As filed with the Securities and Exchange
Commission on March 17, 2017
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
B. RILEY FINANCIAL, INC.
(Exact name of registrant as specified
in its charter)
Delaware
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7389
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27-0223495
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(State of Incorporation)
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(Primary Standard Industrial
Classification Code Number)
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(IRS Employer
Identification No.)
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21255 Burbank Blvd, Suite 400
Woodland Hills, California 91367
(818) 884-3737
(Address, including zip code, and telephone
number, including
area code, of registrant’s principal
executive offices)
Bryant Riley
Chief Executive Officer
21255 Burbank Blvd, Suite 400
Woodland Hills, California 91367
(818) 884-3737
(Name, address, including zip code, and
telephone number,
including area code, of agent for service)
Copy to:
Scott M. Stanton, Esq.
Morrison & Foerster LLP
12531 High Bluff Drive, Suite 100
San Diego, California 92130
(858) 720-5100
Approximate date of commencement of proposed
sale of the securities to the public:
From time to time, after the effective date of this Registration Statement.
If the only securities being registered
on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.
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If any of the securities being registered
on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest reinvestment plans, check the following box
x
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration statement for the same offering.
¨
If this Form is a post-effective amendment
filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering.
¨
If this Form is a registration statement
pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box.
¨
If this Form is a post-effective amendment
to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes
of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
¨
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions
of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2
of the Exchange Act.
Large accelerated filer
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Accelerated filer
x
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Non-accelerated filer (do not check if a smaller reporting company)
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Smaller reporting company
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CALCULATION OF REGISTRATION FEE
Title of each class of securities
to be registered(1)
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Amount to be
registered(2)
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Proposed
maximum
offering
price
per unit
(3)(4)
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Proposed
maximum
aggregate
offering price
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Amount of
registration fee
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Common Stock, par value $0.0001 per share
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(2)(3)(4)
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Preferred Stock, par value $0.0001 per share
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(2)(3)(4)
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Warrants
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(2)(3)(4)
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Debt Securities
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(2)(3)(4)
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Units(5)
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(2)(3)(4)
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Total Offering
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$
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100,000,000
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$
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11,590
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(1)
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Securities registered hereunder may be sold separately or as units with other securities registered hereunder.
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(2)
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An indeterminate aggregate initial offering price and number or amount of the securities of each identified class is being registered as may from time to time be issued at indeterminate prices as shall have an aggregate initial offering price not to exceed $100,000,000. Any securities registered under this registration statement may be sold separately or as units with other securities registered under this registration statement. The securities registered also include such indeterminate amounts and numbers of common stock as may be issued upon conversion of or exchange for preferred stock or debt securities that provide for such conversion or exchange. Separate consideration may or may not be received for securities that are issuable upon conversion of, or in exchange for, or upon exercise of, convertible or exchangeable securities.
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(3)
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Not applicable pursuant to General Instruction II.D of Form S-3.
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(4)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended.
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(5)
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Consisting of some or all of the securities listed above, in any combination, including common stock, preferred stock, warrants and debt securities.
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The registrant hereby amends this registration
statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment
which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, or until this registration statement shall become effective on such date as the Securities and Exchange
Commission, acting pursuant to said Section 8(a), may determine.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE
AND MAY BE CHANGED. WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES NOR IS IT AN INVITATION FOR OFFERS TO BUY THESE SECURITIES
IN ANY STATE OR JURISDICTION WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED
MARCH 17,
2017
PROSPECTUS
B. RILEY FINANCIAL, INC.
$100,000,000
COMMON STOCK
PREFERRED STOCK
WARRANTS
DEBT SECURITIES
UNITS
We may offer and sell from time to time
the above securities in one or more classes, in one or more transactions, separately or together in any combination and as separate
series, and in amounts, at prices and on terms that we will determine at the times of the offerings. We may also offer any of these
securities that may be issuable upon the conversion, exercise or exchange of debt securities, preferred stock or warrants. The
aggregate initial offering price of the securities that we may offer through this prospectus will be up to $100,000,000.
We will provide specific terms of any offering
in supplements to this prospectus, which we will deliver together with the prospectus at the time of sale. The supplements may
add, update or change information contained in this prospectus. You should read this prospectus and any prospectus supplement carefully
before you invest. This prospectus may not be used to offer and sell securities unless accompanied by a prospectus supplement.
We may offer the securities independently
or together in any combination for sale directly to purchasers, through one or more underwriters, dealers or agents, or through
underwriting syndicates managed or co-managed by one or more underwriters, to be designated at a future date, on a continuous or
delayed basis.
Our common stock is traded on
the NASDAQ Global Market (“NASDAQ”) under the symbol “RILY”. On March 16, 2017, the last
reported sales price of our common stock as quoted on NASDAQ was $14.95 per share.
On March 14, 2017, the
aggregate market value of our outstanding common stock held by non-affiliates was $191.0 million.
Investing in our securities involves
risks. Risks associated with an investment in our securities will be described in the applicable prospectus supplement and certain
of our filings with the Securities and Exchange Commission, as described under the caption “Risk Factors” on page
1 of this prospectus.
NEITHER THE SECURITIES AND EXCHANGE
COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS
IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this prospectus is .
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration
statement that we filed with the U.S. Securities and Exchange Commission, or SEC, using a “shelf” registration process.
Under this shelf registration process, we may, from time to time, sell the securities or combinations of the securities described
in this prospectus in one or more offerings in amounts that we will determine from time to time. For further information about
our business and the securities, you should refer to the registration statement containing this prospectus and its exhibits. The
exhibits to our registration statement contain the full text of certain contracts and other important documents we have summarized
in this prospectus. Since these summaries may not contain all the information that you may find important in deciding whether to
purchase the securities we offer, you should review the full text of these documents. We have filed and plan to continue to file
other documents with the SEC that contain information about us and our business. Also, we will file legal documents that control
the terms of the securities offered by this prospectus as exhibits to the reports we file by the SEC. The registration statement
and other reports can be obtained from the SEC as indicated under the heading “Where You Can Find More Information.”
This prospectus provides you with a general
description of the securities that we may offer. Each time we offer securities pursuant to this prospectus, we will provide a prospectus
supplement and/or other offering material that will contain specific information about the terms of that offering. When we refer
to a “prospectus supplement,” we are also referring to any free writing prospectus or other offering material authorized
by us. The prospectus supplement may also add, update or change information contained in this prospectus. If there is any inconsistency
between the information in this prospectus and the applicable prospectus supplement, you should rely on the information in the
prospectus supplement or incorporated information having a later date. You should read this prospectus and any prospectus supplement
together with additional information described under the heading “Where You Can Find More Information.”
You should rely only on the information
provided in this prospectus, in any prospectus supplement, or any other offering material that we authorize, including the information
incorporated by reference. We have not authorized anyone to provide you with different information. You should not assume that
the information in this prospectus, any supplement to this prospectus, or any other offering material that we authorize, is accurate
at any date other than the date indicated on the cover page of these documents or the date of the statement contained in any incorporated
documents, respectively. This prospectus is not an offer to sell or a solicitation of an offer to buy any securities other than
the securities referred to in the prospectus supplement. This prospectus is not an offer to sell or a solicitation of an offer
to buy such securities in any circumstances in which such offer or solicitation is unlawful. You should not interpret the delivery
of this prospectus, or any sale of securities, as an indication that there has been no change in our affairs since the date of
this prospectus. You should also be aware that information in this prospectus may change after this date. The information contained
in this prospectus or a prospectus supplement or amendment, or incorporated herein or therein by reference, is accurate only as
of the date of this prospectus or prospectus supplement or amendment, as applicable, regardless of the time of delivery of this
prospectus or prospectus supplement or amendment, as applicable, or of any sale of the shares.
As used in this prospectus, unless the context
indicates or otherwise requires, “the Company,” “B. Riley,” “we,” “us” or “our”
refer to the combined business of B. Riley Financial, Inc. and all of its subsidiaries.
ABOUT B. RILEY FINANCIAL, INC.
We provide collaborative financial services and solutions through
a number of its subsidiaries and, following the acquisition of United Online, Inc. on July 1, 2016, we provide consumer services
and products over the Internet
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B. Riley &
Co., LLC is a leading investment bank which provides corporate finance, research, and sales and trading to corporate, institutional
and high net worth individual clients
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Great American
Group, LLC is a leading provider of advisory and valuation services, and asset disposition and auction solutions to a wide range
of retail, wholesale and industrial clients, as well as lenders, capital providers, private equity investors and professional service
firms
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B. Riley Capital Management, LLC is an
SEC registered investment advisor, which includes B. Riley Asset Management, a provider of investment products to institutional
and high net worth investors, and B. Riley Wealth Management (formerly MK Capital Advisors), a multi-family office practice
and wealth management firm focused on the needs of ultra-high net worth individuals and families; and Great American Capital Partners,
LLC, a provider of senior secured loans and second lien secured loan facilities to middle market public and private U.S. companies
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United Online Inc. provides Internet access services and devices under the NetZero and Juno brands primarily in the
United States. We are headquartered in Los Angeles with offices in New York, Boston, Chicago, Charlotte, Dallas, San Francisco
and other cities throughout the United States and Europe.
We currently have four operating segments:
(i) Capital Markets, through which we provide investment banking, corporate finance, restructuring, research, sales and trading
and wealth management services to corporate, institutional and high net worth clients; (ii) Auction and Liquidation, through which
we provide auction and liquidation services to help clients dispose of assets that include multi-location retail inventory, wholesale
inventory, trade fixtures, machinery and equipment, intellectual property and real property; (iii) Valuation and Appraisal, through
which we provide valuation and appraisal services to clients with independent appraisals in connection with asset based loans,
acquisitions, divestitures and other business needs and (iv) Principal Investments - United Online, through which we provide consumer internet access
and related subscription services.
Our executive offices are located at 21255
Burbank Blvd, Suite 400, Woodland Hills, California 91367, and the telephone number at our principal executive office is (818)
884-3737. Our website addresses are http://www.greatamerican.com, http://www.brileyfin.com and http://www.unitedonline.net. We
have not incorporated by reference into this prospectus the information on our website, and you should not consider it to be a
part of this document.
RISK FACTORS
Investing in our securities involves risk.
Before making an investment decision, you should carefully consider the risks described under the heading “Risk Factors”
contained in the applicable prospectus supplement and any related free writing prospectus and in our most recent Annual Report
on Form 10-K and subsequent Quarterly Reports on Form 10-Q, together with all of the other information appearing in, or incorporated
by reference into, this prospectus and any applicable prospectus supplement. These risks could materially and adversely affect
our business, results of operations and financial condition and could result in a partial or complete loss of your investment.
Additional risks not presently known to us or that we currently believe are immaterial may also significantly impair our business
operations and financial condition. See “Where You Can Find More Information.”
SPECIAL NOTE REGARDING FORWARD-LOOKING
STATEMENTS
Statements in this prospectus that are not
descriptions of historical facts are forward-looking statements that are based on management’s current expectations and assumptions
and are subject to risks and uncertainties. If such risks or uncertainties materialize or such assumptions prove incorrect, our
business, operating results, financial condition and stock price could be materially negatively affected. In some cases, you can
identify forward-looking statements by terminology including “anticipates,” “believes,” “can,”
“continue,” “could,” “estimates,” “expects,” “intends,” “may,”
“plans,” “potential,” “predicts,” “should,” “will,” “would”
or the negative of these terms or other comparable terminology. Factors that could cause actual results to differ materially from
those currently anticipated include those set forth in the section titled “Risk Factors.”
We operate in a very competitive and rapidly-changing
environment and new risks emerge from time to time. As a result, it is not possible for our management to predict all risks, nor
can we assess the impact of all factors on our business or the extent to which any factor, or combination of factors, may cause
actual results to differ materially from those contained in any forward-looking statements we may make. In light of these risks,
uncertainties and assumptions, the forward-looking events and circumstances discussed in this prospectus may not occur and actual
results could differ materially and adversely from those anticipated or implied in the forward-looking statements. You should not
rely upon forward-looking statements as predictions of future events. Although we believe that the expectations reflected in the
forward-looking statements are reasonable, we cannot guarantee that the future results, levels of activity, performance or events
and circumstances reflected in the forward-looking statements will be achieved or occur. Moreover, neither we nor any other person
assumes responsibility for the accuracy and completeness of the forward-looking statements. The forward-looking statements included
in this prospectus speak only as of the date hereof, and except as required by law, we undertake no obligation to update publicly
any forward-looking statements for any reason after the date of this prospectus to conform these statements to actual results or
to changes in our expectations.
DETERMINATION OF OFFERING PRICE
The terms of any particular offering by
us, the initial offering price and the net proceeds to us will be contained in the prospectus supplement, information incorporated
by reference or free writing prospectus, relating to such offering.
USE OF PROCEEDS
Unless we inform you otherwise in the prospectus
supplement, we expect to use the net proceeds from the sale of the securities for capital expenditures, working capital and other
general corporate purposes. Pending any specific application, we may initially invest the net proceeds in short-term marketable
securities.
We have not determined the amounts we plan
to spend on the areas listed above or the timing of these expenditures. As a result, our management will have broad discretion
to allocate the net proceeds of any offering.
SECURITIES WE MAY OFFER
We may issue from time to time, in one or
more offerings the following securities:
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shares of common stock;
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shares of preferred stock;
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warrants exercisable for debt securities, common stock or preferred stock;
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units of common stock, preferred stock, warrants or debt securities, in any combination.
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This prospectus contains a summary of the
material general terms of the various securities that we may offer. The specific terms of the securities will be described in a
prospectus supplement, information incorporated by reference, or free writing prospectus, which may be in addition to or different
from the general terms summarized in this prospectus. Where applicable, the prospectus supplement, information incorporated by
reference or free writing prospectus will also describe any material United States federal income tax considerations relating to
the securities offered and indicate whether the securities offered are or will be listed on any securities exchange. The summaries
contained in this prospectus and in any prospectus supplements, information incorporated by reference or free writing prospectus
may not contain all of the information that you would find useful. Accordingly, you should read the actual documents relating to
any securities sold pursuant to this prospectus. See “Where You Can Find Additional Information” and “Incorporation
of Certain Information by Reference” for information about how to obtain copies of those documents.
The terms of any particular offering, the
initial offering price and the net proceeds to us will be contained in the prospectus supplement, information incorporated by reference
or free writing prospectus, relating to such offering.
DESCRIPTION OF CAPITAL STOCK
Our Certificate of Incorporation, as amended,
provides that we are authorized to issue 41,000,000 shares of capital stock. Our authorized capital stock is comprised of 40,000,000
shares of common stock, $0.0001 par value per share, and 1,000,000 shares of serial preferred stock, par value $0.0001 per share.
The following description is a summary of
the material terms of our capital stock and certain provisions of our Certificate of Incorporation, as amended, and Amended and
Restated Bylaws. This description does not purport to be complete. For information on how you can obtain our Restated Certificate
of Incorporation and Amended and Restated Bylaws, see “Where You Can Find Additional Information.”
Common Stock
We are authorized to issue up to 40,000,000
shares of our common stock, par value $0.0001 per share.
The holders of our common stock are entitled
to one vote for each share held of record on all matters submitted to a vote of the stockholders. Our stockholders do not have
cumulative voting rights in the election of directors. Accordingly, holders of a majority of the shares voting are able to elect
all of our directors. Subject to preferences that may apply to any then outstanding shares of preferred stock, the holders of outstanding
shares of our common stock are entitled to receive dividends out of assets legally available for distribution at the times and
in the amounts, if any, that our Board of Directors may determine from time to time. In the event of our liquidation, dissolution
or winding up, subject to the rights of each series of our preferred stock, which may, from time to time come into existence, holders
of our common stock are entitled to share ratably in all of our assets remaining after we pay our liabilities. Holders of our common
stock have no preemptive or other subscription or conversion rights. Our common stock is not redeemable and there are no sinking
fund provisions applicable to our common stock.
Preferred Stock
Our Board of Directors is authorized, subject
to limitations imposed by Delaware law, to issue up to 1,000,000 shares of preferred stock, par value $0.0001 per share, in one
or more series, without stockholder approval. Our Board of Directors is authorized to fix the number of shares of preferred stock
and to determine or (so long as no shares of such series are then outstanding) alter for each such series, such voting powers,
full or limited, or no voting powers, and such designations, preferences, and relative, participating, optional, or other rights
and such qualifications, limitations, or restrictions thereof, as shall be stated and expressed in the resolution or resolutions
adopted by the Board of Directors providing for the issuance of such shares and as may be permitted by Delaware General Corporation
Law. The rights, privileges, preferences and restrictions of any such additional series may be subordinated to,
pari passu
with, or senior to any of those of any present or future class or series of our capital stock. Our Board of Directors is also authorized
to decrease the number of shares of any series, prior or subsequent to the issue of that series, but not below the number of shares
of such series then outstanding. In case the number of shares of any series shall be so decreased, the shares constituting any
decrease shall resume the status which they had prior to the adoption of the resolution originally fixing the number of shares
of such series.
This section describes the general terms
and provisions of our preferred stock. The applicable prospectus supplement will describe the specific terms of any shares of preferred
stock offered through that prospectus supplement, as well as any general terms described in this section that will not apply to
those shares of preferred stock. We will file a copy of the certificate of designation that contains the terms of each new series
of preferred stock with the SEC each time we issue a new series of preferred stock. Each certificate of designation will establish
the number of shares included in a designated series and fix the designation, powers, privileges, preferences and rights of the
shares of each series as well as any applicable qualifications, limitations or restrictions. You should refer to the applicable
certificate of designation as well as our Certificate of Incorporation before deciding to buy shares of our preferred stock as
described in the applicable prospectus supplement.
Anti-Takeover Provisions of Delaware Law and Charter Provisions
Interested Stockholder Transactions
We are subject to Section 203 of the General
Corporation Law of the State of Delaware, which prohibits a Delaware corporation from engaging in any “business combination”
with any “interested stockholder” for a period of three years after the date that such stockholder became an interested
stockholder, with the following exceptions:
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before such date, the board of directors of the corporation approved either the business combination or the transaction that resulted in the stockholder becoming an interested holder;
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upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction began, excluding, for purposes of determining the number of shares outstanding, those shares owned by persons who are directors and also officers and by employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or
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on or after such date, the business combination is approved by the board of directors and authorized at an annual or special meeting of the stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting stock that is not owned by the interested stockholder.
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Section 203 defines “business combination”
to include the following:
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any merger or consolidation involving the corporation and the interested stockholder;
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any sale, lease, exchange, mortgage, pledge, transfer or other disposition of 10% or more of the assets of the corporation involving the interested stockholder;
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subject to certain exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the interested stockholder;
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any transaction involving the corporation that has the effect of increasing the proportionate share of the stock or any class or series of the corporation beneficially owned by the interested stockholder; or
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the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits by or through the corporation.
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In general, Section 203 defines “interested
stockholder” as an entity or person beneficially owning 15% or more of the outstanding voting stock of the corporation or
any entity or person affiliated with or controlling or controlled by such entity or person.
Certificate of Incorporation and Bylaws
Provisions in our Certificate of Incorporation,
as amended, and Amended and Restated Bylaws may have the effect of discouraging certain transactions that may result in a change
in control of our company. Some of these provisions provide that stockholders cannot act by written consent and impose advance
notice requirements and procedures with respect to stockholder proposals and the nomination of candidates for election as directors.
Our Restated Certificate of Incorporation allows us to issue shares of preferred stock (see “Blank Check Preferred Stock”)
or common stock without any action by stockholders. Our directors and our officers are indemnified by us to the fullest extent
permitted by applicable law pursuant to our Restated Certificate of Incorporation. Our Board of Directors is expressly authorized
to make, alter or repeal our Amended and Restated Bylaws. These provisions may make it more difficult for stockholders to take
specific corporate actions and may make it more difficult or discourage an attempt to obtain control of the Company by means of
a proxy contest, tender offer, merger or otherwise.
Blank Check Preferred Stock
Our Certificate of Incorporation, as amended,
authorizes our Board of Directors to approve the issuance of up to 1,000,000 shares of preferred stock, without further approval
of the stockholders, and to determine the rights and preferences of any series of preferred stock. The Board could issue one or
more series of preferred stock with voting, conversion, dividend, liquidation or other rights that would adversely affect the voting
power and ownership interest of holders of our common stock. This authority may have the effect of deterring hostile takeovers,
delaying or preventing a change in control and discouraging bids for our common stock at a premium over the market price.
DESCRIPTION OF WARRANTS
We may issue warrants to purchase common
stock, preferred stock or other securities described in this prospectus. We may issue warrants independently or as part of a unit
with other securities. Warrants sold with other securities as a unit may be attached to or separate from the other securities.
The prospectus supplement relating to any warrants we are offering will describe specific terms relating to the offering, including
a description of any other securities sold together with the warrants. These terms will include some or all of the following:
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the title of the warrants;
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the aggregate number of warrants offered;
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the price or prices at which the warrants will be issued;
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the designation, number and terms of any common stock, preferred stock or other securities purchasable upon exercise of the warrants and procedures by which those numbers may be adjusted;
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the exercise price of the warrants, including any provisions for changes or adjustments to the exercise price, and terms relating to the currency in which such price is payable;
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the dates or periods during which the warrants are exercisable;
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the designation and terms of any securities with which the warrants are issued as a unit;
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if the warrants are issued as a unit with another security, the date on or after which the warrants and the other security will be separately transferable;
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any minimum or maximum amount of warrants that may be exercised at any one time;
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any terms relating to the modification of the warrants;
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a discussion of material federal income tax considerations, if applicable; and
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any other terms of the warrants and any other securities sold together with the warrants, including, but not limited to, the terms, procedures and limitations relating to the transferability, exchange, exercise or redemption of the warrants.
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The applicable prospectus supplement will
describe the specific terms of any warrant units.
The descriptions of the warrants in this
prospectus and in any prospectus supplement are summaries of the material provisions of the applicable warrant agreements. These
descriptions do not restate those agreements in their entirety and do not contain all of the information that you may find useful.
We urge you to read the applicable agreements because they, and not the summaries, define many of your rights as holders of the
warrants or any warrant units. For more information, please review the form of the relevant agreements, which will be filed with
the SEC promptly after the offering of warrants or warrant units and will be available as described under the heading “Where
You Can Find Additional Information.”
DESCRIPTION OF DEBT SECURITIES
We may issue debt securities, in one or
more series, as either senior or subordinated debt or as senior or subordinated convertible debt. The senior debt securities will
rank equally with any other unsubordinated debt that we may have and may be secured or unsecured. The subordinated debt securities
will be subordinate and junior in right of payment, to the extent and in the manner described in the instrument governing the debt,
to all or some portion of our senior indebtedness. Any convertible debt securities that we may issue will be convertible into or
exchangeable for common stock, preferred stock or other securities of ours or of a third party. Conversion may be mandatory or
at your option and would be at prescribed conversion rates.
The debt securities will be issued under
one or more indentures between us and U.S. Bank National Association, as trustee. While the terms we have summarized below will
apply generally to any debt securities that we may offer under this prospectus, we will describe the particular terms of any debt
securities that we may offer in more detail in a prospectus supplement (and any free writing prospectus).
We will issue the senior notes under the
senior indenture which we will enter into with the trustee. We will issue the subordinated notes under the subordinated indenture
which we will enter into with the trustee. We have filed forms of these documents as exhibits to the registration statement of
which this prospectus is a part. We use the term “indentures” to refer to both the senior indenture and the subordinated
indenture.
The indentures will be qualified under the
Trust Indenture Act of 1939, as amended.
The following summaries of the material
provisions of the senior notes, the subordinated notes and the indentures, together with the additional information we may include
in any applicable prospectus supplements, does not purport to be complete and is subject to, and qualified in its entirety by reference
to, all of the provisions of the forms of indenture filed as exhibits to the registration statement of which this prospectus is
part, as it may be supplemented, amended or modified from time to time, as well as the indentures, notes and supplemental agreements
relating to each series of debt securities that will be incorporated by reference as exhibits to the registration statement that
includes this prospectus or as exhibits to a current report on Form 8-K if we offer debt securities. You should read the applicable
prospectus supplement (and any free writing prospectus that we may authorize to be provided to you) related to the series of debt
securities being offered, as well as the complete indentures that contain the terms of the debt securities. Except as we may otherwise
indicate, the terms of the senior indenture and the subordinated indenture are identical.
The following are some of the terms relating
to a series of debt securities that could be described in a prospectus supplement:
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principal amount being offered, and, if a series, the total amount authorized and the total amount outstanding;
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any limit on the amount that may be issued;
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whether we will issue the series of debt securities in global form and, if so, the terms and who the depositary will be;
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principal amount due at maturity, and whether the debt securities will be issued with any original issue discount;
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whether and under what circumstances, if any, we will pay additional amounts on any debt securities held by a person who is not a United States person for tax purposes, and whether we can redeem the debt securities if we have to pay such additional amounts;
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annual interest rate, which may be fixed or variable, or the method for determining the rate, the date interest will begin to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining such dates;
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whether the debt securities will be secured or unsecured, and the terms of any secured debt;
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terms of the subordination of any series of subordinated debt;
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place where payments will be payable;
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restrictions on transfer, sale or other assignment, if any;
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our right, if any, to defer payment of interest and the maximum length of any such deferral period;
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date, if any, after which, the conditions upon which, and the price at which we may, at our option, redeem the series of debt securities pursuant to any optional or provisional redemption provisions, and any other applicable terms of those redemption provisions;
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provisions for a sinking fund, purchase or other analogous fund, if any;
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date, if any, on which, and the price at which we are obligated, pursuant to any mandatory sinking fund or analogous fund provisions or otherwise, to redeem, or at the holder’s option to purchase, the series of debt securities;
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whether the indenture will restrict our ability or the ability of our subsidiaries to:
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incur additional indebtedness;
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issue additional securities;
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pay dividends or make distributions in respect of our capital stock or the capital stock of our subsidiaries;
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place restrictions on our subsidiaries’ ability to pay dividends, make distributions or transfer assets;
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make investments or other restricted payments;
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sell or otherwise dispose of assets;
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enter into sale-leaseback transactions;
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engage in transactions with shareholders or affiliates;
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issue or sell stock of our subsidiaries; or
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effect a consolidation or merger;
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whether the indenture will require us to maintain any interest coverage, fixed charge, cash flow-based, asset-based or other financial ratios;
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a discussion of any material or special United States federal income tax considerations applicable to the debt securities;
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information describing any book-entry features;
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procedures for any auction or remarketing, if any;
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whether the debt securities are to be offered at a price such that they will be deemed to be offered at an “original issue discount” as defined in paragraph (a) of Section 1273 of the Internal Revenue Code of 1986, as amended;
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denominations in which we will issue the series of debt securities, if other than denominations of $2,000 and any integral multiple of $1,000 in excess thereof;
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if other than dollars, the currency in which the series of debt securities will be denominated; and
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any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, including any events of default that are in addition to those described in this prospectus or any covenants provided with respect to the debt securities that are in addition to those described above, and any terms that may be required by us or advisable under applicable laws or regulations or advisable in connection with the marketing of the debt securities.
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Conversion or Exchange Rights
We will set forth in the applicable prospectus
supplement or free writing prospectus the terms on which a series of debt securities may be convertible into or exchangeable for
common stock, preferred stock or other securities of ours, including the conversion or exchange rate, as applicable, or how it
will be calculated, and the applicable conversion or exchange period. We will include provisions as to whether conversion or exchange
is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number of our securities
that the holders of the series of debt securities receive upon conversion or exchange would, under the circumstances described
in those provisions, be subject to adjustment, or pursuant to which those holders would, under those circumstances, receive other
property upon conversion or exchange, for example in the event of our merger or consolidation with another entity.
Consolidation, Merger or Sale
The terms of any securities that we may
offer pursuant to this prospectus may limit our ability to merge or consolidate or otherwise sell, convey, transfer or otherwise
dispose of all or substantially all of our assets, which terms would be set forth in the applicable prospectus supplement and supplemental
indenture. Any successor of ours or acquiror of such assets would have to assume all of our obligations under the indentures and
the debt securities, as appropriate.
If the debt securities are convertible for
our other securities, the person with whom we consolidate or merge or to whom we sell all of our property would have to make provisions
for the conversion of the debt securities into securities that the holders of the debt securities would have received if they had
converted the debt securities before the consolidation, merger or sale.
Events of Default Under the Indenture
The following are events of default under
the indentures to be filed as exhibits to an amendment to the registration statement with respect to any series of debt securities
that we may issue:
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if we fail to pay interest when due and payable and our failure continues for 30 days and the time for payment has not been extended or deferred;
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if we fail to pay the principal or premium, if any, when due and payable and the time for payment has not been extended or deferred;
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if we fail to observe or perform any other covenant contained in the debt securities or the indentures, and our failure continues for 60 days after we receive notice from the trustee or holders of at least 25% in aggregate principal amount of the outstanding debt securities of the applicable series; and
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if specified events of bankruptcy, insolvency or reorganization occur.
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If an event of default with respect to debt
securities of any series occurs and is continuing, other than an event of default specified in the last bullet point above, the
trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series, by notice
to us in writing, and to the trustee if notice is given by such holders, may declare the unpaid principal of, premium, if any,
and accrued interest, if any, due and payable immediately. If an event of default specified in the last bullet point above occurs
with respect to us, the principal amount of and accrued interest, if any, of each issue of debt securities then outstanding would
be due and payable without any notice or other action on the part of the trustee or any holder.
The holders of a majority in principal amount
of the outstanding debt securities of an affected series may waive any default or event of default with respect to the series and
its consequences, except defaults or events of default regarding payment of principal, premium, if any, or interest, unless we
have cured the default or event of default in accordance with the indenture. Any waiver shall cure the default or event of default.
Subject to the terms of the indentures,
if an event of default under an indenture occurs and continues, the trustee would be under no obligation to exercise any of its
rights or powers under such indenture at the request or direction of any of the holders of the applicable series of debt securities,
unless such holders have offered the trustee indemnity satisfactory to the trustee. The holders of a majority in principal amount
of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities
of that series, provided that:
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the direction so given by the holder is not in conflict with any law or the applicable indenture, nor subject the trustee to a risk of personal liability in respect of which the trustee has not received indemnification satisfactory to it in its sole discretion against all losses, liabilities and expenses caused by taking or not taking such action; and
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the trustee may take any other action deemed proper by the trustee which is not inconsistent with such direction.
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A holder of the debt securities of any series
will have the right to institute a proceeding under the indentures or to appoint a receiver or trustee, or to seek other remedies
only if:
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the holder has given written notice to the trustee of a continuing event of default with respect to that series;
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the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made written request, and such holders have offered indemnity satisfactory to the trustee to institute the proceeding as trustee; and
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the trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of the outstanding debt securities of that series other conflicting directions within 60 days after the notice, request and offer.
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These limitations do not apply to a suit
instituted by a holder of debt securities if we default in the payment of the principal, premium, if any, or interest on, the debt
securities.
We will periodically file statements with
the trustee regarding our compliance with specified covenants in the indentures.
Supplemental Indentures
We and the trustee may from time to time
and at any time enter into an indenture or supplemental indenture without the consent of any holders for one or more of the following
purposes:
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to evidence the succession of another corporation, and the assumption by the successor corporation of our covenants, agreements and obligations under the indenture and debt securities;
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to add to our covenants such new covenants, restrictions, conditions or provisions for the protection of the holders, and to make the occurrence, or the occurrence and continuance, of a default in any of such additional covenants, restrictions, conditions or provisions an event of default;
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to modify, eliminate or add to any of the provisions of the indenture to such extent as necessary to effect the qualification of the indenture under the Trust Indenture Act, and to add to the indenture such other provisions as may be expressly permitted by the trust indenture act, excluding however, the provisions referred to in Section 316(a)(2) of the Trust Indenture Act;
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to cure any ambiguity or to correct or supplement any provision contained in the indenture or in any supplemental indenture which may be defective or inconsistent with other provisions;
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to make provisions in regard to matters or questions arising under the indenture, so long such other provisions to do not adversely affect the interest of any other holder of debt securities in any material respect;
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to secure any series of security;
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to evidence and provide for the acceptance and appointment
of a successor trustee and to add or change any provisions of the indenture as necessary to provide for or facilitate the administration
of the trust by more than one trustee; and
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to establish the form or terms of Securities of any series as permitted under the indenture, including any subordination provisions.
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In addition, we and the trustee, with the
consent of the holders of not less than a majority in aggregate principal of the outstanding debt securities of each series that
is affected, may from time to time and at any time enter into an indenture or supplemental indenture for the purpose of adding
any provisions to or changing in any manner the rights of the holders of the securities of such series and any related coupons
of the indenture, provided that no such supplemental indenture shall:
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extend the fixed maturity of any securities, or reduce the principal amount thereof or premium, if any, or reduce the rate or extend the time of payment of interest, without the extent of the holder so affected;
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reduce the aforesaid percentage of securities, the consent of the holders of which is required for any such supplemental indenture, without the consent of all holders of outstanding series of debt securities; or
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modify any of the above provisions.
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Discharge
Each indenture will provide that we can
elect to be discharged from our obligations with respect to one or more series of debt securities, except for specified obligations,
including obligations to:
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register the transfer or exchange of debt securities of the series;
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replace stolen, lost or mutilated debt securities of the series;
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maintain paying agencies; and
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hold monies for payment in trust.
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In order to exercise our rights to be discharged,
we must deposit with the trustee money or government obligations, or a combination thereof, sufficient to pay all the principal
of, any premium and interest on, the debt securities of the series on the dates payments are due.
Form, Exchange and Transfer
We will issue the debt securities of each
series only in fully registered form without coupons and, unless we otherwise specify in the applicable prospectus supplement or
free writing prospectus, in denominations of $2,000 and any integral multiple of $1,000 in excess thereof. The indentures will
provide that we may issue debt securities of a series in temporary or permanent global form and as book-entry securities that will
be deposited with, or on behalf of, The Depository Trust Company or another depositary named by us and identified in a prospectus
supplement or free writing prospectus with respect to that series.
At the option of the holder, subject to
the terms of the indentures and the limitations applicable to global securities described in the applicable prospectus supplement
or free writing prospectus, the holder of the debt securities of any series can exchange the debt securities for other debt securities
of the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject to the terms of the indentures and
the limitations applicable to global securities set forth in the applicable prospectus supplement or free writing prospectus, holders
of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the
form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the security registrar
or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that
the holder presents for transfer or exchange, we will make no service charge for any registration of transfer or exchange, but
we may require payment of any taxes or other governmental charges.
We will name in the applicable prospectus
supplement or free writing prospectus the security registrar, and any transfer agent in addition to the security registrar, that
we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation
of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required
to maintain a transfer agent in each place of payment for the debt securities of each series.
If we elect to redeem the debt securities
of any series, we will not be required to:
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issue, register the transfer of, or exchange any debt securities of any series being redeemed in part during a period beginning at the opening of business 15 days before the day of sending of a notice of redemption of any debt securities that may be selected for redemption and ending at the close of business on the day of such transmission; or
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register the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of any debt securities we are redeeming in part.
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Information Concerning the Trustee
The trustee, other than during the occurrence
and continuance of an event of default under an indenture, undertakes to perform only those duties as are specifically set forth
in the applicable indenture. Upon an event of default under an indenture, the trustee must use the same degree of care as a prudent
person would exercise or use in the conduct of his or her own affairs. Subject to this provision, the trustee is under no obligation
to exercise any of the powers given it by an indenture at the request of any holder of debt securities unless it is offered security
and indemnity against the costs, expenses and liabilities that it might incur.
Payment and Paying Agents
Unless we otherwise indicate in the applicable
prospectus supplement or free writing prospectus, we will make payment of the interest on any debt securities on any interest payment
date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business
on the regular record date for the interest.
We will pay principal of and any premium
and interest on the debt securities of a particular series at the office of the paying agents designated by us, except that, unless
we otherwise indicate in the applicable prospectus supplement or free writing prospectus, we may make interest payments by check
which we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in a prospectus supplement
or free writing prospectus, we will designate an office or agency of the trustee in the contiguous United States as our sole paying
agent for payments with respect to debt securities of each series. We will name in the applicable prospectus supplement or free
writing prospectus any other paying agents that we initially designate for the debt securities of a particular series. We will
maintain a paying agent in each place of payment for the debt securities of a particular series.
All money we pay to a paying agent or the
trustee for the payment of the principal of or any premium or interest on any debt securities which remains unclaimed at the end
of two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the debt
security thereafter may look only to us for payment thereof.
Governing Law
The indentures and the debt securities will
be governed by and construed in accordance with the laws of the State of New York, except to the extent that the Trust Indenture
Act of 1939 is applicable.
Subordination of Subordinated Debt Securities
The subordinated debt securities will be
subordinate and junior in priority of payment to certain of our other indebtedness to the extent described in a prospectus supplement
or free writing prospectus. The indentures in the forms initially filed as exhibits to the registration statement of which this
prospectus is a part do not limit the amount of indebtedness which we may incur, including senior indebtedness or subordinated
indebtedness, and do not limit us from issuing any other debt, including secured debt or unsecured debt.
DESCRIPTION OF UNITS
As specified in the applicable prospectus
supplement, we may issue units comprised of one or more of the other securities described in this prospectus in any combination.
Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder
of a unit will have the rights and obligations of a holder of each included security. The prospectus supplement will describe:
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the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances the securities comprising the units may be held or transferred separately;
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the terms of any unit agreement governing the units;
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the provisions for the payment, settlement, transfer or exchange of the units;
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material federal income tax considerations, if applicable; and
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whether the units will be issued in fully registered or global form.
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The descriptions of the units and any applicable
underlying security or pledge arrangements in this prospectus and in any prospectus supplement are summaries of the material provisions
of the applicable agreements. These descriptions do not restate those agreements in their entirety and may not contain all the
information that you may find useful. We urge you to read the applicable agreements because they, and not the summaries, define
many of your rights as holders of the units. For more information, please review the form of the relevant agreements, which will
be filed with the SEC promptly after the offering of units and will be available as described under the heading “Where You
Can Find Additional Information.”
PLAN OF DISTRIBUTION
We may sell the securities from time to
time pursuant to underwritten public offerings, negotiated transactions, block trades or a combination of these methods. We may
sell the securities to or through underwriters or dealers, through agents, or directly to one or more purchasers.
We may distribute securities from time to
time in one or more transactions:
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at a fixed price or prices, which may be changed;
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at market prices prevailing at the time of sale;
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at prices related to such prevailing market prices; or
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Unless stated otherwise in the applicable
prospectus supplement, the obligations of any underwriter to purchase securities will be subject to certain conditions, and an
underwriter will be obligated to purchase all of the applicable securities if any are purchased. If a dealer is used in a sale,
we may sell the securities to the dealer as principal. The dealer may then resell the securities to the public at varying prices
to be determined by the dealer at the time of resale.
We or our agents may solicit offers to purchase
securities from time to time. Unless stated otherwise in the applicable prospectus supplement, any agent will be acting on a best
efforts basis for the period of its appointment.
In connection with the sale of securities,
underwriters or agents may receive compensation (in the form of discounts, concessions or commissions) from us or from purchasers
of securities for whom they may act as agents. Underwriters may sell securities to or through dealers, and such dealers may receive
compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers
for whom they may act as agents. Underwriters, dealers and agents that participate in the distribution of securities may be deemed
to be underwriters, as that term is defined in the Securities Act of 1933, as amended (the “Securities Act”), and any
discounts or commissions received by them from us and any profits on the resale of the securities by them may be deemed to be underwriting
discounts and commissions under the Securities Act. We will identify any such underwriter or agent, and we will describe any compensation
paid to them, in the related prospectus supplement.
Underwriters, dealers and agents may be
entitled under agreements with us to indemnification against and contribution toward certain civil liabilities, including liabilities
under the Securities Act.
If stated in the applicable prospectus supplement,
we will authorize agents and underwriters to solicit offers by certain specified institutions or other persons to purchase securities
at the public offering price set forth in the prospectus supplement under delayed delivery contracts providing for payment and
delivery on a specified date in the future. Institutions with which these contracts may be made include commercial and savings
banks, insurance companies, pension funds, investment companies, educational and charitable institutions, and other institutions,
but shall in all cases be subject to our approval. These contracts will be subject only to those conditions set forth in the applicable
prospectus supplement and the applicable prospectus supplement will set forth the commission payable for solicitation of these
contracts. The obligations of any purchaser under any such contract will be subject to the condition that the purchase of the securities
shall not be prohibited at the time of delivery under the laws of the jurisdiction to which the purchaser is subject. The underwriters
and other agents will not have any responsibility in respect of the validity or performance of these contracts.
The securities may or may not be listed
on a national securities exchange or traded in the over-the-counter market, as set forth in the applicable prospectus supplement.
No assurance can be given as to the liquidity of the trading market for any of our securities. Any underwriter may make a market
in these securities. However, no underwriter will be obligated to do so, and any underwriter may discontinue any market making
at any time, without prior notice.
If underwriters or dealers are used in the
sale, until the distribution of the securities is completed, SEC rules may limit the ability of any underwriters and selling group
members to bid for and purchase the securities. As an exception to these rules, representatives of any underwriters are permitted
to engage in certain transactions that stabilize the price of the securities. These transactions may consist of bids or purchases
for the purpose of pegging, fixing or maintaining the price of the securities. If the underwriters create a short position in the
applicable securities in connection with any offering (in other words, if they sell more securities than are set forth on the cover
page of the applicable prospectus supplement) the representatives of the underwriters may reduce that short position by purchasing
securities in the open market. The representatives of the underwriters may also elect to reduce any short position by exercising
all or part of any over-allotment option we may grant to the underwriters, as described in the prospectus supplement. The representatives
of the underwriters may also impose a penalty bid on certain underwriters and selling group members. This means that if the representatives
purchase securities in the open market to reduce the underwriters’ short position or to stabilize the price of the securities,
they may reclaim the amount of the selling concession from the underwriters and selling group members who sold those shares as
part of the offering.
In general, purchases of a security for
the purpose of stabilization or to reduce a short position could cause the price of the security to be higher than it might be
in the absence of those purchases. The imposition of a penalty bid might also have an effect on the price of the securities to
the extent that it discourages resales of the securities. The transactions described above may have the effect of causing the price
of the securities to be higher than it would otherwise be. If commenced, the representatives of the underwriters may discontinue
any of the transactions at any time. In addition, the representatives of any underwriters may determine not to engage in those
transactions or that those transactions, once commenced, may be discontinued without notice.
Certain of the underwriters or agents and
their associates may engage in transactions with and perform services for us or our affiliates in the ordinary course of their
respective businesses.
In no event will the commission or discount
received by any Financial Industry Regulatory Authority (“FINRA”) member or independent broker-dealer participating
in a distribution of securities exceed eight percent of the aggregate principal amount of the offering of securities in which that
FINRA member or independent broker-dealer participates.
LEGAL MATTERS
Morrison & Foerster LLP, San Diego,
California, has passed upon the validity of the securities to be offered pursuant to this prospectus.
EXPERTS
Marcum LLP, an independent
registered public accounting firm, has audited our consolidated financial statements for the years ended December 31, 2016,
2015 and 2014, as well as the effectiveness of our internal controls over financial reporting as of December 31, 2016, as
stated in its report incorporated by reference into this prospectus, and such audited consolidated financial statements have
been incorporated by reference into this prospectus in reliance upon the report of such firm given upon its authority as
experts in accounting and auditing.
The audited historical financial statements
of United Online, Inc. included in Exhibit 99.1 of B. Riley Financial, Inc.’s Current Report on Form 8-K/A dated August
25, 2016 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, an independent registered public accounting
firm, given on the authority of said firm as experts in auditing and accounting.
WHERE YOU CAN FIND
MORE INFORMATION
We file annual, quarterly and current
reports, proxy statements and other information with the SEC. You may read and copy any document that we file at the
SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549, on official business days during the hours
of 10:00 am and 3:00 pm. Please call the SEC at 1-800-SEC-0330 for further information on the Public Reference Room. All
filings we make with the SEC are also available on the SEC’s web site at http://www.sec.gov. Our website addresses are
http://www.greatamerican.com, http://www.brileyfin.com and http://www.unitedonline.net. We have not incorporated by reference into this prospectus the
information on our websites, and you should not consider it to be a part of this document.
We have filed with the SEC a registration
statement on Form S-3 under the Securities Act with respect to the securities being offered by this prospectus. This prospectus
is part of that registration statement. This prospectus does not contain all of the information set forth in the registration statement
or the exhibits to the registration statement. For further information with respect to us and the securities we are offering pursuant
to this prospectus, you should refer to the complete registration statement, its exhibits and the information incorporated by reference
in the registration statement. Statements contained in this prospectus as to the contents of any contract, agreement or other document
referred to are not necessarily complete, and you should refer to the copy of that contract or other documents filed as an exhibit
to the registration statement. You may read or obtain a copy of the registration statement at the SEC’s public reference
room and website referred to above.
INCORPORATION OF
CERTAIN DOCUMENTS BY REFERENCE
For purposes of this prospectus, the SEC
allows us to “incorporate by reference” certain information we have filed with the SEC, which means that we are disclosing
important information to you by referring you to other information we have filed with the SEC. The information we incorporate by
reference is considered part of this prospectus. We specifically are incorporating by reference the following documents filed with
the SEC (excluding those portions of any Current Report on Form 8-K that are not deemed “filed” pursuant to the General
Instructions of Form 8-K):
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Our annual report on Form 10-K for the year ended December
31, 2016, filed with the SEC on March 10, 2017;
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Our current reports on Form 8-K and Form 8-K/A filed with the SEC on August 25, 2016 and
February 21, 2017; and
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Description of our common stock continued in our Registration
Statement on Form 8-A filed on July 7, 2015.
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All documents we file with the SEC pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, except as to any portion of any report or documents that is not deemed
filed under such provisions, (1) on or after the date of filing of the registration statement containing this prospectus and prior
to the effectiveness of the registration statement and (2) on or after the date of this prospectus until the earlier of the date
on which all of the securities registered hereunder have been sold or the registration statement of which this prospectus is a
part has been withdrawn, shall be deemed incorporated by reference in this prospectus and to be a part of this prospectus from
the date of filing of those documents.
These reports and documents can be accessed
free of charge on our website http://www.brileyfin.com by clicking on “About
Us —Investor Relations” and then clicking on “Financial Reports and SEC Filings.” We will provide without
charge to each person, including any beneficial owner, to whom this prospectus is delivered, upon written or oral request, a copy
of any or all documents that are incorporated by reference into this prospectus, but not delivered with the prospectus, other than
exhibits to such documents unless such exhibits are specifically incorporated by reference into the documents that this prospectus
incorporates. Please send written requests to:
21255 Burbank Boulevard, Suite 400
Woodland Hills, California 91367
Attn.: Chief Financial Officer
You should rely only on the information
incorporated by reference or provided in this prospectus or any prospectus supplement. We have not authorized anyone else to provide
you with different information. You should not assume that the information in this prospectus or any prospectus supplement is accurate
as of any date other than the date on the front page of those documents.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses Of Issuance And Distribution
The following table sets forth an estimate
of the costs and expenses relating to the offering of the securities being registered, other than underwriting discounts and commissions,
all of which shall be borne by the Registrant. All of such fees and expenses, except for the SEC registration fee, are estimated:
SEC Registration Fee
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$
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11,590
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FINRA Fee
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$
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15,500
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Legal Fees and Expenses(1)
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$
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25,000
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Accounting Fees and Expenses(1)
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$
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35,000
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Transfer Agent and Registrar Fees and Expenses(1)
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$
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0
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Printing and Engraving Fees(1)
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$
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2,500
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Miscellaneous
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$
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0
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Total
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$
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89,590
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(1) Does not include expenses of preparing prospectus supplements
and other expenses related to offering particular securities.
Item 15. Indemnification Of Directors And Officers
Section 145 of the DGCL provides, in general,
that a corporation incorporated under the laws of the State of Delaware, such as us, may indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding (other than a derivative
action by or in the right of the corporation) by reason of the fact that such person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another
enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. In the case of a derivative
action, a Delaware corporation may indemnify any such person against expenses (including attorneys’ fees) actually and reasonably
incurred by such person in connection with the defense or settlement of such action or suit if such person acted in good faith
and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation, except that no
indemnification will be made in respect of any claim, issue or matter as to which such person will have been adjudged to be liable
to the corporation unless and only to the extent that the Court of Chancery of the State of Delaware or any other court in which
such action was brought determines such person is fairly and reasonably entitled to indemnity for such expenses.
Our Certificate of Incorporation and Bylaws,
each as amended, provide that we will indemnify our directors, officers, employees and agents to the extent and in the manner permitted
by the provisions of the DGCL, as amended from time to time, subject to any permissible expansion or limitation of such indemnification,
as may be set forth in any stockholders’ or directors’ resolution or by contract.
We also have director and officer indemnification
agreements with each of our executive officers and directors that provide, among other things, for the indemnification to the fullest
extent permitted or required by Delaware law, provided that such indemnitee shall not be entitled to indemnification in connection
with any proceedings or claims initiated or brought voluntarily by the indemnitee and not by way of defense, unless (i) such
indemnification is expressly required to be made by law, (ii) the proceeding was authorized by our Board of Directors, (iii) indemnification
is provided by us, in our sole discretion, pursuant to powers vested in us under the DGCL, or (iv) the proceeding is brought to
establish or enforce a right to indemnification under the indemnification agreement or any other statute or law or otherwise as
required under Section 145 of the DGCL. We are not required to indemnify the indemnitee for any amounts paid in settlement of a
proceeding unless we consent to such settlement.
Any repeal or modification of these provisions
approved by our stockholders shall be prospective only, and shall not adversely affect any limitation on the liability of a director
or officer existing as of the time of such repeal or modification.
We have purchased and intend to maintain
insurance on our behalf and on behalf of any person who is or was a director or officer against any loss arising from any claim
asserted against him or her and incurred by him or her in that capacity, subject to certain exclusions and limits of the amount
of coverage.
Item 16. Exhibits
See the Exhibit Index which is incorporated
herein by reference.
Item 17. Undertakings
(a) The registrant hereby undertakes:
(1) To file, during any period in which
offers or sales are being made, a post-effective amendment to this registration statement to:
(i) include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) reflect in the prospectus any facts or
events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding
the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would
not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) (§230.424(b) of this chapter) if, in
the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth
in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) include any material information with
respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information
in the registration statement.
Provided, however
, that paragraphs (a)(1)(i), (a)(1)(ii)
and (a) (1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement or is contained in
a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining
any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means
of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining
liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant
pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed
part of and included in the registration statement; and
(ii) Each prospectus required to be filed
pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the
Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such
form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described
in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of
the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining
liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the
undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or
sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser
and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus
of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating
to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing
prospectus relating to the offering containing material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer
in the offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes
that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual
report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee
benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities
arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant
to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid
by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(d) The undersigned registrant hereby undertakes
that:
(1) For purposes of determining any liability
under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement
in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b) (1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
(2) For the purpose of determining any
liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to
be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(e) The undersigned registrant hereby undertakes
to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310
of the Trust Indenture Act in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust
Indenture Act.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing
on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Woodland Hills, State of California, on March 17, 2017.
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B. RILEY FINANCIAL, INC.
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By:
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/s/ Phillip J. Ahn
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Name: Phillip J. Ahn
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Title: Chief Financial Officer and
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Chief Operating Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS
BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Bryant R. Riley and Phillip J. Ahn as
his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, for him or her
and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments)
to this registration statement and to file the same, with all exhibits thereto and all documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorneys-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes
as he might or could do in person, hereby ratifying and confirming all that such attorneys-in-fact and agent or his substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE
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TITLE
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DATE
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/s/ Bryant R. Riley
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Chief Executive Officer and Chairman of the Board
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March 17, 2017
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Bryant R. Riley
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(
Principal Executive Officer
)
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/s/ Phillip J. Ahn
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Chief Financial Officer and Chief Operating Officer
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March 17, 2017
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Phillip J. Ahn
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(
Principal Financial Officer
)
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/s/ Howard E. Weitzman
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Chief Accounting Officer
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March 17, 2017
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Howard E. Weitzman
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(
Principal Accounting Officer
)
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/s/ Robert D’Agostino
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Director
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March 17, 2017
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Robert D’Agostino
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/s/ Andrew Gumaer
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Director
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March 17, 2017
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Andrew Gumaer
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/s/ Thomas J. Kelleher
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Director
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March 17, 2017
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Thomas J. Kelleher
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/s/ Todd D. Sims
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Director
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March 17, 2017
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Todd D. Sims
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/s/ Richard L. Todaro
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Director
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March 17, 2017
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Richard L. Todaro
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/s/ Mikel H. Williams
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Director
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March 17, 2017
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Mikel H. Williams
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EXHIBIT INDEX
Exhibit
Number
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Description
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1.1
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Form of Underwriting Agreement.**
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4.1
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Amended and Restated Certificate of Incorporation, dated as of August 17, 2015 (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed by the registrant with the Commission on August 18, 2015).
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4.2
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Amended and Restated Bylaws (incorporated by reference to Exhibit 3.6 to the Quarterly Report on Form 10-Q filed by the registrant with the Commission on November 6, 2014).
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4.3
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Form of Common Stock Certificate (Incorporated by reference to the registrant’s Annual Report on Form 10-K filed with the SEC on March 30, 2015).
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4.4
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Form of Warrant Agreement (including form of warrant).**
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4.5
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Form of Unit Agreement (including form of unit certificate).**
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4.6
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Form of Certificate of Designation with respect to shares of Preferred Stock.**
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4.7
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Indenture for Senior Securities.*
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4.8
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Indenture for Subordinated Securities.*
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4.9
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Form of Senior Note.**
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4.10
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Form of Subordinated Note.**
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5.1
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Opinion of Morrison & Foerster LLP regarding the legality of the securities being registered.*
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12.1
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Ratio of Earnings to Fixed Charges*
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23.1
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Consent of Marcum LLP.*
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23.2
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Consent of PricewaterhouseCoopers LLP.*
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23.3
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Consent of Morrison & Foerster LLP (included in Exhibit 5.1).*
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24
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Powers of Attorney of directors and certain officers of the Registrant (included on signature page).*
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25.1
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Statement of eligibility on Form T-1 for U.S. Bank National Association.*
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** To be filed by an amendment or
as an exhibit to a document filed under the Securities Exchange Act of 1934, as amended, and incorporated by reference herein.
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