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Share Name | Share Symbol | Market | Type |
---|---|---|---|
Trans World Entertainment | NASDAQ:TWMC | NASDAQ | Common Stock |
Price Change | % Change | Share Price | Bid Price | Offer Price | High Price | Low Price | Open Price | Shares Traded | Last Trade | |
---|---|---|---|---|---|---|---|---|---|---|
0.00 | 0.00% | 8.35 | 7.55 | 8.83 | 0 | 01:00:00 |
Check the appropriate box:
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Preliminary Proxy Statement
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Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
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Definitive Proxy Statement
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Definitive Additional Materials
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Soliciting Material Pursuant to § 240.14a-12
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Date and Time
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Wednesday, June 23, 2021, at 10:00 A.M., Pacific Time
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Place
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Our meeting will be held online via live webcast. You can access the meeting via the internet at www.meetingcenter.io/271014112. To access the virtual meeting, please have your Notice of Internet Availability of Proxy Materials or proxy card in hand when you visit the website. The password for this virtual meeting is KSPN2021.
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Items of Business
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(1)
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To elect three Directors to serve one year terms and until their successors are chosen and qualified;
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(2)
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To ratify the appointment of Fruci & Associates II, PLLC as our independent registered public accounting firm for the fiscal year ending January 29, 2022; and
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(3)
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To transact such other business as may properly come before the meeting or any adjournment or adjournments thereof.
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Record Date
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Shareholders of record as of May 18, 2021 are eligible to vote. A complete list of these shareholders will be available at our corporate offices at 2818 N. Sullivan Road, Suite 130, Spokane Valley, WA 99216 during regular business hours for ten days prior to the Annual Meeting. This list also will be available during the Annual Meeting on the virtual meeting website. A shareholder may examine the list for any legally valid purpose related to the Annual Meeting.
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Proxy Voting
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We are furnishing proxy materials to shareholders primarily over the internet. We believe that this process expedites shareholders’ receipt of proxy materials, lowers the costs of the Annual Meeting and conserves natural resources. On or about June 1, 2021, we expect to mail to our shareholders a Notice of Internet Availability of Proxy Materials (the “Notice”) containing instructions on how to access our proxy statement for the Annual Meeting and Annual Report on Form 10-K for the fiscal year ended January 30, 2021 (“Annual Report”). This Notice provides instructions on how to vote online or by telephone and includes instructions on how to receive a paper copy of proxy materials by mail. We also include in the Notice instructions on how you can request a paper copy of the proxy materials.
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YOUR VOTE IS IMPORTANT. Whether or not you plan to attend the Annual Meeting, please submit your vote via the internet, telephone or mail as soon as possible.
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By order of the Board of Directors,
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Edwin J. Sapienza,
Secretary
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Name and Address of Beneficial Owner
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Amount and Nature
of
Beneficial Ownership
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Percent of
Class
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The Robert J. Higgins TWMC Trust
38 Corporate Circle
Albany, New York 12203
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713,986(1)
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28.7%
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Neil S. Subin
3300 South Dixie Highway, Suite 1-365
West Palm Beach, 33405
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427,292(2)
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17.2%
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(1)
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Based on Form 5, filed February 21, 2017, by The Robert J Higgins TWMC Trust. This excludes shares beneficially owned by RJHDC, LLC, an affiliate of The Robert J Higgins TWMC Trust, because The Robert J Higgins TWMC Trust disclaims the existence of, and membership in, a “group” under Section 13(d)(3) that may arise as a result of the Higgins Family’s interest in both entities. The Robert J Higgins TWMC Trust disclaims beneficial ownership of any shares owned by RJHDC, LLC other than to the extent the Higgins Family may have a pecuniary interest therein.
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(2)
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Based on Schedule 13D, filed April 9, 2020, on behalf of (i) Neil S. Subin (“Mr. Subin”); (ii) MILFAM LLC; (iii) Alimco Financial Corporation (“Alimco”); (iv) Alimco Re Ltd., a wholly-owned subsidiary of Alimco (“Alimco Re”); (v) Jonathan Marcus (“Mr. Marcus”); (vi) AMIL Of Ohio, LLC; (vii) Catherine C. Miller Irrevocable Trust dtd 3/26/91; (viii) Catherine C Miller Trust A-2; (ix) Catherine C Miller Trust A-3; (x) Catherine Miller Trust C; (xi) Kimberly S. Miller GST Trust dtd 12/17/1992; (xii) LIMFAM LLC; (xiii) Lloyd I. Miller Trust A-1; (xiv) Lloyd I. Miller, III Trust A-4; (xv) Lloyd I. Miller, III Irrevocable Trust dtd 12/31/91; (xvi) Lloyd I. Miller, III Revocable Trust dtd 01/07/97; (xvii) MILFAM I L.P.; (xviii) MILFAM II L.P.; (xix) MILFAM III LLC; and (xx) Susan F. Miller (such persons, trusts and entities named in items (i) through (xx), collectively, the “Reporting Persons”), and issuance of 127,208 shares of common stock of the Company upon exercise of warrants subsequent to filing of the Schedule 13D.
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Name
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Positions With the
Company
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Age
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Year
First
Elected
as
Director/
Officer
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Direct
Ownership
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Shares
that
may be
acquired
within
60 days
of
May 18,
2021
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Total
Shares
Beneficially
Owned
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Percent
of
Class
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Jonathan Marcus
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Director
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61
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2020
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3,000
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188
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3,188
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*
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W. Michael Reickert
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Director
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57
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2016
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6,200(1)
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750
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6,950
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*
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Tom Simpson
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Director
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60
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2020
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60,000(2)
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188(4)
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60,188
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2.4%
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Kunal Chopra(5)
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Chief Executive
Officer
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39
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2020
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—
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10,000
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10,000
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*
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Edwin J. Sapienza
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Chief Financial
Officer
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51
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2018
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1,500
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7,525
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9,025
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*
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All Directors and Executive Officers as a group (5 persons)
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70,700
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18,651
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89,351
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3.6%
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*
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Less than 1% of issued and outstanding Common Stock
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(1)
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Excludes 713,986 shares held in the Robert J Higgins TWMC Trust of which Mr. Reickert is a Trustee.
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(2)
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Excludes 25 shares held by the wife of Tom Simpson. Also excludes 9,737 shares held by Kick Start, LLC, 12,593 shares held by Kick Start III, LLC, 8,395 shares held by Kick Start IV, LLC and 23,879 shares held by WIN Partners. Mr. Simpson holds an interest, manages and has voting control of Kick Start, LLC, Kick Start III, LLC Kick Start IV, LLC and WIN Partners.
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(4)
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Excludes 1,448 and 965 warrants held by Kick Start III, LLC and Kick Start IV, LLC, respectively. Mr. Simpson holds an interest, manages and has voting control of Kick Start III and Kick Start IV, LLC.
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(5)
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Mr. Chopra joined our subsidiary, Kaspien Inc (fka etailz), on September 3, 2019. He has served as Chief Executive Officer of the Company on April 9, 2020.
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Plan Category
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Number of Shares to be
Issued upon Exercise of
Outstanding Options,
Warrants and Rights
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Weighted Average Exercise
Price of Outstanding
Options, Warrants and
Rights
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Number of Shares
Remaining Available for
Future Issuance Under
Equity Compensation Plans
(Excluding Outstanding
Options, Warrants and
Rights)
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Equity Compensation Plan
Approved by
Shareholders
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133,356
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$20.41
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145,419
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Equity Compensation Plans
and Agreements not
Approved by
Shareholders
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—
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—
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—
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Name
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Fees
Earned
or Paid in
Cash ($)(1)
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Stock
Awards
($)
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Option
Awards
($)(2)
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All Other
Compensation
($)
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Total
Compensation
($)
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Jeff Hastings
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10,957
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—
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—
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—
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10,957
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Jonathan Marcus
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7,500
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—
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2,100
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—
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9,600
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Robert Marks
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13,306
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—
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—
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—
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13,306
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Michael Nahl
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11,740
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—
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—
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—
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11,740
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W. Michael Reickert
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18,457
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—
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—
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—
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18,457
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Tom Simpson
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7,500
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—
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2,100
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—
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9,600
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Michael B. Solow
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18,570
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—
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—
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—
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18,570
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(1)
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Fees earned reflect the amount of cash received for the annual retainer, Board and committee meeting fees. Fees earned for Mr. Solow reflect a prorated annual retainer of $50,000 for his role as Chairman of the Board. Effective March 30, 2020, Mr. Solow, Mr. Nahl, Mr. Hastings and Mr. Marks resigned from the Board. Upon their exit from the Board, each received a prorated payment of deferred income in the form of cash and shares.
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(2)
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Amount represents the grant date fair value as computed in accordance with Accounting Standards Codification Topic 718, relating to the grant of stock options to Mr. Marcus and Mr. Simpson in 2020. See Note 11 to the Consolidated Financial Statements in the Company’s 2020 Annual Report on Form 10-K for the assumptions made in determining the value.
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(3)
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As of January 30, 2021, Mr. Reickert, Mr. Marcus and Mr. Simpson each held options to purchase 750 shares.
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Name
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Principal
Position
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Year
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Salary
($)(1)
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Bonus
($)(2)
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Stock
Awards
($)
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Option
Awards
($)(3)
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Non-Equity
Incentive Plan
Compensation
($)(4)
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All Other
Compensation
($)(7)
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Total
Compensation
($)
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Kunal Chopra(5)
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Chief Executive Officer
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2020
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412,000
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100,000
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—
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103,680
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106,000
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6,144
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727,824
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Edwin J. Sapienza
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Chief Financial Officer
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2020
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280,000
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66,667
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—
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72,105
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—
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—
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418,772
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2019
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280,000
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233,334
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—
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—
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—
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—
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513,334
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Michael Feurer(6)
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Former Chief Executive Officer
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2020
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248,205
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—
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—
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—
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—
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745,000
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993,205
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2019
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700,000
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—
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—
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—
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—
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11,750
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711,750
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Bruce J. Eisenberg(6)
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Former Executive Vice President
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2020
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105,233
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100,000
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—
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—
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—
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212,500
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417,733
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2019
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425,000
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—
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—
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17,115
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—
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—
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442,115
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(1)
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Salary represents amounts earned during fiscal year ended January 30, 2021.
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(2)
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For Mr. Chopra, the bonus amount consists of $100,000 guaranteed bonus pursuant to his Offer Letter dated July 5, 2019. For Mr. Sapienza, the bonus amount consists of a $66,667 retention bonus pursuant to his Severance, Retention and Restrictive Covenant Agreement with the Company.
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(3)
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Amount represents the grant date fair value as computed in accordance with Accounting Standards Codification Topic 718, relating to the grant of stock options to the named executive officer in fiscal year 2020. See Note 11 to the Consolidated Financial Statements in the Company’s 2020 Annual Report on Form 10-K for the assumptions made in determining the value.
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(4)
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For Mr. Chopra, amount represents incentive paid in excess of his guaranteed bonus for achieving the bonus target for the year.
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(5)
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Mr. Chopra joined our subsidiary, Kaspien Inc (fka etailz), on September 3, 2019. He became Chief Executive Officer of the Company on April 9, 2020.
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(6)
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Mr. Feurer’s employment terminated as of March 30, 2020. Mr. Eisenberg’s employment terminated as of February 28, 2020.
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(7)
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Includes the following payments made by the Company to the named executive officers:
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Name
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Year
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Perquisites
and Other
Personal
Benefits
($)
|
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Insurance
Premiums
($)
|
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Company
Contributions to
Retirement and
401(K) Plans
($)
|
| |
Severance
Payments
($)
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Total ($)
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Kunal Chopra
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2020
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1,200
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—
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4,944
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—
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6,144
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Edwin J. Sapienza
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2020
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—
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—
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| |
—
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| |
—
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| |
—
|
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2019
|
| |
—
|
| |
—
|
| |
—
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| |
—
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| |
—
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Mike Feurer
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2020
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| |
—
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| |
—
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—
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745,000
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745,000
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2019
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11,750
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—
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—
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—
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11,750
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Bruce Eisenberg
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2020
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| |
—
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| |
—
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| |
—
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212,500
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212,500
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2019
|
| |
—
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—
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—
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—
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—
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Option Awards
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Name
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Grant
Date
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Number of
Securities
Underlying
Unexercised
Options (#)
Exercisable
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Number of
Securities
Underlying
Unexercised
Options (#)
Unexercisable
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Option
Exercise Price
($)
|
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Option
Expiration
Date
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Number of Shares or Units of Stock That Have Not Vested (#)
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Kunal Chopra
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9/3/2019
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5,000
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—
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3.51
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9/3/2029
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—
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7/22/2020
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—
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20,000
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6.38
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7/22/2030
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—
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Edwin J. Sapienza
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3/1/2011
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400
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—
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34.60
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3/1/2021
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—
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5/7/2012
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500
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—
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50.60
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5/7/2022
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—
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6/21/2013
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500
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| |
—
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97.40
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6/21/2023
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—
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6/3/2014
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375
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—
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67.20
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6/21/2023
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—
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4/1/2015
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375
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—
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77.60
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4/1/2026
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—
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5/6/2016
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375
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—
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76.20
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5/6/2026
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—
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5/1/2017
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1,250
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—
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37.00
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5/1/2027
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—
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6/27/2018
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1,250
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—
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19.60
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6/27/2028
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—
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10/23/2018
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2,500
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| |
—
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20.80
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10/23/2028
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—
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11/5/2020
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—
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8,496
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10.75
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11/5/2030
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—
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•
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Subordinated Loan and Security Agreement, pursuant to which the Related Party Entities made a $5.2 million secured term loan ($2.7 million from Alimco, $0.5 million from Kick-Start, and $2.0 million from RJHDC) to etailz with a scheduled maturity date of May 22, 2023, interest accruing at the rate of twelve percent (12%) per annum and compounded on the last day of each calendar quarter by becoming a part of the principal amount, and secured by a second priority security interest in substantially all of the assets of the Company and etailz;
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•
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Common Stock Purchase Warrants (“Warrants”), pursuant to which the Company issued warrants to purchase up to 244,532 shares of Common Stock to the Related Party Entities (127,208 shares for Alimco, 23,401 shares for Kick-Start, and 93,923 shares for RJHDC), subject to adjustment in accordance with the terms of the Warrants, at an exercise price of $0.01 per share. As of May 19, 2021, 7,539 Warrants remained outstanding;
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•
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Contingent Value Rights Agreement (the “CVR Agreement”), pursuant to which the Related Party Entities received contingent value rights (“CVRs”) representing the contractual right to receive cash payments from the Company in an amount equal, in the aggregate, to 19.9% of the proceeds (10.35% for Alimco, 1.90% for Kick-Start, and 7.64% for RJHDC) received by the Company in respect of certain intercompany indebtedness owing to it by our subsidiary, Kaspien Inc (fka etailz) and/or its equity interest in our subsidiary, Kaspien Inc (fka etailz); and
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•
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Voting Agreement (the “Voting Agreement”), pursuant to which the Related Party Entities, the Trust, Mr. Simpson and their respective related entities agreed to how their respective shares of the Company’s capital stock held by the parties (i) were voted with respect to amending the Articles of Incorporation of the Company to set the size of the Board of Directors of the Company at three directors, (ii) were and will be voted with respect to the designation, election, removal, and replacement of members of the Board and (iii) would have been voted on a Sale of the Company (as defined in the Voting Agreement) with respect to which there was a shareholder vote or some other action to take place during the ninety (90) days immediately following the date of the Voting Agreement. Pursuant to the Voting Agreement, Messrs. Marcus and Simpson were appointed as directors of the Company, and Mr. Reickert, a trustee of the Trust, remained as a director of the Company. Mr. Subin was also granted board observer rights.
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1.
|
FORMATION OF THE AUDIT COMMITTEE
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2.
|
RESPONSIBILITIES OF THE COMMITTEE
|
3.
|
DUTIES OF THE COMMITTEE
|
1.
|
Review the Charter. Review this charter periodically, at least annually, and update it as conditions dictate.
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2.
|
Select, authorize and oversee auditors. Have the sole authority to review, select and appoint the independent auditors to audit the books of the Company and its divisions or subsidiaries. Approve the compensation of independent auditors, oversee the work of the independent auditors and resolve disagreements between management and the auditors. Among other things, prior to initially engaging an independent audit firm, the Committee shall receive a written statement consistent with the applicable requirements of the Public Company Accounting Oversight Board (the “PCAOB”) regarding independent accountants’ communications with the audit committee concerning independence.
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3.
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Authorize and oversee independent counsel. Appoint and approve compensation for independent counsel and advisors, including legal, accounting and other experts, as deemed necessary, to obtain clarifications and opinions on the financial statements, litigation and any other matters as considered necessary.
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4.
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Audit Plan. Meet with the independent auditors and financial management of the Company to review the scope of the proposed external audit for the current fiscal year and the audit procedures to be utilized and, at the conclusion of the audit, review any comments or recommendations of the independent auditors. As part of the audit plan, the Committee shall review the process of assessing the risk of fraudulent financial reporting in any material respect, and the procedures that the independent auditors plan to undertake in the audit. Confirm that the lead audit partner, or the lead audit partner responsible for reviewing the audit, for the Company’s independent auditors has not performed audit services for the Company for each of the five previous fiscal years. Consider whether, in order to assure continuing auditor independence, it is appropriate to adopt a policy of rotating independent auditors on a regular basis.
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5.
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Approve non-audit services provided by independent auditors. Approve in advance all non-audit services provided by the independent auditor. Designate at least one member for approval of non-audit services and ratify such approval at the Audit Committee meeting immediately following the approval. Ensure that the Company publicly discloses approval for non-audit services in its periodic reports.
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6.
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Internal Accounting Controls. Review with the independent auditors and the Company’s financial and accounting management the adequacy and effectiveness of the internal auditing, accounting and financial controls of the Company, and elicit any recommendations for improvement of the internal control procedures or particular areas where new or more detailed controls or procedures may be desirable. Discuss guidelines and policies and govern the process by which risk assessment and management are undertaken.
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7.
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Auditors’ Internal Quality Control. At least annually, obtain and review an annual report from the independent auditors describing (i) the independent auditors’ internal quality control procedures and (ii) any material issues raised by the most recent internal quality control review, peer review or PCAOB review of the independent auditors, or by any inquiry or by investigation by governmental or professional authorities, within the preceding five years, respecting one or more independent audits carried out by the independent auditors, and any steps taken to deal with such issues.
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8.
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Accounting Principles. Meet with financial management of the Company concerning any proposed changes in accounting principles of the Company and, subject to review with independent auditors, approve such changes.
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9.
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Related Party Transactions. Review and approve all “related party” transactions with the Company’s directors and officers.
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10.
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Code of Ethics. Review,approve and oversee the Company’s policy statements on ethical corporate conduct and determine whether the views of the Board are sufficiently detailed in the Company’s formal Code of Ethics.
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11.
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Communication. Establish open channels of communication such that the Company’s employees can confidentially and anonymously express their concerns over accounting, internal control or auditing matters. Nominate one director who will receive such concerns. Employees may communicate with the Committee without fear of retaliation or liability for any use of the information provided.
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12.
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Proxy Report. Prepare the Audit Committee report to be included in the Company’s annual proxy statement, as required by the SEC.
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13.
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Internal Audit Function. Review the internal audit function of the Company, including proposed programs for the current year and the coordination of such programs with the independent auditors, with particular attention to maintaining the most effective balance between independent and internal auditing resources.
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14.
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Operating Results. Review, prior to each Committee meeting but no less than quarterly, a summary of the Company’s financial results compared to plan and a revised forecast for the balance of the fiscal year provided by financial management.
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15.
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Review year-end and quarterly financial statements. Review, prior to release, quarterly unaudited and annual audited financial statements, and MD&A, with management and the Company’s independent auditors. Review of the year-end financial statements shall be accompanied by an explanation from
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16.
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Review periodic reports. Review and discuss with the management and the independent auditors the SEC filings made by the Company and other published documents containing the Company’s financial statements, with attention to whether the information contained in these documents is consistent with the information contained in the financial statements.
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17.
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Accounting Accruals. Inquire of financial management of the Company about the existence and substance of any significant accounting accruals, reserves or estimates made by management that had a material impact on the financial statements.
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18.
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Private Consultation with Independent Auditors. Make available the independent auditors for private consultation at all meetings of the Committee; the independent auditors should be encouraged by the Committee to evaluate the Company’s financial, accounting and auditing personnel, and describe the level of cooperation that the independent auditors received during the course of the audit. Review all critical accounting policies and practices to be used; discuss with the independent auditors all alternative treatments and disclosures of financial information within accounting principles generally accepted in the United States of America (GAAP), that have been discussed with management, their ramifications and the treatment preferred by the independent auditors; and all other material written communication between the independent auditors and the management. Ensure that independent auditors periodically submit formal written statements (consistent with the applicable requirements of the PCAOB regarding independent accountants’ communications with the audit committee concerning independence) delineating all relationships between the auditor and the Company and discuss any disclosed relationships or services that may impact, or appear to impact, the objectivity and independence of the auditor and recommend that the Board take appropriate action regarding the auditor’s independence. Discuss with the independent auditor matters required to be discussed by Statement of Auditing Standards No. 61 relating to the conduct of the audit.
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19.
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Hiring employees of the Independent Auditor. Set clear hiring policies for employees or former employees of the independent auditors.
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20.
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Review of Legal Matters. Meet at least annually with the appropriate officer of the Company and, if applicable or appropriate in the Committee’s judgment, outside counsel, to review compliance with the Company’s Code of Ethics and other policies and procedures, to discuss legal matters that may have a significant impact on the Company’s financial statements and to review legal compliance matters including security trading policies. The Committee shall cause to be made an investigation into any matter brought to its attention within the scope of its duties, with the power to retain outside counsel for this purpose if, in its judgment, conduct of such an investigation is appropriate.
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21.
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Income Tax Matters. Review once annually the open years on federal income tax returns, whether there are significant items that have been or might be disputed by the IRS, and inquire as to the status of the related tax reserves.
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22.
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Minutes. Submit minutes of all the meetings of the Committee to the Company’s Board.
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23.
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Letter from Audit Committee Chairman. Submit once annually, at or about the time of the Company’s Annual Meeting of Shareholders, a letter from the Committee Chairman setting forth to the Board a summary of the Committee’s responsibilities and activities.
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24.
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Qualified Legal Compliance Committee. The Committee shall serve as the Company’s Qualified Legal Compliance Committee (“QLCC”) within the meaning of and in accordance with 17 CFR Part 205. In such capacity, the Committee shall meet only as and when required to discharge its QLCC responsibilities.
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1.
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Establish written procedures for the confidential receipt, retention and consideration of reports to the Committee by the appropriate officer of the Company or the Company’s reporting attorneys that credible evidence of a material violation of an applicable United States federal or state securities law, a material breach of fiduciary duty arising under United States federal or state law or at common law, or a similar material violation of any United States federal or state law by the Company or its subsidiaries or by any officer, director, employee or agent of the Company or its subsidiaries has occurred, is ongoing or is about to occur (each, a “Material Violation”).
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2.
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Inform the appropriate officer of the Company, the Company’s Chief Executive Officer and the Company’s Chairman of the Board of any evidence of a Material Violation that is reported to the Committee (unless the Committee reasonably believes that it would be futile to report such evidence of Material Violation to such persons).
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3.
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Determine whether an investigation is necessary regarding any evidence of a Material Violation that is reported to the Committee by the appropriate officer of the Company or reporting attorneys.
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4.
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If the Committee determines an investigation is necessary or appropriate in relation to a report of evidence of a Material Violation: (i) notify the Board; (ii) initiate an investigation, which may be conducted either by the appropriate officer of the Company or by outside attorneys; and (iii) retain such additional expert personnel as the Committee deems necessary. At the conclusion of any such investigation: (i) recommend to the Board, by majority vote, that the Company implement an appropriate response to the evidence of a Material Violation; and (ii) inform the appropriate officer of the Company, the Company’s Chief Executive Officer, the Company’s Chairman of the Board and the Company’s Board of Directors of the results of any such investigation and the appropriate remedial measures to be adopted.
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5.
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Acting by majority vote, take all other appropriate actions to respond to evidence of a Material Violation that is reported to the Committee by the appropriate officer of the Company or reporting attorney, including the authority to notify the Securities and Exchange Commission in the event the Company fails in any material respect to implement the appropriate response that the Committee has recommended the Company to take.
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1 Month Trans World Entertainment Chart |
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