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Item 1.01
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Entry into a Material Definitive Agreement.
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The Note Purchase Agreement
As previously
reported, on January 31, 2020, Cohen & Company, LLC (the “Operating LLC”), a Delaware limited liability company
and a subsidiary of Cohen & Company Inc., a Maryland corporation (the “Company”), entered into a Note Purchase Agreement
(the “Original Purchase Agreement”), by and among the Operating LLC, JKD Capital Partners I LTD, a New York corporation (“JKD”),
and RN Capital Solutions LLC, a Delaware limited liability company (“RNCS”), pursuant to which, among other things,
on such date, (i) JKD purchased from the Operating LLC a Senior Promissory Note in the aggregate principal amount of $2,250,000 (the
“JKD Note”); and (ii) RNCS purchased from the Operating LLC a Senior Promissory Note in the aggregate principal amount
of $2,250,000 (the “RNCS Note” and, together with the JKD Note, the “Original Notes”). Each of the Original Notes
was scheduled to mature on January 31, 2022. Descriptions of the Original Purchase Agreement and the Original Notes can be found
in the Company’s Current Report on Form 8-K, filed with the Securities and Exchange Commission (the “SEC”) on February 3,
2020.
JKD is owned by Jack J. DiMaio, Jr., a current member of the Company’s
board of directors, and his spouse.
On January 31,
2022 (the “Effective Date”), the Operating LLC and JKD entered into a Note Purchase Agreement (the “2022 Purchase Agreement”),
pursuant to which, among other things, on the Effective Date, (i) JKD paid to the Operating LLC an additional $2,250,000 and
(ii) in consideration for such funds, the Operating LLC issued to JKD an Amended and Restated Senior Promissory Note in the aggregate
principal amount of $4,500,000 (the “Amended and Restated Note”), which Amended and Restated Note amended and restated the
JKD Note in its entirety.
Pursuant to the 2022 Purchase Agreement, the Operating LLC agreed to
use the $2,250,000 received from JKD to repay in full all amounts outstanding under the RNCS Note and, on the Effective Date, the Operating
LLC repaid the RNCS Note in full.
The 2022 Purchase Agreement contains customary representations
and warranties on the part of each of JKD and the Operating LLC.
The foregoing description of the 2022 Purchase Agreement does not purport
to be complete and is qualified in its entirety by reference to the full text of the 2022 Purchase Agreement, a copy of which is attached
hereto as Exhibit 10.1 and is incorporated herein by reference.
The Amended and Restated Note
The Amended and Restated Note evidences Operating LLC’s obligation
to repay to JKD (i) the original principal amount of $2,250,000 paid by JKD to the Operating LLC under the Original Purchase Agreement,
plus (ii) the additional $2,250,000 paid by JKD to the Operating LLC under the 2022 Purchase Agreement.
Pursuant to the Amended and Restated Note, which is substantially identical
to the JKD Note, the unpaid principal amount and all accrued but unpaid interest thereunder will be due and payable in full on January 31,
2024; provided, that, at any time after January 31, 2023 and prior to January 31, 2024, the holder of the Amended and Restated
Note may, with at least 31 days’ prior written notice from the holder to the Operating LLC, declare the entire unpaid principal
amount outstanding and all interest accrued and unpaid on the Amended and Restated Note to be immediately due and payable.
The Amended and Restated Note accrues interest on the unpaid principal
amount from the Effective Date until maturity at a rate equal to 10% per year. Interest on the Amended and Restated Note is payable in
cash quarterly on each January 1, April 1, July 1, and October 1, commencing on April 1, 2022. Under the
Amended and Restated Note, upon the occurrence or existence of any “Event of Default” thereunder, the outstanding principal
amount is (or in certain instances, at the option of the holder thereof, may be) immediately accelerated. Further, upon the occurrence
of any “Event of Default” under the Amended and Restated Note and for so long as such Event of Default continues, all principal,
interest and other amounts payable under the Amended and Restated Note will bear interest at a rate equal to 11% per year.
The Amended and Restated Note may not be prepaid in whole or in part
prior to January 31, 2023. The Amended and Restated Note may, with at least 31 days’ prior written notice from the Operating
LLC to the holder thereof, be prepaid in whole or in part at any time following January 31, 2023 without the prior written consent
of the holder and without penalty or premium.
The Amended and Restated Note and the payment of all principal, interest
and any other amounts payable thereunder are senior obligations of the Operating LLC and will be senior to any Indebtedness (as defined
in the Amended and Restated Note) of the Operating LLC outstanding as of and issued following January 30, 2020 (the original issuance
date of the JKD Note), except that the Amended and Restated Note ranks parri passu to the Convertible Senior Secured Promissory
Note, dated March 10, 2017, issued by the Operating LLC to the DGC Family Fintech Trust in the aggregate principal amount of $15,000,000.
Pursuant the Amended and Restated Note, following the Effective Date,
the Operating Company may not incur any Indebtedness that is a senior obligation to the Amended and Restated Note.
The foregoing description of the Amended and Restated Note does not
purport to be complete and is qualified in its entirety by reference to the full text of the Amended and Restated Note, a copy of which
is attached hereto as Exhibit 10.2 and is incorporated herein by reference.