
This prospectus supplement and the accompanying
prospectus relate to the offer and sale from time to time of shares of our Class A common stock, $0.01 par value per share (our
“Class A common stock”), having an aggregate offering price of up to $15,000,000 through Jefferies LLC (the “sales
agent”) pursuant to the terms of the equity distribution agreement between us and the sales agent. Sales of our Class A common
stock, if any, may be made in negotiated transactions or transactions that are deemed to be “at-the-market offerings”
as defined in Rule 415 under the Securities Act of 1933, as amended (the “Securities Act”), including sales made directly
on the NASDAQ Global Market (“NASDAQ”) or sales made to or through a market maker other than on an exchange.
Our Class A common stock is listed on NASDAQ
under the symbol “FXCM.” The last reported sales price of our Class A common stock on NASDAQ on September 30, 2016
was $8.77 per share.
The sales agent will receive a commission
of 3.0% of the gross sales price per share for any shares sold through it as our sales agent under the equity distribution agreement.
Subject to the terms and conditions of the equity distribution agreement, the sales agent will use its commercially reasonable
efforts to sell on our behalf any shares of Class A common stock to be offered by us under the equity distribution agreement. The
offering of Class A common stock pursuant to the equity distribution agreement will terminate upon the earlier of (1) the sale
of all the shares of our Class A common stock subject to the equity distribution agreement, and (2) the termination of the equity
distribution agreement, pursuant to its terms, by either the sales agent or us.
Under the terms of the equity distribution
agreement, we also may sell shares to the sales agent, as principal for its own account, at a price per share to be agreed upon
at the time of sale. If we sell shares to the sales agent, acting as principal, we will enter into a separate terms agreement with
the sales agent, setting forth the terms of such transaction, and we will describe the terms agreement in a separate prospectus
supplement or pricing supplement.
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Investing in our Class A common stock involves a high degree of risk. Before buying any Class A common stock, you should carefully consider the risks that we have described in “Supplemental Risk Factors” beginning on page S-4 of this prospectus supplement, as well as those described in our filings under our filings under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
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Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus supplement or the accompanying prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
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Jefferies
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The date of this prospectus supplement
is October 3, 2016.
TABLE OF CONTENTS
Prospectus Supplement
We have not, and the sales agent has
not, authorized any dealer, salesperson or other person to give any information or to make any representation other than those
contained in or incorporated by reference into this prospectus supplement, the accompanying prospectus or any applicable free writing
prospectus. You must not rely upon any information or representation not contained in or incorporated by reference into this prospectus
supplement, the accompanying prospectus or any applicable free writing prospectus as if we had authorized it. This prospectus supplement,
the accompanying prospectus and any applicable free writing prospectus do not constitute an offer to sell or the solicitation of
an offer to buy any securities other than the registered securities to which they relate, nor does this prospectus supplement,
the accompanying prospectus or any applicable free writing prospectus constitute an offer to sell or the solicitation of an offer
to buy securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction.
You should not assume that the information contained in this prospectus supplement, the accompanying prospectus, the documents
incorporated herein and therein by reference and any applicable free writing prospectus is correct on any date after their respective
dates, even though this prospectus supplement, the accompanying prospectus or an applicable free writing prospectus is delivered
or securities are sold on a later date. Our business, financial condition, results of operations and cash flows may have changed
since those dates.
ABOUT THIS PROSPECTUS SUPPLEMENT
This prospectus supplement and the accompanying
prospectus are part of a registration statement that we filed with the Securities and Exchange Commission (the “SEC”).
Our shelf registration statement allows us to offer from time to time a wide array of securities. In the accompanying prospectus,
we provide you with a general description of the securities we may offer from time to time under our shelf registration statement
and other general information that may apply to this offering. In this prospectus supplement, we provide you with specific information
about the Class A common stock that we are selling in this offering. Both this prospectus supplement and the accompanying prospectus
include important information about us, our Class A common stock and other information that you should know before investing. This
prospectus supplement also adds, updates and changes information contained in the accompanying prospectus. You should carefully
read both this prospectus supplement and the accompanying prospectus as well as additional information described under “Where
You Can Find More Information” before investing in our Class A common stock.
Generally, when we refer to this “prospectus
supplement,” we are referring to both this prospectus supplement and the accompanying prospectus, as well as the documents
incorporated by reference herein and therein. If information in this prospectus supplement is inconsistent with the accompanying
prospectus, you should rely on this prospectus supplement.
FXCM Inc. is a Delaware corporation. Our
principal offices are located at 55 Water St., Floor 50, New York, NY 10041, and our telephone number at that address is (646)
355-0839. Our website is located at http://www.fxcm.com. The information contained on our website is not part of this prospectus
supplement or the accompanying prospectus.
All references to “FXCM Inc.,”
“FXCM,” “we,” “us,” “our” or “the Company” in this prospectus supplement
mean FXCM Inc. and all entities owned or controlled by FXCM Inc., except where it is made clear that the term means only FXCM Inc.
WHERE YOU CAN FIND MORE INFORMATION
We are required to file annual, quarterly
and current reports, proxy statements and other information with the SEC. You may read and copy any documents filed by us at the
SEC’s public reference room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information about the public reference room. Our filings with the SEC are also available to the public through the SEC’s
Internet site at http://www.sec.gov and through the New York Stock Exchange, 20 Broad Street, New York, New York 10005. We make
available free of charge on our website (http://www.fxcm.com) our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, Current
Reports on Form 8-K and all amendments to those reports as soon as reasonably practicable after such material is electronically
filed with the SEC.
We have filed a registration statement on
Form S-3 with the SEC relating to the securities covered by this prospectus supplement. This prospectus supplement and the accompanying
prospectus are a part of the registration statement and do not contain all of the information in the registration statement. Whenever
a reference is made in this prospectus to a contract or other document of ours, please be aware that the reference is only a summary
and that you should refer to the exhibits that are part of the registration statement for a copy of the contract or other document.
You may review a copy of the registration statement at the SEC’s public reference room in Washington, D.C., as well as through
the SEC’s Internet site.
Additional copies of this prospectus supplement
and the accompanying prospectus may be obtained, without charge, by writing to us at FXCM Inc., at 55 Water St., Floor 50, New
York, New York 10041, Attention: Corporate Secretary. You may also contact the Corporate Secretary at (646) 432-2986.
INCORPORATION BY REFERENCE
The SEC’s rules allow us to “incorporate
by reference” information into this prospectus. This means that we can disclose important information to you by referring
you to another document. Any information referred to in this way is considered part of this prospectus supplement from the date
we file that document. Any reports filed by us with the SEC after the date of this prospectus supplement and before the date that
the offerings of the securities by means of this prospectus supplement are terminated will automatically update and, where applicable,
supersede any information contained in this prospectus supplement or incorporated by reference in this prospectus supplement.
We incorporate by reference into this prospectus
supplement the following documents or information filed with the SEC:
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(1)
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Annual Report on Form 10-K for the year ended December 31, 2015, filed on March 11, 2016 (File No. 001-34986);
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(2)
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Quarterly Report on Form 10-Q for the quarter ended March 31, 2016, filed on May 6, 2016 (File No. 001-34986);
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(3)
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Current Report on Form 8-K, filed on January 26, 2016 (File No. 001-34986);
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(4)
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Current Report on Form 8-K, filed on February 1, 2016 (File No. 001-34986);
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(5)
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Current Report on Form 8-K, filed on April 15, 2016 (File No. 001-34986);
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(6)
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Current Report on Form 8-K, filed on June 13, 2016 (File No. 001-34986);
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(7)
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Current Report on Form 8-K, filed on September 8, 2016 (File No. 001-345986);
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(8)
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Current Report on Form 8-K, filed on September 13, 2016 (File No. 001-345986) (excluding Item 7.01);
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(9)
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Current Report on Form 8-K, filed on September 30, 2016 (File No. 001-34986);
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(10)
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Current Report on Form 8-K, filed on October 3, 2016 (File No. 001-34986);
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(11)
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Definitive Proxy Statement on Schedule 14A, filed April 26, 2016 (File No. 001-34986);
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(12)
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The description of shares of Class A common stock contained in the Registration Statement on Form 8-A, dated November 24, 2010 (File No. 001-34986), of FXCM Inc.;
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(13)
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The description of Rights to Purchase Series A Junior Participating Preferred Stock contained in the Registration Statement on Form 8-A, dated January 26, 2016 (File No. 001-34986), of FXCM Inc.;
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(14)
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The description of capital stock contained in the Registration Statement on Form 8-A, dated September 23, 2016 (File No. 001-34986), of FXCM Inc.; and
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(15)
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All documents filed by us under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (excluding any information that is deemed to have been “furnished” and not “filed” with the SEC) on or after the date of this prospectus supplement and before the termination of the offerings to which this prospectus supplement relates.
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We will provide without charge to each person,
including any beneficial owner, to whom this prospectus supplement is delivered, upon his or her written or oral request, a copy
of any or all documents referred to above which have been or may be incorporated by reference into this prospectus supplement,
excluding exhibits to those documents unless they are specifically incorporated by reference into those documents. You can request
those documents from the Corporate Secretary, FXCM Inc., at 55 Water St., Floor 50, New York, New York 10041. You may also contact
the Corporate Secretary at (646) 432-2986.
FORWARD-LOOKING STATEMENTS
This prospectus supplement contains or incorporates
by reference forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act, which reflect our current views with respect to, among other things, our operations and financial performance. In some cases,
you can identify these forward-looking statements by the use of words such as “outlook”, “believes”, “expects”,
“potential”, “continues”, “may”, “will”, “should”, “seeks”,
“approximately”, “predicts”, “intends”, “plans”, “estimates”, “anticipates”
or the negative version of these words or other comparable words. Such forward-looking statements are subject to various risks
and uncertainties. These forward-looking statements are not historical facts and are based on current expectations, estimates and
projections about FXCM’s industry, management's beliefs and certain assumptions made by management, many of which, by their
nature, are inherently uncertain and beyond our control.
Accordingly, there are or will be important
factors that could cause actual outcomes or results to differ materially from those indicated in these statements. All statements
other than statements of historical fact are forward-looking statements and are based on various underlying assumptions and expectations
and are subject to known and unknown risks, uncertainties and assumptions, and may include projections of our future financial
performance based on our growth strategies and anticipated trends in our business. We believe these factors include, but are not
limited to, those described under “Risk Factors” in Item 1A of our most recent Annual Report on Form 10-K for the fiscal
year ended December 31, 2015, filed with the SEC on March 11, 2016, and Item 1A of any subsequently filed Quarterly Reports on
Form 10-Q, as such factors may be updated from time to time in our periodic filings with the SEC (which documents are incorporated
by reference herein), as well as the other information contained or incorporated by reference in this prospectus supplement. These
factors should not be construed as exhaustive and should be read in conjunction with the other cautionary statements that are included
or incorporated by reference in this prospectus supplement. We undertake no obligation to publicly update or review any forward-looking
statement, whether as a result of new information, future developments or otherwise.
PROSPECTUS SUPPLEMENT SUMMARY
This summary highlights selected information
about us. It may not contain all the information that may be important to you in deciding whether to invest in our Class A common
stock. You should read this entire prospectus supplement and the accompanying prospectus, together with the information incorporated
by reference, including the risk factors, financial data and related notes, before making an investment decision.
Company Overview
We are an online provider of foreign exchange
(“FX”) trading and related services to over 175,000 active retail accounts globally. We offer our customers
access to over-the-counter (“OTC”) FX markets and have developed a proprietary technology platform that we believe
provides our customers with an efficient and cost-effective way to trade FX. In an FX trade, a participant buys one currency and
simultaneously sells another, a combination known as a “currency pair.” Our platform seeks to present our FX customers
with the best price quotations on 45 currency pairs from up to 31 global banks, financial institutions and
market makers (“FX market makers”). We also offer our non-U.S. customers the ability to trade contracts-for-difference
(“CFDs”).
We primarily offer our customers what is
referred to as an agency model to execute their trades. Our agency model is fundamental to our core business philosophy because
we believe that it aligns our interests with those of our customers and reduces our risks. In the agency model, when our customer
executes a trade on the best price quotation offered by our FX market makers, we act as a credit intermediary, or riskless principal,
simultaneously entering into offsetting trades with both the customer and the FX market maker. This agency model has the effect
of automatically hedging our positions and eliminating market risk exposure. Beginning in 2015, we began to offer a dealing desk,
or principal, execution model to smaller retail clients. Under the dealing desk model, we maintain our trading position and
do not offset the trade with another party on a one for one basis. CFDs are primarily a dealing desk offering. By combining smaller
positions and trading them out on an aggregate basis, we are able to optimize revenues from accounts that are less actively traded.
Generally, under both models, we earn trading fees through commissions or by adding a markup to the price provided by the FX market
makers. In certain geographic locations, we provide our customers with the price provided by the FX market makers and display trading
fees and commissions separately. Revenues earned under the dealing desk model also include our realized and unrealized foreign
currency trading gains or losses on our positions with customers.
We also earn other forms of revenue such
as fees earned from: white label arrangements with other financial institutions to provide platform, back office and trade execution
services, FX market prices and other various ancillary FX related services and joint ventures.
We operate our business in a single segment,
retail trading. In addition, we own a 50.1% controlling interest in each of Lucid Markets Trading Limited (“Lucid”),
an electronic market-maker and trader in the institutional foreign exchange spot and futures market, and V3 Markets (“V3”),
an electronic market-maker and trader of a diverse set of products. Both Lucid and V3 are reflected as held for sale in our Consolidated
Financial Statements.
Our operating subsidiaries are regulated
in a number of jurisdictions, including the United States (“U.S.”), the United Kingdom (“U.K.”), where
regulatory passport rights have been exercised to operate in a number of European Economic Area jurisdictions, and Australia. We
maintain offices in these jurisdictions, among others. We offer our trading software in 17 languages, produce FX research
and content in 8 languages and provide customer support in 19 languages. For the year ended December 31,
2015, approximately 80% of our retail customer trading volume was derived from customers residing outside the U.S. We
believe our global footprint provides us with access to emerging markets, diversifies our risk from regional economic conditions
and allows us to draw our employees from a broad pool of talent.
Recent Developments
CFTC Complaint
On August 18, 2016, the Commodity Futures
Trading Commission (“CFTC”) filed a complaint against Forex Capital Markets L.L.C. in United States District Court
for the Southern District of New York, alleging a lack of compliance with the CFTC’s adjusted net capital requirement, failure
to immediately notify the CFTC of its undercapitalization, and improper representation of a guarantee against loss. We intend to
vigorously defend against the CFTC’s claims.
Sale of DailyFX
On September 30, 2016, Forex Capital Markets
L.L.C. (the “Seller”), a wholly-owned subsidiary of FXCM Inc., entered into an asset purchase agreement (the “Asset
Purchase Agreement”), pursuant to which the Seller agreed to sell certain assets comprising the DailyFX business (the “Assets”)
to IG Group (the “Buyer”), for an aggregate purchase price of approximately $40 million which will be paid in two installments.
The first installment of $36 million will be paid upon closing, which is subject to Buyer final approval and customary closing
conditions. The second installment of $4 million will be paid upon the successful transfer of the DailyFX websites to the Buyer.
The Asset Purchase Agreement contains customary representations, warranties and covenants by each of the Buyer and the Seller.
Moreover, pursuant to the terms of the Asset Purchase Agreement, FXCM will assume all liability relating to the DailyFX Assets
up to the point of sale.
Concurrently with execution of the Asset
Purchase Agreement, the Buyer and Seller have entered into a transitional services agreement (the “Transitional Services
Agreement”), pursuant to which the Seller and/or its affiliates will provide transition services to the Buyer relating to
the hosting, maintenance, and operation of the Assets. Such services will be provided for a period of up to six months (subject
to extension) after the closing of the transaction.
Also concurrently with the execution of
the Asset Purchase Agreement, the Buyer and Seller have entered into a non-exclusive advertising agreement (the “Advertising
Agreement”), which arranges for the placement of FXCM’s advertisements on the United States and Canadian geo-targeted
English DailyFX website and for the provision to FXCM of United States and Canadian domiciled DailyFX leads generated through the
DailyFX websites. The Advertising Agreement will last for a period of three years. Pursuant to the Advertising Agreement, FXCM
will pay an annual fee to the Buyer, subject to adjustments based upon the number of leads received by FXCM pursuant to the Advertising
Agreement.
The Offering
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Issuer
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FXCM Inc., a Delaware corporation.
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Securities Offered
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Class A common stock, $0.01 par value per share, having aggregate sales proceeds of up to $15,000,000.
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Manner of Offering
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“At the market offering” that may be made from time
to time through our sales agent, Jefferies LLC. See “Plan of Distribution.”
Under the terms of the equity distribution agreement, we also
may sell shares to the sales agent, as principal for its own account, at a price per share to be agreed upon at the time of sale.
If we sell shares to the sales agent, acting as principal, we will enter into a separate terms agreement with that sales agent,
setting forth the terms of such transaction, and we will describe the terms agreement in a separate prospectus supplement or pricing
supplement.
The proceeds from this offering, if any, will vary depending
on the number of shares that we offer and the offering price per share. We may choose to raise less than the maximum $15,000,000
in gross offering proceeds permitted by this prospectus supplement.
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Use of Proceeds
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We presently intend to use the net proceeds from any sales of shares of Class A common stock resulting from this prospectus supplement to reduce our outstanding indebtedness and for other general corporate purposes. We have not yet determined which of our outstanding indebtedness will be repaid with the proceeds of this offering. See “Use of Proceeds.”
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Risk Factors
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Before deciding to invest in shares of our Class A common stock, you should read carefully the risks set forth under the heading “Supplemental Risk Factors” beginning on page S-4 of this prospectus supplement, and the risk factors set forth under the heading “Item 1A. Risk Factors” of our 2015 Annual Report as well as any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K for certain considerations relevant to an investment in our Class A common stock.
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NASDAQ Symbol
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FXCM
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Transfer Agent and
Registrar
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American Stock Transfer & Trust Company, LLC
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SUPPLEMENTAL RISK FACTORS
Investing in our Class A common stock
involves risks. In deciding whether to invest in our common stock, you should carefully consider the following risk factors and
the risk factors included in our 2015 Annual Report in addition to the other information contained in this prospectus supplement
and the accompanying prospectus and the information incorporated by reference herein and therein. The risks and uncertainties described
below and in our 2015 Annual Report are not the only ones we face. Additional risks and uncertainties that we are unaware of, or
that we currently deem immaterial, also may become important factors that affect us. If any of these risks occurs, our business,
financial condition or results of operations could be materially and adversely affected. In that case, the value of our Class A
common stock and your investment could decline. See “Forward Looking Statements.”
Risks Related to This Offering
Future sales or issuances of our common stock may dilute
the ownership interest of existing shareholders and depress the trading price of our common stock.
We cannot predict the effect, if any, that
future sales of our common stock, including sales pursuant to the equity distribution agreement, or the availability of our common
stock for future sale, will have on the market price of shares of our common stock. Future sales or issuances of our common stock
may dilute the ownership interests of our existing shareholders, including purchasers of common stock in this offering. In addition,
future sales or issuances of substantial amounts of our common stock may be at prices below the offering price of the shares offered
by this prospectus supplement and may adversely impact the market price of our common stock and the terms upon which we may obtain
additional equity financing in the future. The perception that such sales or issuances may occur could also negatively impact the
market price of our common stock.
The price of our common stock may fluctuate significantly.
The market price of our common stock may
fluctuate significantly in response to many factors, including:
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actual or anticipated variations in our operating results or dividends;
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changes in our funds from operations or earnings estimates;
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publication of research reports about us or our industry, generally;
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changes in market valuations of similar companies;
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adverse market reaction to any additional debt we incur in the future;
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additions or departures of key management personnel;
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actions by institutional shareholders;
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speculation in the press or investment community;
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the passage of legislation or other regulatory developments that adversely affect us or our industry;
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the realization of any of the other risk factors included in, or incorporated by reference to, this prospectus supplement; and
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general market and economic conditions.
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In addition, many of the factors listed
above are beyond our control. These factors may cause the market price of our common stock to decline, regardless of our financial
condition, results of operations, business or prospects. It is impossible to ensure that the market price of our common stock will
not fall in the future.
The sales agent may have conflicts of interest that arise
out of contractual relationships it or its affiliates may have with us.
If we sell shares of our Class A common
stock under this prospectus supplement, we may use the net proceeds to repay a portion or all of the outstanding indebtedness under
our existing credit facility. Jefferies LLC is a wholly-owned subsidiary of Leucadia National Corporation, who is a lender under
our existing credit facility. The sales agent and/or its affiliates may participate in future lending arrangements with us. As
a result, a portion or all of the net proceeds of any sale of shares of our Class A common stock under this prospectus supplement
may be received by the sales agent and/or its affiliates. Because it may receive the net proceeds of any of these sales, the sales
agent may have an interest in these sales beyond the customary commissions it receives. This could result in a conflict of interest
and cause it to act in a manner that is not in the best interests of us or our investors in connection with any sale of shares
of our Class A common stock under this prospectus supplement.
Our ability to use net operating loss carryforwards to
offset future taxable income for U.S. federal income tax purposes may be limited.
We have federal net operating losses (“NOLs”
or “NOL carryforwards”) of $216.1 million as of December 31, 2015. These NOL carryforwards (expiring in 2032 through
2035) are available to offset future taxable income. The Company may incur additional NOLs in the future.
Section 382 of the Internal Revenue
Code of 1986, as amended (the “Code”) imposes an annual limitation on the amount of taxable income that may be offset
by a corporation’s NOLs if the corporation experiences an “ownership change” as defined in Section 382 of
the Code. An ownership change occurs when our “five-percent shareholders” (as defined in Section 382 of the
Code) collectively increase their ownership in FXCM Inc. by more than 50 percentage points (by value) over a rolling three-year
period. Additionally, various states have similar limitations on the use of state NOLs following an ownership change.
If an ownership change occurs, the amount
of the taxable income for any post-change year that may be offset by a pre-change loss is subject to an annual limitation that
is cumulative to the extent it is not all utilized in a year. This annual limitation is derived by multiplying the fair market
value of our Class A common stock as of the ownership change by the applicable federal long-term tax-exempt rate, which is 2.15%
for an ownership change occurring in August 2016.
We have an ongoing study of the rolling
three-year testing period. Based upon the elections we have made and the information that has been filed with the Securities and
Exchange Commission, our prior Section 382 ownership changes have not resulted in a material annual limitation. We do not
expect that sales of stock pursuant to this offering will cause a Section 382 ownership change.
If an ownership change should occur in the
future, our ability to use the NOLs to offset future taxable income will be subject to an annual limitation and will depend on
the amount of taxable income generated by FXCM Inc. in future periods. There is no assurance that we will be able to fully utilize
the NOLs and we could be required to record an additional valuation allowance related to the amount of the NOLs that may not be
realized, which could impact our result of operations.
We believe that these NOL carryforwards
are a valuable asset for us. Consequently, we have a stockholder rights plan in place, which was approved by the Company’s
Board of Directors, to protect our NOLs during the effective period of the rights plan. Although the rights plan is intended
to reduce the likelihood of an “ownership change” that could adversely affect us, there is no assurance that the restrictions
on transferability in the rights plan will prevent all transfers, including transactions involving our stock that are outside our
control, such as purchases or sales of our stock or the exercise of certain options with respect to our stock, that could result
in such an “ownership change.”
The foregoing provisions may adversely affect
the marketability of our Class A common stock by discouraging potential investors from acquiring our stock. In addition,
these provisions could delay or frustrate the removal of incumbent directors and could make more difficult a merger, tender offer
or proxy contest involving us, or impede an attempt to acquire a significant or controlling interest in us, even if such events
might be beneficial to us and our stockholders.
We are subject to a wide variety of domestic and foreign
tax laws and regulations that are constantly changing.
We are subject to a wide variety of domestic
and foreign tax laws and regulations that are constantly changing. We are affected by new laws and regulations, and changes to
existing laws and regulations, including interpretations by courts and regulators. With the finalization of specific actions contained
within the Organization for Economic Development and Cooperation’s (the “OECD”) Base Erosion and Profit study
(the “Actions”), many OECD countries have acknowledged their intent to implement the Actions and update their local
tax regulations. The extent (if any) to which countries in which we operate adopt and implement the Actions could affect our effective
tax rate and our future results from non-U.S. operations.
Compliance with the laws and regulations
described above or with other applicable foreign, federal, state, and local laws and regulations currently in effect or that may
be adopted in the future could materially adversely affect our competitive position, operating results, financial condition and
liquidity.
USE OF PROCEEDS
We presently intend to use the net proceeds
from any sales of shares of Class A common stock resulting from this prospectus supplement to reduce our outstanding indebtedness
and for other general corporate purposes. We have not yet determined which of our outstanding indebtedness will be repaid with
the proceeds of this offering.
An affiliate of Jefferies LLC, which is
the sales agent in this offering, is a lender under our existing credit facility. To the extent we use proceeds from this offering
to repay indebtedness under our existing credit facility, such affiliate may receive proceeds from this offering. Please see “Plan
of Distribution.”
MATERIAL UNITED STATES FEDERAL INCOME
TAX CONSEQUENCES TO NON-U.S. HOLDERS
The following discussion is a summary of
certain U.S. federal income tax consequences generally applicable to the purchase, ownership and disposition of our Class A common
stock by a Non-U.S. Holder (as defined below) that acquires our Class A common stock in this offering and holds our Class A common
stock as a capital asset within the meaning of Section 1221 of the Internal Revenue Code of 1986, as amended (the “Code”).
This summary does not cover all aspects of U.S. federal income taxation that may be relevant to a Non-U.S. Holder in light of the
Non-U.S. Holder's particular circumstances. In addition, this summary does not describe the impact of the Medicare surtax on net
investment income or the U.S. federal income tax consequences applicable to a Non-U.S. Holder that is subject to special treatment
under the Code, including, without limitation, certain former citizens and former long-term residents of the United States, banks
or other financial institutions, brokers, dealers or traders in securities, "controlled foreign corporations," "passive
foreign investment companies," partnerships or other "pass through" entities or investors in any such entity, tax-exempt
organizations, insurance companies, taxpayers who have elected mark-to-market accounting with respect to their securities or a
taxpayers that acquire, hold, or dispose of our Class A common stock as part of a straddle, hedge, constructive sale, conversion
or other integrated transaction.
As used in this discussion, the term "Non-U.S.
Holder" means a beneficial owner of our Class A common stock that, for U.S. federal income tax purposes, is not a partnership
(or any other entity or arrangement treated as a partnership for such purposes) and is not any of the following:
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an individual that is a citizen or resident of the United States;
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a corporation created or organized in or under the laws of the United States, any state thereof or the District of Columbia;
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an estate, the income of which is subject to U.S. federal income taxation regardless of its source; or
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a trust (1) whose administration is subject to the primary supervision of a United States court and that has one or more "United
States persons" (within the meaning of the Code) who have the authority to control all substantial decisions of the trust,
or (2) that has a valid election in effect under applicable Treasury regulations to be treated as a United States person.
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This summary is based upon the provisions
of the Code, the Treasury regulations promulgated thereunder, judicial opinions, rulings and pronouncements of the Internal Revenue
Service (the "IRS") and other applicable authorities, all as in effect or in existence on the date hereof. These authorities
may change or be subject to differing interpretations, perhaps retroactively, which could result in U.S. federal income tax consequences
different from those summarized below. This discussion does not address any other U.S. federal tax considerations (such as estate
or gift tax) or any state, local or non-U.S. tax considerations. Each prospective purchaser of our Class A common stock is urged
to consult its tax advisor about the U.S. federal, state, local and non-U.S. tax consequences of the purchase, ownership, and disposition
of our Class A common stock in light of its own particular circumstances.
If a partnership (or any other entity or
arrangement treated as a partnership for U.S. federal income tax purposes) holds our Class A common stock, the U.S. federal income
tax treatment of a partner of that partnership will generally depend upon the status of the partner, the activities of the partnership
and certain determinations made at the partner level. A partnership, and a partner in such a partnership, that holds our Class
A common stock is urged to consult its tax advisor regarding the tax consequences of the purchase, ownership and disposition of
our Class A common stock.
Distributions on our Class A Common Stock
We do not expect to declare and pay any
distributions with respect to our Class A common stock in the foreseeable future. In the event that we do make a distribution of
cash or other property (other than certain distributions of our stock) in respect of our Class A common stock, the distribution
generally will be treated as a dividend to the extent of our current or accumulated earnings and profits as determined under U.S.
federal income tax principles. Any portion of a distribution that exceeds our current and accumulated earnings and profits generally
will be treated first as a tax-free return of capital, on a share-by-share basis, to the extent of the Non-U.S. Holder's tax basis
in our Class A common stock, and, to the extent such portion exceeds the Non-U.S. Holder's tax basis in our Class A common stock,
the excess will be treated as gain from the disposition of the Class A common stock, the tax treatment of which is discussed below
under "Sales, Exchanges or Other Taxable Dispositions of our Class A common stock."
The gross amount of dividends paid to a
Non-U.S. Holder generally will be subject to withholding of U.S. federal income tax at a rate of 30% or such lower rate as may
be specified by an applicable income tax treaty. Dividends that are effectively connected with the conduct of a trade or business
by the Non-U.S. Holder within the United States (and, where required by an applicable income tax treaty, are attributable to a
permanent establishment or fixed base maintained by the Non-U.S. Holder in the United States), however, are not subject to this
withholding tax, provided certain certification and disclosure requirements are satisfied. Instead, such dividends are subject
to U.S. federal income tax on a net income basis at regular graduated U.S. federal income tax rates generally in the same manner
as if the Non-U.S. Holder were a United States person. A Non-U.S. Holder that wishes to avoid withholding on dividends that are
effectively connected with the conduct of a trade or business within the United States must provide the applicable withholding
agent with a valid IRS Form W-8ECI (or appropriate successor form). A Non-U.S. Holder that is treated as a corporation for U.S.
federal income tax purposes also may be subject to an additional "branch profits tax" at a 30% rate, or such lower rate
as may be specified by an applicable income tax treaty, on the Non-U.S. Holder's earnings and profits that are effectively connected
with the Non-U.S. Holder's conduct of a trade or business within the United States, subject to adjustments.
A Non-U.S. Holder that wishes to claim the
benefit of an applicable income tax treaty for dividends will be required to provide the applicable withholding agent with a valid
IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable (or appropriate successor form), and certify under penalties of perjury that
such holder is not a United States person and is eligible for treaty benefits. This certification must be provided to the applicable
withholding agent prior to the payment of dividends and may be required to be updated periodically. If our Class A common stock
is held through a non-U.S. partnership or non-U.S. intermediary, the non-U.S. partnership or non-U.S. intermediary will also be
required to comply with additional certification requirements under applicable Treasury regulations. A Non-U.S. Holder eligible
for a reduced rate of U.S. withholding tax pursuant to an income tax treaty may obtain a refund or credit of any excess amounts
withheld by timely filing an appropriate claim for refund with the IRS.
Sales, Exchanges or Other Taxable Dispositions of our Class
A Common Stock
Subject to the discussion below, including
under “Information Reporting and Backup Withholding” and “FATCA,” a Non-U.S. Holder will generally not
be subject to U.S. federal income or withholding tax on any gain recognized upon the sale, exchange or other taxable disposition
of our Class A common stock unless:
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the gain is effectively connected with such Non-U.S. Holder's conduct of a trade or business in the United States and, where
required by an applicable income tax treaty, the gain is attributable to such Non-U.S. Holder's permanent establishment or fixed
base in the United States;
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such Non-U.S. Holder is an individual present in the United States for 183 days or more in the calendar year of the sale, exchange
or other taxable disposition and certain other conditions are satisfied; or
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we are or have been a "United States real property holding corporation," as such term is defined in section 897(c)
of the Code, at any time during the shorter of (1) the five-year period ending on the date of disposition or (2) the Non-U.S. Holder's
holding period for our Class A common stock. As long as our Class A common stock continues to be regularly traded on an established
securities market, within the meaning of section 897(c)(3) of the Code, these rules will apply only to a Non-U.S. Holder who actually
or constructively holds more than 5% of our Class A common stock at any time during the shorter of the two periods mentioned above.
We believe that we are not a United States real property holding corporation, and we do not expect to become a United States real
property holding corporation.
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Gain that is effectively connected with
such Non-U.S. Holder's conduct of a trade or business in the United States and, where required by an applicable income tax treaty,
is attributable to such Non-U.S. Holder's permanent establishment or fixed base in the United States will be subject to tax on
a net income basis at regular graduated U.S. federal income tax rates generally in the same manner as if such Non-U.S. Holder were
a United States person. A Non-U.S. Holder that is a corporation may also be subject to the branch profits tax described above.
An individual Non-U.S. Holder present in
the United States for 183 days or more in the calendar year of the sale, exchange or other taxable disposition (and who satisfies
certain other conditions) will be required to pay (subject to applicable income tax treaties) a flat 30% tax on the gain derived
from the sale, which may be offset by certain United States source capital losses, even though the individual is not considered
a resident of the United States for U.S. federal income tax purposes, provided the Non-U.S. Holder has timely filed U.S. federal
income tax returns with respect to such losses.
Information Reporting and Backup Withholding
The applicable withholding agent with respect
to a Non-U.S. Holder must generally report annually to the IRS and to such Non-U.S. Holder the amount of dividends paid to such
Non-U.S. Holder and the tax withheld with respect to such dividends, regardless of whether withholding was required. Copies of
the information returns reporting such dividends and withholding may also be made available to the tax authorities in the country
in which the Non-U.S. Holder resides under the provisions of an applicable income tax treaty or tax information exchange agreement.
Payments of dividends in respect of, or
proceeds on the disposition of, our Class A common stock made to a Non-U.S. Holder may be subject to additional information reporting
and backup withholding (currently at a rate of 28%) unless such Non-U.S. Holder establishes an exemption, for example by properly
certifying that such Non-U.S. Holder is not a United States person on a valid IRS Form W-8BEN or W-8BEN-E, as applicable, or another
appropriate version of Form W-8 (provided that the payor does not have actual knowledge or reason to know that such Non-U.S. Holder
is a United States person). Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules
from payments made to a Non-U.S. Holder generally will reduce the Non-U.S. Holder's U.S. federal income tax liability by the amount
withheld. If withholding results in an overpayment of taxes, a refund or credit generally may be obtained from the IRS, provided
the required information is timely furnished to the IRS. A Non-U.S. Holder is urged to consult its tax advisor regarding the application
of the information reporting and backup withholding rules.
FATCA
Pursuant to the Foreign Account Tax Compliance
Act, or "FATCA," foreign financial institutions (which term includes most foreign hedge funds, private equity funds,
mutual funds, securitization vehicles and other investment vehicles) and certain other foreign entities generally must comply with
certain information reporting rules with respect to their U.S. account holders and investors or confront a withholding tax on U.S.-source
payments made to them (whether received as a beneficial owner or as an intermediary for another party). A foreign financial institution
or such other foreign entity that does not comply with the FATCA reporting requirements will generally be subject to a 30% withholding
tax with respect to any "withholdable payments." For this purpose, withholdable payments generally include U.S.-source
payments otherwise subject to nonresident withholding tax (e.g., U.S.-source dividends) and also include the entire gross proceeds
from the sale or other disposition of any stock of U.S. issuers, even if the payment would otherwise not be subject to U.S. nonresident
withholding tax (e.g., because it is capital gain). Withholding under FATCA generally will apply to payments of dividends on our
Class A common stock, although withholding for gross proceeds from dispositions of our Class A common stock will be deferred until
January 1, 2019. Foreign financial institutions located in jurisdictions that have an intergovernmental agreement with the United
States governing FATCA may be subject to different rules.
We will not pay any additional amounts to
you in respect of any amounts withheld, including pursuant to FATCA. Under certain circumstances, you might be eligible for refunds
or credits of such taxes.
You are urged to consult with your own tax
advisors regarding the effect, if any, of the FATCA provisions to you based on your particular circumstances.
PLAN OF DISTRIBUTION
We have entered into an equity distribution
agreement with Jefferies LLC, the sales agent, under which we may issue and sell over a period of time, and from time to time,
shares of our Class A common stock having an aggregate offering price of up to $15,000,000 through the sales agent. This prospectus
supplement relates to our ability to issue and sell over a period of time, and from time to time, $15,000,000 worth of our Class
A common stock through the sales agent. Sales of the shares to which this prospectus supplement and the accompanying prospectus
relate, if any, will be made by means of ordinary brokers’ transactions on NASDAQ, or otherwise at market prices prevailing
at the time of sale or negotiated transactions, or as otherwise agreed with the applicable sales agent. As our sales agent, the
sales agent will not engage in any transactions that stabilize our Class A common stock.
Upon written instructions from us, the sales
agent will offer the shares of our Class A common stock, subject to the terms and conditions of the equity distribution agreement,
on a daily basis or as otherwise agreed upon by us and the sales agent. We will designate the maximum amount of shares of Class
A common stock to be sold through the sales agent on a daily basis or otherwise determine such maximum amount together with the
sales agent, subject to certain limitations set forth by the SEC. Subject to the terms and conditions of the equity distribution
agreement, the sales agent will use its commercially reasonable efforts to sell on our behalf all of the shares of Class A common
stock so designated or determined. We may instruct the sales agent not to sell shares of Class A common stock if the sales cannot
be effected at or above the price designated by us in any such instruction. We or the sales agent may suspend the offering of shares
of Class A common stock being made through the sales agent under the equity distribution agreement upon proper notice to the other
party.
For its service as sales agent in connection
with the sale of shares of our Class A common stock that may be offered hereby, we will pay the sales agent an aggregate fee of
3.0% of the gross sales price per share for any shares sold through it acting as our sales agent. The remaining sales proceeds,
after deducting any expenses payable by us and any transaction fees imposed by any governmental, regulatory or self-regulatory
organization in connection with the sales, will equal our net proceeds for the sale of such shares. We have agreed to reimburse
the sales agent for certain of its expenses in an amount not to exceed $175,000.
The sales agent will provide written confirmation
to us following the close of trading on NASDAQ on each day in which shares of Class A common stock are sold by it on our behalf
under the equity distribution agreement. Each confirmation will include the number of shares sold on that day, the gross sales
price per share, the compensation payable by us to the sales agent and the proceeds to us net of such compensation.
Settlement for sales of Class A common stock
will occur, unless the parties agree otherwise, on the third business day following the date on which any sales were made in return
for payment of the proceeds to us net of compensation paid by us to the sales agent. There is no arrangement for funds to be received
in an escrow, trust or similar arrangement.
We will deliver to NASDAQ copies of this
prospectus supplement and the accompanying prospectus pursuant to the rules of NASDAQ. Unless otherwise required, we will report
at least quarterly the number of shares of Class A common stock sold through the sales agent under the equity distribution agreement,
the net proceeds to us and the compensation paid by us to the sales agent in connection with the sales of Class A common stock.
Under the terms of the equity distribution
agreement, we also may sell shares to the sales agent, as principal for its own account, at a price per share to be agreed upon
at the time of sale. If we sell shares to the sales agent, acting as principal, we will enter into a separate terms agreement with
the sales agent setting forth the terms of such transaction, and we will describe the terms agreement in a separate prospectus
supplement or pricing supplement.
In connection with the sale of Class A common
stock on our behalf, the sales agent may be deemed to be an “underwriter” within the meaning of the Securities Act,
and the compensation paid to the sales agent may be deemed to be underwriting commissions or discounts. We have agreed, under the
equity distribution agreement, to provide indemnification and contribution to the sales agent against certain civil liabilities,
including liabilities under the Securities Act.
In the ordinary course of their business,
the sales agent and/or its affiliates have in the past performed, and may continue to perform, investment banking, broker dealer,
lending, financial advisory or other services for us for which they have received, or may receive, separate fees. In particular,
Jefferies LLC is a wholly-owned subsidiary of Leucadia National Corporation, who is a lender under our existing credit facility.
As described above under “Use of Proceeds,” we may use the net proceeds from this offering to reduce our outstanding
indebtedness, which could include the repayment of borrowings under our existing credit facility, as well as future lending arrangements
in which the sales agent and/or its affiliates participate. To the extent that the net proceeds of this offering are applied to
repay borrowings under our existing credit facility, Jefferies LLC and/or its affiliates will receive a portion of the net proceeds
of this offering.
We estimate that the total expenses from
this offering payable by us, excluding compensation payable to the sales agent under the equity distribution agreement, will be
approximately $400,000.
The offering of Class A common stock pursuant
to the equity distribution agreement will terminate upon the earlier of (1) the sale of all the shares of our Class A common stock
subject to the equity distribution agreement or (2) the termination of the equity distribution agreement, pursuant to its terms,
by either the sales agent or us.
LEGAL MATTERS
The validity of the shares of our Class
A common stock being offered by this prospectus supplement will be passed on for us by Jones Day, New York, New York. Certain legal
matters in connection with this offering will be passed upon for the sales agent by Latham & Watkins LLP, New York, New York.
EXPERTS
The consolidated financial statements incorporated
in this prospectus supplement by reference to FXCM Inc.’s Annual Report on Form 10-K for the years ended December 31, 2015
and 2014 and for each of the three years in the period ended December 31, 2015 have been so incorporated in reliance on the report
of Ernst & Young LLP, an independent registered public accounting firm, given on the authority of such firm as experts in auditing
and accounting.
PROSPECTUS
$125,000,000
Class A Common Stock
Preferred Stock
Debt Securities
Depositary Shares
Purchase Contracts
Warrants
Units
FXCM Inc.
FXCM Inc. may offer from time to time up
to an aggregate of $125,000,000 of any combination of Class A common stock, preferred stock, debt securities, depositary shares,
purchase contracts, warrants or units, in one or more offerings.
This prospectus describes the general manner
in which these securities may be offered and sold. If necessary, the specific manner in which these securities may be offered and
sold will be described in a supplement to this prospectus.
Our Class A common stock is listed on
the New York Stock Exchange under the symbol “FXCM”. The last reported sale price of the shares of our Class A common
stock on the New York Stock Exchange on July 25, 2016, was $9.33 per share. The aggregate market value of our outstanding Class
A common stock held by non-affiliates was approximately $43,982,273 based on 5,602,534 shares of outstanding Class A common stock,
of which 888,464 shares are held by affiliates, and a price of $9.33 per share, which was the last reported sale price of our
common stock as quoted on the New York Stock Exchange on July 25, 2016. We have not offered any securities pursuant to General
Instruction I.B.6 of Form S-3 during the prior 12 calendar month period that ends on, and includes, the date of this prospectus.
Investing in our securities involves
risks. You should carefully consider the risks described under “Risk Factors” in Item 1A of our most recent Annual
Report on Form 10-K and Item 1A of any subsequently filed Quarterly Reports on Form 10-Q (which documents are incorporated by reference
herein), as well as the other information contained or incorporated by reference in this prospectus or in any prospectus supplement
hereto before making a decision to invest in our securities. See “Where You Can Find More Information” below.
Neither the Securities and Exchange
Commission nor any state securities commission or other regulatory body has approved or disapproved of these securities or
passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this
prospectus is August 2, 2016
TABLE OF CONTENTS
You should rely only on the information
contained or incorporated by reference in this prospectus or any supplement to this prospectus. We have not authorized anyone to
provide you with different information. We are not making an offer to sell or seeking an offer to buy these securities in any jurisdiction
where the offer or sale is not permitted. You should not assume that the information contained in this prospectus or any supplement
to this prospectus is accurate as of any date other than the date on the front cover of those documents. You should read all information
supplementing this prospectus.
This prospectus is part of a registration
statement that we filed with the Securities and Exchange Commission using a “shelf” registration process. Under the
shelf registration process, we may offer from time to time up to an aggregate of $125,000,000 of any combination of Class A common
stock, preferred stock, debt securities, depositary shares, purchase contracts, warrants or units in one or more offerings.
This prospectus provides you with a general
description of the securities we may offer. Each time we sell securities, we will provide a prospectus supplement that will contain
specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained
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 the prospectus supplement. We may also authorize one or more free writing prospectuses to
be provided to you that may contain material information relating to a particular offering. For the securities being sold, the
prospectus supplement will include the names of the underwriters, dealers or agents, if any, their compensation, the terms of the
offering, and the net proceeds to the Company. The prospectus supplement may also contain additional information about certain
United States federal income tax considerations relating to the securities covered by the prospectus supplement. You should read
both this prospectus and any prospectus supplement, together with additional information described under the heading “Where
You Can Find More Information.”
Unless the context suggests otherwise, references
in this prospectus to “FXCM,” the “Company,” “we,” “us” and “our” refer
to FXCM Inc. and its consolidated subsidiaries.
FXCM
FXCM is an online provider of foreign exchange
(“FX”) trading and related services to over 175,000 active retail accounts globally. We offer our customers access
to over-the-counter (“OTC”) FX markets and have developed a proprietary technology platform that we believe provides
our customers with an efficient and cost-effective way to trade FX. In an FX trade, a participant buys one currency and simultaneously
sells another, a combination known as a “currency pair.” Our platform seeks to present our FX customers with the best
price quotations on 45 currency pairs from up to 31 global banks, financial institutions and market makers (“FX market makers”).
We also offer our non-U.S. customers the ability to trade contracts-for-difference (“CFDs”).
We primarily offer our customers what is
referred to as an agency model to execute their trades. Our agency model is fundamental to our core business philosophy because
we believe that it aligns our interests with those of our customers and reduces our risks. In the agency model, when our customer
executes a trade on the best price quotation offered by our FX market makers, we act as a credit intermediary, or riskless principal,
simultaneously entering into offsetting trades with both the customer and the FX market maker. This agency model has the effect
of automatically hedging our positions and eliminating market risk exposure. Beginning in 2015, we began to offer a dealing desk,
or principal, execution model to smaller retail clients. Under the dealing desk model, we maintain our trading position and
do not offset the trade with another party on a one for one basis. CFDs are primarily a dealing desk offering. By combining smaller
positions and trading them out on an aggregate basis, we are able to optimize revenues from accounts that are less actively traded.
Generally, under both models, we earn trading fees through commissions or by adding a markup to the price provided by the FX market
makers. In certain geographic locations, we provide our customers with the price provided by the FX market makers and display trading
fees and commissions separately. Revenues earned under the dealing desk model also include our realized and unrealized foreign
currency trading gains or losses on our positions with customers.
FXCM Inc. is a holding company that was
incorporated as a Delaware corporation on August 10, 2010 and its sole asset is an equity interest in FXCM Holdings, LLC, of which
FXCM Inc. is the sole managing member. Our principal executive offices are located at 55 Water Street, Floor 50, New York, New
York 10041, and our telephone number is (646) 432-2986.
FORWARD LOOKING STATEMENTS
This prospectus contains or incorporates
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”), which reflect our current views with respect to,
among other things, our operations and financial performance. In some cases, you can identify these forward-looking statements
by the use of words such as “outlook”, “believes”, “expects”, “potential”, “continues”,
“may”, “will”, “should”, “seeks”, “approximately”, “predicts”,
“intends”, “plans”, “estimates”, “anticipates” or the negative version of these
words or other comparable words. Such forward-looking statements are subject to various risks and uncertainties. These forward-looking
statements are not historical facts and are based on current expectations, estimates and projections about FXCM's industry, management's
beliefs and certain assumptions made by management, many of which, by their nature, are inherently uncertain and beyond our control.
Accordingly, there are or will be important
factors that could cause actual outcomes or results to differ materially from those indicated in these statements. All statements
other than statements of historical fact are forward-looking statements and are based on various underlying assumptions and expectations
and are subject to known and unknown risks, uncertainties and assumptions, and may include projections of our future financial
performance based on our growth strategies and anticipated trends in our business. We believe these factors include, but are not
limited to, those described under “Risk Factors” in Item 1A of our most recent Annual Report on Form 10-K for the fiscal
year ended December 31, 2015, filed with the SEC on March 11, 2016, and Item 1A of any subsequently filed Quarterly Reports on
Form 10-Q, as such factors may be updated from time to time in our periodic filings with the SEC (which documents are incorporated
by reference herein), as well as the other information contained or incorporated by reference in this prospectus or in any prospectus
supplement hereto. These factors should not be construed as exhaustive and should be read in conjunction with the other cautionary
statements that are included or incorporated by reference in this prospectus or in any prospectus supplement hereto. We undertake
no obligation to publicly update or review any forward-looking statement, whether as a result of new information, future developments
or otherwise.
WHERE YOU CAN FIND MORE INFORMATION
We are required to file annual, quarterly
and current reports, proxy statements and other information with the Securities and Exchange Commission (the “SEC”).
You may read and copy any documents filed by us at the SEC’s public reference room at 100 F Street, N.E., Washington, D.C.
20549. Please call the SEC at 1-800-SEC-0330 for further information about the public reference room. Our filings with the SEC
are also available to the public through the SEC’s Internet site at
http://www.sec.gov
and through the New
York Stock Exchange, 20 Broad Street, New York, New York 10005. We make available free of charge on our website (http://www.
fxcm
.com)
our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and all amendments to those reports
as soon as reasonably practicable after such material is electronically filed with the SEC.
We have filed a registration statement on
Form S-3 with the SEC relating to the securities covered by this prospectus. This prospectus is a part of the registration statement
and does not contain all of the information in the registration statement. Whenever a reference is made in this prospectus to a
contract or other document of ours, please be aware that the reference is only a summary and that you should refer to the exhibits
that are part of the registration statement for a copy of the contract or other document. You may review a copy of the registration
statement at the SEC’s public reference room in Washington, D.C., as well as through the SEC’s Internet site.
The SEC’s rules allow us to “incorporate
by reference” information into this prospectus. This means that we can disclose important information to you by referring
you to another document. Any information referred to in this way is considered part of this prospectus from the date we file that
document. Any reports filed by us with the SEC after the date of the initial registration statement and prior to effectiveness
of the registration statement and any reports filed by us with the SEC after the date of this prospectus and before the date that
the offerings of the securities by means of this prospectus are terminated will automatically update and, where applicable, supersede
any information contained in this prospectus or incorporated by reference in this prospectus.
We incorporate by reference into this prospectus
the following documents or information filed with the SEC:
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Annual Report on Form 10-K for the year ended December 31, 2015, filed on March 11, 2016 (File No. 001-34986);
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(2)
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Quarterly Report on Form 10-Q for the quarter ended March 31, 2016, filed on May 6, 2016 (File No. 001-34986);
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(3)
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Current Report on Form 8-K, filed on January 26, 2016 (File No. 001-34986);
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(4)
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Current Report on Form 8-K, filed on February 1, 2016 (File No. 001-34986);
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(5)
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Current Report on Form 8-K, filed on April 15, 2016 (File No. 001-34986);
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(6)
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Current Report on Form 8-K, filed on June 13, 2016 (File No. 001-34986);
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(7)
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Definitive Proxy Statement on Schedule 14A, filed April 26, 2016 (File No. 001-34986);
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(8)
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The description of shares of Class A common stock contained in the Registration Statement on Form 8-A, dated November 24, 2010 (File No. 001-34986), of FXCM Inc.;
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(9)
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The description of Rights to Purchase Series A Junior Participating Preferred Stock contained in the Registration Statement on Form 8-A, dated January 26, 2016 (File No. 001-34986), of FXCM Inc.; and
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(10)
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All documents filed by us under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of the initial registration statement and prior to effectiveness of the registration statement and after the date of this prospectus and before the termination of the offerings to which this prospectus relates.
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We will provide without charge to each person,
including any beneficial owner, to whom this prospectus is delivered, upon his or her written or oral request, a copy of any or
all documents referred to above which have been or may be incorporated by reference into this prospectus, excluding exhibits to
those documents unless they are specifically incorporated by reference into those documents. You can request those documents from
the Corporate Secretary, FXCM Inc., at 55 Water St., Floor 50, New York, New York 10041. You may also contact the Corporate Secretary
at (646) 432-2986.
USE OF PROCEEDS
Unless otherwise indicated in a prospectus
supplement, we intend to use the net proceeds from our sale of securities pursuant to this prospectus from time to time to reduce
or refinance outstanding debt, redeem or repurchase certain outstanding securities, increase our working capital, and for general
corporate purposes. We have not allocated the proceeds to these purposes as of the date of this prospectus. Allocation of the proceeds
of a particular series of securities, or the principal reasons for the offering, if no allocation has been made, will be described
in the applicable prospectus supplement.
DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock consists of
3,000,000,000 shares of Class A common stock, par value $.01 per share, 1,000,000 shares of Class B common stock, par value $.01
per share, and 300,000,000 shares of preferred stock, par value $.01 per share. The following description of our capital stock
is a summary and is qualified in its entirety by reference to our certificate of incorporation and bylaws, the forms of which are
filed as exhibits to the registration statement of which this prospectus forms a part, and by applicable law. Unless our board
of directors determines otherwise, we will issue all shares of our capital stock in uncertificated form.
Common Stock
Class A Common Stock
Holders of shares of our Class A common
stock are entitled to one vote for each share held of record on all matters submitted to a vote of stockholders.
Holders of shares of our Class A common
stock are entitled to receive dividends when and if declared by our board of directors out of funds legally available therefor,
subject to any statutory or contractual restrictions on the payment of dividends and to any restrictions on the payment of dividends
imposed by the terms of any outstanding preferred stock.
Upon our dissolution or liquidation or the
sale of all or substantially all of our assets, after payment in full of all amounts required to be paid to creditors and to the
holders of preferred stock having liquidation preferences, if any, the holders of shares of our Class A common stock will be entitled
to receive pro rata our remaining assets available for distribution.
Holders of shares of our Class A common
stock do not have preemptive, subscription, redemption or conversion rights.
Shareholder Rights
Each holder of Class A common stock has
been issued one right (a “Right”) for each outstanding share of Class A common stock such shareholder holds. Each Right,
once exercisable, entitles the registered holder to purchase from us one one-thousandth (1/1000) of a share of our Series A Junior
Participating Preferred Stock (described below)(the “Preferred Stock”), at a price of $11.20 per one one-thousandth
(1/1000) of a share, subject to certain adjustments (the “Exercise Price”). The description and terms of the Rights
are set forth in a Amended and Restated Rights Agreement (as it may be supplemented or amended from time to time, the “Rights
Agreement”), dated as of January 26, 2016, by and between the Company and American Stock Transfer & Trust Company, LLC,
as Rights Agent (the “Rights Agent”).
As discussed below, initially the Rights
will not be exercisable, certificates will not be sent to stockholders and the Rights will automatically trade with the Class A
common stock.
The Rights, unless earlier redeemed or exchanged
by the Board of Directors, become exercisable upon the close of business on the day (the “Distribution Date”) which
is the earlier of (a) the tenth (10th) business day following a public announcement that a person or group of affiliated or associated
persons, with certain exceptions set forth below, has acquired beneficial ownership of either (i) 4.9% of our outstanding Capital
Stock (as defined in the Rights Agreement), or (ii) 10% or more our outstanding voting shares (an “Acquiring Person”)
and (b) the tenth (10th) business day (or such later date as may be determined by the Board of Directors prior to such time as
any person or group of affiliated or associated persons becomes an Acquiring Person) after the date of the commencement by any
person (other than an Exempt Person, as defined in the Rights Agreement) of a tender or exchange offer, the consummation of which
would result in such person or group of affiliated or associated persons becoming an Acquiring Person.
The Rights will expire upon the close of
business on the earliest to occur of: (i) January 26, 2019 and (ii) the date on which the rights are redeemed or exchanged by the
Corporation in accordance with the Rights Agreement.
Until a Right is exercised, the holder,
as such, will have no rights as a stockholder of the Company, including, without limitation, the right to vote or to receive dividends.
Class B Common Stock
Each holder of Class B common stock shall
be entitled, without regard to the number of shares of Class B common stock held by such holder, to one vote for each Holdings
Unit (as defined in our certificate of incorporation) of FXCM Holdings, LLC held by such holder. Accordingly, the unitholders of
FXCM Holdings, LLC collectively have a number of votes in FXCM Inc. that is equal to the aggregate number of Holdings Units that
they hold.
Holders of shares of our Class A common
stock and Class B common stock vote together as a single class on all matters presented to our stockholders for their vote or approval,
except as otherwise required by applicable law.
Holders of our Class B common stock do not
have any rights to receive dividends or to receive a distribution upon a liquidation or winding up of FXCM Inc.
Preferred Stock
Our certificate of incorporation authorizes
our board of directors to establish one or more series of preferred stock (including convertible preferred stock). Unless required
by law or by any stock exchange, the authorized shares of preferred stock will be available for issuance without further action
by you. Our board of directors is able to determine, with respect to any series of preferred stock, the terms and rights of that
series, including:
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the designation of the series;
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the
number of shares of the series, which our board of directors may, except where otherwise provided in the preferred stock designation,
increase or decrease, but not below the number of shares then outstanding;
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whether dividends, if any, will be cumulative or non-cumulative and the dividend rate of the series;
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the dates at which dividends, if any, will be payable;
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the redemption rights and price or prices, if any, for shares of the series;
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the terms and amounts of any sinking fund provided for the purchase or redemption of shares of the series;
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the amounts payable on shares of the series in the event of any voluntary or involuntary liquidation, dissolution or winding-up of the affairs of our company;
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whether the shares of the series will be convertible into shares of any other class or series, or any other security, of our company or any other entity, and, if so, the specification of the other class or series or other security, the conversion price or prices or rate or rates, any rate adjustments, the date or dates as of which the shares will be convertible and all other terms and conditions upon which the conversion may be made;
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restrictions on the issuance of shares of the same series or of any other class or series; and
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the voting rights, if any, of the holders of the series.
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We could issue a series of preferred stock
that could, depending on the terms of the series, impede or discourage an acquisition attempt or other transaction that some, or
a majority, of you might believe to be in your best interests or in which you might receive a premium for your shares of Class
A common stock over the market price of the shares of Class A common stock.
Series A Junior Participating Preferred
Stock
We have designated 55,120 shares of our
Preferred Stock as Series A Junior Participating Preferred Stock (the “Series A Preferred”). Shares of Series A Preferred
purchasable upon exercise of the Rights will be non-redeemable and, unless otherwise provided in connection with the creation of
a subsequent series of preferred shares, will be subordinate to any other series of our preferred shares. The Series A Preferred
may not be issued except upon exercise of Rights or in connection with a redemption or exchange of Rights. Each share of Series
A Preferred will be entitled to receive when, as and if declared by the Board of Directors, a quarterly dividend in an amount equal
to the greater of $1.00 per share or one thousand (1,000) times the cash dividends declared on the Class A common stock. In addition,
the holders of the Series A Preferred are entitled to receive one thousand (1,000) times any non cash dividends (other than dividends
payable in equity securities) declared on the Class A common stock, in like kind. In the event of the liquidation of Company, the
holders of Series A Preferred will be entitled to receive, for each share of Series A Preferred, a payment in an amount equal to
the greater of $1,000 or one thousand (1,000) times the payment made per share of Class A common stock. Each share of Series A
Preferred will have one thousand (1,000) votes, voting together with the Class A common stock. In the event of any merger, consolidation
or other transaction in which the Class A common stock is exchanged, each share of Series A Preferred will be entitled to receive
one thousand (1,000) times the amount received per share of Class A common stock. The rights of Series A Preferred as to dividends,
liquidation and voting are protected by anti-dilution provisions.
Authorized but Unissued Capital Stock
Delaware law does not require stockholder
approval for any issuance of authorized shares. However, the listing requirements of the New York Stock Exchange, which would apply
so long as the shares of Class A common stock remains listed on the New York Stock Exchange, require stockholder approval of certain
issuances equal to or exceeding 20% of the then outstanding voting power or the then outstanding number of shares of Class A common
stock. We have received confirmation from the New York Stock Exchange that the calculation in this latter case assumes the exchange
of outstanding Holdings Units not held by FXCM Inc. These additional shares may be used for a variety of corporate purposes, including
future public offerings, to raise additional capital or to facilitate acquisitions.
One of the effects of the existence of unissued
and unreserved common stock or preferred stock may be to enable our board of directors to issue shares to persons friendly to current
management, which issuance could render more difficult or discourage an attempt to obtain control of our company by means of a
merger, tender offer, proxy contest or otherwise, and thereby protect the continuity of our management and possibly deprive the
stockholders of opportunities to sell their shares at prices higher than prevailing market prices.
Forum Selection Clause
Unless we consent in writing to the selection
of an alternative forum, the Court of Chancery of the State of Delaware will be the sole and exclusive forum for (i) any derivative
action or proceeding brought on our behalf, (ii) any action asserting a claim of breach of a fiduciary duty owed by any of our
directors, officers, employees or agents to us or to our stockholders, (iii) any action asserting a claim arising pursuant to any
provision of the Delaware General Corporation Law (the “DGCL”) or (iv) any action asserting a claim governed by the
internal affairs doctrine, in each such case subject to said Court of Chancery having personal jurisdiction over the indispensable
parties named as defendants therein. Any person or entity purchasing or otherwise acquiring any interest in shares of our capital
stock will be deemed to have notice of and consented to the forum selection clause.
Anti-Takeover Effects of Provisions of Delaware Law and Our
Certificate of Incorporation and Bylaws
Undesignated Preferred Stock
The ability to authorize undesignated preferred
stock will make it possible for our board of directors to issue preferred stock with super majority voting, special approval, dividend
or other rights or preferences on a discriminatory basis that could impede the success of any attempt to acquire us or otherwise
effect a change in control of us. These and other provisions may have the effect of deferring, delaying or discouraging hostile
takeovers, or changes in control or management of our company.
Shareholder Rights
The Rights will have certain anti-takeover
effects. The Rights will cause substantial dilution to any person or group that attempts to acquire the Company without the approval
of the Board of Directors. As a result, the overall effect of the Rights may be to render more difficult or discourage any attempt
to acquire our company even if such acquisition may be favorable to the interests of our stockholders. Because the Board of Directors
can redeem the Rights, however, the Rights should not interfere with a merger or other business combination approved by the Board
of Directors.
Requirements for Advance Notification
of Stockholder Meetings, Nominations and Proposals
Our bylaws provide that special meetings
of the stockholders may be called only by or at the direction of the board of directors, the chairman of our board of directors
or the chief executive officer. Our bylaws prohibit the conduct of any business at a special meeting other than as specified in
the notice for such meeting. These provisions may have the effect of deferring, delaying or discouraging hostile takeovers, or
changes in control or management of our company.
Our bylaws establish advance notice procedures
with respect to stockholder proposals and the nomination of candidates for election as directors, other than nominations made by
or at the direction of the board of directors or a committee of the board of directors. In order for any matter to be “properly
brought” before a meeting, a stockholder will have to comply with advance notice requirements and provide us with certain
information. Additionally, vacancies and newly created directorships may be filled only by a vote of a majority of the directors
then in office, even though less than a quorum, and not by the stockholders. Our bylaws allow the presiding officer at a meeting
of the stockholders to adopt rules and regulations for the conduct of meetings which may have the effect of precluding the conduct
of certain business at a meeting if the rules and regulations are not followed. These provisions may also defer, delay or discourage
a potential acquirer from conducting a solicitation of proxies to elect the acquirer’s own slate of directors or otherwise
attempting to obtain control of our company.
Our certificate of incorporation provides
that the board of directors is expressly authorized to make, alter, or repeal our bylaws and that our stockholders may only amend
our bylaws with the approval of 80% or more of all of the outstanding shares of our capital stock entitled to vote.
No Cumulative Voting
The DGCL provides that stockholders are
not entitled to the right to cumulate votes in the election of directors unless our amended and restated certificate of incorporation
provides otherwise. Our amended and restated certificate of incorporation does not expressly provide for cumulative voting.
Stockholder Action by Written Consent
Pursuant to Section 228 of the DGCL, any
action required to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior
notice and without a vote if a consent or consents in writing, setting forth the action so taken, is signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at
which all shares of our stock entitled to vote thereon were present and voted, unless the company’s certificate of incorporation
provides otherwise. Our amended and restated certificate of incorporation does not permit our Class A common stockholders to act
by consent in writing of such stockholders unless such action is recommended by all directors then in office.
Delaware Anti-Takeover Statute
We are subject to Section 203 of the DGCL.
Section 203 provides that, subject to certain exceptions specified in the law, a publicly-held Delaware corporation shall not engage
in certain “business combinations” with any “interested stockholder” for a three-year period after the
date of the transaction in which the person became an interested stockholder. These provisions generally prohibit or delay the
accomplishment of mergers, assets or stock sales or other takeover or change-in-control attempts that are not approved by a company’s
board of directors.
In general, Section 203 prohibits a publicly-held
Delaware corporation from engaging, under certain circumstances, in a business combination with an interested stockholder for a
period of three years following the date the person became an interested stockholder unless:
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prior to the date of the transaction, the board of directors of the corporation approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder;
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upon completion of the transaction that resulted in the stockholder becoming an interested stockholder, the stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the number of shares outstanding (1) shares owned by persons who are directors and also officers and (2) shares owned by employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or
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On or subsequent to the date of the transaction, the business combination is approved by the board of directors and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting stock which is not owned by the interested stockholder.
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Generally, a business combination includes
a merger, asset or stock sale, or other transaction resulting in a financial benefit to the interested stockholder. An interested
stockholder is a person who, together with affiliates and associates, owns or, within three years prior to the determination of
interested stockholder status, did own 15% or more of a corporation’s outstanding voting stock.
Under certain circumstances, Section 203
makes it more difficult for a person who would be an “interested stockholder” to effect various business combinations
with a corporation for a three-year period. Accordingly, Section 203 could have an anti-takeover effect with respect to certain
transactions our board of directors does not approve in advance. The provisions of Section 203 may encourage companies interested
in acquiring our company to negotiate in advance with our board of directors because the stockholder approval requirement would
be avoided if our board of directors approves either the business combination or the transaction that results in the stockholder
becoming an interested stockholder. However, Section 203 also could discourage attempts that might result in a premium over the
market price for the shares held by stockholders. These provisions also may make it more difficult to accomplish transactions that
stockholders may otherwise deem to be in their best interests.
Transfer Agent and Registrar
The transfer agent and registrar for our
Class A common stock is American Stock Transfer & Trust Company, LLC.
Listing
Our Class A common stock is listed on the
New York Stock Exchange under the symbol “FXCM.”
DESCRIPTION OF DEBT SECURITIES
We have summarized below general terms and
conditions of the debt securities that we will offer and sell pursuant to this prospectus. When we offer to sell a particular series
of debt securities, we will describe the specific terms and conditions of the series in a prospectus supplement to this prospectus.
We will also indicate in the applicable prospectus supplement whether the general terms and conditions described in this prospectus
apply to the series of debt securities. In addition, the terms and conditions of the debt securities of a series may be different
in one or more respects from the terms and conditions described below. If so, those differences will be described in the applicable
prospectus supplement. We may, but need not, describe any additional or different terms and conditions of those debt securities
in an annual report on Form 10-K, a quarterly report on Form 10-Q or a current report on Form 8-K filed with the SEC, the information
in which would be incorporated by reference in this prospectus and that report will be identified in the applicable prospectus
supplement.
We will issue the debt securities in one
or more series, which will consist of either our senior debt or our subordinated debt, under an indenture between us and Wells
Fargo Bank, National Association, as trustee. The debt securities of any series, whether senior or subordinated, may be issued
as convertible debt securities or exchangeable debt securities. We may use different trustees for different series of debt securities
issued under the indenture. The following summary of provisions of the indenture does not purport to be complete and is subject
to, and qualified in its entirety by reference to, all of the provisions of the indenture, including definitions therein of certain
terms. This summary may not contain all of the information that you may find useful. The terms and conditions of the debt securities
of each series will be set forth in those debt securities and may also be set forth in an indenture supplemental to the indenture.
For a comprehensive description of any series of debt securities being offered pursuant to this prospectus, you should read both
this prospectus and the applicable prospectus supplement.
We have filed the indenture as an exhibit
to the registration statement of which this prospectus forms a part. A form of each debt security, reflecting the specific terms
and provisions of that series of debt securities, will be filed with the SEC in connection with each offering and will be incorporated
by reference in the registration statement of which this prospectus forms a part. Copies of the indenture, any supplemental indenture
and any form of debt security that has been filed may be obtained in the manner described under “Where You Can Find More
Information.”
Capitalized terms used and not defined in
this summary have the meanings specified in the indenture. For purposes of this section of this prospectus, references to “we,”
“us” and “our” are to FXCM Inc. (parent company only) and not to any of its subsidiaries. References to
the “applicable prospectus supplement” are to the prospectus supplement to this prospectus that describes the specific
terms and conditions of a series of debt securities.
General
We may offer the debt securities from time
to time in as many distinct series as we may determine. Our senior debt securities will be our senior unsecured obligations and
will rank equally in right of payment with all of our senior unsecured indebtedness. If we issue subordinated debt securities,
the terms of the subordination will be described in the applicable prospectus supplement. The indenture does not limit the amount
of debt securities that we may issue under that indenture. We may, without the consent of the holders of the debt securities of
any series, issue additional debt securities ranking equally with, and otherwise similar in all respects to, the debt securities
of the series (except for the public offering price and the issue date) so that those additional debt securities will be consolidated
and form a single series with the debt securities of the series previously offered and sold.
The debt securities of each series will
be issued in fully registered form without interest coupons. We currently anticipate that the debt securities of each series offered
and sold pursuant to this prospectus will be issued as global debt securities as described under “—Book-Entry; Delivery
and Form; Global Securities” and will trade in book-entry form only.
Debt securities denominated in U.S. dollars
will be issued in denominations of $2,000 and any integral multiple of $1,000 in excess thereof, unless otherwise specified in
the applicable prospectus supplement. If the debt securities of a series are denominated in a foreign or composite currency, the
applicable prospectus supplement will specify the denomination or denominations in which those debt securities will be issued.
Unless otherwise specified in the applicable
prospectus supplement, we will repay the debt securities of each series at 100% of their principal amount, together with accrued
and unpaid interest thereon at maturity, except if those debt securities have been previously redeemed or purchased and cancelled.
Unless otherwise specified in the applicable
prospectus supplement, the debt securities of each series will not be listed on any securities exchange.
Provisions of Indenture
The indenture provides that debt securities
may be issued under it from time to time in one or more series. For each series of debt securities, this prospectus and the applicable
prospectus supplement will describe the following terms and conditions of that series of debt securities:
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the title of the series;
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the maximum aggregate principal amount, if any, established for debt securities of the series;
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the person to whom any interest on a debt security of the series will be payable, if other than the person in whose name that debt security (or one or more predecessor debt securities) is registered at the close of business on the regular record date for that interest;
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whether the debt securities rank as senior debt or subordinated debt and the terms of any subordination;
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the date or dates on which the principal of any debt securities of the series will be payable or the method used to determine or extend those dates;
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the rate or rates at which any debt securities of the series will bear interest, if any, the date or dates from which interest, if any, will accrue, the interest payment dates on which interest, if any, will be payable and the regular record date for interest, if any, payable on any interest payment date;
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the place or places where the principal of and premium, if any, and interest on any debt securities of the series will be payable and the manner in which any payment may be made;
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the period or periods within which, the price or prices at which and the terms and conditions upon which any debt securities of the series may be redeemed, in whole or in part, at our option and, if other than by a board resolution, the manner in which any election by us to redeem the debt securities will be evidenced;
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our obligation or right, if any, to redeem or purchase any debt securities of the series pursuant to any sinking fund or at the option of the holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which any debt securities of the series will be redeemed or purchased, in whole or in part, pursuant to that obligation;
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if other than denominations of $2,000 and any integral multiple of $1,000 in excess thereof, the denominations in which any debt securities of the series will be issuable;
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if the amount of principal of or premium, if any, or interest on any debt securities of the series may be determined with reference to a financial or economic measure or index or pursuant to a formula, the manner in which those amounts will be determined;
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if other than U.S. dollars, the currency, currencies or currency units in which the principal of or premium, if any, or interest on any debt securities of the series will be payable and the manner of determining the equivalent thereof in U.S. dollars for any purpose;
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if the principal of or premium, if any, or interest on any debt securities of the series is to be payable, at our election or the election of the holder thereof, in one or more currencies or currency units other than that or those in which those debt securities are stated to be payable, the currency, currencies or currency units in which the principal of or premium, if any, or interest on the debt securities as to which that election is made will be payable, the periods within which and the terms and conditions upon which that election is to be made and the amount so payable (or the manner in which that amount will be determined);
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if other than the entire principal amount thereof, the portion of the principal amount of any debt securities of the series which will be payable upon declaration of acceleration of the maturity thereof pursuant to the indenture;
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if the principal amount payable at the stated maturity of any debt securities of the series will not be determinable as of any one or more dates prior to the stated maturity, the amount which will be deemed to be the principal amount of those debt securities as of any date for any purpose, including the principal amount thereof which will be due and payable upon any maturity other than the stated maturity or which will be deemed to be outstanding as of any date prior to the stated maturity (or, in any case, the manner in which the amount deemed to be the principal amount will be determined);
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if other than by a board resolution, the manner in which any election by us to defease any debt securities of the series pursuant to the indenture will be evidenced; whether any debt securities of the series other than debt securities denominated in U.S. dollars and bearing interest at a fixed rate are to be subject to the defeasance provisions of the indenture; or, in the case of debt securities denominated in U.S. dollars and bearing interest at a fixed rate, if applicable, that the debt securities of the series, in whole or any specified part, will not be defeasible pursuant to the indenture;
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if applicable, that any debt securities of the series will be issuable in whole or in part in the form of one or more global securities and, in that case, the respective depositaries for those global securities and the form of any legend or legends which will be borne by any global securities, and any circumstances in which any global security may be exchanged in whole or in part for debt securities registered, and any transfer of a global security in whole or in part may be registered, in the name or names of persons other than the depositary for that global security or a nominee thereof and any other provisions governing exchanges or transfers of global securities;
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any addition to, deletion from or change in the events of default applicable to any debt securities of the series and any change in the right of the trustee or the requisite holders of those debt securities to declare the principal amount thereof due and payable;
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any addition to, deletion from or change in the covenants described in this prospectus applicable to debt securities of the series;
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if the debt securities of the series are to be convertible into or exchangeable for cash and/or any securities or other property of any person (including us), the terms and conditions upon which those debt securities will be so convertible or exchangeable;
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whether the debt securities of the series will be guaranteed by any persons and, if so, the identity of those persons, the terms and conditions upon which those debt securities will be guaranteed and, if applicable, the terms and conditions upon which those guarantees may be subordinated to other indebtedness of the respective guarantors;
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whether the debt securities of the series will be secured by any collateral and, if so, the terms and conditions upon which those debt securities will be secured and, if applicable, upon which those liens may be subordinated to other liens securing other indebtedness of us or of any guarantor;
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if other than Wells Fargo Bank, National Association is to act as trustee for the debt securities of such series, the name and corporate trust office of such trustee; and
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any other terms of the debt securities of the series (which terms will not be inconsistent with the provisions of the indenture, except as permitted thereunder).
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Interest and Interest Rates
General
In the applicable prospectus supplement,
we will designate the debt securities of a series as being either debt securities bearing interest at a fixed rate of interest
or debt securities bearing interest at a floating rate of interest. Each debt security will begin to accrue interest from the date
on which it is originally issued. Interest on each debt security will be payable in arrears on the interest payment dates set forth
in the applicable prospectus supplement and as otherwise described below and at maturity or, if earlier, the redemption date described
below. Interest will be payable to the holder of record of the debt securities at the close of business on the record date for
each interest payment date, which record dates will be specified in the applicable prospectus supplement.
As used in the indenture, the term “business
day” means, with respect to debt securities of a series, any day, other than a Saturday or Sunday, that is not a day on which
banking institutions are authorized or obligated by law or executive order to close in the place where the principal of and premium,
if any, and interest on the debt securities of that series are payable.
Fixed Rate Debt Securities
If the debt securities of a series being
offered will bear interest at a fixed rate of interest, the debt securities of that series will bear interest at the annual interest
rate specified on the cover page of the applicable prospectus supplement. Interest on those debt securities will be payable semi-annually
in arrears on the interest payment dates for those debt securities. If the maturity date, the redemption date or an interest payment
date is not a business day, we will pay principal, premium, if any, the redemption price, if any, and interest on the next succeeding
business day, and no interest will accrue from and after the relevant maturity date, redemption date or interest payment date to
the date of that payment. Unless otherwise specified in the applicable prospectus supplement, interest on the fixed rate debt securities
will be computed on the basis of a 360-day year of twelve 30-day months.
Floating Rate Debt Securities
If the debt securities of a series being
offered will bear interest at a floating rate of interest, the debt securities of that series will bear interest during each relevant
interest period at the rate determined as set forth in the applicable prospectus supplement. In the applicable prospectus supplement,
we will indicate any spread or spread multiplier to be applied in the interest rate formula to determine the interest rate applicable
in any interest period. The applicable prospectus supplement will identify the calculation agent for each series of floating rate
debt securities, which will compute the interest accruing on the debt securities of the relevant series.
Payment and Transfer or Exchange
Principal of and premium, if any, and interest
on the debt securities of each series will be payable, and the debt securities may be exchanged or transferred, at the office or
agency maintained by us for that purpose (which initially will be the corporate trust office of the trustee). Payment of principal
of and premium, if any, and interest on a global security registered in the name of or held by The Depository Trust Company (“DTC”)
or its nominee will be made in immediately available funds to DTC or its nominee, as the case may be, as the registered holder
of that global security. If any of the debt securities are no longer represented by a global security, payment of interest on certificated
debt securities in definitive form may, at our option, be made by check mailed directly to holders at their registered addresses.
See “—Book-Entry; Delivery and Form; Global Securities.”
A holder may transfer or exchange any certificated
debt securities in definitive form at the corporate trust office of the trustee. No service charge will be made for any registration
of transfer or exchange of debt securities, but we may require payment of a sum sufficient to cover any transfer tax or other similar
governmental charge payable in connection therewith.
We are not required to transfer or exchange
any debt security selected for redemption for a period of 15 days before mailing of a notice of redemption of the debt security
to be redeemed.
The registered holder of debt securities
will be treated as the owner of those debt securities for all purposes.
All amounts in respect of principal of and
premium, if any, or interest on the debt securities paid by us that remain unclaimed two years after that payment was due and payable
will be repaid to us, and the holders of those debt securities will thereafter look solely to us for payment.
Covenants
The indenture sets forth limited covenants,
including the covenant described below, that will apply to each series of debt securities issued under the indenture, unless otherwise
specified in the applicable prospectus supplement. However, these covenants do not, among other things:
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limit the amount of indebtedness or lease obligations that may be incurred by us or our subsidiaries;
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limit our ability or that of our subsidiaries to issue, assume or guarantee debt secured by liens; or
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restrict us from paying dividends or making distributions on our capital stock or purchasing or redeeming our capital stock.
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Consolidation, Merger and Sale of Assets
The indenture provides that we may consolidate
with or merge with or into any other person, and may sell, transfer, lease or convey all or substantially all of our properties
and assets to another person, provided that the following conditions are satisfied:
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we are the continuing entity, or the resulting, surviving or transferee person (the “Successor”) is a corporation, partnership, trust or other entity organized and validly existing under the laws of any domestic or foreign jurisdiction and the Successor (if not us) will expressly assume, by supplemental indenture, all of our obligations under the debt securities and the indenture and, for each security that by its terms provides for conversion, provide for the right to convert that security in accordance with its terms;
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immediately after giving effect to that transaction, no default or event of default under the indenture has occurred and is continuing; and
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the trustee receives from us an officer’s certificate and an opinion of counsel that the merger, consolidation, transfer, sale, lease or conveyance and the supplemental indenture, as the case may be, complies with the applicable provisions of the indenture.
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If we consolidate or merge with or into
any other person or sell, transfer, lease or convey all or substantially all of our properties and assets in accordance with the
indenture, the Successor will be substituted for us under the indenture, with the same effect as if it had been an original party
to the indenture. As a result, the Successor may exercise our rights and powers under the indenture, and we will be released from
all our liabilities and obligations under the indenture and the debt securities.
Any substitution of the Successor for us
might be deemed for federal income tax purposes to be an exchange of the debt securities for “new” debt securities,
resulting in recognition of gain or loss for those purposes and possibly certain other adverse tax consequences to beneficial owners
of the debt securities. Holders should consult their own tax advisors regarding the tax consequences of any substitution.
For purposes of this covenant, “person”
means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision thereof or any other entity.
Events of Default
Each of the following events are defined
in the indenture as an “event of default” (whatever the reason therefor and whether or not it will be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body) with respect to the debt securities of any series:
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(1)
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default in the payment of any installment of interest on any debt securities of that series for 30 days after becoming due;
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(2)
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default in the payment of principal of or premium, if any, on any debt securities of that series when it becomes due and payable at its stated maturity, upon optional redemption, upon declaration or otherwise;
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(3)
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default in the deposit of any sinking fund payment, when and as due by the terms of any debt securities of that series;
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(4)
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default in the performance, or breach, of any covenant or agreement of ours in the indenture with respect to the debt securities of that series (other than as referred to in clause (1), (2) or (3) above), which continues for a period of 90 days after written notice to us by the trustee or to us and the trustee by the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series;
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(5)
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we pursuant to or within the meaning of the Bankruptcy Law:
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commence a voluntary case or proceeding;
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consent to the entry of an order for relief against us in an involuntary case or proceeding;
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consent to the appointment of a Custodian of us or for all or substantially all of our property;
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make a general assignment for the benefit of our creditors;
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file a petition in bankruptcy or answer or consent seeking reorganization or relief;
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consent to the filing of a petition in bankruptcy or the appointment of or taking possession by a Custodian; or
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take any comparable action under any foreign laws relating to insolvency;
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(6)
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a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
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is for relief against us in an involuntary case, or adjudicates us insolvent or bankrupt;
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appoints a Custodian of us or for all or substantially all of our property; or
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orders the winding-up or liquidation of us (or any similar relief is granted under any foreign laws); and the order or decree remains unstayed and in effect for 90 days; or
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(7)
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any other event of default provided with respect to debt securities of that series occurs as specified in a supplemental indenture.
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“
Bankruptcy Law
” means
Title 11, United States Code or any similar federal or state or foreign law for the relief of debtors.
“
Custodian
” means any
custodian, receiver, trustee, assignee, liquidator or other similar official under any Bankruptcy Law.
If an event of default with respect to debt
securities of any series (other than an event of default relating to certain events of bankruptcy, insolvency, or reorganization
of us) occurs and is continuing, the trustee for that series by notice to us, or the holders of at least 25% in aggregate principal
amount of the outstanding debt securities of that series by notice to us and the trustee, may, and the trustee at the written request
of these holders will, declare the principal of and premium, if any, and accrued and unpaid interest on all the debt securities
of that series to be due and payable. Upon a declaration of this type, that principal, premium and accrued and unpaid interest
will be due and payable immediately. If an event of default relating to certain events of bankruptcy, insolvency or reorganization
of us occurs and is continuing, the principal of and premium, if any, and accrued and unpaid interest on the debt securities of
that series will become and be immediately due and payable without any declaration or other act on the part of the trustee of that
series or any holders.
The holders of not less than a majority
in aggregate principal amount of the outstanding debt securities of any series may rescind a declaration of acceleration and its
consequences, if we have deposited certain sums with the trustee and all events of default with respect to the debt securities
of that series, other than the non-payment of the principal or interest which have become due solely by that acceleration, have
been cured or waived, as provided in the indenture.
An event of default for a particular series
of debt securities does not necessarily constitute an event of default for any other series of debt securities issued under the
indenture.
We are required to furnish the trustee annually
a statement by certain of our officers to the effect that, to the best of their knowledge, we are not in default in the fulfillment
of any of our obligations under the indenture or, if there has been a default in the fulfillment of any obligation of us, specifying
each default.
No holder of any debt securities of any
series will have any right to institute any judicial or other proceeding with respect to the indenture, or for the appointment
of a receiver or trustee, or for any other remedy unless:
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an event of default has occurred and is continuing and that holder has given the trustee prior written notice of that continuing event of default with respect to the debt securities of that series;
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(2)
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the holders of not less than 25% of the aggregate principal amount of the outstanding debt securities of that series have requested the trustee in writing to institute proceedings in respect of that event of default;
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(3)
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the trustee has been offered indemnity satisfactory to it against its costs, expenses and liabilities in complying with that request;
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(4)
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the trustee has failed to institute proceedings 60 days after the receipt of that notice, request and offer of indemnity; and
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(5)
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no direction inconsistent with that written request has been given for 60 days by the holders of a majority in aggregate principal amount of the outstanding debt securities of that series.
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The holders of a majority in aggregate principal
amount of outstanding debt securities of a series will have the right, subject to certain limitations, to direct the time, method
and place of conducting any proceeding for any remedy available to the trustee with respect to the debt securities of that series
or exercising any trust or power conferred to the trustee, and to waive certain defaults. The indenture provides that if an event
of default occurs and is continuing, the trustee will exercise those of its rights and powers under the indenture, and use the
same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct
of that person’s own affairs. Subject to those provisions, the trustee will be under no obligation to exercise any of its
rights or powers under the indenture at the request of any of the holders of the debt securities of a series unless they will have
offered to the trustee security or indemnity satisfactory to the trustee against the costs, expenses and liabilities which might
be incurred by it in compliance with that request. The trustee may refuse to follow any direction that it determines is unduly
prejudicial to the rights of any other holder or that would involve the trustee in personal liability.
Notwithstanding the foregoing, the holder
of any debt security will have an absolute and unconditional right to receive payment of the principal of and premium, if any,
and interest on that debt security on or after the due dates expressed in that debt security and to institute suit for the enforcement
of payment.
Modification and Waivers
Modification and amendments of the indenture
and the debt securities of any series may be made by us and the trustee with the consent of the holders of not less than a majority
in aggregate principal amount of the outstanding debt securities of that series affected thereby; provided, however, that no modification
or amendment may, without the consent of the holder of each outstanding debt security of that series affected thereby:
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change the stated maturity of the principal of, or installment of interest on, any debt security;
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reduce the principal amount of any debt security or reduce the amount of the principal of any debt security which would be due and payable upon a declaration of acceleration of the maturity thereof or reduce the rate of interest on any debt security;
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reduce any premium payable on the redemption of any debt security or change the date on which any debt security may or must be redeemed;
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change the coin or currency in which the principal of or premium, if any, or interest on any debt security is payable;
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impair the right of any holder to institute suit for the enforcement of any payment on or after the stated maturity of any debt security (or, in the case of redemption, on or after the redemption date);
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reduce the percentage in principal amount of the outstanding debt securities, the consent of whose holders is required in order to take certain actions;
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reduce the requirements for quorum or voting by holders of debt securities in the indenture or the debt security;
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modify any of the provisions in the indenture regarding the waiver of past defaults and the waiver of certain covenants by the holders of debt securities except to increase any percentage vote required or to provide that certain other provisions of the indenture cannot be modified or waived without the consent of the holder of each debt security affected thereby; or
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make any change that adversely affects in any material respect the right to convert or exchange any debt security or decreases the conversion or exchange rate or increases the conversion price of any convertible or exchangeable debt security, unless that decrease or increase is permitted by the terms of the debt securities; or
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modify any of the above provisions.
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We and the trustee may, without the consent
of any holders, modify or amend the terms of the indenture and the debt securities of any series with respect to the following:
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to add to our covenants for the benefit of holders of the debt securities of all or any series or to surrender any right or power conferred upon us;
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to evidence the succession of another person to, and the assumption by the successor of our covenants, agreements and obligations under, the indenture pursuant to the covenant described under “—Covenants—Consolidation, Merger and Sale of Assets”;
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to add any additional events of default for the benefit of holders of the debt securities of all or any series;
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to add one or more guarantees for the benefit of holders of the debt securities;
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to secure the debt securities pursuant to the covenants of the indenture;
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to add or appoint a successor or separate trustee or other agent;
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to provide for the issuance of additional debt securities of any series;
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to establish the form or terms of debt securities of any series as permitted by the indenture;
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to comply with the rules of any applicable securities depository;
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to provide for uncertificated debt securities in addition to or in place of certificated debt securities;
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to add to, change or eliminate any of the provisions of the indenture in respect of one or more series of debt securities; provided that any such addition, change or elimination (a) shall neither (1) apply to any debt security of any series created prior to the execution of that supplemental indenture and entitled to the benefit of that provision nor (2) modify the rights of the holder of any debt security with respect to that provision or (b) shall become effective only when there is no debt security described in clause (1) outstanding;
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to comply with requirements of the SEC in order to effect or maintain the qualification of the indenture under the Trust Indenture Act of 1939, as amended;
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to conform any provision of the indenture, any supplemental indenture, one or more series of debt securities or any related guarantees or security documents to the description of such securities contained in our prospectus, prospectus supplement, offering memorandum or similar document with respect to the offering of the securities of such series to the extent that such description was intended to be a verbatim recitation of a provision in the indenture, such securities or any related guarantees or security documents, as provided in an officer’s certificate to the trustee;
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to cure any ambiguity, omission, defect or inconsistency; or
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to change any other provision; provided that the change does not adversely affect the interests of the holders of debt securities of any series in any material respect.
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The holders of at least a majority in aggregate
principal amount of the outstanding debt securities of any series may, on behalf of the holders of all debt securities of that
series, waive compliance with certain restrictive provisions of the indenture. The holders of not less than a majority in aggregate
principal amount of the outstanding debt securities of a series may, on behalf of the holders of all debt securities of that series,
waive any past default and its consequences under the indenture with respect to the debt securities of that series, except a default
(1) in the payment of principal of or premium, if any, or interest on debt securities of that series or (2) in respect of a covenant
or provision of the indenture that cannot be modified or amended without the consent of the holder of each debt security of that
series. Upon any waiver, that default will cease to exist, and any event of default arising therefrom will be deemed to have been
cured, for every purpose of the indenture; however, no waiver will extend to any subsequent or other default or event of default
or impair any rights consequent thereon.
Discharge, Defeasance and Covenant Defeasance
We may discharge certain obligations to
holders of the debt securities of a series that have not already been delivered to the trustee for cancellation and that either
have become due and payable or will become due and payable within one year (or scheduled for redemption within one year) by depositing
with the trustee, in trust, funds in U.S. dollars in an amount sufficient to pay the entire indebtedness including the principal
and premium, if any, and interest to the date of deposit (if the debt securities have become due and payable) or to the maturity
thereof or the redemption date of the debt securities of that series, as the case may be.
The indenture provides that we may elect
either (1) to defease and be discharged from any and all obligations with respect to the debt securities of a series (except for,
among other things, obligations to register the transfer or exchange of the debt securities, to replace temporary or mutilated,
destroyed, lost or stolen debt securities, to maintain an office or agency with respect to the debt securities and to hold moneys
for payment in trust) (“legal defeasance”) or (2) to be released from our obligations to comply with the restrictive
covenants under the indenture, and any omission to comply with those obligations will not constitute a default or an event of default
with respect to the debt securities of a series and clauses (4) and (7) under “—Events of Default” will no longer
be applied (“covenant defeasance”). Legal defeasance or covenant defeasance, as the case may be, will be conditioned
upon, among other things, the irrevocable deposit by us with the trustee, in trust, of an amount in U.S. dollars, or U.S. government
obligations, or both, applicable to the debt securities of that series which through the scheduled payment of principal and interest
in accordance with their terms will provide money in an amount sufficient to pay the principal of and premium, if any, and interest
on the debt securities on the scheduled due dates therefor.
If we effect covenant defeasance with respect
to the debt securities of any series, the amount in U.S. dollars, or U.S. government obligations, or both, on deposit with the
trustee will be sufficient, in the opinion of a nationally recognized firm of independent accountants, to pay amounts due on the
debt securities of that series at the time of the stated maturity but may not be sufficient to pay amounts due on the debt securities
of that series at the time of the acceleration resulting from that event of default. However, we would remain liable to make payment
of amounts due at the time of acceleration.
We will be required to deliver to the trustee
an opinion of counsel that the deposit and related defeasance will not cause the holders and beneficial owners of the debt securities
of that series to recognize income, gain or loss for federal income tax purposes. If we elect legal defeasance, that opinion of
counsel must be based upon a ruling from the U.S. Internal Revenue Service or a change in law to that effect.
We may exercise our legal defeasance option
notwithstanding our prior exercise of our covenant defeasance option.
Same-Day Settlement and Payment
Unless otherwise provided in the applicable
prospectus supplement, the debt securities will trade in the same-day funds settlement system of DTC until maturity or until we
issue the debt securities in certificated form. DTC will therefore require secondary market trading activity in the debt securities
to settle in immediately available funds. We can give no assurance as to the effect, if any, of settlement in immediately available
funds on trading activity in the debt securities.
Book-Entry; Delivery and Form; Global Securities
Unless otherwise specified in the applicable
prospectus supplement, the debt securities of each series will be issued in the form of one or more global debt securities, in
definitive, fully registered form without interest coupons, each of which we refer to as a “global security.” Each
global security will be deposited with the trustee as custodian for DTC and registered in the name of a nominee of DTC in New York,
New York for the accounts of participants in DTC.
Investors may hold their interests in a
global security directly through DTC if they are DTC participants, or indirectly through organizations that are DTC participants.
Except in the limited circumstances described below, holders of debt securities represented by interests in a global security will
not be entitled to receive their debt securities in fully registered certificated form.
DTC has advised us as follows: DTC is a
limited-purpose trust company organized under New York Banking Law, a “banking organization” within the meaning of
the New York Banking Law, a member of the Federal Reserve System, a “clearing corporation” within the meaning of the
New York Uniform Commercial Code and a “clearing agency” registered pursuant to the provisions of Section 17A of the
Exchange Act. DTC was created to hold securities of institutions that have accounts with DTC (“participants”) and to
facilitate the clearance and settlement of securities transactions among its participants in those securities through electronic
book-entry changes in accounts of the participants, thereby eliminating the need for physical movement of securities certificates.
DTC’s participants include both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, clearing corporations
and certain other organizations. Access to DTC’s book-entry system is also available to others, such as both U.S. and non-U.S.
securities brokers and dealers, banks, trust companies and clearing corporations that clear through or maintain a custodial relationship
with a participant, whether directly or indirectly.
Ownership of Beneficial Interests
Upon the issuance of each global security,
DTC will credit, on its book-entry registration and transfer system, the respective principal amount of the individual beneficial
interests represented by the global security to the accounts of participants. Ownership of beneficial interests in each global
security will be limited to participants or persons that may hold interests through participants. Ownership of beneficial interests
in each global security will be shown on, and the transfer of those ownership interests will be effected only through, records
maintained by DTC (with respect to participants’ interests) and those participants (with respect to the owners of beneficial
interests in the global security other than participants).
So long as DTC or its nominee is the registered
holder and owner of a global security, DTC or that nominee, as the case may be, will be considered the sole legal owner of the
debt security represented by the global security for all purposes under the indenture, the debt securities and applicable law.
Except as set forth below, owners of beneficial interests in a global security will not be entitled to receive certificated debt
securities and will not be considered to be the owners or holders of any debt securities represented by the global security. We
understand that under existing industry practice, in the event an owner of a beneficial interest in a global security desires to
take any actions that DTC, as the holder of the global security, is entitled to take, DTC would authorize the participants to take
that action, and that participants would authorize beneficial owners owning through those participants to take that action or would
otherwise act upon the instructions of beneficial owners owning through them. No beneficial owner of an interest in a global security
will be able to transfer that interest except in accordance with DTC’s applicable procedures, in addition to those provided
for under the indenture. Because DTC can only act on behalf of participants, who in turn act on behalf of others, the ability of
a person having a beneficial interest in a global security to pledge that interest to persons that do not participate in the DTC
system, or otherwise to take actions in respect of that interest, may be impaired by the lack of a physical certificate representing
that interest.
All payments on the debt securities represented
by a global security registered in the name of and held by DTC or its nominee will be made to DTC or its nominee, as the case may
be, as the registered owner and holder of the global security.
We expect that DTC or its nominee, upon
receipt of any payment of principal or premium, if any, or interest in respect of a global security, will credit participants’
accounts with payments in amounts proportionate to their respective beneficial interests in the principal amount of the global
security as shown on the records of DTC or its nominee. We also expect that payments by participants to owners of beneficial interests
in the global security held through those participants will be governed by standing instructions and customary practices as is
now the case with securities held for accounts for customers registered in the names of nominees for those customers. These payments,
however, will be the responsibility of those participants and indirect participants, and none of we, the trustee or any paying
agent will have any responsibility or liability for any aspect of the records relating to, or payments made on account of, beneficial
ownership interests in any global security or for maintaining, supervising or reviewing any records relating to those beneficial
ownership interests or for any other aspect of the relationship between DTC and its participants or the relationship between those
participants and the owners of beneficial interests in a global security.
Unless and until it is exchanged in whole
or in part for certificated debt securities, each global security may not be transferred except as a whole by DTC to a nominee
of DTC or by a nominee of DTC to DTC or another nominee of DTC. Transfers between participants in DTC will be effected in the ordinary
way in accordance with DTC rules and will be settled in same-day funds.
We expect that DTC will take any action
permitted to be taken by a holder of debt securities only at the direction of one or more participants to whose account the DTC
interests in a global security are credited and only in respect of that portion of the aggregate principal amount of the debt securities
as to which that participant or participants has or have given that direction. However, if there is an event of default under the
debt securities, DTC will exchange each global security for certificated debt securities, which it will distribute to its participants.
Although we expect that DTC will agree to
the foregoing procedures in order to facilitate transfers of interests in each global security among participants of DTC, DTC is
under no obligation to perform or continue to perform those procedures, and those procedures may be discontinued at any time. Neither
we nor the trustee will have any responsibility or liability for the performance or nonperformance by DTC or its participants or
indirect participants of their respective obligations under the rules and procedures governing their operations.
The indenture provides that the global securities
will be exchanged for debt securities in certificated form of like tenor and of an equal principal amount, in authorized denominations
in the following limited circumstances:
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(1)
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DTC notifies us that it is unwilling or unable to continue as depository or if DTC ceases to be eligible under the indenture and we do not appoint a successor depository within 90 days;
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(2)
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we determine that the debt securities will no longer be represented by global securities and execute and deliver to the trustee an order to that effect; or
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(3)
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an event of default with respect to the debt securities has occurred and is continuing.
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These certificated debt securities will
be registered in the name or names as DTC instructs the trustee. It is expected that those instructions may be based upon directions
received by DTC from participants with respect to ownership of beneficial interests in global securities.
The information in this section of this
prospectus concerning DTC and DTC’s book-entry system has been obtained from sources that we believe to be reliable.
Euroclear and Clearstream
If the depositary for a global security
is DTC, you may hold interests in the global security through Clearstream Banking,
société anonyme
, which
we refer to as “Clearstream,” or Euroclear Bank SA/ NV, as operator of the Euroclear System, which we refer to as “Euroclear,”
in each case, as a participant in DTC. Euroclear and Clearstream will hold interests, in each case, on behalf of their participants
through customers’ securities accounts in the names of Euroclear and Clearstream on the books of their respective depositaries,
which in turn will hold those interests in customers’ securities in the depositaries’ names on DTC’s books.
Payments, deliveries, transfers, exchanges,
notices and other matters relating to the debt securities made through Euroclear or Clearstream must comply with the rules and
procedures of those systems. Those systems could change their rules and procedures at any time. We have no control over those systems
or their participants, and neither we nor the trustee take any responsibility for their activities. Transactions between participants
in Euroclear or Clearstream, on one hand, and other participants in DTC, on the other hand, would also be subject to DTC’s
rules and procedures.
Investors will be able to make and receive
through Euroclear and Clearstream payments, deliveries, transfers, exchanges, notices and other transactions involving any securities
held through those systems only on days when those systems are open for business. Those systems may not be open for business on
days when banks, brokers and other institutions are open for business in the United States.
In addition, because of time-zone differences,
U.S. investors who hold their interests in the debt securities through these systems and wish on a particular day, to transfer
their interests, or to receive or make a payment or delivery or exercise any other right with respect to their interests, may find
that the transaction will not be effected until the next business day in Luxembourg or Brussels, as applicable. Thus, investors
who wish to exercise rights that expire on a particular day may need to act before the expiration date. In addition, investors
who hold their interests through both DTC and Euroclear or Clearstream may need to make special arrangements to finance any purchase
or sales of their interests between the U.S. and European clearing systems, and those transactions may settle later than transactions
within one clearing system.
Governing Law
The indenture and the debt securities will
be governed by, and construed in accordance with, the laws of the State of New York.
Regarding the Trustee
Wells Fargo Bank, National Association is
the trustee under the indenture. As of the date of this prospectus, the corporate trust office of the trustee is located at 150
East 42
nd
Street, 40
th
Floor, New York, New York 10017, Attention: Corporate Trust Services – Administrator
for FXCM Inc.
The trustee is permitted to engage in transactions,
including commercial banking and other transactions, with us and our subsidiaries from time to time; provided that if the trustee
acquires any conflicting interest it must eliminate that conflict upon the occurrence of an event of default, or else resign.
DESCRIPTION OF DEPOSITARY SHARES
The following description of preferred shares
represented by depositary shares sets forth certain general terms and provisions of depositary agreements, depositary shares and
depositary receipts. This summary does not contain all of the information that you may find useful. The particular terms of the
depositary shares and related agreements and receipts will be described in the prospectus supplement relating to those depositary
shares. For more information, you should review the form of deposit agreement and form of depositary receipts relating to each
series of the preferred shares, which are or will be filed with the SEC.
General
We may elect to have preferred shares represented
by depositary shares. The preferred shares of any series underlying the depositary shares will be deposited under a separate deposit
agreement between us and a bank or trust company we select. The prospectus supplement relating to a series of depositary shares
will set forth the name and address of this preferred share depositary. Subject to the terms of the deposit agreement, each owner
of a depositary share will be entitled, proportionately, to all the rights, preferences and privileges of the preferred share represented
by such depositary share (including dividend, voting, redemption, conversion, exchange and liquidation rights).
The depositary shares will be evidenced
by depositary receipts issued pursuant to the deposit agreement, each of which will represent the applicable interest in a number
of shares of a particular series of the preferred shares as described in the applicable prospectus supplement.
A holder of depositary shares will be entitled
to receive the preferred shares (but only in whole preferred shares) underlying those depositary shares. If the depositary receipts
delivered by the holder evidence a number of depositary shares in excess of the whole number of preferred shares to be withdrawn,
the depositary will deliver to that holder at the same time a new depositary receipt for the excess number of depositary shares.
Unless otherwise specified in the applicable
prospectus supplement, the depositary agreement, the depositary shares and the depositary receipts will be governed by and construed
in accordance with the law of the State of New York.
Dividends and Other Distributions
The preferred share depositary will distribute
all cash dividends or other cash distributions in respect of the preferred shares to the record holders of depositary receipts
in proportion, insofar as possible, to the number of depositary shares owned by those holders.
If there is a distribution other than in
cash in respect of the preferred shares, the preferred share depositary will distribute property received by it to the record holders
of depositary receipts in proportion, insofar as possible, to the number of depositary shares owned by those holders, unless the
preferred share depositary determines that it is not feasible to make such a distribution. In that case, the preferred share depositary
may, with our approval, adopt any method that it deems equitable and practicable to effect the distribution, including a public
or private sale of the property and distribution of the net proceeds from the sale to the holders.
The amount distributed in any of the above
cases will be reduced by any amount we or the preferred share depositary are required to withhold on account of taxes.
Conversion and Exchange
If any preferred share underlying the depositary
shares is subject to provisions relating to its conversion or exchange as set forth in an applicable prospectus supplement, each
record holder of depositary shares will have the right or obligation to convert or exchange those depositary shares pursuant to
those provisions.
Redemption of Depositary Shares
Whenever we redeem a preferred share held
by the preferred share depositary, the preferred share depositary will redeem as of the same redemption date a proportionate number
of depositary shares representing the preferred shares that were redeemed. The redemption price per depositary share will be equal
to the aggregate redemption price payable with respect to the number of preferred shares underlying the depositary shares. If fewer
than all the depositary shares are to be redeemed, the depositary shares to be redeemed will be selected by lot or proportionately
as we may determine.
After the date fixed for redemption, the
depositary shares called for redemption will no longer be deemed to be outstanding and all rights of the holders of the depositary
shares will cease, except the right to receive the redemption price.
Voting
Upon receipt of notice of any meeting at
which the holders of any preferred shares underlying the depositary shares are entitled to vote, the preferred share depositary
will mail the information contained in the notice to the record holders of the depositary receipts. Each record holder of the depositary
receipts on the record date (which will be the same date as the record date for the preferred shares) may then instruct the preferred
share depositary as to the exercise of the voting rights pertaining to the number of preferred shares underlying that holder’s
depositary shares. The preferred share depositary will try to vote the number of preferred shares underlying the depositary shares
in accordance with the instructions, and we will agree to take all reasonable action which the preferred share depositary deems
necessary to enable the preferred share depositary to do so. The preferred share depositary will abstain from voting the preferred
shares to the extent that it does not receive specific written instructions from holders of depositary receipts representing the
preferred share.
Record Date
Whenever
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any cash dividend or other cash distribution becomes payable, any distribution other than cash is made, or any rights, preferences or privileges are offered with respect to the preferred shares; or
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the preferred share depositary receives notice of any meeting at which holders of preferred shares are entitled to vote or of which holders of preferred shares are entitled to notice, or of the mandatory conversion of or any election by us to call for the redemption of any preferred share,
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the preferred share depositary will in each instance fix a record
date (which will be the same as the record date for the preferred shares) for the determination of the holders of depositary receipts:
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who will be entitled to receive dividend, distribution, rights, preferences or privileges or the net proceeds of any sale; or
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who will be entitled to give instructions for the exercise of voting rights at any such meeting or to receive notice of the meeting or the redemption or conversion, subject to the provisions of the deposit agreement.
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Amendment and Termination of the Deposit Agreement
We and the preferred share depositary may
at any time agree to amend the form of depositary receipt and any provision of the deposit agreement. However, any amendment that
materially and adversely alters the rights of holders of depositary shares will not be effective unless the amendment has been
approved by the holders of at least a majority of the depositary shares then outstanding. The deposit agreement may be terminated
by us or by the preferred share depositary only if all outstanding shares have been redeemed or if a final distribution in respect
of the underlying preferred shares has been made to the holders of the depositary shares in connection with the liquidation, dissolution
or winding up of us.
Charges of Preferred Share Depositary
We will pay all charges of the preferred
share depositary including charges in connection with the initial deposit of the preferred shares, the initial issuance of the
depositary receipts, the distribution of information to the holders of depositary receipts with respect to matters on which the
preferred share is entitled to vote, withdrawals of the preferred share by the holders of depositary receipts or redemption or
conversion of the preferred share, except for taxes (including transfer taxes, if any) and other governmental charges and any other
charges expressly provided in the deposit agreement to be at the expense of holders of depositary receipts or persons depositing
preferred shares.
Miscellaneous
Neither we nor the preferred share depositary
will be liable if either of us is prevented or delayed by law or any circumstance beyond our control in performing any obligations
under the deposit agreement. The obligations of the preferred share depositary under the deposit agreement are limited to performing
its duties under the agreement without negligence or bad faith. Our obligations under the deposit agreement are limited to performing
our duties in good faith. Neither we nor the preferred share depositary is obligated to prosecute or defend any legal proceeding
in respect of any depositary shares or preferred shares unless satisfactory indemnity is furnished. We and the preferred share
depositary may rely on advice of or information from counsel, accountants or other persons that they believe to be competent and
on documents that they believe to be genuine. The preferred share depositary may resign at any time or be removed by us, effective
upon the acceptance by its successor of its appointment. If we have not appointed a successor preferred share depositary and the
successor depositary has not accepted its appointment within 60 days after the preferred share depositary delivered a resignation
notice to us, the preferred share depositary may terminate the deposit agreement. See “Amendment and Termination of the Deposit
Agreement” above.
DESCRIPTION OF PURCHASE CONTRACTS
The following description sets forth certain
general terms and provisions of the purchase contracts that we may offer from time to time. This summary does not contain all of
the information that you may find useful. The particular terms of any purchase contract that we may offer and the related agreements
will be described in the prospectus supplement relating to those purchase contracts. For more information, you should review the
relevant form of purchase contract and the relevant form of pledge agreement for purchase contracts, if any, which are or will
be filed with the SEC.
If we offer any purchase contracts, certain
terms of that series of purchase contracts will be described in the applicable prospectus supplement, including, without limitation,
the following:
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the price of the securities or other property subject to the purchase contracts (which may be determined by reference to a specific formula described in the purchase contracts);
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whether the purchase contracts are issued separately, or as a part of units each consisting of a purchase contract and one or more of our other securities or securities of an unaffiliated entity, including U.S. Treasury securities, securing the holder’s obligations under the purchase contract;
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any requirement for us to make periodic payments to holders or vice versa, and whether the payments are unsecured or pre-funded;
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any provisions relating to any security provided for the purchase contracts;
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whether the purchase contracts obligate the holder or us to purchase or sell, or both purchase and sell, the securities subject to purchase under the purchase contract, and the nature and amount of each of those securities, or the method of determining those amounts;
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whether the purchase contracts are to be prepaid or not;
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whether the purchase contracts are to be settled by delivery, or by reference or linkage to the value, performance or level of the securities subject to purchase under the purchase contract;
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any acceleration, cancellation, termination or other provisions relating to the settlement of the purchase contracts;
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a discussion of certain United States federal income tax considerations applicable to the purchase contracts;
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whether the purchase contracts will be issued in fully registered or global form; and
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any other terms of the purchase contracts and any securities subject to such purchase contracts.
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DESCRIPTION OF WARRANTS
The following description sets forth certain
general terms and provisions of the warrants that we may offer from time to time. This summary does not contain all of the information
that you may find useful. The particular terms of any of the warrants that we may offer and the related agreements will be described
in the prospectus supplement relating to those warrants. For more information, you should review the relevant form of warrant agreement
and the relevant form of warrant certificate, if any, which are or will be filed with the SEC.
General
We may issue warrants to purchase our securities
or rights (including rights to receive payment in cash or securities based on the value, rate or price of specified commodities,
currencies or indices) or securities of other issuers or any combination of the foregoing. Warrants may be issued independently
or together with any securities and may be attached to or separate from such securities. Each series of warrants will be issued
under a separate warrant agreement to be entered into between us and a warrant agent we select.
You should review the applicable prospectus
supplement for the specific terms of any warrants that may be offered, including:
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the title of the warrants;
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the aggregate number of the warrants;
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the price or prices at which the warrants will be issued;
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the currency or currencies, including composite currencies, in which the price of the warrants may be payable;
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our securities or rights (including rights to receive payment in cash or securities based on the value, rate or price of one or more specified commodities, currencies or indices) or securities of other issuers or any combination of the foregoing purchasable upon exercise of such warrants;
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the price at which and the currency or currencies, including composite currencies, in which the securities purchasable upon exercise of the warrants may be purchased;
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the date on which the right to exercise the warrants will commence and the date on which that right will expire;
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if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time;
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if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each such security;
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if applicable, the date on and after which the warrants and the related securities will be separately transferable;
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information with respect to book-entry procedures, if any;
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if applicable, a discussion of certain United States federal income tax considerations; and
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any other terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants.
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DESCRIPTION OF UNITS
The following description sets forth certain
general terms and provisions of the units that we may offer from time to time. This summary does not contain all of the information
that you may find useful. The particular terms of any of the units that we may offer and the related agreements will be described
in the prospectus supplement relating to those units. For more information, you should review the relevant form of unit agreement
and the relevant form of unit certificate, if any, which are or will be filed with the SEC.
If we offer any units, certain terms of
that series of units will be described in the applicable prospectus supplement, including, without limitation, the following, as
applicable:
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the title of the series of units;
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identification and description of the separate constituent securities comprising the units;
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the price or prices at which the units will be issued;
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the date, if any, on and after which the constituent securities comprising the units will be separately transferable;
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a discussion of certain United States federal income tax considerations applicable to the units; and
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any other terms of the units and their constituent securities.
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CERTAIN ERISA MATTERS
Unless otherwise indicated in the applicable
prospectus supplement, the offered securities may, subject to certain legal restrictions, be held by (i) an “employee benefit
plan” (as defined in Section 3(3) of the Employee Retirement Security Act of 1974, as amended (“ERISA”)) that
is subject to Title I of ERISA, (ii) a “plan” as defined in, and subject to, Section 4975 of the Code or (iii) a “benefit
plan investor” within the meaning of Section 3(42) of ERISA. A fiduciary of any such employee benefit plan, plan, or benefit
plan investor must determine that the purchase, holding and disposition of an interest in such offered security is consistent with
its fiduciary duties and will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section
4975 of the Code.
PLAN OF DISTRIBUTION
We may from time to time offer and sell
some or all of the securities covered by this prospectus. Registration of securities covered by this prospectus does not mean,
however, that those securities necessarily will be offered or sold.
The securities covered by this prospectus
may be sold from time to time, at market prices prevailing at the time of sale, at prices related to market prices, at a fixed
price or prices subject to change or at negotiated prices, by a variety of methods including the following:
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on the New York Stock Exchange (including through at the market offerings);
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in the over-the-counter market;
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in privately negotiated transactions;
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through broker/dealers, who may act as agents or principals;
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through one or more underwriters on a firm commitment or best-efforts basis;
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in a block trade in which a broker/dealer will attempt to sell a block of securities as agent but may position and resell a portion of the block as principal to facilitate the transaction;
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through put or call option transactions relating to the securities;
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directly to one or more purchasers;
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in any combination of the above.
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In effecting sales, brokers or dealers engaged
by us may arrange for other brokers or dealers to participate. Broker/dealer transactions may include:
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purchases of securities by a broker/dealer as principal and resales of the securities by the broker/dealer for its account pursuant to this prospectus;
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ordinary brokerage transactions; or
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transactions in which the broker/dealer solicits purchasers on a best efforts basis.
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We have not entered into any agreements,
understandings or arrangements with any underwriters or broker/dealers regarding the sale of the securities covered by this prospectus.
At any time a particular offer of the securities covered by this prospectus is made, a revised prospectus or prospectus supplement,
if required, will set forth the aggregate amount of securities covered by this prospectus being offered and the terms of the offering,
including the name or names of any underwriters, dealers, brokers or agents. In addition, to the extent required, any discounts,
commissions, concessions and other items constituting underwriters’ or agents’ compensation, as well as any discounts,
commissions or concessions allowed or reallowed or paid to dealers, will be set forth in such revised prospectus supplement. Any
such required prospectus supplement, and, if necessary, a post-effective amendment to the Registration Statement of which this
prospectus is a part, will be filed with the SEC to reflect the disclosure of additional information with respect to the distribution
of the securities covered by this prospectus.
To the extent required, the applicable prospectus
supplement will set forth whether or not underwriters may over-allot or effect transactions that stabilize, maintain or otherwise
affect the market price of the securities at levels above those that might otherwise prevail in the open market, including, for
example, by entering stabilizing bids, effecting syndicate covering transactions or imposing penalty bids.
If we utilize a dealer in the sale of the
securities being offered pursuant to this prospectus, we will sell the securities to the dealer, as principal. The dealer may then
resell the securities to the public at varying prices to be determined by the dealer at the time of resale.
We may also authorize agents or underwriters
to solicit offers by certain types of institutional investors to purchase securities from us at the public offering price set forth
in the revised prospectus or prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on
a specified date in the future. The conditions to these contracts and the commission that we must pay for solicitation of these
contracts will be described in a revised prospectus or prospectus supplement.
In connection with the sale of the securities
covered by this prospectus through underwriters, underwriters may receive compensation in the form of underwriting discounts or
commissions and may also receive commissions from purchasers of securities for whom they may act as agent. Underwriters may sell
to or through dealers, and such dealers may receive compensation in the form of discounts, concessions or commissions from the
underwriters and/or commissions from the purchasers for whom they may act as agent.
Any underwriters, broker/dealers or agents
participating in the distribution of the securities covered by this prospectus may be deemed to be “underwriters” within
the meaning of the Securities Act, and any commissions received by any of those underwriters, broker/dealers or agents may be deemed
to be underwriting commissions under the Securities Act.
We estimate that the total expenses in connection
with the offer and sale of securities pursuant to this prospectus, other than underwriting discounts and commissions, will be approximately
$52,588.
We may agree to indemnify underwriters,
broker/dealers or agents against certain liabilities, including liabilities under the Securities Act, and may also agree to contribute
to payments which the underwriters, broker/dealers or agents may be required to make.
Certain of the underwriters, broker/dealers
or agents who may become involved in the sale of the securities may engage in transactions with and perform other services for
us in the ordinary course of their business for which they receive customary compensation.
Some or all of the securities may be new
issues of securities with no established trading market. Any underwriters that purchase the securities for public offering and
sale may make a market in such securities, but such underwriters will not be obligated to do so and may discontinue any market
making at any time without notice. We make no assurance as to the liquidity of or the trading markets for any securities.
LEGAL MATTERS
The validity of the securities offered hereby
will be passed upon for us Jones Day, New York, New York.
EXPERTS
The consolidated financial statements of
FXCM Inc. appearing in FXCM Inc.’s Annual Report (Form 10-K) for the year ended December 31, 2015, and the effectiveness
of FXCM Inc.’s internal control over financial reporting as of December 31, 2015 have been audited by Ernst & Young
LLP, independent registered public accounting firm, as set forth in their reports thereon, included therein, and incorporated
herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such reports
given on the authority of such firm as experts in accounting and auditing.
Up to $15,000,000 of Class A Common Stock
October 3, 2016
Grafico Azioni Global Brokerage (CE) (USOTC:GLBR)
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Da Mag 2024 a Giu 2024
Grafico Azioni Global Brokerage (CE) (USOTC:GLBR)
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Da Giu 2023 a Giu 2024
