Exhibit 1.1
BABCOCK &
WILCOX ENTERPRISES, INC.
6.50% SENIOR NOTES DUE 2026
UNDERWRITING
AGREEMENT
December 8,
2021
B. Riley Securities, Inc.
As representative of the several underwriters
c/o B. Riley Securities, Inc.
299 Park Avenue, 21st Floor
New York, NY 10171
Ladies and Gentlemen:
Babcock &
Wilcox Enterprises, Inc., a Delaware corporation (the “Company”), proposes to issue and sell to the several
Underwriters on Schedule A hereto (the “Underwriters”), for whom B. Riley Securities, Inc. is acting as
representative (in such capacity, the “Representative”), $140,000,000 aggregate principal amount of 6.50% Senior Notes
due 2026 (the “Firm Notes”). In addition, the Company proposes to grant to the Underwriters the option to purchase
from the Company up to an additional $21,000,000 aggregate principal amount of 6.50% Senior Notes due 2026 (the “Additional Notes”).
The Firm Notes and, if and to the extent such option is exercised, the Additional Notes are hereinafter collectively referred to as the
“Notes.”
The
Notes will be issued under an indenture dated as of February 12, 2021 (the “Base Indenture”), as supplemented
by the First Supplemental Indenture dated as of February 12, 2021 (the “First Supplemental Indenture”), and as
supplemented by the Second Supplemental Indenture, to be dated as of December 13, 2021 (the “Second Supplemental Indenture”
and, together with the First Supplemental Indenture and the Base Indenture, the “Indenture”), between the Company and
The Bank of New York Mellon National Association, as trustee (the “Trustee”). The Notes will be issued to Cede &
Co., as nominee of the Depository Trust Company (“DTC”) pursuant to a blanket letter of representations, between the
Company and DTC. The Indenture will be qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”).
The Company hereby confirms
its engagement of D.A. Davidson & Co. (“D.A. Davidson”) as, and D.A. Davidson hereby confirms its agreement
with the Company to render services as, a “qualified independent underwriter,” within the meaning of Section (f)(12)
of Rule 5121 of the Financial Industry Regulatory Authority, Inc. (“FINRA”) with respect to the offering
and sale of the Notes. D.A. Davidson, solely in its capacity as the qualified independent underwriter and not otherwise, is referred to
herein as the “QIU.” D.A. Davidson hereby consents to the reference to it as set forth under the heading “Underwriting
(Conflicts of Interest)” in the preliminary prospectus or the Prospectus and any amendment or supplement thereto.
The Company and the Underwriters
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 Underwriters, severally and not jointly, the aggregate principal amount of Firm Notes set forth opposite
the name of such Underwriter on Schedule A, and each of the Underwriters, severally and not jointly, agrees to purchase from the
Company at the price (the “Purchase Price”) set forth in Schedule B hereto the aggregate principal amount of
Firm Notes set forth opposite the name of such Underwriter on Schedule A hereto subject to adjustment in accordance with Section 7
hereof.
In
addition, the Company hereby grants to the several Underwriters the option to purchase and, upon the basis of the representations and
warranties and subject to the terms and conditions herein set forth, the Underwriters shall have the right to purchase, severally and
not jointly, from the Company, ratably in accordance with the number of Firm Notes to be purchased by each of them, all or a portion of
the Additional Notes, at the same Purchase Price to be paid by the Underwriters for the Firm Notes (without giving effect to any accrued
interest from the Closing Date to the Additional Closing Date). This option may be exercised by the Representative on behalf of the several
Underwriters at any time and from time to time in whole or in part by written notice from the Representative 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 Additional Notes as to which the option is being exercised and (ii) the date, time and place at which such Additional Notes
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 aggregate principal amount of Additional Notes to be sold to each Underwriter shall be the aggregate
principal amount which bears the same proportion to the total aggregate principal amount of Additional Notes being purchased as the number
of Firm Notes set forth opposite the name of such Underwriter on Schedule A hereto bears to the total aggregate principal amount
of Firm Notes, subject to adjustment in accordance with Section 7 hereof. The Representative 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 Underwriters that:
(a) The
Company has filed a “shelf” Registration Statement (as hereinafter defined) on Form S-3 (File No. 333-260854), which
was declared effective by the Commission as of November 22, 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 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 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”), 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) or any Issuer Free Writing Prospectus
(defined below) has been issued by the Commission, and no proceedings for that purpose have been instituted or, to the knowledge of the
Company, are threatened by the Commission. The Company has prepared a prospectus supplement to the Base Prospectus included as part of
such registration statement specifically relating to the Notes (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 Underwriters by the Company for use
in connection with the offering and sale of the Notes (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 Underwriters 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-3
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 into the Registration Statement or the Prospectus and (ii) any such document so filed. If Company files an abbreviated
registration statement to register additional securities pursuant to Rule 462(b) under the Rules and Regulations (the “462(b) Registration
Statement”), 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, Underwriter’s Information (as defined below). As used in this Section 2(b) and
elsewhere in this Agreement:
“Applicable
Time” means 5:00 P.M., Eastern Standard time, on the date of this Agreement.
“General
Use Free Writing Prospectus” means any Issuer Free Writing Prospectus identified on Schedule C 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 Notes 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) 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; 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(c) 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.
(d) 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 Notes or until any earlier date that the Company notified or notifies the Representative 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. 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.
(e) 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.
(f) The
Company is not an “ineligible issuer” in connection with the Offering pursuant to Rules 164, 405 and 433 under the Securities
Act.
(g) 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 Representative (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 as applicable
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 corporate power and authority necessary to own or hold its properties and to conduct the businesses in which each is engaged as described
in the Registration Statement or Prospectus, except where the failure to so qualify or have such power or authority would not reasonably
be expected to (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 significant subsidiary of the Company as defined in Rule 405 under
the Securities Act.
(i) The
Company has the full legal right, power and authority to execute and deliver, and perform its obligations under this Agreement, the Indenture,
and the Notes.
(j) This
Agreement has been duly authorized, executed and delivered by the Company.
(k) The
Indenture has been duly authorized by the Company and, as of the Closing Date, will be duly executed and delivered by the Company and,
assuming it has been executed and delivered by the Trustee, will constitute a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as the enforcement thereof may be subject to (i) applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally
and (ii) general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or law).
(l) The
Notes have been duly authorized for sale to the Underwriters pursuant to this Agreement and, when executed and delivered by the Company
and authenticated by the Trustee pursuant to the provisions of this Agreement and of the Indenture relating thereto, against payment of
the consideration set forth in this Agreement, will be valid and legally binding obligations of the Company enforceable in accordance
with their terms, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter
in effect relating to creditors’ rights generally and (ii) general principles of equity (regardless of whether enforcement
is considered in a proceeding in equity or law), and will be entitled to the benefits of the Indenture relating thereto.
(m) All
issued and outstanding shares of capital stock of the Company outstanding prior to the issuance of the Firm Notes 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.
(n) 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, or would not individually or in the aggregate, be reasonably expected to have a Material Adverse Effect, 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.
(o) None
of (1) the execution, delivery and performance of this Agreement and the Indenture by the Company and (2) the issuance and sale
of the Notes 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 reasonably be
expected to have a Material Adverse Effect.
(p) 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, the Indenture, and the Notes, except as have been obtained
or as may be required by (1) the securities or Blue Sky laws of the various states, (2) the bylaws, rules and regulations
of FINRA or the New York Stock Exchange (“NYSE”), or (3) any necessary qualification under the Trust Indenture
Act, in connection with the offer and sale of the Notes.
(q) Deloitte &
Touche 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, to the knowledge of the Company, 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).
(r) 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.
(s) The
Company and its Subsidiaries, on a consolidated basis, 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.
(t) 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, 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.
(u) 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 reasonably be expected to 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.
(v) The
Company is not, and, after giving effect to the Offering and the application of the proceeds thereof as described in the General Disclosure
Package and the Prospectus, will not 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.
(w) The
Company and its Subsidiaries have good and marketable title to all real and personal property described in the Registration Statement
of Prospectus as being 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, be reasonably expected to 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 reasonably be expected to have a Material Adverse Effect.
(x) 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 reasonably be expected
to have a Material Adverse Effect; and the Company is not aware of any pending investigation which might lead to such a claim.
(y) Except
as described in the General Disclosure Package, the Company and its Subsidiaries own or possess, or have the right to use or can acquire
on reasonable terms, 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 against the Company with respect to any Intellectual Property Rights, except such as will not individually or in the aggregate
reasonably be expected to have a Material Adverse Effect.
(z) The
Company maintains a system of internal accounting and other controls designed 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. Except
as described in the General Disclosure Package, (A) none of the Company, or to the Company’s knowledge, its board of directors
and audit committee, is aware of any “significant deficiencies” or “material weaknesses” (each as defined by the
Public Company Accounting Oversight Board) in its internal control over financial reporting, or any fraud, whether or not material, that
involves management or other employees of the Company who have a significant role in the Company’s internal controls all as of the
date of this Agreement, and (B) since the end of the Company’s most recent audited fiscal year, there has been 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.
(aa) No
relationship, direct or indirect, exists between or among the Company or 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.
(bb) 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.
(cc) 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 having jurisdiction over the Company (collectively, the “Money Laundering
Laws”) except where the failure to be in such compliance would not reasonably be expected to result in a Material Adverse Effect;
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.
(dd) 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.
(ee) 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 (i) as set forth therein or in the General Disclosure
Package or (ii) as provided under the Registration Rights Agreement, dated as of April 30, 2019, by and among the Company and
certain investors party thereto.
(ff) Neither
the Company nor any of its Subsidiaries has incurred any liability for any finder’s fee or like payment in connection with the Offering
or any transaction contemplated by this Agreement, except as may otherwise exist with respect to the Underwriters pursuant to this Agreement.
(gg) 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.
(hh) 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 eligible to file a “shelf”
Registration Statement on Form S-3 with the Commission.
(ii) 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.
(jj) 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 in all material respects with the sources from which they are derived.
(kk) 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 as described in the Registration Statement or Prospectus, and neither the Company nor any Subsidiary of the Company
has received 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, would reasonably be expected
to result in a Material Adverse Effect.
(ll) 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,
except where the failure to do so would not reasonably be expected to have a Material Adverse Effect.
(mm) Except
for persons identified or otherwise 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.
(nn) No
approval of the stockholders of the Company under the rules and regulations of the NYSE is required for the Company to issue and
deliver the Notes.
(oo) 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 for the conduct of their business as currently conducted
as described in the Registration Statement and Prospectus.
(pp) 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 Notes or otherwise, and has taken no action which would directly or indirectly violate Regulation M.
Any certificate signed by or on behalf of the
Company and delivered to the Representative or to counsel for the Underwriters shall be deemed to be a representation and warranty by
the Company to the Underwriters as to the matters covered thereby.
3. The
Closing.
(a) Payment
of the purchase price for the Firm Notes shall be made to the Company by Federal Funds wire transfer against delivery of such Firm Notes
to or as designated by the Representative through the facilities of DTC for the respective accounts of the Underwriters. Such payment
and delivery shall be made at 10:00 A.M., Eastern Standard time, on December 13, 2021 (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 Notes shall be made at the Time of Purchase in such names and in such denominations as the Representative
shall specify.
(b) Payment
of the purchase price for the Additional Notes 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 Notes. Electronic transfer of the Additional Notes shall be made at the Additional Time of
Purchase in such names and in such denominations as the Representative shall specify.
(c) Delivery
of the documents required to be delivered to the Underwriters pursuant to Sections 4 and 6 hereof shall be at 10:00 A.M.,
Eastern Standard 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 Underwriters as follows:
(a) To
prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Representative, 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 Representative, 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 Representative 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 Representative, 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
Representative shall have reasonably objected in writing; to advise the Representative, 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 Representative 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 Representative,
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 Notes 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) To
prepare a final term sheet for the Notes, containing solely a description of final terms of the Notes and the offering thereof, in the
form approved by you and attached as Schedule D hereto and to file such term sheet pursuant to, and within the time required by,
Rule 433(d).
(c) That,
unless it obtains the prior consent of the Representative, it has not made and will not make any offer relating to the Notes that would
constitute a “free writing prospectus” as defined in Rule 405 of the Rules and Regulations unless the prior written
consent of the Representative 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 Representative shall be deemed to have been given in respect of the Free Writing Prospectuses
included in Schedule C hereto and any electronic road show, if any. The Company shall furnish to the Representative, 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.
(d) If
at any time when a Prospectus relating to the Notes 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 Representative, and upon the Representative’ 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 Underwriters.
(e) 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 fifteen (15) months after the end of the Company’s current fiscal quarter, 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). The Underwriters and the Company acknowledge
and agree that the Company’s ordinary, timely-filed periodic filings with the Commission pursuant to the Exchange Act may be used
to satisfy this obligation to the extent consistent with the requirements set forth herein.
(f) To
take promptly from time to time such actions as the Representative may reasonably request to qualify the Notes for offering and sale under
the securities or Blue Sky laws of such jurisdictions (domestic or foreign) as the Representative 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 Notes 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.
(g) To
supply the Underwriters with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection
with the registration of the Notes under the Securities Act or the Registration Statement or the Prospectus, or any amendment or supplement
thereto or document incorporated by reference therein.
(h) 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 (i) the Company’s customary quarterly press release and conference call
or (ii) routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Company)
without the prior written consent of the Representative (which consent shall not be unreasonably withheld) unless in the judgment of the
Company and its counsel, and after notification to the Representatives, such press release or communication is required by law or applicable
stock exchange rules.
(i) To
apply the net proceeds from the sale of the Notes 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 thirty (30) days after the date hereof without the prior
written consent of the Representative, which may not be unreasonably withheld. The foregoing sentence shall not apply to the registration
of the Notes and the sales to the Underwriters pursuant to this Agreement.
(k) To
cooperate with the Representative 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, subject to notice of issuance, the Notes on the NYSE.
(m) Until
the Representative shall have notified the Company of the completion of the offering of the Notes, 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 Notes.
(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
Notes to be delivered at such time.
5. Payment
of Expenses.
The
Company agrees to pay, or reimburse if paid by the Underwriters, whether or not the transactions contemplated hereby are consummated or
this Agreement is terminated (unless this Agreement is terminated pursuant to Section 7): (a) the costs incident to the authorization,
issuance, sale and delivery of the Notes to the Underwriters and any taxes payable in that connection; (b) the costs incident to
the registration of the Notes 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 Underwriters incurred in connection with securing any required review by FINRA and any filings made with FINRA in an
aggregate amount not to exceed $10,000; (e) all costs and expenses incident to listing the Notes on the NYSE; (f) the fees and
expenses of the Trustee and any transfer agent, registrar or depository with respect to the Notes; all costs and expenses incident to
listing the Notes on the NYSE; (g) the fees and expenses of counsel for the Underwriters incurred in connection with qualifying the
Notes 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; (h) the expenses and application fees incurred in connection with the approval
of the Notes for book-entry transfer by DTC; (i) the reasonable fees and disbursements of counsel to the Underwriters in an aggregate
amount not to exceed $75,000 (inclusive of amounts paid under (d) and (g) above), and (j) all other costs and expenses
of the Company incident to the offering of the Notes 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 Underwriters, and the Sale of the Notes. The obligations of the Underwriters hereunder, and the closing
of the sale of the Notes, 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 reasonably be expected to 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
(or waiver by the underwriters), 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 Representative 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 which has not so been disclosed, (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 reasonably be expected to 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 having jurisdiction over the Company which would prevent the issuance or sale of the Notes or reasonably be expected to
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 Notes or reasonably be expected
to 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 NYSE or the Nasdaq Stock Market 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 war by the United
States; (iv) if there has been, in the judgment of the Representative, 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 (v) 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 Notes on the terms and in the manner contemplated in the General Disclosure
Package and the Prospectus.
(g) The
Underwriters shall have received an opinion and negative assurance letter of O’Melveny & Myers LLP, counsel for the Company,
dated the Closing Date or the Additional Closing Date, as the case may be, covering such matters as the Underwriters shall reasonably
request.
(h) The
Underwriters shall have received the favorable opinion of Duane Morris LLP, counsel for the Underwriters, dated the Closing Date or the
Additional Closing Date, as the case may be, and covering such matters as the Underwriters shall reasonably request.
(i) The
Underwriters shall have received from Deloitte & Touche LLP letters dated, respectively, the date hereof, the Closing Date and,
if applicable, the Additional Closing Date, in form and substance satisfactory to the Representative 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
Underwriters shall have received a certificate of the Chief Financial Officer of the Company, dated the Closing Date or the Additional
Closing Date, as the case may be, and covering such matters as the Underwriters shall reasonably request.
(k) The
Company and the Trustee shall have executed and delivered the Second Supplemental Indenture and the Notes.
(l) The
Notes shall have been approved for listing on the NYSE.
(m) The
Company shall have furnished to the Representative such further certificates and documents as the Representative may reasonably require
for the purpose of enabling the Underwriters to pass upon the issuance and sale of the Notes 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 Representative by notice to the Company at any time on or prior to the Closing Date and,
with respect to the Additional Notes, 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, 8 and 9 shall at all times be effective and shall survive such termination.
7. Increase
in Underwriters’ Commitments.
Subject
to Section 6 hereof, if any Underwriter shall default in its obligation to take up and pay for the Firm Notes to be
purchased by it hereunder (otherwise than for a failure of a condition set forth in Section 6 hereof) and if the aggregate
principal amount of Firm Notes which all Underwriters so defaulting shall have agreed but failed to take up and pay for does not exceed
10% of the total aggregate principal amount of Firm Notes, the non-defaulting Underwriters shall take up and pay for (in addition to the
aggregate principal amount of Firm Notes they are obligated to purchase pursuant to Section 1 hereof) the aggregate principal
amount of Firm Notes agreed to be purchased by all such defaulting Underwriters, as hereinafter provided. Such Notes shall be taken up
and paid for by such non-defaulting Underwriters in such amount or amounts as the Representative may designate with the consent of each
Underwriter so designated or, in the event no such designation is made, such Notes shall be taken up and paid for by all non-defaulting
Underwriters pro rata in proportion to the aggregate principal amount of Firm Notes set opposite the names of such non-defaulting Underwriters
in Schedule A.
Without relieving any defaulting
Underwriter from its obligations hereunder, the Company agrees with the non-defaulting Underwriters that it will not sell any Firm Notes
hereunder unless all of the Firm Notes are purchased by the Underwriters (or by substituted Underwriters selected by the Representative
with the approval of the Company or selected by the Company with the Representative’s approval).
If a new Underwriter or Underwriters
are substituted by the Representative or by the Company for a defaulting Underwriter or Underwriters in accordance with the foregoing
provision, the Company or the Representative shall have the right to postpone the time of purchase for a period not exceeding five business
days in order that any necessary changes in the General Disclosure Package and other documents that may be effected.
The
term Underwriter as used in this Agreement shall refer to and include any Underwriter substituted under this Section 7
with like effect as if such substituted Underwriter had originally been named in Schedule A.
If
the aggregate principal amount of Firm Notes which the defaulting Underwriter or Underwriters agreed to purchase exceeds 10% of the total
aggregate principal amount of Firm Notes which all Underwriters agreed to purchase hereunder, and if neither the non-defaulting Underwriters
nor the Company shall make arrangements within the five business day-period stated above for the purchase of all the Firm Notes which
the defaulting Underwriter or Underwriters agreed to purchase hereunder, then this Agreement shall terminate without further act or deed
and without any liability on the part of the Company to any non-defaulting Underwriter (except as provided in Section 8)
and without any liability on the part of any non-defaulting Underwriter to the Company. Nothing in this paragraph, and no action taken
hereunder, shall relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
8. Indemnification
and Contribution.
(a) The
Company agrees to indemnify and hold harmless each 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 such 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), joint or several, to which such 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 such 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 Underwriters furnished
to the Company by or on behalf of the Underwriters 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 each Underwriter
Indemnified Party.
(b) Each
Underwriter severally and not jointly 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 such 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 such 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) Without
limitation and in addition to its obligation under the other subsections of this Section 8, the Company agrees to indemnify
and hold harmless D.A. Davidson, in its capacity as the QIU, its affiliates, directors, officers, employees, agents and each person, if
any, who controls the QIU within the meaning of the Securities Act or the Exchange Act from and against any loss, claim, damage, liabilities
or expense, as incurred, arising out of or based upon the QIU’s acting as a “qualified independent underwriter” (within
the meaning of Rule 5121 of the FINRA’s Securities Offering and Trading Standards and Practices Rules) in connection with the
offering contemplated by this Agreement, and agrees to reimburse each such indemnified party for any legal or other expense reasonably
incurred by them in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability,
expense or action; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage,
liability or expense results from the gross negligence or willful misconduct of the QIU.
(d) Promptly
after receipt by an indemnified party under this Section 8 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 8, 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 8 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 8. 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 8 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 8(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 8 consist of any Underwriter Indemnified Party or by the Company if the indemnified parties under this Section 8
consist of any Company Indemnified Parties. Subject to this Section 8(d), the amount payable by an indemnifying party under Section 8
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 8 (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 indemnifying party shall
have not notified indemnified party of its objection to such settlement and (iii) such indemnifying party shall not have reimbursed
such indemnified party in accordance with such request prior to the date of such settlement.
(e) If
the indemnification provided for in this Section 8 is unavailable or insufficient to hold harmless an indemnified party under
Section 8(a), Section 8(b) or Section 8(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 Underwriters
on the other hand from the Offering, or (ii) if the allocation provided by clause (i) of this Section 8(e) 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 8(e) but also the relative fault of the Company on the one hand and each of the respective Underwriters
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 Underwriters 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 Underwriters 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 Underwriters
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 Underwriters agree that it would not be just and equitable if contributions pursuant to this Section 8(e) 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 8(e) shall be deemed to include, for purposes of this Section 8(e),
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 8(e), no Underwriter shall
not be required to contribute any amount in excess of the total compensation received by such Underwriter hereunder less the amount of
any damages which such 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.
9. Absence
of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) the
Underwriters’ responsibility to the Company is solely contractual in nature, the Underwriters have been retained solely to act as
underwriters in connection with the Offering and no fiduciary, advisory or agency relationship between the Company and any Underwriter
has been created in respect of any of the transactions contemplated by this Agreement, irrespective of whether such Underwriter has advised
or is advising the Company on other matters;
(b) the
price of the Notes set forth in this Agreement was established by the Company following discussions and arms-length negotiations with
the Underwriters, 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) no
Underwriter has advised, and no Underwriter is 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 no Underwriter shall have any responsibility or liability to the Company with
respect thereto;
(e) no
Underwriter has or will be rendering an opinion to the Company as to the fairness of the terms of the offering of the Notes;
(f) it
has been advised that each 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 no Underwriter has an 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 any Underwriter for breach of fiduciary duty or alleged
breach of fiduciary duty and agrees that each 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.
10. Successors;
Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the Underwriters, 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 Underwriters shall be for benefit of the Company Indemnified Parties.
11. Survival
of Indemnities, Representations, Warranties, Etc. The respective indemnities, covenants, agreements, representations, warranties
and other statements of the Company and the Underwriters, 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 Underwriters, the Company
or any person controlling any of them and shall survive delivery of and payment for the Notes. Notwithstanding any termination of this
Agreement, the indemnity and contribution agreements contained in Section 8 and the covenants, representations, warranties
set forth in this Agreement shall not terminate and shall remain in full force and effect at all times.
12. Notices.
All statements, requests, notices and agreements hereunder shall be in writing, and:
(a) if
to the Underwriters, 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 Babcock & Wilcox Enterprises, Inc., Attention:
Lou Salamone, 1200 East Market Street, Akron, Ohio 44305, with a copy to O’Melveny & Meyers, LLP, Attn: Brophy Christensen
and Eric Sibbitt, Two Embarcadero Center, 28th Floor, San Francisco, California 94111.
13. Definition
of Certain Terms. For purposes of this Agreement “business day” means any day on which the New York Stock Exchange
is open for trading.
14. Governing
Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
15. 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 first, second and fourth paragraphs relating to stabilization transactions under the section entitled
“Underwriting – Price Stabilization; Short Positions.”
16. 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.
17. 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 Representative.
18. 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.
19. Electronic
Signatures. The words “execution,” “signed,” “signature,” “delivery,” and
words of like import in or relating to this Agreement or any document to be signed in connection with this Agreement shall be deemed to
include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect,
validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system,
as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.
[Signature Page Follows]
If the foregoing correctly
sets forth the understanding between the Company and the several Underwriters, 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 Underwriters, severally.
| |
Very truly yours,
BABCOCK & WILCOX ENTERPRISES, INC. |
| |
|
| |
By: |
/s/ Louis Salamone |
| |
|
Name: Louis Salamone |
| |
|
Title: Chief Financial Officer |
B. RILEY SECURITIES, INC.
For themselves and as Representative
of the several Underwriters named
in Schedule A hereto
Accepted and agreed to as of the date first above
written:
| B. RILEY SECURITIES, INC. |
|
| |
|
| By: |
/s/ Patrice McNicoll |
|
| |
Name: |
Patrice McNicoll |
|
| |
Title: |
Co-Head of Investment Banking |
|
SCHEDULE
A
Underwriters
| Underwriters | |
Aggregate
Principal
Amount of
Securities to
be Purchased | |
| B. Riley Securities, Inc. | |
$ | 78,050,000.00 | |
| D.A. Davidson & Co. | |
$ | 7,000,000.00 | |
| Janney Montgomery Scott LLC | |
$ | 12,600,000.00 | |
| Ladenburg Thalmann & Co. Inc. | |
$ | 7,700,000.00 | |
| William Blair & Company, L.L.C. | |
$ | 4,550,000.00 | |
| EF Hutton, division of Benchmark Investments, LLC | |
$ | 5,950,000.00 | |
| Aegis Capital Corp. | |
$ | 2,100,000.00 | |
| Boenning & Scattergood Inc. | |
$ | 2,800,000.00 | |
| Brownstone Investment Group, LLC | |
$ | 4,550,000.00 | |
| Huntington Securities, Inc. | |
$ | 1,050,000.00 | |
| InspereX LLC | |
$ | 9,800,000.00 | |
| Wedbush Securities Inc. | |
$ | 1,750,000.00 | |
| B.C. Ziegler & Company | |
$ | 2,100,000.00 | |
| Total | |
$ | 140,000,000.00 | |
SCHEDULE
B
Pricing Information
The public offering price for the Notes shall
be 100% of the aggregate principal amount.
The purchase price for the Notes to be paid by
the several Underwriters shall be 96% of the aggregate principal amount thereof, except with respect to a $10 million aggregate principal
amount of Notes purchase by the pension plan of the Company, for which the purchase price shall be 100% of the aggregate principal amount
thereof.
SCHEDULE C
Free Writing Prospectuses
Final term sheet as prepared pursuant to Section 4(b) hereto
and filed as an Issuer Free Writing Prospectus by the Company with the Commission on December 8, 2021.
SCHEDULE D
Issuer Free Writing Prospectus
Filed pursuant to Rule 433
Registration No. 333-260854
BABCOCK &
WILCOX ENTERPRISES, INC.
US $140,000,000
6.50%
Senior Notes Due 2026
Final Term Sheet
| Issuer: |
Babcock & Wilcox Enterprises, Inc. |
| Securities: |
6.50% Senior Notes Due 2026 (the “Notes”) |
| Type: |
SEC Registered |
| Trade Date: |
December 9, 2021 |
| Settlement Date: |
December 13, 2021 |
| Listing: |
Expected NYSE “BWNB” |
| Initial aggregate principal amount: |
$140,000,000 |
| Option: |
$21,000,000 |
| Maturity Date: |
December 31, 2026 |
| Rating:* |
The Notes have received a “BB+” rating from Egan-Jones Ratings Co., an independent, unaffiliated rating agency. Ratings are not a recommendation to purchase, hold or sell notes, inasmuch as the ratings do not comment as to market price or suitability for a particular investor. The ratings are based upon current information furnished to the rating agency by the Issuer and information obtained by the rating agency from other sources. The ratings are only accurate as of the date thereof and may be changed, superseded or withdrawn as a result of changes in, or unavailability of, such information, and therefore a prospective purchaser should check the current ratings before purchasing the Notes. Each rating should be evaluated independently of any other rating. |
| Annual Coupon: |
6.50%, paid quarterly in arrears |
| Interest Payment Dates: |
March 31, June 30, September 30 and December 31 of each year, commencing March 31, 2022, and at maturity. |
| Price to the Public: |
100% |
| Day Count: |
30/360 |
| Affiliate Participation: |
In connection with this offering, certain of the Issuer’s officers including Kenny Young, its Chief Executive Officer, and Lou Salamone, its Chief Financial Officer, have indicated an interest in purchasing Notes at the offering price. |
| Optional Redemption: |
On any date prior to October 2, 2026 (the “Par Call Date”), the Issuer may, at its option, redeem the Notes for cash, in whole or in part, at any time or from time to time, at a redemption price equal to (i) 100% of the principal amount of the Notes to be redeemed, plus (ii) a Make-Whole Amount (as defined in the preliminary prospectus supplement, dated December 6, 2021), if any, plus (iii) accrued and unpaid interest to, but excluding, the date of redemption.
On or after the Par Call Date, the Issuer may, at its option, redeem the Notes for cash, in whole or in part, at any time or from time to time, at a redemption price equal to (i) 100% of the principal amount of the Notes to be redeemed, plus (ii) accrued and unpaid interest to, but excluding, the date of redemption. |
| Minimum Denomination/Multiples: |
$25.00/$25.00 |
| CUSIP/ISIN: |
05614L 506/US05614L5066 |
| Book-Running Managers: |
B. Riley Securities, D.A. Davidson & Co., Janney Montgomery Scott, Ladenburg Thalmann, William Blair & Co., EF Hutton, division of Benchmark Investments, LLC |
| Co-Managers: |
Aegis Capital Corp., Boenning & Scattergood, Brownstone Investment Group, Huntington Capital Markets, InspereX, Wedbush Securities, Ziegler |
This communication is intended for the sole
use of the person to whom it is provided by the issuer.
The issuer has filed a registration statement
(including a base prospectus dated November 22, 2021) and a preliminary prospectus supplement dated December 6, 2021 with the
Securities and Exchange Commission (“SEC”) for the offering to which this communication relates. Before you invest, you should
read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information
about the issuer and this offering.
You
may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer,
any underwriter or any dealer participating in the offering will arrange to send you the prospectus and related preliminary prospectus
supplement if you request them from B. Riley Securities, Inc. by calling (703) 312-9580 or by emailing prospectuses@brileyfin.com.
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR
BELOW ARE NOT APPLICABLE TO THIS COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES WERE AUTOMATICALLY GENERATED
AS A RESULT OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG OR ANOTHER E-MAIL SYSTEM.
*
Note: A rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time.
Each of the ratings above should be evaluated independently of any other rating.
