UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report
Pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 1934
June 25, 2020
Date of Report (Date of earliest event reported)
ASTA FUNDING, INC.
(Exact name of registrant as specified in its charter)
Delaware
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1-35637
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22-3388607
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(State or other jurisdiction of
incorporation or organization)
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(Commission File Number)
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(I.R.S. Employer
Identification No.)
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210 Sylvan Avenue
Englewood Cliffs, NJ 07632
(Address of principal executive offices, zip code)
(201) 567-5648
(Registrant’s telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
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Trading Symbol(s)
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Name of exchange on which registered
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Common stock, par value $0.01 per share
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ASFI
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Nasdaq Global Select Market
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Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant
under any of the following provisions (see General Instruction A.2.
below):
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☐
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Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425)
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☒
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
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☐
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Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
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☐
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Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
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Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933
(§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange
Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act.
☐
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Item 1.01.
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Entry Into a Material Definitive Agreement.
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Amendment to Agreement and Plan of Merger
On June 25, 2020, Asta Funding, Inc., a Delaware corporation
(“Asta”), entered into Amendment No. 1 to Agreement and Plan of
Merger (the “Amendment”). The Amendment amends that certain
Agreement and Plan of Merger (the “Merger Agreement”), dated
April 8, 2020, by and among Asta, Asta Finance Acquisition Inc., a
Delaware corporation (“Parent”), and Asta Finance Acquisition Sub
Inc., a Delaware corporation and a wholly-owned subsidiary of
Parent (“Merger Sub” and together with Parent, the “Parent
Parties”). Under the Merger Agreement, Merger Sub shall merge with
and into Asta, with Asta surviving the Merger as a wholly-owned
subsidiary of Parent (the “Merger”).
Under the terms of the Amendment, if the Merger is completed,
holders of shares of the common stock of Asta (the “Common Stock”)
that are outstanding immediately prior to the time of the
consummation of the Merger (the “Effective Time”) shall be entitled
to receive $13.10 in cash for each share of the Common Stock held
by such stockholders (the “Merger Consideration”), and all such
shares shall be automatically canceled and retired and shall cease
to exist. The Merger Agreement had originally provided that each
such holder of shares of Common Stock would be entitled to receive
$11.47 in cash for each share of the Common Stock. The Amendment
also required Asta to enter into the Voting Agreement (as defined
below) as a condition and inducement to the willingness of the
Parent Parties to enter into the Amendment.
The foregoing summary of the Amendment is qualified in its entirety
by reference to the complete text of such document, which is filed
as Exhibit 2.1 attached hereto and which is incorporated herein by
reference.
Voting Agreement
On June 25, 2020, in connection with the execution of the
Amendment, RBF Capital, LLC (“RBF”), who beneficially owns, in the
aggregate, as of June 25, 2020, approximately 8.9% of the issued
and outstanding shares of Common Stock, entered into a Settlement
and Voting Agreement (the “Voting Agreement”) with Asta, pursuant
to which RBF has, among other things, agreed to vote the shares of
Common Stock beneficially owned by it, or that may become
beneficially owned by it during the term of the Voting Agreement,
in favor of adopting of the Merger Agreement, as amended by the
Amendment, and any other matters necessary for consummation of the
Merger and the other transactions contemplated by the Merger
Agreement, as amended by the Amendment. Under the Voting Agreement,
RBF has agreed to restrictions on its ability to transfer the
shares of Common Stock owned by it, subject to certain exceptions.
The obligations and rights under the Voting Agreement terminate
upon the earliest of (i) the Effective Time (as defined in the
Merger Agreement), (ii) the termination of the Merger Agreement, or
any further material (as determined in RBF’s reasonable discretion)
amendment or modification of terms of such agreements (or for the
avoidance of doubt the Merger), and (iii) October 31, 2020.
The foregoing summary of the Voting Agreement is qualified in its
entirety by reference to the complete text of such document, which
is filed as Exhibit 10.1 attached hereto and which is incorporated
herein by reference.
Additional Information about the Merger and Where
to Find It
In connection with the proposed Merger, Asta has filed with the
Securities and Exchange Commission (the “SEC”) a proxy statement on
Schedule 14A as well as a Schedule 13E-3 Transaction Statement (the
“Schedule 13E-3”), each of which will be amended to reflect the
updated terms contemplated by the Amendment. The proxy statement
and the Schedule 13E-3 will contain important information about
Asta, the Merger and related matters. Asta will mail or otherwise
deliver the proxy statement to its stockholders when it becomes
available. Investors and stockholders of Asta are urged to read
carefully the proxy statement relating to the Merger (including any
amendments or supplements thereto) and the Schedule 13E-3 in their
entirety when they are available, because they will contain
important information about the proposed Merger.
Investors and stockholders of Asta will be able to obtain free
copies of the proxy statement and the Schedule 13E-3 for the
proposed Merger (when it is available) and other documents filed
with the SEC by Asta through the website maintained by the SEC at
www.sec.gov. In addition, investors and stockholders of Asta will
be able to obtain free copies of the proxy statement and the
Schedule 13E-3 for the proposed Merger (when they are available) by
contacting Asta, Attn: Seth Berman,
sberman@astafunding.com.
Participants in the Merger
Asta and certain of its directors, executive officers and other
members of management and employees may, under SEC rules, be deemed
to be “participants” in the solicitation of proxies from
stockholders of Asta with respect to the proposed Merger.
Information regarding the persons who may be considered
“participants” in the solicitation of proxies will be set forth in
the Asta’s proxy statement relating to the proposed Merger when it
is filed with the SEC. Information regarding Asta’s directors and
executive officers is contained in Asta’s Annual Report on Form
10-K for the fiscal year ended September 30, 2019, which was filed
with the SEC on December 20, 2019 and amended on January 27, 2020,
and will also be available in the proxy statement that will be
filed by Asta with the SEC in connection with the Merger.
Cautionary Statement Regarding Forward-Looking
Statements
This document contains forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933, Section 21E
of the Securities Exchange Act of 1934 and as that term is defined
in the Private Securities Litigation Reform Act of 1995, including,
but not limited to, Asta’s expectations or predictions of future
financial or business performance or conditions. Forward-looking
statements are sometimes identified by their use of the terms and
phrases such as “estimate,” “project,” “intend,” “forecast,”
“anticipate,” “plan,” “planning, “expect,” “believe,” “will,” “will
likely,” “should,” “could,” “would,” “may” or the negative of such
terms and other comparable terminology. These forward-looking
statements are subject to numerous assumptions, risks and
uncertainties, which change over time, are difficult to predict and
are generally beyond the control of Asta. Actual results may differ
materially from current projections.
Important factors that may cause actual results to differ
materially from the results discussed in the forward-looking
statements or historical experience include risks and
uncertainties, including but not limited to, the ability of the
parties to consummate the proposed Merger; satisfaction of closing
conditions to the consummation of the proposed Merger; the impact
of the announcement or the closing of the Merger on the Asta’s
relationships with its employees, existing customers or potential
future customers; litigation and stockholder claims related to and
in connection with the Merger; and the ability to realize
anticipated benefits of the proposed Merger. Further information on
the factors and risks that could affect Asta’s respective
businesses, financial conditions and results of operations are
contained in Asta’s filings with the SEC, which are available at
www.sec.gov. Forward-looking statements contained in this Current
Report on Form 8-K speak only as of the date hereof. Asta assumes
no obligation to update any forward-looking statement contained in
this Current Report on Form 8-K.
On June 25, 2020, Asta issued a press release announcing the
execution of the Amendment and the Voting Agreement. The press
release is attached as Exhibit 99.1 and is incorporated by
reference herein.
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Item 9.01.
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Financial Statements and Exhibits.
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(d) Exhibits.
Exhibit No.
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Description
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2.1
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Amendment
No. 1 to Agreement and Plan of Merger, dated as of June 25, 2020,
by and among Asta Finance Acquisition, Inc., Asta Finance
Acquisition Sub Inc. and Asta Funding, Inc.
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10.1
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Settlement
and Voting Agreement, dated as of June 25, 2020, by and between
Asta Funding, Inc. and RBF Capital, LLC.
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99.1 |
Press
Release issued by Asta Funding, Inc. dated June 25, 2020. |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, hereunto duly authorized.
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ASTA FUNDING,
INC.
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Date: June 25, 2020
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By:
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/s/ Steven
Leidenfrost
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Steven Leidenfrost
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Chief Financial
Officer
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