TOFUTTI BRANDS INC
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Table of Contents
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
SCHEDULE 14A
Proxy Statement Pursuant to
Section 14(a) of the Securities
Exchange Act of 1934 (Amendment
No. )
Filed by the
Registrant þ
Filed by a Party other than the
Registrant o
Check the appropriate box:
o Preliminary
Proxy Statement
o Confidential,
for Use of the Commission Only (as permitted by
Rule 14a-6(e)(2))
þ Definitive
Proxy Statement
o Definitive
Additional Materials
o Soliciting
Material Pursuant to
§240.14a-12
TOFUTTI BRANDS INC.
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the
Registrant)
Payment of Filing Fee (Check the appropriate box):
| þ | No fee required. |
| o | Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11. |
| (1) | Title of each class of securities to which transaction applies: |
| (2) | Aggregate number of securities to which transaction applies: |
| (3) | Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined): |
| (4) | Proposed maximum aggregate value of transaction: |
| (5) | Total fee paid: |
| o | Fee paid previously with preliminary materials. |
| o | Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. |
| (1) | Amount Previously Paid: |
| (2) | Form, Schedule or Registration Statement No.: |
| (3) | Filing Party: |
| (4) | Date Filed: |
Table of Contents
TOFUTTI
BRANDS INC.
50 Jackson Drive
Cranford, New Jersey 07016
Telephone: (908) 272-2400
50 Jackson Drive
Cranford, New Jersey 07016
Telephone: (908) 272-2400
May 24,
2011
To Our Shareholders:
On behalf of the Board of Directors, I cordially invite you to
attend the 2011 Annual Meeting of the Shareholders of Tofutti
Brands Inc. The Annual Meeting will be held at 10:00 a.m.
on Thursday, June 16, 2011, at the Homewood Suites, 2
Jackson Drive, Cranford, New Jersey. The Homewood Suites is
located off Exit 136 of the Garden State Parkway (telephone
no. 908-709-1980).
The matters expected to be acted upon at the Annual Meeting are
described in the attached Proxy Statement. During the meeting,
shareholders who are present at the meeting will have the
opportunity to ask questions.
We hope that as many shareholders as possible will personally
attend the Annual Meeting. Whether or not you plan to attend the
Annual Meeting, your views are important. To assure your
representation at the Annual Meeting, please complete, sign and
date the enclosed proxy card and promptly return it in the
enclosed envelope.
Sincerely,
David Mintz
Chairman
and Chief Executive Officer
Chairman
and Chief Executive Officer
TOFUTTI
BRANDS INC.
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Table of Contents
June 16, 2011
Cranford, New Jersey
May 24, 2011
The Annual Meeting of Shareholders of Tofutti Brands Inc. will
be held at the Homewood Suites, 2 Jackson Drive, Cranford, New
Jersey, on Thursday, June 16, 2011 at 10:00 a.m., for
the following purposes:
| 1. | To elect seven directors to the Board of Directors for the ensuing year; | |
| 2. | To ratify the selection of EisnerAmper LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2011; and | |
| 3. | To act upon any other matters that may properly be brought before the Annual Meeting and any adjournment thereof. |
Shareholders of record at the close of business on May 18,
2011 will be entitled to notice of, and to vote at, the meeting
or any adjournment thereof.
By order of the Board of Directors,
Steven Kass
Secretary
Secretary
PLEASE
SIGN THE ENCLOSED PROXY CARD AND RETURN IT PROMPTLY
IN THE ENVELOPE PROVIDED FOR THAT PURPOSE.
IN THE ENVELOPE PROVIDED FOR THAT PURPOSE.
IMPORTANT NOTICE REGARDING THE AVAILABILITY OF PROXY
MATERIALS FOR THE SHAREHOLDER MEETING TO BE HELD ON JUNE 16,
2011:
This Proxy Statement, the proxy card and our 2010 annual
report are available at
http://www.amstock.com/ProxyServices/ViewMaterial.asp?CoNumber=06247
Table of Contents
TOFUTTI
BRANDS INC.
50 Jackson Drive, Cranford, New Jersey 07016
50 Jackson Drive, Cranford, New Jersey 07016
PROXY
STATEMENT
ANNUAL
MEETING OF SHAREHOLDERS
June 16, 2011
June 16, 2011
This Proxy Statement is furnished to shareholders of Tofutti
Brands Inc. in connection with the Annual Meeting of
Shareholders to be held at 10:00 a.m. on Thursday,
June 16, 2011 at the Homewood Suites, 2 Jackson Drive,
Cranford, New Jersey, and at any adjournment thereof. The
Homewood Suites is located off Exit 136 of the Garden State
Parkway. The Board of Directors is soliciting proxies to be
voted at the Annual Meeting.
This Proxy Statement and Notice of Annual Meeting, the proxy
card and our Annual Report to Shareholders are expected to be
mailed to shareholders beginning on or about May 23, 2011.
Proxy
Procedure
Only shareholders of record at the close of business on
May 18, 2011 are entitled to vote in person or by proxy at
the Annual Meeting.
Our Board of Directors solicits proxies so that each shareholder
has the opportunity to vote on the proposals to be considered at
the Annual Meeting. When a proxy card is returned properly
signed and dated, the shares represented thereby will be voted
in accordance with the instructions on the proxy card. If a
shareholder does not return a signed proxy card or does not
attend the Annual Meeting and vote in person, his or her shares
will not be voted. Abstentions and “broker non-votes”
are not counted in determining outcomes of matters being acted
upon. They are counted only for determining a meeting quorum. If
a shareholder attends the Annual Meeting, he or she may vote by
ballot.
Shareholders are urged to mark the boxes on the proxy card to
indicate how their shares are to be voted. If a shareholder
returns a signed proxy card but does not mark the boxes, the
shares represented by that proxy card will be voted as
recommended by the Board of Directors. The proxy card gives the
individuals named as Proxies discretionary authority to vote the
shares represented on any other matter that is properly
presented for action at the Annual Meeting. A shareholder may
revoke his or her proxy at any time before it is voted by:
(i) giving notice in writing to the Secretary of our
company; (ii) granting a subsequent proxy; or
(iii) appearing in person and voting at the Annual Meeting.
Shareholder
of Record: Shares Registered in Your Name
If on May 18, 2011 your shares were registered directly in
your name with our transfer agent, American Stock Transfer and
Trust Company, then you are a shareholder of record. As a
shareholder of record, you may vote in person at the Annual
Meeting or vote by proxy. Whether or not you plan to attend the
Annual Meeting, we urge you to vote your shares by completing
and returning the enclosed printed proxy card.
When a proxy card is returned properly signed and dated, the
shares represented thereby will be voted in accordance with the
instructions on the proxy card. If a shareholder returns a
signed proxy card but does not mark the boxes, the shares
represented by that proxy card will be voted as recommended by
the Board of Directors. If a shareholder does not return a
signed proxy card or does not attend the Annual Meeting and vote
in person, his or her shares will not be voted. Abstentions and
“broker non-votes” are not counted in determining
outcomes of matters being acted upon. They are counted only for
determining a meeting quorum. If a shareholder attends the
Annual Meeting, he or she may vote by ballot.
Beneficial
Owner: Shares Registered in the Name of a Broker or
Bank
If on May 18, 2011 your shares were held, not in your name,
but rather in an account at a brokerage firm, bank, dealer, or
other similar organization, then you are the beneficial owner of
shares held in “street
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name” and the Notice of Annual Meeting and Proxy Statement
are being forwarded to you by that organization. The
organization holding your account is considered to be the
shareholder of record for purposes of voting at the Annual
Meeting. As a beneficial owner, you have the right to direct
your broker or other agent regarding how to vote the shares in
your account. Simply follow the voting instructions provided to
ensure that your vote is counted. You are also invited to attend
the Annual Meeting. However, since you are not the stockholder
of record, you may not vote your shares in person at the Annual
Meeting unless you request and obtain a valid proxy from your
broker or other agent.
Cost of
Solicitation
The cost of soliciting proxies will be borne by us. Proxies may
be solicited by our directors, officers or regular employees in
person or by telephone or other means. None of these persons
will receive additional compensation for such solicitation but
will be reimbursed for actual expenses in connection therewith.
We will reimburse brokerage houses and other custodians,
nominees and fiduciaries for their expenses in accordance with
the regulations of the Securities and Exchange Commission
concerning the sending of proxies and proxy material to the
beneficial owners of stock.
Voting
As of May 18, 2011, there were 5,176,678 shares of our
common stock outstanding. The presence of a majority of the
outstanding shares of the common stock, represented in person or
by proxy at the meeting, will constitute a quorum. If a proxy in
the accompanying form is properly executed and returned to us in
time for the Annual Meeting and is not revoked prior to the time
it is exercised, the shares represented by the proxy will be
voted in accordance with the directions specified therein for
the matters listed on the proxy card. Unless the proxy specifies
that authority to vote is withheld, proxies will be voted FOR
each Proposal and otherwise in the discretion of the proxy
holders as to any other matter that may come before the Annual
Meeting.
| • | Any shareholder of record giving a proxy has the power to revoke it at any time before it is exercised by (i) filing with our Secretary written notice thereof, delivered to Tofutti Brands Inc., 50 Jackson Drive, Cranford, New Jersey 07016; (ii) submitting a duly executed proxy bearing a later date; or (iii) appearing at the Annual Meeting and giving notice to our Secretary of his or her intention to vote in person. | |
| • | If your shares are held by your broker or bank as a nominee or agent, you should follow the instructions provided by your broker or bank. |
Proxies solicited hereby may be exercised only at the Annual
Meeting and any adjournment thereof and will not be used for any
other meeting.
To be elected a director, each nominee must receive a plurality
of the votes cast at the Annual Meeting for the election of
directors. An affirmative majority of the votes cast at the
Annual Meeting is required to ratify the appointment of
auditors. Abstentions and broker non-votes are not counted in
determining the number of shares voted for or against any
nominee for director or any proposal.
Our Chairman of the Board and Chief Executive Officer, David
Mintz, holds 2,630,440 shares of common stock representing
approximately 50.8% of the outstanding shares, permitting him to
elect all the members of the Board of Directors and thereby
effectively control the business, policies and management of our
company. Mr. Mintz has indicated that he presently intend
to vote in favor of all of the resolutions on the agenda for the
Annual Meeting.
Our Annual Report for the fiscal year ended January 1,
2011, which report is not part of this proxy solicitation, is
being mailed to shareholders with this proxy solicitation. It is
anticipated that this Proxy Statement and the accompanying form
of proxy will first be mailed to shareholders on or about
May 23, 2011. Shareholders sharing an address and receiving
multiple copies of annual reports and proxy statements can
contact the corporate secretary of the company at Steven Kass,
Secretary, Tofutti Brands Inc., 50 Jackson Drive, Cranford, NJ
07016, to request future delivery of a single copy of annual
reports and proxy statements to the shared address.
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Table of Contents
| ITEM 1. | ELECTION OF DIRECTORS |
The Board of Directors has proposed that seven directors be
elected at the Annual Meeting to serve until the next Annual
Meeting of Shareholders and the due election and qualification
of their successors. The proxies will be voted, unless otherwise
specified, in favor of the election as directors of the seven
persons named below. Should any of the nominees not be available
for election, the proxies will be voted for a substitute nominee
designated by the Board of Directors. It is not expected that
any of the nominees will be unavailable. All of the nominees are
members of the Board of Directors, with terms expiring as of the
date of this Annual Meeting.
Background information with respect to the seven nominees for
director appears below. See “Security Ownership of Certain
Beneficial Owners and Management” for information regarding
such persons’ holdings of common stock.
Directors
and Executive Officers
Set forth below are the names, ages, and current positions with
our company as of May 18, 2011 of our directors and
executive officers. All of our directors will hold office until
the next Annual Meeting of Shareholders and until their
successors have been elected and qualified. Officers serve at
the discretion of the Board of Directors. There are no family
relationships between any of our directors and executive
officers. All of the executive officers devote their full time
to the operations of our company.
|
Director |
||||||||||
|
Nominee
|
Position | Age | Since | |||||||
|
David Mintz
|
Chairman of the Board of Directors and Chief Executive Officer | 79 | 1981 | |||||||
|
Neal S. Axelrod
|
Director | 58 | 2007 | |||||||
|
Joseph Fischer
|
Director | 71 | 2007 | |||||||
|
Aaron Forem
|
Director | 56 | 2000 | |||||||
|
Philip Gotthelf
|
Director | 58 | 2006 | |||||||
|
Reuben Rapoport
|
Director | 82 | 1983 | |||||||
|
Franklyn Snitow
|
Director | 64 | 1987 | |||||||
|
Steven Kass
|
Chief Financial Officer, Treasurer and Secretary of the Company | 59 | — | |||||||
The principal occupation of each director during the last five
years is that shown in the table supplemented by the following
information.
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.
Neal S. Axelrod has been a director since August 2007.
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 Fischer has been a director since August 2007. He
previously served as a director from March 2004 until June 2007.
He has been the principal in FMM Investments, which manages
private portfolios, since 1992. Prior to that and since 1982,
Mr. Fischer was the Controller of the Swingline Division of
American Brands Inc. Mr. Fisher’s accounting and
financial background enhances the breadth of experience of the
board of directors.
Aaron Forem has been a director since 2000. Since 1980, he has
been the president of Wuhl Shafman Lieberman Corp., located in
Newark, New Jersey, which is one of the largest produce
wholesalers in the Northeastern United States.
Mr. Forem’s experience in the food industry and his
managerial experience enhances the breadth of experience of the
board of directors.
Philip Gotthelf has been a director since 2006. He has been
President of EQUIDEX Incorporated, a registered Commodity
Trading Advisor, and EQUIDEX Brokerage Group, a registered
Introducing Broker, since 1985. He
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has also been publisher of the COMMODEX System and COMMODITY
FUTURES FORECAST Service since 1975 and has authored several
financial books for Probus/McGraw Hill, McGraw Hill and
John Wiley & Sons. Mr. Gotthelf’s financial
background enhances the breadth of experience of the board of
directors.
Reuben Rapoport, our former Director of Product Development who
retired in April 2003, has been a director since July 1983.
Mr. Rapoport’s product development background enhances
the breadth of experience of the board of directors.
Franklyn Snitow has been a director since 1987. He has been a
partner in the New York City law firm Snitow Kanfer
Holtzer & Millus, LLP, our general counsel, since
1985. Mr. Snitow’s legal and corporate governance
background enhances the breadth of experience of the board of
directors.
Steven Kass has been our Chief Financial Officer since November
1986 and Secretary and Treasurer since January 1987.
Our Board unanimously recommends that shareholders vote FOR
the election of each nominee for Director named above.
Board of
Directors and Committees
Leadership
Structure and Risk Oversight
Our business and affairs are managed under the direction of our
Board of Directors, composed of five non-employee directors and
two employee directors as of the date of this Proxy Statement.
Because we are a controlled company (with 50% of its voting
power held by an individual), we are not required to comply with
all the NYSE Amex corporate governance requirements (that is, we
are not required to have a have a majority of independent
directors on the Board, and we are not required to comply with
NYSE Amex’s requirements relating to director nominations
and executive compensation). Our corporate governance measures,
however, do not differ in any significant way from NYSE
Amex’s corporate governance requirements applicable to
smaller reporting companies.
Our Board of Directors as a whole establishes our overall
policies and standards, reviews the performance of management
and considers our overall risk regarding our operations and
goals and how those risks are being managed. Members of the
Board of Directors are kept informed of our operations at
meetings of the Board of Directors and its Audit Committee and
through reports and discussions with management. In addition,
members of the Board of Directors periodically visit our
facilities. Members of management are available at Board of
Directors meetings and at other times to answer questions and to
discuss issues. David Mintz, the Chief Executive Officer of
our Company, is Chairman of the Board of Directors. Our company
combined the positions of CEO and Chairman of the Board because
of the size of the company and the efficiency involved. A lead
independent director has not been designated because the Board
does not believe it is warranted for a company of our size and
complexity.
Director
Meetings and Committees
We are required by the NYSE Amex to hold meetings of our Board
of Directors on at least a quarterly basis, and our independent
directors must meet at least annually in an executive session
with only the independent directors present. We do not have a
policy with regard to directors’ attendance at annual
meetings of shareholders, but we encourage our directors to
attend the annual meetings. At our 2010 annual meeting of
shareholders, four of the seven directors then in office were
present and in attendance. Our Board of Directors held four
meetings during 2010, and all of the directors attended those
meetings, except for Messrs. Rapoport and Forem who
attended none.
Our Board of Directors has an Audit Committee, but there are no
committees performing the functions of either a compensation
committee or nominating committee.
Nominations
Process, Executive Compensation; Director Independence; Board
Diversity
It is the position of our Board of Directors that it is
appropriate for our company not to have a separate nominating
and compensation committee in light of the composition of our
Board of Directors and the collective independence of our
independent directors, which enable the company to fulfill the
functions of
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standing committees. We are not currently required to have a
nominating committee or compensation committee. For smaller
reporting companies, the NYSE Amex requires that director
nominations be selected, or recommended for the Board of
Directors’ selection, either by a majority of independent
directors or a nominating committee comprised solely of
independent directors. The NYSE Amex also requires compensation
of the executive officers of smaller reporting companies to be
determined, or recommended to the Board for determination,
either by a majority of the independent directors or a
compensation committee comprised solely of independent
directors. Messrs. Axelrod, Fischer, Forem, Gotthelf and
Snitow meet the independence standards set forth in the NYSE
Amex Company Guide.
Candidates for independent Board members have typically been
found through recommendations from directors or others
associated with us. Our shareholders may also recommend
candidates by sending the candidate’s name and resume to
the Board of Directors under the provisions set forth below for
communication with our Board. No such suggestions from our
shareholders were received in time for our Annual Meeting. We
have no predefined minimum criteria for selecting Board nominees
and do not have a formal diversity policy, although we believe
that the independent directors should have a range of relevant
experience, independence, diversity and strong communication and
analytical skills. In any given search, our independent
directors may also define particular characteristics for
candidates to balance the overall skills and characteristics of
our Board and our perceived needs. However, during any search,
our independent directors reserve the right to modify its stated
search criteria for exceptional candidates.
We currently have only two executive officers, and our Board as
a whole sets their compensation in consultation with the
Board’s independent directors. In setting compensation, the
Board reviews and considers prior compensation levels of the two
executive officers, the contribution of each executive officer
during the course of the year and our financial condition and
prospects for the upcoming year. The Board determines the amount
of cash (or any other compensation) to be paid to our directors.
Our non-employee directors earned director compensation in
fiscal year 2010 based on the number of meetings attended.
Audit
Committee
The Audit Committee consists of Messrs. Axelrod, Forem and
Gotthelf. As a small business issuer listed on the NYSE Amex our
Audit Committee must have at least two members and be comprised
only of independent directors each of whom satisfies the
respective independence requirements of the Securities and
Exchange Commission and the NYSE Amex. Our Board of Directors
has determined that all of our current Audit Committee members
are independent, as that term is defined under the independence
standards for audit committee members in the Securities Exchange
Act of 1934, as amended, and in the listing standards of the
NYSE Amex. The Board of Directors has also determined that Neal
S. Axelrod is an audit committee financial expert, as that term
is defined in Item 407 of
Regulation S-K.
The Audit Committee is responsible for reviewing and helping to
ensure the integrity of our financial statements. Among other
matters, the Audit Committee, with management and our
independent auditors, reviews the adequacy of our internal
accounting controls that could significantly affect our
financial statements, reviews with the independent accountants
the scope of their audit, their report and their
recommendations, and recommends the selection of our independent
accountants. The Audit Committee held four meetings in addition
to the meetings of the entire Board of Directors during 2010.
Messrs. Axelrod and Gotthelf attended all of those
meetings, while Mr. Forem did not attend any. The Board of
Directors adopted and maintains a written charter for the Audit
Committee which is published on the investor relations page of
our website (www.tofutti.com).
Report of
Audit Committee
Our Audit Committee, which operates pursuant to a written
charter, assists the board of directors in fulfilling its
oversight responsibilities by reviewing Tofutti Brands’
financial reporting process on behalf of the board. Management
is responsible for Tofutti Brands’ internal controls, the
financial reporting process and compliance with laws and
regulations and ethical business standards.
EisnerAmper LLP, our independent registered public accounting
firm, is responsible for expressing opinions on the conformity
of the company’s consolidated financial statements with
generally accepted
5
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accounting principles. The Audit Committee is responsible for
overseeing and monitoring these practices. It is not the duty or
responsibility of the Audit Committee to conduct auditing or
accounting reviews or procedures.
In this context, the Audit Committee reviewed and discussed with
management and EisnerAmper LLP, among other things, the scope of
the audit to be performed, the results of the audit performed
and the independent registered public accounting firm’s fee
for the services performed. Management represented to the Audit
Committee that our financial statements were prepared in
accordance with generally accepted accounting principles.
Discussions about our audited financial statements included the
auditors’ judgments about the quality, not just the
acceptability, of the accounting principles, the reasonableness
of significant judgments and the clarity of disclosures in our
financial statements.
The Audit Committee also discussed with EisnerAmper LLP other
matters required by Statement on Auditing Standards,
(“SAS”) No. 61 “Communication with Audit
Committees,” as amended. EisnerAmper LLP provided to the
Audit Committee written disclosures and the letter required by
required by the applicable requirements of the Public Company
Accounting Oversight Board. The Audit Committee discussed with
EisnerAmper LLP the registered public accounting firm’s
independence from the company.
Based on the Audit Committee’s discussion with management
and EisnerAmper LLP and the Audit Committee’s review of the
representations of management and the report of EisnerAmper LLP
to the Audit Committee, the Audit Committee recommended to the
board that the audited financial statements be included in our
Annual Report on
Form 10-K
for the year ended January 1, 2011 filed with the
Securities and Exchange Commission and selected EisnerAmper LLP
as the independent registered public accounting firm for the
company for 2011.
Submitted by the Audit Committee of the Board of Directors of
Tofutti Brands Inc.
Neal S. Axelrod, Chair
Aaron Forem
Philip Gotthelf
Aaron Forem
Philip Gotthelf
Shareholder
Communications with the Board of Directors
Our shareholders may communicate with the members of our Board
of Directors by writing directly to the Board of Directors or
specified individual directors to:
Secretary
Tofutti Brands Inc.
50 Jackson Drive
Cranford, New Jersey 07016
Our Secretary will deliver shareholder communications to the
specified individual director, if so addressed, or to one of our
directors who can address the matter.
Security
Ownership of Certain Beneficial Owners and Management
The following tables set forth as of May 18, 2011 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.
|
Amount and Nature of |
||||||||
|
Name and Address of Beneficial
Owner(1)
|
Beneficial Owner(2) | Percent of Class(3) | ||||||
|
David Mintz
|
2,630,440 | 50.8 | % | |||||
| (1) | The address of Mr. Mintz is c/o Tofutti Brands Inc., 50 Jackson Drive, Cranford, New Jersey 07016. Mr. Mintz has sole voting and/or investment power of the shares attributed to him. |
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| (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 May 18, 2011 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 5,176,678 shares issued and outstanding as of May 18, 2011. |
Security
Ownership of Management.
|
Amount and Nature of |
||||||||
|
Name and Address of Beneficial
Owner(1)
|
Beneficial Owner(2) | Percent of Class(3) | ||||||
|
David Mintz
|
2,630,440 | 50.8 | % | |||||
|
Steven Kass
|
220,000 | 4.2 | % | |||||
|
Reuben Rapoport
|
85,000 | 1.6 | % | |||||
|
Franklyn Snitow
|
71,200 | * | ||||||
|
Joseph Fischer
|
26,000 | (4) | * | |||||
|
Neal S. Axelrod
|
16,000 | (5) | * | |||||
|
Philip Gotthelf
|
10,000 | (6) | * | |||||
|
Aaron Forem
|
0 | — | ||||||
|
All Executive Officers and Directors as a group (8 persons)
|
3,058,640 | (7) | 58.5 | % | ||||
| * | Less than 1%. | |
| (1) | The address of Messrs. Mintz, Kass, Axelrod, Fischer, Gotthelf and Rapoport 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. Forem is 52-62 Cornelia Street, Newark, New Jersey 07105. 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 May 18, 2011 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 5,176,678 shares issued and outstanding as of May 18, 2011. | |
| (4) | Issuable upon the exercise of currently exercisable stock options. | |
| (5) | Includes 15,000 share issuable upon the exercise of currently exercisable stock options. | |
| (6) | Issuable upon the exercise of currently exercisable stock options. | |
| (7) | Includes 51,000 shares issuable upon the exercise of currently exercisable stock options. |
Section 16(a)
Beneficial Ownership Reporting Compliance
Section 16(a) of the Securities Exchange Act of 1934, as
amended, requires our officers and directors and persons who own
more than ten percent of our common stock to file initial
statements of beneficial ownership (Form 3) and
statements of changes in beneficial ownership (Forms 4 or
5) of common stock and other equity securities of the
company with the Securities and Exchange Commission, or the SEC,
and the NYSE Amex. Officers, directors and greater than ten
percent shareholders are required by SEC regulation to furnish
us with copies of all such forms 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
7
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believe that during fiscal year 2010 all persons subject to
these reporting requirements filed the required reports on a
timely basis.
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 2010 totaled
$100,000 or more:
Summary
Compensation Table
|
Non-Equity |
||||||||||||||||||||||||||||||||
|
Stock |
Option |
Incentive Plan |
All Other |
|||||||||||||||||||||||||||||
|
Fiscal |
Salary |
Bonus |
Awards |
Awards |
Compensation |
Compensation |
Total |
|||||||||||||||||||||||||
|
Name and Principal Position
|
Year | ($) | ($) | ($) | ($) | ($) | ($) | ($) | ||||||||||||||||||||||||
|
David Mintz
|
2010 | 450,000 | 350,000 | — | — | — | — | 800,000 | ||||||||||||||||||||||||
|
Chief Executive Officer and Director
|
2009 | 459,000 | 350,000 | — | — | — | — | 809,000 | ||||||||||||||||||||||||
| 2008 | 450,000 | 350,000 | — | — | — | — | 800,000 | |||||||||||||||||||||||||
|
Steven Kass
|
2010 | 125,000 | 150,000 | 275,000 | ||||||||||||||||||||||||||||
|
Chief Financial Officer
|
2009 | 127,000 | 150,000 | — | — | — | — | 277,000 | ||||||||||||||||||||||||
| 2008 | 125,000 | 150,000 | — | — | — | 215,000 | (1) | 490,000 | ||||||||||||||||||||||||
| (1) | The value of the unexercised options as of December 27, 2008 is calculated as the difference between the closing price of the common stock as of December 27, 2008 and the option exercise price. |
Narrative
Disclosure to Summary Compensation Table
Because of our size and the limited number of executive
officers, our compensation structure is not complex. 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. The
executive officers receive salaries based on the prior salaries
provided to the two executive officers, the contribution of each
executive officer during the course of the year and our
financial condition and prospects for the upcoming year. Bonuses
for the prior year are finalized and paid in current fiscal year
and are generally contingent upon our financial condition and
the performance of the executive officers during the prior
fiscal year.
The aggregate value of all other perquisites and other personal
benefits furnished to each of these executive officers was less
than $10,000 for the 2010 and 2009 fiscal years.
Grants of
Plan-Based Awards for 2010
There were no stock options awarded during the fiscal year ended
January 1, 2011.
Long-Term
Incentive Plans-Awards in Last Fiscal Year
We do not currently have any long-term incentive plans.
Director
Compensation
Our non-employee directors earned director compensation in
fiscal 2010 based on the number of meetings attended.
Mr. Axelrod, chairman of the Audit Committee, receives
$1,500 per meeting attended. All other non-employees are
entitled to $500 per meeting attended.
8
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The following table sets forth the compensation received by each
of our non-employee directors for the year ended January 1,
2011. Each non-employee director is considered independent under
NYSE Amex listing standards. Messrs. Forem and Snitow waive
their compensation.
|
Fees |
Non-Equity |
|||||||||||||||||||||||||||
|
Earned or |
Incentive |
Nonqualified |
||||||||||||||||||||||||||
|
Paid in |
Option |
Plan |
Deferred |
All Other |
||||||||||||||||||||||||
|
Cash |
Stock Awards |
Awards |
Compensation |
Compensation |
Compensation |
Total |
||||||||||||||||||||||
|
Name
|
($) | ($) | ($) | ($) | ($) | ($) | ($) | |||||||||||||||||||||
|
Neal S. Axelrod
|
13,500 | — | — | — | — | — | 13,500 | |||||||||||||||||||||
|
Joseph Fischer
|
1,500 | — | — | — | — | — | 1,500 | |||||||||||||||||||||
|
Aaron Forem
|
— | — | — | — | — | — | — | |||||||||||||||||||||
|
Philip Gotthelf
|
4,500 | — | — | — | — | — | 4,500 | |||||||||||||||||||||
|
Franklyn Snitow
|
— | — | — | — | — | — | — | |||||||||||||||||||||
Outstanding
Equity Awards at Fiscal Year End
The following table summarizes the options awards granted to
each of the named executive officers identified above in the
summary compensation table above pursuant to an Equity Incentive
Plan.
Outstanding
Equity Awards at Fiscal Year-End
| Option Awards | Stock Awards | |||||||||||||||||||||||||||||||||||
|
Equity |
||||||||||||||||||||||||||||||||||||
|
incentive |
||||||||||||||||||||||||||||||||||||
|
Equity |
plan |
|||||||||||||||||||||||||||||||||||
|
incentive |
awards: |
|||||||||||||||||||||||||||||||||||
|
plan |
market or |
|||||||||||||||||||||||||||||||||||
|
Equity |
awards: |
payout |
||||||||||||||||||||||||||||||||||
|
incentive |
number of |
value of |
||||||||||||||||||||||||||||||||||
|
plan awards: |
Market |
unearned |
unearned |
|||||||||||||||||||||||||||||||||
|
number of |
Number of |
value of |
shares, |
shares, |
||||||||||||||||||||||||||||||||
|
Number of |
Number of |
securities |
shares or |
shares or |
units or |
units or |
||||||||||||||||||||||||||||||
|
securities |
securities |
underlying |
units of |
units of |
other |
other |
||||||||||||||||||||||||||||||
|
underlying |
underlying |
unexercised |
Option |
stock that |
stock that |
rights that |
rights that |
|||||||||||||||||||||||||||||
|
unexercised |
unexercised |
unearned |
exercise |
Option |
have not |
have not |
have not |
have not |
||||||||||||||||||||||||||||
|
options(#) |
options(#) |
options |
price |
expiration |
vested |
vested |
vested |
vested |
||||||||||||||||||||||||||||
|
Name
|
Exercisable | Unexercisable | (#) | ($) | date | (#) | ($) | (#) | ($) | |||||||||||||||||||||||||||
|
David Mintz
|
— | — | — | — | — | — | — | — | — | |||||||||||||||||||||||||||
|
Steven Kass
|
— | — | — | — | — | — | — | — | — | |||||||||||||||||||||||||||
Transactions
with Related Persons
None. Any material transaction between the company and a related
party must be disclosed to the full board for evaluation and
approval.
| ITEM 2. | APPOINTMENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTANTS |
On January 18, 2005, our Audit Committee appointed Amper,
Politziner & Mattia, LLP as our independent registered
public accountants, and on January 25, 2005, Amper,
Politziner & Mattia, LLP accepted the appointment as
our independent registered public accountants.
On August 17, 2010 the Audit Committee of our Board of
Directors engaged EisnerAmper LLP to serve as our new
independent registered public accounting firm, after we were
notified on August 16, 2010 that Amper, Politziner and
Mattia, LLP would not be able to stand for re-appointment
because it combined its practice on that date with that of
Eisner LLP to form EisnerAmper LLP, an independent
registered public accounting firm. We previously filed a
Form 8-K
on August 17, 2010 acknowledging this change.
The following resolution will be offered by the Board of
Directors at the Annual Meeting.
9
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“RESOLVED: That the selection of EisnerAmper LLP by the
Board of Directors to act as our independent registered public
accountants and conduct the annual audit of the financial
statements of Tofutti Brands Inc. for the fiscal year ending
December 31, 2011 is ratified, confirmed and approved.”
Our Board of Directors believes that EisnerAmper LLP has the
necessary knowledge of our operations, and the personnel,
professional qualifications and independence to act as our
independent registered public accountants.
In the event this resolution does not receive the necessary
votes for adoption, or if for any reason EisnerAmper LLP ceases
to act as our independent registered public accountants, the
Board of Directors will appoint other independent registered
public accountants.
Representatives of EisnerAmper LLP will attend the Annual
Meeting. They will be available to respond to appropriate
questions from shareholders at the meeting and will have an
opportunity to make a statement if they desire to do so.
Fees Paid
to Independent Registered Public Accountants
Set forth below are the aggregate fees billed for each of the
last two fiscal years ended January 1, 2011 and
January 2, 2010 for services rendered by EisnerAmper LLP
and Amper, Politziner & Mattia, LLP.
| Fiscal 2010 | Fiscal 2009 | |||||||
|
Audit fees
|
$ | 94,500 | $ | 95,025 | ||||
|
Audit-related fees
|
— | — | ||||||
|
Total Audit & Audit-related fees
|
$ | 94,500 | $ | 95,025 | ||||
|
Tax fees
|
— | — | ||||||
|
All other fees
|
— | — | ||||||
|
Total fees
|
$ | 94,500 | $ | 95,025 | ||||
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 2010 and 2009, we incurred
audit fees with Amper, Politziner, & Mattia, LLP in the
amount of $26,000 and $95,025, respectively. During fiscal 2010
and 2009, we incurred audit fees with EisnerAmper LLP in the
amount of $68,500 and $0, 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
2010 and 2009.
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 in
2010 or 2009. 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.
Audit
Committee Pre-Approval Policies and Procedures
Our Audit Committee is responsible for the appointment,
compensation and oversight of the work of our independent
registered public accountants. Our Audit Committee has
established a policy for pre-approving the services provided by
our independent registered public accountants in accordance with
the auditor independence rules of the Securities and Exchange
Commission. The policy is designed to ensure that the Audit
Committee will not delegate to management the Audit
Committee’s responsibilities, including the pre-approval of
services to be performed by the independent registered public
accountants.
The policy requires the review and pre-approval by the Audit
Committee of all audit and permissible non-audit services
provided by our independent registered public accountants. A
proposed service may either be pre-approved by the Audit
Committee, or otherwise requires the specific pre-approval of
the Audit
10
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Committee, on a
case-by-case
basis. Any proposed services exceeding pre-approved levels will
also require specific pre-approval by the Audit Committee.
The term of any general pre-approval is 12 months from the
date of pre-approval, unless the Audit Committee considers a
different period and states otherwise. Our Audit Committee will
annually review and pre-approve the services that may be
provided by the independent registered public accountants
without obtaining specific pre-approval from the Audit
Committee. The Audit Committee may add to or deduct from the
list of general pre-approved services from time to time, based
on subsequent determinations. Our Audit Committee will monitor
the audit services engagement on a quarterly basis and will also
approve, if necessary, any changes in terms, conditions and fees
resulting from changes in audit scope, company structure or
other items. Requests or applications to provide services that
require specific approval by the Audit Committee will be
submitted by our Chief Financial Officer to our Audit Committee.
All of the audit services provided by the independent registered
public accountants in fiscal year 2010 were approved by the
Audit Committee under its pre-approval policies.
Our Board of Directors unanimously recommends a vote FOR the
foregoing proposal.
TIME FOR
SUBMISSION OF SHAREHOLDER PROPOSALS
Pursuant to
Rule 14a-8
under the Exchange Act, shareholders may present proper
proposals for inclusion in a company’s proxy statement and
for consideration at the next annual meeting of its shareholders
by submitting their proposals to our company in a timely manner.
Shareholders interested in submitting a proposal for inclusion
in the proxy materials for the annual meeting of shareholders in
2012 may do so by following the procedures set forth in
Rule 14a-8
of the Securities Exchange Act of 1934, as amended. To be
eligible for inclusion, shareholder proposals must be received
by us no later than January 25, 2012. Except in the case of
proposals made in accordance with
Rule 14a-8,
for shareholder proposals to be considered at the 2012
annual meeting of shareholders, the shareholder must have given
timely notice thereof in writing to our corporate secretary by
March 30, 2012.
OTHER
MATTERS
Our Board of Directors does not intend to bring any matters
before the Annual Meeting other than those specifically set
forth in the Notice of the Annual Meeting and knows of no
matters to be brought before the Annual Meeting by others. If
any other matters properly come before the Annual Meeting, it is
the intention of the persons named in the accompanying proxy to
vote such proxy in accordance with the judgment of the Board of
Directors.
Our financial statements are included in our Annual Report to
Shareholders for the 2010 fiscal year, which was expected to be
mailed to our shareholders beginning on or about May 24,
2011.
A COPY OF OUR 2010 ANNUAL REPORT ON
FORM 10-K
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS AVAILABLE
WITHOUT CHARGE TO THOSE SHAREHOLDERS WHO WOULD LIKE MORE
DETAILED INFORMATION CONCERNING THE COMPANY. TO OBTAIN A COPY,
PLEASE WRITE TO: STEVEN KASS, SECRETARY, TOFUTTI BRANDS INC., 50
JACKSON DRIVE, CRANFORD, NEW JERSEY 07016 OR EMAIL A REQUEST TO:
info@tofutti.com.
By Order of the Board of Directors,
Steven Kass
Secretary
Dated: May 24, 2011
11
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ANNUAL MEETING OF SHAREHOLDERS OF
TOFUTTI BRANDS INC.
June 16, 2011
NOTICE OF INTERNET AVAILABILITY OF PROXY MATERIAL:
The notice of annual meeting, proxy statement and form of proxy card
are available at http://www.amstock.com/ProxyServices/ViewMaterial.asp?CoNumber=06247
The notice of annual meeting, proxy statement and form of proxy card
are available at http://www.amstock.com/ProxyServices/ViewMaterial.asp?CoNumber=06247
Please sign, date and mail
your proxy card in the
envelope provided as soon
as possible.
your proxy card in the
envelope provided as soon
as possible.
â
Please detach along perforated line and mail in the envelope provided.
â
| n | 20730000000000000000 5 | 061611 |
THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” THE ELECTION OF DIRECTORS AND “FOR” PROPOSAL 2. PLEASE SIGN, DATE AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE. PLEASE MARK YOUR VOTE IN BLUE OR BLACK INK AS SHOWN HERE ý |
||||||||||||||||||||
1.
|
The election of seven Directors. |
FOR | AGAINST | ABSTAIN | ||||||||||||||||
| 2. |
To ratify the selection of EisnerAmper LLP as the Company’s independent registered public accounting firm for the fiscal
year ending January 1, 2011. |
o | o | o | ||||||||||||||||
| NOMINEES: | ||||||||||||||||||||
o
o
o
|
FOR ALL NOMINEES WITHHOLD AUTHORITY FOR ALL NOMINEES FOR ALL EXCEPT (See instructions below) |
¡ ¡ ¡ ¡ ¡ ¡ ¡ |
DAVID
MINTZ NEAL AXELROD JOSEPH FISCHER AARON FOREM PHILIP GOTTHELF REUBEN RAPOPORT FRANKLYN SNITOW |
3.
To transact such other business as may properly come before the meeting, or any adjournment thereof.
THIS PROXY WILL BE VOTED AS SPECIFIED ABOVE. UNLESS OTHERWISE INDICATED, THIS PROXY
WILL BE VOTED FOR THE (i) ELECTION OF THE SEVEN NOMINEES FOR DIRECTOR NAMED IN ITEM 1 AND (ii)
RATIFICATION OF THE SELECTION OF EISNERAMPER LLP AS THE COMPANY’S INDEPENDENT REGISTERED PUBLIC
ACCOUNTING FIRM FOR THE FISCAL YEAR ENDING JANUARY 1, 2011. |
||||||||||||||||
|
INSTRUCTIONS:
To withhold authority to vote for any
individual nominee(s), mark “FOR ALL EXCEPT” and fill in the
circle next to each nominee you wish to withhold, as shown
here:
= |
||||||||||||||||||||
To change the address on your account, please check
the box at right and indicate your new address in the
address space above. Please note that changes to the
registered name(s) on the account may not be
submitted via this method.
|
o | |||||||||||||||||||
| Signature of Shareholder | Date: | Signature of Shareholder | Date: | |||||||||||
| n | Note: | Please sign exactly as your name or names appear on this Proxy. When shares are held jointly, each holder should sign. When signing as executor,
administrator, attorney, trustee or guardian, please give full title as such. If the signer is a corporation, please sign full corporate name by
duly authorized officer, giving full title as such. If signer is a partnership, please sign in partnership name by authorized person.
|
n |
|
Table of Contents
n
TOFUTTI BRANDS INC.
50 Jackson Drive
Cranford, New Jersey 07016
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
Cranford, New Jersey 07016
The undersigned hereby appoints David Mintz and Steven Kass, or either of them, attorneys or
attorney of the undersigned, for and in the names(s) of the undersigned, with power of substitution
and revocation in each to vote any and all shares of common stock, par value $.01 per share, of
Tofutti Brands Inc. (the “Company”), which the undersigned would be entitled to vote as fully as
the undersigned could if personally present at the Annual Meeting of Shareholders of the Company to
be held on June 16, 2011 at 10:00 a.m. at the Homewood Suites, 2 Jackson Drive, Cranford, New
Jersey and at any adjournment or adjournments thereof, hereby revoking any prior proxies to vote
said shares, upon the following items of business more fully described in the notice of and proxy
statement for such Annual Meeting (receipt of which is hereby acknowledged):
(Continued and to be signed on the reverse side)
| n | 14475 n | |||
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