Amendment No. 1 to Investment Agreement, dated as of March 6, 2019, by and between Cohen & Company, LLC and JKD Capital Partners I LTD
Exhibit 10.23
AMENDMENT NO. 1 TO INVESTMENT AGREEMENT
THIS AMENDMENT NO. 1 TO INVESTMENT AGREEMENT (this “Amendment”), is entered into as of March 6, 2019, by and between Cohen & Company, LLC (formerly IFMI, LLC), a Delaware limited liability company (the “Company”), and JKD Capital Partners I LTD, a New York corporation (“Investor”). Capitalized terms used herein but otherwise not defined shall have the meanings ascribed to such terms in the Investment Agreement (as defined below).
RECITALS:
WHEREAS, the Company is a majority owned subsidiary of Cohen & Company Inc. (“Parent”);
WHEREAS, Investor is owned by Jack J. DiMaio, Jr., the Vice Chairman of the Company’s Board of Directors, and his spouse;
WHEREAS, on October 3, 2016, the Company and Investor entered into an Investment Agreement (the “Investment Agreement”), pursuant to which, among other things, Investor agreed to invest up to $12,000,000 into the Company in exchange for the Investment Return Quarterly Payments to be made by the Company to Investor pursuant to the terms and conditions of the Investment Agreement; and
WHEREAS, the Company and Investor have orally agreed (the “Oral Agreements”) to amend the Investment Agreement and desire to document the Oral Agreements in writing by entering into this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:
| 1. Amendment to Definition of “Investment Return”. Section 1(h) of the Investment Agreement is hereby deleted in its entirety and replaced with the following language: |
“(h)“Investment Return” shall mean, with respect to the calendar quarter being measured:
(A) during the period commencing on October 1, 2018 and ending on December 31, 2018, an amount equal to 42% of the difference between (i) Revenue in Accordance with GAAP, less (ii) Team Expenses; and
(B) during the period commencing on January 1, 2019 and ending at the end of the Term, an amount equal to (x) the difference between (i) Revenue in Accordance with GAAP, less (ii) Team Expenses, multiplied by (y) a fraction, the numerator of which is equal to the daily average Investment Balance (excluding any accrued but unpaid Investment Returns) during such calendar quarter, and the denominator of which is equal to the daily average total capital limit allocated to the Team during such calendar quarter.”
| 2. No Other Changes. Except as expressly amended by this Amendment, all of the terms and conditions of the Investment Agreement shall continue in full force and effect and shall be unaffected by this Amendment. |
| 3. Entire Agreement. This Amendment constitutes the sole and entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral (including the Oral Agreements), with respect to such subject matter. |
| 4. Amendment. This Amendment may not be amended or modified except by a written agreement executed by the Company and Investor. |
| 5. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION. THE PARTIES FURTHER AGREE THAT ANY ACTION BETWEEN THEM SHALL BE HEARD IN NEW YORK, NEW YORK, AND EXPRESSLY CONSENT TO THE JURISDICTION AND VENUE OF THE STATE AND FEDERAL COURTS SITTING IN NEW YORK, NEW YORK, FOR THE ADJUDICATION OF ANY CIVIL ACTION ASSERTED PURSUANT TO THIS AMENDMENT. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AMENDMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AMENDMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. |
| 6. Headings. The sections and other headings contained in this Amendment are for reference purposes only and shall not affect the meaning or interpretation of this Amendment. |
| 7. Binding Effect. This Amendment shall be binding upon and inure to the benefit of the Company and Investor and their respective heirs, successors and permitted assigns. |
| 8. Counterparts. This Amendment may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Amendment delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Amendment. |
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Parties have executed this Amendment No. 1 to Investment Agreement on the date first written above.
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| INVESTOR: | |
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| JKD Capital Partners I LTD | |
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| By: | /s/ Jack J. DiMaio, Jr. |
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| Name: | Jack J. DiMaio, Jr. |
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| Title: | Owner |
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| THE COMPANY: | |
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| COHEN & COMPANY, LLC | |
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| By: | /s/ Joseph W. Pooler, Jr. |
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| Name: | Joseph W. Pooler, Jr. |
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| Title: | Executive Vice President and Chief Financial officer |
