Post-effective Amendment to an S-8 Filing (s-8 Pos)
28 Mai 2021 - 10:18PM
Edgar (US Regulatory)
As
filed with the Securities and Exchange Commission on May 28, 2021
Registration
No. 333-234453
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
POST-EFFECTIVE
AMENDMENT NO. 1
TO
FORM
S-8 REGISTRATION STATEMENT No. 333-234453
UNDER
THE
SECURITIES ACT OF 1933
B.
Riley Financial, Inc.
(Exact
Name of Registrant as Specified in Its Charter)
Delaware
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27-0223495
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(State
or Other Jurisdiction of
Incorporation
or Organization)
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(I.R.S.
Employer
Identification
No.)
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11100
Santa Monica Blvd., Suite 800,
Los
Angeles, CA
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90025
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(Address
of Principal Executive Offices)
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(Zip
Code)
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B.
Riley Financial, Inc. Amended and Restated 2009 Stock Incentive Plan
B.
Riley Financial, Inc. 2021 Stock Incentive Plan
(Full
Title of the Plans)
Alan
N. Forman
Executive
Vice President, General Counsel and Secretary
299
Park Avenue, 21st Floor,
New
York, NY 10171
(212) 457-3300
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copy
to:
Patrick
S. Brown
Sullivan
& Cromwell LLP
1888
Century Park East, Suite 2100
Los
Angeles, California 90067
(310)
712-6600
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer
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☐
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Accelerated filer
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☒
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Non-accelerated filer
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☐
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Smaller reporting company
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☐
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Emerging growth company
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☐
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.
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☐
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EXPLANATORY
NOTE
B.
Riley Financial, Inc., a Delaware corporation (the “Company” or the “registrant”), previously registered the
offering of shares of common stock, par value $0.0001 per share of the Company (the “Common Stock”), pursuant to the B. Riley
Financial, Inc. Amended and Restated 2009 Stock Incentive Plan (the “2009 Plan”), on a registration statement on Form S-8
(Registration No. 333-234453) filed with the Securities and Exchange Commission (the “Commission”) on November 1, 2019 (the
“November 2019 Registration Statement”).
On
May 27, 2021 (the “Effective Date”), the stockholders of the Company approved the B. Riley Financial, Inc. 2021 Stock Incentive
Plan (the “2021 Plan”). The 2021 Plan provides: (i) as of the Effective Date the 2009 Plan will be terminated and no
new awards may be granted under the 2009 Plan (although awards granted under the 2009 Plan prior to the Effective Date will remain outstanding
in accordance with their terms and those of the 2009 Plan); and (ii) 2,476,531 shares of Common Stock that were previously registered
in connection with the 2009 Plan pursuant to the Company’s November 2019 Registration Statement and shares of Common Stock subject
to outstanding awards under the 2009 Plan as of the Effective Date that, on or after the Effective Date, expire or are forfeited, terminated
or cancelled for any reason without having been exercised or settled in full (collectively, the “Carryover Shares”), will
be eligible for issuance under the 2021 Plan.
Accordingly,
the Company is filing this Post-Effective Amendment No. 1 to the November 2019 Registration Statement (the “Amended Registration
Statement”), pursuant to the undertaking in Item 512(a)(1)(iii) of Regulation S-K, which requires the Company to disclose a material
change in the plan of distribution as originally disclosed in the November 2019 Registration Statement, and Commission Compliance and
Disclosure Interpretation 126.43, to reflect that, as of the Effective Date, the Carryover Shares may be issued under the 2021 Plan,
a copy of which is incorporated herein by reference as an exhibit hereto. This Amended Registration Statement amends and supplements
the items contained in the November 2019 Registration Statement, and no additional shares of Common Stock are being registered pursuant
to the Amended Registration Statement. All other items of the November 2019 Registration Statement are incorporated herein by reference.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
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Incorporation of Documents
by Reference.
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The
Company is subject to the informational and reporting requirements of Sections 13(a), 13(c), 14, and 15(d) of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), and in accordance therewith files reports, proxy statements and other information
with the Commission. The following documents, which are on file with the Commission (File No. 011-37503), are incorporated in this registration
statement by reference:
(a) the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2020, filed on March 4, 2021;
(b) the Company’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2021, filed on May 10, 2021;
(c) the Company’s Current Reports on Form 8-K filed on January 6, 2021, January 15, 2021, January 25, 2021, February 25, 2021, March 1, 2021, March 29, 2021 and April 6, 2021; and
(d) the description of the Company’s Common Stock contained in the Registration Statement on Form 8-A filed on July 15, 2015, and any
amendment or report filed for the purpose of updating such description.
All
documents subsequently filed by the registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (excluding information
deemed to be furnished and not filed with the Commission), prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated
by reference in this registration statement and to be part hereof from the date of the filing of such documents. Any statement contained
in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purposes
of this registration statement to the extent that a statement contained herein or in any other subsequently filed document which also
is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
Item 5.
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Interests of Named Experts
and Counsel.
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The
validity of the securities offered hereby has been passed upon for the Company by Sullivan & Cromwell LLP, its counsel.
Item 6.
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Indemnification of Directors
and Officers.
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Section
145 of the Delaware General Corporation Law provides that a corporation may indemnify directors and officers as well as other employees
and individuals against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with any threatened, pending or completed actions, suits or proceedings in which such person is
made a party by reason of such person being or having been a director, officer, employee or agent to the registrant. The Delaware General
Corporation Law provides that Section 145 is not exclusive of other rights to which those seeking indemnification may be entitled under
any bylaw, agreement, vote of stockholders or disinterested directors or otherwise. Article Eight of the Company’s Amended and
Restated Certificate of Incorporation provides for indemnification by the registrant of its directors, officers and employees to the
fullest extent permitted by the Delaware General Corporation Law.
Section
102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a director
of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for unlawful
payments of dividends or unlawful stock repurchases, redemptions or other distributions, or (iv) for any transaction from which the director
derived an improper personal benefit. The Company’s Amended and Restated Certificate of Incorporation provides for such limitation
of liability.
The
Exhibit Index immediately preceding the exhibits is incorporated herein by reference.
(a)
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The
undersigned registrant hereby undertakes:
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(1) To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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(i)
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To
include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
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(ii)
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To
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;
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(iii)
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To
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;
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provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) 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 Company pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
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(2)
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That,
for the purpose of determining any liability under the Securities Act, 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.
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(3)
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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.
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(b)
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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 section 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.
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(c)
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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 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.
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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-8 and has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of New York, State of New York, on this 28th day of May, 2021.
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B.
Riley Financial, Inc.
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By:
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/s/ Alan
N. Forman
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Alan
N. Forman
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Executive
Vice President, General Counsel and Secretary
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POWER
OF ATTORNEY AND SIGNATURES
We,
the undersigned officers and directors of B. Riley Financial, Inc. hereby severally constitute and appoint Phillip J. Ahn and Alan N.
Forman, and each of them singly, our true and lawful attorneys with full power to them, and each of them singly, to sign for us and in
our names in the capacities indicated below, the registration statement on Form S-8 filed herewith and any and all subsequent amendments
to said registration statement, and generally to do all such things in our names and on our behalf in our capacities as officers and
directors to enable B. Riley Financial, Inc. to comply with the provisions of the Securities Act of 1933, as amended, and all requirements
of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys,
or any of them, to said registration statement and any and all amendments thereto.
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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Co-Chief
Executive Officer
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May
28, 2021
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Bryant
R. Riley
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Chairman
of the Board of Directors
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(Principal
Executive Officer)
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/s/ Thomas
J. Kelleher
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Co-Chief
Executive Officer
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May
28, 2021
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Thomas
J. Kelleher
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Director
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/s/ Phillip
J. Ahn
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Chief
Financial Officer
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May
28, 2021
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Phillip
J. Ahn
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Chief
Operating Officer
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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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May
28, 2021
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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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May
28, 2021
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Robert
D’Agostino
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/s/ Robert
L. Antin
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Director
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May
28, 2021
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Robert
L. Antin
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/s/ Michael
J. Sheldon
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Director
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May
28, 2021
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Michael
J. Sheldon
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/s/ Mimi
Walters
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Director
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May
28, 2021
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Mimi
Walters
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/s/ Randall
Paulson
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Director
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May 28, 2021
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Randall
Paulson
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/s/ Mikel
H. Williams
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Director
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May 28, 2021
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Mikel
H. Williams
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Exhibit
Index
Number
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Description
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4.1
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Amended and Restated Certificate of Incorporation of B. Riley Financial, Inc., as amended, dated as of August 17, 2015 (incorporated herein by reference to Exhibit 3.1 to the registrant’s Current Report on Form 10-Q for the fiscal quarter ending June 30, 2018)
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4.2
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Amended and Restated Bylaws of B. Riley Financial, Inc., dated as of November 6, 2014 (incorporated herein by reference to Exhibit 3.6 to the registrant’s Current Report on Form 10-Q for the fiscal quarter ending September 30, 2014)
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4.3
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Amendment to Amended and Restated Bylaws of B. Riley Financial, Inc., dated as of April 3, 2019 (incorporated herein by reference to Exhibit 3.1 to the registrant’s Current Report on Form 8-K, dated as of April 9, 2019)
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5.1
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Opinion of Sullivan & Cromwell LLP as to the validity of the Common Stock
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10.1
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B. Riley Financial 2009 Stock Incentive Plan (incorporated herein by reference to Exhibit 10.1 to the registrant’s Current Report on Form 10-Q, dated as of June 30, 2015)
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10.2
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B. Riley Financial 2021 Stock Incentive Plan (Appendix A to the Company’s Definitive Proxy Statement filed on April 20, 2021 and incorporated herein by reference)
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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 Sullivan & Cromwell LLP (included in the opinion filed as Exhibit 5.1)
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24.1
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Power of Attorney (included on the signature pages hereto)
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II-5
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