GAMR Amplify Video Game Tech ETF

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

SCHEDULE 13D

 

Under the Securities Exchange Act of 1934

(Amendment No. 17)*

 

Babcock & Wilcox Enterprises, Inc.

(Name of Issuer)

 

Common Stock, par value $0.01

(Title of Class of Securities)

  

05614L100

(CUSIP Number)

  

Bryant R. Riley

B. Riley Financial, Inc.

11100 Santa Monica Boulevard, Suite 800

Los Angeles, CA 90025

(818) 884-3737

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

 

July 11, 2024

(Date of Event Which Requires Filing of this Statement)
 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ☐

 

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

 

*	The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

 

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

Persons who respond to the collection of information contained in this form are not required to respond unless the form displays a currently valid OMB control number.

 

 

 

CUSIP No. 05614L100

 

1.	Names of Reporting Persons   B. Riley Financial, Inc.
2.	Check the Appropriate Box if a Member of a Group (See Instructions)
	(a) ☐
	(b) ☐
3.	SEC Use Only
4.	Source of Funds (See Instructions)   WC, AF
5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)  ☐
6.	Citizenship or Place of Organization   Delaware

Number of Shares Beneficially Owned by Each Reporting Person With	7.	Sole Voting Power   0
	8.	Shared Voting Power   27,446,522
	9.	Sole Dispositive Power   0
	10.	Shared Dispositive Power   27,446,522

11.	Aggregate Amount Beneficially Owned by Each Reporting Person   27,446,522
12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ☐
13.	Percent of Class Represented by Amount in Row (11)   30.2%*
14.	Type of Reporting Person (See Instructions) HC

 

*

Percent of class is calculated based on 91,012,045 shares of common stock, par value $0.01 (the “Common Stock”), of Babcock & Wilcox Enterprises, Inc. (the “Issuer”) outstanding as of May 3, 2024 as reported by the Issuer in its Quarterly Report on Form 10-Q for the quarter ended March 31, 2024 filed with the Securities and Exchange Commission (the “Commission”) on May 9, 2024 (the “10-Q”).

 

 

CUSIP No. 05614L100

 

1.	Names of Reporting Persons   B. Riley Securities, Inc.
2.	Check the Appropriate Box if a Member of a Group (See Instructions)
	(a) ☐
	(b) ☐
3.	SEC Use Only
4.	Source of Funds (See Instructions)   WC
5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)  ☐
6.	Citizenship or Place of Organization Delaware

Number of Shares Beneficially Owned by Each Reporting Person With	7.	Sole Voting Power   0
	8.	Shared Voting Power   15,573,362
	9.	Sole Dispositive Power   0
	10.	Shared Dispositive Power 15,573,362

11.	Aggregate Amount Beneficially Owned by Each Reporting Person   15,573,362
12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ☐
13.	Percent of Class Represented by Amount in Row (11)   17.1%*
14.	Type of Reporting Person (See Instructions) BD

 

*

Percent of class is calculated based on 91,012,045 shares of the Common Stock of the Issuer outstanding as of May 3, 2024, as reported by the Issuer in the 10-Q.

 

 

CUSIP No. 05614L100

 

1.	Names of Reporting Persons   BRF Investments, LLC
2.	Check the Appropriate Box if a Member of a Group (See Instructions)
	(a) ☐
	(b) ☐
3.	SEC Use Only
4.	Source of Funds (See Instructions)   WC
5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)  ☐
6.	Citizenship or Place of Organization Delaware

Number of Shares Beneficially Owned by Each Reporting Person With	7.	Sole Voting Power   0
	8.	Shared Voting Power   11,873,160
	9.	Sole Dispositive Power   0
	10.	Shared Dispositive Power   11,873,160

11.	Aggregate Amount Beneficially Owned by Each Reporting Person   11,873,160
12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ☐
13.	Percent of Class Represented by Amount in Row (11)   13.0%*
14.	Type of Reporting Person (See Instructions) OO

 

*

Percent of class is calculated based on 91,012,045 shares of the Common Stock of the Issuer outstanding as of May 3, 2024, as reported by the Issuer in the 10-Q.

 

 

CUSIP No. 05614L100

 

1.	Names of Reporting Persons Bryant R. Riley
2.	Check the Appropriate Box if a Member of a Group (See Instructions)
	(a) ☐
	(b) ☐
3.	SEC Use Only
4.	Source of Funds (See Instructions)   PR, AF
5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ☐
6.	Citizenship or Place of Organization United States of America

Number of Shares Beneficially Owned by Each Reporting Person With	7.	Sole Voting Power   1,373,213
	8.	Shared Voting Power   27,446,522
	9.	Sole Dispositive Power   1,373,213
	10.	Shared Dispositive Power 27,446,522

11.	Aggregate Amount Beneficially Owned by Each Reporting Person   28,819,735
12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)  ☐
13.	Percent of Class Represented by Amount in Row (11)   31.7%*
14.	Type of Reporting Person (See Instructions) IN

 

*

Percent of class is calculated based on 91,012,045 shares of the Common Stock of the Issuer outstanding as of May 3, 2024, as reported by the Issuer in the 10-Q.

 

 

Explanatory Note

 

This Amendment No. 17 (this “Amendment”) amends and supplements the Schedule 13D filed on November 30, 2018, as amended by Amendment No. 1 to Schedule 13D, filed with the Securities and Exchange Commission (the “SEC”) on April 10, 2019, Amendment No. 2 to the Schedule 13D, filed with the SEC on May 7, 2019, Amendment No. 3 to Schedule 13D, filed with the SEC on July 23, 2019, Amendment No. 4 to Schedule 13D, filed with the SEC on July 29, 2019, Amendment No. 5 to the Schedule 13D, filed with the SEC on May 20, 2020, Amendment No. 6 to Schedule 13D, filed with the SEC on June 11, 2020, Amendment No. 7 to Schedule 13D, filed with the SEC on July 2, 2020, Amendment No. 8 to Schedule 13D, filed with the SEC on September 10, 2020, Amendment No. 9 to Schedule 13D, filed with the SEC on October 2, 2020, Amendment No. 10 to Schedule 13D, filed with the SEC on January 27, 2021, Amendment No. 11 to Schedule 13D, filed with the SEC on February 10, 2021, Amendment No. 12 to Schedule 13D, filed with the SEC on March 26, 2021, Amendment No. 13 to Schedule 13D, filed with the SEC on October 29, 2021, Amendment No. 14 to Schedule 13D, filed with the SEC on December 26, 2023, Amendment No. 15 to Schedule 13D, filed with the SEC on January 22, 2024, and Amendment No. 16 to Schedule 13D, filed with the SEC on April 17, 2024 (as amended, the “Schedule 13D”), by the Reporting Persons relating to the common stock, par value $0.01 (the “Common Stock”), of Babcock & Wilcox Enterprises, Inc. (the “Issuer”).

 

Information reported in the Schedule 13D remains in effect except to the extent that it is amended, restated or superseded by information contained in this Amendment. Capitalized terms used but not defined in this Amendment have the respective meanings set forth in the Schedule 13D. All references in the Schedule 13D and this Amendment to the “Statement” will be deemed to refer to the Schedule 13D as amended and supplemented by this Amendment.

 

Item 4. Purpose of the Transaction

 

Item 4 is amended to add the following:

 

As previously disclosed, on January 18, 2024 (the “Effective Date”), B. Riley Financial, Inc. (“BRF”) entered into a guaranty (the “Guaranty”) in favor of (i) Axos Bank, in its capacity as administrative agent (the “Administrative Agent”) for the secured parties under that certain Credit Agreement, dated as of the Effective Date among the Issuer, as borrower, the guarantors party thereto, the lenders party thereto and the Administrative Agent (the “Credit Agreement”), and (ii) the secured parties. Subject to the terms and conditions of the Guaranty, BRF has guaranteed certain obligations of the Issuer (subject to certain limitations) under the Credit Agreement. In consideration for the agreements and commitments under the Guaranty and pursuant to a separate fee and reimbursement agreement (the “Fee Agreement”) dated January 18, 2024, the Issuer agreed to pay BRF a fee equal to 2.00% of the aggregate revolving commitments (as defined in the Credit Agreement) under the Credit Agreement, payable quarterly and, at the Issuer’s election, in cash in full or 50% in cash and 50% in the form of penny warrants.

 

On July 11, 2024, BRF and the Issuer finalized and entered into a registration rights agreement (the “Registration Rights Agreement”) with respect to the shares of Issuer Common Stock issuable upon the exercise of any such penny warrants, if any are ever issued. The Registration Rights Agreement, among other things, provides BRF with customary demand and shelf registration rights with respect to any such shares. To date, no penny warrants have been issued to BRF. The foregoing description of the Registration Rights Agreement is only a summary, does not purport to be complete and is qualified in its entirety by reference to the full text of the agreement, a copy of which is filed as an exhibit hereto.

 

Item 5. Interest in Securities of the Issuer

 

Paragraphs (a) and (b) of Item 5 are amended and restated in their entirety as follows:

 

(a) - (b)

  

1.

As of the date hereof, (i) B. Riley Securities, Inc. (“BRS”) beneficially owned directly 15,573,362 shares of Common Stock, representing 17.1% of the Issuer’s Common Stock, and (ii) BRFI beneficially owned directly 11,873,160 shares of Common Stock, representing 13.0% of the Issuer’s Common Stock.

   

2.

BRF is the parent company of BRS and BRFI. As a result, BRF may be deemed to indirectly beneficially own the Shares held by BRS and BRFI.

 

3.

Bryant R. Riley may beneficially own 1,373,213 shares of Common Stock representing 1.5% of the Issuer’s Common Stock, of which (i) 1,155,382 shares are held jointly with his wife, Carleen Riley, (ii) 45,436 shares are held as sole custodian for the benefit of Abigail Riley, (iii) 45,801 shares are held as sole custodian for the benefit of Charlie Riley, (iv) 45,431 shares are held as sole custodian for the benefit of Eloise Riley, (v) 43,810 shares are held as sole custodian for the benefit of Susan Riley, and (vi) 37,353 shares are held in Bryant R. Riley’s 401(k) account. Bryant R. Riley may also beneficially own 27,446,522 shares of Common Stock, representing 30.2% of the Issuer’s Common Stock, outstanding and held directly by BRFI or BRS in the manner specified in paragraph (1) above. Bryant R. Riley disclaims beneficial ownership of the shares held by BRFI and BRS in each case except to the extent of his pecuniary interest therein.

 

 

Each of the Reporting Persons, as a member of a “group” with the other Reporting Persons for purposes of Rule 13d-5(b)(1) of the Exchange Act, may be deemed to beneficially own the securities of the Issuer owned by the other Reporting Persons. The filing of this Schedule 13D shall not be deemed an admission that the Reporting Persons are, for purposes of Section 13(d) of the Exchange Act, the beneficial owners of any securities of the Issuer it does not directly own or control. Each of the Reporting Persons specifically disclaims beneficial ownership of the securities reported herein except to the extent of such Reporting Person’s pecuniary interest therein.

 

As of the date hereof, each of BRS and BRF have shared power to vote or direct the vote of, and to dispose or direct the disposition of, the Shares beneficially owned directly by BRS, and each of BRFI and BRF have shared power to vote or direct the vote of, and to dispose or direct the disposition of, the Shares beneficially owned directly by BRFI.

 

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

 

Item 6 of the Schedule 13D is hereby amended and supplemented by adding the following:

 

The disclosures set forth in Item 4 are hereby incorporated by reference.

 

Item 7. Material to Be Filed as Exhibits

 

The following documents are filed as exhibits:

 

Exhibit
Number		Description
5*		Registration Rights Agreement, among Babcock & Wilcox Enterprises, Inc. and B. Riley Financial, Inc., dated July 11, 2024

 

*	Filed herewith

 

 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.

 

Date: July 15, 2024

 

	B. RILEY FINANCIAL, INC.
	By:	/s/ Bryant R. Riley
	Name:	Bryant R. Riley
	Title:	Co-Chief Executive Officer
	B. RILEY SECURITIES, INC.
	By:	/s/ Andrew Moore
	Name:	Andrew Moore
	Title:	Chief Executive Officer
	BRF INVESTMENTS, LLC.
	By:	/s/ Phillip Ahn
	Name:	Phillip Ahn
	Title:	Authorized Signatory
	/s/ Bryant R. Riley
	Bryant R. Riley

 

The original statement shall be signed by each person on whose behalf the statement is filed or his authorized representative. If the statement is signed on behalf of a person by his authorized representative (other than an executive officer or general partner of this filing person), evidence of the representative’s authority to sign on behalf of such person shall be filed with the statement, provided, however, that a power of attorney for this purpose which is already on file with the Commission may be incorporated by reference. The name and any title of each person who signs the statement shall be typed or printed beneath his signature.

 

Attention: Intentional misstatements or omissions of fact constitute Federal criminal violations (see 18 U.S.C. 1001).

 

 

SCHEDULE A

 

Executive Officers and Directors of B. Riley Financial, Inc.

 

Name and Position		Present Principal Occupation		Business Address		Citizenship
Bryant R. Riley Chairman of the Board of Directors and Co-Chief Executive Officer		Chief Executive Officer of B. Riley Capital Management, LLC; Co-Executive Chairman of B. Riley Securities, Inc.; and Chairman of the Board of Directors and Co-Chief Executive Officer of B. Riley Financial, Inc.		11100 Santa Monica Blvd. Suite 800 Los Angeles, CA 90025		United States
Thomas J. Kelleher Co-Chief Executive Officer and Director		Co-Chief Executive Officer and Director of B. Riley Financial, Inc.; Co-Executive Chairman of B. Riley Securities, Inc.; and President of B. Riley Capital Management, LLC		11100 Santa Monica Blvd. Suite 800 Los Angeles, CA 90025		United States
Phillip J. Ahn Chief Financial Officer and Chief Operating Officer		Chief Financial Officer and Chief Operating Officer of B. Riley Financial, Inc.		30870 Russell Ranch Rd Suite 250 Westlake Village, CA 91362		United States
Kenneth Young 1 President		President of B. Riley Financial, Inc.; and Chief Executive Officer of B. Riley Principal Investments, LLC		11100 Santa Monica Blvd. Suite 800 Los Angeles, CA 90025		United States
Alan N. Forman Executive Vice President, General Counsel and Secretary		Executive Vice President, General Counsel and Secretary of B. Riley Financial, Inc.		299 Park Avenue, 21st Floor New York, NY 10171		United States
Howard E. Weitzman Senior Vice President and Chief Accounting Officer		Senior Vice President and Chief Accounting Officer of B. Riley Financial, Inc.		30870 Russell Ranch Rd Suite 250 Westlake Village, CA 91362		United States
Robert L. Antin 2 Director		Co-Founder of VCA, Inc., an owner and operator of Veterinary care centers and hospitals		11100 Santa Monica Blvd. Suite 800 Los Angeles, CA 90025		United States
Robert D’Agostino Director		President of Q-mation, Inc., a supplier of software solutions		11100 Santa Monica Blvd. Suite 800 Los Angeles, CA 90025		United States
Renée E. LaBran Director		Founding partner of Rustic Canyon Partners (RCP), a technology focused VC fund		11100 Santa Monica Blvd. Suite 800 Los Angeles, CA 90025		United States
Randall E. Paulson Director		Special Advisor to Odyssey Investment Partners, LLC, a private equity investment firm		11100 Santa Monica Blvd. Suite 800 Los Angeles, CA 90025		United States
Michael J. Sheldon Director		Chairman and Chief Executive Officer of Deutsch North America, a creative agency – Retired		11100 Santa Monica Blvd. Suite 800 Los Angeles, CA 90025		United States
Mimi Walters Director		U.S. Representative from California’s 45th Congressional District – Retired		11100 Santa Monica Blvd. Suite 800 Los Angeles, CA 90025		United States
Mikel Williams Director		Chief Executive Officer and Director of privately held Targus International, LLC, supplier of carrying cases and accessories		11100 Santa Monica Blvd. Suite 800 Los Angeles, CA 90025		United States

 

1

As of the close of business on the date hereof, Kenneth Young directly owned 1,521,412 shares of Common Stock. The individual purchase prices and transaction data are available publicly on Kenneth Young’s Section 16 filings with the SEC. Kenneth Young has the sole power to vote and dispose of such shares of Common Stock and the right to receive, or the power to direct the receipt of dividends from, or proceeds from the sale of, such shares of Common Stock.

 

2

As of the close of business on the date hereof, Robert L. Antin directly owned 76,802 shares of Common Stock. The aggregate purchase price of the 76,802 shares of Common Stock that were purchased by Robert L. Antin with personal funds is approximately $940,253. Robert L. Antin has the sole power to vote and dispose of such Common Stock and the right to receive, or the power to direct the receipt of dividends from, or proceeds from the sale of, such Common Stock.

 

 

9

 

Exhibit 5

 

EXECUTION VERSION

 

BABCOCK & WILCOX ENTERPRISES, INC.

 

REGISTRATION RIGHTS AGREEMENT

 

THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made as of July 11, 2024 among Babcock & Wilcox Enterprises, Inc., a Delaware corporation (the “Company”), and B. Riley Financial Inc., a Delaware corporation (the “Investor”), and each other Person who executes a Joinder as an “Other Holder” (collectively, the “Other Holders”). Except as otherwise specified herein, all capitalized terms used in this Agreement are defined in Exhibit A attached hereto.

 

In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement hereby agree as follows:

 

Section 1. Demand Registrations.

  

(a) Requests for Registration. Subject to the limitations set forth herein, at any time on or after the date of this Agreement and from time to time thereafter, the Investor may request registration under the Securities Act of all or any portion of their Registrable Securities on Form S-1 or any similar long-form registration (“Long-Form Registrations”) or on Form S-3 or any similar short-form registration (“Short-Form Registrations”), if available (any such requested registration, a “Demand Registration”). The Investor may request that any Demand Registration that is also a Short-Form Registration be made pursuant to Rule 415 under the Securities Act (a “Shelf Registration”) and (if the Company is a WKSI at the time any such request is submitted to the Company or will become one by the time of the filing of such Shelf Registration) that such Shelf Registration be an automatic shelf registration statement (as defined in Rule 405 under the Securities Act) (an “Automatic Shelf Registration Statement”). Each request for a Demand Registration must specify the approximate number or dollar value of Registrable Securities requested to be registered by the Investor and (if known) the intended method of distribution. Subject to the limitations set forth in Section 1(f)(i), Investor will be entitled to request an unlimited number of Demand Registrations in which the Company will pay all Registration Expenses, whether or not any such registrations is consummated.

 

(b) Notice to Other Holders. Within ten (10) days after receipt of any such request, the Company will give written notice of the Demand Registration to all Other Holders and, subject to the terms of Section 1(e), will include in such Demand Registration (and in all related registrations and qualifications under state blue sky laws and in any related underwriting) all Registrable Securities with respect to which the Company has received written requests for inclusion therein within ten (10) days after the receipt of the Company’s notice; provided that, with the consent of the majority of Other Holders, the Company may instead provide notice of the Demand Registration to all Other Holders within three (3) business days following the non-confidential filing of the registration statement with respect to the Demand Registration so long as such registration statement is not an Automatic Shelf Registration Statement.

 

 

(c) Form of Registrations. Demand Registrations will be Short-Form Registrations whenever the Company is permitted to use any applicable short form. The Company will use its reasonable best efforts to make Short-Form Registrations available for the sale of Registrable Securities.

 

(d) Shelf Registrations.

 

(i) Subject to the limitations set forth herein, at any time on or after the date of this Agreement and from time to time thereafter, for so long as a registration statement for a Shelf Registration (a “Shelf Registration Statement”) is and remains effective, the Investor will have the right at any time or from time to time to elect to sell pursuant to an offering (including an Underwritten Public Offering) Registrable Securities available for sale pursuant to such registration statement (“Shelf Registrable Securities”). The Investor may elect to sell Registrable Securities pursuant to an Underwritten Public Offering by delivering to the Company a written notice (a “Shelf Offering Notice”) specifying the number of Shelf Registrable Securities that Investor desires to sell pursuant to such Underwritten Public Offering (the “Shelf Offering”). As promptly as practicable, but in no event later than three (3) business days after receipt of a Shelf Offering Notice, the Company will give written notice of such Shelf Offering Notice to all Other Holders of Shelf Registrable Securities that have been identified as selling stockholders in such Shelf Registration Statement or are otherwise permitted to sell in such Shelf Offering if the names of selling stockholders have been omitted from the Shelf Registration Statement. The Company, subject to Section 1(e) and Section 6, will include in such Shelf Offering all Shelf Registrable Securities with respect to which the Company has received written requests for inclusion (which request will specify the maximum number of Shelf Registrable Securities intended to be disposed of by such Holder) within seven (7) days after the receipt of the Shelf Offering Notice. The Company will, as expeditiously as possible (and in any event within twenty (20) days after the receipt of a Shelf Offering Notice), but subject to Section 1(e), use its reasonable best efforts to facilitate such Shelf Offering.

 

(ii) Subject to the limitations set forth herein, if the Investor wishes to engage in a one (1) day underwritten block trade or bought deal off of a Shelf Registration Statement (either through filing an Automatic Shelf Registration Statement or through a take-down from an already existing Shelf Registration Statement) (each, an “Underwritten Block Trade”), then notwithstanding the time periods set forth in Section 1(d)(i), the Investor will notify the Company of the Underwritten Block Trade not less than three (3) business days prior to the day such offering is first anticipated to commence. If requested by the Investor, the Company will also promptly notify any Other Holders of such Underwritten Block Trade and such notified Holders (each, a “Potential Block Participant”) may elect whether or not to participate no later than the next business day (unless a longer period is agreed to by the Investor and the Company), and the Company will as expeditiously as possible use its commercially reasonable efforts to facilitate such Underwritten Block Trade (which may close as early as two (2) business days after the date it commences); provided further that, notwithstanding the provisions of Section 1(d)(i), no Holder will be permitted to participate in an Underwritten Block Trade without the consent of the Investor. Any Potential Block Participant’s request to participate in an Underwritten Block Trade shall be binding on the Potential Block Participant.

 

 

(iii) Subject to the terms and conditions of this Agreement, all determinations as to the timing, manner and price of any Shelf Offering contemplated by this Section 1(d) shall be determined by the Investor, and the Company shall use its reasonable best efforts to cause any Shelf Offering to occur as promptly as practicable.

 

(e) Priority on Demand Registrations and Shelf Offerings. The Company will not include in any Underwritten Block Trade any securities which are not Registrable Securities without the prior written consent of the Majority Participating Holders. If a Demand Registration or a Shelf Offering is an Underwritten Public Offering (other than an Underwritten Block Trade) and the managing underwriters advise the Company in writing that in their opinion the number of Registrable Securities and other securities requested to be included in such offering exceeds the number of Registrable Securities and other securities, which can be sold therein without adversely affecting the marketability, proposed offering price, timing or method of distribution of the offering, then the Company will include in such offering: (i) first, the number of Investor Registrable Securities requested to be included which, in the opinion of such underwriters, can be sold, without any such adverse effect, pro rata among the respective Investors on the basis of the number of Investor Registrable Securities owned by each such Investor; (ii) second, the number of Registrable Securities requested to be included by the Other Holders which, in the opinion of such underwriters, can be sold, without any such adverse effect, pro rata among the respective Other Holders on the basis of the number of Registrable Securities owned by each such Other Holder; and (iii) third, any other securities to be included which, in the opinion of the underwriters, can be sold without any such adverse effect.

 

(f) Restrictions on Demand Registration and Shelf Offerings.

 

(i) Notwithstanding anything contained herein to the contrary, (A) the Investor will only be entitled to deliver four (4) request for a Demand Registration (other than Shelf Registrations) or an Underwritten Public Offering conducted from a Shelf Registration Statement within any twelve (12) month period, provided that a registration shall not count as a Demand Registration or an Underwritten Public Offering conducted from a Shelf Registration Statement unless and until the Investor is able to register and sell at least 75% of the Registrable Securities offered by it in such Demand Registration or Underwritten Public Offering, and (B) the Investor shall not be entitled to request a Demand Registration or Underwritten Public Offering (i) within seventy-five (75) days after the effective date of any prior Demand Registration or the pricing date of any Underwritten Public Offering or (ii) when the Company is diligently pursuing a Demand Registration or an Underwritten Public Offering.

 

(ii) The Company may postpone, for up to seventy-five (75) days from the date of the request (the “Suspension Period”), the filing or the effectiveness of a registration statement for a Demand Registration or suspend the use of a prospectus that is part of a Shelf Registration Statement (and therefore suspend sales of the Shelf Registrable Securities) by providing written notice to the Holders if the Company determines that the offer or sale of Registrable Securities would reasonably be expected to have a material adverse effect on any proposal or plan by the Company or any Subsidiary to engage in any material acquisition of assets or stock (other than in the ordinary course of business) or any material merger, consolidation, tender offer, recapitalization, reorganization, financing or other transaction involving the Company and upon advice of counsel, the sale of Registrable Securities pursuant to the registration statement would require disclosure of material non-public information not otherwise required to be disclosed under applicable law, and (x) the Company has a bona fide business purpose for preserving the confidentiality of such transaction, (y) disclosure would have a material adverse effect on the Company or the Company’s ability to consummate such transaction, or (z) such transaction renders the Company unable to comply with SEC requirements, in each case under circumstances that would make it impractical or inadvisable to cause the registration statement (or such filings) to become effective or to promptly amend or supplement the registration statement on a post-effective basis, as applicable. The Company may delay or suspend the effectiveness of a Demand Registration or Shelf Registration Statement pursuant to this Section 1(f)(i) for no more than ninety (90) days in any twelve (12)-month period (for avoidance of doubt, in addition to the Company’s rights and obligations under Section 3(a)(vi)).

 

 

(iii) In the case of an event that causes the Company to suspend the use of a Shelf Registration Statement as set forth in paragraph (f)(ii) above or pursuant to Section 3(a)(vi) (a “Suspension Event”), the Company will give a notice to the Holders whose Registrable Securities are registered pursuant to such Shelf Registration Statement (a “Suspension Notice”) to suspend sales of the Registrable Securities and such notice must state generally the basis for the notice and that such suspension will continue only for so long as the Suspension Event or its effect is continuing. Each Holder agrees not to effect any sales of its Registrable Securities pursuant to such Shelf Registration Statement (or such filings) at any time after it has received a Suspension Notice from the Company and prior to receipt of an End of Suspension Notice. A Holder may recommence effecting sales of the Registrable Securities pursuant to the Shelf Registration Statement (or such filings) following further written notice to such effect (an “End of Suspension Notice”) from the Company, which End of Suspension Notice will be given by the Company to the Holders promptly following the conclusion of any Suspension Event.

 

(g) Termination. Notwithstanding the foregoing, the Company shall not be obligated to make any registration pursuant to this Agreement, keep any such Registration Statement effective, or to permit Registrable Securities to be registered, offered or sold under any Registration Statement, in each case with regard to any Holder, at any time on or after the first date that such Holder no longer beneficially owns Registrable Securities.

 

(h) Selection of Underwriters. The Investor will have the right to select the investment banker(s) and manager(s) to administer any Underwritten Public Offering in connection with a Demand Registration or Shelf Offering, subject (other than in the case of an Underwritten Block Trade) to the Company’s consent which will not be unreasonably withheld, conditioned or delayed.

 

 

(i) Revocation of Demand Notice of Shelf Offering Notice. At any time prior to the effective date of the registration statement relating to a Demand Registration or the “pricing” of any offering relating to a Shelf Offering Notice, the Majority Participating Holders may revoke such notice of a Demand Registration or Shelf Offering Notice on behalf of all Holders participating in such Demand Registration or Shelf Offering without liability to such Holders, in each case by providing written notice to the Company.

 

(j) Confidentiality. Each Holder agrees to treat as confidential the receipt of any notice hereunder (including notice of a Demand Registration, a Shelf Offering Notice and a Suspension Notice) and the information contained therein, and not to disclose or use the information contained in any such notice (or the existence thereof) without the prior written consent of the Company until such time as the information contained therein is or becomes available to the public generally (other than as a result of disclosure by such Holder in breach of the terms of this Agreement).

 

Section 2. Lock-Up Agreements.

 

(a) Stockholder Lock-Up Agreements. In connection with any Underwritten Public Offering, each Holder will enter into any lock-up, holdback or similar agreements requested by the underwriter(s) managing such offering, in each case with such modifications and exceptions as may be approved by the Majority Participating Holders. Without limiting the generality of the foregoing, each Holder hereby agrees that in connection with any Demand Registration or Shelf Offering that is an Underwritten Public Offering, not to (i) offer, sell, contract to sell, pledge or otherwise dispose of (including sales pursuant to Rule 144), directly or indirectly, any equity securities of the Company (including equity securities of the Company that may be deemed to be owned beneficially by such Holder in accordance with the rules and regulations of the SEC) (collectively, “Securities”), or any securities, options or rights convertible into or exchangeable or exercisable for Securities (collectively, “Other Securities”), (ii) enter into a transaction which would have the same effect as described in clause (i) above, (iii) enter into any swap, hedge or other arrangement that transfers, in whole or in part, any of the economic consequences or ownership of any Securities or Other Securities, whether such transaction is to be settled by delivery of such Securities or Other Securities, in cash or otherwise (each of (i), (ii) and (iii) above, a “Sale Transaction”), or (iv) publicly disclose the intention to enter into any Sale Transaction, commencing on the date on which the Company gives notice to the Holders that a preliminary prospectus has been circulated for such Underwritten Public Offering or the “pricing” of such offering and continuing to the date that is 90 days following the date of the final prospectus in the case of any Underwritten Public Offering (each such period, or such shorter period as agreed to by the managing underwriters, a “Holdback Period”), in each case with such modifications and exceptions as may be approved by the Majority Participating Holders. The Company may impose stop-transfer instructions with respect to any Securities or Other Securities subject to the restrictions set forth in this Section 2 until the end of such Holdback Period.

 

 

Section 3. Registration Procedures.

 

(a) Company Obligations. Whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement or have initiated a Shelf Offering, the Company will use its reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Company will as expeditiously as possible:

 

(i) prepare and file with (or submit confidentially to) the SEC a registration statement, and all amendments and supplements thereto and related prospectuses, with respect to such Registrable Securities and use its reasonable best efforts to cause such registration statement to become effective, all in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder (provided that before filing or confidentially submitting a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Majority Participating Holders copies of all such documents proposed to be filed or submitted a reasonable period of time prior to such filing or submission and consider in good faith any timely provided comments by such counsel);

 

(ii) notify each Holder of (A) the issuance by the SEC of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for that purpose, (B) the receipt by the Company or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each registration statement filed hereunder;

 

(iii) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period ending when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an Underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;

 

(iv) furnish, without charge, to each seller of Registrable Securities thereunder and each underwriter, if any, such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus) (in each case including all exhibits and documents incorporated by reference therein), each amendment and supplement thereto, and each Free Writing Prospectus prepared in connection with any such offer or sale as such seller or underwriter, if any, may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller (the Company hereby consenting to the use in accordance with all applicable laws of each such registration statement, each such amendment and supplement thereto, and each such prospectus (or preliminary prospectus or supplement thereto) or Free Writing Prospectus by each such seller of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement or prospectus);

 

 

(v) use its commercially reasonable efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as any seller reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph or (B) consent to general service of process in any such jurisdiction or (C) subject itself to taxation in any such jurisdiction);

 

(vi) notify in writing each seller of such Registrable Securities (A) promptly after it receives notice thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (B) promptly after receipt thereof, of any request by the SEC for the amendment or supplementing of such registration statement or prospectus or for additional information, (C) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event or of any information or circumstances as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, subject to Section 1(f), if required by applicable law or to the extent requested by the Majority Participating Holders, the Company will use its best efforts to promptly prepare and file a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading and (D) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct;

 

(vii) use commercially reasonable efforts to (A) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed, and (B) comply (and continue to comply) with the requirements of any securities exchange organization applicable to the Company, including all corporate governance requirements;

 

(viii) use commercially reasonable efforts to provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;

 

 

(ix) enter into and perform such customary agreements (including, as applicable, underwriting agreements in customary form) and take all such other customary actions as the holders of a majority of the Registrable Securities being sold or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, in connection with any Underwritten Public Offering, participating in one (1) day “road shows,” investor presentations, marketing events and other selling efforts as reasonably requested and upon reasonable advance notice to the Company’s management);

 

(x) make available for inspection (subject to customary confidentiality obligations) by any seller of Registrable Securities, any underwriter participating in any disposition or sale pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all customary financial and other records, pertinent corporate and business documents and properties of the Company as will be necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors, employees, agents, representatives and independent accountants to supply all customary information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement and the disposition of such Registrable Securities pursuant thereto;

 

(xi) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Demand Registration or Shelf Offering hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, prospectus supplement and related documents, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;

 

(xii) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the registration statement, which earnings statement will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;

 

(xiii) permit any Holder which, in its sole and exclusive judgment, might be deemed to be an underwriter or a controlling person of the Company to provide language for insertion therein, in form and substance satisfactory to the Company, which in the reasonable judgment of such Holder and its counsel should be included to address such Holder’s potential status as an underwriter or controlling person, as applicable,;

 

(xiv) use reasonable best efforts to prevent the issuance of any stop order suspending the effectiveness of a registration statement, or the issuance of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, and, in the event any such order is issued, use reasonable best efforts to promptly obtain the withdrawal of such order;

 

 

(xv) use its reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;

 

(xvi) cooperate with the Holders covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legends) representing securities to be sold under the registration statement, or the removal of any restrictive legends associated with any account at which such securities are held, and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such Holders may request;

 

(xvii) if requested by any managing underwriter in any Underwritten Public Offering, include in any prospectus or prospectus supplement updated financial or business information for the Company’s most recent period or current quarterly period (including estimated results or ranges of results) if required for purposes of marketing the offering in the view of the managing underwriter;

 

(xviii) take no direct or indirect action prohibited by Regulation M under the Exchange Act;

 

(xix) (A) cooperate with each Holder covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with the preparation and filing of any applications, notices, registrations and responses to requests for additional information with FINRA and any national securities exchange on which the shares of Common Stock are or are to be listed, and (B) to the extent required by the rules and regulations of FINRA, retain a Qualified Independent Underwriter acceptable to the managing underwriter;

 

(xx) in the case of any Underwritten Public Offering, use its commercially reasonable efforts to obtain, and deliver to the underwriter(s), in the manner and to the extent provided for in the applicable underwriting agreement, one or more cold comfort letters from the Company’s independent public accountants in customary form and covering such matters of the type customarily covered by cold comfort letters;

 

(xxi) use its commercially reasonable efforts to provide a legal opinion of the Company’s outside counsel, (i) dated the effective date of such registration statement addressed to the Company addressing the validity of the Registrable Securities being offered thereby, and (ii) on the date that such Registrable Securities are delivered to the underwriters for sale in connection with a Demand Registration or Shelf Offering, if such securities are being sold through underwriters, (A) one or more legal opinions of the Company’s outside counsel, dated such date, in form and substance as customarily given to underwriters in an underwritten public offering and (B) one or more “negative assurances letters” of the Company’s outside counsel, dated such date, in form and substance as is customarily given to underwriters in an underwritten public offering addressed to the underwriters, if any;

 

 

(xxii) use its commercially reasonable efforts to deliver customary certificates executed by authorized officers of the Company as may be requested by any Holder or any underwriter of such Registrable Securities;

 

(xxiii) if the Company files an Automatic Shelf Registration Statement covering any Registrable Securities, use its reasonable best efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405 under the Securities Act)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;

 

(xxiv) if the Company does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be sold; and

 

(xxv) if the Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Company is required to re-evaluate its WKSI status the Company determines that it is not a WKSI, use its reasonable best efforts to refile the Shelf Registration Statement on Form S-3 and keep such registration statement effective during the period during which such registration statement is required to be kept effective.

 

(b) Automatic Shelf Registration Statements. If the Company files any Automatic Shelf Registration Statement for the benefit of the holders of any of its securities other than the Investor, and the Investor does not request that their Registrable Securities be included in such Shelf Registration Statement, the Company agrees that, at the request of the Investor, it will include in such Automatic Shelf Registration Statement such disclosures as may be required by Rule 430B in order to ensure that the Investor’s Registrable Securities may be added to such Shelf Registration Statement at a later time through the filing of a prospectus supplement rather than a post-effective amendment. If the Company has filed any Automatic Shelf Registration Statement for the benefit of the holders of any of its securities other than the Investor, the Company shall, at the request of the Investor, file any post-effective amendments necessary to include therein all disclosure and language necessary to ensure that the Investor’s Registrable Securities may be added to such Shelf Registration Statement.

 

(c) Additional Information. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish the Company such information regarding such seller and the distribution of such securities as the Company may from time to time reasonably request in writing, as a condition to such seller’s participation in such registration.

 

(d) In-Kind Distributions. If the Investor (and/or any of its Affiliates) seek to effectuate an in-kind distribution of all or part of their Registrable Securities to their respective direct or indirect equityholders, the Company will, subject to any applicable lock-ups, reasonably cooperate with the foregoing Persons to facilitate such in-kind distribution in the manner reasonably requested and consistent with the Company’s obligations under the Securities Act.

 

 

(e) Suspended Distributions. Each Person participating in a registration hereunder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3(a)(vi), such Person will immediately discontinue the disposition of its Registrable Securities pursuant to the registration statement until such Person’s receipt of the copies of a supplemented or amended prospectus as contemplated by Section 3(a)(vi).

 

(f) Other. To the extent that the Investor is or may be deemed to be an “underwriter” of Registrable Securities pursuant to any SEC comments or policies based on the written advice of outside counsel, the Company agrees that (i) the indemnification and contribution provisions contained in Section 5 shall be applicable to the benefit of the Investor in their role as an underwriter or deemed underwriter in addition to their capacity as a holder and (ii) the Investor shall be entitled to conduct the due diligence which they would normally conduct in connection with an offering of securities registered under the Securities Act, including without limitation receipt of customary opinions and comfort letters addressed to the Investor.

 

Section 4. Registration Expenses.

 

Except as expressly provided herein, all reasonable and documented out-of-pocket expenses incurred by the Company or the Investor in connection with the performance of or compliance with this Agreement and/or in connection with any Demand Registration or Shelf Offering, whether or not the same shall become effective, shall be paid by the Company, including, (i) all registration and filing fees, and any other fees and expenses associated with filings required to be made with the SEC or FINRA, (ii) all fees and expenses in connection with compliance with any securities or “blue sky” laws, (iii) all printing, duplicating, word processing, messenger, telephone, facsimile and delivery expenses (including expenses of printing certificates for the Registrable Securities in a form eligible for deposit with The Depository Trust Company or other depositary and of printing prospectuses and Company Free Writing Prospectuses), (iv) all fees and disbursements of counsel for the Company and of all independent certified public accountants of the Company (including the expenses of any special audit and cold comfort letters required by or incident to such performance), (v) all fees and expenses incurred in connection with the listing of the Registrable Securities on any securities exchange on which similar securities of the Company are then listed (or on which exchange the Registrable Securities are proposed to be listed), (vi) any fees and disbursements of underwriters customarily paid by issuers of securities, (vii) all fees and expenses of any special experts or other Persons retained by the Company in connection with any Registration, and (viii) all of the Company’s internal expenses (including all salaries and expenses of its officers and employees performing legal or accounting duties). All such expenses are referred to herein as “Registration Expenses.” The Company shall not be required to pay, and each Person that sells securities pursuant to a Demand Registration or Shelf Offering hereunder will bear and pay, all underwriting discounts and commissions applicable to the Registrable Securities sold for such Person’s account and all transfer taxes (if any) attributable to the sale of Registrable Securities.

 

 

Section 5. Indemnification and Contribution.

 

(a) By the Company. The Company will indemnify and hold harmless, to the fullest extent permitted by law and without limitation as to time, each Holder, such Holder’s officers, directors employees, agents, fiduciaries, stockholders, partners, members, affiliates, consultants and representatives, and any successors and assigns thereof, and each Person who controls such Holder (within the meaning of the Securities Act) (the “Indemnified Parties”) against all losses, claims, actions, damages, liabilities and expenses (including with respect to actions or proceedings, whether commenced or threatened, and including reasonable attorney fees and expenses) (collectively, “Losses”) caused by, resulting from, arising out of, based upon or related to any of the following (each, a “Violation”) by the Company: (i) any untrue or alleged untrue statement of material fact contained in (A) any registration statement, prospectus, preliminary prospectus or Free-Writing Prospectus, or any amendment thereof or supplement thereto or (B) any application or other document or communication (in this Section 5, collectively called an “application”) executed by or on behalf of the Company or based upon written information furnished by or on behalf of the Company filed in any jurisdiction in order to qualify any securities covered by such registration under the “blue sky” or securities laws thereof, (ii) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading or (iii) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated thereunder applicable to the Company and relating to action or inaction required of the Company in connection with any such registration, qualification or compliance. In addition, the Company will reimburse such Indemnified Party for any legal or any other reasonable and documented out-of-pocket expenses reasonably incurred by them in connection with investigating or defending any such Losses. Notwithstanding the foregoing, the Company will not be liable and not required to indemnify and hold harmless in any such case to the extent that any such Losses result from, arise out of, are based upon, or relate to an untrue statement, or omission, made in such registration statement, any such prospectus, preliminary prospectus or Free-Writing Prospectus or any amendment or supplement thereto, or in any application, in reliance upon, and in conformity with, written information prepared and furnished in writing to the Company by any such Indemnified Party expressly for use therein or by any such Indemnified Party’s failure to deliver a copy of the registration statement or prospectus or any amendments or supplements thereto after the Company has furnished each such Indemnified Party with a sufficient number of copies of the same. In connection with an Underwritten Public Offering, the Company will indemnify such underwriters, their officers and directors, and each Person who controls such underwriters (within the meaning of the Securities Act) to the extent agreed to in the underwriting agreement executed in connection with such Underwritten Public Offering. Such indemnity and reimbursement of expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such Indemnified Party and shall survive the transfer of such securities by such seller.

 

(b) By Holders. In connection with any registration statement in which a Holder is participating, each such Holder will furnish to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such registration statement or prospectus and, to the extent permitted by law, will indemnify the Company, its officers, directors, employees, agents and representatives, and each Person who controls the Company (within the meaning of the Securities Act) against any Losses resulting from any untrue statement of material fact contained in the registration statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement or omission is contained in any information or affidavit so furnished in writing by such Holder expressly for use therein; provided that the obligation to indemnify will be individual, not joint and several, for each Holder and will be limited to the net amount of proceeds received by such Holder from the sale of Registrable Securities pursuant to such registration statement.

 

 

(c) Claim Procedure. Any Person entitled to indemnification hereunder will (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice will impair any Person’s right to indemnification hereunder only to the extent such failure has prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party will not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent will not be unreasonably withheld, conditioned or delayed). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim will not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party based on advice of counsel a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. In such instance, the conflicted indemnified parties will have a right to retain one separate counsel, chosen by the Majority Participating Holders, at the expense of the indemnifying party.

 

(d) Contribution. If the indemnification provided for in this Section 5 is held by a court of competent jurisdiction to be unavailable to, or is insufficient to hold harmless, an indemnified party or is otherwise unenforceable with respect to any Loss referred to herein, then such indemnifying party will contribute to the amounts paid or payable by such indemnified party as a result of such Loss, (i) in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party on the other hand in connection with the statements or omissions which resulted in such Loss as well as any other relevant equitable considerations or (ii) if the allocation provided by clause (i) of this Section 5(d) is not permitted by applicable law, then in such proportion as is appropriate to reflect not only such relative fault but also the relative benefit of the Company on the one hand and of the sellers of Registrable Securities and any other sellers participating in the registration statement on the other in connection with the statement or omissions which resulted in such Losses, as well as any other relevant equitable considerations; provided that the maximum amount of liability in respect of such contribution will be limited, in the case of each seller of Registrable Securities, to an amount equal to the net proceeds actually received by such seller from the sale of Registrable Securities effected pursuant to such registration. The relative fault of the indemnifying party and of the indemnified party will be determined by reference to, among other things, whether the untrue (or, as applicable alleged) untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties hereto agree that it would not be just or equitable if the contribution pursuant to this Section 5(d) were to be determined by pro rata allocation or by any other method of allocation that does not take into account such equitable considerations. The amount paid or payable by an indemnified party as a result of the Losses referred to herein will be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending against any action or claim which is the subject hereof. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any Person who is not guilty of such fraudulent misrepresentation.

 

 

(e) Release. No indemnifying party will, except with the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.

 

(f) Non-exclusive Remedy; Survival. The indemnification and contribution provided for under this Agreement will be in addition to any other rights to indemnification or contribution that any indemnified party may have pursuant to law or contract (and the Company and its Subsidiaries shall be considered the indemnitors of first resort in all such circumstances to which this Section 5 applies) and will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling Person of such indemnified party and will survive the transfer of Registrable Securities and the termination or expiration of this Agreement.

 

Section 6. Cooperation with Underwritten Public Offerings.

 

No Person may participate in any underwritten registration hereunder unless such Person (i) agrees to sell such Person’s securities on the basis provided in any underwriting arrangements approved by the Person or Persons entitled hereunder to approve such arrangements (including, without limitation, pursuant to the terms of any over-allotment or “green shoe” option requested by the underwriters; provided that no Holder will be required to sell more than the number of Registrable Securities such Holder has requested to include in such registration) and (ii) completes, executes and delivers all questionnaires, powers of attorney, stock powers, custody agreements, indemnities, underwriting agreements and other documents and agreements required under the terms of such underwriting arrangements or as may be reasonably requested by the Company and the lead managing underwriter(s). To the extent that any such agreement is entered into pursuant to, and consistent with, Section 1, Section 3, and/or this Section 6, the respective rights and obligations created under such agreement will supersede the respective rights and obligations of the Holders, the Company and the underwriters created thereby with respect to such registration.

 

Section 7. Subsidiary Public Offering.

 

If, after an initial Public Offering of the common equity securities of one of its Subsidiaries, the Company distributes securities of such Subsidiary to its equityholders, then the rights and obligations of the Company pursuant to this Agreement will apply, mutatis mutandis, to such Subsidiary, and the Company will cause such Subsidiary to comply with such Subsidiary’s obligations under this Agreement as if it were the Company hereunder.

 

 

Section 8. Joinder; Additional Parties; Transfer of Registrable Securities.

 

(a) Joinder. The Company may from time to time (with the prior written consent of the Investor) permit any Person who acquires Common Stock (or rights to acquire Common Stock) to become a party to this Agreement and to be entitled to and be bound by all of the rights and obligations as a Holder by obtaining an executed joinder to this Agreement from such Person in the form of Exhibit B attached hereto (a “Joinder”). Upon the execution and delivery of a Joinder by such Person, the Common Stock held by such Person shall become the category of Registrable Securities (i.e. Other Registrable Securities), and such Person shall be deemed the category of Holder (i.e. Other Holder), in each case as set forth on the signature page to such Joinder. No Person who acquires Common Stock (or rights to acquire Common Stock) shall have any rights under this Agreement until a Joinder has been executed by such Person and the Company.

 

(b) Restrictions on Transfers. Prior to transferring any Registrable Securities to any Person (including by operation of law), the transferring Holder must first cause the prospective transferee to execute and deliver to the Company a Joinder, except that such consent and Joinder shall not be required in the case of (i) a transfer to the Company, (ii) a Public Offering, (iii) a sale pursuant to Rule 144 and/or (iv) a transfer in connection with a sale of the Company. Any transfer or attempted transfer of Registrable Securities in violation of any provision of this Agreement will be void, and the Company will not record such transfer on its books or treat any purported transferee of such Registrable Securities as the owner thereof for any purpose (but the Company will be entitled to enforce against such Person the obligations hereunder). Notwithstanding anything herein to the contrary, the Company shall have no obligation to execute a Joinder treating any Person as the Investor or any Registrable Securities transferred to such Person as Investor Registrable Securities hereunder; provided that in the event the Investor transfers any Registrable Securities to any of its Affiliates or Subsidiaries, the Company shall, upon written request by the Investor, execute a Joinder treating such transferee as the Investor and any Registrable Securities transferred to such transferee as Investor Registrable Securities.

 

Section 9. General Provisions.

 

(a) Amendments and Waivers. Except as otherwise provided herein, the provisions of this Agreement may be amended, modified or waived only with the prior written consent of the Company and the Investor. The failure or delay of any Person to enforce any of the provisions of this Agreement will in no way be construed as a waiver of such provisions and will not affect the right of such Person thereafter to enforce each and every provision of this Agreement in accordance with its terms. A waiver or consent to or of any breach or default by any Person in the performance by that Person of his, her or its obligations under this Agreement will not be deemed to be a consent or waiver to or of any other breach or default in the performance by that Person of the same or any other obligations of that Person under this Agreement.

 

 

(b) Remedies. The parties to this Agreement will be entitled to enforce their rights under this Agreement specifically (without posting a bond or other security), to recover damages caused by reason of any breach of any provision of this Agreement and to exercise all other rights existing in their favor. The parties hereto agree and acknowledge that a breach of this Agreement would cause irreparable harm and money damages would not be an adequate remedy for any such breach and that, in addition to any other rights and remedies existing hereunder, any party will be entitled to specific performance and/or other injunctive relief from any court of law or equity of competent jurisdiction (without posting any bond or other security) in order to enforce or prevent violation of the provisions of this Agreement.

 

(c) Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited, invalid, illegal or unenforceable in any respect under any applicable law or regulation in any jurisdiction, such prohibition, invalidity, illegality or unenforceability will not affect the validity, legality or enforceability of any other provision of this Agreement in such jurisdiction or in any other jurisdiction, but this Agreement will be reformed, construed and enforced in such jurisdiction as if such prohibited, invalid, illegal or unenforceable provision had never been contained herein.

 

(d) Entire Agreement. Except as otherwise provided herein, this Agreement contains the complete agreement and understanding among the parties hereto with respect to the subject matter hereof and supersedes and preempts any prior understandings, agreements or representations by or among the parties hereto, written or oral, which may have related to the subject matter hereof in any way (including, without limitation, the Guaranty and the Fee and Reimbursement Agreement).

 

(e) Successors and Assigns. Except as otherwise provided herein, this Agreement will bind and inure to the benefit and be enforceable by the Company and its successors and permitted assigns and the Holders and their respective successors and permitted assigns (whether so expressed or not), provided that no Holder shall be permitted to assign its rights under this Agreement except (i) to its Affiliates or Subsidiaries or (ii) as provided for in Section 8.

 

(f) Notices. Any notice, demand or other communication to be given under or by reason of the provisions of this Agreement will be in writing and will be deemed to have been given (i) when delivered personally to the recipient, (ii) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient; but if not, then on the next Business Day, (iii) one Business Day after it is sent to the recipient by reputable overnight courier service (charges prepaid) or (iv) three Business Days after it is mailed to the recipient by first class mail, return receipt requested. Such notices, demands and other communications will be sent to the Company at the address specified below and to the Holder at the address specified on the signature page hereto or any Joinder, or at such address or to the attention of such other Person as the recipient party has specified by prior written notice to the sending party. Any party may change such party’s address for receipt of notice by giving prior written notice of the change to the sending party as provided herein. The Company’s address is:

 

Babcock & Wilcox Enterprises, Inc.
1200 East Market Street, Suite 650
Akron, Ohio 44305
Attn: John J. Dziewisz
Email: jjdziewisz@babcock.com

 

 

(g) Business Days. If any time period for giving notice or taking action hereunder expires on a day that is not a Business Day, the time period will automatically be extended to the Business Day immediately following such Saturday, Sunday or legal holiday.

 

(h) Governing Law. All issues and questions concerning the construction, validity, interpretation and enforcement of this Agreement and the exhibits and schedules hereto will be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Ohio or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York.

 

(i) MUTUAL WAIVER OF JURY TRIAL. AS A SPECIFICALLY BARGAINED FOR INDUCEMENT FOR EACH OF THE PARTIES HERETO TO ENTER INTO THIS AGREEMENT (AFTER HAVING THE OPPORTUNITY TO CONSULT WITH COUNSEL), EACH PARTY HERETO EXPRESSLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING TO OR ARISING IN ANY WAY FROM THIS AGREEMENT OR THE MATTERS CONTEMPLATED HEREBY.

 

(j) CONSENT TO JURISDICTION AND SERVICE OF PROCESS. EACH OF THE PARTIES IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, FOR THE PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF THIS AGREEMENT, ANY RELATED AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY. EACH OF THE PARTIES HERETO FURTHER AGREES THAT SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENT BY U.S. REGISTERED MAIL TO SUCH PARTY’S RESPECTIVE ADDRESS SET FORTH ABOVE WILL BE EFFECTIVE SERVICE OF PROCESS FOR ANY ACTION, SUIT OR PROCEEDING WITH RESPECT TO ANY MATTERS TO WHICH IT HAS SUBMITTED TO JURISDICTION IN THIS PARAGRAPH. EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION TO THE LAYING OF VENUE OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF THIS AGREEMENT, ANY RELATED DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND HEREBY AND THEREBY FURTHER IRREVOCABLY AND UNCONDITIONALLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION, SUIT OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

 

 

(k) No Recourse. Notwithstanding anything to the contrary in this Agreement, the Company and each Holder agrees and acknowledges that no recourse under this Agreement or any documents or instruments delivered in connection with this Agreement, will be had against any current or future director, officer, employee, general or limited partner or member of any Holder or any Affiliate or assignee thereof, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or other applicable law, it being expressly agreed and acknowledged that no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by any current or future officer, agent or employee of any Holder or any current or future member of any Holder or any current or future director, officer, employee, partner or member of any Holder or of any Affiliate or assignee thereof, as such for any obligation of any Holder under this Agreement or any documents or instruments delivered in connection with this Agreement for any claim based on, in respect of or by reason of such obligations or their creation.

 

(l) Descriptive Headings; Interpretation. The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement. The use of the word “including” in this Agreement will be by way of example rather than by limitation.

 

(m) No Strict Construction. The language used in this Agreement will be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction will be applied against any party.

 

(n) Counterparts. This Agreement may be executed in multiple counterparts, any one of which need not contain the signature of more than one party, but all such counterparts taken together will constitute one and the same agreement.

 

(o) Electronic Delivery. This Agreement, the agreements referred to herein, and each other agreement or instrument entered into in connection herewith or therewith or contemplated hereby or thereby, and any amendments hereto or thereto, to the extent executed and delivered by means of a photographic, photostatic, facsimile or similar reproduction of such signed writing using a facsimile machine or electronic mail will be treated in all manner and respects as an original agreement or instrument and will be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any party hereto or to any such agreement or instrument, each other party hereto or thereto will re-execute original forms thereof and deliver them to all other parties. No party hereto or to any such agreement or instrument will raise the use of a facsimile machine or electronic mail to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a facsimile machine or electronic mail as a defense to the formation or enforceability of a contract and each such party forever waives any such defense.

 

(p) Further Assurances. In connection with this Agreement and the transactions contemplated hereby, each Holder agrees to execute and deliver any additional documents and instruments and perform any additional acts that may be necessary or appropriate to effectuate and perform the provisions of this Agreement and the transactions contemplated hereby.

 

(q) Dividends, Recapitalizations, Etc.. If at any time or from time to time there is any change in the capital structure of the Company by way of a stock split, stock dividend, combination or reclassification, or through a merger, consolidation, reorganization or recapitalization, or by any other means, appropriate adjustment will be made in the provisions hereof so that the rights and privileges granted hereby will continue.

 

(r) No Third-Party Beneficiaries. No term or provision of this Agreement is intended to be, or shall be, for the benefit of any Person not a party hereto, and no such other Person shall have any right or cause of action hereunder, except as otherwise expressly provided herein.

 

(s) Current Public Information. At all times after the Company has filed a registration statement with the SEC pursuant to the requirements of either the Securities Act or the Exchange Act, the Company will file all reports required to be filed by it under the Securities Act and the Exchange Act and will use commercially reasonable efforts to take such further action as the Investor may reasonably request, all to the extent required to enable the Investor to sell Registrable Securities (or securities that would be Registrable Securities but for the final sentence of the definition of Registrable Securities) pursuant to Rule 144.

 

* * * * *

 

 

IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the date first written above.

 

	BABCOCK & WILCOX ENTERPRISES, INC.
	Signature:	/s/ Louis Salamone
	By:	Louis Salamone
	Title:	Executive Vice President, Chief Financial Officer

 

	B. RILEY FINANCIAL, INC.
	Signature:	/s/ Phillip Ahn
	By:	Phillip Ahn
	Title:	Authorized Signatory
	Address:
	30870 Russell Ranch Road, Suite 250
	Westlake Village, California 91362
	Attention: Phil Ahn
	Phone: (818) 746-9310
	Email: pahn@brileyfin.com

 

[Signature Page to Registration Rights Agreement]

 

 

EXHIBIT A

 

DEFINITIONS

 

Capitalized terms used in this Agreement have the meanings set forth below.

 

“Affiliate” of any Person means any other Person controlled by, controlling or under common control with such Person and, in the case of an individual, also includes any member of such individual’s Family Group; provided that the Company and its Subsidiaries will not be deemed to be Affiliates of any holder of Registrable Securities. As used in this definition, “control” (including, with its correlative meanings, “controlling,” “controlled by” and “under common control with”) will mean possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether through ownership of securities, by contract or otherwise).

 

“Agreement” has the meaning set forth in the recitals.

 

“Automatic Shelf Registration Statement” has the meaning set forth in Section 1(a).

 

“Common Stock” means the Company’s common stock, par value $0.01 per share.

 

“Common Stock Equivalents” means, without duplication, Common Stock and any rights, warrants, options, convertible securities or Indebtedness, exchangeable securities or indebtedness, or other rights exercisable for or convertible or exchangeable into, directly or indirectly, Common Stock and securities convertible or exchangeable into Common Stock, whether at the time of issuance or upon the passage of time or the occurrence of some future event.

 

“Company” has the meaning set forth in the preamble and shall include its successor(s).

 

“Demand Registrations” has the meaning set forth in Section 1(a).

 

“End of Suspension Notice” has the meaning set forth in Section 1(f)(iii).

 

“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, or any successor federal law then in force, together with all rules and regulations promulgated thereunder.

 

“Excluded Registration” means any registration (i) pursuant to a Demand Registration (which is addressed in Section 1(a)), (ii) a Shelf Registration (which is addressed in Section 1(d)), (iii) in connection with registrations on Form S-4 or S-8 promulgated by the SEC or any successor or similar forms) or (iii) on any form that does not permit the registration of Registrable Securities.

 

“Fee and Reimbursement Agreement” means that Fee and Reimbursement Agreement dated January 18, 2024, between the Company and B. Riley Financial, Inc.

 

 

“FINRA” means the Financial Industry Regulatory Authority.

 

“Free Writing Prospectus” means a free-writing prospectus, as defined in Rule 405.

 

“Guaranty” means that Guaranty dated January 18, 2024, by B. Riley Financial, Inc. in favor of Axos Bank, in its capacity as administrative agent for the Company’s Credit Agreement dated January 18, 2024.

 

“Holdback Period” has the meaning set forth in Section 2.

 

“Holder” means a holder of Registrable Securities who is a party to this Agreement (including by way of Joinder).

 

“Indemnified Parties” has the meaning set forth in Section 5(a).

 

“Investor” has the meaning set forth in the recitals and includes any Affiliate and Subsidiary of B. Riley Financial, Inc. to whom any portion of the Registrable Shares may be transferred herein.

 

“Investor Registrable Securities” means (i) any Common Stock (including any issuable or issued upon exercise, exchange or conversion of any Common Stock Equivalents) held (directly or indirectly) or acquired by Investor or any of its Affiliates, and (ii) any equity securities of the Company or any Subsidiary issued or issuable with respect to the securities referred to in clause (i) above by way of dividend, distribution, split or combination of securities, or any recapitalization, merger, consolidation or other reorganization.

 

“Joinder” has the meaning set forth in Section 8(a).

 

“Long-Form Registrations” has the meaning set forth in Section 1(a).

 

“Losses” has the meaning set forth in Section 5(c).

 

“Majority Participating Holders” means the holders of a majority of the aggregate Registrable Securities to be included in a Public Offering.

 

“Other Holders” has the meaning set forth in the recitals.

 

“Other Registrable Securities” means (i) any Common Stock (including any issuable or issued upon exercise, exchange or conversion of any Common Stock Equivalents) held (directly or indirectly) by any Other Holders or any of their Affiliates, and (ii) any equity securities of the Company or any Subsidiary issued or issuable with respect to the securities referred to in clause (i) above by way of dividend, distribution, split or combination of securities, or any recapitalization, merger, consolidation or other reorganization.

 

“Person” means an individual, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization, other legal entity, or any government or governmental agency or authority.

 

 

“Public Offering” means any sale or distribution by the Company, one of its Subsidiaries and/or Holders to the public of Common Stock or other securities convertible into or exchangeable for Common Stock pursuant to an offering registered under the Securities Act.

 

“Registrable Securities” means Investor Registrable Securities and Other Registrable Securities. As to any particular Registrable Securities, such securities will cease to be Registrable Securities (and Investor Registrable Securities or Other Registrable Securities, as applicable) when they (a) have been sold or distributed pursuant to a Public Offering, (b) sold in compliance with Rule 144, or (c) have been repurchased by the Company or a Subsidiary of the Company. For purposes of this Agreement, a Person will be deemed to be a holder of Registrable Securities, and the Registrable Securities will be deemed to be in existence, whenever such Person has the right to acquire, directly or indirectly, such Registrable Securities (upon conversion or exercise in connection with a transfer of securities or otherwise, but disregarding any restrictions or limitations upon the exercise of such right), whether or not such acquisition has actually been effected, and such Person will be entitled to exercise the rights of a holder of Registrable Securities hereunder (it being understood that a holder of Registrable Securities may only request that Registrable Securities in the form of Common Stock be registered pursuant to this Agreement). Notwithstanding the foregoing, any Registrable Securities held by any Person that may be sold under Rule 144(b)(1)(i) without limitation under any of the other requirements of Rule 144 will not be deemed to be Registrable Securities.

 

“Registration Expenses” has the meaning set forth in Section 4.

 

“Rule 144”, “Rule 158”, “Rule 405”, “Rule 415”, “Rule 430B” and “Rule 462” mean, in each case, such rule promulgated under the Securities Act (or any successor provision) by the SEC, as the same will be amended from time to time, or any successor rule then in force.

 

“Sale Transaction” has the meaning set forth in Section 2.

 

“SEC” means the United States Securities and Exchange Commission.

 

“Securities” has the meaning set forth in Section 2.

 

“Securities Act” means the Securities Act of 1933, as amended from time to time, or any successor federal law then in force, together with all rules and regulations promulgated thereunder.

 

“Shelf Offering” has the meaning set forth in Section 1(d)(i).

 

“Shelf Offering Notice” has the meaning set forth in Section 1(d)(i).

 

“Shelf Registration” has the meaning set forth in Section 1(a).

 

“Shelf Registrable Securities” has the meaning set forth in Section 1(d)(i).

 

“Shelf Registration Statement” has the meaning set forth in Section 1(d).

 

“Short-Form Registrations” has the meaning set forth in Section 1(a).

 

 

“Subsidiary” means, with respect to the Company, any corporation, limited liability company, partnership, association or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by the Company or one or more of the other Subsidiaries of the Company or a combination thereof, or (ii) if a limited liability company, partnership, association or other business entity, a majority of the limited liability company, partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by the Company or one or more Subsidiaries of the Company or a combination thereof. For purposes hereof, a Person or Persons will be deemed to have a majority ownership interest in a limited liability company, partnership, association or other business entity if such Person or Persons will be allocated a majority of limited liability company, partnership, association or other business entity gains or losses or will be or control the managing director or general partner of such limited liability company, partnership, association or other business entity.

 

“Suspension Event” has the meaning set forth in Section 1(f)(iii).

 

“Suspension Notice” has the meaning set forth in Section 1(f)(iii).

 

“Suspension Period” has the meaning set forth in Section 1(f)(i).

 

“Underwritten Public Offering” means a registered offering by a selling Holder of Registrable Securities in which such Registrable Securities are sold to one or more underwriters on a firm-commitment basis for reoffering to the public (including as part of any Underwritten Block Trade). In addition, any Shelf Offering in connection with which the Company is required to sign an underwriting agreement, the Company’s outside counsel are requested to provide a legal opinion (other than a legal opinion to the Company’s transfer agent), the Company’s independent public accountants are requested to provide a comfort letter or the Company’s executive officers are requested to participate in a “road show” or other material selling efforts shall constitute an Underwritten Public Offering whether or not an underwriter is involved.

 

“Violation” has the meaning set forth in Section 5(a).

 

“WKSI” means a “well-known seasoned issuer” as defined under Rule 405.

 

 

---