UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15 (d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): July 7, 2021
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 | ||
8.125% Senior Notes due 2026 | BWSN | New York Stock Exchange | ||
7.75% Series A Cumulative Perpetual Preferred Stock | BW PRA | 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 July 7, 2021, Babcock & Wilcox Enterprises, Inc. (the “Company”) entered into a sales agreement (the “Sales Agreement”) with B. Riley Securities, Inc. (the “Agent”), in connection with the offer and sale from time to time by the Company of shares of the Company’s 7.75% Series A Cumulative Perpetual Preferred Stock, having an aggregate offering price of up to $76,000,000 (the “Shares”) to or through the Agent. The Company expects to use net proceeds from the offerings to support the Company’s clean energy growth initiatives and to fund strategic transactions including acquisitions. Any Shares to be offered and sold under the Sales Agreement will be issued and sold pursuant to the Company’s previously filed and currently effective registration statement on Form S-3 (File No. 333-255428) initially filed with the Securities and Exchange Commission (the “Commission”) on April 22, 2021 and declared effective by the Commission on April 30, 2021. A prospectus supplement relating to the offering of the Shares was filed with the Commission on July 7, 2021.
The Shares may be offered and sold through the Agent over a period of time and from time to time by any method that is deemed to be an “at the market offering” as defined in Rule 415 promulgated under the Securities Act of 1933, as amended (the “Securities Act”). The Agent is not required to sell any specific aggregate principal amount of the Shares, but will act as the Company’s sales agent using commercially reasonable efforts consistent with its normal trading and sales practices, on mutually agreed terms between the Agent and the Company. Under the Sales Agreement, the Agent will be entitled to compensation of up to 3.0% of the gross proceeds from each sale of the Shares sold through it as the Agent. The amount of net proceeds the Company will receive from this offering, if any, will depend upon the actual aggregate principal amount of the Shares sold, after deduction of the Agent’s commission and any transaction fees. Because there is no minimum offering amount required as a condition to close this offering, the actual total public offering amount, commissions and net proceeds to us, if any, are not determinable at this time.
The Sales Agreement contains customary representations, warranties and covenants of the Company, indemnification obligations of the Company and the Agent, including for liabilities under the Securities Act, other obligations of the parties and termination provisions.
The provisions of the Sales Agreement, including the representations and warranties contained therein, are not for the benefit of any party other than the parties to such agreement and are not intended as documents for investors and the public to obtain factual information about the current state of affairs of the parties to those documents and agreements. Rather, investors and the public should look to other disclosures contained in the Company’s filings with the Commission.
The foregoing description of the material terms of the Sales Agreement is subject to, and qualified in its entirety by reference to, the full text of the Sales Agreement, a copy of which is attached hereto as Exhibit 1.1 and is incorporated herein by reference.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On July 7, 2021, the Company filed a Certificate of Increase (the “Certificate of Increase”) with the Secretary of State of the State of Delaware to increase the number of shares of duly authorized Preferred Stock from 7,516,880 shares to 10,401,580 shares.
The foregoing description of the Certificate of Increase is subject to, and qualified in its entirety by reference to, the full text of the Certificate of Increase, a copy of which is attached hereto as Exhibit 3.1 and is incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits.
Exhibit No. | Description | |
1.1 | Sales Agreement, between Babcock & Wilcox Enterprises, Inc. and B. Riley Securities, Inc. dated July 7, 2021. | |
3.1 | Certificate of Increase of the Number of Shares of 7.75% Series A Cumulative Perpetual Preferred Stock of Babcock & Wilcox Enterprises, Inc., dated July 7, 2021. | |
5.1 | Opinion of O’Melveny & Myers LLP | |
23.1 | Consent of O’Melveny & Myers LLP (included in Exhibit 5.1) | |
104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
BABCOCK & WILCOX ENTERPRISES, INC. | ||
July 7, 2021 | By: | /s/ Louis Salamone |
Louis Salamone | ||
Executive Vice President, Chief Financial Officer and Chief Accounting Officer (Principal Accounting Officer and Duly Authorized Representative) |