ENDI Corp 10-K for FY2022
ENDI Corp. (ENDI)
About this 10-K
ENDI Corp filed this 10-K on March 30, 2023, covering the fiscal year ended December 31, 2022 (FY2022).
Headline figures
Fiscal year ended December 31, 2022, as reported in this filing, compared with the same period a year earlier where the filing states it.
- Revenue
- $7.64M
- up 78.2% from $4.29M a year earlier
- Net income
- $2.38M
- up 57.8% from net income of $1.51M a year earlier
- Diluted EPS
- $3,588,098.00
- up 49.5% from $2,400,000.00 a year earlier
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
(Mark One)
For the fiscal year ended
or
For the transition period from _______ to _______
Commission File Number
ENDI CORP.
(Exact name of registrant as specified in its charter)
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(Registrant’s telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. ☐ Yes ☒
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. ☐ Yes ☒
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. ☒
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). ☒
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☐ | Accelerated filer | ☐ |
| | ☒ | Smaller reporting company | |
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| Emerging growth company | |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report.
If securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the registrant included in the filing reflect the correction of an error to previously issued financial statements. ☐
Indicate by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive-based compensation received by any of the registrant’s executive officers during the relevant recovery period pursuant to §240.10D-1(b). ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
The aggregate market value of the voting and non-voting common equity held by non-affiliates as of June 30, 2022, the last business day of the registrant’s most recently completed second fiscal quarter, was $
The number of shares outstanding of the registrant’s Class A Common Stock, $0.0001 par value, as of March 22, 2023 is 5,468,133 and the number of shares outstanding of the registrant’s Class B Common Stock, $0.0001 par value, as of March 22, 2023 is
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the registrant’s definitive proxy statement (the “2023 Proxy Statement”) relating to its 2023 annual meeting of stockholders (the “2023 Annual Meeting”) are incorporated by reference into Part III of this Annual Report on Form 10-K where indicated. The 2023 Proxy Statement will be filed with the U.S. Securities and Exchange Commission within 120 days after the end of the fiscal year to which this report relates.
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| PART I | ||||
| Item 1. | Business | 3 | ||
| Item 1A. | Risk Factors | 10 | ||
| Item 1B. | Unresolved Staff Comments | 17 | ||
| Item 2. | Properties | 17 | ||
| Item 3. | Legal Proceedings | 17 | ||
| Item 4. | Mine Safety Disclosures | 17 | ||
| PART II | ||||
| Item 5. | Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities | 18 | ||
| Item 6. | [Reserved] | 18 | ||
| Item 7. | Management’s Discussion and Analysis of Financial Condition and Results of Operations | 19 | ||
| Item 7A. | Quantitative and Qualitative Disclosures About Market Risk | 28 | ||
| Item 8. | Financial Statements and Supplementary Data | 28 | ||
| Item 9. | Changes in and Disagreements with Accountants on Accounting and Financial Disclosure | 28 | ||
| Item 9A. | Controls and Procedures | 28 | ||
| Item 9B. | Other Information | 29 | ||
| Item 9C. | Disclosure Regarding Foreign Jurisdictions that Prevent Inspections | 29 | ||
| PART III | ||||
| Item 10. | Directors, Executive Officers, and Corporate Governance | 30 | ||
| Item 11. | Executive Compensation | 30 | ||
| Item 12. | Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters | 30 | ||
| Item 13. | Certain Relationships and Related Transactions, and Director Independence | 30 | ||
| Item 14. | Principal Accountant Fees and Services | 30 | ||
| PART IV | ||||
| Item 15. | Exhibits, Financial Statement Schedules | 31 | ||
| Item 16. | Form 10-K Summary | 31 | ||
| Signatures |
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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS AND INDUSTRY DATA
This Annual Report on Form 10-K contains statements that constitute “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the Private Securities Litigation Reform Act of 1995. Words such as “believe,” “estimate,” “expect,” “intend,” “anticipate,” “plan,” “project,” and similar expressions and variations thereof identify such forward-looking statements which speak only as of the dates on which they were made. The forward-looking statements are based on a series of expectations, assumptions, estimates and projections about our company, are not guarantees of future results or performance and involve substantial risks and uncertainty. We may not actually achieve the plans, intentions or expectations disclosed in these forward-looking statements. Actual results or events could differ materially from the plans, intentions and expectations disclosed in these forward-looking statements. Our business and our forward-looking statements involve substantial known and unknown risks and uncertainties, including, but not limited to, changes in economic and market conditions, lack of acceptance of our products, maintenance of strategic alliances, and other factors discussed in our filings with the Securities and Exchange Commission (the “SEC”).
All of our forward-looking statements are as of the date of this Annual Report on Form 10-K only. In each case, actual results may differ materially from such forward-looking information. We can give no assurance that such expectations or forward-looking statements will prove to be correct. An occurrence of, or any material adverse change in, one or more of the risk factors or risks and uncertainties referred to in this Annual Report on Form 10-K or included in our other public disclosures or our other periodic reports or other documents or filings filed with or furnished to the SEC could materially and adversely affect our business, prospects, financial condition and results of operations. Except as required by law, we do not undertake or plan to update or revise any such forward-looking statements to reflect actual results, changes in plans, assumptions, estimates or projections or other circumstances affecting such forward-looking statements occurring after the date of this Annual Report on Form 10-K, even if such results, changes or circumstances make it clear that any forward-looking information will not be realized. Any public statements or disclosures by us following this Annual Report on Form 10-K that modify or impact any of the forward-looking statements contained in this Annual Report on Form 10-K will be deemed to modify or supersede such statements in this Annual Report on Form 10-K.
This Annual Report on Form 10-K may include market data and certain industry data and forecasts, which we may obtain from internal company surveys, market research, consultant surveys, publicly available information, reports of governmental agencies and industry publications, articles and surveys. Industry surveys, publications, consultant surveys and forecasts generally state that the information contained therein has been obtained from sources believed to be reliable, but the accuracy and completeness of such information is not guaranteed. While we believe that such studies and publications are reliable, we have not independently verified market and industry data from third-party sources.
INTRODUCTORY NOTE
ENDI Corp. (“ENDI”) was incorporated in Delaware on December 23, 2021. On August 11, 2022 (the “Closing Date”), the Company (as defined herein) completed its mergers (the “Mergers”) pursuant to that certain Agreement and Plan of Merger dated December 29, 2021 (as amended, the “Merger Agreement”) by and among ENDI, Enterprise Diversified, Inc. (“Enterprise Diversified”), Zelda Merger Sub 1, Inc., Zelda Merger Sub 2, LLC, CrossingBridge Advisors, LLC (“CrossingBridge” or “CBA”) and Cohanzick Management, LLC (“Cohanzick”). As a result of the Mergers, Enterprise Diversified and CrossingBridge merged with wholly owned subsidiaries of ENDI and now operate as wholly owned subsidiaries of the Company. The Company is the successor registrant to Enterprise Diversified’s SEC registration effective as of the Closing Date of the Mergers.
The reporting period covered by this Annual Report on Form 10-K for the year ended December 31, 2022 reflects the standalone business of CrossingBridge prior to the Closing Date of the Mergers and reflects the consolidated business of the Company, including CrossingBridge and Enterprise Diversified for the post-Merger period from August 12, 2022 through December 31, 2022.
On the Closing Date, Enterprise Diversified and CrossingBridge became wholly owned subsidiaries of ENDI as a result of the Mergers (collectively with the other transactions described in the Merger Agreement, the “Business Combination”). The Business Combination is accounted for as a reverse merger business combination using the acquisition method of accounting in accordance with Accounting Standards Codification 805, Business Combinations, with CrossingBridge representing the accounting acquiror. Following Financial Accounting Standards Board guidance related to the accounting for reverse acquisitions, CrossingBridge’s historical carve-out financial statements replaced the Company’s (as the successor registrant to Enterprise Diversified) historical financial statements. Accordingly, the capital structure, and per share amounts presented in CrossingBridge’s historical carve-out financial statements for the periods prior to the Closing Date have been recast to reflect the capital activity in accordance with the Merger Agreement. CrossingBridge’s historical carve-out financial statements as of and for the year ended December 31, 2021, reflecting the recasting, are included as part of the consolidated financial statements presented in this Annual Report on Form 10-K.
The CrossingBridge carve-out for activity prior to the Closing Date, including the period from January 1, 2022 to August 11, 2022 and the year ended December 31, 2021, is part of the Cohanzick financial statements. Prior to the Closing Date of the Mergers, CrossingBridge was a wholly owned subsidiary of Cohanzick. The historical carve-out financial statements of CrossingBridge reflect the assets, liabilities, revenue, and expenses directly attributable to CrossingBridge, as well as allocations deemed reasonable by management, to present the financial position, statements of operations, statements of changes in stockholders’ equity, and statements of cash flows of CrossingBridge on a stand-alone basis and do not necessarily reflect the financial position, statements of operations, statements of changes in stockholders’ equity, and statements of cash flows of CrossingBridge in the future or what they would have been had CrossingBridge been a separate, stand-alone entity during the periods presented that include activity prior to the Closing Date.
Unless the context otherwise requires, and when used in this Annual Report on Form 10-K, the “Company,” “ENDI,” “ENDI Corp.,” “we,” “our,” or “us” refers to ENDI Corp. individually, or as the context requires, collectively with its subsidiaries as of and after the Closing Date, and to CrossingBridge for the periods up to the Closing Date, due to the determination that CrossingBridge represents the accounting acquiror.
PART 1
Overview
During the year ended December 31, 2022, ENDI Corp. operated through the following four reportable segments:
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CrossingBridge Operations - this segment includes revenue and expenses derived from the Company’s investment advisory and sub-advisory services offered through various SEC registered mutual funds and an exchange-traded fund (“ETF”) through CrossingBridge Advisors, LLC; |
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Willow Oak Operations - this segment includes revenue and expenses derived from the Company’s various joint ventures, service offerings, and initiatives undertaken in the asset management industry through Willow Oak Asset Management, LLC and its subsidiaries; |
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Internet Operations - this segment includes revenue and expenses related to the Company’s sale of internet access, e-mail and hosting, storage, and other ancillary services through Sitestar.net, Inc.; and |
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Other Operations - this segment includes any revenue and expenses from the Company’s nonrecurring or one-time strategic funding or similar activity that is not considered to be one of the Company’s primary lines of business, and any revenue or expenses derived from the Company’s corporate office operations, as well as expenses related to public company reporting, the oversight of subsidiaries, and other items that affect the overall Company. |
The management of the Company also continually reviews various business opportunities for the Company, including those in other lines of business. The Company’s primary focus is on generating cash flow so that the Company has the flexibility to pursue opportunities as they present themselves. The Company intends to only invest cash in a segment if the Company believes that the return on the invested capital is appropriate for the risk associated with the investment. This consideration is measured against all investment opportunities available to the Company and is not limited to the foregoing segments nor the Company’s historical operations.
Mergers
On the Closing Date, the Company completed the Mergers pursuant to the Merger Agreement. As a result of the Mergers, Enterprise Diversified and CrossingBridge merged with wholly owned subsidiaries of ENDI and now operate as wholly owned subsidiaries of the Company. See “Introductory Note” for additional information.
Voting Agreement
On the Closing Date, the Company entered into a voting agreement (the “Voting Agreement”) with Cohanzick and Steven Kiel and Arquitos Capital Offshore Master, Ltd., in their capacity as the voting party (the “Voting Party”), pursuant to which the Voting Party shall vote all of its securities of the Company entitled to vote in the election of the Company’s directors that such Voting Party or its affiliates own (collectively, the “Voting Shares”) to elect or maintain in office the directors designated by Cohanzick (the “Cohanzick Member Designees”). The Voting Agreement will terminate automatically on the earlier of the date that (i) the holders of the Company’s Class B Common Stock or Cohanzick’s right to designate the Cohanzick Member Designees is terminated or expires for any reason, (ii) Steven Kiel is no longer a member of the Company’s board of directors and (iii) the Voting Party and its affiliates cease to hold any Voting Shares. The Voting Agreement will also terminate automatically with respect to any Voting Shares no longer held by the Voting Party or its affiliates.
Stockholder Agreement
On the Closing Date, the Company entered into a stockholder agreement (the “Stockholder Agreement”) with Cohanzick pursuant to which, from and after the date that the holders of the Company’s Class B Common Stock, par value $0.0001 per share (“Class B Common Stock”), are no longer entitled to elect at least one director to the Company’s board of directors pursuant to the terms of the Company’s Amended and Restated Certificate of Incorporation, the following provisions apply: for so long as David Sherman, Cohanzick and any of their successors or assigns (collectively, the “Principal Stockholder”) and their Affiliates (as defined in the Stockholder Agreement) beneficially own at least 5% of the outstanding shares of the Company’s Class A Common Stock and Class B Common Stock (collectively, the “Common Stock”), the Principal Stockholder has the right to designate a number of directors of the Company’s board of directors (rounded up to the nearest whole number) equal to the percentage of the Company’s Common Stock beneficially owned by the Principal Stockholder and its Affiliates at the time of such designation; provided, however, that for purposes of this designation right, the Principal Stockholder and its Affiliates shall have the right to designate not more than a majority of the members of the Company’s board of directors then in office; and, provided further, that so long as the Principal Stockholder and its Affiliates beneficially owns at least 5% of the Company’s total outstanding shares of Common Stock, it shall have the right to designate at least one director to the Company’s board of directors
Pursuant to the Stockholder Agreement, upon the exercise of any Class W-1 Warrant to purchase shares of the Company’s Class A Common Stock (“Class W-1 Warrant” or “W-1 Warrant”) by any Class W-1 Warrant holder, the Company shall redeem the number of shares of the Company’s Class B Common Stock (on a pro rata basis from the holders of Class B Common Stock) that are equal to the number of shares of the Company’s Class A Common Stock issued to the Class W-1 Warrant holder upon exercise of the Class W-1 Warrant (a “Mandatory Redemption”) at the Redemption Price (as defined herein). On the fifth anniversary of the Closing (as defined in the Stockholder Agreement), any shares of the Company’s Class B Common Stock held by the Principal Stockholder that remain outstanding shall be redeemed by the Company at the Redemption Price, which is $0.0001 per share of Class B Common Stock, subject to adjustment (the “Redemption Price”). The Stockholder Agreement will terminate automatically on the date that the Principal Stockholder holds less than 5% of the outstanding shares of the Company’s Common Stock.
Registration Rights Agreement
On the Closing Date, the Company entered into a registration rights agreement (as amended, the “RRA”) with Cohanzick and certain holders of the Company’s securities (the “Holders”) pursuant to which the Company shall prepare and file or cause to be prepared and filed with the Securities and Exchange Commission, on or before May 1, 2023, a registration statement under the Securities Act for an offering to be made on a continuous basis, pursuant to Rule 415 of the Securities Act or any successor thereto, registering certain securities as set forth in the RRA.
Services Agreement
On the Closing Date, CrossingBridge entered into a Services Agreement (the “Services Agreement”) with Cohanzick pursuant to which CrossingBridge will make available to Cohanzick certain of its employees to provide investment advisory, portfolio management and other services to Cohanzick and, through Cohanzick, to Cohanzick’s clients. Any such individuals will be subject to the oversight and control of Cohanzick, and any services so provided to Cohanzick or a client of Cohanzick will be provided by such CrossingBridge employees in the capacity of a supervised person of Cohanzick. Cohanzick additionally may use the systems of CrossingBridge or its affiliates for its daily operations; provided that appropriate policies, procedures and other safeguards are established to assure that (a) the books and records of each of CrossingBridge and Cohanzick are created and maintained in a manner so as to be clearly separate and distinct from those of the other person and the clients of such person, and (b) confidential client and/or other material non-public information relating to the investment advisory activities of CrossingBridge or Cohanzick, as applicable, or other proprietary information regarding either such person or its clients, is safeguarded and maintained for the benefit of such person. As consideration for its services, Cohanzick will pay CrossingBridge a quarterly fee equal to 0.05% per annum of the monthly weighted average assets under management during such quarter with respect to all clients for which the Cohanzick has full investment discretion. Cohanzick and CrossingBridge will also split the payment of certain costs of other systems which use is shared between the Cohanzick and CrossingBridge. The term of the agreement is one year from the Closing Date.
Products and Services
CrossingBridge Operations
CrossingBridge Advisors, LLC (“CBA”) was formed as a limited liability company on December 23, 2016, under the laws of the State of Delaware. CBA derives its revenue and net income from investment advisory services. CBA is a registered investment adviser (“RIA”) under the Investment Advisers Act of 1940, as amended (the “Investment Advisers Act”), and it provides investment advisory services to investment companies (including mutual funds and ETFs) registered under the Investment Company Act of 1940 Act, as amended (the “Investment Company Act”), both as an adviser and as a sub-adviser.
As of December 31, 2022, CBA serves as an advisor to its four proprietary products and sub-advisor to two additional products. As of December 31, 2022, the assets under management (“AUM”) for CBA, including advised and sub-advised funds, were in excess of $1.2 billion. The investment strategies for CBA include: ultra-short duration, low duration high yield, strategic credit, responsible credit, and special purpose acquisition companies (“SPACs”). These strategies primarily employ high yield and investment grade corporate debt, as well as credit opportunities in event-driven securities, post reorganization investments, and stressed and distressed debt. Details of CBA’s products are included below:
| Product Name |
Ticker Symbol |
Inception Date |
Advisory Role |
AUM as of December 31, 2022 (in dollars) |
| CrossingBridge Low Duration High Yield Fund |
CBLDX |
January 31, 2018 |
Advisor |
447,592,790 |
| CrossingBridge Ultra-Short Duration Fund |
CBUDX |
June 30, 2021 |
Advisor |
81,278,496 |
| CrossingBridge Responsible Credit Fund |
CBRDX |
June 30, 2021 |
Advisor |
23,085,296 |
| CrossingBridge Pre-Merger SPAC ETF |
SPC |
September 20, 2021 |
Advisor |
61,827,601 |
| Destinations Low Duration Fixed Income Fund |
DLDFX |
March 20, 2017 |
Sub-advisor |
319,247,378 |
| Destinations Global Fixed Income Opportunities Fund |
DGFFX |
March 20, 2017 |
Sub-advisor |
345,211,395 |
On November 18, 2022, CBA entered into a Purchase and Assignment and Assumption Agreement with RiverPark Advisors, LLC and Cohanzick pursuant to which RiverPark Advisors, LLC intends to sell to CBA certain assets and CBA intends to assume certain liabilities, including certain rights and responsibilities under the RiverPark Advisory Agreement (as defined herein) and the RiverPark Expense Limitation Agreement (as defined herein) relating to the provision of investment advisory services for the mutual fund known as RiverPark Strategic Income Fund, subject to certain terms and conditions set forth in such agreement. See “Business – RiverPark Advisors, LLC” for additional information. As of December 31, 2022, AUM of RiverPark Strategic Income Fund were approximately $239 million.
CBA’s investment strategies with associated advised and sub-advised mutual funds and the ETF are as follows:
| Ultra-Short Duration Strategy | |||
| ● | Primarily invest in investment grade fixed income securities with an ultra-short portfolio duration target of typically one year or less. | ||
| ○ | CrossingBridge Ultra-Short Duration Fund is advised. | ||
| Low Duration Strategy | |||
| Low Duration High Yield | |||
| ● | Primarily invest in below investment grade fixed income securities with a short portfolio duration target of three years or less. | ||
| ○ | CrossingBridge Low Duration High Yield Fund is advised. | ||
| ○ | Destinations Low Duration Fixed Income Fund is sub-advised. | ||
| Pre-Merger SPACs | |||
| ● | Primarily invest in purchasing common stock and units of SPACs that are trading at or below their pro rata share of the collateral trust account with the intent of disposing the shares prior to a business combination. | ||
| ● | Aims to capture the fixed income nature of pre-merger SPACs along with the potential equity upside that they present. | ||
| ○ | CrossingBridge Pre-Merger SPAC ETF is advised. | ||
| ○ | Other CrossingBridge investment strategies may employ pre-merger SPACs as part of their portfolios. | ||
| Strategic Income Strategy | |||
| ● | A flexible investment and duration mandate without restrictions as to issuer credit quality, capitalization, or security maturity. | ||
| ○ | Destinations Global Fixed Income Opportunities Fund is sub-advised. | ||
| Responsible Investing Strategy | |||
| ● | Primarily invest in corporate debt of issuers that portray a mindfulness toward environment, social, and governance (“ESG”) practices. The strategy has a flexible investment and duration mandate without restrictions as to issuer credit quality, capitalization, or security maturity. Further, the strategy may have concentrated holdings. | ||
| ● | CBA uses its “responsible investing criteria” (i.e., specific exclusionary and inclusionary criteria based on ESG standards) when making investment decisions for this strategy. To the extent an issuer’s business generates 10% or more of its revenues from certain businesses considered by CBA to be incompatible with its ESG criteria, then such business will be deemed “primarily engaged” in such business and excluded from the portfolio. CBA’s ESG criteria excludes issuers primarily engaged in weapons, tobacco, alcohol, gambling, pornography, and other related categories. After applying the initial exclusionary screen, CBA applies an inclusionary screen based on environmental objectives (such as reduction of carbon emissions), social objectives (such as treating all constituencies in a proper and ethical manner) and governance objectives (such as diversification of backgrounds, skills, and philosophy among an issuers board or executive officers). CBA utilizes a proprietary matrix to measure an issuer’s ESG engagement. CBA’s proprietary matrix sets a minimum threshold level that must be achieved for an issuer’s securities or other instruments to satisfy the fund’s responsible investing criteria. Ratings are based on positive and negative attributes, both of which can have an impact on the final score given to an issuer. CBA sources information relating to its responsible investing criteria from publicly-available resources such as financial filings, presentations, news articles, and management discussions. CBA monitors an issuer’s conformity to its responsible investing criteria and each holding is formally reviewed by CBA at least annually. | ||
| ○ | CrossingBridge Responsible Credit Fund is advised. | ||
Management believes that the greatest negative impact on portfolio returns is the failure of a large position to perform according to the original thesis, which results in loss of capital. We attempt to mitigate this risk through investment analysis, portfolio construction, and hedging of risks with respect to individual positions and/or the overall portfolio as we see fit. In most cases, our investment analysis begins with a fundamental understanding of an issuer’s business model and management objectives followed by an analysis of its capital structure. Depending on the nature of the investment, the analysis may continue with a more in-depth study of legal aspects, pending transactions, and processes that may impact the issuer. A good investment in a bad business is not a recipe for enduring success.
In the first half of 2022, given the strong demand for conservative, low duration strategies in the rising-interest rate environment, there was high demand for CBA products, and the funds collectively experienced net inflows of approximately $140 million of AUM. In the second half of 2022, with the federal reserve focused on raising interest rates to quell inflation, the CBA funds experienced disintermediation with collective net outflows of approximately $229 million of AUM. Consequently, comparing AUM at year end 2021 to AUM at year end 2022, CBA products collectively reported a net decrease of approximately $91 million of AUM.
All four of CBA’s proprietary advised products generated positive returns for investors in 2022.
CBA has seen interest in its funds continuing to grow in the RIA, bank/trust company, and family office segments of the market. CBA expects demand for the CrossingBridge Low Duration High Yield Fund to continue to increase as CBA has developed a strong track record of five years as of January 31, 2023. For the two newer mutual funds (CrossingBridge Ultra-Short Duration Fund and the CrossingBridge Responsible Credit Fund), although they do not have established track records as individual funds, CBA believes that the market environment paired with its long-standing reputation in the fixed income space will be helpful in continuing to raise assets for those funds. As for the CrossingBridge Pre-Merger SPAC ETF which was launched on September 20, 2021, we believe the fund remains a viable ultra-short, fixed income alternative; however, we believe the pre-merger SPAC market is set to face significant liquidations, which may reduce the size of the opportunity in the absence of an influx of new SPAC offerings.
During the year ended December 31, 2022, CBA’s contributions to the Destinations Low Duration Fixed Income Fund and the Destinations Global Fixed Income Opportunities Fund were accretive and CBA continues to serve as a core allocator within these funds.
CBA’s primary objective is to fulfill its fiduciary duty to its clients while its secondary objective is to grow its intrinsic value to achieve an adequate long-term return for our Company.
Willow Oak Operations
Beginning on August 12, 2022, the start of the post-Merger period (“Post-Merger”), the Company operates its Willow Oak operations business through its wholly owned subsidiaries, Willow Oak Asset Management, LLC (“Willow Oak”), Willow Oak Capital Management, LLC, Willow Oak Asset Management Affiliate Management Services, LLC (“Willow Oak AMS”) and Willow Oak Asset Management Fund Management Services, LLC (“Willow Oak FMS”).
Willow Oak is an asset management platform focused on partnering with independent asset managers throughout various phases of their firm’s lifecycle to provide comprehensive operational services that support the growth of their businesses. Through minority ownership stakes and bespoke service based contracts, Willow Oak offers affiliated managers strategic consulting, operational support, and growth opportunities. Services to date include consulting, fund launching, investor relations and marketing, accounting and bookkeeping, compliance program monitoring, fund management, and business development support. The Company intends to actively expand its Willow Oak platform with additional offerings that enhance the value of the Willow Oak platform to independent managers across the investing community.
Willow Oak earns revenue through three main product channels: (i) revenue fee shares with investment firms; (ii) bespoke service-based contracts with investment firms; and (iii) consulting service agreements with private partnerships. The suite of services that Willow Oak offers investment firms includes business development and operations management, compliance monitoring, investor relations and marketing, accounting and bookkeeping, fund launching, and ongoing fund management. Consulting services offered directly to private partnerships include administrative coordination, compliance program monitoring and tax and audit liaison services.
Through its revenue fee share arrangements, Willow Oak and its affiliates earn commensurate shares of management and performance fees earned by three independently managed investment firms: Bonhoeffer Capital Management, LLC (“Bonhoeffer Capital”), Focused Compounding Capital Management, LLC (“Focused Compounding”) and SVN Capital, LLC (“SVN Capital”). Bonhoeffer Capital is the general partner of Bonhoeffer Fund, LP, a private investment partnership launched by Willow Oak in 2017. Focused Compounding is the general partner of Focused Compounding Fund, LP, a private investment firm co-launched by Willow Oak in 2020. SVN Capital is the general partner of SVN Fund, LP, a private investment partnership launched in 2020. In addition to managing private investment firms, Focused Compounding and SVN Capital also manage capital for clients through separately managed accounts, which also generates revenue fee shares for Willow Oak and its affiliates.
Willow Oak, through a bespoke service-based contract with Arquitos Investment Manager, LP, Arquitos Capital Management, LLC, Arquitos Epicus, LP, and Arquitos Capital Offshore Master, Ltd. (collectively “Arquitos”), which are managed by our director, Steven Kiel, earned revenue for services provided to Arquitos including: strategic planning, investor relations, marketing, operations, compliance program monitoring and legal coordination, accounting and bookkeeping, annual audit and tax coordination, and liaison to third-party service providers. In exchange for these services, Steven Kiel, through Arquitos, was contracted to perform ongoing consulting services for the benefit of Willow Oak in the following areas: strategic development, marketing, networking, and fundraising. In addition to the foregoing exchange of services, Willow Oak also earned an annual performance revenue fee share through its contract with Arquitos. As of December 31, 2022, this service contract and revenue fee share have expired.
Through its consulting service agreements, Willow Oak and its affiliates earn a monthly fee from its private partnership clients, Bonhoeffer Fund, LP, Focused Compounding Fund, LP and SVN Fund, LP, for administrative, compliance and tax and audit liaison services provided to each partnership.
Internet Operations
Beginning Post-Merger, the Company operates its internet operations segment through Sitestar.net, its wholly owned subsidiary.
Sitestar.net is an internet service provider (“ISP”) that offers consumer and business-grade internet access, e-mail hosting and storage, wholesale managed modem services, web hosting, third-party software as a reseller, and various ancillary services. Sitestar.net provides services to customers in the United States and Canada. This segment markets and sells narrow-band (dial-up and integrated services digital network (“ISDN”)) and broadband services (Digital Subscriber Line (“DSL”), fiber-optic, and wireless), as well as web hosting and related services to consumers and businesses. Customers may also subscribe to web hosting plans to include email access and storage. Customer contracts through the internet operations segment can be structured as monthly or annual contracts. Under annual contracts, the subscriber pays a one-time annual fee and under monthly contracts, the subscriber is billed monthly. While Sitestar.net provides customer service support for account management and technical troubleshooting, Sitestar.net does not own or maintain the physical infrastructure (fiber-optic lines, cable lines, phone lines, or e-mail servers) through which its services are provided.
We may in the future be subject to U.S. and international laws and regulations applicable to access or commerce on the internet covering issues such as user privacy, freedom of expression, pricing, characteristics and quality of products and services, taxation, advertising, intellectual property rights, and information security. As such, our business may be affected by the repeal, modification, or adoption of various laws and regulations that cover a wide range of issues at the international, federal, state, and local levels.
In addition, the Company owns a portfolio of domain names. Management endeavors to identify the market value for domain names owned by the Company in order to assess potential income opportunities. Management evaluates these domain names for third-party sales potential, as well as for other marketing opportunities that could generate new revenue from current customers who utilize the domain names.
The current focus of our internet operations segment is to generate cash flow, work to make our costs variable, and reinvest in our operations when an acceptable return is available.
Other Operations
Beginning Post-Merger, the Company operates its other operations segment which includes nonrecurring or one-time strategic funding or similar activity and other corporate operations that are not considered to be one of the Company’s primary lines of business. Below are the primary activities comprising other operations. Additional investment activity that is not specifically mentioned below is included in the accompanying consolidated financial statements.
eBuild Ventures, LLC
Pursuant to the Merger Agreement, the Company was transferred interests of eBuild Ventures, LLC (“eBuild”) on the Closing Date. eBuild acquires, or provides growth equity to, consumer product businesses in the digital or brick and mortar marketplaces. Through eBuild, the Company also operates SPACinformer.com (“SPACinformer”), an electronic newsletter service focusing primarily on the aggregation and distribution of publicly-available SPAC data, news, and analytics. On September 8, 2022, through eBuild, the Company made a capital contribution of $450,000, representing approximately a 10% ownership stake, in a start-up phase private company that operates in the consumer beverage product space.
Financing Arrangement - Triad Guaranty, Inc.
In August 2017, Enterprise Diversified entered into an agreement with several independent third parties to provide debtor-in-possession financing to an unaffiliated third party, Triad Guaranty, Inc., through Triad DIP Investors, LLC. Triad Guaranty, Inc. exited bankruptcy in April 2018, and Enterprise Diversified was subsequently issued an amended and restated promissory note. Enterprise Diversified also holds shares of Triad Guaranty, Inc. common stock, which were received as consideration for certain amounts of accrued interest earned pursuant to the amended and restated promissory note. As of December 31, 2022, we attribute no value to the shares of Triad Guaranty, Inc. common stock held due to the stocks’ general lack of marketability.
Corporate Operations
Corporate operations include any revenue or expenses derived from the Company’s corporate office operations, as well as expenses related to public company reporting, the oversight of subsidiaries, and other items that affect the overall Company. Also included under corporate operations is investment activity earned through the reinvestment of corporate cash. Corporate investments are typically short-term, highly liquid investments, including vehicles such as mutual funds, ETFs, commercial paper, and corporate and municipal bonds.
During the year ended December 31, 2022, through Enterprise Diversified under the other operations segment, the Company invested a total of $4,500,000 among three CrossingBridge mutual funds: the CrossingBridge Responsible Credit Fund, the CrossingBridge Ultra Short Duration Fund, and the CrossingBridge Low Duration High Yield Fund. The Company also routinely invests in the CrossingBridge Pre-Merger SPAC ETF as well, which as of December 31, 2022, totaled $300,025.
Competition
CrossingBridge Operations
The asset management industry is highly competitive, has relatively low barriers to entry, and includes a wide array of investment products and services. CBA competes with, among others, investment firms that have longer and more established track records, higher AUM, greater personnel resources, and a broader variety of investment products. We believe that direct competitors of CBA include Osterweis Capital Management, Shenkman Capital Management, Lord Abbett & Company, and Brandywine Asset Management. CBA strives to distinguish itself from its competitors through its investment performance, fees charged to clients and the quality, diversity, and innovation of the products it offers. CBA’s success relies on its ability to generate attractive and consistent investment returns, attract and retain key personnel, and develop innovative and diverse investment products.
Willow Oak Operations
Willow Oak faces two primary forms of competitors - specialized outsourced service providers and investment firms with internally built management teams.
We believe that competitors that offer a variety of outsourced operational roles and are specialized in their areas of service include Junonia Partners, which offers outsourced Chief Financial Officer and Controller solutions; Repool, which offers fund and RIA launch and on-going back office support; and Freedom Advisors, which offers operational outsourcing to RIAs. Investment firms are also able to compete with Willow Oak’s services by hiring a dedicated management and administrative staff to internally manage the operational needs of the firm. Internally built teams can provide high degrees of customization and capacity for investment firms.
Notwithstanding the foregoing, management is not aware of any direct competitors who offer the same level of hands-on and comprehensive operational support to independent asset managers throughout all phases of their business lifecycle as competing third-party service providers are more specialized in their services, focusing on a single area such as fund administration, compliance, marketing consulting, or outsourced Chief Financial Officer solutions as a standalone service. We believe that Willow Oak’s success relies on our ability to partner with a variety of investment firms, attract and retain key personnel, and provide a comprehensive and competitive service offering for investment firms.
Internet Operations
The internet service provider space is highly competitive and growth is often achieved through mergers and acquisitions or large-scale infrastructure expansion. Our internet operation segment’s primary competitors include regional and national cable and telecommunications companies that have substantially greater market presence, brand-name recognition, and financial resources compared to Sitestar.net. Secondary competitors include local and regional ISPs that serve rural localities that larger providers have not yet expanded to.
The residential broadband internet access market is dominated by cable and telecommunications companies. These companies offer internet connectivity through the use of cable modems, DSL programs, and fiber-optic lines. These competitors have extensive scaling ability, pricing power, and significantly more resources than Sitestar.net, as they typically own or maintain at least a portion of the physical infrastructure that provides the internet access services. In addition, such competitors often offer incentives for customers to purchase internet access by offering discounts for bundled service offerings (i.e., phone, television, and internet) that are not readily available through Sitestar.net. As we are a reseller of our broadband services, including DSL and fiber services, our profit margin is heavily influenced by these competitive forces. A large portion of Sitestar.net’s customer base for its internet access services are located in rural areas with relatively fewer options for ISPs, as the infrastructure required for larger providers to service these areas is either outdated, has not yet been established, or is not economical to establish.
The e-mail and web hosting markets operate in a similar environment. A handful of large national or global technology companies offer inexpensive, if not free, suites of hosting services.
We believe Sitestar.net’s success relies on our ability to provide reliable and competitive services, attract and retain key personnel, and maintain our customer base.
RiverPark Advisors, LLC
On November 18, 2022, CBA, whose President is David Sherman, our Chief Executive Officer and director, entered into a Purchase and Assignment and Assumption Agreement, as amended on December 28, 2022 (as amended, the “RiverPark Agreement”), with RiverPark Advisors, LLC (“RiverPark”) and Cohanzick, a RIA established by David Sherman, pursuant to which RiverPark intends to sell to CBA certain assets and CBA intends to assume certain liabilities, including certain rights and responsibilities under the RiverPark Advisory Agreement (as defined herein) and the RiverPark Expense Limitation Agreement (as defined herein) relating to the provision of investment advisory services for the mutual fund known as RiverPark Strategic Income Fund (the “RiverPark Fund”), subject to certain terms and conditions set forth in the RiverPark Agreement.
Pursuant to the RiverPark Agreement, there is no consideration to be paid upon Closing (as defined in the RiverPark Agreement); however, if the Closing occurs, CBA shall pay an amount approximately equal to 50% of the RiverPark Fund’s management fees (as set forth in the RiverPark Fund’s prospectus) to RiverPark (the RiverPark Fund’s current adviser) and Cohanzick (the RiverPark Fund’s current sub-adviser) for a period of three years after Closing, and pay an amount approximately equal to 20% of the RiverPark Fund’s management fees in the fourth and fifth years after Closing as set forth in the RiverPark Agreement. Notwithstanding the foregoing, certain of the amounts payable based on the RiverPark Fund’s management fees pursuant to the RiverPark Agreement during the first three years after the Closing shall be capped such that they are less than $1.3 million in the aggregate.
Pursuant to the RiverPark Agreement, CBA will endeavor to procure the approval (the “RiverPark Stockholder Approval”) by the board of trustees of the RiverPark Fund and by a vote of a majority of the outstanding voting securities of RiverPark Fund for CBA to assume (i) the advisory services role under that certain Amended and Restated Investment Advisory Agreement (the “RiverPark Advisory Agreement”) dated February 14, 2012 by and between RiverPark and RiverPark Funds Trust (“RiverPark Trust”) pursuant to which RiverPark provides investment advisory services to the RiverPark Fund or under an equivalent agreement with a successor to the Fund and (ii) the Operating Expense Limitation Agreement (“RiverPark Expense Limitation Agreement”) dated as of July 1, 2019 by and between RiverPark and RiverPark Trust or pursuant to an equivalent agreement with a successor to the RiverPark Fund. Furthermore, pursuant to the terms of the RiverPark Agreement, if a Closing occurs, the parties to the RiverPark Advisory Agreement and that certain Sub-Advisory Agreement dated as of August 1, 2012 by and among RiverPark, Cohanzick and the RiverPark Trust, on behalf of the RiverPark Fund, have agreed to terminate such agreements upon such Closing, and to make CBA a party to the RiverPark Expense Limitation Agreement or an equivalent agreement with a successor to the RiverPark Fund. Pursuant to the RiverPark Agreement, if the Closing does not occur prior to May 15, 2023, as such date may be extended by CBA for up to an additional 30 days (the “RiverPark Termination Date”), the RiverPark Agreement shall terminate, unless otherwise mutually agreed upon by the parties.
The RiverPark Agreement contains customary representations, warranties and agreements by the parties thereto and customary conditions to closing, including receipt of the RiverPark Stockholder Approval.
In connection with the RiverPark Agreement, Cohanzick and CBA intend to enter into an agreement which shall prohibit Cohanzick from competing with a substantially similar strategic income strategy as an adviser or sub- adviser to a fund registered under the Investment Company Act or any Undertakings for the Collective Investment in Transferable Securities products.
Intellectual Property
Our success depends in part on our ability to obtain and maintain intellectual property rights. To protect our intellectual property and proprietary rights we rely on a combination of trademarks as well as contractual restrictions on disclosure of confidential information with employees, consultants and other third parties. However, we cannot guarantee that such agreements and trademarks will provide us with sufficient protection or that we have entered into agreements restricting the disclosure of confidential information the with each party that has or may have had access to our confidential information.
As of March 22, 2023, CrossingBridge owns trademark registrations with the U.S. Patent & Trademark Office (“USPTO”) of CROSSINGBRIDGE and the CrossingBridge logo. In addition, the Company has filed applications to register ENDI and the ENDI logo with the USPTO, which applications are currently awaiting examination.
In addition, we reserve and register domain names when and where we deem appropriate. As of March 22, 2023, we owned 242 registered domain names.
Our success will depend on our ability to obtain, maintain, enforce and protect our intellectual property and proprietary rights and operate our business without infringing, misappropriating or otherwise violating any intellectual property or proprietary rights of third parties. However, there can be no assurance that our efforts will be successful. Even if our efforts are successful, we may incur significant costs in defending our intellectual property and proprietary rights or combating allegations by third parties. From time to time, we may be subject to legal proceedings or claims, or threatened legal proceedings or claims, including allegations of infringement, misappropriation or other violations of third-party intellectual property or proprietary rights.
Government Regulations
Asset management is a highly regulated business subject to numerous legal and regulatory requirements. These regulations are intended to protect customers whose assets are under management and, as such, may limit our ability to develop, expand or carry out our asset management business in the intended manner. In particular, CBA is required to act in the best interest of its clients. In addition, regulators have substantial discretion in determining what is in the best interest of a client and have increased their scrutiny of potential conflicts as well as the disclosure of such conflicts to an asset manager’s clients. Appropriately dealing with conflicts of interest is complex and if we fail, or appear to fail, to deal appropriately with any of these conflicts of interest, we may face reputational damage, litigation, regulatory proceedings, or penalties, fines or sanctions, any of which may have a material and negative impact on our asset management business.
It is very difficult to predict the future impact of the legislative and regulatory requirements affecting our business and our clients’ businesses. CBA is registered as an “investment adviser” with the SEC under the Investment Advisers Act and is regulated thereunder. The Investment Advisers Act and the Investment Company Act, together with related regulations and interpretations of the SEC, impose numerous obligations and restrictions on investment advisers and registered investment companies (including mutual funds and ETFs), including requirements relating to the safekeeping of client funds and securities, limitations on advertising, disclosure and reporting obligations, prohibitions on fraudulent activities, restrictions on certain transactions between an adviser and its clients, and between a registered investment company and its advisers and affiliates, and other detailed operating requirements, as well as general fiduciary obligations. All of the foregoing laws and regulations, as well as any other laws and regulations we are or may become subject to, are complex, and we are required to expend significant resources to monitor and maintain our compliance with such laws and regulations. Any failure on our part to comply with these and other applicable laws and regulations could result in regulatory fines, suspensions of personnel or other sanctions, including revocation of CBA’s registration as an investment adviser which would, among other things, have a material adverse effect on our results of operations, financial condition or business.
In addition to the foregoing, our business is subject to various federal, state, local and international laws and regulations. For example, the Federal Communications Commission frequently considers imposing new broadband-related regulations, and from time to time, imposing new regulatory obligations on ISPs. States and localities also consider new broadband-related regulations from time to time, including those regarding government-owned broadband networks, net neutrality and broadband affordability. New broadband regulations, if adopted, may have adverse effects on our business. In addition to the foregoing, a variety of state, national, foreign and international laws and regulations apply to the collection, use, retention, protection, security, disclosure, transfer and other processing of personal and other data. Many of these laws are complex and change frequently and may conflict with the laws in other jurisdictions. Furthermore, we may in the future be subject to U.S. and international laws and regulations relating to freedom of expression, pricing, characteristics and quality of products and services, taxation and advertisements. As such, our business may be affected by the repeal, modification, or adoption of various laws and regulations that cover a wide range of issues at the international, federal, state, and local levels. Despite our best efforts to comply with these requirements, any noncompliance could result in, among other things, us incurring substantial penalties and sustaining reputational damage.
Employees
As of March 22, 2023, we employed 17 full-time individuals (11 through the CrossingBridge segment, two through the Willow Oak segment, two through the internet segment, and two through the other operations segments) and no part-time employees. We also utilize outside contractors as necessary to assist with consulting, technical support, and customer service. Our employees are not unionized, and we consider relations with employees to be good.
Available Information
The Company’s website address is www.endicorp.com. The contents of, or information accessible through, the Company’s website are not part of this Annual Report on Form 10-K, and the Company’s website address is included in this document as an inactive textual reference only. The Company makes its filings with the SEC, including its Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and all amendments to those reports, available free of charge on its website as soon as reasonably practicable after it files such reports with, or furnish such reports to, the SEC. The public may read and copy the materials the Company files with the SEC at the SEC’s Public Reference Room at 100 F Street, NE, Washington, DC 20549. The public may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. Additionally, the SEC maintains an internet site that contains reports, proxy and information statements and other information. The address of the SEC’s website is www.sec.gov. The information contained in the SEC’s website is not intended to be a part of this filing.
Operational Risks Associated with the Business Combination
We may experience difficulties, unexpected costs and delays in integrating the businesses of CBA and Enterprise Diversified and may not realize synergies, efficiencies or cost savings from the Business Combination.
CBA and Enterprise Diversified operated independently prior to the consummation of the Business Combination. Our success depends in large part on our ability to integrate the two companies’ businesses, business models and cultures. In particular, asset management businesses such as Enterprise Diversified’s and CBA’s depend, to a large degree, on the efforts and performance of individual employees whose efforts and performance may be affected by any difficulties in the integration of the businesses. In the process of integrating CBA and Enterprise Diversified, CBA and Enterprise Diversified may experience difficulties, unanticipated costs and delays. The challenges involved in the integration may include:
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the necessity of coordinating geographically disparate organizations and addressing possible differences in corporate and regional cultures and management philosophies; |
| ● | managing our Company at geographically separate locations; |
| ● | retaining personnel from different companies and integrating them into a new business culture while maintaining their focus on providing consistent, high-quality client service; |
| ● | integrating information technology systems and resources; |
| ● | integrating accounting systems and adjusting internal controls to cover operations; and |
| ● | meeting the expectations of clients with respect to the integration. |
The integration of certain operations is taking time and may continue to require the dedication of significant management resources, which may temporarily distract management’s attention from the ongoing businesses of our Company.
It is possible that the integration process could result in the loss of key employees, diversion of each company’s management’s attention, the disruption or interruption of, or the loss of momentum in, each company’s ongoing business or inconsistencies in standards, controls, procedures and policies, any of which could adversely affect our ability to maintain relationships with clients and employees or the ability to achieve benefits related to the Business Combination, or could reduce our earnings or otherwise adversely affect our business and financial results. In addition, the ongoing integration may strain our financial and managerial controls and reporting systems and procedures. This may result in the diversion of management and financial resources from our core business objectives.
Even if CBA and Enterprise Diversified are able to integrate their businesses and operations successfully, there can be no assurance that this integration will result in any synergies, efficiencies or cost savings or that any of these benefits will be achieved within a specific time frame. Any of these factors could adversely affect our business and results of operations.
In certain circumstances, Cohanzick may pursue certain business opportunities with unrelated third parties that may compete with our business.
Pursuant to our Amended and Restated Certificate of Incorporation (“Certificate of Incorporation”), Cohanzick will not be prohibited from pursuing business opportunities with unrelated third parties that may compete with our business, for which Cohanzick may receive compensation. Although, CrossingBridge and Cohanzick have entered into a Services Agreement pursuant to which Cohanzick agrees that during the term of the Services Agreement and, if terminated by Cohanzick, for a period of six months after termination, Cohanzick shall not begin to serve as the investment adviser or sub-adviser to any open end registered U.S. mutual fund or U.S. ETF governed under the Investment Company Act that pursues an investment strategy that is substantially similar to any investment strategy provided by CrossingBridge or its affiliates to any of their clients, without the written consent of CrossingBridge, this restriction shall not apply to any existing clients of Cohanzick as of the date of execution of the Services Agreement or for any period after such restriction terminates.
We may be deemed an investment company in the future, which could impose on us burdensome compliance requirements and restrict our activities.
Under the Investment Company Act, and absent an applicable exemption, a company will generally be deemed an investment company under section 3(a)(1)(C) of the Investment Company Act if the value of its investment securities is more than 40% of its total assets (exclusive of government securities and cash items) on an unconsolidated basis. While we do not believe that we are deemed to be an investment company as a result of the consummation of the Business Combination, if we are deemed to be an investment company it could result in us becoming subject to the registration and other requirements of the Investment Company Act, unless we qualify for an applicable exemption, which would impose significant compliance and other costs and expenses.
The rules and interpretations of the SEC and the courts relating to the definition of “investment company,” “investment securities,” and potential applicable exemptions are complex. We intend to continue our business to ensure that it does not fall within the Investment Company Act’s definition of “investment company” under applicable SEC and court interpretations. However, we can provide no assurance that the SEC or a court would not take the position that we would be required to register under the Investment Company Act and comply with the Investment Company Act’s registration and reporting requirements, capital structure requirements, affiliate transaction restrictions, conflict of interest rules, requirements for disinterested directors and other substantive provisions. If we were to become an “investment company” and be subject to the restrictions of the Investment Company Act, those restrictions would likely require changes in the way we conduct our business and add significant administrative burdens to our operations. To ensure that we do not fall within the Investment Company Act, we may need to take various actions which we may otherwise not pursue.
Risks Related to Our Business
Changes in the value levels of the assets may cause CBA’s AUM, revenue and earnings to decline. If CBA were to lose a significant amount of its AUM, revenue would decrease.
CBA’s asset management business is primarily comprised of fees based on a percentage of the value of AUM and, in some cases, performance fees which are normally expressed as a percentage of returns to the client. Numerous factors, including price movements in the assets in the markets in which we manage assets, could cause:
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the value of AUM, or the returns that we realize on AUM, to decrease; |
| ● | the withdrawal of funds from any products offered by us in favor of products offered by competitors; or |
| ● | a decrease in the amount of capital available to invest. |
The occurrence of any of these events may cause CBA’s AUM, revenue and earnings, if any, to decline and may negatively impact the success of our asset management business, results of operations and financial condition.
CBA is the adviser to four registered investment companies. The combined AUM for these advised funds was approximately $614 million and $514 million as of December 31, 2022 and 2021, respectively. CBA is also the sub-adviser to two Investment Company Act registered mutual funds with AUM totaling approximately $664 million and $855 million as of December 31, 2022 and 2021, respectively. The gross revenue from the advised funds totaled approximately $4.3 million and $1.6 million for the years ended December 31, 2022 and 2021, respectively, and gross revenue from the sub-advised funds totaled approximately $2.7 million for the years ended December 31, 2022 and 2021, respectively. If CBA were to lose a significant amount of its assets under management, CBA’s revenue would also decrease which would negatively impact our results of operations and financial condition.
Increased competition may cause CBA’s AUM, revenue and earnings to decline.
The asset management industry is highly competitive and has relatively low barriers to entry. CBA competes based on a number of factors including: investment performance, the level of fees charged, the quality and diversity of services and products provided, name recognition and reputation, and the ability to develop new investment strategies and products to meet the changing needs of investors. In addition, the introduction of new technologies, as well as regulatory changes, may significantly alter the competitive landscape for investment managers. This could lead to fee compression or require us to spend more to modify or adapt our product offerings to attract and retain customers and remain competitive with products and services offered by new competitors in the industry. Increased competition on the basis of any of these factors, including competition leading to fee reductions, may cause CBA’s AUM, revenue and earnings to decline and materially and negatively impact the success of our asset management business and affect our overall business, results of operations and financial condition.
The success of the asset management business depends in part on its key personnel and loss of key personnel could adversely affect business.
The success of CBA and Enterprise Diversified’s asset management business depends on its ability to attract and retain qualified portfolio managers and other key personnel. Competition in recruiting and retaining these personnel may make it difficult for CBA or Enterprise Diversified to continue its growth and success. The loss of their services or the inability in the future to attract and retain portfolio managers and other key personnel could hinder the implementation of their strategy. In addition, the loss of the services of David Sherman, CBA’s founder and Chief Executive Officer, and our Chief Executive Officer and director, may materially adversely affect our business.
The success of the launch of new funds depends on their growth, and the lack of growth may impact CBA’s results of operations.
During 2021, CBA launched three new funds, the CrossingBridge Ultra-Short Duration Fund, the CrossingBridge Responsible Credit Fund and the CrossingBridge Pre-Merger SPAC ETF, each of which has limited operating history. As a result, prospective investors have a limited track record on which to base their investment decisions. There is also a risk that one or more of these new funds will not grow or maintain an economically viable size, in which case they could ultimately liquidate without stockholder approval, which could negatively impact our results of operations and financial condition.
We may be exposed to business risks as a result of our internet operations.
Our Internet operations are subject to risks, including rapid technological change and the implementation of new systems and platforms; problems associated with the operation, security and availability of third-party infrastructure and our internet access, hosting, and storage systems; computer malware; electronic break-ins and similar disruptions. The failure of our systems to perform as expected could result in disruptions and costs to our operations and could adversely affect our business, financial condition, results of operations, and/or cash flows.
Cybersecurity incidents and other issues related to our information systems, technology and data may materially and adversely affect us.
Cybersecurity incidents and cyberattacks have been occurring globally at a more frequent and severe level and will likely continue to increase in frequency in the future. The information and technology systems used by us and our service providers, and other third parties, are vulnerable to damage or interruption from, among other things: hacking, ransomware, malware and other computer viruses; denial of service attacks; network failures; computer and telecommunication failures; phishing attacks; infiltration by unauthorized persons; security breaches; usage errors by their respective professionals; power outages; terrorism; and catastrophic events such as fires, tornadoes, floods, hurricanes and earthquakes.
We may become subject to intellectual property disputes, which may be costly and may subject us to significant liability and increased costs of doing business.
We may become subject to actual and threatened legal proceedings, claims and counterclaims, including allegations relating to infringement of the intellectual property and proprietary rights of third parties. Our success depends, in part, on our ability to operate without infringing, misappropriating or otherwise violating the intellectual property or proprietary rights of third parties. However, we may not be aware or we may disagree that our products or services are infringing, misappropriating or otherwise violating third-party intellectual property rights and such third parties may bring claims alleging such infringement, misappropriation or violation. Lawsuits are often time-consuming and expensive to resolve and they may divert management’s time and attention. We cannot predict the outcome of lawsuits and cannot ensure that the results of any such actions will not have an adverse impact on our business, financial condition or results of operations.
We may be materially adversely affected by health epidemics such as COVID-19.
The outbreak of COVID-19 evolved into a global pandemic as COVID-19 spread to many regions of the world. The extent to which COVID-19 impacts our business and operating results may continue to depend on future developments that are uncertain and cannot be accurately predicted, including new information that may emerge concerning COVID-19, including variants, and the actions to contain COVID-19 or treat its impact, among others. For example, as a result of COVID-19, much of the world instituted stay-at-home orders, restrictions on travel, bans on public gatherings, the closing of non-essential businesses or limiting their hours of operation and other restrictions on businesses and their operations, which adversely impacted global commercial activity and contributed to significant volatility and a downturn in global financial markets.
The spread of COVID-19, which caused a broad impact globally may have a material economic effect on our business. While the potential economic impact brought by the pandemic may be difficult to assess or predict, it has already caused, and may result in further, disruption of global financial markets, which may reduce our ability to access capital either at all or on favorable terms. In addition, a recession, depression or other sustained adverse market event resulting from COVID-19 could materially and adversely affect our business and the value of our common stock. The ultimate impact of the COVID-19 pandemic, or any other health epidemic, is highly uncertain and subject to change. We do not yet know the full extent of potential delays or impacts on our business or the global economy as a whole. However, these effects could have a material impact on our operations.
Risks Related to the Proposed Acquisition of RiverPark Strategic Income Fund
The announcement of the proposed RiverPark Strategic Income Fund acquisition could disrupt our relationships with our customers, business partners and others, as well as our operating results and business generally.
Whether or not the RiverPark Fund acquisition and related transactions are ultimately consummated, as a result of uncertainty related to the proposed transactions, risks related to the impact of the announcement of the acquisition on our business may include the following:
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we may pay significant costs, fees and expenses for professional services and transaction costs in connection with the proposed acquisition whether or not it is consummated; and |
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investors in the RiverPark Fund may seek to terminate their relationship with the RiverPark Fund either before or after the transaction. |
In addition, David Sherman, our Chief Executive Officer and director, is the President of CBA and the founder of Cohanzick, both of which are parties to the RiverPark Agreement, and as such, he may have interests that are in addition to the interests of our stockholders.
If any of the aforementioned risks were to materialize, they could lead to significant costs which may have a material adverse effect on our results of operations.
If completed, the RiverPark Fund acquisition may not be successful or achieve its anticipated benefits.
If the RiverPark Fund acquisition is completed, we may not be able to successfully realize anticipated growth opportunities and synergies. In addition, upon the completion of the acquisition, CBA will assume certain liabilities of and take on other obligations of RiverPark as set forth in the RiverPark Agreement. We may not successfully or cost-effectively integrate the RiverPark Fund’s business and operations with our business and operations. Even if we are able to integrate the combined businesses and operations successfully, this integration may not result in the realization of the full benefits of the synergies and other opportunities that we currently expect from the acquisition within the anticipated time frame, or at all. The RiverPark Fund may not increase its AUM over time as quickly as currently expected and the RiverPark Expense Limitation Agreement may cause CBA to bear greater costs than currently expected.
Risks Related to Government Regulations
The financial services industry is subject to government regulation in the United States, and our failure to comply with these regulations or regulatory action against us could adversely affect our results of operations, financial condition or business.
The financial services industry is among the most extensively regulated industries in the United States. We are subject to numerous state and federal laws and regulations of general application. It is very difficult to predict the future impact of the legislative and regulatory requirements affecting our business and our clients’ businesses. CBA is registered as an “investment adviser” with the SEC under the Investment Advisers Act and is regulated thereunder. The Investment Advisers Act and the Investment Company Act, together with related regulations and interpretations of the SEC, impose numerous obligations and restrictions on investment advisers and registered investment companies (including mutual funds and ETFs), including requirements relating to the safekeeping of client funds and securities, limitations on advertising, disclosure and reporting obligations, prohibitions on fraudulent activities, restrictions on certain transactions between an adviser and its clients, and between a registered investment company and its advisers and affiliates, and other detailed operating requirements, as well as general fiduciary obligations. All of the foregoing laws and regulations, as well as any other laws and regulations we are or may become subject to, are complex and we are required to expend significant resources to monitor and maintain our compliance with such laws and regulations. Any failure on our part to comply with these and other applicable laws and regulations could result in regulatory fines, suspensions of personnel or other sanctions, including revocation of CBA’s registration as an investment adviser which would, among other things, have a material adverse effect on our results of operations, financial condition or business.
The Investment Advisers Act effectively requires client consent for any assignment of an investment advisory contract. Under the Investment Advisers Act and rules and guidance promulgated thereunder, an assignment includes a change of control of a registered investment adviser. With respect to clients that are registered investment companies, generally client consent requires consent of the board of directors or equivalent governing body of each registered investment company and the consent of the stockholders of the fund. We believe that the Mergers and related transactions did not constitute a change of control of CBA under the Investment Advisers Act and therefore are not an assignment of CBA’s investment advisory contracts. Therefore, we have not sought the consent of CBA’s clients. If the Mergers and related transactions are deemed to be an assignment under the Investment Advisers Act, we would likely need to seek the consent of CBA’s clients, which may require a lengthy and costly stockholder voting process. CBA may also lose AUM, be subject to regulatory fines or be subject to other material adverse effects on our results of operations, financial condition or business.
The asset management business is highly regulated.
Asset management is a highly regulated business subject to numerous legal and regulatory requirements. These regulations are intended to protect customers whose assets are under management and, as such, may limit our ability to develop, expand or carry out our asset management business in the intended manner. In particular, we are required to act in the best interest of our clients. In addition, regulators have substantial discretion in determining what is in the best interest of a client and have increased their scrutiny of potential conflicts as well as the disclosure of such conflicts to an asset manager’s clients. Appropriately dealing with conflicts of interest is complex and if we fail, or appear to fail, to deal appropriately with any of these conflicts of interest, we may face reputational damage, litigation, regulatory proceedings, or penalties, fines or sanctions, any of which may have a material and negative impact on our asset management business. In addition, to the extent that we are required to obtain client or investor consent in connection with any potential conflict, any failure or delay in obtaining such consent may have a material and negative impact on our ability to take advantage of certain business opportunities.
Further, Cohanzick actively manages mutual funds, private funds and separate accounts pursuant to various investment management and other similar agreements. CBA is not a party to these agreements. Counterparties to such agreements could claim that CBA should also be deemed a party and if successful, CBA could have contingent liabilities resulting from the actions or omissions of Cohanzick.
Risks Related to Our Common Stock
The price of our Class A Common Stock may fluctuate substantially which may affect the value of an investment in our Class A Common Stock.
You should consider an investment in our Class A Common Stock to be risky, and you should invest in our Class A Common Stock only if you can withstand a significant loss and wide fluctuations in the market value of your investment. Some factors that may cause the market price of our Class A Common Stock to fluctuate, in addition to the other risks mentioned in this “Risk Factors” section and elsewhere in this Annual Report on Form 10-K as well as the risk factors disclosed in our other reports filed with the SEC from time to time, are:
| ● |
sale of our Class A Common Stock by our stockholders, executives, and directors; |
| ● | volatility and limitations in trading volumes of our shares of Class A Common Stock; |
| ● |
the timing and success of introductions of new products and services by us or our competitors or any other change in the competitive dynamics of our industry; |
| ● | our ability to attract new customers; |
| ● |
changes in our capital structure or dividend policy, future issuances of securities and sales of large blocks of Class A Common Stock by our stockholders; |
| ● | our cash position; |
| ● | our operating performance and the profitability of our operations; |
| ● | factors such as variations in our interim financial results; |
| ● |
announcements and events surrounding financing efforts, including debt and equity securities; |
| ● | reputational issues; |
| ● |
announcements of acquisitions, partnerships, collaborations, joint ventures, new products and services, capital commitments, or other events by us or our competitors; |
| ● | changes in general economic, political and market conditions in any of the regions in which we conduct our business; |
| ● | changes in industry conditions or perceptions; |
| ● | analyst research reports, recommendations and changes in recommendations, price targets, and withdrawals of coverage; |
| ● | departures and additions of key personnel; |
| ● | disputes and litigations related to intellectual property and contractual obligations; |
| ● | changes in applicable laws, rules, regulations, or accounting practices and other dynamics; and |
| ● | other events or factors, many of which may be out of our control, including, but not limited to, pandemics such as COVID-19, war, or other acts of God. |
The securities market has, from time to time, experienced significant price and volume fluctuations that are not related to the operating performance of particular companies. In a volatile market, we may experience wide fluctuations in the market price of our Class A Common Stock. If the market for stocks in our industry or industries related to our industry, or the stock market in general, experiences a loss of investor confidence, the trading price of our Class A Common Stock could decline for reasons unrelated to our business, financial condition and results of operations. If any of the foregoing occurs, it could cause our stock price to fall and may expose us to lawsuits that, even if unsuccessful, could be costly to defend and a distraction to management.
Unstable market and economic conditions and adverse developments with respect to financial institutions and associated liquidity risk may have serious adverse consequences on our business, financial condition and stock price.
The global credit and financial markets have recently experienced extreme volatility and disruptions, including severely diminished liquidity and credit availability, declines in consumer confidence, declines in economic growth, inflationary pressure and interest rate changes, increases in unemployment rates and uncertainty about economic stability. The financial markets and the global economy may also be adversely affected by the current or anticipated impact of military conflict, including the conflict between Russia and Ukraine, terrorism or other geopolitical events. Sanctions imposed by the United States and other countries in response to such conflicts, including the one in Ukraine, may also adversely impact the financial markets and the global economy, and any economic countermeasures by the affected countries or others could exacerbate market and economic instability. More recently, the closures of Silicon Valley Bank and Signature Bank and their placement into receivership with the Federal Deposit Insurance Corporation (“FDIC”) created bank-specific and broader financial institution liquidity risk and concerns. Although the Department of the Treasury, the Federal Reserve, and the FDIC jointly confirmed that depositors at SVB and Signature Bank would continue to have access to their funds, even those in excess of the standard FDIC insurance limits, under a systemic risk exception, future adverse developments with respect to specific financial institutions or the broader financial services industry may lead to market-wide liquidity shortages, impair the ability of companies to access near-term working capital needs, and create additional market and economic uncertainty. There can be no assurance that future credit and financial market instability and a deterioration in confidence in economic conditions will not occur. Our general business strategy may be adversely affected by any such economic downturn, liquidity shortages, volatile business environment or continued unpredictable and unstable market conditions. If the equity and credit markets deteriorate, or if adverse developments are experienced by financial institutions, it may cause short-term liquidity risk and also make any necessary debt or equity financing more difficult, more costly and more dilutive. Failure to secure any necessary financing in a timely manner and on favorable terms could have a material adverse effect on our growth strategy, financial performance and stock price and could require us to delay or abandon our business plans. In addition, there is a risk that one or more of our current clients, financial institutions or other third parties with whom we do business may be adversely affected by the foregoing risks, which may have an adverse effect on our business.
Our management owns a significant percentage of our common stock and will be able to exert significant control over matters subject to stockholder approval.
As of March 22, 2023, our executive officers, directors and their affiliates beneficially owned 3,509,923 shares of our Class A Common Stock, representing approximately 74.0% of our outstanding shares of Class A Common Stock (including the shares of Class A Common Stock issuable upon exercise of the Class W-1 and Class W-2 Warrant), and 1,800,000 shares of our Class B Common Stock, representing 100.0% of our outstanding shares of Class B Common Stock. Of such shares, Cohanzick beneficially owns 2,400,000 shares of our Class A Common Stock and 1,800,000 shares of our Class B Common Stock, representing approximately 59.2% of our outstanding shares of Class A Common Stock (including the shares of Class A Common Stock issuable upon exercise of the Class W-1 and Class W-2 Warrant) and 100.0% of our outstanding shares of Class B Common Stock. David Sherman, our Chief Executive Officer and director, is the Managing Member of Cohanzick and owns approximately 71% of Cohanzick. In addition, Steven Kiel, a director, beneficially owns 754,015 shares of our Class A Common Stock (including the shares of Class A Common Stock issuable upon exercise of the Class W-1 and Class W-2 Warrant), representing approximately 13.8% of our outstanding shares of Class A Common Stock. Until the earlier of such date that (i) Mr. Kiel is no longer our director or (ii) neither Cohanzick nor any holder of our Class B Common Stock shall have the right to designate a director pursuant to the Voting Agreement. Mr. Kiel and the entities controlled by him have agreed to vote and cause their affiliate to vote in such manner as may be necessary to vote for the Class B Common Stock director designee. This concentration of ownership may have the effect of delaying, deferring or preventing a change in control, merger, consolidation, takeover or other business combination of our Company. This concentration of ownership could also discourage a potential acquiror from making a tender offer or otherwise attempting to obtain control of our Company, which could in turn have an adverse effect on the market price of securities. These stockholders, acting together, would be able to significantly influence all matters requiring stockholder approval. For example, these stockholders would be able to significantly influence elections of directors, amendments of our organizational documents, or approval of any merger, sale of assets, or other major corporate transaction and the interests of these stockholders may be different from your interests.
Future sales, or the perception of future sales, of shares of Class A Common Stock could cause the market price for our shares of Class A Common Stock to decline.
The sale of substantial amounts of shares of our Class A Common Stock in the public market, or the perception that such sales could occur, could harm the prevailing market price of shares of our Class A Common Stock. These sales, or the possibility that these sales may occur, also might make it more difficult for us to sell equity securities in the future at a time and at a price that we deem appropriate.
As of March 22, 2023, 5,468,133 shares of Class A Common Stock are issued and outstanding. All 2,647,383 shares of Class A Common Stock issued in exchange for historical Enterprise Diversified, Inc. outstanding common shares in the Business Combination are freely tradable without registration under the Securities Act and without restriction by persons other than our “affiliates” (as defined under Rule 144 of the Securities Act, referred to herein as “Rule 144”), including our directors, executive officers and other affiliates. In addition, certain shares of our Class A Common Stock held by certain of our stockholders that are our affiliates are eligible for resale, subject to volume, manner of sale and other limitations under Rule 144. Furthermore, we have agreed to file a resale registration statement under the Securities Act on or before May 1, 2023 registering certain shares of our Class A Common Stock (including shares of our Class A Common Stock issuable upon exercisable of certain securities). Upon effectiveness of such registration statement, such shares of Class A Common Stock may be freely sold in the public market.
Sales of a large number of shares of our Class A Common Stock or the perception that such sales could occur could cause the market price of the our Class A Common Stock to decline.
We have not historically paid cash dividends on our shares of our Class A Common Stock so any returns may be limited to the value of our shares.
To date, we have not paid any cash dividends on our capital stock. We intend to periodically review our policy for issuing dividends as a potential method for returning value to our stockholders. Any future determination to pay dividends will be at the discretion of our board of directors and will depend upon a number of factors, including our results of operations, financial condition, future prospects, contractual restrictions, restrictions imposed by applicable law and other factors that our board of directors deems relevant. Therefore, any return to stockholders may be limited to the increase, if any, of our share price.
Financial reporting obligations of being a public company in the United States are expensive and time-consuming, and our management will be required to devote substantial time to compliance matters.
As a publicly traded company we incur significant legal, accounting and other expenses. The obligations of being a public company in the United States require significant expenditures and place significant demands on our management and other personnel, including costs resulting from public company reporting obligations under the Exchange Act and the rules and regulations regarding corporate governance practices, including, but not limited to, those under Sarbanes-Oxley, the Dodd-Frank Wall Street Reform and Consumer Protection Act. These rules require the establishment and maintenance of effective disclosure and financial controls and procedures, internal control over financial reporting and changes in corporate governance practices, among many other complex rules that are often difficult to implement, monitor and maintain compliance with. Our management and other personnel will need to devote a substantial amount of time to ensure that we comply with all of these requirements and to keep pace with new regulations, otherwise we may fall out of compliance and risk becoming subject to litigation, among other potential problems.
Our Class A Common Stock is and may continue to be subject to the “penny stock” rules of the SEC and the trading market in the securities is limited, which makes transactions in the stock cumbersome and may reduce the value of an investment in the stock.
Rule 15g-9 under the Exchange Act establishes the definition of a “penny stock,” for the purposes relevant to us, as any equity security that has a market price of less than $5.00 per share, subject to certain exceptions. For any transaction involving a penny stock, unless exempt, the rules require: (a) that a broker or dealer approve a person’s account for transactions in penny stocks; and (b) the broker or dealer receive from the investor a written agreement to the transaction, setting forth the identity and quantity of the penny stock to be purchased.
In order to approve a person’s account for transactions in penny stocks, the broker or dealer must: (a) obtain financial information and investment experience and objectives of the person and (b) make a reasonable determination that the transactions in penny stocks are suitable for that person and the person has sufficient knowledge and experience in financial matters to be capable of evaluating the risks of transactions in penny stocks.
The broker or dealer must also deliver, prior to any transaction in a penny stock, a disclosure schedule prescribed by the SEC relating to the penny stock market, which: (a) sets forth the basis on which the broker or dealer made the suitability determination; and (b) confirms that the broker or dealer received a signed, written agreement from the investor prior to the transaction. Generally, brokers may be less willing to execute transactions in securities subject to the “penny stock” rules. This may make it more difficult for investors to dispose of our Class A Common Stock and cause a decline in the market value of our Class A Common Stock.
Failure to maintain effective internal controls could cause our investors to lose confidence in us and adversely affect the market price of our Class A Common Stock. If our internal controls are not effective, we may not be able to accurately report our financial results or prevent fraud.
Effective internal control over financial reporting is necessary for us to provide reliable financial reports in a timely manner. In connection with the audit of our financial statements for the year ended December 31, 2022, our independent registered public accounting firm identified material weaknesses. A material weakness is a significant deficiency, or a combination of significant deficiencies, in internal controls over financial reporting such that it is reasonably possible that a material misstatement of the annual or interim financial statements will not be prevented or detected on a timely basis. The material weaknesses that have been identified by our independent registered public accounting firm relate to segregation of duties and the financial close and reporting process. While we intend to take steps to remediate the material weaknesses in our internal control over financial reporting by developing a phased approach that is intended to increase the effectiveness of the design and operation of our financial reporting controls and processes, we may not be successful in remediating such weaknesses in a timely manner, if at all, which may undermine our ability to provide accurate, timely and reliable reports on our financial and operating results. Furthermore, if we remediate our current material weaknesses but identify new material weaknesses in our internal control over financial reporting in the future, investors may lose confidence in the accuracy and completeness of our financial reports and the market price of our Class A Common Stock may be negatively affected. As a result of such failures, we could also become subject to investigations by the SEC, or other regulatory authorities, and become subject to litigation from investors and stockholders, which could harm our reputation, financial condition or divert financial and management resources from our business.
Our Certificate of Incorporation designates the Court of Chancery of the State of Delaware or the federal district courts of the United States of America, as applicable, as the sole and exclusive forum for certain types of actions and proceedings that may be initiated by our stockholders, which could limit our stockholders’ ability to obtain a favorable judicial forum for disputes with us or our directors, officers, employees or stockholders.
Our Certificate of Incorporation provides that, unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (“Court of Chancery”) will, to the fullest extent permitted by law, be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of our Company, (ii) any action asserting a claim of breach of a fiduciary duty owed by any of our directors, officers, or employees to us or our stockholders, (iii) any action asserting a claim arising pursuant to any provision of the Delaware General Corporation Law, or (iv) any action asserting a claim governed by the internal affairs doctrine as that doctrine exists under the law of the State of Delaware.
Our Certificate of Incorporation further provides that, to the fullest extent permitted by law, the federal district courts of the United States of America is the exclusive forum for the resolution of any complaint asserting a cause of action arising under the federal securities laws of the United States, including the Securities Act or the Exchange Act, in each case, the applicable rules and regulations promulgated thereunder. There is uncertainty as to whether a court would enforce such provision in connection with suits to enforce a duty or liability created by the Securities Act or the Exchange Act if brought derivatively on our behalf, and our stockholders will not be deemed to have waived our compliance with the federal securities laws and the rules and regulations thereunder.
Any person or entity purchasing or otherwise acquiring any interest in shares of our Company will be deemed to have notice of, and consented to, the provisions of our Certificate of Incorporation. This exclusive forum provision may limit a stockholder’s ability to bring a claim in a judicial forum that the stockholder finds favorable for disputes with us or our directors, officers, or other employees and may result in increased costs to our stockholders, which may discourage such lawsuits against us and such persons. Alternatively, if a court were to find these provisions of our Certificate of Incorporation inapplicable to, or unenforceable in respect of, one or more of the specified types of actions or proceedings, we may incur additional costs associated with resolving such matters in other jurisdictions, which could adversely affect our business, financial condition, or results of operations.
Our Certificate of Incorporation, our Amended and Restated Bylaws, and Delaware law may have anti-takeover effects that could discourage, delay or prevent a change in control, which may cause our stock price to decline.
Our Certificate of Incorporation, our Amended and Restated Bylaws, and Delaware law could make it more difficult for a third party to acquire us, even if closing such a transaction would be beneficial to our stockholders. We are authorized to issue up to 2,000,000 shares of preferred stock, none of which are outstanding as of March 22, 2023. This preferred stock may be issued in one or more series, the terms of which may be determined at the time of issuance by our board of directors without further action by stockholders. The terms of any series of preferred stock may include voting rights (including the right to vote as a series on particular matters), preferences as to dividend, liquidation, conversion and redemption rights and sinking fund provisions. The issuance of any preferred stock could materially adversely affect the rights of the holders of our common stock, and therefore, reduce the value of our common stock. In particular, specific rights granted to future holders of preferred stock could be used to restrict our ability to merge with, or sell our assets to, a third party and thereby preserve control by the present management.
Provisions of our Certificate of Incorporation, our Amended and Restated Bylaws and Delaware law also could have the effect of discouraging potential acquisition proposals or making a tender offer or delaying or preventing a change in control, including changes a stockholder might consider favorable. Such provisions may also prevent or frustrate attempts by our stockholders to replace or remove our management. In particular, our Certificate of Incorporation, our Amended and Restated Bylaws and Delaware law, as applicable, among other things:
| ● |
provide the board of directors with the ability to alter the Amended and Restated Bylaws without stockholder approval; |
| ● | place limitations on the removal of directors; |
| ● |
establish advance notice requirements for nominations for election to the board of directors or for proposing matters that can be acted upon at stockholder meetings; and |
| ● | provide that vacancies on the board of directors may be filled by a majority of directors in office, although less than a quorum. |
ITEM 1B. UNRESOLVED STAFF COMMENTS
None.
The Company’s principal office is located at 2400 Old Brick Road, Suite 115, Glen Allen, Virginia 23060. The Company leases its office space for $1,050 per month pursuant to a membership agreement. The membership agreement terminates on August 14, 2023, unless terminated earlier or otherwise extended pursuant to the terms thereof. The principal office of our CrossingBridge operations segment is located at 427 Bedford Road, Suite 220, Pleasantville, New York 10570. The Company currently leases such office space for $5,498 per month, subject to adjustment, pursuant to a license agreement which terminates on August 10, 2023; provided, however, the term of such agreement will automatically renew for subsequent one year terms unless otherwise earlier terminated pursuant to the terms thereof. In addition to the foregoing, the Company also owns interests in two undeveloped lots located in Roanoke, Virginia. The Company believes that its existing facilities are suitable and adequate to meet its current needs. The Company may add new facilities or expand existing facilities as it adds employees, and it believes that suitable additional or substitute space will be available as needed to accommodate any such expansion of its operations.
From time to time, we may become involved in various lawsuits and legal proceedings, which arise in the ordinary course of business. Litigation is subject to inherent uncertainties, and an adverse result in these or other matters may arise from time to time that may harm our business. We are currently not aware of any such legal proceedings or claims that will have, individually or in the aggregate, a material adverse effect on our business, financial condition or operating results. Except as set forth below, we are not currently aware of any other legal proceedings to which the Company is party.
Enterprise Diversified, Inc. (f/k/a Sitestar Corporation) v. Frank Erhartic, Jr.
On April 12, 2016, Enterprise Diversified filed a civil action complaint against Frank Erhartic, Jr. (the “Former CEO”), Enterprise Diversified’s former CEO and director (prior to December 14, 2015) and an owner of record of Enterprise Diversified’s common stock, alleging, among other things, that the Former CEO engaged in, and caused Enterprise Diversified to engage in, to its detriment, a series of unauthorized and wrongful related party transactions, including: causing Enterprise Diversified to borrow certain amounts from the Former CEO’s mother unnecessarily and at a commercially unreasonable rate of interest; converting certain funds of Enterprise Diversified for personal rent payments to the Former CEO; commingling in land trusts certain real properties owned by Enterprise Diversified and real properties owned by the Former CEO; causing Enterprise Diversified to pay certain amounts to the Former CEO for lease payments under an unauthorized lease as to a storage facility owned by the Former CEO; causing Enterprise Diversified to pay rent on its corporate headquarters owned by the Former CEO’s ex-wife in amounts commercially unreasonable and excessive, and making real estate tax payments thereon for the personal benefit of the Former CEO; converting to the Former CEO and/or absconding with five motor vehicles owned by Enterprise Diversified; causing Enterprise Diversified to pay real property and personal property taxes on numerous properties owned personally by the Former CEO; causing Enterprise Diversified to pay personal credit card debt of the Former CEO; causing Enterprise Diversified to significantly overpay the Former CEO’s health and dental insurance for the benefit of the Former CEO; and causing Enterprise Diversified to pay the Former CEO’s personal automobile insurance. Enterprise Diversified is seeking, among other relief available, monetary damages in excess of $350,000. This litigation matter is currently pending in the Circuit Court for the City of Lynchburg (Lynchburg, Virginia), and is set and scheduled for trial on September 14, 2023. During and subsequent to the year ended December 31, 2022, the parties engaged in settlement discussions with respect to the case; however, the parties have thus far been unsuccessful in reaching an agreement. Enterprise Diversified intends to move forward with a trial of the case to conclusion should the parties fail to reach a settlement agreement.
ITEM 4. MINE SAFETY DISCLOSURES
Not applicable.
PART II
ITEM 5. MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES
Market Information
Our Class A Common Stock is quoted on the OTCQB tier of the OTC Markets Group, Inc. under the symbol “ENDI.” Any over-the-counter market quotations reflect inter-dealer prices, without retail mark-up, mark-down or commission and may not necessarily represent actual transactions.
Our Class B Common Stock is not listed on any stock exchange nor traded on any public market.
Stockholders
As of March 22, 2023, we had approximately 125 stockholders of record of our Class A Common Stock. The actual number of holders of our Class A Common Stock is greater than this number of record holders, and includes stockholders who are beneficial owners, but whose shares are held in street name by brokers or held by other nominees. This number of holders of record also does not include stockholders whose shares may be held in trust by other entities. As of March 22, 2023, we had one stockholder of record of our Class B Common Stock.
Dividends
To date, we have not paid any cash dividends on our capital stock. We intend to periodically review our policy for issuing dividends as a potential method for returning value to our stockholders. Any future determination to pay dividends will be at the discretion of our board of directors and will depend upon a number of factors, including our results of operations, financial condition, future prospects, contractual restrictions, restrictions imposed by applicable law and other factors that our board of directors deems relevant.
Recent Sales of Unregistered Securities
None.
ITEM 7. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
This section is intended to provide readers of our financial statements information regarding our financial condition, results of operations, and items that management views as important. The following discussion and analysis of financial condition and results of operations should be read in conjunction with our consolidated financial statements and related footnotes as of and for the year ended December 31, 2022 appearing elsewhere in this Annual Report on Form 10-K. In addition to historical information, this discussion and analysis of financial condition and results of operations contains forward-looking statements that involve risks, uncertainties and assumptions. Our actual results may differ materially from those discussed below. Factors that could cause or contribute to such differences include, but are not limited to, those identified below, and those discussed in the section titled “Risk Factors” included elsewhere in this Annual Report on Form 10-K. The discussion of results, causes, and trends should not be construed to imply any conclusion that such results or trends will necessarily continue in the future. Additionally, it should be noted that a uniform comparative analysis cannot be performed for all segments, as a segment’s limited financial history or restructuring results in less comparable financial performance. As a result of the Business Combination that was consummated on August 11, 2022, and the determination that the Business Combination would be accounted for as a reverse business combination, all historic activity for the year ended December 31, 2021 represents only the financial activity of CrossingBridge Advisors, LLC. Activity presented for the year ended December 31, 2022, includes CrossingBridge financial activity, which has been consolidated with the activity of Enterprise Diversified, Inc. and its subsidiaries as of August 11, 2022 through the year ended December 31, 2022. All amounts are in U.S. dollars, unless otherwise noted.
Overview
During the year ended December 31, 2022, ENDI Corp. operated through the following four reportable segments:
| ● |
CrossingBridge Operations - this segment includes revenue and expenses derived from the Company’s investment advisory and sub-advisory services offered through various SEC registered mutual funds and an ETF through CrossingBridge Advisors, LLC; |
| ● |
Willow Oak Operations - this segment includes revenue and expenses derived from the Company’s various joint ventures, service offerings, and initiatives undertaken in the asset management industry through Willow Oak Asset Management, LLC and its subsidiaries; |
| ● |
Internet Operations - this segment includes revenue and expenses related to the Company’s sale of internet access, e-mail and hosting, storage, and other ancillary services through Sitestar.net, Inc.; and |
| ● |
Other Operations - this segment includes any revenue and expenses from the Company’s nonrecurring or one-time strategic funding or similar activity that is not considered to be one of the Company’s primary lines of business, and any revenue or expenses derived from the Company’s corporate office operations, as well as expenses related to public company reporting, the oversight of subsidiaries, and other items that affect the overall Company. |
The management of the Company also continually reviews various business opportunities for the Company, including those in other lines of business.
Summary of Financial Performance
Stockholders’ equity increased from $591,909 at December 31, 2021 to $20,382,693 at December 31, 2022. This change was primarily attributed to transactions that occurred as part of the Business Combination, which represented an increase of additional paid in capital of $20,217,472. This change was also attributable to $3,288,940 of net income in the CrossingBridge operations segment for the year ended December 31, 2022, $96,324 of net income in the internet operations segment, a net loss of $112,058 in the Willow Oak operations segment, and a net loss of $890,621 in other segments for the Post-Merger period from August 12, 2022 through December 31, 2022. Corporate expenses for the Post-Merger period from August 12, 2022 through December 31, 2022 included in the net loss from other operations totaled $2,131,102. Total comprehensive net income for all segments for the year ended December 31, 2022 was $2,382,585. Additionally, prior to the Closing Date, CBA issued $2,809,578 of distributions to its historical sole member, Cohanzick.
Balance Sheet Analysis
This section provides an overview of changes in our assets, liabilities, and equity and should be read together with our accompanying consolidated financial statements, including the accompanying notes to the financial statements included elsewhere in this Annual Report on Form 10-K. The table below provides a balance sheet summary for the periods presented and is designed to provide an overview of the balance sheet changes from quarter to quarter. Ending balances for Enterprise Diversified and its subsidiaries have been consolidated as of the quarterly period ended September 30, 2022, the period in which the Mergers occurred.
| December 31, 2022 |
September 30, 2022 |
June 30, 2022 |
March 31, 2022 |
December 31, 2021 |
||||||||||||||||
| Assets |
||||||||||||||||||||
| Cash and cash equivalents |
$ | 10,690,398 | $ | 11,685,819 | $ | 1,062,375 | $ | 642,672 | $ | 1,272,924 | ||||||||||
| Investments in securities, at fair value |
5,860,688 | 5,721,047 | 2,248,556 | 2,262,239 | 2,265,088 | |||||||||||||||
| Accounts receivable, net |
744,638 | 726,841 | 506,593 | 649,854 | 511,248 | |||||||||||||||
| Goodwill |
737,869 | 1,677,425 | - | - | - | |||||||||||||||
| Intangible assets, net |
1,223,926 | 1,300,444 | - | - | - | |||||||||||||||
| Deferred tax assets, net |
1,441,234 | 400,283 | - | - | - | |||||||||||||||
| Other assets |
772,742 | 959,162 | 11,416 | - | 4,567 | |||||||||||||||
| Total assets |
$ | 21,471,495 | $ | 22,471,021 | $ | 3,828,940 | $ | 3,554,765 | $ | 4,053,827 | ||||||||||
| Liabilities and Stockholders' Equity |
||||||||||||||||||||
| Accounts payable |
$ | 71,306 | $ | 21,381 | $ | - | $ | - | $ | - | ||||||||||
| Accrued compensation |
23,342 | 1,239,929 | 763,750 | 381,875 | - | |||||||||||||||
| Accrued expenses |
260,185 | 233,857 | 8,829 | 24,469 | 84,627 | |||||||||||||||
| Deferred revenue |
156,859 | 175,552 | - | - | - | |||||||||||||||
| Class W-1 Warrant and Redeemable Class B Common Stock |
576,000 | 954,000 | - | - | - | |||||||||||||||
| Due to affiliate |
- | - | 939,950 | 1,794,895 | 3,377,291 | |||||||||||||||
| Other liabilities |
1,110 | 1,898 | - | - | - | |||||||||||||||
| Total liabilities |
1,088,802 | 2,626,617 | 1,712,529 | 2,201,239 | 3,461,918 | |||||||||||||||
| Total stockholders' equity |
20,382,693 | 19,844,405 | 2,116,411 | 1,353,526 | 591,909 | |||||||||||||||
| Total liabilities and stockholders' equity |
$ | 21,471,495 | $ | 22,471,021 | $ | 3,828,940 | $ | 3,554,765 | $ | 4,053,827 | ||||||||||
As of the year ended December 31, 2022, the Company reported an increase in cash and cash equivalents of approximately $9.4 million, an increase in investments in securities at fair value of approximately $3.6 million, a combined increase in net intangible assets and goodwill of approximately $2.0 million, and an increase in net deferred tax assets of approximately $1.4 million when compared to the year ended December 31, 2021. As of December 31, 2022, the Company also reported a decrease of approximately $3.4 million in its due to affiliate balance and an increase of approximately $0.6 million in its liability associated with the issuance of the Class W-1 Warrant and Class B Common Stock when compared to the year ended December 31, 2021. These period-over-period changes are largely due to the purchase accounting of the Business Combination and the consolidation of the assets and liabilities of Enterprise Diversified.
Results of Operations
CrossingBridge Operations
Revenue attributed to the CrossingBridge operations segment for the year ended December 31, 2022 was $7,271,332, representing an increase of $2,984,247 compared to the year ended December 31, 2021. This increase was primarily due to a corresponding increase in the AUM of CrossingBridge’s advised funds year over year as well as the current year revenue attributed to its service agreement with Cohanzick. The increase in revenue was offset by an increase of $1,205,781 in operating expenses, which totaled $3,998,003 for the year ended December 31, 2022. The increase in operating expenses for the year ended December 31, 2022, compared to the year ended December 31, 2021, was primarily associated with an increase in employee compensation expenses and mutual fund expenses. Net profit margin increased from 35% for the year ended December 31, 2021 to 45% for the year ended December 31, 2022. This was largely due to the increase in AUM of advised funds and corresponding increase in revenue.
Compensation and related costs are typically comprised of salaries, bonuses, and benefits. Salary compensation and bonuses are generally the largest expenses for the CBA segment. Bonuses are subjective and based on individual performance, the underlying funds’ performance, and profitability of the firm, as well as the consideration of future outlook. Compensation and related costs increased by $1,076,288 for the year ended December 31, 2022 compared to the year ended December 31, 2021. This increase was due to an increase in allocated compensation expenses from Cohanzick due to the relative increase in the CBA funds’ AUM for current year monthly periods compared to monthly periods for the prior year as well as expenses for a full year for three employees that were hired during 2021. Compensation expense can fluctuate period over period as management evaluates investment performance, individual performance, Company performance, and other factors.
Mutual fund expenses increased by $161,144 for the year ended December 31, 2022 compared to the year ended December 31, 2021. This increase was due to the relative increase of AUM in CBA’s advised mutual funds year over year. Travel and entertainment expenses increased by $71,046 for the year ended December 31, 2022 compared to the year ended December 31, 2021. This increase was substantially due to increased travel opportunities in the year ended December 31, 2022 as in-person meetings started returning to pre-pandemic levels.
CBA expects that its net margin will fluctuate from period to period based on various factors, including: revenues, investment results, and the development of investment strategies, products, and/or channels.
The table below provides a summary of income statement amounts over time. These figures are specific to the CrossingBridge operations segment and are presented for the annual and quarterly periods designated below.
| For the Quarterly Periods Ended |
||||||||||||||||
| CrossingBridge Operations |
December 31, 2022 |
September 30, 2022 |
June 30, 2022 |
March 31, 2022 |
||||||||||||
| Revenue |
$ | 1,808,079 | $ | 1,993,772 | $ | 1,762,357 | $ | 1,707,124 | ||||||||
| Cost of revenue |
- | - | - | - | ||||||||||||
| Operating expenses |
1,134,957 | 934,584 | 985,797 | 942,665 | ||||||||||||
| Other income (expense) |
163 | 31,965 | (13,675 | ) | (2,842 | ) | ||||||||||
| Net income |
$ | 673,285 | $ | 1,091,153 | $ | 762,885 | $ | 761,617 | ||||||||
Assets Under Management
CBA derives its revenue from its investment advisory fees. Investment advisory fees paid to CBA are based on the value of the investment portfolios it manages and fluctuate with changes in the total value of its AUM.
CBA’s revenues are highly dependent on both the value and composition of AUM. The following is a summary of CBA’s AUM by product and investment strategy, as of December 31, 2022 and December 31, 2021.
| Assets Under Management by Product |
December 31, 2022 |
December 31, 2021 |
% Change |
|||||||||
| (in millions, except percentages) |
||||||||||||
| Advised funds |
614 | 514 | 19.5 | % | ||||||||
| Sub-advised funds |
664 | 855 | (22.3 | )% | ||||||||
| Total AUM |
1,278 | 1,369 | (6.6 | )% | ||||||||
| Assets Under Management by Investment Strategy |
December 31, 2022 |
December 31, 2021 |
% Change |
|||||||||
| (in millions, except percentages) |
||||||||||||
| Ultra-Short Duration |
81 | 59 | 37.3 | % | ||||||||
| Low Duration |
829 | 902 | (8.1 | )% | ||||||||
| Responsible Investing |
23 | 16 | 43.8 | % | ||||||||
| Strategic Income |
345 | 392 | (12.0 | )% | ||||||||
| Total AUM |
1,278 | 1,369 | (6.6 | )% | ||||||||
CrossingBridge Low Duration High Yield Fund (in dollars)
| Beginning Balance |
Gross Inflows |
Gross Outflows |
Market Appreciation (Depreciation) |
Ending Balance |
||||||||||||||||
| 1Q 2022 |
395,646,554 | 246,380,999 | (52,333,341 | ) | 761,371 | 590,455,583 | ||||||||||||||
| 2Q 2022 |
590,455,583 | 81,578,448 | (113,049,267 | ) | (7,650,146 | ) | 551,334,618 | |||||||||||||
| 3Q 2022 |
551,334,618 | 64,761,170 | (72,441,879 | ) | 1,154,842 | 544,808,751 | ||||||||||||||
| 4Q 2022 |
544,808,751 | 64,535,197 | (171,525,452 | ) | 9,774,294 | 447,592,790 | ||||||||||||||
CrossingBridge Ultra-Short Duration Fund (in dollars)
| Beginning Balance |
Gross Inflows |
Gross Outflows |
Market Appreciation (Depreciation) |
Ending Balance |
||||||||||||||||
| 1Q 2022 |
59,054,814 | 6,390,858 | (2,836,014 | ) | 1,793 | 62,611,451 | ||||||||||||||
| 2Q 2022 |
62,611,451 | 6,911,112 | (6,545,551 | ) | 125,669 | 63,102,681 | ||||||||||||||
| 3Q 2022 |
63,102,681 | 9,219,316 | (4,567,382 | ) | 462,466 | 68,217,081 | ||||||||||||||
| 4Q 2022 |
68,217,081 | 19,355,710 | (7,395,986 | ) | 1,101,691 | 81,278,496 | ||||||||||||||
CrossingBridge Responsible Credit Fund (in dollars)
| Beginning Balance |
Gross Inflows |
Gross Outflows |
Market Appreciation (Depreciation) |
Ending Balance |
||||||||||||||||
| 1Q 2022 |
16,410,728 | 1,279,115 | (798,198 | ) | (46,898 | ) | 16,844,747 | |||||||||||||
| 2Q 2022 |
16,844,747 | 622,284 | (854,348 | ) | (269,160 | ) | 16,343,523 | |||||||||||||
| 3Q 2022 |
16,343,523 | 6,301,617 | (1,749,280 | ) | 266,748 | 21,162,608 | ||||||||||||||
| 4Q 2022 |
21,162,608 | 3,378,563 | (1,884,885 | ) | 429,010 | 23,085,296 | ||||||||||||||
CrossingBridge Pre-Merger SPAC ETF (in dollars)
| Beginning Balance |
Gross Inflows |
Gross Outflows |
Market Appreciation (Depreciation) |
Ending Balance |
||||||||||||||||
| 1Q 2022 |
43,003,739 | 11,051,749 | - | 54,845 | 54,110,333 | |||||||||||||||
| 2Q 2022 |
54,110,333 | 8,806,469 | (1,436,663 | ) | (119,608 | ) | 61,360,531 | |||||||||||||
| 3Q 2022 |
61,360,531 | 9,217,570 | (7,642,075 | ) | 375,499 | 63,311,525 | ||||||||||||||
| 4Q 2022 |
63,311,525 | 1,660,044 | (4,173,316 | ) | 1,029,348 | 61,827,601 | ||||||||||||||
Destinations Low Duration Fixed Income Fund (in dollars)
| Beginning Balance |
Gross Inflows |
Gross Outflows |
Market Appreciation (Depreciation) |
Ending Balance |
||||||||||||||||
| 1Q 2022 |
462,920,942 | - | - | 1,243,070 | 464,164,012 | |||||||||||||||
| 2Q 2022 |
464,164,012 | - | - | (6,746,187 | ) | 457,417,825 | ||||||||||||||
| 3Q 2022 |
457,417,825 | - | (5,000,000 | ) | (815,114 | ) | 451,602,711 | |||||||||||||
| 4Q 2022 |
451,602,711 | - | (140,000,000 | ) | 7,644,667 | 319,247,378 | ||||||||||||||
Destinations Global Fixed Income Opportunities Fund (in dollars)
| Beginning Balance |
Gross Inflows |
Gross Outflows |
Market Appreciation (Depreciation) |
Ending Balance |
||||||||||||||||
| 1Q 2022 |
391,642,443 | - | (41,000,000 | ) | 7,203,378 | 357,845,821 | ||||||||||||||
| 2Q 2022 |
357,845,821 | - | (4,000,000 | ) | (15,473,946 | ) | 338,371,875 | |||||||||||||
| 3Q 2022 |
338,371,875 | - | (8,000,000 | ) | (3,429,003 | ) | 326,942,872 | |||||||||||||
| 4Q 2022 |
326,942,872 | 17,000,000 | - | 1,268,523 | 345,211,395 | |||||||||||||||
In the tables above, gross inflows include reinvested dividends and gross outflows include dividends paid/withdrawn from the funds.
Total CBA AUM decreased by approximately $91 million from December 31, 2021 compared to December 31, 2022, however, this decrease was exclusively in CBA’s sub-advised mutual funds, which earn a proportionally lower fee rate than its advised funds. This net AUM decrease consisted of approximately $89 million of net outflows and $2 million of net losses and capital losses, which were retained within the funds.
Performance
Although performance is a key metric to measure an advisor’s success, there are other metrics that CBA believes are more meaningful to its investors, including downside protection during difficult environments, sensitivity to rising interest rates, upside/downside capture, and the risk-adjusted return. Although CBA does not manage to benchmarks, CBA does provide benchmarks to investors as a frame of reference, which are set forth below:
| Annual 2022 |
4Q 2022 |
3Q 2022 |
2Q 2022 |
1Q 2022 |
||||||
| CrossingBridge Low Duration High Yield Fund |
1.01% |
1.96% |
0.21% |
(1.32)% |
0.18% |
|||||
| ICE BofA 0-3 Year US HY Index ex Financials |
(2.33)% |
2.17% |
1.02% |
(3.93)% |
(1.49)% |
|||||
| ICE BofA 1-3 Year Corporate Bond Index |
(4.05)% |
1.40% |
(1.29)% |
(1.01)% |
(3.16)% |
|||||
| ICE BofA 0-3 Year US Treasury Index |
(2.27)% |
0.78% |
(0.99)% |
(0.37)% |
(1.69)% |
|||||
| CrossingBridge Ultra-Short Duration Fund |
2.45% |
1.50% |
0.72% |
0.22% |
0.00% |
|||||
| ICE BofA 0-1 Year US Corporate Index |
0.02% |
1.12% |
0.31% |
0.04% |
(1.44)% |
|||||
| ICE BofA 0-1 Year US Treasury Index |
0.68% |
0.85% |
0.16% |
(0.11)% |
(0.22)% |
|||||
| ICE BofA 0-3 Year US Fixed Rate Asset Backed Securities Index |
(1.99)% |
0.70% |
(0.53)% |
(0.52)% |
(1.64)% |
|||||
| CrossingBridge Responsible Credit Fund |
1.81% |
1.98% |
1.77% |
(1.62)% |
(0.29)% |
|||||
| ICE BofA US High Yield Index |
(11.22)% |
3.98% |
(0.68)% |
(9.97)% |
(4.51)% |
|||||
| ICE BofA US Corporate Index |
(15.44)% |
3.53% |
(5.11)% |
(6.71)% |
(7.74)%
|
|||||
| ICE BofA 3-7 Year US Treasury Index |
(9.24)% |
1.30% |
(3.94)% |
(1.91)% |
(4.91)% | |||||
| CrossingBridge Pre-Merger SPAC ETF (Price) |
2.03% |
1.63% |
0.44% |
(0.15)% |
0.10% |
|||||
| CrossingBridge Pre-Merger SPAC ETF (NAV) |
2.13% |
1.64% |
0.60% |
(0.21)% |
0.09% |
|||||
| ICE BofA 0-3 Year US Treasury Index |
(2.27)% |
0.78% |
(0.99)% |
(0.37)% |
(1.69)% |
With respect to both Destinations Low Duration Fixed Income Fund and Destinations Global Fixed Income Opportunities Fund (collectively, the “Destination Funds”), CBA serves as one sub-adviser as part of a manager of managers strategy. As one of many sub-advisers, CBA does not select the benchmarks, and does not have a license to use, the benchmark performance information for the Destination Funds. CBA believes that the benchmark performance information is not material in this context because CBA’s advisory services with respect to the Destination Funds involves only a portion of the assets of the Destination Funds while the benchmarks are selected as an appropriate comparison based on the entire portfolio of the Destination Funds across all of the relevant sub-advisers.
Willow Oak Operations
Beginning Post-Merger, the Company operates its Willow Oak operations business through its wholly owned subsidiaries, Willow Oak Asset Management, LLC, Willow Oak Capital Management, LLC, Willow Oak Asset Management Affiliate Management Services, LLC, and Willow Oak Asset Management Fund Management Services, LLC. Willow Oak generates its revenue through various fee share agreements with private investment firms and partnerships in exchange for providing its fund management services. Willow Oak does not manage, direct, or invest any capital itself, but rather earns fee shares based on the AUM and periodic performance of the investment firms and partnerships with which it partners. Fee shares earned on AUM, management fee shares, and fund management services revenue are recognized and recorded on a monthly or quarterly basis in alignment with the underlying terms of each investment partnership. Revenue fee shares earned on performance are recognized and recorded only when the underlying investment partnership’s performance crystalizes, which is typically on an annual, calendar-year basis. As performance fee shares are based on investments returns, these fee shares have the potential to be highly variable.
During the Post-Merger period from August 12, 2022 through December 31, 2022, the Willow Oak operations segment generated $61,499 of revenue. Operating expenses totaled $172,865 and other expenses were $692. Willow Oak’s net loss for the Post-Merger period from August 12, 2022 through December 31, 2022 totaled $112,058. Compensation and related costs represent Willow Oak’s most significant operating expense during the Post-Merger period.
The table below provides a summary of income statement amounts for Willow Oak, which are included in the consolidated statements of operations for the Post-Merger period from August 12, 2022 through December 31, 2022.
| Year Ended December 31, |
||||
| Willow Oak Operations Revenue |
2022 |
|||
| Management fee revenue |
$ | 22,176 | ||
| Fund management services revenue |
38,740 | |||
| Performance fee revenue |
583 | |||
| Total revenue |
$ | 61,499 | ||
| For the Quarterly Periods Ended |
||||||||
| Willow Oak Operations |
December 31, 2022 |
September 30, 2022(a) |
||||||
| Revenue |
$ | 39,524 | $ | 21,975 | ||||
| Cost of revenue |
- | - | ||||||
| Operating expenses |
118,318 | 54,547 | ||||||
| Other income (expense) |
570 | (1,262 | ) | |||||
| Net loss |
$ | (78,224 | ) | $ | (33,834 | ) | ||
(a) Activity for the quarterly period includes only activity Post-Merger through the end of the quarterly period.
No comparable activity is available or included for the Willow Oak operations segment for periods presented prior to August 12, 2022 because the Willow Oak operations were not part of CBA pre-merger. See Note 4 to the accompanying consolidated financial statements included elsewhere in this Annual Report on Form 10-K for more information.
Internet Operations
Revenue attributed to the internet operations segment during the Post-Merger period from August 12, 2022 through December 31, 2022 totaled $305,680 and cost of revenue totaled $103,843. Operating expenses for the segment totaled $105,115 for the Post-Merger period from August 12, 2022 through December 31, 2022 and other expenses totaled $398. Total net income for the internet operations segment was $96,324 for the Post-Merger period from August 12, 2022 through December 31, 2022.
As of December 31, 2022, the internet operations segment has a total of 5,723 customer accounts across the U.S. and Canada. As of December 31, 2022, approximately 92% of our customer accounts are U.S.-based, while 8% are Canada-based. During the Post-Merger period from August 12, 2022 through December 31, 2022, approximately 52% of our revenue was driven by internet access services, with the remaining 48% being earned though web hosting, email, and other web-based services.
Revenue generated by our U.S. customers totaled $291,472, and revenue generated by our Canadian customers totaled $14,208 during the Post-Merger period from August 12, 2022 through December 31, 2022.
The table below provides a summary of income statement amounts for the internet operations segment, which are included in the consolidated statements of operations for the Post-Merger period from August 12, 2022 through December 31, 2022.
| For the Quarterly Periods Ended |
||||||||
| Internet Operations |
December 31, 2022 |
September 30, 2022(a) |
||||||
| Revenue |
$ | 194,021 | $ | 111,659 | ||||
| Cost of revenue |
70,280 | 33,563 | ||||||
| Operating expenses |
73,103 | 32,012 | ||||||
| Other income (expense) |
293 | (691 | ) | |||||
| Net income |
$ | 50,931 | $ | 45,393 | ||||
(a) Activity for the quarterly period includes only activity Post-Merger through the end of the quarterly period.
No comparable activity is available or included for the internet operations segment for periods presented prior to August 12, 2022 because internet operations were not part of CBA pre-merger. See Note 4 to the accompanying consolidated financial statements included elsewhere in this Annual Report on Form 10-K for more information.
Other Operations
During the Post-Merger period from August 12, 2022 through December 31, 2022, the Company’s other operations segment did not produce any revenue or cost of sales. Operating expenses totaled $2,153,767 and other income totaled $1,263,146. Corporate operating expenses accounted for $2,131,102 of reported operating expenses for our other operations segment. Included in corporate operating expenses reported for the period are $881,755 of non-cash stock compensation expenses incurred in conjunction with the Business Combination. These expenses were associated with the issuance of Class A Common Stock and the Class W-2 Warrant to purchase shares of the Company’s Class A Common Stock (“Class W-2 Warrant” or “W-2 Warrant”). During the Post-Merger period from August 12, 2022 through December 31, 2022, the other operations segment also reported transaction expenses incurred as part of the Business Combination totaling $470,329. These transaction expenses were offset by $900,000 of other income reported as part of the Company’s periodic revaluation of its liability associated with the Class W-1 Warrant and Class B Common Stock. This resulted in a net loss of $890,621 for the other operations segment for the Post-Merger period from August 12, 2022 through December 31, 2022.
Included in corporate operating expenses for the Post-Merger period from August 12, 2022 through December 31, 2022 were $439,472 of professional expenses related to legal, accounting, and consulting services, as well as $237,638 of compensation related expenses.
During the Post-Merger period from August 12, 2022 through December 31, 2022, the Company reported $191,678 of income tax benefit related to the current year change in the Company’s net deferred tax assets. As noted above, due to CBA’s disregarded status for periods prior to the Closing Date, no comparable income tax expenses existed for the year ended December 31, 2021.
The table below provides a summary of income statement amounts for the other operations segment, which are included in the consolidated statements of operations for the Post-Merger period from August 12, 2022 through December 31, 2022.
| For the Quarterly Periods Ended |
||||||||
| Other Operations |
December 31, 2022 |
September 30, 2022(a) |
||||||
| Revenue |
$ | - | $ | - | ||||
| Cost of revenue |
- | - | ||||||
| Operating expenses |
448,255 | 1,705,512 | ||||||
| Other income |
340,551 | 922,595 | ||||||
| Net income (loss) |
$ | (107,704 | ) | $ | (782,917 | ) | ||
(a) Activity for the quarterly period includes only activity Post-Merger through the end of the quarterly period.
No comparable activity is available or included for the other operations segment for periods presented prior to August 12, 2022 because other operations were not part of CBA pre-merger. See Note 4 to the accompanying consolidated financial statements included elsewhere in this Annual Report on Form 10-K for more information.
Liquidity and Capital Resources
During the year ended December 31, 2022, the Company carried out its business strategy in four operating segments: CrossingBridge operations, Willow Oak operations, internet operations, and other operations. As a result of the Merger that occurred on August 11, 2022 and the determination that the Merger would be accounted for as a reverse business combination, activity presented for the year ended December 31, 2022 includes CrossingBridge financial activity for the full 12-month period and Enterprise Diversified activity as of the Closing Date of the Merger through December 31, 2022.
Our primary focus is on generating cash flow so that we have the flexibility to pursue opportunities as they present themselves. We intend to only invest cash in a segment if we believe that the return on the invested capital is appropriate for the risk associated with the investment. This consideration is measured against all investment opportunities available to us and is not limited to these particular segments nor the Company’s historical operations.
A significant amount of the Company’s assets are comprised of cash and cash equivalents, investments in securities, and accounts receivable. The Company’s main source of liquidity is cash flows from operating activities, which are primarily generated from investment advisory fees generated through CrossingBridge operations. Cash and cash equivalents, investments in securities, and accounts receivable represented approximately $10.7 million, $5.9 million and $0.7 million of total assets as of December 31, 2022, respectively, and approximately $1.3 million, $2.3 million and $0.5 million of total assets as of December 31, 2021, respectively. The Company believes that these sources of liquidity, as well as its continuing cash flows from operating activities will be sufficient to meet its current and future operating needs for at least the next 12 months.
In line with the Company’s objectives, it anticipates that its main uses of cash will be for operating expenses and seed capital to fund new and existing investment strategies through its CrossingBridge operations segment. The Company’s management regularly reviews various factors to determine whether it has capital in excess of that required for its business, and the appropriate uses of any such excess capital.
The aging of accounts receivable as of December 31, 2022 and December 31, 2021 is as follows:
| December 31, 2022 |
December 31, 2021 |
|||||||
| Current |
$ | 741,363 | $ | 511,248 | ||||
| 30 - 60 days |
3,275 | - | ||||||
| 60+ days |
- | - | ||||||
| Total |
$ | 744,638 | $ | 511,248 | ||||
We have no material capital expenditure requirements.
Cash Flow Analysis
Cash Flows Provided By Operating Activities
The Company reported $1,725,722 of net cash provided by operating activities for the year ended December 31, 2022. Other income recognized from the W-1 Warrant revaluation and expenses related to the issuance of the W-2 Warrant and additional share purchases represented significant adjusting items to cash flows generated through operations. During the year ended December 31, 2021, the Company reported $1,201,415 of net cash provided by operating activities, which was primarily attributed to net income generated for the year.
Cash Flows (Used In) Provided By Investing Activities
The Company reported $11,827,999 of net cash provided by investing activities for the year ended December 31, 2022. This was primarily related to the consolidation of Enterprise Diversified’s assets and liabilities pursuant to the Business Combination. During the year ended December 31, 2021, the Company reported $2,265,086 of net cash used in investing activities, which was primarily attributed to an increase in investments.
Cash Flows (Used In) Provided By Financing Activities
The Company reported $4,136,247 of net cash flows used in financing activities for the year ended December 31, 2022. Prior to the Closing Date, the Company repaid the balance of its due to affiliate amount and made distributions to CrossingBridge’s historical sole member. These outflows were offset by the issuance of Class A Common Stock pursuant to the Business Combination. During the year ended December 31, 2021, the Company reported $77,925 of net cash provided by financing activities, which was primarily attributed to distributions paid and an offsetting increase in the due to affiliate amount.
Summary Discussion of Critical Accounting Estimates
The financial statements were prepared in accordance with U.S. generally accepted accounting principles, which requires management to make estimates and assumptions that affect the amounts reported in the financial statements and accompanying notes. These estimates and assumptions affect various matters, including our reported amounts of assets and liabilities in our consolidated balance sheets at the dates of the financial statements; our disclosure of contingent assets and liabilities at the dates of the financial statements; and our reported amounts of revenues and expenses in our pre-merger carve-out statements of operations during the reporting periods. These estimates involve judgments with respect to numerous factors that are difficult to predict and are beyond management’s control. As a result, actual amounts could materially differ from these estimates.
The SEC defines critical accounting estimates as those that are both most important to the portrayal of a company’s financial condition and results of operations and require management’s most difficult, subjective, or complex judgment, often as a result of the need to make estimates about the effect of matters that are inherently uncertain and may change in subsequent periods. We base our estimates on historical experience and on various other assumptions we believe to be reasonable according to current facts and circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. In Note 2 to the accompanying consolidated financial statements included elsewhere in this Annual Report on Form 10-K, we discuss our significant accounting policies, including those that do not require management to make difficult, subjective, or complex judgments or estimates. The most significant areas involving management’s judgments and estimates are described below.
Fair-Value of Long-Term Assets
Assets Acquired Pursuant to the Business Combination
The excess of purchase consideration over the fair value of net tangible and intangible assets acquired was recorded as goodwill, which is primarily attributed to the future economic benefits arising from other assets acquired that could not be individually identified and separately recognized including expected synergies and the assembled workforce in place. The fair values assigned to tangible and intangible assets acquired and liabilities assumed are based on management’s estimates and assumptions and may be subject to change as additional information is received.
During and as of the three-month period ended December 31, 2022, the Company recorded three measurement period adjustments to the preliminary recorded fair values assigned to certain long-term Company assets acquired as of the Closing Date. The fair value assigned to the Company’s note receivable was reduced from $300,000 to $50,000, the fair value assigned to the Company’s domain names was reduced from $235,000 to $175,000, and the fair value assigned to the Company’s net deferred tax assets was increased from $0 to $1,249,556. The net changes in fair value, totaling an increase of $939,556, proportionally decreased the balance of residual goodwill from $1,677,425 to $737,869 as of December 31, 2022. These adjustments are the product of an expanded valuation analysis performed by management during December 2022. The Company expects to finalize the fair values of assets acquired as soon as practicable, but not later than one year from the Closing Date. See Note 4 to the accompanying consolidated financial statements included elsewhere in this Annual Report on Form 10-K for more information.
Goodwill
The Company tests its goodwill annually as of December 31, or more often if events and circumstances indicate that those assets might not be recoverable. Impairment testing of goodwill is required at the reporting-unit level (operating segment or one level below operating segment). The impairment test involves calculating the impairment of goodwill based solely on the excess of the carrying value of the reporting unit over the fair value of the reporting unit. Prior to performing the impairment test, the Company may make a qualitative assessment of the likelihood of goodwill impairment to determine whether a detailed quantitative analysis is required. This qualitative assessment and the ongoing evaluation of events and circumstances represent critical accounting estimates. Management considers a variety of factors when making these estimates, which include, but are not limited to, internal changes in the segment’s operations, external changes that affect the segment’s industry, and overall financial condition of the segment and Company.
Management did not identify any events or circumstances during the year ended December 31, 2022 that would indicate potential goodwill impairment, nor did management’s qualitative assessment performed on December 31, 2022 indicate a potential goodwill impairment. Total goodwill reported on the consolidated balance sheets was $737,869 as of the year ended December 31, 2022.
Long-Term Investments
When investment inputs or publicly available information are limited or unavailable, management estimates the value of certain long-term investments using the limited information it has available, which can include the Company’s cost basis. This process, which was used to measure the value of the Company’s investment in the private company made through eBuild, represents a critical accounting estimate. Management utilizes the available inputs to perform an initial valuation estimate and subsequently updates that valuation when additional inputs become available.
Management did not identify any events or circumstances during the year ended December 31, 2022 that would indicate potential impairment of the Company’s investment in the private company. This investment is reported on the consolidated balance sheet at $450,000 as of the year ended December 31, 2022.
Other Intangible Assets
When management determines that material intangible assets are acquired in conjunction with the purchase of a business, the Company determines the fair values of the identifiable intangible assets by taking into account internal and external appraisals. The Company evaluates at each balance sheet date whether events and circumstances have occurred that indicate possible impairment. These initial appraisals, as well as the subsequent evaluation of events and circumstances that may indicate impairment, represent critical accounting estimates.
Management did not identify any events or circumstances during the year ended December 31, 2022 that would indicate potential impairment of the Company’s customer lists, trade names, or domain names. The total value of the Company’s customer lists, trade names, and domain names, net of amortization, reported under long-term assets on the consolidated balance sheet is $1,223,926 as of the year ended December 31, 2022.
Deferred Tax Assets and Liabilities
Income taxes are accounted for under the asset and liability method, which requires the recognition of deferred tax assets and liabilities for the expected future tax benefits or consequences of events that have been included in the consolidated financial statements. Deferred tax assets are reduced by a valuation allowance when, in the opinion of management, it is more likely than not that some portion or all of the deferred tax assets will not be realized. Management’s analysis of the amount of deferred tax assets that will ultimately be realized represents a critical accounting estimate.
As of December 31, 2022, the Company had federal and state net operating loss carryforwards of approximately $6.8 million. A portion of these carryforwards will expire in various amounts beginning in 2035; however the majority of these carryforwards will not expire as they were generated after December 31, 2017. The Company expects it will be able to use its carryforwards subject to expiration in full prior to 2035. Section 382 of the Internal Revenue Code of 1986, as amended (“Section 382”), limits the use of net operating loss carryforwards in certain situations where changes occur in the stock ownership of a company. Net operating losses that arose prior to that ownership change will have limited availability to offset taxable income arising in periods following the ownership change. During the year ended December 31, 2022, the Company performed an analysis to determine if a change of control occurred as a product of the Business Combination, and has determined that a change of control is more likely than not to have occurred on August 11, 2022. Under Section 382, net operating loss carryforwards that arose prior to the ownership change will have limited availability to offset taxable income arising in future periods following the ownership change. Section 382 imposes multiple separate and distinct limits on the utilization of pre-change of control net operating losses based on the fair market value of the Company immediately prior to the change of control, as well as certain activities that may or may not occur during the 60 months immediately following the change of control. While the majority of the Company’s historic net operating losses will be limited to an annual threshold, the majority of historic net operating losses also will not be subject to future expiration. As of the year ended December 31, 2022, the Company has not provided a valuation allowance against its net operating losses as the Company expects to be able to use its net operating losses in full to offset future taxable income generated by the Company. See Note 10 to the accompanying consolidated financial statements included elsewhere in this Annual Report on Form 10-K for more information.
As described further in Note 4 to the accompanying consolidated financial statements included elsewhere in this Annual Report on Form 10-K, during the three-month period ended December 31, 2022, the Company recorded a measurement period adjustment to the preliminary recorded fair value assigned to the Company’s acquired net deferred tax assets on the Closing Date. The fair value of acquired net deferred tax assets was increased from $0 to $1,249,556, with the corresponding decrease allocated to the Company’s residual amount of goodwill as of December 31, 2022. This adjustment was the product of the Section 382 analysis described above.
Contingencies, Commitments, and Litigation
Liabilities are recognized when management determines that contingencies, commitments, and/or litigation represent events that are more likely than not to result in a measurable obligation to the Company. Management’s analysis of these events represents a critical accounting estimate.
W-1 Warrant and Class B Common Shares
Pursuant to the Merger Agreement, during the year ended December 31, 2022, the Company issued a Class W-1 Warrant to purchase 1,800,000 of the Company’s Class A Common Stock. The liability associated with the issuance of the such warrant, and the embedded shares of Class B Common Stock, is based on an independent third-party valuation, which includes a Black-Scholes pricing model. As of the year ended December 31, 2022, the long-term liability reported on the Company’s consolidated balance sheet for the W-1 Warrant and shares of Class B Common Stock totals $576,000. See Note 5 to the accompanying consolidated financial statements included elsewhere in this Annual Report on Form 10-K for more information.
RiverPark Advisors, LLC
On November 18, 2022, CBA, whose President is David Sherman, our Chief Executive Officer and director, entered into the RiverPark Agreement with RiverPark and Cohanzick, a RIA established by David Sherman, pursuant to which RiverPark intends to sell to CBA certain assets and CBA intends to assume certain liabilities, including certain rights and responsibilities under the RiverPark Advisory Agreement and the RiverPark Expense Limitation Agreement relating to the provision of investment advisory services for the RiverPark Fund, subject to certain terms and conditions set forth in the RiverPark Agreement.
Pursuant to the RiverPark Agreement, there is no consideration to be paid upon Closing; however, if the Closing occurs, CBA shall pay an amount approximately equal to 50% of the RiverPark Fund’s management fees (as set forth in the RiverPark Fund’s prospectus) to RiverPark (the RiverPark Fund’s current adviser) and Cohanzick (the RiverPark Fund’s current sub-adviser) for a period of three years after Closing, and pay an amount approximately equal to 20% of the RiverPark Fund’s management fees in the fourth and fifth years after Closing as set forth in the RiverPark Agreement. Notwithstanding the foregoing, certain of the amounts payable based on the RiverPark Fund’s management fees pursuant to the RiverPark Agreement during the first three years after the Closing shall be capped such that they are less than $1.3 million in the aggregate.
Pursuant to the RiverPark Agreement, CBA will endeavor to procure the RiverPark Stockholder Approval by the board of trustees of the RiverPark Fund and by a vote of a majority of the outstanding voting securities of RiverPark Fund for CBA to assume (i) the advisory services role under the RiverPark Advisory Agreement pursuant to which RiverPark provides investment advisory services to the RiverPark Fund or under an equivalent agreement with a successor to the RiverPark Fund and (ii) the RiverPark Expense Limitation Agreement or pursuant to an equivalent agreement with a successor to the RiverPark Fund. Furthermore, pursuant to the terms of the RiverPark Agreement, if a Closing occurs, the parties to the RiverPark Advisory Agreement and that certain Sub-Advisory Agreement dated as of August 1, 2012 by and among RiverPark, Cohanzick and the RiverPark Trust, on behalf of the RiverPark Fund, have agreed to terminate such agreements upon such Closing, and to make CBA a party to the RiverPark Expense Limitation Agreement or an equivalent agreement with a successor to the RiverPark Fund. Pursuant to the RiverPark Agreement, if the Closing does not occur prior to the RiverPark Termination Date, the RiverPark Agreement shall terminate, unless otherwise mutually agreed upon by the parties.
The RiverPark Agreement contains customary representations, warranties and agreements by the parties thereto and customary conditions to closing, including receipt of the RiverPark Stockholder Approval.
In connection with the RiverPark Agreement, Cohanzick and CBA intend to enter into an agreement which shall prohibit Cohanzick from competing with a substantially similar strategic income strategy as an adviser or sub- adviser to a fund registered under the Investment Company Act or any Undertakings for the Collective Investment in Transferable Securities products.
Discussion Regarding COVID-19 Potential Impacts
Due to the continuing uncertainty surrounding the COVID-19 pandemic, management has continued to regularly monitor and assess all Company operations for potential impacts of the COVID-19 pandemic. As of the year ended December 31, 2022, the Company has not been required to make significant operational changes as a result of the pandemic. Management does not anticipate additional challenges in meeting existing obligations, nor does it expect significant customer or vendor interruptions. However, the extent to which the continuing COVID-19 pandemic ultimately may impact the Company’s business, financial condition, liquidity, and results of operations likely will continue to depend on future developments, which are highly uncertain and cannot be predicted, including the scope and duration of the pandemic, the direct and indirect impact of the pandemic on the Company’s employees, customers, and service providers, as well as the U.S. economy and the actions taken by governmental authorities and other third parties in response to the pandemic.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company is not required to provide the information required by this Item as it is a “smaller reporting company,” as defined in Rule 12b-2 of the Exchange Act.
The information required by this Item 8 may be found immediately after the signature pages to this Annual Report on Form 10-K and is incorporated herein by reference.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
None.
ITEM 9A. CONTROLS AND PROCEDURES
Evaluation of Disclosure Controls and Procedures
The Company’s management, with the participation of our principal executive officer and principal financial officer, have evaluated the effectiveness of the design and operation of our “disclosure controls and procedures,” as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act, as of December 31, 2022. Disclosure controls and procedures are designed to ensure that information required to be disclosed in the reports we file or submit under the Exchange Act is recorded, processed, summarized, and reported within the time periods specified in the SEC’s rules and forms, and that such information is accumulated and communicated to our management, including our principal executive officer and principal financial officer, to allow timely decisions regarding required disclosures. Based upon this evaluation, and based upon material weaknesses in our internal control over financial reporting identified as of the date of our most recent evaluation of internal controls over financial reporting, our principal executive officer and principal financial officer concluded that our disclosure controls and procedures were not effective as of December 31, 2022.
Management’s Report on Internal Control over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting as defined in Rule 13a-15(f) of the Exchange Act. Internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of our assets; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of our consolidated financial statements in accordance with generally accepted accounting principles, and that our receipts and expenditures are being made only in accordance with authorizations of our management and directors; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of our assets that could have a material effect on our consolidated financial statements. Under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, we conducted an evaluation of the effectiveness of our internal control over financial reporting based on criteria established in the Internal Control – Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission. Management’s assessment included evaluation of such elements as the design and operating effectiveness of key financial reporting controls, process documentation, accounting policies, and our overall control environment. Based on this evaluation, our management concluded that, as of December 31, 2022, our internal control over financial reporting was not effective based on such criteria. We have reviewed the results of management’s assessment with our board of directors. In addition, we will evaluate any changes to our internal control on a quarterly basis to determine if a material change occurred.
Material Weaknesses in Internal Controls
A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting such that there is a reasonable possibility that a material misstatement of our financial statements would not be prevented or detected on a timely basis.
As a result of our evaluations, we identified the following material weaknesses in our internal control over financial reporting as of December 31, 2022:
Segregation of Duties: We lack segregation of duties. Specifically:
| ● |
There is not a formal review of all adjusting journal entries; |
| ● |
There is not a formal procedure for the review and assignment of access rights within certain software systems; and |
| ● |
The individual with responsibility for reviewing journal entries, reviewing bank and credit card payments, and other reconciliations also has a wide range of access within the Company’s systems and is an authorized signatory on bank accounts. |
Financial Close and Reporting: We do not have effective internal controls over all parts of the financial close and reporting process in that one individual is responsible for reconciling significant accounts, preparing the most significant journal entries, evaluating complex transactions and reporting requirements, and also is responsible for the financial statement close, consolidation, and reporting process.
During the year ended December 31, 2022, as a result of the closing of the Merger, we were afforded additional personnel resources that can now be integrated into our internal control processes. We are actively working to restructure our historical internal controls over financial reporting to leverage these resources accordingly. We continue to make efforts to reinforce our internal control environment by utilizing an external accounting firm during our financial closing process, engaging third-party consultants to review the accounting and related disclosures for transactions that management and the board of directors determine to be particularly complex, and maintaining strict document retention policies and procedures that allow for full visibility of all financial statements and schedules by all of our managers and officers.
In response to the identified material weaknesses, we are developing a phased approach that is intended to increase the effectiveness of the design and operation of our financial reporting controls and processes. In the first phase, we expect to work with a third-party professional consultant to prepare formal documentation for our internal controls over financial reporting, which may include an entity level controls assessment, an IT general controls assessment, and process area flowcharts where necessary. In the second phase, we expect to use our control documentation to identify ineffectively designed and/or control gaps and work to remediate them. Finally, in phase three, we expect to design a systematic monitoring plan to sufficiently test our new key controls over the course of future reporting periods. We aim to complete this project before the end of the next fiscal year occurring on December 31, 2023. Notwithstanding the foregoing, there is no guarantee that we will be successful in completing this multi-phased approach and remediating the material weaknesses.
Changes in Internal Control Over Financial Reporting
There have been no changes in our internal control over financial reporting during the year ended December 31, 2022, that have materially affected, or are reasonably likely to materially affect, the Company’s internal control over financial reporting.
Limitations on Effectiveness of Controls and Procedures
In designing and evaluating the disclosure controls and procedures, management recognizes that any controls and procedures, no matter how well designed and operated, cannot provide absolute assurance that the objectives of the controls system are met, and no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, within a company have been detected. In addition, the design of disclosure controls and procedures must reflect the fact that there are resource constraints and that management is required to apply judgment in evaluating the benefits of possible controls and procedures relative to their costs.
On December 28, 2022, RiverPark, CBA and Cohanzick entered into an amendment to the RiverPark Agreement pursuant to which the termination date of such agreement was extended to the RiverPark Termination Date.
ITEM 9C. DISCLOSURE REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS
Not applicable.
PART III
ITEM 10. DIRECTORS, EXECUTIVE OFFICERS, AND CORPORATE GOVERNANCE
The information required by this item is incorporated herein by reference to our Proxy Statement for the 2023 Annual Meeting to be filed with the Securities and Exchange Commission within 120 days of the fiscal year ended December 31, 2022.
ITEM 11. EXECUTIVE COMPENSATION
The information required by this item is incorporated herein by reference to our Proxy Statement for the 2023 Annual Meeting to be filed with the Securities and Exchange Commission within 120 days of the fiscal year ended December 31, 2022.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
The information required by this item is incorporated herein by reference to our Proxy Statement for the 2023 Annual Meeting to be filed with the Securities and Exchange Commission within 120 days of the fiscal year ended December 31, 2022.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE
The information required by this item is incorporated herein by reference to our Proxy Statement for the 2023 Annual Meeting to be filed with the Securities and Exchange Commission within 120 days of the fiscal year ended December 31, 2022.
ITEM 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES
The information required by this item is incorporated herein by reference to our Proxy Statement for the 2023 Annual Meeting to be filed with the Securities and Exchange Commission within 120 days of the fiscal year ended December 31, 2022.
PART IV
ITEM 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
Financial Statements
| Page No. | ||
| Report of Independent Registered Public Accounting Firm* | F-1 | |
| Consolidated Balance Sheets – December 31, 2022 and 2021 | F-3 | |
| Consolidated Statements of Operations – Years Ended December 31, 2022 and 2021 | F-4 | |
| Consolidated Statements of Changes in Stockholders’ Equity – Years Ended December 31, 2022 and 2021 | F-5 | |
| Consolidated Statements of Cash Flows – Years Ended December 31, 2022 and 2021 | F-6 | |
| Notes to Consolidated Financial Statements | F-7 |
*
Exhibits
* Filed herewith.
** Furnished herewith.
+ Indicates a management contract or any compensatory plan, contract or arrangement.
None.
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
| ENDI Corp. |
||
| Date: March 30, 2023 |
/s/ David Sherman |
|
| David Sherman |
||
| Chief Executive Officer |
||
| (Principal Executive Officer) |
||
| Date: March 30, 2023 |
/s/ Alea Kleinhammer |
|
| Alea Kleinhammer |
||
| Chief Financial Officer |
||
| (Principal Financial and Accounting Officer) |
Pursuant to the requirements of the Securities Exchange Act of 1934, this Annual Report on Form 10-K has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
| Signature |
Title |
Date |
||
| /s/ David Sherman |
Chief Executive Officer and Director |
March 30, 2023 |
||
| David Sherman |
(Principal Executive Officer) |
|||
| /s/ Alea Kleinhammer |
Chief Financial Officer |
March 30, 2023 |
||
| Alea Kleinhammer |
(Principal Financial and Accounting Officer) |
|||
| /s/ Thomas McDonnell |
Chairman |
March 30, 2023 |
||
| Thomas McDonnell |
||||
| /s/ Mahendra Gupta |
Director |
March 30, 2023 |
||
| Mahendra Gupta |
||||
| /s/ Steven Kiel |
Director |
March 30, 2023 |
||
| Steven Kiel |
||||
| /s/ Abigail Posner |
Director |
March 30, 2023 |
||
| Abigail Posner |
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders ENDI Corp.
Richmond, Virginia
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheets of ENDI Corp. and subsidiaries (the “Company”) as of December 31, 2022 and 2021, and the related consolidated statements of operations, changes in stockholder’s equity, and cash flows for each of the years in the two year period ended December 31, 2022, and the related notes (collectively referred to as the “financial statements”). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2022 and 2021, and the results of its operations and its cash flows for each of the years in the two year period ended December 31, 2022 in conformity with accounting principles generally accepted in the United States of America.
Basis for Opinion
These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (“PCAOB”) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits, we are required to obtain an understanding of internal control over financial reporting, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.
Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.
Critical Audit Matters
The critical audit matter communicated below is a matter arising from the current period audit of the financial statements that was communicated or required to be communicated to the audit committee and that: (1) relates to accounts or disclosures that are material to the financial statements and (2) involved our especially challenging, subjective, or complex judgments. The communication of critical audit matters does not alter in any way our opinion on the financial statements, taken as a whole, and we are not, by communicating the critical audit matter below, providing a separate opinion on the critical audit matter or on the accounts or disclosures to which it relates.
Business Combination
Description of the Matter
As described in Notes 1 and 4 to the consolidated financial statements, the Company completed its merger pursuant to the terms of the Agreement and Plan of Merger (“Merger Agreement”) in which CrossingBridge Advisors, LLC merged with Enterprise Diversified, Inc. The transaction was accounted for as a reverse merger, with CrossingBridge Advisors, LLC being the accounting acquirer. This resulted in goodwill of approximately $0.7 million being recognized. Management determined that the acquisition qualified as a business combination and accordingly, all identifiable assets acquired and liabilities assumed were recorded at fair value. The identification and valuation of the acquired assets and assumed liabilities requires management to exercise significant judgment and consider the use of outside valuation specialists to estimate the fair value allocations.
Critical Audit Matters (Continued)
Business Combination (Continued)
How We Addressed the Matter in Our Audit
We identified the evaluation of the Company’s business combination as a critical audit matter because of its material impact on the Company’s balance sheet, complexity of purchase accounting, and the subjectivity involved in management’s judgments with respect to the fair value adjustments of assets acquired and liabilities assumed, including intangible assets.
The primary procedures we performed to address this critical audit matter included performing substantive testing, including evaluating management’s judgments and assumptions for applying the acquisition method of accounting and fair valuing assets and liabilities acquired, which consisted of the following:
| ● |
Obtained and read the executed Merger Agreement documents to gain an understanding of the underlying terms of the completed acquisition. |
| ● |
Tested management’s business combination accounting analysis, focusing on the completeness and accuracy of the assets acquired and liabilities assumed and the related fair value purchase price allocation. |
| ● |
Obtained the valuation estimates prepared by the Company’s external valuation specialists and challenged management’s analysis of the appropriateness of the valuations allocated to assets acquired and liabilities assumed; including but not limited to, testing of critical inputs, assumptions applied and valuation models utilized. |
| ● |
Utilized our internal valuation specialist to assist with evaluating the related fair value purchase price allocations made to certain identified assets acquired. |
| ● |
Tested the goodwill calculation resulting from the completed acquisition, which is the difference between the total consideration and the fair value of the net assets acquired. |
| ● |
Evaluated the accuracy and completeness of the disclosures made in the consolidated financial statements. |
/s/ Brown, Edwards & Company, L.L.P.
We have served as the Company’s auditor since 2019.
Lynchburg, Virginia
March 30, 2023
and Subsidiaries
CONSOLIDATED BALANCE SHEETS
| December 31, 2022 | December 31, 2021 | |||||||
| Assets | ||||||||
| Current Assets | ||||||||
| Cash and cash equivalents | $ | $ | ||||||
| Investments in securities, at fair value | ||||||||
| Accounts receivable, net | ||||||||
| Prepaids | ||||||||
| Notes receivable | ||||||||
| Due from affiliate | ||||||||
| Other current assets | ||||||||
| Total current assets | ||||||||
| Long-term Assets | ||||||||
| Goodwill | ||||||||
| Intangible assets, net | ||||||||
| Property and equipment, net | ||||||||
| Investment in private company, at cost | ||||||||
| Deferred tax assets, net | ||||||||
| Total long-term assets | ||||||||
| Total assets | $ | $ | ||||||
| Liabilities and Stockholders' Equity | ||||||||
| Current Liabilities | ||||||||
| Accounts payable | $ | $ | ||||||
| Accrued compensation | ||||||||
| Accrued expenses | ||||||||
| Deferred revenue | ||||||||
| Other current liabilities | ||||||||
| Total current liabilities | ||||||||
| Long-term Liabilities | ||||||||
| Due to affiliate | ||||||||
| Class W-1 Warrant and Redeemable Class B Common Stock | ||||||||
| Total long-term liabilities | ||||||||
| Total liabilities | ||||||||
| Stockholders' Equity | ||||||||
| Preferred stock, $ par value, and shares authorized, respectively; issued | ||||||||
| Class A common stock, $ par value, and shares authorized, respectively; and shares issued and outstanding, respectively | ||||||||
| Additional paid-in capital | ||||||||
| Retained earnings | ||||||||
| Total stockholders' equity | ||||||||
| Total liabilities and stockholders' equity | $ | $ | ||||||
The accompanying notes are an integral part of these consolidated financial statements.
and Subsidiaries
CONSOLIDATED STATEMENTS OF OPERATIONS
| For the Years Ended |
||||||||
| December 31, |
||||||||
| 2022 |
2021 |
|||||||
| Revenues |
||||||||
| Revenues - CrossingBridge |
$ | $ | ||||||
| Revenues - Willow Oak |
||||||||
| Revenues - internet |
||||||||
| Total revenues |
||||||||
| Cost of Revenues |
||||||||
| Cost of revenues - internet |
||||||||
| Total cost of revenues |
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| Gross Profit |
||||||||
| Gross profit - CrossingBridge |
||||||||
| Gross profit - Willow Oak |
||||||||
| Gross profit - internet |
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| Total gross profit |
||||||||
| Operating Expenses |
||||||||
| Compensation and benefits |
||||||||
| Stock compensation expenses |
||||||||
| Computer expenses |
||||||||
| Insurance |
||||||||
| Fund distribution, custody, and administrative expenses |
||||||||
| Professional fees |
||||||||
| Research |
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| Travel and entertainment |
||||||||
| Transaction expenses |
||||||||
| Other operating expenses |
||||||||
| Total operating expenses |
||||||||
| Income from operations before income taxes |
||||||||
| Other Income (Expenses) |
||||||||
| W-1 Warrant mark-to-market |
||||||||
| Interest and dividend income |
||||||||
| Realized losses on investments |
( |
) | ||||||
| Unrealized gains (losses) on investments |
( |
) | ||||||
| Other income, net |
||||||||
| Total other income |
||||||||
| Income tax benefit |
||||||||
| Net income |
$ | $ | ||||||
| Net income per share, basic and diluted |
$ | $ | ||||||
| Weighted average number of shares, basic and diluted |
||||||||
The accompanying notes are an integral part of these consolidated financial statements.
and Subsidiaries
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS’ EQUITY
| Common Stock |
Amount |
Additional Paid-in Capital |
Retained Earnings |
Total Stockholders' Equity |
||||||||||||||||
| Balance December 31, 2021 |
$ | $ | $ | $ | ||||||||||||||||
| Net income |
- | |||||||||||||||||||
| Balance March 31, 2022 |
||||||||||||||||||||
| Net income |
- | |||||||||||||||||||
| Balance June 30, 2022 |
||||||||||||||||||||
| Net income |
- | |||||||||||||||||||
| Distribution |
- | ( |
) | ( |
) | |||||||||||||||
| Stock issued pursuant to Merger Agreement |
||||||||||||||||||||
| Additional stock purchased pursuant to Merger Agreement |
||||||||||||||||||||
| Stock based compensation |
- | |||||||||||||||||||
| Balance September 30, 2022 |
( |
) | ||||||||||||||||||
| Net income |
- | |||||||||||||||||||
| Balance December 31, 2022 |
$ | $ | $ | $ | ||||||||||||||||
| Common Stock |
Amount |
Additional Paid-in Capital |
Retained Earnings |
Total Stockholders' Equity |
||||||||||||||||
| Balance December 31, 2020 |
$ | $ | $ | $ | ||||||||||||||||
| Net income |
- | |||||||||||||||||||
| Balance March 31, 2021 |
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| Net income |
- | |||||||||||||||||||
| Distribution |
- | ( |
) | ( |
) | |||||||||||||||
| Balance June 30, 2021 |
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| Net income |
- | |||||||||||||||||||
| Distribution |
- | ( |
) | ( |
) | |||||||||||||||
| Balance September 30, 2021 |
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| Net income |
- | |||||||||||||||||||
| Distribution |
- | ( |
) | ( |
) | |||||||||||||||
| Balance December 31, 2021 |
$ | $ | $ | $ | ||||||||||||||||
The accompanying notes are an integral part of these consolidated financial statements.
and Subsidiaries
CONSOLIDATED STATEMENTS OF CASH FLOWS
Years Ended December 31, 2022 and 2021
| 2022 |
2021 |
|||||||
| Cash flows from operating activities: |
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| Net income |
$ | $ | ||||||
| Adjustments to reconcile net income to net cash flows from operating activities: |
||||||||
| Other income from W-1 Warrant mark-to-market |
( |
) | ||||||
| Stock based compensation |
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| Amortization and depreciation |
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| (Increase) decrease in: |
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| Accounts receivable |
( |
) | ( |
) | ||||
| Prepaids |
( |
) | ||||||
| Other current assets |
( |
) | ||||||
| Deferred tax assets, net |
( |
) | ||||||
| Increase (decrease) in: |
||||||||
| Accounts payable |
||||||||
| Accrued compensation |
||||||||
| Accrued expenses |
( |
) | ||||||
| Deferred revenue |
( |
) | ||||||
| Other current liabilities |
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| Net cash provided by operating activities |
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| Cash flows from investing activities: |
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| Cash from Business Combination |
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| Increase in investments |
( |
) | ( |
) | ||||
| Investment in private company |
( |
) | ||||||
| Decrease in dividend receivable |
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| Net cash provided by (used in) investing activities |
( |
) | ||||||
| Cash flows used in financing activities: |
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| Distributions paid |
( |
) | ( |
) | ||||
| Issuance of Class A common stock |
||||||||
| (Decrease) Increase in due to affiliate |
( |
) | ||||||
| (Increase) Decrease in due from affiliate |
( |
) | ||||||
| Net cash (used in) provided by financing activities |
( |
) | ||||||
| Net increase (decrease) in cash |
( |
) | ||||||
| Cash and cash equivalents at beginning of the period - January 1 |
||||||||
| Cash and cash equivalents at end of the period - December 31 |
$ | $ | ||||||
| Non-cash and other supplemental information: |
||||||||
| Consulting services received in lieu of cash receipts |
$ | $ | ||||||
The accompanying notes are an integral part of these consolidated financial statements.
and Subsidiaries
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1. ORGANIZATION AND SIGNIFICANT ACCOUNTING POLICIES
Organization and Lines of Business
ENDI Corp. (“ENDI”) was incorporated in Delaware on December 23, 2021. On August 11, 2022 (the “Closing Date”), the Company (as defined herein) completed its mergers (the “Mergers”) pursuant to that certain Agreement and Plan of Merger dated December 29, 2021 (as amended, the “Merger Agreement”) by and among ENDI, Enterprise Diversified, Inc. (“Enterprise Diversified”), Zelda Merger Sub 1, Inc., Zelda Merger Sub 2, LLC, CrossingBridge Advisors, LLC (“CrossingBridge” or “CBA”) and Cohanzick Management, LLC (“Cohanzick”). As a result of the Mergers, Enterprise Diversified and CrossingBridge merged with wholly owned subsidiaries of ENDI and now operate as wholly owned subsidiaries of the Company. The Company is the successor registrant to Enterprise Diversified’s Securities and Exchange Commission (“SEC”) registration effective as of the Closing Date of the Mergers.
The reporting period covered by the Annual Report on Form 10-K for the year ended December 31, 2022, reflects the standalone business of CrossingBridge prior to the Closing Date of the Mergers and reflects the consolidated business of the Company, including CrossingBridge and Enterprise Diversified for the post-Merger period from August 12, 2022, through December 31, 2022.
On the Closing Date, Enterprise Diversified and CrossingBridge became wholly owned subsidiaries of ENDI as a result of the Mergers (collectively with the other transactions described in the Merger Agreement, the “Business Combination”). The Business Combination is accounted for as a reverse merger business combination using the acquisition method of accounting in accordance with Accounting Standards Codification 805, Business Combinations, with CrossingBridge representing the accounting acquiror.
Prior to the Closing Date, the Company operated through a single reportable segment, CrossingBridge operations. Beginning on the Closing Date and continuing through the year ended December 31, 2022, the post-Merger period, the Company operated through
Unless the context otherwise requires, and when used herein, the “Company,” “ENDI,” “ENDI Corp.,” “we,” “our,” or “us” refers to ENDI Corp. individually, or as the context requires, collectively with its subsidiaries as of and after the Closing Date, and to CrossingBridge for the periods up to the Closing Date, due to the determination that CrossingBridge represents the accounting acquiror.
CrossingBridge Operations
CBA was formed as a limited liability company on December 23, 2016, under the laws of the State of Delaware. CBA derives its revenue and net income from investment advisory services. CBA is a registered investment adviser under the Investment Advisers Act of 1940, as amended (the “Investment Advisers Act”), and it provides investment advisory services to investment companies (including mutual funds and exchange-traded funds (“ETFs”)) registered under the Investment Company Act of 1940, as amended (“1940 Act”), both as an adviser and as a sub-adviser.
As of December 31, 2022, CBA serves as an advisor to its four proprietary products and sub-advisor to two additional products. As of December 31, 2022, the assets under management (“AUM”) for CBA, including advised and sub-advised funds, were in excess of $
Willow Oak Operations
Beginning on August 12, 2022, the start of the post-Merger period (“Post-Merger”), the Company operates its Willow Oak operations business through its wholly owned subsidiaries, Willow Oak Asset Management, LLC (“Willow Oak”), Willow Oak Capital Management, LLC, Willow Oak Asset Management Affiliate Management Services, LLC (“Willow Oak AMS”) and Willow Oak Asset Management Fund Management Services, LLC (“Willow Oak FMS”).
Willow Oak is an asset management platform focused on partnering with independent asset managers throughout various phases of their firm’s lifecycle to provide comprehensive operational services that support the growth of their businesses. Through minority ownership stakes and bespoke service based contracts, Willow Oak offers affiliated managers strategic consulting, operational support, and growth opportunities. Services to date include consulting, fund launching, investor relations and marketing, accounting and bookkeeping, compliance program monitoring, fund management, and business development support. The Company intends to actively expand its Willow Oak platform with additional offerings that enhance the value of the Willow Oak platform to independent managers across the investing community.
Internet Operations
Beginning Post-Merger, the Company operates its internet operations segment through Sitestar.net, its wholly owned subsidiary. Sitestar.net is an internet service provider that offers consumer and business-grade internet access, e-mail hosting and storage, wholesale managed modem services, web hosting, third-party software as a reseller, and various ancillary services. Sitestar.net provides services to customers in the United States and Canada. In addition, the Company owns a portfolio of domain names.
Other Operations
Beginning Post-Merger, the Company operates its other operations segment which includes nonrecurring or one-time strategic funding or similar activity and other corporate operations that are not considered to be one of the Company’s primary lines of business. Below are the primary activities comprising other operations. Additional investment activity that is not specifically mentioned below is included in the accompanying consolidated financial statements.
eBuild Ventures, LLC
Pursuant to the Merger Agreement, the Company was transferred interests of eBuild Ventures, LLC (“eBuild”) on the Closing Date. eBuild acquires, or provides growth equity to, consumer product businesses in the digital or brick and mortar marketplaces.
Through eBuild, the Company also operates SPACinformer.com (“SPACinformer”), an electronic newsletter service focusing primarily on the aggregation and distribution of publicly-available SPAC data, news, and analytics. During the year ended December 31, 2022, SPACinformer did not contribute material revenue or expenses to eBuild under the other operations segment.
On September 8, 2022, through eBuild, the Company made a capital contribution of $
Financing Arrangement - Triad Guaranty, Inc.
In August 2017, Enterprise Diversified entered into an agreement with several independent third parties to provide debtor-in-possession financing to an unaffiliated third party, Triad Guaranty, Inc., through Triad DIP Investors, LLC. Triad Guaranty, Inc. exited bankruptcy in April 2018, and Enterprise Diversified was subsequently issued an amended and restated promissory note. As of December 31, 2022, Enterprise Diversified reported $
Subsequent to December 31, 2022, Enterprise Diversified was issued a second amended and restated promissory note by Triad DIP Investors, LLC. Amended terms to the promissory note include an increase in the interest rate from
Corporate Operations
Corporate operations include any revenue or expenses derived from the Company’s corporate office operations, as well as expenses related to public company reporting, the oversight of subsidiaries, and other items that affect the overall Company. Also included under corporate operations is investment activity earned through the reinvestment of corporate cash. Corporate investments are typically short-term, highly liquid investments, including vehicles such as mutual funds, ETFs, commercial paper, and corporate and municipal bonds. During the year ended December 31, 2022, through Enterprise Diversified under the other operations segment, the Company invested a total of $
Principles of Consolidation
The accompanying consolidated financial statements include the accounts of the Company, its wholly owned subsidiaries, and those entities in which it otherwise has a controlling financial interest as of and for the year ended December 31, 2022, including: CrossingBridge Advisors, LLC, and for the Post-Merger period beginning on August 12, 2022, Bonhoeffer Capital Management, LLC, eBuild Ventures, LLC, Enterprise Diversified, Inc., Sitestar.net, Inc., Willow Oak Asset Management, LLC, Willow Oak Asset Management Affiliate Management Services, LLC, Willow Oak Asset Management Fund Management Services, LLC, and Willow Oak Capital Management, LLC.
All intercompany accounts and transactions have been eliminated in consolidation.
NOTE 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation
Following Financial Accounting Standards Board guidance related to the accounting for reverse acquisitions, CrossingBridge’s historical carve-out financial statements replaced the Company’s (as the successor registrant to Enterprise Diversified) historical financial statements. Accordingly, the capital structure, and per share amounts presented in CrossingBridge’s historical carve-out financial statements for the periods prior to the Closing Date have been recast to reflect the capital activity in accordance with the Merger Agreement. CrossingBridge’s historical carve-out financial statements as of and for the year ended December 31, 2021, reflecting the recasting, are included as part of the consolidated financial statements presented in the Company’s Annual Report on Form 10-K for the year ended December 31, 2022.
The CrossingBridge Advisors, LLC carve-out for activity prior to the Closing Date, including the period from January 1, 2022 to August 11, 2022, and the year ended December 31, 2021, is part of the Cohanzick financial statements. Prior to the Closing Date of the Mergers, CrossingBridge Advisors, LLC was a wholly owned subsidiary of Cohanzick. The historical financial carve-out statements of CBA reflect the assets, liabilities, revenue, and expenses directly attributable to CBA, as well as allocations deemed reasonable by management, to present the financial position, statements of operations, statements of changes in stockholders’ equity, and statements of cash flows of CBA on a stand-alone basis and do not necessarily reflect the financial position, statements of operations, statements of changes in stockholders’ equity, and statements of cash flows of CBA in the future or what they would have been had CBA been a separate, stand-alone entity during the periods presented that include activity prior to the Closing Date.
Use of Estimates
In accordance with U.S. generally accepted accounting principles (“GAAP”), the preparation of these financial statements requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities at the date of the financial statements and the reported amount of revenues and expenses during the reporting period.
On an ongoing basis, management evaluates its estimates and judgments, including, among other items, those related to fair value of investments, revenue recognition, accrued expenses, financing operations, fair value of goodwill, fixed asset lives and impairment, lease right-of-use assets and impairment, deferred tax assets, liabilities and valuation allowance, other assets, the present value of lease liabilities, and contingencies and litigation. Management bases its estimates and judgments on historical experience and on various other factors that are believed to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying value of assets and liabilities that are not readily apparent from other sources. Actual results may differ from these estimates under different assumptions and conditions. These accounting policies are described at relevant sections in the notes to the consolidated financial statements.
Concentration of Credit Risk
Financial instruments, which potentially subject the Company to concentrations of credit risk, consist of cash, cash equivalents, accounts receivable, and notes receivable. The Company places its cash with high-quality financial institutions and, at times, exceeds the FDIC and CDIC insurance limit. The Company extends credit based on an evaluation of customers’ financial condition, generally without collateral. Exposure to losses on receivables is principally dependent on each customer’s financial condition. The Company monitors its exposure for credit losses and maintains allowances for anticipated losses.
Cash and Cash Equivalents
For purposes of the statements of cash flows, the Company defines cash equivalents as all highly liquid instruments purchased with a maturity and/or liquidation option of three months or less.
Investments
The Company holds various investments through its other operations segment. Investments are typically short-term, highly liquid investments, including vehicles such as: mutual funds, ETFs, commercial paper, and corporate and municipal bonds. Investments held at fair value are remeasured to fair value on a recurring basis. Certain assets held through the other operations segment do not have a readily determinable value as these investments are either not publicly traded, do not have published sales records, or do not routinely make current financial information available. Assets that do not have a readily determinable value are remeasured when additional valuation inputs become observable. See Note 5 for more information.
Accounts Receivable
The Company’s CrossingBridge operations segment records receivable amounts for management fee shares earned on a monthly basis. Management fee shares are calculated and collected on a monthly basis. The Company historically has had no collection issues with management fee shares and the overall possibility for non-collection is extremely low. For these reasons, management has determined that it is not necessary to record an allowance against these receivables.
The Company’s Willow Oak operations segment records receivable amounts for management fee shares and fund management services revenue earned on a monthly basis. Management fee shares and fund management services fees are calculated and collected on either a monthly or quarterly basis as dictated by the respective partnership agreement. The Company historically has had no collection issues with management fee shares and fund management receivables and the overall possibility for non-collection is extremely low. For these reasons, management has determined that it is not necessary to record an allowance against these receivables.
The Company’s Willow Oak operations segment also records receivable amounts for performance fee shares earned on an annual basis. Performance fee shares are dependent upon exceeding specified relative or absolute investment return thresholds, which vary by affiliate relationship, and typically include annual measurement periods. The Company historically has had no collection issues with performance fee shares and the overall possibility for non-collection is extremely low. For these reasons, management has determined that it is not necessary to record an allowance against these receivables.
The Company grants credit in the form of unsecured accounts receivable to its customers through its internet operations segment. The estimate of the allowance for doubtful accounts, which is the recorded allowance for doubtful accounts and bad debt expense, is based on management’s assessment of current economic conditions and historical collection experience with each customer. Specific customer receivables are considered past due when they are outstanding beyond their contractual terms and are written off from the allowance for doubtful accounts when an account or invoice is individually determined to be uncollectible. The internet operations segment attempts to reduce the risk of non-collection by including a late-payment fee and a manual-processing-payment fee to customer accounts. Receivables more than 90 days past due are no longer included in accounts receivable and are turned over to a collection agency. Accounts receivable more than 30 days are considered past due.
As of December 31, 2022 and 2021, allowances offsetting gross accounts receivable on the accompanying consolidated balance sheets totaled $
Notes Receivable
The Company does not routinely issue notes receivable in the ordinary course of business, but when a business opportunity arises, a subsidiary may issue a note if it appears to be favorable to the Company. Notes receivable are recorded at their principal amount and interest is accrued quarterly based on the applicable interest rate. The Company makes an assessment of the ultimate collectability of each note receivable on an annual basis based upon the financial condition of the borrower and adjusts the carrying value of the note receivable as deemed appropriate.
Property and Equipment
Property and equipment are recorded at cost. Expenditures for maintenance and repairs are charged to operations as incurred, while renewals and betterments are capitalized. Gains and losses on disposals are included in the results of operations. Depreciation is computed using the straight-line method based on the estimated useful lives for each of the following asset classifications.
| Furniture and fixtures (in years) | ||||
| Equipment (in years) |
The Company evaluates at each balance sheet date whether events and circumstances have occurred that indicate possible impairment. If there are indications of impairment, then the Company uses estimated future undiscounted cash flows of the related asset or asset grouping over the remaining life in measuring whether the assets are recoverable. In the event such cash flows are not expected to be sufficient to recover the recorded asset values, the assets are written down to their estimated fair value. Property and equipment to be disposed are reported at the lower of carrying amount or fair value of the asset less cost to sell.
Goodwill and Other Intangible Assets
Goodwill is the excess of the purchase price over the fair value of identifiable net assets acquired in business combinations accounted for under the acquisition method of accounting. The Company tests its goodwill annually as of December 31, or more often if events and circumstances indicate that those assets might not be recoverable. As of the year ended December 31, 2022, the Company reported $
Impairment testing of goodwill is required at the reporting-unit level (operating segment or one level below operating segment). The impairment test involves calculating the impairment of goodwill based solely on the excess of the carrying value of the reporting unit over the fair value of the reporting unit. Prior to performing the impairment test, the Company may make a qualitative assessment of the likelihood of goodwill impairment to determine whether a detailed quantitative analysis is required. The Company estimates the fair value of its reporting units using discounted expected future cash flows.
Intangible assets (other than goodwill) consist of customer relationships, trade names, and domain names held under the Willow Oak and internet operations segments. As of December 31, 2022, the Company owned
As described in Note 4, during the three-month period ended December 31, 2022, the Company recorded a measurement period adjustment to the preliminary recorded fair value assigned to the value of the Company’s acquired intangible assets, specifically the domain names held under the internet operations segment, reducing the preliminarily assessed fair value from $
As a result of the Company’s impairment testing of goodwill and other intangible assets on December 31, 2022, the Company determined that there was no impairment adjustment necessary.
Amortization expenses on intangible assets during the years ended December 31, 2022 and 2021 totaled $
W-1 Warrant and Redeemable Class B Common Stock
Pursuant to the Merger Agreement, the Company issued
Accrued Compensation
Accrued compensation represents performance-based bonuses that have not yet been paid. Bonuses are subjective and are based on numerous factors including, but not limited to, individual performance, the underlying funds’ performance, and profitability of the firm, as well as the consideration of future outlook. Accrued bonus amounts can fluctuate due to a future perceived change in any one or more of these factors. Additionally, differences between historical, current, and future personnel allocations could significantly impact the comparability of bonus expenses period over period.
Other Accrued Expenses
Other accrued expenses represent incurred but not-yet-paid expenses from payroll accruals, professional fees, and other accrued taxes.
Leases
The Company records right-of-use assets and lease liabilities arising from both financing and operating leases that contain terms extending longer than one year. The Company does not recognize right-of-use assets or lease liabilities for short-term leases (those with original terms of 12 months or less). In making our determinations, the Company combines lease and non-lease elements of its leases.
Concentration of Revenue
CBA is the adviser to four registered investment companies under the CrossingBridge Family of Funds. The advised funds are the CrossingBridge Low Duration High Yield Fund, CrossingBridge Ultra-Short Duration Fund, CrossingBridge Responsible Credit Fund, and the CrossingBridge Pre-Merger SPAC ETF. The combined AUM for these advised funds was approximately $
CBA fee revenues earned from advised funds, sub-advised funds, and service agreements for the years ended December 31, 2022 and 2021 included in the accompanying consolidated statements of operations are detailed below.
| Years Ended December 31, | ||||||||
| CrossingBridge Operations Revenue | 2022 | 2021 | ||||||
| Advised fund fee revenue | $ | $ | ||||||
| Sub-advised fund fee revenue | ||||||||
| Service fee revenue | ||||||||
| Total fee revenue | $ | $ | ||||||
If CBA were to lose a significant amount of AUM, the Company’s revenue would also decrease.
Revenue Recognition
CrossingBridge Operations Revenue
Management fee shares earned through the CrossingBridge operations segment are recorded on a monthly basis and are included in revenue on the accompanying consolidated statements of operations. The Company has performed an assessment of its revenue contracts under the CrossingBridge operations segment and has not identified any contract assets or liabilities.
Willow Oak Operations Revenue
Management fee shares and fund management services fees earned through the Willow Oak operations segment are recorded on a monthly basis and are included in revenue on the accompanying consolidated statements of operations. Performance fee shares are dependent upon exceeding specified relative or absolute investment return thresholds, which vary by affiliate relationship, and typically include annual measurement periods. Performance fee shares are recognized only when it is determined that there is no longer potential for significant reversal, such as when a fund’s performance exceeds a contractual threshold at the end of a specified measurement period. Consequently, a portion of the performance fee shares recognized may be partially or wholly related to services performed in prior periods. The Company has performed an assessment of its revenue contracts under the Willow Oak operations segment and has not identified any contract assets or liabilities.
A summary of revenue earned through Willow Oak operations during the Post-Merger period from August 12, 2022 through December 31, 2022 and included on the accompanying consolidated statements of operations for the years ended December 31, 2022 are detailed below:
| Year Ended December 31, | ||||
| Willow Oak Operations Revenue | 2022 | |||
| Management fee revenue | $ | |||
| Fund management services revenue | ||||
| Performance fee revenue | ||||
| Total revenue | $ | |||
Internet Operations Revenue
The Company generates revenue through its internet operations segment from consumer and business-grade internet access, e-mail hosting and storage, wholesale managed modem services, e-mail and web hosting, third-party software as a reseller, and various ancillary services in the United States and Canada. Services include narrow-band (dial-up and ISDN) and broadband services (DSL, fiber-optic, and wireless), web hosting, and additional related services to consumers and businesses. Customers may also subscribe to web hosting plans to include email access and storage. Customer contracts through the internet operations segment can be structured as monthly or annual contracts. Under annual contracts, the subscriber pays a one-time annual fee, which is recognized as revenue ratably over the life of the contract. Under monthly contracts, the subscriber is billed monthly and revenue is recognized for the period to which the service relates. Domain name registration revenue is recognized at the point of registration. Sales of hardware are recognized as revenue upon delivery and acceptance of the product by the customer. Sales are adjusted for any returns or allowances. Management has concluded that the nature of the performance obligation is cyclical with a very low possibility for nonperformance. Contract liabilities (deferred revenue) are recognized in the amount of collections received in advance of services to be performed. No contract assets are recognized or incurred.
Deferred Revenue
Deferred revenue represents collections from customers in advance of internet services to be performed. Revenue is recognized in the period service is provided. Total deferred revenue recorded under the internet operations segment as of December 31, 2022 was $
Income Taxes
Income taxes for ENDI Corp. are accounted for under the asset and liability method, which requires the recognition of deferred tax assets and liabilities for the expected future tax benefits or consequences of events that have been included in the consolidated financial statements. Under this method, deferred tax assets and liabilities are determined on the basis of the differences between the financial statement and tax basis of assets and liabilities using enacted tax rates in effect for the year in which the differences are expected to reverse. Deferred tax assets are reduced by a valuation allowance when, in the opinion of management, it is more likely than not that some portion or all of the deferred tax assets will not be realized. Deferred tax assets and liabilities are adjusted for the effects of changes in tax laws and rates on the date of enactment, inclusive of the recent tax reform act. ENDI Corp. filed its first tax return for the year ended December 31, 2021, which is open to potential examination by the Internal Revenue Service for three years.
As described further in Note 4, during the three-month period ended December 31, 2022, the Company recorded a measurement period adjustment to the preliminary recorded fair value assigned to the Company’s acquired net deferred tax assets on the Closing Date. The fair value of acquired net deferred tax assets was increased from $
As of December 31, 2022, the Company reported $
In as much as CBA had a single member prior to the Closing Date, it had historically been treated as a disregarded entity for income tax purposes. Consequently, Federal and state income taxes have not been provided for periods prior to the Closing Date as its single member was taxed directly on CBA’s earnings. CBA activity subsequent to the Closing Date will be consolidated within ENDI Corp.’s tax return that will be filed for the year ended December 31, 2022 and has been included in the income tax provision for the year ended December 31, 2022. See Note 10 for more information.
During the year ended December 31, 2022, the Company reported $
Income (Loss) Per Share
Basic income (loss) per share is computed by dividing net income (loss) available to common stockholders by the weighted average number of shares of common stock outstanding during the period.
In periods of net loss, diluted loss per share is calculated similarly to basic loss per share because the impact of all potentially dilutive common shares is anti-dilutive. In periods of net income, diluted earnings per share is computed using the more dilutive of the “two-class method” or the “treasury method.” Dilutive earnings per share under the “two-class method” is calculated by dividing net income available to common stockholders as adjusted for the participating securities, by the weighted-average number of shares outstanding plus the dilutive impact of all other potentially dilutive common shares, consisting primarily of common shares underlying common stock equity incentives. Dilutive earnings per share under the “treasury method” is calculated by dividing net income available to common stockholders by the weighted-average number of shares outstanding plus the dilutive impact of all potentially dilutive common shares, consisting primarily of common shares underlying common stock equity incentives.
The number of potentially dilutive shares for the year ended December 31, 2022, consisting of the Class W-1 and W-2 Warrants issued pursuant to the Merger Agreement, was
Recently Issued Accounting Pronouncements
In June 2016, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”) No. 2016-13, “Financial Instruments - Credit Losses” (Topic 326). The guidance eliminates the probable initial recognition threshold that was previously required prior to recognizing a credit loss on financial instruments. The credit loss estimate should now reflect an entity’s current estimate of all future expected credit losses. Under the previous guidance, an entity only considered past events and current conditions. In April 2019, the FASB further clarified the scope of the credit losses standard and addressed issues related to accrued interest receivable balances, recoveries, variable interest rates, and prepayments. In May 2019, the FASB issued further guidance to provide entities with an option to irrevocably elect the fair value option applied on an instrument-by-instrument basis for eligible financial instruments. In November 2019, the FASB issued further guidance on expected recoveries for purchased financial assets with credit deterioration, and transition refiled for troubled debt restructurings, disclosures related to accrued interest receivables, and financial assets secured by collateral maintenance provisions. The guidance is effective for fiscal years beginning after December 15, 2022, including interim periods within those fiscal years. Early adoption is permitted for fiscal years beginning after December 15, 2018, including interim periods within those fiscal years. The adoption of certain amendments of this guidance must be applied on a modified retrospective basis and the adoption of the remaining amendments must be applied on a prospective basis. The Company currently expects that the adoption of this guidance may change the way it assesses the collectability of its receivables and recoverability of other financial instruments. The Company will adopt this guidance as of January 1, 2023. The adoption of this guidance is not expected to have a material impact on the Company’s consolidated financial statements.
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)”. This update simplifies the accounting for convertible debt and convertible preferred stock by removing the requirements to separately present certain conversion features in equity. In addition, the amendments in the ASU also simplify the guidance in ASC 815-40, Derivatives and Hedging: Contracts in Entity’s Own Equity, by removing certain criteria that must be satisfied in order to classify a contract as equity. Finally, the amendments revise the guidance on calculating earnings per share, requiring use of the if-converted method for all convertible instruments and rescinding an entity’s ability to rebut the presumption of share settlement for instruments that may be settled in cash or other assets. This new guidance is required to be adopted by public entities in years beginning after December 15, 2023, with early adoption permitted. The Company has adopted this guidance as of January 1, 2022. The adoption of this guidance did not have a material impact on the Company’s consolidated financial statements.
In October 2021, the FASB issued ASU 2021-08, “Accounting for Contract Assets and Contract Liabilities from Contracts with Customers” (Topic 805). This update provided that an acquiror no longer records deferred revenue of the acquiree based on its acquisition date fair value. Rather, the acquiror accounts for contract assets and liabilities in accordance with Accounting Standards Codification (“ASC”) 606 as if it had originated the contract (i.e., continue to account for such assets and liabilities as has historically been done by the acquiree in accordance with ASC 606). This new guidance is required to be adopted by public entities in years beginning after December 15, 2022 on a prospective basis. Early adoption is permitted. The Company has adopted this guidance as of December 31, 2021. The adoption of this guidance did not have a material impact on the Company’s consolidated financial statements.
The Company does not believe that any other recently issued effective standards, or standards issued but not yet effective, if adopted, would have a material effect on the accompanying consolidated financial statements.
NOTE 3. RELATED PARTY TRANSACTIONS
CrossingBridge Advisors, LLC
Historical Shared Expenses Prior to Consummation of the Merger
The Company, through CrossingBridge Advisors, LLC, and its majority shareholder, Cohanzick, the historical sole member of CBA that is majority owned by the Company’s CEO and director, David Sherman, shared certain staff, office facilities, and administrative services. The parties involved had agreed to allocate these expenses based on the AUM of each party for activity occurring prior to the consummation of the Merger. These allocated expenses are reported under the CrossingBridge operations segment in the accompanying consolidated statements of operations in the categories for which the utilization of services relates. A summary of the expenses allocated from Cohanzick to CBA for the years ended December 31, 2022 and 2021 are noted below.
| Years Ended December 31, | ||||||||
| Cohanzick Management Expense Allocation | 2022 | 2021 | ||||||
| Employee compensation and benefit expenses allocated | $ | $ | ||||||
| Owner compensation and benefit expenses allocated | ||||||||
| Other allocated expenses | ||||||||
| Total allocated expenses | $ | $ | ||||||
As of the years ended December 31, 2022 and 2021, the due to affiliate balance between CBA and Cohanzick reported on the Company’s accompanying consolidated balance sheets was $
Services Agreement with Cohanzick
In connection with the closing of the Merger, CrossingBridge entered into a Services Agreement (the “Services Agreement”) with Cohanzick pursuant to which CrossingBridge s will make available to Cohanzick certain of its employees to provide investment advisory, portfolio management and other services to Cohanzick and, through Cohanzick, to Cohanzick’s clients. Any such individuals will be subject to the oversight and control of Cohanzick, and any services so provided to Cohanzick or a client of Cohanzick will be provided by such CBA employees in the capacity of a supervised person of Cohanzick. Cohanzick additionally may use the systems of CBA or its affiliates for its daily operations; provided that appropriate policies, procedures, and other safeguards are established to assure that (a) the books and records of each of CBA and Cohanzick are created and maintained in a manner so as to be clearly separate and distinct from those of the other person and the clients of such person, and (b) confidential client and/or other material non-public information relating to the investment advisory activities of CBA or Cohanzick, as applicable, or other proprietary information regarding either such person or its clients, is safeguarded and maintained for the benefit of such person. As consideration for its services, Cohanzick will pay CBA a quarterly fee equal to
During the year ended December 31, 2022, CBA earned $
License Agreement between CBA and Cohanzick
Pursuant to the Merger Agreement, the Company, through CBA and Cohanzick entered into a license agreement. The license agreement provides CBA with the right to use and occupy certain office space originally leased by Cohanzick from a third-party landlord pursuant to a lease agreement dated November 23, 2018. The initial term of the license agreement runs through the first anniversary of the commencement date of the license agreement and will automatically renew for subsequent one year terms unless otherwise earlier terminated pursuant to the terms thereof. Pursuant to the license agreement, CBA shall pay Cohanzick a fee equal to Licensee’s Share (as defined herein) of the following charges: a monthly base rental and increases in certain taxes and operating expenses. “Licensee’s Share” means for a calendar month that occurs in whole or in part during the term, the fraction, expressed as a percentage, the numerator of which is the number of CBA employees that occupied the licensed premises as of the first business day of such calendar month, and the denominator of which is the number of Cohanzick and CBA employees that occupied the premises as of the first business day of such calendar month, as reasonably determined by Cohanzick.
During the year ended December 31, 2022, CBA paid $
Willow Oak Asset Management, LLC
Services Agreement with Arquitos
The Company, through Willow Oak, was party to a service-based contract with Arquitos Investment Manager, LP, Arquitos Capital Management, LLC, Arquitos Epicus, LP, and Arquitos Capital Offshore Master, Ltd. (collectively “Arquitos”), which are managed by Steven Kiel, the Company’s director, and earned revenue for services provided to Arquitos including: strategic planning, investor relations, marketing, operations, compliance program monitoring and legal coordination, accounting and bookkeeping, annual audit and tax coordination, and liaison to third-party service providers. In exchange for these services, Steven Kiel, through Arquitos, was contracted to perform ongoing consulting services for the benefit of Willow Oak in the following areas: strategic development, marketing, networking, and fundraising. In addition to the foregoing exchange of services, Willow Oak also earned an annual performance revenue fee share through its contract with Arquitos. As of December 31, 2022, this service contract and revenue fee share have expired. During the year ended December 31, 2022, the Company earned $
Enterprise Diversified, Inc.
Due from Affiliate
Pursuant to the Merger Agreement, Enterprise Diversified agreed to reimburse Cohanzick for certain fees and expenses, comprising primarily of legal and accounting fees incurred as part of the share registration process. These fees were initially recorded and reimbursed for a total of $
NOTE 4. MERGER AND BUSINESS COMBINATION WITH CROSSINGBRIDGE ADVISORS, LLC AND ENTERPRISE DIVERSIFIED, INC.
Overview
As previously announced on December 29, 2021, ENDI entered into the Merger Agreement with Enterprise Diversified, Zelda Merger Sub 1, Inc., a Delaware corporation (“First Merger Sub”), Zelda Merger Sub 2, LLC, a Delaware limited liability company (“Second Merger Sub”), CrossingBridge and Cohanzick.
Pursuant to the terms of the Merger Agreement, Enterprise Diversified merged with First Merger Sub, a wholly owned subsidiary of the Company, with Enterprise Diversified being the surviving entity, and CrossingBridge merged with Second Merger Sub, a wholly owned subsidiary of the Company, with CrossingBridge being the surviving entity. In connection with the Mergers, each share of common stock of Enterprise Diversified was converted into the right to receive one share of Class A common stock, par value $
Pursuant to the Merger Agreement, Enterprise Diversified agreed to reimburse Cohanzick certain fees and expenses, which amount to $
The holders of the Class B Common Stock, voting together as a single class, have the right to designate a number of directors of the Company’s board of directors (rounded up to the nearest whole number) equal to the percentage of the Company’s common shares beneficially owned by the holders of Class B Common Stock and their affiliates at the time of such designation, provided however, that for purposes of this designation right, the holders of the Company’s Class B Common Stock, voting together as a single class, shall have the right to designate not more than a majority of the members of the Company’s board of directors then in office, and, provided further that so long as holders of Class B Common Stock and their affiliates beneficially own at least
On the Closing Date, the Company also entered into a stockholder agreement (the “Stockholder Agreement”) with Cohanzick pursuant to which from and after the date that the holders of Class B Common Shares are no longer entitled to elect at least one director to our board of directors pursuant to the Certificate of Incorporation as described above, the following provisions apply: so long as David Sherman, Cohanzick and any of their successors or assigns (collectively, the “Principal Stockholder”) and their Affiliates (as defined in the Stockholder Agreement) beneficially own at least
On the Closing Date, the Company also entered into a voting agreement (the “Voting Agreement”) with Cohanzick and Steven Kiel and Arquitos Capital Offshore Master, Ltd., in their capacity as the voting party (the “Voting Party”), pursuant to which the Voting Party shall vote all of its securities of the Company entitled to vote in the election of the Company’s directors that such Voting Party or its affiliates own (collectively, the “Voting Shares”) to elect or maintain in office the directors designated by Cohanzick (the “Cohanzick Member Designees”). The Voting Agreement will terminate automatically on the earlier of the date that (i) the holders of the Company’s Class B Common Stock or Cohanzick’s right to designate the Cohanzick Member Designees is terminated or expires for any reason, (ii) Steven Kiel is no longer a member of the Company’s board of directors and (iii) the Voting Party and its affiliates cease to hold any Voting Shares. The Voting Agreement will also terminate automatically with respect to any Voting Shares no longer held by the Voting Party or its affiliates.
The Business Combination is accounted for as a reverse merger business combination using the acquisition method of accounting in accordance with ASC 805, Business Combinations, with CrossingBridge representing the accounting acquiror. Because the Merger qualifies as a reverse acquisition, and given that CrossingBridge was a private company at the time of the Merger and therefore its value was not readily determinable, the fair value of the Merger consideration was deemed to be equal to the fair value of Enterprise Diversified at the Closing Date. As part of the purchase price allocation, the Company engaged an independent third-party valuation consultant. In determining the total consideration for the ASC 805 analysis, the valuation consultant utilized the volume weighted average price of Enterprise Diversified’s stock from the Merger announcement date, December 30, 2021, through the Closing Date. In doing so, the valuation consultant considered that the Company’s stock was very thinly traded and the public float was only approximately
Purchase Price Allocation
The following table summarizes the fair values of assets acquired and liabilities assumed as of the Closing Date.
| Cash | $ | |||
| Accounts receivable, net | ||||
| Note receivable | ||||
| Prepaid expenses | ||||
| Other current assets | ||||
| Fixed assets | ||||
| Goodwill | ||||
| Intangible assets | ||||
| Deferred tax assets, net | ||||
| Accounts payable | ( | ) | ||
| Accrued expenses | ( | ) | ||
| Deferred revenue | ( | ) | ||
| Other current liabilities | ( | ) | ||
| Total consideration | $ |
The excess of purchase consideration over the fair value of net tangible and intangible assets acquired was recorded as goodwill, which is primarily attributed to the future economic benefits arising from other assets acquired that could not be individually identified and separately recognized including expected synergies and the assembled workforce in place. The fair values assigned to tangible and intangible assets acquired and liabilities assumed are based on management’s estimates and assumptions and may be subject to change as additional information is received. The primary areas where provisional amounts have been used relate to the fair values of intangible assets acquired, certain tangible assets and liabilities acquired, notes receivable, deferred income tax assets and liabilities, and residual goodwill.
During and as of the three-month period ended December 31, 2022, the Company recorded three measurement period adjustments to the preliminary recorded values assigned to certain Company assets acquired as of the Closing Date. The fair value assigned to the Company’s note receivable was reduced from $
While the total amount of residual goodwill remains preliminary, the Company has assigned the residual goodwill based on an internal analysis that compared the anticipated future economic benefit to be generated by each operating segment with the post-merger carrying value of the respective operating segment. By way of this analysis, management has allocated the balance of the residual goodwill to the CrossingBridge operations segment as of December 31, 2022.
The following table sets forth the components of identifiable intangible assets acquired and their estimated useful lives as of the Closing Date.
| Intangible Assets | Estimated Fair Value | Estimated Useful Life (in years) | ||||||
| Customer relationships - Sitestar.net | $ | |||||||
| Customer relationships - Willow Oak | $ | |||||||
| Trade Name - Sitestar.net | $ | |||||||
| Trade Name - Willow Oak | $ | |||||||
| Internet Domains - Sitestar.net | $ | Indefinite | ||||||
The estimated fair values of (i) the customer relationships were determined using the multi-period excess earnings method, (ii) the trade names were determined using the relief from royalty income approach, and (iii) the internet domain names were estimated using a market approach. The approaches used to estimate the fair values use significant unobservable inputs including revenue and cash flow forecasts, customer attrition rates, and appropriate discount rates.
Unaudited Pro Forma Information
The unaudited pro forma financial information presented below summarizes the combined results of operations for the Company as though the Merger was completed on January 1, 2021.
The unaudited pro forma financial information for all periods presented includes, among other items, amortization charges from acquired intangible assets, retention and other compensation expenses accounted for separately from the purchase accounting, and the related tax effects, but excludes the impacts of any expected operational synergies. The unaudited pro forma financial information as presented below is for informational purposes only and is not necessarily indicative of the results of operations that would have been achieved had the Merger actually been completed on January 1, 2021.
The unaudited pro forma financial information for the years ended December 31, 2022 and 2021 combines the historical results of the Company for those periods, the historical results of Enterprise Diversified for the periods prior to the Closing Date, and the effects of the pro forma adjustments discussed above. The unaudited pro forma financial information is as follows:
| Years Ended December 31 | ||||||||
| 2022 | 2021 | |||||||
| Revenues | $ | $ | ||||||
| Net income | ||||||||
| Net income per share | $ | $ | ||||||
Revenues from the Business Combination recognized by the Company from the Closing Date to December 31, 2022 totaled $
NOTE 5. FAIR VALUE OF ASSETS AND LIABILITIES
GAAP defines fair value as the amount that would be received from the sale of an asset or paid for the transfer of a liability in an orderly transaction between market participants at the measurement date, and establishes a hierarchy for disclosing assets and liabilities measured at fair value based on the inputs used to value them. The fair value hierarchy maximizes the use of observable inputs and minimizes the use of unobservable inputs. Observable inputs are based on market pricing data obtained from sources independent of the Company. Unobservable inputs reflect management’s judgment about the assumptions market participants would use in pricing the asset or liability. The fair value hierarchy includes three levels based on the objectivity of the inputs as follows:
| ● | Level I - inputs are quoted prices in active markets as of the measurement date for identical assets and liabilities that the Company has the ability to access. This category includes exchange-traded mutual funds and equity securities; | |
|
|
| |
| ● | Level II - inputs are inputs other than quoted prices included in Level I that are observable for the asset or liability, either directly or indirectly. Level II inputs include quoted prices for similar assets and liabilities in active markets, and inputs other than quoted prices that are observable for the asset or liability, such as interest rates or yield curves, that are observable at commonly quoted intervals; this category includes mortgage-backed securities, asset-backed securities, corporate debt securities, certificates of deposit, commercial paper, U.S. agency and municipal debt securities, U.S. Treasury securities, and derivative contracts; and | |
|
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| |
| ● | Level III - inputs are unobservable inputs for the asset or liability and include situations where there is little, if any, market activity for the asset or liability. The measurements are highly subjective. |
The availability of observable inputs can vary and is affected by a variety of factors. To the extent that valuation is based on models or inputs that are less observable or unobservable in the market, the determination of fair value requires more judgment. Accordingly, the degree of judgment exercised in determining fair value is the greatest for assets or liabilities categorized in Level III.
In certain cases, the inputs used to measure fair value may fall into different levels of the fair value hierarchy. In such cases, an investment level within the fair value hierarchy is based on the lowest level of input that is significant to the fair value measurement. The Company’s assessment of the significance of a particular input to the fair value measurement in its entirety requires judgment and considers factors specific to the investment.
The following table presents information about the Company’s assets measured at fair value as of the years ended December 31, 2022 and December 31, 2021.
| Level I | Level II | Level III | ||||||||||
| December 31, 2022 | Quoted Prices in Active Markets for Identical Assets | Significant Other Observable Inputs | Significant Unobservable Inputs | |||||||||
| Investments in securities, at fair value (cost $) | $ | $ | $ | |||||||||
| W-1 Warrant and Class B Common Stock liability, at fair value | ||||||||||||
| Total | $ | $ | $ | |||||||||
| Level I | Level II | Level III | ||||||||||
| December 31, 2021 | Quoted Prices in Active Markets for Identical Assets | Significant Other Observable Inputs | Significant Unobservable Inputs | |||||||||
| Investments in securities, at fair value (cost $) | $ | $ | $ | |||||||||
| W-1 Warrant and Class B Common Stock liability, at fair value | ||||||||||||
| Total | $ | $ | $ | |||||||||
Assets and Liabilities Measured at Fair Value on a Recurring Basis
As discussed previously, through Enterprise Diversified, the Company holds Level I investments, among which include shares of CrossingBridge Ultra-Short Duration Fund, CrossingBridge Low Duration High Yield Fund, and CrossingBridge Responsible Credit Fund, which are SEC registered mutual funds for which CBA is the adviser, as well as shares of CrossingBridge Pre-Merger SPAC ETF, which is an ETF also advised by CBA. As of December 31, 2022, Level I investments held by the Company in investment products advised by CBA totaled $
As discussed previously, pursuant to the Merger Agreement, the Company issued
| W-1 Warrant and Class B Common Stock | ||||
| Inputs below are as of December 31, 2022 | ||||
| ENDI Corp. closing stock price | $ | |||
| Warrant exercise price | $ | |||
| Estimated equity volatility over remaining term | % | |||
| ENDI Corp. annual rate of dividends | % | |||
| Bond equivalent yield | % | |||
| Remaining term of W-1 Warrant |
| |||
| Discount for lack of marketability | % | |||
| August 11, 2022 | $ | |||
| Less: Unrealized gains reported in other income | ||||
| September 30, 2022 | ||||
| Less: Unrealized gains reported in other income | ||||
| December 31, 2022 | $ | |||
On the Closing Date, the fair market value of the liability associated with the W-1 Warrant and Class B common shares was recorded for $
Assets and Liabilities Measured at Fair Value on a Non-Recurring Basis
The Company analyzes its intangible assets — goodwill, customer relationships, trade names, and domain names — on an annual basis or more often if events or changes in circumstances indicate potential impairments.
As discussed previously, Enterprise Diversified holds promissory notes receivable from Triad DIP Investors, LLC and
NOTE 6. INTANGIBLE ASSETS AND PROPERTY AND EQUIPMENT
The Company’s intangible assets as of December 31, 2022 are included below.
| December 31, 2022 | ||||
| Customer relationships | $ | |||
| Domain names | ||||
| Trade names | ||||
| Less: accumulated amortization | ( | ) | ||
| Intangible assets, net | $ | |||
The Company did not report any comparable intangible assets as of December 31, 2021.
Amortization expenses on intangible assets during the year ended December 31, 2022 totaled $
The cost of property and equipment as of December 31, 2022 consisted of the following:
| December 31, 2022 | ||||
| Property and equipment | $ | |||
| Less: accumulated depreciation | ( | ) | ||
| Property and equipment, net | $ | |||
The Company did not report any comparable property and equipment as of December 31, 2021.
Depreciation expense was $
NOTE 7. SEGMENT INFORMATION
Prior to the Closing Date, the Company operated through a single reportable segment, CrossingBridge operations. Beginning on August 12, 2022 and continuing through the year ended December 31, 2022, the Post-Merger period, the Company operated through
The CrossingBridge operations segment includes revenue and expenses derived from investment management and advisory and sub-advisory services.
Beginning on August 12, 2022, the Willow Oak operations segment includes revenues and expenses derived from various joint ventures, service offerings, and initiatives undertaken in the asset management industry.
Beginning on August 12, 2022, the internet operations segment includes revenue and expenses related to our sale of internet access, e-mail and hosting, storage, and other ancillary services. Our internet segment includes revenue generated by operations in both the United States and Canada. Included in accompanying consolidated statements of operations for the year ended December 31, 2022, the internet operations segment generated revenue of $
Beginning on August 12, 2022, the other operations segment includes revenue and expenses from nonrecurring or one-time strategic funding or similar activity and any revenue or expenses derived from corporate office operations, as well as expenses related to public company reporting, the oversight of subsidiaries, and other items that affect the overall Company.
Summarized financial information concerning the Company’s reportable segments is shown in the following tables for the years ended December 31, 2022, and 2021.
| Year Ended December 31, 2022 | CrossingBridge | Willow Oak | Internet | Other | Consolidated | |||||||||||||||
| Revenues | $ | $ | $ | $ | $ | |||||||||||||||
| Cost of revenue | ||||||||||||||||||||
| Operating expenses | ||||||||||||||||||||
| Other income (expense) | ( | ) | ( | ) | ||||||||||||||||
| Net income (loss) | ( | ) | ( | ) | ||||||||||||||||
| Goodwill | ||||||||||||||||||||
| Identifiable assets | $ | $ | $ | $ | $ | |||||||||||||||
| Year Ended December 31, 2021 | CrossingBridge | Willow Oak | Internet | Other | Consolidated | |||||||||||||||
| Revenues | $ | $ | $ | $ | $ | |||||||||||||||
| Cost of revenue | ||||||||||||||||||||
| Operating expenses | ||||||||||||||||||||
| Other income | ||||||||||||||||||||
| Net income | ||||||||||||||||||||
| Goodwill | ||||||||||||||||||||
| Identifiable assets | $ | $ | $ | $ | $ | |||||||||||||||
NOTE 8. COMMITMENTS AND CONTINGENCIES
Leases
As of December 31, 2022 and 2021, the Company had no long-term leases that required right-of-use assets or lease liabilities to be recognized.
In accordance with ongoing accounting policy elections, the Company does not recognize right-of-use assets or lease liabilities for short-term or month-to-month leases. Total rental expenses attributed to short-term leases, including its membership agreement through ENDI Corp. and its license agreement through CBA, for the years ended December 31, 2022 and 2021 were $
There are no other operating lease costs for the years ended December 31, 2022 and 2021.
Other Commitments
Registration Rights Agreement
As previously reported, on the Closing Date, the Company entered into the RRA with certain stockholders that are deemed to be affiliates of ENDI immediately following the Closing Date, pursuant to which such stockholders’ Class A Common Shares, including the Class A Common Shares underlying any warrants issued in connection with the Mergers, will be registered for resale on a registration statement to be filed by the Company with the SEC under the Securities Act of 1933, as amended. On August 31, 2022, the Company amended the Registration Rights Agreement to extend the deadline by which the Company has to prepare and file or cause to be prepared and filed with the SEC a registration statement under the Securities Act of 1933, as amended, registering certain securities as set forth in the RRA to on or before May 1, 2023.
Litigation & Legal Proceedings
Enterprise Diversified, Inc. (f/k/a Sitestar Corporation) v. Frank Erhartic, Jr.
On April 12, 2016, Enterprise Diversified filed a civil action complaint against Frank Erhartic, Jr. (the “Former CEO”), Enterprise Diversified’s former CEO and director (prior to December 14, 2015) and an owner of record of Enterprise Diversified’s common stock, alleging, among other things, that the Former CEO engaged in, and caused Enterprise Diversified to engage in, to its detriment, a series of unauthorized and wrongful related party transactions, including: causing Enterprise Diversified to borrow certain amounts from the Former CEO’s mother unnecessarily and at a commercially unreasonable rate of interest; converting certain funds of Enterprise Diversified for personal rent payments to the Former CEO; commingling in land trusts certain real properties owned by Enterprise Diversified and real properties owned by the Former CEO; causing Enterprise Diversified to pay certain amounts to the Former CEO for lease payments under an unauthorized lease as to a storage facility owned by the Former CEO; causing Enterprise Diversified to pay rent on its corporate headquarters owned by the Former CEO’s ex-wife in amounts commercially unreasonable and excessive, and making real estate tax payments thereon for the personal benefit of the Former CEO; converting to the Former CEO and/or absconding with five motor vehicles owned by Enterprise Diversified; causing Enterprise Diversified to pay real property and personal property taxes on numerous properties owned personally by the Former CEO; causing Enterprise Diversified to pay personal credit card debt of the Former CEO; causing Enterprise Diversified to significantly overpay the Former CEO’s health and dental insurance for the benefit of the Former CEO; and causing Enterprise Diversified to pay the Former CEO’s personal automobile insurance. Enterprise Diversified is seeking, among other relief available, monetary damages in excess of $
NOTE 9. STOCKHOLDERS’ EQUITY
Classes of Shares
As of December 31, 2022, the Company’s Certificate of Incorporation authorizes the issuance of an aggregate of
Class A Common Stock
As of December 31, 2022,
Holders of the Company’s Class A Common Stock are entitled to
Subject to applicable law and the rights, if any, of the holders of any outstanding series of Preferred Stock or any other outstanding class or series of stock of the Company, having a preference over or the right to participate with the Class A Common Stock with respect to the payment of dividends and other distributions in cash, property or shares of stock of the Company, holders of the Company’s Class A Common Stock are entitled to receive such dividends and other distributions in cash, property or shares of ENDI Corp. stock when, as and if declared thereon by the Company’s board of directors from assets or funds legally available therefor. Upon a liquidation, dissolution or winding up of the Company’s affairs, after payment or provision for payment of the debts and other liabilities of the Company and of the preferential and other amounts, if any, to which the holders of ENDI Corp. Preferred Stock shall be entitled, the holders of all outstanding shares of ENDI Corp.’s Class A Common Stock will be entitled to receive, on a pro rata basis, the remaining assets of the Company available for distribution ratably in proportion to the number of shares held by each such stockholder.
Class B Common Stock
As of December 31, 2022,
Holders of the Company’s Class B Common Stock are entitled to
Preferred Stock
As of December 31, 2022, the Company had
The voting, dividend, distribution, and any other rights of holders of any series of the Company’s Preferred Stock will be as described in the applicable Certificate of Designation designating such series of Preferred Stock.
NOTE 10. INCOME TAXES
The provision for federal and state income taxes for the year ended December 31, 2022 included the following:
| Year Ended December 31, | ||||
| 2022 | ||||
| Current benefit: | ||||
| Federal | $ | |||
| State | ||||
| Deferred benefit: | ||||
| Federal | ||||
| State | ||||
| Valuation allowance | ||||
| Total income tax benefit | $ | |||
Deferred tax assets and liabilities reflect the net effect of temporary differences between the carrying amount of assets and liabilities used for income tax purposes. Significant components of the Company’s deferred tax assets and liabilities at December 31, 2022 are as follows:
| December 31, 2022 | ||||
| Deferred tax assets: | ||||
| Carrying value differences | $ | |||
| Net operating loss carryforwards | ||||
| Net deferred tax assets | ||||
| Deferred tax liabilities: | ||||
| Carrying value differences | ( | ) | ||
| Net deferreds | $ | |||
A reconciliation between the Company’s effective tax rate on income from continuing operations and the statutory tax rate for the year ended December 31, 2022, is as follows:
| Year Ended December 31, | ||||
| 2022 | ||||
| Net income tax (provision) benefit at federal statutory rate of | $ | |||
| Adjustments to reconcile to the effective rate: | ||||
| State and local income (tax) benefit, net of federal tax benefits | ||||
| W-1 Warrant mark-to-market | ||||
| Stock compensation expense | ( | ) | ||
| Other | ||||
| Effective income tax (provision) benefit | $ | |||
As mentioned in Note 2, in as much as CBA had a single member prior to the Closing Date, it had historically been treated as a disregarded entity for income tax purposes. Consequently, Federal and state income taxes have not been provided for periods prior to the Closing Date as its single member was taxed directly on CBA’s earnings. During 2021, CBA’s historical single member made a pass-through entity tax (“PTET”) election with New York State. The PTET is an optional tax that partnerships or New York S corporations may annually elect to pay on certain income for tax years beginning on or after January 1, 2021. If an eligible partnership or New York S corporation elects to pay the PTET, its partners, members, or shareholders subject to personal income tax may be eligible for a PTET credit on their New York State income tax returns. CBA’s carve-out piece of the 2021 PTET election made by CBA’s historical single member was $
GAAP provides for the recognition of deferred tax assets if realization of such assets is more likely than not. As of December 31, 2022, the Company had federal and state net operating loss carryforwards of approximately $
As described further in Note 4, during the three-month period ended December 31, 2022, the Company recorded a measurement period adjustment to the preliminary recorded fair value assigned to the Company’s acquired net deferred tax assets on the Closing Date. The fair value of acquired net deferred tax assets was increased from $
The Company is required to recognize in the financial statements the impact of a tax position, if that position is not more likely than not of being sustained on audit, based on the technical merits of the position. The Company’s policy is to record interest and penalties related to unrecognized tax benefits in income tax expense. There was unrecognized tax benefit as of December 31, 2022. The Company does not expect that its uncertain tax positions will materially change in the next 12 months. No liability related to uncertain tax positions is recorded on the accompanying financial statements related to uncertain tax positions.
The Company operates in various tax jurisdictions and is subject to audit by various tax authorities. To the extent of the Company’s tax loss carryovers, the Company’s federal and state tax returns will be subject to examination by the tax authorities from the earliest years in which such tax attributes arise. While the amount of those tax loss carryovers continues to be subject to adjustment, any assessment of additional tax for those prior years is generally barred, except for the three most recent years (federal) or four most recent years (state). Tax contingencies are based upon their technical merits, relative law, and the specific facts and circumstances as of each reporting period. Changes in facts and circumstances could result in material changes to the amounts recorded for such tax contingencies.
During the year ended December 31, 2022, the Company reported $
NOTE 11. SUBSEQUENT EVENTS
Subsequent to December 31, 2022, the Company, through eBuild, made a capital contribution of $
Management has evaluated all subsequent events from December 31, 2022, through March 30, 2023, the date the consolidated financial statements were issued. Management concluded that no additional subsequent events have occurred that would require recognition or disclosure in the consolidated financial statements.
EXHIBIT 4.1
DESCRIPTION OF THE REGISTRANT’S SECURITIES
REGISTERED PURSUANT TO SECTION 12
OF THE SECURITIES EXCHANGE ACT OF 1934
As of December 31, 2022, ENDI Corp. (the “Company) had one class of securities registered under Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), its Class A Common Stock, par value $0.0001 per share (the “Class A Common Stock”).
Description of Class A Common Stock
The following description of the Company’s Class A Common Stock is a summary and does not purport to be complete. It is subject to and qualified in its entirety by reference to the Company’s Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”) and the Company’s Amended and Restated Bylaws (the “Bylaws”), each of which is incorporated by reference as an exhibit to the Annual Report on Form 10-K of which this Exhibit 4.1 is a part. The Company encourages you to read its Certificate of Incorporation, Bylaws, and the applicable provisions of the Delaware General Corporation Law (the “DGCL”) for additional information.
Authorized Capital Stock
The Company’s authorized capital shares consist of 14,000,000 shares of Class A Common Stock, par value $0.0001 per share, 1,800,000 shares of Class B Common Stock, par value $0.0001 per share (the “Class B Common Stock” and together with the Class A Common Stock, the “Common Stock”), and (iii) 2,000,000 shares of preferred stock, par value $0.0001 per share (“Preferred Stock”). As of December 31, 2022, there were 5,452,383 shares of our Class A Common Stock and 1,800,000 shares of our Class B Common Stock issued and outstanding and no shares of Preferred Stock issued and outstanding.
The number of authorized shares of any of the Class A Common Stock, Class B Common Stock, or Preferred Stock may be increased or decreased (but not below the number of shares then outstanding) by the affirmative vote of the holders of a majority in voting power of the stock of the Company entitled to vote, irrespective of Section 242(b)(2) of the DGCL (or any successor provision thereto), and no vote of the holders of any of the Class A Common Stock, Class B Common Stock, or Preferred Stock voting separately as a class shall be required, unless a vote of any such holder is required pursuant to the Company’s Certificate of Incorporation of the Corporation.
If the Company subdivides or combines the outstanding shares of Class A Common Stock, the outstanding shares of Class B Common Stock will be proportionately subdivided or combined. If the Company subdivides or combines the outstanding shares of Class B Common Stock, the outstanding shares of Class A Common Stock will be proportionately subdivided or combined.
Voting Rights
Except as may otherwise be provided in the Company’s Certificate of Incorporation or by applicable law, each holder of Class A Common Stock shall be entitled to one vote for each share of Class A Common Stock held by such holder on all matters on which stockholders generally or holders of Class A Common Stock as a separate class are entitled to vote; provided that to the fullest extent permitted by applicable law, holders of Class A Common Stock will have no voting power as to any amendment to the Company’s Certificate of Incorporation that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to the Certificate of Incorporation or pursuant to the DGCL.
The holders of Class A Common Stock shall vote together as a single class with the Class B Common Stock or together with the holders of one more series of Preferred Stock if the holders of such Preferred Stock are entitled to vote together with the holders of the Company’s Common Stock, as a single class, on all matters submitted to a vote of the stockholders generally.
Dividend Rights
Subject to applicable law and the rights, if any, of the holders of any outstanding series of Preferred Stock or any other outstanding class or series of stock of the Company, having a preference over or the right to participate with the Class A Common Stock with respect to the payment of dividends and other distributions in cash, property or shares of stock of the Company, holders of Class A Common Stock shall be entitled to receive such dividends and other distributions in cash, property or shares of stock of the Company when, as and if declared thereon by the Company’s board of directors (the “Board”) out of the assets or funds of the Company that are by applicable law available therefor.
Distribution Rights
In the event of any liquidation, dissolution or winding up of the Company’s affairs, after payment or provision for payment of the debts and other liabilities of the Company and of the preferential and other amounts, if any, to which the holders of Preferred Stock shall be entitled, the holders of all outstanding shares of Class A Common Stock will be entitled to receive, on a pro rata basis, the remaining assets of the Company available for distribution ratably in proportion to the number of shares held by each such stockholder.
Other Rights
Holders of the Company’s Class A Common Stock have no preemptive or conversion rights or other subscription rights.
Applicable Anti-Takeover Law
Set forth below is a summary of the provisions of the Company’s Certificate of Incorporation and Bylaws and the DGCL that could have the effect of delaying or preventing a change in control of the Company. The following description is only a summary, and it is qualified by reference to the Certificate of Incorporation, Bylaws and relevant provisions of the DGCL.
Business Combinations with Interested Stockholders
Pursuant to the Company’s Certificate of Incorporation, while the Company has expressly elected to not be governed by Section 203 of the DGCL, it shall not engage in any business combination (as defined in the Certificate of Incorporation), at any point in time at which shares of Common Stock are registered under Section 12(b) or 12(g) of the Exchange Act, with any interested stockholder (as defined in the Certificate of Incorporation) for a period of three years following the time that such stockholder became an interested stockholder, unless: (i) prior to such time, the Board approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder; (ii) upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock (as defined in the Certificate of Incorporation) of the Company outstanding at the time the transaction commenced, excluding for purposes of determining the voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder) those shares owned by (A) persons who are directors and also officers and (B) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or (iii) at or subsequent to such time, the business combination is approved by the Board and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting stock of the Company which is not owned by the interested stockholder. The could have the effect of delaying, deferring or preventing a change in control of the Company.
Board of Directors Vacancies
Subject to certain exceptions, the Company’s Certificate of Incorporation authorizes the Company’s Board to fill vacant directorships. In addition, the number of directors constituting the Company’s board of directors may be set by resolution adopted by the affirmative vote of a majority of the entire Board.
Special Meeting of Stockholders
The Company’s Certificate of Incorporation provides that subject to the rights of the holders of any outstanding series of Preferred Stock and any rights granted pursuant to the Stockholders Agreement (as defined in the Certificate of Incorporation), special meetings of the stockholders of the Company may only be called by or at the direction of the Board or the Chairman of the Board.
Advance Notice Requirements for Stockholder Proposals and Director Nominations
The Company’s Bylaws provide that stockholders seeking to bring business before the Company’s annual meeting of stockholders, or to nominate candidates for election as directors at the Company’s annual meeting of stockholders, must provide timely notice of their intent in writing. To be timely, a stockholder’s notice must be delivered to the Company’s Secretary at the Company’s principal executive offices not less than 90 days nor more than 120 days prior to the first anniversary of the preceding year’s annual meeting; provided, however, that in the event that the date of the annual meeting is advanced by more than 30 days, or delayed by more than 70 days, from the anniversary date of the previous year’s meeting, or if no annual meeting was held in the preceding year, notice by the stockholder to be timely must be so delivered not earlier than the close of business on the 120th day prior to such annual meeting and not later than the close of business on the later of the 90th day prior to such annual meeting or the 10th day following the day on which a public announcement (as defined in the Certificate of Incorporation) of the date of such meeting is first made by the Company. These provisions may preclude the Company’s stockholders from bringing matters before the Company’s annual meeting of stockholders or from making nominations for directors at the Company’s annual meeting of stockholders.
Authorized but Unissued Shares
The Company’s authorized but unissued shares of Common Stock and Preferred Stock are available for future issuance without stockholder approval and may be utilized for a variety of corporate purposes, including future public offerings to raise additional capital, corporate acquisitions and employee benefit plans. The existence of authorized but unissued and unreserved Common Stock and Preferred Stock could render more difficult or discourage an attempt to obtain control of the Company by means of a proxy contest, tender offer, merger or otherwise.
Exclusive Forum
The Company’s Certificate of Incorporation provides that unless the Company consents in writing to an alternative forum, the Court of Chancery of the State of Delaware shall, to the fullest extent permitted by applicable law, be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Company, (ii) any action asserting a claim of breach of a fiduciary duty owed by any current or former director, officer, stockholder or employee of the Company to the Company or the Company’s stockholders, (iii) any action asserting a claim arising under any provision of the DGCL, the Company’s Certificate of Incorporation or the Company’s Bylaws or as to which the DGCL confers jurisdiction on the Court of Chancery of the State of Delaware, or (iv) any action asserting a claim governed by the internal affairs doctrine.
The federal district courts of the United States of America shall, to the fullest extent permitted by applicable law, be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the federal securities laws of the United States, including, in each case, the applicable rules and regulations promulgated thereunder.
Any person or entity that acquires or holds any interest in any security of the Company shall be deemed to have notice of and consented to this provision.
Transfer Agent
The Company’s transfer agent and registrar is Colonial Stock Transfer Company, Inc. whose address is 66 Exchange Place, Suite 100, Salt Lake City, Utah 84111.
Listing
The Company’s Common Stock is quoted on the OTCQB Tier of the OTC Markets Group, Inc. under the symbol “ENDI”.
EXHIBIT 10.12
ENDI CORP.
RESTRICTED STOCK UNIT AWARD GRANT NOTICE
(2022 Omnibus Equity Incentive Plan)
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Grantee: |
[___] |
|
Date of Grant: |
|
|
Number of Restricted Stock Units: |
[___] |
|
Vesting Commencement Date: |
[Date of Grant] |
|
Vesting: |
100% of the Restricted Stock Units shall be vested on the Vesting Commencement Date. |
ENDI CORP., a Delaware corporation
________________________
By: [___]
Its: [___]
Acknowledged and Agreed as of ____ day of ______, ______.
Name: ____________________________________
RESTRICTED STOCK UNIT AWARD AGREEMENT
THIS RESTRICTED STOCK UNIT AWARD AGREEMENT (together with the above grant notice (the “Grant Notice”), this “Agreement”) is made and entered into as of the date set forth on the Grant Notice by and between ENDI Corp. (the “Company”) and the individual (the “Grantee”) set forth on the Grant Notice.
WHEREAS, pursuant to the ENDI Corp. 2022 Omnibus Equity Incentive Plan (the “Plan”), the Administrator (the “Administrator”) has determined that it is to the advantage and best interest of the Company to grant to the Grantee this award of Restricted Stock Units (the “Restricted Stock Units”) as set forth in the Grant Notice and subject to the terms and provisions of the Plan, which is incorporated herein by reference, and this Agreement (the “Award”).
NOW, THEREFORE, in consideration of the mutual agreements contained herein, the Grantee and the Company hereby agree as follows:
1. Acceptance of Agreement. Grantee has reviewed all of the provisions of the Plan, the Grant Notice and this Restricted Stock Unit Award Agreement. By accepting this Award, Grantee agrees that this Award is granted under and governed by the terms and conditions of the Plan, the Grant Notice and this Restricted Stock Unit Award Agreement. Grantee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator on questions relating to the Plan, the Grant Notice, this Agreement. If Grantee signs this Agreement and Grant Notice electronically, Grantee’s electronic signature of this Agreement shall have the same validity and effect as a signature affixed by hand. Notwithstanding the foregoing, this Restricted Stock Unit Award shall only become effective, and shall be deemed granted, on the date the Company’s stockholders approve the Plan (such date, the “Effective Date”); provided, however, that if the Company’s stockholders do not approve the Plan on or prior to the Company’s 2023 annual stockholder meeting, the Restricted Stock Unit Award granted hereunder shall be null and void.
2. Grant of Award. The Restricted Stock Units granted hereunder pursuant to Section 9 of the Plan shall be subject to the terms and provisions of the Plan, and all capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Plan. For purposes of this Agreement, “Termination” shall mean the termination of the employment or provision of services of the Grantee with the Company and all Affiliates thereof (including because of the Grantee’s employer ceasing to be an Affiliate of the Company); and “Termination Date” shall mean the date of the Termination. For purposes of this Agreement, Termination will not occur when Grantee goes on a military leave, a sick leave or another bona fide leave of absence that was approved by the Company in writing if the terms of the leave provide for continued service crediting, or when continued service crediting is required by Applicable Laws. Notwithstanding the foregoing, an approved leave of absence for six months or less, which does not in fact exceed six months, will not result in Termination for purposes of this Agreement. However, Termination will occur when approved leave described in this Section 2 ends, unless Grantee immediately returns to active work. Grantee shall be entitled to receive dividends declared during the Restricted Period with respect to the number of Shares covered by Restricted Stock Units, which dividends will be paid to Grantee at the time (and to the extent) Shares in respect of the related Restricted Stock Units are delivered to the Grantee under the terms of this Agreement.
3. Vesting.
3.1 Subject to the provisions of the Plan and Section 3.2 of this Agreement, the Restricted Stock Units shall vest as described in the Grant Notice (the “Vesting Date”), subject to the Grantee not experiencing a Termination prior to the Vesting Date.
3.2 If the Grantee experiences a Termination for any reason other than due to death or Disability prior to the Vesting Date, as of the Termination Date all then-unvested Restricted Stock Units shall be forfeited. If Grantee experiences a Termination due to death or Disability prior to the Vesting Date all then-unvested Restricted Stock Units which could by their terms otherwise become vested during the 90-day period following such Termination will remain outstanding for 90 days (and all other Restricted Stock Units will become forfeited on the date of such Termination).
4. Transfer and Settlement of Restricted Stock Units. The Restricted Stock Units issued under this Agreement may not be Transferred (as such term is defined in the Plan). In addition, Grantee shall not sell any Shares received with respect to Restricted Stock Units (even following settlement of Restricted Stock Units) at a time when Applicable Laws, regulations or Company’s or underwriter trading policies prohibit such sale. The applicable portion of this Award (to the extent then becomes vested) shall be settled by the Company by the payment of cash or the issuance and delivery of Shares in the year following the year in which the applicable Vesting Date occurs with respect to the applicable portion of the Award which became vested on such Vesting Date, but no later than March 15 of such following year. Any issuance of Shares shall be made only in whole Shares, and any fractional shares shall be distributed in an equivalent cash amount.
5. General.
5.1 Governing Law. This Agreement shall be governed by and construed under the laws of the State of Delaware.
5.2 Community Property. Without prejudice to the actual rights of the spouses as between each other, for all purposes of this Agreement, the Grantee shall be treated as agent and attorney-in-fact for that interest held or claimed by his or her spouse with respect to this Award and the parties hereto shall act in all matters as if the Grantee was the sole owner of this Award. This appointment is coupled with an interest and is irrevocable.
5.3 No Employment Rights. Nothing contained herein shall be construed as an agreement by the Company or any of its subsidiaries, express or implied, to employ the Grantee or contract for the Grantee’s services, to restrict the Company’s or such subsidiary’s right to discharge the Grantee or cease contracting for the Grantee’s services or to modify, extend or otherwise affect in any manner whatsoever the terms of any employment agreement or contract for services which may exist between the Grantee and the Company or any Affiliate.
5.4 Application to Other Stock. In the event any capital stock of the Company or any other corporation shall be distributed on, with respect to or in exchange for Shares underlying Restricted Stock Units as a stock dividend, stock split, reclassification, recapitalization or similar transaction in connection with any merger or reorganization or otherwise, all restrictions, rights and obligations set forth in this Agreement shall apply with respect to such other capital stock to the same extent as they are, or would have been applicable, to the Shares underlying Restricted Stock Units on or with respect to which such other capital stock was distributed, and references to “Company” in respect of such distributed stock shall be deemed to refer to the company to which such distributed stock relates.
5.5 No Third-Party Benefits. Except as otherwise expressly provided in this Agreement, none of the provisions of this Agreement shall be for the benefit of, or enforceable by, any third-party beneficiary.
5.6 Successors and Assigns. Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns.
5.7 No Assignment. Except as otherwise provided in this Agreement, the Grantee may not assign any of his or her rights under this Agreement without the prior written consent of the Company, which consent may be withheld in its sole discretion. The Company shall be permitted to assign its rights or obligations under this Agreement so long as such assignee agrees to perform all of the Company’s obligations hereunder.
5.8 Severability. The validity, legality or enforceability of the remainder of this Agreement shall not be affected even if one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable in any respect.
5.9 Equitable Relief. The Grantee acknowledges that, in the event of a threatened or actual breach of any of the provisions of this Agreement, damages alone will be an inadequate remedy, and such breach will cause the Company great, immediate and irreparable injury and damage. Accordingly, the Grantee agrees that the Company shall be entitled to injunctive and other equitable relief, and that such relief shall be in addition to, and not in lieu of, any remedies it may have at law or under this Agreement.
5.10 Jurisdiction. Any suit, action or proceeding with respect to this Agreement, or any judgment entered by any court in respect of any thereof, shall be brought in any court of competent jurisdiction in the State of Delaware, and the Company and the Grantee hereby submit to the exclusive jurisdiction of such courts for the purpose of any such suit, action, proceeding or judgment. The Grantee and the Company hereby irrevocably waive (i) any objections which it may now or hereafter have to the laying of the venue of any suit, action or proceeding arising out of or relating to this Agreement brought in any court of competent jurisdiction in the State of Delaware and (ii) any claim that any such suit, action or proceeding brought in any such court has been brought in any inconvenient forum.
5.11 Taxes. By agreeing to this Agreement, the Grantee represents that he or she has reviewed with his or her own tax advisors the federal, state, local and foreign tax consequences of the transactions contemplated by this Agreement and that he or she is relying solely on such advisors and not on any statements or representations of the Company or any of its agents. The Company shall be entitled to require a cash payment by or on behalf of the Grantee and/or to deduct from the Shares or cash issuable hereunder or from other compensation payable to the Grantee the minimum amount of any sums required by federal, state or local tax law to be withheld (or other such sums that that will not cause adverse accounting consequences for the Company and is permitted under applicable withholding rules promulgated by the Internal Revenue Service or another applicable governmental entity) with respect to the Restricted Stock Unit Award.
5.12 Section 409A Compliance. The intent of the parties is that payments and benefits under this Agreement comply with Section 409A of Code to the extent subject thereto, and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted and be administered to be in compliance therewith. Notwithstanding anything contained herein to the contrary, to the extent required to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, the Grantee shall not be considered to have separated from service with the Company for purposes of this Agreement and no payment shall be due to the Grantee under this Agreement on account of a separation from service until the Grantee would be considered to have incurred a “separation from service” from the Company within the meaning of Section 409A of the Code. Any payments described in this Agreement that are due within the “short-term deferral period” as defined in Section 409A of the Code shall not be treated as deferred compensation unless applicable law requires otherwise. Notwithstanding anything to the contrary in this Agreement, to the extent that any amounts are payable upon a separation from service and such payment would result in accelerated taxation and/or tax penalties under Section 409A of the Code, such payment, under this Agreement or any other agreement of the Company, shall be made on the first business day after the date that is six (6) months following such separation from service (or death, if earlier). The Company makes no representation that any or all of the payments described in this Agreement will be exempt from or comply with Section 409A of the Code and makes no undertaking to preclude Section 409A of the Code from applying to any such payment. If it is determined that the terms of this Agreement have been structured in a manner that would result in adverse tax treatment under Section 409A of the Code, the parties agree to cooperate in taking all reasonable measures to restructure the arrangement to minimize or avoid such adverse tax treatment without materially impairing Grantee’s economic rights. The Grantee shall be solely responsible for the payment of any taxes and penalties incurred under Section 409A.
5.13 Headings. The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend or interpret the scope of this Agreement or of any particular section.
5.14 Number and Gender. Throughout this Agreement, as the context may require, (a) the masculine gender includes the feminine and the neuter gender includes the masculine and the feminine; (b) the singular tense and number includes the plural, and the plural tense and number includes the singular; (c) the past tense includes the present, and the present tense includes the past; (d) references to parties, sections, paragraphs and exhibits mean the parties, sections, paragraphs and exhibits of and to this Agreement; and (e) periods of days, weeks or months mean calendar days, weeks or months.
5.15 Electronic Delivery and Disclosure. The Company may, in its sole discretion, decide to deliver or disclose, as applicable, any documents related to this Award granted under the Plan, future awards that may be granted under the Plan, the prospectus related to the Plan, the Company’s annual reports or proxy statements by electronic means or to request Grantee’s consent to participate in the Plan by electronic means, including, but not limited to, the Securities and Exchange Commission’s Electronic Data Gathering, Analysis, and Retrieval system or any successor system (“EDGAR”). Grantee hereby consents to receive such documents delivered electronically or to retrieve such documents furnished electronically (including on EDGAR), as applicable, and agrees to participate in the Plan through any online or electronic system established and maintained by the Company or another third party designated by the Company.
5.16 Data Privacy. Grantee agrees that all of Grantee’s information that is described or referenced in this Agreement and the Plan may be used by the Company, its affiliates and the designated broker and its affiliates to administer and manage Grantee’s participation in the Plan.
5.17 Acknowledgments of Grantee. Grantee has reviewed the Plan and this Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement, fully understands all provisions of the Plan and this Agreement and, by accepting the Grant Notice, acknowledges and agrees to all of the provisions of the Plan and this Agreement.
5.18 Complete Agreement. The Grant Notice, this Agreement, and the Plan constitute the parties’ entire agreement with respect to the subject matter hereof and supersede all agreements, representations, warranties, statements, promises and understandings, whether oral or written, with respect to the subject matter hereof.
5.19 Waiver of Jury Trial. TO THE EXTENT EITHER PARTY INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN US (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH LITIGATION), ALL OF THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY. THIS WAIVER WILL APPLY TO ALL CAUSES OF ACTION THAT ARE OR MIGHT BE INCLUDED IN SUCH ACTION, INCLUDING CLAIMS RELATED TO THE ENFORCEMENT OR INTERPRETATION OF THIS AGREEMENT, ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION, OR SIMILAR CAUSES OF ACTION, AND IN CONNECTION WITH ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF DAMAGES BETWEEN OR AMONG US OR BETWEEN OR AMONG ANY OF OUR OWNERS, AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS.
5.20 Waiver. The Grantee acknowledges that a waiver by the Company of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any other provision of this Agreement, or of any subsequent breach by the Grantee.
5.21 Signature in Counterparts. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
5.22 Amendments and Termination. To the extent permitted by the Plan, this Agreement may be wholly or partially amended, altered or terminated at any time or from time to time by the Administrator or the Board, but no amendment, alteration or termination shall be made that would materially impair the rights of a Grantee under this Restricted Stock Unit Award Agreement without such Grantee’s consent.
EXHIBIT 10.13
ENDI CORP.
RESTRICTED STOCK UNIT AWARD GRANT NOTICE
(2022 Omnibus Equity Incentive Plan)
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Grantee: |
[___] |
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Date of Grant: |
|
|
Number of Restricted Stock Units: |
[___] |
|
Vesting Commencement Date: |
[January 1, 2023] |
|
Vesting: |
25% of the Restricted Stock Units shall vest on the second anniversary of the Vesting Commencement Date (the “Initial Vesting Date”). The remaining 75% shall vest in three equal annual installments on the subsequent three anniversaries of the Initial Vesting Date, such that 100% of the Restricted Stock Units shall be vested on the 5th anniversary of the Vesting Commencement Date. |
ENDI CORP., a Delaware corporation
________________________
By: [___]
Its: [___]
Acknowledged and Agreed as of ____ day of ______, ______.
Name: ____________________________________
RESTRICTED STOCK UNIT AWARD AGREEMENT
THIS RESTRICTED STOCK UNIT AWARD AGREEMENT (together with the above grant notice (the “Grant Notice”), this “Agreement”) is made and entered into as of the date set forth on the Grant Notice by and between ENDI Corp. (the “Company”) and the individual (the “Grantee”) set forth on the Grant Notice.
WHEREAS, pursuant to the ENDI Corp. 2022 Omnibus Equity Incentive Plan (the “Plan”), the Administrator (the “Administrator”) has determined that it is to the advantage and best interest of the Company to grant to the Grantee this award of Restricted Stock Units (the “Restricted Stock Units”) as set forth in the Grant Notice and subject to the terms and provisions of the Plan, which is incorporated herein by reference, and this Agreement (the “Award”).
NOW, THEREFORE, in consideration of the mutual agreements contained herein, the Grantee and the Company hereby agree as follows:
1. Acceptance of Agreement. Grantee has reviewed all of the provisions of the Plan, the Grant Notice and this Restricted Stock Unit Award Agreement. By accepting this Award, Grantee agrees that this Award is granted under and governed by the terms and conditions of the Plan, the Grant Notice and this Restricted Stock Unit Award Agreement. Grantee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator on questions relating to the Plan, the Grant Notice, this Agreement. If Grantee signs this Agreement and Grant Notice electronically, Grantee’s electronic signature of this Agreement shall have the same validity and effect as a signature affixed by hand. Notwithstanding the foregoing, this Restricted Stock Unit Award shall only become effective, and shall be deemed granted, on the date the Company’s stockholders approve the Plan (such date, the “Effective Date”); provided, however, that if the Company’s stockholders do not approve the Plan on or prior to the Company’s 2023 annual stockholder meeting, the Restricted Stock Unit Award granted hereunder shall be null and void.
2. Grant of Award. The Restricted Stock Units granted hereunder pursuant to Section 9 of the Plan shall be subject to the terms and provisions of the Plan, and all capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Plan. For purposes of this Agreement, “Termination” shall mean the termination of the employment or provision of services of the Grantee with the Company and all Affiliates thereof (including because of the Grantee’s employer ceasing to be an Affiliate of the Company); and “Termination Date” shall mean the date of the Termination. For purposes of this Agreement, Termination will not occur when Grantee goes on a military leave, a sick leave or another bona fide leave of absence that was approved by the Company in writing if the terms of the leave provide for continued service crediting, or when continued service crediting is required by Applicable Laws. Notwithstanding the foregoing, an approved leave of absence for six months or less, which does not in fact exceed six months, will not result in Termination for purposes of this Agreement. However, Termination will occur when approved leave described in this Section 2 ends, unless Grantee immediately returns to active work. Grantee shall be entitled to receive dividends declared during the Restricted Period with respect to the number of Shares covered by Restricted Stock Units, which dividends will be paid to Grantee at the time (and to the extent) Shares in respect of the related Restricted Stock Units are delivered to the Grantee under the terms of this Agreement.
3. Vesting.
3.1 Subject to the provisions of the Plan and Section 3.2 of this Agreement, the Restricted Stock Units shall vest as described in the Grant Notice (the “Vesting Date”), subject to the Grantee not experiencing a Termination prior to the Vesting Date.
3.2 If the Grantee experiences a Termination for any reason other than due to death or Disability prior to the Vesting Date, as of the Termination Date all then-unvested Restricted Stock Units shall be forfeited. If Grantee experiences a Termination due to death or Disability prior to the Vesting Date all then-unvested Restricted Stock Units which could by their terms otherwise become vested during the 90-day period following such Termination will remain outstanding for 90 days (and all other Restricted Stock Units will become forfeited on the date of such Termination).
4. Transfer and Settlement of Restricted Stock Units. The Restricted Stock Units issued under this Agreement may not be Transferred (as such term is defined in the Plan). In addition, Grantee shall not sell any Shares received with respect to Restricted Stock Units (even following settlement of Restricted Stock Units) at a time when Applicable Laws, regulations or Company’s or underwriter trading policies prohibit such sale. The applicable portion of this Award (to the extent then becomes vested) shall be settled by the Company by the payment of cash or the issuance and delivery of Shares in the year following the year in which the applicable Vesting Date occurs with respect to the applicable portion of the Award which became vested on such Vesting Date, but no later than March 15 of such following year. Any issuance of Shares shall be made only in whole Shares, and any fractional shares shall be distributed in an equivalent cash amount.
5. General.
5.1 Governing Law. This Agreement shall be governed by and construed under the laws of the State of Delaware.
5.2 Community Property. Without prejudice to the actual rights of the spouses as between each other, for all purposes of this Agreement, the Grantee shall be treated as agent and attorney-in-fact for that interest held or claimed by his or her spouse with respect to this Award and the parties hereto shall act in all matters as if the Grantee was the sole owner of this Award. This appointment is coupled with an interest and is irrevocable.
5.3 No Employment Rights. Nothing contained herein shall be construed as an agreement by the Company or any of its subsidiaries, express or implied, to employ the Grantee or contract for the Grantee’s services, to restrict the Company’s or such subsidiary’s right to discharge the Grantee or cease contracting for the Grantee’s services or to modify, extend or otherwise affect in any manner whatsoever the terms of any employment agreement or contract for services which may exist between the Grantee and the Company or any Affiliate.
5.4 Application to Other Stock. In the event any capital stock of the Company or any other corporation shall be distributed on, with respect to or in exchange for Shares underlying Restricted Stock Units as a stock dividend, stock split, reclassification, recapitalization or similar transaction in connection with any merger or reorganization or otherwise, all restrictions, rights and obligations set forth in this Agreement shall apply with respect to such other capital stock to the same extent as they are, or would have been applicable, to the Shares underlying Restricted Stock Units on or with respect to which such other capital stock was distributed, and references to “Company” in respect of such distributed stock shall be deemed to refer to the company to which such distributed stock relates.
5.5 No Third-Party Benefits. Except as otherwise expressly provided in this Agreement, none of the provisions of this Agreement shall be for the benefit of, or enforceable by, any third-party beneficiary.
5.6 Successors and Assigns. Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns.
5.7 No Assignment. Except as otherwise provided in this Agreement, the Grantee may not assign any of his or her rights under this Agreement without the prior written consent of the Company, which consent may be withheld in its sole discretion. The Company shall be permitted to assign its rights or obligations under this Agreement so long as such assignee agrees to perform all of the Company’s obligations hereunder.
5.8 Severability. The validity, legality or enforceability of the remainder of this Agreement shall not be affected even if one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable in any respect.
5.9 Equitable Relief. The Grantee acknowledges that, in the event of a threatened or actual breach of any of the provisions of this Agreement, damages alone will be an inadequate remedy, and such breach will cause the Company great, immediate and irreparable injury and damage. Accordingly, the Grantee agrees that the Company shall be entitled to injunctive and other equitable relief, and that such relief shall be in addition to, and not in lieu of, any remedies it may have at law or under this Agreement.
5.10 Jurisdiction. Any suit, action or proceeding with respect to this Agreement, or any judgment entered by any court in respect of any thereof, shall be brought in any court of competent jurisdiction in the State of Delaware, and the Company and the Grantee hereby submit to the exclusive jurisdiction of such courts for the purpose of any such suit, action, proceeding or judgment. The Grantee and the Company hereby irrevocably waive (i) any objections which it may now or hereafter have to the laying of the venue of any suit, action or proceeding arising out of or relating to this Agreement brought in any court of competent jurisdiction in the State of Delaware and (ii) any claim that any such suit, action or proceeding brought in any such court has been brought in any inconvenient forum.
5.11 Taxes. By agreeing to this Agreement, the Grantee represents that he or she has reviewed with his or her own tax advisors the federal, state, local and foreign tax consequences of the transactions contemplated by this Agreement and that he or she is relying solely on such advisors and not on any statements or representations of the Company or any of its agents. The Company shall be entitled to require a cash payment by or on behalf of the Grantee and/or to deduct from the Shares or cash issuable hereunder or from other compensation payable to the Grantee the minimum amount of any sums required by federal, state or local tax law to be withheld (or other such sums that that will not cause adverse accounting consequences for the Company and is permitted under applicable withholding rules promulgated by the Internal Revenue Service or another applicable governmental entity) with respect to the Restricted Stock Unit Award.
5.12 Section 409A Compliance. The intent of the parties is that payments and benefits under this Agreement comply with Section 409A of Code to the extent subject thereto, and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted and be administered to be in compliance therewith. Notwithstanding anything contained herein to the contrary, to the extent required to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, the Grantee shall not be considered to have separated from service with the Company for purposes of this Agreement and no payment shall be due to the Grantee under this Agreement on account of a separation from service until the Grantee would be considered to have incurred a “separation from service” from the Company within the meaning of Section 409A of the Code. Any payments described in this Agreement that are due within the “short-term deferral period” as defined in Section 409A of the Code shall not be treated as deferred compensation unless applicable law requires otherwise. Notwithstanding anything to the contrary in this Agreement, to the extent that any amounts are payable upon a separation from service and such payment would result in accelerated taxation and/or tax penalties under Section 409A of the Code, such payment, under this Agreement or any other agreement of the Company, shall be made on the first business day after the date that is six (6) months following such separation from service (or death, if earlier). The Company makes no representation that any or all of the payments described in this Agreement will be exempt from or comply with Section 409A of the Code and makes no undertaking to preclude Section 409A of the Code from applying to any such payment. If it is determined that the terms of this Agreement have been structured in a manner that would result in adverse tax treatment under Section 409A of the Code, the parties agree to cooperate in taking all reasonable measures to restructure the arrangement to minimize or avoid such adverse tax treatment without materially impairing Grantee’s economic rights. The Grantee shall be solely responsible for the payment of any taxes and penalties incurred under Section 409A.
5.13 Headings. The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend or interpret the scope of this Agreement or of any particular section.
5.14 Number and Gender. Throughout this Agreement, as the context may require, (a) the masculine gender includes the feminine and the neuter gender includes the masculine and the feminine; (b) the singular tense and number includes the plural, and the plural tense and number includes the singular; (c) the past tense includes the present, and the present tense includes the past; (d) references to parties, sections, paragraphs and exhibits mean the parties, sections, paragraphs and exhibits of and to this Agreement; and (e) periods of days, weeks or months mean calendar days, weeks or months.
5.15 Electronic Delivery and Disclosure. The Company may, in its sole discretion, decide to deliver or disclose, as applicable, any documents related to this Award granted under the Plan, future awards that may be granted under the Plan, the prospectus related to the Plan, the Company’s annual reports or proxy statements by electronic means or to request Grantee’s consent to participate in the Plan by electronic means, including, but not limited to, the Securities and Exchange Commission’s Electronic Data Gathering, Analysis, and Retrieval system or any successor system (“EDGAR”). Grantee hereby consents to receive such documents delivered electronically or to retrieve such documents furnished electronically (including on EDGAR), as applicable, and agrees to participate in the Plan through any online or electronic system established and maintained by the Company or another third party designated by the Company.
5.16 Data Privacy. Grantee agrees that all of Grantee’s information that is described or referenced in this Agreement and the Plan may be used by the Company, its affiliates and the designated broker and its affiliates to administer and manage Grantee’s participation in the Plan.
5.17 Acknowledgments of Grantee. Grantee has reviewed the Plan and this Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement, fully understands all provisions of the Plan and this Agreement and, by accepting the Grant Notice, acknowledges and agrees to all of the provisions of the Plan and this Agreement.
5.18 Complete Agreement. The Grant Notice, this Agreement, and the Plan constitute the parties’ entire agreement with respect to the subject matter hereof and supersede all agreements, representations, warranties, statements, promises and understandings, whether oral or written, with respect to the subject matter hereof.
5.19 Waiver of Jury Trial. TO THE EXTENT EITHER PARTY INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN US (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH LITIGATION), ALL OF THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY. THIS WAIVER WILL APPLY TO ALL CAUSES OF ACTION THAT ARE OR MIGHT BE INCLUDED IN SUCH ACTION, INCLUDING CLAIMS RELATED TO THE ENFORCEMENT OR INTERPRETATION OF THIS AGREEMENT, ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION, OR SIMILAR CAUSES OF ACTION, AND IN CONNECTION WITH ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF DAMAGES BETWEEN OR AMONG US OR BETWEEN OR AMONG ANY OF OUR OWNERS, AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS.
5.20 Waiver. The Grantee acknowledges that a waiver by the Company of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any other provision of this Agreement, or of any subsequent breach by the Grantee.
5.21 Signature in Counterparts. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
5.22 Amendments and Termination. To the extent permitted by the Plan, this Agreement may be wholly or partially amended, altered or terminated at any time or from time to time by the Administrator or the Board, but no amendment, alteration or termination shall be made that would materially impair the rights of a Grantee under this Restricted Stock Unit Award Agreement without such Grantee’s consent.
EXHIBIT 10.14
ENDI CORP.
RESTRICTED STOCK AWARD NOTICE
(2022 Omnibus Equity Incentive Plan)
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Grantee: |
[___] |
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Date of Grant: |
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Number of Shares subject to this Restricted Stock Award: |
[___] |
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Vesting Commencement Date: |
[January 1, 2023] |
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Vesting: |
25% of the Restricted Stock shall vest on the second anniversary of the Vesting Commencement Date (the “Initial Vesting Date”). The remaining 75% shall vest in three equal annual installments on the subsequent three anniversaries of the Initial Vesting Date, such that 100% of the Restricted Stock shall be vested on the 5th anniversary of the Vesting Commencement Date. |
ENDI CORP., a Delaware corporation
________________________
By: [___]
Its: [___]
Acknowledged and Agreed as of ____ day of ______, ______.
Name: ____________________________________
RESTRICTED STOCK AWARD AGREEMENT
THIS RESTRICTED STOCK AWARD AGREEMENT (together with the above award notice (the “Award Notice”), this “Agreement”) is made and entered into as of the date set forth on the Award Notice by and between the Company and the individual (the “Grantee”) set forth on the Award Notice.
WHEREAS, pursuant to the ENDI Corp. 2022 Omnibus Equity Incentive Plan (the “Plan”), the Administrator has determined that it is to the advantage and best interest of the Company to grant to the Grantee an award of Restricted Stock with respect to a number of shares of Common Stock, a portion of which is subject to time-vesting conditions (the “Time-Vested Shares”) and/or a portion of which is subject to performance-vesting conditions (the “Performance-Vested Shares” and, together with the Time-Vested Shares, the “Restricted Stock”), in each case, as set forth in the Award Notice and subject to the terms and provisions of the Plan, which is incorporated herein by reference, and this Agreement (the “Award”).
NOW, THEREFORE, in consideration of the mutual agreements contained herein, the Grantee and the Company hereby agree as follows:
1. Acceptance of Agreement. Grantee has reviewed all of the provisions of the Plan, the Award Notice and this Award. By accepting this Award, Grantee agrees that this Award is granted under and governed by the terms and conditions of the Plan, the Award Notice and this Agreement, and the applicable provisions contained in a written employment agreement (if any) between the Company or an affiliate and the Grantee. Grantee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator on questions relating to the Plan, the Award Notice, this Agreement and, solely insofar as they relate to this Award, the applicable provisions contained in a written employment agreement (if any) between the Company or an Affiliate and the Grantee. If Grantee signs the Award Notice electronically, Grantee’s electronic signature of the Award Notice shall have the same validity and effect as a signature affixed by hand. Notwithstanding the foregoing, this Restricted Stock Award shall only become effective, and shall be deemed granted, on the date the Company’s stockholders approve the Plan (such date, the “Effective Date”); provided, however, that if the Company’s stockholders do not approve the Plan on or prior to the Company’s 2023 annual stockholder meeting, the Restricted Stock Award granted hereunder shall be null and void.
2. Grant of Award. The Restricted Stock granted hereunder pursuant to Section 9 of the Plan shall be subject to the terms and provisions of the Plan, and all capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Plan. For the purposes of this Agreement, “Termination” shall mean the termination of the employment or service of the Grantee with the Company and all Affiliates thereof (including because of the Grantee's employer ceasing to be an Affiliate of the Company); and “Termination Date” shall mean the date of the Termination. For purposes of this Agreement, Termination will not occur when Grantee goes on a military leave, a sick leave or another bona fide leave of absence that was approved by the Company in writing if the terms of the leave provide for continued service crediting, or when continued service crediting is required by applicable law. Notwithstanding the foregoing, an approved leave of absence for six months or less, which does not in fact exceed six months, will not result in Termination for purposes of this Agreement. However, Termination will occur when an approved leave described in this Section 2 ends, unless Grantee immediately returns to active work. Grantee shall not be entitled to receive dividends declared with respect to the number of shares of Common Stock covered by the Restricted Stock until such Restricted Stock has fully vested.
3. Vesting.
3.1 Subject to the provisions of the Plan and Section 3.2 of this Agreement, and except as otherwise provided in a written employment or service agreement between the Company or an Affiliate and the Grantee (if any):
3.1.1 Time-Vested Shares: Time-Vested Shares shall vest based on the Time-Vesting Schedule, as described in the Award Notice, during the Time-Vesting Period (the vesting date of any Time-Vested Shares, as indicated in the Time-Vesting Schedule, a “Time Vesting Date”), subject to Grantee not experiencing a Termination prior to each applicable Time Vesting Date.
3.1.2 Performance-Vested Shares. Performance-Vested Shares shall vest based on achievement of the Performance-Vesting Criteria, as described in the Award Notice, during the Performance-Vesting Period (the last date of the Performance-Vesting Period, unless such other date is indicated in the Performance-Vesting Criteria, a “Performance Vesting Date” and, together with the Time Vesting Dates, the “Vesting Dates”), subject to the Grantee not experiencing a Termination prior to each applicable Performance Vesting Date. If any Performance-Vested Shares do not vest on the applicable Performance Vesting Date, such Performance-Vested Shares shall be forfeited on such Performance Vesting Date.
3.2 If the Grantee experiences a Termination for any reason prior to an applicable Vesting Date, as of the Termination Date, the Grantee shall forfeit any unvested Restricted Stock.
4. Transfer of Restricted Stock. The Restricted Stock issued under this Agreement may not be sold, transferred or otherwise disposed of and may not be pledged or otherwise hypothecated (each, a “Transfer”). In addition, Grantee shall not sell any shares of Restricted Stock issued pursuant to this Award (even following the vesting of such Restricted Stock) at a time when applicable laws, regulations, the Company’s bylaws or other internal documents, agreements or policies, or an underwriter’s trading policies prohibit such sale.
5. General.
5.1 Governing Law. This Agreement shall be governed by and construed under the laws of the State of Delaware.
5.2 Community Property. Without prejudice to the actual rights of the spouses as between each other, for all purposes of this Agreement, the Grantee shall be treated as agent and attorney-in-fact for that interest held or claimed by his or her spouse with respect to this Award and the parties hereto shall act in all matters as if the Grantee was the sole owner of this Award. This appointment is coupled with an interest and is irrevocable.
5.3 No Employment Rights. Nothing contained herein shall be construed as an agreement by the Company or any of its Subsidiaries, express or implied, to employ the Grantee or contract for the Grantee’s services, to restrict the Company’s or such Subsidiary’s right to discharge the Grantee or cease contracting for the Grantee’s services or to modify, extend or otherwise affect in any manner whatsoever the terms of any employment agreement or contract for services which may exist between the Grantee and the Company or any Affiliate.
5.4 Clawback Policy. Grantee expressly acknowledges and agrees to be bound by any Company policy on recoupment of equity or other compensation, including the clawback provisions contained in Section 27 of the Plan.
5.5 Application to Other Stock. In the event any capital stock of the Company or any other corporation shall be distributed on, with respect to or in exchange for shares of Common Stock underlying Restricted Stock as a stock dividend, stock split, reclassification, recapitalization or similar transaction in connection with any merger or reorganization or otherwise, all restrictions, rights and obligations set forth in this Agreement shall apply with respect to such other capital stock to the same extent as they are, or would have been applicable, to the shares of Common Stock underlying Restricted Stock on or with respect to which such other capital stock was distributed, and references to “Company” in respect of such distributed stock shall be deemed to refer to the company to which such distributed stock relates.
5.6 No Third-Party Benefits. Except as otherwise expressly provided in this Agreement, none of the provisions of this Agreement shall be for the benefit of, or enforceable by, any third-party beneficiary.
5.7 Successors and Assigns. Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns.
5.8 No Assignment. Except as otherwise provided in this Agreement, the Grantee may not assign any of his or her rights under this Agreement without the prior written consent of the Company, which consent may be withheld in its sole discretion. The Company shall be permitted to assign its rights or obligations under this Agreement so long as such assignee agrees to perform all of the Company’s obligations hereunder.
5.9 Severability. The validity, legality or enforceability of the remainder of this Agreement shall not be affected even if one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable in any respect.
5.10 Equitable Relief. The Grantee acknowledges that, in the event of a threatened or actual breach of any of the provisions of this Agreement, damages alone will be an inadequate remedy, and such breach will cause the Company great, immediate and irreparable injury and damage. Accordingly, the Grantee agrees that the Company shall be entitled to injunctive and other equitable relief, and that such relief shall be in addition to, and not in lieu of, any remedies it may have at law or under this Agreement.
5.11 Jurisdiction. Any suit, action or proceeding with respect to this Agreement, or any judgment entered by any court in respect of any thereof, shall be brought in any court of competent jurisdiction in the State of Delaware, and the Company and the Grantee hereby submit to the exclusive jurisdiction of such courts for the purpose of any such suit, action, proceeding or judgment. The Grantee and the Company hereby irrevocably waive (i) any objections which it may now or hereafter have to the laying of the venue of any suit, action or proceeding arising out of or relating to this Agreement brought in any court of competent jurisdiction in the State of Delaware and (ii) any claim that any such suit, action or proceeding brought in any such court has been brought in any inconvenient forum.
5.12 Taxes. By agreeing to this Agreement, the Grantee represents that he or she has reviewed with his or her own tax advisors the federal, state, local and foreign tax consequences of the transactions contemplated by this Agreement and that he or she is relying solely on such advisors and not on any statements or representations of the Company or any of its agents. To the extent the Company is legally required to withhold any taxes in connection with the grant or vesting of shares of Restricted Stock, the Company shall be entitled to require a cash payment by or on behalf of the Grantee as a condition of grant or vesting of any Restricted Stock and/or to deduct from the Restricted Stock or any cash payable with respect thereto or from other compensation payable to the Grantee the minimum amount of any sums required by federal, state or local tax law to be withheld (or other such sums that will not cause adverse accounting consequences for the Company and is permitted under applicable withholding rules promulgated by the Internal Revenue Service or another applicable governmental entity) with respect to the Restricted Stock.
5.13 Section 83(b) Election. Grantee and Grantee’s spouse, if applicable, shall execute, file with the Internal Revenue Service and deliver to the Company (which delivery shall be completed no later than five (5) business days after the date Grantee makes such filing) a copy of the election pursuant to Section 83(b) of the Code (the “83(b) Election”) substantially in the form attached hereto as Exhibit A. Failure to properly file the 83(b) Election within 30 days following the Effective Date shall result in the immediate forfeiture of the Restricted Stock.
5.14 Section 409A Compliance. The intent of the parties is that payments and benefits under this Agreement comply with Section 409A of Code to the extent subject thereto, and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted and be administered to be in compliance therewith. Notwithstanding anything contained herein to the contrary, to the extent required to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, the Grantee shall not be considered to have separated from service with the Company for purposes of this Agreement and no payment shall be due to the Grantee under this Agreement on account of a separation from service until the Grantee would be considered to have incurred a “separation from service” from the Company within the meaning of Section 409A of the Code. Any payments described in this Agreement that are due within the “short-term deferral period” as defined in Section 409A of the Code shall not be treated as deferred compensation unless applicable law requires otherwise. Notwithstanding anything to the contrary in this Agreement, to the extent that any amounts are payable upon a separation from service and such payment would result in accelerated taxation and/or tax penalties under Section 409A of the Code, such payment, under this Agreement or any other agreement of the Company, shall be made on the first business day after the date that is six (6) months following such separation from service (or death, if earlier). The Company makes no representation that any or all of the payments described in this Agreement will be exempt from or comply with Section 409A of the Code and makes no undertaking to preclude Section 409A of the Code from applying to any such payment. If it is determined that the terms of this Agreement have been structured in a manner that would result in adverse tax treatment under Section 409A of the Code, the parties agree to cooperate in taking all reasonable measures to restructure the arrangement to minimize or avoid such adverse tax treatment without materially impairing Grantee’s economic rights. The Grantee shall be solely responsible for the payment of any taxes and penalties incurred under Section 409A. Each amount to be paid or benefit to be provided hereunder shall be construed as a separate identified payment for purposes of Section 409A of the Code.
5.15 Headings. The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend or interpret the scope of this Agreement or of any particular section.
5.16 Number and Gender. Throughout this Agreement, as the context may require, (a) the masculine gender includes the feminine and the neuter gender includes the masculine and the feminine; (b) the singular tense and number includes the plural, and the plural tense and number includes the singular; (c) the past tense includes the present, and the present tense includes the past; (d) references to parties, sections, paragraphs and exhibits mean the parties, sections, paragraphs and exhibits of and to this Agreement; and (e) periods of days, weeks or months mean calendar days, weeks or months.
5.17 Electronic Delivery and Disclosure. The Company may, in its sole discretion, decide to deliver or disclose, as applicable, any documents related to this Award granted under the Plan, future awards that may be granted under the Plan, the prospectus related to the Plan, the Company’s annual reports or proxy statements by electronic means or to request Grantee’s consent to participate in the Plan by electronic means, including, but not limited to, the Securities and Exchange Commission’s Electronic Data Gathering, Analysis, and Retrieval system or any successor system (“EDGAR”). Grantee hereby consents to receive such documents delivered electronically or to retrieve such documents furnished electronically (including on EDGAR), as applicable, and agrees to participate in the Plan through any online or electronic system established and maintained by the Company or another third party designated by the Company.
5.18 Data Privacy. Grantee agrees that all of Grantee’s information that is described or referenced in this Agreement and the Plan may be used by the Company, its affiliates and the designated broker and its affiliates to administer and manage Grantee’s participation in the Plan.
5.19 Complete Agreement. The Award Notice, this Agreement, the Plan, and applicable provisions (if any) contained in a written employment agreement between the Company or an Affiliate and the Grantee constitute the parties’ entire agreement with respect to the subject matter hereof and supersede all agreements, representations, warranties, statements, promises and understandings, whether oral or written, with respect to the subject matter hereof.
5.20 Waiver of Jury Trial. TO THE EXTENT EITHER PARTY INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN US (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH LITIGATION), ALL OF THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY. THIS WAIVER WILL APPLY TO ALL CAUSES OF ACTION THAT ARE OR MIGHT BE INCLUDED IN SUCH ACTION, INCLUDING CLAIMS RELATED TO THE ENFORCEMENT OR INTERPRETATION OF THIS AGREEMENT, ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION, OR SIMILAR CAUSES OF ACTION, AND IN CONNECTION WITH ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF DAMAGES BETWEEN OR AMONG US OR BETWEEN OR AMONG ANY OF OUR OWNERS, AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS.
5.21 Waiver. The Grantee acknowledges that a waiver by the Company of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any other provision of this Agreement, or of any subsequent breach by the Grantee.
5.22 Signature in Counterparts. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
5.23 Amendments and Termination. To the extent permitted by the Plan, this Agreement may be wholly or partially amended, altered or terminated at any time or from time to time by the Committee or the Board, but no amendment, alteration or termination shall be made that would materially impair the rights of a Grantee under this Agreement without such Grantee’s consent.
5.24 Acknowledgements of Grantee. Grantee hereby represents and warrants to the Company as of the Date of Grant as follows:
(a) Grantee confirms that Grantee has carefully reviewed this Agreement and understands the terms and conditions of this Agreement. Grantee further confirms that Grantee has consulted with legal counsel, or had ample opportunity to consult with legal counsel, representing Grantee concerning this Agreement. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
(b) Grantee’s domicile is the State of [___], all discussions related to this Agreement and the offer and acceptance of this Agreement, and the Restricted Stock granted hereunder, occurred in the State of [___].
(c) Grantee acknowledges and agrees that (i) no representations and warranties have been made to Grantee by the Company, any manager, officer, agent, parent or Affiliate of the Company, or any other person with respect to the Restricted Stock, (ii) except for this Agreement, there are no agreements, contracts, understandings or commitments between Grantee on the one hand and the Company, any manager, officer, agent, parent or Affiliate of the Company on the other hand, with respect to the Restricted Stock, (iii) in entering into this transaction Grantee is not relying upon any information, other than that contained in this Agreement and the results of Grantee’s own independent investigation, and (iv) the future value of the Restricted Stock is speculative.
(d) By entering into this Agreement, the Grantee agrees and acknowledges that the Grantee has received and read a copy of the Plan. The Restricted Stock granted hereunder is subject to the Plan, as it may be amended from time to time, and the terms and provisions of the Plan are hereby incorporated herein by reference.
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Exhibit A
83(b) Election Form
In order to make an election under Section 83(b) of the Internal Revenue Code of 1986, as amended, a statement similar to that below should be executed by the employee. Within thirty (30) days after the restricted property has been transferred, one copy of this statement should be submitted to the employer and a second copy should be filed with the Internal Revenue Service Center with which the employee normally files his or her Federal income tax return.
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ELECTION UNDER SECTION 83(b)
OF THE INTERNAL REVENUE CODE OF 1986
The undersigned taxpayer hereby elects, pursuant to Section 83(b) of the Internal Revenue Code of 1986, as amended, to include in taxpayer’s gross income for the current taxable year the amount of any compensation taxable to taxpayer in connection with taxpayer’s receipt of the property described below:
The name, address, taxpayer identification number and taxable year of the undersigned are as follows:
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NAME OF TAXPAYER: |
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NAME OF SPOUSE: |
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ADDRESS: |
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IDENTIFICATION NO. OF TAXPAYER: (SS#) |
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IDENTIFICATION NO. OF SPOUSE: (SS#) |
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TAXABLE YEAR: |
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The property with respect to which the election is made is described as follows: _____________ shares of Restricted Stock (together, the “Restricted Stock”) of ENDI Corp. (the “Company”).
The date on which the property was transferred is: ___________________.
The property is subject to the following restrictions:
The Restricted Stock may not be transferred and is subject to under the terms of an agreement between the taxpayer and the Company. These restrictions lapse upon the satisfaction of certain conditions in such agreement.
The fair market value at the time of transfer, determined without regard to any restriction other than a restriction which by its terms will never lapse, of such property is: $[_____].
The amount (if any) paid for such property is: $[___].
The amount to include in gross income is: $[___].
The undersigned has submitted a copy of this statement to the person for whom the services were performed in connection with the undersigned’s receipt of the above-described property. The transferee of such property is the person performing the services in connection with the transfer of said property.
The undersigned understands that the foregoing election may not be revoked except with the consent of the Commissioner.
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Dated: _________________, ________ |
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The undersigned spouse of taxpayer joins in this election.
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Dated: _________________, ________ |
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EXHIBIT 10.15
EXECUTION VERSION
PURCHASE AND ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS PURCHASE AND ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Agreement”) is made and entered into as of November 18, 2022 (“Effective Date”) by and among RIVERPARK ADVISORS, LLC, a Delaware limited liability company (“Seller”), CROSSINGBRIDGE ADVISORS, LLC, a Delaware limited liability company (“Buyer”), and COHANZICK MANAGEMENT, L.L.C., a Delaware limited liability company (“Cohanzick”). Seller, Buyer and Cohanzick each are referred to as a “Party” and collectively as the “Parties”.
Preliminary Statement
A. Seller, among other activities, provides investment advisory services for a mutual fund known as RiverPark Strategic Income Fund (the “Fund”), pursuant to (a) an Amended and Restated Investment Advisory Agreement dated February 14, 2012 (the “Advisory Agreement” and the business of providing services to the Fund, the “Business”), by and between Seller and RiverPark Funds Trust, a Delaware statutory trust (the “RiverPark Trust”), and (b) an Operating Expense Limitation Agreement dated as of July 1, 2019, between RiverPark Trust and Seller (the “Expense Limitation Agreement”). Buyer and its affiliates, including Cohanzick, are engaged in an investment advisory business similar to the Business. Reference is also hereby made to a Sub- Advisory Agreement, dated as of August 1, 2012 (the “Sub-Advisory Agreement”), by and among Seller, Cohanzick and the RiverPark Trust, on behalf of the Fund, attached hereto as Exhibit A.
B. Subject to the approval of the Board of Directors of RiverPark Trust (the “Board”), including the approval of a majority of the directors who are not interested persons of the Fund (“Board Approval”), Seller is willing to sell to Buyer the Assigned Assets and Buyer is willing to purchase the Assigned Assets and to assume the Assumed Liabilities, all as described below. In furtherance thereof, upon obtaining such Board Approval, Buyer will endeavor to procure the approval by vote of a majority of the outstanding voting securities of the Fund (“Fund Stockholder Approval”) for Buyer to assume the advisory services role under the Advisory Agreement and the Expense Limitation Agreement.
NOW, THEREFORE, in consideration of the above Preliminary Statement, and the mutual agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby conclusively acknowledged, and to effectuate such acquisition and assumption, the Parties, each intending to be legally bound, agree as follows:
1. Preliminary Statement. The Preliminary Statement set forth above is incorporated into and made a part of this Agreement. This Agreement supersedes and replaces all prior drafts or proposed or contemplated agreements pertaining to the transactions provided for herein, all of which are null and void.
2. Assigned Assets. Upon the terms and subject to the conditions set forth in this Agreement, upon the consummation of the transactions contemplated by this Agreement (the “Closing”), at the Closing, Seller shall sell, transfer, set over, convey, assign and deliver to Buyer, and Buyer shall purchase, acquire and accept from Seller, all right, title and interest of Seller in and to, (a) all duties and responsibilities attributable to Seller or the investment advisory role
performed by Seller under, the Advisory Agreement and the Expense Limitation Agreement (collectively, the “Assigned Contracts”), (b) copies of the portion of Sellers’ books and records to the extent primarily related to the Business (the “Books and Records”), and (c) Seller’s goodwill to the extent primarily deriving from the Business (items (a), (b) and (c) are collectively called the “Assigned Assets”). At the Closing, Seller shall transfer and assign the Assigned Assets to Buyer AS IS, free and clear of all encumbrances. Upon Closing, Seller hereby grants to Buyer or any affiliate thereof that is the advisor to the Fund a non-exclusive, irrevocable, royalty-free right and license to use the name “RiverPark Strategic Income Fund” as the name of the Fund for so long as the Fund has not dissolved and Buyer or such affiliate is providing advisory services to the Fund in compliance with applicable law. Upon reasonable notice, Seller shall afford Buyer’s representatives reasonable access (including the right to make, at Buyer’s expense, electronic or photocopies), during normal business hours, to the Books and Records.
3. Excluded Assets. If Closing occurs, Seller shall retain and not transfer, and Buyer shall not purchase or acquire or have any ownership claim or right in respect of any cash, cash equivalents, bank accounts, brokerage accounts and similar accounts of Seller or all accounts receivable due to Seller, any tax matters, or any assets, properties, claims or rights of Seller not expressly included among the Assigned Assets, including, without limitation, any other business initiative or assets of Seller, including any interest in any advisory services or other financial undertakings other than the Assigned Assets, and including, without limitation, any receivables or other rights to payment or indemnification under the Assigned Contracts, and any other rights or claims under the Assigned Contracts or otherwise in respect of the Assigned Assets, but only to the extent relating to the period prior to Closing (“Excluded Assets”).
4. Assumption of Liabilities. If Closing occurs, at the Closing, Buyer shall assume and agree to pay, perform, honor and discharge all obligations and liabilities arising from events occurring on and after the Closing under the Assigned Contracts, including, without limitation, all obligations and liabilities first arising after the Closing deriving from or relating to the Assigned Assets being acquired by Buyer or incurred after the Closing in connection with the operation of the Business (collectively, the “Assumed Liabilities”).
5. Cohanzick Consent. Cohanzick hereby consents to the transactions contemplated herein. Each of the Advisory Agreement, the Sub-Advisory Agreement and the Expense Limitation Agreement shall remain in full force and effect in accordance with their respective terms, and none of Seller, Cohanzick nor Buyer shall directly or indirectly take any action to circumvent the provisions of the Advisory Agreement, the Sub-Advisory Agreement or the Expense Limitation Agreement, and shall prevent any of their affiliates from taking any such action; provided, however, that if a Closing is consummated hereunder, the Advisory Agreement and the Sub-Advisory Agreement shall terminate upon such Closing (however such termination shall not affect the rights of the parties to payment of any advisory fees accrued through the date of such termination), and Buyer shall become a party to the Expense Limitation Agreement.
6. Fund Stockholder Approval.
(a) Buyer will coordinate at its sole expense with the Board to prepare and file (or to cause to be prepared and filed) with the Securities and Exchange Commission (the “SEC”) and all other applicable governmental authorities, as promptly as practicable following receipt of
the Board Approval, all registration statements and proxy solicitation materials required to obtain Fund Stockholder Approval as contemplated herein. Buyer or the Board, at Buyer’s sole expense, will distribute such proxy solicitation materials as promptly as practicable after clearance thereof by the SEC, and submit (or have the Board submit), at Buyer’s sole expense, as promptly as practicable following the mailing of the proxy materials to Fund stockholders for a vote at a stockholder meeting the proposals submitted by the Board relating to this Agreement and the transactions contemplated herein. Each such registration statement (if applicable) and proxy statement shall be in form and substance reasonably satisfactory to Buyer and Seller and in accordance with the requirements of the Investment Company Act of 1940, as amended (the “Investment Company Act”), the Securities Exchange Act of 1934, as amended, and the rules thereunder. Without limiting the foregoing, Buyer shall be responsible for and pay all costs and expenses, including without limitation, fees and disbursements of counsel, in connection with the assignment and assumption contemplated herein; provided, that to the extent any such fees or expenses are billed directly to Seller, Buyer agrees to pay such fees and expenses promptly (and in no case later than 30 days) upon presentation of the relevant invoices.
(b) Seller shall have the right to review in advance and to approve promptly (such approval not to be unreasonably withheld, conditioned or delayed) the record date and meeting date for any meeting (including any adjournments and cancellations thereof) at which Fund Stockholder Approval will be sought and all the information relating to Buyer and any of its affiliates proposed to appear in any proxy statement or any amendment or supplement thereto submitted to the SEC or such other applicable governmental authority in connection with this Agreement and the transactions contemplated hereby.
(c) Seller hereby acknowledges and agrees that following the Closing Buyer, at its sole discretion, will have the right to cause the Fund to transition to a new trust, and hereby consents to, and agrees to cooperate (at Buyer’s expense) with, any such transition.
7. Exclusivity. Until the Closing or the termination of this Agreement, Seller shall not, nor shall Seller permit any of its affiliates or representatives to directly or indirectly, (a) discuss, encourage, negotiate, undertake, initiate, authorize, recommend, propose or enter into, either as the proposed surviving, merged, acquiring or acquired corporation, any transaction involving a merger, consolidation, business combination, purchase or disposition directly or
indirectly involving the Fund (a “Competing Transaction”), (b) facilitate, encourage, solicit or initiate discussions, negotiations or submissions of proposals or offers in respect of a Competing Transaction, (c) furnish, or cause to be furnished, to any person any information concerning the Fund in connection with a possible Competing Transaction, or (d) otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other person to do or seek any of the foregoing. Seller shall notify Buyer as soon as is reasonably practicable after receipt by Seller, or any of its representatives of any proposal, offer or other communication from any person concerning a Competing Transaction. Such notice shall indicate the identity of the person making the proposal or offer or intending to make a proposal or offer or requesting non-public information or access to the books and records of Seller relating to the Fund, and the material terms of any such proposal or offer and copies of any written proposals or offers or amendments or supplements thereto.
8. Confidentiality; Non-Disparagement; Non-Solicitation.
(a) Prior to and after the Closing or termination of this Agreement, each Party, respectively, shall treat and hold confidential all information known by them or identified by another Party to comprise trade secrets (and not generally available information pertaining to investment fund businesses and strategies) (collectively “Confidential Information”), and shall refrain from disclosing any Confidential Information to any third parties and from using any of the Confidential Information except (i) as necessary to perform its obligations under this Agreement and exercise its rights hereunder, (ii) in connection with obtaining the Fund Stockholder Approval, or (iii) as required by any applicable law. Confidential Information does not include, and there shall be no obligation hereunder with respect to, information that (A) is generally available to the public as of the date of this Agreement and as of the Closing or (B) becomes generally available to the public other than as a result of a disclosure not otherwise permissible hereunder and not in violation of any other obligation of confidentiality or non-disclosure. The parties intend to issue a mutually acceptable press release announcing the transaction (but not the financial terms thereof) promptly after the date of this Agreement. Seller hereby acknowledges that affiliates of Buyer will have to disclose the existence of this Agreement in filings with the SEC.
(b) Prior to and after the Closing, Seller shall not, and shall cause its officers, employees and affiliates not to, make any statements with malicious intent to disparage Buyer or Cohanzick or their respective affiliates so as to harm or create a reasonable likelihood of harm to the reputation or goodwill of Buyer, Cohanzick or their respective affiliates. Prior to and after the Closing, each of Buyer and Cohanzick shall not, and shall cause its directors, officers, employees and affiliates not to, make any statements with malicious intent to disparage the Seller or its affiliates so as to harm or create a reasonable likelihood of harm to the reputation or goodwill of Seller or its affiliates. Notwithstanding the foregoing non-disparagement provisions, each Party reserves rights to assert claims and rights as against the other Parties and their respective affiliates in connection with dispute resolution proceedings.
(c) Prior to the Closing (or the earlier termination of this Agreement), in addition to the confidentiality and non-disparagement provisions herein, each of Buyer and Cohanzick (for itself and its employees, representatives and affiliates) agrees not to directly seek to induce investors in the Fund to sell or request redemption of their interests in the Fund.
(d) Each Party acknowledges and agrees that money damages would not be an adequate remedy for any breach of its covenants and agreements contained in this Section 8, and that, in addition to any other remedies available to any other Party, such other Party shall be entitled to seek the remedies of injunction, specific performance and other equitable relief for any threatened or actual breach of this Section 8.
9. Closing. The Closing shall occur on the date that is two business days after Fund Stockholder Approval has been obtained. The Sub-Advisory Agreement shall terminate at the Closing, and notwithstanding anything to the contrary contained in the Sub-Advisory Agreement, the only sections of the Sub-Advisory Agreement that shall survive such termination are sections 3(e) and 9. At the Closing, Buyer and Seller shall execute such documents as are reasonably necessary to memorialize the transfer of the Acquired Assets and the assumption of the Assumed Liabilities.
10. Purchase Price.
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(a) |
In addition to Buyer’s assumption of the Assumed Liabilities, within five |
(5) days of receipt of any Net Advisory Fees by Buyer or an affiliate thereof which are attributable to any period through the expiration of thirty-six (36) months from the date of the Closing (the “Earn Out Period”), Buyer shall be required to pay to Seller an amount equal to one third (1/3) of the Net Advisory Fees; provided, however, that the maximum cumulative aggregate amount payable pursuant to this Section 10 shall be $1,225,000.
“Net Advisory Fees” means an amount equal to the advisory fees received from the Fund (including any fund with respect to which any assets of the Fund are transferred and Buyer or an affiliate thereof is the manager), after giving effect to any fee waivers or expense reimbursements in accordance with the Expense Limitation Agreement; provided, however, that if Buyer or an affiliate thereof reduces the advisory fee percentage from the level applicable to the Fund as of the date of this Agreement, Net Advisory Fees shall be calculated based on the fee percentage in place as of the date of this Agreement; provided, further, that if any amendment is made to the Expense Limitation Agreement after the Closing that would reduce the calculation of Net Advisory Fees, such amendment shall be disregarded for the purposes of calculating Net Advisory fees hereunder; provided, further, that, as set forth in Section 6 above, all expenses related to any of the transactions contemplated hereunder, including without limitation the Board Approval, the Fund Stockholder Approval or any merger involving the Fund, shall be borne solely by the Buyer and shall not be charged to the Fund for purposes of calculating the Net Advisory Fees hereunder; provided, further, that any extraordinary expenses of the Fund not incurred in the ordinary course of business or otherwise not consistent with the spirit of this Agreement shall be excluded from any calculation of Net Advisory Fees.
(b) Upon the Closing and for a period of sixty (60) months from the date of the Closing, within five (5) days of receipt of any Net Advisory Fees, Buyer shall be required to pay to Cohanzick an amount equal to 0.125% multiplied by the daily average assets under management of the Fund (including assets under management of any fund with respect to which any assets of the Fund are transferred). Seller shall have no liability to Cohanzick in respect of any such fee.
(c) If, during the Earn Out Period, a Change of Control happens with respect to Buyer or any affiliate thereof that is the advisor to the Fund (or any fund to which assets of the Fund have been transferred), as applicable, then to the extent Seller has not yet been paid a total of $1,225,000 hereunder, then any of such amount that Seller has not yet been paid hereunder shall become immediately due and payable. As used herein, the term “Change of Control” with respect to Buyer or any affiliate thereof that is the advisor to the Fund (or any fund to which assets of the Fund have been transferred) means any transaction resulting in a change of ownership or control of Buyer or any such affiliate that would require the consent of the stockholders of the Fund or any other investment fund for which Buyer or its affiliate is rendering investment management or investment advisory services in serving as “investment adviser,” as that term has been interpreted under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), or the Investment Company Act.
(d) Each payment hereunder shall be accompanied by detailed documentation supporting the calculation of such amount. Seller shall have the right to appoint an independent accountant to review such documentation and the books and records of Buyer or any affiliate thereof that is the advisor to the Fund (or any fund to which assets of the Fund have been assigned)
related to the subject matter of this Agreement in order to determine whether or not any and all amounts that should have been paid to Seller hereunder have been paid. To the extent such accountant determines that there has been any shortfall in payment, then Buyer shall within five (5) days of such determination make a whole payment to Seller.
11. [RESERVED]
12. Treatment of Liabilities. Effective from and after Closing, Buyer hereby agrees to hold Seller and its affiliates harmless from and against, and indemnify Seller and its affiliates with respect to, the Assumed Liabilities. Effective from and after Closing, Seller hereby agrees to hold Buyer and its affiliates harmless from and against, and indemnify Buyer and its affiliates with respect to, all liabilities of Seller that relate to the Assigned Assets.
13. Termination. If the Closing does not occur prior to March 31, 2023 (the “Outside Date”), this Agreement shall terminate and no longer be in effect, unless otherwise mutually agreed by the Parties in writing. Termination of this Agreement shall terminate all liabilities and obligations of the Parties hereunder.
14. Representations.
(a) Seller represents to Buyer that this Agreement and its performance hereunder have been duly authorized by all requisite action on the part of Seller, and that, subject to Board Approval and Fund Stockholder Approval, Seller has full right, power and authority to close hereunder and to sell and assign the Assigned Assets. Buyer represents to Seller that this Agreement and its performance hereunder and under the Assigned Contracts have been duly authorized by all requisite action on the part of Buyer, and that, subject to Board Approval and Fund Stockholder Approval, Buyer has full right, power and authority to close hereunder, to perform its obligations hereunder, including without limitation, to pay the Purchase Price, accept the Assigned Assets and assume the Assumed Obligations. Buyer further represents that Buyer has sufficient knowledge of the Assigned Assets and the Fund and its duties as investment advisor and under applicable laws and regulations. Cohanzick represents to Seller that this Agreement and its performance hereunder have been duly authorized by all requisite action on the part of Cohanzick, and that, subject to Board Approval and Fund Stockholder Approval, Cohanzick has full right, power and authority to close hereunder, to perform its obligations hereunder.
(b) Seller represents that as of the date hereof, it is fully in compliance with all applicable requirements of the Investment Company Act, the Advisers Act, and other provisions of federal securities law, as well as other applicable law.
(c) Buyer represents that as of the date hereof, it is fully in compliance with all applicable requirements of the Investment Company Act, the Advisers Act, and other provisions of federal securities law, as well as other applicable law.
15. Indemnity. Each Party indemnifies each other Party and holds such other Party and its affiliates harmless from any claim, liability, loss, damage, cost and expense, including attorney’s fees, incurred or suffered by the indemnified Party in connection with or arising out of the indemnifying Party’s (or its agents’, contractors’ or representatives’) breach of any
representation or warranty or covenant provided for in this Agreement. This provision shall survive the Closing or termination of this Agreement for a period of six months.
16. Notices. All written notices required or desired to be given under this Agreement shall be mailed, sent by email, facsimile machine, or delivered by hand or reputable overnight courier service:
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If to Buyer: |
427 Bedford Road Suite 220 Pleasantville, NY 10570 Attention: Jonathan Barkoe Email: JBarkoe@crossingbridge.com |
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If to Cohanzick: |
427 Bedford Road Suite 230 Pleasantville, NY 10570 Attention: David Sherman Email: david@cohanzick.com |
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If to Seller: |
156 West 56th Street 17th Floor New York, New York 10019 Attention: Mordecai Schaja Email: mschaja@riverparkfunds.com |
Any Party may designate a different address for the delivery of notices to such Party in a written notice to the other Parties.
17. Successors and Assigns. None of Buyer or Cohanzick shall have the right to assign this Agreement or any of its rights or obligations hereunder without the prior written consent of Seller, and any purported assignment without such consent shall be null and void. Seller shall not have the right to assign this Agreement or any of its rights or obligations hereunder without the prior written consent of Buyer, and any purported assignment without such consent shall be null and void. This Agreement shall inure to the benefit of, and be binding upon, the respective successors and permitted assigns of each of the Parties.
18. Modifications. Neither this Agreement nor any of the terms hereof may be terminated, amended, supplemented, waived or modified orally, but only by an instrument in writing signed by the Party against whom enforcement of the termination, amendment, supplement, waiver or modification is sought.
19. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any
electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and valid and effective for all purposes.
20. Expenses. Except as set forth herein, each Party will bear its own expenses incurred or to be incurred in connection with the execution and delivery of this Agreement. Notwithstanding the foregoing, the Parties agree that all costs and expenses, including without limitation fees and disbursements of counsel, incurred in connection with the assignment and assumption contemplated herein (including, without limitation, the costs of obtaining any requisite consents, making any filing with the SEC and preparing a merger proxy to obtain consents to such transactions) will be the responsibility of and paid by Buyer and not by Seller or any affiliate of Seller. To the extent any such fees and expenses are billed directly to Seller, Buyer agrees to pay such fees and expenses promptly (and in no case later than 30 days) upon presentation of the relevant invoices.
21. Joint Work Product. This Agreement shall be deemed to have been jointly drafted by the Parties and in construing and interpreting this Agreement, no provision shall be construed and interpreted for or against a Party because such provision was purportedly prepared for or requested by such Party.
22. Continuing Obligations. Each Party will execute and deliver all such other documents and take all such further actions as may be reasonably required to effectuate the transactions contemplated by this Agreement.
23. No Third-Party Beneficiary. There are no third-party beneficiaries to this Agreement.
24. Miscellaneous. The failure or delay of any Party to enforce any of its rights under this Agreement shall not constitute a waiver of such rights, any other rights, or any future rights arising hereunder. No waiver of any rights under this Agreement shall be effective unless it is in writing and executed by the Party waiving such rights. If any term or provision of this Agreement shall be held invalid or unenforceable, the remainder of this Agreement shall not be affected thereby, and each term and provision hereof shall be valid and enforced to the fullest extent permitted by law. This Agreement constitutes the entire agreement between the Parties with respect to the matters covered hereby and supersede all prior negotiations and writings with respect to the subject matter hereof. This Agreement may not be changed, modified or terminated, except pursuant to an amendment executed by the Parties. This Agreement and any disputes arising under or in any way related to this Agreement or its subject matter shall be governed by the internal laws of the State of New York, without giving effect to conflicts-of-laws principles. All actions or proceedings under or in any way relating to this Agreement shall be within the venue of any state or federal court located in New York County having jurisdiction. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE ANY RIGHT THEY MAY HAVE TO TRIAL BY JURY IN RESPECT OF ANY LITIGATION HEREUNDER OR ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT.
IN WITNESS WHEREOF, Seller, Buyer and Cohanzick have executed and delivered this instrument as of the Effective Date.
COHANZICK MANAGEMENT, L.L.C.
By: /s/ David K. Sherman Name: David K. Sherman
Title: Authorized Agent
CROSSINGBRIDGE ADVISORS, LLC
By: /s/ David K. Sherman Name: David K. Sherman
Title: Authorized Agent
RIVERPARK ADVISORS, LLC
By: /s/ Morty Schaja Name: Morty Schaja
Title: Authorized Signatory
Acknowledged:
RIVERPARK FUNDS TRUST
By: /s/ Morty Schaja Name: Morty Schaja
Title: Authorized Signatory
EXHIBIT 10.16
AMENDMENT NO. 1 TO PURCHASE AND ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS AMENDMENT NO. 1 (this “Amendment”) to that certain PURCHASE AND ASSIGNMENT AND ASSUMPTION AGREEMENT (the “Agreement”) is made and entered into as of December 28, 2022 (“Effective Date”) by and among RIVERPARK ADVISORS, LLC, a Delaware limited liability company (“Seller”), CROSSINGBRIDGE ADVISORS, LLC, a Delaware limited liability company (“Buyer”), and COHANZICK MANAGEMENT, L.L.C., a Delaware limited liability company (“Cohanzick”). Capitalized terms used but not defined in this Amendment shall have the meanings ascribed to them in the Agreement.
Preliminary Statement
A. Pursuant to Section 6 of the Agreement, Buyer has elected to transition the Fund to a new trust.
B. As a result of such transition, additional time may be necessary to consummate the Closing, and each of the Parties is willing to extend the term of the Agreement to accommodate such timing.
NOW, THEREFORE, in consideration of the above Preliminary Statement, and the mutual agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby conclusively acknowledged, the Parties, each intending to be legally bound, agree as follows:
1. Preliminary Statement. The Preliminary Statement set forth above is incorporated into and made a part of this Amendment. This Amendment supersedes and replaces all prior drafts or proposed or contemplated agreements pertaining to the matters provided for herein, all of which are null and void. Except as set forth herein, the Agreement shall remain in full force and effect.
2. Amendment. Section 13 of the Agreement is hereby deleted in its entirety and replaced with the following:
“13.Termination. If the Closing does not occur prior to the Outside Date, this Agreement shall terminate and no longer be in effect, unless otherwise mutually agreed by the Parties in writing. Termination of this Agreement shall terminate all liabilities and obligations of the Parties hereunder. “Outside Date” shall mean May 15, 2023; provided that Buyer may extend the Outside Date by up to thirty (30) additional days if it determines in its reasonable discretion that additional time is required to consummate the Closing.”
3. Representations. Each Party represents to the other Parties that this Amendment and its performance hereunder has been duly authorized by all requisite action on the part of such Party.
4. Counterparts. This Amendment may be signed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and valid and effective for all purposes.
5. Joint Work Product. This Amendment shall be deemed to have been jointly drafted by the Parties and in construing and interpreting this Amendment, no provision shall be construed and interpreted for or against a Party because such provision was purportedly prepared for or requested by such Party.
6. Miscellaneous. This Amendment and any disputes arising under or in any way related to this Amendment or its subject matter shall be governed by the internal laws of the State of New York, without giving effect to conflicts-of-laws principles. All actions or proceedings under or in any way relating to this Amendment shall be within the venue of any state or federal court located in New York County having jurisdiction. Whenever possible, each provision of this Amendment shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Amendment.
THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE ANY RIGHT THEY MAY HAVE TO TRIAL BY JURY IN RESPECT OF ANY LITIGATION HEREUNDER OR ARISING OUT OF OR IN ANY WAY RELATED TO THIS AMENDMENT.
IN WITNESS WHEREOF, Seller, Buyer and Cohanzick have executed and delivered this instrument as of the Effective Date.
COHANZICK MANAGEMENT, L.L.C.
By:_/s/ David K. Sherman________________________
Name: David K. Sherman
Title: Authorized Agent
CROSSINGBRIDGE ADVISORS, LLC
By:_/s/ David K. Sherman________________________
Name: David K. Sherman
Title: Authorized Agent
RIVERPARK ADVISORS, LLC
By:_/s/ Morty Schaja_____________________________
Name: Morty Schaja
Title: Authorized Signatory
Acknowledged:
RIVERPARK FUNDS TRUST
By: _/s/ Morty Schaja______________________
Name: Morty Schaja
Title: Authorized Signatory
EXHIBIT 10.17
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into on December 21, 2018 and effective as of October 5, 2018 (the “Effective Date”), by and between ALEA KLEINHAMMER (“Executive”), and ENTERPRISE DIVERSIFIED, INC. (the “Company”), a Nevada corporation having an address at 1518 Willow Lawn Drive, Richmond, Virginia 23230.
R E C I T A L S
WHEREAS, the parties desire to have Executive’s employment relationship with the Company be governed by the terms and conditions of this Agreement, which include material benefits favorable to Executive; and
WHEREAS, in return for such material benefits, Executive is agreeing to the terms and conditions contained in this Agreement, which include material obligations as to Executive;
NOW, THEREFORE, in consideration of the mutual covenants in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Executive and the Company hereby agree as follows:
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1. |
Employment Term |
Upon the execution and delivery of this Agreement by the Company and Executive, this Agreement shall become effective as from, and Executive’s employment hereunder shall have commenced as of, the Effective Date, and shall replace and supersede any and all other understandings and employment contracts and arrangements between the parties.
The term of this Agreement, and Executive’s employment hereunder, shall be from the Effective Date through the first to occur of (a) the date Executive’s employment terminates in accordance with Section 4.1 hereof, or (b) December 31, 2019; provided, that, on December 31, 2019 and each annual anniversary thereof thereafter (such date and each annual anniversary thereof, a “Renewal Date”), this Agreement, and Executive’s employment hereunder, unless earlier terminated pursuant to Section 4.1 hereof, shall be deemed to be automatically extended, upon the same terms and conditions, for successive periods of one year each, unless the Company provides Executive written notice of its intention not to extend the term of the Agreement at least thirty (30) days prior to the applicable Renewal Date. The period during which Executive is employed by the Company hereunder is hereinafter referred to as the “Employment Term.”
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2. |
Position and Duties |
During the Employment Term, Executive shall serve as the Chief Financial Officer of the Company, and Executive hereby accepts such employment and agrees to act in such capacity, all in accordance with the terms and conditions of this Agreement. Executive shall report directly to the Chief Executive Officer (“CEO”). Executive shall have such duties, authority and responsibility as shall be determined from time to time by the CEO, and which duties, authority and responsibility are consistent with Executive’s position.
Executive agrees that, during the Employment Term, Executive shall devote her reasonable best efforts and substantially all of her business time and attention to the business and affairs of the Company, and use her reasonable best efforts to advance the best interests and welfare of the Company. During the Employment Term, Executive shall not engage in any other business, profession or occupation for compensation or otherwise which would conflict or interfere with the performance of Executive’s duties and responsibilities to the Company, either directly or indirectly, without the prior written consent of the CEO.
Executive shall at all times comply with and abide by all policies of the Company applicable to Executive.
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3. |
Compensation and Benefits |
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3.1 |
Salary |
Executive’s salary during the Employment Term shall be at a gross annual rate of $120,000. Such salary, less normal deductions, shall be paid to Executive in accordance with the Company’s customary payroll practices in effect from time to time.
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3.2 |
Annual Incentive Bonus |
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(a) |
Executive shall be eligible to receive an annual incentive bonus (the “Incentive Bonus”) from the Company as described below. Notwithstanding the foregoing or anything herein to the contrary, the decision to pay any Incentive Bonus and the amount and terms of any Incentive Bonus shall be, at all times, in the sole and absolute discretion of the Board. |
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(i) |
Calendar Year 2019 Incentive Bonus. In respect of the calendar year ended December 31, 2019, Executive shall be eligible to receive an Incentive Bonus in an aggregate amount up to $30,000, as determined by the Board, comprised of three equal parts as follows: (1) the consistent demonstration by Executive of career development, particularly evolving as a proactive executive of the Company and implementing appropriate financial planning and analysis processes, tools and reports for use by the Board, CEO and management, (2) the successful mitigation of financial risk(s) concerning Mt Melrose, and (3) the Company achieving superior financial results as of December 31, 2019 that outperform the Company’s 2019 budget as finally approved and adopted by the Board, all as determined by the Board. |
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(b) |
Executive must be employed by the Company as of December 31 of a given calendar year in order to earn and be eligible to receive any Incentive Bonus in respect of such calendar year. Each Incentive Bonus, if any, will be paid as soon as reasonably practicable, based on the availability of reliable financial data required to make the determination as to whether performance criteria for the bonus have been met and to perform any bonus calculation, and in any event within two and a half (2 1/2) months after the end of the applicable calendar year; provided, however, in the event that Executive’s employment terminates at any time as a result of a Termination With Cause or a Termination Upon Resignation, Executive shall forfeit automatically all rights in and to any and all earned but yet unpaid Incentive Bonus amounts. |
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3.3 |
Benefit Plans and Programs; Vacation |
During the Employment Term, Executive shall be entitled to participate in all health and welfare and other employee benefit plans and programs maintained by the Company, as any may be in effect from time to time, to the extent consistent with applicable law and the terms of the applicable employee benefit plans and programs.
During the Employment Term, Executive shall be entitled to such paid vacation and sick leave as is in accordance with the most favorable plans, policies, programs and practices of the Company and its affiliated companies as in effect from time to time, and as otherwise may be approved by the Board. Any vacation shall be taken at the reasonable and mutual convenience of the Company and Executive.
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3.4 |
Business Expenses |
The Company shall pay or reimburse Executive for reasonable travel, lodging, meals, entertainment and other reasonable business expenses actually and necessarily incurred by Executive in connection with the performance of Executive’s duties hereunder, upon presentation of receipts therefor submitted to the Company on a timely basis and in accordance with, and in all cases subject to, the Company’s policies and practices in effect from time to time.
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3.5 |
Withholding; Set-Off |
Notwithstanding anything to the contrary herein, all compensation under this Agreement shall be subject to applicable tax withholding requirements and other deductions required by law. Executive agrees that the Company shall be entitled to deduct from and offset against any monies payable or reimbursable to Executive hereunder any and all sums that Executive may owe the Company at any time.
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4. |
Termination of Employment |
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4.1 |
Termination |
Executive’s employment, and any obligations of the Company under this Agreement, shall or may be terminated, in the circumstances set forth below.
|
(a) |
Death. Executive’s employment shall terminate automatically in the event of Executive’s death. |
|
(b) |
Disability. The Company may terminate Executive’s employment in accordance with and subject to the provisions of applicable law, in the event the Company and Executive agree that Executive has been substantially unable to perform Executive’s duties hereunder due to partial or total disability or incapacity resulting from a mental or physical illness, injury or other health-related cause (“Disability”). Executive’s position with respect to the reason or reasons for any such inability to perform duties shall be based upon the opinion of qualified physicians and/or other appropriate medical professionals. Disability shall not be grounds for termination of Executive’s employment under this Agreement in violation of the Americans with Disabilities Act, the Family and Medical Leave Act or any other applicable state or federal law governing the obligations of employers to persons having disabilities, handicaps or serious health conditions. |
|
(c) |
Termination With Cause by the Company or Termination Upon Resignation by Executive. |
|
(i) |
The Company may terminate Executive’s employment hereunder at any time for Cause by providing to Executive written notice of termination stating the grounds for termination for Cause and such termination shall take effect immediately upon notice of termination (“Termination With Cause”). As used herein, “Cause” means (a) an act of fraud or dishonesty by Executive that results in material gain or personal enrichment of Executive at the Company’s expense, including, without limitation, embezzlement or other misappropriation of funds; (b) Executive’s conviction of a felony-class crime or a crime involving moral turpitude; (c) any material breach by Executive of any provision of this Agreement that, if curable, has not been cured by Executive within thirty (30) days of written notice of such breach from the Company; (d) Executive willfully engaging in gross misconduct materially injurious to the Company that, if curable, has not been cured by Executive within thirty (30) days of written notice from the Company specifying the alleged willful gross misconduct and material injury; or (e) any intentional act or gross negligence on the part of Executive that has a material, detrimental effect on the reputation or business of the Company, as determined by the Board. |
|
(ii) |
Executive may resign and terminate Executive’s employment at any time for any reason (or for no reason) upon at least thirty (30) days’ prior written notice of resignation to the Company (“Termination Upon Resignation”). |
|
(d) |
Termination Without Cause by the Company. The Company may terminate Executive’s employment at any time for any reason (or for no reason) upon five (5) business days’ prior written notice to Executive (without stating any grounds for termination for Cause) (“Termination Without Cause”). For purposes of this Section 4, except as otherwise expressly provided herein, Termination Without Cause shall also include a termination of Executive’s employment by virtue of expiration of the Employment Term as of a Renewal Date on account of the Company’s election not to extend this Agreement in accordance with Section 1 hereof. |
Upon termination of Executive’s employment hereunder for any reason, Executive shall be deemed to have resigned from all positions that Executive holds as an officer or member of the Board (and any committee thereof) of the Company or any of its affiliates unless otherwise agreed to and specified in writing by the Company.
|
4.2 |
Payments and Other Entitlements As a Result of Termination |
Executive’s sole entitlements as a result of a termination under Section 4.1 above shall be as set forth below in this Section 4.2; provided, that, in no event shall Executive be entitled to any payments in the nature of severance or termination payments except as specifically provided herein.
|
(a) |
Death or Disability. Following termination due to death or Disability, Executive (or Executive’s estate, as applicable) shall be entitled only to payment of Executive’s then-current salary through the date of termination and for a period of three (3) months thereafter (payable in accordance with the Company’s regular payroll practices), any previously earned but yet unpaid Incentive Bonus amount pursuant to Section 3.2 in respect of the immediately preceding calendar year, any amounts accrued and payable under any benefit plans (payable at such times as provided therein), and any amounts payable for unreimbursed business expenses incurred prior to the date of termination. |
|
(b) |
Termination With Cause by the Company or Termination Upon Resignation by Executive. If Executive’s employment terminates as a result of a Termination With Cause or a Termination Upon Resignation, Executive shall be entitled only to payment of Executive’s then-current salary through the date of termination (payable in accordance with the Company’s regular payroll practices), and any amounts payable for unreimbursed business expenses incurred prior to the date of termination. |
|
(c) |
Termination Without Cause by the Company. If Executive’s employment is terminated as a result of a Termination Without Cause, Executive shall be entitled only to payment of Executive’s then-current salary through the date of termination and for a period of twelve (12) months thereafter (payable in accordance with the Company’s regular payroll practices), any previously earned but yet unpaid Incentive Bonus amount pursuant to Section 3.2 in respect of the immediately preceding calendar year, any amounts accrued and payable under any benefit plans (payable at such times as provided therein), and any amounts payable for unreimbursed business expenses incurred prior to the date of termination. |
|
5. |
Confidential Information |
During the Employment Term and thereafter, Executive shall keep secret and retain in strictest confidence, and shall not, without the prior written consent of the Company, furnish, make available or disclose to any person or use for the benefit of himself or any other person, any Confidential Information, except to the extent reasonably necessary to carry out Executive’s duties and responsibilities to the Company or to the extent required by law or to comply with a valid court order or the lawful subpoena of any administrative or governmental body, in which case Executive shall give prompt notice of such court order or subpoena to the Company. As used in this Section 5, “Confidential Information” shall mean any information relating to the business or affairs of the Company or its affiliates, including, but not limited to, information relating to financial statements, business plans, forecasts, purchasing plans, customer identities, potential customers, employees, current, past and future products or services, suppliers, equipment, marketing programs, strategies and information, analyses, profit margins or other proprietary information used by the Company in connection with the business of the Company; provided, however, Confidential Information shall not include any information which is in the public domain or becomes known in the industry through no wrongful act on the part of Executive. Executive acknowledges that all Confidential Information is vital, sensitive, confidential and proprietary to the Company. The provisions and obligations under this Section 5 shall survive the termination, for any reason, of this Agreement and Executive’s employment hereunder.
|
6. |
Indemnification |
In the event that Executive is made a party or threatened to be made a party to any action, suit or proceeding, whether civil, criminal, administrative, or investigative (a “Proceeding”), other than any Proceeding initiated by Executive or the Company related to any contest or dispute between Executive and the Company or any of its affiliates with respect to this Agreement or Executive’s employment hereunder, by reason of the fact that Executive is or was a director or officer of the Company, or any affiliate of the Company, or is or was serving at the request of the Company as a director, officer, member, employee, or agent of another corporation or a partnership, joint venture or other enterprise, Executive shall be indemnified and held harmless by the Company to the maximum extent permitted under applicable law and the Company’s bylaws from and against any liabilities, costs, claims and expenses, including all costs and expenses incurred in defense of any Proceeding (including attorneys’ fees). During the Employment Term and for a period of two (2) years thereafter, the Company or any successor to the Company shall purchase and maintain, at its own expense, directors’ and officers’ liability insurance providing coverage to Executive on terms that are no less favorable than the coverage provided to other directors and similarly situated executives of the Company.
|
7. |
Miscellaneous |
|
7.1 |
Notices |
All notices and other communication between the parties pursuant to this Agreement must be in writing and will be deemed given when delivered in person, one (1) business day after being dispatched by a nationally recognized overnight courier service, three (3) business days after being deposited in the U.S. Mail, registered or certified mail, return receipt requested, or when sent by facsimile (with receipt acknowledged and a copy sent for next day delivery by a nationally recognized overnight courier service), to the Company at the address of its principal office in Virginia (as shown on the records of the State Corporation Commission of the Commonwealth of Virginia), and to Executive (or her representatives) at her address as shown on the signature page hereto. The parties hereto (or their representatives) may change their addresses for notice purposes by delivering notice to the other party in accordance with this Section 7.1.
|
7.2 |
Governing Law |
This Agreement shall be subject to and governed by the laws of the Commonwealth of Virginia, without regard to any principles of conflicts of laws. Any action or claim between the parties arising out of this Agreement shall be instituted and prosecuted only in a state or federal court situated in the Commonwealth of Virginia. The parties hereby irrevocably submit to the exclusive jurisdiction of such courts and waive the defense of inconvenient forum to the maintenance of any such action or proceeding in such venue.
|
7.3 |
Binding Effect |
This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, legal representatives, executors, administrators, successors and assigns, subject to the limitations on assignment herein.
|
7.4 |
Modification |
No amendment, change or modification of this Agreement will be valid unless it is in writing and signed by both of the parties. No waiver of any provision of this Agreement will be valid unless in writing and signed by the person or party to be charged. No waiver by either of the parties of any breach by the other party hereto of any condition or provision of this Agreement to be performed by the other party hereto shall be deemed a waiver of any similar or dissimilar provision or condition at the same or any prior or subsequent time, nor shall the failure of or delay by either of the parties in exercising any right, power, or privilege hereunder operate as a waiver thereof to preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege.
|
7.5 |
Entire Agreement |
This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof.
|
7.6 |
Severability |
If any provision of this Agreement is, for any reason, invalid or unenforceable, the remaining provisions of this Agreement will nevertheless be valid and enforceable and will remain in full force and effect. Any provision of this Agreement that is held invalid or unenforceable by a court of competent jurisdiction will be deemed modified to the extent necessary to make it valid and enforceable and as so modified will remain in full force and effect.
|
7.7 |
Headings |
The headings in this Agreement are inserted for convenience only and are not to be considered in the interpretation of construction of the provisions of this Agreement.
|
7.8 |
Assignability |
This Agreement may not be assigned by either party without the prior written consent of the other party, except that the Company may assign its rights to, and cause its obligations under this Agreement to be assumed by, any affiliate of the Company and any person or entity to whom or to which the Company simultaneously transfers by sale, merger or otherwise all or substantially all of its assets or equity. For purpose of clarity, if Enterprise Diversified, Inc. merges into, or transfers all or substantially all of its assets to, or as part of a reorganization, restructuring or other transaction becomes a subsidiary of, another entity, then such other entity shall be deemed to be the successor to Enterprise Diversified, Inc. hereunder, the term “Company” as used herein shall mean such other entity (together with its subsidiaries) as is appropriate, and this Agreement shall continue in full force and effect.
|
7.9 |
Costs and Fees |
In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that (i) the Company has materially breached this Agreement, then the Company shall reimburse Executive for her reasonable costs and expenses (including, without limitation, reasonable legal fees and expenses) incurred in connection with all such litigation; or (ii) Executive has materially breached this Agreement, then Executive shall reimburse the Company for its reasonable costs and expenses (including, without limitation, reasonable legal fees and expenses) incurred in connection with all such litigation.
|
7.10 |
No Strict Construction |
The language used in this Agreement will be deemed to be the language chosen by Executive and the Company to express their mutual intent, and no rule of strict construction will be applied against Executive or the Company.
|
7.11 |
Compliance with Section 409A |
This Agreement shall be interpreted and administered in a manner so that any amount payable hereunder shall be paid or provided in a manner and at such time and in such form that is either exempt from or compliant with the applicable requirements of Section 409A of the Code. As used herein, the “Code” means the U.S. Internal Revenue Code of 1986, as amended from time to time, and the regulations and interpretive guidance promulgated thereunder. Notwithstanding anything in this Agreement to the contrary, to the extent that any amount or benefit that would constitute non-exempt “deferred compensation” for purposes of Section 409A of the Code would otherwise be payable by reason of Executive’s termination of employment, such amount or benefit will not be payable to Executive by reason of such circumstance unless (i) the circumstances giving rise to such termination of employment meet any description or definition of “separation from service” in Section 409A of the Code (without giving effect to any elective provisions that may be available under such definition), or (ii) the payment or distribution of such amount or benefit would be exempt from the application of Section 409A of the Code by reason of the short-term deferral exemption or otherwise. If any amount that would constitute non-exempt “deferred compensation” for purposes of Section 409A of the Code would otherwise be payable or distributable under this Agreement by reason of Executive’s separation from service during a period in which she is a “specified employee” (as defined in Section 409A of the Code and applicable regulations), then payment of such non-exempt amounts shall be delayed until the earlier of (a) Executive’s death or (b) the first day of the seventh month following Executive’s separation from service. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement comply with Section 409A of the Code, and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by Executive on account of non-compliance with Section 409A of the Code.
|
7.12 |
Acknowledgement of Full Understanding |
EXECUTIVE ACKNOWLEDGES AND AGREES THAT SHE HAS FULLY READ, UNDERSTANDS AND VOLUNTARILY ENTERS INTO THIS AGREEMENT. EXECUTIVE ACKNOWLEDGES AND AGREES THAT SHE HAS HAD AN OPPORTUNITY TO ASK QUESTIONS AND CONSULT WITH AN ATTORNEY OF HER CHOICE BEFORE SIGNING THIS AGREEMENT.
|
7.13 |
Signatures |
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. The facsimile signature of any party shall be deemed to be an original signature of such party and shall be given the same effect as an original signature of such party.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed this Employment Agreement as of the date first above written.
|
THE COMPANY: |
ENTERPRISE DIVERSIFIED, INC. |
|
By: |
/s/ G. Michael Bridge |
|
Name: |
G. Michael Bridge |
|
Title: |
Chief Executive Officer |
|
EXECUTIVE: |
/s/ Alea Kleinhammer |
|
ALEA KLEINHAMMER |
|
EXHIBIT 21.1
LIST OF SUBSIDIARIES OF ENDI CORP.
|
State of |
Percentage Owned |
|||
|
Bonhoeffer Capital Management, LLC |
New York |
100% (indirectly) |
||
|
CrossingBridge Advisors, LLC |
Delaware |
100% (directly) |
||
| eBuild Ventures, LLC | Delaware | 100% (directly) | ||
| Enterprise Diversified, Inc. | Nevada | 100% (directly) | ||
|
Sitestar.net, Inc. |
Virginia |
100% (indirectly) | ||
|
Willow Oak Asset Management, LLC |
Delaware |
100% (indirectly) | ||
|
Willow Oak Asset Management Affiliate Management Services, LLC |
Delaware |
100% (indirectly) |
||
|
Willow Oak Asset Management Fund Management Services, LLC |
Delaware |
100% (indirectly) |
||
|
Willow Oak Capital Management, LLC |
Delaware |
100% (indirectly) |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in Registration Statement (File No. 333-269284) on Form S-8 and Registration Statement (File No. 333-262505) on Form S-4 of our report dated March 30, 2023, with respect to the consolidated financial statements of ENDI Corp. as of December 31, 2022 and for the year ended December 31, 2022, included in this Annual Report on Form 10-K for the year ended December 31, 2022.
/s/ Brown, Edwards & Company, L.L.P.
Lynchburg, Virginia
March 30, 2023
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in Registration Statement (File No. 333-269284) on Form S-8 and Registration Statement (File No. 333-262505) on Form S-4 of our report dated March 30, 2023, with respect to the financial statements of CrossingBridge Advisors, LLC as of December 31, 2021 and for the year ended December 31, 2021, included in this Annual Report on Form 10-K for the year ended December 31, 2022.
/s/ Brown, Edwards & Company, L.L.P.
Lynchburg, Virginia
March 30, 2023
EXHIBIT 31.1
Certification OF CHIEF EXECUTIVE OFFICER OF ENDI CORP.
Pursuant to 18 U.S.C. Section 1350 as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
I, David Sherman, certify that:
|
1. |
I have reviewed this Annual Report on Form 10-K of ENDI Corp.; |
|
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. |
|
Date: March 30, 2023 |
|
By: |
|
/s/ David Sherman |
|
|
|
|
|
David Sherman |
|
|
|
|
|
Chief Executive Officer |
|
|
|
|
|
(Principal Executive Officer) |
EXHIBIT 31.2
CERTIFICATION OF CHIEF FINANCIAL OFFICER OF ENDI CORP.
PURSUANT TO 18 U.S.C. SECTION 1350 AS ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Alea Kleinhammer, certify that:
|
1. |
I have reviewed this Annual Report on Form 10-K of ENDI Corp.; |
|
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. |
|
Date: March 30, 2023 |
|
By: |
|
/s/ Alea Kleinhammer |
|
|
|
|
|
Alea Kleinhammer |
|
|
|
|
|
Chief Financial Officer |
|
|
|
|
|
(Principal Financial and Accounting Officer) |
EXHIBIT 32.1
CERTIFICATION OF CHIEF EXECUTIVE OFFICER OF ENDI CORP.
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 Annual Report of ENDI Corp. (the “Company”) on Form 10-K for the year ended December 31, 2022, as filed with the Securities and Exchange Commission (the “SEC”) on March 30, 2023 (the “Report”), I, David Sherman, Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. Section 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, as amended; and |
|
|
(2) |
The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company as of, and for the periods presented in the Report. |
|
By: |
|
/s/ David Sherman |
|
|
|
David Sherman |
|
|
|
Chief Executive Officer |
|
|
|
(Principal Executive Officer) |
March 30, 2023
This certification is being furnished to the SEC with this Report pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, as amended, and shall not, except to the extent required by such Act, be deemed filed by the Company for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to liability of that section.
EXHIBIT 32.2
CERTIFICATION OF CHIEF FINANCIAL OFFICER OF ENDI CORP.
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 Annual Report of ENDI Corp. (the “Company”) on Form 10-K for the year ended December 31, 2022, as filed with the Securities and Exchange Commission (the “SEC”) on March 30, 2023 (the “Report”), I, Alea Kleinhammer, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. Section 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, as amended; and |
|
(2) |
The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company as of, and for the periods presented in the Report. |
|
By: |
/s/ Alea Kleinhammer |
|
|
Alea Kleinhammer |
||
|
Chief Financial Officer |
||
|
(Principal Financial and Accounting Officer) |
March 30, 2023
This certification is being furnished to the SEC with this Report pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, as amended, and shall not, except to the extent required by such Act, be deemed filed by the Company for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to liability of that section.