Form 8-K
8-K — Babcock & Wilcox Enterprises, Inc.
Accession: 0001104659-26-063192
Filed: 2026-05-18
Period: 2026-05-14
CIK: 0001630805
SIC: 3433 (HEATING EQUIPMENT, EXCEPT ELECTRIC & WARM AIR FURNACES)
Item: Entry into a Material Definitive Agreement
Item: Regulation FD Disclosure
Item: Financial Statements and Exhibits
Documents
8-K — tm2614762d1_8k.htm (Primary)
EX-1.1 — EXHIBIT 1.1 (tm2614762d1_ex1-1.htm)
EX-5.1 — EXHIBIT 5.1 (tm2614762d1_ex5-1.htm)
EX-99.1 — EXHIBIT 99.1 (tm2614762d1_ex99-1.htm)
GRAPHIC (tm2614762d1_ex99-1img01.jpg)
GRAPHIC (tm2614762d1_ex5-1img001.jpg)
XML — IDEA: XBRL DOCUMENT (R1.htm)
8-K — FORM 8-K
8-K (Primary)
Filename: tm2614762d1_8k.htm · Sequence: 1
false
0001630805
DE
OH
0001630805
2026-05-14
2026-05-14
0001630805
us-gaap:CommonStockMember
2026-05-14
2026-05-14
0001630805
BW:SeriesA7.75PercentageCumulativePerpetualPreferredStockMember
2026-05-14
2026-05-14
0001630805
BW:SeniorNotes6.50PercentageDue2026Member
2026-05-14
2026-05-14
iso4217:USD
xbrli:shares
iso4217:USD
xbrli:shares
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15 (d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
May 14, 2026
BABCOCK & WILCOX ENTERPRISES,
INC.
(Exact name of registrant as specified in its charter)
DELAWARE
001-36876
47-2783641
(State or other jurisdiction of incorporation)
(Commission File Number)
(IRS Employer Identification No.)
1200 EAST MARKET STREET,
SUITE 650
AKRON, OHIO
44305
(Address of principal executive offices)
(Zip Code)
Registrant’s Telephone Number, including
Area Code: (330) 753-4511
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title
of Each Class
Trading
Symbol
Name
of Each Exchange on which
Registered
Common stock, $0.01 par value per share
BW
New York Stock Exchange
7.75% Series A Cumulative Perpetual Preferred Stock
BW PRA
New York Stock Exchange
6.50% Senior Notes due 2026
BWNB
New York Stock Exchange
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities
Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging growth company ¨
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.01 Entry into a Material Definitive Agreement
On May 14, 2026, Babcock & Wilcox Enterprises,
Inc., a Delaware corporation (the “Company”) entered into an an underwriting agreement, dated May 14, 2026 (the “Underwriting
Agreement”), by and among the Company and B. Riley Securities, Inc., as representative of the several underwriters (the “Underwriters”),
relating to its previously announced underwritten offering (the “Offering”) of 10,810,811 shares of the Company’s common
stock, par value $0.01 per share (“Common Stock”). In addition, pursuant to the Underwriting Agreement, the Company granted
the Underwriters an option, exercisable for 30 days, to purchase up to 1,621,621 additional shares of Common Stock. The Offering was
consummated on May 18, 2026. At the closing, the Company issued 12,432,432 shares of Common Stock, inclusive of 1,621,621 shares of Common
Stock issued pursuant to the full exercise of the Underwriters’ option to purchase Common Stock.
The Underwriting Agreement contains customary
representations, warranties and covenants of the Company, customary conditions to closing, indemnification obligations of the Company
and the Underwriters, including for liabilities under the Securities Act of 1933 (the “Securities Act”), other obligations
of the parties and termination provisions.
The foregoing description of the material terms
of the Underwriting Agreement is qualified in its entirety by reference to the full text of the Underwriting Agreement, a copy of which
is attached hereto as Exhibit 1.1 and is incorporated herein by reference.
The Offering was made pursuant to the Company’s
shelf registration statement on Form S-3 (Registration No. 333-283368) initially filed with the Securities and Exchange Commission (the
“Commission”) on November 21, 2024 and declared effective by the Commission on April 8, 2025 (the “Registration Statement”),
including the prospectus forming a part of the Registration Statement, as supplemented by a preliminary prospectus supplement, dated May
14, 2026, and a final prospectus supplement, dated May 14, 2026, each filed with the SEC pursuant to Rule 424(b) under the Securities
Act.
Item 7.01 Regulation
FD Disclosure
On May 15, 2026, the Company issued a press release
announcing the pricing of the offering of Common Stock. A copy of the press release is filed as Exhibit 99.1 to this report and is incorporated
herein by reference.
The information in this Item 7.01, including Exhibits 99.1, shall not be deemed “filed” for purposes of Section 18 of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section,
and shall not be incorporated by reference into any filing of the Company under the Securities Act of 1933, as amended, or the Exchange
Act, regardless of any general incorporation language in such filing, except as shall be expressly set forth by specific reference in
any such filing.
This Current Report on Form 8-K does not constitute
an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of any securities in any state or
jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws
of any such state or jurisdiction. Any offers, solicitations of offers to buy, or any sales of securities will be made in accordance with
the registration requirements of the Securities Act.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits.
Exhibit No.
Description
1.1
Underwriting Agreement, dated May 14, 2026
5.1
Opinion of O’Melveny & Myers LLP
23.1
Consent of O’Melveny & Myers LLP (included in Exhibit 5.1)
99.1
Pricing Press Release dated May 15, 2026
104
The cover page from this Current Report on Form 8-K formatted in Inline XBRL
Signatures
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
BABCOCK & WILCOX ENTERPRISES, INC.
May 18, 2026
By:
/s/ Cameron Frymyer
Cameron Frymyer
Executive Vice President and Chief Financial Officer
(Principal Accounting Officer and Duly Authorized Representative)
EX-1.1 — EXHIBIT 1.1
EX-1.1
Filename: tm2614762d1_ex1-1.htm · Sequence: 2
Exhibit 1.1
Execution Version
BABCOCK &
WILCOX ENTERPRISES, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
May 14,
2026
B. Riley Securities, Inc.
As representative of the several underwriters
c/o B. Riley Securities, Inc.
1655 Fort Meyer Drive, 12th Floor
Arlington, VA, 22209
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”), 10,810,811 shares of the Company’s common stock
(the “Firm Shares”), par value $0.01 per share (the “Common Shares”). In addition, the Company
proposes to grant to the Underwriters the option to purchase from the Company up to an additional 1,621,621 Common Shares (the “Option
Shares”). The Firm Shares and, if and to the extent such option is exercised, the Option Shares are hereinafter collectively
referred to as the “Shares.”
The Company and the 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 number of Firm Shares 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 number of Firm Shares
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 Shares to be purchased by each of them, all or a portion
of the Option Shares, at the same Purchase Price to be paid by the Underwriters for the Firm Shares (without giving effect to any accrued
interest from the Closing Date to the Additional Closing Date). This option may be exercised by the 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 number
of Option Shares as to which the option is being exercised and (ii) the date, time and place at which such Option Shares are to
be delivered (such date, the “Additional Closing Date” and such time of such date, the “Additional Time of
Purchase”); provided, however, that the Additional Time of Purchase may be simultaneous with, but shall not be
earlier than the Time of Purchase (as defined below) and shall not be earlier than two nor later than five full business days after delivery
of such notice of exercise. The aggregate number of Option Shares to be sold to each Underwriter shall be the aggregate number which
bears the same proportion to the total aggregate number of Option Shares being purchased as the number of Firm Shares set forth opposite
the name of such Underwriter on Schedule A hereto bears to the total aggregate number of Firm Shares, 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. 333-283368),
which was declared effective by the Commission as of April 8, 2025 (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 Shares (the “Prospectus Supplement”)
and has or will file such Prospectus Supplement with the Commission pursuant to Rule 424(b) of the Rules and Regulations.
The term “Prospectus” as used in this Agreement means the Base Prospectus, as it may be supplemented by the Prospectus
Supplement, in the forms in which such Base Prospectus or Prospectus Supplement has been or is to be filed with the Commission pursuant
to Rule 424(b) of the Rules and Regulations, except that if any revised prospectus or prospectus supplement shall be
provided to the Underwriters by the Company for use in connection with the offering and sale of the Shares (the “Offering”)
which differs from the Prospectus (whether or not such revised prospectus or prospectus supplement is required to be filed by the Company
pursuant to Rule 424(b) of the Rules and Regulations), the term “Prospectus” shall refer to such
revised prospectus or prospectus supplement, as the case may be, from and after the time it is first provided to the 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 5:35 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 Shares in the form filed or required to be filed with the Commission or, if not required
to be filed, in the form retained in the Company’s records pursuant to Rule 433(g) of the Rules and Regulations.
“Limited
Use Free Writing Prospectuses” means any Issuer Free Writing Prospectus that is not a General Use Free Writing Prospectus.
“Pricing
Prospectus” means the Base Prospectus as amended and supplemented immediately prior to the Applicable Time, including any document
incorporated by reference therein and any prospectus supplement deemed to be a part thereof.
(c) 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 Shares 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 (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 corporate right, power and authority to execute and deliver, and perform its obligations under this Agreement.
(j) This
Agreement has been duly authorized, executed and delivered by the Company.
(k) The
Shares have been duly authorized by the Company and when the Shares are issued and delivered in accordance with the terms of this Agreement,
Shares will be validly issued and outstanding, fully paid and non-assessable, not subject to any preemptive or other similar rights,
will conform as to legal matters in all material respects to the descriptions thereof contained in the Registration Statement, the Prospectus
and the General Disclosure Package, and will entitle the holders of the Shares to the rights and benefits provided therein.
(l) All
issued and outstanding shares of capital stock of the Company outstanding prior to the issuance of the Firm Shares 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.
(m) 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.
(n) None
of (1) the execution, delivery and performance of this Agreement by the Company and (2) the issuance and sale of the Shares
by the Company (with or without notice or lapse of time or both) (x) conflicts with or results in a breach or violation of any
of the terms or provisions of, constitutes a default under, gives rise to any right of termination or other right or the cancellation
or acceleration of any right or obligation or loss of a benefit under or pursuant to, any 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 or has been disclosed to the Agents or has been waived.
(o) No
consent, approval, authorization or order of, or qualification with, any governmental body or agency or self-regulatory authority is
required for the performance by the Company of its obligations under this Agreement, except as have been obtained or as may be required
by (1) the securities or Blue Sky laws of the various states, (2) the bylaws, rules and regulations of the Financial
Industry Regulatory Authority, Inc. (“FINRA”) or the New York Stock Exchange (“NYSE”).
(p) Each
of BDO USA, P.C. (“Current Auditors”) and Deloitte & Touche LLP (“Prior Auditors”), 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).
(q) 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.
(r) 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.
(s) 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.
(t) 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.
(u) 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.
(v) The
Company and its Subsidiaries have good and marketable title to all real and personal property described in the Registration Statement
or 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.
(w) 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.
(x) 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.
(y) 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.
(z) 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.
(aa) 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.
(bb) 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.
(cc) 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.
(dd) 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 Agreements, dated as of April 30, 2019, by and among the Company
and certain investors party thereto.
(ee) 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.
(ff) 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.
(gg) 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.
(hh) 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.
(ii) 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.
(jj) 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.
(kk) 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.
(ll) 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.
(mm) 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 Shares.
(nn) 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.
(oo) Neither
the Company nor, to the Company’s knowledge, any of its respective directors, officers or affiliates has taken, directly or indirectly,
any action designed to or that might be reasonably expected to cause or result in stabilization or manipulation of the price of any “reference
security” (as defined in Rule 100 of Regulation M under the 1934 Act (“Regulation M”)), whether to facilitate
the sale or resale of the Shares or otherwise, and has taken no action which would directly or indirectly violate Regulation M.
(pp) The
Company and its Subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software, websites,
applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform in all material
respects as required in connection with the operation of the business of the Company and its Subsidiaries as currently conducted, to
the knowledge of the Company, free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants.
The Company and its Subsidiaries have implemented and maintained commercially reasonable physical, technical and administrative controls,
policies, procedures, and safeguards to maintain and protect their material confidential information and the integrity, continuous operation,
redundancy and security of all IT Systems and data, including “Personal Data,” used in connection with their businesses.
“Personal Data” means (i) a natural person’s name, street address, telephone number, e-mail address, photograph,
social security number or tax identification number, driver’s license number, passport number, credit card number, bank information,
or customer or account number; (ii) any information which would qualify as “personally identifying information” under
the Federal Trade Commission Act, as amended; and (iii) any other piece of information that allows the identification of such natural
person, or his or her family. To the knowledge of the Company, there have been no breaches, violations, outages or unauthorized uses
of or accesses to same, except for those that have been remedied without material cost or liability or the duty to notify any other person,
nor any incidents under internal review or investigations relating to the same. The Company and its Subsidiaries are presently in material
compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or
governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems
and Personal Data and to the protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification.
(qq) Except
as otherwise disclosed in the Prospectus, the Company and its Subsidiaries and any “employee benefit plan” (as defined under
the Employee Retirement Income Security Act of 1974, as amended, and the regulations and published interpretations thereunder (collectively,
“ERISA”)) established or maintained by the Company, its subsidiaries or, to the Company’s knowledge, their “ERISA
Affiliates” (as defined below) are in compliance in all material respects with ERISA. “ERISA Affiliate” means, with
respect to the Company or any of its Subsidiaries, any member of any group of organizations described in Sections 414(b), (c), (m) or
(o) of the Internal Revenue Code of 1986, as amended, and the regulations and published interpretations thereunder (the “Code”)
of which the Company or such Subsidiary is a member. No “reportable event” (as defined under ERISA) has occurred or is reasonably
expected to occur with respect to any “employee benefit plan” established or maintained by the Company, its Subsidiaries
or, to the Company’s knowledge, any of their ERISA Affiliates. No “employee benefit plan” established or maintained
by the Company, its Subsidiaries or, to the Company’s knowledge, any of their ERISA Affiliates, if such “employee benefit
plan” were terminated, would have any “amount of unfunded benefit liabilities” (as defined under ERISA). Neither the
Company, its subsidiaries nor, to the Company’s knowledge, any of their ERISA Affiliates has incurred or reasonably expects to
incur any liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “employee benefit
plan” or (ii) Sections 412, 4971, 4975 or 4980B of the Code. Each “employee benefit plan” established or maintained
by the Company, its Subsidiaries or, to the Company’s knowledge, any of their ERISA Affiliates that is intended to be qualified
under Section 401(a) of the Code is so qualified and nothing has occurred, whether by action or failure to act, which would
reasonably be expected to cause the loss of such qualification.
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 Shares shall be made to the Company by Federal Funds wire transfer against delivery of such Firm Shares
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 May 18, 2026 (such date, the “Closing Date”).
The time at which such payment and delivery are to be made is hereinafter sometimes called the “Time of Purchase.”
Electronic transfer of the Firm Shares shall be made at the Time of Purchase in such names and in such denominations as the Representative
shall specify.
(b) Payment
of the purchase price for the Option Shares shall be made at the Additional Time of Purchase in the same manner and at the same office
and time of day as the payment for the Firm Shares. Electronic transfer of the Option Shares shall be made at the Additional Time of
Purchase in such names and in such denominations as the 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, 22
Vanderbilt, 335 Madison Avenue, 23rd Floor, New York, NY 10017.
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 Shares for offering or
sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement, the General Disclosure Package or the Prospectus or for additional information;
and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Issuer Free Writing Prospectus
or the Prospectus or suspending any such qualification, and promptly to use its reasonable best efforts to obtain the withdrawal of such
order.
(b) That,
unless it obtains the prior consent of the Representative, it has not made and will not make any offer relating to the Shares that would
constitute a “free writing prospectus” as defined in Rule 405 of the Rules and Regulations unless the prior written
consent of the 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.
(c) If
at any time when a Prospectus relating to the Shares is required to be delivered under the Securities Act, any event occurs or condition
exists as a result of which the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were
made, not misleading, or the Registration Statement, as then amended or supplemented, would include any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary
at any time to amend or supplement any Registration Statement or the Prospectus to comply with the Securities Act or the Exchange Act,
the Company will promptly notify the Representative, and 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.
(d) To
the extent not available on the Commission’s EDGAR system, to make generally available to its security holders as soon as practicable,
but in any event not later than 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.
(e) To
take promptly from time to time such actions as the Representative may reasonably request to qualify the Shares for offering and sale
under the securities or Blue Sky laws of such jurisdictions (domestic or foreign) as the 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 Shares in such jurisdictions;
provided that the Company and its Subsidiaries shall not be obligated to qualify as foreign corporations in any jurisdiction in
which they are not so qualified or to file a general consent to service of process in any jurisdiction.
(f) To
supply the 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 Shares under the Securities Act or the Registration Statement or the Prospectus, or any amendment or supplement
thereto or document incorporated by reference therein.
(g) Prior
to the Time of Purchase and the Additional Time of Purchase, if any, not to issue any press release or other communication directly or
indirectly or hold any press conference (other than (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.
(h) To
apply the net proceeds from the sale of the Shares as set forth in the Registration Statement, the General Disclosure Package and the
Prospectus under the heading “Use of Proceeds.”
(i) 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.
(j) During
the period commencing on and including the date hereof and continuing through and including the 60th day following the date of the Prospectus
(such period, as extended as described below, being referred to herein as the “Lock-up Period”), the Company will
not, without the prior written consent of the Representative (which consent may be withheld in its sole discretion), directly or indirectly:
(i) sell, offer to sell, contract to sell or lend any Shares or Related Securities (as defined below); (ii) effect any short
sale, or establish or increase any “put equivalent position” (as defined in Rule 16a-1(h) under the Exchange
Act) or liquidate or decrease any “call equivalent position” (as defined in Rule 16a-1(b) under the Exchange
Act) of any Shares or Related Securities; (iii) pledge, hypothecate or grant any security interest in any Shares or Related Securities;
(iv) in any other way transfer or dispose of any Shares or Related Securities; (v) enter into any swap, hedge or similar
arrangement or agreement that transfers, in whole or in part, the economic risk of ownership of any Shares or Related Securities, regardless
of whether any such transaction is to be settled in securities, in cash or otherwise; (vi) announce the offering of any Shares
or Related Securities; (vii) submit or file any registration statement under the Securities Act in respect of any Shares or Related
Securities (other than as contemplated by this Agreement with respect to the Shares and the resale registration statement to be filed
in connection with the Registration Rights Agreement dated November 4, 2025); (viii) effect a reverse stock split, recapitalization,
share consolidation, reclassification or similar transaction affecting the outstanding Shares; or (ix) publicly announce the intention
to do any of the foregoing; provided, however, that the Company may (A) effect the transactions contemplated hereby, (B) issue
Shares or options to purchase Shares, or issue Shares upon exercise of options, pursuant to any stock option, stock bonus or other stock
plan or arrangement described in the Registration Statement and the Prospectus, (C) file a registration statement on Form S-8
or a successor form thereto to register securities issuable by the Company upon the exercise of options or other awards granted by the
Company in connection with the Company’s equity incentive plans disclosed in the Registration Statement, (D) adopt a new
equity incentive plan, and file a registration statement on Form S-8 under the Securities Act to register the offer and sale of
securities to be issued pursuant to such new equity incentive plan, and issue securities pursuant to such new equity incentive plan (including,
without limitation, the issuance of shares of Common Stock upon the exercise of options or other securities issued pursuant to such new
equity incentive plan), (E) enter into an agreement providing for the issuance by the Company of shares of Common Stock or any
security convertible into or exercisable for shares of Common Stock in connection with the acquisition, joint venture, collaboration,
commercial relationship or other strategic transaction or any debt financing transaction, or license by the Company or any of its Subsidiaries
of the securities, business, property or other assets of another person or entity or pursuant to an employee benefit plan assumed by
the Company in connection with such acquisition, joint venture or license and the issuance of any such securities pursuant to any such
agreement, or the issuance of any such securities pursuant to any such agreement; provided that in the case of clause (E), the aggregate
number of shares of Common Stock that the Company may sell or issue pursuant to clause (E) shall not exceed 5% of the total number
of shares of the Company’s Common Stock issued and outstanding immediately following the issuance and sale of the Firm Shares pursuant
hereto and all recipients of shares of Common Stock or any security convertible into or exercisable for shares of Common Stock shall
enter into a “lock-up” agreement substantially in the form of Schedule D hereto, (F) issue Common Stock pursuant
to the conversion or exchange of securities or the exercise of options or warrants (including net exercise), which securities, options,
or warrants are outstanding on the date hereof and described in the General Disclosure Package, (G) issue securities pursuant to
agreements entered into and publicly disclosed prior to the date of this Agreement and (H) issue Common Stock if, during the Lock-up
Period, the official closing price of the Common Stock on the NYSE (as reflected on NYSE.com) of the Common Stock is greater than or
equal to 125% of the public offering price as identified in Schedule B for five (5) of any 10 consecutive business days.
For purposes of the foregoing, “Related Securities” shall mean any options or warrants or other rights to acquire
Shares or any securities exchangeable or exercisable for or convertible into Shares, or to acquire other securities or rights ultimately
exchangeable or exercisable for, or convertible into, Shares.
(k) To
use its reasonable best efforts to list, subject to notice of issuance, the Shares on the NYSE.
(l) Until
the Representative shall have notified the Company of the completion of the offering of the Shares, the Company will not take directly
or indirectly any action designed, or that might reasonably be expected to cause or result in, or that will constitute, stabilization
or manipulation of the price of any security of the Company to facilitate the sale or resale of any of the Shares.
DM3\22603110.2
(m) To
use its reasonable best efforts to do and perform all things required to be done or performed under this Agreement by the Company prior
to the Time of Purchase or the Additional Time of Purchase, as applicable and to satisfy all conditions precedent to the delivery of
the Shares to be delivered at such time.
5. Payment
of Expenses.
The
Company agrees to pay, or reimburse if paid by the Underwriters with the Company’s prior written consent, 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 Shares to the Underwriters and any taxes payable
in that connection; (b) the costs incident to the registration of the Shares under the Securities Act; (c) the costs incident
to the preparation, printing and distribution of the Registration Statement, the Base Prospectus, any Issuer Free Writing Prospectus,
the General Disclosure Package, the Prospectus, any amendments, supplements and exhibits thereto or any document incorporated by reference
therein; (d) the reasonable and documented fees and expenses of counsel to the 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 Shares on the NYSE; (f) the fees and expenses of the transfer agent, registrar or depository with respect
to the Shares; (g) the fees and expenses of counsel for the Underwriters incurred in connection with qualifying the Shares under
the securities laws of the several jurisdictions as provided in Section 4(e) and of preparing, printing and
distributing wrappers and blue sky memoranda in an aggregate amount not to exceed $5,000; (h) the expenses and application fees
incurred in connection with the approval of the Shares for book-entry transfer by DTC; (i) the reasonable and documented out-of-pocket
fees and disbursements of counsel to the Underwriters in connection with the transactions contemplated in this Agreement in an aggregate
amount not to exceed $150,000; and (j) all other costs and expenses of the Company incident to the offering of the Shares by, or
the performance of the obligations of, the Company under this Agreement (including, without limitation, the fees and expenses of the
Company’s counsel and the Company’s independent accountants and the travel and other reasonable expenses incurred by Company
personnel in connection with any “road show”).
6. Conditions
to the Obligations of the Underwriters, and the Sale of the Shares. The obligations of the Underwriters hereunder, and the closing
of the sale of the Shares, are subject to the accuracy, when made and as of the Applicable Time and at the Time of Purchase or the Additional
Time of Purchase, as the case may be, of the representations and warranties of the Company contained herein (except for inaccuracies
that would not 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 Shares 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 Shares 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 reasonable 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 Representative, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the
manner contemplated in the General Disclosure Package and the Prospectus.
(g) The
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 BDO USA, P.C. 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 date hereof, 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
“lock-up” agreements, each substantially in the form of Schedule D hereto, between the Representative and certain
stockholders, officers and directors of the Company listed on Schedule E hereto, relating to restrictions on sales and certain
other dispositions of shares of Common Stock or certain other securities, delivered to the Representative on or before the date hereof,
shall be in full force and effect on the Closing Date.
(l) 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 Shares as herein contemplated.
If
any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may
be terminated in the absolute discretion of the Representative by notice to the Company at any time on or prior to the Closing Date and,
with respect to the Option Shares, at any time on or prior to the applicable Additional Closing Date, which termination shall be without
liability on the part of any party to any other party (except to the extent provided in Section 8 hereof), except that Sections
5, 6, 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 Shares to
be purchased by it hereunder (otherwise than for a failure of a condition set forth in Section 6 hereof) and if the aggregate
number of Firm Shares which all Underwriters so defaulting shall have agreed but failed to take up and pay for does not exceed 10% of
the total aggregate number of Firm Shares, the non-defaulting Underwriters shall take up and pay for (in addition to the aggregate number
of Firm Shares they are obligated to purchase pursuant to Section 1 hereof) the aggregate number of Firm Shares agreed to
be purchased by all such defaulting Underwriters, as hereinafter provided. Such Shares 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 Shares shall be taken up and paid for by all non-defaulting Underwriters pro rata in proportion
to the aggregate number of Firm Shares 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 Shares
hereunder unless all of the Firm Shares 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 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 number of Firm Shares which the defaulting Underwriter or Underwriters agreed to purchase exceeds 10% of the total aggregate
number of Firm Shares 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 Shares 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 (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 document incorporated by reference therein, 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 or document incorporated by reference
therein, a material fact required to be stated therein or necessary to make the statements therein not misleading, and shall reimburse
the Underwriter Indemnified Party promptly upon demand for any documented out-of-pocket 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 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 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 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. 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) 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; 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 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 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 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 and documented out-of-pocket 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 Underwriters 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(c), 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 and documented out-of-pocket 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.
(d) If
the indemnification provided for in this Section 8 is unavailable or insufficient to hold harmless an indemnified party
under Section 8(a) or Section 8(b), 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(d) 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(d) 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(d) 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(d) shall be deemed to include, for purposes of this
Section 8(d), any legal or other expenses reasonably incurred by such indemnified party in connection with investigating,
preparing to defend or defending against or appearing as a third party witness in respect of, or otherwise incurred in connection with,
any such loss, claim, damage, expense, liability, action, investigation or proceeding. Notwithstanding the provisions of this Section 8(d),
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 Shares 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 Shares;
(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 from an
alleged breach of fiduciary duty in connection with the offering of the Securities.
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 Shares. 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., 1655 Fort Meyer
Drive, 12th Floor, Arlington, VA, 22209, Attention: Syndicate Department, with a copy to Duane Morris LLP Attn: James T. Seery, 22 Vanderbilt,
335 Madison Avenue, 23rd Floor, New York, NY 10017.
(b) if
to the Company, shall be delivered or sent by mail, overnight courier or email to Babcock & Wilcox Enterprises, Inc.,
Attention: Cameron Frymyer, Executive Vice President and Chief Financial Officer, 1200 East Market Street, Akron, Ohio 44305, with a
copy to O’Melveny & Myers, LLP, Attn: Brophy Christensen and Jeeho M. Lee, 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 NYSE is open for
trading.
14. Governing
Law; Submission to Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of
New York. Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby shall
be instituted in (i) the federal courts of the United States of America located in the City and County of New York, Borough of
Manhattan or (ii) the courts of the State of New York located in the City and County of New York, Borough of Manhattan (collectively,
the “Specified Courts”), and each party irrevocably submits to the exclusive jurisdiction (except for proceedings
instituted in regard to the enforcement of a judgment of any such court, as to which such jurisdiction is non-exclusive) of such courts
in any such suit, action or proceeding. Service of any process, summons, notice or document by mail to such party’s address set
forth above shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably
and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably
and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or other proceeding brought in
any such court has been brought in an inconvenient forum.
15. Trial
by Jury. The Company (on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates)
and the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury
in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
16. Underwriter
Information. The parties hereto acknowledge and agree that, for all purposes of this Agreement, the Underwriter 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 fourth paragraph in the section entitled “Underwriting (Conflicts of Interest)” and the information
contained in the first and second paragraphs relating to stabilization transactions under the section entitled “Underwriting (Conflicts
of Interest)– Price Stabilization; Short Positions.”
17. 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.
18. 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.
19. 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.
20. Recognition
of the U.S. Special Resolution Regimes. In the event that the Representative is a Covered Entity and becomes subject to a proceeding
under a U.S. Special Resolution Regime, the transfer from such Representative of this Agreement, and any interest and obligation in or
under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime
if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
In the event that the Representative
is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime,
Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent
than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the
United States or a state of the United States.
21. USA
Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)), the Underwriter is required to obtain, verify and record information that identifies its clients, including the Company, which
information may include the name and address of its clients, as well as other information that will allow the Underwriter to properly
identify its clients.
22. Effect
of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
[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/
Cameron Frymyer
Name:
Cameron Frymyer
Title:
Executive VP and CFO
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/Andy
Moore
Name:
Andy Moore
Title:
CEO
SCHEDULE
A
Underwriters
Underwriters
Aggregate
Principal
Amount of
Securities to
be Purchased
B. Riley Securities, Inc.
5,945,946
Craig-Hallum Capital Group LLC
2,162,162
Lake Street Capital Markets, LLC
2,162,162
Northland Securities, Inc.
540,541
Total
10,810,811
SCHEDULE
B
Pricing Information
Firm Shares: 10,810,811
Option Shares: 1,621,621
Public offering price: $18.50 per Share
Purchase Price: $17.575 per Share
Underwriters’ discount: 5.0%
SCHEDULE C
Free Writing Prospectuses
None.
SCHEDULE D
FORM OF LOCK-UP AGREEMENT
[ ], 2026
B. Riley Securities, Inc.
1655 Fort Meyer Drive, 12th Floor
Arlington, VA, 22209
Ladies and Gentlemen:
The undersigned understands that you, as representative (the “Representative”)
of the several underwriters (the “Underwriters”) propose to enter into an Underwriting Agreement (the “Underwriting
Agreement”) with Babcock & Wilcox Enterprises, Inc., a Delaware corporation (the “Company”),
providing for the public offering (the “Public Offering”) by the Underwriters of shares (the “Shares”)
of common stock, par value $0.01 per share, of the Company (the “Common Stock”).
To induce the Underwriters to participate in the Public Offering,
the undersigned hereby agrees that, without the prior written consent of the Representative, it will not, and will not publicly disclose
an intention to, during the period commencing on the date hereof and ending 60 days after the date of the final prospectus (the “Restricted
Period”) relating to the Public Offering (the “Prospectus”), (1) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase,
lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock beneficially owned (as such term is used
in Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), by the undersigned or
any other securities so owned convertible into or exercisable or exchangeable for Common Stock or (2) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether
any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to
(a) transactions relating to shares of Common Stock or other
securities acquired in open market transactions after the completion of the Public Offering, provided that no filing under Section 16(a) of
the Exchange Act shall be required or shall be voluntarily made in connection with subsequent sales of Common Stock or other securities
acquired in such open market transactions,
(b) transfers of shares of Common Stock or any security convertible
into Common Stock as a bona fide gift or gifts or by will, by intestate succession or pursuant to a so-called “living trust”
or other revocable trust established to provide for the disposition of property on the undersigned’s death, in each case to any
member of the immediate family (as defined below) of the undersigned or to a trust the beneficiaries of which are exclusively the undersigned
or members of the undersigned’s immediate family, or as a bona fide gift or gifts to a charity or educational institution,
(c) distributions of shares of
Common Stock or any security convertible into Common Stock to limited partners, members or stockholders of the undersigned; provided
that in the case of any transfer or distribution pursuant to clause (b) or (c), (i) each donee or distributee shall
sign and deliver a lock-up agreement substantially in the form of this agreement and (ii) no filing under Section 16(a) of
the Exchange Act, reporting a reduction in beneficial ownership of shares of Common Stock, shall be required or shall be voluntarily
made during the Restricted Period,
(d) the grant, exercise, vesting, or payment, of any stock option,
restricted stock, stock unit, or other award, pursuant to any stock incentive plan of the Company and other equity compensation arrangements,
(e) the sale (to the Company,
on the market, or otherwise) or surrender to the Company of any stock options or Common Stock underlying any stock option, restricted
stock, stock unit, or other award, in order to pay the exercise price of such award or taxes associated with the grant, exercise, vesting,
or payment, of any such award,
(f) facilitating the establishment of a trading plan on behalf
of a shareholder, officer or director of the Company pursuant to Rule 10b5-1 under the Exchange Act for the transfer of shares
of Common Stock, provided that (i) such plan does not provide for the transfer of Common Stock during the Restricted Period
and (ii) to the extent a public announcement or filing under the Exchange Act, if any, is required of or voluntarily made by or
on behalf of the undersigned or the Company regarding the establishment of such plan, such announcement or filing shall include a statement
to the effect that no transfer of Common Stock may be made under such plan during the Restricted Period,
(g) transactions pursuant to a trading plan pursuant to Rule 10b5-1
(a “10b5-1 Plan”) under the Exchange Act that is existing on the date hereof, provided that (A) any filing under Section 16
of the Exchange Act shall indicate in the footnotes thereto that the filing relates to the applicable circumstances described in this
clause and (B) no other public announcement shall be required or shall be made voluntarily in connection with such transfer;
(h) transfers by will or intestacy to the undersigned’s
legal representatives, heir or legatee; or
(i) the sale or transfer of shares of Common Stock if, during
the Restricted Period, the official closing price of the Common Stock on the New York Stock Exchange (as reflected on NYSE.com) is greater
than or equal to 125% of the public offering price as identified in Schedule B of the Underwriting Agreement for five (5) of
any 10 consecutive days in which the New York Stock Exchange is open for trading.
In addition, the undersigned agrees that, without the prior written
consent of the Representative, it will not, during the Restricted Period, make any demand for or exercise any right with respect to,
the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock. The
undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar
against the transfer of the undersigned’s shares of Common Stock except in compliance with the foregoing restrictions. For purposes
of this paragraph, “immediate family” shall mean any relationship by blood, marriage or adoption not more remote than the
first cousin and shall include a former spouse.
The undersigned further understands that this agreement is irrevocable
and shall be binding upon the undersigned’s heirs, legal representatives, successors and assigns.
This agreement shall be governed by and construed in accordance with
the laws of the State of New York.
Very
truly yours,
Name:
SCHEDULE E
LOCK-UP PARTIES
A. Howe
J. Dziewisz
J. Tato
K. Young
C. Frymyer
P. Moeller
R. Stahl
N. Boness
H. Akbari
BRF Investments LLC
B. Riley Securities Inc.
EX-5.1 — EXHIBIT 5.1
EX-5.1
Filename: tm2614762d1_ex5-1.htm · Sequence: 3
Exhibit 5.1
O’Melveny & Myers LLP
Two Embarcadero Center
28ᵗʰ Floor
San Francisco, CA 94111-3823
T: +1 415 984 8700
F: +1 415 984 8701
omm.com
File Number: 0038871-00014
May 18, 2026
Babcock & Wilcox Enterprises, Inc.
1200 East Market Street, Suite 650
Akron, OH 44305
Re: Offering of 12,432,432 Shares of Common Stock of Babcock & Wilcox Enterprises, Inc.
We have acted as special counsel to Babcock & Wilcox Enterprises, Inc.,
a Delaware corporation (the “Company”), in connection with the offer and sale by the Company of 12,432,432 shares (the
“Shares”) of the Company’s common stock, par value $0.01 per share (the “Common Stock), which includes
the full exercise of the option granted to the Underwriters (as defined below) to purchase up to an additional 1,621,621 shares of Common
Stock, pursuant to the Underwriting Agreement (the “Agreement”) by and among the Company and B. Riley Securities, Inc.,
as representative of the several underwriters named therein (collectively, the “Underwriters”). The Shares are being
offered and sold pursuant to the shelf registration statement on Form S-3 (File No. 333-283368) (the “Registration
Statement”), filed by the Company with the Securities and Exchange Commission (the “Commission”) under the
Securities Act of 1933, as amended (the “Securities Act”) on November 21, 2024, and declared effective by the
Commission on April 8, 2025.
In our capacity as such counsel, we have examined originals or copies
of those corporate and other records and documents we considered appropriate, including, among other things, the following:
(a) the Registration Statement;
(b) the Restated Certificate of Incorporation of the Company filed with the Secretary of State of the State
of Delaware on June 30, 2015, as amended by the Certificates of Amendment filed with the Secretary of State of Delaware on June 14, 2019
and July 23, 2019, respectively, the Certificate of Designations filed with the Secretary of State of Delaware on May 6, 2021, the Certificate
of Increase, dated June 1, 2021 and the Certificate of Increase, dated July 1, 2021 (as amended, the “Certificate of Incorporation”),
and the Amended and Restated Bylaws of the Company (the “Bylaws”), each as amended through the date hereof (together,
the “Organizational Documents”); and
(c) originals or copies of the minutes, resolutions, or actions by written consent, of the board of directors of the Company relating
to the preparation and filing of the Registration Statement, the offering of the Shares, and related matters.
We have assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as originals and the conformity with originals of all documents submitted to us as copies.
Century City • Los Angeles • Newport
Beach • New York • San Francisco • Silicon Valley • Washington, DC
Beijing • Brussels • Hong Kong •
London • Seoul • Shanghai • Singapore
Based on this examination, our reliance upon the assumptions in this
letter and our consideration of those questions of law we considered relevant, and subject to the limitations and qualifications in this
letter, we are of the opinion that:
The issuance and sale of the Shares have been duly authorized
by all necessary corporate action on the part of the Company, and upon payment for and delivery of the Shares in accordance with the Agreement,
the Shares will be validly issued, fully paid and non-assessable.
The law covered by this letter is limited to the present General Corporation
Law of the State of Delaware. We express no opinion as to the laws of any other jurisdiction and no opinion regarding the statutes, administrative
decisions, rules, regulations or requirements of any county, municipality, subdivision or local authority of any jurisdiction.
This letter is being furnished in accordance with the requirements
of Item 601(b)(5) of Regulation S-K promulgated under the Securities Act, and no opinion is expressed herein as to any matter pertaining
to the contents of the Registration Statement, the prospectus included in the Registration Statement or any prospectus supplement, other
than as expressly stated herein with respect to the Shares. This letter is expressly limited to the matters set forth above, and we render
no opinion, whether by implication or otherwise, as to any other matters. This letter speaks only as of the date hereof and we assume
no obligation to update or supplement this letter to reflect any facts or circumstances that arise after the date hereof and come to our
attention, or any future changes in laws.
We hereby consent to the incorporation by reference of this letter
as Exhibit 5.1 to the Registration Statement and to the reference to this firm under the heading “Legal Matters” in the Registration
Statement and related prospectus. In giving such consent, we do not hereby admit that we are within the category of persons whose consent
is required under Section 7 of the Securities Act or the rules or regulations of the Commission thereunder.
Respectfully submitted,
/s/ O'Melveny & Myers LLP
2
EX-99.1 — EXHIBIT 99.1
EX-99.1
Filename: tm2614762d1_ex99-1.htm · Sequence: 4
Exhibit 99.1
News Release
Babcock & Wilcox Enterprises Announces Pricing
of Common
Stock Offering
(AKRON, Ohio – May 15, 2026) – Babcock & Wilcox Enterprises,
Inc. (“B&W” or the “Company”) (NYSE: BW) announced that it priced an underwritten public offering of 10,810,811
shares of its common stock at a price to the public of $18.50 per share (the “Offering”), for gross proceeds of approximately
$200 million, before deducting underwriting discounts and commissions and estimated offering expenses payable by the Company. The Company
has granted the underwriters a 30-day option to purchase up to an additional 15% of its common stock sold in the Offering at the public
offering price, less underwriting discounts and commissions. All of the shares in the Offering are being offered by B&W. The Offering
is expected to close on May 18, 2026, subject to customary closing conditions.
The Company intends to use the net proceeds of the Offering to prepay
amounts outstanding under its Credit Agreement and subsequently reborrow such amounts under its Credit Agreement and use any such reborrowed
amounts to fund project-related capital and working capital needs to influence steam turbine and boiler production capacity, support growth
initiatives, including AI data center power generation projects and BrightLoopTM technology commercialization, potential acquisitions
of aftermarket or other energy businesses, strengthen the Company’s balance sheet and for general corporate purposes.
B. Riley Securities is serving as the lead book-running manager for
the Offering. Craig-Hallum and Lake Street Capital Markets are acting as joint book-running managers for the Offering. Northland Capital
Markets is acting as co-manager for the Offering.
The shares of common stock were offered under the Company’s shelf
registration statement on Form S-3, which was declared effective by the Securities and Exchange Commission (“SEC”) on
April 8, 2025. The Offering was made only by means of a preliminary prospectus supplement and accompanying base prospectus, which
were filed with the SEC. Copies of the preliminary prospectus supplement and the accompanying base prospectus for the Offering may be
obtained on the SEC’s website at www.sec.gov, or by contacting B. Riley Securities, Inc. at 1655 Fort Myer Drive, Suite 1200, Arlington,
Virginia 22209, Attention: Syndicate Prospectus Department, by telephone at 703-312-9580 or by email at prospectuses@brileysecurities.com.
This press release shall not constitute an offer to sell or the solicitation
of an offer to buy the securities, nor shall there be any sale of these securities in any state or jurisdiction in which such offer, sale
or solicitation would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.
Forward-Looking Statements
This press release contains forward-looking statements within the meaning
of the Private Securities Litigation Reform Act of 1995. All statements other than statements of historical or current fact included in
this release are forward-looking statements. These forward-looking statements include, without limitation, statements regarding the Company’s
public offering of common stock and intended use of net proceeds. You should not place undue reliance on these statements. Forward-looking
statements include words such as “expect,” “intend,” “plan,” “likely,” “seek,”
“believe,” “project,” “forecast,” “target,” “goal,” “potential,”
“estimate,” “may,” “might,” “will,” “would,” “should,” “could,”
“can,” “have,” “due,” “anticipate,” “assume,” “contemplate,” “continue”
and other words and terms of similar meaning in connection with any discussion of the timing or nature of future operational performance
or other events.
The forward-looking statements included herein are made only as of
the date hereof. We undertake no obligation to publicly update or revise any forward-looking statement as a result of new information,
future events, or otherwise, except as required by law. These forward-looking statements are based on management’s current expectations
and involve a number of risks and uncertainties, including, but not limited to: the potential for further conditions that could raise
substantial doubt as to our ability to continue as a going concern, which has occurred in the past; our obligation to refinance or repay
our 6.50% Senior Notes due 2026 prior to their maturity; risks associated with contractual pricing in our industry; disputes with customers
with long-term contracts; the performance of third parties and subcontractors on whom we rely; disruptions at our or third-party manufacturing
facilities; our ability to execute our growth strategy; our evaluation of strategic alternatives; our ability to deliver our backlog on
time or at all; professional liability, product liability, warranty or other claims; inadequate insurance coverage; our ability to compete
successfully against current and future competitors; our development of new products; cyclical and economic impacts on demand for our
products; compliance with government regulations; legislative and regulatory developments impacting our business; supply chain issues;
the financial and other covenants in our debt agreements; our ability to maintain adequate bonding and letter of credit capacity; impairment
to our goodwill or other indefinite-lived intangible assets; our exposure to credit risk; disruptions in, or failures of, our information
technology systems, including those related to cybersecurity; failure to comply with data and privacy laws, regulations and standards,
or if we fail to properly maintain the integrity of our data, protect our proprietary rights to our systems or defend against cybersecurity
attacks, we may be subject to government or private actions due to breaches; failure to protect our intellectual property rights, or inability
to obtain or renew licenses to use intellectual property of third parties; uncertainty over tariffs and their impacts; sanctions and export
controls; international political, economic and other uncertainties; fluctuations in the value of foreign currencies could harm our profitability;
volatility of the market price and trading volume of our common stock; dilution of our common shareholders' ownership or voting power;
the significant influence of BRC Group Holdings, Inc. over us; anti-takeover provisions in our corporate documents; changes in tax rates
or tax law; our ability to use net operating losses and certain tax credits; failure to maintain effective internal control over financial
reporting; new accounting pronouncements or changes in existing accounting standards and practices; our ability to attract and maintain
key personnel; our relationship with labor unions; pension and medical expenses associated with our retirement benefits; natural disasters
or other events beyond our control; and the risks and uncertainties described under the heading “Risk Factors” in Part I,
Item 1A of our Annual Report on Form 10-K and Part II, Item 1A of our Quarterly Reports on Form 10-Q as such risk factors may be amended,
supplemented, or superseded from time to time by other reports we file with the SEC.
These forward-looking statements are made based upon detailed assumptions
and reflect management’s current expectations and beliefs. While we believe that these assumptions underlying the forward-looking
statements are reasonable, forward-looking statements are subject to uncertainties and factors relating to our operations and business
environment that are difficult to predict and may be beyond our control. Such uncertainties and factors may cause actual results to differ
materially from those expressed or implied by the forward-looking statements.
About Babcock & Wilcox Enterprises
Headquartered in Akron, Ohio, Babcock & Wilcox Enterprises, Inc., is a leader in energy and environmental products and
services for power and industrial markets worldwide. Follow us on LinkedIn and learn more at babcock.com.
# # #
Investor Contact:
Media Contact:
Cameron Frymyer, Chief Financial Officer
Ryan Cornell, Public Relations Lead
Babcock & Wilcox Enterprises, Inc.
Babcock & Wilcox Enterprises, Inc.
330.860.6176 | investors@babcock.com
330.860.1345 | rscornell@babcock.com
GRAPHIC
GRAPHIC
Filename: tm2614762d1_ex99-1img01.jpg · Sequence: 9
Binary file (1884 bytes)
Download tm2614762d1_ex99-1img01.jpg
GRAPHIC
GRAPHIC
Filename: tm2614762d1_ex5-1img001.jpg · Sequence: 10
Binary file (9863 bytes)
Download tm2614762d1_ex5-1img001.jpg
XML — IDEA: XBRL DOCUMENT
XML
Filename: R1.htm · Sequence: 12
v3.26.1
Cover
May 14, 2026
Document Type
8-K
Amendment Flag
false
Document Period End Date
May 14, 2026
Entity File Number
001-36876
Entity Registrant Name
BABCOCK & WILCOX ENTERPRISES,
INC.
Entity Central Index Key
0001630805
Entity Tax Identification Number
47-2783641
Entity Incorporation, State or Country Code
DE
Entity Address, Address Line One
1200 EAST MARKET STREET
Entity Address, Address Line Two
SUITE 650
Entity Address, City or Town
AKRON
Entity Address, State or Province
OH
Entity Address, Postal Zip Code
44305
City Area Code
330
Local Phone Number
753-4511
Written Communications
false
Soliciting Material
false
Pre-commencement Tender Offer
false
Pre-commencement Issuer Tender Offer
false
Entity Emerging Growth Company
false
Common Stock [Member]
Title of 12(b) Security
Common stock, $0.01 par value per share
Trading Symbol
BW
Security Exchange Name
NYSE
Series A 7. 75 Percentage Cumulative Perpetual Preferred Stock [Member]
Title of 12(b) Security
7.75% Series A Cumulative Perpetual Preferred Stock
Trading Symbol
BW PRA
Security Exchange Name
NYSE
Senior Notes 6. 50 Percentage Due 2026 [Member]
Title of 12(b) Security
6.50% Senior Notes due 2026
Trading Symbol
BWNB
Security Exchange Name
NYSE
X
- Definition
Boolean flag that is true when the XBRL content amends previously-filed or accepted submission.
+ References
No definition available.
+ Details
Name:
dei_AmendmentFlag
Namespace Prefix:
dei_
Data Type:
xbrli:booleanItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Area code of city
+ References
No definition available.
+ Details
Name:
dei_CityAreaCode
Namespace Prefix:
dei_
Data Type:
xbrli:normalizedStringItemType
Balance Type:
na
Period Type:
duration
X
- Definition
For the EDGAR submission types of Form 8-K: the date of the report, the date of the earliest event reported; for the EDGAR submission types of Form N-1A: the filing date; for all other submission types: the end of the reporting or transition period. The format of the date is YYYY-MM-DD.
+ References
No definition available.
+ Details
Name:
dei_DocumentPeriodEndDate
Namespace Prefix:
dei_
Data Type:
xbrli:dateItemType
Balance Type:
na
Period Type:
duration
X
- Definition
The type of document being provided (such as 10-K, 10-Q, 485BPOS, etc). The document type is limited to the same value as the supporting SEC submission type, or the word 'Other'.
+ References
No definition available.
+ Details
Name:
dei_DocumentType
Namespace Prefix:
dei_
Data Type:
dei:submissionTypeItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Address Line 1 such as Attn, Building Name, Street Name
+ References
No definition available.
+ Details
Name:
dei_EntityAddressAddressLine1
Namespace Prefix:
dei_
Data Type:
xbrli:normalizedStringItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Address Line 2 such as Street or Suite number
+ References
No definition available.
+ Details
Name:
dei_EntityAddressAddressLine2
Namespace Prefix:
dei_
Data Type:
xbrli:normalizedStringItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Name of the City or Town
+ References
No definition available.
+ Details
Name:
dei_EntityAddressCityOrTown
Namespace Prefix:
dei_
Data Type:
xbrli:normalizedStringItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Code for the postal or zip code
+ References
No definition available.
+ Details
Name:
dei_EntityAddressPostalZipCode
Namespace Prefix:
dei_
Data Type:
xbrli:normalizedStringItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Name of the state or province.
+ References
No definition available.
+ Details
Name:
dei_EntityAddressStateOrProvince
Namespace Prefix:
dei_
Data Type:
dei:stateOrProvinceItemType
Balance Type:
na
Period Type:
duration
X
- Definition
A unique 10-digit SEC-issued value to identify entities that have filed disclosures with the SEC. It is commonly abbreviated as CIK.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
+ Details
Name:
dei_EntityCentralIndexKey
Namespace Prefix:
dei_
Data Type:
dei:centralIndexKeyItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Indicate if registrant meets the emerging growth company criteria.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
+ Details
Name:
dei_EntityEmergingGrowthCompany
Namespace Prefix:
dei_
Data Type:
xbrli:booleanItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Commission file number. The field allows up to 17 characters. The prefix may contain 1-3 digits, the sequence number may contain 1-8 digits, the optional suffix may contain 1-4 characters, and the fields are separated with a hyphen.
+ References
No definition available.
+ Details
Name:
dei_EntityFileNumber
Namespace Prefix:
dei_
Data Type:
dei:fileNumberItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Two-character EDGAR code representing the state or country of incorporation.
+ References
No definition available.
+ Details
Name:
dei_EntityIncorporationStateCountryCode
Namespace Prefix:
dei_
Data Type:
dei:edgarStateCountryItemType
Balance Type:
na
Period Type:
duration
X
- Definition
The exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
+ Details
Name:
dei_EntityRegistrantName
Namespace Prefix:
dei_
Data Type:
xbrli:normalizedStringItemType
Balance Type:
na
Period Type:
duration
X
- Definition
The Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
+ Details
Name:
dei_EntityTaxIdentificationNumber
Namespace Prefix:
dei_
Data Type:
dei:employerIdItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Local phone number for entity.
+ References
No definition available.
+ Details
Name:
dei_LocalPhoneNumber
Namespace Prefix:
dei_
Data Type:
xbrli:normalizedStringItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 13e
-Subsection 4c
+ Details
Name:
dei_PreCommencementIssuerTenderOffer
Namespace Prefix:
dei_
Data Type:
xbrli:booleanItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14d
-Subsection 2b
+ Details
Name:
dei_PreCommencementTenderOffer
Namespace Prefix:
dei_
Data Type:
xbrli:booleanItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Title of a 12(b) registered security.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b
+ Details
Name:
dei_Security12bTitle
Namespace Prefix:
dei_
Data Type:
dei:securityTitleItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Name of the Exchange on which a security is registered.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection d1-1
+ Details
Name:
dei_SecurityExchangeName
Namespace Prefix:
dei_
Data Type:
dei:edgarExchangeCodeItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14a
-Subsection 12
+ Details
Name:
dei_SolicitingMaterial
Namespace Prefix:
dei_
Data Type:
xbrli:booleanItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Trading symbol of an instrument as listed on an exchange.
+ References
No definition available.
+ Details
Name:
dei_TradingSymbol
Namespace Prefix:
dei_
Data Type:
dei:tradingSymbolItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Securities Act
-Number 230
-Section 425
+ Details
Name:
dei_WrittenCommunications
Namespace Prefix:
dei_
Data Type:
xbrli:booleanItemType
Balance Type:
na
Period Type:
duration
X
- Details
Name:
us-gaap_StatementClassOfStockAxis=us-gaap_CommonStockMember
Namespace Prefix:
Data Type:
na
Balance Type:
Period Type:
X
- Details
Name:
us-gaap_StatementClassOfStockAxis=BW_SeriesA7.75PercentageCumulativePerpetualPreferredStockMember
Namespace Prefix:
Data Type:
na
Balance Type:
Period Type:
X
- Details
Name:
us-gaap_StatementClassOfStockAxis=BW_SeniorNotes6.50PercentageDue2026Member
Namespace Prefix:
Data Type:
na
Balance Type:
Period Type: