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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
July 28, 2023 (July 25, 2023)
B. RILEY FINANCIAL, INC.
(Exact name of registrant as specified in its
charter)
Delaware |
|
001-37503 |
|
27-0223495 |
(State or Other Jurisdiction
of Incorporation) |
|
(Commission File Number) |
|
(IRS Employer
Identification No.) |
11100 Santa Monica Boulevard, Suite 800
Los Angeles, California 90025
(310) 966-1444
(Address,
Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
Securities registered pursuant to Section
12(b) of the Act:
Title of each class |
|
Trading Symbol(s) |
|
Name of each exchange on which registered |
Common Stock, par value $0.0001 per share |
|
RILY |
|
Nasdaq Global Market |
Depositary Shares (each representing a 1/1000th interest in a 6.875% Series A Cumulative Perpetual Preferred Share, par value $0.0001 per share) |
|
RILYP |
|
Nasdaq Global Market |
Depositary Shares (each representing a 1/1000th interest in a 7.375% Series B Cumulative Perpetual Preferred Share, par value $0.0001 per share) |
|
RILYL |
|
Nasdaq Global Market |
6.75% Senior Notes due 2024 |
|
RILYO |
|
Nasdaq Global Market |
6.375% Senior Notes due 2025 |
|
RILYM |
|
Nasdaq Global Market |
5.00% Senior Notes due 2026 |
|
RILYG |
|
Nasdaq Global Market |
5.50% Senior Notes due 2026 |
|
RILYK |
|
Nasdaq Global Market |
6.50% Senior Notes due 2026 |
|
RILYN |
|
Nasdaq Global Market |
5.25% Senior Notes due 2028 |
|
RILYZ |
|
Nasdaq Global Market |
6.00% Senior Notes due 2028 |
|
RILYT |
|
Nasdaq Global Market |
Not Applicable
(Former name or former address, if changed since
last report)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
☐ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
|
☐ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
|
☐ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the
Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act ☐
Item 8.01. Other Events.
On July 28, 2023, B. Riley Financial, Inc. (the
“Company”) closed its underwritten public offering of common stock, par value $0.0001 per share (“Common Stock”).
The offering was conducted pursuant to an underwriting agreement (the “Underwriting Agreement”), dated July 25, 2023,
by and between the Company and B. Riley Securities, Inc., as underwriter (the “Underwriter”). At the closing, the Company
issued 2,090,909 shares of Common Stock (the “Shares”), inclusive of 272,727 shares issued pursuant to the full exercise
of the Underwriter’s option to purchase additional shares of common stock.
The Underwriting Agreement contains customary
representations, warranties and covenants of the Company, customary conditions to closing, indemnification obligations of the Company
and the Underwriters, including for liabilities under the Securities Act of 1933, as amended, other obligations of the parties and termination
provisions.
The foregoing description of the material terms
of the Underwriting Agreement is qualified in its entirety by reference to the full text of the Underwriting Agreement, a copy of which
is attached hereto as Exhibit 1.1 and is incorporated herein by reference.
The Shares were offered pursuant to the Company’s
shelf registration statement on Form S-3ASR (Registration No. 333-252513) filed on January 28, 2021 with the Securities and Exchange Commission
(the “Commission”), which was automatically effective upon filing (the “Registration Statement”).
Attached as Exhibit 5.1 to this Current Report
and incorporated herein by reference is a copy of the opinion of The NBD Group, Inc. relating to the validity of the Shares sold in the
offering (the “Legal Opinion”). The Legal Opinion is also filed with reference to, and is hereby incorporated by reference
into, the Registration Statement.
On July 26, 2023, the Company issued a press release
announcing the pricing of the offering. A copy of the press release is filed as Exhibit 99.1 to this report and is incorporated herein
by reference.
On July 28, 2023, the Company issued a press release
announcing the closing of the offering. A copy of the press release is filed as Exhibit 99.2 to this report and is incorporated herein
by reference.
Item 9.01. Financial Statements and Exhibits.
Exhibit No. |
|
Description |
|
|
|
1.1 |
|
Underwriting
Agreement, dated as of July 25, 2023, by and between the Company and B. Riley Securities, Inc., as underwriter. |
|
|
|
5.1 |
|
Opinion of The NBD Group, Inc. |
|
|
|
23.1 |
|
Consent of The NBD Group, Inc. to the filing of Exhibit 5.1 herewith (included in Exhibit 5.1). |
|
|
|
99.1 |
|
Pricing Press Release, dated July 26, 2023. |
|
|
|
99.2 |
|
Closing Press Release, dated July 28, 2023. |
|
|
|
104 |
|
Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
July 28, 2023 |
B. RILEY FINANCIAL, INC. |
|
|
|
By: |
/s/ Phillip J. Ahn |
|
|
Name: |
Phillip J. Ahn |
|
|
Title: |
Chief Financial Officer and
Chief Operating Officer |
2
Exhibit 1.1
B. RILEY FINANCIAL,
INC.
COMMON STOCK
UNDERWRITING AGREEMENT
July 25, 2023
B. Riley Securities, Inc.
299 Park Avenue, 21st Floor
New York, NY 10171
Ladies and Gentlemen:
B. Riley Financial, Inc.,
a Delaware corporation (the “Company”), proposes to issue and sell to the B. Riley Securities, Inc. (the “Underwriter”),
1,818,182 shares of common stock (the “Firm Shares”), par value $0.0001 per share (the “Common Shares”).
In addition, the Company proposes to grant to the Underwriter the option to purchase from the Company up to an additional 272,727 shares
of Common Stock (the “Option Shares”). The Firm Shares and, if and to the extent such option is exercised, the Option
Shares are hereinafter collectively referred to as the “Shares.”
The Company and the Underwriter
agree as follows:
1. The Offering.
Upon the basis of the representations and warranties and subject to the terms and
conditions herein set forth, the Company agrees to issue and sell to the Underwriter, the aggregate principal amount of Firm Shares and
the Underwriter agrees to purchase from the Company at the price (the “Purchase Price”)
set forth in Schedule A hereto.
In addition, the Company hereby
grants to the Underwriter the option to purchase and, upon the basis of the representations and warranties and subject to the terms and
conditions herein set forth, the Underwriter shall have the right to purchase from the Company, all or a portion of the Option Shares,
at the same Purchase Price to be paid by the Underwriter for the Firm Shares (without giving effect to any accrued interest from the Closing
Date to the Additional Closing Date). This option may be exercised by the Underwriter at any time and from time to time in whole or in
part by written notice from the Underwriter to the Company, which notice may be given at any time within 30 days from the date of this
Agreement. Such notice shall set forth (i) the aggregate principal amount of Option Shares as to which the option is being exercised and
(ii) the date, time and place at which such Option Shares are to be delivered (such date, the “Additional Closing Date”
and such time of such date, the “Additional Time of Purchase”); provided, however, that the Additional
Time of Purchase may be simultaneous with, but shall not be earlier than the Time of Purchase (as defined below) and shall not be earlier
than two nor later than five full business days after delivery of such notice of exercise. The Underwriter may cancel the option at any
time prior to its expiration by giving written notice of such cancellation to the Company.
2. Representations
and Warranties of the Company. The Company represents and warrants to, and agrees with, the Underwriter that:
(a) The
Company has prepared and filed in conformity with the requirements of the Securities Act of 1933, as amended (the “Securities
Act”), and published rules and regulations thereunder (the “Rules and Regulations”) adopted by the Securities
and Exchange Commission (the “Commission”) an “automatic shelf registration statement” (as hereinafter
defined) on Form S-3ASR (File No. 333-252513), which was declared effective upon filing on January 28, 2021 (the “Effective Date”),
including a base prospectus relating to the securities registered pursuant to such Registration Statement (the “Base Prospectus”),
and such amendments and supplements thereto as may have been required to the date of this Agreement. The term “Registration Statement”
as used in this Agreement means the registration statement (including all exhibits, financial schedules and all documents and information
deemed to be a part of the Registration Statement pursuant to Rule 430B of the Rules and Regulations), as amended and/or supplemented
to the date of this Agreement, including the Base Prospectus. The Registration Statement is effective under the Securities Act, and no
stop order preventing or suspending the effectiveness of the Registration Statement or suspending or preventing the use of the Prospectus
(as defined below) has been issued by the Commission, and no proceedings for that purpose have been instituted or are threatened by the
Commission. The Company has prepared a prospectus supplement to the Base Prospectus included as part of such automatic shelf registration
statement specifically relating to the Placement Shares (the “Prospectus Supplement”) and has or will file such Prospectus
Supplement with the Commission pursuant to Rule 424(b) of the Rules and Regulations. The term “Prospectus” as used
in this Agreement means the Base Prospectus, as it may be supplemented by the Prospectus Supplement, in the forms in which such Base Prospectus
or Prospectus Supplement has been or is to be filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations, except that
if any revised prospectus or prospectus supplement shall be provided to the Underwriter by the Company for use in connection with the
offering and sale of the Shares (the “Offering”) which differs from the Prospectus (whether or not such revised prospectus
or prospectus supplement is required to be filed by the Company pursuant to Rule 424(b) of the Rules and Regulations), the term “Prospectus”
shall refer to such revised prospectus or prospectus supplement, as the case may be, from and after the time it is first provided to the
Underwriter for such use. Any reference herein to the Registration Statement or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3ASR which were filed under the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), on or before the last to occur of the Effective Date, or the date of the
Prospectus, and any reference herein to the terms “amend,” “amendment,” or “supplement” with respect
to the Registration Statement or the Prospectus shall be deemed to refer to and include (i) the filing of any document under the Exchange
Act after the Effective Date or the date of the Prospectus, as the case may be, which is incorporated by reference and (ii) any such document
so filed. The Company will file an abbreviated registration statement to register additional securities pursuant to Rule 462(b) under
the Rules and Regulations (the “462(b) Registration Statement”), and any reference herein to the Registration
Statement shall also be deemed to include such 462(b) Registration Statement.
(b) As of the Applicable
Time (as defined below) and as of the Time of Purchase and any Additional Time of Purchase, as the case may be, none of (i) any
General Use Free Writing Prospectus (as defined below) issued at or prior to the Applicable Time, and the Pricing Prospectus (as
defined below), all considered together (collectively, the “General Disclosure Package”), (ii) any individual
Limited Use Free Writing Prospectus (as defined below) issued at or prior to the Time of Purchase and any Additional Time of
Purchase, as the case may be, or (iii) the bona fide electronic road show, if any (as defined in Rule 433(h)(5) of the Rules and
Regulations), that has been made available without restriction to any person, when considered together with the General Disclosure
Package, included or will include any untrue statement of a material fact or omitted, or as of the Time of Purchase and any
Additional Time of Purchase, as the case may be, will omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to information contained in or omitted from the General Disclosure Package, any
individual Limited Use Free Writing Prospectus or the bona fide electronic road show, if any, in reliance upon, and in conformity
with, written information furnished to the Company by or on behalf of the Underwriter specifically for inclusion therein, which
information the parties hereto agree is limited to the “Underwriter’s Information” which is defined as the
information set forth in Section 14. As used in this Section 2(b) and elsewhere in this Agreement:
“Applicable Time”
means 3:30 p.m., Los Angeles time, on the date of this Agreement.
“General Use Free
Writing Prospectus” means any Issuer Free Writing Prospectus identified on Schedule B to this Agreement.
“Issuer Free Writing
Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations
relating to the Shares in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained
in the Company’s records pursuant to Rule 433(g) of the Rules and Regulations.
“Limited Use Free
Writing Prospectuses” means any Issuer Free Writing Prospectus that is not a General Use Free Writing Prospectus.
“Pricing Prospectus”
means the Base Prospectus as amended and supplemented immediately prior to the Applicable Time, including any document incorporated by
reference therein and any prospectus supplement deemed to be a part thereof.
(c) No
order preventing or suspending the use of any Issuer Free Writing Prospectus or the Prospectus relating to the Offering has been issued
by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act has been instituted or threatened
by the Commission.
(d) At the time the Registration
Statement became effective, at the Applicable Time and at the Time of Purchase and any Additional Time of Purchase, as the case may be,
the Registration Statement conformed and will conform in all material respects to the requirements of the Securities Act and the Rules
and Regulations and did not and will not contain any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading; the Prospectus, at the time the Prospectus became effective
and at the Time of Purchase and any Additional Time of Purchase, as the case may be, conformed and will conform in all material respects
to the requirements of the Securities Act and the Rules and Regulations and did not and will not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they
were made, not misleading; provided, however, that the foregoing representations and warranties in this Section 2(d)
shall not apply to information contained in or omitted from the Registration Statement or the Prospectus in reliance upon, and in
conformity with, the Underwriter’s Information.
(e) Each
Issuer Free Writing Prospectus, if any, as of its issue date and at all subsequent times through the completion of the public offer and
sale of the Shares or until any earlier date that the Company notified or notifies the Underwriter as described in Section 4(c),
did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the
Registration Statement, Pricing Prospectus or the Prospectus, including any document incorporated by reference therein and any prospectus
supplement deemed to be a part thereof that has not been superseded or modified, or includes an untrue statement of a material fact or
omitted or would omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading. The foregoing sentence does not apply to statements in or omissions
from any Issuer Free Writing Prospectus in reliance upon, and in conformity with, the Underwriter’s Information.
(f) The
documents incorporated by reference in the Prospectus, when they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, the Rules and Regulations
and the rules and regulations of the Commission under the Exchange Act, and none of such documents contained any untrue statement of a
material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the
Prospectus, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects
to the requirements of the Securities Act or the Exchange Act, as applicable, the Rules and Regulations and the rules and regulations
of the Commission under the Exchange Act and will not contain any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not
misleading.
(g) The
Company is not an “ineligible issuer” in connection with the Offering pursuant to Rules 164, 405 and 433 under the Securities
Act. The Company has not, directly or indirectly, distributed and will not distribute any offering material in connection with the Offering
other than the Registration Statement, the Pricing Prospectus, the Prospectus, any General Use Free Writing Prospectuses and any Limited
Use Free Writing Prospectuses reviewed and consented to by the Underwriter (which consent shall not be unreasonably withheld). The Company
will file with the Commission all Issuer Free Writing Prospectuses (other than a “road show,” as defined in Rule 433(d)(8)
of the Rules and Regulations), if any, in the time and manner required under Rules 163(b)(2) and 433(d) of the Rules and Regulations.
(h) Each
of the Company and its Subsidiaries has been duly organized and is validly existing as a corporation or other legal entity in good standing
(or the foreign equivalent thereof) under the laws of its jurisdiction of incorporation or organization. Each of the Company and its Subsidiaries
is duly qualified to do business and is in good standing as a foreign corporation or other legal entity in each jurisdiction in which
its ownership or lease of its properties or the conduct of its business requires such qualification and has all power and authority (corporate
or other) necessary to own or hold its properties and to conduct the businesses in which each is engaged, except where the failure to
so qualify or have such power or authority would not (i) have, singularly or in the aggregate, a material adverse effect on the condition
(financial or otherwise), results of operations, assets, or business of the Company and its Subsidiaries, taken as a whole, or (ii) impair
in any material respect the ability of the Company to perform its obligations under this Agreement or to consummate any transactions contemplated
by this Agreement, the General Disclosure Package, or the Prospectus (any such effect as described in clauses (i) or (ii), a “Material
Adverse Effect”). “Subsidiary” means any subsidiary of the Company as defined in Rule 405 under the Securities
Act.
(i) The
Company has the full right, power and authority to execute and deliver, and perform its obligations under this Agreement.
(j) This
Agreement has been duly authorized, executed and delivered by the Company.
(k) The
Common Shares have been duly authorized by the Company and when the Shares are issued and delivered in accordance with the terms of the
this Agreement, Common Shares will be validly issued and outstanding, fully paid and non-assessable, not subject to any preemptive or
other similar rights, will conform as to legal matters in all material respects to the descriptions thereof contained in the Registration
Statement, the Prospectus and the General Disclosure Package, and will entitle the holders of the Common Shares to the rights and benefits
provided therein.
(l) The
Shares have been duly authorized by the Company and will be duly and validly issued and outstanding, fully paid and non-assessable and
will represent legal and valid interests in the Common Shares.
(m) The
Shares conform in all material respect to the statements relating thereto contained in the General Disclosure Package and the Prospectus;
and other than as contemplated in the General Disclosure Package and the Prospectus, none of the Company or any of its Subsidiaries has
issued any common equity securities or entered into any agreement or arrangement relating to the issuance of any common equity securities.
(n) All
issued and outstanding shares of capital stock of the Company outstanding prior to the issuance of the Firm Shares have been duly authorized
and are validly issued, fully paid and non-assessable and were issued in compliance in all material respects with United States federal
and applicable state securities laws. All of the Company’s options, warrants and other rights to purchase or exchange any securities
for shares of the Company’s capital stock have been duly authorized and validly issued and were issued in compliance in all material
respects with United States federal and applicable state securities laws. None of the outstanding shares of capital stock was issued in violation of any preemptive
rights, rights of first refusal or other similar rights to subscribe for or purchase securities of the Company.
(o) The
membership interests, capital stock, partnership interests or other similar equity interests, as applicable, of each Subsidiary, have
been duly authorized and validly issued, are fully paid and nonassessable and, except to the extent set forth in the General Disclosure
Package, are owned by the Company directly, free and clear of any claim, lien, encumbrance, security interest, restriction upon voting
or transfer or any other claim of any third party.
(p) None
of (1) the execution, delivery and performance of this Agreement by the Company and (2) the issuance and sale of the Shares by the Company
(with or without notice or lapse of time or both) (x) conflicts with or results in a breach or violation of any of the terms or provisions
of, constitutes a default under, gives rise to any right of termination or other right or the cancellation or acceleration of any right
or obligation or loss of a benefit under or pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound or to
which any of the property or assets of the Company or any of its Subsidiaries is subject, (y) results in any violation of the provisions
of the certificate of incorporation or bylaws (or analogous governing instruments, as applicable) of the Company or any of its Subsidiaries,
or (z) results in any violation of provisions of any law, statute, rule, regulation, judgment, order or decree of any court or governmental
agency or body, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their properties or assets;
except, with respect to clauses (x) or (z), any contravention which would not have a Material Adverse Effect.
(q) No
consent, approval, authorization or order of, or qualification with, any governmental body or agency or self-regulatory authority is required
for the performance by the Company of its obligations under this Agreement, except as have been obtained or as may be required by (1)
the securities or Blue Sky laws of the various states or (2) the bylaws, rules and regulations of FINRA or the Nasdaq Stock Market LLC
(“Nasdaq”).
(r) Marcum
LLP, who has audited certain financial statements of the Company and related schedules included or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus, is an independent registered public accounting firm with respect to the
Company as required by the Securities Act and the Rules and Regulations and the Public Company Accounting Oversight Board (United States).
To the knowledge of the Company, except as pre-approved in accordance with the requirements set forth in Section 10A of the Exchange Act,
the applicable independent registered public accounting firms above have not been engaged by the Company or any of its Subsidiaries, as
applicable, to perform any “prohibited activities” (as defined in Section 10A of the Exchange Act).
(s) The financial
statements, together with the related notes and schedules included or incorporated by reference in the General Disclosure Package,
the Prospectus and in the Registration Statement fairly present, in all material respects, the financial position and the results of
operations and changes in financial position of the Company and its consolidated Subsidiaries and other consolidated entities at the
respective dates or for the respective periods therein specified. Such statements and related notes and schedules have been prepared
in accordance with generally accepted accounting principles in the United States (“GAAP”) applied on a consistent
basis throughout the periods involved except as may be set forth in the related notes included or incorporated by reference in the
General Disclosure Package. The financial statements, together with the related notes and schedules, included or incorporated by
reference in the General Disclosure Package and the Prospectus comply in all material respects with the Securities Act, the Exchange
Act, and the Rules and Regulations and the rules and regulations under the Exchange Act. No other financial statements or supporting
schedules or exhibits are required by the Securities Act or the Rules and Regulations to be described, or included or incorporated
by reference in the Registration Statement, the General Disclosure Package or the Prospectus. There is no pro forma or as adjusted
financial information which is required to be included in the Registration Statement, the General Disclosure Package, or the
Prospectus or a document incorporated by reference therein in accordance with the Securities Act and the Rules and Regulations which
has not been included or incorporated as so required. The pro forma financial statements of the Company and its Subsidiaries and the
related notes thereto included or incorporated by reference in to the General Disclosure Package, the Prospectus and the
Registration Statement present fairly, in all material respects, the information contained therein, have been prepared, in all
material respects, in accordance with the Commission’s rules and guidelines with respect to pro forma financial statements and
have been properly presented on the bases described therein, and the assumptions used in the preparation thereof are reasonable and
the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein.
(t) The
Company and its Subsidiaries do not have any material liabilities or obligations, direct or contingent (including any off-balance sheet
obligations or any “variable interest entities” within the meaning of the Financial Accounting Standards Board’s Accounting
Standards Codification Topic 810), which are not disclosed in the General Disclosure Package, the Prospectus and the Registration Statement.
(u) Since
the date of the most recent financial statements of the Company included or incorporated by reference in the Registration Statement, the
General Disclosure Package or the Prospectus, (i) there has not occurred any event or circumstance that has had or would reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect and (ii) each of the Company and its Subsidiaries, considered
as one entity, has not incurred any material liability or obligation, indirect, direct or contingent, not in the ordinary course of business
nor entered into any material transaction or agreement not in the ordinary course of business, in each case, other than is set forth or
contemplated therein.
(v) There
is no legal or governmental proceeding, action, suit or claim pending or, to the Company’s knowledge, threatened, to which the Company
or any of its Subsidiaries is a party, or to which any of the properties or assets of the Company or any of its Subsidiaries is subject,
(i) other than proceedings accurately described in all material respects in the General Disclosure Package or proceedings that would not
have a Material Adverse Effect, or (ii) that are required to be described in the Registration Statement, the General Disclosure Package
or the Prospectus and are not so described; and there are no statutes, regulations, contracts or other documents to which the Company
or any of its Subsidiaries is subject or by which the Company or any of its Subsidiaries is bound that are required to be described in
the Registration Statement, the General Disclosure Package or the Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(w) Neither
the Company nor any of its Subsidiaries is or, after giving effect to the Offering and the application of the proceeds thereof as described
in the General Disclosure Package and the Prospectus, will become an “investment company” within the meaning of the Investment
Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder.
(x) Except
to the extent expressly set forth in the General Disclosure Package as part of the offering contemplated hereby, neither the Company,
its Subsidiaries nor any of the Company’s or its Subsidiaries’ officers, directors or affiliates has bid for or purchased,
for any account in which it or any of its affiliated purchasers has a beneficial interest, any Shares, or attempted to induce any person
to purchase any Shares; and has not, and has not caused its affiliated purchasers to, make bids or purchase for the purpose of creating
actual, or apparent, active trading in or of raising the price of the Shares.
(y) The
Company and its Subsidiaries have good and marketable title to all real and personal property owned by them which is material to the business
of the Company and its Subsidiaries, taken as a whole, in each case free and clear of all liens, encumbrances and defects of title except
such as are described in the General Disclosure Package or would not individually or in the aggregate have a Material Adverse Effect;
and any real property and buildings held under lease by the Company and its Subsidiaries are held by them under valid, subsisting and
enforceable leases except such as are described in the General Disclosure Package or would not have a Material Adverse Effect.
(z) Except
as disclosed in the General Disclosure Package, neither the Company nor any of its Subsidiaries is in violation of any statute, rule,
regulation, decision or order of any governmental agency or body or any court, relating to the use, disposal or release of hazardous or
toxic substances or relating to the protection or restoration of the environment or human exposure to hazardous or toxic substances (collectively,
“Environmental Laws”), operates any real property contaminated with any substance that is subject to any Environmental
Laws, is liable for any off-site disposal or contamination pursuant to any Environmental Laws, or is subject to any claim relating to
any Environmental Laws, which violation, contamination, liability or claim would individually or in the aggregate have a Material Adverse
Effect; and the Company is not aware of any pending investigation which might lead to such a claim.
(aa) Except as described
in the General Disclosure Package, the Company and its Subsidiaries own or possess, or have the right to use, adequate trademarks, trade
names and other rights to inventions, know-how, patents, copyrights, confidential information and other intellectual property (collectively,
“Intellectual Property Rights”) necessary to conduct the business now operated by them, or presently employed by them,
and have not received any notice of infringement of or conflict with asserted rights of others with respect to any Intellectual Property
Rights, except such as will not individually or in the aggregate have a Material Adverse Effect.
(bb) Each of the Company
and its Subsidiaries maintains a system of internal accounting and other controls (A) sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (iii) access
to assets is permitted only in accordance with management’s general or specific authorization;
and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken
with respect to any differences and (B) which are effective in all material respects to perform the functions for which they were established.
Except as described in the General Disclosure Package, since the end of the Company’s most recent audited fiscal year, there has
been (A) no material weakness or significant deficiencies in the Company’s internal control over financial reporting (whether or
not remediated), (B) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably
likely to materially affect, the Company’s internal control over financial reporting, and (C) no fraud, whether or not material,
that involves management or other employees who have a significant role in the Company’s internal control over financial reporting.
(cc) No relationship, direct
or indirect, exists between or among the Company and any of its Subsidiaries, on the one hand, and the directors, officers, stockholders
(or analogous interest holders), customers or suppliers of the Company or any of its Subsidiaries or any of their affiliates, on the other
hand, which is required to be described in the General Disclosure Package or the Prospectus or a document incorporated by reference therein
and which is not so described.
(dd) Neither the Company
nor any of its Subsidiaries, nor, to the knowledge of the Company, any of its directors, officers, agents, employees, affiliates or other
person acting on their behalf is aware of or has taken any action, directly or indirectly, that has violated or would result in a violation
by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”),
including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance
of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization
of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political
party or official thereof or any candidate for foreign political office, in contravention of the FCPA. The Company and its Subsidiaries
have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued
compliance therewith.
(ee) The operations of the
Company and its Subsidiaries are and have been conducted at all times, in compliance with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all applicable
jurisdictions, the rules and regulations thereunder and any related or similar applicable rules, regulations or guidelines, issued, administered
or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding
by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its Subsidiaries with
respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(ff) Neither the Company
nor any of its Subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S.
Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of this Offering, or
lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other person or entity, for the
purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(gg) No person or entity
has the right to require registration of any securities of the Company or any of its Subsidiaries under the Securities Act because of
the filing or effectiveness of the Registration Statement, except as set forth in therein or in the General Disclosure Package.
(hh) Neither the Company
nor any of its Subsidiaries is a party to any contract, agreement or understanding with any person (other than this Agreement) that would
give rise to a valid claim against the Company or the Underwriter for a brokerage commission, finder’s fee or like payment in connection
with the Offering or any transaction contemplated by this Agreement, the Registration Statement, the General Disclosure Package or the
Prospectus.
(ii) No
forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) contained in either
the General Disclosure Package or the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than
in good faith.
(jj) The Company is subject
to, and in compliance in all material respects with, the reporting requirements of Section 13 or Section 15(d) of the Exchange Act. As
of the filing date of the Registration Statement and as of any update of the Registration Statement pursuant to Section 10(a)(3) of the
Securities Act (including the filing of any Annual Report on Form 10-K), the Company was or is (as the case may be) a Well-Known Seasoned
Issuer and was eligible to file an “automatic shelf registration statement” on Form S-3ASR with the Commission. A “Well-Known
Seasoned Issuer” shall mean a well-known seasoned issuer, as defined in Rule 405 under the Securities Act.
(kk) The Company is in compliance
in all material respects with all applicable provisions of the Sarbanes-Oxley Act of 2002 and all applicable rules and regulations promulgated
thereunder or is implementing the provisions thereof that are currently in effect.
(ll) The statistical and
market-related data included in the General Disclosure Package are based on or derived from sources that the Company believes to be reliable
and accurate, and such data agree with the sources from which they are derived.
(mm) Except as otherwise
disclosed in the General Disclosure Package, each of the Company and its Subsidiaries possess such valid and current certificates, authorizations
or permits issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct their respective businesses,
and neither the Company nor any Subsidiary of the Company has received, or has any reason to believe that it will receive, any notice
of proceedings relating to the revocation or modification of, or non-compliance with, any such certificate, authorization or permit which,
individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could result in a Material Adverse Effect.
(nn) Each of the Company
and its Subsidiaries have filed all material federal, state and foreign income and franchise tax returns or have properly requested extensions
thereof and have paid all material taxes required to be paid by any of them and, if due and payable, any related or similar assessment,
fine or penalty levied against any of them except as may be being contested in good faith and by appropriate proceedings.
(oo) Except
as set forth in the General Disclosure Package, neither the Company nor any Subsidiary directly or indirectly controls, is controlled
by, or is under common control with, or is an associated person (within the meaning of Article I, Section 1(ee) of the By-laws of FINRA)
of, any member firm of FINRA.
(pp) No approval of the stockholders
of the Company under the rules and regulations of Nasdaq (including the rules of Nasdaq) is required for the Company to issue and deliver
the Shares.
(qq) Except as described
in the General Disclosure Package, the Company has not sold, issued or distributed any securities during the six-month period preceding
the date hereof, including any sales pursuant to Rule 144A under, or Regulation D or S of, the Securities Act, other than shares of Common
Stock issued pursuant to employee benefit plans, qualified equity compensation plans or other employee compensation plans or pursuant
to outstanding options, rights or warrants.
(rr) Except as otherwise
disclosed in the General Disclosure Package, each of the Company and its Subsidiaries maintains insurance issued by nationally recognized
insurers covering their respective properties, operations, personnel and businesses, with policies in such amounts and with such deductibles
and covering such risks as the Company reasonably deems adequate. The Company has no reason to believe that it or any of its Subsidiaries
will not be able (i) to renew its existing insurance coverage as and when such policies expire or (ii) to obtain comparable coverage from
similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that would not result in
a Material Adverse Effect.
(ss) The Company nor, to
the Company’s knowledge, any of its respective directors, officers or affiliates has not taken, directly or indirectly, any action
designed to or that might be reasonably expected to cause or result in stabilization or manipulation of the price of any “reference
security” (as defined in Rule 100 of Regulation M under the 1934 Act (“Regulation M”)), whether to facilitate
the sale or resale of the Shares or otherwise, and has taken no action which would directly or indirectly violate Regulation M.
(tt) The Company has not
distributed and will not distribute, prior to the later of (i) the expiration or termination of the option granted to the Underwriter
in Section 1 and (ii) the completion of distribution of the Shares, any offering material in connection with the offering and sale
of the Shares other than a preliminary prospectus, the Pricing Prospectus, the Prospectus, any free writing prospectus reviewed and consented
to by the Underwriter, or the Registration Statement.
(uu) Any certificate signed
by or on behalf of the Company and delivered to the Underwriter or to counsel for the Underwriter shall be deemed to be a representation
and warranty by the Company to the Underwriter as to the matters covered thereby.
3. The Closing.
(a) Payment
of the purchase price for the Firm Shares shall be made to the Company by Federal Funds wire transfer against delivery of such Firm Shares
to or as designated by the Underwriter through the facilities of the Depositary Trust Company (“DTC”) for the account
of the Underwriter. Such payment and delivery shall be made at 7 A.M., Los Angeles time, on July 28, 2023 (such date, the “Closing
Date”). The time at which such payment and delivery are to be made is hereinafter sometimes called the “Time of Purchase.”
Electronic transfer of the Firm Shares shall be made at the Time of Purchase in such names and in such denominations as the Underwriter
shall specify.
(b) Payment
of the purchase price for the Option Shares shall be made at the Additional Time of Purchase in the same manner and at the same office
and time of day as the payment for the Firm Shares. Electronic transfer of the Option Shares shall be made at the Additional Time of Purchase
in such names and in such denominations as the Underwriter shall specify.
(c) Delivery
of the documents required to be delivered to the Underwriter pursuant to Sections 4 and 6 hereof shall be at 7 A.M., Los
Angeles time, on the Closing Date or the Additional Closing Date, as the case may be, at the offices of Duane Morris LLP, 1540 Broadway,
New York, New York 10036.
4. Further Covenants
and Agreements of the Company.
The Company covenants and
agrees with the Underwriter as follows:
(a) To prepare the Rule 462(b)
Registration Statement, if necessary, in a form approved by the Underwriter, and file such Rule 462(b) Registration Statement with the
Commission on the date hereof; to prepare the Prospectus in a form approved by the Underwriter, containing information previously omitted
at the time of effectiveness of the Registration Statement in reliance on rules 430A, 430B and 430C and to file such Prospectus pursuant
to Rule 424(b) of the Rules and Regulations not later than the second business day following the execution and delivery of this Agreement
or, if applicable, such earlier time as may be required by Rule 430A of the Rules and Regulations; to notify the Underwriter promptly
of the Company’s intention to file or prepare any supplement or amendment to any Registration Statement or to the Prospectus in
connection with this Offering and to provide a draft of any such amendment or supplement to the Registration Statement, the General Disclosure
Package or the Prospectus to the Underwriter, for review within an amount of time that is reasonably practical under the circumstances
and prior to filing, and to file no such amendment or supplement to which the Underwriter shall have reasonably objected in writing;
to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment to any Registration Statement has
been filed in connection with the Offering or becomes effective or any supplement to the General Disclosure Package or the Prospectus
or any amended Prospectus has been filed and to furnish the Underwriter with copies thereof; to file within the time periods prescribed
by the Exchange Act, including any extension thereof, all material required to be filed by the Company with the Commission pursuant to
Rule 433(d) or 163(b)(2), as the case may be; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by
the Commission of any stop order or of any order preventing or suspending the use of any Issuer Free Writing Prospectus or the Prospectus,
of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement,
the General Disclosure Package or the Prospectus or for additional information; and, in the event of the issuance of any stop order or
of any order preventing or suspending the use of any Issuer Free Writing Prospectus or the Prospectus or suspending any such qualification,
and promptly to use its best efforts to obtain the withdrawal of such order.
(b) That,
unless it obtains the prior consent of the Underwriter, it has not made and will not make any offer relating to the Shares that would
constitute a “free writing prospectus” as defined in Rule 405 of the Rules and Regulations unless the prior written consent
of the Underwriter has been received (each, a “Permitted Free Writing Prospectus”), other than a free writing prospectus
containing the information contained in the final term sheet prepared and filed pursuant to Section 4(b) hereof; provided that
the prior written consent of the Underwriter shall be deemed to have been given in respect of the Free Writing Prospectuses included in
Schedule B hereto and any electronic road show, if any. The Company shall furnish to the Underwriter, a reasonable amount of time
prior to the proposed time of filing or use thereof, a copy of each proposed free writing prospectus or any amendment or supplement thereto
to be prepared by or on behalf of, used by, or referred to by the Company. The Company represents that it has treated and agrees that
it will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and that it has and will comply with the requirements
of Rules 164 and 433 of the Rules and Regulations applicable to any Issuer Free Writing Prospectus, including the requirements relating
to timely filing with the Commission, legending and record keeping.
(c) If
at any time when a Prospectus relating to the Shares is required to be delivered under the Securities Act, any event occurs or condition
exists as a result of which the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made,
not misleading, or the Registration Statement, as then amended or supplemented, would include any untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary at
any time to amend or supplement any Registration Statement or the Prospectus to comply with the Securities Act or the Exchange Act, the
Company will promptly notify the Underwriter, and upon the Underwriter’s request, the Company will promptly prepare and file with
the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus
that corrects such statement or omission or effects such compliance. The Company consents to the use of the Prospectus or any amendment
or supplement thereto by the Underwriter.
(d) To
the extent not available on the Commission’s EDGAR system, to make generally available to its security holders as soon as practicable,
but in any event not later than eighteen (18) months after the effective date of each Registration Statement (as defined in Rule 158(c)
of the Rules and Regulations), an earnings statement of the Company and its consolidated Subsidiaries (which need not be audited) complying
with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158).
(e) To
take promptly from time to time such actions as the Underwriter may reasonably request to qualify the Shares for offering and sale under
the securities or Blue Sky laws of such jurisdictions (domestic or foreign) as the Underwriter may designate and to continue such qualifications
in effect, and to comply with such laws, for so long as required to permit the offer and sale of Shares in such jurisdictions; provided
that the Company and its Subsidiaries shall not be obligated to qualify as foreign corporations in any jurisdiction in which they are
not so qualified or to file a general consent to service of process in any jurisdiction.
(f) To
supply the Underwriter with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection
with the registration of the Shares under the Securities Act or the Registration Statement or the Prospectus, or any amendment or supplement
thereto or document incorporated by reference therein.
(g) Prior
to the Time of Purchase and the Additional Time of Purchase, if any, not to issue any press release or other communication directly or
indirectly or hold any press conference (other than the Company’s customary quarterly press release and conference call) without
the prior written consent of the Underwriter (which consent shall not be unreasonably withheld).
(h) Until
the Underwriter shall have notified the Company of the completion of the Offering, that the Company will not, and will cause its affiliated
purchasers (as defined in Regulation M under the Exchange Act) not to, either alone or with one or more other persons, and except to the
extent expressly set forth in the General Disclosure Package as part of the offering contemplated hereby, bid for or purchase, for any
account in which it or any of its affiliated purchasers has a beneficial interest, any Shares, or attempt to induce any person to purchase
any Shares; and not to, and to cause its affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent,
active trading in or of raising the price of the Shares.
(i) To
apply the net proceeds from the sale of the Shares as set forth in the Registration Statement, the General Disclosure Package and the
Prospectus under the heading “Use of Proceeds.”
(j) Not
to sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree
to dispose of, directly or indirectly, any debt securities issued or guaranteed by the Company or any securities convertible into or exchangeable
or exercisable for debt securities issued or guaranteed by the Company or file or cause to be declared effective a registration statement
under the Securities Act with respect to any of the foregoing for a period of 90 days after the date hereof without the prior written
consent of the Underwriter, which may not be unreasonably withheld. The foregoing sentence shall not apply to the registration of the
Shares and the sales to the Underwriter pursuant to this Agreement.
(k) To
cooperate with the Underwriter and use its commercially reasonable efforts to permit the offered Securities to be eligible for clearance
and settlement through the facilities of DTC.
(l) To
use its reasonable best efforts to list, effect and maintain, subject to notice of issuance, the Shares on the Nasdaq Global Market.
(m) Until
the Underwriter shall have notified the Company of the completion of the offering of the Shares, the Company will not take directly or
indirectly any action designed, or that might reasonably be expected to cause or result in, or that will constitute, stabilization or
manipulation of the price of any security of the Company to facilitate the sale or resale of any of the Shares.
(n) To
use its reasonable best efforts to do and perform all things required to be done or performed under this Agreement by the Company prior
to the Time of Purchase or the Additional Time of Purchase, as applicable and to satisfy all conditions precedent to the delivery of the
Shares to be delivered at such time.
5. Payment of Expenses.
The Company agrees to pay,
or reimburse if paid by the Underwriter, whether or not the transactions contemplated hereby are consummated or this Agreement is terminated:
(a) the costs incident to the authorization, issuance, sale and delivery of the Shares to the Underwriter and any taxes payable in that
connection; (b) the costs incident to the registration of the Shares under the Securities Act; (c) the costs incident to the preparation,
printing and distribution of the Registration Statement, the Base Prospectus, any Issuer Free Writing Prospectus, the General Disclosure
Package, the Prospectus, any amendments, supplements and exhibits thereto or any document incorporated by reference therein; (d) the reasonable
and documented fees and expenses of counsel to the Underwriter incurred in connection with securing any required review by FINRA and any
filings made with FINRA; (e) all costs and expenses incident to listing the Shares on Nasdaq; (f) the fees and expenses of counsel for
the Underwriter incurred in connection with qualifying the Shares under the securities laws of the several jurisdictions as provided in
Section 4(e) and of preparing, printing and distributing wrappers and blue sky memoranda; (g) the fees and expenses of any transfer
agent, registrar or depository with respect to the Shares; (h) the expenses and application fees incurred in connection with the approval
of the Shares for book-entry transfer by DTC; (i) the reasonable fees and disbursements of counsel to the Underwriter in an aggregate
amount not to exceed $50,000 and (j) all other costs and expenses of the Company incident to the offering of the Shares by, or the performance
of the obligations of, the Company under this Agreement (including, without limitation, the fees and expenses of the Company’s counsel
and the Company’s independent accountants and the travel and other reasonable expenses incurred by Company personnel in connection
with any “road show”).
6. Conditions to
the Obligations of the Underwriter, and the Sale of the Shares.
The obligations of the Underwriter hereunder, and the closing of the sale of the Shares, are subject to the accuracy, when made and as
of the Applicable Time and at the Time of Purchase or the Additional Time of Purchase, as the case may be, of the representations and
warranties of the Company contained herein (except for inaccuracies that would not result in a Material Adverse Effect), to the accuracy
of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company, in all
material respects, of its obligations hereunder, and to each of the following additional terms and conditions:
(a) No
stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base
Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for
that purpose or pursuant to Section 8A under the Securities Act shall have been initiated by the Commission, and all requests for additional
information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus
or otherwise) shall have been complied with; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus, if any,
and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance
with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration Statement, if any, shall
have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness
of the terms of this Agreement or the transactions contemplated hereby.
(b) The
Registration Statement or any amendment or supplement thereto shall not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the statements therein not misleading, and none of the General Disclosure
Package, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, shall contain an untrue statement
of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
in which they were made, not misleading.
(c) The
Company shall have furnished to the Underwriter a certificate, dated the Closing Date or the Additional Closing Date, as the case may
be, of its Chief Executive Officer and its Chief Financial Officer stating that (i) since the effective date of the Registration Statement,
no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure
Package or the Prospectus, (ii) to the best of their knowledge after reasonable investigation, as of such date, the representations and
warranties of the Company in this Agreement are true and correct, except for inaccuracies that would not result in a Material Adverse
Effect, and the Company has complied, in all material respects, with all agreements and satisfied all conditions on its part to be performed
or satisfied hereunder at or prior to such date, and (iii) there has not been, subsequent to the date of the most recent audited financial
statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position
or results of operations of the Company and its Subsidiaries, taken as a whole, or any change or development that, individually or in
the aggregate, would reasonably be expected to involve a material adverse change in or affecting the condition (financial or otherwise),
results of operations, business or assets of the Company and its Subsidiaries, taken as a whole, except as set forth in the Prospectus.
(d) Since
the date of the latest audited financial statements with respect to the Company and its Subsidiaries included in the General Disclosure
Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any of its Subsidiaries
shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the General Disclosure
Package, and (ii) there shall not have been any change in the capital stock of the Company or any change in the long-term debt of the
Company and its Subsidiaries, taken as a whole, or any change or any development in or
affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company
and its Subsidiaries, taken as a whole, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such
case described in clause (i) or (ii) of this Section 6(e), would result in a Material Adverse Effect.
(e) No
action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental
agency or body which would prevent the issuance or sale of the Shares or result in a Material Adverse Effect; and no injunction, restraining
order or order of any other nature by any United States federal or state court of competent jurisdiction shall have been issued which
would prevent the issuance or sale of the Shares or result in a Material Adverse Effect.
(f) Subsequent
to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally
on the New York Stock Exchange or Nasdaq or in the over-the-counter market, or trading in any securities of the Company on any exchange
or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for
prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory
body or governmental authority having jurisdiction; (ii) a banking moratorium shall have been declared by United States federal or state
authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States;
(iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak
of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by
the United States; (iv) if there has been, in the judgment of the Underwriter, since the time of execution of this Agreement or since
the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus,
any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, or (iv) there shall
have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions
on the financial markets in the United States shall be such) as to make it, in the reasonable judgment of the Underwriter, impracticable
or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the General Disclosure
Package and the Prospectus.
(g) The
Underwriter shall have received an opinion and negative assurance letter of The NBD Group, Inc., counsel for the Company, dated the Closing
Date or the Additional Closing Date, as the case may be, covering such matters as the Underwriter shall reasonably request.
(h) The
Underwriter shall have received the favorable opinion of Duane Morris LLP, counsel for the Underwriter, dated the Closing Date or the
Additional Closing Date, as the case may be, and covering such matters as the Underwriter shall reasonably request.
(i) The
Underwriter shall have received from Marcum LLP letters dated, respectively, the date hereof, the Closing Date and, if applicable, the
Additional Closing Date, in form and substance satisfactory to the Underwriter
containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters
with respect to the financial statements and certain financial information contained in the General Disclosure Package, the Prospectus
and the Registration Statement.
(j) The
“lock up” agreements between the Underwriter and the officers and directors of the Company identified by the Underwriter relating
to restrictions on sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to the Representative
on or before the date hereof, shall be in full force and effect on the Closing Date and any Option Closing Date, as applicable.
(k) The
Company shall have furnished to the Underwriter such further certificates and documents as the Underwriter may reasonably require for
the purpose of enabling the Underwriter to pass upon the issuance and sale of the Shares as herein contemplated.
If any condition specified
in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated in the absolute discretion
of the Underwriter by notice to the Company at any time on or prior to the Closing Date and, with respect to the Option Shares, at any
time on or prior to the applicable Additional Closing Date, which termination shall be without liability on the part of any party to any
other party (except to the extent provided in Section 8 hereof), except that Sections 5, 6, 7 and 8
shall at all times be effective and shall survive such termination.
7. Indemnification
and Contribution.
(a) The
Company agrees to indemnify and hold harmless the Underwriter, its respective affiliates and each of their respective directors, officers,
members, employees, representatives and agents and their respective affiliates, and each person, if any, who controls the Underwriter
within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively the “Underwriter Indemnified
Parties,” and each, an “Underwriter Indemnified Party”) against any loss, claim, damage, expense or liability
whatsoever (or any action, investigation or proceeding in respect thereof), to which the Underwriter Indemnified Party may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage, expense, liability, action, investigation or proceeding arises
out of or is based upon (A) any untrue statement or alleged untrue statement of a material fact contained in any Issuer Free Writing Prospectus,
any “issuer information” filed or required to be filed pursuant to Rule 433(d) of the Rules and Regulations, any Registration
Statement or the Prospectus, or in any amendment or supplement thereto or document incorporated by reference therein, (B) the omission
or alleged omission to state in any Issuer Free Writing Prospectus, any “issuer information” filed or required to be filed
pursuant to Rule 433(d) of the Rules and Regulations, any Registration Statement or the Prospectus, or in any amendment or supplement
thereto or document incorporated by reference therein, a material fact required to be stated therein or necessary to make the statements
therein not misleading, or (C) any breach of the representations and warranties of the Company contained herein or failure of the Company to perform its
obligations hereunder or pursuant to any law, and shall reimburse the Underwriter Indemnified Party promptly upon demand for any legal
fees or other expenses reasonably incurred by the Underwriter Indemnified Party in connection with investigating, or preparing to defend,
or defending against, or appearing as a third party witness in respect of, or otherwise incurred in connection with, any such loss, claim,
damage, expense, liability, action, investigation or proceeding, as such fees and expenses are incurred; provided, however,
that the Company shall not be liable in any such case to the extent that any such loss, claim, damage, expense or liability arises out
of or is based upon an untrue statement or alleged untrue statement in, or omission or alleged omission from, any Registration Statement
or the Prospectus, or any such amendment or supplement thereto, or any Issuer Free Writing Prospectus made in reliance upon and in conformity
with written information concerning the Underwriter furnished to the Company by or on behalf of the Underwriter specifically for use therein,
which information the parties hereto agree is limited to the Underwriter’s Information. This indemnity agreement is not exclusive
and will be in addition to any liability, which the Company may otherwise have and shall not limit any rights or remedies which may otherwise
be available at law or in equity to the Underwriter Indemnified Party.
(b) The
Underwriter agrees to indemnify and hold harmless the Company and its directors, its officers who signed the Registration Statement and
each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
(collectively the “Company Indemnified Parties” and each a “Company Indemnified Party”) against
any loss, claim, damage, expense or liability whatsoever (or any action, investigation or proceeding in respect thereof), joint or several,
to which such Company Indemnified Party may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage,
expense, liability, action, investigation or proceeding arises out of or is based upon (i) any untrue statement or alleged untrue statement
of a material fact contained in any Issuer Free Writing Prospectus, any “issuer information” filed or required to be filed
pursuant to Rule 433(d) of the Rules and Regulations, any Registration Statement or the Prospectus, or in any amendment or supplement
thereto, or (ii) the omission or alleged omission to state in any Issuer Free Writing Prospectus, any “issuer information”
filed or required to be filed pursuant to Rule 433(d) of the Rules and Regulations, any Registration Statement or the Prospectus, or in
any amendment or supplement thereto, a material fact required to be stated therein or necessary to make the statements therein not misleading,
but in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the Company by or on behalf of the Underwriter specifically for
use therein, which information the parties hereto agree is limited to the Underwriter’s Information, and shall reimburse the Company
Indemnified Parties for any legal or other expenses reasonably incurred by such party in connection with investigating or preparing to
defend or defending against or appearing as third party witness in connection with any such loss, claim, damage, liability, action, investigation
or proceeding, as such fees and expenses are incurred. This indemnity agreement is not exclusive and will be in addition to any liability
which the Underwriter might otherwise have and shall not limit any rights or remedies which may otherwise be available under this Agreement,
at law or in equity to the Company Indemnified Parties.
(c) Promptly after receipt by an indemnified
party under this Section 7 of notice of the commencement of any action, the indemnified party shall, if a claim in respect thereof
is to be made against an indemnifying party under this Section 7, notify such indemnifying party in writing of the commencement of
that action; provided, however, that the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 7 except to the extent it has been materially prejudiced by such failure; and, provided, further,
that the failure to notify an indemnifying party shall not relieve it from any liability which it may have to an indemnified party
otherwise than under this Section 7. If any such action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes,
jointly with any other similarly notified indemnifying party, to assume the defense of such action with counsel reasonably
satisfactory to the indemnified party (which counsel shall not, except with the written consent of the indemnified party, be counsel
to the indemnifying party). After notice from the indemnifying party to the indemnified party of its election to assume the defense
of such action and approval by the indemnified party of counsel as set forth herein, except as provided herein, the indemnifying
party shall not be liable to the indemnified party under Section 7 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense of such action other than reasonable costs of investigation; provided, however,
that any indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense of
such action but the fees and expenses of such counsel (other than reasonable costs of investigation which shall remain the expense
of the Company) shall be at the expense of such indemnified party unless (i) in the case of an Underwriter Indemnified Party, the
employment thereof has been specifically authorized in writing by the Company in the case of a claim for indemnification under Section
7(a), or (ii) such indemnified party shall have been advised by its counsel that there may be one or more legal defenses
available to it which are different from or additional to those available to the indemnifying party, or (iii) the indemnifying party
has failed to assume the defense of such action and employ counsel reasonably satisfactory to the indemnified party within a
reasonable period of time after notice of the commencement of the action or the indemnifying party does not diligently defend the
action after assumption of the defense, in which case, if such indemnified party notifies the indemnifying party in writing that it
elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to
assume the defense of (or, in the case of a failure to diligently defend the action after assumption of the defense, to continue to
defend) such action on behalf of such indemnified party and the indemnifying party shall be responsible for legal or other expenses
subsequently incurred by such indemnified party in connection with the defense of such action; provided, however, that
the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses
of more than one separate firm of attorneys at any time for all such indemnified parties (in addition to any local counsel), which
firm shall be designated in writing by the Underwriter if the indemnified parties under this Section 7 consist of the
Underwriter Indemnified Party or by the Company if the indemnified parties under this Section 7 consist of any Company Indemnified
Parties. Subject to this Section 7(d), the amount payable by an indemnifying party under Section 7 shall include, but
not be limited to, (x) reasonable legal fees and expenses of counsel to the indemnified party and any other expenses in
investigating, or preparing to defend or defending against, or appearing as a third party witness in respect of, or otherwise
incurred in connection with, any action, investigation, proceeding or claim, and (y) all amounts paid in settlement of any of the
foregoing. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or
consent to the entry of judgment with respect to any pending or threatened action or any claim whatsoever, in respect of which
indemnification or contribution could be sought under this Section 7 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party in
form and substance reasonably satisfactory to such indemnified party from all liability arising out of such action or claim and (ii)
does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified
party. Subject to the provisions of the following sentence, no indemnifying party shall be liable for settlement of any pending or
threatened action or any claim whatsoever that is effected without its written consent (which consent shall not be unreasonably
withheld or delayed), but if settled with its written consent, or if its consent has been unreasonably withheld or delayed, or if
there be a judgment for the plaintiff in any such matter, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such settlement or judgment. In addition, if at any time an
indemnified party shall have requested that an indemnifying party reimburse the indemnified party for reasonable fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated herein effected
without its written consent if (i) such settlement is entered into more than forty-five (45) days after receipt by such indemnifying
party of the request for reimbursement, (ii) such indemnifying party shall have received notice of the terms of such settlement at
least thirty (30) days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such settlement.
(d) If
the indemnification provided for in this Section 7 is unavailable or insufficient to hold harmless an indemnified party under Section
7(a), Section 7(b) or Section 7(c), then each applicable indemnifying party shall, in lieu of indemnifying such indemnified
party, contribute to the amount paid, payable or otherwise incurred by such indemnified party as a result of such loss, claim, damage,
expense or liability (or any action, investigation or proceeding in respect thereof), as incurred, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriter on the other hand from the Offering,
or (ii) if the allocation provided by clause (i) of this Section 7(f) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause (i) of this Section 7(f) but also the relative fault
of the Company on the one hand and the Underwriter on the other with respect to the statements, omissions, acts or failures to act which
resulted in such loss, claim, damage, expense or liability (or any action, investigation or proceeding in respect thereof) as well as
any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriter on the
other hand with respect to such Offering shall be deemed to be in the same proportion as the total net proceeds from the Offering pursuant
to this Agreement (before deducting expenses) received by the Company bear to the total compensation received by the Underwriter in connection
with the Offering, in each case as set forth in the table on the cover page of the Prospectus. The relative fault of the Company on the
one hand and the Underwriter on the other hand shall be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the
Company on the one hand or the Underwriter on the other hand, the intent of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such untrue statement, omission, act or failure to act.
The Company and the Underwriter
agree that it would not be just and equitable if contributions pursuant to this Section 7(f) were to be determined by pro rata
allocation or by any other method of allocation that does not take into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim, damage, expense, liability, action, investigation or proceeding
referred to above in this Section 7(f) shall be deemed to include, for purposes of this Section 7(d), any legal or
other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending against
or appearing as a third party witness in respect of, or otherwise incurred in connection with, any such loss, claim, damage, expense,
liability, action, investigation or proceeding. Notwithstanding the provisions of this Section 7(f), the Underwriter shall not
be required to contribute any amount in excess of the total compensation received by the Underwriter hereunder less the amount of any
damages which the Underwriter has otherwise paid or become liable to pay by reason of any untrue or alleged untrue statement, omission
or alleged omission, act or alleged act or failure to act or alleged failure to act.
No person guilty of fraudulent
misrepresentation (within the meaning of Section 10(f) of the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
8. Absence of Fiduciary
Relationship.
The Company acknowledges and agrees that:
(a) the
Underwriter’s responsibility to the Company is solely contractual in nature, the Underwriter have been retained solely to act as
an underwriter in connection with the Offering and no fiduciary, advisory or agency relationship between the Company and the Underwriter
has been created in respect of any of the transactions contemplated by this Agreement, irrespective of whether the Underwriter has advised
or is advising the Company on other matters;
(b) the
price of the Shares set forth in this Agreement was established by the Company following discussions and arms-length negotiations with
the Underwriter, and the Company is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions
of the transactions contemplated by this Agreement;
(c) the
Underwriter has not advised, and the Underwriter is not advising, the Company or any other person as to any legal, tax, investment, accounting
or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby;
(d) the
Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation
and appraisal of the transactions contemplated hereby, and the Underwriter shall not have any responsibility or liability to the Company
with respect thereto;
(e) the
Underwriter has not and will not be rendering an opinion to the Company as to the fairness of the terms of the offering of the Shares;
(f) it
has been advised that the Underwriter, and their respective affiliates, are engaged in a broad range of transactions which may involve
interests that differ from those of the Company and the Underwriter has no obligation
to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship; and
(g) it
waives, to the fullest extent permitted by law, any claims it may have against the Underwriter for breach of fiduciary duty or alleged
breach of fiduciary duty and agrees that the Underwriter shall not have any liability (whether direct or indirect) to the Company in respect
of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Company, including stockholders,
employees or creditors of the Company.
9. Successors; Persons
Entitled to Benefit of Agreement.
This Agreement shall inure to the benefit of and be binding upon the Underwriter, the Company, and their respective successors and assigns.
Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, other than the persons mentioned
in the preceding sentence, any legal or equitable right, remedy or claim under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions hereof being intended to be and being for the sole and exclusive benefit
of such persons and for the benefit of no other person; except that the representations, warranties, covenants, agreements and indemnities
of the Company contained in this Agreement shall also be for the benefit of the Underwriter Indemnified Parties, and the indemnity of
the Underwriter shall be for benefit of the Company Indemnified Parties.
10. Survival of Indemnities,
Representations, Warranties, Etc.
The respective indemnities, covenants, agreements, representations, warranties and other statements of the Company and the Underwriter,
as set forth in this Agreement or made by them respectively, pursuant to this Agreement, shall remain in full force and effect, regardless
of any investigation made by or on behalf of the Underwriter, the Company or any person controlling any of them and shall survive delivery
of and payment for the Shares. Notwithstanding any termination of this Agreement, the indemnity and contribution agreements contained
in Section 7 and the covenants, representations, warranties set forth in this Agreement shall not terminate and shall remain in
full force and effect at all times.
11. Notices.
All statements, requests, notices and agreements hereunder shall be in writing, and:
(a) if
to the Underwriter, shall be delivered or sent by mail, overnight courier or email to B. Riley Securities, Inc., 299 Park Avenue, 21st
Floor, New York, New York 10171, Attention: Syndicate Department, with a copy to Duane Morris LLP Attn: James T. Seery, 1540 Broadway,
New York, New York 10036.
(b) if
to the Company, shall be delivered or sent by mail, overnight courier or email to B. Riley Financial, Inc., Attention: Chief Financial
Officer, 11100 Santa Monica Boulevard, Suite 800, Los Angeles, California 90025, with a copy to The NBD Group, Inc., Attn: Sara Terheggen,
350 N. Glendale Avenue, Suite B522, Los Angeles, California 91206.
12.
Definition of Certain Terms. For purposes of this Agreement “business day” means any
day on which Nasdaq is open for trading.
13. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
14. Underwriter’s
Information. The
parties hereto acknowledge and agree that, for all purposes of this Agreement, the Underwriter’s Information consists solely of
the following information in the General Disclosure Package, the Prospectus and in the Registration Statement: the concession figure
appearing in the first paragraph under the section entitled “Underwriting – Discounts and Expenses” and the information
contained in the second and fourth paragraphs relating to stabilization transactions under the section entitled “Underwriting –
Price Stabilization; Short Positions.”
15. Partial Unenforceability.
The invalidity or unenforceability of any section, paragraph, clause or provision of this Agreement shall not affect the validity or
enforceability of any other section, paragraph, clause or provision hereof. If any section, paragraph, clause or provision of this Agreement
is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor
changes) as are necessary to make it valid and enforceable.
16. General.
This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral and all contemporaneous
oral agreements, understandings and negotiations with respect to the subject matter hereof. In this Agreement, the masculine, feminine
and neuter genders and the singular and the plural include one another. The section headings in this Agreement are for the convenience
of the parties only and will not affect the construction or interpretation of this Agreement. This Agreement may be amended or modified,
and the observance of any term of this Agreement may be waived, only by a writing signed by the Company and the Underwriter.
17. Counterparts.
This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument and such signatures may be delivered by facsimile.
[Signature Page Follows]
If the foregoing correctly
sets forth the understanding between the Company and the Underwriter, please so indicate in the space provided below for that purpose,
whereupon this agreement and your acceptance shall constitute a binding agreement between the Company and the Underwriter.
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Very truly yours, |
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B. RILEY FINANCIAL, INC. |
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By: |
/s/ Phillip Ahn |
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Name: |
Phillip J. Ahn |
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Title: |
Chief Financial Officer & Chief Operating Officer |
Accepted and agreed to as of the date first above
written:
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B. RILEY SECURITIES, INC. |
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By: |
/s/ Jimmy Baker |
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Name: |
Jimmy Baker |
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Title: |
President & Head of Capital Markets |
SCHEDULE A
Pricing Information
Firm Shares: 1,818,182
Option Shares: 272,727
Public offering price: $55.00 per Share
Underwriter’s discount: 5.5%
Purchase Price: $51.975 per Share
SCHEDULE B
Free Writing Prospectuses
None.
Exhibit 5.1
The NBD Group, Inc.
A California Professional Corporation
Los Angeles and Palo Alto
https://nbdpro.co/
(408) 201-2662
July 28, 2023
B. Riley Financial, Inc.
11100 Santa Monica Boulevard, Suite 800
Los Angeles, California 90025
Ladies and Gentlemen:
We have acted as counsel to
B. Riley Financial, Inc., a Delaware corporation (the “Company”), in connection with the offering and sale of 2,090,909
shares of the Company’s common stock, $0.0001 par value per share (the “Shares”), inclusive of 272,727 Shares
issued pursuant to the full exercise of the Underwriter’s option, under the Registration Statement (as defined below), pursuant
to the Underwriting Agreement, dated July 25, 2023 (the “Underwriting Agreement”), by and between the Company and B.
Riley Securities, Inc., as underwriter. This opinion is furnished to you in connection with the shelf registration statement on Form S-3ASR
(Registration No. 333-252513), filed by the Company on January 28, 2021 with the Securities and Exchange Commission (the “Commission”)
which was automatically effective upon filing (the “Registration Statement”), in accordance with the provisions of
the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder (collectively, the “Act”).
In connection with this opinion,
we have examined originals, copies or forms of: (i) the Registration Statement; (ii) the prospectus, dated January 28, 2021 (the “Base
Prospectus”), which forms a part of the Registration Statement; (iii) the preliminary prospectus supplement, dated July 25,
2023, relating to the offering of the Shares (together with the Base Prospectus, the “Preliminary Prospectus”); (iv)
the prospectus supplement, dated July 25, 2023, including Amendment No. 1 to the prospectus supplement, dated July 27, 2023, each in the
form filed with the Commission pursuant to Rule 424(b) under the Act (the Base Prospectus, together with the Preliminary Prospectus and
the documents incorporated and deemed to be incorporated by reference therein, herein collectively referred to as the “Prospectus”);
(v) the executed Underwriting Agreement; (vi) a copy of the Amended and Restated Certificate of Incorporation of the Company, as amended
to the date hereof and currently in effect, as certified by the Secretary of the State of Delaware; (vii) a copy of the By-laws of the
Company, as currently in effect, as certified by the Secretary of the Company; and (viii) certain resolutions of the Board of Directors
of the Company, approved on July 19, 2023, and certain resolutions of the Pricing Committee thereof, approved on July 25, 2023, as certified
by the Secretary of the Company. In addition, we have examined such records, documents, certificates of public officials and of the Company,
made such inquiries of officers of the Company, and considered such questions of law as we have deemed necessary for the purpose of rendering
the opinions set forth herein.
In our examination, we have
assumed the genuineness of all signatures and the authenticity of all items submitted to us as originals and the conformity with originals
of all items submitted to us as copies. In making our examination of documents executed by parties other than the Company, we have assumed
that each other party has the power and authority to execute and deliver, and to perform and observe the provisions of, such documents,
and the due authorization thereof by each such other party of all requisite action and the due execution and delivery of such documents
by each such other party, and that such documents constitute the legal, valid and binding obligations of each such other party enforceable
against such party in accordance with their terms.
In addition, we have assumed
that the issuance and sale of the Shares and that the execution and delivery by the Company of, and the performance of its obligations
under, the Underwriting Agreement and the Shares do not violate, conflict with or constitute a default under (i) any agreement or instrument
to which the Company or any of its properties is subject, (ii) any law, rule, or regulation to which the Company or any of its properties
is subject, (iii) any judicial or regulatory order or decree of any governmental authority or (iv) any consent, approval, license, authorization
or validation of, or filing, recordation or registration with, any governmental authority.
Our opinions set forth herein
are limited to (i) the General Corporation Law of the State of Delaware and (ii) the laws of the State of New York that, in our experience,
are normally applicable to the Shares and, to the extent that judicial or regulatory orders or decrees or consents, approvals, licenses,
authorizations, validations, filings, recordings or registrations with governmental authorities are relevant, to those required under
such laws (all of the foregoing being referred to as “Opined on Law”). We do not express any opinion as to any non-Opined
on Law on the opinions herein stated.
Based upon and subject to
the limitations, qualifications, exceptions and assumptions set forth herein, we are of the opinion that:
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1. |
The Shares have been duly authorized and validly issued and are fully paid and nonassessable. |
We hereby consent to the filing
of this opinion as exhibit 5.1 to the Company’s Current Report on Form 8-K, being filed on the date hereof, and incorporated by
reference into the Registration Statement. We also hereby consent to the use of our name under the heading “Legal Matters”
in the Prospectus. In giving such consent, we do not hereby admit that we are acting within the category of persons whose consent is required
under Section 7 of the Act or the rules and regulations of the Commission thereunder. This opinion is expressed as of the date hereof
unless otherwise expressly stated, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed
herein or of any subsequent changes in applicable laws.
Very truly yours, |
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/s/ The NBD Group, Inc. |
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Exhibit 99.1
B. Riley Financial Announces Pricing of $100
Million Common Stock Offering
LOS ANGELES, July 26, 2023 – B. Riley
Financial, Inc. (NASDAQ: RILY) (“B. Riley” or the “Company”), a diversified financial services platform, today
announced it has priced an underwritten public offering of 1,818,182 shares of its common stock (the “Offering”) at a price
of $55.00 per share. Certain of the Company’s officers, directors, and employees have agreed to purchase, in the aggregate, approximately
$7 million of shares of common stock in this Offering at the public offering price.
B. Riley Securities is acting as sole book-running
manager for the offering. The Company has granted the underwriter a 30-day option to purchase up to an additional 272,727 shares of its
common stock in connection with the Offering.
Gross proceeds from this Offering, before deducting
underwriting discounts and commissions and offering expenses, but excluding any exercise of the underwriter’s option to purchase
additional shares, are expected to be approximately $100 million. The Offering is expected to close on July 28, 2023, subject to the satisfaction
of customary closing conditions.
The Offering is being made by means of a prospectus.
A registration statement was previously filed by the Company with the SEC and became effective upon filing on January 28, 2021, and a
preliminary prospectus supplement was filed on July 25, 2023. Copies of the preliminary prospectus supplement and the accompanying base
prospectus may be obtained on the SEC’s website at www.sec.gov, or by contacting B. Riley Securities by telephone at (703) 312-9580, or
by emailing prospectuses@brileyfin.com.
This press release shall not constitute an offer
to sell or the solicitation of an offer to buy, nor shall there be any sale of these securities in any state or jurisdiction in which
such offer, sale or solicitation would be unlawful prior to registration or qualification under the securities laws of any such state
or jurisdiction.
About B. Riley Financial
B. Riley Financial is a diversified financial
services platform that delivers tailored solutions to meet the strategic, operational, and capital needs of its clients and partners.
B. Riley leverages cross-platform expertise to provide clients with full service, collaborative solutions at every stage of the business
life cycle. Through its affiliated subsidiaries, B. Riley provides end-to-end financial services across investment banking, institutional
brokerage, private wealth and investment management, financial consulting, corporate restructuring, operations management, risk and compliance,
due diligence, forensic accounting, litigation support, appraisal and valuation, auction, and liquidation services. B. Riley opportunistically
invests to benefit its shareholders, and certain affiliates originate and underwrite senior secured loans for asset-rich companies. B.
Riley refers to B. Riley Financial, Inc. and/or one or more of its subsidiaries or affiliates.
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www.brileyfin.com | NASDAQ: RILY |
1 |
Forward-Looking Statements
Statements in this press release that are not
descriptions of historical facts are forward-looking statements that are based on management’s current expectations and assumptions and
are subject to risks and uncertainties. If such risks or uncertainties materialize or such assumptions prove incorrect, our business,
operating results, financial condition, and stock price could be materially negatively affected. You should not place undue reliance on
such forward-looking statements, which are based on the information currently available to us and speak only as of the date of this press
release. Such forward-looking statements include, but are not limited to, statements regarding timing and size of the proposed public
offering and the intended use of net proceeds. Factors that could cause such actual results to differ materially from those contemplated
or implied by such forward-looking statements include, without limitation, the risks described from time to time in B. Riley Financial,
Inc.’s periodic filings with the SEC, including, without limitation, the risks described in B. Riley Financial, Inc.’s 2022
Annual Report on Form 10-K under the captions “Risk Factors” and “Management’s Discussion and Analysis of Financial
Condition and Results of Operations” (as applicable)and our Quarterly Report on Form 10-Q for the quarter ended March 31, 2023.
These factors should be considered carefully, and readers are cautioned not to place undue reliance on such forward-looking statements.
All information is current as of the date this press release is issued, and B. Riley Financial undertakes no duty to update this information.
# # #
Contacts |
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Investors |
Media |
Mike Frank |
Jo Anne McCusker |
ir@brileyfin.com |
jmccusker@brileyfin.com |
(212) 409-2424 |
(646) 885-5425 |
Source: B. Riley Financial, Inc.
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www.brileyfin.com | NASDAQ: RILY |
2 |
Exhibit 99.2
B. Riley Financial Closes $115 Million Common
Stock Offering
Including Full Exercise of Underwriter Option
LOS ANGELES, July 28, 2023 – B. Riley
Financial, Inc. (NASDAQ: RILY) (“B. Riley” or the “Company”), a diversified financial services platform, today
announced the closing of its previously announced underwritten public offering of 2,090,909 shares of common stock (the “Offering”),
including 272,727 shares issued in connection with the full exercise of the underwriter’s option to purchase additional shares, at a price
of $55.00 per share. Gross proceeds to the Company were approximately $115 million, before deducting underwriting discounts and commissions
and offering expenses.
Certain of the Company’s officers, directors,
and employees participated in this Offering and have purchased, in the aggregate, approximately $7 million of shares of common stock at
the public offering price.
Net proceeds to the Company were approximately
$108.7 million after deducting underwriting discounts and commissions, but before expenses. The Company expects to use the net proceeds
of this Offering for general corporate purposes, including funding future acquisitions and investments, repaying and/or refinancing indebtedness,
making loans and/or providing guaranty or backstop commitments to clients in the ordinary course of business, making capital expenditures
and funding working capital. Pending such use, the Company may invest the net proceeds in short-term interest-bearing accounts, securities
or similar investments.
B. Riley Securities acted as sole book-running
manager for the Offering.
The NBD Group acted as legal counsel to the Company. Duane Morris LLP
acted as legal counsel to the underwriter.
The Offering was made by means of a prospectus.
A registration statement was previously filed by the Company with the SEC and became effective upon filing on January 28, 2021, and a
preliminary prospectus supplement was filed on July 25, 2023. Copies of the prospectus supplement and the accompanying base prospectus
may be obtained on the SEC’s website at www.sec.gov, or by contacting B. Riley Securities by telephone at (703) 312-9580, or by emailing
prospectuses@brileyfin.com.
This press release shall not constitute an offer
to sell or the solicitation of an offer to buy, nor shall there be any sale of these securities in any state or jurisdiction in which
such offer, sale or solicitation would be unlawful prior to registration or qualification under the securities laws of any such state
or jurisdiction.
| |
www.brileyfin.com | NASDAQ: RILY | 1 |
About B. Riley Financial
B. Riley Financial is a diversified financial
services platform that delivers tailored solutions to meet the strategic, operational, and capital needs of its clients and partners.
B. Riley leverages cross-platform expertise to provide clients with full service, collaborative solutions at every stage of the business
life cycle. Through its affiliated subsidiaries, B. Riley provides end-to-end financial services across investment banking, institutional
brokerage, private wealth and investment management, financial consulting, corporate restructuring, operations management, risk and compliance,
due diligence, forensic accounting, litigation support, appraisal and valuation, auction, and liquidation services. B. Riley opportunistically
invests to benefit its shareholders, and certain affiliates originate and underwrite senior secured loans for asset-rich companies. B.
Riley refers to B. Riley Financial, Inc. and/or one or more of its subsidiaries or affiliates.
Forward-Looking Statements
Statements in this press release that are not
descriptions of historical facts are forward-looking statements that are based on management’s current expectations and assumptions and
are subject to risks and uncertainties. If such risks or uncertainties materialize or such assumptions prove incorrect, our business,
operating results, financial condition, and stock price could be materially negatively affected. You should not place undue reliance on
such forward-looking statements, which are based on the information currently available to us and speak only as of the date of this press
release. Such forward-looking statements include, but are not limited to, statements regarding the intended use of net proceeds. Factors
that could cause such actual results to differ materially from those contemplated or implied by such forward-looking statements include,
without limitation, the risks described from time to time in B. Riley Financial, Inc.’s periodic filings with the SEC, including,
without limitation, the risks described in B. Riley Financial, Inc.’s 2022 Annual Report on Form 10-K under the captions “Risk
Factors” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” (as applicable)and
our Quarterly Report on Form 10-Q for the quarter ended March 31, 2023. These factors should be considered carefully, and readers are
cautioned not to place undue reliance on such forward-looking statements. All information is current as of the date this press release
is issued, and B. Riley Financial undertakes no duty to update this information.
# # #
Contacts
Investors |
Media |
Mike Frank |
Jo Anne McCusker |
ir@brileyfin.com |
jmccusker@brileyfin.com |
(212) 409-2424 |
(646) 885-5425 |
|
|
Source: B. Riley Financial, Inc. |
|
|
|
www.brileyfin.com | NASDAQ: RILY |
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B Riley Financial (NASDAQ:RILYL)
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