Item 1.01
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Entry into a Material Definitive Agreement.
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On December 30, 2019 (the
“Effective Date”), Cohen & Company Inc., a Maryland corporation (the “Company”), entered into a
Securities Purchase Agreement (the “Purchase Agreement”), by and among the Company, Cohen & Company, LLC, a
subsidiary of the Company (the “Operating LLC”), Daniel G. Cohen (“Mr. Cohen”), and The DGC Family
Fintech Trust, a trust established by Daniel G. Cohen (the “DGC Trust,” and, together with Mr.
Cohen, “Buyer”). Mr. Cohen is the President and Chief Executive of the Company’s European
operations and Chairman of the Company’s Board of Directors and the Operating LLC’s Board of Managers. Mr.
Cohen is neither a trustee nor a named beneficiary of the DGC Trust and does not have any voting or dispositive control of
securities held by the DGC Trust.
Pursuant to the Purchase Agreement, on the Effective Date, Buyer
purchased (i) from the Operating LLC an aggregate of 22,429,541 newly issued units of membership interests in the Operating LLC
(collectively, the “LLC Units”); and (ii) 22,429,541 newly issued Series F Voting Non-Convertible Preferred Stock of
Parent, par value $0.001 per share (collectively, the “Series F Shares”).
In consideration of the issuance of the LLC Units and the Series
F Shares to Buyer, on the Effective Date, Buyer transferred to the Operating LLC an aggregate of 662,361 shares of the common stock, par value $0.0001 per share (“IMXI Common Stock”), of International
Money Express, Inc. (formerly FinTech Acquisition Corp. II), a Delaware corporation (“IMXI”), of which (a) 264,021
shares are subject to certain restrictions on transfer until the closing price per share of IMXI Common Stock (as reported by
The Nasdaq Capital Market) exceeds $15.00 for any twenty trading days within a consecutive thirty trading day period
or immediately upon certain change of control events involving IMXI, as set forth in the letter agreement, dated January 19, 2017
(the “Letter Agreement”), by and among IMXI, Mr. Cohen, the DGC Trust and the other parties named therein, and (b)
264,023 shares are subject to certain restrictions on transfer until the closing price per share of IMXI Common Stock (as reported
by The Nasdaq Capital Market) exceeds $17.00 for any twenty trading days within a consecutive thirty trading day period
or immediately upon certain change of control events involving IMXI, as set forth in the Letter Agreement.
The IMXI Common Stock is listed on The Nasdaq Capital
Market (“Nasdaq”) under the trading symbol “IMXI.” Prior to the merger of IMXI with and into a special
purpose acquisition company in a transaction which resulted in the listing of IMXI on Nasdaq, Mr. Cohen served as the Chief Executive
Officer and member of the Board of Directors of special purpose acquisition company.
The Purchase Agreement contain customary representations
and warranties on the part of each of the Operating LLC and the Company and Buyer, and the Operating LLC and the Company and Buyer
provide customary indemnifications thereunder.
Pursuant to the Amended and Restated Limited Liability
Company Agreement of the Operating LLC, dated as of December 16, 2009, as amended (“LLC Agreement”), a holder of
units of membership interests in the Operating Agreement, including the LLC Units, may cause the Operating LLC to redeem
(each, a “Unit Redemption”) such units at any time for, at the Company’s option, (A) cash or
(B) one share of the Company’s common stock, par value $0.01 per share (“Common Stock”), for every ten
units of membership interests in the Operating LLC.
However, pursuant to the Purchase Agreement, Buyer agreed
that, until the Company’s stockholders approve the Stockholder Proposal (as defined below), Buyer will not cause a
Unit Redemption with respect to any portion of the LLC Units if such Unit Redemption would result in the Company issuing
a number of shares of Common Stock that, when aggregated with any shares of Common Stock previously issued in connection
with any Unit Redemption of the LLC Units equals or exceeds 19.99% of the outstanding Common Stock as of the Effective
Date.
Pursuant to the Purchase Agreement, Buyer also agreed to not
cause a Unit Redemption with respect to any portion of the Cohen LLC Units if the Company’s Board of Directors determines
that the satisfaction of such Unit Redemption by the Company with shares of Common Stock would jeopardize or endanger the availability
to the Company of its net operating loss and net capital loss carryforwards and certain other tax benefits under Section 382 of
the Internal Revenue Code of 1986, as amended.
Pursuant to the Purchase Agreement, at the 2020 annual meeting
of the Company’s stockholders, the Company agreed to cause its stockholders
to vote on proposals (collectively, the “Stockholder Proposal”) regarding the issuance of all shares of Common Stock
issuable in connection with a redemption of the LLC Units for purposes of Section 713 of the NYSE American’s Company Guide.
Further, the Company’s Board of Directors must recommend to the Company’s stockholders that such stockholders approve
the Stockholder Proposal, and may not modify or withdraw such resolution.
In addition, effective as of the Effective Date, if the Company
owns a number of units of membership interests in the Operating LLC representing less than a majority of the votes entitled to
be cast at any meeting or any other circumstances upon which a vote, agreement, consent (including unanimous written consents)
or other approval is sought from the holders of units of membership interests in the Operating LLC (each, a “Meeting”),
then for so long as the Company owns a number of units of membership interests in the Operating LLC representing less than a majority
of the votes entitled to be cast at any Meeting, Buyer has agreed to grant a voting proxy to the Company pursuant to which the
Company may vote at any Meeting the number of units of membership interests in the Operating LLC owned by Buyer necessary to give
the Company a majority of the votes at such Meeting.
The foregoing description of the Purchase Agreement
does not purport to be complete and is qualified in its entirety by reference to the full text of the Purchase Agreement, a copy
of which is attached hereto as Exhibit 10.1 and is incorporated herein by reference.