United States securities and exchange commission logo
April 18, 2022
Alea A. Kleinhammer
Chief Financial Officer
ENDI Corp.
1806 Summit Ave, Ste 300
Richmond, VA 23230
Re: ENDI Corp.
Amendment No. 1 to
Registration
Statement on Form S-4
Filed March 28,
2022
File No. 333-262505
Dear Ms. Kleinhammer:
We have reviewed your amended registration statement and have the
following
comments. In some of our comments, we may ask you to provide us with
information so we
may better understand your disclosure.
Please respond to this letter by amending your registration
statement and providing the
requested information. If you do not believe our comments apply to your
facts and
circumstances or do not believe an amendment is appropriate, please tell
us why in your
response.
After reviewing any amendment to your registration statement and
the information you
provide in response to these comments, we may have additional comments.
Unless we note
otherwise, our references to prior comments are to comments in our March
3, 2022 letter.
Amendment No. 1 to Registration Statement on Form S-4
General
1. Please provide updated
consents from the independent accountants in your next
amendment.
2. Please refer to comment
46. Please revise your Form S-4 and Enterprise Diversified,
Inc. s next Form 10-Q
to describe your current plans to remediate the material weaknesses
including the steps
remaining to be taken and their estimated timing.
3. Refer to page 31 of the
Enterprise Diversified, Inc. Form 10-K for the fiscal year ended
December 31, 2021. We
note that Willow Oak no longer holds any remaining investment
Alea A. Kleinhammer
FirstName
ENDI Corp.LastNameAlea A. Kleinhammer
Comapany
April NameENDI Corp.
18, 2022
April 218, 2022 Page 2
Page
FirstName LastName
in Alluvial Fund, L.P. at December 31, 2020. Please revise to present
gains on investment
activity as realized, as appropriate.
4. Refer to your response to comment 43. Please include the financial
statements for
Enterprise Diversified and ENDI Corp. in your registration statement.
5. We note your response to comment 6 and reissue the comment. Please
provide us your
analysis regarding whether or not New Parent qualifies as an emerging
growth company.
In doing so please consider the applicability of Generally Applicable
Questions on Title I
of the JOBS Act, Question and Answer (24) and (47). In addition
provide your analysis
as to why you have "previously taken the position that Enterprise
Diversified Inc. does not
constitute an emerging growth company."
Cover Page
6. Refer to your response to comment 7. Please revise your disclosure on
the cover page to
state the number of shares of New Parent Class B Common stock that the
CBA Member
will receive in connection with the Merger as well as the aggregate
price and the price per
share of the 100,000 shares of New Parent Class A Common Stock that
the CBA Member
will purchase immediately after Closing. In addition, please revise
the cover page of your
prospectus and the Question and Answer section to disclose the number
of shares of New
Parent that the ENDI directors and officers and the non-affiliated
ENDI stockholders will
receive as well as the cash value of the consideration that the ENDI
directors and officers
will receive in connection with the Merger and that the non-affiliated
ENDI stockholders
will receive in connection with the Merger.
Questions and Answers
What are the rights of holders of New Parent Class A Common Stock . . . ., page
2
7. Refer to your response to comment 8. Please expand your description
regarding New
Parent Common Stock here to disclose that holders of New Parent Class
B Common
Stock, voting together as a single class, have the right to designate
up to sixty percent of
the total size of the board of directors for so long as the holders of
New Parent Class B
Common Stock own at least twenty-five percent of the outstanding
shares of Common
Stock of New Parent, (ii) the right to designate up to forty percent
of the total size of the
board of directors for so long as the holders of New Parent Class B
Common Stock own at
least fifteen percent but less then twenty-five percent of the
outstanding shares
of Common Stock of New Parent, and (iii) the right to designate one
director for so long
as the holders of New Parent Class B Common Stock own at least five
percent of the
outstanding shares of Common Stock of New Parent.
What factors did the ENDI Board of Directors consider . . . ., page 3
8. Refer to your response to comment 9. Please expand this question and
answer to provide
the context for the board's decision to approve the Merger Agreement
by explicitly stating
that (i) ENDI had total assets of $14,857,180 as of December 31, 2020
as compared to
Alea A. Kleinhammer
FirstName
ENDI Corp.LastNameAlea A. Kleinhammer
Comapany
April NameENDI Corp.
18, 2022
April 318, 2022 Page 3
Page
FirstName LastName
CBA s total assets of $2,603,301 as of December 31, 2020, (ii) ENDI
had revenues of
$5,247,732 for the fiscal year ended December 31, 2020 as compared to
CBA s revenues
of $3,061,088 for the fiscal year ended December 31, 2020, (iii) ENDI
had net income of
$3,279,404 for the fiscal year ended December 31, 2020 as compared to
CBA s net
income of $1,088,142 for the fiscal year ended December 31, 2020, (iv)
David
Sherman will have control of the New Parent with approximately 65.1%
ownership of the
total shares outstanding, (v) David Sherman will be the CEO and a
director of New
Parent, and (vi) David Sherman, pursuant to the terms of the
Stockholder Agreement and
New Parent s certificate of incorporation, will be able to designate
60% of the directors so
long as he holds at least 25% of New Parent s Common Stock. In
addition, please explain
the reasons for the Voting Agreement, the Stockholders Agreement and
the Services
Agreement.
9. Refer to your response to comment 10. Please revise to provide the
total aggregate
estimated costs associated with the Business Combination and other
transactions
contemplated by the Merger Agreement.
If the Business Combination is completed, will there be a public market . . .
.., page 5
10. Refer to your response to comment 11. Please revise to disclose here
that approval to
quote the New Parent Class A Common Stock on the OTCQB Marketplace is
a condition
to the closing of the Business Combination. In that regard we note
your reference here
to OTCMKTS.
What equity stake will current ENDI stockholders, officers, directors, and the
CBA Member
have in New Parent?, page 5
11. Please revise to clearly disclose the voting percentages and the
economic percentages that
each group holds under each scenario.
How is voting conducted, page 8
12. Refer to your revised disclosure in response to comment 5. Your
disclosure on page 8 that
the approval of the Organizational Documents Proposals requires the
affirmative vote of a
majority of the ENDI shares present at the Special Meeting or
represented by proxy and
entitled to vote at the Special Meeting appears to conflict with your
disclosure elsewhere
that the shareholders are voting on these proposals on a non-binding
advisory basis.
Please revise for clarity.
Organizational Structure, page 10
13. Please refer to comment 14. Please revise your organizational
structure to include all
entities or other groups so that the ownership percentages disclosed
total 100%.
Additionally, please revise to include disclosure that refers to the
ownership percentage
table on page 5.
Alea A. Kleinhammer
FirstName
ENDI Corp.LastNameAlea A. Kleinhammer
Comapany
April NameENDI Corp.
18, 2022
April 418, 2022 Page 4
Page
FirstName LastName
Summary
The Business Combination
Ancillary Agreements, page 11
14. Refer to your response to comment 16. Please revise to disclose the
number of securities
that are subject to the Registration Rights Agreement as well as the
price per share of the
securities purchased pursuant to this agreement. In addition, disclose
the parties to the
Additional Purchase Subscription Agreement.
Required Regulatory Approvals, page 15
15. Refer to your response to comment 18. Please disclose the date you
expect to receive a
response from the OTCQB, and disclose whether the parties may waive
the condition
regarding the approval to quote New Parent Class A Common Stock on the
OTCQB.
Risk Factors
Operational Risks Associated with the Business Combination
New Parent's Certificate of Incorporation provides that . . . ., page 24
16. Refer to your response to comment 42. Your disclosure on page 24 that
"[t]his exclusive
forum provision would not apply to suits brought to enforce a duty or
liability created by
the Securities Act of 1933 . . . or the Securities Exchange Act of
1934 . . . , except that it
may apply to such suits if brought derivatively on New Parent s
behalf" appears to be
inconsistent with Section 11.01(b) of Article 11 of the Amended and
Restated Certificate
of ENDI Corp., which states that "[u]nless the Corporation consents in
writing to the
selection of an alternative forum, 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." Please revise for clarity and
consistency and be
advised that Section 27 of the Exchange Act creates exclusive federal
jurisdiction over all
suits brought to enforce any duty or liability created by the Exchange
Act or the rules and
regulations thereunder.
The Business Combination
Background of the Business Combination, page 29
17. Refer to your response to comment 23. Please revise the last paragraph
on page 29 to state
that ENDI's combined market capitalization following the merger may
not be the
approximate $40 million discussed here, or advise.
18. Refer to your response to comment 25. Please disclose the valuation of
ENDI and CBA
and expand your disclosure related to the negotiations regarding the
consideration and
ancillary agreements, including the Voting Agreement, the Stockholder
Agreement, David
Sherman s employment agreement, the Services Agreement and the
Additional Purchase
Subscription Agreement, so that investors understand how the
consideration and terms of
Alea A. Kleinhammer
FirstName
ENDI Corp.LastNameAlea A. Kleinhammer
Comapany
April NameENDI Corp.
18, 2022
April 518, 2022 Page 5
Page
FirstName LastName
the ancillary agreements were negotiated and eventually agreed upon.
In this regard, we
note that (i) ENDI had total assets of $14,857,180 as of December 31,
2020 as compared
to CBA s total assets of $2,603,301 as of December 31, 2020, (ii)
ENDI had revenues of
$5,247,732 for the fiscal year ended December 31, 2020 as compared to
CBA s revenues
of $3,061,088 for the fiscal year ended December 31, 2020, (iii) ENDI
had net income of
$3,279,404 for the fiscal year ended December 31, 2020 as compared to
CBA s net
income of $1,088,142 for the fiscal year ended December 31, 2020, (iv)
David
Sherman will have control of the New Parent with approximately 65.1%
ownership of the
total shares outstanding, (v) David Sherman will be the CEO and a
director of New
Parent, and (vi) David Sherman, pursuant to the terms of the
Stockholder Agreement and
New Parent s certificate of incorporation, will be able to designate
60% of the directors so
long as he holds at least 25% of New Parent s Common Stock.
Opinion of Financial Advisor, page 35
19. Refer to your response to comment 26. We note your disclosure that
Empire provided a
written opinion to the Board of Directors that the Business
Combination is fair to ENDI
from a financial point of view. To the extent that the fairness to
stockholders of ENDI
from a financial point of view was beyond the scope of the fairness
opinion, please
disclose in the questions and answers section and the risk factors
section. In addition,
please revise to disclose the summary of the financial analyses
conducted here, and please
supplementally provide copies of the board books and any other
materials, including
presentations made by the financial advisor provided to the board and
management in
connection with the proposed transaction.
20. Please disclose any material relationship that existed during the past
two years between
Empire and its affiliates and CBA and its affiliates. To the extent
that such
relationship existed, please disclose the compensation paid to the
financial advisor. In
addition, to the extent that projections exchanged between (i) ENDI
and Empire (ii) CBA
and Empire, or (iii) ENDI and CBA and such projections were relied
upon by ENDI's
board or Empire in considering the transaction or the fairness
determination, please
disclose these projections.
Financial Analysis, page 36
21. We note that you provide no numerical data in this section. Please
significantly revise this
section to include data regarding Empire's analyses, including the
bases and methods used,
procedures followed, and findings, so that you are providing investors
with sufficient
information to evaluate the bases for the fairness determination.
The Agreement and Plan of Merger
Conditions to Closing, page 46
22. Refer to your response to comment 27. Please identify the conditions
that may be waived
Alea A. Kleinhammer
FirstName
ENDI Corp.LastNameAlea A. Kleinhammer
Comapany
April NameENDI Corp.
18, 2022
April 618, 2022 Page 6
Page
FirstName LastName
by the parties subject to the Merger Agreement.
Management's Discussion and Analysis, page 65
23. Briefly revise your discussion on page 65 regarding your "inclusionary
screen" related to
environmental, social, and governance objectives, to state any
quantitative criteria used.
If none are used, please so state.
Assets Under Management, page 66
24. Please refer to comment 37. We note you revised to provide performance
measures and
benchmarks for certain of your investment strategies/funds. Please
revise to include
performance measures and benchmarks for all your material investment
strategies/funds
including the Destinations Low Duration Fixed Income Fund and the
Destinations Global
Fixed Income Opportunities Fund.
Management of New Parent Following the Business Combination, page 70
25. Refer to your response to comment 40. Please revise to disclose the
compensation of
directors for the last completed fiscal year that will continue to
serve on New Parent's
board of directors.
Beneficial Ownership
New Parent, page 71
26. Please revise to expand the table on page 72 to include the shares of
New Parent Class A
Common Stock and the percentage of New Parent Class A Common Stock
that will be
held by New Parent's executive officers, directors and 5% holders, and
expand the the
table on page 72 to include the Class B common stock, the percentage
held by each
director, officer or over 5% holders and the aggregate voting power of
each person or
entity included in the table.
Certain Relationships and Related Party Transactions, page 75
27. Refer to your response to comment 4. Please revise to discuss the
Registration Rights
Agreement, the Stockholders Agreement and the Additional Purchase
Subscription
Agreement here.
Index to Financial Statements, page 93
28. Please revise to include current and updated CrossingBridge Advisors,
LLC financial
statements, pro forma information and other required financial
information.
CrossingBridge Advisors, LLC - Notes to Financial Statements, page 118
29. Please revise to disclose your accounting policies related to your
investments.
Additionally, please revise to disclose the information required by
ASC 321-10-50 and
Alea A. Kleinhammer
ENDI Corp.
April 18, 2022
Page 7
ASC 820-10-50.
Exhibit Index, page 121
30. Please file Empire's consent to be named in the registration statement.
Refer to Securities
Act Section 7(a) and Rule 436.
You may contact Michael Volley at 202-551-3437 or Amit Pande,
Accounting Branch
Chief, at 202-551-3423 if you have questions regarding comments on the
financial statements
and related matters. Please contact Sonia Bednarowski at 202-551-3666 or John
Dana Brown at
202-551-3859 with any other questions.
Sincerely,
FirstName LastNameAlea A. Kleinhammer
Division of
Corporation Finance
Comapany NameENDI Corp.
Office of Finance
April 18, 2022 Page 7
cc: Matthew Mamak
FirstName LastName