As filed
with the Securities and Exchange Commission on July 27, 2009.
Registration No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
______________________
FORM
S-3
REGISTRATION
STATEMENT UNDER
THE
SECURITIES ACT OF 1933
______________________
GAMCO
Investors, Inc.
(Exact
name of Registrant as specified in its charter)
|
NEW
YORK
|
6282
|
13-4007862
|
|
(State
or other
|
(Primary
Standard
|
(I.R.S.
Employer
|
|
jurisdiction
of
|
Industrial
|
Identification
No.)
|
|
incorporation
or
|
Classification
Code
|
|
|
organization)
|
Number)
|
|
______________________
ONE
CORPORATE CENTER
RYE,
NEW YORK 10580
(914)
921-5000
(Address,
Including Zip Code, and Telephone Number, Including Area Code,
of
Registrant’s Principal Executive Offices)
______________________
CHRISTOPHER
J. MICHAILOFF
GAMCO
INVESTORS, INC.
ONE
CORPORATE CENTER
RYE,
NEW YORK 10580
(914)
921-5000
(Name,
Address, Including Zip Code, and Telephone Number,
Including
Area Code, of Agent for Service)
Copy
to:
GREGORY
A. FERNICOLA, ESQ.
SKADDEN,
ARPS, SLATE, MEAGHER & FLOM LLP
FOUR
TIMES SQUARE
NEW
YORK, NEW YORK 10036-6522
(212)
735-3000
______________________
APPROXIMATE
DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM
TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT AS
DETERMINED BY THE REGISTRANT
______________________
If the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box. £
If any of
the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. R
If this
Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. £
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. £
If this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. o
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act,
check the following box. o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
Large
accelerated
filer o Accelerated
filerþ
Non-accelerated
filer o Smaller
reporting companyo
CALCULATION
OF REGISTRATION FEE
|
Title
of Each Class of Securities
to
be Registered(1)
|
Amount
to be
Registered(2)(3)(4)
|
Proposed
Maximum
Offering
Price Per Unit(2)(3)
|
Proposed
Maximum
Aggregate
Offering Price(2)(3)
|
Amount
of
Registration
Fee(5)
|
|
Debt
Securities (which may be senior or subordinated)
|
|
|
|
|
|
Preferred
Stock
|
|
|
|
|
|
Class
A Common Stock, par value $.001 per share
|
|
|
|
|
|
Stock
Purchase Contracts
|
|
|
|
|
|
Stock
Purchase Units
|
|
|
|
|
|
Total
|
$400,000,000
|
100%
|
$400,000,000
|
$0
|
|
(1)
|
Securities
registered hereunder may be sold separately, together or as units with
other securities registered
hereunder.
|
|
(2)
|
Includes
an indeterminate number of securities that may be offered or sold by
affiliates in market making
transactions.
|
|
(3)
|
Not
specified as to each class of securities to be registered pursuant to Form
S-3 General Instruction II.D.
|
|
(4)
|
The
Registrant is registering an indeterminate aggregate principal amount and
number of securities of each identified class of securities up to a
proposed aggregate offering price of $400 million, which may be offered
from time to time in unspecified numbers and at indeterminate prices, and
as may be issuable upon conversion, redemption, repurchase, exchange or
exercise of any securities registered hereunder, including under any
applicable anti-dilution
provisions.
|
|
|
(5) Calculated
pursuant to Rule 457(o) under the Securities Act. Pursuant to
Registration Statement No. 333-125773 initially filed on June 13,
2005, the registrant previously paid a filing fee of $47,080.
Pursuant to Rule 457(p) of the Securities Act, the amount of this
unused filing fee has been applied against the $22,320 filing fee due in
connection with this registration
statement.
|
THE
REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS
MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A
FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
SUBJECT
TO COMPLETION,
DATED ,
2009
The
information in this prospectus is not complete and may be changed. We may not
sell these securities until the registration statement filed with the Securities
and Exchange Commission is effective. This prospectus is not an offer to sell
these securities and it is not soliciting an offer to buy these securities in
any state where the offer or sale is not permitted.
PROSPECTUS
GAMCO
INVESTORS, INC.
$400,000,000
DEBT
SECURITIES
PREFERRED
STOCK
CLASS
A COMMON STOCK
STOCK
PURCHASE CONTRACTS
STOCK
PURCHASE UNITS
From time
to time, we may offer, issue and sell, together or separately:
|
·
|
debt
securities (which may be senior or
subordinated),
|
|
·
|
stock
purchase contracts, and
|
having an
aggregate initial public offering price not to exceed $400 million, or the
equivalent thereof in one or more foreign currencies, foreign currency units or
composite currencies. We may offer these securities on terms and at prices to be
determined at the time of sale.
We will
provide the specific terms of these securities in supplements to this
prospectus. You should read this prospectus, any prospectus supplement and the
risk factors incorporated by reference herein or included in any prospectus
supplement carefully before you invest in our securities. Our Class A Common
Stock is listed on the New York Stock Exchange, or “NYSE,” under the symbol
“GBL.” If we decide to seek a listing of any debt securities or preferred stock
offered by this prospectus, the related prospectus supplement will disclose the
exchange or market on which the securities will be listed, if any, or where we
have made an application for listing, if any.
This
prospectus may not be used to sell securities unless accompanied by a prospectus
supplement or other offering materials.
Investing
in GAMCO Investors, Inc.’s securities involves a high degree of risk, including
the risks described in our Annual Report on Form 10–K filed with the Securities
and Exchange Commission (the “SEC”) on March 12, 2009, the risk factors
described under the caption “Risk Factors” in any applicable prospectus
supplement and/or any risk factors set forth in our other filings with the SEC,
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), as discussed on page 1 of this
prospectus.
We may
offer securities through underwriting syndicates managed or co-managed by one or
more underwriters or dealers, through agents or directly to purchasers. The
prospectus supplement for each offering of securities will describe in detail
the plan of distribution for that offering. For general information about the
distribution of securities offered, please see “Plan of Distribution” in this
prospectus.
The underwriters for any offering may
include Gabelli & Company, Inc. (“Gabelli & Company”), our broker-dealer
subsidiary. Gabelli & Company may offer and sell previously issued
securities as part of its business and may act as a principal or agent in such
transactions. We may use this prospectus and the related prospectus supplements
and other offering materials in connection with these activities.
Neither
the SEC, any state securities commission, or any other governmental or
regulatory body has approved or disapproved of these securities or determined if
this prospectus or the accompanying prospectus supplement is truthful or
complete. Any representation to the contrary is a criminal offense.
The date
of this prospectus
is ,
2009
TABLE
OF CONTENTS
Page
ABOUT
THIS PROSPECTUS
Unless
otherwise stated or the context otherwise requires, references in this
prospectus to “GAMCO,” “we,” “our,” or “us” refer to GAMCO Investors, Inc. and
its direct and indirect subsidiaries, while references to “GAMCO Investors,
Inc.” refer only to the holding company on an unconsolidated basis.
This
prospectus is part of a registration statement that we filed with the Securities
and Exchange Commission, or the “SEC,” using a “shelf” registration process.
Under the shelf process, we may, from time to time, sell any combination of the
securities described in this prospectus in one or more offerings, up to a total
dollar amount of $400 million, or the equivalent thereof in one or more foreign
currencies, foreign currency units or composite currencies. 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 and may provide
other offering materials that will contain specific information about the terms
of that offering and the manner in which the securities will be offered,
including the specific amounts, prices and terms of the securities offered. The
prospectus supplement or other offering materials may also add, update or change
information contained in this prospectus. We urge you to read both this
prospectus and any prospectus supplement or other offering materials, together
with the additional information described under the heading “Where You Can Find
More Information.”
You
should rely on the information contained or incorporated by reference in this
prospectus. We have not authorized anyone to provide you with different
information. If anyone provides you with different or inconsistent information,
you should not rely on it. No offer to sell these securities is being made in
any jurisdiction where the offer or sale is not permitted.
You
should assume that the information in this prospectus is accurate as of the date
of the prospectus. Our business, financial condition, results of operations and
prospects may have changed since that date.
RISK
FACTORS
You
should carefully consider the specific risks described in our Annual Report on
Form 10–K for the fiscal year ended December 31, 2008, the risk factors
described under the caption “Risk Factors” in any applicable prospectus
supplement and any risk factors set forth in our other filings with the SEC,
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act, which are
incorporated by reference herein, before making an investment
decision. See “Where You Can Find More Information.”
WHERE
YOU CAN FIND MORE INFORMATION
We file
reports, proxy statements and other information with the SEC. These reports,
proxy statements and other information, including the registration statement of
which this prospectus is a part, can be read and copied 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 on the operation of the public
reference room. The SEC maintains an internet site at http://www.sec.gov/ that
contains reports, proxy and information statements and other information
regarding companies that file electronically with the SEC, including us. GAMCO
Investors, Inc.’s Class A Common Stock is listed and traded on the New York
Stock Exchange (the “NYSE”). These reports, proxy statements and other
information can also be read at the offices of the NYSE, 20 Broad Street, New
York, New York 10005.
The SEC
allows “incorporation by reference” into this prospectus of information that
GAMCO Investors, Inc. files with the SEC. This permits GAMCO Investors, Inc. to
disclose important information to you by referencing these filed documents. Any
information referenced this way is considered part of this prospectus, and any
information filed by GAMCO Investors, Inc. with the SEC subsequent to the date
of this prospectus will automatically be deemed to update and supersede this
information. GAMCO Investors, Inc. incorporates by reference the following
documents which have been filed with the SEC; provided, however, that GAMCO
Investors, Inc. is not incorporating any information furnished under either Item
2.02 or 7.01 of any Current Report on Form 8-K:
|
·
|
Quarterly
Report on Form 10-Q for the quarter ended March 31,
2009;
|
|
·
|
Annual
Report on Form 10-K for the year ended December 31,
2008;
|
|
·
|
Definitive
Proxy Statement on Schedule 14A filed on April 9,
2009;
|
|
·
|
The
description of our capital stock, which is contained in the registration
statement on Form 8-A12B filed with the SEC on January 12,
1999;
|
|
·
|
Current
Reports on Form 8-K filed on February 6, 2009, February 25, 2009, March 2,
2009, March 23, 2009, March 31, 2009, May 7, 2009 and May 8,
2009.
|
GAMCO
Investors, Inc. incorporates by reference the documents listed above and any
future filings made with the SEC in accordance with Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act until GAMCO Investors, Inc. files a post-effective
amendment which indicates the termination of the offering of the securities made
by this prospectus.
You may
request a copy of these filings, other than an exhibit to a filing unless that
exhibit is specifically incorporated by reference into that filing, at no cost,
by writing or calling us at GAMCO Investors, Inc., One Corporate Center, Rye,
New York 10580 (telephone number (914) 921-5000). You can also find information
about us at our Internet website at http://www.gabelli.com/. Information
contained on our website does not constitute part of this prospectus
supplement.
SPECIAL
NOTE REGARDING
FORWARD-LOOKING
STATEMENTS
Our
disclosure and analysis in this prospectus and in documents that are
incorporated by reference contain some forward-looking statements.
Forward-looking statements give our current expectations or forecasts of future
events. You can identify these statements because they do not relate
strictly to historical or current facts. They use words such as
“anticipate,” “estimate,” “expect,” “project,” “intend,” “plan,” “believe,” “will,”
“may” and other words and terms of similar meaning. They also
appear in any discussion of future operating or financial performance. In
particular, these include statements relating to future actions, future
performance of our products, expenses, the outcome of any legal proceedings, and
financial results.
Any or
all forward-looking statements may turn out to be wrong. They can be affected by
inaccurate assumptions or by known or unknown risks and uncertainties. Many such
factors will be important in determining our actual future results. These
statements are based on current expectations and the current economic
environment. They involve a number of risks and uncertainties that are difficult
to predict. These statements are not guarantees of future performance, and there
are no guarantees about the performance of any securities offered by this
prospectus. Actual results could differ materially from those expressed or
implied in the forward-looking statements. Although we believe that we are
basing our expectations and beliefs on reasonable assumptions within the bounds
of what we currently know about our business and operations, there can be no
assurance that our actual results will not differ materially from what we
expect or believe. Some of the factors that could cause our actual results
to differ from our expectations or beliefs include, without limitation: the
adverse effect from a decline in the securities markets; a decline in the
performance of our products; a general downturn in the economy; changes in
government policy or regulation; changes in our ability to attract or retain key
employees; and unforeseen costs and other effects related to legal proceedings
or investigations of governmental and self-regulatory organizations. We also
direct your attention to any more specific discussions of risk contained in
“Risk Factors” in our public filings or in documents incorporated by
reference here or in prior filings or reports.
We are
providing these statements as permitted by the Private Litigation Reform Act of
1995. We do not undertake to update publicly any forward-looking statements if
we subsequently learn that we are unlikely to achieve our expectations or if we
receive any additional information relating to the subject matters of our
forward-looking statements.
GAMCO
INVESTORS, INC.
GAMCO
Investors, Inc., well known for its Private Market Value (PMV) with a
CatalystTM
investment approach, is
a widely-recognized provider of investment advisory services to mutual funds,
institutional and private wealth management investors, and investment
partnerships, principally in the United States. Through Gabelli &
Company, we provide institutional research services to institutional clients and
investment partnerships. We generally manage assets on a
discretionary basis and invest in a variety of U.S. and international securities
through various investment styles. Our revenues are based primarily
on the level of assets under management (“AUM”) and to a lesser extent,
incentive fees associated with our various investment products.
Since
1977, we have been identified with and enhanced the “value” style approach to
investing. Our investment objective is to earn a superior risk-adjusted return
for our value clients over the long-term through our proprietary fundamental
research. In addition to our value portfolios, we offer our clients a
broad array of investment strategies that include global, growth, international
and convertible products. We also offer a series of investment
partnership (performance fee-based) vehicles that provide a series of long-short
investment opportunities, both market and sector specific opportunities,
including offerings of non-market correlated investments in merger arbitrage, as
well as fixed income strategies.
As of
March 31, 2009, we had $18.5 billion of AUM, 90% of which were in equity
products. We conduct our investment advisory business principally
through our subsidiaries: GAMCO Asset Management Inc. (Separate Accounts),
Gabelli Funds, LLC (Mutual Funds) and Gabelli Securities, Inc. (Investment
Partnerships). We also act as an underwriter, are a distributor of
our open-end funds and provide institutional research through Gabelli &
Company.
Our
assets under management are organized into three groups:
|
·
|
Institutional
and Private Wealth Management: we provide advisory services to a
broad range of investors, including private wealth management,
corporate pension and profit-sharing plans, foundations, endowments,
jointly-trusteed plans and municipalities, and also serve as sub-advisor
to certain other third-party investment funds including registered
investment companies (“Institutional and Private Wealth
Management”). Each Institutional and Private Wealth Management
portfolio is managed to meet the specific needs and objectives of the
particular client by utilizing investment strategies and techniques within
our areas of expertise. On March 31, 2009, we had $7.5 billion
of Institutional and Private Wealth Management
AUM.
|
|
·
|
Open and
Closed-End Funds: we provide advisory services to twenty-one
open-end funds and nine closed-end funds under Gabelli, GAMCO and Comstock
brands (collectively, the “Funds”). The Funds had $10.8 billion
of assets under management on March 31,
2009.
|
|
·
|
Investment
Partnerships: we provide
advisory services to limited partnerships and offshore funds
(collectively, “Investment Partnerships”). We managed a total
of $265 million in Investment Partnership assets on March 31,
2009.
|
GAMCO
Investors, Inc. is a holding company formed in connection with our initial
public offering in February 1999. GGCP, Inc. owns a majority of the
outstanding shares of Class B Common Stock of GAMCO Investors, Inc., which
ownership represented approximately 95% of the combined voting power of the
outstanding common stock and approximately 72% of the equity interest on March
31, 2009. Mr. Mario J. Gabelli (“Mr. Gabelli”) is the Chief
Executive Officer, a director and the controlling
shareholder. Accordingly, Mr. Gabelli is deemed to control GAMCO
Investors, Inc.
Our
principal executive offices are located at One Corporate Center, Rye, New York
10580. Our telephone number is (914) 921-5000.
USE
OF PROCEEDS
Unless
otherwise indicated in the applicable prospectus supplement, the net proceeds
from the sale of the securities offered by this prospectus will be used for
general corporate purposes. These purposes may include, but are not
limited to, working capital, including the expansion of our business through new
investment product offerings, enhanced distribution and marketing of existing
investment products and strategic acquisitions as opportunities
arise.
If
required, we will include a more detailed description of the use of proceeds
from any specific offering of securities in the prospectus supplement or other
offering materials related to that offering.
RATIO
OF EARNINGS TO FIXED CHARGES
The
following table sets forth our consolidated ratio of earnings to be fixed to
charges for the five-year period ended December 31, 2008 and the three months
ended March 31, 2008 and 2009.
|
|
Three
Months Ended March 31,
|
|
|
|
|
|
|
|
|
|
|
Ratio
of Earnings to Fixed Charges (a)
|
3.6
|
4.7
|
11.8
|
10.3
|
8.5
|
7.2
|
(a) These
ratios were calculated by dividing the sum of fixed charges into the sum of
earnings before taxes and fixed charges. Fixedcharges for these
purposes consist of all interest expense and the approximate portion of rental
expense representing interest.
DESCRIPTION
OF SECURITIES
This
prospectus contains summary descriptions of debt securities, Class A Common
Stock, preferred stock, stock purchase contracts and stock purchase units that
GAMCO Investors, Inc. may sell from time to time. These summary
descriptions are not meant to be complete descriptions of each
security. However, this prospectus and any prospectus supplement
contain the material terms of the securities being offered.
DESCRIPTION
OF DEBT SECURITIES
As used
in this prospectus, debt securities means the debentures, notes, bonds and other
evidences of indebtedness that GAMCO Investors, Inc. may issue from time to
time. Debt securities offered by this prospectus will be either
senior debt securities or subordinated debt securities. Senior debt
securities will be issued under a “Senior Indenture” and subordinated debt
securities will be issued under a “Subordinated Indenture.” This prospectus
sometimes refers to the Senior Indenture and the Subordinated Indenture
collectively as the “Indentures.” Unless the applicable prospectus supplement
states otherwise, the trustee under the Senior Indenture is, and the trustee
under the Subordinated Indenture will be, The Bank of New York.
The
Senior Indenture and the form of the Subordinated Indenture are filed as
exhibits to the registration statement. The statements and
descriptions in this prospectus or in any prospectus supplement regarding
provisions of the Indentures and debt securities are summaries thereof, do not
purport to be complete and are subject to, and are qualified in their entirety
by reference to, all of the provisions of the Indentures and debt securities,
including the definitions therein of certain terms.
General
Debt
securities will be direct unsecured obligations of GAMCO Investors, Inc. Senior
debt securities will rank equally with all of GAMCO Investors, Inc.’s other
senior and unsubordinated debt. The subordinated debt securities will
be subordinate and junior in right of payment to all of GAMCO Investors, Inc.’s
present and future senior indebtedness.
Because
GAMCO Investors, Inc. is principally a holding company, its right to participate
in any distribution of assets of any subsidiary, upon the subsidiary’s
liquidation or reorganization or otherwise, is subject to the prior claims of
creditors of the subsidiary, except to the extent GAMCO Investors, Inc. may be
recognized as a creditor of that subsidiary. Accordingly, GAMCO
Investors, Inc.’s obligations under debt securities will be structurally
subordinated to all existing and future indebtedness and liabilities of its
subsidiaries, and holders of debt securities should look only to GAMCO
Investors, Inc.’s assets for payment thereunder.
The
Indentures do not limit the aggregate principal amount of debt securities that
GAMCO Investors, Inc. may issue and provide that GAMCO Investors, Inc. may issue
debt securities from time to time in one or more series, in each case with the
same or various maturities, at par or at a discount. GAMCO Investors,
Inc. may issue additional debt securities of a particular series without the
consent of the holders of debt securities of such series outstanding at the time
of the issuance. Any such additional debt securities, together with
all other outstanding debt securities of that series, will constitute a single
series of debt securities under the applicable Indenture. The
Indentures also do not limit our ability to incur other debt, except as
described under “Restrictive Covenants” herein.
Each
prospectus supplement will describe the terms relating to the specific series of
debt securities being offered. These terms will include some or all
of the following:
|
·
|
the
title of debt securities and whether they are subordinated debt securities
or senior debt securities;
|
|
·
|
any
limit on the aggregate principal amount of such debt
securities;
|
|
·
|
the
price or prices at which GAMCO Investors, Inc. will sell such debt
securities;
|
|
·
|
the
maturity date or dates of such debt
securities;
|
|
·
|
the
rate or rates of interest, if any, which may be fixed or variable, at
which such debt securities will bear interest, or the method of
determining such rate or rates, if
any;
|
|
·
|
the
date or dates from which any interest will accrue or the method by which
such date or dates will be
determined;
|
|
·
|
the
right, if any, to extend the interest payment periods and the duration of
any such deferral period, including the maximum consecutive period during
which interest payment periods may be
extended;
|
|
·
|
whether
the amount of payments of principal of (and premium, if any) or interest
on such debt securities may be determined with reference to any index,
formula or other method, such as one or more currencies, commodities,
equity indices or other indices, and the manner of determining the amount
of such payments;
|
|
·
|
the
dates on which GAMCO Investors, Inc. will pay interest on such debt
securities and the regular record date for determining who is entitled to
the interest payable on any interest payment
date;
|
|
·
|
whether
the debt securities will be secured or
unsecured;
|
|
·
|
the
place or places where the principal of (and premium, if any) and interest
on such debt securities will be
payable;
|
|
·
|
if
GAMCO Investors, Inc. possesses the option to do so, the periods within
which and the prices at which GAMCO Investors, Inc. may redeem such debt
securities, in whole or in part, pursuant to optional redemption
provisions, and the other terms and conditions of any such
provisions;
|
|
·
|
GAMCO
Investors, Inc.’s obligation, if any, to redeem, repay or purchase such
debt securities by making periodic payments to a sinking fund or through
an analogous provision or at the option of holders of the debt securities,
and the period or periods within which and the price or prices at which
GAMCO Investors, Inc. will redeem, repay or purchase such debt securities,
in whole or in part, pursuant to such obligation, and the other terms and
conditions of such obligation;
|
|
·
|
the
denominations in which such debt securities will be issued, if other than
denominations of $1,000 and integral multiples of
$1,000;
|
|
·
|
the
portion, or methods of determining the portion, of the principal amount of
such debt securities which GAMCO Investors, Inc. must pay upon the
acceleration of the maturity of the debt securities in connection with an
Event of Default (as described below), if other than the full principal
amount;
|
|
·
|
the
currency, currencies or currency unit in which GAMCO Investors, Inc will
pay the principal of (and premium, if any) or interest, if any, on such
debt securities, if not United States
dollars;
|
|
·
|
provisions,
if any, granting special rights to holders of such debt securities upon
the occurrence of specified events;
|
|
·
|
any
deletions from, modifications of or additions to the Events of Default or
GAMCO Investors, Inc.’s covenants with respect to the applicable series of
debt securities, and whether or not such Events of Default or covenants
are consistent with those contained in the applicable
Indenture;
|
|
·
|
the
application, if any, of the terms of the Indenture relating to defeasance
and covenant defeasance (which terms are described below) to such debt
securities;
|
|
·
|
whether
the subordination provisions summarized below or different subordination
provisions will apply to such debt
securities;
|
|
·
|
the
terms, if any, upon which the holders may convert or exchange such debt
securities into or for GAMCO Investors, Inc.’s common stock, preferred
stock or other securities or
property;
|
|
·
|
whether
any of such debt securities will be issued in global form and, if so, the
terms and conditions upon which global debt securities may be exchanged
for certificated debt securities;
|
|
·
|
any
change in the right of the trustee or the requisite holders of such debt
securities to declare the principal amount thereof due and payable because
of an Event of Default;
|
|
·
|
the
depositary for global or certificated debt
securities;
|
|
·
|
any
special tax implications of such debt
securities;
|
|
·
|
any
trustees, authenticating or paying agents, transfer agents or registrars
or other agents with respect to such debt securities;
and
|
|
·
|
any
other terms of such debt
securities.
|
Unless
otherwise specified in the applicable prospectus supplement, debt securities
will not be listed on any securities exchange.
Unless
otherwise specified in the applicable prospectus supplement, debt securities
will be issued in fully-registered form without coupons.
Debt
securities may be sold at a substantial discount below their stated principal
amount, bearing no interest or interest at a rate which at the time of issuance
is below market rates. The applicable prospectus supplement will
describe the federal income tax consequences and special considerations
applicable to any such debt securities. Debt securities may also be
issued as indexed securities or securities denominated in foreign currencies,
currency units or composite currencies, as described in more detail in the
prospectus supplement relating to any of the particular debt
securities. The prospectus supplement relating to specific debt
securities will also describe any special considerations and certain additional
tax considerations applicable to such debt securities.
Subordination
The
prospectus supplement relating to any offering of subordinated debt securities
will describe the specific subordination provisions. However, unless
otherwise noted in the prospectus supplement, subordinated debt securities will
be subordinate and junior in right of payment to all of GAMCO Investors, Inc.’s
Senior Indebtedness, to the extent and in the manner set forth in the
Subordinated Indenture.
Under the
Subordinated Indenture, “Senior Indebtedness” means all obligations of GAMCO
Investors, Inc. in respect of any of the following, whether outstanding at the
date of execution of the Subordinated Indenture or thereafter incurred or
created:
|
·
|
the
principal of (and premium, if any) and interest due on indebtedness of
GAMCO Investors, Inc. for borrowed
money;
|
|
·
|
all
obligations guaranteed by GAMCO Investors, Inc. for the repayment of
borrowed money, whether or not evidenced by bonds, debentures, notes or
other written instruments;
|
|
·
|
all
obligations guaranteed by GAMCO Investors, Inc. evidenced by bonds,
debentures, notes or similar written instruments, including obligations
assumed or incurred in connection with the acquisition of property, assets
or businesses (provided, however, that the deferred purchase price of any
other business or property or assets shall not be considered indebtedness
if the purchase price thereof is payable in full within 90 days from the
date on which such indebtedness was
created);
|
|
·
|
any
obligations of GAMCO Investors, Inc. as lessee under leases required to be
capitalized on the balance sheet of the lessee under generally accepted
accounting principles;
|
|
·
|
all
obligations of GAMCO Investors, Inc. for the reimbursement on any letter
of credit, banker’s acceptance, security purchase facility or similar
credit transaction;
|
|
·
|
all
obligations of GAMCO Investors, Inc. in respect of interest rate swap, cap
or other agreements, interest rate future or options contracts, currency
swap agreements, currency future or option contracts and other similar
agreements;
|
|
·
|
all
obligations of the types referred to above of other persons for the
payment of which GAMCO Investors, Inc. is responsible or liable as
obligor, guarantor or otherwise;
and
|
|
·
|
all
obligations of the types referred to above of other persons secured by any
lien on any property or asset of GAMCO Investors, Inc. (whether or not
such obligation is assumed by GAMCO Investors,
Inc.).
|
Senior
Indebtedness does not include:
|
·
|
indebtedness
or monetary obligations to trade creditors created or assumed by GAMCO
Investors, Inc. in the ordinary course of business in connection with the
obtaining of materials or services;
|
|
·
|
indebtedness
that is by its terms subordinated to or ranks equal with the subordinated
debt securities; and
|
|
·
|
any
indebtedness of GAMCO Investors, Inc. to its affiliates (including all
debt securities and guarantees in respect of those debt securities issued
to any trust, partnership or other entity affiliated with GAMCO Investors,
Inc. that is a financing vehicle of GAMCO Investors, Inc. in connection
with the issuance by such financing entity of preferred securities or
other securities guaranteed by GAMCO Investors, Inc.) unless otherwise
expressly provided in the terms of any such
indebtedness.
|
Senior
Indebtedness shall continue to be Senior Indebtedness and be entitled to the
benefits of the subordination provisions irrespective of any amendment,
modification or waiver of any term of such Senior Indebtedness.
Unless
otherwise noted in the accompanying prospectus supplement, if GAMCO Investors,
Inc. defaults in the payment of any principal of (or premium, if any) or
interest on any Senior Indebtedness when it becomes due and payable, whether at
maturity or at a date fixed for prepayment or by declaration or otherwise, then,
unless and until such default is cured or waived or ceases to exist, GAMCO
Investors, Inc. will make no direct or indirect payment (in cash, property,
securities, by set-off or otherwise) in respect of the principal of or interest
on the subordinated debt securities or in respect of any redemption, retirement,
purchase or other requisition of any of the subordinated debt
securities.
In the
event of the acceleration of the maturity of any subordinated debt securities,
the holders of all senior debt securities outstanding at the time of such
acceleration will first be entitled to receive payment in full of all amounts
due on senior debt securities before the holders of subordinated debt securities
will be entitled to receive any payment of principal (and premium, if any) or
interest on the subordinated debt securities.
If any of
the following events occurs, GAMCO Investors, Inc. will pay in full all Senior
Indebtedness before it makes any payment or distribution under subordinated debt
securities, whether in cash, securities or other property, to any holder of
subordinated debt securities:
|
·
|
any
dissolution or winding-up or liquidation or reorganization of GAMCO
Investors, Inc., whether voluntary or involuntary or in bankruptcy,
insolvency or receivership;
|
|
·
|
any
general assignment by GAMCO Investors, Inc. for the benefit of creditors;
or
|
|
·
|
any
other marshaling of GAMCO Investors, Inc.’s assets or
liabilities.
|
In such
event, any payment or distribution under subordinated debt securities, whether
in cash, securities or other property, which would otherwise (but for the
subordination provisions) be payable or deliverable in respect of such
subordinated debt securities, will be paid or delivered directly to the holders
of Senior Indebtedness in accordance with the priorities then existing among
such holders until all Senior Indebtedness has been paid in full. If
any payment or distribution under subordinated debt securities is received by
the trustee of any subordinated debt securities in contravention of any of the
terms of the Subordinated Indenture and before all the Senior Indebtedness has
been paid in full, such payment or distribution or security will be received in
trust for the benefit of, and paid over or delivered and transferred to, the
holders of Senior Indebtedness at the time outstanding in accordance with the
priorities then existing among such holders for application to the payment of
all Senior Indebtedness remaining unpaid to the extent necessary to pay all such
Senior Indebtedness in full.
The
Subordinated Indenture does not limit the issuance of additional Senior
Indebtedness.
If
subordinated debt securities are issued to a trust in connection with the
issuance of trust preferred securities, such subordinated debt securities may
thereafter be distributed pro rata to the holders of such trust securities in
connection with the dissolution of such trust upon the occurrence of certain
events described in the applicable prospectus supplement.
Restrictive
Covenants
Unless an
accompanying prospectus supplement states otherwise, the following restrictive
covenant shall apply to each series of senior debt securities:
Limitation on
Liens. So long as any senior debt securities are outstanding,
neither GAMCO Investors, Inc. nor any of its subsidiaries will create, assume,
incur or guarantee any indebtedness for money borrowed which is secured by any
pledge of, lien on or security interest in any capital stock of its Designated
Subsidiaries, other than specified types of permitted liens.
However,
this restriction will not apply if all debt securities then outstanding and, at
our option, any other senior indebtedness ranking equally with such debt
securities, are secured at least equally and ratably with the otherwise
prohibited secured debt so long as it is outstanding.
This
limitation shall not apply to debt secured by a pledge of, lien on or security
interest in any shares of stock of any subsidiary at the time it becomes a
Designated Subsidiary, including any renewals or extensions of such secured
debt. “Designated Subsidiary” means any subsidiary of GAMCO
Investors, Inc., the consolidated net worth of which represents at least 10% of
the consolidated net worth of GAMCO Investors, Inc.
The
Subordinated Indenture does not contain a similar limitation on
liens.
Consolidation,
Merger, Sale of Assets and Other Transactions
GAMCO
Investors, Inc. may not (i) merge with or into or consolidate with another
person or sell, assign, transfer, lease or convey all or substantially all of
its properties and assets to, any other person other than a direct or indirect
wholly-owned subsidiary of GAMCO Investors, Inc., and (ii) no person may merge
with or into or consolidate with GAMCO Investors, Inc. or, except for any direct
or indirect wholly-owned subsidiary of GAMCO Investors, Inc., sell, assign,
transfer, lease or convey all or substantially all of its properties and assets
to GAMCO Investors, Inc. unless:
|
·
|
GAMCO
Investors, Inc. is the surviving corporation or the person formed by or
surviving such merger or consolidation or to which such sale, assignment,
transfer, lease or conveyance has been made, if other than GAMCO
Investors, Inc., has expressly assumed by supplemental indenture all the
obligations of GAMCO Investors, Inc. under such debt securities, the
Indentures and any guarantees of preferred securities or common securities
issued by certain trusts;
|
|
·
|
immediately
after giving effect to such transaction, no default or Event of Default
has occurred and is continuing; and
|
|
·
|
GAMCO
Investors, Inc. delivers to the trustee an officers’ certificate and an
opinion of counsel, each stating that the supplemental indenture complies
with the applicable Indenture.
|
Events
of Default, Notice and Waiver
Unless an
accompanying prospectus supplement states otherwise, the following shall
constitute “Events of Default” under the Indentures with respect to each series
of debt securities:
|
·
|
GAMCO
Investors, Inc.’s failure to pay any interest on any debt security of such
series when due and payable, continued for 30
days;
|
|
·
|
GAMCO
Investors, Inc.’s failure to pay principal (or premium, if any) on any
debt security of such series when due, regardless of whether such payment
became due because of maturity, redemption, acceleration or otherwise, or
is required by any sinking fund established with respect to such
series;
|
|
·
|
GAMCO
Investors, Inc.’s failure to observe or perform any other of its covenants
or agreements with respect to such debt securities for 90 days after it
receives notice of such failure;
|
|
·
|
certain
defaults with respect to GAMCO Investors, Inc.’s debt (other than such
debt securities or non-recourse debt) in any aggregate principal amount in
excess of $25,000,000 consisting of the failure to make any payment at
maturity or that results in acceleration of the maturity of such debt;
and
|
|
·
|
certain
events of bankruptcy, insolvency or reorganization of GAMCO Investors,
Inc.
|
If an
Event of Default with respect to any debt securities of any series outstanding
under either of the Indentures shall occur and be continuing, the trustee under
such Indenture or the holders of at least 25% in aggregate principal amount of
the debt securities of that series outstanding may declare, by notice as
provided in the applicable Indenture, the principal amount (or such lesser
amount as may be provided for in the debt securities of that series) of the debt
securities of that series outstanding to be due and payable immediately;
provided that, in the case of an Event of Default involving certain events in
bankruptcy, insolvency or reorganization, acceleration is automatic; and,
provided further, that after such acceleration, but before a judgment or decree
based on acceleration, the holders of a majority in aggregate principal amount
of the outstanding debt securities of that series may, under certain
circumstances, rescind and annul such acceleration if all Events of Default,
other than the nonpayment of accelerated principal, have been cured or
waived.
Upon the
acceleration of the maturity of original issue discount securities, an amount
less than the principal amount thereof will become due and payable.
Reference
is made to the prospectus supplement relating to any original issue discount
securities for the particular provisions relating to acceleration of maturity
thereof. Any past default under either Indenture with respect to debt securities
of any series, and any Event of Default arising therefrom, may be waived by the
holders of a majority in principal amount of all debt securities of such series
outstanding under such Indenture, except in the case of (i) default in the
payment of the principal of (or premium, if any) or interest on any debt
securities of such series or (ii) default in respect of a covenant or provision
which may not be amended or modified without the consent of the holder of each
outstanding debt security of such series affected.
The
trustee is required, within 90 days after the occurrence of a default (which is
known to the trustee and is continuing), with respect to the debt securities of
any series (without regard to any grace period or notice requirements), to give
to the holders of debt securities of such series notice of such default;
provided, however, that, except in the case of a default in the payment of the
principal of (and premium, if any) or interest, or in the payment of any sinking
fund installment, on any debt securities of such series, the trustee shall be
protected in withholding such notice if it in good faith determines that the
withholding of such notice is in the interests of the holders of debt securities
of such series.
The
trustee, subject to its duties during default to act with the required standard
of care, may require indemnification by the holders of debt securities of any
series with respect to which a default has occurred before proceeding to
exercise any right or power under the Indentures at the request of the holders
of debt securities of such series. Subject to such right of
indemnification and to certain other limitations, the holders of a majority in
principal amount of the outstanding debt securities of any series under either
Indenture may direct the time, method and place of conducting any proceeding for
any remedy available to the trustee, or exercising any trust or power conferred
on the trustee with respect to debt securities of such series.
No holder
of a debt security of any series may institute any action against GAMCO
Investors, Inc. under either of the Indentures (except actions for payment of
overdue principal of (and premium, if any) or interest on such debt security or
for the conversion or exchange of such debt security in accordance with its
terms) unless (i) the holder has given to the trustee written notice of an Event
of Default and of the continuance thereof with respect to debt securities of
such series specifying an Event of Default, as required under the applicable
Indenture, (ii) the holders of at least 25% in aggregate principal amount of
debt securities of that series then outstanding under such Indenture shall have
requested the trustee to institute such action and offered to the trustee
indemnity reasonably satisfactory to it against the costs, expenses and
liabilities to be incurred in compliance with such request and (iii) the trustee
shall not have instituted such action within 60 days of such
request.
GAMCO
Investors, Inc. is required to furnish annually to the trustee statements as to
its compliance with all conditions and covenants under each
Indenture.
Discharge,
Defeasance and Covenant Defeasance
If
indicated in the applicable prospectus supplement, GAMCO Investors, Inc. may
discharge or defease its obligations under each Indenture as set forth
below.
GAMCO
Investors, Inc. may discharge certain obligations to holders of any series of
debt securities issued under either the Senior Indenture or the Subordinated
Indenture which have not already been delivered to the trustee for cancellation
and which have either become due and payable or are by their terms due and
payable within one year (or scheduled for redemption within one year) by
irrevocably depositing with the trustee cash or, in the case of debt securities
payable only in U.S. dollars, U.S. Government Obligations
(as defined in either Indenture), as trust funds in an amount certified to be
sufficient to pay when due, whether at maturity, upon redemption or otherwise,
the principal of (and premium, if any) and interest on such debt
securities.
If
indicated in the applicable prospectus supplement, GAMCO Investors, Inc. may
elect either (i) to defease and be discharged from any and all obligations with
respect to debt securities of or within any series (except as otherwise provided
in the relevant Indenture) (“defeasance”) or (ii) to be released from its
obligations with respect to certain covenants applicable to debt securities of
or within any series (“covenant defeasance”), upon the deposit with the relevant
Indenture trustee, in trust for such purpose, of money and/or government
obligations which through the payment of principal and interest in accordance
with their terms will provide money in an amount sufficient, without
reinvestment, to pay the principal of (and premium, if any) or interest on such
debt securities to maturity or redemption, as the case may be, and any mandatory
sinking fund or analogous payments thereon. As a condition to
defeasance or covenant defeasance, GAMCO Investors, Inc. must deliver to the
trustee an opinion of counsel to the effect that the holders of such debt
securities will not recognize income, gain or loss for federal income tax
purposes as a result of such defeasance or covenant defeasance and will be
subject to federal income tax on the same amounts and in the same manner and at
the same times as would have been the case if such defeasance or covenant
defeasance had not occurred. Such opinion of counsel, in the case of
defeasance under clause (i) above, must refer to and be based upon a ruling of
the Internal Revenue Service or a change in applicable federal income tax law
occurring after the date of the relevant Indenture. In addition, in
the case of either defeasance or covenant defeasance, GAMCO Investors, Inc.
shall have delivered to the trustee (i) an officers’ certificate to the effect
that the relevant debt securities exchange(s) have informed it that neither such
debt securities nor any other debt securities of the same series, if then listed
on any securities exchange, will be delisted as a result of such deposit and
(ii) an officers’ certificate and an opinion of counsel, each stating that all
conditions precedent with respect to such defeasance or covenant defeasance have
been complied with. GAMCO Investors, Inc. may exercise its defeasance option
with respect to such debt securities notwithstanding its prior exercise of its
covenant defeasance option.
Modification
and Waiver
Under the
Indentures, GAMCO Investors, Inc. and the applicable trustee may supplement the
Indentures for certain purposes which would not materially adversely affect the
interests or rights of the holders of debt securities of a series without the
consent of those holders. GAMCO Investors, Inc. and the applicable
trustee may also modify the Indentures or any supplemental indenture in a manner
that affects the interests or rights of the holders of debt securities with the
consent of the holders of a least a majority in aggregate principal amount of
the outstanding debt securities of each affected series issued under the
Indenture. However, the Indentures require the consent of each holder
of debt securities that would be affected by any modification which
would:
|
·
|
extend
the fixed maturity of any debt securities of any series, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment
of interest thereon, or reduce any premium payable upon the redemption
thereof;
|
|
·
|
reduce
the amount of principal of an original issue discount debt security or any
other debt security payable upon acceleration of the maturity
thereof;
|
|
·
|
change
the currency in which any debt security or any premium or interest is
payable;
|
|
·
|
impair
the right to institute suit for any payment on or with respect to any debt
security;
|
|
·
|
reduce
the percentage in principal amount of outstanding debt securities of any
series, the consent of whose holders is required for modification or
amendment of the Indentures or for waiver of compliance with certain
provisions of the Indentures or for waiver of certain
defaults;
|
|
·
|
reduce
the requirements contained in the Indentures for quorum or voting;
or
|
|
·
|
modify
any of the above provisions.
|
If
subordinated debt securities are held by a trust or a trustee of a trust, a
supplemental indenture that affects the interests or rights of the holders of
debt securities will not be effective until the holders of not less than a
majority in liquidation preference of the preferred securities and common
securities of the applicable trust, collectively, have consented to the
supplemental indenture; provided, further, that if the consent of the holder of
each outstanding debt security is required, the supplemental indenture will not
be effective until each holder of the preferred securities and the common
securities of the applicable trust has consented to the supplemental
indenture.
The
Indentures permit the holders of at least a majority in aggregate principal
amount of the outstanding debt securities of any series issued under the
Indenture which is affected by the modification or amendment to waive GAMCO
Investors, Inc.’s compliance with certain covenants contained in the
Indentures.
Payment
and Paying Agents
Unless
otherwise indicated in the applicable prospectus supplement, payment of interest
on a debt security on any interest payment date will be made to the person in
whose name a debt security is registered at the close of business on the record
date for the interest.
Unless
otherwise indicated in the applicable prospectus supplement, principal, interest
and premium on the debt securities of a particular series will be payable at the
office of such paying agent or paying agents as GAMCO Investors, Inc. may
designate for such purpose from time to time.
Notwithstanding
the foregoing, at GAMCO Investors, Inc.’s option, payment of any interest may be
made by check mailed to the address of the person entitled thereto as such
address appears in the security register.
Unless
otherwise indicated in the applicable prospectus supplement, a paying agent
designated by GAMCO Investors, Inc. and located in the Borough of Manhattan, The
City of New York will act as paying agent for payments with respect to debt
securities of each series. All paying agents initially designated by
GAMCO Investors, Inc. for debt securities of a particular series will be named
in the applicable prospectus supplement. GAMCO Investors, Inc. may at
any time designate additional paying agents or rescind the designation of any
paying agent or approve a change in the office through which any paying agent
acts, except that GAMCO Investors, Inc. will be required to maintain a paying
agent in each place of payment for debt securities of a particular
series.
All
moneys paid by GAMCO Investors, Inc. to a paying agent for the payment of the
principal, interest or premium on any debt security which remain unclaimed at
the end of two years after such principal, interest or premium has become due
and payable will be repaid to GAMCO Investors, Inc. upon request, and the holder
of such debt security thereafter may look only to GAMCO Investors, Inc. for
payment thereof.
Denominations,
Registrations and Transfer
Unless an
accompanying prospectus supplement states otherwise, debt securities will be
represented by one or more global certificates registered in the name of a
nominee for The Depository Trust Company, or DTC. In such case, each
holder’s beneficial interest in the global securities will be shown on the
records of DTC and transfers of beneficial interests will only be effected
through DTC’s records.
A holder
of debt securities may only exchange a beneficial interest in a global security
for certificated securities registered in the holder’s name if:
|
·
|
DTC
notifies GAMCO Investors, Inc. that it is unwilling or unable to continue
serving as the depositary for the relevant global securities;
or
|
|
·
|
DTC
ceases to maintain certain qualifications under the Exchange Act and no
successor depositary has been appointed for 90 days;
or
|
|
·
|
GAMCO
Investors, Inc. determines, in its sole discretion, that the global
security shall be exchangeable.
|
If debt
securities are issued in certificated form, they will only be issued in the
minimum denomination specified in the accompanying prospectus supplement and
integral multiples of such denomination. Transfers and exchanges of
such debt securities will only be permitted in such minimum
denomination. Transfers of debt securities in certificated form may
be registered at the trustee’s corporate office or at the offices of any paying
agent or trustee appointed by GAMCO Investors, Inc. under the
Indentures. Exchanges of debt securities for an equal aggregate
principal amount of debt securities in different denominations may also be made
at such locations.
Governing
Law
The
Senior Indenture is, and the Subordinated Indenture and debt securities will be,
governed by, and construed in accordance with, the internal laws of the State of
New York, without regard to its principles of conflicts of laws.
Relationship
with the Trustees
Unless
the applicable prospectus supplement states otherwise, the trustee under the
Senior Indenture is, and the trustee under the Subordinated Indenture will be,
The Bank of New York. We and our subsidiaries maintain ordinary
banking and trust relationships with a number of banks and trust companies,
including the trustee under the Indentures.
Conversion
or Exchange Rights
The
prospectus supplement will describe the terms, if any, on which a series of debt
securities may be convertible into or exchangeable for GAMCO Investors, Inc.’s
Class A Common Stock, preferred stock or other debt securities. These
terms will include provisions as to whether conversion or exchange is mandatory,
at the option of the holder or at GAMCO Investors, Inc.’s
option. These provisions may allow or require the number of shares of
GAMCO Investors, Inc.’s Class A Common Stock or other securities to be received
by the holders of such series of debt securities to be adjusted.
DESCRIPTION
OF CAPITAL STOCK
The
authorized capital stock of GAMCO Investors, Inc. consists of 100,000,000 shares
of Class A Common Stock, 100,000,000 shares of Class B Common Stock, and
10,000,000 shares of preferred stock. No preferred stock is
outstanding as of the date of this prospectus. Of the 100,000,000
shares of Class A Common Stock authorized, 7,399,483 shares were outstanding as
of April 30, 2009, and 868,875 shares have been reserved for issuance pursuant
to certain employee benefits plans. Of the 100,000,000 shares of
Class B Common Stock authorized, 20,350,931 were outstanding as of April 30,
2009. The following is a summary description of all material terms
and provisions relating to GAMCO Investors, Inc.’s capital stock, the Restated
Certificate of Incorporation (the “Certificate of Incorporation”) and the
Amended and Restated Bylaws (the “Bylaws”), but is qualified by reference to the
Certificate of Incorporation and Bylaws, copies of which are filed as exhibits
to the registration statement of which this prospectus forms a
part.
Common
Stock
Voting Rights. The holders of
Class A Common Stock and Class B Common Stock have identical voting rights
except that:
(i) holders
of Class A Common Stock are entitled to one vote per share while holders of
Class B Common Stock are entitled to ten votes per share on all matters to be
voted on by shareholders; and
(ii) holders
of Class A Common Stock are not eligible to vote on matters relating exclusively
to Class B Common Stock and vice versa.
Holders
of shares of Class A Common Stock and Class B Common Stock are not entitled to
cumulate their votes in the election of directors. Generally, all matters to be
voted on by shareholders must be approved by a majority (or, in the case of
election of directors, by a plurality) of the votes that are entitled to be cast
by the holders of all shares of Class A Common Stock and Class B Common Stock
present in person or represented by proxy, voting together as a single class,
subject to any voting rights granted to holders of any preferred stock. Except
as otherwise provided by law, and subject to any voting rights granted to
holders of any outstanding preferred stock, amendments to GAMCO Investors,
Inc.’s Certificate of Incorporation generally must be approved by a majority of
the combined voting power of all Class A Common Stock and Class B Common Stock
voting together as a single class. Amendments to GAMCO Investors, Inc.’s
Certificate of Incorporation that would alter or change the powers, preferences
or special rights of the Class A Common Stock or the Class B Common Stock so as
to affect them adversely also must be approved by a majority of the votes
entitled to be cast by the holders of the shares affected by the amendment,
voting as a separate class. Notwithstanding the foregoing, any amendment to
GAMCO Investors, Inc.’s Certificate of Incorporation to increase the authorized
shares of any class or classes of Stock will be deemed not to affect adversely
the powers, preferences or special rights of the Class A Common Stock or Class B
Common Stock.
Dividends. Holders of Class A
Common Stock and Class B Common Stock will receive an equal amount per share in
any dividend declared by the Board of Directors, subject to any preferential
rights of any outstanding preferred stock. Dividends consisting of shares of
Class A Common Stock and Class B Common Stock may be paid only as
follows:
(i) shares
of Class A Common Stock may be paid only to holders of Class A Common Stock and
shares of Class B Common Stock may be paid only to holders of Class B Common
Stock; and
(ii) shares
will be paid proportionally with respect to each outstanding share of Class A
Common Stock and Class B Common Stock.
Other Rights. On liquidation,
dissolution or winding up of GAMCO Investors, Inc., after payment in full of the
amounts required to be paid to holders of preferred stock, if any, all holders
of common stock, regardless of class, are entitled to share ratably in any
assets available for distribution to holders of shares of common stock. No
shares of common stock are subject to redemption or have preemptive rights to
purchase additional shares of common stock.
In the
event of any corporate merger, consolidation, purchase or acquisition of
property or stock, or other reorganization in which any consideration is to be
received by the holders of Class A Common Stock or the holders of Class B Common
Stock as a class, the holders of Class A Common Stock and the holders of Class B
Common Stock will receive the same consideration on a per share basis; except
that, if such consideration shall consist in any part of voting securities (or
of options or warrants to purchase, or of securities convertible into or
exchangeable for, voting securities), the holders of Class B Common Stock may
receive, on a per share basis, voting securities with up to ten times the number
of votes per share as those voting securities to be received by the holders of
Class A Common Stock (or options or warrants to purchase, or securities
convertible into or exchangeable for, voting securities with up to ten times the
number of votes per share as those voting securities issuable upon exercise of
the options or warrants, or into which the convertible or exchangeable
securities may be converted or exchanged, received by the holders of Class A
Common Stock). Accordingly, except with respect to voting rights, the holders of
Class B Common Stock will not receive greater value than the holders of Class A
Common Stock in an extraordinary corporate transaction involving GAMCO
Investors, Inc.
Preferred
Stock
As of the
date of this prospectus, no shares of preferred stock are outstanding. The Board
of Directors may authorize the issuance of preferred stock in one or more series
and may determine, with respect to any such series, the powers, preferences and
rights of such series, and its qualifications, limitations and restrictions,
including, without limitation,
(i) the
designation of the series;
(ii) the
number of shares of the series, which number the Board of Directors may
thereafter (except where otherwise provided in the designations for such series)
increase or decrease (but not below the number of shares of such series then
outstanding);
(iii) whether
dividends, if any, will be cumulative or noncumulative and the dividend rate of
the series;
(iv) the
conditions upon which and the dates at which dividends, if any, will be payable,
and the relation that such dividends, if any, will bear to the dividends payable
on any other class or classes of stock;
(v) the
redemption rights and price or prices, if any, for shares of the
series;
(vi) the
terms and amounts of any sinking fund provided for the purchase or redemption of
shares of the series;
(vii) the
amounts payable on and the preferences, if any, of shares of the series, in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the affairs of GAMCO Investors, Inc.;
(viii) whether
the shares of the series will be convertible or exchangeable into shares of any
other class or series, or any other security, of GAMCO Investors, Inc. or any
other entity, and, if so, the specification of such other class or series or
such other security, the conversion price or prices or exchange rate or rates,
any adjustments thereof, the date or dates as of which such shares will be
convertible or exchangeable and all other terms and conditions upon which such
conversion or exchange may be made; and
(ix) the
voting rights, in addition to the voting rights provided by law, if any, of the
holders of shares of such series.
The
authorized shares of preferred stock will be available for issuance without
further action by GAMCO Investors, Inc.’s shareholders unless such action is
required by applicable law or the rules of any stock exchange or automated
quotation system on which GAMCO Investors, Inc.’s securities may be listed or
traded. The NYSE currently requires shareholder approval as a prerequisite to
listing shares in several circumstances, including where the present or
potential issuance of shares could result in an increase in the number of shares
of common stock outstanding, or in the amount of voting securities outstanding,
of at least 20%.
Although
the Board of Directors has no current intention of doing so, it could issue a
series of preferred stock that could, depending on the terms of such series,
impede the completion of a merger, tender offer or other takeover attempt. The
Board of Directors will make any determination to issue such shares based on its
judgment as to the best interests of GAMCO Investors, Inc. and its shareholders.
The Board of Directors, in so acting, could issue preferred stock having terms
that could discourage a potential acquirer from making, without first
negotiating with the Board of Directors, an acquisition attempt through which
such acquirer may be able to change the composition of the Board of Directors,
including a tender offer or other transaction that some, or a majority, of GAMCO
Investors, Inc.’s shareholders might believe to be in their best interests or in
which shareholders might receive a premium for their stock over the then current
market price of such stock.
Business
Combination Statute
Section
912 of the New York Business Corporation Law (“NYBCL”) prohibits a company from
entering into a business combination (e.g., a merger, consolidation, sale of 10%
or more of a company’s assets or issuance of securities with an aggregate market
value of 5% or more of the aggregate market value of all of the company’s
outstanding capital stock) with a beneficial owner of 20% or more of a company’s
securities (a “20% shareholder”) for a period of five years following the date
such beneficial owner became a 20% shareholder (the “stock acquisition date”),
unless, among other things, such business combination or the purchase of stock
resulting in the 20% shareholder’s beneficial ownership was approved by the
company’s board of directors prior to the stock acquisition date or the business
combination is approved by the affirmative vote of the holders of a majority of
the outstanding voting stock exclusive of the stock beneficially owned by the
20% shareholder. The Bylaws of GAMCO Investors, Inc. provide that GAMCO
Investors, Inc. is not governed by Section 912 of the NYBCL.
Certificate
of Incorporation and Bylaw Provisions
The
summary set forth below describes certain provisions of the Certificate of
Incorporation and Bylaws. The summary is qualified in its entirety by reference
to the provisions of the Certificate of Incorporation and Bylaws, copies of
which are filed as exhibits to the registration statement of which this
prospectus forms a part.
Certain
of the provisions of the Certificate of Incorporation or the Bylaws discussed
below may have the effect, either alone or in combination with the provisions of
the NYBCL discussed above, of making more difficult or discouraging a tender
offer, proxy contest or other takeover attempt that is opposed by the Board of
Directors but that a shareholder might consider to be in such shareholder’s best
interest. Those provisions include (i) restrictions on the rights of
shareholders to remove or elect directors; and (ii) prohibitions against
shareholders calling a special meeting of shareholders. In addition, the
Certificate of Incorporation contains provisions relating to the allocation of
certain corporate opportunities and resolution of certain potential conflicts of
interest. See “ – Overview of Corporate Opportunity and Conflict of Interest
Policies,” “ – Corporate Opportunity Policy” and “ – Conflict of Interests
Policy.”
Number of Directors; Removal;
Filling Vacancies. The Bylaws provide that, subject to any rights of
holders of preferred stock to elect directors under specified circumstances, the
number of directors will be fixed from time to time exclusively pursuant to a
resolution adopted by directors constituting a majority of the total number of
directors that GAMCO Investors, Inc. would have if there were no vacancies on
the Board of Directors (the “Whole Board”), with the Whole Board consisting of
not more than twelve nor less than three directors. The Certificate of
Incorporation and Bylaws also provide that, subject to any rights of holders of
preferred stock or any other series or class of stock, and unless the Board of
Directors otherwise determines, any vacancies will be filled only by the
affirmative vote of a majority of the remaining directors, even if less than a
quorum. Accordingly, absent an amendment to the Bylaws, the Board of Directors
could prevent any shareholder from enlarging the Board of Directors and filling
the new directorships with such shareholder’s own nominees.
The
Certificate of Incorporation provides that, subject to the rights of holders of
preferred stock to elect directors under specified circumstances, effective as
of the date on which Mr. Gabelli beneficially owns less than a majority of the
voting power of the Voting Stock (as defined below) (the “Trigger Date”), a
director may be removed only for cause and only upon the affirmative vote of
holders of at least 80% of the voting power of all the then outstanding shares
of stock entitled to vote generally in the election of directors (“Voting
Stock”), voting together as a single class. Before the Trigger Date, directors
may be removed, without cause, with the affirmative vote of the holders of at
least a majority of the voting power of the then outstanding Voting Stock,
voting together as a single class.
Special Meetings. The Bylaws
provide that, subject to the rights of holders of any series of preferred stock
to elect additional directors under specified circumstances and the rights of
shareholders to call a special meeting to elect a sufficient number of directors
to conduct the business of GAMCO Investors, Inc. under specified circumstances,
special meetings of shareholders can be called only by the Board of Directors
pursuant to a resolution adopted by a majority of the Whole Board or the
Chairman of the Board, except that prior to the Trigger Date, special meetings
can also be called at the request of the holders of a majority of the voting
power of the then outstanding Voting Stock. Accordingly, effective as of the
Trigger Date, shareholders will not be permitted to call a special meeting or to
require that the Board of Directors call a special meeting of shareholders
except under the limited circumstances described in the preceding sentence.
Moreover, the business permitted to be conducted at any special meeting of
shareholders is limited to the business brought before the meeting pursuant to
the notice of meeting given by GAMCO Investors, Inc.
The
provisions of the Bylaws permitting special meetings to be called only by the
Chairman or at the request of a majority of the Whole Board may have the effect,
after the Trigger Date, of delaying consideration of a shareholder proposal
until the next annual meeting. Moreover, a shareholder could not force
shareholder consideration of a proposal over the opposition of the Chairman or a
majority of the Whole Board by calling a special meeting of shareholders prior
to the time such parties believe such consideration to be
appropriate.
Liability of Directors; Indemnification. GAMCO
Investors, Inc.’s Certificate of Incorporation provides that, to the fullest
extent permitted by the NYBCL, no director of GAMCO Investors, Inc. shall be
liable to GAMCO Investors, Inc. or its shareholders for monetary damages for the
breach of fiduciary duty in such capacity. Under the NYBCL, such
provision does not eliminate or limit the liability of any director
(i) if
a judgment or other final adjudication adverse to such director establishes that
his acts or omissions were in bad faith or involved intentional misconduct or a
knowing violation of law or that he personally gained a material profit or other
advantage to which he was not legally entitled or that his acts violated Section
719 of the NYBCL or
(ii) for
any act or omission prior to the adoption of this provision.
As a
result of this provision, GAMCO Investors, Inc. and its shareholders may be
unable to obtain monetary damages from a director for breach of his duty of
care. Although shareholders may continue to seek injunctive or other equitable
relief for an alleged breach of fiduciary duty by a director, shareholders may
not have any effective remedy against the challenged conduct if equitable
remedies are unavailable.
The
Bylaws provide that GAMCO Investors, Inc. will indemnify any person who was or
is a party to any threatened, pending, or completed action, suit or proceeding
because he or she is or was a director, officer, employee or agent of GAMCO
Investors, Inc. or is or was serving at the request of GAMCO Investors, Inc. as
a director or officer of another corporation, partnership or other enterprise.
The Bylaws provide that indemnification will be from and against expenses,
judgments, fines and amounts paid in settlement by the indemnitee. However, this
indemnification will only be provided if the indemnitee acted in good faith and
in a manner he or she reasonably believed to be in, or not opposed to, the best
interests of GAMCO Investors, Inc., and with respect to a criminal action or
proceeding, if the indemnitee had no reasonable cause to believe that his or her
conduct was unlawful.
Overview of Corporate Opportunity
and Conflict of Interest Policies. In order to address certain potential
conflicts of interest between GAMCO Investors, Inc. and Mr. Gabelli, members of
his immediate family and affiliates, Mr. Gabelli and members of his immediate
family who are at the time officers or directors of GAMCO Investors, Inc. have
agreed to limitations on their activities in the investment management business
other than Permissible Accounts. References to “Permissible Accounts” mean the
funds and accounts managed outside GAMCO Investors, Inc. which are permitted
under the Certificate of Incorporation of GAMCO Investors, Inc. In addition, the
Certificate of Incorporation contains provisions concerning the conduct of
certain affairs of GAMCO Investors, Inc. as they may involve Mr. Gabelli,
members of his immediate family and affiliates, and the powers, rights, duties
and liabilities of GAMCO Investors, Inc. and its subsidiaries and their
respective officers, directors and shareholders in connection
therewith.
For
purposes of these provisions, which are summarized below,
(i) “GAMCO
Investors, Inc.” includes its subsidiaries and other entities in which we
beneficially own 50% or more of the outstanding voting securities or comparable
interests, and
(ii) a
“Gabelli” includes Mr. Gabelli, any member of his immediate family who is at the
time an officer or director of GAMCO Investors, Inc. and any entity in which one
or more Gabellis beneficially own a controlling interest of the outstanding
voting securities or comparable interests.
“Corporate
opportunities” potentially allocable to GAMCO Investors, Inc. consist of
business opportunities that
(i) GAMCO
Investors, Inc. is financially able to undertake;
(ii) are,
from their nature, in GAMCO Investors, Inc.’s actual line or lines of business
and are of practical advantage to GAMCO Investors, Inc.; and
(iii) are
ones in which GAMCO Investors, Inc. has an interest or reasonable
expectancy.
“Corporate
opportunities” do not include transactions in which GAMCO Investors, Inc. or a
Gabelli is permitted to participate pursuant to any agreement between GAMCO
Investors, Inc. and such Gabelli that is in effect as of the time any equity
security of GAMCO Investors, Inc. is held of record by any person other than a
Gabelli or is subsequently entered into with the approval of the members of the
Board of Directors and do not include passive investments.
Before
the Trigger Date, the affirmative vote of the holders of a majority of the
outstanding Voting Stock, voting together as a single class, will be required to
alter, amend or repeal any of these conflict of interest or corporate
opportunity provisions in a manner adverse to the interests of any Gabelli.
After the Trigger Date, such vote will be increased to 80% to alter, amend,
repeal or replace any of the conflict of interest and corporate opportunity
provisions.
Corporate Opportunity Policy.
Except with respect to opportunities that involve Permissible Accounts, if a
Gabelli acquires knowledge of a potential transaction on a matter that is a
corporate opportunity for both any Gabelli and GAMCO Investors, Inc., such
Gabelli will have a duty to communicate that opportunity to GAMCO Investors,
Inc. and may not pursue that opportunity or direct it to another person unless
GAMCO Investors, Inc. declines such opportunity or fails to pursue
it.
If a
director or officer of GAMCO Investors, Inc. other than a Gabelli acquires
knowledge of a potential transaction or matter that may be a corporate
opportunity for both GAMCO Investors, Inc. and a Gabelli, the Certificate of
Incorporation requires that such director or officer act in good faith in
accordance with the following two-part policy.
First, a
corporate opportunity offered to any person who is a director but not an officer
of GAMCO Investors, Inc. and who is also a director (whether or not an officer)
of an entity which is at the time a Gabelli will belong to such Gabelli or to
GAMCO Investors, Inc., as the case may be, depending on whether the opportunity
is expressly offered to the person primarily in his or her capacity as an
officer or director of the entity which is at the time a Gabelli or of GAMCO
Investors, Inc., respectively. Otherwise, the opportunity will belong to GAMCO
Investors, Inc. to the same extent as if the opportunity came directly to GAMCO
Investors, Inc.
Second, a
corporate opportunity offered to any person who is an officer (whether or not a
director) of GAMCO Investors, Inc. and who is also a director or an officer of
an entity which is at the time a Gabelli will belong to GAMCO Investors, Inc.,
unless the opportunity is expressly offered to that person primarily in his or
her capacity as a director or officer of the entity which is at the time a
Gabelli, in which case the opportunity will belong to such Gabelli to the same
extent as if the opportunity came directly to a Gabelli.
Under the
Certificate of Incorporation, a director or officer of GAMCO Investors, Inc.
(other than a Gabelli) who acts in accordance with the foregoing two-part
policy
(i) will
be deemed fully to have satisfied his or her fiduciary duties to GAMCO
Investors, Inc. and its shareholders with respect to such corporate
opportunity;
(ii) will
not be liable to GAMCO Investors, Inc. or its shareholders for any breach of
fiduciary duty by reason of the fact that a Gabelli pursues or acquires such
opportunity or directs such corporate opportunity to another person or entity or
does not communicate information regarding such opportunity to GAMCO Investors,
Inc.;
(iii) will
be deemed to have acted in good faith and in a manner he or she reasonably
believes to be in the best interests of GAMCO Investors, Inc.; and
(iv) will
be deemed not to have breached his or her duty of loyalty to GAMCO Investors,
Inc. or its shareholders and not to have derived an improper benefit
therefrom.
Under the
Certificate of Incorporation, any corporate opportunity that belongs to a
Gabelli or to GAMCO Investors, Inc. pursuant to the foregoing policy will not be
pursued by the other (or directed by the other to another person or entity)
unless and until such Gabelli or GAMCO Investors, Inc., as the case may be,
determines not to pursue the opportunity. If the party to whom the corporate
opportunity belongs does not, however, within a reasonable period of time, begin
to pursue, or thereafter continue to pursue, such opportunity diligently and in
good faith, the other party may pursue such opportunity (or direct it to another
person or entity).
Conflict of Interests Policy.
The Certificate of Incorporation provides that no contract, agreement,
arrangement or transaction, or any amendment, modification or termination
thereof, or any waiver of any right thereunder, (each, a “Transaction”) between
GAMCO Investors, Inc. and
(i) a
Gabelli,
(ii) any
customer or supplier,
(iii) any
entity in which a director of GAMCO Investors, Inc. has a financial interest (a
“Related Entity”), or
(iv) one
or more of the directors or officers of GAMCO Investors, Inc. or any Related
Entity
will be
voidable solely because any of the persons or entities listed in (i) through
(iv) above are parties thereto, if the standard specified below is
satisfied.
Further,
no Transaction will be voidable solely because any such directors or officers
are present at or participate in the meeting of the Board of Directors or
committee thereof that authorizes the Transaction or because their votes are
counted for such purpose, if the standard specified is satisfied. That standard
will be satisfied, and such Gabelli, the Related Entity, and the directors and
officers of GAMCO Investors, Inc. or the Related Entity (as applicable) will be
deemed to have acted reasonably and in good faith (to the extent such standard
is applicable to such person’s conduct) and fully to have satisfied any duties
of loyalty and fiduciary duties they may have to GAMCO Investors, Inc. and its
shareholders with respect to such Transaction if any of the following four
requirements are met:
(i) the
material facts as to the relationship or interest and as to the Transaction are
disclosed or known to the Board of Directors or the committee thereof that
authorizes the Transaction, and the Board of Directors or such committee in good
faith approves the Transaction by the affirmative vote of a majority of the
disinterested directors on the Board of Directors or such committee, even if the
disinterested directors are less than a quorum;
(ii) the
material facts as to the relationship or interest and as to the Transaction are
disclosed or known to the holders of Voting Stock entitled to vote thereon, and
the Transaction is specifically approved by vote of the holders of a majority of
the voting power of the then outstanding Voting Stock not owned by such Gabelli
or such Related Entity, voting together as a single class;
(iii) the
Transaction is effected pursuant to guidelines that are in good faith approved
by a majority of the disinterested directors on the Board of Directors or the
applicable committee thereof or by vote of the holders of a majority of the then
outstanding voting Stock not owned by such Gabelli or such Related Entity,
voting together as a single class; or
(iv) the
Transaction is fair to GAMCO Investors, Inc. as of the time it is approved by
the Board of Directors, a committee thereof or the shareholders of GAMCO
Investors, Inc.
The
Certificate of Incorporation also provides that any such Transaction authorized,
approved, or effected, and each of such guidelines so authorized or approved, as
described in (i), (ii) or (iii) above, will be deemed to be entirely fair to
GAMCO Investors, Inc. and its shareholders, except that, if such authorization
or approval is not obtained, or such Transaction is not so effected, no
presumption will arise that such Transaction or guideline is not fair to GAMCO
Investors, Inc. and its shareholders. In addition, the Certificate of
Incorporation provides that a Gabelli will not be liable to GAMCO Investors,
Inc. or its shareholders for breach of any fiduciary duty that a Gabelli may
have as a shareholder of GAMCO Investors, Inc. by reason of the fact that a
Gabelli takes any action in connection with any transaction between such Gabelli
and GAMCO Investors, Inc. For purposes of these provisions, interests in an
entity that are not equity or ownership interests or that constitute less than
10% of the equity or ownership interests of such entity will not be considered
to confer a financial interest on any person who beneficially owns such
interests.
The New
York courts have not ruled on the validity or enforceability of provisions
similar to the corporate opportunity and conflicts of interest provisions that
are included in GAMCO Investors, Inc.’s Certificate of Incorporation and could
rule that certain liabilities which they purport to eliminate remain in
effect.
Listing. The Class A Common
Stock is listed on the NYSE under the symbol “GBL.”
Transfer Agent and Registrar.
The transfer agent and registrar for the common stock is Computershare Trust
Company, N.A.
DESCRIPTION
OF STOCK PURCHASE CONTRACTS
AND
STOCK PURCHASE UNITS
GAMCO
Investors, Inc. may issue Stock Purchase Contracts, including contracts
obligating holders to purchase from or sell to GAMCO Investors, Inc. and
obligating GAMCO Investors, Inc. to sell to or purchase from the holders of
these contracts, a specified number of shares of Class A Common Stock or
preferred stock at a future date or dates or at the option of GAMCO Investors,
Inc. The consideration per share of Class A Common Stock or preferred stock may
be fixed at the time the Stock Purchase Contracts are issued or may be
determined by reference to a specific formula set forth in the Stock Purchase
Contracts. The Stock Purchase Contracts may be issued separately or
as a part of units consisting of a Stock Purchase Contract and debt securities
or debt obligations of third parties, including U.S. Treasury
securities, securing the holders’ obligations to purchase or to sell the Class A
Common Stock or preferred stock under the Stock Purchase
Contracts. The Stock Purchase Contracts may require GAMCO Investors,
Inc. to make periodic payments to the holders of the Stock Purchase Units or
vice versa, and such payments may be unsecured or prefunded on some
basis. The Stock Purchase Contacts may require holders to secure
their obligations thereunder in a specified manner.
The
applicable prospectus supplement will describe the terms of any Stock Purchase
Contracts or Stock Purchase Units. The description in the prospectus
supplement will not necessarily be complete, and reference will be made to the
Stock Purchase Contracts, and, if applicable, collateral arrangements and
depositary arrangements, relating to such Stock Purchase Contracts or Stock
Purchase Units.
PLAN
OF DISTRIBUTION
We may
sell the securities offered by this prospectus from time to time in one or more
transactions;
|
·
|
directly
to purchasers,
|
|
·
|
to
or through underwriters or dealers,
or
|
|
·
|
through
a combination of these methods.
|
A
distribution of the securities offered by this prospectus may also be effected
through the issuance of derivative securities.
In
addition, the manner in which we may sell some or all of the securities covered
by this prospectus includes, without limitation, through:
|
·
|
a
block trade in which a broker-dealer will attempt to sell as agent, but
may position or resell a portion of the block, as principal, in order to
facilitate the transaction;
|
|
·
|
purchases
by a broker-dealer, as principal, and resale by the broker-dealer for its
account; or
|
|
·
|
ordinary
brokerage transactions and transactions in which a broker solicits
purchasers.
|
In
addition, we may enter into derivative or hedging transactions with third
parties, or sell securities not covered by this prospectus to third parties in
privately negotiated transactions. In connection with such a transaction, the
third parties may sell securities covered by and pursuant to this prospectus and
an applicable prospectus supplement or other offering materials, as the case may
be. If so, the third party may use securities borrowed from us or others to
settle such sales and may use securities received from us to close out any
related short positions. We may also loan or pledge securities covered by this
prospectus and an applicable prospectus supplement to third parties, who may
sell the loaned securities or, in an event of default in the case of a pledge,
sell the pledged securities pursuant to this prospectus and the applicable
prospectus supplement or other offering materials, as the case may
be.
A
prospectus supplement with respect to each series of securities will state the
terms of the offering of the securities, including:
|
·
|
the
terms of the offering;
|
|
·
|
the
name or names of any underwriters or agents and the amounts of securities
underwritten or purchased by each of them, if
any;
|
|
·
|
the
public offering price or purchase price of the securities and the net
proceeds to be received by us from the
sale;
|
|
·
|
any
delayed delivery arrangements;
|
|
·
|
any
initial public offering price;
|
|
·
|
any
underwriting discounts or agency fees and other items constituting
underwriters’ or agents’
compensation;
|
|
·
|
any
discounts or concessions allowed or reallowed or paid to dealers;
and
|
|
·
|
any
securities exchange on which the securities may be
listed.
|
The offer
and sale of the securities described in this prospectus by us, the underwriters
or the third parties described above may be effected from time to time in one or
more transactions, including privately negotiated transactions,
either:
|
·
|
at
a fixed price or prices, which may be
changed;
|
|
·
|
in
an “at the market” offering within the meaning of Rule 415(a)(4) of the
Securities Act of 1933 (the “Securities
Act”);
|
|
·
|
at
prices related to the prevailing market prices;
or
|
General
Underwriters,
dealers, agents and remarketing firms that participate in the distribution of
the offered securities may be “underwriters” as defined in the Securities Act.
Any discounts or commissions they receive from us and any profits they receive
on the resale of the offered securities may be treated as underwriting discounts
and commissions under the Securities Act. We will identify any underwriters,
agents or dealers and describe their commissions, fees or discounts in the
applicable prospectus supplement, as the case may be.
Underwriters
and Agents
If
underwriters are used in a sale, they will acquire the offered securities for
their own account. The underwriters may resell the offered securities in one or
more transactions, including negotiated transactions. These sales will be made
at a fixed public offering price or at varying prices determined at the time of
the sale. We may offer the securities to the public through an underwriting
syndicate or through a single underwriter. The underwriters in any particular
offering will be mentioned in the applicable prospectus supplement or other
offering materials, as the case may be.
Unless
the applicable prospectus supplement states otherwise, the obligations of the
underwriters to purchase the offered securities will be subject to certain
conditions contained in an underwriting agreement that we will enter into with
the underwriters at the time of the sale to them. The underwriters will be
obligated to purchase all of the securities of the series offered if any of the
securities are purchased, unless the applicable prospectus supplement says
otherwise. Any initial public offering price and any discounts or concessions
allowed, reallowed or paid to dealers may be changed from time to
time.
We may
designate agents to sell the offered securities. Unless the applicable
prospectus supplement states otherwise, the agents will agree to use their best
efforts to solicit purchases for the period of their appointment. We may also
sell the offered securities to one or more remarketing firms, acting as
principals for their own accounts or as agents for us. These firms will remarket
the offered securities upon purchasing them in accordance with a redemption or
repayment pursuant to the terms of the offered securities. A prospectus
supplement or other offering materials, as the case may be, will identify any
remarketing firm and will describe the terms of its agreement, if any, with us
and its compensation.
In
connection with offerings made through underwriters or agents, we may enter into
agreements with such underwriters or agents pursuant to which we receive our
outstanding securities in consideration for the securities being offered to the
public for cash. In connection with these arrangements, the underwriters or
agents may also sell securities covered by this prospectus to hedge their
positions in these outstanding securities, including in short sale transactions.
If so, the underwriters or agents may use the securities received from us under
these arrangements to close out any related open borrowings of
securities.
Dealers
We may
sell the offered securities to dealers as principals. The dealer may then resell
such securities to the public either at varying prices to be determined by the
dealer or at a fixed offering price agreed to with us at the time of
resale.
Direct
Sales
We may
choose to sell the offered securities directly. In this case, no underwriters or
agents would be involved.
Institutional
Purchasers
We may
authorize agents, dealers or underwriters to solicit certain institutional
investors to purchase offered securities on a delayed delivery basis pursuant to
delayed delivery contracts providing for payment and delivery on a specified
future date. The applicable prospectus supplement or other offering materials,
as the case may be, will provide the details of any such arrangement, including
the offering price and commissions payable on the solicitations.
We will
enter into such delayed contracts only with institutional purchasers that we
approve. These institutions may include commercial and savings banks, insurance
companies, pension funds, investment companies and educational and charitable
institutions.
Indemnification;
Other Relationships
We may
have agreements with agents, underwriters, dealers and remarketing firms to
indemnify them against certain civil liabilities, including liabilities under
the Securities Act. Agents, underwriters, dealers and remarketing firms, and
their affiliates, may engage in transactions with, or perform services for, us
in the ordinary course of business. This includes commercial banking and
investment banking transactions.
Market-Making,
Stabilization and Other Transactions
There is
currently no market for any of the offered securities, other than our Class A
Common Stock which is listed on the NYSE. If the offered securities are traded
after their initial issuance, they may trade at a discount from their initial
offering price, depending upon prevailing interest rates, the market for similar
securities and other factors. While it is possible that an underwriter could
inform us that it intends to make a market in the offered securities, such
underwriter would not be obligated to do so, and any such market-making could be
discontinued at any time without notice. Therefore, no assurance can be given as
to whether an active trading market will develop for the offered securities. We
have no current plans for listing of the debt securities or preferred stock on
any securities exchange or quotation system; any such listing with respect to
any particular debt securities or preferred stock will be described in the
applicable prospectus supplement or other offering materials, as the case may
be.
Any
underwriter may engage in stabilizing transactions, syndicate covering
transactions and penalty bids in accordance with Rule 104 under the Exchange
Act. Stabilizing transactions involve bids to purchase the underlying security
in the open market for the purpose of pegging, fixing or maintaining the price
of the securities. Syndicate covering transactions involve purchases of the
securities in the open market after the distribution has been completed in order
to cover syndicate short positions.
Penalty
bids permit the underwriters to reclaim a selling concession from a syndicate
member when the securities originally sold by the syndicate member are purchased
in a syndicate covering transaction to cover syndicate short positions.
Stabilizing transactions, syndicate covering transactions and penalty bids may
cause the price of the securities to be higher than it would be in the absence
of these transactions. The underwriters may, if they commence these
transactions, discontinue them at any time.
Fees
and Commissions
In
compliance with the guidelines of the Financial Industry Regulatory Authority,
or “FINRA,” the aggregate maximum discount, commission or agency fees or other
items constituting underwriting compensation to be received by any FINRA member
or independent broker-dealer will not exceed 8% of any offering pursuant to this
prospectus and any applicable prospectus supplement or other offering materials,
as the case may be; however, it is anticipated that the maximum commission or
discount to be received in any particular offering of securities will be
significantly less than this amount.
Gabelli
& Company
Gabelli & Company is a member of
FINRA and may participate in distributions of the offered securities.
Accordingly, offerings of offered securities in which Gabelli & Company
participates will conform with the requirements set forth in NASD Conduct Rule
2720.
This prospectus, together with any
applicable prospectus supplement may also be used by Gabelli & Company in
connection with offers and sales of the offered securities in market-making
transactions, including block positioning and block trades, at negotiated prices
related to prevailing market prices at the time of sale. Gabelli & Company
may act as principal or agent in such transactions but it does not however have
any obligation to make a market in any of the offered securities and may
discontinue any market-making activities at any time without notice, at its sole
discretion.
LEGAL
MATTERS
Unless
otherwise specified in the applicable prospectus supplement, the validity of the
securities offered hereby will be passed upon for us by Christopher J.
Michailoff, Associate General Counsel of GAMCO Investors, Inc. Mr.
Michailoff beneficially owns unvested restricted shares of the Class A Common
Stock of GAMCO Investors, Inc. Certain other legal matters will be
passed upon for us by Skadden, Arps, Slate, Meagher & Flom LLP, New York,
New York. If legal matters in connection with offerings made by this prospectus
are passed on by counsel for the underwriters, dealers or agents, if any, that
counsel will be named in the applicable prospectus supplement.
EXPERTS
The
consolidated financial statements of GAMCO Investors, Inc. appearing in GAMCO
Investors, Inc.’s Annual Report on Form 10-K for the year ended December 31,
2008 and the effectiveness of GAMCO Investors, Inc.’s internal control over
financial reporting as of December 31, 2008 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.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
registrant has agreed to pay all expenses of the offering. All the amounts shown
are estimates, except for the SEC registration fee:
|
Securities
and Exchange Commission Registration Fee
|
|
$ |
0 |
|
|
Accounting
Fees and Expenses
|
|
|
20,000 |
|
|
Legal
Fees
|
|
|
50,000 |
|
|
Printing
and Engraving Expenses
|
|
|
10,000 |
|
|
Trustee
Fees and Expenses
|
|
|
25,000 |
|
|
Miscellaneous
Expenses
|
|
|
25,000 |
|
|
Total
|
|
$ |
130,000 |
|
Item
15. Indemnification of Directors and Officers.
GAMCO
Investors, Inc.’s Certificate of Incorporation provides that no director of
GAMCO Investors, Inc. will be personally liable to GAMCO Investors, Inc. or any
of its shareholders for monetary damages arising from the director’s breach of
fiduciary duty as a director, with certain limited exceptions. See “Description
of Capital Stock – Certificate of Incorporation and Bylaw Provisions – Liability
of Directors; Indemnification” in the prospectus.
Sections
721-726 of the New York Business Corporation Law provide that a corporation may
indemnify its officers and directors (or persons who have served, at the
corporation’s request, as officers or directors of another corporation) against
the reasonable expenses, including attorneys’ fees, actually and reasonably
incurred by them in connection with the defense of any action by reason of being
or having been directors or officers, if such person shall have acted in good
faith and in a manner he reasonably believed to be in, or not opposed to, the
best interests of the corporation, except that if such action shall be in the
right of the corporation, no such indemnification shall be provided as to any
claim, issue or matter as to which such person shall have been adjudged to have
been liable to the corporation unless and only to the extent that the court in
which the action was brought, or, if no action was brought, any court of
competent jurisdiction determines upon application that, in view of all of the
circumstances of the case, the person is fairly and reasonably entitled to
indemnification.
The power
to indemnify applies to actions brought by or in the right of the corporation as
well, but only to the extent of defense and settlement expenses and not to any
satisfaction of a judgment or settlement of the claim itself, and with the
further limitation that in such actions no indemnification will be made in the
event of any adjudication of negligence or misconduct unless the court, in its
discretion, believes that in light of all the circumstances indemnification
should apply.
To the
extent any of the persons referred to in the two immediately preceding
paragraphs is successful in the defense of such actions, such person is
entitled, pursuant to the laws of New York State, to indemnification as
described above.
GAMCO
Investors, Inc.’s Bylaws provide for indemnification to officers and directors
of GAMCO Investors, Inc. to the fullest extent permitted by the New York
Business Corporation Law. See “Description of Capital Stock – Certificate of
Incorporation and Bylaw Provisions – Liability of Directors; Indemnification” in
the prospectus.
Item
16. List of Exhibits.
The
Exhibits to this registration statement are listed in the Index to Exhibits on
page II-6.
Item
17. Undertakings.
|
(a)
|
The
undersigned registrant hereby
undertakes:
|
|
|
(1)
|
To
file, during any period in which offers or sales are being made, a post
effective amendment to this registration
statement:
|
|
|
(i)
|
To
include any prospectus required by Section 10(a)(3) of the Securities Act
of 1933;
|
|
|
(ii)
|
To
reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from
the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in amount and price
represent no more than a 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the
effective registration statement.
|
|
|
(iii)
|
To
include any material information with respect to the plan of distribution
not previously disclosed in the registration statement or any material
change to such information in the registration
statement.
|
Provided,
however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) above do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to the
Commission by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement, or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of the registration statement.
|
|
(2)
|
That,
for the purpose of determining any liability under the Securities Act of
1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
|
|
|
(3)
|
To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
|
|
|
(4)
|
That,
for the purpose of determining liability under the Securities Act of 1933
to any purchaser:
|
|
|
(i)
|
Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be
deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration statement;
and
|
|
|
(ii)
|
Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or
(b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x)
for the purpose of providing the information required by section 10(a) of
the Securities Act of 1933 shall be deemed to be part of and included in
the registration statement as of the earlier of the date such form of
prospectus is first used after effectiveness or the date of the first
contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement relating
to the securities in the registration statement to which that prospectus
relates, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is part of
the registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser with a
time of contract of sale prior to such effective date, supersede or modify
any statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such document
immediately prior to such effective
date.
|
|
|
(5)
|
That,
for the purpose of determining liability of the registrant under the
Securities Act of 1933 to any purchaser in the initial distribution of
securities, the undersigned registrant undertakes that in a primary
offering of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered or sold to
such purchaser by means of any of the following communications, the
undersigned registrant will be a seller to the purchaser and will be
considered to offer or sell such securities to such
purchaser:
|
|
|
(i)
|
Any
preliminary prospectus or prospectus of the undersigned relating to the
offering required to be filed pursuant to Rule
424;
|
|
|
(ii)
|
Any
free writing prospectus relating to the offering prepared by or on behalf
of the undersigned registrant or used or referred to by the undersigned
registrant;
|
|
|
(iii)
|
The
portion of any other free writing prospectus relating the offering
containing material information about the undersigned registrant or its
securities provided by or on behalf of the undersigned registrant;
and
|
|
|
(iv)
|
Any
other communication that is an offer in the offering made by the
undersigned registrant to the
purchaser.
|
|
(b)
|
The
undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the
registrant’s annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 (and where applicable, each filing of
an employee benefit plan’s annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
|
|
(c)
|
Insofar
as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or paid by
a director, officer or controlling person of the registrant in the
successful defense of any action, suit, or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of
such issue.
|
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of Rye,
State of New York on July 27, 2009.
GAMCO
INVESTORS, INC.
By: /s/ Jeffrey M.
Farber
Name: Jeffrey M.
Farber
Title: Chief
Financial Officer
POWER
OF ATTORNEY
Each
person whose signature appears below hereby constitutes and appoints Jeffrey M.
Farber and Christopher J. Michailoff and each of them, his true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution,
for him in his name, place and stead, in any and all capacities, to sign any and
all amendments to this registration statement and any additional registration
statement pursuant to Rule 462(b) under the Securities Act of 1933 and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, and hereby grants to
such attorney-in-fact and agent, full power and authority to do and perform each
and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons in the capacities and on the dates
indicated.
|
SIGNATURE
|
TITLE
|
DATE
|
|
|
|
|
|
/s/
Mario J. Gabelli
|
Chairman
of the Board, Chief Executive Officer and Chief Investment Officer – Value
Products (Principal Executive Officer)
|
July
27, 2009
|
|
Mario
J. Gabelli
|
|
|
|
|
|
/s/
Jeffrey M. Farber
|
Chief
Financial Officer (Principal Financial Officer)
|
July
27, 2009
|
|
Jeffrey
M. Farber
|
|
|
|
|
|
|
|
/s/ Edwin L. Artzt
|
Director
|
July
27, 2009
|
|
Edwin
L. Artzt
|
|
|
|
|
|
|
|
/s/
Richard L. Bready
|
Director
|
July
27, 2009
|
|
Richard
L. Bready
|
|
|
|
|
|
|
|
/s/
Elisa M. Wilson
|
Director
|
July
27, 2009
|
|
Elisa
M. Wilson
|
|
|
|
|
|
|
|
/s/
Eugene R. McGrath
|
Director
|
July
27, 2009
|
|
Eugene
R. McGrath
|
|
|
|
|
|
|
|
/s/
Robert S. Prather
|
Director
|
July
27, 2009
|
|
Robert
S. Prather
|
|
|
|
|
|
|
|
/s/ Raymond
C. Avansino
|
Director
|
July
27, 2009
|
|
Raymond
C. Avansino
|
|
|
EXHIBIT
INDEX
|
Exhibit No.
|
Description of Exhibits
|
|
|
|
|
|
|
|
1.1
|
Form
of Underwriting Agreement (to be filed on a subsequent Current Report on
Form 8-K of GAMCO Investors, Inc., if applicable)
|
|
|
|
|
3.1
|
Restated
Certificate of Incorporation of GAMCO Investors, Inc. (incorporated by
reference to Exhibit 3.1 to the Annual Report of GAMCO Investors, Inc. on
Form 10-K for the year ended December 31, 2008, filed with the Securities
and Exchange Commission on March 12, 2009)
|
|
|
|
|
3.2
|
Amended
and Restated Bylaws of GAMCO Investors, Inc. (incorporated by reference to
Exhibit 3.4 to Amendment No. 4 to Gabelli Asset Management Inc.’s
Registration Statement on Form S-1 (File No. 333-51023) filed with the
Securities and Exchange Commission on February 10,
1999)
|
|
|
|
|
4.1
|
Senior
Indenture, dated February 6, 2002, between Gabelli Asset Management Inc.
and The Bank of New York, as Trustee (the “Senior Indenture”)
(incorporated by reference to Exhibit 4.1 to a Current Report of Gabelli
Asset Management Inc. on Form 8-K dated February 8, 2002, filed with the
Securities and Exchange Commission on February 8, 2002)
|
|
|
|
|
4.2
|
Form
of Senior Debt Securities (included in Exhibit 4.1)
|
|
|
|
|
4.3
|
Form
of Subordinated Indenture between the Registrant and The Bank of New York,
as Trustee (the “Subordinated Indenture”)
|
|
|
|
|
4.4
|
Form
of Subordinated Debt Securities (included in Exhibit
4.3)
|
|
|
|
|
4.5
|
Certificate
of Amendment relating to preferred stock (to be filed on a subsequent
Current Report on Form 8-K of GAMCO Investors, Inc., if
applicable)
|
|
|
|
|
4.6
|
Purchase
Contract Agreement setting forth Stock Purchase Contracts and/or Stock
Purchase Units (to be filed on a subsequent Current Report on Form 8-K of
GAMCO Investors, Inc., if applicable)
|
|
|
|
|
5.1
|
Opinion
of Christopher J. Michailoff, Associate General Counsel of GAMCO
Investors, Inc.
|
|
|
|
|
12.1
|
Statement
regarding computation of ratio of earnings to fixed
charges
|
|
|
|
|
23.1
|
Consent
of Ernst & Young LLP, independent registered public accounting
firm
|
|
|
|
|
23.2
|
Consent
of Christopher J. Michailoff (included in Exhibit 5.1)
|
|
|
|
|
24.1
|
Powers
of Attorney (included in the signature pages hereto)
|
|
|
|
|
25.1
|
Form
T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as
amended, of The Bank of New York, under the Senior
Indenture
|
|
|
|
|
25.2
|
Form
T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as
amended, of The Bank of New York, under the Subordinated
Indenture
|
|
|
|