UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

Form 10-K

 

[X]	ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934.

 

For the fiscal year ended December 28, 2019

 

[  ]	TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934.

 

Commission File Number: 1-9009

 

TOFUTTI BRANDS INC.

(Exact name of registrant as specified in its charter)

 

Delaware (State or other jurisdiction of incorporation or organization)

13-3094658 (I.R.S. Employer Identification No.)

 

50 Jackson Drive, Cranford, New Jersey (Address of principal executive offices)

07016 (Zip Code)

 

(908) 272-2400

(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:

 

Title of each class		Trading Symbol(s)		Name of each exchange on which registered
Common Stock, par value $0.01 per share		TOFB		None

 

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.

 

Yes [  ] No [X]

 

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 [  ] No [X]

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.

 

Yes [X] No [  ]

 

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted 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 and post such files). Yes [X] No [  ]

 

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. [X]

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, 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 [  ]
Non-accelerated filer [  ] (Do not check if a smaller reporting company)
Smaller reporting company[X]	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 7(a)(2)(B) of the Securities Act. [  ]

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act.)

Yes [  ] No [X]

 

The aggregate market value of the voting stock held by non-affiliates of the Registrant as of the most recently completed second fiscal quarter: $5,246,695.

 

As of April 20, 2020, the issuer had 5,153,706 shares of common stock, par value $0.01, outstanding.

 

 

 

EXPLANATORY NOTE

 

This Annual Report on Form 10-K for the fiscal year ended December 28, 2019 is being filed pursuant to the order of the Securities and Exchange Commission contained in SEC Release No. 34-88465, dated March 25, 2020 (the “Order”). We filed a Form 8-K on March 27, 2020, the original due date of the Form 10-K, indicating our reliance on the relief granted by the Order.

 

 

TABLE OF CONTENTS

 

PART I			3
	Item 1.	Business.	3
	Item 1A.	Risk Factors.	10
	Item 1B.	Unresolved Staff Comments.	19
	Item 2.	Properties.	19
	Item 3.	Legal Proceedings.	19
	Item 4.	Mine Safety Disclosures.	19
PART II			19
	Item 5.	Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities.	19
	Item 6.	Selected Financial Data.	20
	Item 7.	Management’s Discussion and Analysis of Financial Condition and Results of Operations.	21
	Item 7A.	Quantitative and Qualitative Disclosures about Market Risk.	29
	Item 8.	Financial Statements and Supplementary Data.	29
	Item 9.	Changes in and Disagreements with Accountants on Accounting and Financial Disclosure.	30
	Item 9A.	Controls and Procedures.	30
	Item 9B.	Other Information.	31
PART III			32
	Item 10.	Directors, Executive Officers and Corporate Governance.	32
	Item 11.	Executive Compensation.	34
	Item 12.	Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.	35
	Item 13.	Certain Relationships and Related Transactions, and Director Independence.	36
	Item 14.	Principal Accounting Fees and Services.	37
PART IV			38
	Item 15.	Exhibits, Financial Statement Schedules.	38
SIGNATURES			39

 

 

INTRODUCTION

 

We are engaged in the development, production and marketing of TOFUTTI® brand dairy free, vegan frozen desserts, cheeses and other food products. TOFUTTI products are soy and other vegetable protein-based, vegan, dairy free products which contain no butterfat, cholesterol or lactose.

 

As used in this annual report, the terms “we,” “us” and “our” mean Tofutti Brands Inc., unless otherwise indicated. Statements made in this annual report concerning the contents of any contract, agreement or other document are summaries of such contracts, agreements or documents and are not complete descriptions of all of their terms. If we filed any of these documents as an exhibit to this annual report or to any previous filling with the Securities and Exchange Commission, you may read the document itself for a complete recitation of its terms.

 

Except for the historical information contained in this annual report, the statements contained in this annual report are “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, or the Exchange Act, as amended, and the Private Securities Litigation Reform Act of 1995, as amended, with respect to our business, financial condition and results of operations. Such forward-looking statements reflect our current view with respect to future events and financial results. We urge you to consider that statements which use the terms “anticipate,” “believe,” “do not believe,” “expect,” “plan,” “intend,” “estimate,” “anticipate” and similar expressions are intended to identify forward-looking statements. We remind readers that forward-looking statements are merely predictions and therefore inherently subject to uncertainties and other factors and involve known and unknown risks that could cause the actual results, performance, levels of activity, or our achievements, or industry results, to be materially different from any future results, performance, levels of activity, or our achievements expressed or implied by such forward-looking statements. Such forward-looking statements are also included in Item 1. “Business” and Item 7. “Management’s Discussion and Analysis of Financial Condition and Results of Operations.” Readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date hereof. We undertake no obligation to update or revise any forward-looking statements to reflect new information, future events or circumstances, or otherwise after the date hereof. We have attempted to identify significant uncertainties and other factors affecting forward-looking statements in the Risk Factors section that appears in Item 1A. “Risk Factors.”

 

We operate on a fiscal year ending on the Saturday closest to December 31. Fiscal years for the financial statements included herein are the fifty-two week periods ended December 28, 2019 (fiscal 2019) and December 29, 2018 (fiscal 2018).

 

 

PART I

 

Item 1.

Business.

 

GENERAL

 

We are engaged in the development, production and marketing of TOFUTTI® brand dairy free, vegan frozen desserts, cheeses and other food products. TOFUTTI products are vegan, dairy free products which contain no butterfat, cholesterol or lactose and use soy and other vegetable proteins. Our products are 100% dairy free yet offer the same texture and full-bodied taste as their dairy counterparts. Our products are also free of cholesterol and derive their fat from corn and palm oils, each naturally lower in saturated fat than dairy products. With the exception of Mintz’s Blintzes, all of our products are completely vegan and our vegan cheese products are gluten free as well. In addition, all of our products are certified kosher-parve and all of our vegan cheese products are also certified halal.

 

We were organized under the laws of the State of New York in 1981 and became a Delaware corporation in 1984. Our registered office and principal executive offices are located at 50 Jackson Drive, Cranford, New Jersey 07016, our telephone number is 908-272-2400. Our address on the Internet is www.tofutti.com. The information on our website is not incorporated by reference into this annual report.

 

STRATEGY

 

Our strategy is to enhance our position as a leading provider of dairy free, vegan food products, primarily cheese products and frozen desserts, to supermarkets, health food stores, and food service customers in the United States and abroad. We intend to continue to introduce new products that offer good taste while containing no butterfat, cholesterol or dairy to these markets.

 

We focus our marketing efforts toward those consumers who find our products essential to their everyday diets because of health, lifestyle or religious reasons. As part of this strategy, we seek to achieve brand awareness through product innovation, eye-catching packaging, trade advertising, and a strong word-of-mouth marketing program. We believe that our ability to offer a wide range of dairy free, vegan, and kosher-parve products will continue to provide us with a competitive advantage.

 

TOFUTTI PRODUCT LINE

 

We offer a broad product line of vegan, dairy free products that use soy or other vegetable-based proteins. Our dairy free products include frozen desserts, cheeses and spreads, and other frozen food products.

 

Frozen Desserts

 

	♦	Premium TOFUTTI® dairy free frozen dessert, available in pre-packed pints, three-gallon cans, and soft serve mix, is sold nationally in supermarkets, health food stores, retail shops, and restaurants. Premium TOFUTTI was the first dairy free frozen dessert to be marketed to the general public through supermarkets. We currently offer six flavors of premium, hard frozen TOFUTTI in pints, three flavors in three-gallon bulk cans and one soft-serve flavor.
	♦	TOFUTTI CUTIES®, our best-selling frozen dessert product, are bite size frozen sandwiches combining a choice of one of four different fillings between two chocolate wafers. Half the size of traditional ice cream sandwiches, TOFUTTI CUTIES offer consumers a portion-controlled treat. Unlike ice cream sandwiches, CUTIES are totally dairy free, without butterfat or cholesterol, yet with the same great taste that makes ice cream sandwiches one of the bestselling novelties in the freezer case. Tofutti Cuties come in three flavors: vanilla, chocolate and mint chocolate chip. Like all our frozen dessert products, they are completely trans-fat free, including the wafers.

 

 

	♦	YOURS TRULY cones have a generous scoop of creamy vanilla TOFUTTI set in a chocolate-coated crispy cone, then covered in deep, rich chocolate and topped with a crispy chocolate cookie crunch.
	♦	Reintroduced in the fourth quarter of 2019, our TOFUTTI MARRYME® BARS are stick novelties that feature creamy vanilla TOFUTTI surrounded by a dark chocolate coating. Made with organic sugar and with no gluten added, MARRY ME BARS satisfy important diet requirements of certain consumers with that great TOFUTTI taste.

 

Dairy Free Vegan Cheese Products

 

	♦	BETTER THAN CREAM CHEESE® is similar in taste and texture to traditional cream cheese, but is dairy free, butterfat-free, gluten-free and contains no cholesterol. It is as versatile as real cream cheese, whether spread on a bagel, used as a dip for snack items, such as crackers or chips, or used in any favorite recipe. BETTER THAN CREAM CHEESE comes in three flavors, plain, Herb & Chives, and Garlic & Herb and is available in 8 oz. retail packages and in 5 lb. containers and 30 lb. bulk boxes for food service customers.
	♦	TOFUTTI WHIPPED BETTER THAN CREAM CHEESE is the whipped version of our original BETTER THAN CREAM CHEESE available in a 14 oz. container. It is available in many supermarkets and health food stores.
	♦	BETTER THAN SOUR CREAM® is similar in taste and texture to traditional sour cream, but is dairy free, butterfat-free, gluten-free and contains no cholesterol. BETTER THAN SOUR CREAM has the versatility of sour cream with the added benefit of being dairy free. The 12 oz. retail packages are available in plain and guacamole. The plain version is also available in 5 lb. containers for food service customers. Like BETTER THAN CREAM CHEESE, BETTER THAN SOUR CREAM is available nationally in many health food stores and select supermarkets.
	♦	TOFUTTI DIPPITY DO DAH DIPS incorporate our BETTER THAN SOUR CREAM with four exciting flavors for use as dips for snacking. Those flavors are Roasted Garlic, Garden Cucumber, French Onion and Cheddar Jalapeno available in 12 oz. retail containers.
	♦	TOFUTTI VEGAN CHEESE SLICES™ offer consumers a delicious dairy free, gluten-free, vegan alternative to regular cheese slices and contain no trans fatty acids. Available as individually wrapped slices in 8 oz. packages, TOFUTTI VEGAN CHEESE SLICES are sold in most health food stores and select supermarkets and come in two flavors: Mozzarella and American. The Mozzarella version is also available in 40 lb. blocks for food service customers.
	♦	BETTER THAN RICOTTA CHEESE®, our dairy free ricotta cheese alternative, offers consumers a dairy-free and gluten-free alternative that tastes and works just like real ricotta cheese in all their favorite recipes. Available in 16 oz. retail containers, BETTER THAN RICOTTA is available nationally in supermarkets and health food stores.

 

 

Frozen Food Products

 

♦

TOFUTTI BLINTZES are frozen crepes filled with TOFUTTI BETTER THAN CREAM CHEESE that are dairy and cholesterol free, but taste just like real cheese blintzes. Our blintzes are available in freezer cases in select supermarkets and health food stores and can be served hot, warm, or slightly chilled as a main meal or a snack.

 

Planned 2020 Product Introductions

 

We also plan to introduce a new line of vegan cream cheese in the second quarter of 2020.

 

MARKETING AND DISTRIBUTION

 

TOFUTTI products are sold and distributed across the United States and internationally, and can be found in gourmet specialty shops, kosher supermarkets, natural/health food stores, and national and regional supermarket chains. All of our products are sold by independent unaffiliated food brokers to distributors and sometimes on a direct basis to retail chain accounts or to warehouse accounts that directly service chain accounts. Such direct accounts include Safeway/Albertsons, Publix, Kroger, King Soopers, Whole Foods, Sprouts, Fred Meyer, DeMoulas/Market Basket, Wakefern Food Corp., and Ahold USA. Food brokers act as our agents within designated territories or for specific accounts and receive commissions, which average 5% of net collected sales. Certain key domestic, kosher, and food service accounts and all international accounts are handled directly by us. Our products are also sold in approximately fifteen other countries.

 

We currently sell our dairy-free vegan cheese products and frozen dessert products in most major markets in the United States, including Atlanta, Baltimore, Boston, Charlotte, Chicago, Cincinnati, Cleveland, Dallas, Denver, Detroit, Houston, Jacksonville, Kansas City, Los Angeles, Miami, Milwaukee, Minneapolis, Nashville, New York, Orlando, Philadelphia, Phoenix, Portland, Richmond, Salt Lake City, San Diego, San Francisco, Seattle, St. Louis, Tampa and Washington, D.C.

 

We distribute most of our products by allowing customers to pick-up products from outside storage facilities. We do not own, lease or otherwise maintain any vehicles involved in the shipping of our products. From our co-packing facilities, we either ship direct to our customers or we ship to outside public storage facilities from where our customers are able to pick up their orders. Use of outside storage facilities in several key locations in the United States allows us to provide our customers with products in a timely fashion. Currently, we use two warehouses in New Jersey, one for our frozen dessert and food products and one for our cheese products, and one warehouse in northern California for both categories of products.

 

In addition to ice cream and cheese distributors, our products are handled by most major national and regional natural and/or gourmet specialty distributors in the country. We distribute our products through thirty-eight (38) distributors to the national health food market.

 

Our sales to health food accounts in fiscal 2019 increased to $6,436,000, or 49% of total sales, from approximately $5,850,000, or 45% of total sales, in fiscal 2018, due to the growth of our cheese product sales in the natural foods category. Sales to our kosher accounts decreased to $651,000, or 5% of sales, in fiscal 2019, from sales of approximately $1,498,000, or 11% of sales, in fiscal 2018.

 

 

The following table presents the geographical breakdown of our sales in our largest domestic markets for the last two fiscal years.

 

		Fiscal Year ended December 28, 2019								Fiscal Year ended December 29, 2018
		Sales				% of total Sales				Sales				% of total Sales
		(Dollars in thousands)
Midwest			1,993				15	%		$	2,068				16	%
Metropolitan New York			1,884				14	%			1,901				15	%
California			1,860				14	%			1,633				12	%
Mid-Atlantic			1,025				8	%			498				4	%
New England			959				7	%			809				6	%
Northwest			814				6	%			711				5	%
Florida			788				6	%			851				7	%
Upstate New York			681				5	%			636				5	%
Southeast			508				4	%			617				5	%
Southwest			400				3	%			416				3	%
Rocky Mountains			296				2	%			277				2	%

 

During fiscal 2019, we shipped our products to distributors in Australia, Canada, Egypt, the United Kingdom (“UK”), Ireland, Israel, Mexico, Panama, and South Africa. Our distributor in the UK acted as our master distributor for all of Europe and part of the Middle East, excluding Israel, and sold our products into approximately twenty other countries. Sales to foreign distributors decreased to $1,725,000, or 13% of sales, in fiscal 2019, from $2,333,000, or 18% of sales, in fiscal 2018. During fiscal 2019, our foreign business was negatively impacted by a very strong U.S. dollar which made our products more expensive in local currency. Our export business to the UK and the rest of Europe was also negatively impacted by the still unresolved Brexit issues. Just prior to year end, our UK master distributor was forced to declare bankruptcy and closed down their business operations completely due to the collapse of the British pound against the US dollar. Until such time as we are able to replace this distribution network in Europe, our sales there will be negatively impacted. Export vegan cheese sales were also negatively impacted by new customs requirements in Israel, which impacted all imports into that country. The new regulations significantly increased the time it takes to get shipments cleared through customs in Israel as government officials implement the new requirements.

 

We conduct all of our foreign business in U.S. dollars. Accordingly, our future export sales could be adversely affected by an increase in the value of the U.S. dollar against local currencies, which could increase the local currency price of our products. Additionally, our future export sales could be negatively impacted by the COVID-19 pandemic.

 

COMPETITION

 

TOFUTTI frozen desserts compete with all forms of ice cream products, yogurt-based desserts and other plant-based frozen desserts. We believe that we are a leader in the dairy free frozen dessert product market and offer the most complete line of dairy free frozen dessert products. Other plant-based frozen dessert products are presently being sold throughout the United States by established manufacturers and distributors of ice cream and other frozen dessert products. The ice cream and frozen dessert industry is highly competitive and most companies with whom we compete are substantially larger and have significantly greater resources than us. All of our products face substantial competition from dairy free and dairy products marketed by companies with significantly greater resources than we have. Similar to our frozen desserts, all our vegan cheese products face stiff competition within their category from both dairy cheese products and plant-based cheese products.

 

 

In most product categories, we compete not only with widely advertised branded products, but also with generic and private label products that are generally sold at lower prices. Competition in our product categories is based on product innovation, product quality, price, brand recognition and loyalty, effectiveness of marketing, promotional activity, and the ability to identify and satisfy consumer preferences. Our market share and ability to grow our revenue could also be adversely impacted if we are not successful in introducing innovative products in response to changing consumer demands or by new product introductions of our competitors. If we are unable to build and sustain brand equity by offering recognizably superior product quality, we may be unable to maintain premium pricing over competitive products. We believe that we are able to compete effectively due to our ability to offer an array of vegan cheese products, dairy free frozen desserts, and other food products that contain no butterfat, cholesterol or lactose and are 100% dairy free, yet offer the same texture and full-bodied taste as their dairy counterparts.

 

PRODUCT DEVELOPMENT

 

All of our products were developed by us in our own laboratory. David Mintz, our Chief Executive Officer, devotes a substantial amount of his time and effort to new product development and product reformulation. In fiscal 2019 and 2018, our product development expenses were approximately $324,000 and $410,000, respectively. These amounts do not include any portion of Mr. Mintz’s salary. All product development costs are expensed as incurred and are recorded as operating expenses in our financial statements.

 

PRODUCTION

 

We believe that all of our products are produced under the strictest quality control procedures that are available in each manufacturing facility used by us. These quality control procedures include, but are not limited to, the cleaning processes utilized prior to running our products; spot line inspections during production; in-house laboratory testing as required by government agencies; supervision of all our production by our kosher supervisory service; supervision of all our vegan cheese production by our halal supervisory service; and random testing by outside independent laboratories to ensure that our internal quality control procedures and guidelines are being properly followed.

 

All of our products are produced by co-packers to whom we supply certain key ingredients and packaging for the manufacturing processes. Our co-packing facilities are fully licensed and must comply with all state and federal laws and regulations. We currently utilize five co-packers. Our co-packers manufacture and package our products and, in certain instances, warehouse such products pending shipment. For certain key product categories, such as dairy free vegan cheeses and dairy free frozen desserts, we have more than one co-packer. In selecting an appropriate co-packer, we take into account all of the preceding factors, plus cost considerations such as product processing fees and freight and warehouse expenses.

 

For the years ended December 28, 2019 and December 29, 2018, we purchased approximately (i) 52% and 49% of our finished goods, respectively, from Franklin Foods, our co-packer for our BETTER THAN CREAM CHEESE, WHIPPED BETTER THAN CREAM CHEESE, BETTER THAN SOUR CREAM, and BETTER THAN RICOTTA products, and (ii) 19% and 20%, respectively, of our finished goods from Luke’s Ice Cream, our frozen novelty dessert co-packer.

 

Relationships with Co-Packers

 

We do not anticipate that we would encounter any material difficulty in obtaining alternative production sources, at a comparable cost, if one or all of our co-packers decide to terminate their relationships with us. Nevertheless, any disruption in supply could have a material adverse effect on our company.

 

 

In order to protect our formulas, we have entered into confidentiality arrangements with our co-packers and some of our co-packers’ employees. All of our employees, including officers, sign similar confidentiality agreements. There can be no assurance that such confidentiality arrangements can or will be maintained, or that our trade secrets, know-how and marketing ability cannot be obtained by others, or that others do not now possess similar or even more effective capabilities.

 

Kosher Certification

 

KOF-K Kosher Supervision, or KOF-K, of Teaneck, New Jersey provides us with our kosher certification service. Before KOF-K will permit its certification, evidenced by its symbol, to be placed on a product, KOF-K must approve both the ingredients contained in the product and the facility processing the product. Approval of the manufacturing facilities we use include periodic inspections, and in most cases, on-site supervision of actual production. We pay a yearly renewal fee for certification and ongoing fees throughout the year for supervisory services for each production run. We believe that our ability to successfully market and distribute our products is dependent upon our continued compliance with the requirements of rabbinical certification. All TOFUTTI products meet the requirements for certification as kosher-parve.

 

Halal Certification

 

In early 2013, we completed a halal certification process at Franklin Foods, the co-packer of our BETTER THAN CREAM CHEESE, WHIPPED BETTER THAN CREAM CHEESE, BETTER THAN SOUR CREAM and BETTER THAN RICOTTA products and at Whitehall Specialties, the co-packer of our vegan cheese slices and bulk Better Than Mozzarella products. This certification is provided by the Islamic Food and Nutrition Council of America (IFANCA) of Park Ridge, Illinois and currently applies only to those products manufactured by Franklin Foods and Whitehall Specialties. Before IFANCA will permit its certification to be placed on a product, which is evidenced by its symbol, IFANCA must approve both the ingredients contained in the product and the facility processing the product. Approval of the manufacturing facilities we use includes periodic inspections. There is a yearly renewal fee for certification. All TOFUTTI vegan cheese products meet the requirements for certification as halal.

 

TRADEMARKS AND PATENTS

 

We have registered our trademark, TOFUTTI®, and other trademarks for our frozen desserts and other products in the United States and approximately thirty-four foreign countries. We believe our trademarks are an important means of establishing consumer recognition for our products and we will vigorously oppose any unauthorized use of our trademarks. We are not currently involved in any trademark litigation.

 

Although we believe that our formulas and processes are proprietary, we have not sought patent protection for such technology. Instead, we are relying on the complexity of our technology, on trade secrecy laws and on confidentiality agreements. We believe that our technology has been independently developed and does not infringe the patents of others.

 

GOVERNMENT REGULATION

 

Companies engaged in the manufacture, packaging and distribution of food items are subject to extensive regulation by various government agencies which, pursuant to statutes, rules, and regulations, prescribe quality, purity, manufacturing and labeling requirements. Food products are often subject to “standard of identity” requirements, which are promulgated at either the Federal or state level to determine the permissible qualitative and quantitative ingredient content of food. To the extent that any product that we seek to market does not conform to an applicable standard, special permission to market such a product is required.

 

 

Our United States product labels are subject to regulation by the United States Food and Drug Administration, or the FDA. Such regulations include standards for product descriptions, nutritional claims, label format, minimum type sizes, content and location of nutritional information panels, nutritional comparisons, and ingredient content panels. Our labels, ingredients and manufacturing processes are subject to inspection by the FDA. We believe that we are in compliance with current labeling requirements and conduct periodic reviews to make certain that such compliance is on-going.

 

The Food, Drug and Cosmetic Act, the Food Safety Modernization Act and rules and regulations promulgated by the FDA thereunder, contain no specific Federal standard of identity which is applicable to our products. Our frozen dessert products meet the New York State standard of identity for “parevine,” which has been adopted by at least eight other states. Many states require registration and label review before food products can be sold. While approval in one jurisdiction generally indicates the products will meet with approval in other jurisdictions, there is no assurance that approval from other jurisdictions will be forthcoming. Additionally, many of our major customers now require that any food products that they purchase be produced in Safe Quality Food, or SQF, manufacturing facilities. The SQF program is recognized by the Global Food Safety Initiative and provides a rigorous system to manage food safety risks and provide safe products use by companies in the food industry. All of our current co-packers are SQF certified or have completed the certification process and are awaiting final approval by the certifying organization.

 

Food manufacturing facilities are subject to inspections by various safety, health and environmental regulatory authorities. A finding of a failure to comply with one or more regulatory requirements can result in the imposition of sanctions including the closing of all or a portion of a company’s facilities, subject to a period during which the company can remedy the alleged violations. Our Cranford, New Jersey facility is subject to inspection by the New Jersey-Kosher Enforcement Bureau and the New Jersey Environmental Health Services. We believe that we, our distributors and our co-packers are in compliance in all material respects with governmental regulations regarding our current products and have obtained the material governmental permits, licenses, qualifications and approvals required for our operations. Our compliance with Federal, state and local environmental laws has not materially affected us either economically or in the manner in which we conduct our business. However, there can be no assurance that our company, our distributors and our co-packers will be able to comply with such laws and regulations in the future or that new governmental laws and regulations will not be introduced that could prevent or temporarily inhibit the development, distribution and sale of our products to consumers.

 

New government laws and regulations may be introduced in the future that could result in additional compliance costs, seizures, confiscations, recalls or monetary fines, any of which could prevent or inhibit the development, distribution and sale of our products. If we fail to comply with applicable laws and regulations, we may be subject to civil remedies, including fines, injunctions, recalls or seizures, as well as potential criminal sanctions, which could have a material adverse effect on our business, results of operations and financial condition.

 

There are currently no new or special government laws or regulations that have been introduced as a result of the coronavirus pandemic. However, there can be no assurances that any such laws or regulations may not be introduced in the future, which could have a material adverse effect on our business.

 

 

EMPLOYEES

 

We employed eight persons on a full-time basis in fiscal 2019 and nine persons on a full-time basis in fiscal 2018. We do not have any collective bargaining agreements with our employees.

 

Item 1A. Risk Factors.

 

Investing in our common stock involves a high degree of risk and uncertainty. You should carefully consider the risks and uncertainties described below before investing in our common stock. If any of the following risks actually occurs, our business prospects, financial condition and results of operations could be harmed. In that case, the value of our common stock could decline, and you could lose all or part of your investment.

 

Risks Related to Our Business

 

We may not be able to maintain profitable operations in the future. We may not have sufficient working capital to fund our operations in the future.

 

As of December 28, 2019, we had $514,000 in cash and cash equivalents and our working capital was $3,840,000. Our cash and cash equivalents decreased from $558,000 as of December 29, 2018. The funds spent for purchases of equipment were partially offset by our operating profit. The lack of sufficient working capital has negatively impacted our ability to introduce and adequately promote new products. To the extent that we incur operating losses in the future or are unable to generate free cash flows from our business, we may not have sufficient working capital to fund our operations and will be required to obtain additional financing. Such financing may not be available, or, if available, may not be on terms satisfactory to us. If adequate funds are not available to us, our business, and results of operations and financial condition will be adversely affected.

 

Interruptions in the supply of products from our co-packers and suppliers could adversely affect our revenues.

 

We depend on a limited number of suppliers for ingredients, packaging materials and the production of our products. We do not produce any of our own products. For the years ended December 28, 2019 and December 29, 2018, we purchased approximately 52% and 49%, respectively, of our finished goods from Franklin Foods, including our BETTER THAN CREAM CHEESE, WHIPPED BETTER THAN CREAM CHEESE, BETTER THAN SOUR CREAM, and BETTER THAN RICOTTA products, and purchased approximately 19% and 20%, respectively, of our finished goods from Luke’s Ice Cream, our frozen dessert novelty co-packer.

 

In September 2016, we were notified by Ice Cream Specialties, the then co-packer of our frozen dessert stick novelties, Tofutti Cuties, and Yours Truly Cones, that they would cease manufacturing those products by the end of January 2018. In April 2018 we began production of our Tofutti Cuties at Luke’s Ice Cream, located in Florida. Luke’s began manufacturing Yours Truly Cones in November 2018 and began to manufacture our frozen dessert novelty bars in the second quarter of 2019. Our frozen dessert pints are produced by Leiby’s Dairy in Pennsylvania. Any future disruption in supply could have a further material adverse effect on our company.

 

We have little control over the suppliers of ingredients to our co-packers. Disruptions in these relationships may reduce our sales and revenues. Overall difficulty of suppliers meeting product demand, interruptions in the supply chain, obstacles or delays in the process of renegotiating or renewing agreements with preferred suppliers, financial difficulties experienced by suppliers, or the deficiency, lack, or poor quality of alternative suppliers could adversely impact our sales which, in turn, would adversely affect our business and operating results. We believe that, if necessary, we could obtain available alternative sources of supply for each of our products. Depending on the product, that might entail using more than one source of supply.

 

 

Our operations may be adversely affected by failure to maintain or renegotiate distribution, supply or manufacturing agreements on favorable terms.

 

We have a number of distribution, supply and co-packing agreements for our supplies and products. These agreements vary depending on the particular supply and/or product. There can be no assurance that we will be able to renew these agreements on favorable terms or that these agreements will not be terminated. Termination of these agreements or failure to renew these agreements on favorable terms could have a negative effect on our results of operations and financial condition.

 

Our business and results of operations may be negatively impacted by the spread of COVID-19.

 

We sell our products throughout the United States and in approximately 15 foreign countries and may be impacted by public health crises beyond our control. This could disrupt our operations and negatively impact sales of our products. Our customers, suppliers and co-packers may experience similar disruption. In December 2019, a novel strain of the Coronavirus, COVID-19, was reported to have surfaced in Wuhan, China, which has evolved into a pandemic. This situation and preventative or protective actions that governments have taken to counter the effects of the pandemic have resulted in a period of business disruption, including delays in shipments of products and raw materials. COVID-19 has spread to over 175 countries, including the United States, and efforts to contain the spread of COVID-19 have intensified. To the extent the impact of COVID-19 continues or worsens, the demand for our products may be negatively impacted, and we and our co-packers may have difficulty obtaining the materials necessary for the production of our products. In addition, the production facilities of our co-packers may be closed for sustained periods of time and industry-wide shipment of products may be negatively impacted. COVID-19 has also impacted our sales efforts as our ability to make sales calls is constrained. Our ability to promote sales through promotional activities has also been constrained as many supermarkets are understaffed and unable to change pricing for items in stock, resulting in the cancelation of all sales promotional discounts for the foreseeable future. Trade food shows and sales conferences, major events used to introduce and sell our products, have been postponed indefinitely. The length and severity of the pandemic could also affect our regular sales, which could in turn result in reduced sales and a lower gross margin.

 

We are indebted to our Chairman and Chief Executive Officer pursuant to a promissory note which is secured by substantially all of our assets. Any failure to meet our obligations under the note could materially harm our business, financial condition and results of operations.

 

On January 6, 2016, we received a $500,000 loan from Mr. David Mintz, our Chairman of the Board and Chief Executive Officer. Initially due on December 31, 2017, the loan has been extended until December 31, 2022 effective January 10, 2020. During the original term of the loan it was convertible into shares of our common stock at a conversion price of $4.01 per share, the closing price of our common stock on the NYSE MKT on the date the promissory note was entered into. The extended loan is convertible into our common stock at a conversion price of $1.77 per share at the option of the holder, the closing price of our common stock on the OTCQB on the date the extended promissory note was entered into. The loan bears interest at 5% per annum and may be prepaid in whole or in part at any time without premium or penalty.

 

In the event we are unable to repay the loan, or if there is an event of default, without any action on the part of Mr. Mintz, the interest rate will increase to 12% per annum and the entire principal and interest balance under the loan, and all of our other obligations under the loan, will be immediately due and payable, and Mr. Mintz will be entitled to seek and institute any and all remedies available to him. Any failure to meet our obligations under the note could materially harm our business, financial condition and results of operations.

 

 

Successful customer relationships are vital to our business and continued growth.

 

We must maintain strong relationships with our existing customers and build relationships with new customers in order to ensure our products are well presented to our consumers and available for purchase in major markets. The strength of our customer relationships also affects our ability to obtain pricing and competitive trade terms. Failure to maintain strong relationships with customers could negatively impact our terms of business with affected customers and reduce the availability of our products to consumers.

 

We rely on a limited number of key executives to manage our business.

 

Our success is significantly dependent on the services of David Mintz (age 88), Chief Executive Officer, and Steven Kass (age 68), Chief Financial Officer. The loss of the services of either of these persons could have a material adverse effect on our business and results of operations.

 

As a branded goods business, our success depends on the value and relevance of our brand and products to consumers and on our ability to innovate and remain competitive.

 

Consumer tastes, preferences and behaviors are constantly changing and our ability to anticipate and respond to these changes and to continue to maintain loyalty to our brand and products is vital to our business. We are dependent on creating innovative products that continue to meet the needs of our consumers. If we are unable to innovate effectively, our sales or margins could be materially adversely affected.

 

The successful introduction of innovative products and packaging on a periodic basis has become increasingly important to our ability to maintain and grow our sales. Accordingly, the future degree of market acceptance of any of our new products, and continued acceptance of our current products, which may be accompanied by significant promotional expenditures, is likely to have an important impact on our future financial results.

 

Our suppliers are subject to federal, state and local government regulations that could adversely affect our business and financial position.

 

Virtually all food manufacturing operations are subject to regulation by various federal, state and local government entities and agencies. As producers of food products for human consumption, our suppliers are subject to stringent production, packaging, quality, labeling and distribution standards, including regulations mandated by the Federal Food, Drug and Cosmetic Act, the Food Safety Modernization Act, the FDA, OSHA, the EPA and the USDA. Future regulation by various federal, state or local governmental entities or agencies could, among other things, increase our suppliers’ cost of production, cause them to incur unexpected expenditures or encumber productivity, any of which may adversely affect our business and financial results.

 

We may not be able to compete effectively in the highly competitive frozen dessert, dairy free cheese food and health food markets.

 

The dairy free frozen dessert, cheese and health food markets are highly competitive. In addition, many of our principal competitors are large, diversified companies with resources significantly greater than ours. We expect strong competition to continue, including competition for adequate distribution and competition for the limited shelf space for the frozen dessert and dairy free cheese food categories in supermarkets and other retail food outlets. Competition in our product categories is based on product innovation, product quality, price, brand recognition and loyalty, effectiveness of marketing, promotional activity, and the ability to identify and satisfy consumer preferences. Our market share and ability to grow our revenue could also be adversely impacted if we are not successful in introducing innovative products in response to changing consumer demands or by new product introductions of our competitors. If we are unable to build and sustain brand equity by offering recognizably superior product quality, we may be unable to maintain premium pricing over competitive products.

 

 

From time to time, we and our customers experience price pressure in some of our markets as a result of competitors’ promotional pricing practices as well as general market conditions. Our failure to match or exceed our competitors’ cost reductions through innovative products and other improvements could weaken our competitive position. Competition is based on product quality, reliability, food safety, distribution effectiveness, brand loyalty, price, effective promotional activities, the ability to identify and satisfy emerging consumer preferences and the ability to provide ancillary support services. We may not be able to compete effectively with these larger, more diversified companies.

 

A material change in consumer demand for our products could have a significant impact on our business.

 

We are a consumer food products company and rely on continued demand for our products. To achieve business goals, we must develop and sell products that appeal to consumers. If demand and growth rates fall substantially below expected levels or our market share declines significantly in these businesses, our results could be negatively impacted. This could occur due to unforeseen negative economic or political events or to changes in consumer trends and habits.

 

Breaches of network or information technology security could have an adverse effect on our business.

 

We rely heavily on IT systems to manage critical functions such as operations, data storage and retrieval, revenue recognition, budgeting, forecasting, financial reporting and other administrative functions. Cyber-attacks or other breaches of network or information technology, or IT, may cause equipment failures or disrupt our systems and operations. In particular, both unsuccessful and successful cyber-attacks on companies have increased in frequency, scope and potential harm in recent years. Such an event may result in our inability to communicate with our co-packers, operate our facilities, which, even if the event is for a limited period of time, may result in significant expenses and/or loss of market share to other competitors.

 

A party who is able to compromise the security measures on our networks or the security of our infrastructure could, among other things, misappropriate our proprietary information and the personal information of our customers and employees, cause interruptions or malfunctions in our or our customers’ operations, cause delays or interruptions to our ability to meet customer needs, cause us to breach our legal, regulatory or contractual obligations, create an inability to access or rely upon critical business records or cause other disruptions in our operations. These breaches may result from human errors, equipment failure, or fraud or malice on the part of employees or third parties. Our exposure to cybersecurity threats and negative consequences of cybersecurity breaches will likely increase as we store increasing amounts of customer data.

 

We seek to protect against such threats and may be required to expend significant financial resources to alleviate problems caused by physical, electronic, and cyber security breaches. As techniques used to breach security are growing in frequency and sophistication and are generally not recognized until launched against a target, regardless of our protection efforts, we may not be able to implement security measures in a timely manner or, if and when implemented, these measures could be circumvented. Any breaches that may occur could expose us to increased risk of lawsuits, loss of existing or potential future customers, harm to our reputation and increases in our security costs, which could have a material adverse effect on our financial performance and operating results.

 

In the event of a breach resulting in loss of data, such as personally identifiable information or other such data protected by data privacy or other laws, we may be liable for damages, fines and penalties for such losses under applicable regulatory frameworks despite not handling the data. Furthermore, if a high-profile security breach or cyber-attack occurs with respect to another provider of mission-critical data center facilities, our customers and potential customers may lose trust in the security of these business models generally, which could harm our reputation and brand image as well as our ability to retain existing customers or attract new ones. In addition, the regulatory framework around data custody, data privacy and breaches varies by jurisdiction and is an evolving area of law. We may not be able to limit our liability or damages in the event of such a loss.

 

 

While we maintain insurance coverage for some of these events, the potential liabilities associated with these events could exceed the insurance coverage we maintain. A failure to protect the privacy of customer and employee confidential data against breaches of network or IT security could result in damage to our reputation. Any of these occurrences could result in a material adverse effect on our results of operations and financial condition.

 

Our operating costs are subject to fluctuations which could affect our business results.

 

The principal raw materials that we use are commodities that experience price volatility caused by external conditions such as weather, product scarcity, limited sources of supply, commodity market fluctuations, currency fluctuations, and changes in governmental agricultural and energy policies and regulations. Commodity price changes may result in unexpected increases in raw material, packaging, and energy costs. Therefore, our success is dependent, in part, on our continued ability to manage these fluctuations through pricing actions, cost savings projects and sourcing decisions. In the manufacturing and general overhead areas, we need to maintain key manufacturing and supply arrangements, including any key sole supplier and manufacturing plant arrangements.

 

Economic conditions adversely affecting consumer discretionary spending may negatively impact our business and operating results.

 

We believe that our revenues and profitability are strongly correlated to consumer discretionary spending, which is influenced by general economic conditions, unemployment levels, and the availability of discretionary income. In an economic downturn or in the event of the continued spread of COVID-19, our business and results of operations could be materially and adversely affected.

 

Our operating results vary quarterly.

 

Sales to our major customers fluctuate widely from period to period and there is no way to accurately predict that their sales pattern from one year will be repeated in the corresponding period of the next fiscal year. Due to the foregoing factors, in some future quarter our operating results may be below the expectations of investors. In such event, it is likely that the price of our common stock would be materially adversely affected.

 

We have no registered patents. The absence of patent protection could adversely affect our results of operations.

 

We rely upon the confidentiality of our formulas and our know-how rather than upon patent protection. There is no assurance that such confidentiality can or will be maintained or that our know-how cannot be obtained by others or that others do not now possess similar or even more effective capabilities. The failure to maintain the confidentiality of our know-how could adversely affect our operating results.

 

Unanticipated business disruptions could adversely affect our ability to provide our products to our customers.

 

We have a complex network of suppliers, co-manufacturing locations, distribution networks, and information systems that support our ability to consistently provide our products to our customers. Factors that are hard to predict or beyond our control, such as weather, raw material shortages, natural disasters, fires or explosions, terrorism, or health pandemics, such as the new coronavirus, COVID-19, that originated in China, could damage or disrupt our operations or our suppliers’, co-manufacturers’ or distributors’ operations. These disruptions may require additional resources to restore our supply chain or distribution network. If we cannot respond to disruptions in our operations, whether by finding alternative suppliers or replacing capacity at key manufacturing or distribution locations, or if we are unable to quickly repair damage to our information, production, or supply systems, we may be late in delivering, or be unable to deliver, products to our customers and may also be unable to track orders, inventory, receivables, and payables. If that occurs, our customers’ confidence in us and long-term demand for our products could decline. Any of these events could materially and adversely affect our product sales, financial condition, and operating results.

 

 

We are subject to risks associated with international operations.

 

In fiscal 2019, approximately 13% of our revenues were from international sales. Although we intend to expand our international operations, we cannot be certain that we will be able to maintain or increase international market demand for our products. To the extent that we cannot do so in a timely manner, our business, operating results and financial condition will be adversely affected. International operations are subject to inherent risks, including the following:

 

●	different and changing regulatory requirements in the jurisdictions in which we currently operate or may operate in the future;
●	the impact of possible recessionary environments in multiple foreign markets;
●	export restrictions, tariffs and other trade barriers;
●	difficulties in managing and supporting foreign operations;
●	longer payment cycles;
●	difficulties in collecting accounts receivable;
●	political and economic changes, hostilities and other disruptions in regions where we currently sell or products or may sell our products in the future; and
●	seasonal reductions in business activities.

 

Negative developments in any of these areas in one or more countries could result in a reduction in demand for our products, the cancellation or delay of orders already placed, difficulty in collecting receivables, and a higher cost of doing business, any of which could adversely affect our business, results of operations or financial condition.

 

We may be adversely affected by fluctuations in currency exchange rates.

 

Our foreign transactions are always in U.S. dollars. Therefore, our future export sales could be adversely affected by an increase in the value of the U.S. dollar, which could increase the local currency price of our products. There can be no assurance such fluctuations in the future will not materially and adversely affect our revenues from international sales and, consequently, our business, operating results and financial condition.

 

 

Incidents involving food-borne illnesses, food tampering, or food contamination involving our products or our supply chain could create negative publicity and significantly harm our operating results.

 

While we and our co-packers dedicate substantial resources to food safety matters to enable customers to enjoy safe, quality food products, food safety events, including instances of food-borne illness (such as salmonella or E. Coli), have occurred in the food industry in the past, and could occur in the future. Instances or reports, whether true or not, of food-safety issues, such as food-borne illnesses, food tampering, food contamination or mislabeling, either during the growing, manufacturing, packaging, storing, or preparation of products, have in the past severely injured the reputations of companies in the frozen desert and dairy sectors and could affect us as well. Any report linking us, our suppliers or co-packers to food-borne illnesses or food tampering, contamination, mislabeling, or other food-safety issues could damage the value of our brands immediately and severely hurt sales of our products and possibly lead to product liability claims, litigation (including class actions), or other damages. In addition, food safety incidents, whether or not involving our brands, could result in negative publicity for the industry or market segments in which we operate. Increased use of social media could create and/or amplify the effects of negative publicity. This negative publicity may reduce demand for our products.

 

Product liability suits, if brought, could have a material adverse effect on our business.

 

From time to time in the normal course of our business, we become subject to product liability claims. If a product liability claim exceeding our insurance coverage were to be successfully asserted against us, it could harm our business. We cannot assure you that such coverage will be sufficient to insure against claims which may be brought against us, or that we will be able to maintain such insurance or obtain additional insurance covering existing or new products. As a marketer of food products, we are subject to the risk of claims for product liability. We maintain general product liability and umbrella insurance coverage and generally require that our co-packers maintain product liability insurance with us as a co-insured. Similarly, most of our customers require us to name them as additional insureds as well, and in some cases we are required to sign hold harmless and indemnification agreements.

 

Our failure to maintain effective internal controls in accordance with Section 404 of the Sarbanes-Oxley Act of 2002 could have an adverse effect on our financial results and the market price of our common stock.

 

The Sarbanes-Oxley Act of 2002 imposes certain duties on us and our executives and directors. Our efforts to comply with the requirements of Section 404 have resulted in increased general and administrative expense and a diversion of management time and attention, and we expect these efforts to require the continued commitment of resources. Section 404 of the Sarbanes-Oxley Act requires us to provide management’s annual review and evaluation of our internal control over financial reporting in connection with the filing of our Annual Report on Form 10-K for each fiscal year. Based on our evaluation under the frameworks described above, our chief executive officer and chief financial officer concluded that our internal control over financial reporting was ineffective as of December 28, 2019 because of the following material weaknesses in internal controls over financial reporting:

 

●	a continuing lack of sufficient resources and an insufficient level of monitoring and oversight, which may restrict our ability to gather, analyze and report information relative to the financial statements, including but not limited to accounting estimates, reserves, allowances, and income tax matters, in a timely manner.
●	The limited size of the accounting department makes it impracticable to achieve an optimum separation of duties and monitoring of internal controls.

 

Our failure to maintain effective internal controls over financial reporting could result in investigation or sanctions by regulatory authorities, and could have a material adverse effect on our operating results, investor confidence in our reported financial information, and the market price of our common stock.

 

 

Risks Relating to Our Common Stock

 

Our principal shareholder has the ability to control the policies and management of our company.

 

Our Chairman of the Board and Chief Executive Officer, David Mintz, holds 2,630,440 shares of common stock representing approximately 51.0% of the outstanding shares. For as long as Mr. Mintz has a controlling interest in our company, he will have the ability to exercise a controlling influence over our business and affairs, including any determinations with respect to potential mergers or other business combinations involving us, our acquisition or disposition of assets, our incurrence of indebtedness, our issuance of any additional common shares or other equity securities, our repurchase or redemption of common shares and our payment of dividends. Similarly, as long as Mr. Mintz has a controlling interest in our company, he will have the power to determine the outcome of matters submitted to a vote of our shareholders, including the power to elect all of the members of our board of directors and prevent an acquisition or any other change in control of us.

 

Trading on the OTCQB tier of the OTC Markets may be volatile and sporadic, which could depress the market price of our common stock and make it difficult for our stockholders to resell their shares.

 

Since October 24, 2016 our common stock has been quoted on the OTCQB tier of the electronic quotation system operated by OTC Markets. Trading in stock quoted on the OTC Markets is often thin and characterized by wide fluctuations in trading prices, due to many factors that may have little to do with our operations or business prospects. This volatility could depress the market price of our common stock for reasons unrelated to operating performance. Moreover, the OTC Markets is not a stock exchange, and trading of securities on the OTC Markets is often more sporadic than the trading of securities listed on a quotation system like NASDAQ or a stock exchange like the NYSE MKT. Accordingly, shareholders may have difficulty reselling any of their shares and the lack of liquidity may negatively impact our ability to pursue strategic alternatives.

 

Penny stock rules will limit the ability of our stockholders to sell their stock.

 

The Securities and Exchange Commission has adopted regulations which generally define “penny stock” to be any equity security that has a market price (as defined) less than $5.00 per share or an exercise price of less than $5.00 per share, subject to certain exceptions. Our securities are covered by the penny stock rules, which impose additional sales practice requirements on broker-dealers who sell to persons other than established customers and “accredited investors.” The term “accredited investor” refers generally to institutions with assets in excess of $5,000,000 or individuals with a net worth in excess of $1,000,000 or annual income exceeding $200,000 or $300,000 jointly with their spouse. The penny stock rules require a broker-dealer, prior to a transaction in a penny stock not otherwise exempt from the rules, to deliver a standardized risk disclosure document in a form prepared by the Securities and Exchange Commission, which provides information about penny stocks and the nature and level of risks in the penny stock market. The broker-dealer also must provide the customer with current bid and offer quotations for the penny stock, the compensation of the broker-dealer and its salesperson in the transaction and monthly account statements showing the market value of each penny stock held in the customer’s account. The bid and offer quotations, and the broker-dealer and salesperson compensation information, must be given to the customer orally or in writing prior to effecting the transaction and must be given to the customer in writing before or with the customer’s confirmation. In addition, the penny stock rules require that prior to a transaction in a penny stock not otherwise exempt from these rules, the broker-dealer must make a special written determination that the penny stock is a suitable investment for the purchaser and receive the purchaser’s written agreement to the transaction. These disclosure requirements may have the effect of reducing the level of trading activity in the secondary market for the stock that is subject to these penny stock rules. Consequently, these penny stock rules may affect the ability of broker-dealers to trade our securities. We believe that the penny stock rules discourage investor interest in and limit the marketability of our common stock.

 

 

The Financial Industry Regulatory Authority, or FINRA, has adopted sales practice requirements which may also limit a shareholder’s ability to buy and sell our stock.

 

In addition to the penny stock rules described above, FINRA has adopted rules that require that, in recommending an investment to a customer, a broker-dealer must have reasonable grounds for believing that the investment is suitable for that customer. Prior to recommending speculative, low-priced securities to their non-institutional customers, broker-dealers must make reasonable efforts to obtain information about the customer’s financial status, tax status, investment objectives and other information. Under interpretations of these rules, FINRA believes that there is a high probability that speculative, low-priced securities will not be suitable for at least some customers. FINRA requirements make it more difficult for broker-dealers to recommend that their customers buy our common stock, which may limit your ability to buy and sell our stock and have an adverse effect on the market for its shares.

 

Volatility of the market price of our common stock could adversely affect our shareholders and us.

 

The market price of our common stock has been subject to fluctuations in the past and may be subject to wide fluctuations in response to numerous factors, including the following:

 

●	actual or anticipated variations in our quarterly operating results or those of our competitors;
●	announcements by us or our competitors of new and enhanced products;
●	developments or disputes concerning proprietary rights;
●	introduction and adoption of new industry standards;
●	market conditions or trends in our industry;
●	announcements by us or our competitors of significant acquisitions;
●	entry into strategic partnerships or joint ventures by us or our competitors;
●	additions or departures of key personnel;
●	political and economic conditions, such as a recession or interest rate or currency rate fluctuations or political events; and
●	other events or factors in any of the countries in which we do business, including those resulting from war, incidents of terrorism, natural disasters, pandemics or responses to such events.

 

In addition, in recent years the stock market has been highly volatile. Many of these factors are beyond our control and may materially adversely affect the market price of our ordinary shares, regardless of our performance. In the past, following periods of market volatility, shareholders have often instituted securities class action litigation relating to the stock trading and price volatility of the company in question. If we were involved in any securities litigation, it could result in substantial cost to us to defend and divert resources and the attention of management from our business.

 

We do not intend to pay cash dividends.

 

Our policy is to retain earnings, if any, for use in our business and, for this reason, we do not intend to pay cash dividends on our shares of common stock in the foreseeable future.

 

 

Item 1B.

Unresolved Staff Comments.

 

None.

 

Item 2.

Properties.

 

Our facilities are located in a one-story facility in Cranford, New Jersey. The 6,200 square foot facility houses our administrative offices, a warehouse, walk-in freezer and refrigerator, and a product development laboratory and test kitchen. Our lease agreement expired in 1999, but we continue to occupy the premises under the terms of that agreement, subject to a six month notification period from us and the landlord with respect to any changes. We currently have no plans to enter into a long-term lease agreement for the facility. Our rent expense was $77,000 in both fiscal 2019 and fiscal 2018. Our management believes that the Cranford facility will continue to satisfy our space requirements for the foreseeable future. We rent warehouse storage space at various outside facilities. Outside warehouse expenses amounted to $458,000 and $448,000 during fiscal 2019 and 2018, respectively.

 

Item 3.

Legal Proceedings.

 

We are not a party to any material litigation.

 

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.

 

Our common stock was listed on the American Stock Exchange, or the AMEX, on October 29, 1985 and traded on the AMEX or its successor, NYSE MKT, under the symbol TOF until October 24, 2016 when our common stock began to be quoted on the OTCQB tier of the electronic quotation system operated by OTC Markets under the symbol TOFB.

 

Each share ranks equally as to dividends, voting rights, participation in assets on winding-up and in all other respects. No shares have been or will be issued subject to call or assessment. There are no preemptive rights, provisions for redemption or for either cancellation or surrender, or provisions for sinking or purchase funds.

 

The closing price for our common stock on April 20, 2020, as reported on the OTCQB, was $1.45.

 

Holders of Record

 

As of April 20, 2020, there were approximately 338 direct holders of record of our common stock.

 

Dividends

 

We have never paid and have no present intention of paying cash dividends on our common stock in the foreseeable future.

 

 

2014 Equity Incentive Plan

 

Our shareholders adopted our 2014 Equity Incentive Plan (the “Plan”) on June 10, 2014. As of December 28, 2019, we had issued 80,000 non-qualified stock option awards under the Plan. No option awards were granted in the two fiscal years ended December 29, 2018 or December 28, 2019. The Plan provides for grants of various types of awards (“Awards”) that are designed to attract and retain highly qualified employees and directors who will contribute to the success of the company and to provide incentives to participants in this Plan that are linked directly to increases in shareholder value which will, therefore, inure to the benefit of all of our shareholders. The Plan will expire on June 9, 2024. The Plan makes 250,000 shares of our common stock available for Awards under the Plan. The Plan also permits performance-based Awards paid under the Plan to be tax deductible to the company as “performance-based compensation” under Section 162(m) of the Internal Revenue Code of 1986, as amended (the “Code”).

 

Administration

 

The Plan is administered in accordance with the requirements of Section 162(m) of the Code (but only to the extent necessary and desirable to qualify Awards under the Plan as “performance-based compensation” under Section 162(m)) and, to the extent applicable, Rule 16b-3 under the Exchange Act (“Rule 16b-3”), by the Board or, at the Board’s sole discretion, by the compensation or any other committee of the Board, as appointed by the Board (the “Administrator”).

 

Eligible Participants

 

Incentive stock options, or ISOs, may be granted only to employees (including officers and directors who are also employees) of the company. Options and stock appreciation rights may be granted only to eligible participants as to whom company shares constitute “service recipient stock,” within the meaning of the regulations under Section 409A of the Code. All other Awards may be granted to employees, officers and directors of the company. An Eligible Participant may be granted more than one Award under the Plan.

 

The Plan allows us to grant ISOs to our employees and non-statutory stock options, stock appreciation rights, restricted stock, performance grants, stock bonuses and any other types of equity-based awards to our employees, officers and directors. We believe that our ability to grant this broad array of equity incentives is critical to secure, retain and motivate our employees and directors and to respond to market conditions and best practices, while at the same time balancing such issuances and the potential dilution to our stockholders.

 

Sales of Unregistered Securities

 

There were no sales of unregistered securities during fiscal 2019.

 

Purchase of Equity Securities By the Issuer and Affiliates

 

We did not purchase any shares of our common stock in the thirteen weeks ended December 28, 2019 (the fourth quarter of fiscal 2019).

 

Item 6.

Selected Financial Data.

 

Not applicable.

 

 

Item 7.

Management’s Discussion and Analysis of Financial Condition and Results of Operations.

 

The following is management’s discussion and analysis of certain significant factors which have affected our financial position and operating results during the periods included in the accompanying audited financial statements.

 

Critical Accounting Policies

 

Our financial statements have been prepared in accordance with accounting principles generally accepted in the United States. The preparation of these financial statements requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. The policies discussed below are considered by management to be critical to an understanding of our financial statements because their application places the most significant demands on management’s judgment, with financial reporting results relying on estimation about the effect of matters that are inherently uncertain. Specific risks for these critical accounting policies are described in the following paragraphs. For all of these policies, management cautions that future events rarely develop exactly as forecast, and the best estimates routinely require adjustment.

 

Revenue Recognition. We primarily sell non-dairy soy-based cheeses, frozen desserts and other food products. We recognize revenue when control over the products transfers to our customers, which generally occurs when the product is shipped or picked up from one of our distribution locations by the customer. We account for product shipping, handling and insurance as fulfillment activities with revenues for these activities recorded within net revenue and costs recorded within cost of sales. Revenues are recorded net of trade and sales incentives and estimated product returns. Known or expected pricing or revenue adjustments, such as trade discounts, rebates or returns, are estimated at the time of sale. We base these estimates of expected amounts principally on historical utilization and redemption rates. Estimates that affect revenue, such as trade incentives and product returns, are monitored and adjusted each period until the incentives or product returns are realized.

 

Key sales terms, such as pricing and quantities ordered, are established on a frequent basis such that most customer arrangements and related incentives have a one year or shorter duration. As such, we do not capitalize contract inception costs and we capitalize product fulfillment costs in accordance with U.S. GAAP and our inventory policies. We generally do not have any unbilled receivables at the end of a period.

 

Accounts Receivable. The majority of our accounts receivables are due from distributors (domestic and international) and retailers. Credit is extended based on evaluation of a customers’ financial condition and, generally, collateral is not required. Accounts receivable are most often due within 30 to 90 days and are stated at amounts due from customers net of an allowance for doubtful accounts and reserve for sales promotions. Accounts outstanding longer than the contractual payment terms are considered past due. We determine whether an allowance is necessary by considering a number of factors, including the length of time trade accounts receivable are past due, our previous loss history, the customer’s current ability to pay its obligation, and the condition of the general economy and the industry as a whole. We write-off accounts receivable when they become uncollectible, and payments subsequently received on such receivables are credited to the bad debt expense account. We do not accrue interest on accounts receivable past due.

 

Inventory. Inventory is stated at lower of cost or net realizable value determined by first in first out (FIFO) method. Inventories in excess of future demand are written down and charged to the provision for inventories. At the point of which loss is recognized, a new, lower cost basis for that inventory is established and subsequent changes in facts and circumstances do not result in the restoration or increase in the newly established cost basis.

 

 

Fixed Assets. During fiscal 2018, we spent $121,000 on equipment to be used at our new co-packer’s frozen dessert facility. During fiscal 2019, we spent an additional $29,000 on equipment for this facility. This equipment began being used in connection with the production of frozen stick novelty items in the third quarter of 2019. Depreciation is provided by charges to income using the straight-line method over the estimated useful life of ten years.

 

Leases. Under Topic 842, operating lease expense is generally recognized evenly over the term of the lease. We have operating leases primarily consisting of facilities with remaining lease terms of approximately two to four years. Leases with an initial term of twelve months or less are not recorded on the balance sheet. For lease agreements entered into or reassessed after the adoption of Topic 842, we have combined the lease and non-lease components in determining the lease liabilities and right of use assets.

 

Income Taxes. Deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date. A valuation allowance is recorded if there is uncertainty as to the realization of deferred tax assets. We will recognize a tax benefit in the financial statements for an uncertain tax position only if management’s assessment is that the position is “more likely than not” (i.e., a likelihood greater than 50 percent) to be allowed by the tax jurisdiction based solely on the technical merits of the position. The term “tax position” refers to a position in a previously filed tax return or a position expected to be taken in a future tax return that is reflected in measuring current or deferred income tax assets and liabilities for financial reporting purposes.

 

Recent Accounting Pronouncements

 

Our company considers the applicability and impact of all Accounting Standard Updates (“ASUs”). ASUs not discussed below were assessed and determined to be either not applicable or are expected to have minimal impact on our balance sheets or statements of operations.

 

In February 2016, the FASB established Topic 842, Leases, by issuing Accounting Standards Update (ASU) No. 2016-02, which requires lessees to recognize leases on-balance sheet and disclose key information about leasing arrangements. Topic 842 was subsequently amended by ASU No. 2018-01, Land Easement Practical Expedient for Transition to Topic 842; ASU No. 2018-10, Codification Improvements to Topic 842, Leases; ASU No. 2018-11, Targeted Improvements; and ASU No. 2018-20, Narrow-Scope Improvements for Lessors. The new standard establishes a right-of-use model (“ROU”) that requires a lessee to recognize a ROU asset and lease liability on the balance sheet for all leases with a term longer than 12 months. Leases will be classified as finance or operating, with classification affecting the pattern and classification of expense recognition in the income statement.

 

The new standard was effective for our company on December 30, 2018. A modified retrospective transition approach is required, applying the new standard to all leases existing at the date of initial application. An entity may choose to use either (1) its effective date or (2) the beginning of the earliest comparative period presented in the financial statements as its date of initial application. If an entity chooses the second option, the transition requirements for existing leases also apply to leases entered into between the date of initial application and the effective date. The entity must also recast its comparative period financial statements and provide the disclosures required by the new standard for the comparative periods. We adopted the new standard on December 30, 2018 and used the effective date as our date of initial application. Consequently, financial information will not be updated, and the disclosures required under the new standard will not be provided for dates and periods before December 30, 2018.

 

 

The new standard provides several optional practical expedients in transition. We elected the ‘package of practical expedients’, which permits us not to reassess under the new standard our prior conclusions about lease identification, lease classification and initial direct costs.

 

The new standard also provides practical expedients for an entity’s ongoing accounting. We elected the short-term lease recognition exemption for all leases that qualify. This means, for those leases that qualify, we will not recognize ROU assets or lease liabilities, and this includes not recognizing ROU assets or lease liabilities for existing short-term leases of those assets in transition. We did not elect the practical expedient to not separate lease and non-lease components for any of our leases.

 

The adoption of the standard resulted in a material effect on our financial statements with a balance sheet recognition of additional lease assets of $346,000 and lease liabilities of approximately $362,000.

 

In June 2016, the FASB issued ASU 2016-13, Financial Instruments - Credit Losses (Topic 326) Measurement of Credit Losses on Financial Instruments. The amendments in this Update require a new topic to be added (Topic 326) to the Accounting Standards Codification (“ASC”) and removes the thresholds that entities apply to measure credit losses on financial instruments measured at amortized cost, such as loans, trade receivables, reinsurance recoverables, and off-balance-sheet credit exposures, and held-to-maturity securities. Under current U.S. GAAP, entities generally recognize credit losses when it is probable that the loss has been incurred. The guidance under ASU 2016-13 will remove all current recognition thresholds and will require entities under the new current expected credit loss (“CECL”) model to recognize an allowance for credit losses for the difference between the amortized cost basis of a financial instrument and the amount of amortized cost that an entity expects to collect over the instrument’s contractual life. The new CECL model is based upon expected losses rather than incurred losses. The ASU is effective for fiscal years beginning after December 15, 2022, including interim periods within those fiscal years. We are currently evaluating the effect that this new guidance will have on our financial statements and related disclosures.

 

Key Factors Affecting Our Business

 

Our operations and the operating metrics discussed below have been, and will likely continue to be affected by certain key factors as well as certain historical events and actions. The key factors affecting our business and results of operations include among others, our lack of sufficient working capital, dependence on a few key distributors for a significant portion of our sales, dependence on several key suppliers to produce our products, our reliance on a limited number of key executives to manage our business, and competition. For further discussion of the factors affecting our results of operations, see “Risk Factors.”

 

We may not be able to maintain profitability in the future and may not have sufficient working capital to fund our operations in the future.

 

While our operations have been profitable for two of the last three fiscal years, we also incurred losses in prior years. Our cash and cash equivalents decreased to $514,000 while our working capital increased to $3,840,000 as of December 28, 2019. The lack of sufficient working capital in the future could negatively impact our ability to introduce and adequately promote new products. To the extent that we incur operating losses in the future or are unable to generate free cash flows from our business, we may not have sufficient working capital to fund our operations and will be required to obtain additional financing. Such financing may not be available, or, if available, may not be on terms satisfactory to us. If we are unable to maintain revenues, we may not be able sustain profitable operations in the future or generate positive cash flows from our operations.

 

 

We depend on a few key distributors for a significant portion of our sales.

 

A significant portion of our sales are to several key distributors, which are large distribution companies with numerous divisions and subsidiaries who act independently. Such distributors as a group accounted for 44% and 42% of our net sales for the fiscal years ended December 28, 2019 and December 29, 2018, respectively. Although we believe that the business associated with any of our primary distributors can be readily transferred to other distributors or directly to supermarket warehouses if necessary, no assurance can be given that a change in distributors would not be disruptive to our business, which could have a material adverse effect on our business and results of operations.

 

Interruptions in the supply of products from our co-packers and suppliers could adversely affect our revenues.

 

We depend on a limited number of suppliers for ingredients, packaging materials and the production of our products. We do not produce any of our own products. For the years ended December 28, 2019 and December 29, 2018, we purchased approximately 52% and 49%, respectively, of our finished goods from Franklin Foods, including our BETTER THAN CREAM CHEESE, WHIPPED BETTER THAN CREAM CHEESE, BETTER THAN SOUR CREAM, and BETTER THAN RICOTTA products, and purchased approximately 19% and 20%, respectively, of our finished goods from Luke’s Ice Cream, our frozen dessert novelty co-packer.

 

In September 2016, we were notified by Ice Cream Specialties, the co-packer of our frozen dessert stick novelties, Tofutti Cuties, and Yours Truly Cones, that they would cease manufacturing those products by the end of January 2018. In April 2018 we began production of our Tofutti Cuties at our new frozen dessert novelty co-packer, Luke’s Ice Cream, located in Florida. Luke’s began manufacturing Yours Truly Cones in November 2018 and began to manufacture our frozen dessert novelty bars in the second quarter of 2019. Our frozen dessert pints are produced by Leiby’s Dairy in Pennsylvania. Any future disruption in supply could have a material adverse effect on our company.

 

We have little control over the suppliers of ingredients to our co-packers. Disruptions in these relationships may reduce our sales and revenues. Overall difficulty of suppliers meeting product demand, interruptions in the supply chain, obstacles or delays in the process of renegotiating or renewing agreements with preferred suppliers, financial difficulties experienced by suppliers, or the deficiency, lack, or poor quality of alternative suppliers could adversely impact our sales which, in turn, would adversely affect our business and operating results. We believe that, if necessary, we could obtain available alternative sources of supply for each of our products. Depending on the product, that might entail using more than one source of supply.

 

We have a complex network of suppliers, co-manufacturing locations, distribution networks, and information systems that support our ability to consistently provide our products to our customers. Factors that are hard to predict or beyond our control, such as weather, raw material shortages, natural disasters, fires or explosions, terrorism, or health pandemics, such as COVID-19, could damage or disrupt our operations or our suppliers’, co-packers’ or distributors’ operations. These disruptions may require additional resources to restore our supply chain or distribution network. If we cannot respond to disruptions in our operations, whether by finding alternative suppliers or replacing capacity at key manufacturing or distribution locations, or if we are unable to quickly repair damage to our information, production, or supply systems, we may be late in delivering, or be unable to deliver, products to our customers and may also be unable to track orders, inventory, receivables, and payables. If that occurs, our customers’ confidence in us and long-term demand for our products could decline. Any of these events could materially and adversely affect our product sales, financial condition, and operating results.

 

 

We rely on a limited number of key executives to manage our business.

 

Our success is significantly dependent on the services of David Mintz (age 88), our Chief Executive Officer, and Steven Kass (age 68), our Chief Financial Officer. The loss of the services of either of these persons could have a material adverse effect on our business and results of operations.

 

Competition.

 

The dairy free, vegan frozen dessert and food and health food markets are highly competitive. In addition, many of our principal competitors are large, diversified companies with resources significantly greater than ours. We expect strong competition to continue, including competition for adequate distribution and competition for the limited shelf space for the frozen dessert and dairy free cheese food categories in supermarkets and other retail food outlets.

 

From time to time, we and our customers experience price pressure in some of our markets as a result of competitors’ promotional pricing practices as well as general market conditions. Our failure to match or exceed our competitors’ cost reductions through innovative products and other improvements could weaken our competitive position. Competition is based on product quality, reliability, food safety, distribution effectiveness, brand loyalty, price, effective promotional activities, the ability to identify and satisfy emerging consumer preferences and the ability to provide ancillary support services. We may not be able to compete effectively with these larger, more diversified companies.

 

Recent Developments

 

An outbreak of infectious respiratory illness caused by a novel coronavirus known as COVID-19 was first detected in China in December 2019 and has now spread globally. This outbreak has resulted in travel restrictions, closed international borders, enhanced health screenings at ports of entry and elsewhere, disruption of and delays in healthcare service preparation and delivery, prolonged quarantines, cancellations, supply chain disruptions, and lower consumer demand, layoffs, defaults and other significant economic impacts, as well as general concern and uncertainty. The impact of this outbreak has adversely affected the economies of many nations and the entire global economy and may impact our company in ways that cannot necessarily be foreseen. Other infectious illness outbreaks that may arise in the future could have similar impacts. Public health crises caused by the outbreak may exacerbate other pre-existing political, social and economic risks in certain countries or globally.

 

The current severity of the pandemic and the uncertainty regarding the length of its effects could have negative consequences for our company. To date, the effects of the pandemic have not materially affected our company’s operations. All of our co-packing facilities are currently operating as normal and the pandemic has not constrained any of our production requirements. We continue to be able to schedule trucks for delivery and a large majority of our customers are still operating and ordering our products as before.

 

Most of our administrative functions are being performed remotely. A small skeleton crew maintains the office for those functions that cannot be handled remotely. Our ability to collect money, pay bills, handle customer and consumer communications, schedule production, and order ingredients necessary for our production has not been impacted. To date, the pandemic has had minimal impact on our sales. The majority of our sales relate to retail products sold in supermarkets. Supermarket sales in general have seen a substantial surge in business due to the pandemic, as consumers stock up on all products that they would normally purchase. The only negative effect to our business to date has been with respect to our food service sales to retail outlets, such as restaurants and small food shops, which account for a small part of our total business. We expect that any potential decline in our sales will be offset in whole or in part by a similar decline in sales and marketing expenses due to social distancing restrictions and other current government rules and regulations that preclude face to face sales meeting, attendance at trade shows and the initiation of new promotions.

 

 

To date we have not experienced a significant change in the timeliness of payments of our invoices and our cash position remains stable with approximately $900,000 of cash and cash equivalents as of March 31, 2019.

 

Depending on the length and severity of the pandemic, it could negatively affect our business in the following ways:

 

	●	An outbreak of the virus at one of our production facilities could eliminate or greatly reduce our ability to maintain production to support our level of sales.
	●	Some of our customers may have to reduce or completely eliminate their ability to receive orders if there is an outbreak at their facilities, which would have a negative impact on our sales.
	●	Some of our customers may ultimately go out of business, which would increase our bad debt expense exposure.
	●	More restrictive government rules and regulations could have a negative impact on consumers’ ability to purchase food and other items at retail stores, which would have a negative impact on our sales.
	●	Due to retail outlets prioritizing and maintaining availability of only products they currently sell, our inability to present and introduce new products may have a negative impact on our future sales.
	●	Our export business could be further negatively impacted by a further decline in foreign currencies against the dollar if foreign economies suffer severe negative consequences as a result of the pandemic.
	●	Certain of our customers, such as retail food service accounts, which have ceased current operations, may not resume operations, which could have a negative impact on our future sales.
	●	Current social distancing rules and other regulations have caused most consumers to go out and over-buy products, especially food items, for fear that new, more restrictive rules could be put in place that would eliminate their ability to purchase any items for a prolonged period of time. Once these rules have been relaxed or eliminated, there will likely be a significant reduction in consumer demand as they use up their excess purchases. Such a drop in consumer demand could have a negative impact upon our future sales.
	●	Future social distancing and government rules and regulations that remain in place that restrict the ability of consumers to shop and purchase food, or certain types of food as they had done prior to the outbreak of the pandemic could have a negative impact upon our sales.

 

If some or all of the preceding events take place, they would have a significant impact on our ability to maintain our current level of operations without a further infusion of capital.

 

Fiscal Year Ended December 28, 2019 Compared with Fiscal Year Ended December 29, 2018

 

We operate on a fiscal year ending on the Saturday closest to December 31. Fiscal years for the financial statements included in this report are the fifty-two week period ended December 28, 2019 (fiscal 2019) and the fifty-two week period ended December 29, 2018 (fiscal 2018).

 

Net sales for the fiscal year ended December 28, 2019 were $13,130,000, a small increase of $64,000 from net sales of $13,066,000 for the fiscal year ended December 29, 2018. Sales of our frozen dessert and frozen food product lines decreased to $1,889,000 in fiscal 2019 from $2,255,000 in fiscal 2018. Sales of vegan cheese products increased to $11,241,000 in fiscal 2019 from $10,811,000 in fiscal 2018 due to an increase in sales of our food service sized BETTER THAN CREAM CHEESE and BETTER THAN SOUR CREAM products. Sales of our frozen dessert products were negatively impacted by the unavailability of certain frozen novelties due to the startup of our new frozen novelty plant in 2019. Domestic sales of our cheese products increased while our export cheese business was negatively impacted by political uncertainty in the UK and its impact on the UK’s currency. Since our master distributor in the UK managed our sales for the rest of Europe, our sales there have been negatively impacted by the issues in the UK. Export vegan cheese sales were also negatively impacted by new customs requirements in Israel, which impacted all imports into that country. The new regulations significantly increased the time it takes to get shipments cleared through customs in Israel as government officials implement the new requirements.

 

 

Our gross profit for the year ended December 28, 2019 decreased by $67,000 to $4,037,000 from $4,104,000. Our gross profit percentage for the years ended December 28, 2019 and December 29, 2018 was 31%. Sales promotion and allowance expense was $1,378,000 for the year ended December 28, 2019 compared to $1,513,000 for the year ended December 29, 2018. We intend to increase gross profitability in future periods through selective price increases and selective ingredient replacements to lower-cost alternatives.

 

Freight out expense increased slightly to $943,000, or 3%, for the year ended December 28, 2019 compared with $918,000 for the year ended December 29, 2018 due to the slight increase in sales. Freight out cost as a percentage of sales in fiscal 2019 and fiscal 2018 was approximately 7%.

 

Selling and warehousing expenses increased by $275,000, or 20%, to $1,632,000 for fiscal 2019 from $1,357,000 in fiscal 2018. This increase was primarily attributable to increases in commission expense of $53,000, outside warehouse rental expense of $10,000, messenger expense of $8,000, meetings and conventions expense of $14,000, payroll expense of $15,000 and bad debt expense of $209,000. These increases were partially offset by a decrease in travel, entertainment and auto expense of $18,000. The increase in bad debt expense was primarily a result of writing off the receivables of our UK master distributor, whom we no longer utilize, and the future uncertainty of the collectability of some of our other foreign accounts due to the COVID-19 pandemic. The increase in our commission expense was due to the one-time retainer paid to a food service broker, which will not recur in 2020. We anticipate that selling expenses as a percentage of sales in fiscal 2020 will decline from those in fiscal 2019 due to reduced payroll expense due to one less person in sales, the non-recurrence of a one-time commission expense, and an anticipated reduction in bad debt expense.

 

Marketing expenses increased in fiscal 2019 by $53,000, or 18%, to $347,000 from $294,000 in fiscal 2018 due to an increase in promotion expense of $60,000, which was partially offset by a decrease in advertising expense of $6,000. We expect that marketing expenses in fiscal 2020 will decline from our expenses in fiscal 2019, due to the elimination of certain promotional activities in 2020 due to the COVID-19 pandemic.

 

Product development expenses decreased by $86,000, or 21%, to $324,000 in fiscal 2019 from $410,000 in fiscal 2018. The decrease was primarily attributable to decreases in payroll expense of $38,000, lab costs and supplies expense of $37,000 and equipment repairs expense of $8,000. We expect that product development costs will remain constant or decline slightly in fiscal 2020.

 

General and administrative expenses decreased by $45,000, or 3%, to $1,626,000 for fiscal 2019 from $1,671,000 for fiscal 2018. The decrease was primarily due to decreases in payroll expense of $13,000, travel, entertainment and auto expense of $36,000, building maintenance and repairs expense of $15,000, equipment rental expense of $9,000, and general insurance expense of $11,000. These decreases were partially offset by increases in professional fees and outside services expenses of $16,000 and IT expense of $36,000. We expect that general and administrative expenses will remain constant or decrease slightly in fiscal 2020.

 

Overall, total operating expenses in fiscal 2019 increased by $197,000, or 5%, to $3,929,000 compared to total operating expenses of $3,732,000 in fiscal 2018.

 

Income before income taxes decreased to $83,000 in fiscal 2019 as compared with income before income taxes of $347,000 in fiscal 2018.

 

Income tax expense for the 2019 fiscal period was $5,000 compared to income tax benefit of $160,000 for the 2018 fiscal period. Our income tax benefit in 2018 resulted from our use of federal and state net operating loss carryforwards. Our income tax benefit during the 2018 fiscal period was due to a reversal of valuation allowance on deferred tax assets as we concluded we will be able to utilize such assets in future periods. As of December 28, 2019, we had $87,000 of federal net operating loss carryforwards and $829,000 of state net operating loss carryforwards, which will begin to expire in 2033.

 

Liquidity and Capital Resources

 

At December 28, 2019, we had approximately $514,000 in cash and cash equivalents, our working capital was $3,840,000, and our current and quick acid test ratios, both measures of liquidity, were 8.1 and 4.5, respectively, as of December 28, 2019.

 

 

In order to provide our company with additional working capital, on January 6, 2016, David Mintz, our Chairman and Chief Executive Officer, provided our company with a loan of $500,000 which is secured by substantially all of our assets. The loan has been extended until December 31, 2022. Interest of 5% is payable on a quarterly basis without compounding. The loan may be prepaid in whole or in part at any time without premium or penalty. During the original term of the loan it was convertible into shares of our common stock at a conversion price of $4.01 per share, the closing price of our common stock on the NYSE MKT on the date the promissory note was entered into. The extended loan is convertible into our common stock at a conversion price of $1.77 per share at the option of the holder, the closing price of our common stock on the OTCQB on the date the extended promissory note was entered into. See “Certain Relationships and Related Transactions, and Director Independence.”

 

Cash Flows		Fiscal Year ended
		December 28, 2019				December 29, 2018
		(In thousands)
Net cash used in operating activities		$	(15	)		$	(725	)
Net cash used in investing activities			(29	)			(121	)
Net cash used in financing activities			—				(10	)
Net decrease in cash and cash equivalents			(44	)			(856	)
Cash and cash equivalents at beginning of year			558				1,414
Cash and cash equivalents at end of year		$	514			$	558

 

Cash used in operating activities for the year ended December 28, 2019 was $15,000 compared to $725,000 used in operating activities for the year ended December 29, 2018.

 

Cash used in investing activities was $29,000 for the fiscal year ended December 28, 2019 due to the purchase of additional equipment. For the fiscal year ended December 29, 2018, cash used in investing activities was $121,000 due to fixed asset purchases.

 

No cash was used in financing activities for the fiscal year ended December 28, 2019 compared to $10,000 used in financing activities for the fiscal year ended December 29, 2018.

 

As a result of the foregoing, our cash and cash equivalents decreased to $514,000 at December 28, 2019 from $558,000 at December 29, 2018.

 

We believe our existing cash and cash equivalents on hand at December 28, 2019, existing working capital, and our expected cash flows from operations will be sufficient to support our operating and capital requirements for at least the next twelve months dating from the issuance of the financial statements.

 

Contractual Obligations

 

We had no material contractual obligations at December 28, 2019.

 

Inflation and Seasonality

 

We do not believe that our operating results have been materially affected by inflation during the preceding two years. There can be no assurance, however, that our operating results will not be affected by inflation in the future. Our business is subject to minimal seasonal variations with slightly increased sales historically in the second and third quarters of the fiscal year. We expect to continue to experience slightly higher sales in the second and third quarters, and slightly lower sales in the fourth and first quarters, as a result of reduced sales of dairy free frozen desserts during those periods.

 

 

Market Risk

 

We will invest our excess cash, should there be any, in highly rated money market funds which are subject to changes in short-term interest rates. We do not believe that our foreign currency exposure is significant as our export sales are transacted in U.S. dollars. We did not enter into any foreign exchange contracts in the year ended December 28, 2019.

 

Off-Balance Sheet Arrangements

 

None.

 

Item 7A.

Quantitative and Qualitative Disclosures about Market Risk.

 

Not applicable.

 

Item 8.

Financial Statements and Supplementary Data.

 

Index to Financial Statements

 

Report of Independent Registered Public Accounting Firm	F-1
Financial Statements:
Balance Sheets	F-2
Statements of Income	F-3
Statements of Changes in Stockholders’ Equity	F-4
Statements of Cash Flows	F-5
Notes to Financial Statements	F-6

 

 

REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

To the Board of Directors and Stockholders of

Tofutti Brands, Inc.

 

Opinion on the Financial Statements

 

We have audited the accompanying balance sheets of Tofutti Brands, Inc.(the “Company”) as of December 28, 2019 and December 29, 2018, and the related statements of income, stockholders’ equity, and cash flows for each of the fiscal years then ended, 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 28, 2019 and December 29, 2018, and the results of its operations and its cash flows for each of the fiscal years then ended, in conformity with accounting principles generally accepted in the United States of America.

 

Change in Accounting Principle

 

As discussed in Note 2 to the financial statements, the Company has changed its method of accounting for leases effective December 30, 2018 due to the adoption of Accounting Standards Update No. 2016-02.

 

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.

 

/s/ EisnerAmper LLP

 

We have served as the Company’s auditor since fiscal year 2010.

 

EISNERAMPER LLP

Philadelphia, Pennsylvania

April 21, 2020

 

 

TOFUTTI BRANDS INC.
BALANCE SHEETS
(In thousands, except for share and per share data)

 

Assets		December 28, 2019				December 29, 2018
Current assets:
Cash and cash equivalents		$	514			$	558
Accounts receivable, net of allowance for doubtful accounts and sales promotions of $407 and $491, respectively			1,819				2,128
Inventories			1,929				1,714
Prepaid expenses and other current assets			120				82
Deferred costs			—				54
Total current assets			4,382				4,536
Deferred tax assets			217				217
Fixed assets (net of accumulated depreciation of $5 and $0, respectively)			145				121
Operating lease right-of-use assets			252				—
Other assets			30				16
Total assets		$	5,026			$	4,890
Liabilities and Stockholders’ Equity
Current liabilities:
Accounts payable			167				368
Accrued expenses			375				272
Total current liabilities			542				640
Convertible note payable-long term-related party			500				500
Operating lease liabilities			156				—
Total liabilities			1,198				1,140
Stockholders’ equity:
Preferred stock - par value $.01 per share; authorized 100,000 shares, none issued			—				—
Common stock - par value $.01 per share; authorized 15,000,000 shares, issued and outstanding 5,153,706 shares at December 28, 2019 and December 29, 2018			52				52
Additional paid-in capital			207				207
Retained earnings			3,569				3,491
Total stockholders’ equity			3,828				3,750
Total liabilities and stockholders’ equity		$	5,026			$	4,890

 

See accompanying notes to financial statements.

 

 

TOFUTTI BRANDS INC.
STATEMENTS OF INCOME
(In thousands, except for per share data)

 

		Fiscal year				Fiscal year
		ended				ended
		December 28, 2019				December 29, 2018
Net sales		$	13,130			$	13,066
Cost of sales			9,093				8,962
Gross profit			4,037				4,104
Operating expenses:
Selling and warehousing			1,632				1,357
Marketing			347				294
Product development costs			324				410
General and administrative			1,626				1,671
Total operating expenses			3,929				3,732
Income from operations			108				372
Interest expense- related party			25				25
Income before provision for income tax			83				347
Income tax expense (benefit)			5				(160	)
Net income		$	78			$	507
Weighted average common shares outstanding:
Basic and diluted			5,154				5,154
Net income per common share:
Basic and diluted		$	0.02			$	0.10

 

See accompanying notes to financial statements.

 

 

TOFUTTI BRANDS INC.
STATEMENTS OF CHANGES IN STOCKHOLDERS’ EQUITY
Fiscal Years ended December 28, 2019 and December 29, 2018
(In thousands, except for share data)

 

		Common Stock								Additional Paid-In				Retained				Total Stockholders’
		Shares				Amount				Capital				Earnings				Equity
Balances December 30, 2017			5,153,706			$	52			$	207			$	2,984			$	3,243
Net income			—				—				—				507				507
Balances December 29, 2018			5,153,706			$	52			$	207			$	3,491			$	3,750
Net income			—				—				—				78				78
Balances December 28, 2019			5,153,706			$	52			$	207			$	3,569			$	3,828

 

See accompanying notes to financial statements.

 

 

TOFUTTI BRANDS INC.
STATEMENTS OF CASH FLOWS
(In thousands)

 

		Fiscal Year ended December 28, 2019				Fiscal Year ended December 29, 2018
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income		$	78			$	507
Adjustments to reconcile net income to net cash flows (used in) provided by operating activities:
Depreciation			5				10
Provision for bad debts and sales promotions			260				105
Provision for inventory reserve			—				105
Deferred tax asset provision			—				(217	)
Change in the unrecognized tax position			—				50
Change in assets and liabilities:
Accounts receivable			49				(463	)
Inventories			(215	)			(336	)
Prepaid expenses			(38	)			(10	)
Deferred costs			54				32
Other assets			(14	)			—
Deferred revenue			—				(94	)
Accounts payable and accrued expenses			(194	)			(414	)
Net cash flows used in operating activities			(15	)			(725	)
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of fixed assets			(29	)			(121	)
Net cash flows used in investing activities			(29	)			(121	)
CASH FLOWS FROM FINANCING ACTIVITIES:
Principal payments on note payable obligation			—				(10	)
Net cash flows used in financing activities			—				(10	)
NET CHANGE IN CASH AND CASH EQUIVALENTS			(44	)			(856	)
CASH AND CASH EQUIVALENTS, AT BEGINNING OF YEAR			558				1,414
CASH AND CASH EQUIVALENTS, AT END OF YEAR		$	514			$	558
SUPPLEMENTAL CASH FLOW INFORMATION:
Income taxes paid		$	5			$	5
Interest expense- related party		$	25			$	25
OPERATING CASH FLOWS:
Cash paid for the amounts in the measurement of operating lease liability		$	99			$	—
Right of use assets obtained in exchange for the operating lease liability		$	361			$	—

 

See accompanying notes to financial statements.

 

 

TOFUTTI BRANDS INC.

NOTES TO FINANCIAL STATEMENTS

(In thousands, except for share and per share data)

 

NOTE 1: LIQUIDITY AND CAPITAL RESOURCES

 

At December 28, 2019, Tofutti Brands, Inc. (“Tofutti” or the “Company”) had approximately $514 in cash compared to $558 at December 29, 2018. Net cash used in operating activities for the year ended December 28, 2019 was $15 compared to $725 used in operating activities for the year ended December 29, 2018.

 

Cash used in investing activities was $29 for the fiscal year ended December 28, 2019 compared to $121 for the fiscal year ended December 29, 2018.

 

No cash was used in financing activities for the fiscal year ended December 28, 2019 compared to $10 used in financing activities for the fiscal year ended December 29, 2018.

 

The Company has historically primarily financed operations and met capital requirements through positive cash flow from operations. However, due to net losses and cash used in operations in prior years in order to provide the Company with additional working capital, on January 6, 2016, David Mintz, the Company’s Chairman and Chief Executive, provided it with a loan of $500. Commencing March 31, 2016, interest of 5% was payable on a quarterly basis without compounding. The loan may be prepaid in whole or in part at any time without premium or penalty. The original loan was convertible into shares of the Company’s common stock at a conversion price of $4.01 per share, the closing price of its common stock on the NYSE MKT on the date the promissory note was first entered into. The loan, which has been extended until December 31, 2022 effective January 10, 2020, is convertible into the Company’s common stock at a conversion price of $1.77 per share, the closing price of the common stock on the OTCQB on the date the extension of the promissory note was entered into. In any event of default, as defined in the promissory note, without any action on the part of Mr. Mintz, the interest rate will increase to 12% per annum and the entire principal and interest balance under the loan, and all of the Company’s other obligations under the loan, will be immediately due and payable, and Mr. Mintz will be entitled to seek and institute any and all remedies available to him.

 

The Company’s ability to introduce successful new products may be adversely affected by a number of factors, such as unforeseen cost and expenses, economic environment, increased competition, the inability to make sales calls due to travel restrictions imposed by governmental agencies in response to the spread of COVID-19 and other factors beyond the Company’s control. The Company’s ability to promote sales through promotional activities has also been constrained as many supermarkets are understaffed and unable to change pricing for items in stock, resulting in the cancelation of all sales promotional discounts for the foreseeable future. Trade food shows and sales conferences, major events used to introduce and sell the Company’s products, have been postponed indefinitely.

 

Management cannot provide assurance that the Company will operate profitably in the future, or that it will not require significant additional financing in order to accomplish or exceed the objectives of its business plan. In addition, the continued spread of COVID-19 and the resulting economic downturn could materially and adversely affect the Company’s business and results of operations. Consequently, the Company’s historical operating results cannot be relied on to be an indicator of future performance, and management cannot predict whether the Company will obtain or sustain positive operating cash flow or generate net income in the future.

 

 

TOFUTTI BRANDS INC.

NOTES TO FINANCIAL STATEMENTS

(In thousands, except for share and per share data)

 

NOTE 2: DESCRIPTION OF THE BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

 

Description of Business - Tofutti is engaged in one business segment, the development, production and marketing of dairy free frozen desserts and other food products.

 

Operating Segments. The Company reports on operating segments in accordance with standards for public companies to report information about operating segments and geographic distribution of sales in financial statements. While the Company has multiple products and or product groups, its goal is to focus on dairy free foods. The Company’s chief operating decision maker tracks revenue by product groups, but does not track more granular operating results by product group as many of the ingredients are similar amongst these groups. As a result, the Company has determined that it has only one operating segment, which is the development, production and marketing of soy and other vegetable protein- based, dairy free frozen desserts, frozen food products and soy and other vegetable protein-based cheese products. All long-lived assets are located in the United States, the Company’s country of domicile.

 

Fiscal Year - The Company operates on a fiscal year ending on the Saturday closest to December 31st. Fiscal years for the financial statements included herein are the fifty-two week fiscal periods ended December 28, 2019 and December 29, 2018, fiscal 2019 and fiscal 2018, respectively.

 

Estimates and Uncertainties - The preparation of the financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Significant estimates include allowance for doubtful accounts, sales promotion accruals, inventory reserves and reserves for uncertain tax positions. Actual results could differ from those estimates.

 

Revenue Recognition – The Company primarily sell dairy free, vegan cheeses, frozen desserts and other food products. The Company recognizes revenue when control over the products transfers to its customers, which generally occurs upon delivery or shipment of the products. The Company accounts for product shipping, handling and insurance as fulfillment activities with revenues for these activities recorded within net revenue and costs recorded within cost of sales. Revenues are recorded net of trade and sales incentives and estimated product returns. Known or expected pricing or revenue adjustments, such as trade discounts, rebates or returns, are estimated at the time of sale. The Company bases these estimates of expected amounts principally on historical utilization and redemption rates. Estimates that affect revenue, such as trade incentives and product returns, are monitored and adjusted each period until the incentives or product returns are realized.

 

Key sales terms, such as pricing and quantities ordered, are established on a frequent basis such that most customer arrangements and related incentives have a one year or shorter duration. As such, we do not capitalize contract inception costs and we capitalize product fulfillment costs in accordance with U.S. GAAP and our inventory policies. The Company generally does not have any unbilled receivables at the end of a period.

 

Concentration of Credit/Sales Risk - Financial instruments that potentially subject the Company to concentration of credit risk consist primarily of cash and unsecured trade receivables. During the year, the Company’s cash balance at its financial institution exceeded the FDIC limit of $250.

 

 

TOFUTTI BRANDS INC.

NOTES TO FINANCIAL STATEMENTS

(In thousands, except for share and per share data)

 

The Company performs ongoing evaluations of its customers’ financial condition and does not require collateral. Management feels that credit risk beyond the established allowances at December 28, 2019 is limited.

 

During the fiscal years ended December 28, 2019 and December 29, 2018, the Company derived approximately 87% and 82% of its net sales domestically. The remaining sales in both periods were exports to foreign countries. The accounts receivable balance of two customers represented approximately 39% of total accounts receivable at December 28, 2019, and three customers represented approximately 51% of total accounts receivable at December 29, 2018. In addition, a significant portion of the Company’s sales are to several key distributors, which are large distribution companies with numerous divisions and subsidiaries who act independently. Such distributors as a group accounted for 44% and 42% of the Company’s net sales for the fiscal years ended December 28, 2019 and December 29, 2018.

 

Accounts Receivable - The majority of the Company’s accounts receivables are due from distributors (domestic and international) and retailers. Credit is extended based on evaluation of a customers’ financial condition and, generally, collateral is not required. Accounts receivable are most often due within 30 to 90 days and are stated at amounts due from customers net of an allowance for doubtful accounts and reserve for sales promotion. Accounts outstanding longer than the contractual payment terms are considered past due. The Company determines its allowance by considering a number of factors, including the length of time trade accounts receivable are past due, the Company’s previous loss history, the customer’s current ability to pay its obligation to the Company, and the condition of the general economy and the industry as a whole. The Company writes-off accounts receivable when they become uncollectible, and payments subsequently received on such receivables are credited to the bad debt expense. The Company does not accrue interest on accounts receivable past due.

 

Cash and Cash Equivalents - The Company considers all highly liquid investments with original maturities of three months or less to be cash equivalents.

 

Inventories - Inventory is stated at lower of cost or net realizable value determined by first in first out (FIFO) method. Inventories in excess of future demand or approaching expiration are written down and charged to the provision for inventories. At the point of which loss is recognized, a new, lower cost basis for that inventory is established and subsequent changes in facts and circumstances do not result in the restoration or increase in the newly established cost basis.

 

The Company purchased approximately 52% and 49% of its finished products from one supplier and 17% and 20% of its finished products from another supplier during the periods ended December 28, 2019 and December 29, 2018, respectively.

 

Income Taxes - Deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date. A valuation allowance is recorded if there is uncertainty as to the realization of deferred tax assets. The Company will recognize a tax benefit in the financial statements for an uncertain tax position only if management’s assessment is that the position is “more likely than not” (i.e., a likelihood greater than 50 percent) to be allowed by the tax jurisdiction based solely on the technical merits of the position. The term “tax position” refers to a position in a previously filed tax return or a position expected to be taken in a future tax return that is reflected in measuring current or deferred income tax assets and liabilities for financial reporting purposes.

 

 

TOFUTTI BRANDS INC.

NOTES TO FINANCIAL STATEMENTS

(In thousands, except for share and per share data)

 

Earnings Per Share - Basic earnings per common share has been computed by dividing earnings by the weighted average number of common shares outstanding. For the fiscal years ended December 28, 2019 and December 29, 2018, stock equivalents of 80,000 shares and a convertible note for 124,688 shares were excluded from diluted earnings per share calculations since the effect was anti-dilutive because the strike price was greater than the quoted market value at such date.

 

		Fiscal Year				Fiscal Year
		Ended				Ended
		December 28, 2019				December 29, 2018
Net income, numerator, basic and diluted computation		$	78			$	507
Weighted average shares - denominator basic computation			5,154				5,154
Effect of dilutive stock options			—				—
Weighted average shares, as adjusted - denominator diluted computation			5,154				5,154
Earnings per common share:
Basic and diluted		$	0.02			$	0.10

 

Fair Value of Financial Instruments - The fair value of financial instruments, which primarily consist of cash and equivalents, accounts receivable, accounts payable and accrued expenses are stated at their carrying values. The carrying amounts approximate fair value because of the short-term nature of those instruments.

 

Freight Costs - Freight costs to ship inventory to customers and to outside warehouses amounted to $920 and $918 during the fiscal years ended December 28, 2019 and December 29, 2018, respectively. Such costs are included in costs of goods sold.

 

Advertising Costs - The Company expenses advertising costs as they are incurred. Advertising expenses amounted to $182 and $188 during the fiscal years December 28, 2019 and December 29, 2018, respectively.

 

Product Development Costs - Costs of new product development and product redesign are charged to expense as incurred. Product development costs amounted to $324 and $410 during the fiscal years ended December 28, 2019 and December 29, 2018, respectively.

 

Recent Accounting Pronouncements – The Company considers the applicability and impact of all Accounting Standard Updates (“ASUs”). ASUs not discussed below were assessed and determined to be either not applicable or are expected to have minimal impact on the Company’s balance sheets or statements of operations.

 

In February 2016, the FASB established Topic 842, Leases, by issuing Accounting Standards Update (ASU) No. 2016-02, which requires lessees to recognize leases on-balance sheet and disclose key information about leasing arrangements. Topic 842 was subsequently amended by ASU No. 2018-01, Land Easement Practical Expedient for Transition to Topic 842; ASU No. 2018-10, Codification Improvements to Topic 842, Leases; ASU No. 2018-11, Targeted Improvements; and ASU No. 2018-20, Narrow-Scope Improvements for Lessors. The new standard establishes a right-of-use model (“ROU”) that requires a lessee to recognize a ROU asset and lease liability on the balance sheet for all leases with a term longer than 12 months. Leases will be classified as finance or operating, with classification affecting the pattern and classification of expense recognition in the income statement.

 

 

TOFUTTI BRANDS INC.

NOTES TO FINANCIAL STATEMENTS

(In thousands, except for share and per share data)

 

The new standard was effective for the Company on December 30, 2018. A modified retrospective transition approach is required, applying the new standard to all leases existing at the date of initial application. An entity may choose to use either (1) its effective date or (2) the beginning of the earliest comparative period presented in the financial statements as its date of initial application. If an entity chooses the second option, the transition requirements for existing leases also apply to leases entered into between the date of initial application and the effective date. The entity must also recast its comparative period financial statements and provide the disclosures required by the new standard for the comparative periods. The Company adopted the new standard on December 30, 2018 and used the effective date as its date of initial application. Consequently, financial information will not be updated, and the disclosures required under the new standard will not be provided for dates and periods before December 30, 2018.

 

The new standard provides several optional practical expedients in transition. The Company elected the ‘package of practical expedients’, which permits it not to reassess under the new standard its prior conclusions about lease identification, lease classification and initial direct costs.

 

The new standard also provides practical expedients for an entity’s ongoing accounting. The Company elected the short-term lease recognition exemption for all leases that qualify. This means, for those leases that qualify, the Company will not recognize ROU assets or lease liabilities, and this includes not recognizing ROU assets or lease liabilities for existing short-term leases of those assets in transition. The Company did not elect the practical expedient to not separate lease and non-lease components for any of its leases.

 

The adoption of the standard resulted in a material effect on the Company’s financial statements with a balance sheet recognition of additional lease assets of $346 and lease liabilities of approximately $362.

 

In June 2016, the FASB issued ASU 2016-13, Financial Instruments - Credit Losses (Topic 326) Measurement of Credit Losses on Financial Instruments. The amendments in this Update require a new topic to be added (Topic 326) to the Accounting Standards Codification (“ASC”) and removes the thresholds that entities apply to measure credit losses on financial instruments measured at amortized cost, such as loans, trade receivables, reinsurance recoverables, and off-balance-sheet credit exposures, and held-to-maturity securities. Under current U.S. GAAP, entities generally recognize credit losses when it is probable that the loss has been incurred. The guidance under ASU 2016-13 will remove all current recognition thresholds and will require entities under the new current expected credit loss (“CECL”) model to recognize an allowance for credit losses for the difference between the amortized cost basis of a financial instrument and the amount of amortized cost that an entity expects to collect over the instrument’s contractual life. The new CECL model is based upon expected losses rather than incurred losses. Additionally, the credit loss recognition guidance for available-for-sale securities is amended and will require that credit losses on such debt securities should be recognized as an allowance for credit losses rather than a direct write-down of amortized cost balance. The ASU is effective for fiscal years beginning after December 15, 2022, including interim periods within those fiscal years. We are currently evaluating the effect that this new guidance will have on our financial statements and related disclosures.

 

 

TOFUTTI BRANDS INC.
NOTES TO FINANCIAL STATEMENTS
(In thousands, except for share and per share data)

 

NOTE 3: INVENTORIES

 

Inventories consist of the following:

 

		December 28, 2019				December 29, 2018
Finished products		$	1,187			$	1,061
Raw materials and packaging			742				653
		$	1,929			$	1,714

 

NOTE 4: FIXED ASSETS

 

Fixed assets consist of the following:

 

		December 28, 2019				December 29, 2018
Manufacturing equipment installed at co-packer		$	150			$	121
Less: accumulated depreciation			5				—
Fixed assets, net		$	145			$	121

 

Depreciation expense for the years ended December 28, 2019 and December 29, 2018 was $5 and $10, respectively. During the fourth quarter of fiscal 2018, an automobile with a net book value of $3 was sold to a related party for $3. Proceeds from the sale were received in the first quarter of fiscal 2019.

 

NOTE 5: STOCK OPTIONS

 

The Company’s 2014 Equity Incentive Plan (the “2014 Plan”) provides for grants of various types of awards that are designed to attract and retain highly qualified personnel who will contribute to the success of the Company and to provide incentives to participants in the 2014 Plan that are linked directly to increases in shareholder value which will therefore inure to the benefit of all shareholders of the Company. The Company intends to rely on a combination of multi-year performance awards, options and other stock-based awards for these purposes. The 2014 Plan made 250,000 shares of common stock available for awards. The 2014 Plan also permits performance-based 2014 awards paid under it to be tax deductible under Section 162(m) of the Internal Revenue Code of 1986, as amended, as “performance-based compensation.” As of December 28, 2019, the Company has issued 80,000 non-qualified stock option awards under the 2014 Plan.

 

The following is a summary of stock option activity from December 29, 2018 to December 28, 2019:

 

		NON-QUALIFIED OPTIONS
		Shares				Weighted Average Exercise Price ($)
Outstanding at December 29, 2018			80,000				4.42
Granted			—				—
Exercised			—				—
Outstanding at December 28, 2019			80,000				4.42
Exercisable at December 28, 2019			80,000				4.42

 

 

TOFUTTI BRANDS INC.
NOTES TO FINANCIAL STATEMENTS
(In thousands, except for share and per share data)

 

The following table summarizes information about stock options outstanding at December 28, 2019:

 

Range of Exercise Prices ($)				Number Outstanding				Weighted Average Remaining Life (in years)				Weighted Average Exercise Price($)				Number Exercisable
$	4.39-4.46				80,000				.31			$	4.42				80,000

 

The fair value of each option award is estimated on the date of grant using the Black-Scholes option-pricing formula. Expected volatilities and risk-free interest rates are based upon the expected life of the grant. The interest rates used are the U.S. Treasury yield curve in effect at the time of the grant.

 

During fiscal 2015, 80,000 options were granted, with 26,668 of the options vesting at the respective grant date, 26,666 vesting in January 2016, and 26,666 vesting in January 2017. At the date of grant, expected volatility was 69.8%-71.4%, a risk-free rate of 1.3%-1.8%, 0% expected dividends, and an expected term of five years.

 

As of December 28, 2019, the intrinsic value of the options outstanding and exercisable was immaterial, and there was $0 of total unrecognized compensation cost.

 

50,000 options expired on March 31, 2020. Another 30,000 options will expire on June 9, 2020 if not exercised by that date.

 

NOTE 6: LEASES

 

The Company’s facilities are located in a one-story facility in Cranford, New Jersey. The 6,200 square foot facility houses its administrative offices, a warehouse, walk-in freezer and refrigerator, and a product development laboratory and test kitchen. The Company’s original lease agreement expired on July 1, 1999, but it continues to occupy the premises on a monthly basis. Any changes by either the landlord or the Company remains subject to a six month notification period. The Company currently has no plans to enter into a long-term lease agreement for the facility. Rent expense was $77 in fiscal 2019 and $81 in fiscal 2018. The Company’s management believes that the Cranford facility will continue to satisfy its space requirements for the foreseeable future and that if necessary, such space can be replaced without a significant impact to the business. The Company rents warehouse storage space at various outside facilities. Outside warehouse expenses amounted to $458 for the year ended December 28, 2019 compared to $448 for the year ended December 29, 2018. The Company rents warehouse storage space at various outside facilities. Outside warehouse expenses amounted to $458 for the year ended December 28, 2019 compared to $448 for the year ended December 29, 2018.

 

Under Topic 842, operating lease expense is generally recognized evenly over the term of the lease. The Company has operating leases primarily consisting of facilities with remaining lease terms of approximately two to four years. The Company does not have the option to terminate the leases early.

 

 

TOFUTTI BRANDS INC.
NOTES TO FINANCIAL STATEMENTS
(In thousands, except for share and per share data)

 

Leases with an initial term of twelve months or less are not recorded on the balance sheet. For lease agreements entered into or reassessed after the adoption of Topic 842, the Company has combined the lease and non-lease components in determining the lease liabilities and ROU assets.

 

The Company’s lease agreements generally do not provide an implicit borrowing rate; therefore, an internal incremental borrowing rate is determined based on information available at lease commencement date for purposes of determining the present value of lease payments. The Company used the incremental borrowing rate on December 29, 2018 of 5.5% for all leases that commenced prior to that date.

 

ROU lease assets and lease liabilities for our operating leases were recorded in the balance sheet as follows:

 

		As of
		December 28, 2019
Operating lease right-of-use assets		$	252
Total ROU lease assets			252
Accounts payable			106
Operating lease liabilities			156
Total lease liability		$	262
Weighted average remaining lease term (in years)			2.6
Weighted average discount rate			5.5	%

 

Future lease payments included in the measurement of lease liabilities on the balance sheet as of December 28, 2019, for the following five fiscal years and thereafter are as follows:

 

		As of
		December 28, 2019
2020		$	118
2021			118
2022			37
2023			8
Total future minimum lease payments			281
Present value adjustment			19
Total		$	262

 

NOTE 7: INCOME TAXES

 

The components of income tax expense (benefit) for the fiscal years ended December 28, 2019 and December 29, 2018 are as follows:

 

			December 28, 2019				December 29, 2018
Current:	Federal		$	—			$	26
	State			5				31
				5				57
Deferred:	Federal		$	—			$	(171	)
	State			—				(46	)
				—				(217	)
Total income tax expense (benefit)			$	5			$	(160	)

 

 

 

TOFUTTI BRANDS INC.
NOTES TO FINANCIAL STATEMENTS
(In thousands, except for share and per share data)

 

A reconciliation between the expected federal tax expense at the statutory tax rate of 21% and the Company’s actual tax expense for the fiscal years ended December 28, 2019 and December 29, 2018, respectively, follows:

 

		December 28, 2019				December 29, 2018
Income tax expense computed at federal statutory rate		$	17			$	73
State income taxes, net of federal income tax benefit			1				12
Permanent items			5				7
Change in federal valuation allowance			--				(290	)
Increase in unrecognized tax position			--				50
Other			(18	)			(12	)
		$	5			$	(160	)

 

Deferred tax assets for the fiscal years ended December 28, 2019 and December 29, 2018 consist of the following components:

 

		December 28, 2019				December 29, 2018
Allowance for doubtful accounts		$	98			$	118
Inventory			30				26
Federal and state net operating loss			39				22
Other			50				51
Deferred tax asset		$	217			$	217

 

At December 28, 2019, the Company had $87 federal net operating loss carryforwards and $829 of state operating loss carryforwards, net, which will begin to expire in 2033.

 

Management has concluded that based upon all available evidence, including generating taxable income for the past three fiscal years and future forecasts, that it is more likely than not that the deferred tax assets will be utilized and reversed the valuation allowance on the Company’s deferred tax assets as of December 29, 2018.

 

The Company will recognize a tax benefit in the financial statements for an uncertain tax position only if management’s assessment is that the position is “more likely than not” (i.e., a likelihood greater than 50 percent) to be sustained by the tax jurisdiction based solely on the technical merits of the position. The term “tax position” refers to a position in a previously filed tax return or a position expected to be taken in a future tax return that is reflected in measuring current or deferred income tax assets and liabilities for financial reporting purposes.

 

The following table indicates the changes to the Company’s uncertain tax positions for the fiscal years ended December 28, 2019 and December 29, 2018:

 

Balance at December 30, 2017		$	131
Increase due to reserves and tax positions related to current year			41
Balance at December 29, 2018			172
Increase due to reserves and tax positions related to current year			—
Balance at December 28, 2019		$	172

 

 

TOFUTTI BRANDS INC.
NOTES TO FINANCIAL STATEMENTS
(In thousands, except for share and per share data)

 

The Company accounts for penalties or interest related to uncertain tax positions as part of its provision for income taxes. The Company had approximately $29 of accrued interest and penalties related to uncertain tax positions at December 28, 2019 and December 29, 2018. The amount of uncertain tax positions that would affect the effective tax rate if they were recognized is $201. The liability at December 28, 2019 for uncertain tax positions is included in accrued expenses.

 

NOTE 8: NOTES PAYABLE

 

In September 2014, the Company obtained an auto loan of approximately $29 from a bank. The loan required 60 monthly payments of $0.535 through August 2019. Interest was charged at a fixed nominal rate of 4.64%. The loan was fully paid off in May 2018.

 

Related Party

 

On January 6, 2016, David Mintz, the Company’s Chairman and Chief Executive, provided the Company with a loan of $500. The loan, which was originally set to expire on December 31, 2017 has been extended to December 31, 2022 effective January 10, 2020. The original loan was convertible into shares of the Company’s common stock at a conversion price of $4.01 per share, the closing price of its common stock on the NYSE MKT on the date the promissory note was first entered into. The extended loan is, at the option of the holder, convertible into the Company’s common stock at a conversion price of $1.77 per share, the closing price of the Company’s common stock on the date of the extension of the promissory note. No other terms of the loan were modified. Commencing March 31, 2016, interest of 5% is payable on a quarterly basis without compounding. The loan may be prepaid in whole or in part at any time without premium or penalty. In any event of default, as defined in the promissory note, without any action on the part of Mr. Mintz, the interest rate will increase to 12% per annum and the entire principal and interest balance under the loan, and all of the Company’s other obligations under the loan, will be immediately due and payable, and Mr. Mintz will be entitled to seek and institute any and all remedies available to him.

 

		December 28, 2019				December 29, 2018
Note payable-related party		$	500			$	500
Less current maturity			—				—
Note payable related party, net of current maturity		$	500			$	500

 

 

TOFUTTI BRANDS INC.
NOTES TO FINANCIAL STATEMENTS
(In thousands, except for share and per share data)

 

NOTE 9: COMMITMENTS AND CONTINGENCIES

 

The Company sells its products throughout the United States and in approximately 15 foreign countries and may be impacted by public health crises beyond its control. This could disrupt its operations and negatively impact sales of its products. The Company’s customers, suppliers and co-packers may experience similar disruption. In December 2019, a novel strain of the Coronavirus, COVID-19, was reported to have surfaced in Wuhan, China, which has evolved into a pandemic. This situation and preventative or protective actions that governments have taken to counter the effects of the pandemic have resulted in a period of business disruption, including delays in shipments of products and raw materials. COVID-19 has spread to over 175 countries, including the United States, and efforts to contain the spread of COVID-19 have intensified. To the extent the impact of COVID-19 continues or worsens, the demand for the Company’s products may be negatively impacted, and it and its co-packers may have difficulty obtaining the materials necessary for the production of its products. In addition, the production facilities of the Company’s co-packers may be closed for sustained periods of time and industry-wide shipment of products may be negatively impacted. COVID-19 has also impacted the Company’s sales efforts as its ability to make sales calls is constrained. The Company’s ability to promote sales through promotional activities has also been constrained as many supermarkets are understaffed and unable to change pricing for items in stock, resulting in the cancelation of all sales promotional discounts for the foreseeable future. Trade food shows and sales conferences, major events used to introduce and sell the Company’s products, have been postponed indefinitely. The length and severity of the pandemic could also affect the Company’s regular sales, which could in turn result in reduced sales and a lower gross margin.

 

NOTE 10: REVENUE

 

Performance obligations relating to the delivery of food products are satisfied when the goods are shipped to the customer and net of all applicable discounts, as follows: Payment term discounts, off-invoice allowance, manufacturer chargeback, freight allowance, spoilage discounts, and product returns.

 

Revenues by geographical region are as follows:

 

		December 28, 2019				December 29, 2018
Revenues by geography:
Americas		$	12,338			$	11,847
Europe			216				498
Middle East			319				483
Asia Pacific and Africa			257				238
		$	13,130			$	13,066

 

Approximately 92% in both fiscal 2019 and fiscal 2018 of the Americas revenue is attributable to the United States. All of the Company’s assets are located in the United States.

 

Net sales by major product category:

 

		December 28, 2019				December 29, 2018
Cheeses		$	11,241			$	10,811
Frozen Desserts and Foods			1,889				2,255
		$	13,130			$	13,066

 

Timing of revenue recognition:

 

		Year ended December 28, 2019				Year ended December 29, 2018
Products transferred at a point in time		$	13,130			$	13,066

 

 

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

 

Evaluation of Disclosure Controls and Procedures. As of December 28, 2019, our company’s chief executive officer and chief financial officer conducted an evaluation regarding the effectiveness of our company’s disclosure controls and procedures (as defined in Rules 13a-15(e) or 15d-15(e) under the Exchange Act. Based upon the evaluation of these controls and procedures, our chief executive officer and chief financial officer concluded that our disclosure controls and procedures were not effective with respect to the material weaknesses, as described below in our internal control over financial reporting, that have not been fully remediated as of the end of the fiscal year 2019.

 

Disclosure Controls and Internal Controls. As provided in Rule 13a-14 of the General Rules and Regulations under the Securities and Exchange Act of 1934, as amended, Disclosure Controls are defined as meaning controls and procedures that are designed with the objective of insuring that information required to be disclosed in our reports filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), is recorded, processed, designed and reported within the time periods specified by the SEC’s rules and forms. Disclosure Controls include, within the definition under the Exchange Act, and without limitation, controls and procedures to ensure that information required to be disclosed by us in our reports is accumulated and communicated to our management, including our chief executive officer and principal financial officer, as appropriate to allow timely decisions regarding disclosure. Internal Controls are procedures which are designed with the objective of providing reasonable assurance that (1) our transactions are properly authorized; (2) our assets are safeguarded against unauthorized or improper use; and (3) our transactions are properly recorded and reported, all to permit the preparation of our financial statements inconformity with generally accepted accounting principles.

 

Management’s Annual Report on Internal Control Over Financial Reporting

 

Our management is responsible for establishing and maintaining adequate internal control over financial reporting. Internal control over financial reporting is a process designed by, or under the supervision of the Chief Executive Officer and Chief Financial Officer and effected by our board of directors, management and other personnel, 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.

 

Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

 

Management’s evaluation of internal control over financial reporting includes using the Committee of Sponsoring Organizations of the Treadway Commission, or COSO, framework, an integrated framework (2013) for the evaluation of internal controls issued by COSO, to identify the risks and control objectives related to the evaluation of our control environment.

 

 

Based on their evaluation under the frameworks described above, our chief executive officer and chief financial officer have concluded that our internal control over financial reporting was ineffective as of December 28, 2019 because of the following material weaknesses in internal controls over financial reporting:

 

●	A continuing lack of sufficient resources and an insufficient level of monitoring and oversight, which may restrict our ability to gather, analyze and report information relative to the financial statements, including but not limited to accounting estimates, reserves, allowances, and income tax matters, in a timely manner.
●	The limited size of the accounting department makes it impracticable to achieve an optimum separation of duties and monitoring of internal controls.

 

Remediation

 

We are continuing to seek ways to remediate these weaknesses, which stem from our small workforce and limited resources.

 

Changes in Internal Control over Financial Reporting

 

No change in our internal control over financial reporting occurred during the quarter ended December 28, 2019 that materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.

 

This annual report does not include an attestation report of our registered public accounting firm regarding internal control over financial reporting. Management’s report was not subject to attestation by our registered public accounting firm pursuant to the rules of the Securities and Exchange Commission that permit us to provide only management’s report in this annual report.

 

Item 9B.

Other Information.

 

None.

 

 

PART III

 

Item 10.

Directors, Executive Officers and Corporate Governance.

 

Our directors and executive officers are:

Name		Age		Position
David Mintz		88		Chairman of the Board of Directors, Chief Executive Officer
Steven Kass		68		Chief Financial Officer, Secretary and Treasurer
Neal S. Axelrod		67		Director
Joseph N. Himy		50		Director
Scott Korman		65		Director
Franklyn Snitow		73		Director

 

David Mintz has been our Chairman of the Board and Chief Executive Officer since August 1981. Mr. Mintz’s knowledge about our company and his role as the developer of our product line is essential to the operation of our board.

 

Steven Kass has been our Chief Financial Officer since November 1986 and Secretary and Treasurer since January 1987.

 

Neal S. Axelrod has been a director since August 2007 and is Chairman of the Audit Committee. Mr. Axelrod has been a self-employed certified public accountant in New Jersey since 1977. Mr. Axelrod’s accounting and financial background enhances the breadth of experience of the board of directors.

 

Joseph N. Himy was elected to serve as a member of the Board of Directors and the Audit Committee on October 30, 2013 by our Board of Directors. He has been Managing Director of The CFO Squad, a financial and business advisory firm providing outsourced CFO advisory and regulatory consulting services primarily for public companies since August 2011. From May 2008 until August 2011, Mr. Himy was Chief Financial Officer of Vyteris, Inc., manufacturer of the first active transdermal patch approved by the U.S. Food and Drug Administration for the pain associated with blood draws, intravenous cannulations and laser ablation of superficial skin lesions. Prior to May 2008 and from October 2004, Mr. Himy held various other positions at Vyteris, including Corporate Controller and VP of Finance. Mr. Himy received a B.S. degree in Accounting from Brooklyn College of the City University of New York and is a certified public accountant. Mr. Himy’s accounting and financial and corporate governance experience background enhances the breadth of experience of the board of directors.

 

Scott Korman has served as a member of the Board of Directors since December 2011 and as a member of the Audit Committee from December 2011 until March 2016. Mr. Korman founded Nashone, Inc., a private equity firm, in 1984 and is its President. Nashone is also involved in financial advisory, turnaround and general management assignments. Mr. Korman previously served as Chairman of Da-Tech Corporation, a Pennsylvania based contract electronics manufacturer. He previously served as Chairman and CEO of Best Manufacturing Group LLC., a leading manufacturer and distributor of uniforms, napery, service apparel, and hospitality and healthcare textiles. Mr. Korman also served as President and CEO of Welsh Farms Inc., a full service dairy, processing and distributing milk, ice cream mix and ice cream products. Mr. Korman received a B.S. degree in Economics from the University of Pennsylvania Wharton School in 1977. He also serves on the boards of various not-for-profit groups and was the founder of the Englewood Business Forum. Mr. Korman’s experience as a CEO of a frozen dessert company enhances the breadth of experience of the board of directors.

 

 

Franklyn Snitow has been a director since 1987 and became a member of the Audit Committee in March 2016. He has been a partner in the New York City law firm Snitow Kanfer & Holtzer, LLP, our general counsel since 1985. Mr. Snitow’s legal and corporate governance background enhances the breadth of experience of the board of directors.

 

All directors hold office until the next Annual Meeting of Stockholders and until their successors have been elected and qualified. Officers serve at the pleasure of the Board of Directors. All of the executive officers devote their full time to our operations.

 

Employment Agreements

 

There are currently no employment agreements between us and any of our officers.

 

Family Relationships

 

There are no family relationships between any of our directors and executive officers.

 

Involvement in Legal Proceedings

 

From time to time we may be subject to various claims and contingencies in the ordinary course of business, including those related to litigation, business transactions, employee-related matters and taxes, and others. When we are aware of a claim or potential claim, we assess the likelihood of any loss or exposure. If it is probable that a loss will result and the amount of the loss can be reasonably estimated, we will record a liability for the loss. In addition to the estimated loss, the recorded liability includes probable and estimable legal costs associated with the claim or potential claim. There is no assurance that such matters will not materially and adversely affect our business, financial position, and results of operations or cash flows.

 

Audit Committee and Audit Committee Financial Expert

 

The Audit Committee of the Board of Directors is comprised of Mr. Axelrod, who serves as chairman, Mr. Himy and Mr. Korman. The Board of Directors has determined that all of the Audit Committee members are independent, as that term is defined under the enhanced independence standards for audit committee members in the Exchange Act. The Board of Directors has also determined that Mr. Axelrod is an Audit Committee Financial Expert as that term is defined in rules issued pursuant to the Sarbanes-Oxley Act of 2002.

 

Section 16(a) Beneficial Ownership Compliance

 

Section 16(a) of the Exchange Act, as amended, requires our executive officers, directors and persons who own more than 10% of a registered class of our equity securities to file with the Securities and Exchange Commission initial statements of beneficial ownership, reports of changes in ownership and annual reports concerning their ownership of common stock and other of our equity securities, on Forms 3, 4 and 5 respectively. Executive officers, directors and greater than 10% shareholders are required by Commission regulations to furnish us with copies of all Section 16(a) reports they file.

 

 

To our knowledge, based solely on our review of the copies of such forms received by us, or written representations from certain reporting persons that no additional forms were required for those persons, we believe that during fiscal 2019 all persons subject to these reporting requirements filed the required reports on a timely basis.

 

Code of Ethics

 

We have adopted a Code of Business Conduct and Ethics, which applies to directors, officers, employees and agents of our company. We have also adopted a Code of Ethics for Senior Officers, which applies to our chief executive officer, and all senior financial officers of our company, including the chief financial officer, chief accounting officer or controller, or persons performing similar functions. The Code of Business Conduct and Ethics and the Code of Ethics for Senior Officers are publicly available on our website at www.tofutti.com and printed copies are available upon request. If we make any substantive amendments to the Code of Business Conduct and Ethics or the Code of Ethics or grant any waivers, including any implicit waiver, from a provision of these codes to our chief executive officer, chief financial officer or corporate controller or our directors, we will disclose the nature of such amendment or waiver on our website.

 

Item 11.

Executive Compensation.

 

The following table sets forth information concerning the total compensation during the last three fiscal years for our named executive officers whose total salary in fiscal 2019 totaled $100,000 or more:

 

Summary Compensation Table

 

Name and Principal Position		Fiscal Year				Salary ($)				Bonus ($)				Stock Awards ($)				Option Awards ($)(1)				Non-Equity Incentive Plan Compensation ($)				All Other Compensation ($)				Total ($)
David Mintz			2019				450,000				—				—				—				—				—				450,000
Chief Executive Officer			2018				450,000				—				—				—				—				—				450,000
and Director			2017				450,000				—				—				—				—				—				450,000
Steven Kass			2019				125,000				—				—				—				—				—				125,000
Chief Financial Officer			2018				125,000				—				—				—				—				—				125,000
			2017				125,000				—				—				—				—				—				125,000

 

(1)

The dollar amounts in the Option Awards column above reflect the fair value of options as of the grant   date for the year ended December 28, 2019, in accordance with ASC 718 and, therefore, do not necessarily reflect actual benefits received by any individual. Assumptions used in the calculation of these amounts are included in Note 5 to our audited financial statements for the year ended December 28, 2019.

 

The aggregate value of all other perquisites and other personal benefits furnished to each of these executive officers was less than $10,000 in both the 2019 and 2018 fiscal years.

 

Employment Agreements

 

We do not currently have any employment agreements with our executive officers. We do not anticipate having employment contracts with executive officers and key personnel in the future.

 

Grants of Plan-Based Awards for Fiscal 2019

 

During the fiscal year ended December 28, 2019, no grants were made under our 2014 Equity Incentive Plan.

 

 

Outstanding Equity Awards at Fiscal Year End

 

The following table reflects the options awards granted to the named executive officers identified above in the summary compensation table pursuant to the 2014 Equity Incentive Plan.

 

Outstanding Equity Awards at Fiscal Year-End

 

Option Awards
Name		Number of securities underlying unexercised options (#) Exercisable				Number of securities underlying unexercised options (#) Unexercisable				Equity incentive plan awards: number of securities underlying unexercised unearned options (#)				Option exercise price ($)				Option expiration date
David Mintz			10,000				—				—				4.39				3/31/20
			5,000				—				—				4.46				6/9/20
Steven Kass			—				—				—				—				—

 

Director Compensation

 

Our non-employee directors earned director compensation in fiscal year ended December 28, 2019 based on the number of meetings attended. Mr. Axelrod, chairman of the audit committee, receives $1,500 per meeting attended. Other members of the audit committee receive $1,000 per meeting attended. All other non-employee directors are entitled to $500 per meeting attended.

 

The following table sets forth the compensation received by each of the Company’s non-employee directors for the year ended December 28, 2019. Each non-employee director, other than Mr. Korman, is deemed to be independent under the Exchange Act Rule 10A-3.

 

Name		Fees Earned or Paid in Cash ($)				Stock Awards ($)				Option Awards ($)				Non-Equity Incentive Plan Compensation ($)				Nonqualified Deferred Compensation ($)				All Other Compensation ($)				Total ($)
Neal S. Axelrod			12,000				—				—				—				—				—
Joseph N. Himy			7,000				—				—				—				—				—
Scott Korman			7,000				—				—				—				—				—
Franklyn Snitow			500				—				—				—				—				—

 

Item 12.

Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.

 

The following tables set forth as of April 20, 2020 certain information regarding the ownership of our common stock, $0.01 par value, for each person known by us to be the beneficial owner of more than 5% of the outstanding shares of common stock, for each executive officer named in the Summary Compensation Table, for each of our directors and for our executive officers and directors as a group:

 

 

Security Ownership of Certain Beneficial Owners and Management

 

Name and Address of Beneficial Owner(1)		Amount and Nature of Beneficial Owner(2)				Percent of Class(3)
David Mintz			2,917,926	(4)			53.6	%
Steven Kass			220,000				4.3	%
Franklyn Snitow			38,100	(5)			*
Neal S. Axelrod			5,000	(6)			*
Joseph N. Himy			5,000	(6)			*
Scott Korman			5,000	(6)			*
All Executive Officers and Directors as a group (6 persons)			3,238,016	(7)			62.2	%

 

* Less than 1%.

 

(1)	The address of Messrs. Mintz, Kass, Axelrod and Himy is c/o Tofutti Brands Inc., 50 Jackson Drive, Cranford, New Jersey 07016. The address of Mr. Snitow is 575 Lexington Avenue, New York, New York 10017. The address of Mr. Korman is c/o Nashone, Inc., 175 Elm Road, Englewood, NJ 0361. Each of these persons has sole voting and/or investment power of the shares attributed to him.
(2)	Beneficial ownership is determined in accordance with the rules of the Securities and Exchange Commission and generally includes voting or investment power with respect to securities. Shares of common stock relating to options currently exercisable or exercisable within 60 days of April 20, 2020 are deemed outstanding for computing the percentage of the person holding such securities but are not deemed outstanding for computing the percentage of any other person. Except as indicated by footnote, and subject to community property laws where applicable, the persons named in the table above have sole voting and investment power with respect to all shares shown as beneficially owned by them.
(3)	Based on 5,153,706 shares issued and outstanding as of April 20, 2020.
(4)	Includes 5,000 shares issuable upon the exercise of currently exercisable stock options and 282,486 shares issuable upon conversion of a $500,000 note between Mr. Mintz and the company. Does not include options for 10,000 shares that expired on March 31, 2020.
(5)	Includes 5,000 shares issuable upon the exercise of currently exercisable stock options. Does not include options for 10,000 shares that expired on March 31, 2020.
(6)	Issuable upon the exercise of currently exercisable stock options
(7)	Includes 25,000 shares issuable upon the exercise of currently exercisable stock options and 282,486 shares issuable upon conversion of a $500,000 note between Mr. Mintz and the company. Does not include options for 50,000 shares that expired on March 31, 2020.

 

Item 13.

Certain Relationships and Related Transactions, and Director Independence.

 

In order to provide our company with additional working capital, on January 6, 2016, David Mintz, our Chairman and Chief Executive, provided us with a loan of $500,000, which has been extended to come due on December 31, 2022. Commencing March 31, 2016, interest of 5% was payable on a quarterly basis without compounding. The loan may be prepaid in whole or in part at any time without premium or penalty. During the original term of the loan it was convertible into shares of our common stock at a conversion price of $4.01 per share, the closing price of our common stock on the NYSE MKT on the date the promissory note was entered into. Upon renewal of the loan, the conversion price was reduced to $1.77 per share, the closing price of our common stock on the OTCQB on the date the extended promissory note was entered into.

 

 

In the event of default, as defined in the promissory note, without any action on the part of Mr. Mintz, the interest rate will increase to 12% per annum and the entire principal and interest balance under the loan, and all of our other obligations under the loan, will be immediately due and payable, and Mr. Mintz will be entitled to seek and institute any and all remedies available to him. The loan is secured by is secured by substantially all of our assets.

 

Item 14.

Principal Accounting Fees and Services.

 

Set forth below are the aggregate fees billed for each of the fiscal years ended December 28, 2019 and December 29, 2018 for services rendered by EisnerAmper LLP, our independent registered accounting firm.

 

		Fiscal 2019				Fiscal 2018
Audit fees		$	93,600			$	85,280
Audit-related fees			-				-
Total Audit & Audit-related fees		$	93,600			$	85,280
Tax fees			-				-
All other fees			-				-
Total fees		$	93,600			$	85,280

 

Audit fees consist of fees billed for services rendered for the audit of our financial statements and review of our financial statements included in our quarterly reports on Form 10-Q and services provided in connection with other statutory or regulatory filings. During fiscal 2019 and 2018, we incurred audit fees with EisnerAmper LLP in the amount of $95,000 and $84,440, respectively.

 

Audit-related fees consist of fees billed for assurance and related services that are reasonably related to the performance of the audit or review of our financial statements and not reported under Audit fees. No such fees were billed in fiscal 2019 or 2018.

 

Tax fees consist of fees billed for professional services related to the preparation of our U.S. federal and state income tax returns and tax advice. No such fees were billed by EisnerAmper LLP in fiscal 2019 or 2018. The Audit Committee pre-approved all Audit-related fees. After considering the provision of services encompassed within the above disclosures about fees, the Audit Committee has determined that the provision of such services is compatible with maintaining EisnerAmper’s independence.

 

The Audit Committee’s policy is to pre-approve all audit and non-audit related services, tax services and other services. Pre-approval is generally provided for up to one year, and any pre-approval is detailed as to the particular service or category of services and is generally subject to a specific budget. The Audit Committee has delegated the pre-approval authority to its chairperson when expedition of services is necessary. The independent registered public accounting firm and management are required to periodically report to the full Audit Committee regarding the extent of services provided by the independent registered public accounting firm in accordance with this pre-approval and the fees for the services performed to date.

 

 

PART IV

 

Item 15.	Exhibits, Financial Statement Schedules.
(a)	Financial Statements
	See Item 8.
(b)	Financial Statement Schedules
	None.
(c)	Exhibits
3.1	Certificate of Incorporation, as amended through June 1993(1)
3.2	By-laws(2)
4.1	Tofutti Brands Inc. 2014 Equity Incentive Plan(3)
10.1	Promissory Note(4)
10.2	Security Agreement(5)
23.1	Consent of EisnerAmper LLP
31.1	Certification by Chief Executive Officer pursuant to Rule 13a-14(a) and Rule 15d-14(a) of the Securities Exchange Act, as amended
31.2	Certification by Chief Financial Officer pursuant to Rule 13a-14(a) and Rule 15d-14(a) of the Securities Exchange Act, as amended
32.1	Certification by Chief Executive Officer Pursuant to 18 U.S.C. Section 1350, As Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
32.2	Certification by Chief Financial Officer Pursuant to 18 U.S.C. Section 1350, As Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
101.INS	Instance Document
101.SCH	Schema Document
101.CAL	Calculation Linkbase Document
101.DEF	Definition Linkbase Document
101.LAB	Labels Linkbase Document
101.PRE	Presentation Linkbase Document

 

(1)	Filed as Exhibit 3.1 to the Registrant’s Form 10-K for the fiscal year ended December 30, 2017 and hereby incorporated by reference thereto.
(2)	Filed as Exhibit 3.2 to the Registrant’s Form 10-K for the fiscal year ended December 30, 2017 and hereby incorporated by reference thereto.
(3)	Filed as Appendix A to the Proxy Statement filed as the Registrant’s Schedule 14A filed May 14, 2014 and hereby incorporated by reference thereto.
(4)	Filed as Exhibit 10.1 to the Registrant’s Form 8-K bearing a cover date of January 10, 2020 and hereby incorporated by reference thereto.
(5)	Filed as Exhibit 10.2 to the Registrant’s Form 8-K bearing a cover date of January 10, 2020 and hereby incorporated by reference thereto.

 

 

SIGNATURES

 

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 on April 21, 2020.

 

	TOFUTTI BRANDS INC.
	(Registrant)
	/s/ David Mintz
	David Mintz
	Chairman of the Board and
	Chief Executive Officer

 

In accordance with the Securities Exchange Act of 1934, this Report has been signed below on April 21, 2020, by the following persons on behalf of the Registrant and in the capacities indicated.

 

/s/ David Mintz		/s/ Joseph N. Himy
David Mintz		Joseph N. Himy
Chairman of the Board		Director
and Chief Executive Officer

 

/s/ Steven Kass		/s/ Scott Korman
Steven Kass		Scott Korman
Secretary, Treasurer and Chief Financial		Director
and Principal Accounting Officer

 

/s/ Neal S. Axelrod		/s/ Franklyn Snitow
Neal S. Axelrod		Franklyn Snitow
Director		Director