Form 10-Q BM Technologies, Inc. For: Mar 31
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E-mailUNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
| QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | |||||
For the quarterly period ended March 31, 2022
OR
| Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 | |||||
For the transition period from to
Commission file number 001-38633
(Exact name of registrant as specified in its charter)
| (State or other jurisdiction of incorporation or organization) | (I.R.S Employer Identification No.) | ||||||||||
| (Address of Principal Executive) | (Zip-Code) | ||||||||||
(877 ) 327-9515
Registrant's telephone number, including area code
(Former name, former address and former fiscal year, if changed since last report)
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||||||
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports); and (2) has been subject to such filing requirements for the past 90 days. Yes ☐ No ☒
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes ☐ No ☒
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, non-accelerated filer, and emerging growth company in Rule 12b-2 of the Exchange Act.
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. Yes ☐ No ☒
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes ☐ No ☒
The registrant had issued and outstanding 12,238,947 shares of common stock, par value $0.0001 per share, as of August 16, 2022.
Table of Contents
| Page | |||||
1
Part I - Financial Information
ITEM 1. UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
BM TECHNOLOGIES, INC.
CONSOLIDATED BALANCE SHEETS — UNAUDITED
(amounts in thousands, except share and per share data)
| March 31, 2022 | December 31, 2021 | ||||||||||
| ASSETS | |||||||||||
| Cash and cash equivalents | $ | $ | |||||||||
Accounts receivable, net of allowance for doubtful accounts of $ | |||||||||||
| Prepaid expenses and other assets | |||||||||||
| Total current assets | |||||||||||
| Premises and equipment, net | |||||||||||
| Developed software, net | |||||||||||
| Goodwill | |||||||||||
| Other intangibles, net | |||||||||||
| Other assets | |||||||||||
| Total assets | $ | $ | |||||||||
| LIABILITIES AND SHAREHOLDERS’ EQUITY | |||||||||||
| Liabilities: | |||||||||||
| Accounts payable and accrued liabilities | $ | $ | |||||||||
| Taxes payable | |||||||||||
| Current portion of operating lease liabilities | |||||||||||
| Deferred revenue, current | |||||||||||
| Total current liabilities | |||||||||||
| Non-current liabilities: | |||||||||||
| Deferred revenue, non-current | |||||||||||
| Liability for private warrants | |||||||||||
| Total liabilities | $ | $ | |||||||||
| Commitments and contingencies (Note 8) | |||||||||||
| Shareholders’ equity: | |||||||||||
Preferred stock: Par value $ | $ | $ | |||||||||
Common stock: Par value $ | |||||||||||
| Additional paid-in capital | |||||||||||
| Accumulated deficit | ( | ( | |||||||||
| Total shareholders’ equity | $ | $ | |||||||||
| Total liabilities and shareholders’ equity | $ | $ | |||||||||
See accompanying notes to the unaudited consolidated financial statements.
2
BM TECHNOLOGIES, INC.
CONSOLIDATED STATEMENTS OF INCOME (LOSS) — UNAUDITED
(amounts in thousands, except per share data)
| Three Months Ended March 31, | ||||||||||||||
| 2022 | 2021 | |||||||||||||
| Operating revenues: | ||||||||||||||
| Interchange and card revenue | $ | $ | ||||||||||||
| Servicing fees from Partner Bank | ||||||||||||||
| Account fees | ||||||||||||||
| University fees | ||||||||||||||
| Other revenue | ||||||||||||||
| Total operating revenues | ||||||||||||||
| Operating expenses: | ||||||||||||||
| Technology, communication, and processing | ||||||||||||||
| Salaries and employee benefits | ||||||||||||||
| Professional services | ||||||||||||||
| Provision for operating losses | ||||||||||||||
| Occupancy | ||||||||||||||
| Customer related supplies | ||||||||||||||
| Advertising and promotion | ||||||||||||||
| Merger and acquisition related | ||||||||||||||
| Other expense | ||||||||||||||
| Total operating expenses | ||||||||||||||
| Income from operations | ||||||||||||||
| Non-operating expenses: | ||||||||||||||
| Gain on fair value of private warrant liability | ||||||||||||||
| Interest expense | ( | |||||||||||||
| Income before income tax expense | ||||||||||||||
| Income tax expense | ||||||||||||||
| Net income | $ | $ | ||||||||||||
| Weighted average number of shares outstanding - basic | ||||||||||||||
| Weighted average number of shares outstanding - diluted | ||||||||||||||
| Net income per share - basic | $ | $ | ||||||||||||
| Net income (loss) per share - diluted | $ | $ | ||||||||||||
See accompanying notes to the unaudited consolidated financial statements.
3
BM TECHNOLOGIES, INC.
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS’ EQUITY — UNAUDITED
For the Three Months Ended March 31, 2022 and 2021
(amounts in thousands, except share data)
| Common Stock | ||||||||||||||||||||||||||||||||
| Shares of Common Stock Outstanding | Common Stock | Additional Paid in Capital | Accumulated Deficit | Total | ||||||||||||||||||||||||||||
| Balance at December 31, 2021 | $ | $ | $ | ( | $ | |||||||||||||||||||||||||||
| Net income | — | — | — | |||||||||||||||||||||||||||||
| Share-based compensation expense | — | — | ||||||||||||||||||||||||||||||
| Conversion of private warrants to public warrants | — | — | — | |||||||||||||||||||||||||||||
| Tax paid on behalf of employees related to net settlement of share-based awards | — | — | ( | — | ( | |||||||||||||||||||||||||||
| Balance at March 31, 2022 | $ | $ | $ | ( | $ | |||||||||||||||||||||||||||
| Common Stock | ||||||||||||||||||||||||||||||||
| Shares of Common Stock Outstanding | Common Stock | Additional Paid-in Capital | Accumulated Deficit | Total | ||||||||||||||||||||||||||||
| Balance at December 31, 2020 | $ | $ | $ | ( | $ | |||||||||||||||||||||||||||
| Net income | — | — | — | |||||||||||||||||||||||||||||
| Valuation of private warrants | — | — | ( | — | ( | |||||||||||||||||||||||||||
| Recapitalization transaction | — | — | ||||||||||||||||||||||||||||||
| Issuance of common stock as compensation | — | — | ||||||||||||||||||||||||||||||
| Share-based compensation expense | — | — | — | |||||||||||||||||||||||||||||
| Balance at March 31, 2021 | $ | $ | $ | ( | $ | |||||||||||||||||||||||||||
See accompanying notes to the unaudited consolidated financial statements.
4
BM TECHNOLOGIES, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS — UNAUDITED
(amounts in thousands)
| Three Months Ended March 31, | ||||||||||||||
| 2022 | 2021 | |||||||||||||
| Cash Flows from Operating Activities: | ||||||||||||||
| Net income | $ | $ | ||||||||||||
| Adjustments to reconcile net income to net cash provided by operating activities: | ||||||||||||||
| Depreciation of premises and equipment | ||||||||||||||
| Amortization of developed software | ||||||||||||||
| Amortization of other intangibles | ||||||||||||||
| Amortization of leased assets | ||||||||||||||
| Share-based compensation expense | ||||||||||||||
| Gain on fair value of private warrant liability | ( | ( | ||||||||||||
| Changes in operating assets and liabilities: | ||||||||||||||
| Accounts receivable, net | ( | ( | ||||||||||||
| Prepaid expenses and other current assets | ( | ( | ||||||||||||
| Other assets | ( | ( | ||||||||||||
| Accounts payable and accrued liabilities | ||||||||||||||
| Taxes payable | ||||||||||||||
| Operating lease liabilities | ( | ( | ||||||||||||
| Deferred revenue | ||||||||||||||
| Net Cash Provided by Operating Activities | ||||||||||||||
| Cash Flows from Investing Activities: | ||||||||||||||
| Development of internal use software | ( | ( | ||||||||||||
| Purchases of premises and equipment | ( | |||||||||||||
| Net Cash Used in Investing Activities | ( | ( | ||||||||||||
| Cash Flows from Financing Activities: | ||||||||||||||
| Repayments of borrowings from Partner Bank | ( | |||||||||||||
| Recapitalization transaction | ||||||||||||||
| Repurchase of private warrants | ( | |||||||||||||
| Payments related to net settlement of share-based compensation awards | ( | |||||||||||||
| Net Cash (Used in) Provided by Financing Activities | ( | |||||||||||||
| Net Increase in Cash and Cash Equivalents | ||||||||||||||
| Cash and Cash Equivalents – Beginning | ||||||||||||||
| Cash and Cash Equivalents – Ending | $ | $ | ||||||||||||
| Supplementary Cash Flow Information: | ||||||||||||||
| Interest paid | $ | $ | ||||||||||||
| Noncash Operating, Investing, and Financing Activities: | ||||||||||||||
| Shares issued to settle Megalith accounts payable in connection with Recapitalization transaction | $ | $ | ||||||||||||
See accompanying notes to the unaudited consolidated financial statements.
5
BM TECHNOLOGIES, INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1 — DESCRIPTION OF THE BUSINESS
Description of the Business
BM Technologies, Inc. (“BMTX” or “the Company”) (formerly known as BankMobile) provides state-of-the-art high-tech digital banking and disbursement services to consumers and students nationwide through a full service fintech banking platform, accessible to customers anywhere and anytime through digital channels.
BMTX facilitates deposits and banking services between a customer and our Partner Bank, Customers Bank (“Customers Bank”), a Pennsylvania state-chartered bank, which is a related party and is a Federal Deposit Insurance Corporation (“FDIC”) insured bank. BMTX’s business model leverages partners’ existing customer bases to achieve high volume, low-cost customer acquisition in its Higher Education Disbursement, Banking-as-a-Service (“BaaS”), and niche Direct to Consumer (“D2C") Banking businesses. BMTX has four primary revenue sources: interchange and card revenue, servicing fees from BMTX’s Partner Bank, account fees, and university fees. The majority of revenues are driven by customer activity (deposits, spend, transactions, etc.) but may be paid or passed through by BMTX’s Partner Bank, universities, or paid directly by customers.
BMTX is a Delaware corporation, originally incorporated as Megalith Financial Acquisition Corp (“Megalith”) in November 2017 and renamed BM Technologies, Inc. in January 2021 at the time of the merger between Megalith and BankMobile Technologies, Inc. Until January 4, 2021, BankMobile Technologies, Inc. was a wholly-owned subsidiary of Customers Bank, a wholly-owned subsidiary of Customers Bancorp, Inc. (the “Bancorp” or “Customers Bancorp”). Customers Bank is BMTX’s Partner Bank.
BMTX’s Partner Bank holds the FDIC insured deposits that BMTX sources and services and is the issuing bank on BMTX’s debit cards. BMTX’s Partner Bank pays the Company a deposit servicing fee for the deposits generated and passes through interchange income earned from debit transactions.
BMTX is not a bank, does not hold a bank charter, and does not provide banking services, and as a result it is not subject to direct banking regulation, except as a service provider to our Partner Bank. BMTX is also subject to the regulations of the Department of Education (“ED”), due to its student Disbursements business, and is periodically examined by it. BMTX’s contracts with most of its higher education institutional clients require it to comply with numerous laws and regulations, including, where applicable, regulations promulgated by the ED regarding the handling of student financial aid funds received by institutions on behalf of their students under Title IV of the Higher Education Act of 1965; the Family Educational Rights and Privacy Act of 1995 (“FERPA”); the Electronic Fund Transfer Act and Regulation E; the USA PATRIOT Act and related anti-money laundering requirements; and certain federal rules regarding safeguarding personal information, including rules implementing the privacy provisions of the Gramm-Leach-Bliley Act (“GLBA”). Other products and services offered by BMTX may also be subject to other federal and state laws and regulations.
NOTE 2 — BASIS OF PRESENTATION AND SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation
These interim unaudited consolidated financial statements have been prepared in conformity with U.S. Generally Accepted Accounting Principles (“U.S. GAAP”). Any reference to applicable guidance is meant to refer to the authoritative GAAP as found in the Accounting Standards Codification ("ASC") and Accounting Standards Update ("ASU") of the Financial Accounting Standards Board ("FASB"). These interim unaudited consolidated financial statements reflect all normal and recurring adjustments that are, in the opinion of management, necessary to present a fair statement of the financial position and the results of operations and cash flows of BMTX for the interim periods presented.
The preparation of interim unaudited consolidated financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities, the disclosure of contingent assets and liabilities at the date of the interim unaudited consolidated financial statements, and the reported amounts of revenues and expenses during the reporting periods. Significant estimates include valuation of deferred tax assets, valuation of the private warrants, goodwill, and intangible asset impairment analysis. Actual results could differ from those estimates.
6
Prior Period Reclassifications
Certain prior period amounts have been reclassified to conform to the current period presentation.
Balance Sheet Reclassifications
In preparation of the Company’s interim unaudited consolidated financial statements as of and for the three months ended March 31, 2022, the Company identified that its reserve for losses resulting from fraud or theft-based transactions that have generally been disputed by BMTX serviced deposit account holders and a related receivable were previously presented on a net basis as a component of Other assets. The Company reviewed this presentation and concluded that these amounts are better presented on a gross basis including the reserve for losses as a component of Accounts payable and accrued liabilities and including the receivable for any billable reimbursements from our Partner Bank as a component of Accounts receivable, net.
In addition, the MasterCard quarterly fee assessment was reclassified from Accounts payable and accrued liabilities to Accounts receivable, net to better present the fee assessment balance.
Finally, the Company identified certain prepaid taxes that were previously included as a component of Other Assets. The Company reviewed this presentation and concluded that these amounts are better presented as a component of Prepaid expenses and other current assets due to their short-term nature.
The effect of these reclassifications has increased Accounts receivable, net by $33 thousand and Accounts payable and accrued liabilities by $86 thousand, decreased Other assets by $439 thousand, and increased Prepaid expenses and other current assets by $320 thousand at December 31, 2021.
Statement of Income (Loss) Reclassifications
In preparation of the Company’s interim unaudited consolidated financial statements as of and for the three months ended March 31, 2022, the Company identified certain expenses that were previously included as a component of Customer related supplies and Occupancy that are better presented as a component of Technology, communication, and processing.
In addition, the Company identified card replacement fees reimbursed from a BaaS partner were recognized as a component of Account fees when only the margin of those fees should have been recognized as revenue and the reimbursable expense should have been recognized as a component of Customer related supplies.
The effect of these reclassifications for the three months ended March 31, 2021 decreased revenue from Account fees and Other revenue by $25 thousand and $49 thousand respectively, decreased Customer related supplies and Occupancy expenses by $98 thousand and $43 thousand respectively, and increased expenses Technology, communication, and processing expenses by $67 thousand. The impact of these adjustments has no effect on Net income (loss) from operations.
Significant Accounting Policies
These interim unaudited consolidated financial statements should be read in conjunction with the 2021 audited consolidated financial statements and related notes of BMTX, which describe BMTX’s significant accounting policies. There have been no material changes to BMTX’s significant accounting policies during the three months ended March 31, 2022. Certain information and footnote disclosures normally included in the annual consolidated financial statements have been omitted from these interim unaudited consolidated financial statements as permitted by U.S. GAAP and pursuant to the rules and regulations of the U.S. Securities and Exchange Commission (the “SEC”).
As an emerging growth company (“EGC”), the Jumpstart Our Business Startups Act (“JOBS Act”) allows the Company to delay adoption of new or revised ASUs applicable to public companies until such pronouncements are applicable to private companies. The Company has elected to use the extended transition period under the JOBS Act.
Accounting Pronouncements Issued but Not Yet Adopted
From time to time, new accounting pronouncements are issued by the FASB that are adopted by BMTX as of the required effective dates. The following paragraphs related to new pronouncements should be read in conjunction with Significant Accounting Policies of the notes to the audited consolidated financial statements included in our 2021 Form 10-K. Unless otherwise discussed, management believes the impact of any recently issued standards, including those issued but not yet effective, will not have a material impact on its consolidated financial statements taken as a whole.
7
ASU 2020-04 - Reference Rate Reform (Topic 848): Facilitation of the Effects of Reference Rate Reform on Financial Reporting. This guidance provides optional expedients and exceptions for applying U.S. GAAP to contracts, hedging relationships, and other transactions affected by reference rate reform if certain criteria are met. This ASU is effective as of March 12, 2020 through December 31, 2022. The Company is currently evaluating the impact that ASU 2020-04 may have on its consolidated financial statements and related disclosures.
In August 2020, the FASB issued ASU 2020-06, Debt - Debt with Conversion and Other Options (Subtopic 470-20) and Derivatives and Hedging - Contracts in Entity’s Own Equity (Subtopic 815-40): Accounting for Convertible Instruments and Contracts in an Entity’s Own Equity (“ASU 2020-06”), which simplifies the accounting for certain financial instruments with characteristics of liabilities and equity.
This ASU (1) simplifies the accounting for convertible debt instruments and convertible preferred stock by removing the existing guidance in ASC 470-20, Debt: Debt with Conversion and Other Options, that requires entities to account for beneficial conversion features and cash conversion features in equity, separately from the host convertible debt or preferred stock; (2) revises the scope exception from derivative accounting in ASC 815-40 for freestanding financial instruments and embedded features that are both indexed to the issuer’s own stock and classified in stockholders’ equity, by removing certain criteria required for equity classification; and (3) revises the guidance in ASC 260, Earnings Per Share, to require entities to calculate diluted earnings per share (EPS) for convertible instruments by using the if-converted method. In addition, entities must presume share settlement for purposes of calculating diluted EPS when an instrument may be settled in cash or shares.
As a smaller reporting company, ASU 2020-06 is effective for BMTX for fiscal years beginning after December 15, 2023. Entities should adopt the guidance as of the beginning of the fiscal year of adoption and cannot adopt the guidance in an interim reporting period. Early adoption is permitted, but no earlier than fiscal years beginning after December 15, 2020. The Company is currently evaluating the impact that ASU 2020-06 may have on its consolidated financial statements and related disclosures.
NOTE 3 — ACCOUNTS RECEIVABLE
Accounts receivable, net primarily relate to billings for deposit processing services to our Partner Bank, MasterCard incentive income, uncollected university subscription and disbursement services fees, and receivables from a BaaS partner, and are recorded at face amounts less an allowance for doubtful accounts. Management evaluates accounts receivable and establishes the allowance for doubtful accounts based on historical experience, analysis of past due accounts, and other current available information.
Accounts receivable deemed to be uncollectible are individually identified and are charged-off against the allowance for doubtful accounts. The allowance for doubtful accounts was less than $0.1 million at March 31, 2022 and $0.1 million at December 31, 2021.
| (amounts in thousands) | Beginning Balance | Additions | Reductions | Ending Balance | |||||||||||||
| Allowance for doubtful accounts | |||||||||||||||||
| Three months ended March 31, 2022 | $ | $ | $ | ( | $ | ||||||||||||
| Twelve months ended December 31, 2021 | $ | $ | $ | ( | $ | ||||||||||||
8
NOTE 4 — PREMISES AND EQUIPMENT AND DEVELOPED SOFTWARE
Premises and Equipment
The components of premises and equipment were as follows:
| (amounts in thousands) | Expected Useful Life | March 31, 2022 | December 31, 2021 | |||||||||||||||||
| Leasehold improvements | $ | $ | ||||||||||||||||||
| Furniture, fixtures and equipment | ||||||||||||||||||||
| IT equipment | ||||||||||||||||||||
| Accumulated depreciation | ( | ( | ||||||||||||||||||
| Total | $ | $ | ||||||||||||||||||
Depreciation is recorded in Occupancy expense on the unaudited Consolidated Statements of Income (Loss). For both the three months ended March 31, 2022 and 2021, BMTX recorded depreciation expense of less than $0.1 million.
Developed Software
| (amounts in thousands) | Expected Useful Life | March 31, 2022 | December 31, 2021 | |||||||||||||||||
| Higher One disbursement business developed software | $ | $ | ||||||||||||||||||
| Internally developed software | ||||||||||||||||||||
| Work-in-process | ||||||||||||||||||||
| Accumulated amortization | ( | ( | ||||||||||||||||||
| Total | $ | $ | ||||||||||||||||||
Amortization is recorded in Technology, communication and processing expense on the unaudited Consolidated Statements of Income (Loss). BMTX recorded amortization expense of $2.9 million and $2.8 million for the three months ended March 31, 2022 and 2021, respectively.
NOTE 5 — GOODWILL AND OTHER INTANGIBLES
Goodwill represents the excess of the purchase price over the identifiable net assets of businesses acquired through business combinations accounted for under the acquisition method. Other intangibles, net represent purchased assets that lack physical substance but can be distinguished from goodwill because of contractual or other legal rights. We have one intangible asset which is being amortized on a straight-line basis over twenty years .
Goodwill is reviewed for impairment annually as of October 31 and between annual tests when events and circumstances indicate that impairment may have occurred. There was no
Other intangibles, net includes assets subject to amortization that are reviewed for impairment under FASB ASC 360, Property, Plant and Equipment. There was no
9
The components of Other intangibles, net as of March 31, 2022 and December 31, 2021 were as follows:
| (amounts in thousands) | Expected Useful Life | March 31, 2022 | December 31, 2021 | |||||||||||||||||
| Customer relationships – universities | $ | $ | ||||||||||||||||||
| Accumulated amortization | ( | ( | ||||||||||||||||||
| Total | $ | $ | ||||||||||||||||||
Amortization is recorded in Other expense on the unaudited Consolidated Statements of Income (Loss). BMTX recorded amortization expense of $0.1 million and $0.1 million for the three months ended March 31, 2022 and 2021, respectively.
| Remainder of 2022 | $ | |||||||
| 2023 | ||||||||
| 2024 | ||||||||
| 2025 | ||||||||
| 2026 | ||||||||
| After 2026 | ||||||||
| Total | $ | |||||||
NOTE 6 — LEASES
At March 31, 2022, BMTX leased two offices under operating leases. The leases consist of 5 -year lease terms with options to renew the leases or extend the term annually or with mutual agreement. The leases include variable lease payments that are based on an index or rate, such as an annual increase in operating expenses over the initial lease year’s expenses. Variable lease payments are not included in the lease liability or right-of-use (“ROU”) asset and are recognized in the period in which the obligations for those payments are incurred. BMTX’s operating lease agreements do not contain any material residual value guarantees or material restrictive covenants. As BMTX’s operating leases do not provide an implicit rate, BMTX utilized the incremental borrowing rate of Customers Bank, its former parent, based on the information available at either the adoption of FASB ASC 842, Leases or the commencement date of the lease, whichever was later, when determining the present value of lease payments.
The following table summarizes operating lease ROU assets and operating lease liabilities and their corresponding classification on the Company’s Consolidated Balance Sheets:
| (amounts in thousands) | Classification | March 31, 2022 | December 31, 2021 | |||||||||||||||||
| Assets: | ||||||||||||||||||||
| Operating lease ROU assets | $ | $ | ||||||||||||||||||
| Liabilities: | ||||||||||||||||||||
| Operating lease liabilities | Operating lease liabilities | $ | $ | |||||||||||||||||
Operating lease expenses are recorded in Occupancy on the Consolidated Statements of Income (Loss). BMTX recorded lease expense of $0.2 million and $0.3 million for the three months ended March 31, 2022 and 2021, respectively.
| (amounts in thousands) | March 31, 2022 | |||||||
| 2022 | $ | |||||||
| Total minimum payments | ||||||||
| Less: interest | ( | |||||||
| Present value of lease liabilities | $ | |||||||
10
NOTE 7 — BORROWINGS FROM PARTNER BANK
NOTE 8 — COMMITMENTS AND CONTINGENCIES
NOTE 9 — SHAREHOLDERS’ EQUITY AND PRIVATE WARRANT LIABILITY
The Consolidated Statements of Changes in Shareholders’ Equity reflect the reverse recapitalization and merger with Megalith as of January 4, 2021. Since BMTX was determined to be the accounting acquirer in the transaction, all periods prior to the consummation of the transaction reflect the balances and activity of BMTX (other than shares which were retroactively restated in connection with the transaction).
Common Stock
The Company is authorized to issue 1,000,000,000 shares of common stock, par value $0.0001 per share. At March 31, 2022, there were 12,245,947 300,000 performance shares discussed below. At December 31, 2021 there were 12,193,378
Each holder of common stock is entitled to one vote for each share of common stock held of record by such holder on all matters on which stockholders generally are entitled to vote. The holders of common stock do not have cumulative voting rights in the election of directors. Generally, all matters to be voted on by stockholders must be approved by a majority (or, in the case of election of directors, by a plurality) of the votes entitled to be cast by all stockholders present in person or represented by proxy, voting together as a single class.
Preferred Stock
The Company is authorized to issue 10,000,000 shares of preferred stock, par value $0.0001 per share, with such designations, voting and other rights and preferences as may be determined from time to time by the Company’s board of directors. At March 31, 2022 and December 31, 2021, there were no
11
Performance Based Shares
The Company has 300,000 common shares, par value $0.0001 per share, issued and outstanding that contain a restrictive legend, subject to release only if the vesting criteria occurs before the seventh anniversary of the closing date of the merger with Megalith. If the vesting criteria has not occurred prior to the th anniversary of the closing date of the merger, the shares will be forfeited and cancelled. The vesting criteria means either (1) the volume weighted average price of the Company’s common stock on the principal exchange on which such securities are then listed or quoted shall have been at or above $15.00 for twenty (20 ) trading days (which need not be consecutive) over a thirty (30 ) trading day period; or (ii) the Company sells shares of its capital stock in a secondary offering for at least $15.00 per share, in each case subject to equitable adjustment for share splits, share dividends, reorganizations, combinations, recapitalizations and similar transactions affecting the shares of the Company’s common stock after the merger, and possible reduction for certain dividends granted to the Company’s common stock, or (2) the Company undergoes certain change in control or sales transactions. None of the vesting conditions for the performance shares have been met as of March 31, 2022 and no expense has been recognized.
Dividend Policy
We have not paid any cash dividends on our common stock to date and have no present intention to pay cash dividends in the future. The payment of cash dividends by the Company in the future will be dependent upon the Company’s revenues and earnings, capital requirements, and general financial condition. The payment of any dividends will be within the discretion of the board of directors of the Company.
January 4, 2021 Share-Based Compensation Award
In connection with its January 4, 2021 divestiture of the Company, Customers Bank, the Company’s former parent, granted 1,317,035 of the merger consideration shares of the Company it received to certain employees and executives of the Company. The share-based compensation award is subject to vesting conditions, including a required service condition from award recipients through January 3, 2023. The grant date fair value of the award, totaling $19.6 million, is recorded as share-based compensation expense in the Company’s Consolidated Statements of Income (Loss) on a straight-line basis over the two year post-grant vesting period, net of any actual forfeitures. The shares awarded are restricted until fully vested, and none of the shares issued under this award are vested at March 31, 2022. In addition, the holders of restricted shares may elect to surrender a portion of their shares on the vesting date to cover their income tax obligations. For the three months ended March 31, 2022 and 2021 the share-based compensation expense related to these awards totaled $2.2 million and $2.3 million, respectively.
The change in unvested shares under the January 4, 2021 Share-Based Compensation Award is shown below:
| Number of Awards | Weighted-Average Grant-Date Fair Value Per Award | ||||||||||
Balance as of December 31, 2021 | $ | ||||||||||
| Granted | $ | ||||||||||
| Vested | $ | ||||||||||
| Forfeited | ( | $ | |||||||||
Balance as of March 31, 2022 | $ | ||||||||||
In addition, and in connection with the January 4, 2021 divestiture of the Company, Customers Bank accelerated the vesting for existing restricted stock units and stock options previously granted to certain employees of the Company. The share-based compensation expense, net of forfeitures, associated with the accelerated vesting totaling $0.8 million is recorded in Salaries and employee benefits expense for the three months ended March 31, 2021. No such transactions exist for the three months ended March 31, 2022.
Equity Incentive Plan
Our 2020 Equity Incentive Plan (the “Equity Incentive Plan”) provides for the grant of incentive stock options, or ISOs, nonstatutory stock options, or NSOs, stock appreciation rights, restricted stock awards, restricted stock unit awards, performance-based stock awards, and other forms of equity compensation, or collectively, stock awards, all of which may be granted to employees, including officers, non-employee directors, and consultants of both the Company and its affiliates. Additionally, the Equity Incentive Plan provides for the grant of performance cash awards. ISOs may be granted only to employees. All other awards may be granted to employees, including officers, and to non-employee directors and consultants.
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The aggregate number of shares of common stock that may be issued pursuant to stock awards under the Equity Incentive Plan will not, and currently does not, exceed 10 % of the issued and outstanding shares of our common stock. Grants were made under the Equity Incentive Plan for the three months ended March 31, 2022 as described within Restricted Stock Units below.
Restricted Stock Units (“RSUs”)
On September 30, 2021, the Company granted 695,000 RSUs to certain executives split equally between service-based and performance-based awards. The RSUs granted to these executives will vest over to five years upon achievement of certain service-based, performance-based, and market conditions. The vesting commencement date was January 4, 2021. We recognize the compensation cost starting from the grant date in accordance with ASC 718-10-55-108.
In addition to the executive RSU awards granted on September 30, 2021, the Company periodically grants individual awards with service-based vesting. During the three months ended March 31, 2022 and 2021, the Company granted 46,190 and 0 service-based RSU awards under the Equity Incentive Plan, respectively.
For service-based RSUs, we recognize the share-based compensation cost on a straight-line basis over the required vesting period. For performance-based RSUs with milestones, each quarter we determine whether it is probable that we will achieve each operational milestone and if so, the period when we expect to achieve that operational milestone. When we first determine that achievement of an operational milestone is probable, we allocate the full share-based compensation expense over the period between the grant date and the expected vesting condition achievement date and recognize a catch-up expense for the periods from the grant date through the period in which the operational milestone is deemed probable. This is re-assessed at the end of each reporting period. For performance-based RSUs with a market condition, we used a Monte Carlo simulation to determine the fair value of the RSUs on the grant date, and recognize the share-based compensation expense over the derived service period.
For the three months ended March 31, 2022 and 2021, the share-based compensation expense related to RSU awards totaled $0.6 million and zero , respectively and is recorded in Salaries and employee benefits expense
The change in unvested RSUs awarded is shown below:
| Number of RSUs | Weighted-Average Grant-Date Fair Value Per RSU | ||||||||||
Balance as of December 31, 2021 | $ | ||||||||||
| Granted | $ | ||||||||||
| Vested | ( | $ | |||||||||
| Forfeited | $ | ||||||||||
Balance as of March 31, 2022 | $ | ||||||||||
Employee Stock Purchase Plan (“ESPP”)
The Company has an ESPP (the “BM Technologies Inc. 2021 Employee Stock Purchase Plan”) which has an effective date of May 1, 2021. The purpose of the plan is to provide eligible employees with an incentive to advance the interests of the Company and its Subsidiaries, by affording them an opportunity to purchase stock of the Company at a favorable price. As of March 31, 2022, there are no shares purchased on behalf of employees under the ESPP, as the program has not yet been made available for employee participation.
Warrants
At March 31, 2022 and 2021, respectively, there were 22,703,104 and 23,874,667 warrants to purchase our common stock outstanding. The warrant totals for each period-end consist of 17,227,289 and 16,928,889 public warrants and 5,475,815 and 6,945,778 private warrants as of March 31, 2022 and 2021, respectively.
Each whole warrant entitles the registered holder to purchase one whole share of common stock at a price of $11.50 per share. The warrants will expire five years after the completion of the merger with Megalith (January 4, 2026) or earlier upon redemption or liquidation; the Company has redemption rights if our common stock trades above $24.00 for 20 out of 30 days. The private warrants are identical to the public warrants except that the private warrants are non-redeemable and exercisable on a cashless basis so long as they are held by the sponsor and certain others.
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As of March 31, 2022, 1,500 of the Company’s outstanding public warrants have been exercised and 1,169,903 of the private warrants have been repurchased by the Company from related parties at $1.69 per warrant. In addition, as of March 31, 2022, 300,000 of the private warrants have been reclassified as public warrants based upon a sale of the private warrants by the original holders which resulted in a modification of terms that effect classification as public warrants. There was no warrant exercise, repurchase, or reclassification activity during the three months ended March 31, 2021.
The private warrants and the public warrants are treated differently for accounting purposes, as follows:
Private Warrants
In accordance with FASB ASC Topic 480, Distinguishing Liabilities from Equity, the private warrants are accounted for as liabilities and will be marked-to-market each reporting period with the change in fair value recognized in earnings. In general, under the mark-to-market accounting model, as our stock price increases, the private warrant liability increases, and we recognize additional expense in our Consolidated Statements of Income (Loss) – with the opposite when our stock price declines. Accordingly, the periodic revaluation of the private warrants could result in significant volatility in our reported earnings.
Opening Balance Sheet Impact: As of the date of our merger with Megalith on January 4, 2021, the $30.8 million fair value of the private warrants was recorded as a warrant liability on our Consolidated Balance Sheets in Liability for private warrants with a corresponding offset to Additional paid-in-capital within equity. The fair value of the private warrants was estimated using a modified version of the Black-Scholes option pricing formula. We assumed a term for the private warrants equal to the contractual term from the merger date and then discounted the resulting value to the valuation date. Among the key inputs and assumptions used in the pricing formula at January 4, 2021: a term of 5.0 years; volatility of 20 %; a dividend yield of zero ; an underlying stock price of $14.76 ; a risk free interest rate of 0.38 %; and a closing price of the Public Warrants of $2.50 per share.
Income Statement Impact: Subsequent to the close of the merger, any change in the fair value of the private warrants is recognized in our Consolidated Statements of Income (Loss) below operating profit as Gain (loss) on fair value of private warrant liability with a corresponding amount recognized in the Liability for private warrants on our Consolidated Balance Sheets. For the three months ended March 31, 2022 and 2021, we recognized a $2.6 million gain and a $15.0 million gain on the revaluation of the private warrants, respectively.
Balance Sheet Impact: The private warrant liability is presented in the account Liability for private warrants in the long-term liabilities section of our Consolidated Balance Sheets. As noted above, the change in fair value of the underlying private warrants results in a corresponding change in the balance of the warrant liability on our Consolidated Balance Sheets. When warrants are exercised, the fair value of the liability is reclassified to Additional paid-in capital within equity. The cash received for the exercise of warrants is reflected in Cash and cash equivalents with a corresponding offset recorded in Common stock and Additional paid-in capital within equity.
Cash Flow Impact: The impact of the change in fair value of the private warrants has no impact on our cash flows as it is a noncash adjustment. The cash received for any future exercise of warrants will be recorded in cash flows from financing activities. During the three months ended March 31, 2022, the Company repurchased private warrants from related parties for cash consideration totaling $2.0 million. No such transactions occurred during the three months ended March 31, 2021.
Shareholders’ Equity Impact: The impact to Additional paid-in-capital as of the opening balance sheet is described above. Any future exercises of the private warrants will result in a reduction of the Liability for private warrants on the Consolidated Balance Sheets with a corresponding increase to Common Stock and Additional paid-in-capital.
Public Warrants
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NOTE 10 — REVENUES
Revenues
BMTX recognizes operating revenue in accordance with FASB ASC 606, Revenue from Contracts with Customers.
The following table presents BMTX’s revenues disaggregated by nature of the revenue stream and the pattern or timing of revenue recognition for the three months ended March 31, 2022 and 2021. The Company has one
| Three Months Ended March 31, | ||||||||||||||
| (amounts in thousands) | 2022 | 2021 | ||||||||||||
| Revenues: | ||||||||||||||
| Revenue recognized at point in time: | ||||||||||||||
| Interchange and card revenue | $ | $ | ||||||||||||
| Servicing fees from Partner Bank | ||||||||||||||
| Account fees | ||||||||||||||
| University fees - disbursement activity | ||||||||||||||
| Other | ||||||||||||||
| Total revenue recognized at point in time | ||||||||||||||
| Revenue recognized over time: | ||||||||||||||
| University fees - subscriptions | ||||||||||||||
| Total revenue recognized over time | ||||||||||||||
| Total revenues | $ | $ | ||||||||||||
Deferred Revenue
Deferred revenue consists of payments received from customers, most significantly from our Partner Bank, prior to the performance of services. Deferred revenue is recognized over the service period on a straight-line basis or when the contractual performance obligation has been satisfied. The Company classifies deferred revenue on the Consolidated Balance Sheets in Deferred revenue, current and Deferred revenue, non-current based upon the expected timing of revenue recognition.
The deferred revenue balances were as follows:
| (amounts in thousands) | March 31, 2022 | December 31, 2021 | ||||||||||||
| Deferred revenue (current and non-current) | $ | $ | ||||||||||||
During the three months ended March 31, 2022, the Company recognized revenue of approximately $14.1 million included in deferred revenue at the beginning of the period. During the three months ended March 31, 2021, the Company recognized revenue of approximately $8.9 million included in deferred revenue at the beginning of the period.
Unbilled receivables
NOTE 11 — INCOME TAXES
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NOTE 12 — EARNINGS (LOSS) PER SHARE
The following are the components and results of operations and earnings (loss) per common share calculations for the periods presented:
| Three Months Ended March 31, | ||||||||||||||
| (amounts in thousands, except per share data) | 2022 | 2021 | ||||||||||||
| Net income available to common shareholders - used in calculating basic EPS | $ | $ | ||||||||||||
Adjustment for private warrant liability1 | ||||||||||||||
| Net income - used in calculating diluted EPS | $ | $ | ||||||||||||
| Weighted-average common shares outstanding – basic | ||||||||||||||
| Weighted-average common shares outstanding – diluted | ||||||||||||||
| Net income per common share - basic | $ | $ | ||||||||||||
| Net income per common share - diluted | $ | $ | ||||||||||||
1 Diluted earnings per share for the three months ended March 31, 2021 is calculated based on adjusted net income of $1.1 million due to the elimination of the revaluation gain on the private warrant liability.
The following table presents the reconciliation from basic to diluted weighted average shares outstanding used in the calculation of basic and diluted earnings per share:
| Three Months Ended March 31, | ||||||||||||||
| (amounts in thousands) | 2022 | 2021 | ||||||||||||
| Weighted average shares used in computing net income per common share, basic | ||||||||||||||
| Add: | ||||||||||||||
| Public warrants | ||||||||||||||
| Private warrants | ||||||||||||||
| Time-based RSUs | ||||||||||||||
| Weighted average shares used in computing net income per common share, diluted | ||||||||||||||
For basic earnings per share, the performance based shares are subject to forfeiture and they are considered share-indexed instruments and not outstanding shares until they are vested. During the three months ended March 31, 2022 and 2021, the vesting criteria has not been met and they are not included.
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For the three months ending March 31, 2022, our performance based shares, public warrants, and private warrants were excluded from the computation of diluted weighted average shares outstanding as the necessary conditions had not been achieved for the performance based shares and the average stock price for the period was below the strike price for the warrants. The performance based shares are only considered in the calculation for diluted earnings per share if they are dilutive in nature. The performance based shares are only dilutive when the average share price is greater than the strike price and when positive net income is reported. During the three months ended March 31, 2022 and 2021, the average share price was below the strike price and these shares were not included in the diluted earnings per share calculations. For the three months ended March 31, 2022, our performance based and market condition RSUs were excluded because the vesting is contingent upon the satisfaction of certain conditions which had not been achieved as of March 31, 2022.
For the three months ending March 31, 2021, our public warrants and private warrants were included in the computation of diluted weighted average shares outstanding as the average stock price for the period was above the strike price for the warrants. For the three months ended March 31, 2021, there were no RSUs issued and outstanding.
| Three Months Ended March 31, | ||||||||||||||
| (amounts in thousands) | 2022 | 2021 | ||||||||||||
| Performance based shares | ||||||||||||||
| Public warrants | ||||||||||||||
| Private warrants | ||||||||||||||
| Performance based and market-condition RSUs | ||||||||||||||
| Total | ||||||||||||||
NOTE 13 — DISCLOSURES ABOUT FAIR VALUE OF FINANCIAL INSTRUMENTS
BMTX uses fair value measurements to determine and disclose the fair value of its financial instruments. FASB’s ASC 825, Financial Instruments, requires disclosure of the estimated fair value of an entity’s assets and liabilities considered to be financial instruments. For fair value disclosure purposes, BMTX utilized the fair value measurement criteria under FASB ASC 820, Fair Value Measurements (“ASC 820”).
In accordance with ASC 820, the fair value of a financial instrument is the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. Fair value is best determined based upon quoted market prices. However, in many instances, there are no quoted market prices for BMTX’s financial instruments. In cases where quoted market prices are not available, fair values are based on estimates using present value or other valuation techniques. Those techniques are significantly affected by the assumptions used, including the discount rate and estimates of future cash flows. Accordingly, the fair value estimates may not be realized in an immediate settlement of the instrument.
The fair value guidance provides a consistent definition of fair value, focusing on an exit price in an orderly transaction (that is, not a forced liquidation or distressed sale) between market participants at the measurement date under current market conditions. If there has been a significant decrease in the volume and level of activity for the asset or liability, a change in valuation technique or the use of multiple valuation techniques may be appropriate. In such instances, determining the price at which willing market participants would transact at the measurement date under current market conditions depends on the facts and circumstances and requires the use of significant judgment. The fair value is a reasonable point within the range that is most representative of fair value under current market conditions.
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The fair value guidance also establishes a fair value hierarchy and describes the following three levels used to classify fair value measurements:
| Level 1: | Unadjusted quoted prices in active markets that are accessible at the measurement date for identical, unrestricted assets or liabilities. | ||||
| Level 2: | Quoted prices in markets that are not active, or inputs that are observable either directly or indirectly, for substantially the full term of the asset or liability. | ||||
| Level 3: | Prices or valuation techniques that require inputs that are both significant to the fair value measurement and unobservable (i.e., supported with little or no market activity). | ||||
A financial instrument’s level within the fair value hierarchy is based on the lowest level of input that is significant to the fair value measurement.
The following methods and assumptions were used to estimate the fair values of BMTX’s financial instruments as of March 31, 2022 and December 31, 2021:
Cash and cash equivalents
Cash and cash equivalents reported on the Consolidated Balance Sheets consists of non-interest bearing demand deposits, for which carrying value approximates fair value.
Accounts receivable, net
The carrying amount of accounts receivable approximates fair value because of the short-term nature of these items.
Liability for Private Warrants
The fair value of the private warrants was estimated using a modified version of the binomial lattice model incorporating the Cox-Ross-Rubenstein methodology at March 31, 2022 and a modified version of the Black-Scholes option pricing model for European calls at December 31, 2021. We assumed a term for the private warrants equal to the contractual term from the date of the merger with Megalith and then discounted the resulting value to the valuation date. Among the key inputs and assumptions used in the pricing formula at March 31, 2022 were the following: a term of 3.8 years; volatility of 35 %; a dividend yield of zero ; an underlying stock price of $8.55 ; a risk free interest rate of 2.42 %; and a closing price of the public warrants of $1.49 per share. The warrant liability is classified as a Level 3 fair value based upon the lowest level of input that is significant to the fair value measurement.
The estimated fair value of BMTX’s financial instruments at March 31, 2022 and December 31, 2021 were as follows:
| Fair Value Measurements at March 31, 2022 | ||||||||||||||||||||||||||||||||
| (amounts in thousands) | Carrying Amount | Estimated Fair Value | Quoted Prices in Active Markets for Identical Assets (Level 1) | Significant Other Observable Inputs (Level 2) | Significant Unobservable Inputs (Level 3) | |||||||||||||||||||||||||||
| Assets: | ||||||||||||||||||||||||||||||||
| Cash and cash equivalents | $ | $ | $ | $ | $ | |||||||||||||||||||||||||||
| Accounts receivable, net | ||||||||||||||||||||||||||||||||
| Liabilities: | ||||||||||||||||||||||||||||||||
| Liability for private warrants | $ | $ | $ | $ | $ | |||||||||||||||||||||||||||
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| Fair Value Measurements at December 31, 2021 | ||||||||||||||||||||||||||||||||
| (amounts in thousands) | Carrying Amount | Estimated Fair Value | Quoted Prices in Active Markets for Identical Assets (Level 1) | Significant Other Observable Inputs (Level 2) | Significant Unobservable Inputs (Level 3) | |||||||||||||||||||||||||||
| Assets: | ||||||||||||||||||||||||||||||||
| Cash and cash equivalents | $ | $ | $ | $ | $ | |||||||||||||||||||||||||||
| Accounts receivable, net | ||||||||||||||||||||||||||||||||
| Liabilities: | ||||||||||||||||||||||||||||||||
| Liability for private warrants | $ | $ | $ | $ | $ | |||||||||||||||||||||||||||
NOTE 14 — RELATIONSHIP WITH OUR PARTNER BANK
The Company has several relationships with our Partner Bank, Customers Bank, which is a related party of the Company. These relationships are described below.
Cash management
All of the Company’s cash and cash equivalents are on deposit with our Partner Bank.
Debt financing
As disclosed in Note 7- Borrowings from Partner Bank, our Partner Bank previously provided the Company with lines of credit, all of which have been terminated as of December 31, 2021.
Servicing fees and interchange income from Partner Bank
On January 4, 2021, we entered into a Deposit Processing Services Agreement (the “Deposit Servicing Agreement”) with our Partner Bank, which provided that our Partner Bank would establish and maintain deposit accounts and other banking services in connection with customized products and services offered by us, and we would provide certain other related services in connection with the accounts.
On June 29, 2022, the Company received written notice that Customers Bank does not intend to renew the Deposit Servicing Agreement. See Note 15 - Subsequent Events for additional information.
Our Partner Bank retains any and all revenue generated from the funds held in the deposit accounts, and in exchange, pays us a 3 % servicing fee based on average monthly deposit balances, subject to certain contractual adjustments, and a monthly interchange fee equal to all debit card interchange revenues on the demand deposit accounts, plus the difference between Durbin exempt and Durbin regulated interchange revenue.
Transition Services Agreement
On January 4, 2021, we entered into a Transition Services Agreement with our Partner Bank, pursuant to which each party agreed for a period of up to twelve months to provide certain transition services listed therein to the other party. A limited number of these transition services were subsequently extended through March 31, 2022. In consideration for the services, we paid our Partner Bank a service fee of $12,500 per month, plus any expenses associated with the services.
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Included within the Transition Services Agreement is a provision for administering the Company’s 401(k) plan for the benefit of Company employees. Effective April 9, 2021, the Customers Bank 401(k) plan became a multi-employer plan, as defined by the U.S. Department of Labor in accordance with the Employee Retirement Income Security Act of 1974, covering both the full-time employees of Customers Bank and the Company. The Company provides a matching contribution equal to 50 % of the first 6 % of the contributions made by its eligible participating employees. The Company’s employer contributions to the 401(k) plan for the benefit of its employees for the three months ended March 31, 2022 and 2021 were $0.2 million, and $0.2 million, respectively. These contributions are recorded in Salaries and employee benefits in the Consolidated Statements of Income (Loss).
Other
On January 4, 2021, the Company entered into a Software License Agreement with our Partner Bank which provides it with a non-exclusive, non-transferable, royalty-free license to utilize our mobile banking technology for a period up to 10 years. The Software License Agreement is cancellable by our Partner Bank at any time, without notice, and without penalty, and for any reason or no reason at all. To date, our Partner Bank has not utilized the Company’s mobile banking technology and zero consideration has been paid or recognized under the Software License Agreement.
On January 4, 2021, the Company entered into a Non-Competition and Non-Solicitation Agreement with our Partner Bank providing that our Partner Bank will not, for a period of 4 years after the closing of the divestiture, directly or indirectly engage in the Company’s business in the territory (both as defined in the Non-Competition Agreement), except for white label digital banking services with previously identified parties and passive investments of no more than 2 % of a class of equity interests of a competitor that is publicly traded. Our Partner also agreed not to directly or indirectly hire or solicit any employees of the Company.
On November 29, 2021, the Company entered into an agreement with our Partner Bank which terminated the $10.0 million line of credit and gave the Company the right to any shares that were forfeited as part of the January 4, 2021 Share-Based Compensation Award. During the three months ended March 31, 2022, 13,000 forfeited shares were reacquired by the Company from our Partner Bank.
Both the President and Executive Chairman of the Board of our Partner Bank are immediate family members of the Company’s CEO and together with their spouses own less than 5.0
On March 1, 2022, the Company reached an agreement, with settlement on March 11, 2022, to reacquire 1,169,963 private warrants at a price of $1.69 per warrant, or a total cost of $2.0 million, from Ms. Sherry Sidhu and Mr. Samvir Sidhu, who are immediate family members of our CEO. The transaction price was established based on the range of market prices during the repurchase conversations and was approved by the Company’s Audit Committee.
Positions with our Partner Bank are presented on our Consolidated Balance Sheets in Accounts receivable, net, Deferred revenue, current, and Accounts payable and accrued liabilities. The Accounts receivable balances related to our Partner Bank as of March 31, 2022 and December 31, 2021 were $5.9 million and $5.5 million, respectively. The Deferred revenue balances related to our Partner Bank as of March 31, 2022 and December 31, 2021 were $13.8 million and $12.7 million, respectively. The Accounts payable and accrued liabilities balances related to our Partner Bank as of March 31, 2022 and December 31, 2021 were $0.5 million and $0.4 million, respectively.
The Company recognized $23.0 million and $19.8 million in revenues from our Partner Bank for the three months ended March 31, 2022 and 2021, respectively. Of these amounts, $7.1 million and $9.0 million are paid directly by MasterCard or individual account holders to the Company for the three months ended March 31, 2022 and 2021, respectively. The Company recognized less than $0.1 million and $0.1 million of expenses from our Partner Bank for the three months ended March 31, 2022 and 2021, respectively. These amounts are included in the Consolidated Statements of Income (Loss).
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NOTE 15 — SUBSEQUENT EVENTS
On April 20, 2022, the Company entered into a Special Limited Agency Agreement with its current Partner Bank, Customers Bank, which is a related party of the Company. The Special Limited Agency Agreement provides for marketing assistance from the Company for originating consumer installment loans funded by Customers Bank. In consideration for this marketing assistance, the Company receives certain fees specified within the Special Limited Agency Agreement which are recorded as a component of Other Revenue in the Consolidated Statements of Income (Loss).
On June 29, 2022, the Company received written notice that Customers Bank does not intend to renew the Deposit Servicing Agreement with the Company. The 180-day notice was given in accordance with the terms of the Deposit Servicing Agreement, as a result of which, the Deposit Servicing Agreement will terminate effective December 31, 2022. Customers Bank had previously indicated in a public filing on April 27, 2022 that it did not intend to renew the Deposit Servicing Agreement. The formal notification is consistent with management’s expectations; and as discussed in the Company’s Annual Report on Form 10-K, dated December 31, 2021, and filed on May 10, 2022, the Company is considering multiple strategic alternatives including internalizing services upon closing of the previously announced merger with First Sound Bank or negotiating a new deposit servicing agreement with new potential bank partners or with our existing bank partner after December 31, 2022 at then current market rates and conditions.
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ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The purpose of this Management’s Discussion and Analysis (“MD&A”) is to facilitate an understanding of significant factors influencing the quarterly operating results, financial condition and cash flows of BM Technologies, Inc. (“BMTX”). Additionally, this MD&A conveys our expectations of the potential impact of known trends, events, or uncertainties that may impact future results. You should read this discussion in conjunction with our interim unaudited consolidated financial statements and related notes included in this Quarterly Report on Form 10-Q and our Annual Report for the year ended December 31, 2021. Historical results and percentage relationships are not necessarily indicative of operating results for future periods. Unless the context otherwise requires, for purposes of this Management’s Discussion and Analysis, references to the “Company,” “we,” “us” and “our” refer to the business and operations of BM Technologies, Inc. (“BMTX”) and its subsidiaries.
FORWARD LOOKING STATEMENTS
This Quarterly Report on Form 10-Q contains “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. Such statements include, but are not limited to, statements about future financial and operating results, our plans, objectives, expectations, and intentions with respect to future operations, products, and services; and other statements identified by words such as “will likely result,” “are expected to,” “will continue,” “is anticipated,” “estimated,” “believe,” “intend,” “plan,” “projection,” “outlook”, or words of similar meaning. These forward-looking statements include, but are not limited to, statements regarding the Company’s industry and market sizes, future opportunities for the Company, and the Company’s estimated future results. Such forward-looking statements are based upon the current beliefs and expectations of our management and are inherently subject to significant business, economic, and competitive uncertainties and contingencies, many of which are difficult to predict and generally beyond our control. Actual results and the timing of events may differ materially from the results anticipated in these forward-looking statements.
BUSINESS OVERVIEW
BM Technologies, Inc. (“BMTX” or “the Company”) (formerly known as BankMobile) provides state-of-the-art high-tech digital banking and disbursement services to consumers and students nationwide through a full service fintech banking platform, accessible to customers anywhere and anytime through digital channels.
BMTX facilitates deposits and banking services between a customer and our Partner Bank, Customers Bank (“Customers Bank”), a Pennsylvania state-chartered bank, which is a related party and is a Federal Deposit Insurance Corporation (“FDIC”) insured bank. BMTX’s business model leverages partners’ existing customer bases to achieve high volume, low-cost customer acquisition in its Higher Education Disbursement, Banking-as-a-Service (“BaaS”), and niche Direct to Consumer (“D2C") Banking businesses. BMTX has four primary revenue sources: interchange and card revenue, servicing fees from BMTX’s Partner Bank, account fees, and university fees. The majority of revenues are driven by customer activity (deposits, spend, transactions, etc.) but may be paid or passed through by BMTX’s Partner Bank, universities, or paid directly by customers.
BMTX is a Delaware corporation, originally incorporated as Megalith Financial Acquisition Corp (“Megalith”) in November 2017 and renamed BM Technologies, Inc. in January 2021 at the time of the merger between Megalith and BankMobile Technologies, Inc. Until January 4, 2021, BankMobile Technologies, Inc. was a wholly-owned subsidiary of Customers Bank, a wholly-owned subsidiary of Customers Bancorp, Inc. (the “Bancorp” or “Customers Bancorp”). Customers Bank is BMTX’s Partner Bank.
BMTX’s Partner Bank holds the FDIC insured deposits that BMTX sources and services and is the issuing bank on BMTX’s debit cards. BMTX’s Partner Bank pays the Company a deposit servicing fee for the deposits generated and passes through interchange income earned from debit transactions.
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BMTX is not a bank, does not hold a bank charter, and does not provide banking services, and as a result it is not subject to direct banking regulation, except as a service provider to our Partner Bank. BMTX is also subject to the regulations of the Department of Education (“ED”), due to its student Disbursements business, and is periodically examined by it. BMTX’s contracts with most of its higher education institutional clients require it to comply with numerous laws and regulations, including, where applicable, regulations promulgated by the ED regarding the handling of student financial aid funds received by institutions on behalf of their students under Title IV of the Higher Education Act of 1965; the Family Educational Rights and Privacy Act of 1995 (“FERPA”); the Electronic Fund Transfer Act and Regulation E; the USA PATRIOT Act and related anti-money laundering requirements; and certain federal rules regarding safeguarding personal information, including rules implementing the privacy provisions of the Gramm-Leach-Bliley Act (“GLBA”). Other products and services offered by BMTX may also be subject to other federal and state laws and regulations.
BMTX’s higher education serviced deposits fluctuate throughout the year due primarily to the inflow of funds typically disbursed at the start of a semester. Serviced deposit balances typically experience seasonal lows in December and July and experience seasonal highs in September and January when individual account balances are generally at their peak. Debit spend follows a similar seasonal trend, but may slightly lag increases in balances.
On November 15, 2021, the Company announced the signing of a definitive agreement to merge with First Sound Bank (OTCPK: FSWA) (“FSB”), a Seattle, Washington-based community business bank. BMTX will pay up to $7.22 in cash for each share of FSB common stock or approximately $23 million in aggregate consideration, subject to certain closing conditions and adjustments as outlined in the definitive agreement. The combined company, to be named BMTX Bank, will be a fintech-based bank focused on serving customers digitally nationwide, supported by its community banking division that is expected to continue serving the greater Seattle market. The transaction is subject to regulatory approvals and other customary closing conditions and is still targeted to close in the fourth quarter of 2022.
Merger with Megalith Financial Acquisition Corp.
On January 4, 2021, BankMobile Technologies, Inc. (“BankMobile”), Megalith, and MFAC Merger Sub Inc., consummated the transaction contemplated by the merger agreement entered into on August 6, 2020, as amended. In connection with the closing of the merger, Megalith changed its name to BM Technologies, Inc. Effective January 6, 2021, Megalith’s units ceased trading, and the Company’s common stock and warrants began trading on the NYSE American under the symbols “BMTX” and “BMTX-WT,” respectively.
The merger was accounted for as a reverse recapitalization in accordance with U.S. generally accepted accounting principles (“U.S. GAAP”). Under U.S. GAAP, BankMobile was treated as the “acquirer” company for financial reporting purposes and as a result, the transaction was treated as the equivalent of BankMobile issuing stock for the net assets of Megalith, accompanied by a recapitalization. The excess of the fair value of the shares issued over the value of the net monetary assets of Megalith was recognized as an adjustment to shareholders’ equity. There was no goodwill or other intangible assets recorded in the merger.
As a result of the merger transaction, BankMobile used proceeds from the recapitalization transaction to pay down its $15.6 million outstanding loan from Customers Bank, its former parent, received $1.3 million of cash, net of transaction costs, and issued an additional 6,076,946 shares of common stock.
COVID-19
In March 2020, the outbreak of COVID-19 was recognized as a pandemic by the World Health Organization. The spread of COVID-19 created a global public health crisis that resulted in unprecedented uncertainty, economic volatility, and disruption in financial markets and in governmental, commercial, and consumer activity in the United States and globally, including the markets that BMTX serves. In response to the pandemic, we enabled nearly all of our employees to work remotely and limited business travel. We are a “Remote First” company and most of our employees have no assigned work location or regular in-office work requirement.
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With the initial outbreak of COVID-19 in 2020, the Company experienced an initial decline in revenues as compared to the pre-COVID-19 period. On March 27, 2020, the “Coronavirus Aid, Relief, and Economic Security (“CARES”) Act” was signed into law and contained substantial tax and spending provisions intended to address the impact of the COVID-19 pandemic and stimulate the economy, including cash payments to taxpayers, increased unemployment benefits, and to support higher education through the Higher Education Emergency Relief Fund (“HEERF”). This stimulus resulted in increased serviced deposit balances, debit card spend, and revenues, a trend that continued into 2021; however, growth has slowed in 2022 as compared to the accelerated growth rate we experienced during early 2021.
BUSINESS MEASUREMENTS
We believe that the following business measurements are important performance indicators for our business:
•Debit card POS spend (higher education and new business). Spend represents the dollar amount that our customers spend on their debit cards through a signature or PIN network. Spend is a key performance indicator, as the Company earns a small percentage of every dollar spent as interchange income and spend is the primary driver of our card revenues.
•Serviced deposits (ending and average; higher education and new business). Serviced deposits represent the dollar amount of deposits that are in customer accounts serviced by our Company. Our deposit servicing fee is based on a contractual arrangement with our Partner Bank and the average balance of serviced deposits is the primary driver of our deposit servicing fees. Average deposits have the strongest correlation to current period serviced deposits, but ending deposits provide information at a point in time and serve as the starting point for the following period.
•Higher education retention. Retention is a key measure of our value proposition with higher education customers. We measure retention in terms of Signed Student Enrollments (SSEs), which represents the number of students enrolled at higher education institutions. Retention is calculated by subtracting lost SSEs from starting SSEs and taking that amount as a percentage of the starting SSEs.
•Higher education financial aid refund disbursement. Represents the dollar amount of all funds that we process for a college or university partner, whether it is distributed by ACH, check, or into a BankMobile Vibe account. This is a measure of the business we process for our higher education partners in exchange for their subscription and other fees, as well as a measure of the potential that we have the opportunity to capture into our serviced accounts.
•Higher education organic deposits. Organic deposits represent the dollar total of all deposits made into a higher education BankMobile Vibe account except for funds processed through a college or university partner. Because this includes funds that the account holder adds to the account and excludes the funds processed through the higher education institution, it is viewed as a strong indicator of traction with the customer.
CRITICAL ACCOUNTING POLICIES AND ESTIMATES
For information regarding our critical accounting policies and estimates, please refer to our Annual Report on 10-K for the fiscal year ended December 31, 2021. There have been no material changes to the critical accounting policies and estimates previously disclosed in that report.
NEW ACCOUNTING PRONOUNCEMENTS
The FASB has issued accounting standards that have not yet become effective and that may impact BMTX’s interim unaudited consolidated financial statements or its disclosures in future periods. Note 2 — Basis of Presentation and Significant Accounting Policies provides information regarding those accounting standards.
RESULTS OF OPERATIONS
The following discussion of our results of operations should be read in conjunction with our interim unaudited consolidated financial statements, including the accompanying notes. The following summarized tables set forth our operating results for the three months ended March 31, 2022 and 2021:
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| Three Months Ended March 31, | Change | % Change | ||||||||||||||||||||||||
| (dollars in thousands, except per share data) | 2022 | 2021 | ||||||||||||||||||||||||
| Operating revenues | $ | 25,047 | $ | 24,202 | $ | 845 | 3 | % | ||||||||||||||||||
| Operating expenses | 22,084 | 21,379 | 705 | 3 | % | |||||||||||||||||||||
| Income from operations | 2,963 | 2,823 | 140 | 5 | % | |||||||||||||||||||||
| Gain on fair value of private warrant liability | 2,644 | 15,003 | (12,359) | (82) | % | |||||||||||||||||||||
| Interest expense | — | (54) | 54 | (100) | % | |||||||||||||||||||||
| Income before income tax expense | 5,607 | 17,772 | (12,165) | (68) | % | |||||||||||||||||||||
| Income tax expense | 1,643 | 1,713 | (70) | (4) | % | |||||||||||||||||||||
| Net income | $ | 3,964 | $ | 16,059 | $ | (12,095) | (75) | % | ||||||||||||||||||
| Basic earnings per share | $ | 0.33 | $ | 1.37 | $ | (1.04) | (76) | % | ||||||||||||||||||
| Diluted earnings per share | $ | 0.32 | $ | 0.07 | $ | 0.25 | NM | |||||||||||||||||||
NM refers to changes greater than 150%.
For the three months ended March 31, 2022, operating profitability remained generally consistent with the three months ended March 31, 2021. Operating revenues increased by $0.8 million or 3% as compared to the prior year which is primarily driven by a $4.8 million or 51% increase in revenues from Servicing fees from Partner Bank. This increase was partially offset by decreases in Other revenue, Interchange and card revenue, and Account fees. Contemporaneously, operating expenses increased by $0.7 million or 3% as compared to the prior year. This increase was primarily driven by a $0.9 million or 11% increase in Salaries and employee benefits and a $0.6 million or 37% increase in Professional services. These increases were partially offset by a decrease in Technology, communication, and processing costs. Tax expense also remained consistent with the period year. Basic and Diluted earnings per share, which decreased to $0.33 and increased to $0.32 respectively, are both driven primarily by the impact of the private warrants adjustments on the earnings per share calculations. During the three months ended March 31, 2021, the average common stock share price was greater than the warrant strike price resulting in the warrants being considered dilutive. During the three months ended March 31, 2022, the average common stock share price was below the warrant strike price, and, as a result, the warrants are not considered dilutive.
Operating Revenues
| Three Months Ended March 31, | % Change | |||||||||||||||||||||||||
| (dollars in thousands) | 2022 | 2021 | Change | |||||||||||||||||||||||
| Revenues: | ||||||||||||||||||||||||||
| Interchange and card revenue | $ | 6,643 | $ | 8,244 | $ | (1,601) | (19) | % | ||||||||||||||||||
| Servicing fees from Partner Bank | 14,192 | 9,372 | 4,820 | 51 | % | |||||||||||||||||||||
| Account fees | 2,555 | 2,661 | (106) | (4) | % | |||||||||||||||||||||
| University fees | 1,603 | 1,324 | 279 | 21 | % | |||||||||||||||||||||
| Other revenue | 54 | 2,601 | (2,547) | (98) | % | |||||||||||||||||||||
| Total operating revenues | $ | 25,047 | $ | 24,202 | $ | 845 | 3 | % | ||||||||||||||||||
Total revenues increased $0.8 million, or 3%, in the three months ended March 31, 2022 as compared to the three months ended March 31, 2021. This increase is primarily attributable to a $4.8 million increase in Servicing fees from Partner Bank. The increase is due to an increase in average serviced deposit balances for the period which increased approximately 60% to $2.1 billion for the three months ended March 31, 2022 as compared to $1.3 billion for the three months ending March 31, 2021. These increases were partially offset by a $1.6 million decrease in Interchange and card revenue driven by lower spend volume and a $2.5 million decrease in Other revenue due to a reduction in development projects for our BaaS partner which vary based on project status, contracts, and milestones.
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Operating Expenses
| Three Months Ended March 31, | % Change | |||||||||||||||||||||||||
| (dollars in thousands) | 2022 | 2021 | Change | |||||||||||||||||||||||
| Technology, communication, and processing | $ | 6,918 | $ | 8,422 | $ | (1,504) | (18) | % | ||||||||||||||||||
| Salaries and employee benefits | 9,482 | 8,557 | 925 | 11 | % | |||||||||||||||||||||
| Professional services | 2,372 | 1,737 | 635 | 37 | % | |||||||||||||||||||||
| Provision for operating losses | 1,602 | 1,329 | 273 | 21 | % | |||||||||||||||||||||
| Occupancy | 307 | 309 | (2) | (1) | % | |||||||||||||||||||||
| Customer related supplies | 230 | 377 | (147) | (39) | % | |||||||||||||||||||||
| Advertising and promotion | 113 | 191 | (78) | (41) | % | |||||||||||||||||||||
| Merger and acquisition related | 289 | — | 289 | 100 | % | |||||||||||||||||||||
| Other expense | 771 | 457 | 314 | 69 | % | |||||||||||||||||||||
| Total operating expenses | $ | 22,084 | $ | 21,379 | $ | 705 | 3 | % | ||||||||||||||||||
For the three months ended March 31, 2022, operating expenses increased $0.7 million, or 3%, as compared to the three months ended March 31, 2021. The increase is primarily attributable to a $0.9 million increase in Salaries and employee benefits, a $0.6 million increase in Professional services, and a $0.3 million increase in Merger and acquisition related expenses. The increase in Salaries and employee benefits is driven by an increase in average headcount, annual merit raises, and the vesting of equity awards granted in September 2021. The increase in Professional services is driven by increases in legal, audit, and consulting costs associated with the Company’s restatement activities and the filing of its fiscal year 2021 Form 10-K. The increase in Merger and acquisition related expenses is due to activities related to the proposed FSB merger that was previously announced in November 2021. These increases were partially offset by a $1.5 million decrease in Technology, communication, and processing. The decrease in Technology, communication, and processing is related to a renegotiation with one of the Company’s primary vendors which took effect in the third quarter of 2021.
Income Tax Expense
The Company’s effective tax rate was 29.3% and 9.6% for the three months ended March 31, 2022 and 2021, respectively. The effective tax rate differs from the Company’s marginal tax rate of 27.4% due to the non-taxable fair value adjustments related to the non-compensatory private warrant liability being recorded through earnings, offset by the tax associated with the estimated annual increase of the valuation allowance established against deferred tax assets.
LIQUIDITY AND CAPITAL RESOURCES
Our Cash and cash equivalents consist of non-interest bearing, highly-liquid demand deposits. We had $30.6 million of Cash and cash equivalents at March 31, 2022 as compared to $25.7 million of Cash and cash equivalents at December 31, 2021. We currently finance our operations through cash flows provided by operating activities. We continue to project positive operating cash flows for the 2022 fiscal year and we intend to fund our ongoing operating activities with our existing cash and expected cash flows from operations. However, should additional liquidity be necessary, the Company could consider equity or debt financing, but there are no assurances that additional capital would be available or on terms that are acceptable to us.
The table below summarizes our cash flows for the periods indicated:
| Three Months Ended March 31, | % Change | |||||||||||||||||||||||||
| (dollars in thousands) | 2022 | 2021 | Change | |||||||||||||||||||||||
| Net cash provided by operating activities | $ | 9,190 | $ | 9,519 | $ | (329) | (3) | % | ||||||||||||||||||
| Net cash used in investing activities | (2,138) | (117) | (2,021) | NM | ||||||||||||||||||||||
| Net cash (used in) provided by financing activities | (2,202) | 4,988 | (7,190) | (144) | % | |||||||||||||||||||||
| Net increase in cash and cash equivalents | $ | 4,850 | $ | 14,390 | $ | (9,540) | (66) | % | ||||||||||||||||||
NM refers to changes greater than 150%.
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Cash flows provided by operating activities
Cash provided by operating activities was $9.2 million in the three months ended March 31, 2022 which is generally consistent with the cash provided by operating activities of $9.5 million in the three months ended March 31, 2021.
Cash flows used in investing activities
Cash used in investing activities increased $2.0 million in the three months ended March 31, 2022 as compared to the three months ended March 31, 2021, primarily due to increased capitalization of development costs related to internal use software.
Cash flows used in financing activities
Cash used in financing activities in the three months ended March 31, 2022 decreased $7.2 million as compared to the three months ended March 31, 2021, primarily due to the private warrant repurchase transaction during the current period versus the recapitalization transaction and payoff of borrowings in the prior period.
CONTRACTUAL OBLIGATIONS
A summary of the Company’s contractual lease obligations as of March 31, 2022 is as follows:
| Payments Due by Period | ||||||||||||||||||||||||||
| (dollars in thousands) | Within 1 year | 1 to 3 years | More than 3 years | Total Amounts Committed | ||||||||||||||||||||||
| Operating leases | $ | 237 | $ | — | $ | — | $ | 237 | ||||||||||||||||||
| $ | 237 | $ | — | $ | — | $ | 237 | |||||||||||||||||||
Off-Balance Sheet Arrangements
As of March 31, 2022, we did not have any off-balance sheet arrangements.
ITEM 3. QUANTITATIVE DISCLOSURES ABOUT MARKET RISK
Credit Risk
We are exposed to economic risks in the normal course of business such as concentration of credit risk. Potential concentration of credit risk consists primarily of accounts receivable from our Partner Bank, BaaS partners, MasterCard, and higher education institution clients. Historically, we have not experienced any material losses related to these balances and believe that there is minimal risk of expected future losses. However, there can be no assurance that there will not be losses on these balances.
At March 31, 2022 and December 31, 2021, our Partner Bank accounted for 58% and 61% of our total Accounts receivable, net, respectively. At March 31, 2022 and December 31, 2021, a BaaS partner accounted for 16% and 13% of our total Accounts receivable, net, respectively. MasterCard accounted for 19% and 17% of our total Accounts receivable, net at March 31, 2022 and December 31, 2021, respectively. The remainder of our total Accounts receivable, net was comprised of receivables for uncollected subscription and disbursement services fees from our higher education institution clients.
Financial instruments that potentially subject the Company to credit risk consist principally of cash held in the Company's operating account. Cash is maintained in accounts with our Partner Bank, which, at times may exceed the FDIC coverage of $250,000. At March 31, 2022, the Company has not experienced losses on these cash accounts and management believes, based upon the quality of the our Partner Bank, that the credit risk with regard to these deposits is not significant.
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ITEM 4. CONTROLS AND PROCEDURES
(a) Evaluation of Disclosure Controls and Procedures
Under the supervision and with the participation of management, including our Chief Executive Officer (our principal executive officer) and our Chief Financial Officer (our principal financial officer), we conducted an evaluation of our disclosure controls and procedures, as defined in Exchange Act Rule 13a-15(e), as of March 31, 2022.
We identified material weaknesses in our internal control over financial reporting, as described in Part II, Item 9A of our Annual Report on Form 10-K for the year ended December 31, 2021, which were not fully remedied as of March 31, 2022. A material weakness is a deficiency or combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of our annual or interim financial statements will not be prevented or detected and corrected on a timely basis. Accordingly, our principal executive officer and principal financial officer concluded that our disclosure controls and procedures were not effective as of the end of the period covered by this report.
(b) Changes in Internal Control Over Financial Reporting
Except as set forth in the following sentences, no change in our internal control over financial reporting (as that term is defined in Exchange Act Rule 13a-15(f)) occurred during the fiscal quarter ended March 31, 2022 that materially affected, or is reasonably likely to materially affect, our internal control over financial reporting. As of December 31, 2021, we had concluded that our internal control over financial reporting was not effective. During the first quarter of 2022, we have been implementing and will continue to implement changes that are both organizational and process-focused to improve the control environment of the Company. We anticipate the actions to be taken and resulting process improvements to generally strengthen our internal control over financial reporting, and over time, will address the material weaknesses noted as of December 31, 2021. These remedial measures were considered changes to our internal control environment which had a material effect on internal control over financial reporting. We expect that the remediation of these material weaknesses will be fully implemented and validated by the end of the fourth quarter of 2022.
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PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
We are involved in legal and administrative proceedings and litigation arising in the ordinary course of business. We believe that the potential liability, if any, in excess of amounts already accrued from all proceedings, claims and litigation will not have a material effect on our financial position, cash flows or results of operations when resolved in a future period.
ITEM 1A. RISK FACTORS
There have been no material changes to the Risk Factors disclosed in Part I, Item 1A of our Annual Report on Form 10-K, as amended, for the year ended December 31, 2021.
ITEM 6. EXHIBITS
(a)Exhibits
The following documents are filed as part of, or incorporated by reference into, this Quarterly Report on Form 10-Q:
| Exhibit No. | Description | |||||||
| 3.1 | ||||||||
| 3.2 | ||||||||
| 10.1 | ||||||||
| 31.1 | ||||||||
| 31.2 | ||||||||
| 32 | ||||||||
| 101.INS | XBRL Instance Document* | |||||||
| 101.SCH | XBRL Taxonomy Extension Schema* | |||||||
| 101.CAL | XBRL Taxonomy Calculation Linkbase* | |||||||
| 101.LAB | XBRL Taxonomy Label Linkbase* | |||||||
| 101.PRE | XBRL Definition Linkbase Document* | |||||||
| 101.DEF | XBRL Definition Linkbase Document* | |||||||
| * Filed herewith | ||||||||
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, BM Technologies, Inc. has duly caused this Quarterly Report on Form 10-Q to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Wayne, Commonwealth of Pennsylvania, on the 16th day of August, 2022.
| BM Technologies, Inc. | ||||||||
| By: | /s/ Luvleen Sidhu | |||||||
| Luvleen Sidhu | ||||||||
| Chief Executive Officer (Principle Executive Officer) | ||||||||
| BM Technologies, Inc. | ||||||||
| By: | /s/ Robert Ramsey | |||||||
| Robert Ramsey | ||||||||
| Chief Financial Officer (Principle Financial Officer) | ||||||||
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EXECUTION VERSION SPECIAL LIMITED AGENCY AGREEMENT THIS SPECIAL LIMITED AGENCY AGREEMENT (as amended, modified or restated from time to time, this “Agreement”) dated as of April 20, 2022 (the “Effective Date”), is made by and between (a) CUSTOMERS BANK, a Pennsylvania chartered bank (“Lender”), and (b) BM TECHNOLOGIES, INC., a Delaware corporation (“Originator”). RECITALS WHEREAS, Lender intends to make Loans (as defined below) to Borrowers (as defined below). WHEREAS, Originator markets and provides marketing services for consumer installment loans funded by Lender. WHEREAS, the parties desire to enter into this Agreement for the purpose of setting forth the terms and conditions which will govern the services that Originator and Lender provide to each other in connection with the Loans. NOW, THEREFORE, in consideration of the mutual promises set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Lender and Originator agree as follows: 1. Definitions. Except as may be explicitly stated otherwise herein, the following terms shall have the following meanings ascribed to them below: “Advertising Materials” means all materials and methods used by Originator in the performance of its marketing and promotion of the Loans, including, without limitation, brochures, letters, print advertisements, internet advertisements, television and radio communications and other advertising, promotional and similar materials. “Applicant” means an individual requesting or applying for a Loan under the Loan Program who was referred to Lender by Originator. “Borrower” means a qualified, natural individual referred by Originator who obtains a Loan from Lender, is borrower under the Loan Documents and plans to use the Loan proceeds primarily for personal, family or household purposes. “Complaint” means (a) a written or oral allegation by, or on behalf of, an individual, group of individuals, or another entity that a particular act or practice committed by Originator or Lender is incorrect, unfair, deceptive, abusive, or in violation of a state or federal regulation or statute with which Originator or Lender must comply; or (b) a written expression of dissatisfaction with any product or service provided by Originator or Lender under this Agreement or Loan Program. “Escalated Complaint” means a (i) complaint filed by, or forwarded from, any federal or state regulator; (ii) complaint filed with any government official – federal, state or local; (iii) written complaint with specific allegations of discriminatory practices; (iv) written complaint
SPECIAL LIMITED AGENCY AGREEMENT–PAGE 2 CUSTOMERS BANK–BM TECHNOLOGIES, INC. with specific allegations of fraudulent practices, in each case, with respect to Loan origination and servicing; or (v) complaint alleging violations of consumer compliance laws or regulations. “GLBA” means the federal Gramm-Leach-Bliley Act and its implementing regulation, Regulation P. “Loans” means any extension of credit to Borrowers for personal, family or household purposes, with the assistance of Originator, offered under the Loan Program as of the Effective Date, including unsecured personal loans, unsecured student loan refinance loans and both secured and unsecured credit cards. For the purposes of clarity, the parties are not offering home improvement loans, loans secured by automobiles or loans secured residential real property under the Loan Program as of the Effective Date of this Agreement. “Loan Program” means the lending program of Lender for originating and consummating Loans pursuant to this Agreement. “Non-Public Personal Information” is defined as any information about an individual which can be used to distinguish or trace an individual’s identity, and any other information that is linked or linkable to an individual, which may include but is not limited to: name, address, telephone number, e-mail address, social security number, driver’s license number, state-issued identification card number, and/or an account number, credit or debit card number, in combination with any required security code, access code or password that would permit access to an individual’s financial account. “Originator Program” means Originator’s program for providing Origination Services to Borrowers. “Program” means collectively the Loan Program and Originator Program. “Program Materials” means all promissory notes, documents, agreements, instruments or other writings, including without limitation applications, disclosures and agreements required by the Rules, privacy policies, red flag rules and the like, but excluding Advertising Materials. Program Materials do not include any Originator specific regulatory disclosures, agreements or materials pursuant to statutes and regulations related to any state licenses or approvals obtained by Originator. “Regulatory Authority” means any local, state, or federal regulatory authority having valid jurisdiction or exercising regulatory or similar oversight with respect to Lender, Originator, or other Third Party Service Providers. “Rules” or “Applicable Law” means all local, state, and federal statutes, regulations, or ordinances applicable to the acts of Lender, Originator or a Third Party Service Provider as they relate to Originator Program and/or the Loan Program; any order, decision, injunction, or similar pronouncement of any court, tribunal, or arbitration panel issued with respect to Lender, Originator or a Third Party Service Provider in connection with this Agreement or the Program; and any regulations, policy statements, and any similar pronouncement of a Regulatory Authority applicable to the acts of Lender, Originator or a Third Party Service Provider as they relate to this Agreement or the Program.
SPECIAL LIMITED AGENCY AGREEMENT–PAGE 3 CUSTOMERS BANK–BM TECHNOLOGIES, INC. “Third Party Service Provider” means any independent contractor directly or indirectly retained by Lender or Originator, who provides or renders services in connection with Originator Program or the Loan Program. Other terms defined herein have the meanings so given to them. Each reference in this Agreement to a definition is a reference to a definition contained in this Agreement, unless the context expressly provides otherwise. Whenever the context requires, references in this Agreement to the singular number shall include the plural, and the plural number shall include the singular. Words denoting gender shall include the masculine, feminine and neutral. 2. General Description of the Loan Program and Originator Program. a. Independence of Originator and Lender. Originator and Lender intend to comply with any applicable Rules and to operate independently of each other in their respective capacities as an Originator in the case of Originator and independent, third party lender in the case of Lender. Originator and Lender contemplate that Originator will provide loan Origination Services related to the Loans. b. Loan Program. The parties agree that the Loan Program shall consist of the origination and funding of Loans to Borrowers in accordance with the Rules. The parties agree that Lender shall have sole responsibility for establishing credit and underwriting criteria for the Loans, making the decisions as to whether or not to make Loans to an Applicant, funding the Loans, and, subject to the timely performance of Originator’s obligations hereunder, managing the Loan Program in accordance with the express obligations under this Agreement. Except as expressly provided herein, (i) nothing herein shall be deemed to commit Lender to originate or fund any particular level or number of Loans, and (ii) Lender makes no representation, warranty or covenant as to the amount of funding it will be able to provide for the Loans. Except as expressly provided with respect to the rights and interest of Originator in this Agreement, Lender or its assigns shall be the sole owner of all Loans made pursuant to this Agreement and Originator shall have no right, title or interest in such Loans. c. Originator Program. The parties agree that Originator’s responsibility under the Program shall be to act as an Originator on behalf of Lender in accordance with the Rules. Originator shall ensure that the services Originator provides to each Borrower comply with all Applicable Laws, including federal and state statutes and regulations related to required disclosures (each an “Originator Disclosure Statement”) and related to restrictions on marketing activities, if any. Lender will be responsible for establishing the minimum documentation and loan disclosure requirements that the Originator will follow with respect to the Loan Program, which may change from time to time. For the avoidance of doubt, Originator will be responsible for (i) properly delivering all consumer-facing Loan Program documentation and disclosures provided to it by Lender to each Applicant or Borrower and (ii) ensuring that any digital or other reference to the Loan Program, link, marketing or other materials promoting the Loan Program are (y) submitted by Originator to Lender for its review and preapproval prior to any publication, use, or display and (z) in compliance with Applicable Law. Lender will provide guidance/advice for establishing Originator Program. Nothing herein shall be deemed to commit Originator to provide a particular level or number of loan Origination Services to Applicants for Loans, and Originator makes no representation, warranty or covenant as to the number of Loan applications Originator
SPECIAL LIMITED AGENCY AGREEMENT–PAGE 4 CUSTOMERS BANK–BM TECHNOLOGIES, INC. will submit to Lender on behalf of Applicants. Unless otherwise required by the Rules, nothing herein shall be deemed to require Originator to provide services to any prospective Borrower. Originator agrees and understands that Lender, in its sole discretion, in compliance with all laws and regulations, has the ability to approve or disapprove any Applicant referred by Originator. d. Commencement Date. The parties shall endeavor to begin the Program and making Loans hereunder as of the Effective Date or such other date as mutually agreed upon by the parties. e. Additional Products; Program Changes; Additional Expenses. If the parties desire to add additional consumer loan products within the scope of this Agreement, the terms under which such products shall be deemed “Loans” subject to this Agreement will be set forth in a mutually-agreeable amendment to this Agreement executed by authorized representatives of the parties hereto. Lender shall have the authority to pass on to Originator the agreed upon increased costs caused by any changes to the Loan Program. 3. Duties and Responsibilities of Lender. Lender shall perform and discharge the following duties and responsibilities: a. Develop (and from time to time as it determines appropriate, modify) and deliver to Originator and a Third-Party Service Provider if applicable, credit and underwriting criteria determined by Lender, in Lender’s sole discretion, to be appropriate, reasonable and prudent for the Loan Program and the Loans. b. Make a determination, in Lender’s sole discretion, as to whether or not to extend a Loan to each Applicant which determination shall be made on a case by case basis, pursuant to scoring systems or other criteria or models, established by Lender. c. Extend credit in the form of Loans to Applicants it deems eligible to be Borrowers and fund the Loans in amounts as it determines appropriate to extend credit thereto. d. Disburse or cause the disbursement of the proceeds of Loans to Borrowers. e. Manage the Loan Program in accordance with Lender’s express obligations under this Agreement and manage the portfolio of Loans. f. Generate or cause the generation of adverse action notices and other communications that may be required under the Rules for Applicants who apply for but are denied a Loan. g. Remit a fee to Originator on a monthly basis in an amount equal to aggregate, as the case may be, of: (i) THREE PERCENT (3%) of the principal amount of each personal loan funded by Lender over a calendar month; (ii) ONE PERCENT (1%) of the principal amount of each student loan refinance funded by Lender over a calendar month; and (iii) TWENTY-FIVE AND NO/100 DOLLARS ($25) on each credit card account opened by Lender over a calendar month (collectively, “Monthly Fee”). Lender shall discount the combined amount of the Monthly Fee by the amount of any Monthly Fee previously earned by Originator in connection with a Loan where Borrower either remitted payment in full, refinanced or defaulted
SPECIAL LIMITED AGENCY AGREEMENT–PAGE 5 CUSTOMERS BANK–BM TECHNOLOGIES, INC. within ONE HUNDRED AND TWENTY (120) days from the date of Loan funding. Originator agrees that Originator is entitled to a Monthly Fee only when: (i) Originator locates a Borrower desiring a Loan; (ii) Originator refers Borrower to Lender; (iii) Lender funds Borrower’s Loan (or, if the Loan is a credit card account, Lender opens a credit card account for a Borrower); (iv) Borrower keeps Borrower’s Loan open and fails to default within ONE HUNDRED AND TWENTY (120) days from the date of Loan funding; and (v) Borrower conducts a transaction, including transfer, in first ONE HUNDRED AND TWENTY (120) days from the account opening date for each Loan that is a credit card account. Within ninety (90) days after the Effective Date of this Agreement, the parties hereto agree to engage in a good faith negotiation session regarding potential adjustments to the Monthly Fee set forth in this Section with respect to credit card accounts, including the conditions for payment and retention of such fee and any revenue sharing; provided that prior to any such negotiation Originator shall deliver to Lender a detailed plan setting forth Originator’s marketing plan, compliance plan, and anticipated referral volumes with respect to such credit card accounts. Any fee adjustments agreed upon in such negotiation will be documented in a mutually-executed amendment to this Agreement. 4. Duties and Responsibilities of Originator. Originator shall perform and discharge the following duties and responsibilities: a. Develop (and from time to time as it determines appropriate, modify) its criteria for providing Originator’s services in Originator’s sole discretion to be appropriate, reasonable and prudent for Originator Program. b. Maintain all licenses and bonds required under applicable Rules during the term of this Agreement. c. Make a determination, in Originator’s sole discretion, as to whether or not to offer Origination Services to any particular Applicant. Lender, in its sole discretion, has ability to approve or reject any Applicant failing to meet Lender’s underwriting criteria and standards. d. Do and perform all other activities assigned to or expected of it as set forth herein. e. Report Escalated Complaints to the Lender within TWO (2) business days of Originator being notified of such Escalated Complaint. If Lender is named in the Escalated Complaint, Originator shall notify Lender same day after receiving such Escalated Complaint. f. Establish and maintain an effective procedure whereby Originator’s (i) contact or customer service center agents; (ii) employees; and (iii) independent contractors or other agents, do timely transfer, if necessary, any Complaint or other Applicant or Borrower contact concerning a Loan or Loan application to Originator’s applicable department or Third Party Service Provider; provided that Originator will appropriately respond to any Complaint or Escalated Complaint that reasonably requires a response from Originator (each an “Originator Focused Complaint”). g. Establish and maintain an effective procedure to ensure that each and every Complaint is either: (1) transferred to Originator’s appropriate department or Third Party Service Provider in accordance with subsection (f) above; or (2) for Originated Focused Complaints,
SPECIAL LIMITED AGENCY AGREEMENT–PAGE 6 CUSTOMERS BANK–BM TECHNOLOGIES, INC. tracked and responded to appropriately by Originator in accordance with Exhibit “A” attached hereto. h. Establish and maintain effective information security standards in accordance with Exhibit “B” attached hereto. i. Obtain Lender’s approval to offer any loans not offered under the Loan Program as of the Effective Date of this Agreement. j. Obtain Lender’s prior approval to partner with any Third Party Service Provider desiring to provide referral related services in connection with the Loan Program in accordance with Lender’s vendor management review and approval process. Review the Monthly Fee with Lender periodically. Such a review must occur no more frequently than every SIX (6) months from the Effective Date of this Agreement and must occur. k. Remit timely payment to Lender for any cost increases associated with offering Loans not currently offered under the Loan Program when requested by Lender. l. Review and negotiate with Lender any changes to the Loan Program with Lender and, if the parties so mutually decide, prepare a separate statement of work for the implementation of such changes. 5. Appointment of Originator as Special Limited Agent. Lender hereby appoints Originator as its special limited agent to perform certain administrative functions in connection with this Agreement under the Program on behalf of Lender. Originator hereby accepts the appointment as Lender’s special limited agent and agrees to perform and discharge the following duties and responsibilities (“Origination Services”) at its own cost and expense. a. Market and promote the Program and the Loans and solicit potential Applicants in the manner set forth herein. b. Refer Applicants to Lender for Lender’s approval. c. Direct Borrowers to make Loan Payments to Lender. Any Loan payments delivered to Originator by Borrowers shall belong to Lender. Any such funds so received shall be forwarded to Lender or will be deposited in a bank account owned, designated and controlled by Lender. d. Comply with all registration, licensing, bonding, disclosure, customer contracts/agreements and other requirements arising pursuant to applicable federal and state statutes and any regulations promulgated thereunder, and with the Rules including federal laws and regulations applicable to Originator’s loan brokerage activities with respect to the Loans, to the extent that any such Rules including federal statutes or regulations are applicable to Originator’s loan brokerage activities. e. Maintain and retain electronic copies of all Program Materials. 6. Defaulted Loans. A Loan shall default upon the occurrence of any of the
SPECIAL LIMITED AGENCY AGREEMENT–PAGE 7 CUSTOMERS BANK–BM TECHNOLOGIES, INC. following: (a) Borrower fails to make payments when due, (b) Borrower makes any statement or representation in connection with obtaining a Loan which is materially false or misleading when made, or (c) Borrower fails to keep any promise or agreement it made to Lender in any promissory note or other document evidencing or relating to a Loan. Originator agrees to repay an amount equal to any Monthly Fee previously earned for each defaulted Loan. Originator expressly agrees that Lender may deduct the amount of the Monthly Fee for each defaulted Loan as referred in Section 3(g). 7. Settlement. Subject to the terms and conditions of this Agreement, the parties agree to settle all amounts due from one party to the other pursuant to this Agreement on a monthly basis (the date of any such settlement, being the “Transaction Date”). Lender shall prepare (a) a report documenting the relevant information, in its sole and reasonable discretion, necessary for such settlement, and (b) an invoice based upon such report (both, collectively, the “Invoice Documents”) and shall deliver to Originator such Invoice Documents along with payment within TEN (10) business days of the end of each month. Originator shall have TEN (10) business days in which to review the Invoice Documents (the “Review Period”) and shall raise any concerns or objections to such Invoice Documents within the Review Period. Failure to raise any further concerns or objections within a reasonable amount of business days after the Review Period expires shall constitute a permanent waiver of such concerns or objections. Lender and Originator shall cooperate in good faith to resolve any concerns or objections to the Review Documents, and Lender shall provide a revised copy of such Review Documents, if necessary, after resolution of any of Originator’s concerns or objections (the “Revised Invoice Documents”). Unless otherwise provided herein or as Lender in its sole discretion may provide, any payment due under this Agreement shall be made by an automated clearing house transfer with next day settlement on the business day immediately succeeding the Transaction Date. Within TWENTY (20) days after the end of each calendar quarter, Lender shall prepare a recap and reconciliation of all of the settlements made during that month, and if the reconciliation is agreed upon and reveals that one party owes the other an amount necessary to correct an inaccuracy in the previous settlement process, that amount shall be paid within TWO (2) business days. The settlement obligations of the parties under this Agreement shall survive the termination of this Agreement and will remain in effect for ONE HUNDRED AND TWENTY (120) days from the date of the last Loan funding or any party owes any amount to the other party under this Section 7. Pursuant to the requirements of this Agreement, Originator shall cooperate with Lender to capture and record all relevant data concerning any Loan transaction and shall provide any reasonably requested information as may be necessary to effect settlement hereunder, permit Lender to timely prepare the Invoice Documents, facilitate the review and analysis of all Loan activity, and permit Lender to reflect such Loan transactions on its books and records. 8. Program Materials; Advertising Materials. a. Program Materials. Lender shall be responsible for preparing and providing Program Materials in accordance with the Rules. Originator shall be entitled to review and approve such Program Materials in the manner described below. However, any review of the Program Material by Originator will not constitute a guarantee or warranty to Lender of the compliance of Program Materials to the Rules. Each party agrees that it will not use any Program Materials unless such Program Materials have been approved in advance by the other party hereto (which approval
SPECIAL LIMITED AGENCY AGREEMENT–PAGE 8 CUSTOMERS BANK–BM TECHNOLOGIES, INC. shall not be unreasonably withheld or delayed). b. Advertising Materials. Originator shall be responsible for the development and compliance with Applicable Law of proposed Advertising Materials concerning advertising and marketing of Loans and solicitation of potential Borrowers. The form and content of all Advertising Materials shall be subject to the prior review and approval of Lender in the manner described herein. All Advertising Materials shall denote Lender as the lender on the Loan. The nature of the Advertising Materials, the scope of their dissemination, and the total expenditures to be made on Advertising Materials for Originator Program and the Program shall be determined by Originator in its reasonable discretion, and Originator shall pay all expenses concerning the production, use, and dissemination of Advertising Materials. c. Notwithstanding anything herein to the contrary, each party agrees that it will respond in writing to any request from the other party for an approval of any Advertising Materials or Program Materials within SEVEN (7) business days following such other party’s receipt of such materials and any such materials shall be deemed approved by such other party upon the earlier to occur of (a) the actual approval of such materials, or (b) upon the expiration of the above-described SEVEN (7) business day period if the party whose approval is being sought fails to timely approve or disapprove such materials within such SEVEN (7) business day period. If a party disapproves any proposed Program Materials or Advertising Materials within the required time frame, such party will detail its reasons for such disapproval in such party’s written disapproval notice to the other party. A party hereto may at any time retract or modify any approval previously given by it with respect to any Program Materials or Advertising Materials if such action is necessary in order to remain in compliance with the Rules. Originator shall ensure that all Advertising Materials shall comply with all applicable Rules. Notwithstanding anything herein to the contrary, each party hereto acknowledges and agrees that any review and/or approval provided by the other party hereto of Advertising Materials is not and shall not be deemed a warranty from the reviewing/approving party that such materials comply with the applicable Rules and the reviewing/approving party shall have no liability to the submitting party for any failure of such materials to comply with the applicable Rules. Each of Lender and Originator acknowledges that approved Program Materials and/or Advertising Materials may contain trade names, trademarks, or service marks of Originator and Lender, and Lender or Originator, as the case may be, use of any such names or marks shall be governed by License Agreement executed by the parties on May 4, 2021. The parties shall use Program Materials and Advertising Materials only for the purpose of implementing the provisions of this Agreement and shall not use Program Materials or Advertising Materials in any manner that would violate the Rules. If Lender requests that Originator provide marketing services to, for example and not by way of limitation, increase the volume of Loans provided under the Loan Program, such marketing services shall be the subject of a separate, written statement of work that shall not be effective until executed by a duly authorized representative of each party hereto. Upon FIVE (5) business days prior written notice to Originator, Lender shall have the right to audit Originator’s creation, dissemination, and use of the Advertising Materials. Originator shall reasonably cooperate with Lender’s reasonable requests in connection therewith. 9. Loan Terms and Charges; Originator Terms and Fees. All underwriting criteria, Loan terms and all interest, fees, and other charges associated with the Loans, shall be established by Lender in its sole discretion. Notwithstanding the foregoing, however, Lender shall
SPECIAL LIMITED AGENCY AGREEMENT–PAGE 9 CUSTOMERS BANK–BM TECHNOLOGIES, INC. have the right to modify any underwriting criteria, Loan terms, interest rates, fees (excluding Monthly Fee), or other charges, from time to time, at its discretion (the “Changed Terms”). Unless otherwise required by applicable Rules, Lender shall provide Originator with not less than TEN (10) business days prior written notice of the Changed Terms, along with appropriate compliant language and disclosures related to Loan funding. Originator shall use best efforts to comply with shorter periods of prior written notice of the Changed Terms from Lender in the case of emergencies. In the event that either party hereto becomes aware that any aspect of the Loan Program or Originator Program, including but not limited to, underwriting criteria, Loan terms, interest, fees or other charges associated with any Loan, any term or condition of any Originator Disclosure Statement or Originator Contract or the amount of any Originator Fee, or any activity of Lender or Originator is not in compliance with the Rules, the party becoming aware of the same shall notify the other party of such non-compliance and each party hereto agrees to cooperate in good faith with each other, and to diligently take commercially reasonable steps, as may be necessary in order to promptly correct and cure any such noncompliance. 10. Third Party Service Providers. Originator must provide within a reasonable timeframe, written notice to Lender of termination of any Third Party Service Provider providing referral related services in connection with the Loan Program. Prior to engaging a proposed Third Party Service Provider to provide referral-related services in connection with the Loan Program, Originator shall obtain a written commitment from such Third Party Service Provider (i) to comply with the terms of this Agreement that are applicable to such provider’s scope of engagement (including any associated confidentiality and nondisclosure agreements), (ii) to submit to audits and inspections by either party hereto, and (iii) to indemnify the parties hereto upon such terms and conditions as the parties hereto may reasonably require. Originator shall be solely responsible for the selection, engagement, supervision, payment and any other debt obligation to any Third Party Service Providers retained by Originator. Unless otherwise expressly agreed to in writing, neither Lender, nor Originator, may bind or otherwise obligate the other in any agreement with a Third Party Service Provider. For purposes of this Agreement, any reference to a Third Party Service Provider excludes Originator or any of its affiliates. 11. Originator’s Representations, Warranties and Covenants. Originator makes the following warranties, representations and covenants, and which warranties and representations shall be true and correct as of the date hereof and thereafter until all of the obligations of Originator under this Agreement shall have been satisfied in full to Lender, all of which shall survive the execution and termination of this Agreement for any reason: a. This Agreement is valid, binding and enforceable against Originator in accordance with its terms, and Originator has received all necessary organization approvals to enter into this Agreement and to perform its obligations hereunder. b. Originator is a Delaware corporation. Originator is duly formed, validly existing, and in good standing under the laws of the State of Delaware and is authorized, registered, and licensed to do business in each state in which the nature of its activities makes such authorization, registration, or licensing necessary or required. Originator is registered as required and will remain so registered throughout the term of this Agreement. c. Originator has the full organizational power and authority to execute and
SPECIAL LIMITED AGENCY AGREEMENT–PAGE 10 CUSTOMERS BANK–BM TECHNOLOGIES, INC. deliver this Agreement and perform all of its obligations hereunder. d. The provisions of this Agreement and the performance of each of Originator’s obligations hereunder do not conflict with Originator’s articles of organization, by- laws, or any agreement, contract, lease, or obligation to which Originator is a party or by which Originator is bound. e. The governing authority of Originator has approved the terms and conditions of this Agreement and has determined that entering into this Agreement is in the best interests of Originator. f. This Agreement, Originator’s participation in the Loan Program and Originator’s operation of the Originator Program in accordance with this Agreement will not violate any Rules. g. Originator shall implement, and shall take measures to maintain, reasonable and appropriate administrative, technical, and physical security safeguards to (1) ensure the security and confidentiality of Non-Public Personal Information, under its control, relating to any Applicant or Borrower; (2) protect against anticipated threats or hazards to the security or integrity of non-public personal information; and (3) protect against unauthorized access or use of Non- Public Personal Information that could result in substantial harm or inconvenience to any Applicant or Borrower. h. Neither Originator nor any principal thereof has been or is the subject of any of the following that has not been disclosed to and acknowledged by Lender: i. Criminal conviction (other than misdemeanor traffic offenses); ii. IRS lien; iii. Enforcement agreement, memorandum of understanding, cease and desist order, administrative penalty, or similar agreement concerning lending matters; iv. Administrative or enforcement proceeding or material investigation commenced by the Securities and Exchange Commission, state securities regulatory authority, Federal Trade Commission, or any other state or federal Regulatory Authority (excluding routine examinations conducted by a Regulatory Authority and excluding communications received in the ordinary course of business from any Regulatory Authority such as communications concerning consumer complaints or communications related to immaterial issues); or v. Restraining order, decree, injunction, or judgment in any proceeding or lawsuit alleging fraud or deceptive practices or illegal activity on the part of Originator or any principal thereof. For purposes of this Section 11.g., the word “principal” of Originator shall include (i) any executive officer of Originator, and (ii) any other person having the power or authority to materially control Originator’s business.
SPECIAL LIMITED AGENCY AGREEMENT–PAGE 11 CUSTOMERS BANK–BM TECHNOLOGIES, INC. i. Originator shall at all times comply with, and shall furnish Lender upon request a quarterly compliance certificate affirming its current compliance and earlier compliance during the previous quarter with, each of the following covenants: i. Originator will be duly licensed where needed prior to performing Originator Services (Originator has not brokered or originated any loans under the “tribal model” and/or any “offshore model”); ii. Originator is now and was at all relevant times and in all material respects in compliance with the Loan Program, and all applicable Rules; iii. At all relevant times, all advertising and promotional materials for the Loans (1) have and continue to prominently identified Lender as maker of the Loans, (2) have been and continue to be accurate, (3) have not been and are not now misleading, (4) have and continue to be in compliance with all applicable Rules, and (5) have been and continue to be submitted to Lender for prior approval; iv. Originator has not knowingly engaged and is not now knowingly engaged in any discriminatory practice in violation of the Rules, including without limitation any discriminatory practice for the purpose of discouraging any Applicant in any aspect of the credit process or any purpose prohibited by the Rules or any Applicable Law; v. Originator has been and will remain in compliance all respects with GLBA, Federal Trade Commission enforcement actions enforcing federal consumer privacy requirements, other applicable federal and state privacy Rules, and this Agreement, as it pertains to Applicant and Borrower Information; vi. Originator has not violated will not violate any term of this Agreement pertaining to the use and/or protection of Lender’s Confidential Business Information; vii. Originator shall provide (in reasonable detail) the calculations and supporting documentation as Lender may require to demonstrate compliance with the financial covenants referred to in Section 21 of this Agreement; viii. Originator has and will continue to timely furnish all information required herein, which information has and will be in all material respects, truthful, accurate and complete. ix. Originator shall permit Lender to participate in any periodic conference call regularly available to market analysts or investors. x. Originator shall comply with all applicable federal, state and local statutes, regulations and ordinances in its performance of this Agreement, the performance of the Origination Services, and its operation of the Program. xi. Originator shall implement, and shall take measures to maintain, reasonable and appropriate administrative, technical, and physical security safeguards to (1) insure the security and confidentiality of Non-Public Personal Information relating to any consumer; (2)
SPECIAL LIMITED AGENCY AGREEMENT–PAGE 12 CUSTOMERS BANK–BM TECHNOLOGIES, INC. protect against anticipated threats or hazards to the security or integrity of Non-Public Personal Information; and (3) protect against unauthorized access or use of Non-Public Personal Information that could result in substantial harm or inconvenience to any consumer. Any failure or inability to timely or truthfully issue such compliance certificate shall be a default under this Agreement and shall give rise to Lender’s rights and remedies under Section 16. 12. Lender’s Representations and Warranties. Lender makes the following warranties and representations to Originator, all of which shall survive the execution and termination of this Agreement for any reason: a. This Agreement is valid, binding and enforceable against Lender in accordance with its terms, and Lender has received all necessary approvals to enter into this Agreement and to perform its obligations hereunder. b. Lender is a Pennsylvania chartered bank duly formed, validly existing, and in good standing under the laws of the State of Pennsylvania and is authorized and registered to do business in the State of Pennsylvania and in each state in which the Loans are being offered and in each state in which the nature of its activities makes such authorization, registration, or licensing necessary or required. c. Lender has the full organizational power and authority to execute and deliver this Agreement and perform all of its obligations hereunder. d. The provisions of this Agreement and the performance of each of Lender’s obligations hereunder do not conflict with Lender’s organizational documents or any agreement, contract, lease, or obligation to which Lender is a party or by which Lender is bound. e. Lender has been and will remain in compliance all respects with GLBA, Federal Trade Commission enforcement actions enforcing federal consumer privacy requirements, other applicable federal and state privacy Rules, and this Agreement, as it pertains to Applicant and Borrower Information; f. This Agreement, Lender’s participation in the Originator Program and Lender’s operation of the Loan Program in accordance with this Agreement will not violate any Rules. g. Lender shall implement, and shall take measures to maintain, reasonable and appropriate administrative, technical, and physical security safeguards to (1) ensure the security and confidentiality of Non-Public Personal Information relating to any Applicant or Borrower; (2) protect against anticipated threats or hazards to the security or integrity of non- public personal information; and (3) protect against unauthorized access or use of Non-Public Personal Information that could result in substantial harm or inconvenience to any Applicant or Borrower. h. Neither Lender nor any principal thereof has been or is the subject of any of the following:
SPECIAL LIMITED AGENCY AGREEMENT–PAGE 13 CUSTOMERS BANK–BM TECHNOLOGIES, INC. i. Criminal conviction (other than misdemeanor traffic offenses); ii. IRS lien; iii. Enforcement agreement, memorandum of understanding, cease and desist order, administrative penalty, or similar agreement, each as may concern lending matters; iv. Administrative or enforcement proceeding or investigation commenced by the Securities and Exchange Commission, state securities regulatory authority, Federal Trade Commission, or any other state or federal Regulatory Authority (excluding routine examinations conducted by a Regulatory Authority and excluding communications received in the ordinary course of business from any Regulatory Authority such as communications concerning consumer complaints or communications related to immaterial issues); or v. Restraining order, decree, injunction, or judgment in any proceeding or lawsuit alleging fraud or deceptive practices or illegal activity on the part of Lender or any principal thereof. For purposes of this Section 12.e., the word “principal” of Lender shall include (i) any executive officer of Lender, and (ii) any other person having the power or authority to materially control Lender’s business. 13. Ownership of Borrower Information. Each party shall take all steps necessary and appropriate to maintain the confidentiality of any Applicant and Borrower names, addresses, and telephone numbers and all account and other information, including payment information, regarding Borrowers and Applicants who have been declined, and all records, data, and information pertaining to the foregoing (collectively, “Borrower Information”). Lender shall own all Borrower Information, provided by Borrower as part of the Loan application process or verified by Lender as part of the Loan application process. Originator shall own or co-own all Borrower Information obtained through the Originator Program. The rights of the Lender under this Section 13 shall survive the termination of this Agreement for a period of TWENTY-FIVE (25) months. 14. Term. The term of this Agreement shall be for a period commencing as of the Effective Date and expiring on December 31, 2022; provided, however, that either party may terminate this Agreement prior to the expiration of its term pursuant to the provisions of this Section 14 and Section 15 below. This Agreement shall be renewed automatically for successive ONE (1) year terms unless the party not wishing to renew provides the other party with at least SIXTY (60) days advance written notice of non-renewal. Each party hereto shall have the right to terminate this Agreement immediately upon written notice to the other party hereto, if (a) the terminating party determines in its reasonable discretion that the activities of the parties under this Agreement, the Loan Program or Originator Program are illegal under, prohibited by or not permitted under any of the Rules; (b) any Regulatory Authority having jurisdiction over the Program, Originator or Lender requires the terminating party to terminate this Agreement; (c) the terminating party determines in its reasonable discretion that continued operation of the Loan Program or Originator Program may materially adversely affect the ongoing operations of the terminating party or those of the terminating party’s affiliates; and in the event of a termination of this Agreement pursuant to this clause (c), the terminating party shall provide the other party with
SPECIAL LIMITED AGENCY AGREEMENT–PAGE 14 CUSTOMERS BANK–BM TECHNOLOGIES, INC. a written explanation of the basis for such termination, or (d) the terminating party determines in its reasonable discretion that continued operation of the Loan Program or Originator Program may materially adversely affect the relationship between the terminating party or any of its affiliates and any Regulatory Authority having jurisdiction over any of them. Notwithstanding any termination of this Agreement, each party’s respective obligations and covenants hereunder with respect to outstanding Loans shall remain in effect for so long as such Loans remain outstanding. 15. Termination Upon Default. a. Either party hereto shall have the right to terminate this Agreement upon occurrence of one or more of the following events: i. failure by the other party to observe or perform that party’s obligations to the other hereunder or to comply with any provision of this Agreement, so long as the failure or nonperformance is not due to the actions of the terminating party; and ii. in the event any material representation, warranty, statement or certificate furnished to either party by the other in connection with this Agreement, or any separate material statement or document delivered by either party hereto to the other party, is materially false, misleading, or inaccurate as of the date made or delivered. b. The Agreement may be terminated pursuant to Section 15.a.i. hereof only if the default continues for a period of THIRTY (30) days after the defaulting party receives written notice from the other party specifying the default in the case of a non-monetary default, or TEN (10) days after the default in the case of a failure to pay any amount when due hereunder. c. In addition to any other right to terminate this Agreement, a party may terminate this Agreement if the other party hereto is the subject of any of the following or if any of the following occurs with respect to such other party: insolvency, inability to pay its debts as they become due, the filing of a voluntary bankruptcy petition, the filing of an involuntary bankruptcy petition which is not dismissed within THIRTY (30) days after filing thereof, dissolution or termination of its existence as a going concern, or the appointment of a receiver for any part of its property. d. To preserve the goodwill of each Party with its customers, the Parties shall act in good faith and cooperate in order to ensure a smooth and orderly termination of their relationship and the termination of the Loan origination and marketing program contemplated hereunder. Upon the termination or expiration of this Agreement, all rights and benefits herein granted to Originator (but none of the obligations of Originator hereunder) shall revert to Lender, and Originator shall immediately cease using Lender’s Loan Program. Each party shall immediately cease using the Advertising Material, Program Material and any other properties, logos, marks or materials of or belonging to the other party. For the avoidance of doubt, both Lender and Originator may advertise its respective financial services products to Applicants or Borrowers after TWELVE (12) months after termination of this agreement. 16. Indemnification.
SPECIAL LIMITED AGENCY AGREEMENT–PAGE 15 CUSTOMERS BANK–BM TECHNOLOGIES, INC. a. Originator’s Indemnification Obligations. i. Except to the extent of Damages (as defined in Section 16.d.) expressly excluded under this Agreement, Originator hereby agrees to defend, indemnify and hold harmless, Lender and its affiliates, and their respective directors, officers, employees, shareholders, members, lenders, partners, attorneys and agents (herein, the “Lender Indemnified Parties”), from and against any and all Damages suffered or incurred by the Lender Indemnified Parties (or any of them) relating to, accruing or arising or alleged to have accrued or arisen in whole or in part out of or in consequence of any and all of the following: (i) any actual or alleged injury (physical or otherwise) to any actual or prospective consumer, Applicant or Borrower, to any actual or prospective customer of Originator, or to any employee of Lender Indemnified Parties actually or allegedly caused in whole or in part by Originator or any Originator Indemnified Party (as defined in Section 16.b.i.); (ii) any act or omission (whether one or more) of Originator or any Originator Indemnified Parties, their employees, agents or representatives related to this Agreement, Originator Program or the Loan Program; (iii) any act or omission (whether one or more) of any Third Party Service Provider retained by Originator in connection with this Agreement, Originator Program or the Loan Program; (iv) the inaccuracy of any warranty or representation made by Originator or any Third Party Service Provider retained by Originator in connection with this Agreement, Originator Program or the Loan Program; (v) the breach of any obligation owed by any Third Party Service Provider retained by Originator in connection with this Agreement, Originator Program or the Loan Program; (vi) any breach by Originator (or its employees, agents or representatives) of its obligations under or related to this Agreement, Originator Program or the Loan Program; (vii) any other claim, allegation or investigation asserted by or on behalf of a consumer, a prospective consumer or a Regulatory Authority with respect to the Loans or the activities, practices, and/or procedures of the parties actually or allegedly caused in whole or in part by Originator or any Originator Indemnified Party (as defined in Section 16.b.i.); (viii) any examination or audit of Originator conducted by a Regulatory Authority as provided in Section 20, resulting in a finding or issue that is not the result of Lender’s actions; (ix) any burglary, robbery, fraud or theft at any of Originator’s locations or on any of Originator’s premises; or (x) any marketing or administration of the Loans by Originator or any Third Party Service Provider retained by Originator. ii. The obligations of Originator to defend, indemnify and hold harmless Lender and the Lender Indemnified Parties under this Section 16.a. shall not extend to Damages suffered by any of them directly or indirectly related to, resulting from or arising out of any of the following: (i) burglary, robbery, fraud or theft from or at any premises of the Lender, (ii) the marketing or administration of the Loans by any person other than Originator, its employees or any Third Party Service Provider engaged by it; (iii) Lender’s alleged or actual violation of federal or state securities laws or laws pertaining to the formation, organization and operation of entities; (iv) claims brought by the employees or shareholders of any Lender Indemnified Party; (v) a decline in the value of the ownership interests of Lender, its partners and affiliates; (vi) adverse publicity or customer relations problems encountered or suffered by any Lender Indemnified Party unrelated to the acts of Originator or Originator Indemnified Parties, the Loan Program or Originator Program; (vii) the loss of non-Loan related business, or profits related thereto; (viii) non-monetary sanctions imposed against Lender by any court or Regulatory Authority unless such sanctions were caused by the actions of Originator or any Third Party Service Provider retained by Originator; (ix) lost management time related to attending hearings
SPECIAL LIMITED AGENCY AGREEMENT–PAGE 16 CUSTOMERS BANK–BM TECHNOLOGIES, INC. and meetings with respect to matters which are the subject of indemnification under this Section 16.a.; (x) any Lender Breach (hereinafter defined); or (xi) the negligence, fraud or willful misconduct of Lender. The term “Lender Breach” shall mean the breach by Lender of any of its obligations expressly set forth herein. iii. Originator’s indemnification obligations under this Section 16.a. shall include the payment of all costs of defense, if any, including without limitation, all reasonable and necessary attorney’s fees, court costs, accounting fees, class action costs and expert fees, subject to Originator’s reimbursement rights under Section 16.c. Except as otherwise provided in this Section 16, the obligations of Originator to defend, indemnify and/or hold the Lender Indemnified Parties harmless under this Section 16 shall extend without limitation to the payment of all costs of defense for the actual or alleged omissions, negligence, gross negligence, and intentional acts of Lender, including Lender’s sole or concurrent negligence. It is contemplated that Originator’s defense obligations under this Section 16.a. might be, but shall not necessarily be, broader than its indemnification obligations hereunder. b. Lender’s Indemnification Obligations. i. Except to the extent of Damages expressly excluded under this Agreement or Damages for which Originator otherwise is obligated to defend, indemnify and/or hold harmless the Lender Indemnified Parties as set forth above, Lender hereby agrees to defend, indemnify and hold harmless, Originator and its affiliates, and their respective directors, officers, employees, shareholders, members, lenders, partners, attorneys and agents (herein, the “Originator Indemnified Parties”), from and against any and all Damages suffered or incurred by Originator Indemnified Parties (or any of them) relating to, accruing or arising or alleged to have accrued or arisen in whole or in part out of or in consequence of any and all of the following: (i) any actual or alleged injury (physical or otherwise) to any actual or prospective customer, Applicant or Borrower, to any actual or prospective customer of Originator, or to any employee of Originator Indemnified Parties actually or allegedly caused in whole or in part by Lender or any Lender Indemnified Party (ii) any Lender breach or the inaccuracy of any warranty or representation of Lender set forth in this Agreement; (iii) any act or omission of Lender or any Lender Indemnified Parties, its employees, agents or representatives; (iv) any act or omission (whether one or more) of any Third Party Service Provider retained by Lender; (v) the inaccuracy of any warranty or representation made by Lender or any Third Party Service Provider retained by Lender; (vi) the breach of any obligation owed to Originator by Lender (or its employees, agents or representatives) or by any Third Party Service Provider retained by Lender; (vii) any other claim, allegation or investigation asserted by or on behalf of a Consumer, a prospective Consumer or a Regulatory Authority with respect to the Loans or the activities, practices, and/or procedures of the parties actually or allegedly caused in whole or in part by Lender or any Lender Indemnified Party; (viii) any examination or audit of Lender conducted by a Regulatory Authority as provided in Section 20, resulting in a finding or issue that is not the result of Originator’s actions; and (ix) any burglary, robbery, fraud or theft of Lender’s locations (physical or digital) or any of its affiliates (or any of their respective employees); or (x) any administration of the Loans or Loan Program by Lender or its Third Parties. ii. Nothing herein shall be construed to require Lender to indemnify, defend or hold harmless Originator Indemnified Parties (or any of them) for Damages suffered by
SPECIAL LIMITED AGENCY AGREEMENT–PAGE 17 CUSTOMERS BANK–BM TECHNOLOGIES, INC. any of them directly or indirectly related to, resulting from or arising out of any of the following: (i) any breach by Originator of its representations, warranties, covenants or obligations under this Agreement; (ii) the breach of any obligation of a Third Party Service Provider retained by Originator; (iii) the gross negligence or willful misconduct of Originator; any Originator Indemnified Party or any Third Party Service Provider retained by Originator; (iv) burglary, robbery, fraud or theft at or from any premises of Originator or any Originator Indemnified Party; (v) marketing or administration of the Loans by persons other than Lender or Lender Indemnified Parties; (vi) any claim, investigation or allegation made by any regulatory or governmental authority or agency arising from or relating to the activities of Originator; (vii) any claim that any Originator Indemnified Party allegedly or actually violated any federal or state securities laws or laws related to the formation, organization and operation of entities; (viii) a decline in the value of the ownership interests of any Originator Indemnified Party; (ix) any claims brought by any owner or employee of any Originator Indemnified Party relating to the activities of Originator; (x) adverse publicity or customer relations problems suffered by any Originator Indemnified Party unrelated to the acts of Lender or Lender Indemnified Parties, the Loan Program or Originator Program; (xi) the loss of non-Loan related business, or profits related thereto by any Originator Indemnified Party; (xii) non-monetary sanctions imposed against Originator by any court or Regulatory Authority; or (xiii) lost management time related to attending hearings and meetings with respect to matters which are the subject of indemnification under this Section 16. iii. Lender’s indemnification obligations under this Section 16.b. shall include the payment of all costs of defense, if any, including without limitation, all reasonable and necessary attorney’s fees, court costs, accounting fees, class action costs and expert fees, subject to Lender’s reimbursement rights under Section 16.c. Except as otherwise provided in this Section 16, the obligations of Lender to defend, indemnify and/or hold the Originator Indemnified Parties harmless under this Section 16 shall extend without limitation to the payment of all costs of defense for the actual or alleged omissions, negligence, gross negligence, and intentional acts of Originator, including Originator’s sole or concurrent negligence. It is contemplated that Lender’s defense obligations under this Section 16.b. might be, but shall not necessarily be, broader than its indemnification obligations hereunder c. Obligation to Refund Advanced Damages. In the event that either party hereto reimburses the other party hereto for Damages pursuant to the indemnification provisions of this Section 16, in advance of the final disposition of the underlying claim, and if it is ultimately determined by settlement or pursuant to the dispute resolution provisions hereof that such Damages directly arose out of an occurrence that did not require such indemnification under Section 16.a. or Section 16.b., as applicable, then the reimbursed party agrees to repay to the other party any such Damages for which it received advanced reimbursement to which it was not entitled hereunder. All Damages required to be repaid under this Section 16.c. shall be repaid within FIVE (5) business days following the above described ultimate determination. d. Additional Definitions. The Lender Indemnified Parties and Originator Indemnified Parties sometimes are referred to herein as the “Indemnified Parties” or individually as an “Indemnified Party,” and “Indemnifying Party” may refer to Originator or Lender, in their capacities as indemnitors hereunder. “Damages” means any and all claims, demands, liabilities, losses, penalties, fines, judgments, damages, settlements, out-of-pocket costs, and expenses (including, without limitation, legal fees, court costs, accounting fees, disbursements and class
SPECIAL LIMITED AGENCY AGREEMENT–PAGE 18 CUSTOMERS BANK–BM TECHNOLOGIES, INC. action costs). e. Notice. An Indemnified Party promptly shall notify the Indemnifying Party, in writing, of any suit or threat of suit of which that party becomes aware which may give rise to a right to indemnification under this Agreement (but in any event within THIRTY (30) days of the discovery of such claim), and any Indemnified Party seeking indemnification hereunder promptly shall notify the Indemnifying Party, in writing, of any indemnified loss; provided, however, that the failure of an Indemnified Party alleging a right of indemnity hereunder to provide prompt notice to the Indemnifying Party shall relieve the Indemnifying Party of its obligations hereunder only if and to the extent that the Indemnifying Party can prove that such failure to provide prompt notice actually and materially prejudiced its rights. The Indemnified Party shall provide to the Indemnifying Party, as promptly as practicable after the delivery of such notice, all information and documentation reasonably requested by the Indemnifying Party to support and verify the claim asserted. f. Defense and Counsel. At its sole cost and expense, the Indemnifying Party may employ counsel chosen by the Indemnifying Party, provided that such counsel shall be reasonably acceptable to the Indemnified Party. The Indemnified Party shall have the right, at its own expense, to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate therein; provided, however, that the Indemnifying Party shall be responsible for reasonable attorneys’ fees and legal expenses related to the separate counsel retained by the Indemnified Party if the Indemnified Party reasonably concludes that the ability of the Indemnified Party to prevail in the defense of any claim is or will be materially improved if separate counsel represents the Indemnified Party or if separate counsel is appropriate because of legal ethics considerations. An Indemnifying Party shall not be liable for the settlement of any claim entered into without its prior written consent, which consent shall not be unreasonably withheld or delayed. The Indemnifying Party shall not agree to a settlement of any claim that provides for any relief other than the payment of monetary damages by the Indemnifying Party without the applicable Indemnified Party’s prior written consent, which shall not be unreasonably delayed or withheld; provided that an Indemnified Party’s withholding of or delaying consent shall not be deemed unreasonable if the proposed settlement arrangement allocates liability or financial obligations directly to the Indemnified Party. If the Indemnifying Party chooses to so defend, all parties hereto shall cooperate in the defense thereof and shall furnish such records, information and testimony, and shall attend such conferences, discovery proceedings, hearings, trials and appeals as reasonably may be requested in connection therewith, all at the Indemnifying Party’s sole cost and expense. g. Joint Defense Agreement. The parties agree that, if both parties are named as defendants in the same lawsuit, arbitration or other proceeding arising out of or related to this Agreement, Originator Program and/or the Loan Program, the parties may enter into a joint defense agreement reasonably acceptable to the parties; provided, however, that any such joint defense agreement shall not preclude any party from asserting any counterclaims, cross-actions or third- party claims to which it may be entitled to assert. h. Survival. This Section 16 shall survive and shall continue to be binding on the parties notwithstanding any termination, cancellation or expiration of this Agreement.
SPECIAL LIMITED AGENCY AGREEMENT–PAGE 19 CUSTOMERS BANK–BM TECHNOLOGIES, INC. i. Each party expressly agrees, warrants and represents that it has read the terms of this Section 16, understands same and that the terms of this Section 16 are clear, conspicuous and unequivocal. 17. Expenses. Except as expressly provided to the contrary in this Agreement, each party shall be responsible for all expenses incurred by it in the performance of its obligations under this Agreement, including any expenses incurred by it in performing its respective duties set forth in this Agreement. 18. Scope of Relationship. Originator shall refrain from entering any loan origination arrangement similar to the Program described in this Agreement with any other financial institution or lender for the term of this Agreement without Lender’s express prior written consent. Originator may not undertake any loan program similar to the Program described herein without the Lender’s express prior written consent. 19. Confidential Information. In performing their obligations pursuant to this Agreement, each party may have access to and receive disclosure of certain confidential information about the other party or parties, including, without limitation, the names and addresses of a party’s Borrowers or members, marketing plans and objectives, research and test results, and other information which is confidential and the property of the party disclosing the information (“Confidential Information”). The parties agree that the term Confidential Information shall include this Agreement, Advertising Materials, and the Program Materials, as the same may be amended and modified from time to time. Confidential Information shall not include information in the public domain or which is independently developed by any party hereto. Lender and Originator agree that Confidential Information shall be used by each party solely in the performance of its obligations under this Agreement or in connection with activities related to such performance (including without limitation activities involving the financing of the Loans by Lender). Each party shall receive Confidential Information in confidence and shall not disclose Confidential Information to any third party, except as may be permitted hereunder or under the Program Documents, or as may be necessary to perform its obligations hereunder, or as may be otherwise agreed in writing by the party furnishing the information, or as required by the Rules or any Regulatory Authority. In the event that either party (the “Restricted Party”) is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to disclose any Confidential Information, such party will provide the other party with prompt notice of such request(s) so that the other party may seek an appropriate protective order or other appropriate remedy and/or waive the Restricted Party’s compliance with the provisions of this Agreement. In the event that the other party does not seek such a protective order or other remedy, or such protective order or other remedy is not obtained, or the other party grants a waiver hereunder, the Restricted Party may furnish that portion (and only that portion) of the Confidential Information which the Restricted Party is legally compelled to disclose and will exercise such efforts to obtain reasonable assurance that confidential treatment will be accorded any Confidential Information so furnished as a Restricted Party would reasonably exercise in assuring the confidentiality of any of its own confidential information. Notwithstanding anything herein to the contrary, nothing herein shall prohibit either party hereto from entering into agreements with any other party that include materials that may or may not be substantially similar to the Program Materials. Upon request or upon any expiration or termination of this Agreement, subject to retention requirements, each party shall return to the other party or destroy (as the latter
SPECIAL LIMITED AGENCY AGREEMENT–PAGE 20 CUSTOMERS BANK–BM TECHNOLOGIES, INC. may instruct) all of the latter’s Confidential information in the former’s possession which is in any written or other recorded form, including data stored in any computer medium; provided, however, that a party hereto may retain the Confidential Information of the other party (but subject to the requirements of this Section 19) to the extent that such party needs access to such information to continue to perform any of its obligations hereunder or to broker or service Loans or otherwise perform obligations owed by such party to the other party. 20. Regulatory Examinations. Each party agrees to submit to any examination which may be required by any Regulatory Authority with audit and examination authority over the other party, to the fullest extent that such Regulatory Authority may require and to the fullest extent provided by law. Lender (either directly or by the use of accountants or other agents or representatives) may audit, inspect, and review Originator’s files, records, and books with respect to the Loans and compliance with the Originator Program. Originator (either directly or by the use of accountants or other agents or representatives) may audit, inspect, and review Lender’s files, records, and books with respect to the Loans and compliance with the Loan Program. 21. Relationship of Parties; No Authority to Bind. Lender and Originator agree that (a) Lender and Originator are independent contractors except as provided in this Agreement (b) except that Lender shall be the exclusive owner of all Loans and Loan Documents, (c) no Lender employees shall work in Originator offices (except for Lender auditors who may examine Originator’s practices from time to time for compliance), and (d) other than as may be necessary to generally effectuate Originator’s performance of its duties under this Agreement, Lender shall exercise no authority or control over Originator’s employees or methods of operation. Nothing in this Agreement or in the working relationship established and developed hereunder shall be deemed or is intended to be deemed, nor shall it cause, Lender and Originator to be treated as partners, joint venturers, joint associates for profit. Neither party shall have any authority to bind the other party to any agreement except to the extent expressly permitted herein. Except as expressly set forth in this Agreement to the contrary, no actions or failure to act by one party on the part of the other party hereto shall be construed to imply the existence of any authority not expressly granted herein. Except as expressly provided herein, Originator is not authorized to, and shall not (i) make or amend any contract, incur any debt or liability, or extend any credit or enter into any obligation on behalf of Lender; (ii) modify or amend any document, disclosure, instrument, promissory note, or security agreement evidencing or relating to a Loan (individually, a “Loan Document” and collectively, the “Loan Documents”), or extend the time for making any payment which may become due under any Loan; or (iii) waive any of Lender’s rights or privileges under any Loan, Loan Document or other agreement made by Lender. Originator understands and agrees that Originator’s name shall not appear on any Loan Document as the maker of a Loan and that Originator shall not have any participation in the credit decision to make or provide a Loan, a Loan renewal or a Loan refinance or any participation in any act pertaining to the funding of a Loan, a Loan renewal or a Loan refinance. Originator shall refer to Lender any inquiries concerning the accuracy, interpretation, or legal effect of any Loan Document. Originator shall not negotiate the terms of any Loan Document on behalf of Lender. Lender shall be deemed to have received and reviewed the Loan Documents and supporting materials only after the Loan Documents and materials have been previously received at Lender’s offices or if designated by Lender, by Third Party Service Provider. Originator shall not represent to anyone that Originator has the authority or power to do any of the foregoing and shall make no representations concerning Lender’s transactions except as expressly authorized in writing. Lender shall not have any
SPECIAL LIMITED AGENCY AGREEMENT–PAGE 21 CUSTOMERS BANK–BM TECHNOLOGIES, INC. authority or control over any of the property interests or employees of Originator, nor shall Lender have any authority or control over any of the property interests or employees of those affiliates of Originator that own and operate locations, if any, at which Applicants or other potential Borrowers are offered the opportunity to complete and submit applications for Loans. As used herein, the term “Loan Documents” shall not include any agreements that Originator or any affiliate of Originator may enter into directly with any party that governs the agreement of Originator or an affiliate of Originator to attempt to broker a Loan on behalf of any Borrower or any party who applies for, but is denied, a Loan. In each and every instance, the acts that this Agreement authorizes Originator to perform for or on Lender’s behalf shall solely constitute Originator a special, limited agent of Lender to perform the duties and services set forth herein. In no event may Originator act as Lender’s general agent or represent to others that it may act as Lender’s general agent. In the event that either party reasonably determines that any provision of this Agreement requires an act that applicable Rules disallow in order for Originator and Lender to operate lawfully, or otherwise causes a material risk of violating applicable Rules, then the parties shall promptly and in good faith attempt to agree to a modification so as to reduce or eliminate such risk of not conforming to applicable Rules. 22. Governing Law; Arbitration; Consent to Jurisdiction. This Agreement shall be construed and performed in accordance with the laws of the State of Pennsylvania, without reference to Pennsylvania choice of law or conflicts rules. At the request of either party, any dispute between the parties relating to this Agreement shall be submitted to binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association, provided, however, that a party seeking specific performance hereunder pursuant to Section 29 below may pursue such remedy in court. Unless otherwise agreed to by both parties, the location for any arbitration proceedings concerning this Agreement shall be in Berks County, Pennsylvania. In the event that a party hereto initiates a lawsuit in court concerning an arbitrable claim, controversy or dispute, such party shall pay the other party for the costs, including attorneys’ fees that the other party incurs to obtain an order from the court to stay or dismiss the lawsuit or otherwise compel arbitration. The arbitrator shall be authorized to award such relief as is allowed by law. Except as provided below, each party shall be responsible for its own attorneys’ fees incurred during the course of the arbitration, as well as the costs of any witnesses or other evidence such party produces or causes to be produced. The award of the arbitrator shall include findings of fact and conclusions of law. Except as required by law, such award shall be kept confidential, and shall be final, binding, and conclusive on the parties. Judgment on the award may be entered by any court of competent jurisdiction. The prevailing party in the resolution of any dispute (“Dispute Resolution”) concerning this Agreement, any provision hereof or any actual or alleged breach shall be entitled to its reasonable attorneys’ fees, including investigation and costs of discovery, and other costs connected with such Dispute Resolution, in addition to all other recovery or relief. The prevailing party shall be that party receiving substantially the relief sought or successfully defending substantially the position maintained in the Dispute Resolution, whether or not brought to final award or judgment. The parties agree that in the event of any litigation hereunder, the exclusive venue and place of jurisdiction for such litigation shall be in the state courts or the federal district courts situated in Berks County, Pennsylvania and each party hereto specifically consents and submits to the personal jurisdiction of such courts. 23. Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws effective during the term hereof, such provision shall
SPECIAL LIMITED AGENCY AGREEMENT–PAGE 22 CUSTOMERS BANK–BM TECHNOLOGIES, INC. be fully severable and this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision never comprised a part hereof; and the remaining provisions hereof shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance therefrom. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as part of this Agreement a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable. 24. Force Majeure. A “Force Majeure Event” as used in this Agreement shall mean an unanticipated event that is not reasonably within the control of the affected party or its subcontractors (including, but not limited to, acts of God, acts of regulatory and governmental authorities, pandemics (as declared by the World Health Organization), strikes, war, riot and any other causes of such nature), and which by exercise of reasonable due diligence, such affected party or its subcontractors could not reasonably have been expected to avoid, overcome or obtain, or cause to be obtained, a commercially reasonable substitute therefore, If any party is unable to carry out the whole or any part of its obligations under this Agreement by reason of a Force Majeure Event, then the performance of the obligations under this Agreement of such party as they are affected by such cause shall be excused during the continuance of the inability so caused, except that should such inability not be remedied within THIRTY (30) days after the date of such cause, the Party not so affected may at any time after the expiration of such THIRTY (30) day period, during the continuance of such inability, terminate this Agreement on giving written notice to the other Party. To the extent that the Party not affected by a Force Majeure Event is unable to carry out the whole or any part of its obligations under this Agreement because a prerequisite obligation of the Party so affected has not been performed, the Party not affected by a Force Majeure Event also is excused from such performance during such period. If a party’s performance hereunder is rendered illegal or materially adversely affected by reason of changes in applicable Rules, or if a party is advised in writing by any Regulatory Authority having or asserting jurisdiction over Lender, Originator or the Loans, respectively, that the performance of its obligations under this Agreement is or may be unlawful, then the party unable to perform, or whose performance has been rendered illegal or who has been so advised by a Regulatory Authority, may terminate this Agreement by giving written notice at least ONE HUNDRED EIGHTY (180) days in advance of termination to the other party, unless such changes in the Rules or communication from such Regulatory Authority require earlier termination, in which case termination shall be effective upon such earlier required date. No Party shall be relieved of its obligations hereunder if its failure of performance is due to removable or remediable causes which such party fails to remove or remedy using commercially reasonable efforts within a reasonable time period. Either party rendered unable to fulfill any of its obligations under this Agreement by reason of a Force Majeure Event shall give prompt notice of such fact to the other party, followed by written confirmation of notice, and shall exercise due diligence to remove such inability with all reasonable dispatch. 25. Successors and Third Parties. This Agreement and the rights and obligations hereunder shall bind and inure to the benefit of the parties hereto and their successors and assigns. Except as expressly provided herein with respect to Third Party Service Providers, the obligations, rights and benefits hereunder are specific to the parties hereto and shall not be delegated or assigned without the prior written consent of the other party, which shall not be unreasonably withheld. As a condition to an assignment of any obligations, rights or benefits hereunder, the
SPECIAL LIMITED AGENCY AGREEMENT–PAGE 23 CUSTOMERS BANK–BM TECHNOLOGIES, INC. assignee of such rights and benefits must agree to be bound by the terms of this Agreement pursuant to an assignment document executed by such assignee, in form and substance reasonably satisfactory to both Lender and Originator. Nothing in this Agreement is intended to create or grant any right, privilege, or other benefit to or for any person or entity other than the parties hereto. Notwithstanding anything in this Agreement to the contrary, the parties acknowledge that Lender can freely assign its rights with respect to the Loans and the Loan Documents without Originator’s prior written consent. 26. Notices. All notices, requests, and approvals required or permitted by this Agreement shall be in writing and addressed/directed to the other party at the address/facsimile number below or at such other address of which the notifying party hereafter receives notice in conformity with this Section 26. All such notices, requests, and approvals shall be deemed given upon the earlier of facsimile transmission or actual receipt thereof: To Lender: CUSTOMERS BANK 701 Reading Avenue West Reading, PA 19611 Attention: Michael DeTommaso E-mail: [email protected] with a copy to: CHAPMAN AND CUTLER LLP 1717 Rhode Island Avenue, NW Washington, DC 20036 Attention: Tobias P. Moon E-mail: [email protected] To Originator: BM TECHNOLOGIES, INC. 201 King of Prussia Rd Suite 350 Radnor, PA 19087 Attention: Legal Department Email: with a copy to: BM TECHNOLOGIES, INC. 201 King of Prussia Rd Suite 350 Radnor, PA 19087 Attention: Chief Operating Officer Email: [email protected] 27. Waiver. Neither party hereto shall be deemed to have waived any of its rights, powers or remedies hereunder except in an express writing signed by an authorized agent or
SPECIAL LIMITED AGENCY AGREEMENT–PAGE 24 CUSTOMERS BANK–BM TECHNOLOGIES, INC. representative of the party to be charged with such waiver. 28. Counterparts. This Agreement may be executed and delivered by the parties hereto in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. In proving this Agreement in any judicial proceedings, it shall not be necessary to produce or account for more than one such counterpart signed by the party against whom such enforcement is sought. Delivery of a signature hereto by facsimile transmission or by e-mail transmission of an Adobe portable digital file (PDF) shall be as effective as delivery of a manually executed counterpart hereof, and any such facsimile or PDF signature shall be treated as an original signature hereto. 29. Specific Performance. Certain rights which are subject to this Agreement are unique and are of such a nature as to be inherently difficult or impossible to value monetarily. In the event of a breach of this Agreement by either party hereto, an action at law for damages or other remedies at law would be inadequate to protect the unique rights and interests of the parties. Accordingly, the terms of this Agreement shall be enforceable in a court of equity by a decree of specific performance or injunction. Such remedies shall, however, be cumulative and not be exclusive and shall be in addition to any other remedy which the parties may have. 30. Further Assurances. From time to time, the parties will execute and deliver to the other such additional documents and will provide such additional information as either may reasonably require carrying out the terms of this Agreement. REMAINDER OF PAGE INTENTIONALLY INCOMPLETE NOTICE OF FINAL AGREEMENT THIS AGREEMENT, AND THE DOCUMENTS EXECUTED AND DELIVERED PURSUANT HERETO, CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES, AND MAY BE AMENDED OR MODIFIED ONLY BY A WRITING SIGNED BY DULY AUTHORIZED REPRESENTATIVES OF EACH PARTY AND DATED SUBSEQUENT TO THE DATE HEREOF. THIS AGREEMENT SHALL SUPERSEDE AND MERGE ALL PRIOR COMMUNICATIONS, REPRESENTATIONS, OR AGREEMENTS, EITHER ORAL OR WRITTEN, BETWEEN THE PARTIES HERETO WITH RESPECT TO THE LOAN PROGRAM AND ORIGINATOR PROGRAM, EXCEPT WHERE SURVIVAL OF PRIOR WRITTEN AGREEMENTS IS EXPRESSLY PROVIDED FOR HEREIN. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. REMAINDER OF PAGE LEFT INTENTIONALLY INCOMPLETE
SPECIAL LIMITED AGENCY AGREEMENT–PAGE 25 CUSTOMERS BANK–BM TECHNOLOGIES, INC. IN WITNESS WHEREOF, this Agreement is executed by the authorized officers and representatives and of the parties shall be effective as of the Effective Date. LENDER: I CUSTOMERS BANK By: Name: Title: 1 * A 1 ORIGINATOR: BM TECHNOLIGIES, INC. By: Name: Title: Fryc, Robert Digitally signed by Fryc, Robert Date: 2022.04.22 16:36:26 -04'00'
SPECIAL LIMITED AGENCY AGREEMENT–PAGE 26 CUSTOMERS BANK–BM TECHNOLOGIES, INC. EXHIBIT “A” 1. ORIGINATOR COMPLAINT RESPONSES. A. The final written response to any Originator-Focused Complaint shall be maintained in such a manner that any Loan relating to such Originator-Focused Complaint can be promptly identified. With respect to each Escalated Complaint in which Lender is named, Originator shall forward each proposed response to Lender for review at least THREE (3) business days prior to the deadline for responding to the person or entity that made such Escalated Complaint. Lender shall have THREE (3) business days from receipt of Originator’s proposed response to mutually agree upon each such proposed response with Originator. If Lender and Originator cannot mutually agree upon a response to such Escalated Complaint within THREE (3) business days, then Originator may send the response to such Escalated Complaint in such form, and at such time as it deems necessary or appropriate. Without limiting any other obligations of Originator to provide responses to Originator-Focused Complaints as provided herein, upon Lender’s request, Originator shall provide Lender with electronic copies of all final written responses to Originator-Focused Complaints. With respect to Escalated Complaints received directly by Lender, upon request, Originator shall timely (a) assemble all required documentation; and (b) conduct a thorough investigation to assist Lender in crafting a response to every issue identified in such Escalated Complaint.
SPECIAL LIMITED AGENCY AGREEMENT–PAGE 27 CUSTOMERS BANK–BM TECHNOLOGIES, INC. EXHIBIT “B” 1. SECURITY. A. Security Breach. Both parties acknowledge the confidential and proprietary nature of the Confidential Information and shall immediately notify the non-breached party in writing of any breach or potential breach of security, or suspected or threatened breach, relating to any of Confidential Information of which it becomes aware (a “Security Incident”). Notification provided to non-breached party shall include, if known, and to breached party’s knowledge as of the time of notice: (i) the general circumstances and extent of any unauthorized access to Confidential Information or intrusion into the computer systems or facilities on or in which Confidential Information is maintained; (ii) which, if any, categories of Confidential Information were involved; (iii) breached party’s plans for corrective actions, to respond to the Security Incident; (iv) the identities of all individuals (including any Borrowers) whose Confidential Information was affected; and (v) steps taken to secure the data and preserve information for any necessary investigation. The notification required to be delivered to non-breached party shall be delivered promptly after breached party learns of any such actual, suspected or threatened Security Incident. The breached party shall not unreasonably delay its notification to non-breached party for any reason, including investigation purposes. The breached party shall, at its own expense, cooperate fully with non-breached party in investigating and responding to each successful or attempted Security Incident. B. Additional Procedures in the Event of a Security Incident. Breached party shall also, at its own expense, cooperate with non- breached party in responding to the Security Incident, notifying Borrowers or other affected individuals as required by law, and seeking injunctive or other equitable relief against any such person or persons who have violated or attempted to violate the security of Confidential Information. In the event that Applicable Law requires that Applicants and Borrowers or other affected persons be notified of a Security Incident, and Applicable Law does not establish whether such notice must come from Lender or Originator, Lender shall have the discretion of determining whether such notice shall come from Lender or Originator. In any event, the content, timing, and other details of such notice shall be subject to both party’s approval within a reasonable time period. Breached party shall be responsible for reimbursing non-breached party for the costs of such notifications and fielding feedback and questions from those notified, and any other associated costs that non-breached party may incur in connection with responding to or managing a Security Incident (for example, without limitation, costs of credit monitoring services, call center services and forensics services, fines imposed by regulatory agencies resulting from the Security Incident and costs associated with investigating and responding to investigations and inquiries related to a Security Incident from federal and state agencies and others, including legal fees). C. Additional Procedures for the identification of possible instances of identity theft. Originator acknowledges that Lender has certain regulatory obligations to identify patterns, practices, and specific forms of activity that indicate the possible existence of identity theft (defined as fraud committed using the identifying information of another person). Originator, to the extent that it holds or otherwise has access to Customer Information, agrees to establish, maintain and update reasonably effective policies and procedures to detect, prevent, and mitigate
SPECIAL LIMITED AGENCY AGREEMENT–PAGE 28 CUSTOMERS BANK–BM TECHNOLOGIES, INC. the risk of identity theft, and to promptly, and in no event later than twenty-four (24) hours after Originator learns of it, notify and report to Lender, any instances where Originator detects potential identity theft in the course of its duties pursuant to this Agreement. Originator further agrees to immediately report to Lender any confirmed instances of identity theft. In furtherance thereof, Originator agrees to be guided by the examples of identity theft “Red Flags” (defined as a pattern, practice, or specific activity that indicates the possible existence of identity theft) set forth in Supplement A to Appendix J to 12 CFR Part 41. Upon request by Lender, Originator agrees to confirm in writing and, when specified, demonstrate to Lender its compliance with the requirements of this Section 1. D. Information Security. Both parties will maintain and enforce safety, electronic, and physical security procedures with respect to its access, use, and possession of Confidential Information that are compliant with National Institute of Standards and Technology (NIST) standards which provide appropriate technical and organizational safeguards against accidental or unlawful destruction, loss, alteration or unauthorized disclosure or access of such information. Originator will periodically test its systems for potential areas where security could be breached. Without in any way limiting the provisions of Section 1(A) or 1(B) of this Exhibit , Originator (a) will deliver to Lender a root cause assessment and future incident mitigation plan with regard to any breach of security or unauthorized access affecting Lender’s Confidential Information, (b) will provide Lender all written details regarding Originator’s internal investigation regarding any security breach, (c) upon Lender’s request, provide a second more in-depth investigation and results of findings, (d) agrees not to notify any regulatory authority nor any Borrower or consumer, on behalf of Lender unless Lender specifically requests in writing that Originator do so, and (e) shall cooperate with Lender to work together to formulate a plan to rectify all security breaches. 2. INTERNAL CONTROLS. Both parties shall maintain internal control policies and procedures to ensure its compliance with this Agreement and all Applicable Laws.
Exhibit 31.1
CERTIFICATION
I, Luvleen Sidhu, certify that:
(1)I have reviewed this Quarterly Report on Form 10-Q of BM Technologies, Inc.,
(2)Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
(3)Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
(4)The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a)Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d)Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
(5)The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a)All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b)Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
/s/ Luvleen Sidhu | ||||||||
Luvleen Sidhu | ||||||||
Chief Executive Officer | ||||||||
(Principal Executive Officer) | ||||||||
Date: August 16, 2022 | ||||||||
Exhibit 31.2
CERTIFICATION
I, Robert Ramsey, certify that:
(1)I have reviewed this Quarterly Report on Form 10-Q of BM Technologies, Inc.,
(2)Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
(3)Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
(4)The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a)Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d)Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
(5)The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a)All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b)Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
/s/ Robert Ramsey | ||||||||
Robert Ramsey | ||||||||
Chief Financial Officer | ||||||||
(Principal Financial Officer) | ||||||||
Date: August 16, 2022 | ||||||||
Exhibit 32
CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report of BM Technologies, Inc. (the “Company”) on Form 10-Q for the quarter ended March 31, 2022, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), Luvleen Sidhu, Chief Executive Officer of the Company, and Robert Ramsey, Chief Financial Officer of the Company, each hereby certifies, pursuant to 18 U.S.C. § 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1)The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2)The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
/s/ Luvleen Sidhu | |||||||||||||||||
Name: Luvleen Sidhu | |||||||||||||||||
Title: Chief Executive Officer | |||||||||||||||||
(Principal Executive Officer) | |||||||||||||||||
Date: August 16, 2022 | |||||||||||||||||
/s/ Robert Ramsey | |||||||||||||||||
Name: Robert Ramsey | |||||||||||||||||
Title: Chief Financial Officer | |||||||||||||||||
(Principal Financial Officer) | |||||||||||||||||
Date: August 16, 2022 | |||||||||||||||||
A signed original of this written statement has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request. This certification “accompanies” the Form 10-Q to which it relates, is not deemed filed with the SEC and is not to be incorporated by reference into any filing of the Company under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended (whether made before or after the date of the Form 10-Q), irrespective of any general incorporation language contained in such filing.
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